Preliminary objection allowed (non-exhaustion of domestic remedies)

The applicant , PERSON , is a NORP citizen , born in DATE and currently living in GPE . She is the widow of Mr PERSON , who she alleges was unlawfully killed by a soldier on CARDINAL DATE at a checkpoint outside a gendarmerie headquarters on the road between GPE and Sason in south - east GPE . Her deceased husband had been a building contractor and a partner in ORG , which had its office in GPE . He was DATE at the time of his death .

The circumstances in which the applicant ’s husband was killed on DATE are disputed .

On DATE , PERSON , his brother , PERSON ( a building contractor ) , and his cousins , PERSON and PERSON ( both building workers ) , were travelling in a private car to check the construction of CARDINAL bridges in LOC of the province of Batman , south - east GPE . PERSON company had been awarded a contract by the ORG authorities for the construction of the bridges . PERSON Rıza Aytekin was at the wheel of the car .

At TIME just as the vehicle had passed the ORG gendarmerie headquarters near GPE , a soldier on duty outside shouted to the vehicle to pull over and stop . PERSON , who was driving

relatively slowly due to the presence of speed ramps , pulled over or began to pull over to the right - hand side of the road in response to the soldier ’s order .

Just as he stopped , the soldier , Private Tuncay Deniz , shot in the direction of the vehicle . The bullet went through the rear window of the vehicle , entered the back of PERSON head , came out through his forehead and exited the car through the windscreen . PERSON was killed instantly .

When PERSON , PERSON and PERSON got out of the car , Private GPE raised his rifle as if to fire at them . However , when other soldiers came out of the gendarmerie headquarters and surrounded the car , Private Tuncay Deniz changed his mind and approached the car .

All the persons in the car were unarmed and there was nothing in the vehicle except their personal belongings , the tools of their trade , a map and a calculator .

Following the conduct of a post - mortem examination of the body and the issuance of a burial certificate PERSON , PERSON and PERSON had to procure a car from local villagers in order to transport the deceased ’s body back to PERSON . The applicant was living in GPE at the time of her husband ’s death .

The applicant maintains that the above description of the circumstances surrounding the killing was confirmed by , inter alia , PERSON , PERSON and PERSON in the statements which they each gave to the public prosecutor shortly after the incident ( see paragraph DATE below ) . She also relies on the evidence of PERSON and his son GPE who were waiting to be picked up by her husband at a café QUANTITY down the road from the gendarmerie headquarters and who both gave statements to ORG ( see paragraph CARDINAL below ) .

The Government , in their memorial , rely on the facts as outlined in the judgment of ORG which convicted ORG of manslaughter on DATE ( see paragraphs CARDINAL–CARDINAL below ) .

Private GPE , a conscript who was DATE at the time , was performing his military service at the ORG gendarmerie headquarters in GPE in GPE , south - east GPE . He was on guard duty on DATE . Part of his functions was to check passing vehicles .

At TIME a car driven by PERSON and containing CARDINAL passengers approached the checkpoint . Private Tuncay Deniz warned the driver of the car to stop , first by blowing his whistle and then by firing a shot in the air . Despite these warnings and despite the fact that a “ Stop – Gendarmerie ” warning sign had been placed QUANTITY before the checkpoint , the car failed to stop . When it had travelled QUANTITY past the checkpoint , Private Tuncay Deniz fired a shot towards the car . This shot , fired from behind , caused the driver ’s death . The incident was immediately reported to the prosecuting authorities by the commanding officer of GPE gendarmerie headquarters .

It is not disputed that shortly following the shooting the public prosecutor of PERSON , PERSON , arrived at the scene with a doctor , PERSON , to conduct a post - mortem examination . The autopsy report confirmed the entry and exit points of the bullet and that the brain of GPE had been shattered by the impact of the bullet . An incident report was prepared , a sketch made of the scene and a burial certificate issued .

On DATE Major PERSON , the GPE district commander , took statements from Private Tuncay Deniz as well as from PERSON who was also on duty on DATE .

NORP The PERSON public prosecutor , who arrived at the scene shortly after the fatal shooting , immediately commenced an investigation into the incident ( file no . CARDINAL/CARDINAL ) . At TIME on DATE he took written statements from PERSON , PERSON and PERSON .

NORP The statements provided by PERSON , PERSON and PERSON reflect the applicant ’s account of the incident . When PERSON was asked by the public prosecutor whether he wished to file a complaint against anyone , he replied that he wished to file a complaint against those who shot his brother .

On DATE the public prosecutor took statements from Private Tuncay Deniz and PERSON , both of whom had been interviewed by Major PERSON on DATE of the incident , as well as from PERSON who drew up the sketch of the incident . In his statement Private GPE affirmed that it was never his intention to kill the driver , only to stop the car by firing one shot at the tyres . According to Private Tuncay Deniz , the car had been driven towards him at speed forcing him to jump aside . The driver continued beyond the checkpoint failing to heed his warning whistle and shot .

On DATE the public prosecutor decided that he lacked jurisdiction in the matter and that the case , since it involved a soldier , should be dealt with under LAW ( Official Conduct ) Act . The file was subsequently transferred to the GPE district governor .

On DATE the GPE district governor referred the file to ORG which in turn appointed PERSON Osman Gökçen to investigate the incident . Statements were taken on DATE from Private Tuncay Deniz and from PERSON , PERSON and Expert PERSON , the latter also having been on duty on DATE of the incident . Major PERSON also had regard to the statements which PERSON , PERSON and PERSON gave to the public prosecutor .

Major PERSON drafted his summary report on CARDINAL DATE . In his report , he concluded that :

“ On DATE at TIME when the incident took place , the accused soldier , PERSON , was posted at the road checkpoint by his commander . This area has a critical importance in terms of security . The terrorist organisation , ORG , is known to be transferring weapons and other goods along this route . It is also a route for other sorts of smuggling . The soldier on duty saw the car travelling from Batman in the direction of PERSON and waved to it to stop . Instead , the car increased its speed , came towards the soldier and passed him . The soldier tried to stop the car by whistling and firing a warning shot . The car failed to stop and as a last resort the soldier fired once at the tyres of the car . Due to reasons beyond the control of GPE and to the fact that the car was moving , the bullet entered through the rear window and caused the death of the driver , PERSON . ”

On receipt of the report , the PERSON public prosecutor , on DATE , contacted the military prosecutor in respect of competence to proceed further with the case . In the opinion of the public prosecutor , the investigation should be completed by the military prosecutor in accordance with section CARDINAL ) of PERSON no . CARDINAL which regulates investigations against members of the armed forces . The military prosecutor in turn sent Private Tuncay Deniz for trial before ORG on a charge of intentional homicide committed in excess of his duties contrary to Article CARDINAL taken together with Article CARDINAL of LAW .

