Violations of Art. 5-1;Violation of Art. 5-2;Violation of Art. 5-3;Remainder inadmissible;Pecuniary damage - claim rejected;Non-pecuniary damage - award

David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä;Stanislav Pavlovschi

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

On an unspecified date he arrived in GPE . He married GPE , a NORP national , on DATE . They initially lived in PERSON , but on DATE they moved to GPE . Their CARDINAL children were born in DATE and DATE respectively . The applicant is an artist and runs a small business in GPE which provides the only support for the family .

On DATE a certain PERSON , an administrator of the building in which the applicant 's wife had a flat , brought a private prosecution against the applicant for slander ( zniewaga ) under LAW . He alleged that the applicant had addressed him in obscene language in LANGUAGE . Subsequently , the private prosecution proceedings were commenced in the Kraków – Śródmieście District Court .

It appears that following the applicant 's departure for GPE the court sent him summonses in connection with the private prosecution but received no response .

On DATE ORG ordered that the applicant be remanded in custody for DATE . It further ordered that a wanted notice ( list gończy ) be issued with a view to locating and detaining him . It invoked , inter alia , Articles CARDINAL § CARDINAL(CARDINAL ) and CARDINAL § CARDINAL of the Code of Criminal Procedure ( hereinafter “ the ORG ” ) .

ORG held as follows :

“ The accused PERSON has no permanent abode in GPE , [ and ] does not reside in any place known to the court , and is thus obstructing the proper conduct of the proceedings in the present case and the delivery of a proper judgment within a reasonable time . The need to issue a detention order in respect of the accused is required to secure the proper conduct of the proceedings .

Given that the accused PERSON is evading justice he should be sought by means of a wanted notice . ”

The court ordered the police to execute that decision and to serve a copy of it on the applicant immediately after his arrest and to inform him that he could appeal . The information that a wanted notice had been issued in respect of the applicant was subsequently entered in a central criminal register .

On DATE ORG stayed the proceedings against the applicant on the ground that his whereabouts were unknown .

At DATE the applicant and his family went on holiday to PERSON . At an unspecified time on TIME DATE they arrived at the GPE border check - point on their journey back to GPE by car . During a routine passport check the applicant was asked to get out of his car by the border guard officers .

The applicant was arrested at TIME on the basis of the detention order and the wanted notice issued on DATE . He was questioned by the officers but could not understand anything they said and refused to sign any documents . In his submissions to ORG , he said that various requests he made through his wife , such as to be allowed to contact ORG or his family and to be provided with an interpreter or a lawyer , were refused . After TIME he was informed that he was being arrested but was not told why . He was detained at the ORG detention centre .

While the applicant was being questioned his wife and their CARDINAL children , the first aged DATE at the time , had to stay in the car with the engine on as the temperature outside was -CARDINALoC.

On DATE the applicant 's wife engaged counsel to represent the applicant .

On DATE the Director of ORG notified PERSON that the applicant had been transferred there and had been detained on the basis of the detention order of DATE .

On DATE the applicant 's counsel filed an application with PERSON for the applicant 's release and requested that his detention be replaced by other , less restrictive , preventive measures . She also appealed against the detention order issued on DATE .

She submitted that the applicant was a NORP national who permanently resided in GPE and that he and his wife had left GPE on DATE . Following the applicant 's departure ORG had sent summonses for the applicant to his wife 's address and to another address where the applicant had never lived with the result that the applicant had not known about the criminal proceedings against him and had not been served with the private bill of indictment . Nor had he been informed of his rights and obligations as an accused .

Counsel further submitted that ORG had erroneously found that there were reasonable grounds for suspicion that the applicant had slandered PERSON In any event , the alleged offence only carried a fine or a penalty of restriction of liberty ( such as a community service order ) but not a custodial sentence . Lastly , counsel referred to the very difficult situation of the applicant 's family , who were entirely dependent on him .

On DATE the Kraków – Śródmieście District Court resumed the private prosecution proceedings against the applicant , noting that his abode had been established . On the same date it quashed the detention order of DATE and replaced it with a ban on leaving the country and ordered the applicant to surrender his passport .

ORG held as follows :

“ The accused PERSON was detained on remand on the basis of a detention order issued by this court . Counsel for the accused requested the court to replace the preventive measure imposed on him with a non - custodial one . Counsel in her application argued that the evidence obtained in the case had not sufficiently justified the reasonable suspicion that the applicant had committed slander ; in addition , she submitted that the applicant had not been evading justice and that his failure to appear before the court had not been intentional .

The court has found the arguments raised by counsel to be compelling .

In these circumstances , in the court 's view the detention on remand should be replaced with other measures , namely a ban on leaving the country together with seizure of his passport . That measure will adequately secure the proper conduct of the proceedings ... ” .

ORG further ordered that the private bill of indictment , the decision to release the applicant and the summons to appear before the court be translated into NORP and served on the applicant and that a copy of its decision be served on ORG director together with an order to release the applicant .

On DATE ( a DATE ) the ORG clerk sent by facsimile the court order to release the applicant to ORG . However , ORG refused to accept the facsimile and informed the court registry that it required original documents before it could release the applicant . Consequently , on DATE ORG ordered the dispatch of the relevant documents by courier service .

The applicant was released from detention in TIME of CARDINAL DATE ( a DATE ) . Upon his release he received copies of the CARDINAL documents translated into LANGUAGE . The applicant submitted that it was only then that he learnt for the first time that he had been accused of slandering B.M ..

On an unspecified date the applicant 's counsel requested ORG to lift the preventive measures imposed on the applicant pursuant to the decision of DATE and to replace them with a guarantee of the applicant 's appearance given by the President of PERSON .

On DATE the Kraków – Śródmieście District Court granted that application . It considered that it was appropriate to quash the preventive measures given that the applicant ran his own business in GPE and supported his family exclusively from the income he received from it . It further considered that the guarantee offered would secure the applicant 's appearance and the proper conduct of the proceedings .

It appears that the applicant and his family returned to GPE on DATE .

On DATE a local MP from PERSON , Mr PERSON wrote a letter to the President of ORG requesting explanations for the applicant 's arrest and detention .

In a letter dated DATE , the President of ORG informed the MP that the applicant 's case had been thoroughly considered and had been placed under the Vice - President of ORG administrative supervision . The President stated that the principal error committed by ORG in respect of the applicant 's detention order was the unfounded assumption that the applicant had been evading justice and maliciously failing to comply with the court summons in a case in which he had not been previously heard and in which he had not been notified of his obligations as an accused pursuant to LAW ORG , or served with a private bill of indictment ( LAW ORG ) . The President further noted that the orders to remand the applicant in custody and to issue a wanted notice had been based on that erroneous premise . Lastly , he stated that the lessons to be drawn from the applicant 's case would be used for training purposes .

On DATE the MP transmitted a copy of the President of ORG reply to the applicant 's wife . He advised the applicant and his wife that they could seek to institute disciplinary proceedings against the judge who had issued the detention order and criminal proceedings for abuse of power . He further advised them that they could seek compensation in the civil courts .

On DATE the Kraków – ORG delivered judgment and acquitted the applicant . On DATE ORG upheld the first - instance judgment .

Article CARDINAL of the Code of Criminal Procedure of DATE , which entered into force on DATE , stipulates that everyone who is arrested shall be immediately informed of the reasons for his arrest and of his rights .

Article CARDINAL provides that everyone who is arrested shall be entitled to lodge an appeal with a court challenging the lawfulness of the arrest and the manner of its execution . Such appeals must be promptly transmitted to the competent ORG which is required to examine it speedily . In cases where ORG has established that the arrest was unlawful or unwarranted , it must order the immediate release of the person concerned .

The Code of Criminal Procedure defines detention on remand as one of the so - called “ preventive measures ” ( środki zapobiegawcze ) . The other measures are bail ( poręczenie majątkowe ) , police supervision ( dozór policji ) , a guarantee by a responsible person ( poręczenie osoby godnej zaufania ) , a guarantee by a social entity ( poręczenie społeczne ) , a temporary ban on engaging in a given activity ( zawieszenie oskarżonego w określonej działalności ) and a ban on leaving the country ( zakaz opuszczania kraju ) .

Article CARDINAL § CARDINAL sets out the general grounds for the imposition of preventive measures :

“ CARDINAL . Preventive measures may be imposed in order to ensure the proper conduct of proceedings and , exceptionally , to prevent an accused 's committing another serious offence ; they may be imposed only if the evidence shows a significant probability that the accused has committed an offence . ”

Article CARDINAL lists the grounds for detention on remand . It provides , in so far as relevant :

“ CARDINAL . Detention on remand may be imposed if :

( CARDINAL ) there is a reasonable risk that an accused will abscond or go into hiding , in particular when his identity can not be established or when he has no permanent abode [ in GPE ] ;

( CARDINAL ) there is a reasonable risk that an accused will attempt to induce [ witnesses or co - defendants ] to give false testimony or to obstruct the proper course of proceedings by any other unlawful means ;

NORP If an accused has been charged with a serious offence or an offence for the commission of which he may be liable to a statutory maximum sentence of DATE imprisonment , or if a court of first instance has sentenced him to DATE imprisonment , the need to continue detention to ensure the proper conduct of proceedings may be established by the likelihood that a severe penalty will be imposed . ”

The Code sets out the extent of the courts ' discretion to continue a specific preventive measure . Article CARDINAL reads , in so far as relevant :

“ CARDINAL . Detention on remand shall not be imposed if another preventive measure is sufficient . ”

Article CARDINAL § CARDINAL reads :

“ CARDINAL . If there are no special reasons to the contrary , detention on remand shall be lifted , in particular , if depriving an accused of his liberty would :

( CARDINAL ) seriously jeopardise his life or health ; or

( CARDINAL ) entail excessively harsh consequences for the accused or his family . ”

Article CARDINAL § CARDINAL provides :

“ Detention on remand shall not be imposed if an offence attracts a penalty of imprisonment not exceeding DATE . ”

Article CARDINAL § CARDINAL specifies that the rule provided for in LAW is not applicable when the accused attempts to evade justice or persistently fails to comply with summonses or when his identity can not be established .

