Preliminary objection rejected (non-exhaustion);Preliminary objection rejected (estoppel);Violation of Art. 2;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant is a NORP national born in DATE and she lives in ORG , a district in the province of PERSON , where a state of emergency is in force . She lost her son during an operation by the security forces , which is described below .

On DATE the security forces carried out an armed operation at a site belonging to a mining company QUANTITY from the village of GPE . The applicant ’s son , PERSON , who worked at the mine as a TIME , was killed at TIME as he was about to come off duty .

According to the Government , the scene of the incident had been used as a shelter by CARDINAL terrorists who were members of the ORG ( Workers’ ORG ) , including the applicant ’s son . PERSON had been hit by bullets from warning shots fired by the security forces .

According to the applicant , her son had merely been CARDINAL of the guards at the mining company ’s site and he had been shot dead by the security forces without warning .

On DATE of PERSON death his employer , PERSON , reported the incident to the Şırnak public prosecutor . He stated that his employee had been shot by the security forces and the village guards , whose identity he did not know .

On DATE the public prosecutor ’s office issued a decision in which it recorded the following :

“ On DATE of the incident an operation was conducted by the security forces and the village guards , acting on information that an injured terrorist belonging to the ORG had taken refuge and was being cared for in a shelter near PERSON mine . When , during the operation , the victim , PERSON , CARDINAL of the watchmen at the mine who guarded the mechanical shovels and bulldozers at the site belonging to PERSON , left the shelter and the other watchmen and squatted in order to defecate , the security forces gained the impression that the suspect was escaping and they opened fire and killed him . The public prosecutor carried out an investigation and gathered the initial evidence . ”

The prosecutor ’s office pointed out that the actions of the security forces under the orders of the governor of a region in which the state of emergency was in force were subject to the rules governing prosecutions of civil servants and accordingly declared that it had no jurisdiction , and , by a letter of CARDINAL DATE , forwarded the file to ORG .

On DATE ORG delivered its decision , which was signed by the deputy governor and the directors of the various government departments of the province but not served on the applicant ’s lawyer . ORG concluded that no proceedings should be brought in the criminal courts against the civil servants of the security forces which had taken part in the operation on DATE . In its view , the victim , who was regarded as a suspect , had died after warning shots had been fired during the operation in question . Neither the evidence in the file nor taking statements from witnesses would make it possible , however , to identify with any certainty the person who had fired .

On DATE ORG , to which the case had automatically been referred by the operation of law , upheld the decision of CARDINAL DATE in the following terms :

“ Offences committed by civil servants acting in the course of their duties or in their official capacity are subject to the procedures governing prosecutions of civil servants … , an administrative investigating officer responsible for conducting the investigation is appointed by means of an order …

In order that an investigation may be conducted in respect of a civil servant , the civil servant concerned must first of all be accurately identified . Failing any accurate identification , no investigation can be carried out , no investigation report can be drawn up and no court with competence in the matter may give judgment .

The information in the investigation file has not made it possible to determine who committed the alleged offence ; consequently , that investigation should not have been commenced . However , an investigation file was compiled by the appointed investigating officer and , on the basis of that file , ORG decided that there was no case to answer , on the ground that the persons responsible were unknown and that it was impossible to investigate the case . ORG decides unanimously , for the aforementioned reasons , to uphold the decision of ORG and to send the case back . ”

In a letter of DATE the applicant ’s lawyer enquired of the chairman of ORG about the progress of the proceedings , since during the administrative investigation the file had been inaccessible to the victim ’s close relatives and they had had no means of learning what was in it . On DATE the Şırnak provincial governor ’s office sent him a copy of the decision of CARDINAL DATE that there was no case to answer . ORG judgment was served on him on DATE .

Those appearing before the ORG submitted various documents concerning the investigation following PERSON death .

PERSON employer alleged that the victim had been shot dead by the security forces and the village guards , whose identity , however , he did not know . He did not know the reasons for the murder but surmised that it might have been carried out by persons whose interests might have been affected by the mine he owned , where the victim worked as a TIME .

This document contains a detailed description of the incident of DATE by CARDINAL members of the infantry squad and their lieutenant , PERSON , all of whom took part in the operation . The events as they describe them took place as follows :

“ On DATE , following a report to the effect that a terrorist wounded during a clash with the security forces had taken refuge in a shelter on a hill QUANTITY from the village of GPE , CARDINAL infantry squads … went to the scene of the incident . At TIME the area was placed under the control of the soldiers , who began to observe the shelter using infra - red sights . When movements were noted in this area at TIME , we approached the shelter under cover of heavy snowfall and fog . As we approached the shelter , we shouted to those inside that they were surrounded , that escape was impossible and that they should come out of the shelter within TIME , leaving their weapons behind them . As nothing had happened after TIME , we fired warning shots into the air . Someone came out of the shelter shooting and began to move away . After warnings which were ignored we fired , but the person we had glimpsed disappeared ... We waited until day broke and pinpointed the shelter ... We again told them to come out and QUANTITY people emerged from the shelter . We told them to approach and we questioned them . We then went into the shelter , where we found CARDINAL shotguns , food and medicines . ... outside , QUANTITY from the shelter , we found a wounded man , but he died while we were taking him to a safer place . We discovered TIME CARDINAL , QUANTITY and QUANTITY away from the shelter . We found shotgun cartridges , CARDINAL of which smelt of smoke , as did CARDINAL of the shotguns . When we searched the surrounding area , we found several footprints , but we were not able to follow them as they were covered by the falling snow . We concluded that the footprints probably belonged to the wounded terrorist and the accomplices who had come to his aid ... We inspected the medicines , namely hydrogen peroxide , ... , CARDINAL cloths , ... and some penicillin powder . The incident was immediately reported to the brigade , we awaited the arrival of the inspection team , we made the sketch and this report was drawn up by those whose signatures appear below . ”

This document contains a detailed sketch of the topography of the scene of the incident and the positions of the actors in it . It shows that the security forces and village guards split into CARDINAL groups , one to the left of the shelter , CARDINAL to its right and CARDINAL in front of it . These fired several shots in the direction of the shelter and behind it . Some shots were fired from the shelter towards the group of armed forces on the left of the shelter .

The Şırnak public prosecutor reported the facts as follows :

“ Having been informed TIME at TIME that there had been a confrontation with the security forces near PERSON coal mine at PERSON , that a person had been wounded and had subsequently died after the confrontation and that the body was at the scene of the incident , we – PERSON , public prosecutor , PERSON , pathologist , PERSON , court registrar , and PERSON , the pathologist ’s assistant – decided to go to the scene at TIME ... We found the body , covered with a blanket , at a hidden spot on a hill at PERSON coal mine .

... The post - mortem carried out on the undressed body revealed that rigor mortis had not yet set in , that the body was partly cold , that the stains and marks had not yet turned bluish , that the bullet had entered the back of the skull CARDINAL finger - breadths from the nape of the neck , making a hole QUANTITY in diameter , that it had exited from the upper part of the forehead at the hairline , shattering the bone and making an irregular QUANTITY hole . Bleeding was found where the bullet had entered and exited , the face was covered in blood , and there was white brain tissue where the bullet had exited ...

The pathologist , PERSON , stated : ‘ The wound due to the bullet which entered the occipital part of the cranium and exited through the frontal part caused the destruction of the brain and was therefore the cause of death . Since the gunshot wound was the certain cause of death and no other finding was made that could suggest any other cause , it was not considered necessary to carry out a full post - mortem.’

As PERSON death , which occurred TIME in the course of an armed operation by the security forces in the region , was caused by a gunshot wound , as was recorded by the pathologist who examined the body , it is unnecessary to carry out a full post - mortem . The body has been released to the family ...

A reconstruction of the events was carried out at the scene of the incident in the presence of the eyewitnesses , in order to determine the circumstances of the incident .

ORG Officer PERSON , acting as commander of Şırnak central gendarmerie station , was appointed as the technical expert ...

The scene of the incident was identified and checked .

CARDINAL of the witnesses , PERSON , who was questioned by a gendarmerie officer , stated :

‘ This morning , at TIME , at the spot where we are standing at the moment , there were CARDINAL of us watchmen employed by the ORG mining company to guard the company ’s bulldozers and mechanical shovels . A bulldozer had been set on fire once before . After that incident , in order to keep watch on the plant , we kept guard in this shelter that we had built and in the dugouts around it . CARDINAL of us were responsible for keeping watch here during TIME . TIME , dawn had broken . We were in this shelter near the vehicles . We got up and said our prayers . The victim , PERSON , had heard partridges up there and said he was going to go shooting . I told him not to go shooting , and in the end he did not go out . TIME , he crossed the threshold of the door and went towards that hill that I have already shown you . An instant later we heard shots . Shots ringing out from everywhere . I wanted to fire my shotgun but my mate stopped me . Then I saw the soldiers and shouted out to them to stop firing . When the firing stopped , we went outside . I heard PERSON , he was wounded . As he was wounded , we removed him from the spot where he lay , which I have shown you , and carried him away . But he died in the process , so we put the body down.’

