No violation of Art. 2 as regards the State's alleged failure to protect the right to life;Violation of Art. 2 as regards the effectiveness of the investigation;No violation of Art. 5;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

The facts surrounding the disappearance of the applicant 's husband are disputed between the parties .

The applicant 's husband , PERSON , had been arrested and tried on several occasions in the past for political offences . Plain - clothes policemen used to keep him under surveillance .

On DATE , ORG travelled by bus from GPE to GPE , a city near the border with GPE , to visit relatives . During its journey to PERSON , the bus was stopped by a car and a person from this car got on the bus . Before its arrival in PERSON the same car stopped the bus once again and the person who had got on the bus earlier returned to the car . This car followed LOC until he arrived at his relatives ' house in GPE .

On DATE PERSON left GPE for GPE . He did not arrive home and has been missing since . When entering her home on DATE after her husband 's disappearance , the applicant noticed that the front door was open and that her television had been turned on . In her opinion , the persons who entered her home had done so with her husband 's key .

The applicant filed petitions with several administrative and judicial bodies inquiring about her husband 's whereabouts . On DATE , she applied to the prosecutor at ORG and , on DATE , to ORG and , via ORG , to the President , the Prime Minister , the Minister of ORG and ORG of ORG . On DATE the applicant applied to ORG in GPE . On DATE she applied to the Governor 's office in GPE , ORG and ORG . On DATE she further applied to the Governor 's office in GPE .

On DATE the applicant applied to the PERSON public prosecutor . She complained that she was being followed by persons , whom she believed to be plain - clothes police officers . She further complained of receiving anonymous phone calls at her home by someone who swore at her and who threatened to kill her .

In her letters of DATE , the applicant informed the public prosecutor and the Governor in GPE about an important statement made by a prisoner , PERSON , to some other prisoners in which he gave detailed information about the killing of GPE .

The applicant claims that ORG was a ORG agent who had infiltrated the ORG ( “ Marksist PERSON GPE ” – a prohibited left - wing organisation ) in order to gather information about their activities . Prior to that , he had participated in counter - guerrilla activities and had been involved in the killing of a number of persons . He was strangled to death in prison on DATE . According to the applicant , ORG gave this statement when he was questioned after having been arrested and detained in the PERSON prison on suspicion of being a ORG member , an offence for which he was later tried before ORG .

According to this statement , which was taped and later transcribed , PERSON was questioned in GPE by a gang , whose members included police officers , soldiers and itirafçılar . He was subsequently killed by PERSON and PERSON and his body was thrown into the river GPE , which forms part of the border between GPE and GPE . In her letter , the applicant further stated that ORG had drawn a sketch of the place where GPE had been killed and that he had given a detailed description of the clothes ORG had been wearing , in particular his shoes , wallet and wrist - watch . These details were confirmed by the applicant to be accurate . The applicant finally stated that it had to be deemed certain that ORG had been killed . She requested the authorities to investigate this new evidence and to show her photographs and other documentary materials concerning unidentified corpses found in the area .

The applicant claims that she did not receive any reaction from the administrative and judicial bodies she petitioned other than CARDINAL invitation for her and her husband 's mother to give a statement and CARDINAL invitation for ORG brother to identify a corpse found in the area where ORG had disappeared . In this respect , the applicant pointed out that , although she and her relatives had already applied to the domestic authorities in DATE after ORG disappearance , the documents submitted by the Government are dated DATE .

Following the receipt of the petition of DATE , the PERSON public prosecutor instigated an investigation . He contacted ORG in order to find out whether ORG had been taken into police custody . On DATE he was informed that this was not the case . As the search for GPE in GPE was unsuccessful , his photograph was transmitted to all ORG in GPE .

Further investigations were opened by the ORG public prosecutor , the PERSON public prosecutor and ORG of ORG , following a request of DATE by CARDINAL persons detained in LOC to elucidate the fate of GPE .

On DATE , in reply to a request thereto , the PERSON gendarmerie command informed the public prosecutor that their custody records were being verified and that they had started identity checks in their region . On DATE , the gendarmerie authorities informed the public prosecutor that their efforts remained unsuccessful .

On DATE the PERSON public prosecutor informed the GPE public prosecutor about the investigation and requested information as to whether ORG had been taken into police custody in GPE . On DATE ORG informed the PERSON public prosecutor that ORG had not been taken into detention by the GPE security authorities .

Following the receipt of the applicant 's petition of DATE for a supplementary investigation on the basis of the statement given by ORG , the PERSON public prosecutor informed the public prosecutors of respectively PERSON , GPE , GPE and Uzunköprü of the investigation and requested information about unidentified bodies found in the area . ORG relatives were invited to identity one body from photographs . According to them , the body found was not that of GPE .

An investigation was conducted concerning the statements given by ORG . In this connection , it was revealed that he had been killed in the PERSON prison by his co - activists in the ORG ( PERSON – a prohibited left - wing organisation ) . According to a press release issued by the ORG , ORG had acted as a spy and had betrayed the organisation 's confidential strategy . According to this press release , ORG had been tried under the rules of the ORG and had been sentenced to death . The statement referred to by the applicant had been taken by ORG members in the context of this “ trial ” . According to the ORG , ORG was not a ORG agent and had no associations with the ORG and affiliated agencies .

In fact , it was established in the criminal proceedings brought against the suspected perpetrators of the killing of ORG that he had been killed accidentally by another prisoner , PERSON , following a fight provoked by ORG .

It appeared from ORG statement that the gang which killed the applicant 's husband had also kidnapped and killed persons in the ORG districts of ORG . Therefore , an investigation was carried out in the places named by ORG . In the course of this investigation , the prosecution authorities summoned several village mayors ( muhtar ) in the region of ORG and took their statements .

On DATE PERSON , the mother of GPE , filed a petition with the PERSON public prosecutor in which she stated that her son had come from GPE to visit her , that he had left her house on DATE and that since then he was missing . She asked the public prosecutor to search for him .

On DATE the applicant filed a petition with the public prosecutor at ORG . She stated that , on the basis of a statement given by a detainee in PERSON , she suspected that her husband had been arrested and possibly taken to PERSON . However , the authorities in PERSON informed her that her husband was not detained there . She requested the prosecutor to search for her husband .

On DATE the applicant informed ORG that her husband had disappeared on DATE . She further stated that , in the past , her husband had been arrested many times for political reasons and that he had been followed by the police before he disappeared . She asked ORG to obtain her husband 's fingerprints from ORG , to compare them with the fingerprints of all unidentified bodies found and to provide her with information that might be helpful .

On DATE ORG addressed a letter to the President of GPE on behalf of the applicant , informing him of the disappearance of GPE and stated that the applicant had applied to various authorities . The President was requested to order a search for GPE . On DATE , ORG sent similar letters to the Prime Minister , the Minister of the ORG and ORG .

NORP By letter of CARDINAL DATE , the applicant informed ORG of the disappearance of her husband and stated that she had applied to various authorities . As her husband had been apprehended , detained and tried for political offences on various occasions in the past , she deemed it plausible that he had been again apprehended and detained . She also contacted the ORG public prosecutor and ORG as well as the anti - terror branch of the PERSON security directorate . Her husband might have been taken there since , in a statement taken previously in PERSON , a person had implicated her husband . As the PERSON authorities had informed her that her husband 's name was not mentioned in their records she had also applied to the public prosecutor 's office at ORG , which informed her that her husband 's name was not included in their records either . She finally stated that all of her inquiries indicated that her husband , who had no previous health or family problems , was in the hands of the ORG ( PERSON ; ORG ) or the ORG ( PERSON ve PERSON ; ORG and Anti - Terror Branch ) , or even counterguerrillas . She stated that , in the absence of any other possibility , “ it was normal to conclude that a person with a political identity , opposing the ORG 's official policy , could be in the hands of such organisations . They are responsible for many extra - judicial killings and this is acknowledged by the ORG authorities from time to time . Also , the fact that someone has entered my house secretly by opening the door with a key and the fact that I have been followed makes my conclusion stronger ” . She asked ORG to search for her husband .

On DATE the applicant sent a similar letter to ORG , asking whether this service held any information about her husband 's disappearance .

On DATE the applicant further sent a letter to the GPE Governor , informing the Governor that her husband had disappeared since DATE , that in the past her husband had been arrested many times for political reasons and , prior to his disappearance , her husband had been followed by the police . She further informed the Governor that she had applied to the public prosecutor , Governor and ORG in GPE , various PERSON police stations , the hospitals and morgues in PERSON . She further stated that she had applied to ORG , the public prosecutor at ORG , prisons and ORG . She also mentioned having applied to ORG , ORG , ORG and other non - governmental organisations , the Prime Minister , ORG and ORG in GPE . She asked the Governor to investigate the matter . On DATE , the applicant sent a similar letter to the Edirne Governor .

On DATE the applicant filed a further petition with the PERSON public prosecutor , requesting an investigation into her husband 's disappearance . She gave a description of her husband and asked the prosecutor to compare her husband 's fingerprints with those of the unidentified bodies that had been or might be found within the prosecutor 's jurisdiction . She stated that her husband had been arrested in the past and that the authorities should have his fingerprints on record .

On DATE the applicant filed a petition with the PERSON public prosecutor , in which she stated that she had been harassed and threatened by some persons whom she believed to be ORG agents . The applicant requested the prosecutor to identify these persons and to prosecute them .

