CASE OF BROGAN AND OTHERS v. THE UNITED KINGDOM (ARTICLE 50)

Non-pecuniary damage - finding of violation sufficient

C. Russo;J.A. Carrillo Salcedo;N. Valticos;B. Walsh

ORG The case was brought before ORG on DATE by ORG ( " the Commission " ) and on CARDINAL DATE by ORG and GPE ( " the Government " ) . It originated in CARDINAL applications ( nos . CARDINAL , CARDINAL , CARDINAL and CARDINAL ) against GPE which had been lodged with the Commission , on DATE , CARDINAL DATE , CARDINAL DATE and PERCENT DATE respectively , by CARDINAL NORP citizens , Mr PERSON , Mr PERSON , Mr PERSON and Mr PERSON .

As regards the facts of the case , reference is made to CARDINAL to CARDINAL of the ORG ’s judgment of CARDINAL DATE ( " the principal judgment " - Series A no . CARDINAL-B , pp . PERCENT ) .

In that judgment the ORG held , inter alia :

( a ) that there had been no violation of LAW ( LAW , the applicants’ detention having been based on a reasonable suspicion of commission of an offence and effected for the purpose of bringing them before the competent legal authority ( paragraphs CARDINAL of the reasons and point CARDINAL of the operative provisions , pp . CARDINAL and DATE ) ;

( b ) that there had been a violation of LAW ( LAW ) in respect of all CARDINAL applicants , in that they had not been brought promptly before a judge or other officer authorised by law to exercise judicial power ( paragraphs CARDINAL of the reasons and point CARDINAL of the operative provisions , pp . CARDINAL and DATE ) ;

( c ) that there had been no violation of LAW ( LAW ) , the applicants having been entitled to take proceedings of the nature required by this provision ( paragraphs CARDINAL of the reasons and point CARDINAL of the operative provisions , pp . CARDINAL and DATE ) ;

( d ) that there had been a violation of LAW ( LAW ) in respect of all CARDINAL applicants , in that they had no enforceable claim for compensation before the domestic courts for the breach of LAW ( LAW ) ( CARDINAL of the reasons and point CARDINAL of the operative provisions , pp . CARDINAL and DATE ) ;

( e ) that there was no call to examine the application of LAW ) in relation to reimbursement of any costs or expenses incurred , the applicants not having submitted any claim in this respect and this not being a matter which the ORG had to examine of its own motion ( paragraph CARDINAL of the reasons and point CARDINAL of the operative provisions , pp . CARDINAL and DATE ) .

In their memorial of CARDINAL DATE the applicants had claimed , under LAW ) of the LAW , compensation for prejudice suffered . They contended that an award of exemplary damages would be appropriate and suggested , notably , that compensation should be calculated on the basis of MONEY for TIME of wrongful detention .

In the principal judgment the ORG held that the question of the application of LAW ) in relation to this claim was not ready for decision ; accordingly , it reserved the said question in that respect and invited the Government to submit their written comments within DATE and , in particular , to notify ORG of any agreement reached between them and the applicants ( paragraph CARDINAL of the reasons and point CARDINAL of the operative provisions , pp . CARDINAL and DATE ) .

In accordance with the foregoing invitation and the President ’s directions , there were filed at the registry , on DATE , a memorial of the Government and , on DATE , observations of the applicants . These documents revealed that no agreement as aforesaid had been reached .

On DATE the Delegate of the Commission lodged observations on the question of the application of Article CARDINAL ( article CARDINAL ) in the present case .

The ORG decided on DATE that there was no call to hold a hearing .


Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life);Non-pecuniary damage - award

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall

ORG The first applicant , PERSON , was born in DATE and lives in PERSON . The second applicant , PERSON , is his daughter .

On DATE the first applicant ’s wife , ORG , together with the second applicant , then aged CARDINAL , moved out of the flat in which they had been living with the first applicant . ORG subsequently filed a petition for divorce .

On DATE the first applicant and his wife , with whom the second applicant was living , signed an agreement on access arrangements .

On DATE the first applicant filed a request with ORG ( “ the FAC ” ) seeking formal determination of the access arrangements , claiming that since DATE PERSON had denied him access to the second applicant .

During DATE PERSON gave a number of statements at FAC , opposing contact between the applicants , stating that the first applicant represented a danger to her and the second applicant . She also lodged a criminal complaint against the first applicant for endangering their safety .

On DATE the expert committee of FAC submitted an opinion in the case .

On DATE a hearing was held at FAC . While the first applicant attended the hearing , ORG refused to attend , claiming that she did not feel safe in the presence of the first applicant .

On DATE FAC issued an order granting the first applicant TIME a week with the second applicant , taking into account the expert committee ’s opinion and the fact that , at the supervised meeting between the applicants , the second applicant had not appeared to be afraid of the first applicant but , on the contrary , pleased to see him . FAC did not follow the first applicant ’s proposal that he should be allowed to pick the second applicant up at her nursery ; instead it ordered ORG to bring the second applicant to a meeting point at a local train station .

On DATE , further to an appeal by ORG , ORG , Family and Social Affairs ( “ the Ministry ” ) modified the order in part . However , in essence , the access arrangements remained unaffected . The access order therefore became final and enforceable on DATE .

ORG failed to comply with the order . She did not bring the second applicant to the meeting - point specified therein .

