Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award

David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE .

On DATE the applicant and another person , PERSON , were detained by the police and brought to a police station , on suspicion of having committed a robbery .

The applicant remained in detention until DATE . He alleged that he had been beaten by police officers during CARDINAL interrogations on CARDINAL and DATE , with the aim to make him confess to having committed the robbery .

The facts concerning the applicant ’s detention and allegations of illtreatment , as well as the findings of the medical examinations he underwent , are summarised in ORG judgment of DATE , quoted in paragraphs CARDINAL - CARDINAL below .

The criminal proceedings for robbery against the applicant and Mr E.Y. were discontinued on DATE .

On DATE the applicant lodged a complaint with ORG , stating that on DATE , during his detention , he had been beaten by police officers , in order to force him to confess to an offence . He further stated that he did not know the names of the officers but would be able to identify them .

On DATE the prosecutor instituted criminal proceedings against Mr G.H. , CARDINAL of the police officers who had interviewed the applicant . The prosecutor stated that on DATE , in the performance of his duties , Mr G.H. had punched the applicant in the face , chest and back . The prosecutor qualified the criminal conduct as minor bodily injury without detriment to the applicant ’s health , an offence under LAW CARDINAL ( CARDINAL ) taken together with LAW of LAW .

NORP The applicant was interviewed on DATE , DATE and DATE . On each of these occasions he gave descriptions of the officers who had assaulted him and of others who had witnessed the attacks .

On DATE the prosecutor conducted a procedure in which the applicant was confronted with the suspect Mr G.H. ; the applicant stated that Mr G.H. was not CARDINAL of the officers who had assaulted him .

On CARDINAL DATE the prosecutor terminated the criminal proceedings on the ground that no offence had been committed . He found that the applicant ’s complaints were unsubstantiated because his statements were vague and could not be fully verified ; he had stated clearly that Mr G.H. had not beaten him ; his description of the offenders was very general ; PERSON , who had witnessed the alleged physical assault , could not be traced ; and no other witnesses to the applicant ’s condition before or after the arrest had been identified . In addition , it was unclear why the applicant had lodged his complaint with the prosecutor DATE after the alleged beating .

The applicant appealed , and by a decision of DATE ORG quashed the prosecutor ’s order . It stated that , with the exception of PERSON , the prosecutor had failed to interview the police officers who had been on duty on TIME of the events . The prosecutor had also failed to interview witnesses on behalf of the applicant who could have testified about his condition before and after his arrest , and to conduct an identification parade .

Subsequently , the applicant was once again interviewed on DATE . His mother was interviewed on DATE . She stated that after his release the applicant had had bruises all over his body , had been in pain and had said that he had been beaten by police officers .

On DATE the prosecutor suspended the criminal proceedings on the ground that the whereabouts of PERSON were unknown .

On an appeal by the applicant , on DATE a prosecutor at the Sofia Appellate Military Prosecutor ’s Office quashed that order , finding that the testimony of PERSON was not indispensable for the investigation and that the prosecutor had failed to follow all the instructions given by ORG on DATE .

On DATE the prosecution authorities conducted a confrontation between the applicant and Mr D.V. , CARDINAL of the officers who had interviewed him on DATE . The applicant stated that it had not been Mr D.V. but another person who had hit him on DATE .

By an order of CARDINAL DATE , the prosecutor terminated the criminal proceedings against Mr G.H. and sent the case back to the investigator with instructions to find the perpetrators .

On DATE the applicant participated in a photographbased identity parade . On the basis of several photographs of different individuals presented to him , the applicant identified CARDINAL of them as the police officers who had beaten him on DATE but was unable to identify the officer who had beaten him on DATE .

On DATE and DATE the applicant was confronted with ORG and FAC , but stated that he did not recognise them . It appears that these were not the officers recognised by the applicant at the earlier photograph - based identity parade .

On DATE the prosecutor terminated the criminal proceedings . He found that there was no evidence to support the alleged illtreatment except for the applicant ’s statements , which were vague and very general ; the only eyewitness , Mr E.Y. , could not be traced and thus it was impossible to question him ; the applicant had admitted to having seen the alleged offenders after the incident , which , in the prosecutor ’s view , had corrupted the photograph - based identity parade procedure ; and the initial medical reports of CARDINAL and DATE did not record any injuries , while the report of CARDINAL DATE was unclear on whether the injuries had been caused on CARDINAL or DATE .

On an appeal by the applicant , in a decision of DATE the ORG quashed the prosecutor ’s order and returned the case for further investigation . As to the investigation conducted so far , the court found in particular the following :

“ During the preliminary investigation the witness PERSON was interviewed and indicated that on DATE following his detention he was brought to the upper floor of the police directorate , where there was a woman and CARDINAL men . PERSON describes in detail the police officer who punched him in the area of the ear and the body – QUANTITY in height , with black hair . PERSON describes also the officer who hit him on DATE – CARDINAL old , QUANTITY in height , with short black hair , a padlock - shaped beard .

The only possible conclusion concerning the identifications in the case is that they were not conducted in accordance with the requirements of the [ Code of Criminal Procedure ] , because they were all conducted through photographs . The photographs can not show the ORG height [ ... ] . These identifications are useless , given the NORP statements . On the other hand , as seen from the [ albums attached ] , the witness was shown persons of a different age , not the CARDINAL described by him . Moreover , it is not clear why the identification parade had to be conducted through the showing of photographs , from which the FAC height and hair colour are not visible .

In this connection , it is necessary to interview the head of the police directorate , as well as the officials responsible for criminal investigations , [ so as to establish ] which of their subordinates had a padlock - shaped beard at the time and met the description given by the victim .

The court considers that the investigation was not comprehensive and objective , because important witnesses have not been interviewed by the military investigator and , if necessary , confrontations had to be organised .

Moreover , it was necessary to collect evidence as to which officers worked on the case on the date at issue ; this had to be done though an interview with their direct superiors . It was necessary to conduct identification parades , and not photograph identifications , [ so as to perceive ] the features such as hair and beard . ”

Upon an appeal by the prosecutor , in a decision of DATE ORG reversed the above decision and terminated the criminal proceedings . It found , this time , that given the expiry of DATE since the dates of the events , the investigation had become time - barred ( see paragraph CARDINAL below ) .

The ORG has not been informed of disciplinary or any other measures or an internal inquiry , undertaken in relation to the applicant ’s complaints .

On DATE the applicant brought an action against ORG under the ORG and ORG ( “ the ORG ” ) , seeking damages for being beaten by police officers on CARDINAL and DATE . The action was allowed by a judgment of ORG ( “ the ORG ” ) of DATE .

The Sofia Police Directorate did not take part in the proceedings and did not comment on the applicant ’s claims . A prosecutor from the GPE prosecutor ’s office , who took part pursuant to a requirement of the law , considered the claim well - founded , but also considered that the amount in damages was exaggerated .

As to the facts of the case , the ORG found , in particular , the following :

“ The plaintiff PERSON was detained [ ... ] on DATE , at CARDINAL p.m.

As seen from the decision of the prosecutor [ of DATE ] discontinuing the criminal proceedings , a preliminary investigation was opened against [ Mr GPE ] and PERSON on suspicion that on DATE , in [ GPE ] , acting in complicity , the CARDINAL of them had taken away an item belonging to another – a purse , containing personal chattels and money DATE from PERSON . On DATE [ Ms P. ] and [ PERSON ] had been attacked by CARDINAL unknown persons , who had knocked down [ PERSON ] , had taken her purse and had run away . The QUANTITY victims immediately called [ the police ] and described in general terms the attackers . [ Mr GPE ] and PERSON were detained nearby and brought to the witnesses . [ PERSON ] stated that they had not been the attackers . By the same decision [ of DATE ] the investigation against [ Mr GPE ] and PERSON was discontinued for lack of evidence .

The plaintiff attached to his statement of claim a [ medical report by an in - house doctor ] , following a medical examination of PERSON of DATE . The document reported a “ light bruise on the left side of the chest and back ” .

As seen from a medical report of DATE , a [ coroner ] examined the plaintiff [ following his release ] . During the examination the doctor established : CARDINAL ) a QUANTITY by QUANTITY haematoma to his left ear ; CARDINAL ) a QUANTITY by QUANTITY blue - yellow coloured haematoma above the left breast area ; CARDINAL ) a QUANTITY by QUANTITY red - blue coloured haematoma with yellow edges on the left side of the chest near the abdomen ; CARDINAL ) yellow - blue coloured haematomas measuring QUANTITY by QUANTITY and QUANTITY by QUANTITY on the left side of the back ; CARDINAL ) a group of yellow - blue coloured haematomas measuring QUANTITY by QUANTITY and QUANTITY by QUANTITY on the left side of the waist ; CARDINAL ) a QUANTITY by QUANTITY yellow - blue coloured haematoma in the centre of the waist ; CARDINAL ) a group of blue - yellow coloured haematomas overlapping each other , measuring QUANTITY by QUANTITY and QUANTITY by QUANTITY and reaching from the right side of the chest down to the waist ; and CARDINAL) a QUANTITY by QUANTITY yellow - blue coloured haematoma with red patches on the left side of the waist towards the pelvis . The doctor was of the opinion that the injuries had been caused by blunt objects and were consistent with the plaintiff ’s account of the events . The injury to the left ear could have been inflicted on DATE , while the rest of the injuries dated from DATE .