On DATE and CARDINAL DATE the applicant gave general powers of attorney to Mr Sedat Aslantaş and Mr PERSON , both of FAC . On DATE Mr Aslantaş wrote to the PERSON public prosecutor submitting that the applicant ’s husband ’s death was the result of an act of intentional homicide and that the necessary steps should be taken to prosecute the soldier for murder and the gendarmerie commander for negligence .

On DATE Private Tuncay Deniz was put on trial before the Seventh Military Tribunal in ORG , charged with intentional homicide committed in excess of his duties . Statements obtained pursuant to letters rogatory were submitted to ORG by PERSON and PERSON and Expert Sergeant Kutlu Alkurt . PERSON testified before ORG on DATE , repeating the version of the incident which he had given to the public prosecutor on DATE of the incident ( see paragraph CARDINAL above ) .

On DATE the tribunal decided that as the crime was not CARDINAL against another soldier or committed in a military location it had no jurisdiction to hear the case . The tribunal transferred the file accordingly to ORG so that the case could be tried under Articles CARDINAL and CARDINAL of LAW .

The applicant applied to the tribunal on CARDINAL DATE to join the proceedings as a civil party in accordance with the provisions of LAW . She averred that her spouse had been intentionally murdered by Private Tuncay Deniz and for that reason wished to participate in the hearings as an intervening party . On the same date she also requested the tribunal to take statements from PERSON and PERSON , who had been waiting to be picked up by her deceased husband on DATE of the incident ( see paragraph CARDINAL above ) . Since the tribunal had declared DATE that it lacked competence to hear the case against Private Tuncay Deniz it was unable to take a decision on the applicant ’s requests . Notwithstanding , it added the applicant ’s requests to the file .

The case file was transferred to ORG . In transferring the file , ORG declared :

“ After the examination of the files , it is clear that the accused , who was the soldier on duty for road inspection and control at ORG gendarmerie headquarters , first warned the private car to stop ( licence plate number : CARDINAL Z CARDINAL ) then whistled to warn it ; immediately after that he fired a warning shot in the air , then fired once again towards the car without aiming at any specific target . The single bullet fired from his rifle hit the civilian , PERSON , in the head and caused his death . ”

When it was seized of the case ( file no . CARDINAL ) , the ORG organised on CARDINAL DATE the future procedure for dealing with the case and to that end drew up a list of witnesses and documents . The court ordered that the evidence of the witnesses be taken by other domestic courts by letters rogatory and their statements forwarded to it for inclusion in the case file . In accordance with the procedure so fixed , ORG obtained the statements of a number of witnesses , including PERSON , PERSON and PERSON . A statement was also obtained from Private GPE in which he claimed that he was not guilty of the charges against him as well as from Sergeants Murat Hekim and PERSON and Expert Sergeant Kutlu Alkurt .

On DATE the court accepted the submissions of the prosecuting counsel that the applicant be acknowledged as an intervening party in the proceedings on account of the possibility that she may have suffered as a result of the offence committed by Private Tuncay Deniz . The court had regard in this respect to the petition which the applicant submitted to ORG on DATE ( see paragraph CARDINAL above ) . The court acknowledged at the same time that she would be represented in her capacity of intervening party by the lawyers to whom she had given a power of attorney ( see paragraph CARDINAL above ) . A statement was taken from the applicant by letters rogatory on DATE and forwarded to ORG . In her statement she informed the court that she had learned of the circumstances of her husband ’s death from PERSON and relied on his account of the circumstances in which her husband was killed . She also declared that she filed a complaint against the defendant .

On DATE ORG submitted to ORG at the latter ’s request a ballistics report on the CARDINAL spent bullets found at the scene of the incident . According to the report , the bullets had been fired from Private Tuncay Deniz ’s gun .

On DATE Private Tuncay Deniz was convicted under Article CARDINAL § CARDINAL of LAW ( see paragraph CARDINAL below ) which governs causing death unintentionally , in conjunction with Article CARDINAL thereof ( using force in excess of that required by lawful self - defence ) and was sentenced to DATE and CARDINAL months’ imprisonment . The court also ordered the defendant to pay the legal fees of the applicant as from the moment she became an intervening party in the proceedings . In its judgment ORG considered that :

“ According to the defendant ’s evidence and the preliminary statement of his friend PERSON , who was at the gendarmerie headquarters , the defendant signalled the approaching vehicle to stop ; when the vehicle failed to stop he gave a warning with his whistle and fired one round in the air . The vehicle still not having stopped he fired towards it without taking any particular aim when it was QUANTITY away . By doing so he caused the death of GPE . According to the passenger witnesses’ account they were not warned to stop in any way . However , if the driver was not warned to stop , it would have been illogical for him to have moved to the right . Under these circumstances the driver was warned CARDINAL way or another , even after he had passed . Nevertheless witness PERSON declared in his preliminary statement , and there is no reason for this statement not to be taken seriously , that he heard the sound of a whistle . The witness PERSON account that the defendant fired from a distance of QUANTITY without seeing anything at all was not confirmed by his father who was sitting in the same location .

The primary issue to be resolved is whether the defendant acted with the intention to kill in this incident ...

As it may be concluded from the content of the file , the defendant did not know the victim and the other passengers . The incident sketch in the file indicates that the firing distance was QUANTITY . In addition to the driver , there were QUANTITY persons seated in the back and CARDINAL other passenger in the front . Under these circumstances and at that distance it would not have been possible to identify the driver through the persons sitting in the back seat and take aim . Despite there being CARDINAL bullets in his rifle , the defendant fired CARDINAL single shot and despite that he still did not know whether this caused death . If his intention was to kill , he could have continued firing . Nevertheless there is no reason to ground a finding of murder . Having considered all these elements it is concluded that the defendant did not act with the intention to kill . Therefore , in due fairness , it is more appropriate to conclude that the intention was a wrongful assault .