On DATE the first applicant requested enforcement of the order . After hearing evidence from both parties , on DATE ORG ( “ the Unit ” ) allowed the enforcement and ordered ORG to hand the second applicant over to the first applicant at the next meeting . In addition , the ORG decided that if ORG failed to do so she would be ordered to pay a fine of CARDINAL NORP tolars ( SIT ) ( MONEY ( ORG ) ) . It also noted that the fine could be increased in the event of further failure to comply .

M.E. continued to refuse the first applicant all access to the second applicant .

Further to the first applicant ’s thirteen notices of non - compliance by ORG , on CARDINAL , DATE , DATE and DATE , CARDINAL May and DATE the ORG issued orders imposing fines which increased from SIT CARDINAL to SIT CARDINAL ( approximately ORG CARDINAL ) . The orders were forwarded to the tax authorities for execution .

M.E. appealed against the orders .

According to letters addressed to the court by FAC on DATE and CARDINAL DATE , in the context of proceedings no . P CARDINAL , ORG and the ORG attempted to organise supervised meetings between the applicants , but ORG refused to cooperate .

On DATE the ORG quashed the impugned enforcement orders , finding that ORG had not been informed of the first applicant ’s notices concerning non - compliance and had had no opportunity of participating in the proceedings and presenting arguments in her favour . ORG also found that the ORG had not examined the situation by verifying whether the meetings had actually failed to take place , and , if so , whether there had been justifiable reasons for such failure . ORG , however , noted that the order determining access arrangements remained enforceable and could not be challenged in those proceedings . The ORG was ordered to reexamine the notices . Neither of the parties challenged the decision before ORG and it therefore became final on DATE .

Further to changes in legislation which stipulated that the first - instance authority should be in charge of enforcement , the ORG transferred the file to FAC on DATE . There are no indications in the case file that any steps were subsequently taken by FAC in the context of these proceedings .

On DATE , further to the divorce petition filed by ORG , ORG issued an interim decision granting PERSON provisional custody ( varstvo in vzgoja ) of the second applicant pending the outcome of the proceedings . This decision was upheld by ORG on DATE .

On DATE ORG issued a judgment granting the first applicant and ORG a divorce , granting ORG custody of the second applicant and fixing the amount the first applicant had to pay in child support .

On DATE ORG upheld ORG ’s appeal in part and increased the child support . This was a final decision in these proceedings .

On DATE the first applicant lodged an application for custody of the second applicant , relying on the fact that ORG was denying them contact . He also requested an interim order under which the second applicant would be placed in his custody pending the outcome of the proceedings , and the appointment of a curator ad litem to represent the second applicant ’s interests in the proceedings . He further requested that the case be granted priority . On DATE the applicant submitted documents in support of his request for exemption from obligation to pay the court fees .

The hearing scheduled for DATE was cancelled at the first applicant ’s request .

At a hearing held on DATE the first applicant requested to have the case dealt with through mediation . The request was allowed by the court . However , it would appear that ORG showed no interest in resolving the issues in that manner .

On DATE the first applicant requested the President of the court to establish why no hearing had been scheduled . DATE a hearing was scheduled for DATE . That hearing was then adjourned as ORG did not attend . LOC was requested to conduct an interview with ORG and to inform the court about the implementation of contact between the applicants .

At the hearing of CARDINAL May CARDINAL , the first applicant requested that the proceedings be stayed , after having had an opportunity to see the second applicant at the school ’s parent - teacher meetings .

NORP However , as GPE continued to refuse any contact between the applicants , on DATE the first applicant requested that the proceedings be resumed and a hearing was scheduled for DATE . It was adjourned as the court decided , further to the first applicant ’s request , to appoint an expert psychologist . On DATE the court appointed expert D.T. to produce an opinion in the case .

On DATE the first applicant lodged written submissions and requested the court to urge the expert to prepare the opinion . In addition , he made an alternative request seeking , inter alia , a change in the access arrangements and to have proceedings Pn CARDINAL/CARDINAL ( see paragraphs CARDINAL - CARDINAL below ) joined to the current set of proceedings . In these and subsequent submissions the second applicant was also mentioned as a plaintiff .

On DATE and DATE the first applicant lodged further written submissions . In the first set , he submitted that he had had no access to the second applicant . He also asked the court to appoint another expert , as D.T. had failed to produce an opinion . In the second set of submissions the first applicant urged the court to issue the interim custody order ( see paragraph CARDINAL above ) and added an alternative request for an interim access order . In the latter , he emphasised the need to organise the visits in a manner that would prevent ORG from obstructing them . Accordingly , he proposed to pick the second applicant up from school , after her lessons . The first applicant also informed the court that , to his knowledge , ORG was refusing to be examined by D.T. , and complained about the passivity of the court . In addition , the first applicant alerted the court to the fact that he had had no access to the second applicant in DATE , except on CARDINAL occasion at her school .

In the meantime , the appointed expert informed the court on DATE that he was unable to prepare the opinion as ORG had refused to cooperate . On DATE , the court informed the first applicant that it would decide on the interim orders only when the expert opinion was available .

On DATE the first applicant lodged supervisory appeals with the President of the court and ORG complaining about the passivity of the judge .

On DATE the first applicant again urged the court to decide on the case , stressing that PERSON was deliberately avoiding examination by the expert .

