Violation of Article 6 - Right to a fair trial

Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

The applicant was born in DATE and lives in GPE . In DATE the applicant was suffering from lung cancer . During his treatment he was infected with type B hepatitis .

On DATE the applicant lodged a claim for compensation against the hospital . He was represented by counsel , GPE On DATE ORG awarded the applicant compensation in the amount of PERCENT of his claim . The applicant appealed .

On DATE the court issued a supplementary judgment declaring that in view of the reform of the health care system ORG was liable jointly with the hospital for damage suffered by the applicant .

By a judgment of CARDINAL DATE ORG held that the amount of compensation did not correspond to the damage which the applicant had suffered . Nevertheless , it dismissed the appeal . It pointed to the fact that the applicant had wrongly named one of the defendants , namely the hospital .

Subsequently , the applicant asked GPE on several occasions , including by letter , to take further steps and to lodge another appeal . He also contacted the local Bar , complaining about the lawyer 's conduct . Finally , he authorised GPE to represent him in the cassation proceedings .

The cassation appeal was lodged on DATE .

On DATE ORG dismissed it , partly because the lawyer had wrongly challenged the first - instance court judgment instead of the judgment of the appellate court and partly because the statement of appeal had not fulfilled the applicable formal requirements .

NORP The decision was served on GPE on DATE but he failed to inform the applicant of this . As a result , the applicant only learned about the outcome of the proceedings on DATE when he contacted the registry of ORG directly .

On DATE the applicant terminated his contract with GPE

On DATE the applicant lodged a claim for compensation against GPE with ORG . In a judgment delivered on DATE ORG awarded compensation for non - pecuniary damage sustained by the applicant as a result of ORG 's failure to represent his interests in the proceedings diligently .

On DATE the applicant lodged an appeal against this judgment which was dismissed by ORG on DATE . The decision was served on the applicant on DATE .

On DATE the applicant requested legal aid for the purposes of preparing a cassation appeal . On DATE the ORG allowed his request and requested ORG to assign a lawyer to the case . On DATE the Bar assigned the case to GPE On an unspecified date DATE TIME was served with a copy of the second - instance judgment .

On DATE the applicant was served with a legal opinion prepared by PERSON and dated DATE by which PERSON explained why he had found no grounds to prepare a cassation appeal .

On DATE the applicant complained to ORG about the refusal .

As a result of this intervention with ORG , on DATE the ORG requested PERSON to prepare the cassation appeal within DATE . In a written opinion of DATE PERSON maintained his view that there were no grounds for a cassation appeal in this case .

On DATE the applicant asked the local Bar to assign another legalaid lawyer to the case .

The Bar replied on DATE that , having regard to the opinion expressed by the first lawyer , it saw no grounds for assigning new counsel to the applicant . It also reminded him that pursuant to the case - law of ORG it was permissible for a legalaid lawyer to refuse to prepare a cassation appeal if he or she considered that it offered no prospects of success .

On DATE the applicant asked for retrospective leave to lodge a cassation appeal out of time . On DATE that request was rejected .

Pursuant to LAW , a court should give all necessary procedural instructions to a party acting without a lawyer and , in particular , should indicate the consequences of that party 's acts or failures to act .

Article CARDINAL § CARDINAL of the Code of Civil Procedure provides that a party to the proceedings may ask the court competent to deal with the case to grant him or her an exemption from court fees provided that he or she submits a declaration to the effect that the fees required would entail a substantial reduction in his and his family 's standard of living .

Pursuant to Article CARDINAL of the Code , persons exempted from court fees may request that legal aid be granted to them . The court will then request the relevant ORG or ORG to assign an advocate or a legal adviser to the claimant 's case .

At the material time a party to civil proceedings could lodge a cassation appeal with ORG against a final judicial decision of a secondinstance court which terminated the proceedings .

Under Article CARDINAL § CARDINAL of the Code of Civil Procedure a cassation appeal had to be lodged with the court that had given the relevant decision within DATE from the date on which the decision with its written grounds was served on the party concerned . Cassation appeals which were not lodged by an advocate or a legal adviser would be rejected .

Article CARDINAL of the Code as applicable at that time listed the grounds on which a cassation appeal could be lodged . It read as follows :

“ The cassation appeal may be based on the following grounds :

CARDINAL ) a breach of substantive law by its erroneous interpretation or wrongful application ;

CARDINAL ) a breach of procedural provisions , if that defect could significantly affect the outcome of the case . ”

Article CARDINAL specified the requirements of a cassation appeal . It read in its relevant part :

“ § CARDINAL . A cassation appeal should include :

CARDINAL ) an indication of the decision under appeal together with information as to whether the appeal is lodged against this decision in its entirety or in part only ;

CARDINAL ) NORP an indication of the grounds for the cassation appeal ;

CARDINAL ) NORP arguments showing that its examination would be justified ;

CARDINAL ) a motion to have the decision under appeal quashed or amended , specifying also the scope of the motion . ”

Article CARDINAL read as follows :

“ A second - instance court shall reject in a hearing held in camera a cassation appeal lodged after a prescribed time - limit or which is inadmissible on other grounds ( ... ) . ”

The reasons justifying the examination of a cassation appeal by ORG could be inferred a contrario from Article CARDINAL of LAW which , as applicable at that time , read , in its relevant part :

“ CARDINAL . ORG may refuse to entertain the cassation appeal , if :

i ) there is no appearance of any significant legal issue in the case ,

ii ) there is no need for the interpretation of provisions raising serious doubts or causing discrepancies in the courts ' case law ,

iii ) the appeal is manifestly ill - founded .

