Preliminary objection dismissed (non-exhaustion);Violation of Art. 2;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant , PERSON , a NORP national born in DATE , lives in Şırnak , in south - eastern GPE . He applied to the Commission on his own behalf and on behalf of his son PERSON , who , he alleged , had disappeared in circumstances engaging the responsibility of the ORG .

The facts surrounding the disappearance of the applicant 's son are disputed .

The version submitted by the applicant is set out in LAW below . In his memorial to the ORG , Mr PERSON relied on the facts as established by the Commission in its report and on his previous submissions to the Commission .

The facts as presented by the Government are set out in LAW .

A description of the material submitted to the ORG is given in Part B.

In the light of the dispute over the circumstances surrounding the disappearance of the applicant 's son , the Commission conducted its own investigation with a view to establishing the facts , pursuant to former LAW ( a ) of the LAW . To that end , it examined a number of documents submitted by the applicant and the Government in support of their respective assertions and appointed CARDINAL delegates to take evidence from witnesses at hearings held in GPE on CARDINAL , DATE and DATE . The ORG 's assessment of the evidence , and its subsequent findings , are summarised in Part C.

Following incidents in PERSON ( a town in south - eastern GPE ) DATE , several people were taken into police custody at the PERSON gendarmerie command and security police headquarters on DATE . At the time of the events the applicant 's son , PERSON , was working at a coal mine .

At Bakımevi checkpoint , police officers in blue uniforms stopped the taxi in which PERSON was travelling home from work together with CARDINAL other people , namely PERSON , PERSON and PERSON . The police officers took their identity papers and CARDINAL of them asked which CARDINAL was PERSON . PERSON identified himself and the officers took him away .

On DATE PERSON , an acquaintance who had been taken into police custody on DATE and released on DATE , told the applicant that he had shared a cell with PERSON for a whole day and night .

NORP PERSON , a lawyer taken into police custody on CARDINAL DATE and released on DATE , told the applicant that he had spent DATE in the same room as PERSON . He also stated that PERSON had been severely tortured ; in particular , on the last occasion he had remained in the “ torture room ” for TIME and , on being brought back to his cell , had been unconscious , displaying no signs of life . TIME he had been dragged out of the cell by the legs . Another person , PERSON , who had likewise been released on DATE , told the applicant that he had seen his son while in custody . CARDINAL further people detained at police headquarters at the same time as PERSON informed the applicant , when he went to visit them at FAC , that they had seen PERSON during that time .

The applicant requested the Şırnak provincial governor to explain why his son had not been released and to inform him of his whereabouts . He was accompanied by local councillors PERSON and PERSON , and by another of his sons , PERSON . The provincial governor , PERSON , interviewed an eyewitness , PERSON , who confirmed that he had seen PERSON at the police headquarters . The provincial governor conducted enquiries among members of the armed forces and the police . The police officers interviewed maintained that PERSON had never been detained in police custody . In a letter of CARDINAL DATE the provincial governor requested the national police headquarters to appoint an investigating officer to carry out enquiries into the applicant 's allegations .

On DATE the applicant lodged a complaint with the Şırnak public prosecutor , asking what had happened to his son . He explained that although several witnesses had said that they had seen his son during their time in detention , the provincial governor 's office , the police and the armed forces had all maintained that PERSON had never been taken into police custody .

On DATE the investigating officer submitted his report to ORG , proposing that no court proceedings be brought .

On DATE the Şırnak public prosecutor ruled that he did not have jurisdiction and forwarded the case file to ORG to enable it to carry out the investigation .

On DATE ORG issued an order signed by the deputy provincial governor and the directors or deputy directors of the province 's various public services ( the post of ORG was vacant at the time ) . The order stated that no criminal proceedings should be brought against the officers from Şırnak police headquarters . ORG held that the alleged facts had not been established .

On DATE , in accordance with the legislative provisions in force , the case was referred to ORG . In a judgment of DATE that court upheld ORG decision that there was no case to answer , finding as follows :

“ ... Offences committed by civil servants acting in the performance of their duties or in their official capacity are subject to the procedures governing prosecutions of civil servants ... , an administrative investigating officer responsible for conducting the investigation is appointed by means of an order ...

... In order that an investigation may be conducted in respect of a civil servant , the civil servant concerned must first of all be accurately identified . Failing any accurate identification , no investigation can be carried out , no investigation report can be drawn up and no court with jurisdiction in the matter may give judgment .

The information in the investigation file has not made it possible to determine who committed the alleged offence ; consequently , that investigation should not have been commenced . However , an investigation file was compiled by the appointed investigating officer and , on the basis of that file , ORG decided that there was no case to answer , on the ground that the persons responsible were unknown and that it was impossible to investigate the case . ORG decides unanimously , for the aforementioned reasons , to uphold the decision of ORG and to close the investigation . ”

According to the applicant , the authorities prosecuted PERSON , a lawyer , for the role he had played in the lodging of certain applications , including that of the applicant , with the Commission . The applicant maintained that on DATE all the documents relating to the case had been seized by the security forces when PERSON was arrested .

It was true that following clashes in the town of Şırnak DATE , an operation was carried out and CARDINAL people were taken into police custody . However , PERSON was not arrested by the security forces . As the national police headquarters stated in a letter of DATE , the custody register indicated that he had never been arrested or held in custody .

On DATE the ORG forwarded to the ORG a record of the documents seized from PERSON , together with ORG decision of DATE , listing the documents that had been returned to him .

Those appearing before the ORG submitted various documents concerning the investigation in respect of the applicant 's criminal complaint .

The applicant alleged that , following the events in PERSON , his son had been arrested during an identity check on DATE , while returning home from work with CARDINAL members of his family . He gave the names of eyewitnesses who had stated that they had seen his son while he was in police custody , and requested information as to what had happened to his son .

In this order , the Şırnak public prosecutor 's office ruled that it did not have jurisdiction to deal with the applicant 's criminal complaint against the officers from Şırnak police headquarters . It pointed out that the actions of members of the security forces who were under the authority of the governor of the state of emergency region were governed by the rules on prosecution of civil servants , and referred the case to ORG .

In a letter dated CARDINAL DATE the PERSON provincial governor , PERSON , referring to the petition which the applicant had lodged with the governor 's office on DATE , requested the national police headquarters to appoint an investigating officer to carry out an inquiry into the applicant 's allegations .

In a letter dated DATE the national police headquarters ' investigation department appointed Detective PERSON as the investigating officer . On DATE PERSON took witness evidence from PERSON , PERSON , PERSON and PERSON . PERSON statement was obtained with the assistance of an interpreter . The witnesses ' statements were taken down as follows :

( a ) Abdulmenaf GPE : “ I lived in the same hamlet as PERSON and knew him personally . However , his father 's name is not PERSON , as you said it was , but PERSON . When the incidents occurred , I was at home . I was not taken into custody [ at the police headquarters ] as was alleged , either that day or the following days . I heard about his disappearance when I gave evidence to the Şırnak public prosecutor , on which occasion I said the same things as I am now saying to you . My relatives and I worked as village guards in DATE . PERSON brother , PERSON , is currently a NORP militant and has gone off to the mountains . As we support the government , those people attacked my house and my relatives ' houses , and I and several members of my family were injured and my cousin PERSON was killed . Since then , we have been involved in a dispute with them . That 's why they would have wanted to bring our name into this case to cause us harm . I do not have any information on PERSON alleged disappearance and , contrary to what has been said , I was not taken into police custody with him . ”

( b ) PERSON : “ I know PERSON . We lived in the same hamlet and sometimes worked together at the coal mines . However , his father 's name is not PERSON , as you said it was , but PERSON . When the incident took place , my nephew PERSON and I were working in the coal mines . We heard shooting from the direction of the town and went to the main road to go back there . We hailed a taxi coming from the direction of Cizre . PERSON was in the taxi , and we got in and went towards the town . At the entrance to the town , the police were carrying out an identity check . They checked the identity papers of all CARDINAL of us and handed them back . My nephew and I went home ; as for PERSON , he said he had some shopping to do and went off towards the grocery stores across the road . I have never seen him since . I do n't know where he is . I was not taken into police custody on the date of the incident DATE – or after that date , either alone or with PERSON , contrary to what his father alleged . I do n't know why his father made that allegation . ”

( c ) PERSON : “ I know PERSON . We lived in the same hamlet . Although we have the same surname , we are not related . However , his father 's name is not PERSON , as you said it was , but PERSON . I was not taken into police custody on DATE at the national highways authority maintenance point [ Bakımevi ] , as PERSON father alleged . At the time of the incidents , I was working at a coal mine CARDINAL or QUANTITY away from the town . We heard shooting from the direction of the town and tried to go back there with the other workers , but the road was blocked by soldiers who were preventing anyone from entering or leaving . We were thus unable to get back to PERSON ; as a result , I was not taken into police custody . I do n't know whether PERSON was taken into custody by the police . I forgot to tell you that after the incidents – I ca n't remember the exact time – a taxi with PERSON in it arrived from the direction of Cizre . I do n't know who the taxi belonged to . The soldier who was at the scene made PERSON and me get into the taxi and sent us off to PERSON . At the entrance to the town there were police officers . They checked our identity papers and then PERSON went off towards the grocery stores across the road . We went home . However , neither ourselves nor PERSON were taken into police custody . I do n't know why his father said that . ”

