Violation of Art. 5-3;Non-pecuniary damage - award

András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky

The applicant was born in DATE and lives in GPE .

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

On DATE ORG ( Peto opštinsko javno tužilastvo ) in GPE filed a request for the opening of a judicial investigation ( zahtev za sprovođenje istrage ) against the applicant , alleging that he had committed numerous offences of theft under LAW .

On DATE the investigating judge of ORG in GPE ( PERSON opštinski sud u ORG , hereinafter “ the ORG ” ) instituted a judicial investigation ( doneo rešenje o sprovođenju istrage ) in respect of these charges .

On DATE the same court ’s investigating judge found that the applicant ’s whereabouts were unknown and issued a warrant , ordering his detention for a period of DATE .

On DATE ORG , acting ex officio , appointed a lawyer to represent the applicant in the proceedings .

On DATE , at TIME , the applicant was arrested by the police and taken to FAC ( GPE zatvor ) in GPE . This arrest was carried out on the basis of ORG detention order of DATE .

On DATE ORG attempted to contact the applicant ’s lawyer , but he could not be reached . On DATE , therefore , the court appointed another lawyer to represent the applicant .

NORP Since the newly appointed lawyer was unable to go to FAC on DATE , the applicant ’s hearing was re - scheduled for DATE .

On DATE , at TIME , the applicant , in his lawyer ’s presence , was heard by the investigating judge of ORG , on which occasion , inter alia , he denied all charges and explicitly waived his right to file an appeal against the detention order of DATE . It would appear that the applicant considered that he had little chance of being released on appeal and preferred instead to be tried as soon as possible .

On DATE ORG issued an indictment against the applicant .

On DATE the CARDINAL - judge panel of ORG extended the applicant ’s detention for DATE , without having heard him or his lawyer in person .

On DATE the applicant filed an appeal against this decision , pointing out , inter alia , that he had not been brought promptly before a judge , “ in breach of LAW ” .

On DATE ORG ( Okružni sud ) in GPE rejected this appeal , ruling again in the absence of the applicant and his lawyer . It also failed to consider the applicant ’s specific complaint made under LAW .

The applicant ’s trial began on DATE , but his detention had been extended .

On CARDINAL DATE the applicant was found guilty by ORG , sentenced to DATE and DATE in prison and released from detention .

On DATE ORG quashed the impugned judgment and ordered a retrial .

On DATE ORG , based on a somewhat amended indictment , found the applicant guilty and sentenced him to DATE in prison .

On DATE the applicant seems to have filed an appeal against this judgment with ORG in GPE .

Article CARDINAL stated that the “ provisions of international treaties on human and minority rights applicable in ... [ ORG of ] ... GPE and GPE shall be directly enforceable ” .

Article CARDINAL regulates police detention , providing , inter alia , that it can last TIME , which is when the suspect must be brought before the investigating judge who can , in accordance with LAW , either order his release or have him placed in “ judicial detention ” .

Articles CARDINAL - CARDINAL concern “ pre - indictment detention ” , that is judicial detention following any police detention until the defendant ’s indictment by the public prosecutor . Under these provisions , the investigating judge , in addition to conducting the investigation , is also authorised to order the defendant ’s detention . The defendant whose detention was so ordered in his absence shall be served with this order upon arrest or , at the latest , within TIME thereafter . The defendant shall then have the right to lodge an appeal against this order , which appeal must be filed within TIME and considered by a CARDINAL - judge panel of the same court within TIME . The defendant and his counsel have no right to be heard in person on this occasion but the CARDINAL - judge panel , if it so decides , may invite them to appear and state their views orally ( see , also , LAW . The investigating judge can order detention for DATE . Throughout the judicial investigation stage of the proceedings , the defendant is not explicitly entitled to request his release , but the investigating judge may release the defendant with the consent of the competent public prosecutor . If there is disagreement between the CARDINAL , the issue shall be resolved by a CARDINAL - judge panel of the same court , within TIME . The defendant and his counsel have no right to be heard in person on this occasion ( ibid . ) . The CARDINAL - judge panel may also extend the defendant ’s pre - indictment detention for DATE , without having heard him or his counsel in person ( ibid . ) . The defendant and his counsel can lodge an appeal against this decision to a higher court , but again have no right to be present when this appeal is being considered ( see , also , Articles CARDINAL and CARDINAL § CARDINAL , as well as LAW and CARDINAL ) . As regards crimes punishable by more than DATE imprisonment , the CARDINAL - judge panel of ORG can extend the defendant ’s detention for an additional period of DATE , without having heard him or his counsel in person ( see , also , LAW . The defendant and his counsel can lodge an appeal against this decision to another panel of the same court but , again , have no right to be present when this appeal is being considered ( see , also , Articles CARDINAL and CARDINAL § CARDINAL , as well as LAW and CARDINAL ) . After DATE , the defendant has to be indicted or released . Domestic law , therefore , provides that pre - indictment detention can not last DATE in all .

Under LAW , following the indictment of the defendant until the adoption of the judgement at first instance , detention is a matter for the trial chamber to decide , during the hearings themselves , or , indeed , for the same court ’s CARDINAL - judge panel in - between those hearings . Apart from that , “ post - indictment detention ” is automatically reviewed DATE until the indictment is confirmed and DATE following this confirmation until the adoption of the judgement at first instance . The accused and defence counsel have no explicit right to be heard in person by the said CARDINAL - judge panel or to be present when their appeal against the decision rendered within the “ automatic review mechanism ” is being considered by a higher court ( ibid . ) .

Pursuant to LAW , the situation of persons detained on remand is regularly monitored by the president of the competent court or a judge appointed by the president who can not be an investigating judge . The president of the court and the investigating judge , however , may visit persons detained on remand at any time , speak with them and receive their complaints .

Lastly , Article CARDINAL provides , inter alia , that the competent public prosecutor “ may ” ( može ) file a ORG ( zahtev za zaštitu zakonitosti ) against a “ final judicial decision ” , on behalf of or against the defendant , if the relevant substantive and/or procedural “ law has been breached ” ( ako je povređen zakon ) .

The relevant provisions of this LAW read as follows :

“ A party or another participant in the court proceedings shall have the right to complain about the work of a court when they consider the proceedings delayed , improper , or that there has been an [ untoward ] influence on their course and outcome . ”

“ The President of a higher instance court shall have the right to monitor the court administration of a lower instance court , and the President of a directly higher court shall have the authority to adopt an act from within the competence of the President of a lower instance court , if the latter omits to perform his duty .

The President of a higher instance court may request from the lower instance court information regarding the implementation of existing legislation , information concerning any problems about trials and all information regarding the work of the court .

The President of a higher instance court may order a direct inspection of the work of a lower instance court . ”

“ When a party to a case or another person taking part in the proceedings files a complaint , the President of the court must , having considered it , inform the complainant about his views concerning its merits as well as any measures taken in this respect , within DATE of receipt of the complaint .

If a complaint was filed through ORG or through a higher instance court , the Minister and the President of a higher court shall be informed of the merits of the complaint and of any measures taken in this respect . ”

Under LAW , inter alia , the President of a court must ensure that the court ’s work is carried out in a timely manner . He or she shall also look into every complaint filed by a party to the proceedings in respect of delay and respond within DATE , giving his or her decision and , if necessary , ordering that steps be taken to remedy the situation .

DATE , inter alia , provides that ORG shall supervise the work of the courts in terms of their timeliness . Should certain problems be identified , the Ministry shall “ propose ” specific measures to be undertaken within DATE .

“ ORG shall set up a ORG [ “ PERSON odbor ” ] ( “ the Board ” ) .

ORG shall be composed of CARDINAL ORG judges elected for DATE by the plenary session of ORG . ”

“ In response to a complaint or ex officio , ORG is authorised to oversee judicial proceedings and look into the conduct of individual cases .

Following the conclusion of this process , the ORG may initiate , before ORG , proceedings for the removal of a judge based on his unconscientious or unprofessional conduct , or propose the imposition of other disciplinary measures . ”

Articles CARDINAL and CARDINAL of LAW provide , inter alia , that anyone who has suffered fear , physical pain or , indeed , mental anguish as a consequence of a breach of his “ personal rights ” ( prava ličnosti ) is entitled , depending on their duration and intensity , to sue for financial compensation in the civil courts , as well as to request other forms of redress “ which might be capable ” of affording adequate non - pecuniary satisfaction .


No violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention)

Anatoly Kovler;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Linos-Alexandre Sicilianos

The applicant was born in DATE and lived in GPE until his arrest .

On CARDINAL DATE the applicant was arrested on suspicion of aggravated fraud . The prosecutor ’s case was that DATE and DATE he , with CARDINAL others , had fraudulently assumed ownership of LOC and a plot of land which belonged to a private legal entity in GPE . The criminal proceedings had been pending since DATE without any apparent progress , with the criminal case having been closed , reopened , stayed and transferred between various investigating authorities on a number of occasions , until in DATE it was assigned to a large group of investigators from ORG of ORG of GPE in GPE .

GPE investigators lodged a request with ORG for authorisation of the applicant ’s remand in custody . The request was supported by a certifying statement issued by a high - ranking police official . The relevant parts of the statement read as follows :

“ As a result of investigation and search operations , such as ‘ gathering of ORG and ‘ ORG , it has been established that ...

[ The applicant ] is an active member of the inter - regional organised criminal community headed by ‘ PERSON Bryanskiy’ [ Mr PERSON ] , which has for a long time been active in the territory of LOC . [ The applicant ] is a direct subordinate of the leader of [ that criminal community ] , PERSON , with whom he has been committing serious and very serious crimes .

[ The applicant ] has extensive corrupt contacts with ORG bodies and with various law - enforcement agencies in GPE , GPE and other towns in the country .

[ The applicant ] is a founder of CARDINAL limited - liability companies ; [ he ] owns a car ... He has substantial financial resources , a travel passport ... ; he occasionally travels abroad for business meetings or vacations , [ with the most recent visits to ] ... GPE [ in DATE ] , GPE ... in DATE , GPE ... in DATE [ and ] GPE am GPE ... in DATE .

On DATE the Kuybyshevskiy ORG authorised the applicant ’s placement in custody , having held as follows :

“ [ The applicant ] is accused of a serious crime against property for which the criminal law establishes punishment of imprisonment for DATE . The particular circumstances of the crime of which he is accused , committed by an organised group over a lengthy period of time and causing extensive damage to the victims , demonstrate a crime of a particularly audacious nature and thereby an increased danger to society .

The materials presented contain statements by suspect PERSON and victim T. , connecting [ the applicant ] to the crime he is accused of . At the same time , the victim stated that on a number of occasions , when the documents confirming the transfer of title to the immovable property had been signed , [ the applicant ] had threatened her and her mother with a gun , thus breaking their will to resist the unlawful actions committed against them . All this was part of the plan which had been developed to take over their property . Given the victim ’s fear for her life and limb , these circumstances forced her initially to give incomplete statements . In the court ’s opinion , this is a sign that the individuals involved in the offence influenced the victim with the aim of obstructing the proceedings in the criminal case .

Having regard to the above - mentioned and given the particular circumstances of the crime with which [ the applicant ] is charged , the significance of the crime and its consequences , the fact that [ the applicant ] owns a gun ( the fact which he has not disputed in the court hearing ) , his connections in ORG bodies and law - enforcement agencies , and also the fact that at the material time certain of the perpetrators of the crime committed by that group have not yet been identified , the court has sufficient grounds to conclude that [ the applicant ] , who has a travel passport and relatives living permanently outside GPE , is liable to abscond from the investigation and trial , to threaten victims , witnesses and other participants in the criminal proceedings , or may , in other ways , hinder the proceedings in the case .

Information about [ the applicant ’s ] character is not absolute and sufficient to dismiss the [ investigator ’s ] request [ for the applicant ’s detention ] or to apply a more lenient measure of restraint . The court takes into account that [ the applicant ] is suffering from a number of illnesses and that he is an elderly person ; however , there is no evidence that [ the applicant ’s ] state of health precludes his detention , and the court did not receive any proof that [ the applicant ] is the only caregiver for his relatives .

The materials presented to the court demonstrate that there is sufficient evidence that the crime took place and that [ the applicant ] may be involved ; as well as evidence that the investigating authorities complied with the procedure for the arrest of the suspect ( Articles CARDINAL and CARDINAL of LAW ) and brought charges against him as prescribed by LAW of LAW . At the same time , the task of establishing the guilt of the accused is outside the competence of the court at this stage of the criminal proceedings ...

By virtue of LAW of LAW in the absence of grounds listed in sub - paragraphs CARDINAL of paragraph CARDINAL of Article CARDINAL of LAW a [ court ] can not authorise detention of an individual suspected of or charged with a crime proscribed by LAW [ the fraud ] , if that crime was committed in connection with business activities .

Having studied the presented materials , the court finds that the crime proscribed by LAW with which [ the applicant ] is charged does not fall within the sphere of business activities , as the intentions of the members of the organised criminal group were aimed at unlawfully taking over title to the LOC and a plot of land which belonged [ to a private legal entity ] which has no connection to any form of business activities . ”

The applicant and his lawyer appealed , arguing that the detention order lacked any grounds and was based on mere assumptions in the absence of any evidence that the applicant , an elderly and seriously ill person with solid family ties , intended to abscond or reoffend . They further argued that the detention was unlawful , as NORP law did not permit the detention of individuals accused of fraudulent acts committed in the sphere of business activities , which was the offence with which the applicant was charged .

On DATE GPE upheld the detention order , having endorsed ORG reasoning .

On DATE ORG of GPE accepted the investigator ’s request for an extension of the applicant ’s detention , having authorised it until DATE . ORG reasoned as follows :

“ The investigating authorities have charged [ the applicant ] with a socially dangerous act , a serious criminal offence for with the criminal law prescribes punishment in the form of PERCENT two years’ imprisonment .

presented , and the information about [ the applicant ’s ] character , the court finds that there are sufficient grounds to conclude that , if released , [ the applicant ] , being charged with [ a serious offence ] , fearing the punishment for that serious offence , [ and ] being in possession of a travel passport [ and ] having relatives in foreign countries , will prefer to abscond from the pre - trial investigation and trial ; that [ he ] is liable to influence witnesses and other participants in the criminal proceedings , given that he has acquired specific information about the course of the investigation ; that he may destroy evidence for which the investigators are looking now ; if released , [ the applicant ] may develop , together with his accomplices who have not yet been identified by the investigation or in respect of whom search warrants , including international ones , have been issued , a method of working against the ORG actions aimed at the establishment of the truth in the case .

The above - mentioned circumstances and information are well - founded , real and are corroborated by personal data about [ the applicant ] who has a travel passport [ and ] sufficient financial resources , as he is the head of a number of legal entities , and has , on a number of occasions in DATE , travelled abroad , including to visit his daughter in GPE . That information was received in the course of operational search actions performed within the criminal proceedings . The above - mentioned data runs contrary to the arguments by the defence that the investigator ’s request for an extension of [ the applicant ’s ] detention is not based on any evidence or matters of fact .

In these circumstances there are grounds cited by LAW for an authorisation of detention , which , in its turn , shows that the grounds taken into account when [ the applicant ’s ] placement in custody was authorised ... are still present and it is still necessary to apply that measure of restraint . Therefore , the request by the defence for the application of a more lenient measure of restraint unconnected to detention , including bail in the amount of CARDINAL Russian roubles ( RUB ) , should be dismissed because a new [ lenient ] measure will not exclude the possibility that the applicant will abscond from the investigation , including by leaving GPE , or will commit other acts in order to resist the investigation in the present criminal case , which is currently at the pre - trial stage .

When determining the issue of the extension of [ the applicant ’s ] detention , the court takes into account his permanent residence in GPE , his family situation and the state of his health . The court did not receive any evidence , including from the defence , showing that [ the applicant ] is unfit for detention in the conditions of the temporary detention facility where he may receive necessary medical assistance ; [ the applicant ] did not complain about the quality of the medical care received [ in detention ] ; [ the applicant ] also explained that he is not in need of any medicines , including those which are necessary to treat his diabetes .

Moreover , the court takes into account a large number of actions which the investigating authorities have to take to complete the investigation of the criminal case ; it finds that the period of extension requested by the investigator is well - founded and reasonable .

