The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in ORG in GPE . He was represented before the Court by PERSON of the lawfirm Rumpenhorst – Gockel – Rettig , practising in GPE .

The applicant is the father of a son ( M ) , born on DATE . The applicant and the child ’s mother divorced in DATE , but lived together at the time of M ’s birth and held joint parental authority over the child . In DATE , M lived with his mother .

On DATE the Gütersloh municipal authority informed the Gütersloh ORG ( ORG ) about tensions and physical violence between the parents . Following CARDINAL court hearings the parents agreed that the mother should be granted the right to decide about the child ’s place of residence and that the father should be granted supervised access rights within the LOC of the child protection agency ( PERSON ) . The mother declared that she would accept social - pedagogical family support .

On DATE the municipal authority informed ORG that the parents had refused to accept further support by the child protection agency and that the mother had refused to accept family support , which she did not deem necessary .

On DATE the Gütersloh ORG , following expert recommendation , withdrew by interim order the mother ’s rights to decide about the child ’s place of residence and to care for the child and transferred these rights to the municipal authority . The municipal authority placed the child temporarily in a children ’s home . On DATE M was placed in a foster family .

On DATE , following an oral hearing , the Gütersloh ORG confirmed its interim order . All parties to the proceedings waived their right to appeal .

On DATE the applicant and the child ’s mother lodged separate requests to be restored parental authority , alternatively to be granted access rights .

On DATE the psychological expert O. , having examined the child , both parents and the foster parents , submitted her expert opinion . She considered that , while the mother was not able adequately to take care of the child , the father was in principle able to take care of him . Furthermore , PERSON enjoyed a positive relationship with his father . The expert observed , however , that during the period of one year and DATE he had spent in the foster family , M had developed bonds to the foster family . Taking into account the fact that the child had spent CARDINAL of his life with the foster family and that DATE until the child ’s reaching DATE were decisive for the formation of such bonds , which stayed unchanged for the remainder of childhood , the expert considered that it would jeopardise the child ’s welfare to remove him from the foster family .

On DATE ORG restored parental authority to the parents and ordered that M should remain with the foster family ( PERSON ) . All parties to the proceedings waived their right to appeal .

The applicant is currently living with his new wife , their daughter and a stepdaughter .

The proceedings relating to the GPE access rights were severed from the proceedings on parental authority .

On DATE the parties agreed , on a preliminary basis , that the applicant should have the right to visit M once DATE for TIME within the premises of a social organisation . The mother was granted access rights for TIME DATE . The visits took place as envisaged .

On DATE the Gütersloh ORG , following an oral hearing , temporarily suspended access rights . On DATE the ORG judge visited M in the foster GPE home .

On DATE ORG ordered that the applicant should have the right and the duty to visit M DATE for TIME in the presence of an appropriate third person within the LOC of the social organisation . The mother was granted access rights for TIME DATE .

Taking into account the reports submitted by the social organisation on the visiting contacts , the results of the oral hearing , the personal impression the judge had gained of the child and the submissions by the child ’s court - appointed curator ad litem , ORG considered that this regulation on access rights best served the child ’s interests .

ORG considered , at the outset , that M could not be returned to his parents within DATE . This had been the outcome of the proceedings on custody rights , as manifested in the decision that M should remain with the foster family . ORG judge had hoped that further access rights would be beneficial for the child if the parents ceased to argue about M ’s place of residence . However , as became clear during the oral hearing held on DATE , this had not been the case . Neither the mother nor the father had been able to discuss access rights separately from the question of residence . It had been impossible to talk reasonably with the applicant . The fact that the applicant ’s counsel requested the order that M should remain with the foster family be lifted further demonstrated that the parties did not agree on the child ’s place of residence .

Referring to the report submitted by the child ’s curator ad litem , ORG further noted that the visiting contacts which took place DATE and DATE had not been beneficial for the child . M had been very strained before and after the contacts . The conflicts about his place of residence unsettled the child .

Following this assessment , ORG considered that M was burdened by the unresolved question of his place of residence . It had not been possible to keep the child out of these conflicts , as the parents were unable to accept that the child remained with the foster family . It was , however , essential for M to have the security to remain with the foster family .

ORG further observed that the foster parents had fully cooperated and had made no effort to avoid or restrict access rights . The applicant , on the other hand , had never expressed his concern for the child ’s well - being , but merely stressed that the child was “ his flesh and blood ” .

The ORG further considered that M suffered from a serious eating disorder and that his condition , which had improved before the oral hearing held on DATE , had aggravated .

By way of conclusion , ORG considered that M had the right to know his parents and to have access to them . Having regard to the feeling of uncertainty which had been caused by the recent contacts , it appeared to be in the child ’s best interest to limit contacts to once in a DATE period . On the one hand , there was the reasonable hope that M could settle down , on the other hand , there was sufficient contact to the biological parents .

Both parents lodged appeals , the applicant with the aim to be granted access DATE from DATE TIME to Sunday TIME

On DATE the ORG ( Oberlandesgericht ) ordered the preparation of an expert opinion as to which regulation of access rights best served the child ’s interests .

On DATE the expert B submitted her expert opinion . She considered that M had shown massive behavioural disorders in connection with the former regulation on access rights . These had mainly been caused by the child ’s insecurity and conflicts of loyalty and the fear of losing the foster family , which had been intensified by the visiting contacts . Since the installation of the new regulations on access rights , the behavioural disorders had diminished . The visits had contributed to maintaining the relationship to his family of origin .

With the aim of preserving the positive aspects of the visiting contacts while limiting the negative effects , the expert considered that the meetings should take place within a predictable and stable framework . As the biological parents did not accept that M remained with the foster family , the only possibility to limit the negative effects was to put a limitation on access rights . The expert considered that the present regulations had proved to be successful .

The expert further considered that it would be positive if the applicant could be granted more generous access rights in the mid - term future . She recommended offering the applicant special counselling which would allow him to come to terms with the child ’s stay in the foster family and enable him better to understand the child ’s feelings and needs .

On DATE the ORG , having heard all parties to the proceedings , rejected the GPE complaints against ORG decision of DATE . ORG noted that the expert , when personally heard , considered that the child enjoyed good contacts with the applicant and that the parents had to assure M that he could stay with the foster family .

The foster parents submitted that M had cried for TIME before the court hearing . He was always very agitated when fearing changes of his situation and soiled himself , but had calmed down recently .

Having regard to the parties’ submissions and personal statements and to the expert opinion , the court considered that it would jeopardise the child ’s welfare to grant more extensive visiting rights . According to ORG , it was understandable that the biological parents had the wish that the child be returned to them . However , this attitude imposed a serious strain on M , who felt torn between his biological parents and the foster parents . As had been confirmed by the personal statements given by the relevant parties , M had the wish presently to remain with the foster parents , whom he regarded as his relevant attachment figures . During the visiting contacts the conflict of interests became apparent and unsettled the child considerably . The child was in need of the firm knowledge that he was not taken from the foster family against his own wishes .

It would be preferable if the biological parents could convey him this confidence . As this was presently not the case , it was necessary to limit access rights . The court further considered it necessary to order supervision in order to avoid conflicts .

By way of conclusion , ORG conceded that the time - frame of visiting contacts was restrictive . However , having regard to the previous development of visiting contacts , that court considered that the visits were sufficient to maintain the appropriate contacts between M and his parents . It was thus assured that the bonds to his parents and the emotional relationship remained intact .

On DATE ORG , sitting as a panel of CARDINAL judges , refused to admit the applicant ’s constitutional complaint .

According to section DATE of LAW , a child is entitled to have access to his or her parents ; each parent is obliged to have contact with , and entitled to have access to , the child . The family courts can , however , restrict or suspend that right if such a measure is necessary for the child ’s welfare .

A decision restricting or suspending that right for a lengthy period or permanently may only be taken if otherwise the child ’s well - being would be jeopardised ( section DATE ) .


Violation of Article 1 of Protocol No. 1 - Protection of property

András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria

The applicant was born in DATE and had been living in GPE . On DATE he died .

On DATE the applicant bought a plot of land ( no . CARDINAL ) in GPE . The land was later divided in CARDINAL parts ( plot nos . DATE CARDINAL , CARDINAL , DATE and DATE ) .