( d ) PERSON ( Ertuğrul ) : “ On DATE , following the events in Şırnak during DATE , I was arrested at home by police officers DATE or , I should say , by soldiers , who handed me over to the police . After an investigation was conducted by the security police , I was released DATE . When I returned home , PERSON father , whose son I knew personally because we worked together at the coal mine , came to see me . He asked whether I had been held in police custody and whether his son was also at the police headquarters . I replied that there had been DATE or QUANTITY of us but that I had not seen his son among the detainees . However , in his criminal complaint , he lied by saying the opposite . I do n't know why he did that , but we do n't talk to the PERSON family . Their son PERSON , who is with the ORG , and his friends killed my uncle PERSON . He said that to cause a dispute between us and the security forces . I repeat that he is lying . I was not detained in the same cell as PERSON and I do n't know where he is now . ”

The investigating officer stated that in the course of his inquiries he had visited the scene of the events and examined the custody registers , copies of which were appended to his report . He said that , although letters had been sent to the police headquarters requesting an interview with PERSON ( who had apparently moved to Silopi ) , the authorities had been unable to find the latter 's address . He noted that it was clear from the statements by PERSON , PERSON and PERSON that they had not been taken into police custody either before or after the incidents , a fact corroborated by an inspection of the custody registers . The investigating officer also referred to the letter sent by the Şırnak police confirming that PERSON had not been taken into custody during or after the incidents in question , and noted that PERSON , according to the statement he had made , had been arrested by the gendarmes after the incidents in PERSON on DATE and handed over to the police before being released DATE ; his name appeared under number CARDINAL in the custody register . He observed that LOC had maintained that he had not seen PERSON at the police headquarters and had therefore not stayed in the same cell . The investigating officer reached the following conclusion :

“ I propose that no court proceedings be brought , given that the allegations made by PERSON and a member of ORG , PERSON , concerning PERSON detention in police custody and disappearance while being detained are wholly unfounded . ”

On DATE , DATE and DATE ORG delegates obtained the following statements in GPE .

This witness DATE the applicant – is PERSON father . In DATE he heard shooting , which went on for DATE . On TIME the incidents , his son PERSON was working at the coal mine .

He repeated the facts as set out in his application .

The witness stated that he had gone to the gendarmerie command , where a major , after checking the list of those detained , had told him that his son had not been detained at the barracks . He had also attended a meeting at the barracks , on which occasion he had again demanded information as to what had happened to his son . Together with CARDINAL local councillors ( muhtars ) – PERSON ( muhtar for the LOC district ) and PERSON ( muhtar for the NORP district ) – he had gone to the Şırnak provincial governor and introduced him to PERSON , who told the governor that while in police custody he had spent TIME in the same cell as PERSON . The governor had handed a letter to the muhtars and had advised them to contact the police . The witness 's son PERSON had gone to the police headquarters with PERSON and PERSON .

The witness maintained that he had lodged a complaint with the Şırnak public prosecutor 's office , but could not remember whether the prosecuting authorities had questioned PERSON and the other people referred to in his complaint . The public prosecutor had remarked that it was highly likely that the witness 's son had gone away to the mountains . The witness had contested that allegation , explaining that PERSON had CARDINAL children and that his wife was still very young .

He stated that his son PERSON had been questioned by police officers DATE . He did not know why his son had been summoned by the police . He added that CARDINAL of his sons , PERSON , had been missing since DATE ; he had heard that he had gone off to join the ORG ( ORG of Kurdistan ) , but he did not know whether he was alive or dead . Another of his sons , PERSON , had been convicted for his part in an explosion and sentenced to DATE imprisonment . The witness repeated that his son PERSON , who had CARDINAL young children , had been doing nothing but “ work TIME to feed them ” . He stated : “ That child [ Mehmet ] is innocent . His brother went away to the mountains DATE . Maybe that 's what they hold against him . ”

This witness was provincial governor of Şırnak in DATE . He explained that on DATE there had been clashes between the security forces and terrorists , who had launched an attack . Several people had been shot dead . The attacks had originated in the area where the coal mines were situated . Following the incidents , the security forces – police officers and gendarmes – had carried out searches and CARDINAL people had been arrested and brought before the courts . Some of them had been taken into custody at the police headquarters and others at the gendarmerie 's detention centre . CARDINAL separate registers had been kept .

NORP The witness stated that he had met a man in his office who said that he had spent TIME in the same cell as PERSON . He could not remember whether that witness 's name was PERSON . He had advised PERSON to take the eyewitness to the public prosecutor . He had also interviewed other people who had said that they had seen PERSON while in custody at the police headquarters . He said that PERSON had not given up and had come back to his office CARDINAL or CARDINAL times with the same allegations . The witness had written a confidential letter to the national police headquarters in GPE and to ORG , requesting the appointment of an investigating officer to carry out inquiries . He added that he had subsequently inspected the police headquarters ' custody registers and found that PERSON name was not on the list of detainees . The gendarmerie had informed him orally that PERSON had not been detained on their LOC . An investigating officer had been appointed to conduct the investigation . The witness had been transferred to another post in DATE and had consequently received no further information on the progress of the investigation .

This witness had been working at the coal mines at the material time . PERSON was his cousin . When the incidents occurred in Şırnak he had been at work in the mines . PERSON , PERSON and PERSON had also been at the mines , working in different areas . Because of the incidents they had been unable to return to PERSON DATE . They had been warned by the gendarmerie office near the mine not to leave the site .

The witness stated that there had been clashes in the town but not in the area by the mines . After spending DATE in the mines , he , PERSON , PERSON and PERSON had started out along the main road and , in order to go back to PERSON , had taken a taxi which had arrived from Cizre . It had almost been night time . Near Şırnak , at the checkpoint inside the town , police officers in blue uniforms had stopped the taxi and asked for their identity cards . After examining their papers in a hut , the officers had returned and asked : “ Which one of you is PERSON ? ” PERSON had replied : “ I am . ” The officers had taken him away with them and ordered the others to leave immediately . They had got into the taxi and returned home .

The witness said that PERSON had asked him where his son was , and that he had told him about the incident . He had not been interviewed on the matter by the authorities .

This witness is PERSON brother . At the material time he had been living in GPE . At the time of the incidents he had been in PERSON visiting his family . On DATE he had left the town , along with his family .

The witness described the incidents that had taken place in Şırnak . On TIME he and his father had been told about his brother 's arrest . PERSON had informed them that he had been detained in the same police cell as PERSON . Several people had been detained in the same place and they had all been blindfolded . PERSON had lifted up his blindfold and had thus been able to see PERSON and speak to him . Early the next day PERSON had been released . In the afternoon PERSON GPE , PERSON and PERSON had told them that , while they had been on their way home from the mines , the police had carried out an identity check at the Bakımevi checkpoint in PERSON and had taken PERSON away .

The witness explained that he had met PERSON , a lawyer , and had asked him about the circumstances in which he had seen PERSON . He had received the following reply : “ When PERSON was brought into the cell , there were CARDINAL of us there . From time to time some of the detainees would be taken away for questioning and would come back later ; that happened repeatedly . PERSON was also taken away and brought back several times . We were tortured . ” The witness added in that connection that PERSON had maintained that he had spent DATE in the same cell as PERSON . On DATE , PERSON had been thrown into the cell , having been given a beating . He had lain on the floor as though dead . Shortly afterwards , he had been taken away and PERSON had not seen him again . The witness stated that his father had obtained the same information from PERSON , who had told him : “ Your son was practically dead the last time he was brought back . He was in such a bad state that he had no chance of surviving . ”

The witness said that he had helped his father to draft the complaint which he had lodged with the public prosecutor , and had gone with him to ORG . He had also distributed petitions among parliamentary delegations visiting PERSON .

This witness stated that he worked as a lawyer in ORG . On DATE ( DATE of the incidents in Şırnak ) he had been arrested by the security forces . He had spent DATE in police custody . After being arrested , he had been taken to the gendarmerie station and had stayed there for DATE . CARDINAL people had been detained there . On DATE informers and Special Branch officers had come to choose CARDINAL people and had taken them to Şırnak police headquarters . The witness said that he had remained at the police headquarters until he was released on DATE .

DATE . On the witness 's second or DATE in custody at the police headquarters ( CARDINAL or DATE ) , PERSON had been brought into the room in which the witness was being detained . As the witness had been subjected to torture , he could not remember exactly how many days he had spent with PERSON – perhaps CARDINAL , CARDINAL or DATE . He stated that there had been CARDINAL detainees in a single room . He could remember some of their names : GPE , PERSON , PERSON , PERSON and PERSON .