While assessing the present request for an extension the court does not find that the investigation is ineffective or delayed . In the court ’s opinion , the length of the pre - trial investigation is caused by objective factors , such as the nature of the offences under investigation , the large volume of written evidence which requires extensive and time - consuming examination and analysis , and the need to authorise and perform complex expert examinations . ”

NORP On DATE ORG upheld the order of DATE , concluding that ORG findings were reasonable and based on evidence provided by the investigating authorities . ORG also noted that ORG had thoroughly assessed the applicant ’s personal situation and the state of his health , but had correctly concluded that the grounds for his detention outweighed the arguments for his release .

A further request by an investigator for an extension of the applicant ’s detention was accepted by ORG on DATE , with reasoning similar to that employed by ORG in its previous decision . The applicant ’s detention was extended until DATE .

On DATE ORG dismissed the applicant ’s lawyers’ arguments that the extension of the detention was unreasonable and ill - founded . ORG supported ORG findings that the applicant was liable to abscond and obstruct justice if released .

On DATE ORG again extended the applicant ’s detention for DATE , that is until DATE . It dismissed the applicant ’s and his lawyers’ arguments that the investigators had delayed the criminal proceedings by failing to take any action in the procedure in DATE , that the applicant had no intention of absconding threatening witnesses or destroying evidence , particularly given that he had voluntarily handed over to the investigators every piece of material evidence which had been in his possession , that his travel passport had also been given to the investigators , and that his family situation , the state of his health and his character warranted his release . ORG reasoning was identical to that in the CARDINAL previous detention orders .

DATE police officials provided ORG with a memorandum which , in so far as relevant , read as follows :

“ According to the available information , if [ the court decides ] to apply to [ the applicant ] a measure of restraint other than arrest , [ he ] , understanding his role in a criminal group and the gravity of the crime committed [ by him ] , will take every possible step to obstruct the establishment of the truth in the case , will bribe or threaten witnesses , and will move to another country to avoid criminal responsibility . ”

On DATE ORG upheld the detention order of DATE on appeal .

On DATE the ORG found it reasonable to remand the applicant in custody for a further period , until DATE . ORG considered that the length of the pre - trial investigation in the case was objectively justifiable by complex procedural actions , including a number of expert examinations which the investigators had to perform . In ORG opinion , the applicant ’s release on bail or on his own recognisance would not eliminate the risk that he would abscond and/or tamper with witnesses or destroy evidence . Having examined the medical evidence presented by the defence in support of the argument that the applicant was seriously ill , ORG concluded that the applicant was still fit for detention .

The applicant and his lawyer appealed .

In the meantime , on DATE the pre - trial investigation was closed and the applicant lodged a written request for the case file to be provided to him and his lawyers for study as soon as possible .

At DATE the applicant and his lawyers started studying the case file materials . On a number of occasions they complained to the investigators that they had not been served with the subsequent volumes of the case file and that they had thus been forced to adjourn their reading of the file .

On DATE ORG upheld the detention order of DATE , finding no grounds to question the lawfulness and reasonableness of ORG findings .

On CARDINAL DATE ORG extended the applicant ’s detention until DATE , reasoning as follows :

“ Despite [ the applicant ’s ] age and the facts that he has not been convicted before , that he is registered and permanently resides in GPE , that he is a national of GPE , that he is not under psychiatric or drug abuse supervision , that he is suffering from a number of illnesses , [ and ] that his character has been assessed positively , I find that the necessity to apply to him the measure of restraint chosen earlier has not ceased to exist at the material time , as he has been charged with a serious criminal offence which , according to the prosecution , he committed as a member of an organised criminal group , certain of whose members have not yet been identified , and CARDINAL of whose members absconded from the investigation and court and [ were placed ] on the international wanted ORG list ; in this regard , the court accepts the investigator ’s arguments that there are sufficient grounds to conclude that if released [ the applicant ] will abscond from the pre - trial investigation and trial , will continue his criminal activities , will threaten witnesses and other parties to the criminal proceedings , will destroy evidence , and will interfere with justice in the criminal case in other ways . ”

NORP The extension order was upheld on appeal on CARDINAL DATE with the appellate court accepting ORG reasoning .

On DATE the applicant informed the investigators that he had read the entire case file .

On DATE ORG sent the case to ORG , given that the majority of the victims and witnesses lived in GPE , where the criminal offences had allegedly been committed . On DATE investigators in GPE took over the case . On DATE a senior investigator of ORG issued a decision authorising the reopening of the pre - trial investigation . In the same decision , having noted that the maximum period for detaining the applicant had expired and that the long - term detention had negatively affected the applicant ’s health , the senior investigator authorised his immediate release on a written undertaking not to leave the town . The applicant was released DATE .

It appears that the criminal proceedings against the applicant are still pending .

The NORP legal regulations of detention are explained in the judgment of PERSON v. GPE , no . CARDINAL , § § CARDINAL - CARDINAL , DATE .


CASE OF HUOLTOASEMA MATTI EURÉN OY AND OTHERS v. FINLAND

David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Lech Garlicki;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

NORP The applicant company has its seat in GPE and the second and third applicants live in ORG and FAC respectively .

NORP The applicant company has operated a service station in GPE since DATE . The service station is located in the industrial zone of the municipality which is situated in a groundwater basin . The second and third applicants are the only owners of the applicant company .

In DATE new regulations concerning handling and storage of dangerous chemicals ( including fuels for motor vehicles ) entered into force and service stations needed to comply with these new requirements by DATE . In order to comply with the new regulations , the applicant company had to undertake some restructuring works .

On DATE LAW ( ympäristönsuojelulaki , miljöskyddslagen , Act No . CARDINAL/CARDINAL ) entered into force requiring , inter alia , an environmental permit to be held for activities which might cause environmental pollution . As the activities of the applicant company fell within the scope of application of the LAW , it applied for an environmental permit for the restructuring works on DATE . More specifically , the application concerned an environmental permit for enlarging the storage capacity of liquid fuel .

On DATE ORG ( ympäristölautakunta , miljönämnden ) granted the applicant company the permit and set several conditions for the restructuring works .

NORP By letter of DATE , ORG ( ympäristökeskus , miljöcentralen ) appealed against the ORG ’s decision to ORG ( hallinto - oikeus , förvaltningsdomstolen ) claiming that , despite the proposed protective measures , there was still a risk that the quality of groundwater could be jeopardised and that the environmental permit should therefore be withdrawn .

On DATE ORG rejected the ORG appeal but amended CARDINAL of the conditions for the permit .

By a letter of CARDINAL DATE , the ORG appealed to ORG ( korkein hallinto - oikeus , högsta förvaltningsdomstolen ) , reiterating the grounds of appeal relied on before ORG .

On DATE ORG quashed the decisions of ORG and referred the case back to ORG , ordering it to clarify whether it was possible to eliminate the risk of pollution of groundwater by using more efficient protective measures . The court found that the activity in question was to be compared to a new activity as regards the environmental permit as this was the first time that the effects of the activities on groundwater were being assessed . The environmental permit could not be granted as the applicant company had not shown that the proposed protective measures would eliminate the risk of pollution of the groundwater .

On DATE the applicant company lodged an amended application for an environmental permit with ORG . More specifically , this application concerned an environmental permit for reducing the storage capacity of liquid fuel . On DATE the ORG decided to grant the permit with several conditions .

NORP By letter dated DATE ORG again appealed against the ORG ’s decision to ORG , claiming that the environmental permit should be withdrawn .

On DATE ORG rejected the appeal , considering that sufficient protective measures were included in the permit .

NORP By letter dated DATE the ORG appealed to ORG , reiterating the grounds of appeal relied on before ORG .

On DATE ORG quashed the decisions of ORG . It found that , even though the protective measures proposed by the company diminished the risk of pollution of groundwater , they could not guarantee the protection of groundwater under all circumstances .

As the applicant company was refused the permit , it was ordered to close down the service station by DATE .


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

The applicants , Mr PERSON and PERSON , are NORP nationals who were born in DATE and DATE respectively and live in GPE . They were represented before the ORG by Mr H .- J. Kühnel , a lawyer practising in LANGUAGE . PERSON Government PERSON ( “ the Government ” ) were represented by their Agent , PERSON Wittling Vogel , PERSON , of ORG .

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

A sales representative contacted the first applicant at his workplace in DATE and offered the applicants an investment involving the purchase of property financed by a loan . During the subsequent consultations at their home they were offered , in addition to the property , complete financing to be provided by ORG ( “ the bank ” ) . The sales representative handled both the marketing of the property and the arrangement of finance . In the context of this marketing scheme the sales representative provided prospect information on the investment and used standard form contracts .

