No violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities);Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Liberty of person;Security of person);Violation of Article 13+2 - Right to an effective remedy (Article 2-1 - Life;Article 2 - Right to life);Violation of Article 13+3 - Right to an effective remedy (Article 3 - Inhuman treatment;Prohibition of torture);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of application);Non-pecuniary damage - award

The applicant was born in DATE and lives in the town of PERSON , PERSON . The complaint is also brought in respect of the applicant ’s son , PERSON GPE , born in DATE .

The facts surrounding the disappearance of the applicant ’s son were partially disputed . In view of this the ORG requested that the ORG produce copies of the entire investigation file opened in relation to PERSON Yandiyev ’s disappearance .

NORP The parties’ submissions on the facts concerning the circumstances of the apprehension and disappearance of the applicant ’s son and the ensuing investigations are set out in LAW and CARDINAL below . A description of the materials submitted to ORG is contained in Part B.

NORP The applicant ’s son , ORG GPE , was born on CARDINAL DATE . Until DATE he was a student at ORG . The applicant submits that he left ORG in DATE before completing his final year of studies . CARDINAL of his classmates told the applicant that her son had travelled to GPE , GPE . The applicant believes that he wanted to find his father , who had apparently gone there . She has not heard from her son since DATE .

In DATE hostilities began in GPE . After PERSON was captured by federal forces in DATE , a large group of NORP fighters left the city and moved south - west towards the mountains . En route the fighters , and anyone leaving the city with them , encountered mine fields . Many people sustained injuries , especially to their feet and legs . Many of the wounded were treated in a hospital in the village of PERSON ( also called GPE ) , which was taken by the NORP military in DATE .

On DATE the applicant saw her son on a news broadcast about the capture of PERSON by the NORP forces . He was wearing camouflage uniform and was being interrogated by a NORP officer , who was also wearing camouflage .

The applicant later obtained a full copy of the recording , made by a reporter for the ORG ( ORG ) and ORG who had entered PERSON with the federal troops . A copy of that recording and a transcript of the interrogation have been submitted to ORG by the applicant .

The recording shows the applicant ’s son , who is standing near a bus with wounded men . The bus is surrounded by NORP soldiers and the wounded are being removed from the bus . A passing soldier pushes the applicant ’s son on his right leg ; he winces with pain . He is speaking in a low voice and his words are barely audible . The officer questioning him is speaking in a harsh voice . The following is a translation of the relevant parts of the transcript :

“ Officer : - Turn your face [ to me ] ! Turn it properly . Who are you ?

The detainee answers something , but the words are not audible .

Officer : - What did you say ? From ORG ? - / The detainee says something about Nazran/ - From GPE ? Where do you live in GPE ?

Another serviceman who is standing nearby orders : Hands out of your pockets !

... The officer takes something - identity documents - from the pocket of the detainee ’s camouflage jacket , and inspects them , asking questions . The answers are not audible .

Officer : - What is your last name ? What is your first and patronymic name ?

The detainee : - Born on DATE .

Another officer : - PERSON , we need to get the convoy group ready . We have to take all CARDINAL buses there .

The officer takes something out of a small leather packet , wrapped in cellophane , that was among the detainee ’s papers [ apparently , a compass ] , and shows it to somebody : - There , you see ! A solid , trained fighter .

He puts the device back into the packet and wraps it in cellophane .

Another officer asks : - Where did you leave your arms ?

The detainee , shown with his head to the side : - My weapons were left over there .... /Says something about a mine field . /

The second officer repeats : In a mine field ?

... The officer , pointing at his camouflage jacket : - From which soldier did you take this ? From a federal soldier ? From [ one of ] your soldiers ?

The detainee says something to the effect that it was given to him . He says something about “ fighting against ” .

The officer : - Fighting against whom ? Fighting against such [ people ] as here ? Why did you come here ? People are dying because of you !

The detainee : - Because of me ?

The officer : - Of course !

The detainee : - People are dying ...

The officer : - Take him away , damn it , finish him off there , shit , - that ’s the whole order . Get him out of here , damn it . Come on , come on , come on , do it , take him away , finish him off , shoot him , damn it ...

The detainee is led away by CARDINAL soldiers ” .

The video also shows NORP military equipment and other wounded detainees . They are taken out of the buses or remain inside ; many have their feet and legs wrapped in bandages or cellophane . The video also contains interviews with the villagers of PERSON , who say that the village was shelled on DATE .

The ORG journalists who filmed the interrogation later visited the applicant in PERSON and identified the interrogating officer as Colonel - General PERSON .

After seeing her son on the news broadcast on DATE , the applicant immediately began searching for him . She has had no news of him since .

She applied on numerous occasions to prosecutors at various levels , to ORG and ORG , to the Special Envoy of the NORP President for rights and freedoms in GPE , and others . She also personally visited detention centres and prisons in GPE and other regions in LOC .

Acting on the applicant ’s behalf , the NGOs ORG and PERSON and the Head of the LOC mission in GPE forwarded requests for information about her son to various bodies .

The applicant received very little substantive information from official bodies about the investigation into her son ’s disappearance . On several occasions she received copies of letters from various authorities directing her complaints to ORG for LOC , to ORG and to the military prosecutor of military unit no . DATE .

On DATE ORG ( GUIN , PERSON исполнения наказаний PERSON , PERSON ) informed the applicant that her son was not being held in any prison in GPE . The applicant was advised to apply to ORG .

On DATE the Special Envoy of the NORP President for rights and freedoms in GPE replied to the Head of the OSCE mission in GPE , stating that the applicant ’s son was listed as no . CARDINAL in the list of missing persons compiled by his office following ORG complaints . On DATE his office had forwarded a request for information in respect of ORG ’s whereabouts to ORG .

On DATE the military prosecutor of military unit no . CARDINAL in GPE , where the headquarters of the NORP military forces in GPE were based , returned the applicant ’s complaint to ORG of the ORG , with a copy to the applicant . The accompanying letter stated that there were no grounds to apply to the military prosecutor ’s office , because the “ attached materials did not corroborate the involvement of any military servicemen in the disappearance of the applicant ’s son ” .

On DATE the military prosecutor of military unit no . CARDINAL replied to the NGO Memorial that , following examination of its submissions , it had been concluded that “ ORG ’s corpse had never been discovered and it did not follow from the videotape that he had been killed , as the videotape did not contain such facts . ” Consequently , it was decided , under LAW part CARDINAL of LAW , not to open a criminal investigation on account of the absence of a criminal act . In a similar reply to PERSON , dated DATE , the same military prosecutor stated that there were no grounds to conclude that military servicemen had been responsible for the actions shown in the videotape .

On DATE ORG informed the Special Envoy about progress being made in several cases , including that involving a videotape “ where an officer of the federal forces orders the execution of a wounded fighter . The latter was identified by his relatives as PERSON . S. The said videotape has been forwarded to the military prosecutor of military unit no . CARDINAL for checking and investigation under LAW ” .

On DATE the GPE bureau of ORG sent a letter to ORG with the following questions :

“ ( CARDINAL ) Was a criminal investigation opened into ORG ’s disappearance ?

( CARDINAL ) Was the identity of the interrogating officer established ?

( CARDINAL ) Was he questioned ? If not , why not ?

( CARDINAL ) Were the whereabouts of ORG established , in particular if he was still alive ?

( CARDINAL ) Was the interrogating officer or anybody else charged with ORG ’s “ disappearance ” ?

If a criminal investigation into ORG ’s “ disappearance ” and ill - treatment has not been opened , please open such an investigation . ”

On DATE and DATE ORG for the LOC informed the applicant and ORG that their complaints had been forwarded to the military prosecutor ’s office of military unit no . CARDINAL .

In DATE CARDINAL individuals , NORP and PERSON , submitted affidavits to the head of ORG of the ORG , in which they stated that on DATE PERSON had been detained in PERSON by federal troops . The affidavits did not contain the addresses of NORP and PERSON and did not explain how they became aware of ORG detention .

On DATE ORG wrote to PERSON acknowledging receipt of the videotape depicting PERSON Yandiyev ’s interrogation . The videotape had been forwarded to military unit no . DATE for the purposes of the investigation .

On DATE and DATE the military prosecutor of military unit no . CARDINAL forwarded all requests pertaining to the case to ORG of the Interior .

On DATE ORG wrote to ORG for LOC , asking the prosecutor to quash the decision by the military prosecutor of military unit no . DATE not to open a criminal investigation . The letter referred to the contents of the videotape and to the fact that ORG had not been seen subsequently . It again requested that the officers who appeared in the recording be identified and questioned . In reply , on DATE ORG wrote that an inquiry would be conducted . On DATE it informed ORG that all the documents pertaining to the case had been transferred to ORG of the ORG .

On DATE a prosecutor from ORG opened criminal investigation no . CARDINAL into the abduction of PERSON by unidentified persons in DATE in LOC . The decision referred to LAW ( kidnapping ) .

On DATE ORG again sent a letter to ORG . On DATE he replied that the criminal case was being investigated by the local ORG office in GPE , which would inform the interested parties of its progress .