As worded at the relevant time , LAW ORG provided that an accused who was not deprived of his liberty was required to appear whenever he received a summons in the course of criminal proceedings . He was also required to inform the authority conducting the proceedings of any change of his abode or of any absence lasting DATE . The accused was to be informed of these obligations when first questioned .

LAW of LAW , entitled “ Compensation for wrongful conviction , detention on remand or arrest ” , stipulates that the ORG is liable for wrongful convictions or for unjustifiably depriving an individual of his liberty in the course of criminal proceedings against him .

Article CARDINAL provides , in so far as relevant :

“ CARDINAL . An accused who , as a result of the reopening of the criminal proceedings against him or of a cassation appeal , has been acquitted or resentenced under a more lenient substantive provision , shall be entitled to compensation from ORG for the pecuniary and non - pecuniary damage he has suffered in consequence of having served all or part of the sentence initially imposed on him .

Entitlement to compensation for pecuniary and non - pecuniary damage shall also arise in the event of manifestly wrongful arrest or detention on remand . ”

Pursuant to LAW , an application for compensation for manifestly wrongful detention on remand has to be lodged within DATE from the date on which the decision terminating the criminal proceedings in question became final .

Proceedings relating to an application under LAW are subsequent to and independent of the original criminal proceedings in which the detention was ordered . The claimant may retrospectively seek a ruling as to whether his detention was justified . He can not , however , test the lawfulness of his continuing detention on remand and obtain release .


CASE OF ALLAN JACOBSSON v. SWEDEN (No. 2)

The applicant is a NORP citizen , born in DATE , and living in GPE , GPE .

In DATE he bought a property of CARDINAL sq . m , GPE CARDINAL , in the centre of GPE in the municipality of GPE , a suburb QUANTITY south - west of GPE . On the property there is a CARDINAL - family house .

When the applicant bought the property it was covered by a so - called subdivision plan ( avstyckningsplan ) , adopted in DATE . According to this plan no building could be constructed on a plot of CARDINAL sq . m until sufficient water and sewerage facilities had been provided for . Such facilities appear to have been built at DATE . The property was also covered by an area plan ( områdesplan ) , adopted in DATE , which described the property mainly as a public area containing open spaces , streets and car parking , and by a building prohibition made pursuant to section CARDINAL of LAW ( byggnadslagen ) DATE and issued on CARDINAL DATE .

The first building prohibition under LAW was issued by ORG ( länsstyrelsen – “ the Board ” ) of GPE as far back as DATE and was valid for DATE . This prohibition was subsequently prolonged by ORG for DATE each time . The last decision was taken on CARDINAL DATE and was valid until DATE . On DATE , with the entry into force of LAW DATE ( Plan- och DATE “ the DATE LAW ) replacing LAW , the existing system for prohibition on construction was abolished and replaced by a possibility for ORG ( byggnadsnämnden ) to defer its decision on an application for a building permit , or a preliminary opinion on an application , for a maximum period of DATE .

Ever since he bought the property in question the applicant has tried in vain to obtain from the competent authorities a permit to divide his plot and/or to build , in addition to the existing house , more houses on it . On CARDINAL DATE ORG of PERSON stated in a preliminary opinion , requested by the applicant , that it was not prepared to permit the division of his property into smaller plots , referring inter alia to the area plan adopted in DATE ( see paragraph CARDINAL above ) .

On DATE ORG ( kommunfullmäktige ) adopted a master plan ( generalplan ) relating to part of the municipality of PERSON , according to which the applicant ’s property was earmarked for blocks of flats of CARDINAL storeys . On DATE the ORG stated , in reply to a request from the applicant , that having regard to the master plan it was not prepared to grant him either an exemption from the building prohibition or a permit to build a CARDINAL - family house and a garage on the property . The applicant appealed to the ORG claiming that the building prohibition was invalid . ORG rejected the appeal on DATE , stating inter alia that in its opinion the proposed buildings could be contrary to the aim of the prevailing prohibition and hinder future town planning as indicated in the master plan of DATE .

On DATE ORG ( kommunstyrelsen ) adopted an area programme according to which the area in which the applicant ’s property is situated should be used for the construction of multi - family housing in DATE . It also stated that the planning procedure should be given priority . On DATE ORG adopted a building programme to the same effect .

On DATE ORG stated in a new preliminary opinion requested by the applicant that it would not be prepared to grant any building permit in view of the existing building prohibition . The applicant ’s appeals against this were , as before , unsuccessful .

On DATE ORG adopted a new area plan covering inter alia the applicant ’s property . This plan mentioned the possibility of using the area for single or multi - family housing development .

The proceedings and the interference with the applicant ’s enjoyment of his possessions referred to above formed the subject matter of the Allan Jacobsson v. GPE judgment of DATE ( Series A no . CARDINAL ) . In that case the ORG concluded that there had been no violation of LAW CARDINAL . On the other hand , it found that there had been a violation of LAW in that the applicant did not enjoy a right to a court to enable him to challenge the decisions whereby the building prohibitions on his property were maintained in force .

On DATE , while the above case was pending before the Convention institutions , the applicant requested under LAW ( which had entered into force on DATE ) a preliminary opinion from ORG on whether a permit to build a house on his property could be granted . On CARDINAL DATE ORG decided , however , pursuant to the rules laid down in GPE , to defer its decision on the request for DATE ( see paragraph CARDINAL below ) . It informed the applicant that a building permit could not be expected for the time being .

On DATE , before the expiry of the above DATE period ORG revoked the detailed development plan ( previously called a subdivision plan ) which had been in force since DATE ( see paragraph CARDINAL above ) .

Following this decision ORG confirmed , on DATE , its preliminary opinion of CARDINAL DATE rejecting the applicant ’s request for a building permit . In its reasons ORG referred to the need for a new detailed development plan and to the GPE ’s intention to earmark the land for single or multi - family housing development in accordance with the area plan adopted in DATE ( see paragraph CARDINAL above ) . The applicant did not appeal against this decision .

In the meantime , however , the applicant had lodged an appeal with ORG ( kammarrätten ) of GPE against ORG decision of CARDINAL DATE revoking the DATE plan . On DATE the ORG declined to entertain the appeal on the grounds that , under LAW , ORG was the competent body . Leave to appeal against this decision was refused by ORG ( regeringsrätten ) on DATE .

Subsequently the applicant lodged an appeal with ORG . He observed that under LAW , section DATE , of GPE , a decision ( on building permission ) could be postponed if work had been initiated to amend , revoke or adopt a plan . However , in the present case , such steps had only been taken DATE before the expiration of the DATE period within which the planning measure should be completed ( see paragraph CARDINAL below ) . Moreover , he maintained that the above - mentioned provision had only authorised alternative measures , not a combination of measures which , as here , consisted of a revocation of a plan in order to amend it or adopt a new plan . By proceeding in this manner , the Municipality had circumvented the legal time - limit for consideration of his request for a building permit . The applicant further pointed out that a revocation should comply with , inter alia , LAW , section CARDINAL , of the DATE Act which requires the authorities to take into consideration both private and public interests ( see paragraph CARDINAL below ) . The applicant invited the ORG to find that the revocation of the detailed development plan was to be considered as a real revocation , not as a method of prolonging the time - limit for deciding on his application for a building permit . In the alternative , he requested that his application be examined without undue delay .

On DATE the ORG rejected the appeal and upheld the revocation by ORG of the detailed development plan of DATE , giving the following reasons :

“ The area is covered by a detailed development plan , approved by ORG on DATE . Pursuant to LAW , section CARDINAL , of the DATE LAW for the plan is to be considered as having elapsed .

In such circumstances the municipality has a strong position in respect of the right to revoke a detailed development plan , something which has been exemplified by the fact that the revocation may be decided without the rights which derived from the plan being taken into consideration ( LAW , section CARDINAL , subsection CARDINAL , of GPE ) . This presupposes that public interests militate in favour of revocation . The existence of such interests has been expressed by the issuing of an area plan for GPE .