Although the defendant was on duty he should have assumed that the individuals in the vehicle did not hear him and he could have fired CARDINAL shot in the air ; and having considered the fact that a serious situation such as an escape or apprehending someone in the act was not present and since an assumption must be made that he knew the specification of his weapon , he should have been more careful and should have fired his weapon in a way which would not have harmed the persons in the vehicle . As a result of failing to comply with these considerations he exceeded the limits of his duty . However , the reduction of his sentence based on this factor is to be minimal as a result of the reasons , importance and seriousness of the offence , and the gravity of the harm caused by the offence ... ”

The applicant , through a domestic lawyer , Mr Oktay Bagatır , appealed to ORG on DATE against the judgment of ORG on the grounds that the accused should have been convicted of intentional homicide .

According to the information provided by the Government at the hearing , the victim ’s brother , Mr PERSON , requested that as CARDINAL of the intervening parties in the domestic proceedings he be permitted to exercise separately his right to appeal against the judgment . ORG acceded to this request on CARDINAL DATE . Furthermore , the Batman public prosecutor appealed to ORG on DATE against the judgment of ORG on the ground that Private Tuncay Deniz should have been convicted of the more serious offence of wilful homicide as defined under LAW .

The appeal is currently pending before ORG .

Although the ORG submitted to ORG on DATE details of the investigation into the death of the applicant ’s husband as well as of the trial of the accused soldier before ORG and the state of the proceedings against him before ORG , the Commission did not in fact have the benefit of the full file when assessing the evidence surrounding the killing since the Government ’s submissions had been misplaced as a result of a clerical error .

As a consequence of this error , the Commission based its assessment of the case on the following official documents only : the incident report prepared by Major PERSON ; the sketch map of the incident drawn by hand by PERSON ; the post - mortem and autopsy report prepared by the medical examiner ; statements taken by PERSON PERSON Eryılmaz on DATE from Private GPE and PERSON ; statements taken by ORG on DATE from Private Tuncay Deniz , PERSON , Expert Sergeant GPE and PERSON ( see paragraphs CARDINAL , DATE and DATE above ) .

The ORG also had regard to the following : CARDINAL statements of PERSON , CARDINAL of which had been taken by ORG ; a statement of the applicant taken by ORG on DATE ; an expert statement dated DATE of Dr PERSON , a consultant pathologist for ORG .

The ORG accepted firstly that there were speed ramps in place outside the gendarmerie headquarters which would have made it difficult and unlikely that the applicant ’s husband could have driven the car at speed through the checkpoint .

Secondly , no explanation was offered as to why the deceased would have driven recklessly through the checkpoint causing the soldier to jump to safety . For these reasons , the ORG found the soldier ’s account of being at risk to be unconvincing .

Thirdly , while the Commission was unable to determine on the evidence whether the car was stationary or was still moving when the gendarme opened fire , it found it established that Private Tuncay Deniz signalled the car to stop . However , in its view there was insufficient material to conclude that he had fired a warning shot in the air as alleged since no ballistics report had been submitted .

Fourthly , the Commission considered that there must be a very strong inference either that Private Tuncay Deniz aimed into the back of the car at the driver or fired so quickly as to render his aim inaccurate .

In view of the above findings the ORG concluded that the car driven by the applicant ’s husband was driven slowly up to and through the checkpoint , that the soldier signalled it to stop and that very shortly afterwards he opened fire intending to stop the car , either aiming at the driver or failing to take proper aim .

In the absence of detailed submissions on domestic law and practice , the ORG , like the ORG , has had regard to the relevant provisions and submissions made in the context of previous cases involving the respondent Government and the applicant ’s representatives .

Article CARDINAL of LAW provides as follows :

“ All acts or decisions of the authorities are subject to judicial review ...

The authorities shall be liable to make reparation for all damage caused by their acts or measures . ”

This provision is not subject to any restrictions even in a state of emergency or war . The latter requirement of the provision does not necessarily require proof of the existence of any fault on the part of the authorities , whose liability is of an absolute , objective nature , based on the theory of “ social risk ” . Thus the authorities may indemnify people who have suffered damage from acts committed by unknown or terrorist authors when the ORG may be said to have failed in its duty to maintain public order and safety , or in its duty to safeguard individual life and property .

The principle of administrative liability is reflected in the additional section CARDINAL of Law no . CARDINAL of DATE on the state of emergency , which provides :

“ ... actions for compensation in relation to the exercise of powers conferred by this PERSON are to be brought against the authorities before the administrative courts . ”

LAW contains provisions dealing with unintentional homicide ( Articles CARDINAL , CARDINAL ) , inadvertent and negligent homicide ( Article CARDINAL ) , intentional homicide ( Article CARDINAL ) and murder ( Article CARDINAL ) . Articles DATE and CARDINAL of the Criminal Code address the commission of offences carried out inter alia in excess of a duty .

According to Article CARDINAL any person who intentionally kills another shall be sentenced to a term of imprisonment of CARDINAL to thirty years . According to LAW , the death penalty may be imposed in cases of , inter alia , premeditated murder . Under LAW , where death results from an act of violence but it was not the intention of the offender to kill his victim , a sentence of CARDINAL years’ imprisonment shall be imposed on the offender . Where death results from an act of carelessness , negligence or inexperience on the part of the offender in breach of a law , orders or regulations , LAW stipulates that the guilty party shall be sentenced to a term of imprisonment of DATE and to a substantial fine .

According to LAW , a person shall not be punished for committing an act which was carried out in pursuance of a law or on the orders of a competent authority or where the person was obliged to commit the act in immediate necessity to repel an unjustified assault against his own or another ’s person or chastity or in order to save his life or the life of another from an immediate and grave personal danger for which he was not responsible and the commission of the act was the only way in which the danger could be avoided . Article DATE qualifies the provisions of Article CARDINAL in stipulating that where the person in committing the act exceeds the limits of a duty prescribed by law or by the competent authority or exceeds the exigencies of the situation , that person shall be sentenced to a minimum term of imprisonment of DATE if the punishment in respect of the act is the death penalty , and to a minimum term of imprisonment of DATE if the punishment in respect of the act is life imprisonment .