On DATE the judge prepared a report in reply to supervisory appeal . DATE the President of the court replied to the first applicant . He noted that no interference with the judge ’s decision concerning the appointment of the expert was permitted and that there were no reasons for any measures to be taken in response to the first applicant ’s supervisory appeal . He also informed him that the main reason for the delay in the proceedings was ORG ’s failure to cooperate and reassured him that if the expert could still not examine ORG court would decide on the interim access order in the absence of an expert opinion .

On DATE the first applicant requested the expert , the judge and the President of the court to step down from the case , arguing that they were inactive . His requests were dismissed on the ground that the statutory conditions for withdrawal were not fulfilled .

On DATE PERSON was examined by the expert .

On DATE the court held a hearing concerning the interim orders . Beforehand , it acquired information concerning the first applicant ’s criminal record and relevant information from FAC and ORG ’s bank . All parties were present at the hearing . Subsequently , on DATE , the court issued a decision rejecting the first applicant ’s application for provisional custody and upholding his alternative request for an interim access order . It noted that “ during the court proceedings the applicants had contact once in DATE at the school in PERSON and , subsequently , twice at the school in GPE ” . The applicants were granted the right to spend , inter alia , TIME a week together , whereby the first applicant would pick the second applicant up after school and return her to ORG at TIME , plus DATE and part of DATE . These arrangements were to be implemented after CARDINAL DATE preparatory meetings . The court also decided that ORG could be subjected to a fine of SIT QUANTITY ( approximately EUR CARDINAL,CARDINAL ) if she was found to be preventing or obstructing contact between the applicants . The second applicant was by then DATE .

As GPE and the second applicant moved to GPE , the PERSON Social Welfare Centre ( “ the FAC ” ) obtained jurisdiction in the case . On CARDINAL , DATE and DATE the applicants had contact in the context of the preparatory meetings held at FAC . The ORG assessed the visits very positively . In answer to the court ’s request , ORG informed it that subsequent contact between the applicants did not appear to have been hindered .

On DATE the first applicant lodged written submissions complaining that on certain occasions he had been denied access to the second applicant . He also requested that ORG be penalised as stipulated in the decision of CARDINAL DATE .

On DATE the expert D.T. issued a report which assessed the relationship between the applicants in positive terms , finding that the second applicant showed affection for the first applicant and that there were no reasons to doubt the latter ’s capacity to be a parent . D.T. further found that ORG had in DATE changed her attitude regarding the relationship between the applicants and gained some trust in the first applicant . D.T. also noted that the second applicant was growing up with her mother and had expressed a wish to continue living with her .

On DATE the court ordered the first applicant to pay the expert ’s fees . The first applicant appealed on DATE . On DATE ORG upheld the order of the first - instance court , finding that the first applicant had undertaken to pay the fees for the expert whose appointment he had proposed .

In the meantime , on DATE , the first applicant received the expert opinion .

On DATE the court scheduled a hearing for DATE , which was adjourned sine die at ORG ’s request . PERSON stated that she would not be available during that period as she had given birth in DATE and was breastfeeding .

On DATE the first applicant lodged a supervisory appeal , relying on section CARDINAL of the Act on Protection of the Right to a Hearing without Undue Delay ( “ the CARDINAL Act ” ) .

On DATE the President of the court , relying on section CARDINAL , paragraph CARDINAL of LAW , replied to the supervisory appeal stating that the hearing had been held on DATE , that is , within DATE of receipt of the supervisory appeal .

On DATE the court held a hearing . It joined proceedings Pn CARDINAL/CARDINAL to the existing proceedings . Since the first applicant insisted that the second applicant act as a second plaintiff and be represented in the proceedings by a curator ad litem ( see paragraph CARDINAL above ) , the court adjourned the hearing and appointed a lawyer to represent the second applicant .

On DATE the first applicant lodged preliminary written submissions in which he expressed his dissatisfaction with certain parts of the expert opinion and requested that a new expert be appointed .

DATE . On DATE the first applicant lodged a motion for a deadline , relying on LAW CARDINAL of LAW . On DATE the President of ORG rejected ( zavreči ) the motion . He found that the first applicant had not sufficiently explained his allegations of undue delay and therefore failed to satisfy the requirements of section CARDINAL , paragraph CARDINAL , point CARDINAL of LAW .

A hearing was scheduled for CARDINAL DATE but was cancelled at the request of the second applicant ’s representative .

The next hearing was held on DATE . At the hearing the parties agreed on new access arrangements . Under the terms of that agreement , the first applicant also withdrew his application for custody rights . In addition , the parties withdrew CARDINAL other claims – CARDINAL criminal complaint for defamation lodged by ORG against the first applicant and a civil complaint pursued by the first applicant against PERSON On DATE the proceedings were “ finally resolved ” ( see paragraph CARDINAL below ) .

On DATE the first applicant lodged a request for access arrangements in separate proceedings . In his request the first applicant noted that the access order issued in administrative proceedings had been ineffective and requested that the court grant an interim access order which would ensure contact between the applicants . In this connection , he requested to be granted the right to pick up the second applicant at her school , which would prevent ORG from hindering the access . In DATE and DATE the court tried to serve the request on ORG , but to no avail . The court then ordered that the request be served through ORG ’s employer .

In his written submissions of DATE the first applicant included the second applicant as a claimant .

On DATE the GPE pri ORG held a hearing . It found that it lacked jurisdiction to decide in the case and referred it to ORG .

