Violation of Art. 6-1 (composition of state security court);Not necessary to examine remainder;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic and Convention proceedings

The applicants were born in DATE and DATE respectively and live in GPE .

On DATE ORG was informed that a poster with a bomb had been hung over FAC . Following their arrival at the bridge , the police found a cloth - poster of QUANTITY on which it was written “ We have and will demand the account of GPE , ORG ” , ( PERSON hesabını sorduk , soracağız , ORG ) . According to the police report , the box looked as if it contained a bomb . However , it did not .

On DATE the first applicant was arrested and taken into police custody on suspicion of her involvement in the hanging of the poster . On DATE she was brought before the public prosecutor ’s office at ORG and before ORG . The court remanded her in custody .

On DATE the second applicant was arrested and taken into police custody on suspicion of his involvement in the above - mentioned incident . On DATE he was brought to the public prosecutor ’s office at ORG and before GPE ORG . The court remanded him in custody .

On DATE and DATE respectively , the public prosecutor at ORG filed a bill of indictment with that court accusing the applicants of aiding and abetting an illegal organisation , namely the ORG . The public prosecutor requested that the applicants be convicted and sentenced under LAW and LAW no . ORG .

On DATE ORG commenced the trial of the first applicant together with other co - accused .

On an unspecified date , the first and second applicants’ case files were joined and they were tried before ORG along with CARDINAL other suspects accused of the same offence .

On DATE ORG , relying on the statements given by the applicants and the other suspects to the police , the public prosecutor and the court , convicted the applicants as charged and sentenced them to DATE and QUANTITY months’ imprisonment .

Following a hearing held on DATE , ORG dismissed the ORG appeal and upheld the judgment of ORG . On DATE the judgment of ORG was deposited with the registry of ORG .

The relevant domestic law and practice in force at the material time are outlined in the following judgments : PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) , and GPE v. GPE ( no . CARDINAL , § § CARDINAL , DATE ) .


Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Vincent A. De Gaetano;Zdravka Kalaydjieva

The applicants , PERSON GPE , Mr PERSON , Mr PERSON and PERSON , are NORP nationals who were born in DATE , DATE , DATE and DATE respectively . The first CARDINAL applicants live in FAC and the fourth applicant lives in GPE . The applicants were represented before the Court by PERSON , a lawyer practising in GPE .

The ancestors of the applicants owned a plot of land and a CARDINAL - storey building in ORG . A portion of that property was expropriated in DATE . However , in practice the whole property was taken and allocated for use by the ORG enterprise T.

CARDINAL additional storeys to the expropriated building were constructed by the ORG in DATE and DATE respectively .

In DATE , following the demise of the communist regime , ORG was transformed into a ORG - owned limited liability company . Pursuant to the legislation in force at the time , it acquired ownership of the CARDINAL additional storeys previously allocated for its use .

On an unspecified date after the adoption of legislation in GPE in DATE which provided for the restoration of titles to certain types of expropriated property , the applicants obtained restitution of the land and the first CARDINAL storeys of the building .

In DATE the first , second and third applicants brought a rei vindicatio claim against the company ORG and the ORG . They argued that they had become coowners of the CARDINAL storeys constructed after the expropriation , as only parts of the building had been expropriated from their ancestors . As their ancestors had never consented to another person constructing and becoming owner of the QUANTITY new storeys , the ORG could not have acquired the entire property .

The claim was examined at CARDINAL levels of jurisdiction and dismissed in a final judgment of ORG of DATE . The domestic courts found that the CARDINAL additional storeys could not be subject to restitution under the denationalisation legislation , because they had never been expropriated . Furthermore , even if the applicants’ ancestors had remained co - owners of the property , parts of which had been expropriated , and had thus become co - owners of the QUANTITY additional storeys , their rights had been extinguished and the ORG had acquired full ownership of these storeys through adverse possession , once the applicable DATE statutory period had expired . The provisions of the restitution legislation , relied on by DATE applicants , stating that the rules on adverse possession did not apply to expropriated property , were not applicable in the case .


Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicants were born respectively in DATE , DATE , DATE and DATE and are currently residing in GPE . The first applicant is a professor , the second one is an accountant , the third one is a lawyer and the fourth one is a doctor .

In DATE and DATE the applicants were members of ORG ( “ giunta municipale di Benevento ” ) . On DATE ORG informed the applicants that criminal proceedings had been instituted against them for abuse of power and misconduct in office .

On DATE and CARDINAL DATE and CARDINAL DATE , ORG requested the investigating judge to prolong the maximum period for the duration of the investigations .

On DATE ORG requested that the applicants and CARDINAL other persons be committed for trial on the above - mentioned charges . The preliminary hearing , scheduled for DATE , was adjourned on CARDINAL occasions because the lawyers of ORG were on strike and eventually took place on DATE . On the latter date and on DATE some of the accused were examined . The proceedings were adjourned until DATE .

After QUANTITY hearings , on DATE , the investigating judge ordered a stay of proceedings pending a ORG judgment concerning a procedural issue which he considered to be relevant to the present case . In a judgment of DATE , filed with the registry on DATE , ORG declared that this issue was manifestly ill - founded .

NORP On DATE the case was assigned to another investigating judge . The preliminary hearing was scheduled for DATE . On DATE the parties presented their final submissions .

In a judgment of DATE , filed with the registry on DATE , the ORG investigating judge decided to drop all the charges against the applicants . This decision became final on DATE .


CASE OF MANUSHAQE PUTO AND OTHERS v. ALBANIA

Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Respondent State to take measures of a general character (Article 46 - Pilot judgment;Systemic problem;General measures);Pecuniary and non-pecuniary damage - award

David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Zdravka Kalaydjieva

The applicants were born in DATE , DATE , DATE , DATE and DATE . They all live in GPE .

On DATE ORG recognised the applicants’ inherited property title to a plot of land measuring QUANTITY m. It further decided that the applicants would be compensated in CARDINAL of the ways provided for by law .

The applicants sent various letters to the ORG in DATE and DATE about the issue of compensation but did not receive an official response .

On DATE the ORG informed the applicants that it was in the process of determining the property valuation maps and allocating the appropriate funds . The outcome would pave the way for the establishment of the criteria for compensation claims .

On DATE the ORG ’s director decided proprio motu to verify the lawfulness of the DATE ORG decision . To date , no other decision has been taken and the DATE Commission decision continues to remain unenforced .

The applicants were born in DATE , DATE , DATE , DATE , DATE , DATE , DATE and DATE . They all live in GPE .

On DATE ORG recognised the ORG inherited title to a plot of land measuring QUANTITY . m , out of which QUANTITY . m were restored . The applicants would be compensated for the remaining CARDINAL sq . m in CARDINAL of the ways provided for by law .

On an unspecified date the applicants challenged the Commission decision before the court , claiming that a larger area should be restored to them .

On DATE ORG decided that an additional plot of QUANTITY . m should be restored to the applicants . Consequently , a total area of CARDINAL sq . m was restored to the applicants .

NORP However , to date they have not been provided with compensation in respect of the remainder of the property ( QUANTITY . m ) .

The applicants were born in DATE , DATE , DATE , DATE , DATE and DATE . They all live in GPE .

On DATE ORG recognised the applicants’ inherited title to a plot of land measuring QUANTITY m. It decided that , since the plot of land was occupied , the applicants would be compensated in CARDINAL of the ways provided for by law . To date , the applicants have not been provided with any compensation .

On DATE ORG recognised the ORG inherited title over an agricultural plot of land measuring CARDINAL sq . m. It decided that the applicants would be compensated in ORG bonds in the amount of CARDINAL NORP leks ( “ ALL ” ) . To date , the applicants have not been awarded any ORG bonds or any other form of compensation .

The Government submitted that in DATE the applicants applied for and received compensation in the amount of ALL CARDINAL in respect of CARDINAL sq . m from ORG ( “ ORG ” ) . No supporting document was submitted .

The applicant was born in DATE and lives in GPE .

On DATE ORG recognised the applicant ’s inherited title to CARDINAL plots of land measuring QUANTITY m and QUANTITY m , respectively . It further decided that , since the plots of land were occupied , the applicant would be compensated in CARDINAL of the ways provided for by law . The Commission recognised the applicant ’s right to first refusal of CARDINAL buildings located on the land .

On DATE the Commission recognised the applicant ’s inherited title to another plot of land measuring QUANTITY . m , of which QUANTITY . m were restored . It decided that , since CARDINAL sq . m were occupied , the applicant would be compensated in CARDINAL of the ways provided for by law .

On an unspecified date the applicant lodged a claim for compensation with the Agency in respect of the Commission decision of DATE .

On DATE the ORG dismissed the claim for compensation on the ground that the applicant had already benefited from the restitution of a plot of land measuring QUANTITY m. No appeal was lodged with ORG within the statutory CARDINAL days’ period .

The relevant provisions of LAW have been described , inter alia , in the judgment of ORG . v. GPE , no . CARDINAL , § DATE , DATE .