On DATE the applicant 's lawyer filed a petition on behalf of the applicant with the PERSON public prosecutor , informing him that GPE was still missing and that the applicant 's petitions to various authorities and institutions had not given rise to any results . In the petition , it is further stated that it had appeared from a confession made by a counterguerrilla , ORG , that ORG was questioned in GPE near GPE by a gang consisting of police officers , soldiers and itirafçılar ( defected members of an illegal organisation who provide the authorities with information about that organisation ) and led by PERSON , alias PERSON . According to this statement , ORG had been tortured and subsequently killed by PERSON and PERSON , who later threw his body in the river GPE . A transcript of the tape - recording of this statement given by PERSON as well as a sketch map , signed by ORG , of the place where ORG had been killed were joined to the petition . The public prosecutor was requested to take these elements into consideration in his investigation and to provide information about the unidentified bodies found in or around the river GPE . The public prosecutor was further informed that PERSON and PERSON were currently being held in the NORP prison in GPE .

On DATE , the applicant 's lawyer sent a similar letter to the Edirne Governor . On DATE the applicant 's lawyer also requested ORG to compare the fingerprints of ORG with those of all unidentified bodies and to provide any information that might be helpful .

On DATE the PERSON public prosecutor requested ORG to take a statement from PERSON , to search for GPE and to distribute his photograph to all police stations in GPE .

On DATE the applicant gave a statement at the NORP police station in GPE about her husband 's disappearance . She declared that her husband had a business in GPE selling building materials , that he had no debts and that in any event debts would not prevent him from coming home , that he had no family problems and that she feared for his life . She requested the police to conduct a search for him .

On DATE , PERSON gave a statement at the NORP police station in PERSON . She declared that her son had left her home on DATE in order to return to GPE and that he had since disappeared . She confirmed that on DATE she had filed a petition with the PERSON public prosecutor . The family unsuccessfully searched for her son and she feared for his life . She described PERSON , who was born in DATE , as being QUANTITY . tall , weighing QUANTITY , having a dark complexion and a scar on his right cheek . She requested the police to conduct a search for him .

On CARDINAL DATE the NORP police station in PERSON transmitted the statements taken on DATE from the applicant and PERSON to ORG , informing the latter that police officers of the PERSON station had searched for GPE at certain addresses and that his photograph had been distributed to all police stations in GPE . ORG was requested to transmit the file to the public prosecutor .

On DATE the PERSON public prosecutor transmitted the applicant 's petition of CARDINAL DATE to ORG , requesting the latter to investigate the matter .

On DATE the PERSON gendarmerie headquarters informed the PERSON public prosecutor that PERSON was not detained by them , that they had searched for him and that they had set up road check points . Their search remained unsuccessful , but they would continue to search for him .

On DATE the ORG informed the PERSON public prosecutor that ORG had been arrested in DATE in GPE for membership of the prohibited ORG / B party ( ORG ) . He was released on bail after having been detained for DATE and DATE . He was arrested again for the same reasons in GPE in DATE . He was released on bail in DATE . Without giving any dates , the letter further states that ORG had been arrested in GPE on a third occasion , this time for membership of the prohibited ORG party . He was detained and subsequently released on bail . On DATE PERSON was arrested in NORP ( near PERSON ) on a fourth occasion . He was arrested together with CARDINAL other persons . On DATE , ORG was handed over to the GPE police , who brought him to GPE , where he was detained on remand . The letter finally states that , since CARDINAL September DATE GPE , who had now allegedly disappeared , had not been arrested or detained in PERSON .

On DATE , ORG instructed ORG to take a statement from the applicant and to search for her husband .

On DATE the ORG gendarmerie headquarters sent a letter to the PERSON public prosecutor with the same contents as the one sent on DATE .

On DATE a statement was taken from the applicant at the PERSON police station . She confirmed that on DATE she had filed a petition with the PERSON public prosecutor and repeated the contents of this petition . The applicant provided the police with a passport photograph of her husband and his physical and personal particulars . These elements and the photograph put on record included in a pro - forma document that was transmitted to the other police forces involved in the investigation .

On DATE the PERSON public prosecutor sent the same instruction as the one sent on DATE to ORG .

DATE . On DATE the ORG informed the PERSON public prosecutor that they had taken a statement from the applicant and that they were searching for her husband .

On DATE on the basis of the criminal complaint filed by the applicant , the PERSON public prosecutor issued a decision not to take any criminal proceedings in relation to the disappearance of ORG as no suspect had been identified .

In his letters of CARDINAL DATE and DATE the PERSON public prosecutor asked the GPE public prosecutor whether PERSON was being detained in GPE .

On DATE , in reply to a request of DATE for information about the stage reached in the investigation into the disappearance of GPE , the PERSON public prosecutor informed the PERSON chief public prosecutor that the investigation was still ongoing .

On DATE the PERSON public prosecutor instructed ORG to search for ORG and to inform all other police forces of this search . On DATE , he sent a similar letter to the PERSON gendarmerie command , including a request for the search of GPE by the PERSON gendarmerie and to inform all other gendarme forces of this search .

On DATE , the head of ORG informed all police forces under its command of the investigation into the disappearance of PERSON , ordered them to request all police forces in GPE to search for ORG and to inform him of any findings . A notification to this effect was in fact addressed on DATE to all police forces in GPE .

In a report dated DATE and signed by CARDINAL gendarmes , it is stated that ORG had not been detained by them in the past . The report further states that the gendarmerie forces had searched for ORG in all villages within their jurisdiction and that they had found no one who had known anything about him . The report contains no indication of the gendarmerie station to which its authors were attached .

On DATE , in reply to the letter of CARDINAL DATE , the PERSON gendarmerie command informed the PERSON public prosecutor that PERSON Türkoğlu had never been detained by the gendarmerie and that they had no clues as to his whereabouts .

By letter of CARDINAL DATE the PERSON public prosecutor asked the NORP public prosecutor whether any unidentified bodies had been found in his jurisdiction and , if so , to provide him with details thereof . On DATE , the PERSON public prosecutor sent a similar letter to the public prosecutors of respectively PERSON , ORG .

On DATE the NORP public prosecutor transmitted to the PERSON public prosecutor the autopsy reports on CARDINAL bodies found on CARDINAL DATE and DATE respectively in his area of jurisdiction , as well as CARDINAL photographs taken of these bodies .

On DATE the Enez public prosecutor informed the PERSON public prosecutor that there were no pending investigations of unidentified bodies found in his area of jurisdiction and that his department had no records on GPE .

On DATE ORG requested ORG to provide information on the investigation carried out as to the allegations made by the applicant in her application to ORG .

On DATE the NORP public prosecutor informed the PERSON public prosecutor that no unidentified bodies had been found in his area of jurisdiction .

On DATE the PERSON public prosecutor ordered ORG to summon PERSON to his office .

On DATE the International Law and ORG of ORG requested the PERSON public prosecutor to be informed of the actions undertaken so far in respect of the applicant 's account of the disappearance of her husband and related incidents involving herself ( the repeated intrusion of unknown persons in her apartment , and her being followed and insulted by plain - clothes policemen ) as set out in her application form submitted to ORG . The PERSON public prosecutor was further requested to transmit a copy of each document in the file on the investigation .

On DATE , the GPE public prosecutor transmitted to the PERSON public prosecutor autopsy reports on CARDINAL unidentified bodies found in or near the river GPE since DATE .

On DATE , after having examined the autopsy reports and photographs that had been sent to the PERSON public prosecutor , PERSON Türkoğlu - the brother of GPE - gave a statement at the public prosecutor;s office in PERSON that he had not recognised his brother on the photographs and that the descriptions of the bodies found in the autopsy reports did not correspond to his brother 's physical appearance .

On DATE ORG informed ORG that ORG had been arrested and detained on DATE for membership of the ORG , and that on CARDINAL DATE the prosecutor at ORG had ordered his detention in custody . Since DATE , no search warrant for ORG had been issued . The letter further states that , following the applicant 's petition of CARDINAL DATE , the police had been informed and that on DATE , in the absence of any satisfactory results , all police forces had been notified . Furthermore , the GPE chief public prosecutor and the prosecutor at ORG were informed of the case . The applicant was given detailed oral information about the investigation and was told that everything would be done to resolve the matter . The letter finally states that , during a search in the house of GPE , who had been arrested on DATE for his activities in the ORG , press releases issued by the ORG were found stating that one of the murderers of ORG , had been killed by way of punishment .

On DATE , in response to the request of CARDINAL DATE , the PERSON public prosecutor informed the PERSON chief public prosecutor that , despite all efforts made , ORG could not be found and that the investigation was continuing .

DATE . On DATE , in reply to a letter of DATE , the PERSON gendarmerie headquarters informed ORG that in DATE no unidentified body had been found in their area of jurisdiction .

On DATE the ORG informed ORG responsible for Public Order that ORG had been arrested by the PERSON police on DATE for membership of the ORG and that he had subsequently been transferred to GPE . Since that date , PERSON was not arrested or detained by the PERSON police department .

On DATE ORG informed ORG in GPE that the search for GPE was ongoing and that it was established that the allegations made in the applicant 's letter sent to ORG were unfounded since his body had not been found in or near the river GPE and since no unidentified bodies had been found in this river in DATE and DATE . The letter finally states that the investigation is being pursued .