On DATE the applicants requested the GPE pri ORG to transfer the case file to ORG .

On DATE the GPE pri ORG informed the first applicant that the case could not be transferred as the decision concerning the court ’s lack of jurisdiction had not yet become final owing to the lack of success in serving it on GPE

On DATE the case was transferred to ORG and was registered under number Pn CARDINAL .

On DATE the first applicant requested priority .

The court held a hearing on DATE in the absence of ORG The first applicant testified that he had had access to the second applicant only on CARDINAL occasions , namely on DATE , on CARDINAL DATE and on DATE . The judge informed the first applicant that an interim access order could not be issued as the final access order issued in administrative proceedings was still in force .

On DATE and DATE the first applicant filed written submissions .

On DATE ORG asked the first applicant to enclose a confirmation from the social welfare centre that an attempt had been made to reach an agreement concerning access rights as stipulated in the Marriage and Family Relations Act . It also noted that the advance for the payment of expert fees had not been paid . It appears from this decision that the second applicant , represented by her father , was also considered a claimant in the proceedings .

On DATE the court dismissed the request for new access arrangements as the first applicant had failed to submit the required documents . It seems , however , that this decision did not become final as on DATE the first applicant successfully requested that the proceedings be joined to proceedings P CARDINAL/CARDINAL ( see paragraph CARDINAL above ) .

Until DATE ORG were in principle responsible for taking decisions concerning access arrangements . The enforcement of such decisions could then be requested only in administrative proceedings . As regards the sanctions , LAW ( Zakon o splošnem upravnem postopku , ORG no . CARDINAL/CARDINAL ) provided in its section CARDINAL :

“ If the enforcement of a non - pecuniary obligation can not be achieved or achieved in time by the means specified in sections CARDINAL and CARDINAL of this law [ such as the imposition of administrative fines ] , it may , depending on the nature of the obligation concerned , be secured by direct coercion unless otherwise stipulated in the applicable legislation . ”

The Marriage and Family Relations Act ( “ the MFR Act ” , Zakon o zakonski zvezi in družinskih razmerjih , ( old ) Official Gazette of GPE no . CARDINAL/CARDINAL ) stated in its section CARDINAL that :

“ ... In the event of a divorce or annulment of marriage , parental rights ( roditeljska pravica ) shall be exercised by the parent who has custody of the child .

Decisions that are decisive for the development of a child , shall be taken by both parents together ....

If the parents can not reach an agreement , ORG shall decide . ”

On DATE the ORG delivered an important decision in which it found several provisions of the MFR Act concerning custody and access arrangements to be unconstitutional . Subsequently , an amendment was enacted by ORG no . CARDINAL/CARDINAL ) . It entered into force on DATE .

Further to the above - mentioned legislative changes , the courts acquired jurisdiction to adjudicate custody and access arrangements . Since then , parents have been able to reach an agreement ( outside divorce proceedings ) in non - contentious civil proceedings . If no agreement can be reached with the assistance of ORG , the issue of custody is decided in contentious civil proceedings . The issue of access arrangements can be decided in non - contentious civil proceedings if it is not raised together with the issue of custody ( sections CARDINAL , CARDINAL and CARDINAL as amended in DATE ) . In particular , sections CARDINAL and CARDINAL provide , as far as relevant :

If the parents , with the assistance of ORG , can not reach an agreement on the custody of children ( varstvo in vzgoja otrok ) , the court shall decide at the request of CARDINAL or both parents that all the children are in the custody of CARDINAL of them or that some children are in the custody of CARDINAL and the others in the custody of the other parent . The court may , of its own motion , decide to place all or some of the children in the custody of a third person . Before the decision is taken by the court , the opinion of ORG shall be obtained . The court shall take the child ’s view into account if the child expresses his or her view ...

“ A child has the right to have contact with both parents . Both parents have the right to have contact with their children . Contacts should be in the child ’s interest first and foremost .

The parent with whom the child lives ... shall avoid anything that hinders or prevents such contact . He or she must strive to maintain an appropriate attitude in the child in respect of contacts with the other parent ...

The court can withdraw or limit the right to contacts only if this is necessary for the protection of the child ’s interests ... ”

Section CARDINAL of the amended ORG states also that , if the custodial parent denies the non - custodial parent access to the child and contact can not be secured with the assistance of ORG , the court shall , at the request of the non - custodial parent , transfer custody to him or her if this is in the interest of the child .

DATE . In addition , the amended MFR Act annulled the previous section CARDINAL ( see paragraph CARDINAL above ) , providing instead , in sections CARDINAL and CARDINAL :

“ Minors shall be represented by their parents .

Letters or information to be served on the minor may be served effectively on any of the parents ; if the parents do not live together , they shall be served on the one with whom the child lives ... ”

“ Parental rights shall be exercised mutually by both parents in accordance with the child ’s best interests . If they can not reach an agreement , ORG shall assist .

When the parents do not live together and do not have joint custody , they shall decide mutually on all issues decisive for the child ’s development in accordance with the child ’s best interest . If they can not reach an agreement , ORG shall assist . Questions concerning the child ’s everyday life shall be decided by the custodial parent .

If the parents , even with the assistance of the social welfare centre , do not reach an agreement .... , the court decides on these issues .