The review of issues under LAW must take into consideration both public and individual interests , unless otherwise has been specifically provided . The above provision is an example thereof . The meaning of this provision is that the person who has obtained a right according to the plan can not rely on it during the examination of whether the plan should be repealed . However , when it comes to examining the contents of a new plan the main rule in LAW , section CARDINAL , concerning the individual ’s interests must obviously be considered , but even in these circumstances it is not required that the rights under the old plan must be respected . As regards the adoption of a new plan , LAW does not constitute an obstacle to the adoption being preceded by a revocation of a detailed development plan . The possible result of an examination of a request for a building permit in respect of a new construction on GPE CARDINAL following revocation of the detailed development plan can not be examined in this case . The applicant ’s submissions in support of his appeal do not provide a reason for refusing the implementation of the decision appealed against . ”

The applicant appealed against this decision to the ORG , which , on DATE , rejected it on the grounds that they agreed with the assessment made by ORG .

In accordance with the provisions of LAW ( lag QUANTITY om rättsprövning av vissa förvaltningsbeslut – “ the DATE LAW ) the applicant challenged the ORG ’s decision in ORG . He also requested the court to examine a request for a building permit and to hold an oral hearing .

The applicant stressed that , according to LAW , section CARDINAL , of GPE , where steps had been taken to draw up , amend or revoke a detailed development plan , ORG could , pending the completion of the planning measure , postpone its decision on a request for a building permit . If the Municipality had not completed the measure within DATE , the request should be decided without delay . It followed from this provision that a prolongation of the said period could not be made by means of revocation of the plan . Moreover , the Municipality had not been free to opt for both revocation and either amendment of the plan or adoption of a new plan . In the applicant ’s view , whilst the plan in question had been revoked with a view to adoption of a new plan , the measure fell to be considered as an amendment of the plan . Since the amendment had not been effected within the DATE time - limit , the Municipality had not been permitted both to amend and revoke the plan . Revocation of the plan was meaningless as LAW , section DATE , did not apply to a detailed development plan the completion of which had not been subjected to any time - limit . Contrary to what the Board and the Government had suggested , LAW , should apply in his case . In view of these considerations , the applicant requested that the ORG ’s decision be quashed and that his application for a building permit be examined without further delay .

On DATE ORG , without holding an oral hearing , rejected the applicant ’s complaints against the ORG ’s decision . ORG held :

“ According to section CARDINAL of the [ CARDINAL LAW ] ORG must , at the request of a private party in certain administrative matters dealt with by the ORG or an administrative authority , examine whether the decision is contrary to any legal rule .

In the present case the examination concerns the ORG ’s decision of DATE . In this decision the ORG rejected an appeal lodged by [ the applicant ] against a decision of ORG of Stockholm to uphold a decision to revoke [ the DATE detailed development plan ] concerning a land area within GPE . This means that ORG can not in the present proceedings examine [ the applicant ’s ] request to be granted a building permit . ORG dismisses [ avvisar ] this request and rejects the request for a public oral hearing .

As regards the question whether the revocation of [ the DATE plan ] is contrary to any legal provision , it can be established that the plan , according to LAW , section CARDINAL , of GPE , was to be regarded as a detailed development plan with regard to which the implementation period had elapsed . According to LAW , section CARDINAL , of the DATE Act such a plan may be amended or annulled without regard to the rights which may have accrued during the plan ’s existence . The latter provision constitutes an exception to the main rule in LAW , section CARDINAL , of the DATE Act that consideration must be given to both public and private interests when examining issues under LAW ( see Government Bill CARDINAL/CARDINAL:CARDINAL pp . CARDINAL and CARDINAL ) . The facts of the case do not indicate that the revocation of the plan is contrary to LAW , section CARDINAL , or LAW , section CARDINAL , of the DATE Act or to any other provision in the law . The decision is upheld . ”

The Planning and Building Act which entered into force on DATE contains provisions about the planning of land and water areas as well as building . Their purpose is to promote a development of society characterised by equal and good living conditions for people DATE and for future generations , whilst having due regard to the freedom of the individual ( LAW , section CARDINAL ) .

The provisions of the DATE Act which have been invoked in the present case read as follows :

“ Chapter DATE Introductory provisions

Section CARDINAL . When issues are examined in accordance with this LAW , consideration shall be given to both public and private interests unless otherwise prescribed .

Chapter DATE Detailed development plans and area regulations

Section CARDINAL . The examination of the suitability of a site for development and the regulation of manner of design of the area of construction are to be carried out in accordance with a detailed development plan , which applies to

new continuous developments ;

ORG new individual buildings , the use of which will have significant impact on the surroundings or which are to be located in an area where there is considerable demand for building sites , or where the examination of the proposed building can not be carried out in connection with the review of the application for a building permit or a provisional opinion .

Section CARDINAL . The detailed development plan shall contain a time - limit for development . This time - limit shall be fixed in such a way that there is a reasonable chance of the plan ’s implementation taking place within CARDINAL and at DATE . ... When the time - limit expires , the plan will continue to be valid until it is amended or annulled .

Section CARDINAL . Before the expiry of the implementation period a detailed development plan may only be amended or annulled contrary to the wishes of the property owners concerned when this is required as a result of new conditions of great public importance and which could not be foreseen when the plan was drawn up .

When the implementation period has elapsed , the plan may be amended or annulled without regard to the rights which may have accrued during the plan ’s existence ...

Chapter CARDINAL – Building permit , demolition permit and site improvement permit

Section CARDINAL . If authorisation has been requested for the expropriation of a building or land in respect of which a permit has been sought , or if work has been initiated to adopt , amend or annul a detailed development plan , area regulations or property regulation covering the building or land , ORG may postpone its decision regarding the permit until the expropriation issue has been solved or the planning work has been completed . If the municipality has not completed the planning work within DATE from ORG receipt of the application of a permit , the application shall be dealt with without further delay .

Chapter DATE Transitional provisions

Section CARDINAL . Town development plans and rural development plans adopted under LAW ( CARDINAL:CARDINAL ) or LAW ( CARDINAL ) , older types of plans and regulations referred to in sections CARDINAL and CARDINAL of the latter act as well as subdivision plans , which are not covered by a directive issued in accordance with section CARDINAL of FAC , shall be regarded as a detailed development plan in accordance with LAW . Subdivision plans , to the extent they are covered by the above - mentioned directives , will cease to be valid with the coming into force of this LAW .

With regard to town development plans and rural development plans which have been adopted DATE , the implementation period will be considered , in accordance with section CARDINAL , subsection CARDINAL , to be DATE from the date of their gaining legal force . For other plans and regulations , referred to in the first subsection , the implementation period will be regarded as having elapsed .

Unless otherwise prescribed in a plan or regulation which , according to the first subsection is to be regarded as a detailed development plan in accordance with this LAW , section DATE in FAC ( CARDINAL:CARDINAL ) shall apply as a regulation in the plan . ”

The Act on Judicial Review of Certain Administrative Decisions DATE was introduced as a result of ORG Rights’ findings in several cases , notably against GPE , that lack of judicial review of certain administrative decisions infringed LAW . It was enacted as a temporary law to remain in force until DATE ; its validity has subsequently been extended , as from DATE without any limitation in time .

Pursuant to section QUANTITY , a person who has been a party to administrative proceedings before the ORG or another public authority may , in the absence of any other remedy , apply to ORG , as the first and only court , for review of any decisions in the case which involve the exercise of public authority vis - à - vis a private individual . The kinds of administrative decisions covered by the LAW are further defined in LAW , sections CARDINAL , of ORG ( regeringsformen ) , to which section CARDINAL of the DATE LAW . Section CARDINAL of the LAW specifies several types of decisions falling outside its scope , none of which is relevant in the instant case .

In proceedings brought under LAW , ORG examines whether the contested decision “ conflicts with any legal rule ” ( section DATE CARDINAL Act ) . According to the preparatory work to the LAW , as reproduced in Government PERSON ( pp . CARDINAL–CARDINAL ) , its review of the merits of cases concerns essentially questions of law but may , in so far as relevant for the application of the law , extend also to factual issues ; it must also consider whether there are any procedural errors which may have affected the outcome of the case .

If ORG finds that the impugned decision is unlawful , it must quash it and , where necessary , refer the case back to the relevant administrative authority .

The procedure before ORG is governed by LAW DATE ( förvaltningsprocesslagen ) . It is in principle a written procedure , but ORG could decide to hold an oral hearing on specific matters if this was likely to assist it in its examination of the case or to expedite the proceedings ( section CARDINAL ) . As from DATE , section CARDINAL ) of the DATE Act provided that in matters of judicial review ORG should hold an oral hearing if this has been requested by the person seeking judicial review and it is not manifestly unnecessary .


Preliminary objection rejected (non-exhaustion);Violation of Art. 8;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

On DATE the applicant , who was then in ORG - lès - FAC serving an DATE sentence for murder imposed by ORG of the Hérault département , lodged a criminal complaint with the senior investigating judge at the GPE tribunal de grande instance against the prison mail officer for breach of the secrecy of correspondence . He also lodged a concomitant application for leave to join the criminal proceedings as a civil party .

The applicant alleged in his complaint that since being imprisoned in ORG - lès - FAC he had received a number of letters from his lawyers , the judiciary , the prison social services and the prison chaplain that had already been opened , in breach of Articles D. CARDINAL , NORP CARDINAL , D. CARDINAL and PERSON of LAW and LAW .