On DATE , ORG of ORG informed ORG that , according to a letter of DATE from the PERSON public prosecutor , ORG had not left the country after the date of his disappearance .

None of the documents submitted contain a reference to a petition filed by CARDINAL persons detained in LOC , requesting an investigation into the disappearance of GPE .

The statement consists of CARDINAL typed pages . At the bottom of each page the name “ ORG ” is written by hand and is followed by an illegible signature . In this statement , ORG declares that he was born in DATE in ORG , in PERSON and that in DATE he moved to GPE , a town close to PERSON . He found a job in a flour factory in GPE and met PERSON , PERSON and their friends . Together with these persons , he socialised with the police commissioner PERSON and the QUANTITY police officers , Ersan and PERSON . They used to go to ORG , where they met a person called Atalay .

Kasım Açık admitted in the statement that he had participated in the killing of a number of persons in the LOC area in DATE , including PERSON , whose body had been buried on a rubbish dump near GPE ( place near GPE ) and that he had participated in extorting money from businesses in the PERSON area . ORG and his friends used to spend the proceeds thereof with some police officers and they gave some of this money to ORG . In the statement , ORG further claims to have gone to ORG , where he and others received DATE training by the military and subsequently participated in operations in various places in south - east GPE . He further admitted having participated in the killing of an unspecified number of persons in and near GPE .

Kasım Açık acknowledged that , after his return to GPE , he had infiltrated the ORG and passed on information about the activities of this party to the police commissioner PERSON .

DATE . The statement also contains a detailed description of the killing of GPE . The statement , insofar as relevant reads :

“ We then went to GPE in CARDINAL cars and took GPE there with us . PERSON and also a commander were with us . PERSON was in the car in front of our car and we drove him to a place near LOC . There , Apo and I took him out of the [ car ] and they killed him . He [ GPE ] was wearing a wrist - watch , it looked like an old style ' Seiko ' . He also had a wallet and a small notebook . He was wearing a dark blue suit . After they killed him , Apo and I threw his body into the river . We then came back to GPE and dropped the commander outside GPE . When we took GPE there he looked as if he had been tortured , his clothes were dirty . ”

In this statement , ORG admitted having been involved , around the time of the killing of GPE , in the killing of a number of other persons , including PERSON and PERSON .

The sketch map drawn and signed by ORG indicates CARDINAL cars , CARDINAL parked behind the other , in an area with trees and what appear to be buildings . The cars are parked at a distance indicated as being QUANTITY from the river GPE . CARDINAL persons are indicated at the left side of the car parked in front . The manner in which these QUANTITY persons are drawn appears that QUANTITY persons are aiming a firearm at the third person . CARDINAL further persons are indicated as standing in front of the first car watching the scene . The sketch map contains the text “ sketch map of the place where we killed GPE ” .

On DATE the International Law and ORG of ORG informed ORG that it appeared from a document in the investigation file of the PERSON public prosecutor that ORG whereabouts had not yet been established , but that his record had been obtained . The letter further states that , on CARDINAL DATE the Edirne ORG was requested to issue a warrant for the arrest of ORG . This request was rejected by the ORG and an appeal against this decision was pending .

On DATE the International Law and ORG of ORG informed the ORG public prosecutor of the nature of the applicant 's case before ORG and of the statement given by ORG . The ORG public prosecutor was requested to investigate the accuracy of the account given by ORG in his statement .

In a letter of CARDINAL DATE the NORP public prosecutor informed the NORP public prosecutor that an investigation had been carried out of ORG allegation that a gang had killed CARDINAL persons named PERSON and PERSON . The place where these QUANTITY persons had allegedly been buried had been excavated but no bodies had been found . Local records had been verified and local people had been questioned , but without any results . An investigation of the activities of ORG and CARDINAL others had been carried out in DATE and the file on this investigation had been sent to ORG . The letter further states that PERSON , who - according to ORG killed ORG , used to live in GPE and that in DATE an investigation against PERSON and PERSON , an ORG , was carried out in relation to a murder . This investigation file was sent to the public prosecutor in DATE .

On DATE the International Law and ORG of ORG informed ORG that ORG had been charged with membership of the GPE branch of the prohibited ORG / ORG , with having thrown Molotov cocktails and having distributed propaganda leaflets . He was placed in pretrial detention on DATE and , on DATE , was transferred to FAC , where he was strangled to death on CARDINAL DATE . This letter further states that the fact that his confessional statement was made during his imprisonment cast doubts on its authenticity .

On DATE ORG informed ORG that ORG had been searched on suspicion of having been involved in the commission of arson and involvement in bombing incidents . He was apprehended on DATE and killed in prison on DATE . The letter further states that , after the arrest of GPE , the police conducted a search of the house of this person where they found documents published by the ORG stating that “ PERSON , CARDINAL of the murderers of GPE , has been punished by death ” . GPE was released on CARDINAL DATE upon instructions of the public prosecutor . No action was taken against him in relation to the documents found at his home .

On DATE the ORG chief public prosecutor issued a decision of non - prosecution in relation to the crimes alleged to have been committed by ORG . The public prosecutor noted in his decision that , in his confession statements , ORG had not given the names of the victims , their village or the places where they had been buried . He pointed out that , according to the records of DATE , no offence of abduction , murder or ill - treatment has been reported to the police , gendarmerie or judicial authorities within the district . The public prosecutor further noted that he had taken statements from CARDINAL muhtars ( mayors ) of the villages and neighbourhoods of the ORG district . The muhtars all stated no one in their village or neighbourhood had disappeared or killed in DATE and DATE , contrary to what was alleged by ORG . The public prosecutor concluded that there was no reason to continue the investigation into the alleged crimes given the fact that ORG has died and that therefore it was impossible to question him in relation to his allegations .

On DATE , with reference to the letter of CARDINAL DATE from ORG of ORG Minister and the letter of DATE from the ORG public prosecutor , the ORG public prosecutor informed the ORG public prosecutor that his investigation had been completed . He transmitted a copy of each document in the investigation file .

By a letter of CARDINAL DATE ORG informed the ORG chief public prosecutor 's office that no evidence could be obtained in relation to the alleged crimes committed by ORG given the fact that , in his confession statements , the latter had not specified in which crimes he had been involved .

On DATE the ORG public prosecutor informed ORG of ORG that the investigations conducted by the public prosecutors of , respectively , ORG and ORG in relation to the alleged incidents as related in the statement of ORG had been completed . He transmitted a copy of each document in those investigation files .

On DATE the ORG chief public prosecutor issued a decision of non - prosecution in relation to ORG as a result of the death of the latter .

In DATE an examination was carried out into the authenticity of the documents allegedly signed by ORG . In this connection , the arrest and body search protocols and the documents containing ORG confession statements were examined at FAC of ORG . Graphological comparison test of the handwriting and signature on the documents indicated that the said documents had been signed by CARDINAL different persons . The experts were of the opinion that the arrest and body search protocols were signed by CARDINAL person and the confession statements were signed by another person . However , they could not reach a certain conclusion as the documents in question were not the original copies .

On DATE the NORP public prosecutor requested the PERSON public prosecutor to open a criminal investigation against PERSON and DATE others in respect of the killing of ORG .

On DATE PERSON and CARDINAL other prisoners were charged with the killing of ORG and summoned to appear before the Kartal High Criminal Court ( Ağır Ceza Mahkemesi ) . PERSON was detained on remand in the PERSON prison awaiting the outcome of his trial on charges of membership of the ORG .

During the hearing before ORG on DATE PERSON admitted that he had strangled ORG with a piece of rope . He contended that ORG had suffered from psychological problems , that he had been very anti - social and that not been liked by any of the other inmates . On DATE he was killed , ORG had provoked PERSON by criticising the book that the latter had been reading . PERSON finally stated that he had acted alone and that no other inmate had been involved in the killing .

On DATE , the public prosecutor requested the court to drop the charges against the CARDINAL co - accused for lack of evidence and the fact that ORG had admitted killing PERSON . The public prosecutor sought the conviction of PERSON for murder .

On DATE the ORG convicted PERSON of murder and sentenced him to DATE imprisonment .

On DATE ORG upheld the above conviction but mitigated the sentence to DATE imprisonment .

By letter of DATE , ORG informed ORG of ORG that the applicant had visited GPE , where she had given an interview . This interview had been reported in an article in ORG , a newspaper published in GPE . According to this article , the applicant had stated that her husband had disappeared on DATE and that human rights violations and atrocities continued to occur in GPE . During the applicant 's stay in GPE , she visited ORG and NORP organisations , and had meetings with NORP Parliamentarians and members of ORG . She further organised a demonstration on DATE in GPE in support of the “ DATE Mothers ” , which demonstration was attended by , inter alia , NORP - based ORG and NORP - NORP organisations . During this demonstration , it was stated that human rights violations continued to occur in GPE .

According to an undated press release issued by the ORG , ORG had acted as a spy and had betrayed the organisation 's confidential strategy . According to this press release , ORG had been tried under the rules of the ORG and had been sentenced to death for the murder of GPE .

On DATE ORG ( ICAD ) , an organisation in GPE , issued a press statement and condemned the abduction and killing of GPE .