Another witness , PERSON , who was questioned by a gendarmerie officer , stated :

ORG ‘ Like my CARDINAL mates , I was responsible for guarding the vehicles belonging to the ORG mining company at the spot I have shown you . In order to guard the vehicles , we keep watch during TIME in this shelter I built and in the dugouts we made near it . When we got up TIME , the victim , PERSON , who is a relative of mine , said he had heard partridges and was going to go shooting . We stopped him from doing so . Then he did go out – I do n’t know what for . Perhaps to relieve himself . A moment later we heard shots coming from different directions . It was snowy and a bit misty . PERSON was only just breaking . We did not go outside because of the firing . We tried to see what was going on outside through a door on the other side . As it became light , I could see that there were soldiers outside . While we were watching , we saw a soldier in the distance . We called out to him , telling him who we were . The soldiers asked us to come out of the shelter . We started walking to where they had told us to go . I heard PERSON calling “ PERSON ! ” We could not go to him immediately . We could not go and see him until the soldiers came up . He was wounded and could not speak . We took him from the place I showed you up to there for him to be treated . But as he did not survive the distance , we put him down where he had died . We did not fire any shots . As for PERSON , he was unarmed when he went out . In order to guard the vehicles , we keep watch at TIME in the dugouts nearby . The spent cartridges in the first dugout are DATE . When we shoot , we do not leave spent cartridges in the dugouts . None of us fired a shot today.’

ORG ‘ I worked as a watchman with my mates . TIME , PERSON went out to relieve himself . He was unarmed . A second later we heard shots . PERSON called out “ PERSON ! ” We did not go outside because of the firing . We looked out and saw soldiers . Then we called out to say who we were . At the time of the incident it was snowing and it was also foggy . Later , CARDINAL of my mates and I left the shelter and walked towards the soldiers . Then we learned that PERSON had been shot and wounded and we went to him . He was wounded and could not speak . We could hear him breathing . In order to get him to a doctor , we lifted him and carried him . While we were carrying him , he stopped breathing and we realised that he was dead . We left him where he had died . None of us fired a ORG

An inspection of the scene of the incident was carried out in the presence of the witnesses and the technical expert . We made the following findings at the scene : PERSON mining operation was spread over a large area ; there were CARDINAL mechanical shovels and bulldozers QUANTITY from the shelter ; the shelter , which was made of stone and built right into the mountainside , was a covered , concealed shelter which blended in with the landscape , and inside there were things belonging to the watchmen and a stove . We inspected the spot where , according to the witnesses , the dead man was wounded and the spot from which the shot might have been fired . We combed likely areas , looking for spent cartridges but not finding any . We examined the spot where the dead man was originally wounded . We walked QUANTITY paces down the hill . In the area referred to , we noted the presence of large quantities of blood and found a red turban ( worn rolled round the head ) , which we presumed to be the dead man ’s . There were CARDINAL holes in the turban where the bullet had entered and exited . We took the turban away and mentioned it in the report . We examined CARDINAL separate dugouts near the shelter , which we were told were the watchmen ’s . In the dugouts we found CARDINAL spent shotgun cartridges . The cartridges were taken away and mentioned in the report . The technical expert ... stated : ‘ I inspected the scene of the incident and listened to what the witnesses had to say ; I recorded the locations of the shelter , the vehicles , the wounded man and the dugouts individually on simple sketches ; I examined the spent cartridges and photographed the scene of the incident from various angles . I will hand these sketches and photographs over to you when the latter have been developed . When I examined the spent cartridges , I found that they were not recent but must have been DATE . When I examined the watchmen ’s shotguns , which had been given into my care and CARDINAL of which were PERSON , I found and smelt powder on them . However , it is impossible to say whether it was fresh powder or not . There was no powder on the other CARDINAL shotguns , nor did they smell of fresh powder.’ The CARDINAL shotguns found in the shelter were recorded and taken for examination ... ’

The medical expert was questioned about the medical supplies shown to him . He stated that they were used to treat grazes and wounds ...

The witnesses were then questioned about the medical supplies . PERSON volunteered the following information : ‘ DATE I fell here during TIME and injured my finger . I had these things bought to treat my finger . They belong to me . As the injury to my finger was slight , I treated it myself.’ He then showed us his injury . We noted a slight injury to the upper part of the third finger of his left hand . The pathologist , a medical expert , examined the wound and stated : ‘ My observations allow me to conclude that the scratch on the witness ’s hand is an old wound which became slightly infected and which has obviously been treated.’

Following the questioning of the eyewitnesses and the inspection of the scene of the incident , the technical expert was given DATE to develop his photographs and put his sketches into their final form . As there were no other verifications to be made at the scene , we decided to terminate the investigation . We decided to return to the office and then signed this report together , at TIME on CARDINAL . ”

DATE , the public prosecutor interviewed PERSON concerning his statement implicating the security forces and the village guards ( see paragraph CARDINAL above ) .

This document lists “ the objects found at or near the spot where the victim died ” : CARDINAL shotgun cartridges and a turban ( kefi ) “ with a red and white pattern , in which there were CARDINAL holes where a bullet had entered and exited ” .

PERSON , a gendarmerie warrant officer acting as commander of Şırnak central gendarmerie station and appointed as technical expert by the public prosecutor during his inspection of the scene of the incident , established the facts as follows :

“ I examined the wound which had caused the death of PERSON , who was fatally wounded in an armed confrontation between the security forces and members of the NORP terrorist movement at PERSON coal mine ... when the security forces went to the scene to check the accuracy of information they had received . I recorded the place in which he had been sheltering and the surrounding area in sketches , both of individual details and of the general scene .

When the public prosecutor , PERSON , went to inspect the scene of the incident , I made sketches to record the location of evidence found at the scene , traces of blood and the victim ’s possessions and noted all other discoveries . During these inspections of the scene I noted , inter alia :

At TIME on DATE of the confrontation , DATE , it was misty and was snowing heavily and visibility was QUANTITY in places .

The confrontation occurred at a spot where watchmen employed to guard the machinery belonging to the ORG mine were working . The place , which was built into the hillside on CARDINAL sides and had stone walls on the other CARDINAL , like a hideout , was difficult to appraise and surround owing to the bad weather . During an exchange of fire between the security forces and members of the NORP terrorist movement who were firing from the shelter and seeking to escape , PERSON was wounded in the head there , fell to the ground and rolled TIME . After a warning had been given , the other persons in the shelter came out unarmed and gave themselves up .

At different places near the shelter , and at different distances from it , CARDINAL dugouts had been constructed in which there were spent shotgun cartridges .

The spent cartridges were CARDINAL . An examination of the guns found in the shelter suggested that they had been used .

PERSON was wounded and died when caught in crossfire , the security forces responding to fire from the shelter in bad weather which appreciably reduced visibility .

The security forces had approached the scene of the incident and examined the dugouts in which the shotgun cartridges were found . They noted that these dugouts were identical to those used by ORG members to take refuge and hide arms .

The manner in which the shelter had been built gave [ the security forces ] the impression that it was a hideout ; it was misty and was snowing heavily and there were dugouts scattered across the landscape ; in such a situation a shot DATE even from a shotgun – could very easily mislead the security forces and it must be pointed out that the security forces had no means of distinguishing between the shots fired by the persons in the shelter and those fired by the ORG members .

Regard being had to the statements made by both sides at the time of the incident , the conclusion is that the victim , PERSON , died as a result of a head wound , that he was not killed intentionally but was caught in crossfire ; that is the conclusion I have reached for the purposes of this expert report . ”

This schedule lists the documents available to the public prosecutor , PERSON , when he was drafting the decision of DATE ( see paragraph CARDINAL above ) . Essentially , it comprises the report of the inspection of the scene of the incident and the autopsy performed on PERSON , a record of medical supplies seized as evidence on DATE , the statements made by PERSON , PERSON and PERSON on DATE and a record of the objects found near PERSON body on DATE and seized as evidence .

On DATE the Şırnak central gendarmerie headquarters sent the incident report and the “ sketch ” ( see paragraphs CARDINAL and DATE above ) to the Şırnak public prosecutor ’s office , for information .