In an order of CARDINAL DATE the investigating judge of the GPE tribunal de grande instance ruled that there was no ground for bringing criminal proceedings for breach of the secrecy of correspondence because there was “ insufficient evidence that anyone had committed the offence of breaching the secrecy of correspondence referred to in the complaint ” .

The applicant appealed against that decision to ORG of ORG . In a judgment of DATE ORG upheld the decision and dismissed the appeal . As to whether the actus reus of the offence had been made out , ORG held that it had for the following reasons :

“ It should be pointed out in the instant case that while there is general provision for interference by the prison authorities with ORG mail , such interference is formally prohibited by ORG D. CARDINAL , NORP CARDINAL , D. CARDINAL and PERSON of LAW in respect of letters to prisoners from their defence lawyers , from administrative and judicial authorities , from prison chaplains and from social workers belonging to CARDINAL of the departments of ORG .

The evidence shows that letters falling into the categories referred to above , addressed to PERSON , were opened by the prison staff and that the administrative departments of ORG - lès - FAC admitted opening them since the staff employed in the mail department mentioned opening letters in error owing to the volume of mail received and the use of an electric machine . Furthermore , among the documents filed in evidence were a number of envelopes which had clearly been marked so as not to be censored but had evidently been opened by a machine . Lastly , there is also a letter from the deputy governor of the prison accompanying a letter which had , according to him , been opened in error .

ORG found , however , that although the actus reus of the offence complained of by the applicant had been established , that is to say that letters had been opened , the prison mail department could not be held collectively liable , nor could the officer in charge of it be held individually liable . It upheld the decision that no prosecution should be brought .

The applicant lodged an appeal on points of law against that judgment . ORG dismissed his appeal in a judgment of CARDINAL DATE , which was served on him on DATE .

NORP The relevant Articles of LAW provide :

“ Sealed letters sent from remand prisoners to their defence lawyers and from defence lawyers to remand prisoners are not subject to the censorship referred to in LAW if it can be unequivocally ascertained that such letters are genuinely intended for the defence lawyer or have been sent by him . ”

“ All prisoners shall be entitled to submit an application or a complaint to the governor of the prison , who shall grant him a hearing if the ground on which he relies is sufficient .

Any prisoner may request a hearing by the judges and officials responsible for inspecting or visiting the prison , without any member of the prison staff being present . ”

“ A prisoner or party adversely affected by an administrative decision can apply for it to be referred to the regional director if the decision was made by a prison governor , or to the Minister if it was made by a regional director .

However , any decision taken pursuant to powers conferred by law , regulations or a ministerial circular shall be immediately enforceable notwithstanding recourse to the remedy provided for above . ”

“ Prisoners may at any time send letters to the NORP administrative or judicial authorities , a list of which is drawn up by the Minister of Justice .

Such letters may be sent sealed and are accordingly not subject to any censorship ; they must be dispatched without delay .

Any prisoner who takes advantage of the above provision to make insulting remarks , threats or defamatory allegations or to repeat unjustified complaints which have already been dismissed shall be liable to a disciplinary penalty , without prejudice to any criminal penalties . ”

“ Letters to and from prisoners must not be encoded and must not contain any coded sign or character .

They shall be stopped if they contain specific threats to the security of persons or of prisons . ”

“ … all ORG incoming and outgoing mail may be read for the purposes of censorship .

Letters to and from remand prisoners shall also be sent to the judge in charge of the investigation as and when that judge requires .

Letters which do not comply with the legal requirements may be stopped . ”

“ Prisoners may always correspond freely in sealed envelopes with the prison chaplain . That right can not be withdrawn as part of any disciplinary penalty . ”

“ Correspondence between prisoners and social workers belonging to CARDINAL of the departments of ORG may be undertaken freely in sealed envelopes . ”

DATE , third paragraph , of Circular no . ORG CARDINAL.CARDINAL.GCARDINAL of DATE provides :

“ If there is doubt as to the source of a sealed letter , it may be opened in the presence of the prisoner if he consents , or , failing that , in the presence of the Chairman of the Bar or of his representative . ”


Preliminary objection dismissed (six month period);Violation of Art. 2 (substantive aspect);Violation of Art. 2 (procedural aspect);Violation of Art. 13;No violation of Art. 14+2 (substantive aspect);No violation of Art. 14+2 (procedural aspect);Non-pecuniary damage - award

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

The applicant was born in DATE and lives in PERSON . He describes himself as being of ORG ethnic origin .

According to his assertions , at TIME on DATE , in foggy weather , the applicant went to a vacant yard in PERSON to intoxicate himself by inhaling liquid bronze , as he did frequently at that time . When he left the yard some time later , CARDINAL police officers saw him and yelled at him to stop . He did not and instead started running . Suddenly he saw a torch in front of him and veered to the left to evade capture . Then he heard shots but kept on running . After a few more steps , he felt a stinging pain in his stomach and fell to the ground . The officers approached and saw that he had a wound on his stomach . CARDINAL of the officers recognised him .

During the ensuing investigation ( see paragraphs CARDINAL below ) , the CARDINAL officers , sergeants GPE and GPE , stated that they saw the applicant jump over a fence , enter the yard of a Mr GPE , and head towards GPE 's henhouse . After waiting for TIME and making certain that the applicant was trying to steal hens , the officers , both of whom were armed with pistols loaded with live cartridges , intervened . They split up and approached the yard from different directions . When the applicant noticed them , he jumped the fence and started running through empty plots towards the nearby GPE neighbourhood . Despite several warnings , he did not stop . Then CARDINAL of the officers drew his pistol and fired at him with the intention of stopping him . At that moment the applicant was at QUANTITY from the officer and turned sideways . After that he kept on running . The other officer continued the chase , fired twice in the air , and caught up with the applicant QUANTITY from the place where he had been shot . The officer recognised the applicant , noticed that he was intoxicated , and saw a small wound on his stomach , but allegedly did not realise that it had been caused by a bullet .

NORP The officers immediately took the applicant to a hospital , where he was bandaged and sent home . They did not mention that they had used firearms against the applicant . The doctor who treated him did not realise that his wound had been caused by a firearm . Not long after that the applicant 's condition worsened and TIME he returned to the hospital , where he underwent a fivehour surgical operation . The doctors found that the applicant 's kidney had been ruptured by a bullet which had broken up into CARDINAL pieces , that his liver was damaged and he had been haemorrhaging into the abdominal cavity . The applicant 's kidney and part of his liver had to be removed .

On DATE GPE police informed ORG about the incident . On DATE that office opened an investigation against the CARDINAL officers .

On DATE the investigator in charge of the case interviewed the officers , the applicant and his father . On DATE he interviewed the doctor who had treated the applicant immediately after the incident and the person in charge of the hospital ward to which the applicant was later admitted . In their statements , the CARDINAL officers predominantly referred to the applicant as a “ person ” . At CARDINAL point sergeant PERSON said that when they approached the applicant after he had fallen to the ground he saw that he was “ an DATE or nineteen yearold Gypsy ” and that he reckoned that “ the Gypsy had pricked himself on something while running ” .

NORP The investigator also ordered a medical expert report on the nature and origin of the applicant 's injury . The report concluded that the applicant had been shot from the front and that as a result of the shot he had lost CARDINAL kidney , had suffered a temporarily lifethreatening condition and a wound penetrating the abdominal cavity .

On DATE the investigator proposed to the prosecuting authorities that the investigation be discontinued , stating that it was impossible to find the bullet which had wounded the applicant , that both officers stated that they had fired into the air and denied the accusation , and that the applicant had been unable to give credible evidence owing to his state of intoxication at the time of the events . In the investigator 's view , these factors made it impossible to ascertain which officer had shot the applicant and therefore to identify the perpetrator .

On DATE ORG decided to discontinue the investigation , reasoning that “ despite the thorough investigation ” it was impossible to ascertain who had fired the shot which had wounded the applicant . The bullet had not been found and both officers had stated that they had fired in the air .

On an appeal by the applicant , on DATE ORG set the discontinuance aside . It observed that certain mandatory investigatory steps , such as ordering a ballistics expert report and inspecting the scene of the shooting , had not been taken . Nor had the investigator ordered an expert report on the applicant 's ability to give evidence , in view of his state of intoxication at the time of the incident . The conclusion that it was impossible to ascertain who had fired the shot was illfounded . It was necessary to inspect the scene of the shooting and carry out a reconstruction of the events , and then order fresh medical and ballistic expert reports .

The case was then assigned to another investigator . In TIME of DATE he carried out a reconstruction of the events in the presence of the applicant , the CARDINAL officers , ballistics and medical experts and a photographer . In TIME he interviewed the CARDINAL officers , the head of their department , the doctor who had examined the applicant immediately after the incident , the head of the surgical ward of the hospital where the applicant had been operated on , and Mr GPE , the owner of the yard adjacent to the place where the applicant was shot . GPE stated that TIME he had seen footprints inside his yard and a broken plank on the wall of his henhouse , and that without the intervention of the police the applicant would certainly have stolen some of his hens . He had stolen CARDINAL hens DATE after recovering from his injuries . In their statements , both officers referred to the applicant as “ the civilian person PERSON or “ LOC .