For the relevant domestic law and background information , the ORG refers to the judgments of GPE v. GPE ( no . CARDINAL , § § CARDINAL - CARDINAL , DATE ) and PERSON v. GPE ( no . CARDINAL , § § DATE , CARDINAL DATE ) .


George Nicolaou;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano

The applicant , Mr PERSON , is a NORP national who was born in DATE , died in DATE and lived in GPE . He was represented before the ORG by PERSON a lawyer practising in PERSON . ORG ( “ the Government ” ) were represented by their Agent , Mr J. PERSON of ORG .

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

From DATE , the applicant was the president of the board of directors of a company , ORG . z o.o . ( ORG ) . As a result of financial problems , the company went into liquidation on DATE .

In DATE the appointed trustee informed ORG that the company had been making losses since DATE and the bankruptcy petition should have been lodged much earlier .

On DATE ORG of ORG instituted of its own motion proceedings against the applicant for failure to comply with the insolvency procedure .

The court scheduled a hearing for DATE . However , the applicant did not participate in this hearing , as on DATE and on DATE he appeared before ORG , where his presence was obligatory .

On DATE the ORG gave a decision and barred the applicant from conducting any economic activity on his own account , from performing the functions of a representative or proxy of an entrepreneur , from being a member of the supervisory board and audit commission in a joint stock company , limited liability company or a cooperative for DATE . In addition it ordered that the applicant be listed in the insolvency register . The court considered that the applicant , acting as the president of the board of ORG . z o.o . , had failed to comply with the insolvency procedure and had filed the petition for insolvency too late .

The applicant appealed against this decision .

At a hearing held on DATE ORG of ORG dismissed his appeal . The court held , in particular , that :

“ The evidence gathered by ORG of its own motion does not demonstrate that the applicant was not guilty of delaying the insolvency petition . In addition he was completely passive in the proceedings before ORG . ”

After pronouncement of the decision , the court informed the applicant ’s representative that a cassation appeal was not available .

On DATE the applicant ’s representative filed a cassation appeal against the second - instance decision . He stressed that he had been aware of ORG case - law about unavailability of a cassation appeal in the proceedings under section CARDINAL of the DATE LAW . However , in his opinion , after GPE ’s accession to the ORG , ORG should re - examine the issue .

On DATE ORG rejected the cassation appeal as inadmissible in law . The court held that the proceedings had been instituted before DATE and therefore LAW applied . As it appeared from ORG case - law , it was not possible to file a cassation appeal against a decision of a second - instance court given pursuant to section CARDINAL of LAW .

The applicant appealed against this decision , arguing that the availability of a cassation appeal in the proceedings under LAW was not clear and emerged from the legal doctrine rather than from a clear provision of law . In addition , a new law on insolvency enacted in DATE expressly provided for the possibility of filing a cassation appeal in a similar situation .

On DATE ORG dismissed this appeal , upholding the decision of DATE . The court stressed that the new insolvency law of CARDINAL DATE clearly provided that the proceedings instituted before DATE should be examined under the DATE insolvency law . In addition , it held that despite the applicant ’s statements the current case - law was very clear about the unavailability of the cassation appeal . This decision was served on the applicant ’s representative on DATE .

The Ordinance of the President of GPE of DATE – LAW , as applicable at the material time – set out the rules governing insolvency proceedings . In so far as relevant it provided :

Section CARDINAL

“ § CARDINAL . An entrepreneur who has ceased to pay debts shall present , within DATE thereof , a bankruptcy petition to the court .

§ CARDINAL . A representative of the entrepreneur referred to under LAW paragraph CARDINAL shall present a bankruptcy petition within DATE from DATE when the assets have ceased to suffice to satisfy the debts unless the time - limit referred to under paragraph CARDINAL has already begun to run .

Section CARDINAL

“ § CARDINAL . Any person who has not fulfilled the duty referred to under LAW paragraph CARDINAL or CARDINAL shall be deprived , for DATE , of the right to conduct economic activity on his own account and to perform the functions of a representative or proxy of an entrepreneur , member of the supervisory board and audit commission in a joint stock company , limited liability company or co - operative , unless the said person is not guilty thereof .

§ CARDINAL . Issues referred to under paragraph l shall be subject to adjudication by the court conducting the proceedings for declaration of bankruptcy .

§ CARDINAL . The court shall institute the proceedings of its own motion .

§ CARDINAL . The court shall issue the decision on having conducted a trial .

§ CARDINAL . The court ’s decision on the ban referred to under paragraph CARDINAL shall be subject to appeal .

§ CARDINAL . Issues referred to under paragraph l , as regards their scope not regulated under paragraphs CARDINAL to CARDINAL shall be subject to the provisions of LAW on non - litigious proceedings . ”

On DATE the ORG delivered a judgment and declared that section CARDINAL was in compliance with the LAW . While the court did not rule on what kind of liability it provided , it noted that section CARDINAL² did not provide for a criminal sanction .

On DATE , the new Law on Insolvency and Restructuring was enacted . The relevant provision is now regulated by section CARDINAL . Section CARDINAL of that law expressly provides for the possibility of filing a cassation appeal against a decision of a second - instance court . However , according to the introductory provisions , the new law applied only to proceedings instituted after DATE .


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

Feyyaz Gölcüklü;John Freeland;N. Valticos;R. Pekkanen

At the time of his arrest Mr PERSON was a national of GPE . He was a plasma physicist and was working in GPE as a research assistant under contract to ORG ( ORG ) .

On DATE he was arrested at his home by the police and held in police custody until DATE , when he appeared before the investigating judge at ORG ( ORG l’Etat ) , who charged him with being in communication with agents of a foreign power , namely GPE , remanded him in custody and issued a letter of request ( commission rogatoire ) .

DATE and DATE the investigating judge questioned the applicant on CARDINAL occasions . DATE and DATE he issued several requests for evidence to be taken on commission by ORG ( DST ) and made orders for on - the - spot judicial inspections . He also further questioned the applicant by way of recapitulation .

On DATE he forwarded the file to the principal public prosecutor .

On DATE the Prime Minister issued a decree indicting Mr PERSON .

Shortly afterwards , however , the proceedings were transferred to ORG pursuant to LAW no . CARDINAL - CARDINAL of CARDINAL DATE abolishing ORG , section CARDINAL of which provided :

Cases pending before the ORG shall be transferred on the date of commencement of the present PERSON [ DATE ] to the appropriate ordinary courts ...

On DATE the principal public prosecutor at ORG requested that court to commit the applicant for trial by ORG . On DATE ORG so decided on the basis of section CARDINAL of the aforementioned PERSON , which provided :

... where the offences being prosecuted amount to the crime ( crime ) of treason or espionage or to some other breach of national security and there is a risk of a defence secret being divulged , ORG at ORG shall ... ask ORG to remove the case from the investigating judicial authority or court of trial and transfer it to the military judicial authority of the same kind and level which has territorial jurisdiction and which shall proceed in the manner , and according to the procedure , laid down in LAW ... "

On DATE the accused received a summons to appear on DATE . The hearing was postponed , however , and in an order of DATE , made on an application by the Government Commissioner , the President of ORG directed that further inquiries into the facts should be made .

The investigating judge in charge of the case issued several letters of request and corresponded with various civil and military authorities in order to determine the importance and scientific value of the documents that Mr PERSON had passed on to the NORP secret service . The further inquiries into the facts were completed on CARDINAL DATE .

The file , however , was automatically forwarded to the office of the principal public prosecutor at ORG , because on DATE there came into force Law no . CARDINAL - CARDINAL of DATE on the judicial investigation and trial of military offences and those involving national security ; section CARDINAL , first sub - paragraph , of that PERSON abolished the military courts in peacetime and provided that offences coming within their jurisdiction would henceforth be dealt with by the ordinary courts . The object was to enable ORG of ORG , once it had ruled on the lawfulness of the proceedings and determined the legal classification of the offences charged ( LAW ) , to commit the applicant for trial at the GPE special ORG , composed of CARDINAL judges , CARDINAL of whom presides ( Articles CARDINAL and CARDINAL ) .

On DATE ORG at ORG brought the case before ORG .

In a judgment of DATE ORG ordered the applicant ’s release under judicial supervision and on bail of MONEY ( ORG ) . Mr PERSON was unable to pay this until CARDINAL DATE , when he regained his freedom .

On DATE his counsel had filed pleadings . They relied on Articles CARDINAL and CARDINAL ( article CARDINAL , article CARDINAL ) of the LAW and complained in particular of the unlawfulness of :

( a ) the proceedings in ORG , because of the length of the police custody and the status of the investigating judge ; ( b ) the proceedings in ORG , on account of its lack of independence and impartiality ; and ( c ) the pre - trial detention , in view of its length .

In a second judgment on DATE ORG held that it had no jurisdiction to commit Mr PERSON for trial at ORG as the indictment had been in existence since DATE , when the Prime Minister had issued a decree concerning the applicant ( see paragraph CARDINAL above ) , and it did not have to be renewed since the legislature had expressly validated process and decisions dating from before the entry into force of LAW DATE and DATE . It reached the same conclusion in respect of the pleas of nullity based on the Convention .