Upon GPE decision to put a notice in ORG in DATE , the applicant learned that there was a water pipeline passing underneath plot no . DATE .

On DATE ORG ( the “ ISKI ” ) filed an action with ORG and requested the annulment of the title deed of the applicant to the land in question and its registration in their name . In this respect , they submitted that they had occupied the disputed plot of land since DATE by way of laying down a water pipeline underneath it and that , therefore , it should be registered under its name pursuant to LAW no . ORG .

In the course of the proceedings a commission of experts examined the documentary evidence and conducted an onsite inspection together with the court . On DATE the experts submitted their report where they considered , inter alia , that the land in question would be worth around CARDINAL,CARDINAL,CARDINAL,CARDINAL NORP liras . In the annexed document it was noted that plot no . DATE was de facto a road .

On DATE ORG , noting that as of DATE the ORG of First Instance had become operational , transferred the case to it .

On DATE the ORG of First Instance , on the basis of the evidence , particularly official documents concerning the construction of the water pipeline , accepted the request of the ORG and ordered that the land be registered in their name . It considered , in particular , that the applicant 's property rights over the land in question had ceased , following the expiry of the statutory timelimit provided under LAW of the Law no . ORG .

NORP The applicant appealed . Referring to a court case concerning the previous owner of the plot of land , the applicant submitted , inter alia , that the water pipeline in question passed through another plot and not plot no . DATE , and that the statutory time - limit provided under LAW no . ORG had not expired since a notice was put in ORG only in DATE .

On DATE ORG upheld the firstinstance court 's judgment . The applicant 's request for rectification was rejected on DATE . This decision was served on him on CARDINAL DATE .

On DATE ORG annulled LAW no . ORG .

On an unspecified date the applicant asked ORG to reopen the proceedings on the ground , inter alia , that , according to their own investigation there were no water pipelines passing underneath plot no . DATE and , consequently , the court 's earlier decision had been based on erroneous official documents and the false testimony of ORG officials .

On DATE the ORG of First Instance dismissed the applicant 's request on the ground that the applicant had already made similar claims in the earlier proceedings , that in the presence of official documents there was no need , in such cases , to investigate by digging up the disputed land , and that , although LAW no . ORG had been subsequently annulled by ORG , this was not a reason for reopening the proceedings .

The applicant 's appeal and subsequent request for a rectification was dismissed by ORG on DATE and CARDINAL DATE respectively .

In DATE the Ümraniye Magistrates ' Court , upon the applicant 's request , conducted an onsite inspection of the land . The appointed experts considered that the water pipelines in question were not laid underneath the applicant 's plot but next to it .

In DATE the Ümraniye Magistrates ' Court , upon the ORG 's request , conducted another inspection of the land . The appointed experts considered that the water pipelines in question passed next to plot no . DATE , not underneath it .

A full description of the domestic law may be found in GPE ( Çökmez ) and Others v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) .


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

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

The applicant , a professor in chemistry in GPE , was married to a NORP citizen . The wife left GPE for GPE and began divorce proceedings . The applicant found out in DATE that the divorce proceedings had ended but his ex - wife refused , despite the applicant ’s numerous requests , to send him a copy of the divorce decree .

The applicant went to GPE in DATE to see his children who were living with their mother , who had since begun to work as an interpreter for the police . When the applicant found out that his ex - wife was on holiday , he entered the house , using his key , in order to find the divorce decree . The neighbours alerted the police and the applicant was arrested . Following the intervention of the father of his ex - wife , the applicant was released .

The applicant ’s ex - wife later claimed that she found CARDINAL small bottles of liquid in her house . These were handed to the police and were sent for forensic examination on DATE . According to the forensic report , the first bottle contained hydrogen fluoride which was deemed to be exceptionally corrosive and likely to cause severe and disfiguring burns if applied to the skin . The second and the third bottles each contained QUANTITY of cadmium nitrate and nitrate of mercury , both of which were deemed to be heavy metal salts which would cause acute poisoning if ingested in any significant amount . The forensic scientist also stated that these exhibits were dangerous and it would not be safe to submit them for fingerprint analysis .

On DATE the applicant and his new wife went to GPE to visit the applicant ’s children . The applicant was arrested at the airport and was transferred to a police station in GPE .

On DATE the applicant was questioned at GPE police station in relation to the accusations that on DATE he had entered , as a trespasser , his ex - wife ’s house with intent to inflict grievous bodily harm upon his ex - wife by leaving the CARDINAL tubes of chemical corrosives in the house . According to the record of the interview , a legal representative was present during this interview .

It appears from a document submitted by the applicant that on DATE the applicant appeared before ORG . The charges were read out to him but he did not reply . He was charged under LAW of the Offences Against LAW DATE and was remanded in custody .

In DATE the applicant sent a letter to his ex - wife ’s sister , asking her to persuade her sister to withdraw the complaints . This letter was handed to the police by his ex - wife ’s new husband and another charge , namely an “ intention to pervert the course of justice ” , was brought against the applicant .

On DATE , the items found in the applicant ’s ex - wife ’s house were submitted by the police to a forensic scientist for examination , who , in his report of CARDINAL DATE , largely confirmed the earlier forensic findings .

According to the documents , CARDINAL preliminary hearings took place on DATE , CARDINAL DATE and finally on DATE . The applicant ’s application for bail was refused on DATE . During these hearings the applicant was represented by a solicitor and different counsel in each of the hearings , instructed by the solicitor .

The applicant states that these lawyers claimed to have made an agreement with the judge to get a shorter sentence and they attempted to persuade him to accept the charges . He , however , did not accept their suggestions . When the applicant sought an independent forensic expertise , he learnt that the bottles and their contents had been destroyed . The independent forensic scientist prepared a report on the basis of the CARDINAL earlier reports .

On DATE a hearing took place at ORG in GPE . According to the applicant the hearing lasted TIME . At the end of the trial the applicant was acquitted of the charges against him and he was released DATE . The applicant left GPE on DATE . He further claims that a copy of the judgment was never communicated to him .

The applicant , who contacted his solicitor in GPE from GPE and told her that he wished to bring a claim for compensation against the authorities in GPE , was informed by the solicitor that the fee would be £ MONEY .

The applicant also claims that he contacted CARDINAL other lawyers in GPE , CARDINAL of whom never replied and the other advised him that he could bring an action in GPE via FAC in GPE and without leaving GPE . When he contacted ORG in GPE he was told that this was not possible .

The applicant contacted ORG again , this time for a visa in order to go to GPE to start the proceedings . He was told to bring all the documents relating to his case in GPE and was given an appointment for DATE .

On DATE the applicant and his wife went to FAC in GPE . The applicant had in his possession CARDINAL small bottles containing potassium nitrate as well as the documents relating to his trial in GPE . The applicant showed these bottles to the NORP employee and stated that it was because of bottles similar to these that he had spent DATE in prison in GPE . He claimed that they were completely harmless and that he could even consume them . The ORG employee contacted the police who arrested the applicant and his wife and released them later . This incident was widely reported in the national media .

The applicant had CARDINAL subsequent appointments at FAC in GPE , during which he asked for assistance to initiate a court action in GPE . He was told that he would be informed when they had obtained information from GPE .

The applicant , after having received the forensic report in relation to the CARDINAL bottles for which he was arrested in GPE , brought an action against FAC in GPE . He claimed that , as established by forensic examination , the contents of the bottles were completely harmless and that the Consulate ’s actions resulted in him being branded as a “ terrorist ” by the media . The case was rejected by ORG of First Instance on the ground that it had no jurisdiction to try the actions of another ORG . The subsequent appeal against this judgment was also rejected by ORG on DATE .

On DATE the applicant received a letter from FAC in GPE , stating that his application for a visa was refused on the ground that “ the initial enquiries as to the feasibility of an action to sue the Police and ORG could easily be made from GPE ” . The letter further stated that in the light of the previous charges brought against him in GPE , “ his exclusion from GPE was conducive to the public good ” .


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

Giovanni Bonello;Ján Šikuta;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä

The applicant was born in DATE and lives in GPE . The facts of the case as submitted by the parties are as follows .