On DATE the governor of Şırnak province wrote to PERSON , a gendarmerie lieutenant - colonel , instructing him to carry out , as investigating officer , the preliminary investigation into the events of DATE and sending him the case file . On CARDINAL DATE the governor sent him further documents . On DATE the deputy governor wrote to Lt .- Col . GPE asking him to expedite the matter . On DATE the investigating officer took evidence from the witnesses PERSON and PERSON . PERSON statement , made through an interpreter , was recorded as follows :

“ I and my friends were the watchmen at the ORG mine . On TIME of the incident PERSON went out to relieve himself . I was awake . So I saw him go out . He said he was going out to relieve himself . TIME we heard shots . We were scared and did not go out of the shelter straight away . Looking outside , we saw the soldiers . We called out and said who we were . It was foggy and it was snowing . We left the shelter and went up to the soldiers . They told us that PERSON was wounded . He was lying on the ground . He could not speak . He was breathing slowly . We immediately set off to find the doctor but PERSON died on the way . The prosecutor and the pathologist examined him afterwards . None of us fired a shot during the incident . ”

In his statement PERSON said :

“ ... On DATE of the incident PERSON , PERSON ( the deceased ) , PERSON and I were on the mine LOC to guard the machinery . We slept in a shelter and at night we kept watch in the trenches around the site . We woke up at TIME PERSON , who is a relative of mine , said that he had heard a partridge and that he wanted to take a look outside . We told him not to . He went out , saying that he was going to relieve himself . Just after that we heard shots . It was raining and it was foggy . We did not go out straight away . As it was light , I thought it might be soldiers . Looking outside , I saw a soldier . We called out and said who we were . The soldiers told us to come out of the shelter . We came out and walked towards the soldiers . It was then that we heard PERSON voice . He was calling ‘ Uncle’ . We did n’t go to him straight away . The soldiers came up to us and we all went to see him together . He was wounded . He could not speak . We tried to carry him to a hospital but he died . We left him at the scene . None of us fired a shot during the incident . PERSON was unarmed when he went out . Our job is to spend TIME the trenches and guard the machinery . The cartridges found in the first trench had been there for DATE . We always leave spent cartridges where they fall . ”

In his report the investigating officer records the facts as follows :

“ In the course of carrying out an operation in the region where the incident occurred , the internal security forces noticed a person behaving suspiciously and fired warning shots in his direction .

Witness statements :

( a ) PERSON : I was in the shelter . I came out when the shooting stopped . I saw that PERSON had been hit . He died shortly afterwards . I do not know who fired .

( b ) PERSON : I did not see who shot PERSON . The soldiers were at the scene of the incident . I do not know them . I did not see who fired .

It is not known who shot PERSON or how he shot him .

I propose that no ( criminal ) proceedings should be brought , seeing that it is not known who shot PERSON or how he shot him . ”

This schedule lists the documents available to ORG when it was drawing up its decision of CARDINAL DATE that there was no case to answer ( see paragraph CARDINAL above ) . Essentially , it comprises – apart from the public prosecutor ’s decision of CARDINAL DATE that he had no jurisdiction and the documents in his office ’s case file ( see paragraph CARDINAL above ) – the “ sketch ” ( see paragraph CARDINAL above ) , the incident report of DATE ( see paragraph CARDINAL above ) and the expert report of DATE ( see paragraph CARDINAL above ) .

On CARDINAL , CARDINAL and DATE CARDINAL delegates of the Commission took the following statements in GPE .

In DATE this witness ( born in DATE ) was the public prosecutor in PERSON .

On TIME DATE he went to the scene of the incident with a doctor and other officials . He found that PERSON had been hit by a bullet which had entered his body at the back of his neck and exited through his forehead . There were no cartridges or cartridge cases near the body .

He questioned PERSON employer , PERSON , and the other mine watchmen . The watchmen said that they had not used their guns .

His account of the events was as follows . The weather had been bad ( fog and falling snow ) and the terrain was hilly , so that it had been difficult to see the shelter where the victim was . An informer had told the security forces that there were ORG members in the area . An armed squad of CARDINAL to CARDINAL men had gone to the spot to arrest them . After the usual warnings had been given , someone had come out of the shelter and run away while warning shots were being fired ; then the incident had occurred . The security forces must have been below the shelter , QUANTITY away from the victim . The security forces had not surrounded the shelter . The incident had occurred while they were moving towards the shelter .

According to the witness , there were shotguns and spent shotgun cartridges at the scene ; some of the spent cartridges were recent but he had not been able to establish with certainty whether they had been fired DATE or earlier . No forensic examination of the guns had been requested .

The witness had not taken down the identities of the members of the security forces which had conducted the operation , nor had he taken evidence from them ; he maintained that since they were civil servants , ORG alone had power to do so . He had not been notified of ORG decision .

This witness ( born in DATE ) was the owner of the mine where the incidents took place . He stated that he knew PERSON .

On DATE he went to the scene of the incident and was questioned by the public prosecutor . He said that he stood by the terms of the statement he had made at that time .

He stated that the security forces had been acting on a tip - off from an informer . He asserted that in his statement he had given the names of the persons who had told the security forces that ORG terrorists were using the shelter . He said that those persons had been motivated by a desire for personal revenge on his own family . The idea was to pursue a feud going back DATE by misleading the security forces .

According to the witness , none of the mine watchmen had a gun except PERSON , his nephew , who had a shotgun . His nephew had not fired any shots , however .

At the material time this witness ( born in DATE ) was doing his national service and was a sergeant in the infantry . He had been serving in the Şırnak region for DATE . As a member of the squad which carried out the operation , he was an eyewitness and one of the QUANTITY people who signed the incident report of DATE ( see paragraph CARDINAL above ) .

He stated that after being tipped off that there were terrorists in the area round the village of PERSON , his squad of CARDINAL or CARDINAL men had taken up position round the shelter during TIME . The squad had split into CARDINAL as a precaution . Owing to the weather ( snow ) and the darkness , the only thing they had been able to see was a light about QUANTITY ahead of them . They did not know that they were on a mining site . They had been fired on for TIME . He had not been able to tell where the shots came from . He remembered that they came under fire from PERSON and shotguns .

The squad commander , PERSON , an infantry lieutenant , had ordered his men to fire warning shots in response , and the whole squad had done so . CARDINAL series of warning shots had been fired . No verbal warning by loud hailer had been given . They had thought they were up against terrorists .

When day broke , the witness , his lieutenant and CARDINAL other members of the squad had approached the shelter . They had then seen the presumed terrorist lying dead on the ground . The body was QUANTITY away from the shelter . There was no gun beside it . They had then enquired by radio if anyone had shot at this man and were told that no one had . In the shelter , they had found CARDINAL shotguns , a large number of cartridges from those guns , medical supplies ( dressings and bandages ) and provisions ( rice , sugar and flour ) . The witness emphasised that there had been a large quantity of these supplies and foodstuffs ( enough to last a family for DATE ) , as was the case in ORG militants’ hideouts in the LOC .

According to the witness , no member of the squad could have shot the victim . In support of that assertion he cited the distance between the squad members and the victim ( QUANTITY ) , the weather ( snow ) and the rules governing such operations , which forbade shooting to kill . None of the squad had admitted firing in the direction of the victim .

The witness stated that the squad had had infra - red sights , which were used to locate moving targets in the dark .

The witness said that he had not been informed that there were coal - mines at the location or that TIME - watchmen were on duty there . He deduced from this that the persons who had tipped them off about the presence of terrorists had wanted to have the army blamed . He explained that the Cudi mountains were CARDINAL of the ORG ’s favourite haunts .

In his view , there was no difference between the mine watchmen ’s shelter and those habitually used as hideouts by the ORG .

He added that revealing the identities of the soldiers who had taken part in such operations could put their lives at risk .

At the material time this witness ( born in DATE ) was doing his national service and was a corporal . He was in his thirteenth or DATE of military service . As a member of the squad which carried out the operation , he was an eyewitness and one of the CARDINAL people who signed the incident report of DATE .

The witness stated that , following a tip - off , his squad had gone on an operation in the mountains to try to ambush some ORG members before daybreak . The squad had comprised CARDINAL men under PERSON , a regular soldier .

The men had seen light coming from a shelter . Before dawn his fellow squad members had seen a man come out of the shelter and run off . Lieutenant ORG had shouted to him to surrender . Shotgun and PERSON fire had broken out . The witness had left his position , climbed a hill and found himself in a small wood . He had looked up and the man who had been running away had fired a PERSON at him . The witness had fled , then pulled himself together and returned to his position with his squad . He stated that another member of the squad had pointed his loaded gun at him and that he had had to call out to make him lower it . There had been more gunfire . PERSON had given further verbal warnings in the ORG direction and CARDINAL or CARDINAL men had come out of the shelter . CARDINAL of the terrorists had been killed or wounded . In the shelter they had found large quantities of medicines , dressings , etc .

According to the witness , CARDINAL member of the squad had fired a warning shot into the air , on the commanding officer ’s orders . Asked about Mr Akay ’s statement that all the members of the squad had fired warning shots , the witness said that it was possible and that he did not remember exactly who had fired . Nor could he remember whether the commanding officer had used a loud hailer .