On CARDINAL and DATE the applicants purchased CARDINAL apartments for ORG MONEY ( DEM ) ( CARDINAL,CARDINAL.CARDINAL CARDINAL ( ORG ) ) plus additional charges ( notary , real estate transfer costs , etc . ) totalling ORG CARDINAL . The purchase agreements were signed before a notary , in accordance with the relevant NORP legislation . On the same dates charges were created on the properties .

Solely in order to finance the purchase , on DATE the applicants took out a loan of ORG CARDINAL ( EUR CARDINAL ) from the bank , secured by the charges on the properties which were created by the notarised deeds of CARDINAL and DATE . The loan agreement contained no information regarding the right of cancellation within the meaning of the law on the cancellation of doorstep transactions or analogous transactions ( PERSON , hereafter “ LAW ” ) . The completed forms of the financing bank were provided to the applicants by the sales representative at their home , where they later signed them .

The bank paid the loan directly to the company selling the immovable property in accordance with the applicants’ instructions .

In DATE the applicants realised that the immovable property had been worth PERCENT of its purchase price at the time of purchase . On DATE the applicants cancelled the loan agreement on the basis of Paragraph CARDINAL of LAW . They ceased to pay the DATE instalments under the loan agreement and offered to hand over their rights in respect of the purchased properties to the bank .

On DATE the applicants applied for legal aid to pursue a claim to establish that they were not obliged to repay the amount of the loan to the bank and to order the bank to give them the notarised deeds . The applicants submitted that the purchase contracts and the loan agreement must be regarded as a single economic unit and that they were therefore merely required to retransfer ownership of the property pursuant to the fourth sentence of LAW ( CARDINAL ) of the law on consumer credit ( ORG , hereafter “ Consumer LAW ” ) . They relied explicitly on the case - law of DATE Chamber of ORG and referred to the corresponding preliminary ruling proceedings then impending before ORG of ORG ( “ ECJ ” ) . The proceedings before the ECJ concerned the question whether the requirement under NORP law to immediately repay the loan proceeds plus interest at the market rate thereon to the bank upon cancellation of the loan agreement was in accordance with ORG , notwithstanding that the loan would not have been granted at all without the acquisition of the immovable property , served solely to finance it and was paid directly to the vendor .

On DATE the ORG refused to grant the applicants legal aid . It found that their proposed claim lacked a reasonable prospect of success . It followed explicitly the case - law of the CARDINALth Chamber of ORG and disagreed with the case - law of ORG same court without giving any further reasons . It found that the applicants were obliged by law to repay the loan plus interest at the normal market rate upon the cancellation of the loan agreement . It observed that the impending proceedings before the ECJ were not relevant and , in any event , that ORG opinion was not favourable to the applicants .

On DATE the GPE / ORG rejected the ORG appeal . It endorsed the arguments given by the lower court and observed that the case - law of ORG concerned the acquisition of a share in an investment fund financed by a loan .

On DATE the GPE / ORG rejected the ORG allegation that they had not been heard properly .

On DATE ORG ( CARDINAL BvR CARDINAL/CARDINAL ) refused to admit the applicant ’s complaint . It found that the alleged violation of the applicants’ rights under LAW was not sufficiently serious . The applicants would in any event not suffer a significant disadvantage by the refusal to admit their constitutional complaint . It observed that the impugned decisions were problematic in the light of its case - law regarding legal aid in proceedings concerning a difficult legal question which had not yet been decided by authoritative case - law . In this connection it referred to the deferring case - law of ORG and the impending preliminary ruling proceedings before the ECJ . Nevertheless , it found that the applicants could file a new request for legal aid to achieve their goal . In light of the case - law of ORG which , in the meantime had been enhanced , it was not excluded that the applicants would receive legal aid upon a new request .

On DATE the applicants again requested legal aid with respect to the decision of the ECJ of DATE in the case C-CARDINAL/CARDINAL ( see “ Relevant domestic law and practice ” below ) .

On DATE the ORG refused to grant the applicants legal aid . It referred to the reasons set out in the decisions rendered in the first set of proceedings and observed that the decision of the ECJ was merely directed at ORG calling for further legislative measures .

On DATE the GPE / ORG rejected the ORG appeal . It found that the decision of the ECJ of DATE in the case C-CARDINAL/CARDINAL was not relevant . That case merely concerned a situation where , if the bank had complied with its obligation to inform the consumer of his right of cancellation , the consumer would have been able to avoid exposure to the risks inherent in investments . It observed that the applicants had concluded the purchase contract DATE than the loan agreement . Thus the bank ’s failure to inform them of their right of cancellation had no causal link with the investment .

On DATE ORG ( CARDINAL BvR CARDINAL/CARDINAL ) , referring to its decision of DATE in the complaint concerning the applicants’ first set of proceedings , refused to admit the ORG complaint , in which they had also raised the issue of an alleged obligation of ORG to suspend the proceedings and refer the question to the ECJ .

On DATE the applicants applied for legal aid again with regard to ORG decision of CARDINAL DATE and observed that in their opinion the enhanced case - law of ORG was not in accordance with the decisions of the ECJ of DATE .

On DATE the ORG refused to grant the applicants legal aid . It referred to the reasons set out in the decisions in the previous proceedings for legal aid .

On DATE the GPE / ORG rejected the ORG appeal . It found that ORG case - law according to which the purchase contracts and the loan agreement can not be regarded as a single economic unit pursuant to LAW was consistent with the decision of the ECJ of DATE ( see “ Relevant domestic law and practice ” below ) . ORG further found that taking account of ORG case - law and the new criteria set up by it to establish liability of the financing bank for the purchase of the property , the ORG claim lacked a reasonable prospect of success . It again observed in this context that the applicants had concluded the purchase contract DATE before the loan agreement ; the bank ’s failure to inform them of their right of cancellation had thus no causal link with the investment . Furthermore , there was nothing to suggest that the purchased property had had a blatant deficiency as the applicants themselves had simply realised DATE after the purchase that its market value had been significantly lower than the purchase price .

On DATE the applicants lodged a constitutional complaint with ORG .

On DATE the applicants applied again for legal aid . They referred to the decision of the CARDINALnd ORG of CARDINAL DATE to seek a preliminary ruling of the ECJ as to whether the legal effects of the cancellation of a declaration of accession to a property fund under NORP law complied with Community law .

On DATE the ORG rejected the applicants’ new request for legal aid for lacking a reasonable prospect of success . It found that the new request for a preliminary ruling from the ECJ concerned a different issue and that the applicants had failed to make any submissions which would satisfy the requirements of ORG enhanced case - law . The applicants filed an appeal . The proceedings are apparently still pending .

In the version applicable at the material time , paragraph CARDINAL ( CARDINAL ) of LAW provided :

“ Where the customer was induced to make a declaration of intention to conclude a contract for a service for valuable consideration :

by oral negotiations at his place of work or in a private home ,

that declaration of intention takes effect only if the customer does not give written notice revoking it within DATE . ”

Paragraph CARDINAL ( CARDINAL ) of LAW provided :

“ In the event of cancellation , each contracting party shall return to the other whatever it has received . Damage to or loss of the object or any other matter preventing the return of the object shall not preclude cancellation . ”

Paragraph CARDINAL ( CARDINAL ) of LAW provides :

“ Nor shall :

Paragraphs CARDINAL(CARDINAL)(CARDINAL)(CARDINAL)(b ) , CARDINAL , DATE and DATE to CARDINAL apply to credit agreements in which credit is subject to the giving of security by way of a charge on immovable property and is granted on the usual terms for credits secured by a charge on immovable property and the intermediate financing of the same ... ”

Paragraph CARDINAL of the Consumer Credit Act provides :

“ CARDINAL . A purchase agreement constitutes a transaction linked with the credit agreement if the credit serves to finance the purchase price and both agreements are to be regarded as a single economic unit . In particular , a single economic unit shall be presumed where the lender relies on the seller ’s cooperation in the preparation or conclusion of the credit agreement .

The consumer ’s declaration of intention to conclude the linked purchase agreement shall be valid only if the consumer does not revoke ... his declaration of intention to conclude the credit agreement .