Paragraph CARDINAL shall not apply if the judicial decision challenged manifestly breached the law or where the proceedings are invalid in law . ”

Article CARDINAL of LAW of DATE , as amended , reads , insofar as relevant :

“ CARDINAL . The Bar is established to provide legal assistance , co - operate in protecting a person 's rights and freedoms as well as to formulate and apply the law .

The Bar is organised as a self - governing association .

An advocate whilst executing his / her professional duties is accountable only to the law . ”

Article CARDINAL of the LAW provides as follows :

“ The general tasks of the professional ORG are as follows :

CARDINAL ) creation of conditions for the statutory performance of the Bar 's tasks ,

CARDINAL ) representation of the LOC and protection of its rights ,

CARDINAL ) supervision over the observance of the rules regulating the practice of the profession ,

CARDINAL ) development of professional skills and training of advocates ,

CARDINAL ) determination and promotion of professional ethics and ensuring their observance ,

CARDINAL ) management ( ... ) of the Bar 's assets . ”

Article CARDINAL of the LAW reads :

“ CARDINAL . An advocate may only refuse to provide legal assistance for important reasons of which he must notify the interested party . Any doubts as to whether to provide legal assistance or refuse to do so shall be resolved by the local ORG , and in situations where time is of the essence , by the PERSON of that ORG .

In cases where legal assistance is granted on the basis of the legal regulations concerning legal aid , only the entity appointing the advocate to represent the client may decide to relieve him or her from providing legal assistance . ”

Under LAW of the LAW , an advocate shall provide legalaid services in the jurisdiction of a court where he or she has their office .

Lawyers are bound to act in accordance with rules of professional and ethical conduct enacted by ORG . They may be held accountable for professional misconduct or a breach of ethical principles in proceedings before the bar disciplinary court .

Under LAW adopted by ORG on DATE , when an advocate , either privately hired by the client or appointed under the legalaid scheme , considers that submission of an appeal in a case offers no reasonable prospect of success and the client disagrees with his or her view , the lawyer shall give notice of termination of the power of attorney , terminate the representation , or notify the refusal to the body which appointed him or her .

In DATE ORG issued a resolution in reply to a legal question whether a legalaid lawyer could refuse to lodge a cassation appeal . It replied to the question in the positive .

The court observed that issues involved in the grant of legal aid concerned not only the proper administration of justice , but also touched on human rights , and the right of access to a court in particular . Nevertheless , there was no comprehensive and coherent regulation of legal aid under NORP law .

The mere fact that it was necessary for a cassation appeal to be lodged by a qualified representative was not open to criticism . However , a certain conceptual confusion was to be noted in the provisions governing legal aid as a whole , mostly because the legislator had failed to harmonise the relevant provisions of civil and criminal procedure . In particular , the scope of legalaid lawyers ' obligations when legal representation was mandatory was not directly addressed by provisions of civil procedure . This was so partly because the essential body of law concerning civil procedure had been enacted in DATE , while the provisions on mandatory legal representation for the purposes of a cassation appeal had been introduced in DATE , when this new kind of appeal had been created .

As a result , the scope of legalaid lawyers ' obligations to provide a party to the proceedings with “ legal aid ” in civil proceedings was unclear . In particular , the provisions on lawyers ' legalaid obligations in connection with cassation proceedings before ORG lacked clarity . The court noted that the judicial practice regarding the application of the relevant provisions had given rise to serious difficulties of interpretation and discrepancies in the case - law of the NORP courts .

The court observed that the issue of possible conflict between the opinion of a party granted legal aid and a lawyer assigned to represent him or her for the purpose of cassation proceedings had not been directly addressed by the applicable law . It further noted that the notion of legal assistance could not be identified with a simple obligation of a lawyer to act in accordance with the client 's wishes . The role of a legalaid lawyer had rather to be understood as obliging him or her to provide legal advice to the party , including as to the prospects of success offered by a cassation appeal against a given judgment .

The constitutional role of ORG , the highest judicial authority , was also an argument in favour of the conclusion that a legalaid lawyer was not compelled by the will of the party to have a cassation appeal lodged if such an appeal was bound to fail . In case of a disagreement between the party and the lawyer , it was open to the party to complain to the local Bar under LAW . The Bar could then appoint a new lawyer who could lodge a cassation appeal , requesting at the same time to be granted leave to appeal out of time under LAW . It was true that the practice of ORG was not coherent in that in some cases it had rejected such requests and in others it had accepted them . However , it did not prevent the parties from having recourse to this course of action .

Pursuant to LAW , a party to proceedings may ask for retrospective leave to perform a procedural measure outside the prescribed time - limit ; this measure shall be performed simultaneously with lodging the request .

Article CARDINAL of the Code of Civil Procedure reads , in so far as relevant :

“ If a legal representative ... has been appointed in a case , the court correspondence shall be served on [ him or her ] .

