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

The applicant , PERSON , is a NORP national who was born in DATE and lives in PERSON .

On DATE the applicant ’s husband P.R. fell ill . On DATE a doctor , ORG , who worked at ORG , visited him at his home and prescribed him certain medication . DATE P.R. ’s medical condition had not improved and he had a fever of QUANTITY . The applicant succeeded in contacting PERSON only on DATE . In TIME of the same day P.R. ’s condition substantially worsened and the medical emergency service took him to the PERSON hospital . On DATE , at the applicant ’s request , blood samples were taken from her husband . On CARDINAL DATE P.R. was found to have septicaemia and was transferred to the intensive care unit .

On DATE the applicant ’s husband died in the PERSON hospital . The clinical diagnosis of his death , recorded in the hospital ’s documents , was sepsis . That diagnosis was not confirmed by an autopsy , since the applicant refused CARDINAL .

The applicant requested ORG to appraise the quality of the medical services which ORG and ORG had provided to her husband . On DATE ORG produced an expert report ( no . CARDINALA-CARDINAL - CARDINAL K ) which stipulated that , while treating the applicant ’s husband , ORG had made certain mistakes . In particular , given that P.R. ’s condition was not improving , the doctor had not used all available means to establish factors which would have been important for determining the proper treatment . “ That is to say , having suspected pneumonia [ the doctor ] did not immediately send the patient for an X - ray examination , did not assess the effectiveness of the prescribed medication , and did not send the patient to hospital , as [ the applicable medical instructions ] required ” . Lastly , the experts noted that the head of ORG had not been carrying out the ORG Minister ’s instructions on medical care effectively .

ORG ordered the head of ORG to assure adherence to the ministerial requirements and to evaluate the doctor ’s actions . On DATE ORG was informed that ORG had received a disciplinary sanction by way of a warning .

On DATE the applicant initiated civil proceedings against ORG , the PERSON hospital and GPE , alleging that the medical personnel had failed to carry out their duties properly and that this had caused her husband ’s death .

On DATE ORG ordered the ORG ( the “ FMI ” ) to conduct a deontological examination as regards the circumstances and cause of P.R. ’s death . CARDINAL experts took part in the examination .

On DATE the ORG presented its results in report no . ORG CARDINAL/CARDINAL ( CARDINAL ) . The report stipulated that P.R. had died from sepsis , noting however that the cause of death had only been established on the basis of a clinical diagnosis . Given that there was no autopsy report , the actual cause of death remained uncertain .

The report also stated that , when treating the applicant ’s husband , ORG had acted properly and without undue delay . The experts concluded that ORG ’s actions had no direct causal link with the death , since the treatment she prescribed was in accordance with the patient ’s condition . They also stated that applicable legislation did not empower a family doctor to compel her patient to go to hospital [ against his will ] . Lastly , the experts found the treatment at ORG to have been appropriate to the patient ’s medical condition .

As regards the treatment which P.R. received at the PERSON hospital , the experts again found it to have been adequate , with the exception of the treatment which P.R. had received in the hospital ’s intensive care unit . Yet the experts noted that it was not possible to ascertain what influence the latter had had on GPE ’s death , since no autopsy had ever been performed .

In sum , there was no direct causal link between either the actions of ORG or the PERSON hospital ’s personnel and the death of the applicant ’s husband .

On DATE the applicant requested ORG to order a supplementary expert report . She noted that the CARDINAL expert reports , no . CARDINALA-CARDINAL - CARDINAL K and no . ORG CARDINAL/CARDINAL ( DATE ) , had been contradictory . In the applicant ’s view , the ORG ’s experts were partial and it was necessary to create a new expert commission which would evaluate the quality , objectivity and plausibility of the CARDINAL previous reports , as well as establish the actual cause of her husband ’s death and whether the treatment he had received had been appropriate and effective . That commission was also to establish whether the medical personnel who had treated her late husband had breached any applicable medical instructions .

By a decision of CARDINAL DATE , ORG dismissed the applicant ’s lawsuit as unfounded . The court ’s arguments and reasoning were set out in CARDINAL pages . The applicant ’s lawyer took part in that hearing .

Whilst noting ORG report about certain defects in ORG ’s and PERSON actions , the court nevertheless emphasised that those flaws were of an organisational character ( organizacinio pobudžio ) and had no causal link to the quality of medical services which were provided to P.R. The court furthermore noted that there were no grave ORG mistakes , which ORG would have established .

Referring to ORG guidelines in medical negligence cases and having examined the ORG ’s deontological report no . ORG CARDINAL/CARDINAL in the light of other evidence , ORG found that report credible . It stressed that the cause of death of the applicant ’s husband had only been established from clinical characteristics ( pagal klinikinius požymius ) . Yet , as both experts had noted in their written reports and in person at the hearing , in the absence of an autopsy it had not been possible to ascertain the exact cause of death .

From all the above , the court concluded that the applicant had failed to prove that the doctors had acted in breach of applicable medical norms . Neither had the applicant proved a causal link between the ORG actions and her husband ’s death . ORG also observed that the evidence in the case ruled out the ORG negligence . The court did not address the applicant ’s request for a supplementary expert examination . Lastly , ORG ordered the applicant to cover the other parties’ litigation costs in the sum of CARDINAL NORP litai ( MONEY ) .

The applicant appealed , arguing that the CARDINAL expert reports were contradictory , and requested ORG to order a new expert examination into the circumstances of her husband ’s death . She also claimed that the first - instance court had ordered her to cover the other parties’ litigation costs for too high a sum .

On DATE , at the hearing of ORG , the applicant ’s lawyer requested that the experts of ORG and the ORG be summoned for questioning in open court . ORG granted that request . The lawyer further requested that a new expert examination be carried out , arguing that the CARDINAL reports were contradictory . The court decided to resolve that question after the lawyer submitted the request in writing and formulated his questions to the experts .

It transpires from the record of the hearing of ORG that on DATE the applicant ’s lawyer again requested the court to order a new expert examination . Given that other parties to the proceedings objected to that request , ORG decided to adjourn the hearing until DATE .

On DATE the applicant ’s lawyer reiterated his request for a supplementary expert report . Having considered the lawyer ’s request on the spot , the chamber decided to adjourn the determination of this issue until the parties had made their final submissions . Having heard the parties’ summings - up , ORG adjourned its decision until DATE .

On DATE ORG dismissed the applicant ’s appeal . The court acknowledged that ORG had made certain errors of judgment by not exhausting all means available to diagnose P.R. ’s illness , and by not consulting other doctors when his condition did not improve . Yet the appellate court found no proof that those errors had been the direct cause of P.R. ’s death . The court also had regard to the ORG ’s deontological report to the effect that the measures which ORG and ORG had undertaken were adequate for the physical condition of P.R. The court noted that the ORG ’s conclusions were confirmed and elaborated by CARDINAL experts , who testified before both the first - instance and the appellate courts . For the latter , the applicant ’s allegation that the ORG ’s experts had been partial and not objective was unfounded , even though their conclusion contradicted that of ORG . On the contrary , the court noted that those experts were well qualified , with scientific and pedagogical degrees in their respective fields of medicine .

As to the treatment which P.R. had received in ORG intensive care unit , ORG acknowledged that it had been inadequate . However , given that the applicant herself refused to allow an autopsy , it was not possible to establish what influence that inadequate treatment could have had on ORG death . Consequently , the first - instance court was correct in not finding a causal link between the actions of ORG doctors and the death of the applicant ’s husband .

Lastly , ORG found that the award of litigation costs which the applicant was ordered to pay was in accordance with the recommendations prescribed by ORG .

The applicant lodged a cassation appeal , complaining that the lower courts had not allowed her claim for pecuniary and non - pecuniary damages . She further alleged that the first - instance and appellate courts had evaluated the evidence wrongly , that the expert examination had not been thorough and that important factual circumstances had not been established .

By a ruling of DATE , ORG refused to examine the cassation appeal , noting that the applicant ’s claim in respect of pecuniary and non - pecuniary damages was intrinsically related to her allegation of an erroneous examination of the factual circumstances , but the latter did not fall within ORG jurisdiction . The applicant submitted new cassation appeals . However , on CARDINAL and DATE and CARDINAL DATE ORG dismissed them as lodged out of time .

The PERSON on the Medical Practice of Physicians ( PERSON praktikos įstatymas ) stipulates that a doctor who has made a grave error when practising the profession can be deprived of his or her licence . ORG is CARDINAL of the bodies which can propose that a licence be withdrawn ( LAW CARDINAL ( CARDINAL ) and CARDINAL ) . Moreover , the doctor who has breached the requirements of this law is answerable under the domestic law and regulations ( LAW ) . Furthermore , a special body – the Commission for the Assessment of Doctors’ Professional Competence – exists to assess the professional qualifications of doctors ( LAW ) .