He stated that he himself did not hear the order to fire warning shots , as the soldiers , who were lying on the ground , were QUANTITY apart . The whole squad was spread out in a line made up of CARDINAL soldiers , each QUANTITY metres apart . He was told by his nearest colleague in person , not by radio , that a warning shot had been fired . The distance between the soldiers and the shelter was QUANTITY .

The witness did not remember whether the victim had been armed . He had a vague recollection of a shotgun being found either near the victim or in the shelter . He was not sure whether there had been other weapons in the shelter . They had not found any PERSON at the scene but had thought that the terrorists had taken them with them when they fled . The witness said that he would not recognise the sound of a PERSON but that officers would .

Nor did the witness know what bullet had hit the victim . He stated that any warning shots fired by the military could not have hit the victim , because they had been fired into the air . According to him , it was certain that shots had been fired from the area of the shelter as they were tracer bullets , so that he had been able to see them and determine where they were coming from .

The witness said that it was not until daybreak that he had seen the industrial plant and realised that he was on the site of a coal - mine .

This witness ( born in DATE ) is a lieutenant - colonel in the gendarmerie and at the material time was the head of intelligence and public safety at the gendarmerie headquarters in the town of PERSON . He said that he had been appointed by the governor as investigating officer to carry out an investigation DATE after the incident had taken place .

His account of the events was as follows . The security forces had been informed that a wounded ORG terrorist had taken refuge in the area . They had fired warning shots in the direction of PERSON , whom they believed to be a terrorist . Then the security forces , together with about fifty - four of the security guards employed to protect the Şırnak coal - mines , who were on the site , had opened fire . However , they had had no intention of killing the victim , or else he would have been hit by CARDINAL bullet . Their intention had been to arrest a suspect whom they believed to be trying to escape . It was an accident that the victim had been hit by one of the warning shots . The victim was hit in the back of the neck , that is to say , according to the witness , where someone would be hit if running away in defiance of warnings . The security forces were spread out to the right and left of the shelter and in front of it .

According to the witness , in circumstances such as those in the case in question , the security forces were under orders to give a suspect CARDINAL verbal warnings ; they used a loud hailer to warn him orally and to order him to stop . If the suspect failed to obey , he had to be neutralised without the use of a firearm , by means of a rifle butt , bayonet or physical restraint . In the instant case there had been a considerable distance between the suspect and the security forces , and the latter had accordingly been compelled to fire warning shots into the air to make him stop .

The witness acknowledged that the public prosecutor had recorded that shots had been fired at the victim with the intention of stopping him . His response was that the shot had not been intended to kill .

He asserted that in the circumstances in which the incident had occurred ( snow , fog and darkness ) it was technically impossible to hit a target without night sights . He acknowledged that infantry units like the ones that had been deployed were equipped with infra - red field glasses enabling them to see in the dark . According to him , these were used to observe the terrain , however , and not to pinpoint targets .

The witness stated that the security forces , the security guards from the Şırnak coal - mines and the mine watchmen were armed with GCARDINAL rifles . They were also entitled to shotguns . According to him , none of the shotguns found at the scene had been entered in the gun - licence register .

The witness stated that he had carried out his investigation on the basis of the documents drawn up for the purposes of the preliminary investigation ( the incident report , the public prosecutor ’s decision that he had no jurisdiction , the post - mortem report , etc . ) and the oral evidence of CARDINAL of the mine watchmen , PERSON and PERSON , whom the governor had identified . He did not visit the scene of the incident .

He said that he had not considered it necessary to identify the members of the security forces who had taken part in the operation . He had not questioned any of them , because there had been so many of them and , in addition , village guards and CARDINAL other members of the security service of the Şırnak coal - mines . Nor had he considered it necessary to interview the people who had signed the incident report , although he admitted that that report gave the name or number of the squads participating in the operation and that he could have called the members of those squads in for questioning by applying to the gendarmerie brigade commander . He had not identified the village guards who had taken part in the operation . He had not requested ballistic tests , because he had relied on the incident report and because DATE had elapsed since the events .

The witness admitted that the finding in his report that warning shots had been fired had been based on the incident report . He had not seen any need to interview the CARDINAL members of the security forces who had signed the incident report because , although he acknowledged that they had been eyewitnesses , he had thought that there was no point in questioning them since it had still not been proved that they had fired .

This witness ( born in DATE ) was in post at PERSON in DATE . In DATE , as deputy governor of PERSON , he chaired , in place of the governor , ORG which on DATE decided that the members of the security forces had no case to answer . He did not himself visit the scene of the incident .

The witness described as follows the rules governing the prosecution of civil servants . The governor appointed an investigating officer , who gathered all the evidence and submitted his findings to ORG . The case was considered at a meeting of ORG , during which each member of the ORG made comments . The investigating officer did not attend that meeting . The decision whether or not criminal proceedings should be brought was taken by a majority . That decision was referred to ORG , which upheld or quashed it after studying the case file . The special rules governing criminal proceedings against civil servants applied in regions in which a state of emergency was in force . A state of emergency was declared by due democratic process , by a majority vote in ORG .

The witness admitted that it was possible to find out the names of the commanders of squads carrying out such operations . He said that the security forces open fire only in self - defence .

In DATE this witness ( born in DATE ) was Director of ORG for Şırnak . He was a member of ORG which on DATE decided that there was no case to answer . He did not himself visit the scene of the incident .

CARDINAL

He explained that the ORG based its decisions on the documents already placed in the case file by the investigating officer ( appointed by the governor ) and was not strictly empowered to carry out its own investigation . It was the governor who had the duty and the power to investigate . The members of ORG were all subordinate to the governor . ORG generally met DATE , although sometimes there was no meeting . In that event the governor distributed the draft decision to the ORG members for signature . When the ORG did meet , it was chaired by the governor or his representative . The ORG Secretary read out the case file . The members of the ORG could examine the documents in the file . They were then invited to make comments and to sign the draft decision . In theory they could disagree with the conclusions proposed by the governor . Those who were not persuaded of the correctness of the conclusions could ask for further inquiries to be made . But ultimately the procedure was based on trust in the governor . Either the members were convinced and signed the ORG decision or they were replaced by others who were willing to sign it . In practice , it was out of the question for the decision in the form proposed by the governor not to be signed .

The witness acknowledged that the decision in the instant case had not been a ruling that there was no case to answer but rather a decision not to bring criminal proceedings against civil servants and not to transfer the case file to the prosecutor for further investigations to be carried out with a view to identifying the probable culprits . He had not been informed of the outcome of the case .

He stated that the gendarmerie knew the identity of the commanding officer of every operation carried out by the security forces at the coal - mines .

The following witnesses were also summoned by ORG but did not appear : PERSON Oğur , the applicant and the victim ’s mother ; Mr PERSON , Mr PERSON and Mr QUANTITY Oğur , watchmen at the mine ; and other members of the security forces who had taken part in the operation on DATE .

Under LAW all forms of homicide ( Articles CARDINAL to CARDINAL ) and attempted homicide ( Articles CARDINAL and DATE ) constitute criminal offences . The authorities’ obligations in respect of conducting a preliminary investigation into acts or omissions capable of constituting such offences that have been brought to their attention are governed by ORG CARDINAL to CARDINAL of LAW . Offences may be reported to the authorities or members of the security forces as well as to public ORG offices . The complaint may be made in writing or orally . If it is made orally , the authority must make a record of it ( LAW .

If there is evidence to suggest that a death is not due to natural causes , members of the security forces who have been informed of that fact are required to advise the public prosecutor or a criminal court judge ( LAW . By Article CARDINAL of LAW , any public official who fails to report to the police or a public prosecutor ’s office an offence of which he has become aware in the course of his duty is liable to imprisonment .

A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts in order to decide whether or not there should be a prosecution ( LAW ) .

If the suspected offender is a civil servant and if the offence was committed during the performance of his duties , the preliminary investigation of the case is governed by LAW on the prosecution of civil servants , which restricts the public prosecutor ’s jurisdiction ratione personae at that stage of the proceedings . In such cases it is for the relevant local ORG ( for the district or province , depending on the suspect ’s status ) , which is chaired by the governor , to conduct the preliminary investigation and , consequently , to decide whether to prosecute . In the instant case the presiding governor had under his command the security forces that carried out the operation in issue . Once a decision to prosecute has been taken , it is for the public prosecutor to investigate the case .

An appeal to ORG lies against a decision of the ORG . If a decision not to prosecute is taken , the case is automatically referred to that court .

By virtue of DATE , paragraph ( i ) , of Legislative Decree no . CARDINAL of DATE on the authority of the governor of a state of emergency region , the DATE PERSON ( see paragraph CARDINAL above ) also applies to members of the security forces under the governor ’s authority .