On DATE ORG , allowing an appeal on points of law by the principal public prosecutor at ORG , set aside that judgment for the following reason : " While section CARDINAL of the Law of DATE and section CARDINAL of the Law of DATE lay down that all process , formalities and decisions dating from before the entry into force of the relevant Law shall remain valid , these transitional provisions in no way alter the rules applicable in the courts to which jurisdiction has been transferred . "

On the other hand , it held that the appeal on points of law brought by the applicant was inadmissible . Mr PERSON had filed pleadings reproducing the complaints set out in ORG but had not lodged them through counsel , and legal representation was compulsory in ORG except for applicants convicted under the criminal law .

It remitted the case to a differently constituted bench of ORG of ORG .

Mr PERSON again sought to have the proceedings declared null and void , but without success . In a judgment of CARDINAL DATE ORG committed him for trial at the GPE special ORG and rejected the plea based on Article CARDINAL para . CARDINAL ( article CARDINAL ) of the Convention .

On DATE ORG upheld that decision on the point in issue but set it aside for failure to comply with LAW , an essential provision that was mandatory as a matter of public policy ; ORG had omitted to declare null and void an order made by the investigating judge on DATE in which he had appointed translators without giving reasons for choosing ones who were not on a list of official experts .

The case having been remitted to it , ORG on DATE reached the same decision as it had on DATE . It held , notwithstanding the prosecution ’s submissions to the contrary , that translations made by qualified people were not expert opinions , despite the terms used by the investigating judge , and that accordingly the failure to comply with the rules on expert opinions did not give rise to a nullity . It again committed the applicant for trial at the GPE special ORG .

On a further application by PERSON , ORG , sitting as a full court , gave judgment on DATE . It set aside ORG judgment and remitted the case to ORG .

On DATE ORG quashed the order of CARDINAL DATE commissioning experts ( LAW ) and various procedural steps and ordered that a number of documents should be withdrawn from the file . It sent the case to one of the investigating judges at the GPE tribunal de grande instance with instructions that he should continue the investigation .

On a further appeal on points of law by the applicant , ORG gave judgment on DATE . It set aside the judgment of ORG and remitted the case to ORG of ORG , stating that if the latter found there was sufficient evidence against the accused , it should commit him for trial at the GPE special ORG .

The judgment was served on Mr PERSON on DATE .

On DATE the principal public prosecutor at ORG asked ORG to declare null and void certain procedural documents ( notably records of the interviews at which the applicant was questioned , letters of request and the documents relating to their execution , various reports and applications and , more especially , nearly all the translations of the documents in NORP that were communicated on DATE by officers from ORG ) ; to order that they should be withdrawn from the file ; and to appoint an investigating judge from the judicial district of ORG to continue the investigation .

On DATE Mr PERSON lodged pleadings in which he sought to have the proceedings quashed on the grounds that they had contravened Articles CARDINAL , CARDINAL and DATE ( article CARDINAL , article CARDINAL , article CARDINAL ) of the Convention , and asking for a declaration that the evidence admitted did not correspond to the crime of being in communication with a foreign agent , which was a punishable offence under LAW para . CARDINAL of LAW .

In a judgment of DATE ORG quashed most of the proceedings that had taken place after the order of DATE commissioning experts and decided to forward the file to the first investigating judge at the FAC tribunal de grande instance .

It refused the request made in the applicant ’s pleadings that it should consider the legal classification of the offences and the question of what evidence there was , on the ground that only the judicial investigation could enable an assessment to be made of these .

The complaints based on the Convention were dismissed . The question whether there had been a violation of LAW ) depended on the outcome of the investigation ; LAW ) did not apply to proceedings before an indictment division ; and ORG had already dismissed the complaint under LAW para . CARDINAL ( article CARDINAL ) , on DATE .

Mr PERSON appealed on points of law and asked ORG to hear the appeal immediately . In an order of CARDINAL DATE the President of ORG refused that request , holding that neither public policy nor the proper administration of justice required the hearing to be expedited ; he also considered that there was no ground for allowing the appeal as matters stood .

On DATE the case file was therefore sent to the first investigating judge at ORG .

On DATE , DATE and CARDINAL DATE he gave an expert at ORG a total of CARDINAL documents to translate . On DATE and CARDINAL DATE he gave an expert at ORG CARDINAL other documents to translate , together with a number of handwritten reports . The applicant was questioned by him on DATE , DATE and DATE , and on CARDINAL May the judge issued a letter of request to ORG .

On DATE Mr PERSON asked ORG to take certain investigative measures , to limit the scope of the further inquiries into the facts and to quash a letter of request of DATE and the record of the interview for questioning held on DATE .

On DATE ORG declared the application inadmissible , since it considered that as matters stood it was impossible to reach a judicial decision on any of the requests in it .

On CARDINAL DATE ORG recorded that the case file had been lodged with the registry after completion of the further inquiries into the facts , and on DATE it committed the applicant for trial at the GPE special ORG ( see paragraph CARDINAL above ) .

Mr PERSON appealed on points of law against both these judgments , but ORG dismissed the appeals on DATE .

Mr PERSON appeared before ORG on CARDINAL , DATE and DATE , and on the last - mentioned date he was convicted and sentenced to CARDINAL years’ imprisonment .

On DATE ORG of ORG decided to release him under judicial supervision .

On an application by PERSON , ORG , giving judgment on DATE , set aside ORG judgment of DATE . It remitted the case to a differently constituted bench of the GPE special ORG , which on CARDINAL DATE acquitted the applicant . The prosecution did not appeal within the DATE period laid down in LAW .


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

The applicant and her husband were married in DATE .

On DATE the applicant ’s husband placed CARDINAL NORP lei ( MDL ) on a DATE deposit account in a private bank , with PERCENT DATE interest .

On DATE he asked the bank for early termination of the contract and the repayment of his money . The bank did not comply with his request .

The applicant ’s husband brought an action against the bank , seeking the termination of the deposit contract and the repayment of his money and interest .

By a judgment of DATE ORG ruled in favour of the applicant ’s husband and ordered the bank to pay him MDL CARDINAL . On DATE the judgment became final and enforceable .

On DATE ORG issued a decision suspending the bank ’s licence . It also ordered liquidation procedures to be commenced and appointed an administrator for that purpose .

In DATE the applicant ’s husband brought a new action against the bank , seeking compensation for inflation . On DATE ORG ruled in his favour and ordered the bank to pay him MDL CARDINAL . On CARDINAL DATE the judgment became final and enforceable .

On DATE the applicant ’s husband asked the administrator to enforce the judgments of CARDINAL DATE and DATE . The latter did not reply to his request .

On an unspecified date , the applicant ’s husband brought an action against ORG , seeking the payment of the money owed to him by the private bank . He argued that ORG was the regulatory authority in respect of all financial institutions and should be held responsible for the bankruptcy of the private bank .

On DATE ORG dismissed the applicant ’s husband ’s action . It found that ORG was not responsible for the private bank ’s obligations towards its clients . On DATE ORG dismissed his appeal against the judgment of DATE . By a final judgment of DATE ORG dismissed the applicant ’s husband ’s appeal on points of law .

On DATE the applicant ’s husband died . On DATE the applicant received an inheritance certificate and became the sole owner of his part of their joint property .

On an unspecified date , the applicant ’s husband sent a letter to ORG and complained about the non - enforcement of the judgments in his favour . On DATE the ORG readdressed the letter to the President of ORG and requested the court to respond to the applicant ’s request . On DATE the President of ORG and the Bailiff replied to the applicant ’s husband that the bank did not have money in its accounts or other assets . They also informed him that the enforcement warrants had been given to the administrator of the bank , who should ensure their enforcement .

On DATE the applicant ’s husband ’s requested the administrator to enforce the judgments . On DATE the latter informed him that the bank was subject to a liquidation procedure and that the judgments could not be enforced .

Following the applicant ’s complaint to the ORG about the non - enforcement of the judgments , on CARDINAL DATE ORG informed her that the payment would be made as soon as the loans , which had been previously granted by the bank , were reimbursed and that the administrator had initiated numerous proceedings for their reimbursement . It also informed her that ORG could not be held responsible for a private bank ’s obligations towards its clients .

On DATE and CARDINAL DATE ORG replied to the applicant ’s complaints about the non - enforcement of the judgments and informed her that ORG had created a working commission , with the aim of examining the situation of bankrupt banks and the mechanism of reimbursement of deposited money .

The relevant domestic law was set out in GPE and Others v. GPE , nos . CARDINAL , CARDINAL , ORG , CARDINAL/CARDINAL , CARDINAL/CARDINAL and GPE , § CARDINAL , DATE .


Preliminary objection partially rejected (non-exhaustion of domestic remedies);Preliminary objection partially joined to merits (victim);Preliminary objection partially allowed (victim);No violation of Art. 5-3;No violation of Art. 5-4

Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

The applicant was born in DATE and is currently serving a prison sentence in GPE .

On DATE , pursuant to an arrest warrant issued by the NORP authorities on DATE , the applicant was arrested and detained in GPE on suspicion of having conspired in the traffic of cocaine , ecstasy and cannabis .

On DATE the applicant , through his legal counsel , challenged the lawfulness of his arrest and detention in so far as the arrest warrant had not been issued in accordance with the NORP Arrest Warrant requirements ( in force on DATE ) .

In a judgment of CARDINAL DATE , ORG of GPE rejected the applicant ’s claim as the extradition request had been made prior to the new arrest warrant procedure with the result that the previous law applied .

On DATE the applicant was extradited to GPE to stand trial on charges of drug trafficking .