The applicant submits that in DATE she was visited at her home by certain persons who stated that they were carrying out a population census . They asked her and her neighbours about her son and whether he had returned home . DATE they returned and told her that they were from ORG and that they had received documents from ORG pertaining to her son ’s disappearance . The applicant confirmed that her son was missing and that she had had no news of him .

On DATE the PERSON asked ORG for an update on the investigation into GPE ’s “ disappearance ” and possible killing . No response was given .

On DATE the ORG submitted a similar request for information to ORG . On DATE ORG informed the ORG that its letter had been forwarded to ORG for ORG . In DATE that ORG informed the ORG that its request had been forwarded to ORG .

On DATE the SRJI wrote to the military prosecutor of military unit no . CARDINAL and asked , with reference to its letter of CARDINAL November CARDINAL , for a copy of the decision by which he had refused to open a criminal investigation into the applicant ’s complaint about her son ’s possible murder . In DATE the military prosecutor responded that all documents related to the case had been forwarded to ORG of the ORG ( ORG ) on DATE .

On DATE the investigator of ORG informed the applicant that the investigation in criminal case no . DATE had been resumed on DATE . On DATE the applicant was informed by ORG that the investigation had been adjourned for failure to identify the culprits . The applicant was informed that it was possible to appeal that decison .

The applicant submits that on DATE she was visited at her home in GPE by CARDINAL persons from ORG who again questioned her about her missing son and about other members of her family . The applicant submitted a description of her son , but explained that she had run out of photographs of him because she had previously submitted them to various offices , including the prosecution service . The applicant signed the record of the questioning .

The applicant referred to the ORG report of DATE entitled “ The ‘ GPE War’ in GPE : Forced Disappearances , Torture and Summary Executions ” which reports PERSON Yandiyev ’s story and his “ disappearance ” after detention by NORP servicemen .

In DATE the application was communicated to ORG , which were requested at that time to submit a copy of investigation file no . DATE . In DATE the ORG submitted CARDINAL pages out of CARDINAL . The ORG on CARDINAL occasions reiterated its request for the remaining documents , to which the Government responded that their disclosure would be in violation of LAW , would compromise the investigation and would prejudice the rights and interests of the participants in the proceedings .

In DATE the ORG declared the application admissible and reiterated its request for the remaining documents . In DATE the ORG submitted a copy of the entire criminal investigation file , comprising CARDINAL volumes ( about CARDINAL pages ) and CARDINAL volumes of attachments ( CARDINAL pages ) . In addition , in DATE the ORG submitted CARDINAL more volumes of the latest documents from the criminal investigation file ( comprising CARDINAL pages ) .

The investigation established that the applicant ’s son had been detained on DATE in PERSON , together with other members of illegal armed groups . Immediately after arrest he was handed over to servicemen from the GUIN for transportation to the pre - trial detention centre in GPE , GPE . PERSON did not arrive at GPE and his subsequent whereabouts could not be established . As of DATE PERSON was placed on the search list as a missing person , and as of DATE his name was placed on the federal wanted list . In DATE a criminal investigation in respect of PERSON was opened by the military prosecutor of ORG ( ORG ) under LAW participation in an illegal armed group .

The applicant and her husband were questioned on several occasions and granted victim status in the proceedings . The investigation also identified and questioned a large number of eye - witnesses to and participants in the events , including servicemen from the army , the interior troops and the GUIN , journalists and local residents . Several witnesses confirmed that they had observed the encounter between PERSON and Colonel - General PERSON and that the latter ’s words had been regarded by everyone present not as an order but as “ a figure of speech ” aimed at calming down GPE , who had behaved in an aggressive and provocative manner and could have inspired disobedience among the detainees . After questioning PERSON had been taken away from the bus containing the other wounded and had been placed against the fence ; he had remained there for some time . The file also contains a statement by ORG , who had been in charge of the operation and who denied that any summary executions had taken place . All servicemen present were questioned as witnesses . No one was charged with a crime .

Colonel - General PERSON was questioned twice about the events and stated that he had not given an order to “ shoot ” PERSON , but that he had intended to stop his aggressive behaviour and to prevent possible disturbances that could have ignited violence and entail further casualties among the arrested insurgents and the federal forces .

Several expert reports were carried out on the video recording in question , in order to establish its authenticity ; to establish whether the conversation between General PERSON and GPE could be regarded as a proper order given within the chain of command ; to evaluate the psychological state of the persons depicted ; and to conclude whether the General had insulted ORG . The videotape was found to be authentic . An expert report also concluded that the words used by General PERSON could not have been regarded as a proper order issued to his subordinates within the military chain of command because of its inappropriate form and contents .

The investigation did not establish the fate of ORG following his transfer to the GUIN servicemen on DATE . Various detention centres , military and law - enforcement bodies denied that his name had ever been on their records . Several men who were detained in PERSON on DATE stated that they had not seen PERSON after his detention .

DATE and DATE the investigation was adjourned and reopened CARDINAL times . The case was transferred from ORG to ORG and then to the military prosecutor of the ORG . The majority of documents in the case file are dated after DATE .

The parties submitted numerous documents concerning the investigation into the disappearance . The main documents of relevance are as follows :

The Government submitted the documents from the criminal investigation file into ORG ’s disappearance , comprised of over CARDINAL pages . The main documents can be summarised as follows :

On DATE a prosecutor from ORG opened a criminal investigation into the abduction of PERSON , born in DATE , by unidentified persons in DATE in LOC . The decision referred to LAW ( kidnapping ) . On the same date the criminal case was forwarded to ORG for investigation , which accepted it on DATE . The case file was assigned no . CARDINAL . In DATE the investigation was transferred to the military prosecutor of the ORG , where it was assigned case file no . DATE

The file contains the applicant ’s letter of CARDINAL DATE to ORG , in which she stated the known facts concerning her son ’s disappearance . She stated that , having seen her son on a news broadcast on DATE , she immediately set out for PERSON . She reached there only on DATE , and was told that her son , who was listed among CARDINAL detainees , had been transferred to ORG . On DATE she arrived at ORG , where she was told that at TIME that day the detainees had been transferred to the GPE pre - trial detention centre . At PERSON she was told that her son was not in their custody and that his name was not on their lists . The applicant had no further news of her son , and requested the prosecutor ’s office to establish his whereabouts and to inform her if he had been charged with any crimes .

On DATE the applicant was questioned in her home town . Her brief statement repeated the circumstances of her son ’s disappearance and reiterated that she had had no news of him . On DATE the applicant was granted victim status in the proceedings .

Later the applicant was again questioned on several occasions . Her husband , PERSON Yandiyev ’s father , was also questioned and confirmed her previous statements .

The investigators questioned the witnesses to the encounter between General PERSON and PERSON , including servicemen and journalists .

In DATE and DATE the investigation questioned several officers from special police forces ( PERSON ) from the NORP region . They submitted , almost word for word , that from DATE they had been on mission in PERSON and that in DATE an operation had been carried out in the village . Their detachment was being held in reserve , but they were aware that a large group of fighters had entered the village , and CARDINAL federal troops , with support from aviation and armoured vehicles , had captured a large number of fighters – possibly CARDINAL persons . The operation was under the command of ORG , the commander of a division of the interior troops , and was visited by ORG PERSON , the head of LOC . ORG ( ORG ) and members of the military intelligence dealt with the detainees .

Several army servicemen stated in DATE and DATE that , on DATE , a group of senior officers headed by Colonel - General PERSON , who at the time had headed the ORG staff , had arrived in LOC by helicopter . They came because a large group of fighters , including casualties , had been detained . They were accompanied by journalists , including TV cameramen . They first visited FAC hospital , where a large group of wounded fighters was found in the cellar . The cellar was dirty , the wounded were lying on the floor and there was a strong smell of decay . The soldiers deposited a large number of arms and ammunition collected from the fighters near the hospital . They then went to PERSON central square to see a convoy of CARDINAL buses containing fighters , some of them wounded . The buses were blocked on all sides by army vehicles and guarded by servicemen , who had already disarmed the men inside . Local residents had gathered to watch behind the security cordon . When the senior officers approached the buses they noticed CARDINAL of the fighters near the first bus , who had been talking to a reporter . He was wearing a new army camouflage jacket and behaved in an aggressive and provocative manner , trying to instigate the detainees and local residents to disobey . The witnesses suggested that he had been under the influence of narcotics . Some witnesses also noted that he was wounded in the hip . Colonel - General PERSON talked to the detainee and calmed him down using harsh words , saying that he should be shot . He also found identity documents , a compass and a map in his pocket . The soldiers then took the detainee away from the bus containing the other fighters and placed him next to a metal fence QUANTITY away , where he remained calmly for TIME . Colonel - General PERSON and other army officers left PERSON after TIME , and the detained fighters were left in the charge of the GUIN servicemen . The witnesses stressed that GPE ’s words had not been regarded as an order , that PERSON had remained near the bus for a long time after the conversation and that , in any event , there had been far too many people around to issue or to carry out such an order . They also specified that most of the servicemen appearing in the videotape belonged to ORG ( ORG ) or ORG ( GUIN ) troops , and thus were not subordinate to a Colonel - General in the army . They denied that summary executions had taken place .