However , in a number of decisions the civil courts have held that the running of the time - limit for lodging a cassation appeal is not affected in any way by a request for legal aid submitted by a hitherto non - represented party and its subsequent grant or refusal . That time - limit starts to run on DATE when the party was served with the judgment of the appellate court together with its written grounds , also where the request for legal aid has subsequently been granted ( ORG decisions of DATE , II CZ CARDINAL/CARDINAL ; DATE , I ORG CARDINAL/CARDINAL ; DATE , ORG CARDINAL/CARDINAL ; CARDINAL DATE , II UKN CARDINAL/CARDINAL ; CARDINAL DATE , I CKN CARDINAL/CARDINAL ; DATE ; II UZ CARDINAL/CARDINAL ; DATE , I ORG CARDINAL/CARDINAL ; DATE , II UZ CARDINAL/CARDINAL ; DATE , ORG , DATE , I ORG CARDINAL/CARDINAL ) .

ORG has repeatedly held that a request for leave to appeal out of time was the only method by which a cassation appeal submitted after the expiry of the timelimit could be admitted for examination ( DATE , II CZ CARDINAL ; CARDINAL DATE , II UZ CARDINAL/CARDINAL ) . In a further series of decisions ORG considered that it would be unfair for the legally - aided party to be penalised for the fact that legalaid applications could not be processed quickly enough to make it possible for a cassation appeal to be lodged within DATE counted from DATE of service of the judgment on the party . The parties waiting for legal - aid services can not be held at fault for shortcomings in the system . A party who was obliged to have recourse to legal aid should not be put in a worse situation than that of a person who did not seek it . A request to appeal out of time should therefore be submitted within DATE from the date on which the lawyer could obtain effective access to the case file or had an effective possibility of drafting an appeal ( DATE , II UZ CARDINAL ; DATE , I ORG CARDINAL/CARDINAL ) , or from the date when the lawyer was informed that he had been assigned to the case by ORG DATE , PERSON ; CARDINAL DATE , II UZ DATE ; CARDINAL DATE , PERSON ;

In a resolution adopted by a bench of CARDINAL judges of ORG on DATE ( III CZP CARDINAL/CARDINAL ) that court acknowledged that there had been discrepancies in the manner in which the beginning of the DATE time limit for submitting an application for leave to appeal out of time by legally - assisted parties had been determined . The court was of the view that applications for leave served the purpose of making access to ORG for legally - aided parties genuine and effective . Hence , the beginning of the time - limit could not be determined in a mechanical manner in all cases . The courts should instead examine the circumstances of individual cases as a whole and determine that date bearing in mind the genuine possibility for a lawyer to examine the case and prepare a cassation appeal .


Violations of Art. 2 (substantive aspect);Pecuniary and non-pecuniary damage - award

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

The first applicant was born in DATE and lives in GPE . The second applicant was born in DATE and lives in LOC . The first applicant is the wife of Mr PERSON and the second applicant is the sister of Mr Erdinç Arslan . PERSON and PERSON were killed by police officers on DATE .

On DATE at TIME police officers from the antiterrorist and special forces of GPE police headquarters raided a block of flats where PERSON , aged DATE , and PERSON , aged DATE , had been living . The following day at TIME a police report ( olay - yakalama - ev arama - zapt etme - görgü tespit tutanağı ) was drawn up and signed by thirtysix police officers .

According to this report , at TIME on CARDINAL DATE GPE police headquarters received an anonymous telephone call . The caller stated that several persons had been acting suspiciously and carrying bags and suitcases into one of the flats on the third floor of a building .

A total of QUANTITY police officers arrived outside the block of flats at TIME and secured the surrounding area . CARDINAL officers went up to the landing on the third floor , where there were CARDINAL doors . There was no lighting in the building and it was dark . As the police officers did not know which flat to enter , they decided to raid all of them at the same time . Immediately thereafter , shots were fired from CARDINAL of the flats but the police officers were unable to determine from which of the CARDINAL flats the shots were coming .

At that moment CARDINAL of the doors was opened by a man carrying a gun who , upon seeing the police officers , closed the door immediately and locked it . The officers told this person that they were police officers and ordered him to surrender . As he did not reply , the police officers broke the door and , without entering the flat which was also in the dark , started firing towards the ceiling and the upper parts of the walls .

At around that time the police officers realised that the gunfire had in fact been coming from the flat on the opposite side of the landing and ordered the persons in that flat to surrender . However , the occupants chanted slogans and continued shooting . The officers then broke down their door , entered the flat DATE which was also in the dark – and returned fire . The occupants of the flat then retreated to a room and the police officers intensified their fire towards that room . When the officers realised that no more gunfire was coming from the occupants of the room they stopped firing . In this room the police officers captured a certain PERSON alive , and found Mr PERSON body . Upon discovering that there were explosives in the flat the police officers left the building for their own safety and notified bomb disposal experts , who subsequently arrived and defused the explosives .

Meanwhile , a number of other officers entered the first flat and found the second applicant and her DATE son as well as the body of PERSON .

NORP The same evening the GPE prosecutor arrived at the scene of the incident . In his presence the police officers searched PERSON flat and found a PERSON machine gun numbered SGCARDINAL , a PERSON firearm , empty cartridges and bullets . The police officers found a ORG firearm numbered DATE in PERSON flat . They also recovered empty PERSON cartridges and bullets by the entrance to PERSON flat .