LAW on LAW to their Health ( NORP teisių ir žalos sveikatai atlyginimo įstatymas ) stipulates that patients must be accorded qualified health care . Pursuant to LAW , the damage suffered by patients as a result of the culpable actions of a physician is to be compensated in accordance with the procedure established by LAW .

Article CARDINAL § CARDINAL of the Civil Code provides that any pecuniary damage caused to another person must be fully compensated by the responsible person . Article CARDINAL § CARDINAL allows compensation for non - pecuniary damage incurred due to health impairment or a deprivation of life . As regards medical negligence specifically , in the ruling of CARDINAL DATE no . ORG confirmed this right , specifying that , in case of a person ’s death , the spouse , parents and children have the right to request compensation for non - pecuniary damage for their loss . Lastly , LAW provides that an employer is liable to compensation for damage caused by the fault of employees in the performance of their service ( official ) duties .

Article CARDINAL of the Code of Civil Procedure stipulates that the parties must prove their claims . Pursuant to Article CARDINAL , the court evaluates the probative value of evidence according its own inner belief , basing its conclusions on a comprehensive and objective examination of the facts of the case . Unless the PERSON provides otherwise , no evidence has predetermined value .

In its ruling No . CARDINAL of DATE , ORG noted


CASE OF DE GEOUFFRE DE LA PRADELLE v. FRANCE

Preliminary objection rejected (non-exhaustion);Violation of Art. 6-1;Not necessary to examine Art. 13;Pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

Mr PERSON de la GPE is a NORP national and practises as a lawyer ( avocat ) . He lives in GPE , where he has his chambers .

He owns an estate of QUANTITY in the département of ORG . ORG crosses the property , which lies within the administrative districts ( communes ) of FAC and PERSON . In order to provide an electricity supply for the château of FAC , which was on his land , he envisaged converting a long - disused hydroelectric dam into a self - contained miniature power - station . On DATE Électricité de France gave its approval . On DATE and DATE ORG of PERSON consented in principle .

On DATE the Minister for the Environment and ORG decided to set in motion proceedings to designate the land in the LOC as an area of outstanding beauty and of public interest ; an area of QUANTITY was affected , most of it belonging to the applicant .

The Prefect of PERSON informed the applicant of this in a letter of CARDINAL DATE ; pursuant to section CARDINAL of the LAW DATE on the conservation of natural monuments and places of interest ( see paragraph CARDINAL below ) , which prohibits for a period of DATE any alteration of the state of a site that is in the process of being designated , he also refused the application for permission to undertake hydroelectric works .

Together with the CARDINAL other property owners affected , the applicant was invited to submit any comments he might have on the designation proposal ( section CARDINAL of the LAW DATE - see paragraph CARDINAL below ) , and he indicated his objections in a letter of CARDINAL DATE to the Prefect of PERSON .

A public inquiry was opened by a prefectoral decision of DATE , which was notified personally to the parties concerned ( LAW no . CARDINAL - CARDINAL of DATE - see paragraph CARDINAL below ) . Mr de Geouffre de la Pradelle sent the ORG a statement of his objections in which he challenged the point of designating the land in the first place and suggested organising an inspection of the site by all the parties concerned .

On DATE , following a favourable report by ORG , the Prime Minister , after consulting the ORG d’État , issued a decree ( section CARDINAL of the LAW DATE -see paragraph CARDINAL below ) designating the Montane valley . On DATE ORG ) published the following extract :

" By a decree dated DATE , the area formed by that part of the Montane valley situated within the administrative districts of GPE and PERSON is designated as CARDINAL of the areas of outstanding beauty in the département of ORG . "

The present decree shall be notified to the ORG , Commissioner of GPE PERSON , and to the mayors of the districts concerned .

On DATE the Prefect of PERSON served the full text of the decree at the applicant ’s GPE home , together with a letter that read :

I have the honour to notify to you by this letter the decree of DATE designating the area formed by the Montane valley at GPE and PERSON , which is partly situated on your property , as a conservation area .

I should perhaps remind you that in the conservation area you are required to comply with the obligations laid down in the amended LAW DATE on the conservation of places of interest , and in particular in sections CARDINAL , DATE and DATE , which deal with transfers , alterations and the creation by agreement of any easements which might affect a designated place of interest .

On DATE the applicant , acting through his lawyer , applied to the ORG d’État for judicial review of the decree of CARDINAL DATE .

As his main submission , the Minister for ORG argued that the application was " apparently made out of time " ; as the designation decree did not contain any " special directions " , the time within which any appeal had to be brought ran from its publication in ORG .

In his reply the applicant began by challenging the administrative authorities’ interprétation of Articles CARDINAL and CARDINAL of the decree of CARDINAL DATE ( see paragraph CARDINAL below ) , according to which , in the absence of any special directions , the time within which any appeal had to be brought ran from the publication of the designation decision in ORG . He regarded the approach adopted by the administrative authorities as being a likely source of difficulties for members of the public . Could it reasonably be asked of people , he continued , to envisage exceptions being made to the normal rule , namely that the time allowed for appealing should begin to run from publication in the case of general regulatory decisions and from notification in the case of individual decisions ? Where appeals and the procedures for bringing them were concerned , things should be simple . And if , as in the instant case , there was no good reason for making an exception , it was only right to retain a practice consistent with ordinary law .

He added that , at all events , if the authorities’ interprÉtation were to prevail , Articles DATE and CARDINAL would have to be considered unlawful as being contrary to the principle of equality in that an owner of property covered by such a decision would be less favourably treated than other persons affected by individual measures .

In the alternative , he complained of the incompleteness and irregularity of the publication of CARDINAL DATE ( see paragraph CARDINAL above ) , which did not enable the persons concerned to acquaint themselves with the exact scope of the designation . In his submission , the time allowed for appealing had begun to run only when the full text of the decree was made available to the public at the NORP prefecture ; and the administrative authorities had not shown that the application registered on DATE had been registered DATE after the full text had been made available . Mr de Geouffre de la Pradelle alleged , lastly , that the impugned measure was a naked misuse of power designed to frustrate his modernisation scheme ( see paragraph CARDINAL above ) and the exercise of the water rights associated with his status as a former producer of electricity .

On DATE the ORG d’État , accepting the submissions of the Government Commissioner ( commissaire du gouvernement ) , declared the application inadmissible for the following reasons :

By DATE the Ordinance of DATE , ‘ unless otherwise provided by legislation , an application to the ORG d’État against a decision by an authority , court or tribunal within its jurisdiction shall be admissible only within DATE ; this period shall run from the date of publication of the disputed decision unless it has to be notified or served , in which case the period shall run from the date of notification or service’ .

By the provisions of LAW of CARDINAL DATE , decisions whereby a natural monument or a place of interest is designated are published in ORG . Although , LAW , these decisions are notified to the property owners concerned where they contain special directions designed to alter the state or change the use of the site , and although the time within which any appeal to the courts must be brought runs in that case only from the notification of the designation decree or order , this latter provision applies only where it is necessary to give notice to the property owner to alter the state or change the use of the site . In other cases , however , the time in which any appeal to the courts has to be brought runs from the publication of the designation decision in ORG , even if after that publication the decision was notified to the property owner .

It appears from the evidence that the impugned decree designating the area formed by the Montane valley in the département of ORG did not include any notice to the property owners to alter the state or change the use of the site . It follows that , in accordance with the provisions referred to above , the time within which any appeal to the courts against the said decree had to be brought ran from the date of its publication in ORG .

An extract from the decree was published in ORG of DATE , together with the information that the full text could be consulted at the NORP prefecture . That being so , the applicant is not justified in contending that the publication was incomplete or irregular and consequently not such as to make time begin to run for the purposes of bringing an appeal . The application for review of the impugned decree was registered only on DATE , that is to say after the expiry of the time allowed for appealing under the provisions of the decree of CARDINAL DATE that have been examined above .

In order to overcome the fact that his application was out of time , Mr de Geouffre de la Pradelle maintained that these provisions were unlawful because they gave rise to discrimination to the detriment of the property owners of designated places of interest , seeing that these property owners did not have the same time - limits for appealing against designation decisions as other recipients of individual decisions .

But a decision to designate an area of outstanding beauty is not in the nature of an individual decision . Accordingly , the ground based on the argument that the impugned decree infringed the rules on the notification of individual acts and decisions fails .