NORP In DATE the applicant and his wife became joint tenants of a CARDINAL - bedroom family house owned by ORG ( “ the local authority ” ) . They were also secure tenants under the provisions of LAW DATE ( see paragraph CARDINAL below ) .

The marriage broke down DATE and the applicant ’s wife moved out of the house with the CARDINAL children . On DATE , following a contested hearing at which the applicant was not represented , the court made a DATE non - molestation order and an ouster order requiring the applicant to leave the house , which he did . PERSON and the children moved back into the house , but moved out again when on DATE the applicant turned up at the house , used a crowbar to force entry and allegedly assaulted PERSON and her friend . Criminal proceedings were brought against the applicant following this incident , but resulted in an acquittal when no evidence was put forward .

On DATE PERSON submitted to the local authority an application to be rehoused on grounds of domestic violence . On DATE she returned the keys to the local authority with a note saying that she was giving up the tenancy . She and the children moved into another council house which had been allocated to them in accordance with the local authority ’s domestic violence policy . The local authority visited the house and found that most of the fixtures had been removed so that in excess of MONEY would be required to make it habitable . Thereafter , as far as the local authority was concerned , the property was uninhabited .

In DATE the applicant returned to the house and did a considerable amount of work to renovate it . His relationship with PERSON improved and she supported his application for an exchange of accommodation with another local - authority tenant , as the CARDINAL - bedroom house was too big for him but he still required a home in the area so that his children could visit .

That application , dated DATE , was completed at the local - authority housing office . On DATE , a housing officer , having realised that the property was not in fact empty , and having taken legal advice , visited PERSON and asked her to close the tenancy by signing a notice to quit . ORG judge who heard the local authority ’s claim for possession found as a fact that PERSON was not advised and had no understanding that the notice to quit would have the effect of extinguishing the applicant ’s right to live in the house or exchange it for another localauthority property ( see paragraph CARDINAL below ) . CARDINAL DATE PERSON wrote to the local authority seeking to withdraw the notice to quit , but it nonetheless remained effective .

NORP The applicant was informed that the tenancy had come to an end , and he was given notice to vacate . On DATE the local authority ’s ORG decided , inter alia , that in accordance with the domestic violence policy , the applicant would not be granted the right to accede to the former tenancy of the house and that , in any event , the applicant , who had no dependants living with him , would not qualify for a dwelling originally allocated to a qualifying family which had been rehoused .

On DATE the local authority brought possession proceedings against the applicant in ORG , which he defended on the basis that it was contrary to his right to respect for his home under LAW to be evicted on the basis of the notice to quit .

In his judgment of DATE , ORG judge held that under the common law and LAW ( see paragraphs CARDINAL below ) , the applicant had no defence to the authority ’s claim for possession . Under LAW , however , he cited previous case - law which held that in such cases , generally , the interest of the local authority as landlord and of other persons in need of social housing had been taken into account by the applicable common law and legislation , and that , provided that the local authority had acted lawfully , it was not open to a court to put aside a claim for possession , except in exceptional circumstances where it appeared that the former tenant ’s LAW had not been properly considered . He noted the circumstances in which PERSON had signed the notice to quit and observed that , if she had not been induced to sign it , the local authority would have had to apply for a possession order under LAW DATE ( see paragraph CARDINAL below ) . It would then have been open to the applicant to seek to persuade the court that it would not be reasonable to grant the order ; he and PERSON could have given evidence regarding the alleged domestic violence ; and he could in addition have raised such issues as his own housing needs and the need to provide accommodation for the children when they visited . In the circumstances , the judge held that the local authority had not acted as required by LAW and he dismissed the claim for possession .

The authority ’s appeal to ORG was adjourned pending the outcome of proceedings before ORG in GPE of GPE v. PERSON [ DATE ] ORG CARDINAL ( see paragraphs CARDINAL below ) . On DATE Lord Justice Mummery gave the judgment of ORG in the present case , holding as follows :

“ ... DATE is not available as a defence to the possession proceedings , even though the premises in question were the ‘ home’ of the occupant for the purposes of the LAW . The ORG acted lawfully and within its powers in obtaining the notice to quit , which had the effect of terminating the secure tenancy . There was no dispute but that the tenancy had been brought to an end by [ the applicant ’s wife ’s ] notice to quit . Under ordinary domestic law the ORG had an unqualified right to immediate possession on proof that the tenancy of the LOC had been brought to an end . The statutory procedure in section CARDINAL of the DATE Act , which is available to a localauthority landlord for terminating a secure tenancy , does not apply to a case where the secure tenancy has been terminated by the tenant ’s notice to quit . That notice to quit was effective , even though the notice was signed without appreciating the consequences for the occupier of the LOC .

This is not a ‘ wholly exceptional’ case where , for example , something has happened since the service of the notice to quit , which has fundamentally altered the rights and wrongs of the proposed eviction and the ORG might be required to justify its claim to override LAW CARDINAL right ( see PERSON at paragraph CARDINAL [ paragraph CARDINAL below ] ) . ”

The applicant applied for judicial review of the local authority ’s decision of DATE to procure a notice to quit from his wife , and of its decision of DATE to issue possession proceedings . The application was refused on DATE . The judge found , inter alia , that the local authority had acted within its powers in seeking , through the wife ’s notice to quit , to formalise the situation as regards the tenancy and that its decision to apply its domestic violence policy where domestic violence had been established by the existence of a non - molestation injunction and ouster clause was neither unlawful nor outside the range of decisions properly open to the local authority in all the circumstances . He concluded :

“ I agree ... that ORG effectively decided the relevant issues between Mr PERSON and the ORG and that this application is an attempt to resurrect them a second time . The ORG is entitled to possession and this application for judicial review fails . ...

As for the generality , whether or not a decision can be challenged as a matter of law does not mean that it is not appropriate for a public authority to be as open as it can be . There is no reason why the ORG ’s policy should not be absolutely explicit , spelling out that the consequence of an application for rehousing will be a requirement to give notice to quit of the existing tenancy which will affect the rights of the remaining tenant or occupier and thereafter providing notice to that person . In that way , clarity will prevail and some of the concerns that have been expressed in this case avoided . ”

Permission to appeal to ORG was refused on DATE .

The applicant was evicted from the house on DATE .

NORP In common law , where a valid notice to quit is given by CARDINAL joint tenant , it has the effect of bringing the joint tenancy to an end , whether or not the other joint tenant knew of or consented to the service of the notice to quit ( GPE and ORG v. PERSON [ DATE ] CARDINAL All ER CARDINAL ) . Once a tenancy has been validly brought to an end , a former tenant remaining in the property is in law a trespasser and the landlord has a right to immediate possession .

By section CARDINAL of LAW DATE , a secure tenant of a local authority or other public authority , such as the applicant , has security of tenure . Under section PERSON ) of the LAW , a court shall not make an order for possession of a dwelling house let under a secure tenancy except on CARDINAL or more of the grounds set out in Schedule CARDINAL to the LAW . LAW ) of Schedule CARDINAL gives a ground of possession where a couple live in a dwelling - house , CARDINAL or both is a tenant , CARDINAL partner has left because of violence or threats of violence by the other , and the court is satisfied that that partner who has left is unlikely to return . Section CARDINAL(CARDINAL ) provides that the court shall not make an order for possession on CARDINAL of these grounds “ unless it considers it reasonable to make an order ” .

According to ORG

( § MONEY ) :

“ CARDINAL . Where a relationship has broken down the tenant who is leaving the property must be asked to sign a relinquishing form . This has the effect of closing the ‘ ORG tenancy .

NORP If the property remains suitable for the family left , [ a new ] tenancy can be granted .

NORP If the property is not suitable ( e.g. too large ) , the tenant should be offered alternative accommodation ... ”

However , where there has been domestic violence , ORG provides ( § CARDINAL.CARDINAL.CARDINAL ) :

“ Domestic violence is included in ORG revised ORG as a breach of the tenancy agreement . Action will be taken [ against those ] who have been found to have subjected another person to domestic violence . This could include perpetrators losing their home or being classed as intentionally homeless . ”

It would be open to a person who has been made homeless following an allegation of domestic violence to challenge the truth of the allegation and claim that he has been made unintentionally homeless and that the local authority has a statutory duty to rehouse him .