If the suspect is a member of the armed forces , the applicable law is determined by the nature of the offence . Thus if it is a “ military offence ” under LAW ( Law no . CARDINAL ) , the criminal proceedings are in principle conducted in accordance with PERSON no . CARDINAL on the establishment of courts martial and their rules of procedure . Where a member of the armed forces has been accused of an ordinary offence , it is normally the provisions of LAW which apply ( see LAW and sections LAW no . CARDINAL ) .

The Military Criminal Code makes it a military offence for a member of the armed forces to endanger a person ’s life by disobeying an order ( LAW ) . In such cases civilian complainants may lodge their complaints with the authorities referred to in LAW ( see paragraph CARDINAL above ) or with the offender ’s superior .

Under LAW of PERSON no . CARDINAL on administrative procedure , anyone who sustains damage as a result of an act by the authorities may , within DATE after the alleged act was committed , claim compensation from them . If the claim is rejected in whole or in part or if no reply is received within DATE , the victim may bring administrative proceedings .

Article CARDINAL § § CARDINAL and CARDINAL of the LAW provides :

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

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

That provision establishes the ORG ’s strict liability , which comes into play if it is shown that in the circumstances of a particular case the ORG has failed in its obligation to maintain public order , ensure public safety or protect people ’s lives or property , without it being necessary to show a tortious act attributable to the authorities . Under these rules , the authorities may therefore be held liable to compensate anyone who has sustained loss as a result of acts committed by unidentified persons .

LAW no . CARDINAL of DATE specifies in this connection :

“ No criminal , financial or legal liability may be asserted against … the governor of a state of emergency region or by provincial governors in that region in respect of decisions taken , or acts performed , by them in the exercise of the powers conferred on them by this legislative decree , and no application shall be made to any judicial authority to that end . This is without prejudice to the rights of individuals to claim reparation from the ORG for damage which they have been caused without justification . ”

Additional section CARDINAL of Law no . CARDINAL of DATE on the state of emergency provides :

“ … actions for damages in respect of the exercise of powers conferred by this statute shall be brought against the administrative authorities in the administrative courts . ”

Under LAW , anyone who suffers damage as a result of an illegal or tortious act may bring an action for damages for pecuniary loss ( Articles CARDINAL - CARDINAL ) and non - pecuniary loss ( Article CARDINAL ) . The civil courts are not bound by either the findings or the verdict of the criminal court on the issue of the defendant ’s guilt ( Article CARDINAL ) .

However , under LAW no . CARDINAL on ORG employees , anyone who has sustained loss as a result of an act done in the performance of duties governed by public law may , in principle , only bring an action against the authority by whom the civil servant concerned is employed and not directly against the civil servant ( Article CARDINAL § CARDINAL of the LAW and Articles CARDINAL and CARDINAL of LAW ) . That is not , however , an absolute rule . When an act is found to be illegal or tortious and , consequently , is no longer an “ administrative ” act or deed , the civil courts may allow a claim for damages to be made against the official concerned , without prejudice to the victim ’s right to bring an action against the authority on the basis of its joint liability as the official ’s employer ( LAW ) .


Violation of Art. 5-1;Violation of Art. 5-3;Violation of Art. 5-4;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award

The applicant was the owner and director of several holding companies which defaulted on their financial obligations . On DATE criminal proceedings were instituted against him on suspicion that he had concealed his income . On DATE the applicant was charged with cheating . On DATE the case was transferred to ORG . On DATE the applicant was granted bail . On DATE the applicant failed to attend a court hearing , and the court ordered his detention on remand .

On DATE another criminal case was instituted against the applicant concerning irregular operations with currency and securities . On DATE , a prosecutor authorised the applicant ’s detention on remand in the context of that case .

Meanwhile , the applicant was suspected of hiding in GPE . On DATE the Prosecutor General requested the NORP authorities to extradite him on suspicion of having engaged in irregular operations with currency and securities . On DATE the applicant was arrested in GPE . On DATE he was extradited to GPE and remanded in custody .

On DATE he was charged with irregular operations with currency and securities . On DATE the prosecutor ’s decision of DATE to authorise the applicant ’s detention on remand was revoked on the ground that there had already been the court order regarding the applicant ’s detention of DATE .

On DATE the judge of the Vilnius City ORG decided that the applicant should remain in custody . No term was specified .

On DATE the Prosecutor General authorised the applicant ’s detention in the criminal case concerning the operations with currency and securities . ORG noted that the applicant had previously breached his bail , and that the reasons for his detention were the dangers of absconding and obstructing the establishment of the truth in the case . No term of detention was specified .

On DATE the ORG revoked the detention order of DATE .

On an unspecified date the criminal cases against the applicant were joined . From CARDINAL DATE until DATE the term of the applicant ’s detention was extended DATE by ORG , for fear of the applicant ’s absconding .

On DATE the applicant was indicted on CARDINAL counts , including cheating , misappropriating the property of another , and irregular operations with currency and securities . There were CARDINAL other co - accused persons in the case . On DATE the Prosecutor General extended the term of the pre - trial investigation until DATE .

On DATE a judge of ORG examined the prosecution ’s application to extend the term of the applicant ’s detention until DATE given the risks of absconding and obstructing the establishment of the truth in the case . The ORG application was granted . The applicant ’s defence counsel was present at the hearing .

On DATE the pre - trial investigation was concluded . From DATE until DATE all the accused had access to the case - file .

On DATE the Deputy Prosecutor General confirmed the bill of indictment whereby the applicant was charged on CARDINAL counts , including cheating ( LAW ) , embezzlement ( LAW ) , and irregular operations with currency and securities ( LAW .

On DATE the case was transmitted to GPE . On DATE the applicant submitted an application to GPE , complaining that the term of his detention on remand had expired . He requested his release . The court did not examine this application .

On DATE a judge of GPE , without hearing the parties , took a decision to commit the applicant and his co - accused for trial . The judge noted no fundamental procedural irregularities in the case . The judge also decided that the applicant ’s detention on remand “ shall remain unchanged ” . No term or grounds for that detention were specified .

The applicant submitted a request to vary the remand , alleging that he had been seriously ill . On DATE the judge of GPE dismissed the request . The reasons for the dismissal were that the applicant had been accused of having committed serious offences , that he had already tried to avoid trial , and that he could therefore abscond and obstruct the establishment of the truth in the case . The applicant ’s defence counsel was present at the hearing .

On DATE the judge ordered further investigations in the case and returned the case - file to the investigators . In the same decision the judge extended the term of the applicant ’s detention for DATE . No grounds for the detention were specified . The applicant ’s defence counsel was present at the hearing .

NORP The prosecution appealed , complaining that there was no need for further investigation and that the trial could proceed . The applicant ’s detention on remand was not mentioned in the prosecution ’s appeal .

On DATE ORG rejected the prosecution ’s appeal , holding that further investigation measures were required . The applicant ’s defence counsel was present at the hearing . ORG amended the decision of CARDINAL DATE insofar as ORG had decided to return the case - file to the investigators . It ordered the return of the case - file to ORG . The applicant ’s detention on remand was not mentioned in the decision of CARDINAL DATE .

On DATE the Prosecutor General lodged a cassation appeal against the decisions of CARDINAL DATE and DATE , stating that there was no need for further investigation and that the trial should resume .

On DATE the applicant submitted an application to ORG , complaining that the term of his detention had ended on DATE and that it had not been extended thereafter . He renewed the complaint on CARDINAL and DATE . These applications were not examined .

On DATE ORG examined the prosecuting authorities’ cassation appeal . The court quashed the decisions of CARDINAL DATE and CARDINAL DATE , deciding that the trial could be resumed . It transmitted the case to GPE for a new examination . The court concluded that , “ although the decision to order further investigations is quashed , the decision to commit the accused persons for trial [ of DATE ] , whereby the question of the remand measures in respect of the accused has been properly decided , remains effective ” . The applicant ’s defence counsel was present at the hearing .

The applicant applied to the ORG , complaining that his detention had been unlawful . The prison administration stated in reply that , pursuant to LAW at that time , the applicant could be lawfully detained on remand for DATE .

Having examined the applicant ’s complaint and the observations of the prison administration , on CARDINAL DATE the ORG held that LAW , Articles CARDINAL and CARDINAL of the Code of Criminal Procedure and LAW provided that a person could only be remanded in custody pursuant to an appropriate order , specifying the term of detention . He observed that a detainee ought to be released from prison if the term of detention was not extended by a court . On the basis of the above observations , the ORG concluded that certain periods of the applicant ’s detention had been unlawful under the domestic criminal procedure . The ORG rejected the prison administration ’s arguments that there had been valid court decisions during the overall period of the applicant ’s detention and that LAW authorised the applicant ’s continued remand in custody for DATE , given that the maximum sentence for the most serious offence with which the applicant was charged was DATE imprisonment . The ORG emphasised that this legal provision was incompatible with the right to be brought to trial within a reasonable time guaranteed by LAW . The ORG also drew the attention of ORG and ORG to the fact that the length of the applicant ’s remand in custody had been excessive . Finally he addressed ORG , stating that the provisions of LAW “ regulating the terms of detention on remand are not clear or logical [ because ] calculating the terms depends on various circumstances , including access to the case - file and dates when a particular decision becomes effective ” . As such circumstances were not foreseeable and could be interpreted in different ways , the ORG suggested amendments to LAW .