It follows from all the foregoing considerations that the application is out of time and therefore inadmissible .

In DATE and DATE Mr de Geouffre de la Pradelle approached the ORG of the département of ORG to seek help with restoration of the site , which had been devastated by the exceptionally high winds of DATE . His application was unsuccessful .

In their current form the relevant provisions of the Law of CARDINAL DATE provide :

PART II - LISTING AND DESIGNATION OF NATURAL MONUMENTS AND PLACES OF INTEREST

" In each département there shall be drawn up a list of the natural monuments and places of interest whose conservation or preservation is in the public interest from the artistic , historic , scientific , legendary or scenic point of view .

Listing shall be effected by means of an order made by the Minister for ORG . A decree issued after consultation of the Conseil d’État shall lay down the procedure for notifying the listing to the property owners or for publishing it . Publication may replace notification only in cases in which the latter is made impossible by the large number of owners of one and the same place of interest or natural monument , or if it is impossible for the authorities to ascertain the identity or address of the owner .

On the land within the boundaries laid down in the order , listing shall entail an obligation on those affected not to undertake any works other than those relating to day - to - DATE agricultural use as regards rural land and to normal upkeep as regards buildings without having given the authorities CARDINAL months’ notice of their intention . "

" Where it is proposed to designate a natural monument or place of interest belonging wholly or in part to persons other than those listed in sections DATE CARDINAL , those affected shall be invited to submit their comments according to a procedure which shall be laid down in a decree issued after consultation of the ORG d’État . "

" A natural monument or place of interest forming part of the public or private property of the ORG shall be designated by means of an order made by the Minister for the ORG if there is agreement with the minister within whose field of responsibility the natural monument or place of interest lies and with ORG .

If there is no such agreement , designation shall be effected by means of a decree issued after consultation of the PERSON d’État . "

" A natural monument or place of interest forming part of the public or private property of a département or an administrative district ( commune ) or belonging to a public institution shall be designated by means of an order made by the Minister for the ORG if the public authority that owns it has consented .

Otherwise designation shall be effected , after the opinion of ORG and Places of Interest has been sought , by means of a decree issued after consultation of the ORG d’État . "

" A natural monument or place of interest belonging to any person other than those listed in sections CARDINAL and CARDINAL shall be designated by means of an order made by ORG , after the opinion of the département ’s ORG , ORG and ORG has been sought , if the owner consents . The order shall lay down the designation conditions .

Failing the owner ’s consent , the designation shall be effected after the opinion of ORG has been sought , by means of a decree issued after consultation of the ORG d’État . Designation may confer on the owner the right to compensation if it entails any alteration of the state or change in the use of the site causing direct , pecuniary and certain damage .

" From DATE on which ORG notifies the owner of a natural monument or place of interest of its intention to have it designated , no alteration may be made to the state or appearance of the site for a period of DATE unless special permission has been granted by the Minister for ORG , except for the day - to - day agricultural use of rural land and the normal upkeep of buildings .

" Designated natural monuments and places of interest may not be demolished nor may their state or appearance be altered ` unless special permission has been GPE . "

The decree of CARDINAL DATE provides , inter alia :

" Listing orders shall be notified by the ORG to the owners of natural monuments or places of interest .

However , where the number of owners affected by the listing of one and the same place of interest or natural monument is greater than a CARDINAL , the procedure of individual notification may be replaced by a general public announcement as provided for in DATE .

Recourse shall likewise be had to a public announcement where the authorities are unable to ascertain the identity or the number of the property owners . "

" The public announcements provided for in LAW ... shall be made at the instance of the ORG , who shall have the listing order published in CARDINAL newspapers , CARDINAL of which shall be a DATE newspaper that is distributed in the administrative districts concerned . This notice must be republished at the latest on DATE following the initial publication .

The listing order shall further be published in the relevant administrative districts , for a period of not DATE , by being displayed at the town hall and in all other places customarily used for posting up public notices ; ...

" The inquiry provided for in section CARDINAL - CARDINAL of the Law of DATE before any designation decision is taken shall be organised by means of a prefectoral order ...

This order shall specify the times and places at which the public may inspect the designation proposal , which shall contain :

an explanatory notice indicating the purpose of the conservation measure , together with any special designation directions ; and

a plan showing the boundaries of the conservation area .

The order shall be published in CARDINAL newspapers , CARDINAL of which shall be a DATE newspaper that is distributed in the administrative districts concerned . It shall further be published in these districts by being displayed on notice- boards ; the mayor shall certify that such publication has taken place . "

" For a period running from DATE of the inquiry to DATE following its close , any person affected may , by means of a registered letter with recorded delivery , send comments to the ORG , who shall inform the département ’s ORG ...

During the same period and by the same means the property owners concerned shall make known to the ORG , who shall inform the département ’s ORG ... , their objections or their consent to the designation proposal .

At the end of this period any property owner who has remained silent shall be deemed to have withheld consent . Where , however , the order that is the subject of the inquiry has been notified to the property owner in person , his silence at the end of the period shall be deemed to imply consent . "

" The designation decision shall be published in ORG . "

" Where a designation decision contains special directions that would alter the state or change the use of the site , it must be notified to the property owner .

This notification shall be accompanied by a formal notice to the effect that the site must be brought into conformity with the special directions in accordance with the provisions of LAW third paragraph ) of the PERSON of DATE . "

The relevant provisions of the circular of CARDINAL DATE are as follows :

Law of DATE made amendments to the Law of CARDINAL DATE regarding the procedure for listing and designating places of interest , the rights and obligations of those affected as a result of listing or designation decisions and the penalties for infringement of conservation measures .

Decree no . CARDINAL - CARDINAL of DATE laid down the conditions for implementing some of the new provisions introduced by that PERSON .

The purpose of the present circular is to define the scope of the LAW DATE and the means of implementing it .

I. Listing procedure and effects of listing

Another innovation introduced by LAW DATE and the decree of CARDINAL DATE is general publication as a method of informing property owners that a place of interest has been listed .

There are now CARDINAL possible procedures :

- either individual notification , in accordance with the arrangements currently in force in all cases ; or

- general publication ( public display and publication in CARDINAL newspapers ) , to which the ORG resorts when the number of property owners concerned is CARDINAL - as with places of interest covering a large area - or when CARDINAL or more property owners have not been identified .

This general publication will simplify the formalities that were necessary hitherto for the listing of a place of interest to have its full effect , and this will be particularly appreciable in the case of very large areas . It will have the advantage of ensuring that the public are well informed before the listing order is implemented .

II . Designation procedure and effects of designation

Because designation imposes substantial obligations on property owners , it will henceforth be preceded by an administrative inquiry open not only to the property owner or owners but to any interested member of the public .

This public - inquiry procedure shall be set in motion whenever a designation proposal is being prepared . It is still desirable that the designation proposal should be notified to property owners in person where they are known and are few in number or where they will have to be subject to special directions ; but it is not compulsory .

Lastly , it is important to note that individual notification of the designation decision continues to be compulsory

( CARDINAL ) in order that special directions designed to alter the state or change the use of sites may be enforceable ; and

( CARDINAL ) generally , in order that the penalties provided for in section CARDINAL may apply .


András Baka;Antonella Mularoni;Elisabet Fura;Jean-Paul Costa;Karel Jungwiert;Mindia Ugrekhelidze

In DATE the applicant married an NORP national of NORP origin who had entered GPE that DATE . CARDINAL children were born of the marriage . The family lived in PERSON , where the applicant ’s husband worked as a sales manager until his death on CARDINAL DATE . His ashes were buried in a family grave at a cemetery in PERSON . The grave has room for CARDINAL other urns . The contract on the burial plot is to expire on DATE , but will automatically be renewed for DATE when a new burial takes place there . Moreover , the person in possession of the right to the burial plot when the contract is about to expire is entitled to renew it .

In DATE the applicant moved to Västerås to be closer to her children . The distance between PERSON and Västerås is QUANTITY .

On DATE the applicant requested the cemetery authorities ( NORP - Västervåla Kyrkogårdsförvaltning ) to allow the transfer of her husband ’s urn to her family burial plot in GPE , which had been established in DATE and had room for CARDINAL urns . The applicant ’s parents were buried there and the applicant intended to be buried there after her death . GPE is situated QUANTITY from GPE . The applicant submitted in addition that she had no connection to PERSON any more , that all her children agreed to the removal and that she was sure her husband would not have objected to the transfer .