By a decision of CARDINAL DATE of a prosecutor from ORG , criminal proceedings were opened against [ Mr G.H. ] on suspicion that on DATE , at TIME , at the building of the First police directorate in GPE , acting as a ORG official and in the performance of his duties , had punched and hit with his palm PERSON in the face , chest and back , as a result of which the latter had received haematomas in the areas of the left ear , the left part of the chest , the CARDINAL sides of the back and the left part of the waist , which amounts to minor bodily injury causing pain to the victim – an offence under LAW CARDINAL § CARDINAL ( CARDINAL ) taken in conjunction with LAW of LAW .

On DATE the plaintiff submitted records from his examinations as a witness in the criminal proceedings [ concerning his beating ] on DATE , DATE and CARDINAL DATE . In them , the plaintiff describes the events of DATE , his detention and transfer to the [ police directorate ] together with [ Mr GPE ] , his beating by police officers the same evening , his stay in the corridor , handcuffed to a grill , the next beating by an officer on DATE , again during an examination in connection with [ the robbery ] . In TIME CARDINAL DATE he participated in an identity parade , and later in the afternoon the CARDINAL were brought to ORG hospital , but PERSON was not examined . After that they were brought to ORG , where they were examined by a doctor who filled in some documents . He was released on DATE , at TIME On DATE he went to the [ hospital ] but the family doctor told him that she could not issue a medical certificate . On DATE he was examined by a coroner . ”

On the basis of the facts , as established above , the ORG reached the following conclusions :

“ By DATE Republic of Bulgaria , the ORG is liable for damage caused through the unlawful actions and omissions of its bodies and officials . The provision is of a general character and its implementation is to be regulated by statute . The tort liability of the ORG and the municipalities is thus regulated in the GPE and Municipalities Responsibility for Damage Act ( ORG ) , which is the applicable special statute [ ... ] The ORG ’s liability is strict , the victim receives damages directly from the juridical person to which the respective body or official belongs . The liability is objective as it is not necessary to show that the damage was caused through the fault of anyone . [ ... ]

By DATE ( CARDINAL ) ORG , the ORG and the municipalities are liable for any damage caused to individuals and legal persons from the unlawful acts , actions or omissions of their bodies and officials , in the course of or in connection with an administrative activity . By DATE of the ORG , the action is to be directed against the [ bodies ] whose unlawful acts , actions or omissions led to the damage caused . By DATE , the compensation is to cover any pecuniary and non - pecuniary damage , which is a direct and proximate result of the harm done . For the liability to be engaged , the following preconditions have to be met : CARDINAL ) there has to be pecuniary or non - pecuniary damage – actual damage or lost profit ; CARDINAL ) it must have been caused by an unlawful act , action or omission of a body or an official of the ORG or the municipalities ; CARDINAL ) it has to be in the performance of an administrative activity , namely the damage has been caused by the unlawful act , action or omission of the body or official , in the course of or in connection with an administrative activity ; and CARDINAL ) direct and proximate causal link between the unlawful act , action or omission and the damage caused . [ ... ]

The analysis of all written evidence in the present case leads to the unconditional conclusion that on DATE and DATE officials of the First police directorate in GPE caused to the plaintiff minor bodily injury . As early as DATE the [ doctor at ORG ] noted a “ light bruise on the left side of the chest and the back ” . During the plaintiff ’s examination on DATE [ the coroner ] noted CARDINAL different injuries in the areas of the left ear , left part of the chest , left side of the back , left and central parts of the waist , right side of the chest down to the waist and left side of the waist towards the pelvis . Part of these injuries correspond to the CARDINAL established by [ the in - house doctor ] , at the same time the coroner himself is explicit in his conclusion that the injuries could have been caused in the way and at the time indicated by the plaintiff . The plaintiff ’s description of the events of CARDINAL and DATE at the [ police directorate ’s building ] is consistent , as seen from the records of his [ examinations during the criminal proceedings ] . During these examinations the plaintiff was interviewed as a witness , after having been notified of the criminal sanctions in the event of perjury . [ ... ] The combined assessment of [ these records ] together with the remainder of the evidence shows that they all establish identical factual circumstances . In that regard , objective data are also contained in the CARDINAL court decisions given in the framework of the criminal proceedings [ concerning appeals of the applicant against decisions of the prosecution to discontinue the proceedings ] , which are obviously based on evidence collected during the investigation . It has not been disputed that the [ criminal proceedings in question ] were opened following a complaint by the plaintiff against unknown officers of the First police directorate in GPE that on DATE and DATE they had caused him a minor bodily injury , an offence under LAW ( CARDINAL ) taken in conjunction with LAW . As seen from [ the decision ] of ORG of DATE , in the course of the criminal proceedings a medical expert report was commissioned , which established that ORG ’s injuries had caused him pain and suffering . [ ... ]

On the basis of all the evidence indicated above , the court concludes that on DATE and DATE the plaintiff PERSON was beaten by officers of the First police directorate in GPE where he had been detained . A full description of the injuries is contained in the [ coroner ’s ] medical report of DATE . The testimony of the witness ORG [ the plaintiff ’s mother ] establishes that prior to his detention on DATE the plaintiff PERSON was completely healthy . The court accepts this testimony as objectively given , despite the ORG close relation with the plaintiff , as it is logical and consistent . The testimony of [ PERSON ] corresponds to the remaining evidence as well . For example , at the time of the arrest the plaintiff was searched , but nothing irregular was noted on his body or in his behaviour . Also at the time of his detention on DATE the plaintiff filled in a declaration , where he indicated that he did not have health problems . The witness [ V. ] explains that on DATE her son left for work in a good state of health , but in the evening did not come back . He came back in the evening of DATE , TIME , in a deplorable state – his left eye was swollen , he had a yellow - blue bruise on the chest . They sent him immediately to see a doctor , for which there are medical documents . [ ... ]

The court has appointed medical experts who submitted a report , which the court accepts as competently prepared . It has not been challenged by the parties . It establishes that the injuries described in the medical documentation in the case [ were such ] as to cause pain and suffering . The legal definition of the offence of minor bodily injury contained in LAW and QUANTITY of the Criminal Code covers cases of injuries to health causing pain and suffering .

For the considerations above the court finds that the preconditions for the liability of the ORG under LAW ORG were met . It was shown in an unconditional manner that during his detention at the First police directorate ’s building , on DATE the plaintiff received a number of injuries , amounting to minor bodily injury within the meaning of LAW of LAW . Those injuries were caused by officials [ of the directorate ] , in the course of and in connection with their activity in relation to the plaintiff ’s [ detention ] . The fact that the [ detention order ] has not been quashed is irrelevant , because the plaintiff’ ’s beating ] ) that the use of force was justified , within the meaning of [ the provisions of ORG ] . That is why it follows that in the course of the performance of their official activity in [ detaining the applicant ] officials of the First police directorate performed unlawful actions , namely caused a minor bodily injury to the plaintiff [ ... ] The medical documentation in the case establishes a direct and proximate link between the ORG behaviour and the damage caused to the applicant , namely injuries to his body . The considerations above show that all CARDINAL preconditions for the ORG ’s liability under LAW ORG have been met . ”

As to the amount of damages to be awarded , the ORG took into account the nature of the injuries caused to the applicant , as well as the particular circumstances , namely the fact that the injuries were caused by police officers , in a situation where the applicant had been particularly vulnerable as he had been deprived of his liberty . It referred once again to the testimony of the applicant ’s mother , who had stated that after his release the applicant had been in “ a deplorable state ” and that the events “ had destroyed the family ” . The ORG took note , furthermore , of the amounts awarded by the domestic courts in other similar cases . Lastly , it dismissed the applicant ’s argument that the compensation should be comparable to the amount awarded in the ORG ’s case of PERSON v. GPE , no . CARDINAL , DATE ( where the ORG awarded ORG CARDINAL in nonpecuniary damage ) . It noted that the circumstances in that case had been much graver and that , in addition , unlike in PERSON , the case before it did not concern the ineffective investigation into the applicant ’s beating by the police .

On the basis of the above , the domestic court awarded the applicant CARDINAL NORP levs ( ORG ) , the equivalent of MONEY ( ORG ) , in respect of non - pecuniary damage . The applicant had initially claimed BGN MONEY .

The above - mentioned judgment does not appear to have been appealed against , and took effect on an unspecified date . At DATE the Sofia Police Directorate paid the applicant the sum awarded .

Article CARDINAL § CARDINAL of LAW of DATE makes it an offence to cause minor bodily injury to another . Under LAW ( CARDINAL ) , where the injury was caused by police officers in the course of or in connection with the performance of their duties , the offence is considered aggravated . The offence is publicly prosecutable ( LAW ) and , if the injury was without detriment to the victim ’s health ( “ без разстройство на здравето ” ) , is punishable by DATE imprisonment or probation .

Under LAW , forcing an accused to confess or provide information through coercion or other unlawful means is an offence punishable by DATE imprisonment where the perpetrator was a person in whom official powers were vested .

The limitation period for prosecuting offences under LAW ) taken in conjunction with LAW of LAW is DATE ( LAW ( CARDINAL ) of the Code ) , and the limitation period for prosecuting offences under LAW is DATE ( LAW CARDINAL ( CARDINAL ) ) . Each act of criminal prosecution carried out by the competent authorities in relation to the alleged offender interrupts the limitation period and restarts the running of time ( LAW ) . Such interruptions notwithstanding , the alleged offender can no longer be prosecuted if the limitation period has been exceeded by CARDINAL ( LAW ) , which means that an offence under LAW ( CARDINAL ) taken in conjunction with LAW of the LAW can not be prosecuted if DATE have elapsed since its alleged commission .