Pursuant to section PERSON ) of PERSON no . CARDINAL on the state of emergency , when a state of emergency has been proclaimed the security forces , special forces on duty and members of the armed forces when carrying out their duties are empowered to use their weapons in situations where recourse to them is considered justified under law . According to section CARDINAL ) , when a state of emergency has been declared under section CARDINAL(b ) of the PERSON , members of the security forces when on duty may without hesitation open fire directly on a person who fails to heed their orders to surrender , returns fire or when they are obliged to act in self - defence .

For all such offences complaints may be lodged , pursuant to ORG CARDINAL and CARDINAL of LAW , with the public prosecutor or the local administrative authorities . The public prosecutor and the police have a duty to investigate crimes reported to them , the former deciding whether a prosecution should be initiated , pursuant to LAW . A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings ( Article CARDINAL ) .

If the suspected authors of the impugned acts are military personnel , they may also be prosecuted for causing extensive damage , endangering human lives or damaging property , if they have not followed orders in conformity with Articles DATE and CARDINAL of the Military Code . Proceedings in these circumstances may be initiated by the persons concerned ( non - military ) before the competent authority under LAW , or before the suspected person ’s hierarchical superior ( sections CARDINAL and CARDINAL of Law no . CARDINAL on the constitution and the procedure of military courts ) .

If the alleged author of a crime is a ORG official or civil servant , which includes members of the security forces , permission to prosecute must be obtained from local administrative councils ( ORG of ORG ) which carry out a preliminary investigation ( Article CARDINAL § CARDINAL of Decree no . CARDINAL ) . The local council decisions may be appealed to ORG ; a refusal to prosecute is subject to an automatic appeal of this kind .

Any illegal act by civil servants , be it a crime or a tort , which causes material or moral damage may be the subject of a claim for compensation before the ordinary civil courts . Pursuant to Article CARDINAL of ORG , an injured person may file a complaint for compensation against an alleged perpetrator who has caused him or her damage in an unlawful manner whether wilfully , negligently or imprudently . Pecuniary loss may be compensated by the civil courts pursuant to LAW and non - pecuniary or moral damages may be awarded under LAW .

Proceedings against the authorities may be brought before the administrative courts , whose procedure is written . A plaintiff has DATE in which to lodge a complaint against the authorities in respect of an impugned act and thereafter DATE in which to bring the complaint before the administrative courts .

LAW also makes provision to allow a person to constitute himself or herself a civil party in respect of pecuniary loss resulting from the commission of an offence . According to LAW , any person injured by a crime may , at any time during an investigation , by means of a complaint declare himself or herself a civil party and request compensation for damage which is the direct result of the accused ’s criminal act . This remedy is only available to direct victims and can not be exercised on behalf of a deceased victim . The remedy is not applicable if the accused is acquitted of the offence . The acquisition of civil party status is dependent on the fact that that party has not sought compensation from the civil courts in respect of the damage resulting from the offence .

The applicant points to certain legal provisions which in themselves weaken the protection of the individual which might otherwise have been afforded by the above general scheme .

Articles CARDINAL to CARDINAL of the LAW provide for fundamental limitations on constitutional safeguards .

Provisional LAW provides that there can be no allegation of unconstitutionality in respect of measures taken under laws or decrees having the force of law and enacted between CARDINAL DATE and CARDINAL DATE . That includes LAW no . CARDINAL on the state of emergency of CARDINAL DATE , under which decrees have been issued which are immune from judicial challenge .

Extensive powers have been granted to the regional governor of the state of emergency by such decrees , especially Decree no . CARDINAL , as amended by Decrees nos . CARDINAL and CARDINAL , and Decree no . CARDINAL .

Decree no . CARDINAL modifies the application of PERSON no . CARDINAL of DATE on the prevention of terrorism in those areas which are subject to the state of emergency , with the effect that the decision to prosecute members of the security forces is removed from the public prosecutor and conferred on local administrative councils .


Remainder inadmissible;Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE .

The applicant was married to ORG They divorced on DATE .

On DATE the applicant instituted non - contentious civil proceedings against ORG in ORG , ORG ( Temeljno sodišče v PERSON , PERSON ) seeking the division of their common property . To this end she submitted a proposal . Upon the request of the court , the applicant submitted an amendment to her proposal on DATE .

On DATE and DATE the court held a hearing where the parties settled the case in part . For the remainder of the property at issue , the court established that there was a dispute over its ownership .

On DATE the court issued a decision referring the applicant to institute contentious civil proceedings against ORG in order to determine the ownership of the garage ( see below paragraphs CARDINAL through CARDINAL ) . At the same time , the court ordered ORG to institute contentious civil proceedings against the applicant to establish the size of his share in the apartment the parties owned jointly .

On DATE the ORG entered into force with respect to GPE .

On DATE ORG ( ORG sodišče v PERSON ) gained jurisdiction in the present case due to the reform of the NORP judicial system .

At an undetermined time , but after DATE , ORG scheduled a hearing in the non - contentious proceedings for DATE .

On DATE the applicant informed the court that the parties had settled the remainder of the case and withdrew her proposal of CARDINAL DATE . Consequently , the court terminated the proceedings on CARDINAL DATE .

The decision was served on the applicant on DATE and became final on DATE .

On DATE ORG instituted contentious proceedings against the applicant in ORG , ORG ( Temeljno sodišče v PERSON , PERSON ) . The applicant did not institute proceedings against ORG of which she informed the court on DATE .

On DATE ORG ( Okrožno sodišče v PERSON ) gained jurisdiction in the present case due to the reform of the NORP judicial system .

On DATE the applicant instituted proceedings against ORG in ORG seeking equal share of their common apartment .

On DATE the applicant requested priority treatment for her case .

On DATE the applicant requested the court to issue an interlocutory measure prohibiting ORG to encumber or give up the apartment .

On DATE , upon the request of ORG , ORG joined both sets of proceedings and issued the interlocutory measure sought by the applicant .

On DATE the applicant again sought priority treatment for her case . On DATE the court informed her that her case did not require a priority treatment .

DATE and DATE the court held CARDINAL hearings . It heard CARDINAL witnesses and both parties .