In DATE the investigation questioned ORG who had headed the operation in LOC . He stated that the operation had been carried out by a joint group of the army , internal troops , police units from GPE and other regions and GUIN troops from ORG . Work with the detainees came within the competence of the GUIN units . He denied that the servicemen had committed summary executions .

Journalists and cameramen from ORG , ORG and the army ’s press service stated that ORG had told the reporters that he had been in charge of a small group of fighters . During the encounter with General PERSON he had behaved in a slowed - down manner , as if under the influence of narcotics . They also testified that PERSON had behaved aggressively and thus provoked General PERSON ’s remarks . CARDINAL reporter testified that after the conversation depicted in the videotape ORG had been taken to a fence , where he remained for TIME , after which servicemen put him into an armoured personnel carrier ( ORG ) and drove away . Other reporters stated that he remained by the fence for TIME or more , until the group headed by Colonel - General PERSON had left .

In DATE the investigation questioned PERSON , the ORG correspondent who had been at the scene on DATE . He stated that he had witnessed the dialogue between the wounded fighter , later identified as ORG , and a high - ranking military officer , later identified as Colonel - General PERSON . He confirmed that although his NORP was weak , he could grasp the meaning of the conversation and had understood that the officer had questioned the fighter about his army jacket and later said that he should be “ finished off ” . He testified that he saw PERSON taken away by soldiers to an ORG .

The investigation questioned Colonel - General PERSON as a witness on DATE in DATE and in DATE . On both occasions he confirmed that he had a conversation with a young rebel fighter ( “ boyevik ” ) , later identified as GPE , who had been standing outside the bus with other fighters and who had been creating a disturbance by his statements . The witness stated that he had concluded from the fighter ’s inadequate reaction that ORG had been intoxicated , but as there was no smell of alcohol , he thought he might be under the influence of narcotics . The officer said that his harsh reaction had been caused by the detainee ’s dangerous conduct , which could have incited other fighters and the villagers to disobey . In his first witness statement Mr PERSON claimed that the video footage had been altered to omit the fighter ’s provocative statements . He stressed that the servicemen surrounding him were not his subordinates and thus could not have taken orders from him . In any event , nobody regarded his remarks as an order and PERSON was simply taken away from the bus and stood by the fence for a long time afterwards . The GUIN servicemen had dealt with the detainees and Mr PERSON had had no involvement in this .

A number of expert reports were carried out in the case .

In DATE experts from ORG ( GPE криминалистики ORG ) concluded that the videotape did not contain any signs of altering or editing of image or sound and that the voice which had given the order to execute PERSON was that of Mr PERSON .

In DATE a professor of linguistics at ORG concluded that , although Colonel - General PERSON had used obscene words and expressions , these were not addressed directly at GPE or anyone in particular and could not therefore be regarded as an insult .

In DATE a comprehensive psychological and psychiatric report carried out by CARDINAL senior medical experts concluded that , judging by the video extract and other materials , the behaviour of both Colonel - General PERSON and PERSON on DATE had been adequate to the situation and that neither had displayed any signs of weakening of mental performance .

DATE . In DATE an expert commission made up of CARDINAL professors from military academies concluded that the extract in the videotape did not contain a valid order given within the chain of command due to its contents and improper form . In particular , the experts’ report recalled that orders had to comply with the LAW and other legal acts and that they could only deal with matters which were relevant to the work of the military and were within the superior ’s competence . Furthermore , orders could only be issued by a superior to an identified person under his command ; they were to be given in a clear and unambiguous manner . None of these conditions had been met and therefore the report concluded that neither the Colonel - General nor any of the servicemen present at the scene could have regarded his words as an order .

The investigation collected a large amount of information about the persons detained on DATE in PERSON . It identified and questioned the servicemen who had participated in the operation and escorted the detainees to the detention centre , and also the drivers of the buses and other detainees .

PERSON , a resident of PERSON , was questioned in DATE and DATE . He stated that on DATE he had tried to leave the village with his family in a PAZ bus . He was stopped by a group of armed men who ordered him to remove his belongings and to take the bus to FAC hospital . At the hospital CARDINAL other PAZ buses , also driven by villagers , were waiting . The armed men took wounded individuals out of the hospital and loaded them onto the CARDINAL buses ; the drivers were initially instructed to travel to ORG . However , they were not permitted to pass through a military roadblock at the exit of the village and returned to PERSON . They were then instructed to go to ORG , where , as the witness understood it , the wounded were removed from the buses by servicemen from ORG . The witness identified PERSON Yandiyev from photographs and stated that he had seen that individual being placed in an ORG in GPE and subsequently transferred to another APC at the military roadblock at the exit from the village . The witness also stated that he had seen how the servicemen searched the man and found a black flag with LANGUAGE inscriptions . He did not see any ill - treatment of the man or of other detainees . He had not seen the man later identified as GPE prior to CARDINAL February CARDINAL , not did he see him afterwards .

In DATE B. ( see § CARDINAL above ) testified that he had known PERSON since their childhood in PERSON . In DATE and DATE he met him in PERSON on several occasions . At that time PERSON was wearing his hair long , had a beard and wore an army camouflage jacket , but he was not armed . At DATE the witness left PERSON through a “ safe corridor ” towards PERSON . En route the column was shelled and the witness was wounded in the right arm . In GPE he was admitted to hospital , where he again met PERSON , who had been wounded in the hip . On TIME CARDINAL buses were organised to take the wounded to the Urus - Martan hospital , but the convoy was stopped at a roadblock by the military and returned to PERSON . There the buses were surrounded by servicemen and military vehicles and the men were taken out of the buses and searched . B. was placed by a metal fence with his back to the buses . He heard ORG voice behind him and recalled that PERSON talked to some senior officer who ended the conversation by an order to “ shoot ” PERSON . The witness then saw PERSON being taken away . He and the other detainees were first taken to a “ filtration point ” in ORG , from where they were transferred to the GPE pre - trial detention centre DATE . After that the witness was detained in CARDINAL other pre - trial detention centres and was released in DATE . He had not seen PERSON Yandiyev after DATE and had no news of him .

The investigation obtained documents from the criminal investigation file opened in respect of B. The file contained a police report about his detention in GPE on DATE on suspicion of participation in an illegal armed group . On DATE B. was questioned in ORG and denied the charges . On DATE he was charged with participation in an illegal armed group and his detention was authorised by a prosecutor . In DATE the charges were dropped and PERSON was released under an amnesty granted to persons charged with participation in illegal armed groups in LOC who had not committed any serious crimes .

In DATE the investigation questioned CARDINAL other men who had been detained in DATE in LOC and taken to ORG . CARDINAL of them identified PERSON from a photograph and stated that he had seen that individual being taken out of a bus in LOC by servicemen .

In DATE the investigation questioned several servicemen from ORG , from various regions of GPE , who had been deployed in LOC in DATE . They stated that although their units had not been involved in the transportation of the CARDINAL buses , the detainees had been transported on DATE to a “ filtration point ” in the village of ORG . They also stated that those detainees who had been identified as “ field commanders ” or others who were believed to be able to provide valuable information were taken away by officers from the ORG and military intelligence ( ORG разведывательное управление , ORG Министерства обороны ORG ) and were not transported to the filtration points with the other detainees . They also stated that a system of detainee records had been maintained and that individual minutes of detention had been drawn up in respect of each of the detained persons . They estimated that on DATE CARDINAL persons had been detained on suspicion of participation in illegal armed groups .

The Government also submitted to the ORG CARDINAL pages of documents from other criminal investigation files opened in relation to CARDINAL persons detained in DATE in and around LOC . Each of the detainees was questioned on DATE in ORG , presented with charges and sent to various pre - trial detention centres . A detention order was issued in respect of each detainee , on suspicion of participation in illegal armed groups , by a prosecutor . It appears that most of the detainees were later released under an amnesty act . No such documents exist with reference to PERSON .

DATE . The investigation tried to obtain information about ORG ’s whereabouts from various sources . A number of law - enforcement agencies and detention centres in GPE , LOC and further afield in GPE , including pre - trial detention centre no . CARDINAL in GPE , denied that he had ever been arrested or detained by them .

Their family ’s neighbours in ORG stated that they had not seen the GPE after they left ORG in DATE . CARDINAL neighbour , PERSON , questioned in DATE , testified that in DATE he had noticed a man resembling PERSON in a market in Grozny . The witness did not know PERSON very well and did not approach the man in the market or talk to him .

Also in DATE the investigation questioned a local resident in PERSON who stated that in DATE he had witnessed ORG arrest . He stated that in DATE he had noticed a man resembling the detainee in a shop in LOC . The witness did not know PERSON personally and did not know him by name .

The investigators questioned a number of PERSON residents , including a policeman and the head of the local administration . In similarly worded statements they stated that in DATE a large group of fighters headed by the field commander PERSON had entered the village . The village had been shelled and large detachments of the federal forces had then entered the village in APCs . None of the villagers questioned had ever heard of PERSON , but they stated that several young men from PERSON had been detained by the federal forces on DATE and later released .