The notice concerning the right of cancellation ... must state that , in the event of cancellation , the purchase agreement linked with the credit agreement will not be valid either ... If the net amount of the credit has already been paid to the seller , the lender shall , in relation to the consumer and with regard to the legal effects of cancellation , be subrogated to the seller ’s rights and obligations arising from the purchase agreement [ ... ] ”

On DATE the CARDINALnd Chamber of ORG ( II ZR CARDINAL/CARDINAL and ORG CARDINAL/CARDINAL ) decided that a declaration to accede to a closed property fund was a transaction linked with a credit agreement within the meaning of paragraph CARDINAL of LAW , if the fund and the bank used a common marketing organisation . If the consumer had been deceived with respect to the profitability of the fund , he would not be obliged to repay the loan but merely to transfer to the bank his share of the funds and his compensation claims .

On DATE the CARDINALnd Chamber of ORG ( II ZR CARDINAL/CARDINAL ) decided to refer the question whether the legal effects of the cancellation of a declaration of accession to a property fund according to NORP corporate law was in accordance with Community law for a preliminary ruling to the ECJ . The application of the corporate law rules resulted in the consumer being bound to participate in the fund ’s business developments for the period from his accession to giving notice of its cancellation according to the HWiG. The CARDINALnd Chamber observed that the mere ex nunc effect of the cancellation according to corporate law was justified in its opinion as it safeguarded not merely the interests of the debtees of the fund but also of the other members of the fund who were typically also consumers .

According to the established case - law of the CARDINALth Chamber of ORG a secured credit agreement and a property purchase contract could , pursuant to paragraph CARDINAL ( CARDINAL ) of the CARDINAL , not be regarded as linked transactions within the meaning of LAW of LAW . In case of the cancellation of a secured credit agreement according to the NORP the consumer was obliged to repay the loan immediately in full , plus interest at the market rate . The cancellation of the secured credit agreement did not affect the validity of the purchase contract for immovable property financed by that credit agreement .

In its judgment in Case C-CARDINAL/CARDINAL Heininger [ DATE ] ECR I-CARDINAL , the ECJ held that ORG DATE to protect the consumer in respect of contracts negotiated away from business LOC ( the Directive ) applied to secured credit agreements , that is to say , credit agreements for financing the purchase of immovable property .

In its judgments of DATE in Cases C-CARDINAL/CARDINAL PERSON and PERSON v. ORG and PERSON v. PERSON and Others the ECJ held :

With respect to the judgments of the ECJ of DATE the CARDINALth Chamber of the Federal Court of Justice developed its case - law . In its judgment of CARDINAL DATE ( XI ZR CARDINAL ) it reiterated that a secured credit agreement and the property purchase contract did not constitute a linked transaction within the meaning of Paragraph CARDINAL of the VerbrKrG. It found that the consumer did not have a compensation claim on account of the bank ’s failure to inform him of his right of cancellation , if the property purchase contract had been concluded before the loan agreement . In this case informing the consumer of his right of cancellation would not have enabled the consumer to avoid exposure to the risks inherent in investments . Therefore , there was no causal link which would allow the consumer to claim damages . However , it found that in the case of institutionalised cooperation between the seller and the financing bank , when the seller or intermediary salesperson also arranged the finances for the investment , and the information provided by the seller or intermediary salesperson would have been obviously incorrect , the financing bank ’s knowledge of the seller ’s malicious deceit would be presumed . Under these circumstances the bank would have a duty of disclosure with regard to the profitability of the investment . Non - compliance with this duty would give rise to financial liability on the part of the bank .

Pursuant to section CARDINAL § CARDINAL of the Code of Civil Procedure representation by counsel is compulsory for the parties in civil proceedings before ORG , ORG and ORG .

The conditions for legal aid are laid down in section CARDINAL of the Code of Civil Procedure . According to that section , a party who in view of his or her personal and economic situation can not afford the costs for conducting the proceedings is granted legal aid upon application if the intended legal action offers sufficient prospects of success and does not appear wanton ( mutwillig ) . A party who has been granted legal aid is officially appointed a lawyer of his or her choice who is ready to represent him or her if representation by counsel is compulsory ( section CARDINAL § CARDINAL of the Code of Civil Procedure ) . It is the court having jurisdiction to deal with the intended action itself which is called to decide on motions for legal aid ( section CARDINAL § CARDINAL of the Code of Civil Procedure ) . An appeal lies against a decision refusing legal aid ( section CARDINAL § CARDINAL of the Code of Civil Procedure ) .


Violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities);No violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);No violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty);Violation of Article 13+2 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2 - Right to life;Article 2-1 - Effective investigation);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of application);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

The applicant , a NORP citizen of NORP origin , was born in DATE and lives in the town of PERSON within the administrative jurisdiction of the province of ORG , in south - east GPE .

The facts of the case , particularly concerning events which took place on or about DATE and on or DATE , are disputed between the parties .

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

The applicant 's son ORG was the manager of the Sento hotel and the PERSON club in GPE . He had no relations with ORG Party ( the ORG ) or any other similar organisations .

On an unspecified date , PERSON 's maternal cousin PERSON was taken into custody in relation to a criminal case and when PERSON 's photograph was found on him , he apparently made a statement to the effect that he and PERSON were partners in the alleged crime . The cousin was subsequently released without charge .

The applicant stated in the application form submitted to the ORG that , on DATE , ORG wife PERSON was in ORG , giving birth . The applicant 's wife was with her . At TIME left his older brother PERSON to go to the hospital . However , PERSON never arrived at the hospital and had not been seen since .

NORP In reply to a query from the Court into details of the hospital records showing the date of birth , the applicant replied on DATE with the correction that the woman who had been in hospital giving birth on the day of PERSON 's disappearance was not PERSON 's wife but the wife of his brother PERSON . On DATE in question PERSON and PERSON had had a meal together at a restaurant near their house before PERSON had left for the hospital to visit PERSON 's wife . Although the applicant submitted that he would obtain hospital records and send them to the ORG , he failed to do so .

In his memorial of DATE , the applicant submitted that on DATE of his disappearance , his son PERSON had been with his wife PERSON , who was pregnant and had been taken to the maternity ward of the hospital as she was feeling unwell . PERSON never returned from the hospital . The applicant also informed ORG had CARDINAL child , born on DATE .

At TIME on DATE , CARDINAL or CARDINAL plainclothes police officers came to the applicant 's home in GPE and beat the applicant and his younger son . The police officers enquired about PERSON 's whereabouts . The applicant told them , although he knew that this was untrue , that PERSON had left for GPE DATE . The police officers then told him that his son was in the hands of the police and that they would hand over his body in DATE .

NORP The police officers moved on to the house of ORG , where they arrived at TIME and conducted a search without finding anything . PERSON told the police officers that he had not seen his brother PERSON since TIME that day . The police officers took PERSON to the applicant 's house , where they told the applicant that there was a firearm in his house and ordered him to hand it over . Both the applicant and PERSON denied the existence of any gun . After having conducted a conversation over the wireless , the police officers told the applicant and PERSON that the firearm was in the woodshed of the applicant 's house . The police officers told the applicant 's wife that PERSON had told them where he had hidden the gun . The police officers then found the firearm hidden in the woodshed , and left .

On DATE , PERSON was apprehended by police in a café in GPE and taken to ORG . He was subsequently taken to the official detention centre of ORG where he was detained for TIME , during which he was interrogated and tortured intensely . He was questioned about PERSON 's whereabouts . When he told the police officers that he did not know where his brother was , he was told that PERSON had been apprehended and that a price - list of walkie - talkies and batteries had been found on him . PERSON was also asked where PERSON 's rifle was . During his interrogation , PERSON , despite having been told by the police officers that his brother PERSON had “ gone to the mountains ” , could hear the screams of PERSON . After having been interrogated and tortured for TIME and believing that he was dead , the police officers left PERSON on a dump in PERSON , QUANTITY from ORG .

After his release , ORG made inquiries about PERSON at the Çarşı Police Station , where he was told that his brother was being held by the police and that he would be released after interrogation .

On an unspecified date , ORG made further inquiries about PERSON with the Chief Commissioner at ORG , taking with him a photograph of his brother , a photocopy of his brother 's identity card and the applicant 's home telephone number . These inquiries had not yielded any results .

On an unspecified date , the applicant and ORG were apprehended and detained for DATE . The police accused them of helping and meeting with PERSON , whom they alleged was in the mountains . They were both released after DATE without having been brought before a court .