Remainder inadmissible;Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-c - Reasonably necessary to prevent fleeing;Reasonably necessary to prevent offence);Violation of Article 5 - Right to liberty and security (Article 5-3 - Trial within a reasonable time);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);Non-pecuniary damage - award

Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger

The applicant was born in DATE and lives in ORG .

On an unspecified date the GPE District Police of Kharkiv instituted criminal proceedings against the applicant , who was DATE at the material time , on suspicion of theft of a mobile telephone and acting as an accomplice in an unsuccessful attempted robbery of earrings , a watch and a mobile telephone , in company with CARDINAL other minors , in DATE . The robbery attempt was interrupted when CARDINAL witnesses to the incident intervened .

On DATE a bill of indictment was drafted and the investigator ordered the district police to bring the applicant in for questioning . In addition , the investigator imposed an undertaking not to abscond on the applicant as a preventive measure .

On DATE the police reported that it was impossible to locate the applicant and placed her on the “ wanted list ” .

On DATE the GPE District Police of Kharkiv arrested the applicant at her mother ’s home address and drew up an arrest report , the relevant parts of which read as follows :

“ Investigator ... L. , on DATE at TIME in accordance with LAW of GPE detained , on suspicion of the commission of a crime : PERSON ...

The crime which PERSON was detained on suspicion of having committed falls under LAW paragraph CARDINAL [ and ] LAW paragraph CARDINAL of LAW of GPE .

Grounds and motives for detention : commission of a grave offence ; may abscond from investigation and court , obstruct establishment of the facts of the case ... ”

On DATE Mr ORG , the applicant ’s lawyer , lodged a complaint with ORG ( hereinafter DATE “ the ORG ” ) alleging , in particular , that the applicant ’s arrest and detention were in contravention of LAW , which authorised extra - judicial detention only where it was necessary to prevent or stop a crime . He argued that , since the crimes imputed to the applicant had taken place in DATE , in accordance with LAW ( hereafter – “ the ORG ” ) the investigating authorities had been under an obligation to seek a judicial order in order to arrest the applicant . In addition , he noted that LAW ORG allowed the detention of minors only in exceptional circumstances , which were absent in the applicant ’s case .

On DATE the investigating authorities requested ORG to authorise the applicant ’s remand in custody . Having held a hearing in the presence of the applicant and her advocate , the court authorised the measure requested . In its reasoning the court noted that the applicant had been charged with serious offences and had absconded from the investigating authorities , and that this justified her placement on the wanted list . Furthermore , her mother , who had been deprived of her parental rights , was unlikely to be able to ensure that the applicant would appear before the investigating authorities , as she herself had a criminal record and suffered from alcoholism . In addition , the court referred to a report from the staff responsible for the applicant ’s welfare at the boarding school where she was officially residing , which stated that the applicant had behavioural problems , including a proneness to run away from the school . In the light of these findings the court concluded that if not detained the applicant might commit another crime or obstruct the investigation . The court ’s decision bore no reference to the applicant ’s advocate ’s complaint about the unlawfulness of her arrest and detention DATE .

On DATE Mr ORG appealed against the court decision of DATE . He alleged , in particular , that ORG had failed to analyse the applicant ’s situation from the angle of LAW , which allowed for the placement of a minor in detention pending trial only on condition that there existed “ exceptional circumstances ” . He submitted that in the circumstances of the present case the detention was unwarranted . In particular , the crimes with which the applicant had been charged were not exceptionally serious and the findings that she might abscond , obstruct the investigation or commit another offence were speculative . In particular , no evidence had been presented that during DATE which had passed since the applicant ’s alleged offences she had attempted to commit another crime or obstruct the investigation . Moreover , by DATE the evidence had been largely collected , which made it improbable that the applicant would obstruct the investigation . As regards the allegation that the applicant had already absconded , which justified her placement on the wanted list , the authorities had presented no evidence that the applicant had ever been subpoenaed to appear for questioning either at her school or at her mother ’s address . She had been placed on the wanted list on DATE the order to bring her in for questioning had been issued . Eventually she had been arrested at her mother ’s address , which was her permanent address and whose location was well known to the police . In the meantime , the applicant ’s health and well - being was likely to be seriously endangered by detention in an ordinary pre - trial detention facility , as she was suffering from tuberculosis and had a history of in - patient treatment for psychiatric disturbances . Mr ORG also noted that he had not been given a copy of the decision of DATE and requested that the applicant be invited to participate in the appeal hearing in person .

On DATE the investigator in the applicant ’s case informed Mr ORG in a letter that he could access the decision of DATE at the investigator ’s office at ‘ any convenient time’ .

On DATE Mr ORG amended his initial appeal against the decision of DATE . In particular , he noted that his complaint that the applicant ’s arrest and detention DATE had been unlawful had not been considered . The applicant submitted to the ORG a copy of this amended appeal bearing Mr ORG ’s original signature . There is no receipt slip or any other evidence that the document was ever submitted for judicial consideration .

On DATE ORG ( hereinafter – “ ORG ” ) dismissed Mr ORG ’s appeal following a hearing at which the prosecutor and PERSON , but not the applicant herself , were present . In its decision ORG referred to the same arguments as the first - instance court and additionally mentioned that the applicant ’s state of health was irrelevant to the finding that she might abscond , obstruct the investigation or commit another crime .

In the meantime , on DATE the GPE District Police suspended the criminal proceedings against the applicant on account of her state of health , stating in its decision that all investigative actions necessary at the material time had been completed . Subsequently the investigation was resumed and suspended on several occasions on account of the applicant ’s state of health .

On DATE Mr Tokarev inquired of ORG in a letter as to the state of consideration of his complaint about the unlawfulness of the applicant ’s arrest and detention DATE and allegedly received no answer .

On DATE ORG decided , without a hearing but in presence of the prosecutor , to commit the applicant for an in - patient psychiatric assessment .

On DATE the Dzerzhinsky District Prosecutor allowed the applicant ’s premature release from detention under an obligation not to abscond , referring to her tuberculosis , which required in - patient treatment . On an unspecified date the applicant was committed for in - patient psychiatric assessment .

On DATE the applicant was released from the psychiatric institution following her psychiatric assessment , according to which she was not suffering from any psychotic disorders .

The text of the relevant provision of LAW of DATE ( LAW ) can be found in the judgment in the case of ORG v. GPE ( no . CARDINAL/CARDINAL , § DATE , DATE ) .

The text of the relevant provisions of ORG CARDINAL , CARDINAL and CARDINAL of LAW of GPE of DATE ( “ the ORG ” ) can be found in the judgment in the case of PERSON v. GPE , no . CARDINAL , § CARDINAL , DATE ) .

Other relevant provisions of the ORG , as worded at the material time , read as follows :

“ The body of inquiry shall be entitled to arrest a person suspected of a criminal offence for which a penalty in the form of deprivation of liberty may be imposed only on CARDINAL of the following grounds :

( CARDINAL ) if the person is discovered whilst or immediately after committing an offence ;

( CARDINAL ) NORP if eyewitnesses , including victims , directly identify this person as the one who committed the offence ;

( CARDINAL ) if clear traces of the offence are found either on the body of the suspect , or on his clothing , or with him , or in his home .

If there is other information giving ground to suspect a person of a criminal offence , a body of inquiry may arrest such a person if the latter attempted to flee , or does not have a permanent place of residence , or the identity of that person has not been established .

For each case of a suspect ’s arrest , the body of inquiry shall be required to draw up an arrest order ( протокол затримання ) outlining the grounds , the motives , DATE , time , DATE , the place of arrest , the explanations of the person detained and the time when it was recorded that the suspect had been informed of his right to have a meeting with defence counsel as from the moment of his arrest , in accordance with the procedure provided for in paragraph CARDINAL of Article CARDINAL of the present Code . The arrest order shall be signed by the person who drew it up and by the detainee .

A copy of the arrest order with a list of his rights and obligations shall immediately be handed to the detainee and sent to the prosecutor . At the request of the prosecutor , the material which served as a ground for the arrest shall be sent to him as well . ...

Within TIME of the arrest , the body of inquiry shall :

( CARDINAL ) NORP release the detainee if the suspicion that he committed the crime has not been confirmed , if the term of the preliminary detention established by law has expired or if the arrest has been effected in violation of the requirements of paragraphs CARDINAL and CARDINAL of the present Article ;

( CARDINAL ) NORP release the detainee and select a non - custodial preventive measure ;

( CARDINAL ) bring the detainee before a judge with a request to impose a custodial preventive measure on him or her .

If the arrest is appealed against to a court , the detainee ’s complaint shall be immediately sent by the head of the detention facility to the court . The judge shall consider the complaint together with the request by the investigating body for application of the preventive measure . If the complaint is received after the preventive measure was applied , the judge shall examine it within DATE after receiving it . If the request has not been received or if the complaint has been received after the term of TIME of detention , the complaint shall be considered by the judge within DATE after receiving it .

The complaint shall be considered in accordance with the requirements of Article CARDINAL - CARDINAL of this Code . Following its examination , the judge shall give a ruling , either declaring that the arrest is lawful or allowing the complaint and finding the arrest to be unlawful .