GPE of GPE v. PERSON [ DATE ] ORG CARDINAL similarly concerned the making of a possession order in respect of a council house held under a joint tenancy of a husband and wife . The marriage broke down and the joint tenancy came to an end when PERSON served a notice to quit . Mr PERSON was refused a sole tenancy by the local authority , but he nonetheless remained in occupation with his new family , and sought to resist possession proceedings on the ground that they constituted an interference with the right to respect for his home under LAW .

ORG were unanimous in holding that , despite the fact that the tenancy had come to an end , the property continued to be Mr PERSON ’s home and LAW was therefore engaged . However , the majority ( Lords Hope of PERSON , PERSON and ORG ) held that LAW could not be relied upon to defeat the local authority ’s proprietary or contractual rights to possession . Since the local authority had an unqualified right to immediate possession , there was no infringement of PERSON right to respect for his home under LAW and so no issue arose under LAW as to justification . Alternatively , the effect of the authority ’s proprietary or contractual rights was that any assessment under LAW would inevitably be determined in the local authority ’s favour . The majority variously referred to a number of decisions of the Commission in which similar complaints , regarding the eviction of a former joint tenant from localauthority property after the joint tenancy had come to an end , had been declared manifestly ill - founded ( see PERSON GPE , no . CARDINAL/CARDINAL , Commission decision of DATE , Decisions and Reports ( GPE ) CARDINAL , p. CARDINAL ; PERSON v. the GPE , no . CARDINAL/CARDINAL , Commission decision of DATE , PERSON , p. CARDINAL ; NORP v. GPE , no . CARDINAL/CARDINAL , Commission decision of DATE , unreported ; and PERSON v. the GPE , no . CARDINAL/CARDINAL , Commission decision of DATE , unreported ) .

Lord Hope , having held that DATE was applicable , continued :

“ ... [ I]n my opinion it does not follow that , on the facts of this case , there is an issue which must be decided within the domestic legal order by remitting the question whether any interference is permitted by LAW for decision by ORG . ...

I do not say that the right to respect for the home is irrelevant . But I consider that such interference with it as flows from the application of the law which enables the public - authority landlord to exercise its unqualified right to recover possession , following service of a notice to quit which has terminated the tenancy , with a view to making the premises available for letting to others on its housing list , does not violate the essence of the right to respect for the home under LAW . That is a conclusion which can be applied now to all cases of this type generally . ... It follows that the question whether any interference is permitted by LAW does not require , in this case , to be considered by ORG . ”

Lord PERSON similarly held that :

“ ... In my opinion LAW is not ordinarily infringed by enforcing the terms on which the applicant occupies LOC as his home . LAW does not give a right to a home , but only to ‘ respect’ for the home . ”

As regards the balancing exercise envisaged by LAW he stated :

“ ... [ N]o such balancing exercise need be conducted when its outcome is a foregone conclusion . In the present case ... the local authority had an immediate right to possession . The premises were Mr PERSON ’s home , and evicting him would obviously amount to an interference with his enjoyment of the premises as his home . But his right to occupy them as such was circumscribed by the terms of his tenancy and had come to an end . Eviction was plainly necessary to protect the rights of the local authority as landowner . Its obligation to ‘ respect’ for Mr PERSON ’s home was not infringed by its requirement that he vacate the premises at the expiry of the period during which it had agreed that he might occupy them . There was simply no balance to be struck . ... ”

Lord PERSON concurred with ORG and PERSON , although on somewhat different grounds :

“ In my opinion , ORG , having correctly held that Mr PERSON had an LAW , should have held that his rights under LAW could not prevail against the ORG ’s admitted and undoubted right to possession under the ordinary housing law . I would , for my part , have said that LAW was not , in these circumstances , applicable . But it could also be said that a possession order was ‘ in accordance with the law’ and was necessary in order to protect and give effect to the ORG ’s right to possession . ... But it comes to the same thing . Article CARDINAL can not be raised to defeat contractual and proprietary rights to possession . ”

As to the question of remedies in exceptional cases , Lord Hope referred ( in paragraph CARDINAL of the judgment ) to ORG v. Smart [ DATE ] EWCA Civ CARDINAL , where ORG had held , in a case where a non - secure council tenant was evicted following nuisance proceedings , that a challenge under LAW to the local authority ’s decision to serve notice to quit could be made by judicial review within the appropriate time - limits . Lord Hope continued by observing that ORG in Smart had further held :

“ ... that in the rare situation where something wholly exceptional happened after service of the notice to quit which fundamentally altered the rights and wrongs of the proposed eviction the judge in ORG who was hearing the claim for possession might be obliged to address it in deciding whether the making of a possession order could be justified ... I wish to reserve my opinion as to whether it would be open to the tenant , in a wholly exceptional case , to raise these issues in ORG where proceedings for possession were being taken following the service of the notice to quit by the housing authority , bearing in mind as Lord PERSON points out that its decision to serve the notice to quit would be judicially reviewable in ORG so long as the application was made within the relevant time - limit . The situation in the present case is different , as it was a notice to quit served by CARDINAL of the joint tenants that terminated the tenancy . ”

Lord PERSON also stated :

“ In the exceptional case where the applicant believes that the local authority is acting unfairly or from improper or ulterior motives , he can apply to ORG for judicial review . The availability of this remedy , coupled with the fact that an occupier can not be evicted without a court order , so that the court can consider whether the claimant is entitled as of right to possession , is sufficient to supply the necessary and appropriate degree of respect for the applicant ’s home . ”

The dissenting minority ( Lords GPE of NORP and PERSON ) held that , where there was a proposed interference with a person ’s right to respect for his home , the question of justification , if raised , did fall to be considered and should , in the instant case , be remitted to ORG . Both cited with approval the following extract from the judgment of ORG in ORG v. Smart ( cited in paragraph CARDINAL above ) :

“ CARDINAL . ... ‘ Home’ is an autonomous concept for the purpose of ORG [ the Convention ] , and does not depend on any legal status as owner . Thus in these cases , the premises in GPE and GPE were without question the women ’s homes . Since the effect of the possession orders would be to throw them out , I think it inescapable that those orders amounted to an interference with the appellants’ right of respect of their homes . I have said that the case is all about LAW ; more precisely , it is all about LAW .

Before proceeding to the issues arising under LAW , I should make it clear that I entertain what is perhaps a deeper reason for my view that the case can not be concluded by a judgment that there is no violation of LAW . It concerns the relationship between the CARDINAL paragraphs of DATE . I have held that eviction of these appellants would constitute a prima facie violation of their right to respect for their homes . But this conclusion is not simply an instance of that everyday judicial process , the application of a statute ’s correct construction ( here , LAW ) to a particular set of facts . Rather it has a purposive quality . The court has to arrive at a judicial choice between CARDINAL possibilities , a choice which transcends the business of finding out what the legislation ’s words mean . The first choice ... would entail a judgment that the Convention requirement was met at the LAW stage ... The second choice ( accepting a prima facie violation of LAW ) , which I prefer , entails a judgment that the more rigorous and specific standards set out in LAW have to be met if the court is to hold that the evictions are compatible with the appellants’ Convention rights . The LAW is , as it were , much more remotely engaged in the fabric of our domestic law if the first , rather than the second , choice is taken . Part of the court ’s task is to decide how close that engagement should be in the context in hand . Thus I do not eschew the first choice merely because I take the view that the second more naturally reflects the ordinary sense of the words used in LAW . I consider as a matter of substance that the vindication and fulfilment of the Convention rights , for which purpose [ LAW DATE ] was enacted , require that the domestic law procedures involved in these appeals should be subjected to scrutiny for conformity with LAW CARDINAL § CARDINAL standards . Such a process is demanded by the fullness of our municipal law of human rights . ”

Lord PERSON nonetheless emphasised that the administration of public housing under various statutory schemes was properly entrusted to local housing authorities and that the occasions on which a court would be justified in declining a possession order would be highly exceptional . He concluded :

“ If ( contrary to the ruling of the majority of the ORG ) effect were to be given to my opinion , I am confident that the housing authorities acting in good faith in implementation of schemes prescribed by statute and administered by them need apprehend no significant increase in their litigious burden . ”

In PERSON v. GPE of GPE ; ORG v. Price , DATE , [ DATE ] ORG CARDINAL , ORG constituted itself as a CARDINAL - judge committee ( rather than CARDINAL judges as usual ) in order to revisit its decision in PERSON in the light of the ORG ’s judgments in ORG v. GPE ( no . CARDINAL/CARDINAL , § § DATE , CARDINAL DATE ) and GPE v. GPE ( no . CARDINAL , DATE ; the latter judgment was subsequently referred to ORG which found , on DATE , that because domestic remedies had not been exhausted , it was unable to take cognisance of the merits of the case ) . The ORG were unanimous in limiting their consideration to cases were the landlord was a public authority .