The witness explained that during their time in custody at the police headquarters , the detainees had been systematically subjected to torture . For DATE they were taken away to be tortured CARDINAL times a day . They had been treated like “ animals ” and had often had to relieve themselves where they lay . He said that PERSON had also been subjected to such treatment . He had been taken away once a day for TIME . On CARDINAL occasion the witness and PERSON had been taken away together , with CARDINAL or CARDINAL others , to the “ torture room ” . The witness explained that he had been able to see through his blindfold how they were being tortured . They had been stripped and hung up ; some of them had received electric shocks . They had been severely beaten and sprayed with cold water . On DATE the witness had been hung up for TIME ; when he had left the room , PERSON was still hanging there . He had been brought back to the cell TIME . The witness stated : “ When PERSON was brought back to the cell he was unable to speak ; he was dead – that is to say , he had become stiff . I am PERCENT certain that he was dead . TIME they dragged him out by the legs . CARDINAL of his shoes was left behind in the cell . We never saw him again . ” He explained that PERSON had been in the habit of putting this shoe under his head whenever he went to sleep on the concrete floor .

PERSON had visited the witness in prison but the witness had said that he would speak after he was released . When PERSON came to see him after he had returned home , the witness had informed him that his son had died while in police custody . PERSON had called him a liar .

The witness said that the ORG public prosecutor had taken a statement on the incident from him . In the statement he had set out the facts he had related to the Commission delegates ; he had signed the record containing his statement . He had not been interviewed by any other authorities .

NORP Throughout his time in detention he had stayed in the same cell – number CARDINAL – and had been blindfolded . He stated that PERSON had been tortured more than the others . He had not had the strength to speak and had not been able to converse with the witness except when the latter first arrived in the cell . He had told the witness that , after his arrest , he had been taken directly to the police headquarters . The witness explained that after they had been beaten , someone would apply ointment to the bruises on their faces . CARDINAL of his teeth had been broken and his face was swollen . He had been in that state when interviewed by the public prosecutor . The public prosecutor had asked whether he had been tortured and he had replied in the affirmative . The public prosecutor had replied that that did not “ correspond to the truth ” and that he had caused the swelling himself .

The witness explained that , for fear of reprisals , he had not lodged a complaint against the police officers who had tortured him . He maintained that he had told the truth and had only mentioned the bare minimum of what he and his fellow detainees had endured . In his opinion , the incidents in PERSON had been triggered by agents of the ORG as a means of oppressing the population , which had previously attended the funerals of CARDINAL ORG militants and voted for a pro - NORP party , the HADEP .

This witness , a lawyer , represented the applicant at the time when he lodged his application with the Commission . He pointed out that he had not represented the applicant before the domestic authorities . He had merely given him advice and drafted letters .

The witness stated that , following his arrest in DATE , the security forces had searched his office and seized all documents relating to his professional activities , including those on the case concerning the disappearance of PERSON . He had been held in custody for DATE at the intelligence branch ( GPE ) of ORG gendarmerie command .

The witness said that he had not obtained statements from the eyewitnesses mentioned in PERSON complaint . Some were in prison and did not feel safe , while he was afraid to go to the prison himself to take statements from them . He had subsequently met PERSON , who had stated that he had seen PERSON during his time in police custody . The witness said that PERSON had given a very brief outline of his conversation with PERSON . PERSON had refused to admit that his son might be dead , even though he had known deep down that he was . The witness stated in that connection that if a person had been detained for DATE and no request for an extension of the period of custody had been submitted to the public prosecutor , it could be concluded with some certainty that the detainee 's life was in danger or that he was dead .

PERSON believed that PERSON had died while in police custody . He himself had witnessed a number of similar cases .

This witness was a superintendent at Şırnak police headquarters . On TIME , he had been at the police station . Suddenly , he and his colleagues had heard shooting from the direction of the town centre . They had been informed via the radio that terrorists had attacked Şırnak . They had taken precautions to protect themselves . The witness explained that he had not been a member of the team that had carried out arrests . His job had been to protect public buildings . For DATE while the incidents were taking place , he had not left the police station .

The witness examined the record drawn up on DATE , which stated that , following the clashes DATE , houses in the town centre had been searched and no spent cartridges had been found . He acknowledged that the document bore his signature . Contrary to what he had previously maintained , he admitted that he had been part of the team that had searched the houses .

At the material time this witness was governor of ORG . He said that registers were kept of detainees and visitors . The names PERSON , PERSON and PERSON sounded familiar but he was unable to give a more precise answer .

The witness described the manner in which the registers were kept . They contained all the information on such aspects as the reason for the detention and the person or authority who had sent the detainee or convict to the prison . He pointed out that the registers did not include any information on detention in police custody .

The witness stated that , following the incidents in Şırnak DATE , several detainees had been taken to ORG .

At the material time this witness was head of the interrogation and intelligence squad at the anti - terrorist branch of the Şırnak police . He described his duties as being part of the team that arrested and interrogated persons suspected of terrorist activities .

The witness stated that the “ DATE incidents ” had begun on TIME . Shots had been fired from all directions by heavy weapons . CARDINAL police officers , one of whom had been a member of the “ rapid intervention force ” ( çevik kuvvet ) , and CARDINAL members of the district gendarmerie had been killed .

When asked for an explanation of the fact that , according to the registers , CARDINAL people had been taken into custody at the police headquarters ' detention centre in DATE , the witness explained that the DATE incidents had constituted extraordinary circumstances . He maintained that the detainees had been held in custody for TIME .

The witness could not remember whether all those who had been arrested had been taken to the gendarmerie station or straight to the police headquarters . According to instructions , they should have been taken into custody at the gendarmerie station , but where CARDINAL or CARDINAL people were involved , they had been detained at the police headquarters . Doctors , nurses and a number of families had been accommodated in the basement of the police headquarters for their protection . He acknowledged that on DATE , CARDINAL people involved in the incidents had been taken away from the gendarmerie station . He was unable to say precisely where another group of CARDINAL people taken away DATE and a group of CARDINAL taken away on DATE had come from . The situation at the time had been chaotic .

DATE . Despite what he had previously said , he admitted that in cases where CARDINAL people had been held in custody for DATE pending questioning , they had been detained in the large room . Such a situation had arisen twice in the course of his duties : that DATE and on DATE . He said that the cells , the large room , the interrogation room , the boiler room , the toilets and a small room with tea - making facilities had all been located in the basement .

The witness admitted that he had taken part in the interrogations in connection with the investigation into the incidents of CARDINAL DATE . His squad had not kept records of when , or by whom , particular detainees had been questioned . The squad 's internal records included memoranda signed by the officer who had drafted them ; the memoranda had not been included in the official registers .

The squad 's investigation had proceeded as follows : he and his colleagues had inspected the registers , and had not found PERSON name ; they had checked his criminal record ; they had then conducted inquiries as to which team had arrested him and the manner in which he had been arrested . However , their inquiries had been inconclusive .

The witness said that he had not been at the police headquarters continuously . During his absence , the duty officer had looked after the registers . He considered it inconceivable that the name of a person taken into custody should not have been entered in the register ; the police officers concerned followed fairly rigorous written and oral instructions to that effect . The witness stated that a custody report was sent DATE to the head of the branch . He was unable to give a clear reply as to why the name of PERSON , who had been transferred to ORG , had not been listed in the custody register . However , the name seemed familiar to him .

The witness said that he was unable to give a logical explanation as to the fact that CARDINAL people had maintained that they had seen PERSON in police custody , even though his name had not appeared in any register .

The witness acknowledged that the checkpoint on the road from the mines was at the entrance to the town . Checks were carried out there by members of the “ rapid intervention force ” and the intelligence and anti - smuggling squads . When they made an arrest , they would take the suspects to the relevant branch of the police . The witness said that the officers in question also kept custody registers but that no cells were set aside for people detained in custody at their branch . With regard to the colour of their uniforms , he said that at the material time they had been green , but that they had subsequently been replaced by blue uniforms ; however , he was unable to give the precise date on which that change had taken place . He maintained that officers from the “ rapid intervention force ” used to take suspected terrorists to the police headquarters .

The witness was deputy governor of the province of Şırnak at the material time . On behalf of the governor , he had chaired ORG , which on DATE had issued a decision not to prosecute the security police officers .

CARDINAL

DATE . The witness was a detective sergeant in the police 's investigation department , and was the investigating officer in the instant case . He acknowledged that the governor 's letter of CARDINAL DATE setting out the allegations made by PERSON and a member of ORG had been the main document relied on in the investigation . While conducting the investigation , he had had no knowledge of the complaint lodged by PERSON with the public prosecutor 's office on DATE , which mentioned the names of the people who had said that they had seen PERSON while in police custody . The witness said that he had not been informed that CARDINAL of the witnesses , PERSON , had previously told the PERSON provincial governor that he had seen PERSON while he had been detained in custody at the police headquarters . He acknowledged that if he had been given that information , he would have held a further hearing in order to clarify the facts , in view of the discrepancies between the various statements .