The first law on property restitution and compensation was enacted in DATE ( Law no . CARDINAL of DATE – “ the DATE LAW ” , as amended ) . LAW has been described in detail in the judgments of ORG and Others v. GPE , no . CARDINAL , § § DATE , DATE , ORG v. GPE , no . CARDINAL , § § DATE , CARDINAL DATE , ORG and Others v. GPE , no . CARDINAL , § § CARDINAL , CARDINAL DATE . The DATE LAW was repealed by DATE Property Act .

The DATE LAW aimed at the restitution of urban , immovable property , which had been expropriated , nationalised or confiscated prior to CARDINAL DATE . In the impossibility of restoring the original property , it provided for the grant of compensation ( sections CARDINAL , CARDINAL , DATE and DATE ) .

Under LAW compensation was to be determined on the basis of the property ’s market value . LAW , as amended , provided for CARDINAL forms of compensation : ( a ) property of the same kind ; ( b ) public property located in tourist areas ; ( c ) property of any other kind ; ( d ) shares in ORG - owned companies ; ( e ) the value of a ORG - owned property in the course of privatisation , and ( f ) a sum of money corresponding to the value attributed to the property at the time of the decision ( LAW as amended ) .

The DATE LAW initially instituted local Commissions , whose decisions were amenable to appeal to ORG ( sections DATE ) . In DATE those institutions were replaced by ORG ( “ the NORP ” ) and its regional offices . Decisions of regional Agency offices were open to appeal before the central ORG . ORG offices were subsequently abolished . At present , the ORG is the sole administrative body competent to decide on restitution and compensation claims .

Section CARDINAL of the CARDINAL Act provided for the establishment of a tenyear ORG , whose aim was to provide financial compensation . It further recognised the former owner ’s right to receive default interest covering the period running from the recognition of the property right until the award of the financial compensation , calculated at the DATE median interest rate of ORG . LAW , as amended , provided for the establishment of the In - kind ORG ( “ NORP ” ) .

The DATE LAW has been amended CARDINAL times DATE ; deadlines have been repeatedly extended . It has been described in further detail in NORP v. GPE , no . CARDINAL , § § DATE , CARDINAL DATE and in Çaush PERSON v. GPE , no . CARDINAL , § § DATE , DATE .

Statistics concerning the property restitution and compensation process , as provided for by the ORG , are annexed to this judgment .

In the context of the review of the constitutionality of the legislation after its entry into force , ORG has been called upon , on several occasions , to rule on whether some of the DATE LAW provisions were compatible with the LAW .

In decisions ORG . CARDINAL of CARDINAL DATE and CARDINAL of DATE ORG repealed as incompatible with the LAW a number of the LAW provisions , as amended , which empowered the central ORG ’s director to re - examine , annul and repeal ex officio Commission decisions . Having regard , inter alia , to this ORG ’s judgments in the cases of ORG , cited above , and GPE v. GPE ( ( no . CARDINAL ) ( no . CARDINAL , DATE ) ) , ORG reaffirmed that “ Commission decisions were capable of conferring on individuals legal expectations equal to that created by virtue of a court decision which recognises an individual ’s property rights ” . Consequently , those decisions , which were not administrative acts within the meaning of that legal notion , were directly amenable to judicial review . Moreover , since such decisions had become “ final and enforceable ” , they could not be subject to review by the ORG ’s director , who did “ not embody the characteristics of a judicial body or quasi judicial body ” .

The Constitutional Court ’s Act ( law no . DATE of DATE ) provides that its decision is erga omnes and binding ( section CARDINAL § CARDINAL ) . The decision enters into force on the date of its publication in ORG , save as decided otherwise ( section CARDINAL ) . As a general rule , ORG decision , which repealed an act as incompatible with the LAW or international agreements , produces effect from its date of entry into force ( section CARDINAL § CARDINAL ) . The decision applies retrospectively only : ( a ) in respect of a criminal punishment even while it is being executed , if it is directly connected with the implementation of the repealed act ; ( b ) in respect of cases that are being examined by domestic courts , as long as no final decision has been taken ; and ( c ) in respect of consequences , yet to be produced , of the repealed act .

Pursuant to the DATE LAW , as amended , the Government have adopted a number of by - laws , by way of ORG ( “ CMDs ” ) as described below .

DATE and DATE the authorities issued CARDINAL CMDs in respect of the award of financial compensation to former owners ( see PERSON , cited above , § § DATE ) . In DATE financial compensation was awarded in respect of compensation claims arising out of ORG decisions . In DATE financial compensation was awarded in respect of compensation claims arising out of the decisions of the GPE and ORG . In DATE the group of beneficiaries was expanded to include former owners who were in possession of a Commission decision issued with respect to cities for which a property valuation map had been approved and issued . In DATE , DATE and DATE all former owners , who were entitled to compensation , following a ORG regional Agency decision , were eligible to apply for financial compensation . It would appear that no decision was adopted in DATE .

According to the CMDs adopted DATE , a claimant , whose right to compensation had been recognised in respect of the entire property , was required to lodge a standard application for financial compensation with the central Agency in GPE , furnishing , inter alia , the GPE / regional Agency decision that recognised his right to compensation . The DATE ORG further provided that a former owner was entitled to financial compensation on the condition that s / he had not benefited from : a ) previous compensation ; b ) partial restoration / restitution of the property ; c ) the right to first refusal ; d ) the implementation of the LAW on the Distribution of Land ( Law no . DATE of DATE ) . The DATE ORG stated that a claimant , holding a final and enforceable decision , in respect of which no compensation had ever been awarded , was entitled to benefit from the award of compensation .

Applications would be examined in chronological order on the basis of the ORG / regional ORG decision date and number . The amount of financial compensation , which was to be calculated on the basis of property valuation maps , was limited to a maximum of CARDINAL sq . m during the period DATE . The DATE ORG established a tiered system according to which the amount of compensation was to be as follows : ( a ) the equivalent of QUANTITY . m in respect of properties measuring up to QUANTITY m ; ( b ) the equivalent of QUANTITY m in respect of properties measuring CARDINAL sq . m ; ( c ) the equivalent of QUANTITY . m in respect of properties measuring CARDINAL sq . m ; ( d ) the equivalent of QUANTITY m in respect of properties measuring CARDINAL sq . m ; ( e ) the equivalent of QUANTITY . m in respect of properties measuring above QUANTITY . m.

The lodging of an application entailed the payment of a processing fee . Claimants who had been unsuccessful in their application for financial compensation in DATE were to re - submit their application in the following year(s ) once they had paid the processing fee . The DATE ORG dispensed claimants from re - paying the processing fee in the event they re - submitted their claim for compensation .

DATE the Government approved and issued property valuation maps , which included the reference price per square QUANTITY throughout the country ( see PERSON , cited above , § § DATE ) . These maps are relied upon to calculate the value of expropriated properties and subsequently the amount of financial compensation to be awarded ( compare with paragraph CARDINAL above ) .

The DATE LAW , as amended , provided for the establishment of the IkCF ( see paragraph CARDINAL above ) . DATE the Government have adopted a number of CMDs on the procedures for the allocation of properties covered by the IkCF ( see PERSON , cited above , § § DATE ) .

In decision no . CARDINAL of DATE ORG approved an ORG to address the issues identified by this ORG in its ORG and ORG and Others judgments . ORG attributed the non - enforcement of final decisions to the following :

“ ... the issues faced to date relate to the lack of inter - institutional coordination concerning the exchange of information and the inter - operability of archives of those institution ( ... ) . The property legislation is fragmented and needs to be consolidated and simplified in order to provide for simple and transparent compensation procedures . The nationwide process of the first registration of immovable properties has yet to be concluded . There is no unified , national , property map . The ORG lacks a unified database of decisions ( ... ) . The process of legalisation has yet to be completed and the identification of properties that would become part of the In - kind ORG has not finished .

` ... the [ Government ] having regard to the legitimate expectations of owners for DATE , expresses their intention to provide the compensation amount at MONEY . ”

The Action Plan described CARDINAL schemes of compensation .

The transitional compensation scheme ( skema kalimtare ) would apply in DATE ( see paragraph CARDINAL above for more details ) .

The final compensation scheme ( skema definitive ) would become operational in DATE , upon the estimation of the total financial bill . The final scheme would rely on digital cartographic and juridical data as produced by ORG . A claimant possessing a final , enforceable decision would have to submit an application form to apply for compensation . The registration of the submitted application form into an electronic database would be in chronological order on the basis of ORG decision date . A claimant holding CARDINAL final , enforceable decision shall have them ranked chronologically . The compensation amount would be paid in full and in instalments .

The authorities would retain discretion as regards the type of compensation to be awarded . Claimants would not have the right to choose CARDINAL type of compensation over another . If a claimant refused the type of compensation awarded , he would forfeit his right to compensation as regards the concerned instalment . Compensation would be automatically carried out by the authorities . In - kind compensation would take priority over financial compensation . Until the total allocation of properties to the ORG , which would be completed by DATE , in - kind compensation would be distributed as it becomes available .

A new directorate , which would coordinate different ORG bodies , would be established within ORG .

The Action Plan did not contain time - limits as regards its implementation .

On DATE ORG enacted GPE ( Law no . DATE ) , which is a special fund within the meaning of the budget act . ORG beneficiaries are CARDINAL - fold : ( CARDINAL ) former owners whose right to compensation was recognised on account of the DATE and/or DATE LAW ; and ( CARDINAL ) former owners whose right to compensation was recognised on the strength of LAW ( see “ LAW ” section below ) .