A ballistics report ordered by the investigator was ready DATE , DATE . It concluded that the pistols of both officers had been capable of producing the shot which had wounded the applicant . A medical expert report drawn up on DATE concluded that the shot which had wounded the applicant had been fired by sergeant PERSON , and that at the time of the shot the applicant had been standing sideways , with his right shoulder turned towards GPE , at a distance of QUANTITY . The bullet had travelled from front to back and from right to left . A psychiatric report ordered by the investigator concluded that the applicant had been intoxicated , but not heavily , and had been able to control his actions , and was fit to give evidence about the incident .

Having finished his work on the case , on DATE the investigator proposed discontinuing the investigation . He found , on the basis of ORG 's statement , that the applicant had tried to steal hens from GPE 's henhouse . In his view , sergeant PERSON had acted in line with section CARDINAL(CARDINAL)(CARDINAL ) of the DATE ORG ( see paragraph CARDINAL below ) and was not criminally liable . The officer had made certain that the applicant was about to commit theft – a publicly prosecutable offence – , had warned him several times to stop , and , in view of the poor visibility and the proximity of the GPE neighbourhood , had reckoned that the applicant might flee .

On DATE ORG decided to discontinue the investigation , repeating the reasons given by the investigator almost verbatim .

On DATE ORG confirmed the discontinuance . It briefly reasoned that the officer had lawfully used his weapon , as a means of last resort . Before firing it , he had made certain , as required under LAW ) of LAW ( see paragraph CARDINAL above ) that the applicant was attempting to commit theft . In view of that , of the fact that there was no other way to arrest the applicant , and that the necessary measures under LAW ( see paragraph CARDINAL below ) had not been exceeded , the harm inflicted on the applicant was not unlawful .

In a final decision of DATE ORG also confirmed the discontinuance . It fully agreed with the prosecuting authorities ' conclusion that the officers ' actions had been in line with section CARDINAL ) of LAW ( see paragraph CARDINAL below ) . It did not mention LAW ( see paragraph CARDINAL below ) .

Later in DATE the applicant brought a tort claim against sergeant PERSON and the NORP police department . On DATE the ORG dismissed the claim . On DATE ORG upheld its judgment . The applicant 's ensuing appeal on points of law was rejected by ORG on DATE ( реш. № DATE от CARDINAL октомври DATE г. по гр. д. № DATE г. , ORG , GPE г. о. ) . The court held that the shooting had been a result of the applicant 's own actions and his failure to comply with the lawful instructions and actions of the police to stop and arrest him . Sergeant I.S. had acted in line with section CARDINAL(CARDINAL)(CARDINAL ) of the DATE ORG and the applicant was therefore not entitled to compensation for any resulting harm . The court did not mention LAW ( see paragraph CARDINAL below ) .

Section CARDINAL of the DATE ORG , as in force at the material time , provided , in so far as relevant :

“ ( CARDINAL ) The police may use firearms as a means of last resort :

NORP after giving a warning , to arrest a person who has committed or is committing a publicly prosecutable offence ; ...

( CARDINAL ) When using firearms the police are under a duty to protect , as far as possible , the life of the person against whom they use force ... ”

In DATE section CARDINAL(CARDINAL)(CARDINAL ) was amended to specify that the person against whom firearms could be used must also be resisting arrest or trying to escape . The wording of section CARDINAL(CARDINAL)(CARDINAL ) of the DATE Ministry of Internal Affairs Act , currently in force , repeats verbatim that of section CARDINAL ) of LAW , as amended in DATE .

Article CARDINAL § CARDINAL of the DATE LAW , added in DATE , provides that causing harm to a person while arresting him or her for an offence is not punishable where no other means of effecting the arrest exist and the force used is necessary and lawful . According to LAW , the force used is not necessary where it is manifestly disproportionate to the nature of the offence committed by the person to be arrested or the resulting harm is in itself excessive and unnecessary .

Under LAW , as in force until DATE , the discontinuance of a preliminary investigation could be challenged before a more senior prosecutor .

On DATE that Article was amended to provide for a system of automatic control of the discontinuance : after the discontinuance the prosecutor had to send the file and his decision to the immediately superior prosecutor 's office , which could confirm , modify or quash it . If it confirmed the decision , it had to forward the file to the appropriate court , which had to review the matter in private . The court 's decision was final . No provision was made for those concerned to be notified of the discontinuance .

Following a further amendment of that Article in DATE , the discontinuance of preliminary investigations became subject to judicial review . DATE Code of Criminal Procedure maintained that position , in Article CARDINAL § § DATE .


Preliminary objection rejected (non-exhaustion of domestic remedies);Violations of Art. 2;No violation of Art. 3 (torture);Violation of Art. 3 (failure to investigate);Violation of Art. 13;Non-pecuniary damage - financial awards;Costs and expenses partial award - Convention proceedings

The applicants were born in DATE and DATE respectively and were residents of GPE , GPE . The first applicant currently resides in Ingushetia , and the second applicant in LOC .

The facts surrounding the deaths of the applicants ' relatives and the ensuing investigation were partially disputed . In view of this the ORG requested that the ORG produce copies of the entire investigation files opened in relation to the applicants ' relatives ' deaths . ORG also requested that the applicants produce additional documentary evidence in support of their allegations .

The submissions of the parties on the facts concerning the circumstances of the applicants ' relatives ' deaths and the ensuing investigations are set out in Sections CARDINAL and CARDINAL below . A description of the materials submitted to ORG is contained in Part B.

The first applicant lived at FAC in the LOC of Grozny . After DATE the first applicant , who is ethnic PERSON , attempted to sell the house and leave because he felt threatened by the situation in GPE , but could not find anyone to buy it . During the hostilities in DATE the first applicant and his family stayed in FAC , and on their return found that all their property had been destroyed or looted .

NORP In DATE the first applicant left PERSON because of the renewed hostilities . His relatives decided to stay in PERSON to look after their houses and property . They were his brother , PERSON ( born in DATE ) , his sister PERSON ( born in DATE ) and her CARDINAL sons , PERSON ( born in DATE ) and ORG ( born in DATE ) . The first applicant 's brother lived in the street parallel to FAC , at FAC , and his sister lived in the neighbouring house at CARDINAL FAC .

The second applicant was a resident of the “ GPE ” DATE in LOC of ORG . In DATE she left the city together with her mother and sister because of the hostilities . Her brother , PERSON ( born in DATE ) remained to look after their property and house , located at CARDINAL FAC .

NORP In DATE the NORP federal army started an operation to take control of ORG . Heavy fighting lasted until DATE , when the central parts of the city were finally taken . The exact date on which the Staropromyslovskiy district of PERSON was taken by the federal forces is somewhat unclear . The applicants submitted , referring to the Government RIA and PERSON news agencies , that by DATE the LOC was under the NORP federal forces ' firm control . Several witness statements produced by the parties indicate that the federal troops were in control of the district as from DATE . The Government disputed this allegation and referred to CARDINAL witness statements , allegedly contained in criminal investigation file no . DATE which suggest that , although troops were present in the district DATE , they still faced scattered resistance from the NORP fighters ( “ boyeviki ” ) . However , no such testimonies are contained in the copy of the file submitted by the Government to the ORG , nor are they listed in the list of documents attached to the criminal case - file .

At DATE the applicants learned that their relatives had been killed in PERSON . On DATE the first applicant , his sister PERSON ( maiden name ORG ) , and CARDINAL of their former neighbours from ORG , ORG also spelled PERSON ) PERSON , travelled to PERSON to find out more about the state of their relatives . At CARDINAL FAC they found CARDINAL bodies lying in the courtyard with gunshot wounds and other marks . These were PERSON and ORG , the first applicant 's sister and nephew , and PERSON , the second applicant 's brother . The second applicant 's brother was holding his identity card as Head of ORG of ORG . Other documents were in a shirt pocket : his passport , identity card as researcher for ORG and his driving licence . Identity documents were also found on the CARDINAL other bodies .

The first applicant and the women had to return to PERSON on DATE , because of the curfew imposed after TIME There they informed the family of PERSON , including the second applicant , of his death . Having arranged for transport , on DATE they went to ORG to collect the bodies . Soldiers from a roadblock in the LOC accompanied them to the house at FAC and helped them to collect the bodies . The first applicant brought the bodies to the village of ORG in Ingushetia , where they were buried on CARDINAL DATE .

The first applicant submits that the bodies of his relatives bore marks of numerous stab and gunshot wounds and bruises , and that some bones were broken . In particular , the body of PERSON had CARDINAL stab wounds , her arms and legs were broken and teeth were missing . The body of ORG had multiple stab and gunshot wounds , and his jaw was broken ( see § CARDINAL below ) .

On DATE the second applicant travelled to PERSON and saw the bodies of her brother and of the first applicant 's relatives . She saw numerous gunshot and stab wounds and traces of beatings and torture on the body of her brother and on the other bodies . In particular , she submits that her brother 's body had CARDINAL gunshot wounds to his skull , heart and abdominal area . The left side of his face was bruised and his collar - bone was broken ( see § CARDINAL ) .

Both applicants submit that they did not contact a medical doctor or take photographs of the bodies at that stage due to the state of shock caused by their relatives ' violent deaths .

On DATE the village authorities of Psedakh , ORG , issued a certificate to confirm that the body of ORG , brought from LOC of PERSON , was buried on DATE in the village cemetery .