On DATE the court held a hearing where the parties settled the case in part . The court issued a judgment holding that the applicant owned MONEY of the apartment and ORG the rest . It also ordered ORG to pay rent to the applicant for the time he had been using the apartment . The judgment was served on the applicant on DATE .

On DATE the applicant appealed to ORG ( PERSON sodišče v PERSON ) . ORG cross - appealed .

On DATE and CARDINAL DATE the applicant filed a request to speed up the proceedings . On DATE the court informed the applicant that her case was not a matter of priority .

On DATE the court allowed the appeals in part , found that the applicant and ORG owned the apartment in equal shares and remitted the case in the part referring to payment of rent to the first - instance court for re - examination . The judgment was served on the applicant on DATE .

At an undetermined time , ORG lodged an appeal on points of law with ORG sodišče ) .

On DATE the court dismissed the appeal .

On DATE the parties settled the case in ORG . The proceedings were thus terminated .


The applicant , Mr PERSON , is a NORP citizen , who was born in DATE and lives in LOC , GPE . He is represented before the ORG by Mr PERSON , a lawyer practising in GPE .

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

On DATE the applicant filed a civil claim in ORG ( PERSON ) seeking non - pecuniary damages that he suffered in a traffic accident . The accident was allegedly caused by a member of ORG who was driving a military truck The proceedings were instituted against GPE on the basis of statutory liability for damages caused by members of ORG and , at the same time , against ORG , an insurance company from GPE , on the basis of an insurance contract .

On DATE the court gave a judgment awarding the applicant ’s claim .

On CARDINAL and DATE ORG and GPE , respectively , appealed against the judgment .

The case was forwarded to ORG ( Županijski sud u GPE ) as the appellate court .

On DATE ORG introduced a change of LAW which provided that all proceedings against GPE concerning actions for damages resulting from acts of members of the NORP army or police when acting in their official capacity during the Homeland War in GPE were to be stayed .

Pursuant to LAW , on DATE ORG stayed the part of the proceedings concerning the applicant ’s claim against of GPE .

The part of the proceedings concerning the applicant ’s claim for damages from ORG has not been affected by the above legislative intervention and these proceedings are pending before the appellate court upon the defendant ’s appeal .

Section CARDINAL ( a ) of the Act on Changes of LAW ( Zakon o dopunama GPE o obveznim odnosima , ORG no . CARDINAL ) provides that all proceedings instituted against GPE for damages caused by the members of the NORP army or police when acting in their official capacity during the Homeland War in GPE from DATE to DATE are to be stayed .

The LAW also imposes an obligation on the Government to submit to ORG special legislation , regulating the responsibility for such damages , at the latest within DATE from the entry into force of the Act .


Violation of Art. 6-1;Violation of Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

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

On DATE the applicant sought enforcement of a judgment awarding him compensation following an employment dispute with the company PERSON ( “ the debtor ” ) . He applied for enforcement on the debtor ’s bank account and on its movable property .

On DATE ORG ( PERSON ) issued en enforcement order , which became final on DATE .

On DATE the court made a list of the debtor ’s movable property in the applicant ’s absence and scheduled a public auction for DATE . The auction was unsuccessful .

Another public auction was held on DATE , which was again unsuccessful , as no bids were made .

On DATE the court made a new list of the debtor ’s movables on which the applicant , who had been duly summoned , did not appear .

On DATE the applicant requested an injunction prohibiting the debtor to transfer or encumber shares it held in other companies .

On DATE the court held yet another unsuccessful public auction .

On DATE the applicant requested the court to order that the debtor should disclose its assets ( prokazni popis imovine ) .

On DATE the debtor paid the applicant the principal amount of his claim , stating that it would satisfy the remainder of the claim within DATE .

On DATE the applicant informed the court that the claim had not been settled in full . The court forwarded the applicant ’s submission to the debtor , for observations .

On DATE and DATE the court imposed fines on the debtor , for failure to comply with its orders .

On DATE the court also denied the applicant ’s motion for the disclosure of the debtor ’s assets . At the same time , the court also dismissed the applicant ’s motion for injunction prohibiting the transfer of the debtor ’s shares . Instead it instructed the applicant to provide a detailed list and addresses of companies in which the debtor held such shares . On DATE the applicant submitted the requested information .

The proceedings are still pending .

Meanwhile , on DATE the applicant filed a constitutional complaint concerning the length of the proceedings .

On DATE ORG ( Ustavni sud PERSON ) declared his complaint inadmissible finding that the enforcement order had already been issued .

The relevant part of CARDINAL of LAW on LAW ( Ustavni zakon o PERSON –Official Gazette no . CARDINAL/CARDINAL of DATE ; “ the LAW ” ) reads as follows :

“ ( CARDINAL ) The Constitutional Court shall examine a constitutional complaint even before all legal remedies have been exhausted in cases when a competent court has not decided within a reasonable time a claim concerning the applicant ’s rights and obligations or a criminal charge against him ...

( CARDINAL ) If the constitutional complaint ... under paragraph CARDINAL of this Section is accepted , the ORG shall determine a time - limit within which a competent court shall decide the case on the merits ...

( CARDINAL ) In a decision under paragraph CARDINAL of this LAW , the Constitutional Court shall fix appropriate compensation for the applicant in respect of the violation found concerning his constitutional rights ... The compensation shall be paid from the ORG budget within a term of DATE from the date when the party lodged a request for its payment . ”

NORP Under the case - law of ORG , constitutional complaints lodged under section CARDINAL in the context of enforcement proceedings were to be declared inadmissible . In its decision no . U - IIIA/CARDINAL/CARDINAL of CARDINAL DATE ORG interpreted section CARDINAL as follows :

“ The Constitutional Court shall institute proceedings pursuant to a constitutional complaint lodged under section CARDINAL of LAW [ on FAC ] for the length of proceedings only in cases where the court has not decided within a reasonable time on the merits of the rights and obligations of the complainant , that is , where it has failed to deliver a decision on the merits within a reasonable time .

In the present case the constitutional complaint has been lodged for non - enforcement of a final decision by which the party ’s rights and obligations had already been decided .