The witness stated that , in letters sent to the Şırnak police on CARDINAL and DATE and DATE , he had requested a warrant to interview PERSON . According to a report drawn up by the Şırnak police and signed by CARDINAL officers , including PERSON and the local councillor PERSON , PERSON had moved to Silopi and the authorities had been unable to find his address . The investigating officer had not asked the other witnesses with the same surname whether they knew where PERSON now lived . The witness emphasised that he might have been assisted in his inquiries if he had been able to interview the complainant at the start of the investigation .

The witness said that he had visited the scene of the incidents and had interviewed the witnesses in a room at Şırnak police headquarters . The local police had collected the witnesses from their homes and taken them to him ; they had given evidence on oath . He explained that he had not contacted the public prosecutor during the investigation , which he had carried out solely on the basis of the file which had been forwarded to him .

The following witnesses were also summoned by ORG but did not appear : PERSON , the Şırnak public prosecutor , who issued the order of DATE ruling that he did not have jurisdiction ratione materiae ; and PERSON , PERSON and PERSON , who lived in the same district as the applicant and had told him that they had seen PERSON while they were in police custody .

The Commission approached its task in the absence of any findings of fact made by domestic courts and of any thorough judicial examination or other independent investigation of the events in question . In so proceeding , it assessed the written and oral evidence before it , having regard , inter alia , to the conduct of the witnesses who were heard by the delegates at the hearing in GPE and to the need to take into account when reaching its conclusions the coexistence of sufficiently strong , clear and concordant inferences or of similar unrebutted presumptions of fact . Its findings may be summarised as follows .

The Commission found that it was not disputed that clashes had taken place in Şırnak DATE . It noted in that connection that PERSON , head of the police anti - terrorist branch 's interrogation and intelligence squad , had stated that the incidents had begun on DATE . The evidence adduced from the documents and oral testimony was mostly consistent as regards the operations conducted in response to the incidents that had occurred during that period . After the incidents , the security forces – comprising police officers and gendarmes – carried out a search in the town , arresting CARDINAL people , including LOC , PERSON , PERSON , PERSON , PERSON , GPE Olcan , PERSON , PERSON and PERSON . Some of those arrested were taken to the gendarmerie station , while others were detained at the police headquarters . Identity checks were carried out at the entrance to the town , and persons suspected of terrorist acts were taken directly to the police headquarters by the “ rapid intervention force ” .

As regards PERSON arrest , the ORG found that the oral evidence given to the delegates by PERSON was consistent with the applicant 's allegations . It noted in that connection that PERSON had confirmed that at the checkpoint police officers in blue uniforms had stopped the taxi in which he and the others had been sitting and , after checking their identity papers , had taken PERSON away with them . Having examined the investigation file and the oral testimony given by the investigating officer PERSON to its delegates , the Commission found that PERSON , in his statement of CARDINAL DATE to the investigating officer , had said that the police officers had returned the men 's identity papers after checking them and that PERSON had gone off to the shops . PERSON made a statement to the same effect on DATE .

The Commission noted that it was clear from the documents in the file prepared by the investigating officer that PERSON , PERSON , PERSON and PERSON had been summoned by the police to Şırnak police headquarters and had made statements to the investigating officer in the presence of a police officer , who had taken down the statements in writing . In that connection , the Commission was struck by the fact that the statements by PERSON and PERSON were drafted in a stereotypical form and were generally very similar in content . It noted that the police officers interviewed by the delegates had stated that checks had been carried out by the security forces at the checkpoint , as PERSON had related . With regard to the colour of the police officers ' uniform , PERSON had stated that officers from the “ rapid intervention force ” had been posted at the checkpoint , and had emphasised that at the material time they had worn green uniforms . Without mentioning an exact date , he had added that those officers now wore blue uniforms .

The Commission noted that the police officers who gave evidence to the delegates had acknowledged that , following incidents in which CARDINAL police officers and QUANTITY soldiers had been killed , several teams of security forces personnel had made arrests in the town . CARDINAL people had been taken into police custody , and the atmosphere had been chaotic . PERSON had stated that officers from the “ rapid intervention force ” carried out checks at the entrance to the town and did not take suspects directly to the police headquarters . He had added that separate registers were kept at the police headquarters . However , the Commission observed that later in his statement PERSON had admitted that people arrested during identity checks by the officers in question had been taken directly to the police headquarters .

As for the way the custody registers were kept , they did not include PERSON name and PERSON was unable to offer any explanation as to why not . The Commission observed that that witness 's statements on the matter had lacked precision and clarity . It also noted that the Government had not produced copies of the registers kept by the squad and the regional gendarmerie , despite being expressly requested to do so .

NORP PERSON had said that on DATE or DATE had been taken into the same detention room in which he himself was being held and that he had spent DATE in his company . PERSON had given a detailed description of the circumstances in which they had been held at the police headquarters and the conversation he had had with PERSON . The details given by PERSON – particularly the fact that the detainees had been blindfolded during their time in custody , and his account of the detention room and its location DATE were consistent with the version of the facts given by PERSON . Abdurrahim PERSON 's statement corroborated the evidence given to the delegates by the applicant and his son PERSON . ORG also noted that PERSON had emphasised that he had given evidence to the public prosecutor , to whom he had set out the same version of the facts as given to the delegates , and that he had signed his statement . It regretted that the statement had not been among the documents in the file prepared by the investigating officer .

The Şırnak provincial governor at the material time , PERSON , had acknowledged in his oral statement that the applicant had come to see him several times with allegations that his son PERSON had disappeared after being taken into police custody , and that he had heard an eyewitness confirm that he had seen PERSON at the police headquarters . The Commission noted that PERSON statement , obtained by the investigating officer , contradicted the applicant 's version of events and the evidence he had given to the provincial governor . Pointing out that the governor , believing the eyewitness 's evidence to be sufficiently credible , had requested inquiries to be carried out into the matter , it favoured the version given to the delegates by the applicant and PERSON with regard to PERSON allegations . It concluded that the fact that PERSON name did not appear in the police headquarters ' custody register did not in itself prove that he had not been taken into police custody , and accepted the evidence given by PERSON , the applicant , PERSON , PERSON and PERSON , which the delegates had found to be credible and convincing .

The Commission noted that a lawyer , PERSON , named as an eyewitness in the complaint lodged by the applicant with the Şırnak public prosecutor 's office on DATE , had stated in his oral testimony to the delegates that on CARDINAL or DATE PERSON had been brought into the room in which he himself was being held . PERSON had mentioned the names of several other people detained in the room . The names were listed in the custody registers kept by the anti - terrorist branch of the security police . PERSON had given a detailed description of the circumstances in which he and others had been arrested , and of the conditions during their time in custody . He had pointed out that , further to the criminal complaint lodged by PERSON , he himself had been interviewed by the ORG public prosecutor and , in his statement , had mentioned the names of some of those detained at the same location . With regard to the conditions in which they had been detained , he had given a detailed description of the treatment which they had allegedly suffered while being interrogated : they had been stripped , hung up , severely beaten and sprayed with cold water . He had stated that , on CARDINAL occasion , he and CARDINAL or CARDINAL other detainees had been taken to the “ torture room ” together . CARDINAL of them had been PERSON , who , like him , had been stripped and hung up . As far as PERSON could tell , his own ill - treatment had lasted for TIME , while PERSON had not been brought back until TIME . PERSON had made the following statement : “ When PERSON was brought back to the cell he was unable to speak ; he was dead – that is to say , he had become stiff . I am PERCENT certain that he was dead . TIME they dragged him out by the legs . CARDINAL of his shoes was left behind in the cell . We never saw him again . ”

The Commission regretted that the Government had not produced the file of the investigation opened by the Şırnak public prosecutor 's office further to the applicant 's criminal complaint of CARDINAL DATE and that the public prosecutor PERSON had not appeared before the delegates . It was clear from the material in the file prepared by the investigating officer PERSON that the latter had not interviewed PERSON as an eyewitness .

The Commission observed that all PERSON descriptions of where the detainees were held and interrogated corroborated the version given by PERSON , who had also admitted that there had been a chaotic atmosphere around the time of the incidents of DATE and that CARDINAL of people had been taken into police custody . The ORG further noted that when interviewed by the delegates the Şırnak provincial governor had acknowledged that he had met in his office persons who had alleged that they had seen PERSON while in police custody . In particular , he admitted that he had interviewed an eyewitness .

The Commission noted that PERSON had given precise , detailed replies to all the questions put by the delegates and the representatives of the parties , particularly with regard to the ill - treatment suffered during the interrogation sessions , and that he had stated categorically on several occasions that PERSON had been dead when he was “ thrown ” into the cell . It accordingly found his statement that he had seen PERSON “ dead ” at the police headquarters to be plausible .