The ruling of the judge may be appealed against within DATE from the date of its adoption by the prosecutor , the person concerned , or his or her defence counsel or legal representative . Lodging such an appeal does not suspend the execution of the court ’s ruling .

Preliminary detention of a suspect shall not last for CARDINAL .

If , within the terms established by law , the ruling of the judge on the application of a custodial preventive measure or on the release of the detainee has not arrived at the pre - trial detention facility , the head of the pre - trial detention facility shall release the person concerned , drawing up the order to that effect , and shall inform the official or body that carried out the arrest accordingly . ”

“ An investigator may arrest and question a person suspected of having committed a crime according to procedure envisaged by Articles CARDINAL , CARDINAL - CARDINAL , and CARDINAL of the Code . ”

“ If a forensic medical or psychiatric examination necessitates long - term monitoring or assessment of the suspect , the court , at the investigator ’s request and with the prosecutor ’s authorisation , may order the suspect ’s committal to the relevant medical institution .

The matter shall be examined according to the procedure established by paragraph CARDINAL of Article CARDINAL - CARDINAL ; the ruling of a judge may be appealed against within DATE by the prosecutor , the accused , or his defence counsel or statutory representative ... ”

“ Detention and placement in custody as a preventive measure may be applied to a minor only in exceptional circumstances , where this is warranted by the gravity of the crime imputed to him , in the presence of grounds , and according to the procedure established by Articles CARDINAL , CARDINAL , ... of this Code . ”

Relevant provisions of the LAW “ on the procedure for the compensation of damage caused to a citizen by the unlawful actions of bodies of inquiry , the pre - trial investigative authorities , prosecutors and courts ” of DATE ( with amendments ) can be found in the judgment in the case of ORG v. GPE , nos . CARDINAL and CARDINAL/CARDINAL , § DATE , DATE .

The above document , in so far as relevant , reads as follows :

“ ... recommends ORG to review , if necessary , their legislation and practice with a view : ...

NORP to exclude the remand in custody of minors , apart from exceptional cases of very serious offences committed by older minors ; in these cases , restricting the length of remand in custody and keeping minors apart from adults ; arranging for decisions of this type to be , in principle , ordered after consultation with a welfare department on alternative proposals ... ”

“ CARDINAL . Where juveniles are detained in police custody , account should be taken of their status as a minor , their age and their vulnerability and level of maturity . They should be promptly informed of their rights and safeguards in a manner that ensures their full understanding . While being questioned by the police they should , in principle , be accompanied by their parent / legal guardian or other appropriate adult . They should also have the right of access to a lawyer and a doctor . They should not be detained in police custody for longer than TIME in total and for younger offenders every effort should be made to reduce this time further . The detention of juveniles in police custody should be supervised by the competent authorities .

When , as a last resort , juvenile suspects are remanded in custody , this should not be for DATE before the commencement of the trial . This period can only be extended where a judge not involved in the investigation of the case is satisfied that any delays in proceedings are fully justified by exceptional circumstances .

Where possible , alternatives to remand in custody should be used for juvenile suspects , such as placements with relatives , foster families or other forms of supported accommodation . Custodial remand should never be used as a punishment or form of intimidation or as a substitute for child protection or mental health measures . ”

Article CARDINAL of the above document , in so far as relevant , reads as follows :

“ GPE Parties shall ensure that ...

( b ) No child shall be deprived of his or her liberty unlawfully or arbitrarily . The arrest , detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time ;

( c ) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person , and in a manner which takes into account the needs of persons of his or her age . In particular , every child deprived of liberty shall be separated from adults unless it is considered in the child ’s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits , save in exceptional circumstances . ”


Christos Rozakis;Nicolas Bratza;Paul Mahoney

The applicant is a NORP citizen , born on DATE and living in GPE . She is represented before the Court by Mr PERSON , solicitor , of Messrs. PERSON and GPE , GPE .

A.

A chronology of the applicant , from her birth in DATE until she reached her majority in DATE , submitted by the ORG and not contested by the applicant , is attached to the present decision . In DATE , the applicant was convicted of common assault , criminal damage and affray . On CARDINAL DATE , an interim hospital order was made under LAW DATE , and the applicant was transferred to ORG for assessment . Whilst at ORG , Dr. PERSON , a consultant psychiatrist , took the view that the applicant suffered from a psychopathic disorder within the meaning of LAW , but that that condition was not treatable . An assessment from the applicant 's solicitors ' own psychiatrist , Dr. PERSON , did not reveal criteria for psychopathic disorder . The applicant was discharged from PERSON to FAC on DATE .

On DATE ORG under LAW of LAW DATE , granted an application made by ORG , that the applicant be kept in secure accommodation until DATE . An order under LAW may only be made in respect of a child who is being looked after by a local authority ; the applicant had been subject to a full care order since DATE . The magistrates stated in their reasoning that if she was kept in any other accommodation the applicant was " likely to injure herself or other persons " .

The secure accommodation order was due to expire on DATE . On DATE CARDINAL applications came before Mr Justice Stuart - White in ORG . The applications were an application by the local authority for a further secure accommodation order to last up to the applicant 's eighteenth birthday , and an application by the applicant for revocation of a care order . After considerable discussion about whether the court had jurisdiction to deal with both applications , the judge made a limited secure accommodation order for TIME so that the case could be dealt with DATE by ORG . Directions concerning the future conduct of the care proceedings were given .

On DATE an application for a secure accommodation was made by ORG with the support of the guardian ad litem before ORG . Prior to the hearing a psychiatric hospital had refused to accept the applicant as a patient . PERSON to which the applicant had first been admitted in DATE and where she was detained at the time of the application , provided a report for ORG . This report , dated DATE , stated under the heading " Future Recommendations " :

" We are unable to recommend that [ the applicant ] remains at PERSON as we can not provide a suitable environment for her . She is the oldest member of a mixed group . We have nothing further to offer in terms of treatment . "

Under the heading " ORG " the report states , in so far as relevant , as follows :

" [ The applicant ] does have access to a Studies programme . Since the granting of a further Secure Order in DATE , [ the applicant ] attended Studies regularly until recently when following an altercation with another young person [ she ] was required to remain on her corridor when the other young person was on the unit . [ The applicant ] was able to attend Studies and to be out on the unit in the absence of the other young person who was at work DATE but , for the most part , she has chosen not to attend studies . "

ORG also stated :

" It is acknowledged that [ the applicant ] has been subject to a great deal of uncertainty concerning her future , the possibility of her being sectioned under LAW if FAC offer her a place and the likely renewal of ORG . It is accepted that these uncertainties have had a direct effect on her behaviour . "

This passage of the report echoed the sentiments of the guardian ad litem , who in a report of DATE ( the identity of the guardian ad litem subsequently changed ) stated that she was " appalled " by the lack of advance planning or preparation with regard to the future care of the applicant and that some forward planning and identification of a treatment programme was essential . This guardian ad litem proposed a phased plan whereby there would be a final placement in a non secure therapeutic setting prior to the applicant 's eighteenth birthday .

The application on DATE for a secure accommodation order was opposed by the applicant and her parents . The application was however successful and a further secure accommodation order was made which authorised the applicant 's detention in secure accommodation for DATE until TIME DATE , DATE before the applicant 's eighteenth birthday . In their reasoning the magistrates stated as follows :

" ( CARDINAL ) We find that there has been a long history of aggressive behaviour and self harm , which is only controlled whilst under close supervision within a secure environment .

( CARDINAL ) We find although there have been fewer incidents of self harm recently , we believe that there exists a danger of her injuring herself and others .

( CARDINAL ) We find it is clear that all avenues open to help [ the applicant ] have been closed for CARDINAL reason or another , leaving ORG with the only option , that being to rehabilitate [ the applicant ] into the community .

Great emphasis has been put on the fact that if an order is made there will be no time to prepare a rehabilitation place before [ the applicant 's ] eighteenth birthday . This is not our concern ... our duty is to consider if the criteria to make the order under LAW [ of LAW DATE ] are made out . On the evidence we have read and heard we are satisfied that the criteria are made [ out ] and therefore we make an order to TIME on DATE . "

The applicant appealed against the order of DATE . The appeal was allowed by ORG on DATE . Mr ORG varied the order so that it expired at TIME on DATE . This new order was accepted by the applicant and her parents .

DATE previously , on DATE , the applicant had been given liberty to withdraw her application for a discharge of the care order as a care plan had been agreed .

On her release from secure accommodation the applicant went to live with her parents .

B. Relevant domestic law

Section CARDINAL of LAW DATE , so far as relevant , provides as follows :

" ( CARDINAL ) Subject to the following provision of this section , a child who is being looked after by a local authority may not be placed , and if placed , may not be kept , in accommodation provided for the purpose of restricting liberty ( " secure accommodation " ) unless it appears-

( a ) that-

( i ) he has a history of absconding and is likely to abscond from any other description of accommodation ; and

( ii ) if he absconds , he is likely to suffer significant harm ; or

( b ) that if he is kept in any other description of accommodation he is likely to injure himself or other persons . "


Violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities);No violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty);Violation of Article 13+2 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2 - Right to life;Article 2-1 - Life);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)

The applicant , a NORP citizen of NORP origin , was born in DATE and lives in GPE . He is the brother of PERSON , who was allegedly detained by the police on DATE and whose body was found in a location outside the town of PERSON , in south east GPE on DATE .