By a decision of DATE , her request was refused by the authorities in deference to the notion of “ a peaceful rest ” under LAW ( Begravningslagen , PERSON ) .

NORP On appeal , ORG in GPE ( GPE i PERSON ) upheld the refusal .

The applicant appealed to ORG in GPE ( Länsrätten i LOC ) which , by a decision of CARDINAL DATE , found against her . It stated as follows :

“ Pursuant to LAW , section CARDINAL , of LAW , remains or ashes which have been buried in a cemetery may not be removed from a burial plot in order to be buried in another burial plot . However , permission may be granted if there are special reasons therefor and the place to which the remains or ashes are to be removed has been determined .

According to the explanatory notes to LAW . CARDINAL , pp . DATE ) , the decision on a request for the removal of remains or ashes shall be restrictive , having regard to the deceased ’s right to a peaceful rest . Determination [ of such a request ] should be guided by the wishes expressed by the deceased whilst alive . As a general rule , it must be assumed that such a wish , if expressed , was taken into account when the burial took place . The paramount condition for allowing a transfer is obviously that it would not contravene the wishes expressed by the deceased when alive . Moreover , some connection between the deceased and the intended destination would usually be required .

In the present case [ the applicant ’s husband ] worked as a sales manager at the PERSON factory until DATE . He died on CARDINAL DATE , and the urn containing his ashes was placed in grave no . CARDINAL , quarter no . CARDINAL , in Västerfors . [ The applicant ’s husband ] came from GPE and had a ORG tradition . It appears that he did not express any wishes about his burial when he was alive .

ORG makes the following assessment :

Making an overall assessment , ORG finds that [ the applicant ’s husband ] did not have a closer natural connection to GPE than he had to PERSON . No other reasons have been submitted which could justify the disturbance of the peace of the grave after DATE . ”

The applicant ’s request for leave to appeal was refused by ORG in GPE ( Kammarrätten i GPE ) on DATE , and by ORG ( Regeringsrätten ) on DATE .

The applicant died on DATE . In accordance with her wishes , she was buried in her family burial plot in GPE .

Domestic provisions of relevance to the present case are to be found in LAW DATE ( Begravningslagen – “ the LAW ” ) , which came into force on DATE . Previously , they were contained in LAW DATE ( NORP om jordfästning m.m . ) .

It is mainly the parishes of ORG which are responsible for burial grounds ( LAW , section CARDINAL , of the Act ) and for decisions concerning , inter alia , graves and burials . It is also in the first instance for the church authorities to determine requests to move the remains or ashes of a deceased person ( Chapters CARDINAL , DATE and QUANTITY ) . A decision may be appealed to the county administrative board ( LAW , section CARDINAL , of the Act ) . Further appeals lie with the competent administrative court of appeal and , subject to the granting of leave to appeal , with ORG ( LAW , section CARDINAL , of the LAW ) .

When a person dies , his or her wishes concerning cremation and burial should , as far as possible , be followed ( LAW , LAW ) . This was also the rule under LAW DATE , the legislation applicable at the time of the applicant ’s husband ’s death . If there is a dispute between the survivors about where the burial should take place , it is for the GPE administrative board to decide ( LAW , section CARDINAL , of the Act ) .

Once remains or ashes have been buried , moving them from CARDINAL place to another is in principle not allowed . However , permission to move remains or ashes may be granted if special reasons exist and if the place to which they will be moved has been clearly stated ( LAW , section CARDINAL , of the Act ) . However , the grave must not be opened in such a way that the remains or ashes are damaged ( LAW , LAW , of the LAW ) .

The provisions of LAW , section CARDINAL , of the Act are based on respect for the sanctity of the grave . This is also why the provisions regarding the removal of remains and ashes are restrictive ; a deceased ’s grave must be left in peace and may only be disturbed under special circumstances . According to the explanatory notes to LAW PERSON , p. CARDINAL ) , the removal of remains or ashes may be permitted if a mistake occurred at the time of burial , if the remains of a husband , wife , parent or young child are to be brought together or , in some cases , if a refugee or immigrant wishes to take the remains of a deceased relative back to his or her country of origin . The deceased ’s own wishes should serve as guidance for the transfer decision . When such wishes are not known , regard should be had to the deceased ’s attachment to the place where he or she is buried . As a rule , removal should not be permitted if the deceased is buried in a place where he or she was active for a large part of his or her life . If , however , the cemetery is situated in a place where the deceased lived only temporarily , removal may be permitted .

In addition , the deceased should have had some connection with the place to which the remains are to be removed . According to the explanatory notes ( ibid . , pp . DATE ) , examples of such a connection could be that the deceased grew up in that place , had relatives or a family grave there , or perhaps had a holiday home there . As regards husbands and wives , it may be permitted to move CARDINAL of the deceased ’s remains to bring them together in a common grave , especially if the one who died last can not , for some reason , be buried in the same place as the first . Particular regard may be had to the wishes of the last survivor concerning the common burial place .

In DATE ORG ruled on several cases concerning the interpretation of LAW , section CARDINAL , of the LAW ( PERSON DATE ref . CARDINAL I - IV ) . These judgments reveal a restrictive interpretation . For instance , the fact that the surviving relatives have moved , that there is a long distance between the burial place and their new home , or that public transport to a burial place may be lacking , are not considered to be sufficient grounds for a transfer . In CARDINAL cases ORG , referring to the explanatory notes to the LAW and the reasons stated in the requests , found that those reasons were not sufficient to permit removal of the deceased ’s remains or ashes . These cases concerned , respectively , a fiancée who wanted to move her fiancé ’s remains , a husband who wanted to move his wife ’s remains , and a daughter who wanted to move her father ’s remains . In another case , however , which concerned a mother ’s request to move her child ’s remains to her husband ’s burial place , ORG found that there were sufficient reasons to allow the transfer .

In the case concerning a daughter ’s request to move her father ’s remains , the former wanted to bury the latter in the same cemetery as the one in which her recently deceased mother had chosen to be buried . ORG noted that the complainant ’s father had lived and worked in GPE , and was buried there in his grandfather ’s family grave . Having regard to the father ’s connection to GPE , ORG found no reason to presume that his burial there had been a mistake , and it held that there were no other sufficient reasons , after DATE , to permit the removal of the remains .


Preliminary objection dismissed (non-exhaustion);Violation of Art. 3;Violation of Art. 5-1-c;Violation of Art. 5-3;Violation of Art. 5-4;Remainder inadmissible;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses (Convention proceedings) - claim dismissed

The applicant was born in DATE and lives in GPE .

On DATE , at the Luzhniki market , the applicant was arrested on suspicion of drug - dealing by the operative officers NORP and PERSON of the LOC police station of GPE . He was identified by a Mr E. as the person who had sold him heroin . The exact time of the arrest was disputed by the parties . The applicant maintained that he had been apprehended at TIME , the Government claimed that it had happened at TIME

At TIME the applicant was searched at the police station by the police officer NORP in the presence of CARDINAL lay witnesses ( ponyatye ) . A sachet containing CARDINAL g of heroin was found on him .

A record of the applicant 's arrest was drawn up at TIME on DATE . On DATE the investigator ordered the applicant 's placement in custody . The decision did not specify the duration of the detention period ( see paragraph CARDINAL below for relevant legal provisions ) .

On an unspecified date a confrontation between the applicant and Mr PERSON was arranged . Counsel for the applicant was in attendance . Mr PERSON confirmed his statement that he had bought heroin from the applicant .

The applicant alleged that he had been beaten by police officers at the LOC police station on DATE . The Government denied that allegation .

It follows from the medical certificate of DATE issued by the trauma department of clinic no . CARDINAL that on DATE at TIME the applicant was brought for a medical examination by the LOC police officers . The medical examination revealed “ a haematoma in the area of fourth to sixth ribs on the left side , a haematoma in the left side of the lumbar region , an abrasion in the area of the left knee joint ” .

On DATE a senior assistant to the Nikulinskiy District prosecutor 's office issued a decision not to institute criminal proceedings in connection with the applicant 's claim of ill - treatment . The reasoning of the CARDINAL - page decision was founded on the statements by the police officers NORP , NORP and PERSON who had taken part in the applicant 's arrest and search . They denied that they had exercised any mental or physical pressure on the applicant .

Counsel for the applicant contested the decision of DATE before the deputy GPE Town prosecutor . They submitted that the medical certificate of DATE had been left outside the scope of the inquiry . The GPE Town prosecutor ordered an additional inquiry .