On DATE at TIME the ORG prosecutor drew up a report from which it appears that he arrived at the scene of the incident after having received a telephone call from the security forces . The prosecutor first conducted an inspection in PERSON flat and observed the presence of a PERSON machine gun , another firearm , several cartridges , bullets , empty cartridges , explosives and materials for making explosives . In PERSON flat the prosecutor noted the presence of the ORG firearm and the empty PERSON cartridges and bullets . The prosecutor further observed and recorded in his report the existence of numerous bullet marks on the walls and ceilings in both flats . The prosecutor stated in the report that a doctor from ORG had examined the corpses and had observed that there were bullet entry wounds to PERSON head , abdomen and lumbar regions . As regards PERSON , the doctor had noted bullet entry wounds on his head and hands . The doctor had concluded that classic autopsies were required in order to establish the cause of death . The corpses were then sent to the morgue of ORG .

The same day autopsies were carried out on the bodies of the CARDINAL deceased men . It appears from the autopsy reports that PERSON was shot in the head and hands . A bullet entry wound was observed on his left temple . Another bullet entry wound was observed on the back of his right hand . The third bullet had entered his left hand through the third finger . Bullet exit wounds were observed in the occipital region , on the right palm and on the left wrist . The experts were unable to determine the number of bullets which PERSON had received to his head . They maintained that all the shots had been fired at long range . PERSON death was stated to have been caused by a fractured skull , laceration of the brain and a cerebral haemorrhage as a result of firearms injuries .

The report concerning PERSON revealed that he had been shot in the head and chest . CARDINAL bullet entry wounds were observed in the left orbital region . CARDINAL bullet entry wound was found on the left side of the chest . The bullet exit wounds were found on the left parietal region and the right side of the lumbar region . The forensic experts concluded that the bullets to PERSON head had been fired at long range , but they were unable to determine the distance because the deceased 's clothing had been covering his body .

Also on DATE a police chief informed the ORG prosecutor that the fingerprints taken from “ the CARDINAL dead terrorists ” did not match any fingerprints in their archives .

On DATE PERSON , who survived the shooting , made a statement before the PERSON prosecutor regarding the incident . He maintained , inter alia , that he and PERSON had rented the flat DATE before the incident and had been manufacturing explosives there . On DATE of the incident , when he had heard footsteps on the roof , he had approached the entrance to the flat and opened fire on the police officers who were outside the flat . The police officers had then returned fire and shot PERSON but he had not seen PERSON firing the PERSON machine rifle .

On DATE the prosecutor questioned the first applicant , who maintained , inter alia , that her husband had not had a firearm and that he had actually been on the telephone when the police officers had suddenly stormed their flat without any prior warning , opened fire and shot her husband . She had then hidden in the flat with her son . After her husband had been hit , the officers had continued firing into the flat . The officers had not informed them that they were police officers . The first applicant also gave a description of the officer who shot her husband . She stated that she had heard the officers unsuccessfully ordering the occupants of the other flat to surrender . She maintained that the shooting had continued for a while and , when it stopped , CARDINAL uniformed men had entered her flat and taken her and her son outside . Before she left the flat she had looked at her husband 's body and she had not seen any weapons next to him . She requested that the persons responsible for killing her husband be punished .

On DATE the prosecutor questioned the police officers who had participated in the operation . The officers stated , inter alia , that they had been surprised on their arrival on the third floor by the fact that there were CARDINAL doors , CARDINAL of which turned out to be the door to a storeroom . While they were reflecting on how to proceed , shooting had come from CARDINAL of the flats . As they could not establish from which direction the gunfire was coming , they had decided to raid all the flats . At that moment a man with a pistol in his hand had briefly emerged from CARDINAL of the doors and then gone back inside . The officers had then broken the door to that flat ( occupied by PERSON ) and fired their weapons at random in order to warn the occupants . They had then realised that the gunfire had actually come from the flat on the other side of the landing ( Erdinç PERSON 's flat ) and had called for assistance from ORG .

Officers PERSON , PERSON and PERSON from the anti - terrorist branch stated that , together with the officers from the special forces , officer PERSON and officer PERSON had broken the door to Mr PERSON 's flat and opened fire . The occupants of the flat who had been firing at them had then retreated to a room and continued to fire from there . According to officer Bülbül , the armed clash had continued for TIME , whereas officer PERSON was of the opinion that it had lasted for TIME . After the operation , officers PERSON and PERSON had seen a PERSON rifle , a pistol , a cartridge and explosives in the room . Officer PERSON added that he had used a PERSON rifle in the operation .

Officers PERSON and ORG from the special forces told the prosecutor that when they and their team arrived outside the building they had heard gunfire and had gone up to the third floor where they had met with officers from the anti - terrorist branch . No fire had been opened from Mr PERSON 's flat before they stormed the flat . After having entered the flat they had asked the occupants of the flat to surrender but CARDINAL shot had been fired in response from CARDINAL of the rooms , followed by an object which had been thrown towards them from the same room and which they had considered at the time to be a bomb . They and another colleague from the anti - terrorist branch had then opened fire towards the room ; they had used MCARDINAL rifles and the remaining officer had used a PERSON rifle . Officer PERSON stated that he was sure that only a total of CARDINAL officers – including himself – had opened fire . The firing had continued for TIME . After the firing had ceased , they had seen a pistol in the room but no bombs or any other rifles .

On DATE ORG questioned the police officers . Officers GPE and ORG stated that on their arrival on the third floor landing gunfire had been coming from inside Mr Erdinç 's flat . ORG rejected the prosecutor 's request to order the pre - trial detention of CARDINAL of the police officers , namely PERSON , PERSON , PERSON , PERSON , PERSON and ORG . The following day the prosecutor successfully lodged an objection against ORG decision .