Section QUANTITY states the circumstances in which parental rights can be withdrawn :

“ The parent who abuses his or her parental rights or abandons a child or demonstrates unwillingness to take care of the child or in any other way neglects his or her responsibilities shall be deprived of his or her parental rights by a court judgment . ”

Section CARDINAL of the amended LAW provides that cases covered by the LAW should be processed with priority .

Lastly , pursuant to the transitional provisions of the amended MFR Act , proceedings instituted before the entry into force of the amendments ( that is , before DATE ) were to be continued and completed before ORG . In such cases any appeal against the first - instance decision was still to be examined by ORG . However , where the first - instance decision was quashed by ORG , the proceedings were to be continued before the district court with territorial jurisdiction in accordance with the amended ORG .

The relevant provisions of LAW ( Zakon o pravdnem postopku , ORG no . CARDINAL , in force since DATE ) , read as follows :

“ In marital disputes and disputes concerning relations between parents and children the courts shall of their own motion take all steps necessary to safeguard the rights and interests of the children ...

In disputes concerning the custody and maintenance of children [ and in disputes concerning contacts between children and parents or other persons DATE added with the amendment of DATE , in force since CARDINAL May CARDINAL ] , the panel is not bound by the parties’ requests . Where so provided by the law , the panel may take decisions even without any request being made .

For the protection of the interests of the persons mentioned in the first paragraph , the panel may investigate facts which were not provided by the parties , and collect the information necessary for its decision ... ”

If there is a conflict of interests between the child and his or her statutory representative ( zakoniti zastopnik ’s interests . ”

“ During proceedings concerning marital disputes and disputes relating to relationships between parents and children , the court may , at the request of CARDINAL of the parties or of its own motion , issue interim orders ( začasne odredbe ) concerning child custody and maintenance as well as interim orders withdrawing or restricting access arrangements .

As regards the stay of proceedings , section CARDINAL of LAW provides :

“ ... the proceedings are stayed ( mirovanje postopka ) until a party proposes that they be continued . The proceedings may not be resumed until DATE after they were stayed . ”

The Act on the Protection of the Right to a Hearing without Undue Delay ( Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja , ORG no . DATE CARDINAL Act ” ) was passed by the ORG on DATE and entered into force on DATE .

DATE . LAW provides for remedies to expedite pending proceedings ( a supervisory appeal and a motion for a deadline ) . In addition to these acceleratory remedies , LAW also provides for the possibility of obtaining redress through a compensatory remedy , by instituting proceedings for just satisfaction within DATE of the “ final resolution ” of the case ( see paragraph CARDINAL below ) .

As regards the acceleratory remedies , a claimant may , during the first- and second - instance proceedings , that is the proceedings before the regular courts , use a supervisory appeal if he or she considers that the court is unduly protracting the decision - making . If the president of the court dismisses the supervisory appeal or , inter alia , fails to respond to the claimant within DATE , the claimant can lodge a motion for a deadline with the court hearing the case . The motion for a deadline is dealt with by the president of the higher court . He or she shall decide on the motion for a deadline within DATE of receiving it .

As regards the obligatory elements which must be included in a supervisory appeal and a motion for a deadline , section CARDINAL provides in the relevant part :

“ ( CARDINAL ) For the purposes of decision - making concerning the protection of the right to a trial without undue delay , the supervisory appeal [ the same applies to a motion for a deadline ] shall contain the following elements :

– personal or corporate name or any other name of the party , with address of permanent or temporary residence or registered office ;

– personal or corporate name or any other name of the representative or lawyer , with address of permanent or temporary residence or registered office ;

– indication of the court hearing the case ;

– reference number of the case or date on which the case was filed in the court ;

– indication of circumstances or other particulars concerning the case which demonstrate that the court is unduly protracting the decision - making ;

– handwritten signature of the party , representative or lawyer . ”

As to the claim for just satisfaction , sections CARDINAL , DATE and DATE of the CARDINAL Act provide that for the claimant to be able to lodge a claim for just satisfaction CARDINAL cumulative conditions must be satisfied . Firstly , during the first- and/or second - instance proceedings the claimant must have successfully availed himself of a supervisory appeal or have lodged a motion for a deadline , regardless of its outcome . Secondly , the proceedings must have been “ finally resolved ” ( pravnomočno končan postopek ) . The final resolution of the case refers in principle to the final decision against which no ordinary appeal lies . This would normally be the first- , or if an appeal has been lodged , the second - instance court ’s decision . The maximum amount of just satisfaction for non - pecuniary damage fixed by LAW is EUR CARDINAL,CARDINAL .

As regards proceedings terminated before DATE , section CARDINAL lays down the following transitional rules in relation to applications already pending before the ORG :

“ ( CARDINAL ) In cases where a violation of the right to a trial without undue delay has already ceased and the party has made a claim for just satisfaction with the international court before the date of implementation of this LAW , the ORG Attorney ’s ORG shall offer the party a settlement on the amount of just satisfaction within DATE of the date of receipt of the case referred by the international court for the settlement procedure . ...

( CARDINAL ) If the proposal for settlement referred to in paragraph CARDINAL of this section is not acceded to or ORG and the party fail to negotiate an agreement within DATE of the date on which the party made its proposal , the party may lodge a claim [ for just satisfaction ] with the competent court under this LAW ... ”

For a more detailed presentation of LAW , see GPE v. GPE , ( dec . ) no . CARDINAL , DATE .