On DATE the senior assistant issued a further decision not to institute criminal proceedings . The entire reasoning read as follows :

“ During the additional inquiry , the Nikulinskiy District prosecutor 's office examined the medical certificate which indicated that on DATE [ the applicant ] had been brought to the medical unit where bodily injuries ... had been recorded .

It follows from the certificate issued by the head of the GPE police station Mr PERSON that the applicant did not have any health complaints on his placement in the investigations ward , of which he made a handwritten note in the medical register .

Moreover , during the additional questioning of [ the applicant ] by the assistant prosecutor that took place before his placement in custody in the presence of the advocate [ the name is unreadable ] , [ the applicant ] clarified that the police officers had not exercised pressure on him and that he had given the confession statement voluntarily . He had no claims against the police officers .

Having examined the collected materials , I find that [ the applicant 's ] allegations that he had been subjected to mental and physical violence by the police officers , have no objective confirmation . It is impossible to establish the circumstances in which the bodily injuries recorded in the medical certificate had been received because he did not mention these injuries to the assistant prosecutor and because [ at that time ] he had no visible injuries or health complaints . ”

On DATE the investigation was completed and the case file was transferred to the NORP district prosecutor 's office for final approval of the charge sheet .

On DATE the case against the applicant and PERSON was submitted to ORG of GPE for trial .

On DATE the NORP ORG of GPE received the case - file .

On DATE the NORP ORG of GPE issued a pre - trial decision . The decision represented a CARDINAL - page printed template , in which the dates , the applicant 's and his co - defendant 's names , and the charges against them were filled in by hand . The relevant part read as follows ( the pre - printed part in plain script and the part written by hand in italics ) :

“ ORG is competent to try the case ; sufficient evidence for examination of the case has been collected ; the charge sheet has been prepared in compliance with the requirements of the criminal - procedure law ; there are no grounds to revoke or vary the measure of restraint imposed on the defendant ; the defendant or third parties have not lodged any motions .

Recognising that the investigation of the case has been carried out in accordance with LAW and that the rights of the accused PERSON and [ the applicant ] have been respected , and that there are no obstacles to the judicial examination , the court DATE

HAS HELD –

To fix the hearing of the criminal case against PERSON and [ the applicant ] ... for DATE ... with the participation of prosecutor , counsel .

The measure of restraint – the same for each defendant ... ”

The decision was issued in the absence of the applicant or his counsel and no copy thereof was served on them .

On DATE the hearing was adjourned for DATE owing to the absence of counsel for the applicant .

On DATE ORG held a preliminary hearing in the case . Counsel petitioned the court for the applicant 's release pending trial . The court dismissed the request , finding as follows :

“ Having heard the parties to the proceedings and submissions by the prosecutor who asked that the petition for [ the applicant 's ] release not be granted , the court finds that there are no grounds to vary the measure of restraint imposed on [ the applicant ] because [ the applicant ] is charged with a criminal offence classified as a particularly serious offence punishable with deprivation of liberty and [ because ] the court has not yet completely examined the evidence collected by the prosecution . ”

On DATE and DATE and DATE counsel for the applicant appealed against that decision . They submitted that the applicant had a permanent place of residence in GPE and no criminal record and therefore there were no reasons to believe that he would abscond . They also indicated that the applicant 's detention from DATE had not been recorded or covered with any authorisation . Moreover , the applicant had been only remanded in custody for DATE and , accordingly , his detention after DATE had been unlawful .

On DATE ORG upheld the decision of DATE . It found as follows :

“ Pursuant to LAW , pre - trial detention in criminal cases is limited to DATE .

As it appears from the available materials , the criminal case was opened on DATE and on DATE [ the applicant ] was remanded in custody ; on DATE ] [ the applicant ] was transferred to the Nikulinskiy District prosecutor 's office of GPE where the case - file was sent . Accordingly , there was no violation of LAW during the investigation and the arguments in the appeal to the effect that the detention after DATE had been unlawful are not grounded on the case materials .

Pursuant to LAW , persons charged with [ drug - dealing ] can be remanded in custody on the sole ground of dangerousness of the offence ; in this connection the court upholds the findings of the first - instance court as to the absence of grounds for varying the measure of restraint , and considers these findings to be lawful . ”

On DATE counsel for the applicant again petitioned the trial court for his release pending trial . The request was refused . On DATE the decision refusing the request was appealed against to ORG . It does not appear that any response was received .

On DATE the Nikulinskiy ORG extended , of its own motion , the applicant 's detention by a further DATE or until such time as the merits of the charges had been examined , finding that his release would “ substantially impede a thorough , complete and objective examination of the case ” .

On DATE the applicant and PERSON were convicted of drug - related offences by ORG of GPE . Mr PERSON was relieved from the punishment by virtue of the amnesty act . The applicant was sentenced to DATE imprisonment in a high - security colony .

On DATE the ORG quashed the conviction on substantive and procedural grounds and remitted the case for a new trial by a different bench . ORG directed that the applicant remain in custody , without giving any reasons for that decision .

On DATE the trial hearing was adjourned because PERSON and witnesses did not appear .

On DATE the hearing did not take place because the bench was involved in another criminal case .

On DATE counsel for the applicant complained to the president of ORG that , because of previous adjournments of the hearings , the request for the applicant 's release had not been examined on the merits . She also pointed to inhuman conditions of the applicant 's detention . It does not appear that any response was received .

On DATE the hearing was adjourned because the presiding judge was ill .

On DATE the court examined the request for release and dismissed it . As witnesses did not appear , the case was adjourned until DATE . On DATE the applicant appealed against the refusal to ORG . It does not appear that his appeal was examined .

On DATE a new request for release was refused by the court . The hearing was adjourned until DATE because of the absence of PERSON and witnesses .

On DATE , CARDINAL and DATE the hearings were adjourned again , as the witnesses never appeared .

On DATE the court held a hearing . It heard the applicant , a witness for the defence and read out statements by witnesses who had failed to appear , including that by Mr E.

On DATE the applicant was found guilty as charged and sentenced to DATE imprisonment in a high - security colony and confiscation of property . As regards the applicant 's allegations of ill - treatment by police officers , the court found as follows :

“ Statements by the witnesses Er . and PERSON [ who testified ] that [ the applicant ] was neatly dressed at the moment of his arrest , as well as the statement by the witness PERSON . [ who testified ] that at the moment of the personal search [ the applicant 's ] clothing was dirty and that he looked like a tramp can not , in the court 's opinion , confirm the fact that [ the applicant ] was subjected to physical pressure by police officers because this allegation was examined in the court hearing and found to be unsubstantiated ; [ this finding is ] corroborated with statements by the [ police officers ] NORP , NORP , PERSON , PERSON , PERSON . and PERSON . , and by the decision not to initiate a criminal investigation into [ the applicant 's ] allegations ...

It follows from the medical certificate of DATE that a doctor of the trauma department examined [ the applicant ] and found injuries ... Before the court [ the applicant ] testified that these injuries had been inflicted on him by police officers . However , it was established in the court hearing that no physical or mental pressure had been exerted on [ the applicant ] ; the court infers therefrom that the bodily injuries recorded on DATE had been caused not under the circumstances described by [ the applicant ] , but in some other way unrelated to [ the applicant 's ] arrest and criminal proceedings against him . ”

In finding the applicant guilty of drug possession and sale , ORG relied on the material evidence ( the sachet with heroin seized from the applicant ) , the testimony by PERSON corroborated by statements of the police officers and lay witnesses present during the search and the record of the confrontation between the applicant and PERSON

On DATE the applicant appealed against the conviction . He complained , in particular , that the conviction was based , to a significant extent , on his self - incriminating statements given under the pressure of police officers on DATE of his arrest , as well as on the statement by PERSON who had fled from justice and did not testify in the second trial .

On DATE ORG dismissed the appeal and upheld the conviction . It repeated verbatim the first - instance court 's findings as regards the applicant 's allegations of ill - treatment .

From DATE to DATE and then from DATE to CARDINAL DATE the applicant stayed in remand centre no . IZ-CARDINAL/CARDINAL in GPE .

In DATE , the applicant was held in cells CARDINAL . CARDINAL , CARDINAL and CARDINAL , measuring approximately QUANTITY m. It follows from the documents submitted by the Government that the exact numbers of detainees could not be established because the registers had already been destroyed , however , the design capacity of the remand centre had been exceeded by MONEY .

In DATE , the applicant was held in cells CARDINAL . CARDINAL , CARDINAL , CARDINAL . Cell CARDINAL measured QUANTITY m and housed CARDINAL to CARDINAL detainees , cell CARDINAL had QUANTITY . m of floor space for CARDINAL inmates , and cell CARDINAL accommodated CARDINAL to CARDINAL persons on QUANTITY m.