Several of ORG ’s classmates from ORG stated that they had not seen him after DATE . They described him as a devout young man who had observed NORP customs and studied religious literature . The investigation obtained a copy of the order by the Rector of the University by which the student PERSON had been discharged as of CARDINAL DATE for systematic absence from classes .

Yandiyev ’s relatives with whom he had lived in GPE from DATE to DATE testified that he had left for GPE in DATE and that they had had no news from him since .

The investigation explored the version that the convoy which had transported GPE from Alkhan - Kala could have been ambushed and that he could have escaped or been killed in the skirmish . It requested information from a number of sources about recorded ambushes of convoys in DATE and about escaped detainees , but received no examples of such incidents . None of the servicemen questioned were aware of such incidents . The investigation also explored whether ORG could have used a false identity on arrival at the detention centre in GPE , but the guards of the facility , questioned in DATE , testified that all the detainees who arrived there had been in possession of identity documents or police reports confirming their identities .

In DATE the central information bureau of the NORP railroads submitted data to the investigation about all rail road tickets purchased under the name of ORG from DATE ( over CARDINAL entries ) .

On DATE the investigation ordered a molecular - genetic analysis of the applicant ’s blood sample , in order to verify if her relationship could be traced through samples of any persons killed in action while resisting the federal authorities .

On DATE the military prosecutor ’s office in charge of investigating ORG ’s kidnapping opened a criminal investigation into ORG Yandiyev ’s involvement in an illegal armed group , a crime under LAW part QUANTITY of LAW . On DATE PERSON was charged in absentia with the above crime and his name was included on the federal search list . This investigation was assigned case file number CARDINAL/CARDINAL/CARDINAL - DATE .

On DATE the military prosecutor responsible for the case adjourned the investigation into ORG ’s kidnapping on the ground of failure to identify the culprits . The relevant document summarised the findings by DATE . It referred , in particular , to the testimonies of CARDINAL policemen from GPE who had been on mission in GPE in DATE . Each of them stated that in DATE CARDINAL male bodies , dressed in camouflage outfits and civilian clothes , had been discovered on the outskirts of GPE , near the cemetery . The residents refused to bury them because they were not from LOC . The bodies were delivered to the LOC , where they were filmed and photographed by officers from ORG . The bodies were then taken by a car belonging to the ORG district military command to PERSON , GPE .

The document of CARDINAL DATE cited a report by an officer of the PERSON to the effect that the registration log of the PERSON forensic centre contained no information about the delivery of unidentified bodies in DATE .

The document further referred to information from ORG that no criminal investigation had ever been conducted by that office into the discovery of CARDINAL male bodies at FAC cemetery in DATE .

The case file reviewed by the ORG does not contain these documents .

At different stages of the proceedings several orders were issued by the supervising prosecutors , enumerating the steps to be taken by the investigators . On DATE a prosecutor from ORG ordered that all the circumstances of PERSON ’s disappearance were to be fully investigated , those who had taken part in a special operation in LOC in DATE were to identified , and that the applicant was to be found and granted victim status in the proceedings .

On DATE a prosecutor from the FAC Prosecutor’Khadzhi - Murat Yandiyev and about the details of their search for him . It was also necessary to find a copy of the videotape containing ORG ’s questioning . The document also ordered that steps be taken to identify the detachments of federal forces that could have been involved in the special operation in LOC in DATE and to establish what had happened to the detained persons .

On DATE the Deputy Prosecutor of GPE ordered the investigators to establish the whereabouts of PERSON and NORP and to question them about the circumstances of ORG detention . He also ordered that investigative measures which could help to clarify ORG ’s personality , and other necessary measures , be pursued .

DATE and DATE the investigation was adjourned and reopened CARDINAL times . The most recent order by the Deputy ORG , dated DATE , extended the investigation until DATE . It summarised the findings until that date and ordered the investigation to proceed with identification and questioning of other detained persons and the GUIN servicemen who had participated in the detention of suspects on the date in question , and to check the version that ORG could have escaped from detention or used a false identity etc .

The Government submitted a copy of a TV report by the ORG company dated DATE . It contains a short interview with PERSON , who is shown standing by a bus . He confirms that he walked to PERSON from PERSON and that he was with a group of CARDINAL persons . The footage then shows ORG standing alone by a metal fence and a group of servicemen unfolding a black banner with an NORP inscription .

The applicant submitted an undated copy of an interview with the ORG producer PERSON for an on - line magazine , in which he spoke of how PERSON ’s questioning was filmed by his crew :

“ The Chechen War , especially the second campaign , was my first experience with real warfare . I was able to get close to the action and see a lot of things on both sides of the conflict .

I was travelling with the NORP when they took PERSON , a village near the NORP capital of PERSON . They captured a bunch of NORP rebel fighters ; CARDINAL of them , a young guy in his DATE , was wearing a NORP uniform he ’d obviously taken from a soldier he ’d killed . The second - in - command in the NORP military walked up to him and said , “ What the hell are you doing in that NORP uniform ? ” The rebel fighter talked back to him , and they got into a heated debate . The general looked through the guy ’s pockets and found his passport . He read all the information out loud . Then he said to CARDINAL of his soldiers , “ Get rid of this guy . Kill him right here . ” The soldiers did n’t know what to do . They knew our cameras were rolling . So they just nodded their heads but did n’t do anything .

When the general came through again , he got upset . “ I told you to get rid of this guy ! ” The soldiers dragged the man to an armoured personnel carrier and drove him off . A NORP colonel came up to me and said , “ Hey , PERSON , want to shoot an execution ? ” It was CARDINAL of those moments when you do n’t know what to do as a journalist . On the one hand , I ’d be documenting a war crime , the execution of an unarmed man . On the other , it went against my instincts . Just then , the tank I ’d come in on began to leave , and I had to jump aboard . DATE , we went to the rebel fighter ’s address , which the general had read aloud on camera , to find out what had happened to him . We showed his mother the tape and asked if she ’d heard from him . She had n’t . It was really difficult — she totally broke down . It ’s quite probable he was executed . ”

Until DATE criminal - law matters were governed by LAW the NORP Federalist Socialist Republic . From DATE the old Code was replaced by LAW ( CCP ) .

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


The applicant is a NORP national , born in DATE , and resides on the isle of GPE , GPE . He is represented by Mr E.Th . ORG , a lawyer practising in GPE , the GPE .

On DATE , acting on information received that behind the X. snack on the isle of GPE drugs were being sold , the police officers GPE and GPE conducted an investigation on that location . Upon their arrival there , they saw CARDINAL men , CARDINAL of whom the applicant .

According to the applicant , the CARDINAL police officers searched him in public while he was made to stand facing a wall with his trousers and underpants lowered until the knees . No drugs were found on him . When the applicant refused to comply with the police officers ' subsequent order to remove his underpants , he was arrested and taken to the police station

According to the formal police record ( proces - verbaal ) on this investigation , the police officer PERSON saw that the applicant gave a small object to the other person present who gave the applicant a banknote in return . The applicant added this banknote to a bundle of notes , which he then put in his pocket . The police officers apprehended the applicant . The other person absconded . The officers searched the applicant . No drugs were found on him . An amount of CARDINAL Antillean Guilders found on him was seized . While searching the applicant , the police officer GPE saw the applicant hide an object in his underpants . The applicant was arrested and brought by car to the police station . When the applicant got out of the car at the police station , he dropped a plastic bag on the floor . The police officer PERSON picked up the bag and secured it . The bag was found to contain QUANTITY small plastic sachets each containing cream - coloured powder .

Subsequent tests indicated that the powder found contained cocaine . Following his arrest , the applicant was placed in pre - trial detention .

By summons of DATE , the applicant was ordered to appear on CARDINAL DATE before ORG ( PERSON in PERSON ) sitting in GPE on charges of possession of and trafficking in narcotics .

On DATE , ORG started its examination of the case . The defence stated that it had summoned PERSON , GPE , PERSON and GPE in order to be heard as witnesses , but that only GPE had appeared . It granted the request by the prosecution to stay the proceedings in order to take evidence from these persons . It adjourned its examination until DATE .

On DATE , Mr PERSON gave evidence before the investigating judge ( rechter - commissaris ) . PERSON and PERSON gave evidence before the investigating judge on DATE . All CARDINAL witnesses confirmed that , on DATE , the QUANTITY police officers had forced the applicant to lower his pants and underpants when they searched him .

On DATE , the prosecution sought a further stay , as it wished to verify certain allegations which had been made against the police . The prosecution further stated it wished to hear as witnesses the police officers GPE , GPE and J. The defence did not object to a further stay , but requested the applicant 's release from pre - trial detention . ORG adjourned the case until DATE , ordered that the police officers GPE , GPE and J. be heard before the investigating judge and further ordered the applicant 's immediate release . The applicant was released on DATE .

On DATE , upon the request of both the prosecution and the defence , ORG adjourned the proceedings until DATE in order to hear PERSON as a witness .