The revenue of ORG would consist of : ( a ) DATE allocations from the ORG budget in accordance with ORG as amended ; ( b ) proceeds deriving from the sale at auction of ORG properties in respect of which no decision on restitution or compensation has been adopted ; ( c ) income generated during the process of the legalisation of unauthorised constructions ( see paragraph CARDINAL below ) ; ( d ) income generated as a result of the implementation of other laws and by - laws ; and ( e ) donations .

The Special Compensation Fund will be administered by the ORG .

On DATE ORG enacted LAW in order to regularise illegal constructions and extensions that had been constructed on public and private land in DATE as a result of rapid , profound , internal demographic movements . The Act provided for the transfer of ownership of the plot of land on which unauthorised buildings were constructed , from the original land owner through the ORG to the owner of the unauthorised building , against the payment of a sale price ( sections DATE ) in cash or by way of privatisation vouchers ( section CARDINAL ) . The formal land owner would receive full compensation in respect of the expropriated plot of land in accordance with ORG . The proceeds obtained by the legalisation process would be transferred to the financial compensation fund as provided for by LAW ( section CARDINAL as amended ) .

Statistics concerning the legalisation process , as provided for by the Government , have been annexed to this judgment .

In its latest decision of DATE concerning the supervision of the execution of this ORG ’s judgments , at its FAC meeting , ORG , inter alia , “ took note of the elaboration by the NORP authorities of [ a ] draft global strategy on property rights . ” It further insisted that the NORP authorities should make concrete progress in order to “ establish a list of final decisions , finalise the land value map , calculate the cost of the execution of decisions in order to be able to define the resources needed , adopt the final execution mechanism and execute the decisions at issue . ”


Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence)

David Thór Björgvinsson;Krzysztof Wojtyczek;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE .

On DATE he was convicted of theft and sentenced to DATE and CARDINAL months’ imprisonment . In the period DATE and DATE he was detained in a low - security prison facility ( „ затворническо общежитие ” ) in GPE , part of FAC .

The applicant submitted that the entirety of his incoming and outgoing correspondence with his lawyers had been monitored by the prison administration . He submitted CARDINAL envelopes addressed by him to his lawyers , one from the prison facility in GPE and CARDINAL from FAC . Each envelope was marked or stamped as having been monitored by the prison administration . As noted in a letter from ORG at ORG submitted by the Government , the prison administration , acting in compliance with section QUANTITY ) of LAW of DATE , routinely opened all letters , including those sent to lawyers , save those addressed to certain state bodies or international organisations .

The applicant further submitted that he had not been allowed to contact his lawyer by phone and that his meetings with relatives and lawyers had been held in special LOC with a prison officer attending the meeting .

The applicant submitted that the conditions of his detention in the prison facility in GPE had been poor . In particular , the stated that ( a ) his cell had been small and overcrowded , not equipped with a toilet or a sink ; ( b ) the number of toilets and showers had been insufficient ; ( c ) the food had been of poor quality and insufficient ; ( d ) the heating and ventilation had been insufficient ; ( e ) the level of hygiene in the common areas had been poor ; ( f ) dental services had not been covered by the ORG ; ( g ) prison officers had often addressed inmates in an offensive way , physical harassment had not been uncommon , and disciplinary punishments had been imposed without proper observance of inmates’ rights .

The applicant never brought an action for damages under the ORG and ORG ( “ the ORG ” ) .

The relevant domestic law and practice concerning ORG correspondence are set out in the ORG ’s judgment in the case of GPE and Others v. GPE , nos . CARDINAL/CARDINAL and CARDINAL , LAW DATE , DATE .


On DATE the applicant filed for divorce with ORG . After obtaining several forensic expert opinions , it dissolved the applicant ’s marriage , established the amount of child maintenance and divided the matrimonial property on DATE .

On DATE the ORG brought a partial judgment concerning the sum of child maintenance , and remitted the remainder of the case .

In the resumed proceedings the ORG delivered a judgment on DATE . On appeal , ORG finally divided the matrimonial property on DATE . This judgment was served on the applicant on DATE .


Remainder inadmissible;Violation of Art. 8 (in case of expulsion to Nigeria)

Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva

The applicant was born in GPE in DATE and currently lives in GPE .

On DATE , at DATE he arrived in GPE from GPE , where he was granted entry clearance together with his CARDINAL sisters to join their mother , who had resided for DATE in GPE and was working as a nurse . The applicant has not seen his father since DATE , when the latter abandoned the family . Prior to arriving in GPE , he resided with his elderly maternal grandfather in a town a DATE ’s travel from GPE .

On DATE , at DATE , the applicant was convicted of the rape , together with a group of other boys , of a DATE girl . The sentencing judge remarked :

“ The fact is that your self - centred behaviour has had a profound and distressing effect on the everyday life of a DATE girl . In my view , you are an intelligent and articulate young man , someone who tailored your account to your advantage and you cast deliberate aspersions on your victim . Your intention was to obtain sexual gratification with what in reality was an impressionable schoolgirl by a combination of persistence , charm and finally force ... ”

Taking into account the applicant ’s age and previous good character and the fact that there were few aggravating features , the judge imposed a sentence of detention of DATE at ORG , together with registration on the sex ORG register under LAW .

On DATE , while the applicant was still in detention , ORG granted him Indefinite Leave to Remain in GPE following the grant of Indefinite Leave to Remain to his mother .

On DATE , the applicant was served by ORG with a notice of liability to a deportation order on account of the rape conviction .

On CARDINAL DATE a ORG was prepared , concluding that the applicant ’s response to rehabilitation was positive overall and that he posed a low risk of re - offending and of causing harm to the public . It noted his exemplary conduct in prison and the consistently good reports received . While in detention , the applicant sat and passed national school education examinations , obtaining ORG and AS - level qualifications .

On DATE , while still in detention , the applicant was served with a deportation order in the following terms :

“ It is concluded that in light of the seriousness of your criminal offence your removal from GPE is necessary in a NORP society for the prevention of disorder and crime and for the protection of health and morals .

You have stated that if you are returned to LAW CARDINAL would be infringed . ORG has carefully considered your representations , but we note that you were convicted of rape at ORG for which you were sentenced to DATE imprisonment . We consider that the concerns that you have raised about your family life are outweighed by the public interest in preventing crime and consider that any interference with your family life is in your case outweighed by the public interest in preventing crime , and your removal is proportionate in pursuit of that aim under Article CARDINAL(CARDINAL ) . ”

The applicant appealed against the order .

On DATE the applicant was released from prison on licence for good behaviour , having served approximately DATE and DATE of his DATE sentence . In DATE , he enrolled at ORG in order to study towards obtaining A - level qualifications , the second part of national school education examinations . He obtained CARDINAL A - levels in DATE .

On DATE , the applicant ’s probation officer confirmed that the applicant had complied with all reporting instructions since his release . The probation officer assessed the applicant ’s risk of re - offending as low .

On DATE , the Immigration Judge of ORG ( “ the ORG ” ) allowed the applicant ’s appeal against the deportation order on the basis that the discretion to make the deportation order had not been exercised fairly and proportionately .

On DATE , the Secretary of ORG applied to the ORG for reconsideration of the decision . The Senior Immigration Judge duly ordered reconsideration on DATE .

In DATE , the applicant commenced a university undergraduate degree in economics , banking and finance . He lived with friends during term - time but continued to regard his mother ’s address as his permanent residence .

On DATE , a panel of the ORG unanimously concluded that there had been a clear material error in the approach of the Immigration Judge and quashed his decision . It adjourned the matter for reconsideration on all issues .

On DATE a hearing de novo of the applicant ’s case was conducted by the ORG . Delivering judgment , the Immigration Judge indicated that the various factors to which this ORG ’s case - law refers had been taken into account . He noted that the applicant was DATE and had spent DATE , including his youth and DATE , in GPE . He further observed that the applicant had resided for DATE in GPE , a period which included DATE and DATE spent on remand or serving his sentence . He also considered the strength of the applicant ’s connections to GPE , observing that he was close to his mother ( now a NORP citizen ) , sisters and uncle , all of whom resided in GPE , that he attended a church and that he was studying at university . The judge further had regard to the applicant ’s personal history , including his rape conviction and the grant of Indefinite Leave to Remain in DATE . He took account of the applicant ’s domestic circumstances and his permanent residence with his mother and previous good character . He examined the nature of the offence for which the applicant was convicted , including the sentencing judge ’s remarks ( see paragraph CARDINAL above ) and the absence of any reference to deportation , and accepted that the applicant was at low risk of re - offending . He considered the likely period before the applicant would be able to apply for re - entry , which he assessed at DATE , observing that by that time the applicant was unlikely to have any ground for applying for entry clearance . Finally , he considered compassionate circumstances and the public interest . In respect of the latter , the judge noted that the presumption was in favour of deportation , that the applicant was DATE and in good health , that he had a grandfather with a home in GPE and probably had more relatives in GPE than he had admitted and that family visits would be possible . He concluded ( at paragraph CARDINAL ) :

“ Having considered all the evidence before us and the representations made on behalf of the [ applicant ] , we find that :

a ) the [ applicant ’s ] offence was one of the categories of offences regarded by the [ Secretary of ORG ] as particularly serious ;

b ) the circumstances in this case are not particularly exceptional , and they do not outweigh the presumption in favour of deportation in accordance with the current version of Rule CARDINAL [ see paragraph CARDINAL below ] ;

c ) in any event , even if , contrary to our finding , the provisions of the previous Rule CARDINAL had applied to his case , we would have found that the public interest would have outweighed the other factors in this case ;

d ) we accordingly dismiss the [ applicant ’s ] appeal against the [ Secretary of ORG ’s ] decision to deport him . ”

As regards the applicant ’s complaint under LAW , the judge was not persuaded that the applicant currently had family life in GPE , given that he was DATE , lived with friends during term - time , and had no elements of dependence in respect of his mother , sisters or uncle going beyond normal emotional ties . However , he did accept that the applicant had established a private life in the GPE given the length of his residence , the presence of family members in GPE , and his attendance at a church and university . He added :

“ CARDINAL . We also find that the [ Secretary of ORG ’s ] decision interferes with respect for that private life , in that he would be separated from his family and church , and his degree course ... would be cut short .