On DATE the second applicant travelled to ORG . In the courtyard of the house at CARDINAL FAC she picked up machine - gun cartridges and her brother 's hat . On DATE she saw CARDINAL other bodies in a nearby house . All had been shot . She learned that a sixth woman from the same group , PERSON , had been wounded but survived . The second applicant later traced her to ORG . PERSON informed the second applicant that they had been shot at by soldiers and that she had last seen the applicant 's brother alive on TIME DATE .

On DATE , the first applicant , together with his daughter and sister , travelled to PERSON again , hoping to find his missing brother and nephew . With help from a local resident they found CARDINAL bodies lying between nearby garages . These were the bodies of PERSON and PERSON , the first applicant 's brother and second nephew . The third body belonged to ORG , a neighbour . The first applicant took photographs of the bodies . He then brought a car to transport the bodies to ORG , where they were buried DATE . PERSON 's body was collected by his relatives on QUANTITY DATE for burial .

The first applicant submits that PERSON body was mutilated , CARDINAL of his skull was smashed and some fingers had been cut off . ORG body was grossly mutilated from numerous gunshots ( see § § CARDINAL and DATE ) .

On DATE at the first applicant 's request , the CARDINAL bodies were examined by officers of ORG of the Interior , who reported numerous wounds to the head , body and extremities . The examination took place in the LOC town morgue . The officers did not remove the clothes from the bodies , which were frozen .

The second 's applicant 's mother , ORG , died on DATE at DATE of a heart attack . The second applicant submits that her death was brought about by the news of her only son 's death .

On DATE ORG in Ingushetia , acting on a motion by the second applicant , certified the death of her brother , PERSON , which had occurred in PERSON on DATE . The court based its decision on statements of the applicant and CARDINAL witnesses . They confirmed that his body had been found in PERSON in the courtyard of the PERSON ' house with numerous gunshot wounds and that he had been buried on DATE in the village of Psedakh . Following the court 's decision , the civil registration office of the LOC district in ORG issued a death certificate for the second applicant 's brother on DATE .

On DATE the office of ORG issued a paper to the first applicant certifying that on DATE the dead body of his brother , PERSON , had been found in PERSON and that , given the numerous gunshot wounds to the head and body , his brother appeared to have died a violent death .

On DATE ORG in Ingushetia , at the first applicant 's request , certified the deaths of PERSON , PERSON , ORG and ORG , which had occurred in GPE , GPE , on DATE . The court based its decision on statements by the applicant and CARDINAL witnesses . The court noted in the decision that a criminal case had been opened and that an investigation was in progress ( there is no evidence that a criminal case had been opened at that time ) . Following the court decision , the civil registration office of the LOC district in ORG issued death certificates for the first applicant 's CARDINAL relatives on DATE .

The Government submitted a copy of investigation file no . DATE , opened on DATE by ORG following a publication entitled “ Freedom or Death ” in the ORG newspaper on CARDINAL DATE about mass murder of civilians by the “ CARDINALth brigade ” in the GPE Katayama settlement in Grozny on DATE . The relevant documents , as submitted by the Government , are listed below in Part B.

On DATE the military prosecutor of military unit no . CARDINAL ( the NORP federal military headquarters in GPE ) informed the first applicant , in response to a complaint he had made on DATE concerning the killing of his relatives , that , after a review by the prosecutor , no decision to open a criminal investigation had been taken for lack of corpus delicti in the actions of federal servicemen .

On DATE the ORG informed the first applicant that criminal case no . DATE , opened on CARDINAL DATE into the deaths of GPE and PERSON , had been transferred on DATE to ORG in Ingushetia .

On DATE the office of ORG , in response to a request by ORG for information regarding the investigation into the second applicant 's brother 's death , forwarded this request to ORG of LOC .

On DATE the second applicant was informed by a letter from the office of ORG , addressed to the special prosecutor 's office in LOC , that a “ local prosecutor 's office ” was investigating the case of her brother 's death .

On DATE the Chief Military Prosecutor , in response to an enquiry from ORG about violations of the rights of civilians in ORG in DATE , informed the NGO that the military prosecutors were investigating only CARDINAL case - that of the murder and injury of QUANTITY women – which was unconnected with the applicants . That investigation was still ongoing and was being supervised by the office of ORG .

In DATE the QUANTITY criminal cases opened at the applicants ' requests were joined in ORG with investigation no . DATE . This investigation was adjourned and reopened several times . The last document in the file submitted by the Government is dated DATE ; in it the Deputy to ORG extended the period of investigation until DATE . The investigation carried out by ORG focused on the version initially submitted by the applicants and by all witnesses whose statements had been produced , alleging that the killings were committed by a military detachment . The investigation failed to identify the detachment which was responsible and no one was charged with the crimes ( see Part B below for a description of the documents in the investigation file ) .

In DATE the Presidium of ORG in ORG rejected a request for supervisory review ( protest ) by ORG , in which he sought to quash the decision of ORG DATE . Another request for supervisory review was made by the Deputy Chairman of ORG of GPE , and on DATE ORG quashed the decision . ORG referred to LAW of LAW , which states that those who request courts to establish facts of legal significance must indicate the reasons for that request . It found that the second applicant had failed to set out the reasons for which she sought “ legal certification ” of her brother 's death . The case was remitted back to ORG . On DATE the ORG decided not to consider the case on the merits , since the second applicant had twice failed to appear for a hearing without valid reasons . The second applicant submits that she was not informed of the new set of proceedings in ORG and that the summonses were not delivered to her .

At DATE the first applicant applied to a district court in GPE seeking pecuniary and non - pecuniary damages from ORG . The applicant stated that his CARDINAL relatives had been killed in ORG in DATE by the military . He had found their bodies and had transported them with great difficulty to ORG , where they were buried . A criminal investigation was opened , but failed to establish the servicemen responsible for the killings . Witness PERSON testified to the court that he lived in the LOC not far from the applicant 's family . In DATE , DATE after the federal troops had established firm control over the district , he saw the servicemen leading PERSON and CARDINAL of his nephews towards the garages . They were walking in front of an armoured personnel carrier ( ORG ) ; armed soldiers were sitting on its hull . Soon afterwards he heard automatic rifle shots from the garages . When he attempted to go there , soldiers threatened him . He also submitted that he was threatened by someone from the prosecutor 's office to “ keep his mouth shut ” . Other witnesses testified about the circumstances in which the bodies were discovered in ORG , transported to Ingushetia and buried , and about the state of the bodies prior to burial .

NORP On DATE ORG in ORG partially granted the first applicant 's claim and awarded him pecuniary and non - pecuniary damages in the amount of MONEY .

The court noted that it was common knowledge that the LOC district was under the firm control of the NORP federal forces by the material time , and that this did not need to be proved . At that time only federal soldiers were able to travel about town on an ORG and to conduct identity checks . That PERSON and ORG had been killed during an identity check was corroborated by the fact that their bodies were found in the courtyard of their house with identity documents in their hands . The court further noted that the exact military unit responsible for the killings had not been established by the investigation , which had been adjourned on DATE . However , all military units were ORG bodies and therefore pecuniary damage should be paid by the ORG .

The decision was upheld at the final instance by ORG on DATE , and on DATE the applicant was issued the writ of execution . The decision was not executed immediately because , as the ORG submit , the applicant failed to present details of his bank account . On DATE the applicant received the award in full .

In their submissions on the merits the ORG stated that investigative measures continued in DATE . On DATE the second applicant was recognised as a victim in the criminal proceedings . On DATE additional forensic reports were prepared on the bodies of PERSON and ORG ( presumably , on the basis of the existing descriptions of the bodies ) . Certain additional witnesses were questioned . The Government did not , however , submit copies of these documents to the ORG .

The Government submit that the investigation into criminal case no . DATE found itself in a “ deadlock ” , since it proved impossible to identify eye - witnesses to the killings .

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

The Government submitted a copy of the investigation file in criminal case no . DATE , which comprises CARDINAL volumes , and a list of documents contained therein . According to the list , the file contained CARDINAL documents , of which CARDINAL were submitted to the ORG . On DATE the ORG reiterated its request to ORG to submit a copy of the complete investigation file . The Government responded that the documents withheld were not relevant to the circumstances of the present case .

The most important documents contained in the file are as follows :

On DATE , following the publication of an article entitled “ Freedom or Death ” in the ORG newspaper on DATE , the investigator of ORG opened a criminal investigation under LAW , ( d ) , ( e ) and ( j ) of LAW “ concerning mass murder by the ' CARDINALth brigade ' of civilian population in the GPE Katayama settlement in Grozny on DATE ” .

The case file contains the first applicant 's brief statements of facts concerning his relatives ' deaths and requests to conduct an investigation , dated DATE ( addressed to ORG ) and of DATE ( addressed to the NORP President ) .