Violation of Article 38 - Examination of the case-{general} (Article 38 - Examination of the case);Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

The applicant was born in DATE and lives in GPE .

On DATE at TIME the applicant , who at the material time was a student , was arrested in a yard of school no . CARDINAL by police officers while receiving a sum of money from another student .

The applicant was suspected of extortion and was taken to GPE police station no . CARDINAL ( “ FAC of GPE ” ) where he was locked in an office .

The applicant submits that CARDINAL of the police officers who had arrested him periodically entered the office , asked him questions and beat him .

The applicant was then taken to another office where CARDINAL more police officers were present . The officers explained to him that he had the right not to give evidence against himself .

According to the applicant , they then started to ask him questions , which he refused to answer . All CARDINAL officers started to beat him . CARDINAL of them forced the applicant to stay in a CARDINAL - squatting position while holding a metallic plate in his hands . The officer warned the applicant that if he failed to maintain the position , he would “ get a kick in his chest ” .

Allegedly , when the applicant dropped the plate , he was kicked in the chest and the beatings resumed . At CARDINAL point the applicant was kicked in the face . On the verge of losing consciousness , the applicant agreed to “ sign all the papers ” , after which he was placed in a cell .

On DATE at TIME the applicant was taken by a police officer to the casualty department of polyclinic no . CARDINAL where he was examined by a doctor . The doctor concluded that the applicant 's lower jaw was fractured and that he needed an urgent in - patient examination by a surgeon .

Following the doctor 's examination , the applicant was taken back to the police station where he was once again placed in a cell . TIME the applicant was taken to another police station , no . CARDINAL , where his fingerprints were taken .

On DATE at TIME the applicant was released .

On DATE of his release , the applicant was taken to ORG no . CARDINAL ( GPE клиническая больница № CARDINAL г. GPE ) for NORP treatment . The applicant was diagnosed as having a “ fracture of the lower jaw in the area of the right condylar process accompanied by a dislocation of the articular head ” . The medical report further stated that “ the lower jaw was abnormally mobile and the configuration of the face had changed due to a post - traumatic oedema in the right parotid area ” . In the course of his treatment the applicant underwent surgery to replant the articular head .

The applicant was discharged from hospital on DATE .

On an unspecified date criminal proceedings were instituted against the applicant , who was charged with extortion .

On DATE ORG of GPE ( ORG межмуниципальный суд северо-восточного административного округа г. PERSON ) decided , on a request by the applicant , to terminate the criminal proceedings against him on the basis of an LAW in respect of minors and women passed by ORG on DATE .

On an unspecified date the applicant 's defence counsel lodged an appeal against the decision of ORG claiming that the applicant was not guilty and that he should have been acquitted . The outcome of that appeal is unclear .

On DATE the applicant lodged a complaint with the Head of ORG of ORG ( начальник PERSON собственной безопасности ORG ) stating that he had been subjected to ill - treatment by police officers . His complaint contained a detailed description of the events and of all CARDINAL police officers involved . He also stated that CARDINAL of them had participated in his earlier arrest and that another was called ORG

It appears that on DATE the applicant 's mother lodged similar complaints with ORG ( ORG межрайонная прокуратура г. PERSON ) and ORG ( прокуратура г. PERSON ) . The case was assigned to Investigator PERSON of ORG of GPE .

On DATE the applicant lodged a complaint with ORG . In his complaint the applicant submitted that no decision , whether to institute or refuse to institute criminal proceedings , had been taken so far on the basis of his allegations of ill - treatment . He further submitted that pressure had been exerted by the investigators of police station no . CARDINAL on the witnesses in the criminal case against him and that his family had received threatening phone calls because they had complained that the applicant had been ill - treated .

On DATE the applicant 's mother lodged a complaint with ORG ( Генеральная прокуратура РФ ) . In her complaint she once again raised the issue of the applicant 's ill - treatment by the police officers . She further submitted that since DATE no effective investigation had been carried out . The case had been transferred from CARDINAL investigator to another and no forensic medical examination had yet been ordered . She also alleged that their family had received threatening phone calls .

By a letter of CARDINAL DATE Investigator PERSON informed the applicant 's mother that :

“ ... on DATE criminal proceedings no . DATE have been instituted under LAW of LAW [ ( Уголовный кодекс ORG ) ] on the basis of your complaint about the physical injuries caused to [ the applicant ] ” .

On DATE Investigator PERSON ordered a forensic medical examination to be carried out . The investigator found that :

“ On DATE [ the applicant ] was arrested on suspicion of having committed an offence by police officers of FAC of GPE [ ( ORG внутренних дел района GPE г. GPE ) ] . On DATE [ the applicant ] was placed in GPE ORG no . CARDINAL as a result of physical injuries which , according to [ him ] , had been inflicted by police officers . ”

A number of questions were put to the forensic expert . The latter was also provided with the applicant 's medical file .

On DATE the applicant 's mother lodged a complaint with Investigator PERSON In her complaint she submitted that during the medical examination carried out on DATE she had discovered that certain vital documents were missing from the applicant 's medical file . In particular , she drew attention to the doctor 's conclusion , in which , besides the diagnosis and need for urgent hospitalisation , it was also allegedly stated that the applicant had been brought to the casualty department by a police officer . The applicant 's mother alleged that this document had been deliberately destroyed in order to substantiate the version of events put forward by the police , according to which the applicant had been released from the police station at TIME on DATE .