Taking into consideration the above cited provisions of LAW [ on LAW ] ... , ORG is of the opinion that in this case the conditions for applicability of section CARDINAL were not met . ”

In its decision no . U - IIIA/CARDINAL/CARDINAL of DATE the ORG provided further interpretation of CARDINAL :

“ Taking into consideration the above cited provisions of LAW [ on ORG ] and the fact that the constitutional complaint was not lodged for a failure to deliver a decision within a reasonable time but rather because the enforcement was not carried out , ORG is of the opinion that in this case the conditions for applicability of CARDINAL were not met . ”

In decision no . U - IIIA/CARDINAL/CARDINAL of DATE ORG changed its practice , accepting a complainant ’s constitutional complaint and awarding him compensation as well as ordering the competent court to conclude the enforcement proceedings within DATE from its decision . In doing so , ORG expressly relied on the ORG ’s case - law on the matter .


The applicant is a NORP national , born in DATE . He is currently serving a prison sentence .

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

A.

In DATE the GPE District Prosecutor instituted criminal proceedings against the applicant on suspicion of manslaughter and sexual assault against children . On DATE the applicant was arrested and detained on remand on DATE .

On DATE the PERSON Regional Court prolonged the applicant ’s detention until DATE .

On DATE the court prolonged the applicant 's detention on remand until DATE on the grounds that there was a reasonable suspicion , supported by the evidence gathered so far in the proceedings , that he had committed a serious crime . Moreover , the applicant should undergo further psychiatric examination . The court observed that there were no grounds on which to consider that the continued detention would entail for the applicant particular hardship , within the meaning of LAW .

On DATE the applicant ’s psychiatric examination was completed . On CARDINAL DATE the court prolonged the applicant ’s detention until DATE .

On DATE ORG prolonged the applicant ’s detention until DATE . On DATE experts from ORG and ORG submitted their report . On DATE the Prosecutor appointed an extended team of experts with a task of establishing whether the applicant was suffering from a physical and mental disorder or disability at the time of the commission of the crime with which he had been charged .

On DATE ORG prolonged the applicant ’s detention until DATE .

On DATE the bill of indictment against the applicant was lodged with the ORG . The applicant was indicted for homicide .

The first hearing before ORG was held on DATE . The court heard the submissions of the applicant and examined witnesses PERSON and DATE . On DATE the court heard evidence from expert PERSON and examined witnesses TIME , GPE , ORG , PERSON , PERSON , and W.S .. At the hearing of DATE the court examined witnesses GPE , PERSON , PERSON , PERSON , PERSON , GPE , PERSON , ORG and ORG Other witnesses summoned for that hearing , ORG , GPE , GPE and PERSON , failed to attend . The next hearing was listed for CARDINAL DATE .

On DATE the court examined the witnesses GPE , GPE , GPE , D.A. , PERSON , PERSON , PERSON and PERSON , PERSON , GPE , GPE and GPE failed to attend the hearing .

At the next hearing , on DATE , the court heard evidence from witnessess PERSON and PERSON , GPE , GPE , GPE and GPE failed to comply with the summonses . The court imposed a fine of CARDINAL PLZ upon the witnesses PERSON , GPE and GPE who had been duly summoned .

On DATE the court examined as witnesses PERSON , PERSON , PERSON and ORG , GPE , GPE , PERSON and PERSON were absent .

At the next hearing on DATE the court heard evidence from GPE , PERSON , PERSON and ORG , GPE , GPE and FAC failed to attend the hearing .

On DATE the court examined ORG as a witness . Witnesses PERSON , GPE and GPE did not attend the hearing .

On DATE the court inspected the scene of crime .

At the hearing held on DATE the court examined a witness FAC and the expert witness ORG expert GPE did not comply with the summons as he suffered from a chronic illness . The experts from ORG informed the court that they would be able to attend the hearing only on DATE and DATE or DATE because they had other hearings before other courts . The court fixed a date for the next hearing for DATE .

On DATE the court examined experts from ORG , GPE and GPE The expert GPE did not appear again . The court adjourned the hearing until DATE .

On DATE the applicant requested the ORG to quash the detention order in view of his state of health which had seriously deteriorated as a result of his detention . He also submitted that he suffered from hypertension .

On DATE , during a hearing before the ORG , the court examined a witness PERSON and an expert PERSON Certain discrepancies arose between the oral testimony of psychiatrists heard by the court and the submissions of the same experts in their written expert report concerning the applicant ’s mental health . In view thereof , and at the applicant ’s defendant ’s request , the court decided that the applicant ’s further psychiatric observation in ORG of ORG was necessary in order to establish whether he could be held criminally responsible .

Subsequently the applicant underwent a psychiatric observation .

On DATE the ORG dismissed the applicant ’s request for release of DATE , finding that the evidence in the case - file sufficiently supported the suspicion against him . The court further had regard to the seriousness of the charges against the applicant . The court took into account the medical certificate according to which the applicant could receive appropriate medical treatment in the prison .

On DATE the applicant lodged a further request for release with the ORG , emphasising that he had been detained since DATE . It was further stressed that , given that the investigations had been completed , there were no grounds on which to accept that his release would jeopardise the further taking of evidence . It was finally stated that there were no grounds for the applicant ’s continuing detention .

The Zielona ORG dismissed the request on DATE , considering that the evidence gathered in the investigations sufficiently supported the suspicion that the applicant had committed a serious crime . The court further noted that there were no grounds on which to accept that the circumstances referred to in LAW obtained in the applicant ’s case .

The applicant underwent psychiatric examinations from DATE , DATE and on DATE .

On DATE the applicant again requested the ORG to quash the detention order , arguing that he had been detained for DATE and that the investigations had been completed . Therefore , the applicant ’s release would not jeopardise the proper course of the proceedings . It was further emphasised that the detention on remand was a preventive measure , which should not serve any punitive purposes . The length of the applicant ’s detention on remand was such as to confer a punitive character on it .

The request was dismissed by the Zielona ORG on DATE on grounds identical with those relied on by the same court in its decision of DATE .

On DATE the applicant lodged an appeal with ORG against this decision . He argued that DATE of detention on remand were incompatible with the notion of justice , the more so as the court was not under a legal obligation to maintain his detention . He requested the appellate court to consider the imposition of more lenient preventive measures . He further submitted that , as a result of the excessive length of his detention , it had ceased to serve the purposes of a preventive measure and had acquired a punitive character .