However , we also find that the interference pursues the lawful aim of immigration control , that it is in accordance with the law , and that it is proportionate , and in making the finding about proportionality we have balanced the following factors :

a ) all the same factors , including the [ applicant ’s ] domestic circumstances , as we have already taken into account when considering the balancing exercise in relation to the deportation of the [ applicant ] ;

b ) the fact that the public interest in maintaining an effective immigration control normally outweighs respect for an individual appellant ’s private life ;

c ) the fact , as we find , that the public interest in the prevention of crime in this case also outweighs the [ applicant ’s ] right to respect for private life ;

d ) and we find that none of the factors mentioned on behalf of the [ applicant ] , individually or cumulatively , prejudices the private life of the [ applicant ] in a manner sufficiently serious to amount to a breach of the fundamental right protected by LAW

Accordingly , the applicant ’s appeal was dismissed .

The applicant sought permission to appeal to ORG . Permission was refused by ORG on DATE .

NORP In DATE , the applicant completed his undergraduate degree . In DATE he completed a Master ’s degree . In DATE he was offered employment with a local authority in GPE , which he accepted . He currently lives with his mother and visits his CARDINAL sisters , who also reside in GPE , regularly . The applicant continues to attend church in GPE .

On DATE the applicant received a letter from the GPE ORG indicating that the immigration authorities were considering whether deportation action should be taken in respect of the applicant ’s conviction . The applicant was requested to provide details of any change in his circumstances since his last contact with the immigration authorities . Upon being advised that a case was pending before this ORG , the immigration authorities indicated that they would await the outcome of these proceedings .

Section CARDINAL(CARDINAL)(a ) of LAW DATE ( as substituted by ORG ) provides that a person who is not a NORP citizen shall be liable to deportation from GPE if “ the Secretary of ORG deems his deportation to be conducive to the public good ” .

Section CARDINAL provides that :

“ ( CARDINAL ) Where a person is under section CARDINAL(CARDINAL ) or ( CARDINAL ) above liable to deportation , then subject to the following provisions of this LAW the Secretary of ORG may make a deportation order against him ... and a deportation order against a person shall invalidate any leave to enter or remain in the GPE given him before the order is made or while it is in force .

( CARDINAL ) A deportation order against a person may at any time be revoked by a further order of the Secretary of ORG ... ”

Sections CARDINAL(CARDINAL ) , DATE ) and ( k ) and CARDINAL of the Nationality , Immigration and Asylum Act DATE ( as amended ) provide for a right of appeal against such decision to make a deportation order or a refusal to revoke a deportation order on the grounds , inter alia , that the decision is incompatible with the Convention .

The Immigration Rules , prescribed by the Secretary of ORG under section CARDINAL(CARDINAL ) of the LAW DATE for the implementation of the LAW , provide as follows :

“ CARDINAL . Subject to paragraph CARDINAL , while each case will have to be considered on its merits , where a person is liable to deportation the presumption shall be that the public interest requires deportation . The Secretary of ORG will consider all relevant factors in considering whether the presumption is outweighed in any particular case , although it will only be in exceptional circumstances that the public interest in deportation will be outweighed in a case where it would not be contrary to LAW and the LAW relating to LAW to deport . The aim is an exercise of the power of deportation which is consistent and fair as between CARDINAL person and another , although CARDINAL case will rarely be identical with another in all material respects ...

A deportation order will not be made against any person if his removal in pursuance of the order would be contrary to GPE obligations under LAW relating to ORG . ”


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

The applicant was born in DATE and lives in GPE .

In DATE the applicant began investing in commercial papers of the company ORG . via the company ORG At DATE such trading was prohibited by LAW however the applicant continued with the activity until DATE .

In DATE the applicant instituted enforcement proceedings against the company ORG before ORG seeking the payment of lost investments from ORG for not informing her of the legislative amendments and continuing with the trading of commercial papers . She further complained before the domestic courts that as the company ORG . was bankrupt , she could only receive back a small proportion of her investments in bankruptcy proceedings .

On DATE ORG issued a writ of execution .

On DATE following an objection the case was referred to contentious proceedings .

On DATE ORG rendered a judgment rejecting the applicant ’s request . She appealed .

On DATE ORG upheld the appeal and remitted the case for re - examination . The second - instance court found that as the applicant had clarified that she was seeking compensation for damages only in the appeal phase , this constituted a new fact that the first - instance court would have to deliberate upon .

On DATE ORG rendered a judgment . The court found that given the contractual arrangements the company ORG could not be held responsible for the damages sustained . The applicant appealed .

On DATE ORG upheld the firstinstance judgment and rejected the appeal . The applicant lodged an appeal on points of law .

On DATE ORG rejected her appeal . She lodged a constitutional appeal .

On DATE ORG rejected her appeal .

For relevant domestic law see PERSON v. GPE ( no . CARDINAL , CARDINAL DATE ) .


Remainder inadmissible;No violation of Art. 2 (substantive aspect);Violation of Art. 2 (procedural aspect);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens

The applicant was born in DATE . He lives in GPE , in the LOC district of ORG .

The applicant is the brother of PERSON , born in DATE .

At the material time the applicant studied law in GPE , GPE . The applicant was not an eyewitness to his brother 's arrest and the following account is based on the witness statements collected by him later .

On TIME brother PERSON was arrested in the family house situated at DATE , FAC , in the settlement of GPE in the LOC district of ORG . The arrest was apparently carried out by the officers of ORG for the Fight against Organised Crime ( Северокавказское Региональное Управление по Борьбе с NORP Преступностью – “ the ORG ” ) . The applicant submitted that at the time of the arrest the officers did not introduce themselves and did not present any documents or justification for their action . Nor did they inform the family where they were taking PERSON GPE .

On DATE the applicant , alerted by his mother , arrived at PERSON . His relatives told him that there had been no news of PERSON whereabouts .

According to the documents submitted by the Government , on DATE PERSON had been charged with aiding and abetting the kidnapping of PERSON on DATE , together with CARDINAL other men and unidentified persons from GPE . The kidnapped man had been taken to GPE in CARDINAL ORG cars .

On DATE the applicant , together with his sister , met with Mr PERSON . , the deputy prosecutor of PERSON . The latter informed them that their brother had been arrested on his orders by officers of the ORG and was being detained in the town of GPE , Ingushetia . Mr PERSON . refused to tell the applicant and his sister where exactly their brother was detained and what charges had been brought against him .

On DATE the applicant found out that his brother had been detained at the temporary detention centre ( “ the ORG ” ) of the LOC district police department ( ROVD ) .

The applicant hired a lawyer , who unsuccessfully tried to reach PERSON at the detention centre .

In DATE the applicant had a meeting with Mr PERSON . The latter allegedly told him that he would release his brother in exchange for MONEY ( ORG ) and threatened to have PERSON transferred to the headquarters of the ORG in GPE , Kabardino - Balkaria , where he would be subjected to severe illtreatment , if the applicant refused to pay the money . The applicant refused to pay .

On DATE the applicant saw his brother at the ORG . PERSON told the applicant that he had been pressured to confess to the crime and that he had been threatened with transfer to the ORG headquarters in GPE .

On DATE the applicant returned to the detention centre to see his brother . He was told by the employees that the night before , at QUANTITY , PERSON had been taken to the prosecutor 's office and that after that , at TIME , he had been taken away in a vehicle in the direction of GPE .

The Government confirmed that on DATE PERSON had been detained by the law - enforcement bodies in accordance with the provisions of the criminal procedural legislation in force at the material time . He had been detained in connection with the investigation into Mr PERSON abduction that had been opened on DATE and registered under file number DATE . The decision to place PERSON under arrest had been unsuccessfully appealed against to a court . The Government submitted that the term of detention for Mr PERSON had been extended on several occasions , the last of which had been on CARDINAL DATE ; his detention had been authorised until DATE .

The applicant and his relatives had no news of PERSON after DATE . On DATE a man who introduced himself as “ NORP ” contacted CARDINAL of the applicant 's relatives . According to “ NORP ” , he had been detained with PERSON in cell no . CARDINAL in pre - trial detention centre no . CARDINAL ( SIZO-CARDINAL ) in GPE , Kabardino - Balkaria . The applicant 's brother had been detained there under a false identity and had been in poor health .