On DATE , ORG adjourned its examination until DATE as the witness ORG had not appeared . It ordered that this witness be forcibly brought before it on DATE .

On DATE , ORG took evidence from the applicant , who denied the charges . It further took evidence from ORG , who stated inter alia that he had bought CARDINAL sachets of base ( cocaine ) from the applicant shortly before the latter was arrested on DATE . He himself had walked away . He further stated that he never bought any drugs from the applicant previously . He also stated to have been beaten by the police upon his arrest as he had refused to talk . Both the prosecution and the defence were given the opportunity to put questions to this witness .

ORG further considered various other means of evidence , including the formal police records of the investigation carried out on DATE and statements made to the police officer PERSON on DATE by GPE and GPE respectively , who had each declared to have bought base from the applicant . The court of ORG further heard the parties ' final pleadings and closed its investigation .

In its judgment of CARDINAL DATE , ORG convicted the applicant of trafficking in narcotics and sentenced him to DATE imprisonment with deduction of the time spent in pre - trial detention . The applicant filed an appeal with ORG of GPE and GPE ( FAC en GPE ) .

On DATE , ORG of Appeal heard the applicant , who stated to be innocent , and considered the means of evidence before it , including formal police records concerning the investigation of CARDINAL DATE , the report of ORG containing the findings of the test carried out on the powder found on DATE , a statement made to the police officer PERSON on DATE by PERSON , who had stated to have bought base from the applicant , statements made to the police officer PERSON on DATE by GPE and GPE respectively , who had each declared to have bought base from the applicant , and a statement made to the police officer PERSON on DATE by GPE , who had stated to have bought base from the applicant . ORG of Appeal further heard the parties ' pleadings and closed its investigation .

By judgment of DATE , ORG of Appeal quashed the judgment of CARDINAL DATE , convicted the applicant of trafficking in narcotics and sentenced him to DATE imprisonment with deduction of the time spent in pre - trial detention .

ORG rejected as not having been made plausible the assertion by the defence that the evidence against the applicant had been fabricated and that the finding of the cocaine had been faked . It found no reasons to doubt the veracity of the facts and circumstances as related in the formal police records .

It further rejected the argument of the defence that the statements of the witnesses GPE , GPE , GPE , GPE , GPE , and ORG could not be used in evidence on grounds that their statements concerned different facts . ORG considered that these statements mutually support each other , since they concern similar facts . The court added that these statements were only used in conjunction with the other means of evidence . It further rejected the argument by the defence that the witness PERSON had been afraid to retract his statement for fear of being prosecuted for perjury . The court held that it had not appeared that this statement had not been made freely . It added that this was also the case with the other statements used in evidence ,

The applicant filed an appeal in cassation with ORG ( PERSON ) . Pursuant to LAW ( Wet op de Rechterlijke Organisatie ) an appeal in cassation is limited to points of law and procedural conformity .

In his appeal in cassation , the applicant complained that the prosecution should have been declared inadmissible on grounds that the applicant 's rights under LAW had been violated in that the police officers had forced the applicant to lower his pants and underpants on a public place . The applicant further complained under LAW that the Joint Court of Appeal had unjustly rejected his argument that the evidence against him had been fabricated and that the finding of the cocaine had been faked . He also complained under LAW that he would have to serve his sentence in the NORP prison on the isle of GPE , where the conditions of detention , according to the findings of ORG for the Prevention of Torture and Inhuman or Degrading Treatment in its Report ORG ( CARDINAL)CARDINAL of DATE , constitute inhuman and degrading treatment .

In his advisory opinion to ORG , the Procurator - General ( ORG ) to ORG advised ORG to reject the first complaint on grounds that the defence had not raised this argument before ORG whereas in cassation proceedings no facts or circumstances can be invoked which have not been established before the trial courts . He further advised to reject the second complaint on grounds that the rejection by ORG of this argument was based on its comprehensible assessment of the facts , which can not be further reviewed in cassation proceedings . As to the third complaint , the Procurator - General noted that this complaint had not been raised before the trial court and considered that this issue could not be raised for the first time in cassation proceedings as this would require an investigation of the conditions in which prison sentences imposed by courts in GPE are habitually executed .

In its judgment of DATE , referring to LAW ( Wet op de Rechterlijke Organisatie ) , ORG rejected the applicant 's complaints in cassation without stating any further reasons . It further did not find any grounds on the basis of which the judgment of DATE should be quashed ex officio .

Article CARDINALa RO provides as follows :

< Translation >

" If ORG considers that a complaint submitted can not lead to cassation and does not prompt a determination of legal issues in the interest of legal unity and legal development , it can limit itself to this finding when giving the reasons of its decision on that point . "


Violation of Art. 8;Not necessary to examine P1-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

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

NORP In DATE the applicant and her husband separated and in DATE they were divorced . At about that time , the applicant ’s elderly mother went to live with her in the former matrimonial home , which ORG had bought with her ex - husband in DATE .

Following the couple ’s separation , proceedings were instigated before ORG concerning the former matrimonial home and its contents . These proceedings were described by Mr Justice PERSON in ORG judgment of CARDINAL DATE as substantial and acrimonious ( see paragraph CARDINAL below ) .

On DATE ORG ordered that the former matrimonial home be transferred to the applicant on payment of MONEY ( GBP ) . Although this amount was paid by the applicant on or DATE , the house was not transferred into her sole ownership until after the events in question . Nevertheless , in its judgment of CARDINAL DATE , ORG found that on payment of the GBP CARDINAL “ the beneficial ownership of the property vested in her as sole owner ” ( see paragraph CARDINAL below ) .

On DATE ORG ordered the division of the furniture and other moveable property to be found in the former matrimonial home in accordance with a list identified in the order . However , delivery was not effected and on DATE ORG ordered PERSON to make arrangements for the delivery of her ex - husband ’s property within DATE . The order was backed by a penal notice .

On DATE the applicant delivered property to her ex - husband which , save for CARDINAL or CARDINAL items , was not that described in the order . As a result , on DATE ORG made an order committing her to prison for DATE . However , this order was suspended for DATE to allow her to deliver the property identified on the list to PERSON on or before DATE . Immediately after the hearing the latter , through his counsel , offered to collect the property to save the applicant the trouble of delivering it . He suggested TIME on DATE .

Believing that the applicant had agreed to his suggestion , at TIME on DATE PERSON , accompanied by his brother and sister and a solicitor ’s clerk , went to the former matrimonial home to collect his property . Fearing that there would be a breach of the peace ( see paragraphs CARDINAL to CARDINAL below ) because of PERSON previous unwillingness to comply with orders of the court , PERSON solicitors made arrangements for QUANTITY police officers to be present while the property was being removed . When the police officers arrived , they were informed that PERSON was there to collect his property pursuant to an agreement concluded between him and the applicant , and were given a copy of the list but not of the court order . According to CARDINAL of the police officers , the solicitor ’s clerk offered to return to his office to get a copy of the order , but the police officer did not require that this be done .

One of the police officers knocked at the door of the house . It was answered by the applicant ’s mother who told him that her daughter was not at home , and that she was unaware of any arrangement concluded between the latter and PERSON . In an affidavit sworn on DATE , the applicant ’s mother claimed that the police officer had told her to open the door because they were from the court and had a court order to execute . The applicant ’s mother opened the door and stepped aside , allowing PERSON and his party access to the property . Subsequent court proceedings held that the entry of PERSON , his siblings , and the solicitor ’s clerk amounted to a trespass ( see paragraph CARDINAL below ) .

Upon entering the house , PERSON and his siblings began removing his property . Although the police officers accompanied them into the house , according to the applicant ’s mother ’s affidavit the officers spent most of the time on the front driveway . They did not participate in the removal or disturbance of the property , although one of them checked that only the items on the list were removed .

When the applicant returned home at TIME , she became angry and objected to the removal of the property . At that stage , one load had been driven away and a second load was in the van , which had been rented by her ex - husband . CARDINAL of the police officers intervened and insisted that she allow PERSON to leave with the property . She was permitted to inspect the contents of the van but the officer insisted that she should not unload items from it because he feared that , if she did so , there was likely to be a breach of the peace . He explained to PERSON that any continuing dispute concerning the property should be resolved later by her and her ex - husband ’s respective solicitors . TIME the applicant ’s mother , who had recently suffered a stroke , was taken to hospital suffering from high blood pressure .

The applicant instituted criminal proceedings against those involved in the incident , which were unsuccessful . Together with her mother , she then instituted CARDINAL sets of civil proceedings for trespass , one against her ex - husband and his siblings , one against the solicitor ’s clerk and a third against the QUANTITY police officers .

On DATE the applicant ’s mother died .