On CARDINAL and DATE the applicant 's mother lodged similar complaints with the prosecutor of ORG of GPE and ORG respectively , requesting an inquiry to be carried out . In addition , she requested permission to familiarise herself with the materials in case no . DATE in the presence of a public official .

NORP By letter of DATE Investigator PERSON informed the applicant 's mother that access to the case file could not be granted as , in accordance with the relevant rules of procedure , the victim , the accused , the civil plaintiff and the defendant could familiarise themselves with the case file only after the investigation had been completed .

On an unspecified date before DATE , the head of a local human rights NGO , ORG ( PERSON за гражданские права ) , acting as the applicant 's defence counsel , sent a letter to ORG complaining of the ineffective nature of the investigation into the applicant 's allegations of ill - treatment . In his letter the defence counsel alleged that police officers PERSON ( last name ) and PERSON ( first name ) had participated in the beating of the applicant . He further alleged that police officer PERSON had been exerting pressure on witnesses in the criminal case against the applicant . As a result , the witnesses had confirmed PERSON 's version of events , according to which the applicant fell and injured his jaw during his arrest .

By letter of DATE the acting head of ORG at ORG ( и.о. начальника PERSON по надзору за следствием при прокуратуре г. GPE ) informed the applicant 's defence counsel that the criminal case against police officers of FAC was being examined by ORG . The letter stated that “ a medical examination had been carried out and a number of witnesses had been questioned ” . It was further stated that “ the investigation was being supervised ” .

On DATE Investigator PERSON decided to stay the preliminary investigation of criminal case no . DATE on the grounds that “ the person against whom charges should be brought had not been identified ” .

On DATE the applicant 's mother applied to Investigator PERSON seeking to obtain a copy of the decision to stay the preliminary investigation .

NORP By letter of DATE the Deputy to ORG ( заместитель Бутырского межрайонного прокурора г. PERSON ) informed the applicant 's mother that the decision to stay the preliminary investigation had been set aside and that the investigation had been resumed and assigned to Investigator PERSON . of ORG of GPE ( следователь PERSON межрайонной прокуратуры г. PERSON ) . A letter along similar lines dated DATE was received by the applicant 's father from Investigator PERSON .

By letter of DATE ORG informed the applicant 's defence counsel , in reply to his complaint about the ineffective nature of the investigation , that “ the preliminary investigation had been resumed and the necessary investigative measures were being taken ” . The letter also stated that “ no evidence of pressure by the police officers of FAC on witnesses or on the applicant 's family had been found ” . It was further stated that “ the investigation was being supervised ” .

By letter of DATE Investigator PERSON . informed the applicant and his parents that :

“ criminal proceedings no . DATE ... have been terminated on DATE ... owing to the lack of evidence of any crime having been committed . ”

It appears that the applicant 's mother lodged an appeal against that decision with ORG .

On DATE she also requested permission to familiarise herself with the materials in criminal case no . DATE .

NORP By letter of DATE she was informed by Investigator PERSON . that :

“ ... The legislation does not permit the parties to criminal proceedings to obtain copies of the case - file materials .

According to the law , only the accused , the victim and their counsel have the right to familiarise themselves with the materials in the case file . Your status , as well as the status of [ the applicant ] and [ his father ] , is that of a WITNESS . Therefore , you do not have the right to familiarise yourself with the materials in the case file .

Since the termination of the present criminal case affects the lawful interests of [ the applicant ] , only he , after lodging a relevant request , will be allowed to familiarise himself with the decision , and only the decision , to terminate the criminal proceedings . ”

By letter of DATE ORG informed the applicant 's mother and defence counsel that the decision of DATE “ had been found to be lawful and substantiated ” . ORG also forwarded to ORG the complaint of the applicant 's mother and his defence counsel about the lack of access to the case file .

By letter of DATE the Deputy to ORG informed the applicant 's mother that as witnesses neither she , nor the applicant or his father , had the right to have full access to case file no . DATE . They could , however , familiarise themselves with the relevant decision to terminate the criminal proceedings by coming to ORG at a convenient time . The letter further stated that “ there were no grounds for transferring criminal case no . DATE to another prosecutor 's office in GPE for a further investigation , or for imposing criminal liability on police officer PERSON and other persons , or for imposing disciplinary sanctions on Investigator PERSON ” .

By letter of CARDINAL DATE the acting head of ORG at ORG informed the applicant 's mother , in reply to her complaint about the ineffective nature of the investigation , that “ the allegations of ill - treatment by police officers are not corroborated by the materials in the case ” . In the letter it was further stated that “ there was no evidence that the investigation was not being carried out in an objective way or that Investigator PERSON . had threatened witnesses ” .

By letter of DATE the acting head of ORG at ORG ( и.о. начальника PERSON по надзору за расследованием преступлений органами прокуратуры при NORP прокуратуре PERSON ) informed the applicant 's counsel , in reply to his complaint , that ORG had examined the applicant 's case and the relevant materials . It had been found that the applicant had attempted to flee during his arrest on DATE . Therefore , the police officers had had to apply force , as a result of which the applicant had fallen and fractured his jaw . There was no criminal element in the actions of the police officers and , therefore , there were no grounds for reversing the decision to terminate the criminal proceedings .