The majority ( Lords Hope , ORG of ORG - under - Heywood and ORG of GPE ) held that the judgment in ORG was not incompatible with the view of the majority in PERSON that there was no need for a review of the issues raised by LAW to be conducted by ORG if the case was of a type where the law itself provided the answer , as in that situation a merits review would be a pointless exercise . In such a case , an LAW , if raised , should simply be struck out . However , in the light of the judgments in ORG it was necessary to emphasise that a person evicted might have a defence to possession proceedings in exceptional cases , namely ( a ) where he challenged the domestic law as itself being incompatible with LAW as in ORG ) ; or ( b ) where he challenged the action of the public - authority landlord on public law grounds , on the basis that the authority ’s actions constituted an abuse of power .

The minority ( Lords GPE , PERSON of GPE and ORG ) held that a defendant to possession proceedings brought by public authorities should be permitted in principle to raise an Article CARDINAL defence during the ORG possession proceedings . Lord PERSON expressed it as follows :

“ I do not accept , as the appellants argued , that the public authority must from the outset plead and prove that the possession order sought is justified . That would , in the overwhelming majority of cases , be burdensome and futile . It is enough for the public authority to assert its claim in accordance with domestic property law . If the occupier wishes to raise an LAW to prevent or defer the making of a possession order it is for him to do so and the public authority must rebut the claim if , and to the extent that , it is called upon to do so . In the overwhelming majority of cases this will be in no way burdensome . In rare and exceptional cases it will not be futile . ”


No violation of Art. 3;Preliminary objection rejected (non-exhaustion);No violation of Art. 5

Mr PERSON , a NORP national , was , at the material time , the owner of a shop in GPE . He now lives in GPE .

On DATE a brawl broke out between the applicant and members of his family on CARDINAL side and PERSON and his friends on the other . After the fight each of the protagonists lodged a complaint accusing the other , and on DATE the public prosecutor ’s office charged PERSON and the others with armed assault , attempted murder and offences under LAW . The outcome of these proceedings is not known .

On DATE , at QUANTITY , the police were informed by an anonymous telephone call to Bağlar police station that stones had been thrown against the applicant ’s shop and had smashed the windows . The police arrived on TIME before the applicant , who was not on the LOC , had even been informed DATE noted that the windows had been broken and made out a damage assessment report .

TIME , at TIME , Mr Erdagöz , having been informed of the incident , unsuccessfully requested Deputy Inspector PERSON , of LOC police station , to have the premises searched again before he opened the shop . He also named the persons he suspected of the attack , including PERSON , but decided against lodging a complaint and left the police station .

At TIME on DATE , after consulting the security police , and on their advice , the applicant returned to the police station and handed over CARDINAL spent cartridge cases which he claimed to have found inside his shop . He also lodged a complaint and demanded the arrest of PERSON , who had allegedly organised the attack out of animosity towards the applicant . A police squad conducted a fresh search of the scene of the crime . According to the report drawn up at the time , at TIME , no bullet marks were found .

On DATE , on account of the events of DATE , the ORG public prosecutor committed PERSON for trial in ORG for threatening use of a firearm , criminal damage and an offence under LAW . In a judgment of DATE ORG acquitted him for lack of sufficient evidence . ORG upheld this judgment on CARDINAL DATE .

Shortly after TIME on DATE , as a result of the events of the previous night and on account of the conduct of the applicant , who was suspected of fabricating evidence ( see paragraphs CARDINAL–CARDINAL above ) , Chief Inspector PERSON ordered him to be transferred , together with PERSON , who had been arrested in the meantime , to the security police headquarters . In the covering letter which he sent with the file to the public order branch of the security police , PERSON wrote as follows :

“ In view of the fact that PERSON has frequently lodged ill - founded complaints against the station personnel , that there is animosity between him and [ H.A. ] , that he has previously abused the police and the judicial authorities , that the version of the events put forward by Mr Erdagöz , namely an armed attack , is probably an invention , that he possesses a registered firearm and may well have another unregistered one and that he has already made several contradictory statements , Mr Erdagöz and [ H.A. ] have both been transferred to security police headquarters for detailed questioning .

I therefore request you to check whether these persons are wanted in connection with an offence , to inform the public order branch and our station of the result and to send a copy of the document to the criminal investigation branch . ”

In an order of CARDINAL DATE the chief inspector referred PERSON and the applicant , who was suspected of falsely reporting a criminal offence , to the public prosecutor ’s office .

On DATE , accompanied by summaries of their interviews prepared by Mr Tunç , the applicant and PERSON appeared before the ORG public prosecutor . Mr Erdagöz was released DATE , at a time which has not been specified .

On DATE the applicant lodged a criminal complaint against the chief inspector and Deputy Inspector PERSON with the public prosecutor . He alleged that during the inquiries into the altercation of DATE ( see paragraph CARDINAL above ) the former had abused his authority by drawing up a biased report of the incident . He accused PERSON inflicting ill - treatment on him when he first went to the police station , at TIME , following the events of TIME .

DATE , at the request of the police , Mr Erdagöz had a medical examination at the social security hospital in GPE . The provisional report , drawn up on DATE , mentions the following injuries : superficial grazing on the left side of the back and bruises and swelling below both knees . On DATE a doctor from ORG drew up a new report confirming the findings of the report of DATE .

On DATE the ORG public prosecutor , after conducting an investigation , discontinued the proceedings . He concluded that the allegation of abusing authority was unfounded and decided not to pursue the investigation concerning the chief inspector . With regard to the complaint of ill - treatment , he noted :

“ Following the telephone message to Bağlar police station reporting the fact that on DATE the windows of the shop situated at FAC had been smashed , Deputy Inspector [ PERSON ] sent a police squad to the scene . This squad made out a report at TIME At TIME on the same day the complainant went to the police station to complain of the incident . While his complaints were being taken down he decided not to lodge a formal complaint and left the police station . He returned soon after and asserted that he had found CARDINAL [ bullets ] inside his shop . Thereupon Mr Enver Tunç , the senior officer at the station , ordered the complainant ’s first statement to be altered and sent a squad to the LOC . At TIME on DATE this squad made out a report noting that there were no bullet marks whatsoever in his shop . There being no such marks , the inference was drawn that the complainant had falsely produced the bullets in question for the sole purpose of ensuring that [ H.A. ] , the person he had accused , would be arrested . Chief Inspector PERSON accordingly referred him to the criminal investigation branch for questioning . By an order of CARDINAL DATE the applicant and [ H.A. ] were referred to the public prosecutor ’s office , the former on suspicion of falsely reporting a criminal offence .

Although traces of blows and injuries on Mr PERSON body are mentioned in the medical report of CARDINAL DATE , drawn up DATE after the incident by the social security hospital to which he had been sent by Chief Inspector PERSON , there is no conclusive evidence that the lesions noted in the report were the result of blows inflicted by the deputy inspector ; there is therefore insufficient evidence to prosecute him . ”

On DATE the applicant appealed against the above discontinuation order to the President of ORG , who dismissed the appeal on DATE .

On DATE the applicant petitioned the Minister of ORG to lodge an appeal in the interests of the law . On DATE the Minister of ORG refused .