On DATE the applicant , together with his lawyer Mr GPE , went to GPE to visit his brother . The applicant 's lawyer was granted permission to see PERSON . According to the lawyer , PERSON was in poor health and had no access to medical treatment .

On DATE the head of the SIZO-CARDINAL medical unit provided the applicant with a handwritten statement . According to it , PERSON had been brought to SIZO-CARDINAL on DATE with numerous bruises , abrasions , scratches on his limbs and injuries to the chest .

On DATE the applicant and his sister obtained the GPE district prosecutor 's permission to visit their brother . PERSON told them that he had been pressured to confess to the involvement in the abduction of Mr PERSON and that he had been ordered to convince his relatives to pay DATE , CARDINAL for his release . PERSON told his relatives that he had been subjected to severe beatings in the building of the ORG situated at FAC in GPE . Finally , he insisted that the applicant and his other relatives should not pay money for his release . It does not appear that any complaints have been lodged in this respect .

On DATE , at TIME , a group of CARDINAL men wearing police uniforms arrived at SIZO-CARDINAL in a CARDINAL car . The men identified themselves as officers of ORG in GPE . CARDINAL of them entered the premises of the centre and produced the following documents authorising the transfer of PERSON from SIZO-CARDINAL to the Malgobek IVS :

a ) a letter from the acting prosecutor of PERSON , dated DATE , requesting that PERSON be handed over to CARDINAL officers of the Malgobek ROVD : NORP K. , PERSON , PERSON and PERSON ;

b ) a procedural decision in criminal case no . DATE , dated DATE , concerning the transfer of the accused PERSON for investigative measures from SIZO-CARDINAL to ORG ;

c ) an authority form , dated DATE , issued by the head of the PERSON to officers of ORG , ORG , PERSON , PERSON and PERSON , concerning the transfer of PERSON to ORG .

The documents were produced to the employees of SIZO-CARDINAL , officers PERSON . and PERSON , who handed PERSON over to the CARDINAL men . The latter took the applicant 's brother away in an unknown direction .

On DATE PERSON body was found in the Mayskiy district of NORP with gunshot wounds to the head .

On DATE CARDINAL ORG officers arrived at the applicant 's house . They told him that a body whose fingerprints were consistent with those of PERSON had been found in NORP and asked him to identify it .

On DATE the applicant and his sister identified the body as that of PERSON .

On DATE the Kabardino - Balkaria forensic assessments office issued a report ( no . CARDINAL ) . According to this , PERSON had died on an unspecified date from an open gunshot wound to the head .

It can be seen from the documents submitted by the Government that on DATE the criminal proceedings in respect of PERSON were terminated in view of his death .

On DATE the GPE town civil registration office issued a death certificate for PERSON . It stated that death had occurred on DATE .

The description of the events of TIME DATE and the subsequent developments is based on the following documents : the applicant 's accounts given on CARDINAL and DATE , DATE and CARDINAL DATE ; an account by the applicant 's sister PERSON , given on DATE ; an account by the applicant 's neighbour GPE , given on DATE ; a hand - drawn map of the premises of the applicant 's house in PERSON and copies of the documents submitted with the application .

The NORP press widely reported the kidnapping for ransom of PERSON , whose younger brother PERSON had occupied a top executive position in GPE , CARDINAL of GPE 's largest oil companies , at the relevant time . It appears from the reports that PERSON had been freed from ORG , GPE , some time in DATE as a result of a raid carried out by his relatives , including PERSON , and that several well - known NORP “ field commanders ” involved in the kidnapping were killed . Numerous publications also reported PERSON murder and linked it to the kidnapping of PERSON . , former deputy prosecutor of the LOC district , was quoted in many of these publications and wrote several articles himself .

It can be seen from the information submitted by the Government that the official investigation into the kidnapping of PERSON was closed in DATE .

The Government , in response to the ORG 's request , submitted CARDINAL pages from the investigation file , as well as additional information about its progress . They stated that disclosure of the remaining documents from the file could be harmful to the continuing investigation and sought application of Rule CARDINAL § CARDINAL of ORG to the submitted documents .

The applicant , in turn , submitted some additional information about his contacts with the investigation . The relevant information may be summarised as follows .

On DATE the prosecutor 's office of the Mayskiy district of Kabardino - Balkaria instituted an investigation under LAW ( murder ) into the death of an unknown man whose body had been found in the vicinity of GPE with gunshot wounds to the head . The case file was given number CARDINAL - CARDINAL ( in the submitted materials the number is also referred to as CARDINAL ) .

On DATE the investigation into the murder of PERSON was transferred to the Kabardino - Balkaria prosecutor 's office . The applicant 's family was informed of this by a letter from ORG .

On DATE the ORG prosecutor 's office opened a criminal investigation in respect of Mr PERSON . under LAW § CARDINAL of LAW ( abuse of power entailing serious consequences ) , no . DATE . On DATE the ORG prosecutor 's office opened an additional investigation into abuse of power by PERSON . under file number DATE .

On CARDINAL DATE the CARDINAL cases were joined under file number CARDINAL - CARDINAL at the LOC department of ORG .

On DATE ( in accordance with the decision of DATE suspending the investigation , see paragraph CARDINAL below ) the investigation in respect of Mr PERSON . , his relatives and members of the PERSON family ( CARDINAL persons altogether ) for abuse of power was closed .

On DATE criminal charges against PERSON . for murder and kidnapping were dropped for want of evidence .

On DATE the investigation into the murder was suspended in view of the failure to identify the suspects .

On DATE the department of the LOC department of ORG concluded that the investigation had been incomplete . The decisions of CARDINAL and DATE were quashed and the investigation was remitted to an investigator of that department with a number of specific directions .

In DATE the LOC department of ORG created a special investigative group charged with solving the crime .

On DATE charges of involvement in the kidnapping and murder of Mr PERSON . were dropped for want of evidence . On DATE proceedings were suspended for lack of suspects .

On DATE the NORP Deputy General Prosecutor quashed the decisions of DATE and CARDINAL DATE and appointed a new investigative group , headed by the deputy head of the ORG department of ORG .

On DATE the investigation in criminal case no . CARDINAL was suspended owing to the failure to identify the perpetrators . On DATE the LOC department of ORG informed the applicant of the decision .

On DATE the investigators carried out an examination of the site , compiled a description of the body and collected CARDINAL cartridges . DATE an additional examination of the site resulted in the finding of another cartridge and CARDINAL bullets .

On DATE a forensic expert from the NORP police department carried out an examination of the body and an autopsy . The expert found , inter alia , that the body bore CARDINAL gunshot wounds to the left side of the head , each of which could have been lethal . The shots had been fired from a close range within TIME of time . The expert noted several bruises and abrasions on the face and hands , especially around the wrists , which had been caused within DATE TIME before death ; he also noted traces indicating that the body had been dragged along immediately after the death had occurred . The expert concluded that death had occurred DATE before the examination of the body .

DATE . On DATE the ballistic expert reported that the CARDINAL cartridges and bullets had been fired from CARDINAL “ PERSON ” QUANTITY calibre hand pistol . This conclusion was confirmed by a ballistic expert report of DATE , carried out by the expert department of ORG .

On DATE the investigator of the ORG district prosecutor 's office questioned the applicant . He stated that his brother had been detained on DATE on the orders of the deputy prosecutor of the LOC district , Mr PERSON . , on suspicion of involvement in kidnapping . The applicant stated that on several occasions his brother had been transferred from CARDINAL detention place to another . He had last seen him in DATE and PERSON had complained that for a long time no investigative action had taken place . He also stated that in DATE the investigator working on the kidnapping case had told him that he had ordered his brother 's transfer to PERSON and that he would soon be taken there . The applicant named several persons who could have been responsible for his brother 's death , including former police officer PERSON . , a cousin of the former deputy PERSON district prosecutor Ibragim PERSON . , and PERSON

On DATE the investigator of the ORG prosecutor 's office again questioned the applicant , who gave detailed submissions relating the account of his brother 's arrest and detention as summarised above . The applicant told the investigator that his brother had close friends in ORG , GPE , where he regularly travelled . He also stated that he suspected PERSON . of masterminding and carrying out the operation aimed at abducting PERSON from the pretrial detention centre . He stated that PERSON . had possessed the knowledge required to produce the papers necessary to organise the prisoner 's transfer , that he had the necessary computer and other technical skills and that he had been rewarded by the relatives of PERSON In particular , the applicant stated that he was aware that PERSON . had obtained from those relatives a ORG vehicle , a computer , a mobile phone and that he had bought a flat in GPE , Kabardino - Balkaria , with money received from them . Furthermore , the applicant accused PERSON . of being present when his brother had been beaten by relatives of PERSON outside PERSON in DATE . He again accused the PERSON family of organising his brother 's murder and said that the crime could have been carried out by PERSON . , PERSON , PERSON . and PERSON .

On DATE the applicant 's sister PERSON told the investigator that she had visited her brother in prison , that he had not complained of anything but had denied that he had been involved in the kidnapping . She also named PERSON . and PERSON , brother of the kidnapped PERSON , as the possible perpetrators of the killing .