On DATE the first applicant identified police officer PERSON as the person who had shot her husband PERSON .

DATE the QUANTITY police officers being held in pre - trial detention lodged an objection against their detention . The following day ORG ordered the release of CARDINAL of them and rejected the objection lodged by Officer PERSON .

On DATE the prosecutor heard evidence from the second applicant , who contended that on DATE of the incident at TIME . her brother PERSON had telephoned her . She had heard him shouting “ Let me go ! Leave me ! ” . She maintained that she had heard noises on the telephone but not gunfire .

On DATE the ORG prosecutor filed a bill of indictment with ORG . In the indictment the prosecutor stated that , prior to the operation , the security forces had failed to conduct an investigation or gather information about the suspected persons and had thus failed to plan the operation in a proper manner . The prosecutor noted that officers PERSON , PERSON , PERSON and PERSON had broken down the door to PERSON GPE 's flat and entered there without issuing a warning . The prosecutor considered that , although the officers alleged that they had not directly aimed at PERSON , the wounds to PERSON head could not have been the result of random firing . As for the firearm found next to PERSON body , the prosecutor stated that his office had been unable to determine how the firearm had come to be there ; no cartridges or bullets belonging to that firearm had been found at the scene of the incident .

With regard to the killing of PERSON , the prosecutor observed in his indictment that the wound to PERSON head could not have been the result of warning shots . Noting that the deceased had only fired once , the prosecutor considered that officers PERSON , PERSON and ORG had exceeded the limits of self - defence by killing him .

The prosecutor charged PERSON , PERSON and PERSON with the offence of murder . PERSON was charged with murder and with exceeding the limits of legitimate self - defence . Finally , PERSON and ORG were charged with the offence of causing death by exceeding the limits of legitimate self - defence .

On DATE ORG ( hereinafter “ the trial court ” ) held the first hearing on the merits of the case . On DATE the applicants and the deceased men 's other relatives joined the proceedings as interveners .

On DATE the representative for the interveners requested the trial court to order an investigation into the accused police officers ' superiors who had planned and controlled the operation . The trial court dismissed this request , holding that the intervening parties should apply to the prosecutor 's office .

On DATE the trial court had regard to the time spent by Officer PERSON in detention and also noted that the collection of the evidence was almost complete . Noting that Mr PERSON had a permanent residence , the trial court ordered his release from prison .

During the subsequent hearings the trial court heard evidence from the defendants , the applicants , the intervening parties , the police officers who participated in the operation , the deceased persons ' neighbours and PERSON . Mr PERSON changed his previous statement and maintained that Erdinç PERSON had in fact fired the PERSON . The trial court also conducted an on - site inspection of the CARDINAL flats and ordered experts to take photographs of the scene of the incident and to draw up a sketch map .

During the on - site inspection on DATE , the trial court ordered an expert to draw up a report in order to determine whether the shots had been fired at random and to establish the accuracy of the police officers ' account that they had not been able to establish the source of the firing at the beginning of the operation .

On DATE the expert submitted his report to the trial court . He concluded that the police officers had fired their guns at random . The expert also considered that it was probable that the police officers had failed to determine the direction of the shots fired from the PERSON because shots from such a powerful weapon would have caused an echo in the building .

On DATE the trial court rendered its judgment . It held that there was no evidence in the case file to prove that there had been a premeditated plan to kill the CARDINAL persons or that the firearms found at the scene of the incident had been planted there by the police officers who had participated in the operation .

With regard to the killing of PERSON , the trial court rejected the first applicant 's allegation that the lights had been on in the flat at the time of the incident and that her husband had not had a firearm . The trial court considered it probable that PERSON had had a firearm in his hand as there were armed men in the building . The trial court further noted that the police officers had planned to render PERSON harmless in order to be able to arrest him . It also observed that PERSON had not fired his gun .

The trial court observed that the police officers had fired a total of CARDINAL bullets and that PERSON had been shot in the head , whereas the police officers should have aimed at other parts of his body , such as his legs and feet , in order to avoid the risk to his life . The trial court concluded that PERSON , PERSON , PERSON and PERSON had exceeded the limits of their powers in resorting to force and had thus caused PERSON death . However , the trial court could not determine which officer had actually killed PERSON and it thus reduced the QUANTITY police officers ' sentences to DATE , before further reducing them to DATE and then suspending them altogether .

As to the killing of PERSON , the trial court noted at the outset that the security forces had received information that the deceased and PERSON had been making explosives in their flat with a view to carrying out bomb attacks on the provincial offices of the CARDINAL political parties which formed ORG at the time . The trial court observed that , according to the expert report of DATE , PERSON and PERSON hand swabs revealed traces of antimony . It further noted that an exchange of gunfire had begun between the police officers who had secured the area outside the building and PERSON and PERSON , who had been in the flat . It recorded that CARDINAL bullets had been fired from the PERSON and QUANTITY from the NORP firearm ; both these weapons had been found in PERSON flat . The court noted that a bullet had been fired from the room in the direction of the police officers who had been on the other side of the door .

The trial court considered that the police officers , who had been facing CARDINAL persons armed with weapons and bombs in a confined place , could not have been expected to fire at non - life - threatening parts of Mr PERSON 's body . It therefore held that PERSON , PERSON and ORG had remained within the limits of legitimate self - defence . It concluded that there were no grounds for imposing any punishment on those officers for the killing of PERSON .