In their further testimonies dated CARDINAL DATE the first applicant and his sister PERSON ( born ORG ) gave details concerning the discovery of their relatives ' bodies . Both stated that on DATE they had travelled to PERSON with ORG , their neighbour from ORG . On FAC they met a local resident , PERSON , who told them that their relatives had been taken away by federal soldiers . After discovering the CARDINAL bodies at CARDINAL FAC they returned to FAC , where they met a group of soldiers who were taking things from a house and stacking them in a lorry . The first applicant asked the soldiers ' help to remove the bodies , but CARDINAL of them , who introduced himself as the commander , PERSON , who was aged CARDINAL and dressed in camouflage , refused . When the applicant insisted and said that his sister and nephew had been killed , PERSON said that the fighters had killed CARDINAL soldiers and that the murders were an act of revenge on their part . The applicant lost his temper and started to curse , but CARDINAL of the soldiers raised his gun and GPE stepped forward to protect him , then led him away . Both certified that they could have identified the house and “ commander PERSON . They returned to ORG on DATE with a car , removed the bodies with the assistance of soldiers from a nearby roadblock and transported them to ORG .

GPE further testified that she had washed PERSON body before burial , and had seen numerous ( CARDINAL ) stab and gunshot wounds on her body . Her left arm was broken and front teeth were missing . She further testified that ORG head bore numerous blow marks and that his jaw had been broken .

The first applicant and his sister also testified about their return to PERSON on DATE . They stated that they again met PERSON , who told them that their relatives had been led away by soldiers towards the garages . They followed his directions and found CARDINAL bodies , all frozen to the ground and with heavy wounds to the head . The first applicant took photographs of the bodies at the spot and went to fetch a car . On DATE they delivered the bodies to ORG , where they were buried the following day , on DATE . They also stated that they had collected cartridges in the yard of CARDINAL FAC which were still in their possession .

The first applicant 's daughter , PERSON , accompanied her father and aunt on their trip to PERSON on DATE . In her statement of CARDINAL DATE she confirmed their accounts regarding the discovery of the bodies of PERSON , ORG and ORG .

An examination of the bodies of PERSON and PERSON was conducted by an investigator from ORG in the municipal morgue on DATE . The bodies were frozen , and the examination was conducted without removing the clothes . On DATE CARDINAL forensic reports were prepared by a forensic expert , based on the investigator 's descriptions and without examining the bodies . The report stated that ORG 's body had CARDINAL gunshot wounds and that his death had been caused by a gunshot wound to the head . GPE 's body had CARDINAL gunshot wounds and his death also appeared to have been caused by numerous gunshot wounds to the head and body .

On DATE and CARDINAL DATE ORG made a report and took photographs of other evidence in the case – identity documents of the deceased persons , photographs of the bodies taken by the first applicant and ORG and PERSON clothes .

On DATE the first applicant was recognised as a victim in the criminal proceedings and he signed the notification thereof in ORG . On DATE the same notification was signed at ORG .

On DATE U. and Y. , CARDINAL women residents of the LOC district of PERSON , made statements . Both witnesses confirmed that they had seen the bodies of people who had been shot and that , at the relevant time , the district had been under the control of federal forces . Neither of them had witnessed the executions but referred to the “ rumours ” that the murders had been committed by federal troops . Both witnesses testified that they had seen soldiers looting abandoned houses in the district .

Two female relatives of ORG , PERSON and PERSON , made statements related to the circumstances surrounding the discovery of the bodies of PERSON , ORG 's mother , on DATE at the intersection of FAC and FAC , and ORG , on DATE . ORG testified that a man from the neighbourhood named PERSON told her that their relatives had been killed by soldiers from the CARDINALth infantry brigade from ORG , and referred to CARDINAL soldiers who had told him the same thing – one named PERSON , the other PERSON . She also testified that on DATE , when they were taking PERSON body to ORG , they took along a wounded woman , PERSON , who had survived an attack by soldiers on DATE and who was later taken to the ORG hospital in GPE .

Several documents refer to a certain PERSON . , whose family had resided at CARDINAL FAC . From the witnesses ' testimonies it appears that PERSON . left PERSON at DATE , while his parents ( or aunt and uncle ) lived at the said address . They had been killed in DATE by NORP fighters and their house had been occupied . The witnesses referred to “ rumours ” that PERSON . was among the soldiers involved in the killings and that he was motivated by revenge . The house at CARDINAL Neftyanaya was destroyed during the fighting . Several requests for information about PERSON . were sent by the investigators to the military authorities and to the civil authorities of the neighbouring regions , but the answers to these requests were either negative or were not provided by the Government .

NORP The journalist PERSON , author of the article “ Freedom or Death ” , was questioned on several occasions by the investigators . She testified that in DATE she was in PERSON and in LOC of PERSON , where she had interviewed several witnesses of the massacre and the relatives of the deceased . In their interviews , several witnesses had referred to the “ CARDINALth brigade ” as being responsible for the murders .

In her statement by DATE , addressed to ORG , the second applicant testified that on DATE her brother 's body had been found in the courtyard of the Khashiyevs ' house by PERSON and his sister GPE . The second applicant saw her brother 's body in ORG and noted several gunshot wounds to his face , heart and abdomen . His left collar - bone was broken . His identity card from ORG had been found in his hand , and his passport and other identity documents and CARDINAL CARDINAL-rouble notes were in his pocket .

On DATE the second applicant travelled to ORG . In the courtyard at CARDINAL FAC she picked up several cartridges from an automatic weapon and her brother 's hat . On DATE the second applicant saw CARDINAL dead bodies in a nearby garage , belonging to CARDINAL women and QUANTITY men . A sixth person from that group , PERSON , had survived the massacre and later told the applicant , who found her in a hospital in ORG , that they were shot on DATE by soldiers from the CARDINALth brigade from ORG . She also said that she had seen ORG and the PERSON in TIME of DATE and that they were alive . On DATE she was picked up by the Goygovs , who had come to collect their dead , and taken to ORG to a hospital . On DATE the second applicant met with PERSON , who was at the material time living in PERSON , who had heard the members of the military talking in the commendatura of the Staropromyslovskiy district after DATE that they had shot a “ professor ” . PERSON 's story was related in the article “ Freedom or Death ” .

On DATE the ORG opened a criminal investigation into the killing of the second applicant 's brother . On DATE this investigation was joined with criminal case no . DATE related to the mass murder in LOC . On DATE the deputy ORG created an investigating group , made up of CARDINAL investigators , to work on the case .

On DATE the headquarters of ORG ( UGA ) of ORG ( based in GPE ) replied to the prosecutor 's request and submitted a list of military units identified by CARDINAL - digit numbers only , which had been deployed in ORG DATE and DATE .

On DATE an investigator from ORG sent a request to the military prosecutor of military unit no . CARDINAL ( GPE ) , asking to identify the exact temporary location of the military units at the relevant time , to identify the commanding officers and retrieve notes referring to operations in LOC . The file reviewed by ORG contained no reply to that request .

At different stages of the proceedings several orders were produced by ORG enumerating the steps to be taken by the investigators . The order of DATE listed QUANTITY persons whose bodies had been discovered in Novaya Katayama , including the applicants ' relatives . On DATE the same prosecutor 's office ordered the investigators to establish possible places of burial of other civilians , to identify further witnesses and victims and to identify military units possibly responsible for the crimes .

A summary of the main steps of the investigation is given in the order by the ORG dated DATE , which is the last document in the case - file . Criminal investigation file no . DATE was started by ORG on DATE following the publication of the article “ Freedom or Death ” about mass murder in LOC . On DATE ORG in ORG opened a criminal investigation following the first applicant 's complaint concerning the killing of his relatives . On DATE both criminal cases were joined as no . DATE . On DATE the ORG opened a criminal investigation following the second applicant 's complaint concerning the killing of her brother . On DATE it was joined to criminal case no . DATE .

DATE . The case was adjourned CARDINAL times and the investigation was renewed on CARDINAL occasions . The file was transferred CARDINAL times between ORG and ORG . The document concludes with a list of tasks that should be carried out by the investigation team , including identification of the military units deployed in LOC of PERSON at the relevant dates , identification of the burial places of civilians in the Novaya Katayama settlement , identification of witnesses and the victims of the crimes , etc .

The applicants submitted a number of additional documents relating to the circumstances of the killings and discovery of the bodies . The main documents of relevance are as follows :

The applicants submitted a statement by PERSON , registered medical practitioner , Professor of ORG at ORG and Consultant Pathologist to ORG . The statement was prepared on the basis of the applicants ' submissions concerning the circumstances of their relatives ' deaths and of CARDINAL colour photographs taken by the first applicant when the bodies of PERSON , ORG and ORG were found .

The expert concluded that “ the photographs show injuries in keeping with bullets fired from a high velocity rifle . ... High velocity rifles can cause significantly destructive injuries . Those unused to looking at injuries caused by these weapons may mistake the cause of injuries produced by these weapons . ” He further listed a number of procedural steps normally taken in an examination of a body of a person who has died in suspicious circumstances . In the expert 's opinion , these should include an x - ray of the body to identify and recover the projectiles and detailed examination and photographing of the external injuries , “ as the pattern of injuries may indicate whether the victims were shot at close range or they had been tortured ” .

In his letter dated DATE , Deputy General Prosecutor Mr PERSON replied to a request for information sent by PERSON , a member of ORG . The letter contains information relating to the prosecution of army servicemen in GPE for crimes committed against civilians . Since the beginning of the “ counter - terrorist operation ” , CARDINAL indictments have been forwarded to the courts by the military prosecutors and CARDINAL persons have been indicted . Of those , CARDINAL cases concerned murder , DATE theft , DATE abuse of power , DATE careless driving of military vehicles , etc . CARDINAL persons were found guilty , of whom CARDINAL were officers , CARDINAL were professional soldiers and sergeants , CARDINAL were conscript soldiers and CARDINAL were non - commissioned officers . In addition , ORG brought CARDINAL charges against CARDINAL servicemen of ORG for crimes against the civilian population . From the description attached to the letter it follows that , in the majority of cases , the sentences were conditional or were lifted in application of an amnesty .