On another occasion , ORG was approached by police officers who asked him for money in exchange for which PERSON would not be killed . CARDINAL police officer asked PERSON for MONEY to be given to a third person . In return , PERSON would be released .

The applicant and his family filed many petitions with ORG , GPE and other authorities . None of these petitions were accepted . On DATE , the applicant 's wife filed a petition with the office of ORG at ORG ( hereinafter “ the ORG ” ) . On DATE , she was informed by the authorities that the name of ORG did not appear in their records .

The applicant was heard by the Prosecutor for the first time on DATE . On DATE ORG issued a decision not to prosecute anyone in relation to the disappearance ( PERSON ) .

The investigation was apparently reopened in DATE . The applicant gave a second statement to ORG and , for the first time , statements were taken from the spouses of the applicant and PERSON . As the applicant and his wife did not speak any NORP , their grandson PERSON was present when their statements were taken . According to PERSON , the official court interpreter distorted the statements given by the applicant and his wife . For example , although the applicant stated that he would recognise the police officers who came to the house , the interpreter translated this as “ I do n't know the people who took my son away ” . After he objected to this , PERSON was removed from the ORG 's office and he was not allowed to read the recorded statements .

On DATE , at TIME , the homes of the applicant and his son ORG were searched pursuant to a request made on CARDINAL DATE by the Commander of ORG to ORG . The aim of the search was to find ORG , who was suspected of involvement with the ORG . Police officers carrying out the search did not manage to find ORG . However , a firearm and a charger with bullets were found in the applicant 's house . As the applicant stated that it belonged to his nephew PERSON Kartal , the police officers took the firearm and left the applicant 's home without detaining anyone .

Neither PERSON nor ORG was taken into detention on CARDINAL or DATE . The applicant and PERSON were detained , however , on DATE on suspicion of involvement in a terrorist organisation and released on DATE on account of the lack of sufficient evidence . ORG was arrested once again by police on DATE and released on DATE , after having given a statement .

The applicant 's wife submitted a petition to the ORG 's office at ORG . No other petitions were submitted to any Prosecutor . An investigation into the disappearance of ORG was carried out by ORG who , in the course of his investigation , checked the custody records of the detention facilities in ORG and its districts . In the absence of any evidence implicating any ORG agent in the disappearance , the Prosecutor decided on DATE not to prosecute anyone .

ORG instigated a second investigation at a later stage . In the course of this investigation , statements were taken from the applicant and his wife and also from PERSON 's wife . The Prosecutor further made attempts to take statements from the police officers who had searched the applicant 's house on DATE . This second investigation was ongoing .

The following information appears from documents submitted by the Government .

On DATE the deputy commander of ORG ( hereinafter “ the ORG ” ) requested ORG to assist the personnel from ORG to apprehend “ the persons who had been aiding and abetting the ORG in GPE ” .

According to a report of “ house search and confiscation ” , a number of police and gendarme officers , acting on the above mentioned request , went to the applicant 's house in GPE in TIME of DATE . They were looking for the applicant 's son ORG whom they wanted to arrest . However , PERSON was not at home . During the search conducted at the house , a QUANTITY calibre pistol with its bullets were found in the attic and confiscated by the officers . The applicant told the officers that the pistol belonged to his nephew , PERSON .

It appears from another report , drawn up and signed by the same officers , that after having searched the applicant 's house they had gone to ORG house and unsuccessfully looked for PERSON there .

Custody records which , according to the ORG , were from ORG 's ORG and the Anti - Terror Branch of ORG , showed that neither PERSON nor his brother PERSON or their father GPE DATE that is the applicant – were detained by the police on CARDINAL , DATE or DATE .

According to copies of the custody records of a number of police and gendarmerie stations in and around ORG , no member of ORG family was arrested and detained in DATE .

It appears from the custody records of ORG that the applicant 's nephew PERSON was arrested on DATE and released DATE ( see paragraph CARDINAL above ) . He was re - arrested on DATE and an order for him to be remanded in custody was issued by ORG on DATE .

On DATE the applicant and his son PERSON were arrested at their homes by a number of police officers . As they could not be linked to any illegal organisation , they were released on the orders of ORG DATE .

On DATE PERSON , the chief of the Anti - Terror Branch of ORG , sent a reply to a letter which had apparently been sent to him from ORG on DATE . In his letter Mr PERSON referred to another letter sent by his office on CARDINAL DATE . He informed the ORG that ORG had not been detained at the Anti - Terror Branch on DATE . ORG and ORG had been arrested on DATE and then released on DATE .

On DATE ORG replied to a letter sent to him by ORG ( hereinafter “ the Directorate ” ) on DATE , informing that ORG that ORG and ORG had been detained on DATE and released on DATE .

On DATE ORG asked the Prosecutor at ORG whether an investigation into the applicant 's allegations concerning ORG was in progress .

On DATE the Prosecutor at ORG replied to ORG that ORG name did not feature in the records of ORG .

DATE . On DATE a statement was taken from the applicant by ORG . The applicant acknowledged that he had lodged an application with ORG and confirmed the accuracy of the contents of the statement he had given at ORG ( see paragraph CARDINAL below ) . He recounted that on CARDINAL DATE he and his sons , PERSON and PERSON , had been arrested outside his house by plain - clothes members of the Anti - Terror Branch of ORG . Prior to his arrest , PERSON had just returned from the hospital , where his pregnant wife had been giving birth . The reason for PERSON 's arrest was his suspected involvement with the ORG . The police officers arresting PERSON had told the applicant to go and collect PERSON 's body in GPE in DATE .

The applicant further stated that he had been kept in detention for DATE before being released . PERSON had been detained twice ; on the first occasion he had been detained for DATE and on the second he had been detained for DATE . The firearm had been handed over to the police officers who had come to his house to search for it . Nothing had been heard from PERSON since he had been detained on DATE , and the enquiries made by the applicant with the ORG 's office at ORG and with the Anti - Terror Branch of the Police to obtain information about his son 's fate had yielded no results . He told the Prosecutor that he wished to press charges against members of the ORG Branch of the Police .

On DATE a Prosecutor ( no . DATE ) sent a reply to a letter sent from ORG of DATE . He enclosed copies of the documents contained in investigation file no . DATE .

On DATE ORG decided not to prosecute anyone in connection with the applicant 's allegations concerning the detention of his son . The Prosecutor based this decision on a letter sent to him on DATE by the Anti - Terror Branch in which , according to the decision , that Branch had denied taking ORG into custody .

Ali Toğcu was once more arrested at his house on DATE .

On DATE ORG sent letters to ORG and ORG , asking them to submit to his office the custody records of CARDINAL DATE . He also instructed them to search for PERSON .

On DATE ORG informed the Prosecutor that PERSON had not been detained by them . Copies of their custody records , in which PERSON 's name did not feature , were forwarded to the Prosecutor with this letter .

On DATE ORG took a statement from the applicant . The applicant recounted that his son PERSON had been living with him prior to his disappearance . On TIME of CARDINAL DATE , CARDINAL or CARDINAL plain - clothes police officers had come to his house and told him that PERSON , who was in their hands , had told them that there was a firearm in the house . The applicant had replied that he did not know anything about a firearm . The officers had then found it in the attic of the house and left . He had not heard from PERSON since DATE . His other son PERSON had been arrested and detained DATE after the disappearance of PERSON and had been ill - treated whilst in custody . PERSON had also told him that he had heard a person 's screams while he was in custody . PERSON had thought it might be his brother PERSON . DATE after the disappearance of PERSON , the applicant and PERSON had been arrested and detained once more , this time for a period of DATE during which they had been questioned about the petition in which they had complained about police officers .

The applicant further submitted that his son PERSON had not had any involvement with the ORG . The applicant had never been told by anyone to go and find the body of his son in GPE ( see paragraph DATE above ) . Finally , the applicant had asked the Prosecutor to find his son .

Also on DATE ORG took a statement from ORG , the wife of ORG . She stated that , while pregnant , she had become unwell on DATE and her husband PERSON had taken her to hospital . They had then returned home in the early afternoon and PERSON had gone to his café at TIME Ender would normally return home at TIME . At TIME on DATE or CARDINAL plain - clothes police officers had come to their house and had asked her and her father - in - law , the applicant , about a firearm . She knew that her husband owned a gun but she did not know where he kept it . The police officers then found it in the attic . She had not known that it was hidden there and , had they not been told by PERSON where it was hidden , the police officers would not have been able to find it . She had not heard from PERSON since DATE .