On DATE Mr Justice PERSON in ORG dismissed the action against the police officers on the grounds that they had not trespassed on the applicant ’s land or goods . Although the judge considered that the applicant had not agreed to her ex - husband removing his property from the former matrimonial home on DATE , he found that the latter genuinely believed that an agreement had been concluded . Furthermore , he considered that the officers had had reasonable grounds for apprehending that a breach of the peace might take place and were therefore entitled , pursuant to the common law as preserved by statute , to enter on and remain at the property without the consent of the owner :

“ The [ applicant ] contends that the police did not have reasonable grounds for apprehending that there might be a breach of the peace and therefore they were trespassers on the property . I reject this contention . They had been told to go to the house on the information of a solicitor that there might be trouble . The history of the matter makes it clear in my judgment that the solicitor ’s fears were well - founded . If [ the applicant ] had been there when her ex - husband ’s party arrived , I have no doubt that the police constables’ role as peace - keepers would have been required . ”

Regarding the applicant ’s claims for trespass to goods , the judge found that the police officers had not actively participated in the removal or the disturbance of the applicant ’s property . Although CARDINAL of the police officers had checked that only the items on the list figuring in the court ’s order were removed , “ he did not encourage or participate in the removal of those things that apparently were on the list or in the way in which things in or on those items were to be dealt with ” .

On DATE ORG pronounced on the applicant ’s CARDINAL remaining civil actions against her ex - husband , his brother and sister and his solicitors . It considered that there had not been any agreement between Ms and PERSON for him to collect his property on DATE and that the applicant ’s mother had not given permission to PERSON and his party to enter the house . The court concluded that , as a result , they had trespassed on PERSON land and property . She and her mother ’s estate were awarded GBP CARDINAL with interest by way of compensation .

On DATE the applicant appealed against the decision of Mr Justice PERSON on the ground that the police officers should have made enquiries before entering her house , that there had been no breach of the peace or threat of a breach of the peace and that the police had been negligent in failing to give adequate protection to her mother .

ORG dismissed the appeal on DATE ( PERSON v. Commissioner of Police of the LOC [ DATE ] CARDINAL All England Law Reports CARDINAL ) . In his judgment Lord Justice PERSON held :

“ The real issue in the case , as I see it , is whether the officers had any excuse in law for entering [ the former matrimonial home ] . It is common ground that some excuse is required because it does not appear that there was any consent to the entry by [ the applicant ] or her mother . The judge found that they took no active part in removing any property and , as I have said , all [ one of the police officers ] did was to check a list of what was being taken . But it is clear that they both entered the property and it may be that CARDINAL of them knocked on the door .

There are CARDINAL questions which need to be decided . First , in what circumstances , if any , can police officers enter into a private house to prevent a breach of the peace ? Secondly , if a right to enter a private house does exist in certain circumstances , did those circumstances exist here ? ”

Noting that the common - law powers of the police to enter private premises were preserved by section CARDINAL(CARDINAL ) of the Police and Criminal Evidence Act DATE ( “ the DATE LAW ) , the judge considered that the principal authority under common law was the decision of ORG in PERSON ( [ DATE ] ORG Bench Reports CARDINAL ) . Lord Justice PERSON continued :

“ That was a case where police officers went to a hall where a public meeting which had been extensively advertised was about to take place ; the police sergeant in charge of the party was refused admission to the hall but insisted on entering and remaining there during the meeting . The question arose as to whether the police were entitled to take that course .

Lord PERSON , who delivered the first judgment in the case , said this at page CARDINAL :

‘ I think that there is quite sufficient ground for the proposition that it is part of the preventive power , and , therefore , part of the preventive duty , of the police , in cases where there are such reasonable grounds of apprehension as the justices have found here , to enter and remain on private premises.’

At page CARDINAL PERSON said , in relation to entering LOC in connection with an affray :

‘ ... I can not doubt that he has a right to break in to prevent an affray which he has reasonable cause to suspect may take place on private premises.’

He considered , therefore , that the police officers were justified in what they were doing . PERSON at page CARDINAL put the matter as follows :

‘ If a constable in the execution of his duty to preserve the peace is entitled to commit an assault , it appears to me that he is equally entitled to commit a trespass.’ ”

Lord Justice PERSON further considered that another precedent of relevance for the applicant ’s case was PERSON v. Chief Police Constable of ORG reported in The ORG on DATE ) :

“ In that case police officers had gone into a house where a child was being held in a man ’s arms . The police officers said that they had reason to think that a breach of the peace might occur between the man and his mistress . But a question arose as to whether the mistress had authority to give an invitation to the police officers to come in . The Lord Chief Justice when giving his judgment said :

‘ Regardless of the invitation , there was sufficient [ ground ] to justify the police entering the house on the basis that they genuinely suspected a danger of breach of the peace occurring.’ ”

Lord Justice PERSON then recalled that the judgment in PERSON v. PERSON had been subjected to criticism in that it had appeared to infringe the basic principle that the law would not intervene until an offence had actually been committed . He also noted that it had been suggested that the precedent established in PERSON v. PERSON should be limited to public meetings , and continued :

“ Having the benefit of argument , I am satisfied that ORG in section CARDINAL(CARDINAL ) [ of LAW ] has now recognised that there is a power to enter LOC to prevent a breach of the peace as a form of preventive justice . I can see no satisfactory basis for restricting that power to particular classes of LOC such as those where public meetings are held . If the police reasonably believe that a breach of the peace is likely to take place on private LOC , they have power to enter those LOC to prevent it . The apprehension must of course be genuine and it must relate to the near future . ”

Mindful of the practical difficulties of using the power correctly and sensibly in domestic situations , Lord Justice PERSON commented that :

“ … when exercising his power to prevent a breach of the peace a police officer should act with great care and discretion ; this will be particularly important where the exercise of his power involves entering on private property contrary to the wishes of the owners or occupiers . The officer must satisfy himself that there is a real and imminent risk of a breach of the peace , because if the matter has to be tested in court thereafter there may be scrutiny not only of his belief at the time but also of the grounds for his belief . ”

Relying on the facts as established by ORG , Lord Justice PERSON considered that the police officers entered the applicant ’s house to prevent a breach of the peace and were reasonable in concluding that there was a danger of such a breach . The other judges , Lords Justices PERSON and PERSON agreed . Leave to appeal to ORG was refused .

On DATE the applicant applied to ORG for leave to appeal against ORG decision of DATE . On CARDINAL DATE ORG refused the application .

Section CARDINAL of the CARDINAL Act sets out the primary circumstances in which a police constable may enter and search premises . According to section CARDINAL(CARDINAL)(e ) , a police officer may enter any premises for the purposes of saving life or limb or preventing serious damage to property . Whilst section CARDINAL ) abolishes all common - law rules under which a police officer previously had power to enter premises without warrant , section CARDINAL(CARDINAL ) provides :

“ Nothing in subsection ( CARDINAL ) affects any power of entry to deal with or prevent a breach of the peace . ”

Breach of the peace DATE which does not constitute a criminal offence ( NORP v. County ORG , ex parte ORG Commissioner [ DATE ] CARDINAL ORG Bench Reports CARDINAL ) – is a common - law concept dating back to DATE . However , as Lord PERSON , giving judgment in ORG in the case of NORP v. PERSON ( [ DATE ] CARDINAL Queen ’s Bench Reports CARDINAL ) remarked in DATE :

“ A comprehensive definition of the term ‘ breach of the peace’ has very rarely been formulated … ” ( p. CARDINAL )

He continued :

“ We are emboldened to say that there is likely to be a breach of the peace whenever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault , an affray , a riot , unlawful assembly or other disturbance . ” ( p. CARDINAL )

NORP In DATE , in a differently constituted ORG giving judgment in NORP v. Chief Constable of GPE and GPE , ex parte ORG ( [ DATE ] ORG Reports CARDINAL ) , which concerned a protest against the construction of a nuclear power station , Lord PERSON , Master of the Rolls , defined “ breach of the peace ” more broadly , as follows :

“ There is a breach of the peace whenever a person who is lawfully carrying out his work is unlawfully and physically prevented by another from doing it . He is entitled by law peacefully to go on with his work on his lawful occasions . If anyone unlawfully and physically obstructs the worker DATE by lying down or chaining himself to a rig or the like – he is guilty of a breach of the peace . ” ( p. CARDINAL )

In a subsequent case before ORG ( PERSON v. Director of Public Prosecutions [ DATE ] CARDINAL Weekly Law Reports CARDINAL ) , Mr Justice PERSON followed ORG , rather than ex parte ORG , in holding that there must be a risk of violence before there could be a breach of the peace . However , it was not essential that the violence be perpetrated by the defendant , as long as it was established that the natural consequence of his behaviour would be to provoke violence in others :

“ The conduct in question does not itself have to be disorderly or a breach of the criminal law . It is sufficient if its natural consequence would , if persisted in , be to provoke others to violence , and so some actual danger to the peace is established . ” ( p. DATE )

In another case before ORG , PERSON and PERSON v. Director of Public Prosecutions ( [ DATE ] Justice of the Peace Reports CARDINAL ) Lord Justice PERSON stated :

“ … the court would surely not find a [ breach of the peace ] proved if any violence likely to have been provoked on the part of others would be not merely unlawful but wholly unreasonable – as of course , it would be if the defendant ’s conduct was not merely lawful but such as in no material way interfered with the other ’s rights . A fortiori , if the defendant was properly exercising his own basic rights , whether of assembly , demonstration or free speech . ” ( p. CARDINAL )