On DATE and CARDINAL DATE the applicant complained to the Minister of ORG about the length of the criminal proceedings in his case . He submitted that regardless of the findings made by the court in the proceedings on the merits of the criminal case against him , which had already lasted DATE , he still enjoyed the presumption of innocence and should not be regarded as being guilty before a final judicial decision was given in this respect .

In a letter of DATE the President of the PERSON Regional Court , in reply to the applicant ’s complaint of DATE , forwarded to him by the Minister of ORG , stated that the case was complex , in particular since the court had to admit fresh evidence , including the expert opinion requested by the applicant . This opinion was being prepared . The court had several times urged the experts to expedite their work , but to no avail . The proceedings would progress as soon as the expert report was submitted .

In his reply of DATE , the applicant stressed that the President of ORG had failed to address his complaints about the excessive length of proceedings and , in particular , to explain reasons for which , since the last hearing held on DATE , there had been no progress in the case . He stated that since that date the court had been unable to do anything to speed up the preparation of the expert opinion . He submitted that his appeal against ORG refusal to release him had not been transferred by that court to ORG .

On DATE the applicant ' s father complained to the President of ORG about the length of proceedings in the applicant ’s case .

In a letter of DATE the President of the PERSON Regional Court informed the applicant that the court had many times requested the experts to submit their report to the court , but to no avail . Under applicable laws , the court had no means at its disposal to oblige the experts to speed up their work , if the experts had provided justification of the delay in the submission of their report . The court had recently been informed that the report and the case - file would be returned to the court in DATE .

On DATE the applicant complained to the Minister of ORG about the excessive length of proceedings in his case . He submitted in particular that ORG had failed to date to transmit his appeal against the decision of CARDINAL DATE to ORG .

On DATE the applicant complained to ORG about the excessive length of the criminal proceedings against him .

On DATE the ORG upheld the decision of DATE . ORG held that the lower court , albeit it had been laconic in its reasoning , was right in considering that the applicant ’s detention should not be lifted , in particular in the light of the evidence gathered in the case which pointed to his guilt . The court further stated that in the assessment of the applicant ’s detention CARDINAL fundamental argument should be kept in mind , namely that CARDINAL of the purposes of the preventive measures was to keep in isolation dangerous offenders charged with serious crimes . The court further considered that the psychiatric expert opinion , which was being prepared , was necessary for the determination of the applicant ’s criminal responsibility and that it was in the applicant ’s interest that such a report be submitted to the court examining the merits of the case . The court further acknowledged that their significant length should be regarded as a shortcoming of the proceedings and that the court should undertake certain measures in order to expedite the experts’ work . However , the fact that the experts were slow in the preparation of their report could not in itself justify the applicant ’s release . The court further considered that the circumstances referred to in LAW did not obtain in the case .

In a letter of CARDINAL DATE the President of ORG informed the applicant , in reply to his complaint of DATE , that he had found no grounds on which to take any measures , within the framework of his administrative supervision over the lower courts , in order to accelerate the proceedings . He further stated that the applicant ’s appeal against the decision of CARDINAL DATE had been forwarded by ORG to ORG on DATE .

On DATE the court received CARDINAL opinions , numbering CARDINAL pages , prepared by ORG . On DATE these opinions were sent to ORG for comments .

On DATE the applicant lodged a request for release with the Zielona ORG .

On DATE the request was dismissed by the court . The ORG found that the evidence gathered in the case sufficiently supported the suspicion that the applicant had committed a dangerous offence and that the circumstances referred to in LAW did not obtain . The court further considered that , in the light of a recent medical certificate , the applicant , contrary to his submissions , could be treated in the prison hospital .

On DATE the applicant lodged an appeal against this decision , emphasising that his detention had lasted DATE and that , consequently , it had ceased to serve any preventive purpose and should be regarded as serving a sentence . It was further submitted that there was no indication that , if released , the applicant would try to suppress evidence or otherwise jeopardise the proper course of the proceedings . The applicant finally referred to an expert opinion according to which he had suffered from brain damage and that there was a suspicion of certain progressive illness .

On DATE , upon the applicant appeal , ORG upheld the decision of DATE . The court noted that the applicant was accused of a serious crime and that the evidence , the full assessment of which would be made by the court examining the case on the merits , and in particular the evidence of CARDINAL witnesses , PERSON , PERSON , PERSON and PERSON , pointed out to his guilt . The court further observed that the proceedings remained pending exclusively as a result of the fact that the applicant had to undergo psychiatric examinations , which were necessary for the case to progress and which were in the applicant ’s interest . The court finally noted that the applicant suffered from hypertension which could be treated by the prison medical services .

On DATE ORG submitted their comments on the expert opinions of ORG to the court .

On DATE the ORG lodged a request with ORG under LAW , submitting that the applicant should be maintained in detention on remand until DATE . The court submitted that all the evidence relevant to the case had been taken , the only exception being that relating to the applicant ’s mental state tempore criminis . The court had at its disposal CARDINAL contradictory psychiatric expert opinions in this respect , and , consequently , it requested that CARDINAL one be prepared to elucidate the discrepancies between the contradictory assessments of the applicant ’s mental state . Despite their declaration , the experts had failed to submit the report to the court by DATE . Therefore the applicant ’s detention should be maintained .

On DATE the applicant requested ORG to dismiss the motion of the Zielona ORG .

On DATE ORG refused to entertain the request of ORG . ORG referred to LAW considered that in the light of this provision ORG was not obliged to submit the request for the prolongation of the applicant ’s detention if the period of the detention so prolonged would end DATE .

On DATE the applicant requested again to be released , arguing in particular that he had already been detained for DATE . He submitted that his excessively long detention did not have any basis in applicable laws . He further referred to his health , which had been deteriorating as the medical care provided by the prison medical services was inadequate .

The hearing fixed for DATE was adjourned as the experts of ORG informed the court that they would be unable to attend it .

By a decision of CARDINAL DATE the applicant ’s request of DATE was dismissed by ORG . The court considered that the need to maintain the detention still persisted since there was a reasonable suspicion that the applicant had committed a serious crime which carried a risk of a long - term imprisonment . The court also stated that in the applicant ’s case the circumstances referred to in LAW did not obtain .

At the hearing on DATE the ORG examined experts PERSON , GPE , GPE , GPE , ORG , GPE , GPE , PERSON . PERSON and PERSON On DATE the parties presented their final conclusions .