CARDINAL

On DATE ORG upheld the judgment of ORG . On DATE ORG decision was deposited with the registry of ORG .

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


The applicant , Mr PERSON , was a NORP national who was born in DATE and lived in GPE . In DATE the applicant died . By a letter of CARDINAL DATE the late applicant ’s wife PERSON and his children Mr PERSON and PERSON informed the Court that they wished to pursue the application in his stead . The applicant is represented before the Court by PERSON E. Ľalíková , a lawyer practising in GPE . The respondent Government are represented by PERSON , their Agent .

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

The applicant ’s family owned real estate located in GPE which comprised a house and the land around it .

In DATE CARDINAL contracts were made relating to the transfer of the property to the ORG . The first of these contracts was concluded on DATE and the second at some unspecified point in DATE . The existence and validity of these contracts were later in dispute ( see below ) .

The ORG subsequently took over the property and , since then , it has been used by a college of agriculture in GPE . The title to the property was formally vested in a special legal entity ( školský majetok or , later , školské hospodárstvo ) which was attached to the college .

On DATE the applicant and CARDINAL of his relatives , who were all jointly represented by a lawyer , brought a civil action against the above entity which possessed the property and against ORG ( školská správa ) in LOC súd ) . They originally sought an order for possession of the house , but later extended the action by also seeking a ruling declaring that the defendants were not bona fides possessors of the property .

On DATE ORG dismissed the action but , on the plaintiffs’ appeal , ORG ( PERSON súd ) quashed the judgment on DATE .

On DATE ORG found in favour of the plaintiffs but , on the GPE appeal , ORG overturned the judgment and dismissed the action on DATE .

The plaintiffs appealed on points of law to ORG .

On DATE ORG quashed the judgment of DATE and remitted the case to ORG for reexamination of the GPE appeal against the judgment of DATE .

On DATE ORG examined the GPE appeal against the judgment of DATE afresh . It again reversed the latter judgment and dismissed the action . ORG examined complex documentary and other evidence , including the pleadings of the parties . It found that the contract of DATE had been validly concluded and approved by the competent authorities . It had lawfully conveyed the house in question to the ORG . As a consequence , under the laws which applied at the time , the title of the applicant ’s family to the land underneath the house had been automatically extinguished . The applicant and the other plaintiffs had therefore no legal title to the property and , consequently , no right of action in the case .

The plaintiffs again appealed on points of law . They contested ORG factual conclusion as to the existence of the contract of DATE . They maintained that the judgment was not properly reasoned , that the facts had not been established adequately and that the court ’s legal assessment of the case was flawed .

On DATE ORG dismissed the appeal . Following the applicant ’s death , it dealt in his stead with his surviving wife and children , being his heirs . ORG found that the facts of the case had been established adequately , the reasons given by ORG were comprehensive and convincing and its conclusion was correct .

On DATE ORG issued an order for costs against the plaintiffs .

The wife and children of the applicant , who were represented by a lawyer , challenged ORG judgment by a complaint to ORG under LAW . They complained that the judgment was onesided , unfair and wrong , contrary to LAW .

On DATE ORG declared the complaint inadmissible as being manifestly ill - founded . It found that ORG had adequately examined the plaintiffs’ arguments , its findings were not manifestly arbitrary or wrong and its conclusions had been adequately reasoned .


Violation of Art. 8;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

The applicant was born in DATE and lives in Wydminy .

On DATE the applicant was arrested on suspicion of having committed CARDINAL burglaries . On DATE ORG ( Sąd Rejonowy ) ordered that the applicant be remanded in custody until DATE . It found that there were reasonable grounds for believing that the applicant had committed the offences in question and that he would obstruct the proper course of the proceedings . The applicant ’s detention was subsequently prolonged by ORG on unspecified dates . On DATE the bill of indictment was filed with the court .

On DATE ORG convicted the applicant of CARDINAL counts of burglary and sentenced him to CARDINAL years’ imprisonment . The applicant appealed against that judgment .

On DATE ORG ( PERSON ) quashed the first - instance judgment and ordered a retrial . The applicant was released on DATE .

On an unspecified date in DATE the applicant was charged with homicide . On DATE ORG ordered that the applicant be detained for DATE in view of the reasonable suspicion that he had committed the offence at issue . On DATE ORG ordered the applicant ’s release . On DATE the criminal proceedings against the applicant were discontinued .

On DATE the applicant was arrested on suspicion of burglary . On DATE ORG ordered his detention on remand until DATE . It found that there was a reasonable suspicion that the applicant had committed burglary , having regard to the evidence obtained in the investigation . It also relied on the severity of the likely sentence given the fact that the applicant was a habitual offender . Lastly , it held that there was a risk that the applicant would tamper with evidence .

On DATE ORG ordered that the applicant be remanded in custody until DATE . On DATE the applicant ’s detention was further prolonged until DATE . The court relied on the same grounds as given in the original detention order .

NORP In DATE the bill of indictment was filed with ORG . The applicant was charged with CARDINAL counts of burglary and intimidation of a witness .

On DATE the ORG prolonged the applicant ’s detention until DATE . His detention was further prolonged on DATE . On DATE the applicant was released .

On DATE ORG convicted the applicant as charged and sentenced him to DATE and CARDINAL months’ imprisonment .