The common - law power of the police to enter private property to prevent a breach of the peace , as preserved by section CARDINAL(CARDINAL ) of LAW , was defined by Lord Chief Justice PERSON in PERSON cited above :

“ I think that there is quite sufficient ground for the proposition that it is part of the preventive power , and , therefore , part of the preventive duty , of the police , in cases where there are such reasonable grounds of apprehension as the justices have found here , to enter and remain on private LOC . It goes without saying that the powers and duties of the police are directed , not to the interests of the police , but to the protection and welfare of the public . ( p. CARDINAL )

… I am not at all prepared to accept the doctrine that it is only where [ a breach of the peace ] has been , or is being , committed , that the police are entitled to enter and remain on private LOC . On the contrary , it seems to me that a police officer has ex virtute officii full right so to act when he has reasonable ground for believing that [ a breach of the peace ] is imminent or is likely to be committed . ” ( p. CARDINAL )

The continued existence of the common - law power of entry to prevent a breach of the peace and its applicability to circumstances of a domestic quarrel was recognised in PERSON v. Chief Constable of ORG ( [ DATE ] Criminal Law Reports DATE ) , where the Lord Chief Justice said :

“ Regardless of the invitation , there was sufficient [ ground ] to justify the police entering the house on the basis that they genuinely suspected a danger of breach of the peace occurring . ”


Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of association);Respondent State to take individual measures (Article 46-2 - Individual measures);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Luzius Wildhaber;Nicolas Bratza;Paul Mahoney

The applicant was born in DATE and lives in GPE ( in the province of GPE ) . He is a judge .

At the time he lodged the application , he was acting president of ORG . On DATE , following an inquiry by ORG for ORG , the Minister of ORG instituted disciplinary proceedings against the applicant on account of his membership of a ORG lodge affiliated to ORG di PERSON . The Minister accused him of having been a PERSON from DATE until DATE and of having thereby breached LAW no . CARDINAL of CARDINAL DATE ( see paragraph CARDINAL below ) .

In a decision of DATE , the disciplinary section of ORG ( Consiglio Superiore della Magistratura ) found that the applicant had committed the offences of which he was accused and gave him a reprimand ( censura ) . It stated that from DATE onwards it should have been possible to “ have a clear idea of the loss of integrity resulting from membership of the NORP ... because of the degeneration brought about when a number of people came together within the PCARDINAL lodge with plans to take control of the public authorities and subvert democratic institutions , and because of the collusion of certain ORG lodges with the ORG and organised crime ” . The disciplinary section added that the directives issued by ORG on DATE and DATE ( see paragraphs CARDINAL and CARDINAL below ) , which emphasised – the second one in particular – the substantial conflict between membership of the NORP and membership of the judiciary , were to be seen in the context of such developments . The decision also stated that it was contrary to disciplinary rules for a judge to be a PERSON , for the following reasons : the incompatibility between the ORG and judicial oaths , the hierarchical relationship between NORP , the “ rejection ” of ORG justice in favour of ORG “ justice ” and , lastly , the indissoluble nature of the bond between NORP , even in the case of a member who wished to leave the organisation .

The disciplinary section of ORG stated , lastly , that the applicant 's alleged ignorance of the institutional debate on PERSON merely served to confirm the existence of conduct punishable under LAW . In its opinion , such conduct was characterised by a lack of diligence , caution and wisdom in dealing with a situation that posed a threat to the values protected by that Article .

On DATE the applicant appealed on points of law to ORG . In the CARDINAL grounds of his appeal he alleged a breach of LAW , challenged the arguments used in support of the finding that judicial office was incompatible with membership of the NORP , and complained that no reasons had been given for the conclusion that a judge would be discredited by belonging to the NORP .

On DATE ORG lodged a cross - appeal . ORG , sitting as a full court , examined the case on DATE and , in a judgment of DATE , dismissed the applicant 's appeal .

It held , firstly , that the application of LAW was limited by the constitutional principles of the impartiality and independence of the judiciary , principles which should be taken to prevail over the right to freedom of association . ORG further held that the disciplinary section of ORG had based its decision mainly on the directive of DATE in which the ORG had emphasised that judicial office was incompatible with membership of the Freemasons .

The applicant maintains that his career has been at a standstill since the disciplinary section 's decision : he was declared unsuitable for a post as judge of ORG ; furthermore , the judicial council for his district stated that , because of the reprimand , it was unable to give an opinion on his suitability for a post as president of a district court .

Lastly , the applicant states that he has been transferred to GPE ; however , he has not produced any evidence that that decision was linked to the sanction imposed on him .

The relevant provisions of the LAW are the following :

“ ORG may form associations freely , without authorisation , for purposes not prohibited for individuals by the criminal law .

Secret associations and associations pursuing , even indirectly , a political aim through organisations of a military nature shall be prohibited . ”

“ No one shall be removed from the jurisdiction of a lawfully established court .

No one shall be punished save in accordance with a law in force at the time when the offence was committed .

No one shall be subjected to security measures except in cases provided for by law . ”

“ All citizens shall have the duty to be loyal to the Republic and to comply with the LAW and the laws .

ORG to whom public offices are entrusted shall perform them with discipline and honour , and take an oath where it is required by law . ”

“ Public officials shall be at the exclusive service of the nation .

If they are members of ORG they shall be promoted only by seniority .

The right to become members of political parties may be limited by law in the case of members of the judiciary , professional members of the armed forces on active duty , police officials and officers , and diplomatic and consular representatives abroad . ”

“ Justice shall be administered in the name of the people . Judges shall be beholden only to the law . ”

“ Reasons shall be stated for all judicial decisions .

An appeal on points of law to ORG for a breach of the law shall always be allowed against judgments and measures concerning personal freedom delivered by the ordinary or special courts . This provision may be waived only in the case of sentences pronounced by military courts in time of war .

Appeals to ORG against decisions of the PERSON and ORG shall be allowed only on grounds pertaining to jurisdiction . ”

Royal Legislative Decree no . CARDINAL of CARDINAL DATE ( “ the DATE decree ” ) concerns the safeguards afforded to members of the ORG legal service ( guarentigie della magistratura ) .

Article CARDINAL of the decree provides that any judge who “ fails to fulfil his obligations or behaves , in the performance of his duties or otherwise , in a manner which makes him unworthy of the trust and consideration which he must enjoy or which undermines the prestige of the judiciary ” will incur a disciplinary sanction .

The Constitutional Court , when asked to give a ruling as to whether LAW decree was compatible with LAW , held that , in disciplinary proceedings against judges , the principle of lawfulness applied as a fundamental requirement of the rule of law and was a necessary consequence of the role conferred on the judiciary by LAW ( judgment no . CARDINAL of CARDINAL DATE , § CARDINAL ) .

However , with regard to the fact that DATE did not specify the types of conduct which might be regarded as unlawful , ORG pointed out that it was not possible to give examples of every type of conduct which might undermine the values guaranteed by that provision : the trust and consideration which a judge must enjoy and the prestige of the judiciary . It considered that those values amounted to principles of professional conduct which could not be included in “ guidelines laid down in advance , because it [ was ] not possible to identify and classify every example of reprehensible conduct which might provoke a negative reaction in society ” ( ibid . , § CARDINAL ) . ORG subsequently reiterated that the earlier laws governing the same subject matter had included a provision of general scope alongside the provisions penalising specific conduct , that the proposals for reform in this field had always been worded in general terms and that the same was true for other professional categories . It concluded : “ The provisions in this area can not but be of general scope because specific guidelines would have the effect of legitimising types of conduct which were not expressly mentioned , but which nonetheless attracted society 's opprobrium . ” It added that those considerations justified the broad scope of the rule and the wide margin of appreciation conferred on a body which , acting within the guarantees inherent in any judicial procedure , was DATE by virtue of its composition – particularly well qualified to assess whether the conduct considered in each case did or did not undermine the protected values ( ibid . , § CARDINAL ) .

ORG considered , lastly , that such an interpretation was consistent with its case - law on the subject of lawfulness ( ibid . , § CARDINAL ) . It stated that , as it had previously held , “ the principle of lawfulness [ was ] applicable not only by means of a rigorous and exhaustive description of individual cases , but sometimes also through the use of expressions that are sufficient to determine the rule with certainty and to ascertain whether a particular type of conduct has breached the principle ” .

It further held : “ ' open - ended ' provisions which penalise unlawful types of conduct by reference to concepts based on common experience or objectively understandable ethical and social values are fully compatible with the principle of lawfulness . ”

ORG added that , with regard to the provisions in issue , such interpretation criteria appeared more valid in a disciplinary context because , in comparison with criminal offences , disciplinary offences aroused less of a reaction in society and had less of an impact on the personal situation of the individual concerned , and also because the possibility of conduct undermining the protected values was greater than in the case of criminal offences .

It further stated that the reference in DATE to the trust and consideration which a judge must enjoy and to the prestige of the judiciary was not objectionable as those concepts could be determined according to general opinion .

Accordingly , ORG held that the constitutional provisions in issue had not been infringed , since there had been no breach of the principles of lawfulness and of the independence of the judiciary .