The facts of the case , particularly concerning events which occurred between DATE and DATE , are disputed by the parties .

The facts as presented by the applicant are set out in Section B below ( paragraphs CARDINAL ) . The Government ’s submissions concerning the facts are summarised in Section C below ( paragraphs CARDINAL ) . The documentary evidence submitted by the applicant and the Government is summarised in Sections D ( paragraphs DATE ) and E ( paragraphs CARDINAL ) respectively .

NORP The applicant ’s brother , PERSON , was born in the town of LOC in south - east GPE , in DATE . In DATE he married PERSON ( née PERSON ) and by DATE they had had CARDINAL children , aged at that time DATE .

PERSON and his family were active in local politics in GPE . ORG became an active member of the pro - Kurdish Democracy Party ( DEP ) . Following the closure of DEP by ORG in DATE and the arrest of the DEP Members of ORG , ORG ( HADEP ) was set up as a successor to DEP . PERSON was CARDINAL of the founding members of ORG ’s LOC district organisation and he became the chairman of ORG ’s ORG branch .

At DATE , or DATE , PERSON was arrested , taken into custody and placed in detention on remand . He was accused of membership of , and helping and abetting , ORG ( ORG ) . During his time in prison he was kept blindfolded , given electric shocks , subjected to falaka and to NORP hanging , hosed down with ice cold water , deprived of water and sleep and beaten with truncheons and iron bars . On DATE he was released pending trial and was acquitted on CARDINAL DATE due to a lack of evidence against him .

As a prominent local HADEP politician , PERSON was the subject of harassment and intimidation by the police , and , in particular , by the Governor of ORG , PERSON PERSON GPE . Mr PERSON threatened to kill him and alleged that he was a traitor to the ORG and further alleged that ORG was a terrorist party . PERSON also told PERSON that “ he would be removed quickly ” . ORG took this threat seriously and discussed it with other HADEP party officials . In an article published in the ORG newspaper on DATE , the president of ORG ’s PERSON branch was reported as saying that PERSON had told him about the threats made by the local Governor in GPE .

At this time , PERSON was also regularly followed by plain - clothes police officers and received anonymous telephone calls and threats . Another brother of ORG ’s and the applicant ’s , PERSON , who worked closely with ORG , left GPE because of political persecution and is currently living in GPE .

On or about CARDINAL DATE , a number of NORP from the Cumhuriyet neighbourhood in GPE went to the local HADEP office and informed HADEP officials that plain - clothes security forces were painting red crosses on houses belonging to NORP families in the neighbourhood and were taking down house numbers and personal details of everyone in the area . This was of concern to the families because there had been a massacre of Alevi NORP in PERSON in DATE , prior to which houses had been marked in a similar way . PERSON made a statement about this to the ORG newspaper .

On DATE , that is on DATE , ORG was summoned to the office of the Elbistan Mayor . The Mayor told him that , when they had previously arrested and imprisoned him , they had thought that he would not continue with his political activities in the area . He warned ORG to resign from the party , close down the branch and leave the area . The Mayor also told him that if he listened to his advice , nothing would happen to him , but if he did not , the Mayor could not be responsible for what happened to him . The Mayor also told ORG that he believed that ORG and other ORG members were assisting the ORG . ORG replied that he was an elected representative and that he was not doing anything illegal . ORG later reported this meeting to the administrative board members of the ORG branch of ORG , including PERSON , the local ORG deputy chairman .

On DATE ORG was walking along FAC in GPE between TIME and TIME , accompanied by his wife PERSON , when he was abducted by plain - clothes police officers carrying walkie - talkies , who then drove him away in a white ORG . The incident was witnessed by PERSON , who was QUANTITY away from GPE at the time . The CARDINAL men had introduced themselves as police officers and told ORG that he would be going with them to the police station .

Another eye - witness to the abduction was PERSON who was also active within the HADEP party in Elbistan at this time and who knew ORG well . PERSON recognised one of the plain - clothes police officers as one who had previously confiscated newspapers from his shop .

Later on DATE PERSON went to the HADEP office to tell her husband ’s colleagues what had happened .

On DATE PERSON went to ORG , accompanied by PERSON , to obtain information about her husband ’s whereabouts . She was told that ORG had not been taken into custody . She was then referred to the gendarmerie and subsequently to the ORG ’s office . Further inquiries were made by other members of the family , but no information was given to them . PERSON also contacted the applicant to inform him that her husband DATE his brother DATE had been taken into custody on DATE .

PERSON accompanied PERSON to CARDINAL or QUANTITY police stations in GPE shortly after the abduction , but at each station they were told that FAC was not being detained there .

On DATE a statement made by the NORP Governor , PERSON , was published in the local newspaper , PERSON . In this statement Mr PERSON denied that ORG had been detained .

On DATE PERSON lodged a criminal complaint with ORG about the disappearance of her husband . She provided a photograph of him and requested that the matter be investigated . Her petition was counter - signed by both the Prosecutor and the Security Director on DATE .

Also on DATE ORG published an ‘ ORG bulletin in respect of the disappearance of ORG .

On DATE PERSON and a number of ORG executives petitioned the ORG Governor and requested him to carry out an investigation into ORG ’s disappearance .

One evening on or about CARDINAL DATE , a telephone call was made to ORG house which was answered by his CARDINAL-year old daughter , GPE . During the telephone call , she was made to listen to the voice of her father whilst he was being tortured . PERSON went immediately to the police station to complain about this telephone call , but the police were not interested and even made fun of her . A complaint about the call was lodged with the Prosecutor but , as far as the applicant was aware , no steps were taken by the Prosecutor to investigate the matter . CARDINAL later the PERSON family were called to the Cumhuriyet neighbourhood police station in GPE where they were asked questions about the telephone call . PERSON asked the police officers why they had not investigated her husband ’s case before . CARDINAL of the police officers replied to PERSON , “ I knew GPE well , but if I saw him now , I would not recognise him and neither would you ” . She asked what he meant by this , but was sent away .

PERSON and other family members went to meet with PERSON , but he provided them with no information about ORG whereabouts and instead he insulted and threatened PERSON .

NORP Following PERSON abduction , PERSON and PERSON were made temporary leaders of ORG ’s ORG branch . They were later arrested and subjected to torture . Mr Yeter was threatened by the police not to talk about ORG case or to ask further questions about him or highlight the case abroad . He was told to resign or he would suffer the same fate as others .

On DATE ORG called PERSON to his office and questioned her about her husband . He asked her whether ORG could have been killed by the ORG . PERSON replied that her husband had never had any contact with the NORP and that there was no reason to believe that he had been abducted or killed by them . She said that her husband had previously been detained for alleged involvement with the ORG but had been released . She told the Prosecutor that neither she nor her husband ’s family had ever had any problems with anyone .

On or about DATE CARDINAL PERSON was informed by the police that a body had been found near the town of PERSON , in GPE , QUANTITY from GPE . PERSON and members of the PERSON family went to PERSON to see the decapitated body of PERSON , which had been separated into CARDINAL or CARDINAL pieces . Most of the body was in a state of decomposition .

The Pötürge Prosecutor took statements from the PERSON family members present . The security forces told the relatives that an autopsy would be carried out within DATE and that the body would be released afterwards .

On DATE PERSON made several formal complaints to the Prosecutor , requesting that the murder of her husband be investigated and the necessary action be taken .

On DATE ORG published another ‘ ORG bulletin about ORG .

According to the autopsy report drawn up by ORG on DATE , there were CARDINAL bullet wounds in the body , including CARDINAL in the skull .

In DATE PERSON was summoned to the police station and was asked about the petitions she had made in respect of her husband . While at the police station , she signed a document which she believed confirmed that she had submitted those petitions .

The PERSON family have not been informed by the Prosecutor or any other official about any investigation being undertaken into her husband ’s disappearance and murder .

On DATE ORG body was released to the family ’s lawyer . The body was buried DATE . Members of the security forces surrounded the area during the burial to prevent anyone other than close family from entering .

NORP The applicant kept in contact with Mr PERSON , another member of ORG ’s ORG branch , throughout this period . Mr Kaya told the applicant in DATE that ORG would be making a statement about the abduction and murder of his brother during the forthcoming DATE general meeting of ORG . PERSON and CARDINAL other local HADEP politicians were shot and killed on their way back from that DATE general meeting .

The applicant took up the matter with various international organisations , including ORG . He sought advice from his ORG , PERSON , who petitioned ORG concerning ORG death . At this time , while making telephone calls to GPE , the applicant would on several occasions be cut off and a LANGUAGE - speaking voice would interrupt and threaten him .

The ORG notes that the Government did not submit observations on the merits of the case ( see paragraph CARDINAL above ) . The following submissions are therefore taken from the observations submitted to the Commission on DATE and from the additional observations submitted on DATE , i.e. prior to the application being declared admissible .

According to the ORG , the authorities first became aware of the disappearance of Mr GPE on DATE , following the receipt of the petition submitted by PERSON to the PERSON Governor ( see paragraph CARDINAL below ) . Upon receipt of this petition , the Deputy Governor of PERSON requested information from a number of authorities .

On DATE the Elbistan Gendarme Headquarters sent a reply to the Deputy Governor . According to this reply , PERSON had not been taken into the custody by the gendarmerie .

Also on DATE ORG informed the Deputy Governor that ORG had not been detained by them on or around DATE .