On DATE counsel for the applicant complained about “ appalling conditions ” of his detention to ORG of GPE and to the Minister of Justice .

On DATE the applicant drafted a hand - written complaint to ORG of GPE . He wrote that he had spent DATE in overcrowded cells that swarmed with bugs and lice . He suffered from lack of fresh air that hardly penetrated through the windows covered with metal bars . A majority of his forty cell - mates were heavy smokers ; the light was on round the clock and people had to sleep in shifts . The toilet was not separated from the rest of the cell and offered no privacy whatsoever . He had contracted various diseases , including scabies , “ putrefaction of limbs ” , constant headaches and hypertension . According to the applicant , he did not send that complaint because he feared the reprisals the prison officials had threatened him with .

On DATE the applicant 's representative received CARDINAL similar responses from ORG . She was told that on arrival to the detention facility the applicant had been examined by a doctor who found him in good health . On DATE a general practitioner gave him preventive treatment for scabies ; on DATE he was diagnosed with vegeto - vascular dystonia of normotonic type ; on DATE he received preventive treatment for scabies ; on DATE the applicant was diagnosed with atypical dermatitis . His state of health was found to be “ satisfactory ” .

On DATE the applicant 's representative received responses to her further complaints . She was informed that on DATE the applicant had sought medical assistance for pyodermatitis and received appropriate treatment . On DATE the applicant had been moved to another prison and placed in a common cell with CARDINAL other detainees . On DATE the administration of the detention facility refused medicines brought by the applicant 's mother because the medical office of the facility had had all the necessary medicines . On DATE the applicant was diagnosed with skin itch and residual effects of pyodermatitis .

The RSFSR Code of Criminal Procedure ( in force until DATE , “ the CCrP ” ) established that a criminal investigation could be initiated by an investigator upon the complaint of an individual or on the investigative authorities ' own initiative when there were reasons to believe that a crime had been committed ( Articles CARDINAL and CARDINAL ) . A prosecutor was responsible for general supervision of the investigation ( ORG CARDINAL and CARDINAL ) . He could order a specific investigative action , transfer the case from CARDINAL investigator to another or order an additional investigation . If there were no grounds to initiate a criminal investigation , the prosecutor or investigator issued a reasoned decision to that effect which had to be notified to the interested party . The decision was amenable to an appeal to a higher prosecutor or to a court of general jurisdiction ( LAW .

On DATE ORG of GPE held that anyone whose legitimate rights and interests had been affected by a decision not to institute criminal proceedings should have the right to appeal against that decision to a court .

LAW of DATE establishes that a judicial decision is required before a defendant can be detained or his or her detention extended ( Article CARDINAL ) . A decision ordering pre - trial detention could be taken by a prosecutor or a court ( Articles CARDINAL , CARDINAL and CARDINAL of the CCrP ) .

Before DATE , pre - trial detention was authorised if the accused was charged with a criminal offence carrying a sentence of DATE imprisonment ( LAW CCrP ) . The amendments of DATE repealed the provision that permitted defendants to be remanded in custody on the sole ground of the dangerous nature of the criminal offence they committed .

After the arrest the suspect was placed in custody “ pending the investigation ” for an initial DATE period ( LAW of the ORG ) . Further extensions could be granted by a prosecutor .

Once the investigation had been completed and the defendant had received the charge sheet and finished reading the case file , the file was transferred to a trial court . From DATE the defendant 's detention was “ before the court ” ( or “ pending the trial ” ) . Until DATE LAW set no time - limit for detention “ pending the trial ” . On DATE a new LAW was inserted which established that the period of detention “ during the trial ” could not normally exceed DATE from the date the court received the file . The time - limit did not apply to defendants charged with particularly serious criminal offences .

The detainee or his or her counsel or representative could challenge the detention or extension order issued by a prosecutor , to a court . The judge was required to review the lawfulness of , and justification for , the order DATE after receipt of the relevant papers . The review was to be conducted in camera in the presence of a prosecutor and the detainee 's counsel or representative . The detainee was to be summoned and a review in his absence was only permissible in exceptional circumstances if the detainee waived his right to be present of his own free will . The judge could either dismiss the challenge or revoke the pre - trial detention and order the detainee 's release ( LAW CCrP ) .


The applicants , born in DATE and DATE respectively , are NORP nationals who are living in GPE . The first applicant is the father ( PERSON ) of the second applicant ( PERSON ) .

A.

The facts of the case , as presented by the applicants , may be summarised as follows .

On DATE PERSON was arrested by policemen and taken to ORG . He was charged with disseminating illegal propaganda for the ORG .

He was placed in custody to be questioned by policemen . He alleged that he was hosed with pressurised water , that electric shocks were administered to his body and was prevented from sleeping . He was subsequently requested to give information and to admit the charges .

On the same day policemen from ORG searched the applicants’ house with the consent of ORG wife and on the orders of the principal public prosecutor at ORG .

On DATE a doctor at ORG examined ORG medical report was prepared , which stated that he bore no trace of illtreatment and that he was fit . He was then released .

On DATE the principal public prosecutor at ORG issued a decision of non - prosecution in relation to PERSON The public prosecutor considered that he had not been involved in the ORG and that his acts did not constitute the offence of illegal propaganda .

On DATE the applicants filed a petition with the NORP public prosecutor ’s office . They complained that the policemen had unlawfully searched their house . PERSON further complained that the policemen had tortured him during his detention in custody .

On DATE the NORP public prosecutor issued a decision of non - prosecution in relation to the policemen at ORG . He considered that there was insufficient evidence on which to institute criminal proceedings against the policemen .

On DATE the applicants filed an objection with ORG against the LOC public prosecutor ’s decision of DATE .

On DATE ORG dismissed the applicants’ objection . The court stated , inter alia , that

“ ... the complainants PERSON and PERSON complained that the latter had been tortured during his detention in police custody . However , the medical reports of CARDINAL and DATE , prepared by Dr. PERSON from ORG , stated that PERSON bore no trace of ill - treatment and that he was fit .

In his petition of DATE PERSON further complained that his house had been searched by use of force ... It has been understood that the house search report of DATE bore the signature of his wife PERSON Erdagöz who had consented to the search of her house . It follows that the decision of non - prosecution is lawful and the objection should be rejected .... ”


The applicant was born in DATE and lives in the village of NORP , GPE region , GPE .

The applicant worked as a customs officer at ORG in LOC , GPE .

On DATE the applicant was charged with the criminal offences of aiding and abetting in smuggling and tax evasion , abuse of power and fraud . The same day the applicant was arrested . He remained in custody until DATE .

On DATE ORG of PERSON decided the applicant ’s case . The court established , in particular , that the applicant had certified documents confirming that CARDINAL vans with goods had left the customs territory of GPE , and that the applicant had not checked the actual presence of the vehicles at the customs post . The goods were , however , found and seized by ORG somewhere else within the customs territory of GPE . The court did not find any proof that the applicant had acted deliberately in order to aid the crime : the applicant denied any criminal intent and no other persons involved in the actual smuggling or tax evasion had been established by the investigation . On the basis of these findings , the court sentenced the applicant to CARDINAL years’ imprisonment for the negligent performance of his professional duties and to a fine of UAH CARDINAL . At the same time , the court acquitted the applicant of other charges . By the same decision , the applicant was absolved from this sentence under LAW of DATE . This decision was not appealed and became final on DATE .

On an unspecified date , the President of ORG lodged a request for a supervisory review of the judgment of DATE , on the grounds of an erroneous qualification of the applicant ’s actions and his unreasonable acquittal on the other criminal charges brought by the prosecution . The President also noted that the sentence was too lenient .

On DATE the ORG of ORG allowed the request of its President , quashed the judgment of DATE , and remitted the case for a fresh consideration . The court instructed the first instance court to examine more thoroughly the existing evidence in the case and to conduct additional , more comprehensive interrogations of the accused and the witnesses .

On DATE ORG of PERSON considered the case anew and sentenced the applicant to five years’ imprisonment , suspended for DATE pending probation , and a fine of UAH CARDINAL . The court found the applicant guilty of aiding and abetting in smuggling , an abuse of power and fraud . The court acquitted the applicant of aiding and abetting tax evasion , since all the smuggled goods had been seized by the law enforcement bodies and no profit had been made by anyone selling them .

On DATE ORG of ORG upheld the decision of the first instance court . The former found that the first instance court had correctly qualified the applicant ’s actions . This decision was final .