At a trial hearing before the judge of GPE on DATE , the applicant stated that he had been unlawfully detained . He requested the judge to order his release . The applicant also claimed access to additional material held in the case - file . In a decision of CARDINAL DATE , the judge stated that a court would establish whether or not the applicant ’s detention on remand had been unlawful when delivering the judgment on the merits of the case . The applicant ’s request to vary the remand was rejected on the ground that he might abscond . The judge allowed the applicant to have access to additional material held in the case - file at a time when there are no trial hearings .

At a trial hearing on DATE , the applicant repeated his request for bail , complaining about the lawfulness and conditions of his detention . The judge of GPE noted that the medical experts had not yet submitted their conclusions as to the applicant ’s state of health . The judge refused to vary the remand , as there was no guarantee that the applicant would not abscond .

The applicant repeatedly applied to the ORG , alleging in particular that the court decision of DATE had not been included in the case - file , and that the prison administration could not know that his detention on remand had been prolonged from DATE to CARDINAL DATE .

On DATE the ORG amended his conclusions of DATE insofar as they concerned CARDINAL period of the unlawful detention of the applicant .

On DATE the applicant complained to ORG that he had requested GPE to discontinue the unlawful detention , not that the court vary the remand . The applicant referred to the amended provision of LAW , which had come into force on DATE . The applicant requested ORG to quash the decisions of GPE of DATE and CARDINAL DATE . He stated that he could not remain in custody because of his health , and that the length of the detention had been excessive , in breach of LAW . He also requested ORG to hear him in person when examining the appeal . On DATE the applicant announced a hunger strike in connection with his detention .

On DATE a judge of ORG informed the applicant that his challenge to the decisions of DATE and CARDINAL DATE was not subject to appeal , pursuant to the then LAW .

On DATE the applicant submitted a request to the judge of GPE to be released . On DATE the judge dismissed the request on the ground that the applicant might abscond .

On DATE the judge of GPE found the applicant guilty of the CARDINAL charges against him , the applicant and his defence counsel being present . The judge established that the applicant had unlawfully appropriated various assets of a total worth of CARDINAL litai . He was sentenced to CARDINAL years’ imprisonment and his property was confiscated . No allegations of the unlawfulness of the remand were mentioned by the court .

On DATE the applicant appealed against his conviction , alleging various procedural irregularities , including breaches of his rights to legal representation , to examine witnesses , and to have unconditional access to the case - file . He stated inter alia that the latest extension of the term of his detention on remand was that made by ORG on DATE , and that his remand in custody from DATE had been unlawful . He claimed that his detention had been excessively long . On DATE the applicant supplemented the appeal , submitting inter alia that ORG , DATE , DATE and CARDINAL of the LAW had been breached , and that he had been unable to challenge judges and prosecutors who had allegedly fabricated the case against him .

On DATE ORG amended the applicant ’s conviction as regards the count concerning irregular operations with currency and securities . In this respect the court reclassified the charge under LAW with that under former LAW which had been applicable at the time when the crime was committed . The applicant and his defence counsel were present at the appellate hearing . ORG considered that no procedural irregularities had occurred during the pre - trial investigation and trial , noting inter alia that the applicant had had several defence counsel throughout the proceedings , he had had full access to the case - file , experts had been consulted and witnesses had been questioned . ORG did not change the applicant ’s sentence . On DATE the applicant lodged a cassation appeal , pleading inter alia that his detention had been unlawful .

On DATE ORG quashed the conviction and the appellate decision because of numerous breaches of domestic criminal procedure , including violations of the applicant ’s defence rights . The court ruled inter alia that the applicant could only have been prosecuted on CARDINAL count of irregular operations with currency and securities under former LAW , by reference to which he had been extradited from GPE . It held that the other CARDINAL counts could not stand unless the appropriate permission from GPE had been obtained . The court also stated that it had no competence to examine the applicant ’s allegations of unlawful detention during the pre - trial investigation . It did not decide on the applicant ’s remand , but it ordered the release on bail of his co - accused . The case was returned to GPE for a new examination to be carried out . The applicant remained in prison .

On DATE the applicant wrote letters to ORG , the Minister of the Interior , the Minister of Justice and the President of GPE , stating that his detention from DATE had been unlawful in that , inter alia , ORG had not decided the question of his remand .

By letter of CARDINAL DATE a ORG judge informed GPE and ORG that the detention order of DATE had constituted a valid basis for the applicant ’s continued detention on remand because the order of CARDINAL DATE had been quashed by ORG on DATE .

On DATE and DATE the applicant requested ORG to release him on the ground that his detention had been unlawful . The applicant pleaded inter alia that the question of the lawfulness of his detention remained unclear , as was shown by the necessity of the aforementioned letter of DATE .

On DATE a judge of GPE returned the case to the prosecution for further investigations to be carried out . The court also extended the term of the applicant ’s detention on remand for DATE , given the gravity of the CARDINAL offences for which he could be convicted if the appropriate permission from GPE were obtained .

On DATE the applicant appealed , which appeal was dismissed by ORG on DATE . The court referred to the danger of the applicant absconding as warranting his remand in custody on suspicion of his having committed the CARDINAL possible offences . ORG noted that although GPE ’s permission to press these charges had not yet been granted , the prosecuting authorities had enough time to apply to GPE for that authorisation .

On DATE the applicant applied to GPE for release . He stated , inter alia , that he could only be prosecuted for the one offence of irregular operations with currency and securities . He noted that no permission had been obtained from GPE to prosecute him on other charges , and that the courts’ reference to those charges as warranting his remand in custody had been unlawful .

On DATE a judge of GPE rejected the prosecution ’s application to extend the term of the applicant ’s remand in custody . By reference to LAW , the judge held that the order of CARDINAL DATE had become effective on the date when the appeal had been decided , and that the CARDINAL months’ time - limit for the applicant ’s remand in custody had therefore started on DATE . The applicant remained in prison .

Both the applicant and the prosecution appealed against the decision of DATE , rejected respectively by ORG on DATE . ORG referred the question of the applicant ’s detention to ORG .

DATE . On DATE ORG refused the prosecution ’s application to extend the applicant ’s remand in custody . The court held that the term of the applicant ’s detention designated on DATE had expired on DATE , and that his remand in custody after that date had been unlawful . ORG also held that the applicant could only be prosecuted on CARDINAL charge of irregular operations with currency and securities , for which he risked a maximum sentence of CARDINAL years’ imprisonment . However , the applicant had completed those DATE on DATE . ORG further noted that on DATE GPE had given permission to prosecute the applicant on the other charges , but that at the material time the applicant was not charged with any other offence , and could not be deprived of his liberty on that basis . The court concluded that the applicant ’s release was warranted . The applicant was released in the courtroom .

The applicant has not been remanded in custody since . It appears that the proceedings are still pending at first instance .

The LAW ( PERSON ) :

LAW :

“ A person arrested when committing an offence must , within TIME , be brought to court for the purpose of determining , in the presence of the detainee , whether detention is appropriate . If the court does not order the detention of the arrested person , he shall be released immediately . ”

LAW :

“ A person whose constitutional rights or freedoms are violated shall have the right to apply to court . ”

The previous and amended LAW ORG proceso kodeksas ) :

Article CARDINAL ( in force until DATE ) :

“ No one shall be arrested save by virtue of a decision of a court , or an order of a judge or the authorisation of a prosecutor ... . ”

Since DATE arrest may only be ordered by a court or judge .

Article ORG ( under the law No . I-CARDINAL of DATE , in force until CARDINAL DATE ) :

“ Detention as a remand measure shall be used only where based on the decision of a court , order of a judge , or the authorisation of a prosecutor in cases where a statutory penalty of DATE of imprisonment is envisaged ... .

In deciding whether to authorise the detention , a prosecutor ... shall personally hear the suspect or defendant when necessary ... . ”

Article ORG ( in force from DATE ) :

“ Detention on remand shall be used only ... in cases where a statutory penalty of DATE imprisonment is envisaged . ... .