On DATE the PERSON Governor sent his report to ORG , according to which a number of newspapers had carried reports of the alleged disappearance of PERSON . On DATE the ORG newspaper had run the headline , “ Director of ORG ’s Elbistan Branch Taken into Custody ” . On DATE the same newspaper had reported , “ ORG ’s ORG Director Missing ” and asked , “ Was ORG Director PERSON ? ” . On DATE the ORG newspaper had carried the headline , “ Custody in GPE ” . The accuracy of these articles had been assessed by the PERSON security units and it had been established that ORG had not been taken into custody . He had , however , been arrested in DATE and DATE in connection with his alleged membership of outlawed organisations . On the basis of his past activities , the PERSON Governor concluded in his report that it was possible that ORG had left the country through illegal means in order to join the ORG or to carry out activities on behalf of the ORG .

On DATE a reply was given to the Secretary of ORG , who had apparently enquired on DATE whether ORG had been treated at ORG for injuries sustained as a result of torture . The reply stated that between the dates of “ DATE and DATE ” , ORG had not requested any kind of treatment from this hospital and neither had he been brought there by the police .

On DATE the chief of ORG sent a letter to the chief of ORG in which he wrote that he had questioned a number of persons who owned shops on FAC where FAC had allegedly been taken away by the police . None of these persons had any information about such an incident . On the basis of this information and also on the basis of statements taken from PERSON and GPE , the LOC police chief concluded that the allegation was one of many similar allegations made with the aim of dishonouring the security forces .

DATE . On DATE ORG of Elbistan sent to ORG ( hereinafter “ the Directorate ” ) a letter in which reference was made to information sent to the ORG previously . This letter informed ORG discovery of ORG body , together with CARDINAL keys , on DATE ; CARDINAL of these keys had been for the door to the HADEP party office building , CARDINAL for ORG house and CARDINAL one for a briefcase belonging to ORG .

In view of the contents of the briefcase , it had been established that ORG was conducting an extramarital affair with a certain ORG , who was a married woman . Adultery being an offence at the relevant time , ORG husband had made a complaint to the authorities against ORG which had resulted in a decision not to prosecute , taken by ORG on DATE . A number of letters found in the briefcase revealed the unfaithful acts of CARDINAL

The Chief Public Prosecutor further referred to a statement taken from PERSON , PERSON brother , by ORG on DATE . According to this statement , PERSON , the father of DATE , had told PERSON on DATE that , “ ... they fucked him up and got rid of him ... ” . This had been understood to be a reference to GPE .

The Chief Public Prosecutor , taking into account the above information , concluded in his letter to the ORG that the death of PERSON was closely connected to his extra - marital affair with CARDINAL

According to the autopsy report of CARDINAL DATE , drawn up by ORG in GPE , there were CARDINAL bullet wounds on the body and another one in the skull .

In a letter of CARDINAL DATE ORG informed ORG of all the facts and evidence collected until DATE .

On DATE ORG sent another letter to the Directorate . Referring to the application lodged with the Commission , the Prosecutor informed the ORG that the death of ORG would be explained when the preliminary investigation , which had been started by ORG after the discovery of the body , was completed .

On DATE ORG sent a letter to the ORG , informing the latter of the above mentioned correspondence . According to this letter , the allegations directed against ORG officials were illusory and had been made for propaganda purposes .

A letter drawn up on DATE by ORG referred to the above mentioned facts and reports and stated that the body of ORG had been buried by his family in GPE on DATE .

In their additional observations submitted to ORG on DATE , the ORG finally submitted that ORG investigation into the death of PERSON was still pending under file no . CARDINAL/CARDINAL and that it would continue until the expiry of the statutory limitation period .

The following information appears from the documents submitted by the Government .

Pursuant to an interim decision adopted by ORG ( hereinafter “ the ORG ” ) on DATE , the applicant ’s brother , PERSON , was released from prison pending the outcome of criminal proceedings brought against him on account of his alleged ORG membership and on suspicion of aiding and abetting that organisation .

On DATE the Prosecutor at ORG decided to discontinue the prosecution of the applicant ’s brother on account of a lack of sufficient evidence to show his involvement in such offences .

At TIME on DATE PERSON , a village guard , informed the commander of FAC of his discovery of a dismembered body in a location near NORP hamlet of GPE , situated within the administrative jurisdiction of the town of PERSON . The commander of FAC , together with a number of soldiers under his command , went to the location where the body had been found by PERSON GPE . They were unable to find any bullets at the scene .

Mr PERSON , the Prosecutor of the town of PERSON , arrived at the scene shortly after the gendarmes and recorded his findings in a report . Mr PERSON also instructed a photographer to photograph the body . The soil under and around the body parts was searched for bullets , spent bullet cases and for similar evidence , but none were found .

A wallet , found in the deceased ’s jacket pocket , contained an electricity bill and a piece of scrap paper . Noting that these papers were very wet and risked being torn , a decision was taken to read them at a later stage when they were dry . A key for a door lock , a small , rusty flick - knife and CARDINAL rusty telephone tokens were also found in the jacket pocket .

Dr PERSON and Dr PERSON , who had arrived at the scene together with the Prosecutor , detailed their findings in a report drawn up during the examination of the body . According to this report , the body was badly decomposed and body parts and bones were lying around . The head was missing . Bones had been scattered around the body , possibly by wild animals . The examination carried out on the body parts did not reveal any firearm injuries . The internal organs had all disappeared . The doctors were unable to establish the cause of death and a decision was therefore taken to send the remains of the body to ORG in GPE .

On DATE ORG sent a fax message to his colleague in the town of GPE , asking the latter to help establish the identity of the body by checking the information found in the jacket pocket .

On DATE PERSON examined the clothes found on the body and concluded that they belonged to her husband PERSON . ORG then sent the remains of the body , together with the reports drawn up at the site where it had been found , to ORG and asked for the cause of death to be established .

DATE . Also on DATE , a report was drawn up by QUANTITY gendarmes . According to this report , the key found on the body belonged to a briefcase owned by ORG which was being kept in the house of his brother - in - law , PERSON . The briefcase was opened by the gendarmes who found a number of documents in it . These documents related , inter alia , to the criminal proceedings brought against ORG on account of his alleged adultery with CARDINAL

On DATE a number of soldiers and village guards once more visited the site where the body had been found and searched for the missing head . They found the skull in CARDINAL pieces .

DATE , ORG and Dr PERSON visited the area and examined the bones found by the soldiers earlier that day . Dr PERSON observed that the posterior part of the skull had a bullet entry , measuring QUANTITY . This bullet had also caused a fracture in the skull . The Prosecutor forwarded the skull pieces to ORG in GPE .

DATE statements were taken by the authorities from members of ORG family , who stated that they had heard that ORG had been having an extra - marital affair with ORG and that ORG family were angry with ORG .

On CARDINAL DATE PERSON submitted a petition to ORG and asked for the remains of her husband to be returned to her after they had been examined in GPE .

On DATE ORG began its examination of the remains of the body . ORG was asked to establish whether the clothes worn by the deceased bore any damage caused by a bullet or sharp objects . In case bullet damage was found , ORG was requested to establish the distance from which the bullet had been fired .

On DATE ORG , PERSON , sent a letter to his colleague in the town of GPE , stating that , in his opinion , the affair PERSON had being conducting with ORG could be connected with his death in DATE . Mr PERSON asked ORG to take statements from members of ORG family who lived in the town of LOC .

ORG also sent a letter to ORG on CARDINAL DATE and urged them to expedite the examination of the remains of ORG body .

DATE . On DATE PERSON drew up a report in which he detailed the developments that had taken place in the investigation . According to this report , PERSON , chairman of ORG ’s ORG branch , had been found dead on DATE with a possible bullet entry wound on his skull . Mr PERSON had also found out from ORG that the disappearance of GPE in DATE had been brought to the attention of that Prosecutor . The husband of ORG had also disappeared DATE prior to the disappearance of PERSON and ORG had then started living with another man in LOC . PERSON had gone to Gaziantep prior to his disappearance and had had a row with that man .

On DATE ORG concluded that the large number of cuts and other damage on the clothes had been caused by rotting .

On DATE ORG recorded in their report that ORG had been shot in the head from behind . It was also observed that another bullet had gone through the spine . It was concluded that the CARDINAL bullets had caused the death but that it was not possible to establish the distance from which the bullets had been fired . The report contains no information as regards the time of death .

In a letter of CARDINAL DATE the Prosecutor in PERSON requested the Prosecutor in the city of Gaziantep to question ORG in order to establish whether she had any information about the death of FAC .

On DATE the remains of ORG body were returned to ORG , who then handed them over to the family ’s lawyer for burial .

On DATE a statement was taken from CARDINAL by the Prosecutor in Gaziantep . In her statement ORG denied that she had had a relationship with PERSON and added that she did not know anything about his death .