On DATE the applicant and his sister L. B. were granted the status of victims in the criminal proceedings relating to their brother 's murder . On DATE the applicant was granted the status of victim in the criminal investigation carried out “ into the unlawful actions of the former deputy prosecutor of the PERSON town , Mr M[agomed ] PERSON . ”

On DATE the applicant and PERSON wrote to the LOC prosecutor . They accused Mr PERSON . of allowing the beating of their brother on TIME to DATE by CARDINAL relatives of PERSON . and by the relatives of PERSON They again submitted that PERSON . had obtained property from the family of PERSON in return for his “ assistance ” in the solving of his kidnapping .

On DATE the applicant 's sister told the investigators that on DATE she had visited her brother in prison and that on DATE she had noticed marks from handcuffs and traces of beatings on his face . She also submitted that PERSON had told her that during TIME DATE PERSON . and his relatives , together with relatives of PERSON , had taken him outside of PERSON and beaten him in an attempt to obtain a confession regarding the kidnapping .

On DATE the applicant gave detailed submissions to an investigator from the ORG prosecutor 's office relating the arrest and detention of his brother , as described above . In addition , he submitted that on DATE his brother had told him in great detail what had happened on TIME and named other persons who had been detained with him and questioned by the relatives of PERSON also allegedly told him that he had been taken to several detention centres in LOC prior to being admitted to the pre - trial detention centre no . CARDINAL in GPE because he had suffered from the beatings and the officials had refused to accept him . The applicant named Mr PERSON . as the individual responsible for the ill - treatment of his brother and , ultimately , for organising his transfer to the murderers . He stressed that the documents authorising his brother 's removal from the prison in GPE had been produced by someone who had detailed knowledge of the requirements for such documents and that the forgery had necessitated considerable computer skills . The applicant also submitted that on DATE he had gone to the GPE no . CARDINAL in GPE and left a food parcel for his brother , which had been accepted . At that time he had not been informed that his brother was no longer detained there .

On DATE the applicant 's sister repeated her previous statements . She stated , further , that in DATE and DATE Mr PERSON . had threatened to kill her brother , the applicant .

On DATE the applicant 's mother gave statements similar to those of the applicant and her daughter .

On DATE the applicant was questioned by an investigator from the ORG prosecutor 's office again . He repeated his allegations against PERSON .

On DATE the investigator from the ORG prosecutor 's office questioned the applicant again . He supplemented his previous statements and claimed that Mr PERSON . had been acting in cooperation with the relatives of PERSON from the very early stages of the investigation . He stated that DATE a number of men , whose names he had supplied to the investigation , had been arrested and then transferred to private residences where they had been beaten and tortured with the aim of extracting confessions . According to the applicant , Mr PERSON . had participated in these actions and filmed them . The applicant also claimed that in DATE Mr PERSON . had asked his mother and sister to pay MONEY in return for his brother 's release . He also submitted additional details about the circumstances of his brother 's beatings on CARDINAL DATE .

The investigators questioned the staff at the pre - trial detention centre in GPE who had been on duty on DATE . On DATE CARDINAL officers stated that they had inspected the papers of the CARDINAL men who had presented themselves as police officers from the Malgobek ROVD and had not found them suspicious . They had organised the transfer of PERSON to the CARDINAL men in accordance with the usual procedure . CARDINAL of the men bore the distinction of a Senior Lieutenant , the other of a non - commissioned officer of ORG . The men had spoken PERSON between themselves ; CARDINAL of them had had a ORG radio receiver but had not used it during the encounter . CARDINAL of the officers gave a detailed physical description of the CARDINAL men and said that he would be prepared to identify them . The deputy head of the detention centre , Mr PERSON . , told the investigators that he had checked the names of the CARDINAL men and the papers for the prisoner 's transfer . He had not inspected their documents because , according to the relevant procedure , the identity documents should have been left at the entrance to the building .

Several of PERSON co - detainees in the pretrial detention centre in GPE stated on DATE that the deceased had not raised any complaints , that he had been visited by a lawyer and by his brother and that in DATE he had been taken away , apparently for transfer to ORG .

On DATE the acting prosecutor of the Malgobek district told the investigators that he had ordered Mr PERSON 's transfer to PERSON on DATE , but for unknown reasons that order had not been complied with . The documents which had enabled PERSON to be kidnapped had been forged and their numbers corresponded to other documents . The persons indicated in the escort documents had not worked at the PERSON ROVD . In DATE he gave a further statement , describing Mr PERSON . as an honest and motivated officer who had been falsely accused by the applicant and his relatives .

On DATE an officer from the LANGUAGE pre - trial detention centre identified a man from a photo as CARDINAL of those who had collected PERSON on DATE . Later that man , a worker in a gas plant , submitted reliable evidence that he had not been in Kabardino - Balkaria at the time , as supported by documents and witness statements collected by the investigation .

On DATE the head of the Malgobek ROVD stated that PERSON had been detained at ORG from DATE . He was shown the registration log of the ORG , according to which on DATE Mr PERSON had been taken out of the ORG at TIME by the local police officer PERSON . The head of the ROVD explained that he had been informed TIME by the officer on duty that the deputy district prosecutor had ordered that PERSON PERSON be brought to his office for questioning . At first the head of the ROVD had refused , but Mr PERSON . had called him and insisted , threatening to open a criminal investigation if he did not comply . Mr PERSON . explained that he had senior officers of ORG in his office and that it was possible that PERSON would be transferred to NORP for further investigation . The head of the ROVD then agreed , but instructed his staff to obtain Mr PERSON . 's signature to the effect that he had accepted the detainee . He could not explain why a district police officer , Mr PERSON . , had signed . When questioned about PERSON abduction and murder , the head of the police confirmed that the men identified in the escort documents had never served at the ROVD and that he had not issued the documents in question .

In addition to the above investigative documents , copies of which the ORG submitted to the ORG , it can be seen from their memorandum of DATE that the investigators also questioned CARDINAL acting and former officers of the PERSON prosecutor 's office , all of whom denied that they had been aware of any connection between the PERSON family and PERSON . CARDINAL of these officers , quoted by the Government , stated that PERSON had been a member of the bandit group based in ORG , along with CARDINAL other men who had been charged with kidnappings .

The Government also submitted a copy of the record of interview of PERSON . , who stated that he had permanently lived in GPE and had been there throughout DATE . PERSON . denied having known PERSON ; as to PERSON . , the witness stated that he had gone to the same school but had not kept in contact in DATE .

DATE . On DATE the investigators in criminal case no . CARDINAL carried out an expert assessment of CARDINAL documents concerning the transfer of PERSON from SIZO-CARDINAL on DATE . The criminology expert of ORG concluded that the imprint of the LOC prosecutor 's office 's seal had been reproduced with the aid of a factory - made stamp , but not the CARDINAL used by the district prosecutor 's office . The imprint of the ORG had been reproduced with the aid of a colour printer . A graphology expert report reported difficulties in analysing short notes with dates and signatures on the documents , but concluded that some of the notes could have been made by Mr PERSON . , his brother and by the acting PERSON prosecutor .

On DATE the Central NORP forensic laboratory issued an additional expert assessment . It concluded that the signatures on all the documents concerning the transfer of PERSON from SIZO-CARDINAL to ORG had been forged , and that the date and signature on one of the documents had been written by PERSON PERSON .

NORP In DATE the investigators questioned a number of experts from LOC forensic laboratory seeking an explanation for the differences in the reports . The experts referred to the incomplete conclusions of some of the studies .

On DATE the NORP ORG of ORG concluded that it was impossible to establish with certainty whether the handwritten words on the document in question had been written by PERSON . or not .

According to the documents contained in the criminal investigation file , at some point in DATE documents constituting the basis for examination and a part of the original expert report had been stolen or changed . A separate criminal investigation was carried out , during which several officers from the prosecutor 's office and ORG were questioned . The investigation collected the copies of the original documents from ORG . PERSON . was questioned as a suspect . On CARDINAL DATE the investigation against him was closed for want of incriminating evidence .

On DATE the investigator from the Kabardino - Balkaria prosecutor 's office questioned PERSON . The latter confirmed that he had headed the group at the PERSON prosecutor 's office which had investigated the kidnapping of PERSON had authorised PERSON detention in relation to that crime . According to him , Mr GPE had been suspected of involvement in other crimes committed in the region , which was the reason for his transfer to GPE and GPE . Mr PERSON . denied that he had been involved in the kidnapping and murder of PERSON . He stated that he had never seen the documents authorising the latter 's removal from the pre - trial detention centre in GPE in DATE . Mr PERSON . stated that he had quit his job at the prosecutor 's office in DATE and now lived in GPE . He had learnt of PERSON death from his father in DATE . He denied that he had previously allowed the relatives of PERSON access to PERSON .

NORP In DATE the investigators carried out a series of identification parades , during which the officers of the GPE pretrial detention centre failed to identify Mr PERSON . , his brothers and cousins as the persons who had taken away PERSON .