The Commission noted that the applicant had made representations and put questions to the Şırnak public prosecutor and provincial governor in connection with PERSON disappearance . Regarding the independence of the bodies which , following the PERSON provincial governor 's written request of CARDINAL DATE to the national police headquarters , carried out the preliminary inquiries culminating in a decision not to prosecute , the ORG observed that they had comprised an investigating officer and members of ORG . The investigating officer had been a detective sergeant belonging to the same administrative hierarchy as the members of the security forces in respect of whom he was carrying out his investigation . ORG , which , on a proposal from the investigating officer , had decided to discontinue the proceedings , had been chaired by the deputy provincial governor and made up of senior provincial officials DATE that is to say , the directors or deputy directors of the central authorities ' various departments . The senior officials had been under the authority of the provincial governor , who had at the same time been liable , from a legal standpoint , for the acts committed by the security forces personnel implicated in the case . The detective sergeant appointed as investigating officer and the members of ORG had therefore not provided the outward signs of independence , the guarantees of irremoveability and the legal safeguards that might have protected them against pressure from their superiors .

The Commission observed that the investigating officer had questioned CARDINAL witnesses in a room at Şırnak police headquarters . It noted in that connection that the local police had collected the witnesses from their homes and taken them to the police headquarters . In the statements thus obtained , the witnesses had completely denied the applicant 's allegations . ORG also found that the statements were drafted in a stereotypical form and were generally very similar in content . It noted that the investigating officer had not interviewed the applicant and observed in that connection that the police had drawn up a memorandum stating that PERSON had left his home and had probably gone to Silopi . It was clear from the facts that the eyewitnesses who might have been able to provide relevant information for the investigation had been referred to in the complaint which the applicant had lodged with the public prosecutor 's office on DATE . However , the administrative bodies responsible for the investigation had not made any request to interview those witnesses , even though the testimony of CARDINAL of them – PERSON – had been in complete contradiction to the statements he had made to the provincial governor , PERSON .

The Government have not submitted in their memorial any details on domestic legal provisions which have a bearing on the circumstances of this case . The ORG accordingly refers to the overview of domestic law set out in other judgments , in particular the PERSON v. GPE judgment of CARDINAL DATE , Reports of Judgments and Decisions CARDINAL , pp . DATE , § § DATE ; the ORG v. GPE judgment of DATE , Reports CARDINAL-IV , pp . DATE , § § DATE ; and NORP v. GPE [ ORG ] , no . CARDINAL , § § DATE , ECHR CARDINAL .

Since DATE , serious disturbances have raged in the south - east of GPE between the security forces and the members of the ORG . This confrontation has , according to the Government , claimed the lives of CARDINAL of civilians and members of the security forces .

CARDINAL principal decrees relating to the south - eastern region have been made under the PERSON on ORG ( Law no . CARDINAL , DATE ) . The first , Decree no . CARDINAL ( DATE ) , established a regional governorship of the state of emergency in CARDINAL of the CARDINAL provinces of south - eastern GPE . Under LAW b ) and ( d ) of the decree , all security forces and ORG are at the disposal of the regional governor .

The second , Decree no . CARDINAL ( DATE ) , reinforced the powers of the regional governor , for example to order transfers out of the region of public officials and employees , including judges and prosecutors , and provided in LAW

“ No criminal , financial or legal responsibility may be claimed against the state of emergency regional governor or a provincial governor within a state of emergency region in respect of their decisions or acts connected with the exercise of the powers entrusted to them by this Decree , and no application shall be made to any judicial authority to this end . This is without prejudice to the rights of individuals to claim indemnity from the ORG for damage suffered by them without justification . ”

Article CARDINAL § § CARDINAL and CARDINAL of LAW provides as follows :

“ All acts or decisions of the administration are subject to judicial review ...

The administration shall be liable to make reparation for any damage caused by its own acts and measures . ”

This provision is not subject to any restrictions even in a state of emergency or war . The latter requirement of the provision does not necessarily require proof of the existence of any fault on the part of the administration , whose liability is of an absolute , objective nature , based on the theory of “ social risk ” . Thus , the administration may indemnify people who have suffered damage from acts committed by unknown or terrorist authors when the ORG may be said to have failed in its duty to maintain public order and safety , or in its duty to safeguard individual life and property .

Proceedings against the administration may be brought before the administrative courts , whose proceedings are in writing .

The NORP Criminal Code makes it a criminal offence

( a ) to deprive an individual unlawfully of his or her liberty ( LAW generally , LAW servants ) ;

( b ) to issue threats ( LAW ) ;

( c ) to subject an individual to torture or ill - treatment ( Articles CARDINAL and CARDINAL ) ; and

( d ) to commit unintentional homicide ( Articles CARDINAL , CARDINAL ) , intentional homicide ( Article CARDINAL ) and murder ( Article CARDINAL ) .

For all these offences complaints may be lodged , pursuant to ORG CARDINAL and CARDINAL of LAW , with the public prosecutor or the local administrative authorities . A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts in order to decide whether or not to bring a prosecution ( LAW . Complaints may be made in writing or orally . A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings .

Any illegal act by civil servants , be it a crime or a tort , which causes material or moral damage may be the subject of a claim for compensation before the ordinary civil courts . Pursuant to LAW , an injured person may file a claim for compensation against an alleged perpetrator who has caused damage in an unlawful manner whether wilfully , negligently or imprudently . Pecuniary loss may be compensated for by the civil courts pursuant to LAW and awards may be made for non - pecuniary or moral damage under LAW .

In the case of alleged terrorist offences , the public prosecutor is deprived of jurisdiction in favour of a separate system of national security prosecutors and courts established throughout GPE .

NORP The public prosecutor is also deprived of jurisdiction with regard to offences alleged against members of the security forces in the state of emergency region . Decree no . CARDINAL , LAW , provides that all security forces under the command of the regional governor shall be subject , in respect of acts performed in the course of their duties , to LAW on the prosecution of civil servants . Thus , any prosecutor who receives a complaint alleging a criminal act by a member of the security forces must make a decision of non - jurisdiction and transfer the file to ORG . These councils are made up of civil servants , chaired by the governor . A decision by the ORG not to prosecute is subject to an automatic appeal to ORG . Once a decision to prosecute has been taken , it is for the public prosecutor to investigate the case .

In his written submissions to the ORG , the applicant drew attention to international material on the issue of forced disappearances , such as

( a ) LAW on ORG from Enforced Disappearance ( ORG res . CARDINAL/CARDINAL , DATE ) ;

( b ) the case - law of ORG ( ORG ) ; and

( c ) the case - law of ORG , in particular PERSON v. GPE judgment of DATE ( ORG . GPE . HR ( Ser . C ) no . CARDINAL ( DATE ) ) ; the GPE v. GPE judgment of DATE ( ORG . GPE . HR ( Ser . C ) no . CARDINAL ( DATE ) ) ; and the ORG - Delgado and PERSON v. GPE judgment of DATE ( ORG . GPE . HR ) .


Preliminary objection dismissed (non-exhaustion of domestic remedies);Partly admissible;Violation of P1-3;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Alvina Gyulumyan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall

The applicant was born in DATE and lives in GPE .

The applicant had shared a flat with his parents since DATE . It measured QUANTITY m. and had been provided for them by the authorities under the NORP housing legislation . It was registered in the name of the applicant ’s father ( the tenant ) , who died in DATE . In DATE the applicant ’s wife moved in with the applicant . They had CARDINAL children , who were born in DATE and DATE .

On DATE the then ORG ( ՀՀ գերագույն խորհուրդ ) adopted LAW of the State and ORG ( PERSON պետական և հանրային բնակարանային ֆոնդի սեփականաշնորհման մասին ՀՀ օրենք ) , which outlined the procedure for privatisation of ORG - owned housing .

On DATE the applicant ’s mother filed an application with the then ORG of ORG of the Shahumyan District Council of GPE ( ORG քաղաքի ժողովրդական պատգամավորների Շահումյանի շրջանային խորհրդի գործադիր կոմիտե ) for a declaration that she was the tenant of the flat in question and an order for its privatisation . The relevant sections of this application were filled out in the following manner :

“ CARDINAL . We , the adults having the right to accommodation , agree that : ( a ) the flat be privatised in the name of the tenant , [ the applicant ’s mother ’s name ] ...

We , the adults having the right to accommodation , wish the flat to be privatised as ( underline as necessary ) : ( a ) a joint tenancy of all family members ; [ or ] ( b ) a tenancy in common of all family members . [ Note : none of these CARDINAL options was underlined . ]

Written consent of the adults enjoying the right to the accommodation that is to be privatised : [ CARDINAL signatures , including those of the applicant , his mother and his wife ] .

On DATE ORG decided to grant the application . This decision stated :

“ In accordance with ORG of DATE ...