The following of the applicant ’s letters to the ORG bear a stamp “ Judge ” ( GPE ) and an illegible signature :

letter dated DATE received by ORG DATE . It appears that the envelope in which that letter was sent had been cut open and subsequently resealed with adhesive tape ;

letter dated DATE received by ORG on DATE . That letter also bears a stamp “ ORG . Received DATE ” ( PERSON . FAC ) and an illegible signature . The envelope in which the letter was sent bears a stamp “ FAC . Received DATE ” ( PERSON . PERSON ) . According to the postal stamp , the letter was posted on DATE ;

letter dated DATE received by ORG on DATE . It appears that the envelope in which that letter was sent had been cut open and subsequently resealed with adhesive tape ;

letter dated DATE received by ORG on DATE ;

letter dated DATE received by ORG on DATE . The envelope in which that letter was sent bears a stamp “ FAC . Received DATE ” ( PERSON . PERSON ) . According to the postal stamp , the letter was posted on DATE . It appears that the envelope in which that letter was sent had been cut open and subsequently resealed with adhesive tape ;

Most of the envelopes in which those letters were sent , except for the letters dated DATE and DATE , bear a hand - written note “ ORG ” ( D[istrict ] C[ourt ] GPE ) .

Rules relating to means of controlling correspondence of persons involved in criminal proceedings are set out in LAW ( NORP karny wykonawczy ) which entered into force on DATE .

The relevant part of Article CARDINAL § CARDINAL of the LAW provides as follows :

“ Convicted persons ( ... ) have a right to lodge complaints with institutions established by international treaties ratified by GPE concerning the protection of human rights . Correspondence in those cases ( ... ) shall be sent to the addressee without delay and shall not be censored . ”

Article CARDINAL § CARDINAL reads as follows :

“ Unless exceptions are provided for in the present LAW , a detainee shall enjoy at least the same rights as are secured to a convicted person serving a sentence of imprisonment under the ordinary regime in a closed prison . No restrictions shall be applied to him except such as are necessary to secure the proper conduct of criminal proceedings , to maintain order and security in a remand centre and to prevent demoralisation of detainees . ”

Article CARDINAL § CARDINAL reads , in so far as relevant , as follows :

“ ( ... ) detainee ’s correspondence shall be censored by [ the authority at whose disposal he remains ] , unless the authority decides otherwise . ”

“ The prohibition of censorship shall also mean the prohibition of acquainting oneself with the content of the letter . ”

On DATE the Rules of Detention on Remand ( ORG w sprawie regulaminu wykonywania tymczasowego aresztowania ) entered into force .

§ CARDINAL of the ORG provides :

“ A detainee ’s correspondence , including correspondence with the international institutions for the protection of human rights , which act on the basis of international agreements ratified by GPE , with the ORG and public and local government institutions , is mailed through the intermediary of the organ at whose disposal he remains . ”


The first applicant , Mr PERSON , born in DATE , is a national of GPE . The other applicants are his former wife , PERSON , and their QUANTITY children , Lucky and PERSON , all NORP nationals and born in DATE and DATE respectively , and his son from an earlier relation , LOC , who holds the same nationality as his father and was born in DATE . These CARDINAL are living in GPE while the first applicant is residing in GPE , in GPE . They were represented before the ORG by Mr PERSON , a lawyer practising in GPE ) .

s , may be summarised as follows .

The first applicant belongs to the GPE ( ethnic NORP of NORP origin ) and he was born and raised in the city of GPE in the eastern part of GPE ( hereinafter referred to as “ the ORG ” ) . In DATE he fled to GPE because he was a member of an illegal political party in the ORG . In DATE he travelled to GPE to participate in military training but he returned to GPE at DATE . In DATE , he went to GPE where , in DATE , ORG ) rejected his application for asylum but granted him a permanent residence permit based on “ de facto ” reasons due to the situation in the ORG ( then GPE ) combined with the applicant 's personal situation .

In DATE the first applicant married the second applicant in GPE , from where she originates and was living . She then travelled with him to GPE where she was granted a permanent residence permit in DATE . On DATE their son , Lucky , was born and , on DATE , their daughter , PERSON , was born . These CARDINAL have since been granted NORP citizenship .

Moreover , in DATE , the family was joined by the first applicant 's son , PERSON . He had lived in GPE with his mother and came to GPE because his mother died .

According to the first and second applicants , they divorced just before the expulsion of the first applicant for practical reasons . They wanted to make it easier for the second applicant to live alone in GPE with the children .

On DATE , upon arrival at FAC in GPE , the first applicant was checked by customs officers and QUANTITY of heroin was found in CARDINAL of his bags . He was arrested and charged with an aggravated drugs crime ( grovt narkotika brott ) and the attempted aggravated smuggling of drugs ( försök till grov varusmuggling av narkotika ) .

On DATE ORG ( tingsrätten ) of PERSON convicted the first applicant as charged and sentenced him to DATE imprisonment and expulsion from GPE with a prohibition on returning before DATE . When deciding the DATE imprisonment , ORG took into account the detriment caused to the first applicant by the expulsion and reduced the normal prison sentence , which would have been DATE imprisonment .

Concerning the expulsion , ORG had requested ORG to submit its observations on the matter . ORG observed that the reasons invoked by the first applicant at the time when he was granted a permanent residence permit were not such that , according to the current practice , he would have been granted such a permit on humanitarian grounds . However , the ORG found that it could not be excluded that , due to the situation in the ORG , there might be an impediment to the enforcement of an expulsion order .