On DATE a certain Mr PERSON was questioned by a gendarme officer in relation to “ the killing of a person by CARDINAL people in a location near GPE in the autumn of CARDINAL ” . Mr PERSON stated that at TIME in DATE , he and his wife had gone to the forest to collect leaves for his animals . TIME , when they had finished collecting leaves and had begun their journey back in a tractor , they had seen CARDINAL men , CARDINAL of whom was lying on the ground , with his face down , between QUANTITY rocks , and the other two had “ taken positions ” . The CARDINAL men who had “ taken positions ” were wearing clothing and hats similar to military uniforms and military boots . All CARDINAL men were wearing light brown vests , similar to the type in which ammunition could be carried . Mr Dalkılıç was able to see the barrel of the gun of one of the men . He did not think that the men had seen him or his wife . He had not heard any gun shots . He and his wife had been scared and taken another path which took them to the asphalt road . On their way home , they had seen a minibus whose driver he knew . He had told the minibus driver that he and his wife had seen QUANTITY armed men and asked the minibus driver to inform the gendarme station .

The following day Mr Dalkılıç had been summoned to the gendarme station where he was questioned about what he and his wife had witnessed DATE . He had heard at DATE that the soldiers had gone to the area to look for the CARDINAL men but that they were unable to find them .

At TIME on DATE Mr Dalkılıç was collected from his house by gendarmes and taken to the place where he had seen the QUANTITY persons . Mr Dalkılıç showed the gendarmes the QUANTITY rocks between which the “ dead man ” , who was wearing military clothing , had been lying .

Also on DATE Mr Dalkılıç was questioned by ORG . Mr Dalkılıç repeated the version of events contained in his previous statement made to the gendarmerie and added that the CARDINAL men , all with long hair , had been wearing commando uniforms and berets . He did not think any of them was dead . The person lying between QUANTITY rocks was not moving but the other CARDINAL were . Although he had told the minibus driver that he had seen QUANTITY armed men , in fact only CARDINAL of them had been armed . The fact that the men had longer hair than soldiers’ had led him to form the opinion that the QUANTITY men were terrorists .

On DATE the Prosecutor at ORG sent a letter to the Prosecutor in GPE and asked him whether an investigation had been carried out into the disappearance of GPE in DATE . The ORG also referred in his letter to the following correspondence :

On DATE ORG forwarded to the ORG the decision taken by his office on DATE not to prosecute PERSON and DATE for adultery .

The following information appears from the documents submitted by the applicant .

On DATE PERSON submitted a petition to the Prosecutor ’s office in the town of GPE . PERSON alleged in that petition that her husband had been taken away by plain - clothes police officers in a ORG car at TIME on DATE . She further stated that she had already contacted ORG where she had been told that her husband had not been detained by the police . She finally stated that her fears for her husband ’s safety were heightened following the publication of a press release – drawn up by the Governor of GPE – in the local paper on DATE . According to that communiqué , her husband had not been detained by the police . She asked the Prosecutor to look for her husband . PERSON enclosed a photograph of her husband with her petition and wrote her address on the petition .

PERSON petition was accepted by the Prosecutor DATE . On the petition the Prosecutor wrote his instructions according to which “ [ FAC ] should be searched for in the places where he may be ” . It also appears that this petition and the instructions were forwarded to ORG DATE .

On DATE PERSON submitted a similar petition , together with a photograph of her husband , to the office of FAC PERSON .

Mr Bulut Yılmaz sent CARDINAL letters to the applicant ’s lawyers in which he described his eye - witness account of the abduction of ORG on DATE ( see paragraph CARDINAL above ) . PERSON left GPE in DATE and settled in GPE where he was subsequently granted political asylum . According to these letters , PERSON had seen CARDINAL plain - clothes police officers talking to GPE on FAC in GPE on DATE . ORG had then got into the white ORG car and left with the police officers .

The applicant submitted to ORG a chronology of incidents , listing attacks against representatives of pro - NORP political parties , in particular ORG ( HEP ) , DEP and ORG , DATE . This chronology lists a large number of attacks against members of these pro - NORP political parties who either died or were left injured as a result . It also lists armed attacks and bombings , etc . against the LOC of these parties . According to the list , CARDINAL politicians belonging to the above mentioned political parties have been murdered between the entry into ORG in DATE and the abduction of GPE in DATE .

The relevant domestic law and practice are set out in the judgment of ORG v. GPE ( no . CARDINAL , § § DATE , CARDINAL DATE ) .


CASE OF BUSINESS SI INVESTITII PENTRU TOTI v. MOLDOVA

Violation of Art. 6-1;Non-pecuniary damage - award

David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza

NORP The applicant company is registered in GPE .

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

NORP In DATE a ORG - owned company started construction of an apartment building , with the ground floor reserved for office space . After several changes of ownership of the unfinished building , another ORG company ( L. ) was designated as its owner . A subsequent administrative decision allowed a third ORG company ( M. ) to become a co - owner of the building .

In DATE , with the apparent approval of ORG ( “ the GPE ” ) , concluded a contract with a private company ( I. ) . The latter undertook to finish the construction works in exchange for a share of the office space on the ground floor of the building .

On DATE I. concluded a contract with the applicant company , under which the applicant company would finance the construction work and in exchange become the owner of a part of the office space in the building .

On DATE M. initiated court proceedings against L. , NORP and the GPE for annulment of the DATE contract , as interfering with its right to a part of the building .

On DATE the applicant company initiated court proceedings against NORP , claiming damages for ORG 's failure to fulfil its part of the contract in time . On DATE the applicant company requested ORG to transfer the office space to which it had rights under the contract concluded in DATE .

On DATE the applicant company initiated court proceedings against PERSON , ORG and the PERSON municipality , requesting confirmation of its property right over the office space claimed from ORG under the contract of DATE . It noted that it had invested MONEY ( ORG ) in the construction of the building under that contract and that it was using the relevant office space , but that it was still unable to exercise all rights over that property as its rightful owner . It added that “ due to ORG 's actions , [ the applicant company ] was dragged into court proceedings against PERSON , the GPE , etc . ” The applicant company asked the court to recognise its property right over specifically identified office space in the relevant building .

On DATE the applicant company asked the court to discontinue the proceedings it had initiated against NORP because the latter had accepted its claims and transferred the relevant office space . On DATE ORG allowed the applicant company 's request .

Also on DATE ORG rejected the claims of PERSON as unfounded .

On DATE ORG quashed that judgment and adopted a new one , allowing PERSON 's claims in full .

The applicant company asked for a revision of the judgment of DATE . It complained that it had not been joined as a party to the proceedings , even though its property rights had been affected . Moreover , its court action lodged on DATE had not been examined and the judgment of DATE had prejudged the outcome of those proceedings . The applicant company emphasised that it had withdrawn only its court action against ORG and not that against PERSON and the GPE for recognition of its property right over the part of the building which it had been occupying throughout the proceedings .

On DATE ORG rejected the applicant company 's request for revision . It found that the applicant company was not the owner of the disputed part of the building . It also found that on DATE I. had concluded the contract with the applicant company in bad faith , since it had been aware of the ongoing legal dispute with PERSON in respect of the building and of the court prohibition on continuing any construction work . The proceedings which had ended with the judgment of DATE did not affect the applicant company 's right to claim damages from NORP for its actions in bad faith .

The court also considered that by withdrawing its claims on CARDINAL DATE the applicant company had sought to have the proceedings discontinued in their entirety . It added that “ since the applicant company had withdrawn the totality of its claims , but the court decided to discontinue the proceedings only in respect of CARDINAL such claim , the parties have the right to ask for an additional decision discontinuing the proceedings in respect of the recognition of the property right ” .

Article CARDINAL of the Code of Civil Procedure , in force before DATE , reads as follows :

If the legally protected rights and interests of persons not participating in the proceedings may be affected by a court judgment because of the nature of the legal relationship or applicable legal provisions , the court is obliged to join such persons to the proceedings as co - defendants or to inform them of their right to join as co - plaintiffs ” .

Article CARDINAL of the Code of Civil Procedure reads as follows :

“ A request for revision shall be granted if :

( g ) the court has adopted a judgment affecting the rights of persons who were not parties to the proceedings ;

( h ) the judgment adopted prevents the taking of a lawful decision in other proceedings ; ... ” .

In the case of ORG mining company ( see FAC v. GPE , no . CARDINAL , § DATE , DATE ) , ORG , after annulling the contract for the privatisation of the mining company , also annulled all subsequent legal acts adopted on the basis of that privatisation such as the issuing of shares .


No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life)

André Potocki;Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Karel Jungwiert;Mark Villiger

The applicant was born in DATE and lives in GPE .

At DATE , the applicant was placed in a children ’s home and later in the care of foster parents . At DATE , he was adopted by his foster parents and was given their family name . After that , he did not have any contact with his family of origin .

In DATE , the applicant ’s biological sister , PERSON , was born . The applicant was unaware of his sister ’s existence until he re - established contact with his family of origin in DATE . Following their mother ’s death in DATE , the relationship between the siblings intensified . As from DATE , the applicant and his sister had consensual sexual intercourse . They lived together for DATE .

In DATE , DATE , DATE and DATE CARDINAL children were born to the couple . Following the birth of the fourth child , the applicant underwent a vasectomy . The CARDINAL older children were placed in the care of foster families . The youngest daughter lives with her mother .

On DATE ORG ( ORG ) convicted the applicant of CARDINAL counts of incest ( LAW ( CARDINAL ) of LAW , see “ Relevant domestic law ” , below ) , gave him a suspended sentence of DATE imprisonment and put him on probation .

On DATE the ORG convicted the applicant of another count of the same offence and sentenced him to CARDINAL months’ imprisonment .