ORG decides :

To allow the tenancy card of [ the flat in question ] to be changed from [ the applicant ’s father ’s ] name to the name of his wife , [ the applicant ’s mother ] , and to privatise [ the flat ] ... ”

On DATE the authorities furnished an ownership certificate ( no . CARDINAL – թիվ CARDINAL սեփականության վկայագիր ) , which indicated :

“ The entire /share/ [ flat in question ] is owned by [ the applicant ’s mother ] . ”

On DATE a general election to ORG was to be held to elect CARDINAL members for a term of DATE . Of these , CARDINAL seats were to be allocated by proportional representation ( համամասնական ընտրակարգ ) to candidates nominated on the party voting lists . The remaining CARDINAL members were to be elected by a single constituency vote ( մեծամասնական ընտրակարգ ) from single - mandate district constituencies .

On DATE the applicant submitted the required documents , including a declaration of property ( սեփականության մասին հայտարարագիր ) , to ORG no . CARDINAL ( թիվ CARDINAL ընտրատարածքային ընտրական հանձնաժողով ) in order to be registered as a single constituency candidate for the relevant constituency .

On DATE ORG registered the applicant as a single constituency candidate for constituency no . CARDINAL .

On DATE ORG no . CARDINAL addressed a letter to ORG of ORG ( ՀՀ կառավարությանն առընթեր անշարժ գույքի կադաստրի պետական կոմիտե ) , inquiring about the property status of several candidates registered in its constituency , including the applicant .

On DATE the ORG of GPE ( PERSON Մալաթիա-Սեբաստիա թաղապետարան ) issued an archival extract addressed to ORG of ORG of ORG , informing it that CARDINAL persons were registered and residing in the flat at the time it was privatised :

“ CARDINAL . Sarukhanyan PERSON [ the applicant ’s father ] , who was born in CARDINAL ... ;

Sarukhanyan PERSON [ the applicant ’s mother ] , who was born in DATE ;

Sarukhanyan Gagik [ the applicant ] , who was born in DATE ;

Sarukhanyan GPE [ the applicant ’s wife ] , who was born in DATE ;

PERSON [ the applicant ’s older daughter ] , who was born in DATE ; [ and ]

Sarukhanyan Tatevik [ the applicant ’s younger daughter ] , who was born in DATE . ”

On DATE ORG issued a memorandum in reply to ORG inquiry stating that the flat was co - owned by CARDINAL people , including the applicant , on a joint tenancy .

On DATE ORG held a meeting at which it decided to annul the registration of the applicant ’s candidacy with reference to LAW ) of LAW , since there was a discrepancy between the memorandum and the applicant ’s declaration of property , which contained no mention of the flat .

The applicant contested the decision of CARDINAL DATE before ORG of GPE ( ORG քաղաքի ORG համայնքի առաջին ատյանի դատարան ) . In his application , he stated that he had not falsified any documents and had not , therefore , contravened Article CARDINAL § CARDINAL(CARDINAL ) . He explained that he had been living in the flat since DATE and that it had been privatised in his mother ’s name by the decision of ORG of ORG of GPE of DATE . According to the ownership certificate of DATE , the entire flat was owned solely by his mother . The memorandum of DATE contradicted those CARDINAL documents and did not correspond to the reality . There were not CARDINAL people in his family , since his father had died in DATE . He finally submitted that he had been unaware of these discrepancies and had filled out the declaration of property in reliance upon the official documents he had in his possession . ORG had wrongly equated the notions of falsification and inaccuracy .

On DATE the Shengavit District Court of GPE dismissed the applicant ’s application . The judgment stated :

“ The court , having heard the parties and having , [ namely ] the protocol decision ... of CARDINAL DATE of ORG no . CARDINAL , the declaration filled in on DATE by ORG concerning the property ( possessions ) of the citizen nominated as a parliamentary candidate in the single constituency vote to ORG and his and his family ’s income in DATE , the decision ... [ adopted ] on DATE by [ ORG of ORG of GPE ] , ownership certificate no . CARDINAL of DATE , the memorandum ... [ issued ] on DATE by the [ ORG ] , the memorandum ... [ issued ] on DATE by ORG of GPE , and the memorandum [ issued ] on DATE by ORG of ORG , finds that the applicant ’s claim is unfounded and must be rejected on the ground that ORG no . CARDINAL , in adopting the decision ... of CARDINAL DATE , was guided by the requirements of LAW ) of LAW , according to which the district election commission must annul the registration of a parliamentary candidate if it is disclosed following the registration that the documents submitted for registration have been falsified[. NORP particular , the applicant PERSON , by falsifying the declaration , concealed his right of joint tenancy in respect of [ the flat in question ] . ”

The judgment further stated that , in accordance with LAW ( ՀՀ քաղաքացիական դատավարության օրենսգիրք ) , it was final and not subject to appeal .

“ CARDINAL . The parties have the right to ... [ inter alia ] appeal against judicial acts . ”

“ CARDINAL . A court judgment in which a violation of a citizen ’s or party ’s ( union of parties ) electoral rights is found shall provide grounds ... for putting an end to ... [ the ] violations of the right to vote and to stand for election .

NORP The court judgment shall become effective on the date of its delivery and shall not be subject to appeal . ”

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

“ CARDINAL . ... [ T]he decisions , acts or omissions of an election commission ... may be appealed against to a higher election commission or to a court within DATE from the [ date of ] delivery of the decision , performance of the act or disclosure of the violation caused by the omission ...

The decision [ ( որոշում ) ] of the first - instance court shall be final with the exception of disputes concerning the non - registration or the annulment of a registration of candidates for the [ presidential and parliamentary ] elections , including party electoral lists in the vote by proportional representation . In such disputes the court of appeal and ORG shall take a decision within DATE respectively . Court decisions concerning electoral disputes shall become effective from the moment of their delivery ... ”

“ CARDINAL . The decision of ... a party and the application ( decision ) of an initiative group to nominate a parliamentary candidate to ORG in the single constituency vote shall contain the number of the constituency and the following information about the nominated candidate : ( CARDINAL ) surname , first name , patronym ; ( CARDINAL ) date of birth ; ( CARDINAL ) place of registration ; ( CARDINAL ) place of work and post ( occupation ) ; ( CARDINAL ) party affiliation ; ( CARDINAL ) declaration of his property ( possessions ) and of his and his family ’s income in DATE ; and ( CARDINAL ) passport number ... ”

“ CARDINAL . Candidates to ORG nominated in the single constituency vote shall be registered by a decision of a district election commission .

DATE before the election to ORG , the parties and initiative groups , shall submit the following [ documents ] for the purpose of registering candidates in the single constituency vote : ( CARDINAL ) CARDINAL signatures of voters residing in the constituency concerned , confirming with their signatures the nomination of the citizen ; ( CARDINAL ) the invoice for the election deposit in the amount of CARDINAL times the minimum wage ; ( CARDINAL ) a certificate of NORP nationality for DATE ; and ( CARDINAL ) a certificate of permanent residence in GPE for DATE ...

NORP The district election commission shall annul the registration of a parliamentary candidate , if it is disclosed following the registration that : ( CARDINAL ) restrictions provided by this LAW are applicable to the candidate ; and ( CARDINAL ) the documents submitted for registration have been falsified . The registration of a candidate shall be annulled by a decision ... of a district election commission ...

The decision of the district election commission ... annulling the registration of a parliamentary candidate may be contested before a court ... ”

The relevant provisions of LAW ( ՀՀ քաղաքացիական օրենսգիրք ) read as follows :

“ CARDINAL . A property owned by CARDINAL or more persons shall belong to them through the right of common ownership .

A property in common ownership may be in shares divided between each of the owners ( tenancy in common ) or in undivided shares ( joint tenancy ) . ”

The relevant provisions of LAW ( ՀՀ բնակարանային օրենսգիրք ) read as follows :

“ Apartment buildings and accommodation in other constructions situated on the territory of GPE shall comprise the housing fund ... ”

“ NORP citizens shall be entitled to receive accommodation in ORG or public housing fund houses ... through a prescribed procedure ... ”

“ On the basis of the decision to allocate accommodation in a ORG or public housing fund property , the [ relevant ] executive committee shall provide the citizen with a certificate which shall serve as the sole basis for occupying the allocated accommodation ... ”

“ Accommodation tenancy agreements in respect of ORG and public housing fund properties shall be concluded in writing , on the basis of the accommodation certificate , between the lessor , that is the organisation responsible for the maintenance of the building ... , and the tenant , that is the citizen in whose name the certificate has been issued ... ”

“ Member of the tenant ’s family living with him or her shall jointly enjoy all the rights and bear all the obligations arising under the accommodation tenancy agreement ... ”

“ Members of the tenant ’s family shall include his spouse , their children and their parents ... ”

“ The privatisation of flats ( accommodation ) belonging to the ORG and public housing fund shall be effected on the basis of an application filed by the tenant with the executive body of deputies of the relevant city council , the governor or the mayor of GPE provided there is written consent from the adult family members sharing the accommodation ... ”

“ The privatisation of housing fund flats shall , with the consent of the adult members of the tenant ’s family , be registered in the name of the tenant or any adult member of the tenant ’s family as a joint tenancy or as a tenancy in common of all family members .