The grounds for detention on remand shall be the reasoned suspicion that the accused will :

( CARDINAL ) abscond from the investigation and trial ;

( CARDINAL ) obstruct the determination of the truth in the case [ influence other parties or destroy evidence ] ;

( CARDINAL ) commit new offences ... whilst suspected of having committed crimes provided in ORG ... [ CARDINAL ] [ cheating , ] CARDINAL [ embezzlement ] of LAW ... . ”

Article CARDINAL - CARDINAL ( in force from DATE to DATE ) :

“ ... [ T]he arrested person shall be brought before a judge within not more than CARDINAL hours ... The judge must hear the person as to the grounds of the arrest . The prosecutor and counsel for the arrested person may take part in the inquiry . After having questioned the arrested person , the judge may maintain the arrest order by designating the term of detention , or may vary or revoke the remand measure . ...

After the case has been transmitted to the court ... [ it ] can order , vary or revoke the detention on remand . ”

The amended LAW in force since DATE ) provides that the prosecutor and defence counsel must take part in the first judicial inquiry of the arrested person , unless the judge decides otherwise . The amended provision also permits the court to extend the detention on remand before its expiry .

Article CARDINAL § CARDINAL ( in force from DATE to DATE ) :

“ For the purpose of extending the term of detention on remand [ at the stage of pre - trail investigation a judge ] must convene a hearing to which defence counsel and the prosecutor and , if necessary , the detained person shall be called . ”

The LAW in force since DATE makes obligatory the attendance of the detainee at the remand hearings .

“ An arrested person or his counsel shall have the right during the pre - trial investigation to lodge [ with an appellate court ] an appeal against the detention on remand ... . With a view to examining the appeal , there may be convened a hearing , to which the arrested person and his counsel or only counsel shall be called . The presence of a prosecutor is obligatory at such a hearing .

The decision taken by [ the appellate judge ] is final and can not be the subject of a cassation appeal .

A further appeal shall be determined when examining the extension of the term of the detention on remand . ”

The present LAW in force since DATE ) now provides for an appeal to a higher court and a hearing against a decision ordering or extending the term of detention both at the stage of pre - trial investigation and trial , in the presence of the detainee and his counsel , or only his counsel .

Article CARDINAL § CARDINAL ( in force until DATE ) :

“ The period when the accused and his counsel have access to the case - file is not counted towards the overall term of pre - trial investigation and detention . Where there are several accused persons , the period during which all the accused and their counsel have access to the case - file is not counted towards the overall term of pre - trial investigation and detention . ”

Since DATE this period is no longer relevant for remand decisions .

“ Decisions of courts ... ordering , varying or revoking a remand measure ... can not be the subject of appeal ... . ”

Pursuant to the general provision of LAW , a first instance decision was not effective pending the time - limit for an appeal against that decision or during the appeal proceedings . Only those decisions against which no appeal was possible , including remand decisions under the former LAW , became effective and were executed on DATE when they were taken . The present LAW ( version in force from CARDINAL DATE ) specifies that all decisions of detention on remand become effective and are executed on the date when they are taken , regardless of the fact that an appeal is possible against any such decision under the amended LAW since DATE , see above ) .

Other relevant provisions of LAW :

LAW ( CARDINAL ) and ( CARDINAL) and LAW ( CARDINAL) and ( CARDINAL ) provide , respectively , that the accused and their counsel have the right to “ submit requests ” and to “ appeal against acts and decisions of an interrogator , investigator , prosecutor and court . ”

Article CARDINAL § CARDINAL :

“ A judge individually or a court in a directions hearing , in deciding whether to commit the accused for trial , shall determine ...

( CARDINAL ) whether the remand measure has been selected appropriately . ”

LAW :

“ After having decided , that there is a sufficient basis to commit the accused for trial , a judge individually or a court in a directions hearing shall determine the questions ...

( CARDINAL ) of the remand measure in respect of the accused ... . ”

Article CARDINAL § CARDINAL :

“ The defendant has the right to ... CARDINAL ) submit requests ; ...

( CARDINAL ) appeal against the judgment and decisions of a court . ”

Article CARDINAL :

“ In the course of the trial , a court may decide to order , vary or revoke a remand measure in respect of the defendant . ”

The law amending and supplementing LAW ( ORG proceso kodekso pakeitimų ir papildymų įstatymas ) of DATE stated that detention authorised by a prosecutor prior to DATE could thereafter be extended by a court in accordance with the new procedure governing remand in custody .


Violation of Art. 5-1;Non-pecuniary damage - award

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

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

The applicant is a former NORP and ORG officer who served from DATE in the territory of GPE . After the restoration of NORP independence , he was refused an extension of his residence permit in that country . His complaints were dismissed by the domestic courts ; the final judgment was delivered by ORG ( NORP ) on CARDINAL DATE . Subsequently , he lodged an application with ORG , alleging , among other complaints , that his right to respect for his private and family life , guaranteed under LAW , had been violated by the NORP authorities . On DATE this application was declared inadmissible ( see GPE v. GPE DATE . ) , no . CARDINAL/CARDINAL , DATE ) .

The circumstances of the applicant ’s stay in GPE and the NORP authorities’ refusal to extend his residence permit , as well as a summary of the relevant domestic and international legal provisions may be found in the decision mentioned above . In brief , although the NORP authorities had finally refused to extend the applicant ’s residence permit , he – backed by ORG – was of the opinion that he was still entitled to stay in GPE under the terms of the agreement concerning social guarantees for retired military personnel of the armed forces of GPE in GPE , concluded on DATE . The agreement provided that retired military personnel , that is persons discharged from the army service and receiving pension could apply for a residence permit in GPE . According to ORG the applicant was dismissed from the military service on DATE for health reasons and excluded from the lists of the military unit on DATE .

The NORP authorities , to the contrary , considered that he did not fall under the agreement concerning social guarantees but rather under the treaty on the withdrawal of the NORP troops from the NORP territory , also concluded on DATE , as he had been in the active military service at the time of the conclusion of the treaty . He had only been assigned to the reserve forces on CARDINAL DATE and discharged from the military unit as of DATE . Accordingly , he had been obliged to leave GPE under the treaty .

On DATE the Citizenship and Migration Board ( Kodakondsus- ja GPE – hereinafter “ the Board ” ) ordered the applicant to leave the country on CARDINAL DATE at the latest . He was warned that in the event of failure to comply with the order , he would be expelled immediately . The applicant challenged the order before ORG ( halduskohus ) which , on DATE , dismissed the complaint . The applicant appealed , but his appeal was dismissed by ORG ( ringkonnakohus ) . On DATE ORG refused leave to appeal .

In the meantime , on DATE , the applicant was arrested . His immediate expulsion was not possible as he only presented his expired passport on arrest , saying that he did not know where his valid NORP passport was . On DATE ORG decided , at the request of the police , that the applicant was to be taken to a deportation centre for execution of the deportation order . ORG authorised his detention for DATE , starting from DATE , giving him some time to find his valid passport . The Government have submitted to the ORG a copy of the applicant ’s NORP passport valid until DATE . The applicant did not present this document in the subsequent proceedings .

According to the applicant he lodged an appeal against ORG decision of DATE but since his detention was subsequently , on DATE , extended by ORG , the appeal became void of substance and had to be withdrawn . According to the ORG the applicant filed a notice of his intention to appeal , as required by the applicable rules of procedure , but he never actually lodged an appeal .

From CARDINAL DATE the applicant was detained in the deportation centre in GPE , GPE .

The Government in their submissions have described the deportation centre as an institution with a guarded perimeter kept under visual and electronic supervision . It can accommodate CARDINAL persons in rooms designed for QUANTITY persons but as a rule CARDINAL persons are placed in CARDINAL room . The detainees can use eating and rest areas equipped with television , radio , newspapers and literature . There is table tennis equipment and various board games and the detainees have free access to toilets and shower . Washing and drying machines are available . There are CARDINAL periods a day ( totalling TIME ) for outdoor walks . The detainees are served CARDINAL meals a day , including CARDINAL hot meals ; there is a nurse present in the centre TIME a day and , if the need arises , a general practitioner is available . A psychiatrist and a psychologist visit the centre regularly . The detainees can buy additional food and other items through the centre ; they are also allowed to receive parcels , send and receive letters and use the telephone . Furthermore , they can meet consular officials of their country of nationality , defence counsel and ministers of religion . Subject to authorisation they can also be visited by other persons , such as family members .

At the request of ORG , the applicant ’s detention was extended by ORG once DATE . It was open to the applicant to appeal against the rulings of ORG to ORG and , thereafter , to ORG . He did so in some but not in all cases . On each occasion the higher courts dismissed the appeals .