On DATE the Kabardino - Balkaria prosecutor 's office brought charges against Mr PERSON . He was charged in absentia with complicity in PERSON kidnapping and murder and forgery of official documents . On DATE Mr Magomed Ye . was ordered to be arrested and declared a fugitive from justice , and his name was put on the wanted list .

DATE . On DATE Mr PERSON . was detained and questioned as a suspect . He again denied any connection with the murder and requested a number of additional investigative measures .

The investigators obtained the documents according to which in DATE Mr PERSON . had complained to his superior about the false accusations brought against him by the relatives of PERSON and requested the district prosecutor of PERSON to open a criminal investigation for libel . At the same time , pending completion of the investigation , he requested to be relieved from the duty of investigating the case . On DATE PERSON . resigned from the prosecutor 's office .

On DATE the ORG released PERSON PERSON . from detention , having found that there were no reasons to suspect him of absconding from justice . The court noted that PERSON . had always appeared at the prosecutor 's office when summoned to do so , resided at his declared place of residence in GPE and had other family reasons not to abscond .

In DATE a waitress in a roadside café in ORG told the investigators that DATE she had seen Mr PERSON . During a confrontation carried out on DATE she retracted her statements and explained that she had last seen him in DATE , and that in DATE she had seen another person whom she had confused with PERSON . She gave detailed submissions in this respect . CARDINAL other men and PERSON . gave concordant statements .

NORP In DATE the investigators questioned witnesses and obtained documents to the effect that in DATE Mr PERSON . had been working DATE for a private company in GPE .

NORP In DATE PERSON . gave an additional statement as a suspect . He again denied any involvement in the imputed crime , denied having ever received or used a ORG vehicle and denied receiving any money or property from the PERSON family .

In their memorandum of DATE the ORG stated , without providing copies of such documents or the dates when they were obtained , that the investigators also questioned CARDINAL members of the PERSON family who denied having any relations with PERSON . or giving him money or property . These and other witnesses suggested that the libel campaign against PERSON . had been inspired by members of a fundamentalist bandit group based in ORG , GPE , who had committed numerous kidnappings for ransom . The Kabardino - Balkaria Land Registry reported that PERSON . had owned no real estate in that region .

In their memorandum of DATE the ORG also stated , without providing copies of such documents or the dates when they were obtained , that the investigators had also questioned the brother and cousin of PERSON . : police officers named by the applicant as possible perpetrators of the crime . They denied their involvement in the events . The police department of PERSON confirmed that PERSON . 's cousin had been working daily DATE . Police officers PERSON . and PERSON . were also questioned at some point and denied having any connection with the murder . The ORG also referred to records of interviews of CARDINAL members of the PERSON family who stated that they had no relations with PERSON . outside the official framework of the investigation and that they had not given him money or property .

As can be seen from the statements collected in DATE from the applicant and his father , some time in DATE police officer PERSON . had been charged with false imprisonment and abuse of power in relation to the taking of PERSON from ORG in TIME on DATE . He had been found guilty and given a suspended sentence ; the applicant did not appeal against the sentence . It also appears from these statements that the applicant and PERSON . had reached an informal agreement prior to the trial and that the applicant had “ accepted ” PERSON . 's “ apology ” and declaration that he had not been involved in his brother 's murder . No other documents or information relating to this process have been submitted by the parties .

It can be seen from the submitted documents that in DATE PERSON , the brother of the kidnapped PERSON , complained to the prosecutor 's office that he had been libelled by the applicant . It appears that in DATE the indictment was sent to the court , which at some point acquitted the applicant .

The investigators into the kidnapping of PERSON suspected and arrested several other men in addition to PERSON . Later , CARDINAL of them were charged with other kidnappings ; CARDINAL of them was found guilty and sentenced in DATE ; and CARDINAL others were charged in absentia and their names put on the wanted list . CARDINAL of them told the investigators that the applicant had threatened to denounce him to the law - enforcement bodies in order to give incriminating evidence against PERSON . and PERSON

On DATE the criminal investigation was closed regarding the part concerning the actions of the officers of the PERSON pretrial detention centre , on grounds of absence of corpus delicti .

On DATE the investigator from the department of ORG in the LOC closed the criminal proceedings against PERSON . for want of evidence . He noted that it had turned out to be impossible to identify the persons who had abducted and killed PERSON ; that the conclusions of the graphology expert reports were contradictory and could not be construed as a single body of incriminating evidence against Mr PERSON . ; that by the time of the abduction he had no longer been employed at the prosecutor 's office for DATE and there was no evidence that he had continued to be aware of or to influence the proceedings ; that DATE he had remained in GPE , as confirmed by witness statements and documents ; that the allegations that he had obtained money or property from the PERSON family had proved to be unfounded ; and , finally , that there were reasons to suspect that the applicant had personal motives , since he was being prosecuted for libel against the PERSON family and had threatened a witness in order to obtain evidence incriminating PERSON .

On DATE ORG informed the applicant that on DATE the investigation in criminal case no . CARDINAL had been transferred to the department of ORG office in LOC . According to the letter , PERSON . had absconded from the authorities and his name had been put on the wanted list .

On DATE the applicant and his relatives complained of the ineffectiveness of the investigation in criminal case no . CARDINAL to ORG . In his letter the applicant also alleged that some of the evidence in the criminal case - file materials had been forged by the investigators .

On DATE ORG replied to the applicant . The letter stated that in connection with the forgery of the evidence in criminal case no . CARDINAL - CARDINAL , they had opened criminal case no . CARDINAL/CARDINAL - CARDINAL on DATE .

On DATE ( the letter has CARDINAL dates ) the department of ORG in the LOC informed the applicant that on DATE the authorities had terminated the criminal proceedings against Mr PERSON . owing to the failure to prove his involvement in the abduction of PERSON . On DATE the investigation had been suspended owing to the failure to identify the perpetrators .

On DATE the applicant and his relatives wrote to the Prosecutor General complaining of the ineffectiveness of the criminal investigation into the murder .

On DATE the applicant 's family received a letter from ORG . The letter stated that on an unspecified date the investigation of criminal case no . CARDINAL - CARDINAL had been resumed .

On DATE the applicant complained about his brother 's murder to the President of ORG of GPE . In his letter he complained of the ineffectiveness of the investigation into the crime and the decisions suspending it . The applicant requested the authorities to resume the investigation and carry out an additional examination of the evidence in criminal case no . CARDINAL - CARDINAL . In particular , he complained that the investigation had failed to compile a composite sketch of the CARDINAL men who had collected his brother from the pre - trial detention centre and to compare the handwriting of the kidnappers with those of all the officers of ORG in ORG and ORG , as well as of the regional department of the ORG in LOC .

On DATE ORG , upon the applicant 's request , forwarded him a copy of the decision of DATE suspending the investigation in criminal case no . CARDINAL - CARDINAL .

It does not appear that the applicant or the investigators took any steps DATE and DATE .

On DATE the applicant 's representatives wrote to ORG . They requested information concerning the progress reached in the investigation in criminal case no . CARDINAL - CARDINAL and enquired whether the investigators had carried out any expert or forensic examinations in the case . It does not appear that the applicant 's representatives received any response to this request .

On DATE the Deputy Prosecutor General quashed the decision suspending the proceedings . On DATE Mr PERSON . was placed under an obligation not to leave his place of residence in GPE .

In DATE the investigator questioned the applicant , his sister and his mother in GPE . They denied that PERSON had any connections to illegal armed groups in GPE or in PERSON , pointed out that he had never been charged with any such crime before and affirmed that there was no evidence to support that allegation . They again insisted that PERSON . had been connected with the abduction and murder of their brother , in view of his involvement in the arrest and beatings .

On DATE the father of PERSON and PERSON gave a statement in which he denied that his family had ever given any money or valuables to PERSON . or his family .

NORP In his submissions the applicant also described attacks by unspecified persons on himself , his relative and his house .

Accordingly , the applicant submitted that on DATE he and PERSON had been wounded during an attempt to arrest them by officers from the RUBOP of Kabardino - Balkaria . On DATE the ORG prosecutor 's office opened a criminal investigation into violent acts against public officers .

NORP However , in DATE the investigation was adjourned in view of the failure to identify the suspect . In DATE criminal charges against the applicant were dropped ; PERSON was granted victim status .

The applicant and PERSON sought damages for the injuries and moral suffering inflicted by the ORG and ORG . They also contested the lawfulness of the order to deliver the applicant to an investigator which had served as the basis for the attempt to arrest him .

NORP In DATE the ORG refused to grant their claim , referring to the absence of any definitive outcome of the criminal investigation and the applicant 's failure to appeal against the decision to adjourn the proceedings . An appeal by the applicant was dismissed without consideration for failure to observe the requisite time - limits ; he tried to have the time - limits restored but it appears that his complaint to ORG remained unexamined .

No complaints were brought following those developments , but the applicant relied on the above proceedings to explain his inaction DATE vis - à - vis the domestic criminal investigation into his brother 's murder .

The applicant submitted , referring to numerous publications concerning the subject , that following the events described above Mr PERSON . had become a well - known political figure in PERSON . As a successful businessman and journalist , he had founded an Internet site ( www . Ingushetiya.ru ) in DATE which had quickly become an important media forum for the opposition forces . In DATE Mr PERSON . had become one of the organisers of the “ I did not vote ” campaign aimed at denouncing electoral fraud in ORG during the NORP presidential elections . In DATE a district court in GPE classified the site as “ extremist ” and demanded its closure . The order could not be implemented because the site was hosted in GPE .