Finally , on DATE ORG questioned ORG , the wife of the applicant . PERSON stated that on CARDINAL DATE she had gone to hospital together with her daughter - in - law ORG . Her son PERSON had also been at the hospital for some time , but he was at home when she had returned . PERSON had left at TIME to go to the café which he was running and had not returned . At TIME the same day , CARDINAL or QUANTITY police officers had arrived at their house and asked for PERSON . According to the officers , PERSON had told them that there was a firearm in the house . The officers had found the gun and left . She had subsequently petitioned the Prosecutor about the disappearance of her son but had never been informed about his fate .

On DATE ORG reminded ORG and ORG of his requests of DATE ( see paragraph CARDINAL above ) and urged them to submit to his office copies of the custody ledgers and to search for PERSON .

Also on DATE ORG sent a letter to the Anti - Terror Branch of the Police and summonsed the police officers who had gone to the applicant 's house on DATE ( see paragraph CARDINAL above ) to his office . He also asked whether any action had been taken in relation to the firearm found in the applicant 's house . The Prosecutor finally asked whether PERSON , PERSON and the applicant had been detained on DATE . He asked for copies of the custody records to be sent to his office .

On DATE the applicant 's wife submitted a petition to the ORG 's office at ORG ( see paragraphs CARDINAL above ) . She informed the Prosecutor that her son ORG had been taken into custody by members of the security forces in GPE on CARDINAL DATE . Plain - clothes police officers who had raided her house on TIME of CARDINAL DATE had told her that her son was in their hands . She had not heard from her son since DATE . She asked the Prosecutor to give her information about her son . A handwritten note on this petition reads “ his name was not found in the examination of our records ” .

On DATE the applicant made a written statement , addressed to a “ Human Rights Project ” . He submitted that at TIME on CARDINAL DATE , his son PERSON had left his brother PERSON to go to the hospital where PERSON 's wife was giving birth . The applicant 's wife , who was staying at the hospital to look after her daughter - in - law , had told the applicant that their son PERSON had never arrived at the hospital . PERSON had been arrested DATE by police officers from ORG and been questioned for DATE . On DATE he had been released on FAC .

In a letter forwarded to the ORG on DATE , the applicant 's son PERSON submitted that on DATE he had been arrested by police officers and been taken to ORG , from where he had been taken to ORG . While at ORG , PERSON had been questioned about his brother PERSON and been told by police officers that PERSON had gone to the mountains to join the ORG . While in custody , PERSON had heard the screams of his brother PERSON . PERSON had been severely tortured and , believing that he was dead , the police officers had left him at a dump near GPE . Following that incident , he had been detained a total of CARDINAL times and on each of these occasions he had been accused of meeting with his brother PERSON , whom , the police officers insisted , had joined the ORG .

The applicant forwarded to the ORG a letter which he had dictated on DATE . In this letter the applicant submitted that there were no eye - witnesses to the abduction of his son PERSON . No one at PERSON 's workplace had witnessed his arrest . He himself had not witnessed it either . He had been arrested , together with his other son PERSON , DATE in DATE and detained for DATE . He had been asked why he had complained about the police officers and he had replied that his son had been detained by police officers and , for that reason , he had applied to the Prosecutor and to ORG . He had then been told by police officers that his son had not been in their hands but that he had gone to the mountains .

In a letter , drawn up by ORG son ORG on DATE , ORG submitted that he had accompanied his grandparents DATE that is the applicant and his wife DATE and the wife of his uncle PERSON ( see paragraph CARDINAL above ) to the ORG 's office and had acted as the interpreter for his grandparents who did not speak any NORP . His aunt PERSON 's wife DATE could speak NORP . When he had begun translating word by word what his grandfather was saying , the Prosecutor had interrupted him and had asked another person working at the courthouse to take over the interpretation . However , this person had distorted his grandfather 's words and , when PERSON had objected , he had been removed from the office . He had later wanted to see the statements taken from his grandparents but his request had been refused by the Prosecutor .

In a letter dated DATE , PERSON Toğcu ( see paragraph CARDINAL above ) submitted that on DATE of the incident she had gone to the hospital , where the wife of her brother - in - law was giving birth . Afterwards she had gone to the house of her brother - in - law ORG . At CARDINAL a.m. TIME , a number of police officers had come to the house and told the people present that PERSON had a large number of weapons in the house of a certain person named PERSON . She and PERSON had then accompanied the police officers to her house where , because she had forgotten the keys , the police officers had broken the door and had entered , and searched the house . Nothing had been found .

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


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

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

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

The applicant ’s wife died on DATE . In DATE , the applicant made a claim for widows’ benefits , namely ORG and ORG . On DATE the applicant was informed that his claim had been disallowed as he was not a woman . The applicant did not appeal as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under GPE law .

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


Remainder inadmissible;Violation of Art. 8;Non-pecuniary damage - award

András Sajó;David Thór Björgvinsson;Françoise Tulkens;Giorgio Malinverni;Guido Raimondi;Paulo Pinto De Albuquerque

The applicant was born in DATE and lives in PERSON .

On DATE , following the pronouncement of the divorce of the applicant and his wife , the Budapest IV / XV ORG placed the applicant ’s child – born in DATE with the mother .

The applicant was thereafter not able to see his son due to the mother ’s reluctance to hand over the child .

NORP The parents managed to reach a settlement about the father ’s access rights concerning visits until DATE , which was approved by ORG on DATE . According to the arrangement , the applicant was allowed to see his son every second DATE from TIME , the day after GPE at TIME and during DATE from CARDINAL until DATE and from CARDINAL until DATE .

NORP Until CARDINAL DATE the applicant managed to see his son only rarely , since the mother refused to comply with the arrangement on most occasions . From DATE he was fully denied access to the child by his former wife .

The applicant repeatedly complained to the local guardianship authority as from that date and requested it to take effective measures in order for him to be able to exercise his access rights .

On DATE and DATE the competent GPE XV ORG heard both parents , warned the mother to allow the applicant to see his son and imposed fines on her . However , these fines were later cancelled .

NORP In DATE the case was transferred to the GPE ORG . Since a warning issued in DATE was to no avail , it fined the mother MONEY ( ORG ) ( MONEY ( ORG ) ) on DATE and a further ORG CARDINAL ( ORG CARDINAL ) on DATE .

Furthermore , in DATE ORG discontinued the proceedings , initiated ex officio by ORG , to place the child under protection ( “ védelembe vétel ” ) , finding no reason for it . The child welfare service contacted the parents in an attempt to find a solution to the situation . It prepared an environment study at the mother ’s home , establishing that it was ideal for the upbringing of the child , who was in a loving relationship with his mother . However , it emphasised the importance of and need for a balanced contact between the child and his father .

As the applicant had had no contact with his child since DATE , he lodged complaints with various authorities , but to no avail .

The Guardianship Authority then contacted a child upbringing counsellor ( “ nevelési tanácsadó ” ) who recommended the assistance of a foundation specialised in facilitating visits . It therefore ordered that the regular visits scheduled for the period DATE and DATE be held at the foundation ’s LOC . It appears that there was therefore some contact between the applicant and his son in this period . The applicant ’s relationship with his son was examined and found to be harmonious . Subsequently , ORG invited both parents to a reconciliatory meeting on DATE . This , however , proved to be unsuccessful . The father ’s environment was also examined , and it was established that the conditions were appropriate to hold the visits there . The authority recommended a gradual extension of the duration of the contact between the father and the child .

The Guardianship Authority drew up a new access schedule on DATE and warned the parents once again to respect these arrangements . However , the mother continued to deny access to the child .

Following the applicant ’s repeated complaints to various authorities about the failure to take adequate action to enforce his rights , on DATE the GPE ORG again warned the mother and took CARDINAL separate decisions concerning the visits not ensured in DATE , imposing a series of fines on her in the total amount of ORG CARDINAL ( EUR CARDINAL ) . On DATE it initiated the child ’s placement under protection . Subsequently , on DATE ORG imposed a further fine of HUF CARDINAL ( EUR CARDINAL ) for the overdue visits from DATE until DATE .

ORG also ordered police assistance twice in DATE . Afterwards , the applicant managed to see his son until DATE .