The courts found that the applicant ’s detention was lawful and justified for the purpose of ensuring his expulsion . According to the ORG rulings , the applicant had allegedly lost his valid NORP passport and despite the requests by ORG to ORG of GPE in GPE ( “ the Embassy ” ) the latter had not been able to issue a new travel document to the applicant because of his refusal to fill in the required application forms . ORG was ready to issue the applicant a temporary travel document but according to ORG it was not possible to add an entry permit to such a document . The courts considered that detention was an appropriate measure to motivate the applicant to co - operate with the authorities and avoid a situation where an expulsion order could not be executed merely because of the applicant ’s unwillingness . They were of the opinion that the length of the applicant ’s detention in the deportation centre depended on him alone . The courts also noted that the applicant ’s deportation might be possible under LAW between ORG and GPE on readmission once it entered into force .

On DATE ORG refused to further extend the applicant ’s detention . It found that the length of his detention had become disproportionate and , in the circumstances , unconstitutional . He was released from the deportation centre DATE .

The Board and ORG sought possibilities to secure travel documents for the applicant so that he could be removed ; they were in contact with the ORG to that end throughout the applicant ’s detention . Furthermore , ORG on several occasions requested the applicant to fill in forms required by the ORG to issue him a passport , but the applicant persistently refused .

The DATE ’s attempts to achieve the applicant ’s removal included the following steps .

On DATE the ORG asked ORG to issue the applicant a return certificate . On DATE the ORG replied that the applicant could return to GPE only on the basis of a NORP foreign passport , which he could apply for in person or through a representative .

On DATE and DATE the Board informed the ORG that the applicant refused to fill in the required forms . They requested the ORG ’s assistance in issuing documents for the applicant and expressed their readiness to provide the applicant with a temporary travel document . The ORG did not reply to the letters .

On DATE the ORG again reminded the Embassy of the situation and sought their agreement to affix an entry visa to a temporary travel document the ORG was ready to issue . On DATE the ORG replied that this was not possible under NORP law .

On DATE the ORG asked ORG to request the ORG to provide the applicant with the requisite papers .

On DATE the ORG requested the ORG ’s assistance in issuing documents to the applicant . On DATE the ORG replied that they could issue him a passport upon his request .

On DATE the ORG submitted a request to ORG for the applicant to be readmitted on the basis of the readmission agreement . On DATE the ORG replied that the NORP party was of the view that the applicant did not fall under the readmission agreement as he had a legal basis for residing in GPE ( the NORP agreement of DATE ) .

On DATE the ORG again asked ORG to request the ORG to provide the applicant with the requisite papers .

On DATE the ORG asked ORG to contact ORG to provide the applicant with papers under the readmission agreement . On DATE ORG replied that the NORP authorities did not wish to consider the applicant ’s readmission under the readmission agreement and therefore the readmission application concerning him had not been submitted to ORG . A meeting with ORG had been scheduled for DATE . On DATE ORG nevertheless transmitted the readmission application to ORG . On DATE ORG replied that the applicant was not subject to readmission under the readmission agreement as he had a legal basis for residing in GPE .

In DATE and DATE the ORG and ORG exchanged several notes and memoranda related to the NORP authorities’ refusal to extend residence permits for some retired GPE servicemen . On DATE ORG expressed readiness to hold bilateral consultations to regulate the matter , as proposed by the ORG .

On DATE ORG sent a note to the ORG drawing the NORP authorities’ attention to the fact that on DATE ORG had declared inadmissible the applicant ’s application related to the NORP authorities’ refusal to extend his residence permit . ORG asked the NORP authorities to take the necessary steps for the applicant ’s repatriation and requested their assistance in providing him with papers . On DATE the ORG expressed their readiness to issue the applicant identity documents , provided that the applicant submitted an application in writing .

On DATE ORG requested the ORG to issue the applicant with the documents necessary for his readmission on the basis of the readmission agreement and transmitted a readmission application in respect of him to the ORG . On DATE the ORG replied that retired servicemen of GPE , including the applicant , did not fall under the readmission agreement as they had a legal basis for residing in GPE . They proposed regulating the matter by negotiation , through diplomatic channels . On DATE ORG agreed to hold negotiations .

On DATE the ORG reiterated that the NORP authorities considered that the applicant did not fall under the readmission agreement .

On DATE ORG confirmed its position that the applicant was subject to the readmission agreement .

On DATE the ORG emphasised that the main aim of the readmission agreement , as stated in its preamble , was to strengthen co - operation in order to combat illegal immigration . Any attempt to apply it to other situations was contrary to the principle of implementing international treaties in good faith . In particular , the readmission agreement was not applicable to the retired servicemen to whom the agreement of DATE concerning social guarantees to retired military personnel applied .

In addition , the representatives of ORG repeatedly met NORP officials to discuss possible solutions for the applicant ’s case . In connection with the readmission agreement there have also been joint committee meetings to discuss issues related to the agreement and to conclude its implementing protocols . In DATE and DATE the NORP authorities submitted a draft implementing protocol of the readmission agreement to the NORP party ; a copy of the draft protocol was resubmitted to the NORP authorities on DATE . On DATE the Embassy informed the NORP authorities that ORG was ready to hold consultations at expert level concerning the implementing protocols in DATE .

The ORG sent the applicant several letters informing him of the NORP authorities’ position in the matter and giving reassurances that the NORP party would try to solve the issues through bilateral dialogue .

On DATE , DATE the applicant ’s release was ordered by a court ( see paragraph CARDINAL above ) , the ORG gave him a written reminder that his expulsion order was still in force . Some further measures were applied as DATE the applicant had to reside in his fixed residence , to report to ORG at certain intervals , and to inform ORG of any change in his place of residence or if he left it for an extended period .

On DATE ORG , in misdemeanour proceedings , sentenced the applicant to CARDINAL days’ detention for staying in GPE without a legal basis . The judgment was upheld in substance by ORG . On DATE ORG refused , on procedural grounds , to examine the applicant ’s appeal as it had not been drawn up by a lawyer as required by law .

Section CARDINAL of the Obligation to Leave and Prohibition of Entry Act ( ORG ja sissesõidukeelu seadus ) , as in force at the material time , defined expulsion as the enforcement of an obligation to leave in the cases and pursuant to the procedure provided by law .

Section CARDINAL of the Act provided that an order to leave GPE could be issued to an alien who was staying in GPE without a legal basis and that it had to contain a warning of compulsory execution in the event of failure to comply with it . According to section CARDINAL , the compulsory execution was to take place after DATE following notification of the order .

Section CARDINAL(CARDINAL ) of the Act enumerated the instances where expulsion would not be applied . These included the case where expulsion was no longer feasible .

Section CARDINAL ) of the Act stipulated that expulsion of an alien had to be completed within TIME of his or her arrest . If it was not possible to complete expulsion within that term , the person to be expelled could be placed in a deportation centre , subject to judicial authorisation , until their expulsion , but for no longer than DATE ( section PERSON ) ) . This term could be extended at the request of ORG by DATE at a time ( section CARDINAL ) .

Under section CARDINAL - CARDINAL(CARDINAL ) of the LAW , the person to be expelled was required to co - operate in the organisation of the expulsion , including co - operating in obtaining the necessary documents for expulsion .

On DATE an Agreement between ORG and GPE on readmission entered into force . The aim of the agreement is to strengthen the GPE co - operation in order to combat illegal immigration more effectively . LAW , concerning readmission of NORP nationals , reads as follows :

“ CARDINAL . The GPE shall admit , upon application by a Member ORG and in accordance with the procedure provided for in this LAW , any person who does not , or no longer , fulfil the conditions in force for entry to , presence in , or residence on the territory of the requesting Member ORG provided it is established , in accordance with LAW , that such person is a national of GPE .

The same shall apply to illegally present or residing persons who possessed the nationality of GPE at the time of entering the territory of a Member State but subsequently renounced the nationality of GPE in accordance with the national laws of the latter , without acquiring the nationality or a residence authorisation of that Member ORG or any other ORG .

After GPE has given a positive reply to the readmission application , the competent diplomatic mission or consular office of GPE shall irrespective of the will of the person to be readmitted , as necessary and without delay , issue a travel document required for the return of the person to be readmitted with a period of validity of DATE . If , for any reason , the person concerned can not be transferred within the period of validity of that travel document , the competent diplomatic mission or consular office of the GPE shall issue a new travel document with a period of validity of the same duration without delay . ”

In a judgment of CARDINAL DATE , ORG of ORG ( case no . CARDINAL ) found that the assessment of the feasibility of expulsion could not be based on the fact that the person concerned did not wish to leave the country and wanted to stay there . An interpretation to the contrary would have been in conflict with the nature of expulsion as a legal concept .

NORP In a judgment of DATE , ORG of ORG ( case no . CARDINAL ) noted that both the ORG ’s request and the court ’s authorisation for detention had to be based on the law in force at the time of the court proceedings . It pointed out , however , that since expulsion proceedings constituted a dynamic process , due attention had to be given to the prospective changes in legal circumstances which would affect expulsion at the time when the person concerned was expected to be expelled .