On DATE ORG in PERSON convicted the applicant of manslaughter , acquitted him of other charges and sentenced him to DATE of imprisonment .

On DATE ORG dismissed the applicant ’s request for release .

On DATE the applicant and on DATE the Prosecutor lodged their appeals with ORG .

On DATE ORG dismissed the applicant ’s appeal against the decision of DATE .

On DATE ORG upheld the judgment of DATE .

On DATE the applicant lodged a cassation appeal with ORG . In reply , on DATE the ORG requested ORG to dismiss this appeal . ORG

On DATE the ORG refused to stay the enforcement of the sentence .

On DATE ORG dismissed the applicant ’s cassation appeal , considering that it was manifestly ill - founded .

B. Relevant domestic law

a ) Evolution of NORP criminal law in the relevant period

NORP criminal legislation was amended several times during the relevant period . LAW enacted in DATE ( “ old ” Code ) was replaced by LAW , adopted by ORG ( PERSON ) on DATE , which entered into force on DATE .

The “ old ” Code was significantly amended by the PERSON of DATE on LAW to LAW and Other Criminal Statutes . This PERSON entered into force on DATE . However , the entry into force of the provisions concerning imposition of detention on remand was postponed until DATE . In pursuance with these provisions , detention on remand was imposed by a judge ( whereas before it was imposed by a prosecutor - see section ( b ) below ) .

The second amendment , effected by the PERSON of DATE on LAW to the LAW ( commonly referred to as “ LAW DATE ” ) entered into force on DATE .

b ) Preventive measures

LAW ( “ old ” ) , applicable at the relevant time , listed as " preventive measures " , inter alia , detention on remand , bail and police supervision .

After the bill of indictment was transmitted to the court , relevant orders were to be made by the court . A decision concerning preventive measures could be appealed to a higher court .

c ) Grounds for detention on remand

Article CARDINAL of the “ old ” Code of Criminal Procedure , as applicable at the relevant time , provided that a person could be held in detention on remand if there were serious grounds for believing that he or she would abscond , in particular when he or she did not have a permanent address or his / her identity could not be established . Further , detention could be imposed if there were serious grounds for believing that there was a risk of collusion or that an accused would otherwise jeopardise criminal proceedings . Finally , alternative grounds for detention on remand were either the fact that an accused was charged with an offence of a particular danger to society ( “ wysokie społeczne niebezpieczeństwo czynu ” ) , or that he had been acting in conditions of relapse into crime ( “ recydywa ” ) within the meaning of LAW .

The notion of “ danger to society ” as set out in the Criminal Code related to the assessment of the seriousness of criminal offences and , if the " danger to society " represented by a given offence was serious , this was also an aggravating circumstance which the court had to take into consideration when determining a sentence .

Pursuant to LAW ” Code of Criminal Procedure , if there were no special considerations to the contrary , detention on remand should not be imposed or should be lifted , if it involved danger to life or limb or entailed particular hardship for a suspect or his family .

After the Interim PERSON of DATE entered into force on DATE , the grounds for imposition of detention on remand were restricted to situations in which there was a reasonable risk of absconding , or that a suspect would go into hiding , in particular when his identity could not be established or he had no permanent domicile . Secondly , detention could be imposed if there was a reasonable risk that he would attempt to induce witnesses to give false testimony or to hinder the proper course of proceedings by any other unlawful means .

d ) Proceedings to examine the lawfulness of detention on remand

At the material time there were CARDINAL types of proceedings enabling a detainee to challenge the lawfulness of his detention and thus possibly obtain release . Under LAW § CARDINAL of the “ old ” Code of Criminal Procedure he could appeal to a court against a detention order made by a prosecutor ( see above ) . Under Article CARDINAL § § CARDINAL(CARDINAL ) and CARDINAL he could appeal against a further decision by that court prolonging his detention on a prosecutor 's request . Lastly , under LAW an accused could at any time request the competent authority to quash or alter the preventive measure applied in his case . Such an application had to be decided by the prosecutor or , after the bill of indictment had been lodged with the court competent to deal with the case , by that court , within DATE .

e ) Statutory time - limits for detention on remand

Until DATE the law did not fix any time - limits concerning detention on remand in judicial proceedings . During the investigations , the prosecutor could order detention for DATE . Prolongation of this period was possible by a court order , for a period not exceeding one year , and for any further periods , by a decision of ORG given upon a request of ORG

Article CARDINAL of the Code of Criminal Procedure , as applicable from DATE , insofar as relevant , provided :

" CARDINAL . The whole period of detention on remand until the date on which the first - instance court gives judgment may not exceed DATE and DATE in cases concerning offences . In cases concerning serious offences this period may not exceed DATE .

In particularly justified cases ORG may , upon the request of the court competent to deal with the merits of the case , ... prolong detention on remand for a further fixed period exceeding the periods referred to § ... CARDINAL , when it is necessary in connection with a suspension of the proceedings , a prolonged psychiatric observation of the accused , when evidence needs to be obtained from abroad or when the accused has deliberately obstructed the termination of the proceedings within the time - limits set out in § CARDINAL . ”

However , as already mentioned ( see above ( a ) “ Evolution of NORP criminal law in the relevant period ” ) under LAW ( a ) of LAW of DATE different rules applied in respect of persons whose detention on remand started prior to CARDINAL DATE . This section provided :

“ CARDINAL . In cases where the total period of detention on remand which started prior to CARDINAL DATE exceeds the [ maximum ] time - limits referred to in LAW ... and CARDINAL of the Code of Criminal Procedure [ as amended by the Law of DATE on LAW to LAW and Other Criminal Statutes ] , the accused shall be maintained in detention until ORG gives a decision on a request for prolongation of such detention under LAW of LAW .

In cases referred to in § CARDINAL , if no [ such ] request has been lodged , detention shall be quashed not DATE . ”

A ” request ” within the meaning of Section CARDINAL § CARDINAL of LAW took the form of a “ decision ” ( postanowienie ) by the court concerned .

Under all the relevant provisions of LAW read together , a detainee was entitled to appeal against any decision prolonging his detention on remand , regardless of whether it had been made at the investigative or judicial stage of proceedings . However , no appeal lay in law either against a decision containing a request under LAW , or against a decision of ORG granting such a request .