On DATE the applicant was brought before ORG as a ORG . He challenged the legality of the arrest warrant of DATE . He claimed that the prosecution had to satisfy ORG that the arrest had been lawful and that this could not be assumed , given in particular that the accused had not been personally heard . The applicant argued that the procedure followed by the prosecution , whereby it simply confirmed on oath the report containing the legal provisions on which the charges were based , did not satisfy the requirements of LAW . He made reference in this connection to ORG judgment in GPE v. GPE , ( no . MONEY , DATE ) .

NORP The applicant pleaded not guilty . He also pointed out that he was contesting the NORP courts’ jurisdiction to try him , claiming that the facts he was accused of did not constitute an offence under the laws of GPE .

The prosecution submitted that the applicant had been brought to GPE following the issue of an arrest warrant by the duty magistrate . Upon the applicant ’s arrival and within TIME of the arrest , the duty magistrate was informed of the arrest and confirmed its continuation . Within TIME of the arrest , during which time he was interrogated , the applicant was arraigned before the court . The prosecution further submitted that the case which carried a maximum punishment of life imprisonment was based on the testimony of various civilian witnesses and corroborating evidence .

At the hearing ORG took account of the applicant ’s not - guilty plea . The hearing TIME read as follows :

“ In regard to whether the accused is going to plead guilty or not guilty as charged the same accused would like to point out that first of all he is contesting the jurisdiction of the NORP courts to try him and secondly that the facts do not constitute , in his regard , an offence under the laws of GPE and thirdly that he is not guilty of any fact alleged against him . To all intents and purposes of law , the ORG [ of Magistrates ] , having heard what has just been put down in the records of the proceedings , is considering the accused as pleading not guilty as charged . ”

ORG did not require the arresting officer to justify why the applicant had been arrested or why his detention was necessary . It declared , without entering TIME to that effect in the records , that the warrant had been issued by a magistrate and confirmed by another magistrate and both sets of proceedings had been held in camera and the arrest had been authorised . Moreover , the case had been examined by the NORP courts in the context of their consideration of GPE ’s request for the applicant ’s extradition . In TIME it further referred to the fact that the validity of the warrant as regards its procedural aspects was affirmed by ORG in a further set of proceedings which took place while the applicant was still in GPE . Thus , the warrant was sufficient to enable the arrest to be considered lawful at that stage of the proceedings . Nothing had been brought to the attention of the court which enabled it to say that the person charged was under arrest without justification .

NORP Since the applicant insisted that his arrest was unlawful and unjustified no request for bail was made and he was remanded in custody . His case file was transmitted to another magistrate sitting in ORG in order to proceed with the committal stage .

In the meantime , on DATE , the applicant applied for bail .

On DATE ORG in the committal stage heard the parties . The applicant advanced once again his argument that the NORP authorities lacked jurisdiction to try him .

On DATE ORG rejected the application for bail , which had been lodged on DATE , on the grounds that there was a real danger that the applicant might abscond , leave the island or interfere or attempt to interfere with witnesses . It further held that it was not competent to give a ruling on the question of jurisdiction and decided that there were enough grounds to commit the applicant for trial .

On DATE the applicant applied to ORG ( FAC ) in its constitutional jurisdiction , alleging that both at his first hearing and at the committal stage , LAW and CARDINAL of the LAW had been violated . ORG had failed to assess the lawfulness of the arrest by refusing to decide on the defence ’s objections , namely that the NORP courts did not have jurisdiction to try the defendant and that the facts alleged against him did not constitute a criminal offence under NORP law . The applicant therefore requested ORG to declare that his arrest and continued detention were unlawful and to order his release and provide him with adequate redress .

In a judgment of DATE , ORG rejected the applicant ’s claim . It held that ORG as a ORG was bound to examine solely the lawfulness of the arrest and , if necessary , to order release on bail according to Article CARDINAL of LAW ( see paragraph CARDINAL below ) . The question of jurisdiction related to the merits of the case and therefore could be examined only by ORG . This was not in violation of the Convention .

NORP The applicant appealed to ORG . He reiterated his claims and emphasised that LAW was not an effective remedy as it provided only for provisional release under guarantee or against payment of bail and not unconditional release as required by LAW .

The Constitutional Court heard submissions on CARDINAL and DATE .

In a judgment of DATE , ORG upheld the applicant ’s appeal in part . It first held that at the hearing of DATE ORG had satisfied its duty under LAW and CARDINAL of the LAW as provided by LAW ( see paragraph DATE , in fine , below ) . In particular , it had heard the parties’ submissions regarding the lawfulness of record ) and because it would have substantially amounted to a plea that the facts of the case did not constitute a crime . Thus , further evidence would have been necessary in order to decide the matter .

ORG did , however , find a violation of LAW in so far as on DATE ORG at the committal stage ( LAW had abstained from deciding the issue of jurisdiction , thus disregarding its duty to determine the lawfulness of the applicant ’s detention under LAW . Even though questions of jurisdiction would , in principle , be dealt with by ORG , in the applicant ’s case this issue was interconnected with the factual requirements of the criminal offence . In the absence of solid factual grounds against the defendant , ORG could not commit him for trial . ORG annulled the ORG of GPE order of CARDINAL DATE committing the applicant for trial as well as all subsequent acts . It remitted the case to ORG to be decided afresh after taking cognisance of the applicant ’s plea of lack of jurisdiction . It awarded the applicant CARDINAL NORP Liras ( MTL – approximately MONEY ( ORG ) ) for just satisfaction , and ordered the payment of the costs of the proceedings to be divided between the parties .

On DATE the applicant applied for bail before ORG , the competent court at the time . On DATE the Attorney General sent the records of the proceedings back to ORG . Thus , on DATE ORG refused to take cognisance of the request as it no longer had jurisdiction in the matter .

On DATE the same application was filed with ORG .

On DATE ORG refused to release the applicant , having regard to the nature and seriousness of the offence , the real danger of the accused absconding or leaving the island and obstructing or attempting to obstruct the course of justice .

On DATE the President of GPE issued a warrant extending the legal time - limit for concluding the proceedings to DATE .

On DATE the applicant , still under arrest , was brought before ORG . He alleged that the law imposed a peremptory time - limit of DATE for the conclusion of the committal proceedings . In the applicant ’s view , this time - limit could not be extended by ORG , as had occurred in his case . Furthermore , the applicant challenged the magistrate sitting in his case on the ground that she had already sat in the hearings preceding the constitutional proceedings . He invoked the principles laid down by ORG in PERSON and PERSON v. GPE ( see judgment of DATE , Reports of Judgments and Decisions PERSON ) . He also raised once again his plea based on the NORP authorities’ lack of jurisdiction to try him .

On DATE ORG considered that the CARDINAL day time - limit had not been exceeded since ORG had placed the applicant in a status quo ante . Moreover , the warrant of the President of GPE extending the term of the inquiry had been valid according to law . It rejected the challenge to the magistrate on the ground that that court had refrained from giving a definitive judgment on the merits of the case , thus satisfying the objective impartiality test . ORG further stated that the interpretation of LAW f ) of the LAW extended the principle of territorial jurisdiction and that it therefore had jurisdiction to proceed against the applicant . It decided to commit the applicant for trial .

On DATE the applicant filed an application with ORG , the competent court at the material time , to challenge the lawfulness of his detention according to LAW . He requested it to order his release from custody . He also complained that the committing magistrate , who delivered the decision of CARDINAL DATE , had erred when she refrained from stepping down once she had been challenged .

On DATE ORG dismissed the application as being unfounded for the purposes of LAW It held that even if the magistrate had erred , this did not render the detention unlawful . Moreover , the proceedings leading to the decision of DATE appeared to have been properly initiated and conducted , as indicated by ORG judgment of DATE , which upheld only the applicant ’s complaint about the irregularity related to the refusal to consider the plea of jurisdiction .

On DATE the applicant filed a new application with ORG , claiming that the Attorney General had exceeded the time - limit allowed for filing the bill of indictment . On an unspecified date ORG rejected the claim .

On an unspecified date the Attorney General filed the bill of indictment . As a consequence , ORG became competent to take cognisance of any application for release .

On DATE the applicant applied for bail , making reference to GPE v. GPE ( [ ORG ] , no . CARDINAL/CARDINAL , ORG CARDINAL-IV ) .

On DATE the applicant was granted bail against payment of a deposit of ORG CARDINAL ( approximately EUR CARDINAL,CARDINAL ) . He was put under house arrest at his mother ’s home . He was only allowed to go out for TIME in the morning to report to the police station .

On DATE , ORG had started examining the plea of lack of jurisdiction . The applicant was still under house arrest .

On an unspecified date the applicant made another request for his detention arrangements to be alleviated . On DATE ORG rejected his request , emphasising that it could not be said that the applicant was under arrest but was simply confined and limited in TIME during which he could leave his house as a condition of his being granted provisional liberty .

By a judgment of ORG of DATE , confirmed by ORG on DATE , the applicant was found guilty of the charges against him and sentenced to a term of imprisonment .

According to recent amendments to LAW adopted in DATE , a police inspector may no longer arrest a suspect under his own authority but has to apply to a GPE chamber for an arrest warrant .