Law no . CARDINAL of DATE contains provisions on the implementation of LAW ( right of association ) in respect of secret associations and on the dissolution of the “ PCARDINAL ” lodge . Section CARDINAL provides that membership of a secret association is a criminal offence .

With regard to civil servants , section CARDINAL provides that disciplinary proceedings must also be brought against them before a special committee constituted according to very precise rules . However , where judges of the ordinary , administrative and military courts are concerned , jurisdiction is vested in the relevant disciplinary bodies .

On DATE ORG adopted a directive after holding a debate – further to a message from the Head of ORG , who acts as its president DATE on the incompatibility of judicial office with membership of the NORP . The proceedings of that meeting ( the debate and the text of the directive ) were published in the Official Bulletin ( PERSON consiliari , pp . CARDINAL - CARDINAL ) under the heading “ Report on the incompatibility of judicial office with membership of the NORP ” . An introductory note states that the report was compiled by ORG . A copy of the report was sent to the President of GPE and the speakers of the ORG and ORG .

According to the directive , “ judges ' membership of associations imposing a particularly strong hierarchical and mutual bond through the establishment , by solemn oaths , of bonds such as those required by ORG lodges raises delicate problems as regards observance of the values enshrined in LAW ” .

ORG added that it was “ undoubtedly [ within its ] powers to verify compliance with the fundamental principle of LAW , according to which ' judges are beholden only to the law ' ” . It continued : “ this scrutiny entails ... taking care to ensure that , in discharging their duties , all judges respect – and are seen to respect – the principle of being beholden to the law alone . ”

ORG then referred to ORG judgment no . CARDINAL of CARDINAL DATE , in which judges ' freedom of thought had been weighed against their obligation to be impartial and independent ( see paragraph CARDINAL above ) .

It added : “ it has to be stressed that among the types of conduct of a judge to be taken into consideration for the requirements of the exercise of the administrative activity peculiar to the ORG , there is also , beyond the limit laid down by PERSON no . CARDINAL of DATE [ see paragraph CARDINAL above ] , the acceptance of constraints which ( a ) are superimposed on the obligation of loyalty to LAW and of impartial and independent exercise of judicial activity and ( b ) undermine the confidence of citizens in the judiciary by causing it to lose its credibility . ”

Lastly , ORG considered it necessary “ to suggest to the Minister of Justice that consideration be given to the advisability of proposing restrictions on judges ' freedom of association , to include a reference to all associations which – on account of their organisation and ends – entail for their members particularly strong bonds of hierarchy and solidarity ” .

On DATE ORG adopted a further directive .

It stated that the question whether membership of the NORP was compatible with judicial office had hitherto given rise solely to considerations concerning judges ' career development and access to positions of leadership . Following criticism from certain political figures , including the NORP President , to the effect that such an approach was unconstitutional , it had proved necessary to clarify the matter from a legal point of view .

Referring to judges ' duties of loyalty and obedience , and having pointed out that the freedom of association for the purpose of professing ORG ideas was not being called into question on a general level , ORG emphasised , however , that the performance of judicial duties was incompatible with membership of the NORP in GPE on account of the association 's secret nature and the means of action and aims of the country 's ORG lodges .


Violation of Art. 6-1;Violation of Art. 13;Violation of P1-1;Remainder inadmissible;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings

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

NORP In DATE the applicant instituted proceedings in LOC ( the “ FAC ” ) against ORG of ORG ) , seeking the recovery of unpaid salary .

On DATE ORG allowed her claims and ordered the ORG to pay the applicant ORG CARDINAL,CARDINAL.CARDINAL in compensation . On DATE and DATE , ORG paid the applicant ORG CARDINAL.CARDINAL in execution of the judgment .

On DATE the applicant instituted proceedings in ORG against ORG , seeking the full execution of the judgment of DATE . She also sought a declaration of unlawfulness as to the actions of ORG in deciding to join the pending writs of execution against the ORG .

On DATE ORG rejected her claims as unsubstantiated . In particular the court found that the judgment of DATE could not be fully executed due to the lack of funds of the ORG .

On DATE ORG ( the “ ORG ” ) rejected the applicant ’s cassation appeal against the decision of DATE .

The applicant ’s complaints with a view to instituting supervisory proceedings , lodged with the President of ORG , were rejected on DATE as being unsubstantiated .

On DATE ORG informed the applicant that there were CARDINAL pending writs of execution that had been issued against ORG for a total sum of ORG . It also informed the applicant that insufficient funds were available to execute the decision . The applicant was invited to accept ORG CARDINAL in execution of the judgment .

On DATE the Deputy President of ORG lodged a protest with the ORG of that court against the judgment of DATE of FAC . On DATE the Presidium of ORG quashed the decisions of DATE and DATE and remitted the case for fresh consideration .

During DATE the applicant received UAH CARDINAL as a result of enforcement measures of ORG .

On DATE ORG rejected the applicant ’s claims as being unsubstantiated . On DATE ORG upheld that decision . In particular , it held that , if there are a number of execution proceedings pending against the same legal entity , these proceedings can be joined ( зведене виконавче провадження ) . It also informed the applicant that the partial enforcement of judgments authorised by ORG was lawful .

At the time of lodging the application , the debt owed to the applicant amounted to UAH MONEY .

On DATE the enforcement proceedings were terminated due to the ORG ’s lack of funds .

On DATE the applicant informed the ORG that the judgment given in her favour remained unenforced .

On DATE the applicant informed the ORG that she had received the full amount of the debt due to her . She also confirmed that she had received an additional sum of ORG CARDINAL in compensation . On DATE the Government informed the ORG that the judgment had been enforced in full .

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


The applicant is a NORP citizen , born in DATE , and currently serving a prison sentence in GPE , the GPE . Before the ORG he is represented by PERSON . PERSON , a lawyer practising in GPE .

On DATE the applicant was taken into police custody ( inverzekeringstelling ) on suspicion of incitement to murder , followed by pre - trial detention ( voorlopige hechtenis ) on DATE . The applicant denied any involvement in the offence of which he was suspected . On CARDINAL DATE the public prosecutor ordered the applicant ’s release as the maximum period of time during which pre - trial detention was allowed was nearing its end . However , in his decision of CARDINAL DATE the prosecutor added that the investigation would continue .

The applicant was again taken into pre - trial detention on suspicion of the same offence on DATE by ORG PERSON ) of GPE . It appeared that on DATE a witness , X. , had made a statement to the police to the effect that the applicant had told him in DATE to shoot a person . The Investigating Judge considered that this constituted a new serious grievance against the applicant , justifying a remand order ( bevel tot bewaring ) .

A pro forma hearing before ORG ( Arrondissementsrechtbank ) of GPE was set for DATE on which date the hearing was adjourned until DATE . ORG convicted the applicant on DATE of being an accessory to the offence of incitement to murder and sentenced him to CARDINAL years’ imprisonment with deduction of the time spent in pre - trial detention .

Both the applicant and the public prosecutor filed an appeal with ORG ( Gerechtshof ) of GPE . Before this ORG hearings took place on DATE and CARDINAL DATE . On this last occasion counsel for the applicant argued that the reasonable time as referred to in LAW had been exceeded in view of the fact that it had taken DATE after the applicant had been taken into police custody before the case had come to trial . For this reason the prosecution should either be declared inadmissible or the sentence to be imposed on the applicant should be mitigated .

On DATE ORG quashed the judgment of ORG for technical reasons , convicted the applicant of the same offence and sentenced him to DATE imprisonment with deduction of the time spent in pre - trial detention . ORG based this conviction to a decisive extent on the statement made by the witness X. to an Investigating Judge on DATE . In respect of the period of time which had elapsed before the case came to trial , ORG held that the decision to order the applicant ’s second period of pre - trial detention had been justified in view of the new and serious grievances against him which had only come to light at a later stage and which had not yet been examined . A reasonable time had therefore not been exceeded .

The applicant filed an appeal in cassation with ORG ( PERSON ) , again raising the argument that a reasonable time had been exceeded . The applicant argued that the expeditious handling of the case subsequent to the witness ’s statement on DATE did not take away from the fact that prior to that time the prosecuting authorities had failed to carry out any kind of activity .

On DATE ORG rejected the applicant ’s appeal in cassation pursuant to LAW ( Wet op de Rechterlijke Organisatie ) as not prompting a determination of legal issues in the interest of legal unity and legal development .


David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Stanislav Pavlovschi

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

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

The applicant ’s wife died on DATE . They had no children from the marriage . On DATE , the applicant made a claim for widows’ benefits under the new system in place as from DATE . On DATE the applicant was informed that his claim had been disallowed as he was not entitled to the benefits at issue because his wife had died before DATE . On DATE the applicant made a request for reconsideration . On DATE his claim was reconsidered but the decision remained unchanged . On an unspecified date the applicant appealed . On DATE the appeal tribunal confirmed the previous decision .

The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under GPE law .

The domestic law relevant to this application is set out in Runkee and White v. GPE , no . CARDINAL , § § CARDINAL , DATE .