On DATE Mr PERSON . was detained on arrival at the airport in GPE , ORG , and shot dead in the police car . In DATE a court in ORG found CARDINAL officer of ORG guilty of causing death by negligence and gave him a suspended sentence . In DATE this officer was killed by unknown gunmen in ORG . On DATE another former coowner of the ORG site , Mr PERSON , was killed by unknown gunmen in NORP .


The applicant , Mr PERSON , is a GPE national , who was born in DATE . He is represented before the ORG by Mr L.C.M. PERSON , a lawyer based in GPE who is not licensed to practise but who provides legal assistance and representation in cases where representation by a licensed advocate is not prescribed by law .

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

On DATE , at QUANTITY , police officers in GPE stopped a motor car and tested the driver ’s breath for alcohol . There being an indication that the driver ’s breath might contain more alcohol than was legally permitted , the driver was taken to a police station and subjected to a more precise test . This second test showed that the driver ’s breath did in fact contain a higher proportion of alcohol than permitted .

The driver of the car gave the applicant ’s name . It appears from a police report dated after the event , which the applicant claims is inaccurate , that the driver of the car was found in possession of a driving licence or other identity document in the applicant ’s name containing a photographic likeness of the bearer .

The driver of the car confessed that he had drunk CARDINAL glasses of beer . He was sent home with a summons to appear on DATE before the single - judge chamber ( politierechter ) of ORG ( arrondissementsrechtbank ) of GPE on a drink - driving charge .

No one appeared at the hearing on DATE . The applicant was convicted in absentia of drink - driving and sentenced to pay a fine of MONEY ( NLG ) . The applicant claims , essentially , that he only became aware of this when he was ordered to pay the fine . He lodged an appeal against his conviction and sentence to ORG ( gerechtshof ) of GPE .

ORG decided to consider the drink - driving charge and the charge of driving an uninsured car – of which the applicant had been convicted in separate proceedings – jointly . It held hearings on DATE , DATE and DATE and DATE , at which , for various reasons not relevant to the case before the ORG , the applicant did not appear . At the hearing on DATE , the applicant ’s counsel , who was present , pleaded on the applicant ’s behalf that another person had in fact been arrested on DATE and had fraudulently pretended to be the applicant . He invited the police officers who had been called as witnesses to identify the applicant from a series of photographs . ORG , however , decided that the applicant ’s presence in person was required to establish whether or not he was in fact the person arrested on DATE .

A further hearing was set for DATE . By letter of DATE , the applicant informed ORG that he did not intend to appear . He stated that he did not trust the police officers to make a correct identification except in a confrontation attended by sufficient safeguards , for example a line - up of himself and other persons of similar appearance .

The hearing proceeded on DATE in the applicant ’s absence .

ORG gave judgment on DATE . It declared the applicant ’s appeal against the first - instance conviction of drink - driving inadmissible as out of time . Its reasoning included the following :

“ In the opinion of ORG the original summons for the [ single - judge chamber of ORG ] hearing of DATE was handed to the suspect in person on DATE . It follows that the suspect should have appealed within DATE of the judgment delivered on DATE . However , the suspect only appealed on DATE , so the suspect ’s appeal must be declared inadmissible .

ORG is of the opinion that it was the suspect to whom the original summons was handed . ORG considers it relevant in this respect that , as appears from the official report drawn up on DATE by Police Sergeant S. ... , the suspect identified himself to the reporting police officers by means of an identity document bearing a photographic likeness resembling the suspect . ORG has further found that the [ record of ] the interrogation of the suspect , to which he was subjected on DATE , is signed with a signature which in ORG opinion is sufficiently similar to the CARDINAL which the suspect has placed on the letter of authority with which he has authorised the lodging of an appeal ... and on the receipt belonging to the official record of the delivery of the notification of the pronouncement of the judgment of the single - judge chamber of ORG ... ”

The applicant ’s counsel , a licensed advocate , lodged an appeal on points of law ( cassatie ) to ORG ( PERSON ) on the applicant ’s behalf . Mr PERSON took over the applicant ’s representation from the advocate , it being possible at the time for any person duly authorised in writing to act before ORG in criminal cases , and gave his own address as the applicant ’s elected domicile for correspondence .

The Advocate General ( advocaat - generaal ) to the ORG court submitted an advisory opinion to ORG on DATE . A copy was transmitted to the last known address of the applicant . However , as appears from the public records , the applicant had already moved to another country on DATE .

ORG gave judgment on DATE dismissing the applicant ’s appeal .

On DATE the Registrar of ORG wrote to PERSON PERSON in the following terms :

“ In the above case , in which you act as the representative of the suspect pursuant to a specific letter of authority , the Advocate General PERSON submitted an advisory opinion ( enclosed ) on DATE . This advisory opinion was sent to the suspect by letter of CARDINAL DATE , the latter being offered the possibility to respond . This possibility was not made use of . Subsequently , ORG dismissed the appeal by its judgment of DATE .

You have rightly pointed out to the administrative staff of ORG that you were not sent a copy of the advisory opinion , as was required by ( former ) Article CARDINAL § CARDINAL of LAW . This lapse is regretted and I offer you my apologies for it . Now that ORG has given its irrevocable judgment ( onherroepelijk uitspraak heeft gedaan ) , it would be entirely pointless to give you the opportunity to react at this stage . That will therefore not be done .

Unfortunately , there is now nothing more to be done than to acknowledge that a mistake was made towards you which should not have been allowed to occur . ... ”


Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses (Convention proceedings) - claim dismissed

On DATE GPE Bezirkshauptmannschaft ) convicted the applicant twice under LAW ( Kraftfahrgesetz ) for failure to comply with the instructions of the ORG to inform them who had used his car on specific DATE ( Lenkerauskunft ) , and sentenced him , on each offence , to a fine of CARDINAL ORG or CARDINAL days’ imprisonment in default . The ORG noted that the applicant had given information but found it to be incorrect .

On DATE the applicant filed an appeal against this decision with ORG ( Unabhängiger Verwaltungssenat ) . He complained that ORG had incorrectly applied the law and failed to sufficiently assess the evidence before it or clarify why the information he had given was untrue . The applicant did not request a hearing , nor did he expressly waive this right . No oral hearing was held .

On DATE ORG dismissed the appeal on the merits but reduced the sentence .

On DATE the applicant filed a complaint with ORG ) . He complained under LAW that ORG had failed to hold a hearing . Such a hearing would have been necessary because his appeal was not limited to points of law . He had also criticised ORG assessment of evidence . Therefore an oral hearing would have been necessary . In such a hearing ORG could have properly assessed this evidence , which had already been obtained at first instance , as well as fresh evidence .

On DATE the ORG declined to deal with the applicant ’s complaint on the ground that it did not have sufficient prospects of success . Upon a request filed by the applicant on DATE , ORG transferred the case to ORG ( Verwaltungsgerichtshof ) .

On DATE ORG , relying on Section DATE of LAW ( PERSON ) , declined to deal with the applicant ’s case , finding that it did not raise important legal issues . On DATE this decision was served on the applicant ’s lawyer .

The relevant provisions of LAW ( Bundes - Verfassungs Gesetz ) concerning the establishment of ORG which entered into force on DATE read as follows :

“ It is the task of ORG in the regions and ORG in GPE to ensure the lawfulness of the entire public administration . ”

“ ( CARDINAL ) ORG are composed of a president , a deputy president and a sufficient number of further members . Its members are appointed by ORG for a period of DATE . ...

( CARDINAL ) In fulfilling their tasks under ORG and PERSON the members of ORG are not bound by any instructions . The court business shall be distributed among the members in advance for the period provided for in the regional legislation . A matter which according to such a schedule is the business of CARDINAL member may only be withdrawn from him or her in case of impediment by a decision of the president .

( CARDINAL ) Before the end of their term of office members of ORG may only be removed from office in the cases specified by the law and upon a decision of ORG itself .

GPE on ORG , ORG no . CARDINAL/CARDINAL ( ORG über den PERSON , LGBl . CARDINAL/CARDINAL ) , repeats to a large extent the provisions of LAW , although the term of office of the members of ORG is indefinite ( LAW ) .

Section DATE of LAW ( PERSON ) reads as follows :

" ORG may decline to deal with a complaint against a decision of an ORG in an administrative criminal case if no prison sentence or a fine exceeding AS CARDINAL has been imposed and ORG decision would not involve the determination of a legal question of fundamental importance . A legal question of fundamental importance is involved in particular if the challenged decision of ORG is at variance with ORG case - law , if no such case - law exists or if the legal questions at issue have not been answered uniformly in ORG case - law . "

Section CARDINALe of the Code of Administrative Offences ( GPE ) , as far as relevant , reads as follows :

“ CARDINAL . In case the appeal is expressly limited to points of law or concerns exclusively the severity of the sentence imposed , a hearing must only be scheduled if this is expressly requested in the appeal .

A hearing need not be held if the parties expressly waive their right to a hearing . The parties may express such a waiver up to the beginning of the hearing . ... ”