Article CARDINAL

“ Where there are lawful grounds for the arrest of a person , the police may request a warrant of arrest from a magistrate , unless in accordance with any provision of law the arrest in question may be made without a warrant . ”

Following amendments adopted in DATE and DATE , the Articles of LAW , in so far as relevant , read as follows :

Article CARDINAL ( CARDINAL )

“ ( CARDINAL ) On the conclusion of the inquiry , the court shall decide whether there are or not sufficient grounds for committing the accused for trial on indictment . ”

Article CARDINALA

“ ( CARDINAL ) Any person who alleges he is being unlawfully detained under the authority of the police or of any other public authority not in connection with any offence with which he is charged or accused before a court may at any time apply to ORG , which shall have the same powers which that court has as a court of criminal inquiry , demanding his release from custody . Any such application shall be appointed for hearing with urgency and the application together with the date of the hearing shall be served on DATE of the application on the applicant and on the Commissioner of Police or on the public authority under whose authority the applicant is allegedly being unlawfully detained . The Commissioner of Police or public authority , as the case may be , may file a reply by not later than the day of the hearing .

( CARDINAL ) On DATE appointed for the hearing of the application the court shall summarily hear the applicant and the respondents and any relevant evidence produced by them in support of their submissions and on the reasons and circumstances militating in favour of or against the lawfulness of the continued detention of the applicant .

( CARDINAL ) If , having heard the evidence produced and the submissions made by the applicant and respondents , the court finds that the continued detention of the applicant is not founded on any provision of this LAW or of any other law which authorises the arrest and detention of the applicant it shall allow the application . Otherwise the court shall refuse the application .

( CARDINAL ) Where the court decides to allow the application the record of the proceedings including a copy of the court ’s decision shall be transmitted to the Attorney General by not later than the next working day and the Attorney General may , within DATE from the receipt of the record and if he is of the opinion that the arrest and continued detention of the person released from custody was founded on any provision of this LAW or of any other law , apply to ORG to obtain the re - arrest and continued detention of the person so released from custody . The record of the proceedings and the court ’s decision transmitted to the Attorney General under the provisions of this sub - article shall be filed together with the application by the Attorney General to ORG . ”

Article CARDINAL

“ ( CARDINAL ) Any person in custody for an offence of which he is charged or accused before ORG and who , at any stage other than that to which Article CARDINAL applies , alleges that his continued detention is not in accordance with the law may at any time apply to the court demanding his release from custody . Any such application shall be appointed for hearing with urgency and together with the date of the hearing shall be served on DATE of the application on the Commissioner of Police or , as the case may be , on the Commissioner of Police and the Attorney General , who may file a reply thereto by not later than the day of the hearing .

( CARDINAL ) The provisions of LAW and ( CARDINAL ) shall apply mutatis mutandis to an application under this article .

( CARDINAL ) Where the application is filed in connection with proceedings pending before ORG as a court of criminal inquiry before a bill of indictment has been filed and the record of the inquiry is with the Attorney General in connection with any act of the proceedings , the application shall be filed in ORG and the aforegoing provisions of this Article shall apply mutatis mutandis thereto . ”

( CARDINAL ) The provisions of LAW ) shall apply to a decision of ORG under this Article . ”

Article CARDINALA

“ ( CARDINAL ) When the person charged or accused who is in custody is first brought before ORG , whether as a court of criminal judicature or as a court of criminal inquiry , the ORG shall have the charges read out to the person charged or accused and , after examining the person charged as provided in LAW as the proceedings may require , shall summarily hear the prosecuting or arraigning officer and any evidence produced by that officer on the reasons supporting the charges and on the reasons and circumstances , if any , militating against the release of the person charged or accused .

( CARDINAL ) After hearing the prosecuting or arraigning police officer and any evidence produced as provided in sub - article ( CARDINAL ) the court shall inform the person charged or accused that he may be temporarily released from custody on bail by the court under conditions to be determined by it and shall ask him what he has to say with respect to his arrest and his continued detention and with respect to the reasons and the circumstances militating in favour of his release .

( CARDINAL ) Where any of the offences charged consists in any of the offences mentioned in LAW ) the court shall , after hearing the person charged or accused as provided in sub - article ( CARDINAL ) of this article , ask the prosecuting or arraigning officer whether he has any submissions to make on the question of temporary release from custody on bail of the person charged or accused and the latter shall be allowed to respond .

( CARDINAL ) At the end of submissions as provided in the preceding sub - articles of this Article the court shall review the circumstances militating for or against detention .

( CARDINAL ) If the court finds that the continued detention of the person charged or accused is not founded on any provision of this LAW or of any other law which authorises the arrest and detention of the person in custody it shall unconditionally release that person from custody .

( CARDINAL ) If the court does not find cause to release unconditionally the person charged or accused ... it may nevertheless ... release that person from custody on bail subject to such conditions as it may deem appropriate .

( CARDINAL) If the court does not find cause to release unconditionally the person charged or accused and refuses to grant that person bail the court shall remand that person into custody ... ”

LAW , in so far as relevant , reads as follows :

Article CARDINAL

“ ( CARDINAL ) The Constitutional Court shall ... have jurisdiction to hear and determine all appeals under LAW and exercise all such powers as are conferred on it by this LAW . ”

Article CARDINAL

“ ( CARDINAL ) Any person who alleges that any of FAC , has been , is being or is likely to be contravened in relation to him , or such other person as ORG , ORG , in GPE may appoint at the instance of any person who so alleges , may , without prejudice to any other action with respect to the same matter that is lawfully available , apply to ORG , ORG , for redress .

( CARDINAL ) ORG , ORG , shall have original jurisdiction to hear and determine any application made by any person in pursuance of sub - article ( CARDINAL ) , and may make such orders , issue such writs and give such directions as it may consider appropriate for the purpose of enforcing , or securing the enforcement , of FAC to the enjoyment of which the person concerned is entitled :

Provided that the court may , if it considers it desirable so to do , decline to exercise its powers under this sub - article in any case where it is satisfied that adequate means of redress for the contravention alleged are or have been available to the person concerned under any other ordinary law .

( CARDINAL ) Any party to proceedings brought in ORG , ORG , in pursuance of this article shall have a right of appeal to ORG . ”

Consequently , a complaint must be lodged with both instances before it is introduced with ORG . However , in PERSON v. GPE , ( no . CARDINAL , DATE , § CARDINAL ) and ORG v. GPE , ( cited above , § CARDINAL ) , the ORG held that this procedure was rather cumbersome and therefore lodging a constitutional application would not have ensured a speedy review of the lawfulness of the applicant ’s detention . Consequently in the cited cases the applicants had not had at their disposal , under domestic law , a remedy for challenging the lawfulness of their detention under LAW .


Violation of Article 6 - Right to a fair trial

András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky

The applicant was born in DATE and lives in GPE .

On CARDINAL DATE the applicants’ neighbours brought an action against her and other respondents , claiming adverse possession of a right of way on their land .

DATE and DATE the proceedings were interrupted because of the death of a plaintiff .

DATE and DATE ORG held several hearings and obtained the opinion of an expert .

NORP Since DATE the proceedings have been interrupted because CARDINAL of the respondents died , his successor did not join the proceedings voluntarily and the plaintiffs failed to apply for the successor to be made a party to the proceedings .

According to the information in the case file , the case is still pending before the first - instance court .


Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Zdravka Kalaydjieva

The applicant , Mr PERSON , is a NORP national who was born in DATE and is currently serving a prison sentence in FAC .

The applicant has been in continuous detention from an unspecified date in DATE until DATE .

He was initially committed to FAC .

In DATE he was transferred to FAC , where , as he submitted , he had been detained together with CARDINAL other detainees in cells measuring QUANTITY .

In DATE the applicant was transferred back to ORG , where he had been detained in overcrowded cells . In addition , the applicant , who was a non - smoker , had been exposed to cigarette smoke because smoking inside the cell was allowed .

From DATE until an unspecified date in DATE the applicant was detained in FAC . He was assigned to a cell measuring QUANTITY which he had shared with CARDINAL other detainees .

On an unspecified date in DATE the applicant was committed to FAC . He submitted that , initially , the conditions of his detention had been satisfactory . In his letter of DATE , however , he claimed that the establishment had become overcrowded just like all the other detention facilities .

The Government submitted that as of CARDINAL DATE the applicant had been detained in FAC , in a cell in which the statutory minimum space of QUANTITY per person had been respected .

On DATE the applicant complained to the remand centre ’s administration about overcrowding and bad living conditions . He did not complain to the penitentiary authorities in connection with the living conditions as regards the more recent period of his detention . Moreover , the applicant did not bring a civil action in tort to seek compensation for the infringement of his personal rights .

On DATE ORG ( Sąd Rejonowy ) convicted the applicant of CARDINAL counts of armed robbery and sentenced him to a prison term of DATE . During the first - instance proceedings the applicant was represented by a legal aid lawyer .

On DATE ORG ( Sąd Rejonowy ) upheld the above - mentioned judgment on appeal . During the secondinstance proceedings the applicant was also represented by a legal aid lawyer . To that effect the appellate court held that the applicant be exempted from all costs of the appellate proceedings , including legal assistance .

On DATE the reasoned judgment was served on the applicant . On that date the time - limit of DATE for lodging a cassation appeal began to run .

On DATE the lawyer instructed the applicant that her mandate had expired when the appellate proceedings had come to an end . If the applicant wished to have a cassation appeal lodged with ORG , he should make a new request for legal aid .