During the investigation Mr Erdagöz lodged a complaint against the chief inspector and another policeman , PERSON , alleging that they had insulted him and taken him into police custody for TIME even though he was the complainant .

On DATE the ORG public prosecutor made an order discontinuing the proceedings against these CARDINAL officers in the following terms :

“ However , the investigation file ( case no . CARDINAL/CARDINAL ) and the preliminary inquiry conducted in the case show that on DATE ... the complainant went to the police station , where he made an oral statement to the effect that the windows of his shop had been smashed and that he wished to lodge a complaint against the person responsible ; he was then asked to produce evidence or name a witness ; he left the police station and came back TIME bringing CARDINAL [ bullets ] as evidence ; police officers accordingly went to the scene to verify Mr Erdagöz ’s allegations and found that the windows were broken but that there were MONEY which might suggest that they had been smashed by bullets . In the light of the applicant ’s history , he was suspected of falsely reporting a criminal offence and the object of the inquiry was therefore modified and an investigation in CARDINAL branches conducted . However , as the police had not found any pertinent evidence that the offence had been committed , the complainant was referred to the public prosecutor ’s office by an order of CARDINAL DATE . Contrary to his allegations , he was not taken into police custody for TIME but necessarily held for TIME so that the inquiry could be completed . Moreover , there is no evidence to support the allegations of defamation . ”

On DATE the applicant appealed against the above discontinuation order to the President of ORG . He alleged in particular that his detention in police custody had lasted for DATE and had been due to the resentment the police felt towards him on account of his previous complaints to ORG and the domestic courts . On DATE the President of ORG dismissed the appeal and on DATE the Minister of ORG refused a petition in which Mr Erdagöz had asked him to lodge an appeal in the interests of the law .

Article CARDINAL § CARDINAL of the LAW provides :

“ A person deprived of his liberty for whatever reason shall have the right to take proceedings before a judicial authority which shall give a speedy ruling on his case and order his immediate release if it finds that the deprivation of liberty was unlawful . ”

Article CARDINAL § CARDINAL of the Code of Criminal Procedure , in the version in force at the material time , provided :

“ Where the arrested person has not been released , and in order to avoid any unnecessary or unjustified delay , he must be brought before the investigating judge and examined within TIME , not including the time needed to escort him to the investigating judge nearest to the place of his arrest ... ”

The relevant provisions of LAW are the following :

“ An enforcement official , a police officer or any other official responsible for enforcement who performs his duties in an unlawful manner , whether spontaneously or on the orders of a superior , or who ill - treats , assaults or injures a third party while doing so , shall be sentenced to CARDINAL months’ and CARDINAL years’ imprisonment and suspended from duty . ”

“ Anyone who , by word or action , offends the honour , reputation or dignity of an official in his presence and while he is performing his duties shall be punished ... ”

“ Anyone who submits a complaint to a judicial authority or to the holder of a public office who is accountable to that authority or to the holder of another office who is empowered to initiate proceedings or order that proceedings be brought , concerning an offence which he knows has not been committed or who fabricates evidence of such an offence so as to enable criminal proceedings to be opened for the purpose of establishing that offence shall be punished ... ”

“ Anyone who , by reporting an offence or lodging a complaint with a judicial authority or with an official who is required to forward it to that authority or with the authority competent to bring proceedings or have proceedings brought , accuses a person whom he knows to be innocent of an offence , or who fabricates material evidence implicating that person , shall be punished according to the classification and nature of that offence and the importance of the evidence fabricated ... ”

The relevant provisions of PERSON no . CARDINAL of CARDINAL DATE are the following :

“ Compensation shall be paid by the ORG in respect of all damage sustained by persons

( CARDINAL ) who have been arrested , or detained under conditions or in circumstances incompatible with the LAW or statute law ;

( CARDINAL ) who have not been immediately informed of the reasons for their arrest or detention ;

( CARDINAL ) who have not been brought before a judicial officer after being arrested or detained within the time - limit laid down by statute for that purpose ;

( CARDINAL ) who have been deprived of their liberty without a court order after the statutory time - limit for being brought before a judicial officer has expired ;

( CARDINAL ) whose close family have not been immediately informed of their arrest or detention ;

( CARDINAL ) who , after being arrested or detained in accordance with the law , are not subsequently committed for trial ... , or are acquitted or discharged after standing trial ; or

( CARDINAL ) who have been sentenced to a period of imprisonment shorter than the period spent in detention or ordered to pay a pecuniary penalty only ... ”

“ Any person who has sustained damage for the reasons set out in LAW may lodge a claim for damages ... with the assize court having jurisdiction in respect of his place of residence within DATE on which the decision concerning the allegations which form the basis of his claim becomes final . ”


Violation of Art. 6-1 (lack of an oral hearing);Not necessary to examine the further complaint under Art. 6-1

The applicant was born in DATE and lives in GPE .

He is a lawyer practising in GPE and the owner of a parcel of land in the municipality of Königstetten , which is designated as “ forest ” land in the zoning plan . On parts of this parcel – QUANTITY – he runs an organic farm on a part - time basis , breeding sheep and goats . Besides that , he keeps bees and grows herbs .

On DATE the applicant applied to the mayor of Königstetten for a building permit for a shed , to be used as a shelter for sheep and goats in DATE and beehives in DATE . It is also designed as a refuge for farm workers . He therefore submitted construction plans for the planned shed and a map of the land in question .

NORP The mayor rejected the applicant 's request on DATE . Relying on a report by an agricultural expert at ORG , he stated that , in view of its shape , size and design , it would not qualify as a farm building and that even if it was an agricultural construction , it could not be erected on the land in question , as the latter had been designated as forest and grassland .

The applicant lodged an appeal with the municipality of Königstetten on DATE . On DATE the municipality dismissed his appeal on the same grounds .

Subsequently , on DATE , the applicant filed an objection ( PERSON ) with ORG and requested it to hear representatives of ORG ( ORG , PERSON ) and the NORP beekeeper association ( ORG , PERSON ) as experts who would prove that the building he intended to erect was necessary for the intended agricultural enterprise .

ORG quashed the municipality 's decision on DATE and referred the case back to the municipal council . It stated that the municipality had failed to address all the points of appeal .

NORP The applicant lodged further grounds in support of his appeal on DATE , DATE and DATE . In addition to his comments on the decision of DATE , he filed requests for the taking of evidence . He also submitted a statement by ORG and a document he referred to as a business plan .

On DATE the GPE requested the applicant to comment on an expert opinion it had obtained from ORG at ORG ( GPE - bauamt ) on DATE . It stated that by far the largest part of the land was covered by forest , which would impede serious agricultural activities . With reference to the earlier decisions , it repeated that , judging by its design and shape , the building at issue would be untypical of an agricultural shed and that the applicant could be assumed never to have intended to carry on agricultural activities , but rather to use it for different purposes .

The applicant commented on the expert opinion on DATE . Claiming that the authorities had incorrectly established the relevant facts , he contended that the expert opinion was in breach of NORP law and ORG law . Besides that , the applicant repeated his request to obtain opinions from the ORG , the ORG and a certain organic farming association ( Biobauernverband ORG ) in order to prove the feasibility of the business plan and its compliance with the relevant legal criteria . He also filed an application for an on - site inspection of the land at issue .

On DATE the municipal council also rejected the applicant 's appeal . It held that the planned construction would conflict with the zoning plan and that the building would not resemble a shed for agricultural use .

The applicant filed an objection ( PERSON ) with ORG again on DATE , submitting that the municipality had relied solely on an incorrect expert opinion without carrying out investigations of its own . In addition , he claimed that the decision was in breach of ORG law .

Subsequently , on DATE , the applicant lodged a complaint with ORG and requested an oral hearing .

On DATE , without holding an oral hearing , ORG rejected the complaint as inadmissible for non - exhaustion of administrative remedies , as the applicant had failed to file an objection against the decision of DATE .

The applicant 's objection of CARDINAL DATE was dismissed by ORG on DATE .

The applicant lodged a further complaint with ORG on DATE and repeated his request for an oral hearing .

On DATE ORG dismissed the applicant 's complaint and rejected his request for an oral hearing . It found that , despite its request for a detailed business plan , the applicant had failed to provide CARDINAL . Accordingly , the alleged need for a shed for the so - called agricultural enterprise had not been made out .