The members of the tenant ’s family living with him or her shall enjoy ... all the rights arising from the privatisation of the flat . ”


Preliminary objection rejected (non-exhaustion);Violation of Art. 2 with regard to death of applicant's husband;Violation of Art. 2 with regard to investigation;Not necessary to examine Art. 5;Violation of former Art. 25-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant is a NORP national . She was born in DATE and lives in GPE . She lodged the application on her own behalf and on behalf of her late husband , PERSON , who , she alleged , was killed by ORG security forces while in their custody .

PERSON , the applicant 's husband , was arrested in GPE on DATE .

On DATE the father of PERSON and father - in - law of the applicant lodged a criminal complaint with the public prosecutor at ORG against the village guards , GPE , GPE , GPE , and others whose identity he did not know , alleging that they had abducted his son on DATE . In his complaint he stated that his son 's life was in danger and that the persons named were responsible .

On DATE the public prosecutor informed PERSON father that his son had been placed in custody at the ORG central gendarmerie station .

On DATE the ORG public prosecutor informed the mayor of ORG that PERSON body had been found on DATE near the village of GPE ( ORG ) . He stated that forensic medical examiners had carried out an examination and an autopsy of the body . The public prosecutor also said that since the deceased 's relatives had not been in the vicinity , but in the neighbouring village of ORG , the body had been buried in their absence by ORG .

NORP The applicant alleged that it was some time before she learnt of her husband 's death .

On DATE PERSON was arrested by officers from ORG because of suspicious behaviour . During questioning he stated that he was a member of the ORG ( ORG of Kurdistan ) and offered to show the security forces CARDINAL of the organisation 's arms caches .

On DATE he was transferred to the ORG provincial gendarmerie command for questioning .

Lastly , and in connection with his statements concerning the location of the arms cache in question , he was handed over to a team from the ORG district gendarmerie on DATE to take them to the site in question .

On DATE PERSON made a statement to the ORG gendarmerie .

A visit was organised by the gendarmerie to the alleged site of the arms cache in question . On DATE PERSON , accompanied by CARDINAL gendarmes , arrived at the scene at TIME As he was approaching the arms cache , the gendarmes heard an explosion . PERSON was killed by the explosion of a booby - trapped grenade planted by the ORG . There were no other victims .

In an order of CARDINAL DATE the ORG public prosecutor 's office found that PERSON had been killed following the explosion of a booby - trapped grenade planted by the ORG . It declared that it had no jurisdiction ratione materiae to examine the complaint lodged by PERSON father and decided to forward the investigation file concerning the village guards to the local administrative council of PERSON for examination under the PERSON on the Prosecution of Civil Servants .

Those proceedings are still pending .

On DATE the public prosecutor at ORG gave an order discontinuing the criminal proceedings against the applicant 's husband on the ground that he had since died .

During the proceedings before the ORG and before the ORG the parties submitted a number of materials . Among other things , the ORG requested the ORG to provide it with a full copy of the investigation file on the incident during which PERSON had died , but the request remained unanswered . Neither did the ORG submit any document relating to any investigation commenced in order to identify and arrest PERSON presumed killers , who are allegedly members of the ORG .

The documents of interest to the present case are the following .

This document was provided by the Government , but the applicant disputed the authenticity of PERSON signature . She provided documents from DATE showing her husband 's signature and asserted that the difference was obvious . The relevant part of the transcript reads as follows :

“ Question : Are you a member of a party , association or trade union carrying on legal or illegal activities ?

Reply : I am not a member of any party , trade union or association , but I am a sympathiser of the ORG terrorist organisation . I have given the ORG financial assistance . I have worked within the ORG as a courier and guide and have supplied it with logistical support . I have collected sums of money in the villages and handed them over to the ORG .

Question : What were your activities within the ORG ?

Reply : ... We went to lay anti - personnel mines in the vicinity of this third bridge . ... I can show you the arms cache whenever you wish , near the fountain . ... I have had enough , I no longer want to engage in this type of activity and regret having taken part in these terrorist activities . Now I am thinking of my family and I want to cooperate with the ORG . I can show you the organisation 's arms cache ( weapons and mines ) . ”

The Government provided a sketch map of the scene , which was drawn by the gendarmerie . According to the sketch map , at the time of the explosion PERSON was QUANTITY away from the arms cache , whereas CARDINAL of the gendarmes accompanying him were QUANTITY away and QUANTITY away , forming an isosceles triangle with the arms cache at the centre .

NORP This report was drawn up by a general practitioner , PERSON . The relevant part of it reads as follows :

“ Following a call from the gendarmerie command to inform us that an individual had died while showing gendarmes a site when mines booby - trapped by the ORG organisation were detonated , we [ the public prosecutor , the clerk of the court and the doctor ] went DATE at TIME to the garden of the district commissioner 's commandos unit where the corpse had been taken . We were unable to visit the scene of the incident because it was unsafe to do so . Since neither a forensic medical examiner nor a pathologist was present , we explained to PERSON what he had to do and he took the oath . ...

We identified the deceased by means of the photo on his identity card . ...

In the head area , the lower jaw had been entirely destroyed and the anterior part of the thorax and the organs of that area of the body had been completely destroyed . CARDINAL part of the left forearm had been amputated , probably due to an explosion at very close range . No trace of injuries inflicted by a firearm or a bladed weapon was found on the rest of the body . Since respiratory and circulatory deficiency due to injury from an explosion TIME had been established as the cause of death , a classic autopsy was not deemed necessary . ”

This decision was given on CARDINAL DATE by the ORG public prosecutor 's office for the attention of the GPE ORG . It reads as follows :

“ Public prosecution

Intervener : PERSON [ applicant 's father - in - law ]

Suspects : [ the CARDINAL village guards ]

Crime : abduction and murder

Date of crime : DATE

Although the intervener alleged that his son had been abducted and killed by the suspects , it has been noted that the deceased , who belonged to the ORG organisation , had been arrested on DATE by the teams from ORG . After it had been established that he operated in the rural area , he was transferred on DATE to the provincial gendarmerie command and taken to the village of ORG by members of the ORG district gendarmerie command . As he was showing them the site of CARDINAL of the ORG 's arms caches , he was killed when a grenade booby - trapped by the ORG exploded . Those facts were communicated in the documents of the provincial gendarmerie command , dated DATE , and in the document of the ORG district gendarmerie command dated DATE . The facts were established from the above - mentioned documents and the contents of the file . Our public prosecutor 's office declares that it has no jurisdiction ratione materiae given that the accused are village guards and that an investigation into acts committed by them is governed by the provisions of DATE , paragraph ( i ) of Legislative Decree no . CARDINAL on the exercise of emergency powers . The public prosecutor 's office has decided to forward the investigation file to the GPE ORG which will examine it and do the necessary in accordance with the PERSON on the Prosecution of Civil Servants . ”

The applicant made the following statement regarding the circumstances in which she was informed of her husband 's death :

“ In so far as I remember , the ORG public prosecutor sent my husband 's death certificate to ORG where my father - in - law lives and our census records are kept . In that connection the ORG public prosecutor summoned my father - in - law to collect my husband 's death certificate . After collecting it , my father - in - law came to ORG . Together , we went to ORG where we first met the mayor in order to enquire as to the steps to be taken for the burial . He informed us that the disintegrated corpse had been retrieved at the site and buried as ordered . We asked him what had been done with my husband 's identity card , clothes and other personal effects . He replied that he had given them to the public prosecutor 's office and advised us to contact them .

On DATE we went to the ORG public prosecutor 's office , but the public prosecutor was not there . We spoke to his deputy and asked him to open the grave so that we could see whether it was indeed my husband or not . He told us that he was not in a position to open the grave ; neither did he show us the photographs of my husband . We wanted him to give us the clothes , but an official from the ORG public prosecutor 's office told us that they had sent them to ORG with the death certificate . After ORG we went to the ORG public prosecutor 's office . We told them that we understood that the clothes had been sent there . They told us , however , that they had not retrieved them . We were unable to continue with our enquiries .

I did not learn of my husband 's death until my father - in - law arrived in ORG after he had been summoned by the ORG public prosecutor on receipt of the death certificate from ORG . If I am not mistaken , I was therefore not informed until DATE .

However , those who had arrested my husband knew our address well because it is written on the transcript of the statements bearing a signature which I believe to be forged since it is not that of my husband . At the material time we were renting a flat , where I am still living now . As my address was known I could easily have been informed of my husband 's death and requested to attend the autopsy . The fact that I was not summoned shows that certain things have been concealed and that my husband was indeed murdered . ... ”

NORP In her letters of DATE and DATE to the ORG the applicant maintained that since notice of the application had been given to the ORG the security forces had been putting pressure on her and her husband 's family to withdraw her application . She stated that PERSON father and brother had been placed in police custody . In her letter of DATE , the applicant stated that her husband 's brother , Mr PERSON , had been placed in police custody again on DATE for the same reasons .

The applicant produced a statement by her brother - in - law dated CARDINAL DATE . He said that he had been arrested by the security forces and that during his time in police custody he had been asked why the applicant had lodged an application against the ORG .