According to the Government , on DATE the investigation was reopened and transferred to ORG . Some time later , police officer PERSON was charged with abuse of office under LAW . The investigation established that on DATE at TIME . the police officer PERSON escorted the applicant to GPE police station no . CARDINAL on suspicion of extortion . In office CARDINAL of the station he inflicted blows to the applicant 's jaw with his right fist with a view to forcing the applicant to confess .

On DATE the investigation in this case was completed and the case file was sent for examination to a trial court .

According to a judgment dated DATE , ORG of the city of GPE had examined police officer PERSON 's alleged actions and acquitted him in respect of the episode involving the applicant . The court , having questioned a number of witnesses , including the applicant , his family members as well as the doctors and police officers , found that the statements and other evidence collected by the investigation had been too confusing and contradictory to enable the court to conclude with sufficient certainty that the injuries in question had indeed been inflicted by officer B.

NORP In particular , in respect of the statements given by the applicant during the trial , the court stated as follows :

“ ... The court is critical in respect of the statements made by [ the applicant during the trial ] and does not trust them , since they are self - contradictory as well as incompatible with the objective information contained in the case file . From his statements it is clear that he believes that the blows were inflicted on him by PERSON , and not anyone else , and that it is his presumption . At the same time , under [ domestic law ] all doubts concerning the guilt of the accused which can not be eliminated in accordance with LAW are interpreted in favour of the accused . Also , the court considers that by giving these statements , the applicant is trying to defend himself and the extortion committed by him by showing that his initial confessions were motivated by police coercion . Later , however , [ the criminal case against the applicant ] was discontinued owing to LAW , that is , on the basis of non - rehabilitative grounds ... ”

Having examined some further witnesses , including the family of the applicant and the medical personnel who carried out the medical examination of the applicant , the court noted that :

“ ... All the statements by witnesses ... to which the prosecution is referring , do not prove the guilt of B. in connection with [ the crime ] , since they only indirectly confirm the fact that injuries were inflicted on [ the NORP the basis of the descriptions made by [ the applicant himself ] . ”

The court noted that the police officers who had been on duty on DATE had consistently stated that no coercion or violence had been used in respect of the applicant .

The court further noted that it had examined the CARDINAL medical examination reports submitted in the prosecution case file , both confirming the existence of the injuries on the applicant 's body . The court accepted CARDINAL of them as evidence in the case and rejected the other on the grounds that the prosecution had failed to comply with legal requirements concerning the use of copies of documents and the methodology of the examination .

The court did not elaborate on other possible causes of the applicant 's injuries , having limited the analysis to the issue of ORG 's involvement in the incident . At the same time , the court stated that :

“ ... [ it ] takes note of the fact that the bodies involved in the preliminary investigation , by bringing criminal proceedings in respect of B. on a request by [ the applicant ] , took the decision not to initiate criminal proceedings in respect of ORG , PERSON . , PERSON . [ other police officers ] , even though [ the applicant himself ] had sought a finding of liability in respect of all of the persons mentioned , and thus accepted [ the applicant 's ] application only in part ... ”

The judgment of DATE was upheld on appeal by ORG on DATE .

NORP In particular , ORG agreed with ORG conclusion concerning the assessment of admissibility of the medical examinations of the applicant . ORG specifically noted that in a decision of DATE the investigator in charge of the case had acknowledged that :

“ ... medical documents and x - rays of [ the applicant ] from polyclinic no . CARDINAL and ORG no . CARDINAL could not be submitted for expert examination because they had been lost by an investigator of [ the local prosecutor 's office ] ... ”

The court further noted that :

“ As can be seen from the case file , the court was unable to locate the original medical documents in question confirming [ the applicant 's injuries ] , as attested by the reply of DATE no . DATE from ORG ... ”

Article CARDINAL § CARDINAL of the LAW provides that no one may be subjected to torture , violence or any other cruel or degrading treatment or punishment .

Article CARDINAL § CARDINAL ( a ) of MONEY provides that actions of a public official which clearly exceed his authority and entail a substantial violation of the rights and lawful interests of citizens , committed with violence or the threat of violence , shall be punishable by DATE imprisonment with a prohibition on occupying certain posts or engaging in certain activities for DATE .

Article CARDINAL of LAW DATE ( CARDINAL кодекс РСФСР ) , as in force at the relevant time , provided that a prosecutor , investigator , inquiry body or judge were obliged to consider applications and information about any crime committed , and to take a decision on that information within DATE . In exceptional cases , this time - limit could be extended to DATE . The decision should be either a ) to institute criminal proceedings , or b ) to refuse to institute criminal proceedings , or c ) to transmit the information to another competent authority .

Article CARDINAL of the LAW provides that in order to terminate the proceedings the investigator should adopt a reasoned decision with a statement of the substance of the case and the reasons for its termination . A copy of the decision to terminate the proceedings should be forwarded by the investigator to the prosecutor . The investigator should also notify the victim and the complainant in writing of the termination of the proceedings and the reasons for that , and explain how they could appeal against that decision . An appeal against the decision to terminate proceedings could be lodged with the prosecutor or a court within DATE of the date of notification of the decision .

Under LAW of the Code , the prosecutor could reverse the above decision of the investigator and reopen the proceedings .

Under LAW , the prosecutor was responsible for the general supervision of the investigation . In particular , the prosecutor could order that specific investigative activities be carried out , transfer the case from one investigator to another , or reverse unlawful and unsubstantiated decisions taken by investigators and inquiry bodies .