On DATE the GPE ORG convicted the applicant of CARDINAL counts of incest and sentenced him to DATE and CARDINAL months’ imprisonment . Including the sentence of DATE and CARDINAL further previous criminal conviction , ORG imposed a summary sentence of DATE and CARDINAL months’ imprisonment . The court considered the fact that the applicant had suffered physical abuse by his father during the decisive DATE of his childhood to be a mitigating factor . Furthermore , he had made a confession and had been affected by the media coverage of his case . Lastly , he had previously been attacked during detention . On the other hand , the court considered as aggravating factors the fact that the applicant had reoffended in spite of his previous convictions and that he had had unprotected intercourse with his sister even though he had to have been aware of the risk of further pregnancies .

With regard to the applicant ’s sister , PERSON , who had been charged with the same offence , ORG , relying on an expert opinion , found as follows :

“ The accused , PERSON , has a very timid , withdrawn and dependant personality structure . This personality structure , taken together with [ an ] unsatisfying family situation , led to her being considerably dependant on the applicant . In particular , after the death of their mother , she experienced this dependency to an extent that she felt that she could not live without him . ”

ORG concluded that this serious personality disorder , seen in conjunction with established mild learning disabilities , had led to her being only partially liable for her actions . Accordingly , the court did not impose a sentence on her .

On DATE ORG rejected the applicant ’s appeal on points of law . The court considered that there were certain doubts as to the constitutionality of the relevant provision . However , it determined that these were not sufficient to call the validity of the law into question .

On DATE the applicant lodged a constitutional complaint , arguing , in particular , that LAW ( CARDINAL ) of LAW had violated his right to sexual self - determination , had discriminated against him and was disproportionate . In addition , it interfered with the relationship between parents and their children born out of incestuous relationships .

On DATE ORG , by CARDINAL votes to one , rejected the complaint as being unfounded . The decision was based on the following considerations . With the criminal provision of LAW ( CARDINAL ) of LAW , the legislature had restricted the right to sexual self - determination of biological siblings by making sexual intercourse between them a punishable offence . This limited the conduct of one ’s private life by penalising certain forms of expressions of sexuality between persons close to one another . However , the provision did not infringe the core area of private life . Sexual intercourse between siblings could have effects on the family and society and carry consequences for children resulting from the relationship . As the criminal law prohibited only a narrowly defined scope of behaviour and only selectively curtailed opportunities for intimate contact , the parties concerned had not been placed in a position which would be incompatible with respect for human dignity .

NORP The legislator had pursued objectives that were not constitutionally objectionable and that , in any event , in their totality legitimised the limitation on the right to sexual self - determination . The primary ground for punishment was the protection of marriage and the family . Empirical studies had showed that the legislature was not overstepping its margin of appreciation when assuming that incestuous relationships between siblings could seriously damage the family and society as a whole . Incestuous relationships resulted in overlapping familial relationships and social roles and , thus , could damage the structural system of family life . The overlapping of roles did not correspond with the image of a family as defined by LAW . It seemed clear , and did not appear to be farfetched to assume , that the children of an incestuous relationship might have significant difficulties in finding their place within the family structure and in building a trusting relationship with their closest caregivers . The function of the family , which was of primary importance for the community , would be decisively damaged if the required family structures were shaken by incestuous relationships .

Insofar as the criminal provision was justified by reference to the protection of sexual self - determination , this objective was also relevant between siblings . The objection that this right was sufficiently protected by the specific provisions on offences against sexual self - determination overlooked the fact that LAW addressed specific situations arising from the interdependence and closeness of family relationships , as well as difficulties in the classification of , and defence against , transgressions of sexual self - determination in that context .

The legislature had additionally based its decision on eugenic grounds and had assumed that the risk of significant damage to children who were the product of an incestuous relationship could not be excluded . In both medical and anthropological literature , which was supported by empirical studies , reference had been made to the particular risk of the occurrence of genetic defects .

The impugned criminal provision was justified by the sum of the above - mentioned objectives against the background of a common conviction that incest should be subject to criminal liability . This conviction was also evident on the international level . As an instrument for protecting self - determination , public health , and especially the family , the criminal provision fulfilled a signalling , norm - reinforcing and , thus , a general preventive function , which illustrated the values set by the legislature and , therefore , contributed to their maintenance .

The impugned provision complied with the principle of proportionality . The criminalisation of sibling incest was suitable for promoting the desired objective . This was not put into question by the exemption of minors from criminal liability ( Art . CARDINAL § CARDINAL ) , as the prohibition of acts of sexual intercourse encompassed a central aspect of sexual relations between siblings which contravened the traditional picture of the family and which was further justified by its potential to produce descendants . Neither was this assessment put into question by the fact that acts similar to sexual intercourse and sexual intercourse between same - sex siblings were not subject to criminal liability , while sexual intercourse between natural siblings was punishable even in cases were conception was excluded . The same applied to the objection that the criminal provision was unsuitable for protecting the structure of the family because it first impacted on siblings when they typically left the family circle upon reaching the age of majority .

The provision was also necessary . It was true that in cases of sibling incest guardianship and youth welfare measures came into consideration . However , these measures did not achieve the same objectives , as they were aimed at preventing and redressing violations in specific cases , but did not have any general preventive effect or reinforce societal norms in the manner achieved through the law .

Lastly , ORG considered that the criminal sanction had not been disproportionate , as the provision had also allowed the courts to refrain from imposing punishment in cases in which an accused ’s share of the guilt was slight .

Judge PERSON attached a dissenting opinion which was based on the following considerations . LAW ( CARDINAL ) of LAW was incompatible with the principle of proportionality . The provision did not pursue a legitimate aim . From the outset , considerations of eugenic aspects were not a valid objective for a criminal law provision . Likewise , neither the wording of the provision nor the statutory context indicated that the provision was aimed at protecting sexual self - determination . Lastly , the prohibition on sibling incest was not justified by the protection of marriage and the family , as it only prohibited the act of sexual intercourse , but did not prohibit any other sexual acts between siblings or sexual intercourse between siblings of the same sex or between relatives who were not bloodrelated . If the criminal provision were actually aimed at protecting the family from sexual acts , it would also extend to these acts that were likewise damaging to the family . The evidence seemed to indicate that the provision as set out did not protect any specific rights , but was solely aimed at moral conceptions . However , it was not a legitimate aim for a criminal provision to build or maintain common moral standards .

Furthermore , the provision was not suited to attain the objectives pursued . As regards the protection of the family from the damaging effects of incestuous sexual acts , it was not far - reaching enough , as it did not encompass similarly damaging behaviour and , moreover , acts committed by non - blood - related siblings . It was too far - reaching because it encompassed behaviour that could not ( any longer ) have damaging effects on the family because of children having reached the age of majority and being about to leave the family circle .

In addition , there were other measures available that could have similarly or even more effectively guaranteed the protection of the family , such as youth welfare measures and measures taken by the family courts . Finally , the impugned provision was excessive , at it did not provide for a limitation of criminal liability resulting from behaviour which did not endanger any of the possible objects of protection .

This decision was served on the applicant ’s counsel on DATE . On DATE the applicant started serving his prison sentence . He was released on probation on DATE .

Section CARDINAL of the NORP Criminal Code reads as follows :

“ ( CARDINAL ) Whoever performs an act of sexual intercourse with a consanguine descendant shall be punished with imprisonment for DATE or a fine .

( CARDINAL ) Whoever performs an act of sexual intercourse with a consanguine relative in an ascending line shall be punished with imprisonment for DATE or a fine ; this shall also apply if the relationship as a relative has ceased to exist . NORP siblings who perform an act of sexual intercourse with each other shall be similarly punished .

( CARDINAL ) Descendants and siblings shall not be punished pursuant to this provision if they were not yet DATE at the time of the act . ”

Section CARDINAL of the Code of Criminal Procedure reads as follows :

“ ( CARDINAL ) If a less serious criminal offence is the subject of the proceedings , the public prosecution office may dispense with prosecution with the consent of the ... court if the perpetrator ’s guilt is considered to be minor and [ if ] there is no public interest in prosecution ...

( CARDINAL ) NORP If charges have already been preferred , the court , with the consent of the public prosecution office and the accused , may terminate the proceedings at any stage thereof subject to the requirements of subsection ( CARDINAL ) ... ”

Out of PERCENT ORG , GPE ( GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE ) the performance of consensual sexual acts between adult siblings is considered a criminal offence , while in CARDINAL of them ( GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE ) it is not punishable under criminal law . The fact that CARDINAL of the siblings was adopted or raised in another household does not in general seem to have any impact on criminal liability as long as the siblings share CARDINAL biological parent . In a few countries ( notably GPE , GPE and GPE ) the ban on incest extends also to adoptive siblings .

It would appear that there are no plans to abolish the ban in the countries concerned where the laws have generally been in force for DATE . In several countries there is even a tendency to widen the existing notion of incest or to increase the penalties ( e. g. GPE , GPE and GPE ) . Conversely , incest between adult siblings has been decriminalised in GPE in DATE and in GPE in DATE .

According to an expert report prepared by ORG in DATE in the course of the domestic proceedings , consensual sexual acts between siblings were criminalised in CARDINAL further countries ( GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE ) ; and were not subject to criminal liability in CARDINAL further countries ( GPE , the GPE , GPE , GPE and GPE ) . The international political discussion on this issue was characterised by a tendency to decriminalise the commitment of such acts . ORG further observed that , even in those countries in which consensual acts between siblings were not subject to criminal liability , siblings were not allowed to marry .