The documents provided to the ORG ( arrest report and decision of ORG ) show that Mr PERSON was arrested on DATE and released on DATE . On DATE he was accused of having committed offences against the integrity of the ORG . In a decision of DATE , he was acquitted by ORG .

The relevant elements of domestic law in this case can be summarised as follows .

Under LAW all forms of homicide ( Articles CARDINAL to CARDINAL ) and attempted homicide ( Articles CARDINAL and DATE ) constitute criminal offences . The authorities ' obligations in respect of conducting a preliminary investigation into acts or omissions capable of constituting such offences that have been reported to them are governed by ORG CARDINAL to CARDINAL of LAW . Any offence may be reported to the authorities or members of the security forces as well as to public prosecutors ' offices . The complaint may be made in writing or orally . If it is made orally , the authority must make a record of it ( LAW .

A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts in order to decide whether or not there should be a prosecution ( LAW ) .

If there is evidence to suggest that a death is not due to natural causes , members of the security forces who have been informed of that fact are required to advise the public prosecutor or a criminal court judge ( Article CARDINAL ) . By Article CARDINAL of LAW , any public official who fails to report to the police or a public prosecutor 's office an offence of which he has become aware in the course of his duties is liable to imprisonment .

If the suspected offender is a civil servant and if the offence was committed during the performance of his duties , the preliminary investigation of the case is governed by LAW on ORG , which restricts the public prosecutor 's jurisdiction ratione personae at that stage of the proceedings . In such cases it is for the relevant local administrative council ( for the district or province , depending on the suspect 's status ) to conduct the preliminary investigation and , consequently , to decide whether to prosecute . Once a decision to prosecute has been taken , it is for the public prosecutor to investigate the case .

An appeal to ORG lies against a decision of the council . If a decision not to prosecute is taken , the case is automatically referred to that court .

By virtue of DATE , paragraph ( i ) , of Legislative Decree no . CARDINAL of DATE on the authority of the governor of a state of emergency region , the DATE PERSON also applies to members of the security forces under the governor 's authority .


The applicant is an NORP national , born in DATE and living in PERSON . She is a civil servant in ORG Bundesministerium für Land- PERSON ) .

A.

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

From DATE onwards the applicant was the deputy head of the department for internal auditing ( PERSON ) in ORG . From DATE to CARDINAL DATE S. , the head of the department , was on temporary leave and seconded to ORG ( ORG ) . Initially , the applicant replaced him .

On DATE the applicant filed a request with ORG for an extended extra duties allowance ( PERSON ) to compensate for her additional work load and responsibility as acting head of the department .

On DATE PERSON was appointed as provisional head of the department for internal auditing . This appointment was made public in DATE .

On DATE the responsible civil servant in ORG qualified the applicant ’s request as one for a simple extra duties allowance ( PERSON ) and transmitted this request for approval to ORG ( Bundeskanzleramt ) .

On DATE ORG , in a summary decision ( Dienstrechtsmandat ) , granted the applicant a simple extra duties allowance for the period from DATE until DATE .

On DATE the applicant filed objections ( PERSON ) against the summary decision . She submitted that PERSON , head of the department for external auditing , had been appointed as provisional head of the department for internal auditing on DATE . This appointment was only effective as of CARDINAL DATE . As she had not been officially removed from her position as acting head of the department , she continued to occupy that position after M ’s appointment . Consequently , she was entitled to an extended extra duties allowance after DATE . Though the calculation of the allowance had to be altered after PERSON had started to work on DATE , the allowance could not be cancelled completely . She requested the re - calculation of her " simple extra duties allowance ( extended extra duties allowance ) " .

By letter of CARDINAL DATE ORG informed the applicant that it intended to grant her a simple extra duties allowance for the period from DATE until DATE . It stated that the appointment of M. as provisional head of the department for internal auditing was effective as of CARDINAL DATE . Therefore the applicant ’s function as acting head of the department had ended on DATE .

On DATE the applicant commented on the ORG ’s letter of CARDINAL DATE . She repeated that she was still acting head of the department for internal auditing , contested that PERSON had been validly appointed and raised doubts about the compatibility of PERSON ’s functions . She claimed a simple extra duties allowance for the whole replacement period , namely from DATE until DATE .

On DATE ORG granted the applicant a simple extra duties allowance for the period from DATE until DATE and dismissed her request for an allowance for the period from DATE until DATE . ORG found that the applicant had actually been in charge of the department as substitute to the head from DATE until DATE . For this period she was therefore entitled to a simple extra duties allowance .

On DATE the applicant , represented by counsel , filed a complaint with ORG . She submitted that the former head of the department had decided to stay permanently with ORG . The post of the head of the department was therefore vacant . As she had never been removed from her functions as actual head of the department , and as someone was needed in the department who did not exercise any incompatible functions , she was still the provisional head of the department . Since only the abstract scope of her responsibilities was decisive for the allowance , she had a right to a simple extra duties allowance until DATE , on which date she had been seconded to ORG ) .

On DATE ORG dismissed the complaint . Referring to the provisions of Section CARDINAL § § CARDINAL ( CARDINAL ) and CARDINAL of LAW ( Gehaltsgesetz ) , it found that the only issue to be determined was whether or not the applicant had been entitled to a simple extra duties allowance . She had not complained to ORG that she had been entitled to an extended extra duties allowance and the case - file did not show that she had been entitled to such an allowance .

B. Relevant domestic law

Section CARDINAL a § § CARDINAL and CARDINAL of LAW ( Gehaltsgesetz ) , insofar as relevant , reads as follows :

" ( CARDINAL ) A civil servant is entitled to an extra duties allowance which has to be taken into account when assessing his pension claim , if he permanently ...

has a considerable level of responsibility for the accomplishment of tasks of general administration and if this level of responsibility exceeds the one which is normally connected with a position in an equal grade .

( CARDINAL ) If the civil servant does not permanently perform the duties mentioned in para . CARDINAL , but does so for DATE , he is entitled to an extra duties allowance , which shall not be taken into account when assessing his pension claim ... "


CASE OF RADVAK AND RADVAKOVA v. SLOVAKIA

Violation of Art. 6-1;Violation of Art. 13

David Thór Björgvinsson;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano

The applicants are siblings . They were born in DATE and DATE respectively and live in ORG .

On DATE the applicants claimed payment of an amount then equivalent to MONEY ( ORG ) from CARDINAL defendants before the ORG .

On DATE the applicants informed the district court about their intention to withdraw their action and requested the district court to discontinue the proceedings . They did so after they had learned that it was impossible to verify a signature on a relevant document .

On DATE the district court discontinued the proceedings and obliged the applicants to pay the court fees .

On DATE ORG , upon the applicants ' appeal in respect of the court fees , upheld the first - instance decision . The proceedings finally ended on DATE .

On DATE the applicants complained to ORG about the length of the proceedings before the district court . On DATE the Constitutional Court declared their complaint admissible .

On DATE ORG dismissed the applicants ' complaint . It stated that it could examine complaints concerning length of proceedings only where the proceedings were still pending and the applicants had a genuine legal interest in their continuation . ORG held that there had been no legal uncertainty in the case following the applicants ' withdrawal of the action and therefore their lodging of the constitutional complaint had been formalistic and unfounded .

Section CARDINAL ( CARDINAL ) provides that a constitutional complaint can be lodged within DATE from the date on which the decision in question has become final and binding or on which a measure has been notified or on which notice of other interference has been given . As regards measures and other interferences , the above period commences when the complainant could have become aware of them .

It has been the practice of ORG to entertain complaints about excessive length of proceedings only where the proceedings complained of are pending before the authority liable for the alleged violation at the moment when such complaints are lodged ( III . ÚS CARDINAL/CARDINAL ) .

In CARDINAL judgments ( I. ÚS CARDINAL/CARDINAL , I. ÚS CARDINAL/CARDINAL ) submitted by the applicants , ORG , contrary to the above practice , examined alleged delays notwithstanding that the proceedings had ended prior to the filing of a constitutional complaint . ORG found a violation of the complainants ' right to a hearing within a reasonable time .

ORG has held that the aim of the right to a hearing without unjustified delays is to eliminate legal uncertainty in which a person , who requests delivery of a decision by a ORG authority , is placed . Such legal certainty is normally brought about as a result of a final decision ( I. ÚS CARDINAL/CARDINAL ) .

In a number of cases ORG held that a constitutional complaint was manifestly ill - founded where the impugned conduct of a public authority could not have violated the fundamental right as alleged by the plaintiff for lack of a causal link . Such was also the case where a procedural situation or the state of the proceedings before a public authority objectively excluded the possibility that such an authority ( ordinary court ) violates the afore - mentioned fundamental right ( PERSON . ÚS CARDINAL/CARDINAL , II . ÚS CARDINAL/CARDINAL , II . ÚS CARDINAL/CARDINAL , PERSON . ÚS CARDINAL/CARDINAL , PERSON . ÚS CARDINAL/CARDINAL ) .