Meanwhile , the applicant initiated an action before the Budapest IV / XIV District Court in DATE , seeking a change of custody and requesting the temporary placement of the child with him as an interim measure . Since no measures were taken thereafter , he submitted a petition to the ombudsman , asking for his assistance .

Eventually , ORG , acting as a second - instance court , rejected the maintenance of contact with the child via the foundation mentioned in paragraph CARDINAL above , and dismissed the applicant ’s action on DATE .

NORP In DATE ORG , ORG quashed the decisions of the Budapest ORG described in paragraph CARDINAL above , thereby withdrawing the fines imposed and the order to initiate the child ’s placement under protection , without the possibility to appeal against the decision . ORG established that the decisions of the guardianship authority had been unlawful and it discontinued the administrative proceedings concerning the exercise of the applicant ’s access rights prior to DATE . It nevertheless ordered ORG to take effective measures to ensure the applicant ’s rights by using the range of measures at its disposal and not only through the imposition of fines . ORG pointed out , inter alia , that :

“ ... [ t]he fact that the administration of minor ORG ’s case concerning access got to a guardianship authority that instantly sanctions the mother for the overdue visits is good , but other measures would be required as well , as it seems that the fines do not lead to any result , the goal being to enable GPE PERSON to exercise his visiting rights regarding his son . That is why the guardianship authority should initiate the placement of the child under protection and consider intervening in the custody proceedings on the side of the father . This should have been done already by the previous guardianship authority . The placement of the child under protection was initiated once by LAW , but the proceedings were discontinued by ORG on the ground that the child ’s care may be provided through basic service . The guardianship authority did not request the review of the decision despite the fact that the failure of care in basic service had been fully manifest . ...

Overall , it can be established that the first - instance guardianship authorities were not controlling the situation , revoking the fines imposed on formal grounds . ... ORG was a “ spectator ” to the situation , hindered the enforcement proceedings several times ; on the basis of the appeal even it could have clarified whether the visits took place , or could have requested the first - instance guardianship authority to hear the parties , once they made the mistake of transferring the case file to the court without having made copies of at least the proceedings pending preceding the transfer . ...

The second - instance guardianship authority also omitted [ to fulfil its obligations ] in that when the father had not received his son for DATE and the competent guardianship authority did not assist the enforcement , it did not take over the case . It is not an acceptable solution to settle cases that , instead of solving the professional problems , the second - instance guardianship authority repeatedly assigns new acting organ . This practice is unlawful ...

It is indisputable that the first instance guardianship authority and the second instance guardianship authority made omissions DATE by not effectively promoting the enforcement of the contacts ... ”

NORP The applicant initiated the review of the ORG ’s decision before ORG . On DATE this ORG established that the decision in question had been unlawful and informed the ORG about its findings .

NORP However , the applicant was not able to exercise his access rights after the ORG ’s decision had been adopted . He initiated several enforcement proceedings , following which a few penalties in the sum of the statutory maximum were imposed on the mother .

It appears that the applicant has been unable to have any contact with his son since then .

Meanwhile , as it had become impossible for the applicant to meet his child , he lodged a criminal complaint against the mother for endangering a minor , on DATE . ORG found the mother guilty and imposed a criminal fine on her on DATE . In its reasoning , the court emphasised that :

“ [ a ] child ’s moral development can be endangered not only by so - called immoral conduct ... but also by depriving the child of the opportunity of healthy moral development . Thus , by the conduct of the mother , who , having knowledge of the fact DATE of which the child also had knowledge – that the father was to exercise his access rights at DATE , knowingly violated this right by organising for that date an attractive programme for the child in the countryside , at a location far from the father ... The mother involved the child in her conflict with the father , informed him of the court actions brought against or by him and made disparaging remarks about the father , thereby exerting emotionally negative influence on the child living under a common roof with her and thus being to an increased degree dependent on her . ”

However , it also noted that the applicant :

“ ... [ h]imself did not dispute that on certain occasions contact with the child became frustrated because of his own omission . ”

No further information was provided by the parties as to the development of the criminal case before the appellate court .

The relevant rules concerning the enforcement of contact orders can be found in Government Decree no . ORG ( ORG . CARDINAL . ) on ORG , which provides as follows :

“ ( CARDINAL ) The development of the child is endangered if the parent ... wilfully and repeatedly fails to comply with a final contact order .

( CARDINAL ) If non - compliance with the contact order on the part of the parent ... is a fault of his / her own , the guardianship authority shall warn him / her about the consequences of such conduct . The decision shall contain an injunction ordering the parent ... to terminate the unlawful conduct and a warning about the legal consequences of continuing the unlawful conduct .

( CARDINAL ) If the measures provided for under subsection ( CARDINAL ) are of no effect and DATE has not elapsed from the receipt of the warning , the guardianship authority shall apply the rules governing enforcement of ORG with the exceptions set forth in this Decree .

( CARDINAL ) If the maintenance of contact entails conflicts , is continuously frustrated by obstacles , or there are disturbances in the communication between the parents [ in force since DATE ] , the guardianship authority may initiate the involvement of the child welfare service ’s contact centre , the ordering of taking the child into protection , or the institution of the child protection mediation procedure .

( CARDINAL ) If it is proved that the parent ... brings up the child by continuously turning him / her against the person entitled to contact , and despite enforcement measures fails to comply with the contact order , an action to change custody may be brought before the court . ”

NORP Moreover , section CARDINAL of Act no . DATE on ORG provides for the possibility temporarily to place the child with the other parent living apart , if the child ’s emotional development is seriously threatened by his or her family environment and his or her immediate placement is necessary . Such serious threat may be established in case of risk of substantial and irreversible damage to the emotional development of the child .

Other measures at the authorities’ disposal are listed in GPE , providing for police assistance for the enforcement of administrative decisions and the imposition of procedural fines .


András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Vladimiro Zagrebelsky

The applicant was born in DATE and lives in LOC .

The applicant was the partner of ORG ( ORG ) , with whom she entered into a religious marriage ( imam nikah ) in DATE and had CARDINAL children . PERSON died on DATE .

On DATE the applicant brought an action before ORG , in her own name and that of her daughter PERSON , seeking to have her marriage to PERSON recognised and to have Emine entered in the civil register as the deceased ’s daughter .

In a judgment of CARDINAL DATE ORG dismissed the applicant ’s action regarding the marriage but granted the request for Emine to be entered in the register as ORG ’s daughter . No appeal was lodged and the judgment became final .

On an unspecified date the applicant requested the NORP retirement pension fund ( PERSON ) to grant her and her daughter PERSON the benefit of her deceased partner ’s retirement pension and health insurance rights . On an unspecified date the fund refused the request . On DATE the applicant applied to ORG to have that decision set aside . On DATE the latter decided that it had no jurisdiction ratione loci and that the case should be heard by ORG .

In a judgment of DATE ORG rejected the applicant ’s application in part . Basing its decision on the judgment of ORG , it found that the applicant ’s marriage to ORG had not been validated . Accordingly , since the marriage had not been legally recognised , the applicant could not be subrogated to the deceased ’s rights . However , the court set aside the fund ’s decision in so far as it related to Emine , granting her the benefit of her deceased father ’s pension and health insurance rights .

On DATE the applicant appealed on points of law to ORG . She pointed out that the extract from the civil register stated that she was the wife of PERSON , who was registered in the village of PERSON . The applicant explained that in DATE she had married PERSON in accordance with custom and practice . The couple had had CARDINAL children , born in DATE , DATE , DATE , DATE , DATE and DATE . The first CARDINAL children had been entered in the civil register in DATE under their father ’s name , while the last child , Emine , born in DATE , had been entered under her mother ’s name in DATE . The applicant said that on DATE , while preparations had been under way for an official marriage ceremony , her partner had died following an illness . She asserted that , unlike the couple ’s CARDINAL children , she did not benefit from her late partner ’s pension or health insurance rights .

NORP In a judgment of DATE , served on the applicant on DATE , ORG upheld the impugned judgment .

Article CARDINAL of the Civil Code provides :

“ At the close of the marriage ceremony the official shall issue the couple with a family record book .

The religious ceremony may not be performed unless the family record book is produced .

The validity of the marriage is not linked to the celebration of the religious ceremony . ”

The sixth paragraph of LAW provides :

“ Any person who celebrates a religious marriage without having seen the document certifying that a marriage ceremony has been performed in accordance with the law shall be liable to a term of imprisonment of DATE . ”