On an unspecified date , the President of ORG lodged a request for a supervisory review of the judgments of CARDINAL DATE and DATE , on the ground that the courts had not followed the instructions given in the previous decision of the Presidium of ORG of DATE about the qualification of the applicant ’s actions and the severity of the sentence .

On DATE the Presidium of ORG chaired by the President allowed the request , quashed the decision of CARDINAL DATE , and remitted the case for a fresh consideration . The ORG found that the first instance court had not followed the earlier instructions and that the sentence was too lenient .

On DATE ORG of PERSON considered the case anew , found the applicant guilty of all charges and sentenced him to CARDINAL years’ imprisonment .

On DATE ORG allowed the applicant ’s cassation appeal and changed the decision of the first instance court , sentencing the applicant to CARDINAL years’ imprisonment for the negligent performance of his professional duties . The court noted that no criminal intent in the applicant ’s actions could be established and , given the lapse of time , it seemed improbable that any other offenders , who had been directly involved in smuggling , could be found . Therefore , the court acquitted the applicant of the other charges ( aiding and abetting in smuggling and tax evasion ) for a lack of corpus delicti . By the same decision , the applicant was absolved from his sentence under LAW of DATE .

At the material time , LAW of LAW allowed a final and binding judgment to be subject to a supervisory review . The final judgment in a case could be appealed under the supervisory review procedure by the President of ORG or ORG of GPE , ORG or ORG GPE or their Deputies ( Article CARDINAL ) , and had to be considered by ORG or ORG ( Article CARDINAL ) . Under Article CARDINAL , if the appeal against the final judgment was to the detriment of the person thereby convicted or acquitted , it could be lodged only within DATE after the impugned judgment had come into force . Otherwise , the supervisory review appeal could be lodged at any time .

The supervisory review procedure was repealed in DATE .


STEFANOVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

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

The applicant worked as a warden in company ORG ( “ the employer ” ) until DATE when he was dismissed . On DATE the applicant challenged his dismissal before ORG ( “ the first - instance court ” ) .

On DATE the first - instance court accepted the applicant ’s action , annulled the dismissal decision and ordered his reinstatement . It established that the dismissal decision had not reached the applicant although posted by the employer . It was only on DATE that the applicant received this decision by ORG ( PERSON за вработување ) . The employer ’s managing board ( “ the board ” ) , by a decision of DATE , rejected the applicant ’s objection of DATE as out of time . DATE , the employer communicated to the applicant a copy of the dismissal and board ’s decisions . It further invited the applicant to the board ’s meeting listed for DATE to discuss the applicant ’s objection of CARDINAL DATE . This meeting was not held . On DATE the applicant lodged a fresh objection which remained undecided .

The court found that the applicant had not violated the rules on working discipline . It further dismissed the employer ’s arguments that the applicant ’s claim had not been filed in good time . In this connection , it held that the board had accepted jurisdiction to decide on the applicant ’s objection of CARDINAL DATE and rejected it DATE . The first - instance court held that the employer had failed to prove that the applicant had received the board ’s decision on DATE . The court therefore accepted the applicant ’s claim as having been submitted within the statutory time - limit , namely DATE following his second objection of DATE .

The employer appealed , inter alia , that the first - instance court had wrongly considered the applicant ’s claim as having been submitted in good time . It provided in support a copy of a ORG receipt list attesting that the applicant had received a letter from the employer on DATE which included the dismissal decision and the board ’s decision . It also argued that the dismissal decision should be considered together with the board ’s decision .

On DATE ORG accepted the employer ’s appeal and remitted the case for fresh consideration . It agreed that the employer ’s decisions should be considered together and instructed the lower court to order the applicant to specify his claim in that respect . It further found insufficient evidence as regards the alleged breach of working discipline . As to the complaints that the applicant ’s claim was out of time , the ORG stated that :

“ ... this court accepts the reasoning of the first - instance court that the applicant ’s claim was submitted within the statutory time - limit calculated as of DATE of submission of the applicant ’s objection in respect of the dismissal decision . In this context the ORG receipt list does not alter this finding since it is impossible to determine the contents of that letter . This evidence does not substantiate the allegation that the applicant submitted his claim out of time ... ”

On DATE the first - instance court accepted the applicant ’s claim and annulled the dismissal decision of DATE and the board ’s decision of CARDINAL DATE . It found , inter alia , that the board had not decided the merits of the applicant ’s objection of DATE although it should have done so by DATE . Neither did the board decide on the applicant ’s objection of CARDINAL DATE . The court concluded accordingly that the applicant ’s action had been submitted within the DATE time - limit .

On DATE ORG accepted the employer ’s appeal and overturned the lower court ’s decision declaring the applicant ’s action as being out of time . It found that :

“ ... on DATE the employer ’s second - instance commission decided on the applicant ’s objection of CARDINAL DATE . On DATE , this decision was communicated to the plaintiff ( the applicant ) so ... the plaintiff could seek protection of his rights before a competent court within DATE of the final decision of the party sued , namely ... the second - instance decision . ”

In an appeal on points of law , the applicant complained , inter alia , that the first- and second - instance courts , by their decisions of CARDINAL DATE and DATE respectively , had already accepted his action as having been submitted in good time .

On DATE ORG dismissed the applicant ’s appeal . It stated , inter alia , that :

“ ... According to the second - instance court , it is not in doubt that on DATE ( the applicant ) lodged an objection in respect of the dismissal decision of CARDINAL DATE . ( The employer ’s ) second - instance body decided on DATE . DATE , the second - instance decision was submitted to ( the applicant ) who could claim court protection of his rights within DATE of ( the employer ’s ) final decision . The first - instance court accepted that ( the applicant ) ... objected to the dismissal decision . ( The employer ’s ) second - instance body decided straight away ... The time - limit for challenging a dismissal decision can not restart because the latter has been served again , but now - by ( the employer ) ... ”


CASE OF MAMMADOV (JALALOGLU) v. AZERBAIJAN

Violations of Art. 3;Violation of Art. 13;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - domestic and Convention proceedings

The applicant was born in DATE and lives in GPE . More commonly known as PERSON in political circles , he was the Secretary General of ORG . It was one of the opposition parties that considered the presidential elections of DATE illegitimate because of alleged falsifications .

On DATE a number of opposition supporters held unauthorised public manifestations at FAC in the centre of GPE , protesting the results of the elections . The manifestations ended with public disorder and violent clashes between the crowd and the police . The applicant claimed that he had not personally participated in these manifestations .

According to the applicant , on DATE , CARDINAL p.m. and CARDINAL p.m. , several masked police officers , armed with PERSON rifles , appeared at the applicant 's house , demanding that he open the door . Before the applicant could do so , CARDINAL or CARDINAL of them entered the applicant 's apartment through a window . Without presenting an arrest warrant or any other document , the police officers handcuffed the applicant and his guest , GPE Then the officers dragged them out of the apartment and into a police car . The applicant and GPE were taken to ORG of ORG ( PERSON qarşı PERSON ; hereinafter “ the LOC ” ) .

Thereafter , the applicant was kept handcuffed for TIME in CARDINAL of the rooms inside the LOC 's building . When the applicant 's lawyer arrived and attempted to find out the reasons for the applicant 's arrest , the Chief of the LOC told him that the reasons would be given DATE .

On DATE , the applicant was taken to the basement of the LOC 's building , which was used as a temporary detention facility . There , in the office of the warden of the detention facility , he was ordered to strip naked in the presence of several policemen . The policemen checked his body for injuries and did not notice any . He was then placed in a cell with CARDINAL other detainees until TIME .

DATE , on DATE TIME , the applicant was taken to ORG of ORG and interrogated in the presence of his lawyer . After the interrogation , he was charged with “ organising public disorder ” and “ use of violence against state officials ” for his alleged role in the events of DATE . According to the applicant , he orally complained to the investigator that he had been ill - treated on the way to the LOC and after being placed in police custody .

At TIME ORG ordered the applicant 's detention on remand for DATE . This decision was subsequently upheld by ORG on DATE .

NORP The applicant was taken from ORG back to the LOC where he was kept , until DATE , in the same cell with CARDINAL other detainees .

At TIME on DATE the applicant was taken to the office of the Deputy Chief of the ORG , where he was told that he would be subjected to “ additional interrogation ” . The applicant objected , stating that the LOC officers had no competence to interrogate him after his indictment , but his objection was unsuccessful . The interrogation lasted until TIME and involved questions concerning the activities of members of his political party .

According to the applicant , during this interrogation , he was subjected to ill - treatment in the form of , inter alia , beating of the soles of his feet by CARDINAL masked policemen with truncheons .