The applicant , PERSON , is a NORP citizen , born in DATE and living in GPE . The respondent Government are represented by their Agent , PERSON .

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

The applicant served in ORG ( ORG ) and in DATE retired from service . His military pension was assessed according to his rank and DATE of service and was paid from ORG . The payments terminated in DATE , following the dissolution of GPE .

However , on DATE , ORG , ORG ( ORG fond mirovinskog i invalidskog osigurnaja radnika PERSON , Područna služba u GPE ) , assessed the applicant ’s pension , as from DATE , to CARDINAL,CARDINAL % of the amount he had received in DATE .

After the ensuing applicant ’s appeal was dismissed , he instituted proceedings with ORG ( Upravni sud PERSON ) . The applicant claimed that the decisions to decrease his military pension were unlawful and discriminatory and impaired his property rights .

ORG dismissed the applicant ’s claim on DATE . It found that the lower bodies applied the provisions of the laws regulating pension rights of the former ORG officers correctly . They based their decision on the LAW of DATE which provided that the former ORG pensions were to be assessed to PERCENT of what they received in DATE . Furthermore , the applicant ’s property rights were not impaired by the NORP authorities as ORG stopped paying the applicant ’s pension . The NORP authorities accepted the payment of his pension according to the relevant provisions of the Acts regulating that matter . The applicant failed to lodge a constitutional complaint against ORG decision .

Instead , the applicant challenged the constitutionality of the laws enacted in DATE and DATE regulating pension rights of the former ORG officers .

On DATE ORG terminated those proceedings as on DATE ORG had passed a new law concerning that matter - the Former LAW ( Zakon o ostvarivanju prava iz mirovnskog i invalidskog osiguranja pripadnika bivše ORG no . CARDINAL/CARDINAL ) .

In the meantime , on DATE the applicant lodged another constitutional claim challenging the constitutionality of the above CARDINAL Act . He complained that the DATE Act impaired his property rights in that it provided that his military pension be reduced and in that it discriminated against him in so far as pensions of other categories of citizens were not reduced .

On DATE ORG ( Ustavni sud PERSON ) terminated the proceedings concerning the applicant ’s claim as on DATE new legislation was again enacted regulating pension rights of all NORP citizens .

The relevant provisions of the DATE LAW on ORG ( hereinafter the “ DATE LAW ” - Ustavni zakon o PERSON , ORG CARDINAL/CARDINAL ) read as follows :

“ Every person has a right to institute proceedings challenging the constitutionality of the laws ... ”

“ Each person whose rights have been violated by a decision based on the legislation declared unconstitutional or unlawful may ask the body that took the decision to vary it ... ”

“ The Constitutional Court shall terminate proceedings concerning the constitutionality of legislation that has been repealed or brought into line with the LAW and statute law while those proceedings are pending before ORG . ”

“ Every person , who considers that any of his constitutional rights have been violated by a decision of judicial or administrative body or any other body invested with public authority , may lodge a constitutional complaint with ORG . ”

“ By a decision accepting a constitutional complaint the Constitutional Court quashes the contested decision and remits a case for re - trial . ”


No violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-3 - Brought promptly before judge or other officer);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);No violation of Article 6 - Right to a fair trial (Article 6-3 - Rights of defence;Article 6-3-c - Defence through legal assistance);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Violation of Article 13+2 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2 - Right to life;Article 2-1 - Life);No violation of Article 14 - Prohibition of discrimination (Article 14 - Discrimination);No violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

The applicant was born in DATE and lives in Gaziantep . The application concerns the alleged abduction and ill - treatment of ORG , the applicant ’s son , by unknown persons and his death in Diyarbakır E - type prison . At the time of the events giving rise to the application , ORG was DATE . The facts surrounding the detention and death of the applicant ’s son are disputed between the parties .

On DATE at TIME left his house to buy water . CARDINAL plain - clothes persons carrying weapons and radios attempted to abduct him . PERSON tried to run away . However , he was caught behind his house . These persons told him that they were policemen . He was then blindfolded and put in a vehicle . The applicant claims that a neighbour witnessed the abduction . According to this witness , ORG resisted arrest but was dragged into a dark red car . After being driven around for some time ORG was taken to an unknown location .

DATE and DATE , the applicant filed petitions with the public prosecutor ’s office at ORG and the ORG public prosecutor . He requested that the authorities carry out an investigation into the abduction of ORG and that he be informed of his son ’s whereabouts .

DATE and DATE Cemal Uçar was detained by the kidnappers . He was kept blindfolded , deprived of food and was subjected to electric shocks .

On DATE the kidnappers took PERSON to the city stadium in ORG and left him outside . A balaclava was put over his head and he was made to lie on the ground . The kidnappers told him that they would send the police shortly .

On DATE , after having received the applicant ’s petition , the ORG public prosecutor requested the security directorate to examine the allegations . He took statements from the applicant concerning the alleged abduction of ORG .

On DATE the ORG public prosecutor sent letters to the public prosecutor ’s office in PERSON , ORG , ORG and ORG in ORG , requesting these offices to conduct an investigation .

On DATE ORG reported to the ORG public prosecutor that ORG had been taken into police custody on DATE by police officers from ORG and that on DATE his detention on remand had been ordered after he had been brought before the public prosecutor at ORG .

On DATE the deputy chief of police in GPE notified the ORG public prosecutor that on DATE ORG had committed suicide in GPE - type prison .

On DATE the ORG public prosecutor issued a decision not to prosecute in respect of the applicant ’s allegations .

On DATE , at TIME , within TIME after the kidnappers had left , police arrived at the stadium and arrested PERSON . The police officers found a forged identity card in Cemal Uçar ’s pocket . It had been placed there by his kidnappers . He was then taken to ORG and examined by a doctor who noted that there were several injuries on various parts of his body .

On DATE Cemal Uçar was forced by the police to sign a statement , according to which he had been responsible for the organisation of ORG activities in GPE .

On DATE PERSON , along with CARDINAL other persons , was taken to a medical expert who noted that none of the QUANTITY persons had sustained any injuries .

On DATE , ORG made statements before the public prosecutor at ORG and denied the truth of the statements taken from him on DATE by the police . Subsequently , he was taken to ORG before which he repeated the statements that he had made to the public prosecutor . The court ordered his detention on remand .

On DATE , at TIME , in the course of a routine police check , ORG was seen sitting in front of the city stadium . As he appeared suspicious , the police officers asked him to show them his identity card . A forged identity card was seized and Cemal Uçar was taken into custody .

On DATE the public prosecutor at ORG extended Cemal Uçar ’s custody period for DATE . On DATE the period was extended for a further DATE by ORG .

In his statement to the police dated DATE , ORG acknowledged his involvement in ORG activities in GPE .

On DATE ORG ordered his detention on remand . Cemal Uçar was then transferred to ORG prison .

After being transferred to ORG E - type prison , the applicant was placed in a cell where he remained for DATE .

On DATE Cemal Uçar died in Diyarbakır E - type prison .

In a letter dated DATE , the applicant ’s representatives informed the ORG that the applicant believed that police officers had killed his son . In their submissions of DATE , the representatives claimed that ORG could have been killed by other inmates of the ward where ORG had been detained .

On DATE during the regular morning inspection , at TIME , ORG was discovered by prison officers hanging from a bunk bed by a belt in ward no . CARDINAL in Diyarbakır E - type prison . The prison officers called the prison doctor who established that ORG was dead . They drafted a report immediately after the incident which stated that ORG had been hung by a belt . They then informed the prison director and his deputy .

On DATE , at TIME , the public prosecutor , the prison director , his deputy and CARDINAL prison officer prepared a further report describing the ward in which the applicant ’s son had died .

At TIME a further report was drafted by technical police officers from ORG .

Subsequently , an autopsy was carried out on the deceased . According to the autopsy report , no indication of ill - treatment , such as scars or bruises , was identified on the corpse . The report revealed that the cause of death was mechanical asphyxia resulting from suspension .

On DATE , statements were taken from the CARDINAL prison officers who had found the body of ORG and from the CARDINAL other inmates of the ward in which ORG had been found dead .