A number of documents submitted by the applicants relate to the proceedings initiated by them in the domestic courts in order to have the facts of their relatives ' deaths established .

On DATE the first applicant submitted an application to ORG in ORG , seeking to have certified the facts of the deaths of his brother PERSON , his sister PERSON and his CARDINAL nephews , ORG and ORG . The first applicant submitted that his relatives had remained in PERSON during DATE , while he and the rest of the family escaped the hostilities to FAC . On DATE the soldiers of the “ CARDINALth battalion ” of the federal army entered LOC and “ committed outrages ” . On DATE they entered his sister 's household and killed his relatives in a brutal fashion , causing numerous firearms and stab wounds . The first applicant learnt the details of the killings when he attended the funeral of a neighbour , PERSON . His relatives were buried in ORG . A criminal investigation had been opened and was ongoing . The declaration of deaths was required to obtain death certificates from the civil registration office .

From the transcript of the hearing of CARDINAL DATE it follows that the court heard the applicant , who repeated his statement , and CARDINAL witnesses to the burial from the village of PERSON . They merely confirmed that the bodies had been brought to PERSON for burial and that they were aware that the killings had been committed by the federal soldiers . The court issued its decision on DATE .

DATE . On DATE the second applicant submitted an application to ORG , seeking to establish the fact of her brother 's death . She submitted that her brother 's body had been found in PERSON on DATE in the vicinity of his house . His death was caused by numerous gunshot wounds . His body had been brought from PERSON and buried in the village of Psedakh in Ingushetia on DATE . The court decision certifying his death was required to obtain a death certificate from the civil registration office .

From the transcript of the hearing of DATE it follows that the court heard the second applicant and CARDINAL witnesses . The second applicant testified that in DATE she and her aunt ( her mother 's sister ) had moved from PERSON to PERSON and lived with her mother in the village of Psedakh . Her brother PERSON remained in PERSON to look after the property . On DATE PERSON and PERSON came to them and said that CARDINAL bodies had been found in their family house in PERSON , and that one of them was her brother 's . Her relative NORP went to PERSON with the PERSON and brought the body back . On DATE her brother was buried in Psedakh .

Witness NORP testified that she was a close relative of the second applicant 's mother . On DATE they were visited in Psedakh by the ORG who told them that the body of ORG was in the courtyard of their house in PERSON . They identified him by his card from ORG , where he had been the Head of ORG . On DATE they brought his body to Psedakh and buried him . Another witness from Psedakh confirmed the fact of burial . The court issued its decision on DATE .

Article CARDINAL of the LAW of GPE protects the right to life .

Article CARDINAL of the LAW guarantees the protection of rights and liberties in a court of law by providing that the decisions and actions of any public authority may be appealed to a court of law . LAW same LAW guarantees the right to apply to international bodies for the protection of human rights once domestic legal remedies have been exhausted .

Articles DATE and CARDINAL provide that the rights of victims of crime and abuse of power shall be protected by the law . They are guaranteed access to the courts and compensation by the ORG for damage caused by the unlawful actions of a public authority .

Article CARDINAL ( CARDINAL ) provides for the restriction of rights and liberties by a federal law , but only to the extent required for the protection of the fundamental principles of the constitutional system , morality , health , rights and lawful interests of other persons , the defence of the country and the security of the state .

Article CARDINAL of the LAW provides that a state of emergency may be declared in accordance with federal law . Certain rights , including the right to life and freedom from torture , may not be restricted .

Section CARDINAL of the Law on Defence ( Федеральный закон от CARDINAL мая DATE г. N CARDINAL-ФЗ " Об обороне " ) provides that “ supervision of adherence to laws and investigations of crimes committed in ORG , other Forces , military formations and authorities shall be exercised by ORG and subordinate prosecutors . Civil and criminal cases in ORG , other forces , military formations and authorities shall be examined by the courts in accordance with the legislation of GPE . ”

The PERSON on the Suppression of Terrorism ( Федеральный закон от CARDINAL DATE г. № DATE « О борьбе с терроризмом DATE ) provides as follows :

“ Section CARDINAL . Basic Concepts

For purposes of the present ORG the following basic concepts shall be applied :

... ' the suppression of terrorism ' shall refer to activities aimed at the prevention , detection , suppression and minimisation of the consequences of terrorist activities ;

' counter terrorist operation ' shall refer to special activities aimed at the prevention of terrorist acts , ensuring the security of individuals , neutralising terrorists and minimising the consequences of terrorist acts ;

' zone of a counter - terrorist operation ' shall refer to an individual terrain or water surface , means of transport , building , structure or LOC with adjacent territory where a counter - terrorist operation is conducted ; ...

Section CARDINAL . Legal regime in the zone of an anti - terrorist operation

In the zone of an anti - terrorist operation , the persons conducting the operation shall be entitled :

... CARDINAL ) to check the identity documents of private persons and officials and , where they have no identity documents , to detain them for identification ;

CARDINAL ) to detain persons who have committed or are committing offences or other acts in defiance of the lawful demands of persons engaged in an anti - terrorist operation , including acts of unauthorised entry or attempted entry to the zone of the anti - terrorist operation , and to convey such persons to the local bodies of ORG of GPE ;

CARDINAL ) to enter private residential or other LOC ... and means of transport while suppressing a terrorist act or pursuing persons suspected of committing such an act , when a delay may jeopardise human life or health ;

CARDINAL ) to search persons , their belongings and vehicles entering or exiting the zone of an anti - terrorist operation , including with the use of technical means ; ...

Section CARDINAL . Exemption from liability for damage

In accordance with and within the limits established by the legislation , damage may be caused to the life , health and property of terrorists , as well as to other legally - protected interests , in the course of conducting an anti - terrorist operation . However , servicemen , experts and other persons engaged in the suppression of terrorism shall be exempted from liability for such damage , in accordance with the legislation of GPE . ”

Articles CARDINAL of LAW ( Гражданский процессуальный PERSON ) ) , in force at the material time , contained general formal requirements governing an application to a court , including , inter alia , the defendant 's name and address , the exact circumstances on which the claim was based and any documents supporting the claim .

Article CARDINAL part CARDINAL provided that the court had to suspend consideration of a case if it could not be considered until completion of another set of civil , criminal or administrative proceedings .

Article CARDINAL of the Code provided that if in the course of reviewing a complaint against the actions of an official or a civil claim a court came across information indicating that a crime had been committed , it was required to inform the prosecutor .

Chapter CARDINAL established that a citizen could apply to a court for redress in respect of unlawful actions by a state body or official . Such complaints could have been submitted to a court , either at the location of the state body or at the plaintiff 's place of residence , at the latter 's discretion . Under the same procedure , the courts could also rule on an award of damages , including non - pecuniary damages , where they concluded that a violation had occurred .

The DATE Code of Criminal Procedure ( Уголовно-процессуальный PERSON РСФСР CARDINALг. с изменениями и дополнениями ) , in force at the material time , contained provisions relating to criminal investigations .

Article CARDINAL stated that where a victim had died as a result of a crime , his or her close relatives should be granted victim status . During the investigation the victim was entitled to submit evidence and bring motions . Once the investigation was complete the victim had full access to the case - file .

Article CARDINAL provided that criminal proceedings could be instituted on the basis of letters and complaints from citizens , public or private bodies , articles in the press or the discovery by an investigating body , prosecutor or court of evidence that a crime had been committed .

Article CARDINAL provided that the investigating body was to take one of the following decisions within a maximum period of DATE after notification of a crime : open or refuse to open a criminal investigation , or transmit the information to an appropriate body . The informants were to be informed of any decision .

Article CARDINAL provided that , where an investigating body refused to open a criminal investigation , a reasoned decision was to be provided . The informant was to be made aware of the decision and could appeal to a higher - ranking prosecutor or to a court .

Article CARDINAL provided that the military prosecutor 's office was responsible for the investigation of crimes committed by military servicemen in relation to their official duties or within the boundaries of a military unit .

Article CARDINAL provided that a criminal investigation could be suspended , inter alia , if it was impossible to identify the persons who could be charged with the crime . In such cases , a reasoned decision was to be issued . No investigative actions were to be carried out once a case had been suspended . A suspended criminal case could be closed on expiry of the limitation period .

Articles CARDINAL and CARDINAL contained information relating to the closure of a criminal investigation . Reasons for closing a criminal case included the absence of corpus delicti . Such decisions could be appealed to a higher - ranking prosecutor or to a court .

No state of emergency or martial law has been declared in GPE . No federal law has been enacted to restrict the rights of the population of the area . No derogation under LAW has been made .

On DATE ORG adopted Decree no . CARDINAL by which an amnesty was granted in respect of criminal acts committed by the participants to the conflict on both sides in the period DATE and DATE . The amnesty does not apply to serious intentional crimes , such as murder .