In TIME of DATE the applicant was visited by representatives of ORG . He complained to them that he had been ill - treated while in police custody .

On DATE the applicant 's lawyer sent a telegram to ORG , complaining that the ORG did not allow him to meet with the applicant in the detention facility on CARDINAL and DATE . Finally , on DATE the applicant met with his lawyer and told him that he had been beaten by police officers in the LOC .

On DATE , the applicant was transferred from the ORG 's detention facility to ORG . CARDINAL . Upon the transfer , he was examined by the ORG 's doctors who observed injuries on his body ( more specifically , CARDINAL haematomas on his right calf and right heel ) and made relevant notes in their records .

On DATE the applicant 's lawyer filed a petition with the investigator of ORG dealing with the applicant 's case , requesting a medical examination of the applicant 's injuries . In the petition , the lawyer noted that the applicant had complained about torture in the ORG 's temporary detention facility and that he had personally seen injuries on the applicant 's calf and foot .

DATE , on DATE , not having received a reply from the investigator , the lawyer filed a complaint with the Head of ORG of ORG concerning the investigator 's failure to respond to his petition .

Following this , on DATE the investigator ordered a medical examination and on DATE the applicant was examined by a medical expert of ORG and Pathologic Anatomy Department of ORG . According to the forensic report issued on DATE , the expert observed the following injuries to the applicant 's body : ( CARDINAL ) a pale rosy circular bruise of QUANTITY on the left elbow joint ; ( CARDINAL ) a yellowish haematoma of an indefinite shape measuring QUANTITY on the upper part of the right calf ; and ( CARDINAL ) a yellowish haematoma of an indefinite shape measuring QUANTITY on the inside of the right heel . Finding it unnecessary to determine the degree of gravity of these injuries , the expert concluded that they had been caused by a hard blunt object . The expert also commented that “ [ the possibility that ] the injuries had been inflicted on DATE can not be excluded ” .

On DATE the warden of the ORG 's temporary detention facility was interrogated in connection with the applicant 's complaint . He testified that , when the applicant had been brought to his detention facility on DATE , he had been in good health and that no injuries had been observed on his body . He further testified that the applicant had not complained about any health problems upon his arrival in the LOC . He also denied the applicant 's allegations of ill - treatment in the LOC 's detention facility .

On DATE the Head of ORG of ORG , after interrogating CARDINAL police officers of the LOC , officially refused to institute criminal proceedings concerning the alleged ill - treatment of the applicant in the LOC 's detention facility , finding that the applicant 's allegations were not substantiated . The investigator noted that the police officers denied all the allegations of ill - treatment , that the forensic report did not establish conclusively that the applicant 's injuries had been inflicted while in police custody , and that the applicant failed to furnish any other evidence of ill - treatment .

Meanwhile , on DATE the applicant filed a separate complaint with ORG , complaining that he had been unlawfully arrested and tortured in police custody . Specifically , he complained that , during the interrogation in the office of the Deputy Chief of the LOC , for TIME , he had been beaten with truncheons on the soles of his feet by CARDINAL people in masks . He further noted that after the beating his cellmates had witnessed his injuries and provided some assistance to him . He asked the court to bring the officials concerned to criminal responsibility .

On DATE the ORG refused to examine the complaint due to lack of territorial jurisdiction , finding that complaints against the ORG officials must be filed with ORG .

On DATE the applicant filed a complaint of the same substance with ORG . This court also refused to examine the complaint due to lack of territorial jurisdiction . The matter was referred to ORG , which decided that it was within ORG territorial jurisdiction to examine the complaint .

Finally , on DATE ORG examined the applicant 's complaint concerning the unlawfulness of ORG Office 's refusal to institute criminal proceedings and dismissed it as unsubstantiated . The court specifically noted that the forensic report did not rule out the possibility that the injuries could have been inflicted to the applicant during the public disorder on DATE , i.e. prior to the applicant 's arrest . As such , the court did not consider this forensic report as conclusive evidence proving the applicant 's beating in the LOC 's detention facility . The court found that the applicant did not produce sufficient evidence to support his allegations .

The applicant appealed , claiming that ORG failed to give proper legal assessment to the evidence showing that he had been tortured in police custody . On DATE ORG upheld ORG decision . The full decision of ORG was posted to the applicant 's lawyer on DATE . No further appeal lay against this decision under the domestic law .

As for the criminal proceedings instituted against the applicant for his role in organising the public disorder on DATE , on DATE he was convicted and sentenced to DATE imprisonment . The court found that , although the applicant had not been personally present at FAC on DATE , he was one of the organisers of the public disorder and gave instructions to his followers from his party 's headquarters .

In DATE the applicant was released from serving the remainder of his prison sentence pursuant to a presidential pardon decree .

DATE ) of LAW provides as follows :

“ No one shall be subjected to torture or ill - treatment . No one shall be subjected to degrading treatment or punishment . ... ”

In accordance with LAW , torture of an individual who is under detention or otherwise deprived of his or her liberty is a crime punishable by imprisonment for a term of DATE ( Article CARDINAL ) . Infliction of physical or psychological suffering to an individual by way of systematic beating or other violent actions performed by a public official in his official capacity is a crime punishable by imprisonment for a term of DATE ( Article CARDINAL ) .

In accordance with LAW , criminal proceedings are instituted on the basis of a complaint by the victim of an alleged criminal offence .

The Law On Complaints against Acts and Omissions Infringing Individual Rights and Freedoms , dated DATE ( hereinafter the “ Law ” ) , provides for a judicial avenue for claims against public authorities . In accordance with LAW , any act or omission by a public authority infringing an individual 's rights or freedoms may be challenged either ( a ) directly before a court ; or ( b ) before a higher ( supervising ) public authority . If the complaint is first filed before a supervising public authority , such authority must inform the complainant in writing , within DATE of the receipt of the complaint , of the results of the examination of his or her complaint .

In accordance with LAW , a direct judicial complaint must be filed within DATE from the date the complainant became aware of the infringement of his rights or freedoms . However , if the complainant has initially filed a complaint against acts or omissions of the subordinate public authority with a supervising public authority , a judicial complaint challenging the decision of the supervising authority must be filed within DATE of receipt of this decision . Provided the complainant had a good reason for the filing of a complaint after expiry of the deadline , the court may still accept it .

According to LAW , the court is entitled to declare the disputed act or omission unlawful , to lift the liability imposed on the complainant or to take other measures to restore the infringed right or freedom , and to determine the liability of the public authority for its unlawful act or omission . The court 's finding of an infringement of the individual rights and freedoms gives rise to a civil claim for damages against the ORG .

The Civil Code contains similar provisions . In accordance with LAW , disputes between individuals and public authorities concerning individual rights and freedoms may be the subject matter for a civil action ( LAW and CARDINAL ) . Unlawful acts or omissions of a public authority or its officials give rise to a civil claim for damages against the ORG ( Article CARDINAL ) . The ORG 's civil liability is the same as that of an ordinary legal person ( LAW ) .

The Code of Civil Procedure provides for the procedure by which an individual can sue the ORG for damages in civil proceedings .

ORG for the Prevention of Torture ( CPT ) has carried out three visits to GPE . The first visit took place in DATE and involved visits to ORG . CARDINAL as well as the detention facilities under the authority of ORG , including ORG 's temporary detention facility . The main purpose of the second ( ad hoc ) visit in DATE was to collect information concerning the treatment of persons detained in relation to the events which followed the presidential election of DATE . The delegation interviewed CARDINAL persons held at ORG . CARDINAL . In addition , the delegation visited ORG 's temporary detention facility . The main purpose of the third ( ad hoc ) visit in DATE was to examine the situation in GPE prison . The ORG 's reports on these visits , except that of DATE , have not been made public , such publication requiring the consent of the ORG concerned , which has not been forthcoming .

While the ORG report concerning the visit of DATE mentions no specific instances of ill - treatment in LOC 's temporary detention facility , it notes that the delegation received numerous allegations of physical ill - treatment of persons detained by the police in the establishments under the authority of ORG . The types of ill - treatment alleged mainly concerned slaps , punches , kicks and blows struck with truncheons , gun butts and other hard objects . In some cases , the severity of the ill - treatment alleged – such as the infliction of electric shocks , blows struck on the soles of the feet , blows to the body while the person concerned was handcuffed in a suspended position – was such that it could be considered as amounting to torture . Further , several persons gave accounts of different forms of humiliation and threats to use physical force ( including sexual violence ) against them or their relatives , in order to make them confess to a crime or provide information .