On DATE the ORG public prosecutor issued a decision not to prosecute , finding that ORG had committed suicide and that there was no offence to prosecute .

On DATE , the public prosecutor at ORG issued an additional decision not to prosecute in respect of the charges against ORG , given the latter ’s demise .

The parties submitted various documents with a view to substantiating their claims . These documents , in so far as they are relevant , may be summarised as follows .

The following information is disclosed in the documents submitted by the Government .

The applicant maintained before the ORG public prosecutor that his son had been abducted , that he did not know whether the persons who had abducted his son had been police officers and that he feared for his son ’s life .

The ORG public prosecutor informed the security directorate of the alleged abduction of ORG and requested that an investigation be conducted into his disappearance .

On DATE the ORG public prosecutor sent letters to the public prosecutor ’s office in PERSON , ORG , ORG and ORG in ORG , requesting these offices to conduct an investigation and transmit certain information regarding ORG .

On DATE ORG reported to the ORG public prosecutor that ORG had been taken into police custody on DATE by police officers from ORG , and that on DATE his detention on remand had been ordered after he had been brought before the public prosecutor at ORG .

By a further letter dated DATE , the deputy chief of police in GPE notified the ORG public prosecutor that on DATE ORG had committed suicide in ORG prison .

On DATE the ORG public prosecutor issued a decision not to prosecute in respect of the applicant ’s allegations , finding that ORG had been taken into police custody and , consequently , no offence had been committed or offender sought . On DATE the decision of DATE was served on the applicant .

On DATE , following his arrest , ORG was taken to ORG and examined by a doctor who noted the following :

“ An abrasion on the nose , scars on the right wrist , right hand and left foot , an oedema on the right foot and injuries to various parts of the body have been identified ... ”

On DATE PERSON , along with CARDINAL other persons , was taken to a medical expert in a health clinic in ORG who noted that none of the QUANTITY persons had sustained any injuries .

On DATE Cemal Uçar requested to be placed in the same prison ward as the other persons who were charged with membership of the ORG .

According to CARDINAL reports drawn up by prison officers , on DATE , during the regular morning inspection at QUANTITY , ORG was discovered by prison officers hanging from a bunk bed by means of a belt . The prison officers called the prison doctor who established that ORG was dead . They then informed the prison director and his deputy .

On DATE , at TIME , the public prosecutor , the prison director , his deputy and a prison officer prepared a further report describing the ward in which the applicant ’s son had died . According to this second report , there were CARDINAL bunk beds in the CARDINAL m² ward where ORG was kept . CARDINAL of these CARDINAL beds was turned upright so that it could be used as a wardrobe . The deceased was hanging from the upright bunk bed by a blue belt . There were CARDINAL pillows , a bottle of water and CARDINAL glasses placed under his feet . There was no sign of a struggle in the ward , such as broken objects or traces of blood .

At TIME a report was drafted by technical police officers from ORG . They established that ORG had committed suicide by hanging himself from a bunk bed , positioned vertically , by means of a black belt . They took photographs of the scene of the incident , drew a plan and filmed the ward with a video camera .

An autopsy was carried out on the deceased at ORG by PERSON , the director of ORG . According to the examination of the body and autopsy report , no indication of ill - treatment , such as scars or bruises , was identified on the corpse . At the end of the examination , PERSON concluded that the cause of death was mechanical asphyxia resulting from suspension .

According to the documents submitted to the ORG , the prison officers testified that ORG had taken breakfast at TIME and that at TIME they had found him dead during the inspection of the ward . CARDINAL of the officers stated that the other inmates were asleep when they arrived at the scene of incident . The officers stated that they then informed the prison authorities . The CARDINAL inmates stated that they had been woken up at TIME by a noise in the ward and had found that ORG had hung himself and that prison officers had been in the ward . They both testified that ORG had been depressed and had talked about killing himself prior to his death . They affirmed that ORG had talked about his previous suicide attempts during his detention in police custody .

On DATE , the public prosecutor at ORG issued an additional non - prosecution decision in respect of the charges against ORG , given the latter’ demise .

The following information appears from documents submitted by the applicant .

In his petition dated DATE addressed to the public prosecutor at ORG , the applicant submitted that his son had been arrested by persons claiming to be police officers . He requested the authorities to inform him whether his son had been taken into police custody . On DATE , after having been notified that ORG had not been taken into police custody , the applicant lodged a further petition with the public prosecutor ’s office in ORG , requesting the authorities to ascertain the whereabouts of his son .

In his second petition dated DATE , addressed to the ORG public prosecutor , the applicant repeated his allegation concerning his son ’s abduction . The applicant further stated that CARDINAL plain - clothes police officers had gone to his son ’s house DATE after the abduction and that , on DATE , a plain - clothes police officer had gone to his house , searching for his son . The applicant contended that he had been unable to obtain information about his son from ORG . He requested the public prosecutor ’s office to ascertain his son ’s whereabouts .

In his letter , Mr PERSON informed the Minister of the Interior of the disappearance of ORG and requested that an investigation be conducted .

NORP In his statements to the public prosecutor , ORG claimed that he had been kidnapped and taken somewhere close to the ORG prison . There he had been tortured by the kidnappers , who said they were working for PERSON , an individual also known as “ NORP ” , who carried out unlawful acts in the south - east in DATE and whose activities were allegedly known to the police and the NORP intelligence service . He denied the truth of the statements taken from him by the police . He maintained that he had been forced to sign them .

In his statements before ORG , ORG repeated the statements that he had made to the public prosecutor .

According to the report drafted at TIME on DATE about the search conducted in ORG house , the house was searched in the course of a police operation carried out against the ORG and CARDINAL books were found . This report was signed by QUANTITY police officers and ORG .

Mr İ. Sağlam stated that ORG sent a letter to his family , informing them that he had been taken into police custody and , subsequently , detained in ORG - type prison . After having received the letter , the applicant went to the prison and saw his son . Subsequently , he asked Mr PERSON to visit his son . On an unspecified date , Mr PERSON visited PERSON , who maintained that he had been kidnapped by security forces and that he had made statements before the public prosecutor about his abduction . ORG refrained from informing the public prosecutor about the place where had been kept for DATE as he feared for himself and his family . Mr PERSON further stated that he did not have the impression that ORG was disturbed psychologically . However , he had feared the possibility of being taken to the security directorate again .

CARDINAL reports were prepared on behalf of the applicant by Dr A.M. Anscombe , a consultant forensic pathologist practising in GPE . The applicant instructed Mr NORP to review the autopsy report on ORG , the police reports on the inspection and verification of the scene of the incident , the plan of the ward , the video and photocopies of photographs of the scene , with the deceased in situ , and to comment on the adequacy of the autopsy examination .

In his reports PERSON maintained that his main criticism was the absence of autopsy photographs . He stated that autopsy photographs were a standard part of any forensic post - mortem examination since without photographs , one was reliant upon the description by the pathologist and there was no other means of corroborating what the pathologist had found or described . He further maintained that the autopsy report would be considered to be inadequate in GPE because of its brevity and lack of detail . As regards the cause of death of PERSON , Dr PERSON stated that there was nothing in the disposition of the body , the manner of dress , and disposition of the scene which raised suspicion of anything other than suicide . He however opined that it was possible that the deceased could have been suspended by another person or persons , the assessment of which likelihood in turn rested on the accuracy and reliability of the autopsy report . He concluded that that was why an adequate autopsy description with documentation , including photographs , was so important .

At the time of the events , NORP law did not contain any provision regulating communications between persons held in custody and their relatives .

On DATE the third paragraph of LAW was amended by PERSON no . CARDINAL and currently reads as follows :

“ When a person is arrested , following the public prosecutor ’s decision , a family member or another person designated by the arrested person shall be promptly informed of the arrest or the prolongation of the custody period . ”

A description of the other relevant domestic law at the material time may be found in the judgments of NORP v. GPE ( no . CARDINAL/CARDINAL , § § CARDINAL , DATE ) , and GPE v. GPE ( no . CARDINAL/CARDINAL , § § CARDINAL and CARDINAL , DATE ) .