On CARDINAL DATE the applicant prepared an application for legal aid and deposited it as out - going mail with the authorities of ORG . His legal aid application was received by ORG on DATE .

By an official letter of CARDINAL DATE the registry of ORG notified the applicant that his appeal for legal aid had been rejected . The court ’s decision was not accompanied by any reasoned opinion .

On DATE the applicant drafted his own cassation appeal and filed it with ORG .

On DATE the ORG requested the applicant to complete the procedural requirements by having his cassation appeal prepared and signed by a lawyer within DATE . That request was served on the applicant on DATE .

On DATE the applicant informed ORG that he was unable to comply with the above - mentioned instruction because he had not been granted legal - aid . The applicant , once more , asked the court to grant him legal aid for the purpose of his cassation appeal proceedings .

On DATE the registry of ORG informed the applicant that his application for legal aid had been rejected . No formal decision was served on the applicant to that effect .

On DATE the President of LAW of ORG decided that the applicant ’s cassation appeal was not to be entertained ( odmówił przyjęcia kasacji ) for non - compliance with procedural requirements .

A detailed description of the relevant domestic law and practice concerning general rules governing conditions of detention in GPE and domestic remedies available to detainees alleging that the conditions of their detention were inadequate is set out in the ORG ’s pilot judgments given in the cases of PERSON v. GPE ( no . CARDINAL ) and PERSON v. GPE ( no . CARDINAL/CARDINAL ) on DATE ( see § § DATE and § § CARDINAL respectively ) . More recent developments are described in the ORG ’s decision in the cases of PERSON v. GPE ( no . CARDINAL/CARDINAL ) adopted on CARDINAL DATE ( see LAW § DATE ) and PERSON v. GPE ( no . CARDINAL ) adopted on DATE ( see § § DATE ) .

Under LAW of DATE Criminal Procedure ( “ the Code ” ) , which entered into force on DATE , a party to criminal proceedings can lodge a cassation appeal with ORG against any final decision of an appellate court which had terminated criminal proceedings . The cassation appeal has to be lodged and signed by an advocate , on pain of being declared inadmissible . The relevant part of LAW provides :

“ A cassation appeal may be lodged only on the grounds referred to in LAW [ these include a number of procedural irregularities , such as , for instance , incorrect composition of the trial court ; lack of legal assistance in cases where such assistance was compulsory ; breach of the rules governing jurisdiction in criminal matters ; trying a person in absentia in cases where his presence was obligatory and thus depriving him of an opportunity to defend himself , etc . ] or on the ground of another flagrant breach of law provided that the judicial decision in question was affected as a result of that breach . A cassation appeal shall not lie against the severity of the penalty imposed ( niewspółmierności kary ) . ”

Pursuant to Article CARDINAL § CARDINAL of the Code , a cassation appeal has to be lodged with the appellate court competent to carry out an initial examination of its admissibility within DATE from the date of service of the judgment of the appellate court with its written grounds on the party or , if the party has been represented , on his or her lawyer .

Under LAW of the LAW , an accused may appoint a lawyer to represent him or her in criminal proceedings . If he or she can not afford lawyers’ fees , a request for legal aid may be made under LAW .

A grant of legal aid expires upon a judgment of an appellate court . A new decision on legal aid has to be made if the convicted person wishes to institute further proceedings in order to lodge a cassation appeal with ORG . The relevant part of LAW of the LAW provides :

“ A defence counsel appointed under the legal aid scheme in the cassation proceedings ... shall prepare and sign a cassation appeal ... or shall inform the court , in writing , that he or she has not found any grounds for lodging a cassation appeal ... If a cassation appeal ... is lodged , the defence counsel is entitled to represent the defendant in the subsequent proceedings . ”

Under LAW an interlocutory appeal ( zażalenie ) is not available against a refusal of legal aid for cassation appeal proceedings .

Article CARDINAL § CARDINAL of the LAW provides that the president of the court which had given the decision appealed against is competent to decide whether the formal requirements for a cassation appeal had been complied with . If an accused ’s appeal is not filed and signed by an advocate , it must be rejected on formal grounds . If such an appeal complies with the formal requirements , the case is referred to ORG .


SIJAKOVA AND OTHERS v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

The applicants , PERSON , PERSON , PERSON , PERSON and PERSON , are NORP nationals who were born in DATE , DATE , DATE and DATE respectively . The second applicant lives in GPE , whereas the others live in GPE , both in the Former GPE . They are represented before the ORG by PERSON , one of the applicants , a retired lawyer from GPE .

The applicants’ children , after attaining DATE , joined the monastic order of ORG . The applicants admit that they themselves are practising NORP . They allege that some of their children left their homes and joined the monastic order without the ORG prior knowledge or consent .

In DATE the applicants lodged a complaint before ORG ( Уставен суд на ORG ) , requesting it to assess the constitutionality of the internal rules of ORG ) , in particular LAW , CARDINAL and CARDINAL . In their submissions the applicants complained , inter alia , that they had been deprived of their rights as parents to receive proper care from their children in the event of illness or in old age because the religious canons allegedly forbade contacts between monks and their parents . Furthermore , they argued that the ORG could not establish monasteries as another form of “ life community ” because the only such form recognised and protected by LAW was the “ family ” . They argued that the ORG , in claiming ownership of monasteries , which were defined as life communities in its internal rules , was thereby asserting ownership of human beings , so that their children could be regarded as being held in slavery . They further alleged that their children had been deprived of many of their fundamental human rights and freedoms as a result of the monastic canons and the vows they had taken before entering the monasteries .

On DATE ORG rejected the ORG complaint on the ground of lack of jurisdiction to review the constitutionality of the ORG ’s internal rules . In its decision , it referred to and summarised the most relevant provisions of the ORG ’s internal rules and quoted the impugned provisions .

In particular , Rule CARDINAL reads as follows :

“ The monastery is a holy place having a temple and other necessary facilities , i.e. [ it is ] a life community of persons belonging to the monastic order who have joined together in a spiritual community and have taken a holy vow to live in accordance with the monastic canons . ”

Rule CARDINAL provides inter alia :

“ All the possessions of ORG , bishoprics , church communities and monasteries comprise the property of ORG . ”

Rule CARDINAL § CARDINAL reads as follows :

“ All churches , monasteries , ... - holy waters , cemeteries and places of NORP worship , and their movable and immovable assets which are under the canonical and spiritual jurisdiction of ORG are the property of ORG . ”

ORG reiterated the constitutional guarantee of freedom of religion , and the right of every individual to express his or her faith and religious beliefs freely and publicly , either alone or in community with others . It stated that this freedom entailed the freedom to hold or not to hold religious beliefs and to practise or not to practise a religion . It further held that the manner in which an individual manifested his or her religious convictions or beliefs was a matter of private conscience , which ultimately determined the relationship between religious communities and the ORG . In that connection , ORG observed that ORG and other religious communities and groups were separate from the ORG and were equal before the law , and none of them could have a distinct and privileged position or be controlled by the ORG .

ORG further held that the ORG and other religious communities or groups could not be regarded as institutional and formal associations of their adherents and that they had not been established pursuant to the provisions of the PERSON on ORG . It therefore concluded that their internal rules were not a matter for constitutional review , as was the case with political parties , other associations and foundations whose programmes and internal regulations and their compliance with the LAW might be assessed by the court .

On an unspecified date , most probably in DATE , the applicants lodged a criminal complaint ( кривична пријава ) with ORG ( Основно јавно обвинителство Струмица ) , requesting it to institute criminal proceedings against ORG , who had allegedly held their children in slavery , and had thus committed the criminal offence defined in LAW of LAW . Up to the time when the application was lodged the applicants had received no information about the outcome of the investigations by the competent authorities .

LAW ( Устав на Република Македонија ) provides that the freedom of religious confession is guaranteed . The right to express one ’s faith freely and publicly , individually or with others is guaranteed . ORG and other religious communities and groups are separate from the ORG and equal before the law . They are free to establish schools and other social and charitable institutions , by means of a procedure regulated by law .

LAW CARDINAL of the LAW provides that parents have the right and duty to provide for the nurture and education of their children . Children are responsible for the care of their old and infirm parents .

Article CARDINAL , which defines the jurisdiction of ORG provides , inter alia , that it safeguards the freedoms and rights of the individual and citizen relating to freedom of communication , conscience , thought and public expression of thought , political association and activities as well as the prohibition of discrimination among citizens on the grounds of sex , race , religion or national , social and political affiliation .

This provision also specifies that ORG decides on the constitutionality of the programmes and internal regulations of political parties and associations of citizens .

Rule CARDINAL of the Rules of Procedure of ORG суд ) provides that a person who considers that any of his rights or freedoms set forth in LAW has been violated by an individual legal act or decision may seek redress before ORG within DATE from DATE of adoption of the final individual decision or from DATE when he first learns of the action taken , but DATE from DATE of its occurrence .

Section CARDINAL of LAW ( Кривичен законик ) provides that whoever , in violation of international law , places another person in slavery or in a similar status or keeps him in such a status ; buys or sells another person or hands him over to another person ; mediates in the purchase , sale and handing over of such a person ; or induces someone else to sell his freedom or the freedom of the person he provides for or takes care of shall be punished by from one to CARDINAL years’ imprisonment .