ORG considered that the first applicant had a strong connection to GPE because of his family and the fact that he had resided there for DATE by that time . However , it noted that he had been convicted of lesser offences on CARDINAL previous occasions : unlawful driving in DATE , aggravated unlawful driving in DATE , unlawful driving and aggravated drink - driving in DATE , shop - lifting in DATE and the unlawful use of documents in DATE . Moreover , the present offence was of a very serious nature having regard to the amount of heroin and its dangerousness to individual abusers and society as a whole . In these circumstances , the court concluded that there were particular reasons for expelling the applicant with a prohibition on returning before DATE .

The first applicant appealed to ORG ( PERSON hovrätt ) , requesting that his prison sentence be reduced and the expulsion order repealed .

On DATE ORG upheld the lower court 's judgment in full . With regard to the expulsion , it shared ORG reasoning , adding that the first applicant had not succeeded in establishing himself on the NORP labour market or adjusting to NORP society , despite DATE in the country . It also observed that he kept in contact with his relatives in LOC whom he had visited for DATE during DATE .

The first applicant appealed to ORG ( ORG domstolen ) which , on DATE , refused leave to appeal .

In DATE the applicants requested ORG , through ORG , to revoke the expulsion order and let the first applicant stay in GPE with his family . On DATE the Government rejected the request on the grounds that there was neither any impediment against the enforcement of the expulsion nor any other special reason under LAW to revoke the expulsion order .

In DATE the applicants lodged a new application with the ORG , requesting the revocation of the expulsion order . Primarily , the applicants invoked humanitarian grounds and LAW , claiming that it would be inhuman to separate the family , in particular having regard to the children and their need for their father during their up - bringing . However , the first applicant also alleged that the very unstable situation in the ORG , and the fact that he belonged to a minority which was discriminated against , constituted impediments to his expulsion . With reference to ORG statement that he had visited relatives in LOC during DATE , he stated that he had not visited the ORG since he came to GPE in DATE , but that the visit had been to GPE .

On DATE , after a request by the Government , ORG ( Migrationsverket ) submitted its observation regarding the matter . It considered that the situation in the ORG had significantly improved after a peace agreement with GPE in DATE and a deal between the ORG and rebel groups in DATE . Thus , ORG found that there was no general impediment to sending persons back to that country . It noted that the ORG shared this view . It further considered that , even with regard to first applicant 's ethnicity , there was no personal impediment to enforcing the expulsion order against him .

The first applicant objected to ORG conclusions , stating that he had no relatives in GPE and would not be able to support himself if sent there . He invoked a statement , dated DATE , by PERSON , an Information Officer at ORG ( PERSON ) , in which Mr ORG stated that the situation in the ORG was still very unstable and that fundamental human rights were not guaranteed . Moreover , since the first applicant did not have any relatives in GPE and did not speak the local language of the area , he would not be able to survive there and would face grave risks because he was GPE and this group was discriminated against and disliked in most parts of the country .

On DATE the first applicant was conditionally released from prison but placed in detention awaiting expulsion .

On DATE the Government rejected the request to have the expulsion order revoked , finding no reason to change their previous decision .

On DATE , DATE , the first applicant was expelled to the ORG . Apparently , he arrived in GPE where he remained for some time before travelling to his home town , GPE , where relatives have been helping him . He regularly calls his CARDINAL children , and his eldest son transfers money to him DATE .

Pursuant to LAW , LAW ( ORG ) , a crime may , apart from ordinary sanctions , result in special consequences defined by law . Expulsion on account of a criminal offence constitutes such a special consequence .

Provisions on expulsion on this ground are laid down in LAW . According to LAW , section CARDINAL of the LAW , an alien may not be expelled from GPE on account of having committed a criminal offence unless certain conditions are satisfied . First , he or she must have been convicted of a crime that is punishable by imprisonment . Secondly , he or she may only be expelled if the sentence is more severe than a fine , and if ( CARDINAL ) it may be assumed , on account of the nature of the crime and other circumstances , that he or she will continue committing crimes in GPE , or ( CARDINAL ) the offence , in view of the damage , danger or violation involved for private or public interests , is so serious that he or she ought not to be allowed to remain in the country .

Furthermore , under LAW , section CARDINAL of the Act , when considering whether or not an alien should be expelled , the court shall take into account the person 's links to NORP society . As regards aliens who are considered to be refugees and in need of protection in GPE , they may be expelled only if they have committed a particularly serious crime and it would entail a serious danger for public order and safety to allow them to remain in GPE . An alien with refugee status shall be considered as a refugee in need of protection in GPE unless it is evident that he or she is no longer a refugee in such need .

Moreover , the court must have regard to the general provisions on impediments to the enforcement of an expulsion decision . Thus , pursuant to LAW , LAW , there is an absolute impediment to expelling an alien to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment . Further , a risk of persecution generally constitutes an impediment to enforcing an expulsion decision .

According to LAW , section CARDINAL of the LAW , if the Government finds that a judgment or decision to expel a person on account of having committed a criminal offence can not be executed or if there are otherwise special reasons not to enforce the decision , the ORG may repeal , in part or completely , the judgment or decision of the court . The ORG may also , in accordance with LAW , LAW , of ORG ( Regeringsformen ) , pardon or reduce a penal sanction or other legal effect of a criminal act .