The application was introduced by Mr PERSON , a NORP national who was born in DATE and who lived in GPE . He was represented by PERSON , a lawyer practising in GPE . The applicant died on CARDINAL DATE . On DATE PERSON , the applicant ’s spouse , informed ORG her wish to continue the application in her late husband ’s stead . She authorised PERSON to represent her in the proceedings . The Government of GPE ( “ the Government ” ) are represented by their Agent , PERSON .

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

In DATE the applicant and his wife started living in a family house which is owned by their son and the latter ’s wife . The house is situated in GPE street in GPE . The house is placed CARDINAL other family houses with street numbers CARDINAL and CARDINAL respectively and it had a plate with street number CARDINAL initially .

The applicant and the other inhabitants of the house were disturbed by persons who thought that an important pharmaceutical company established in GPE in DATE had its headquarters there . In DATE the applicant learned that the company , whose premises were located partly at DATE same street QUANTITY away , used in its address the same street number as their house had . In addition , the same address was used by several other companies which leased LOC from the pharmaceutical company in issue .

On DATE the applicant ’s son sought redress from both the Mayor of GPE and the company ’s management . He also requested the company to remove its information and advertisement board located in front of his house . On DATE the company ’s representatives replied that they were interested in solving the problem and that they had asked ORG in GPE for assistance .

On DATE the GPE decided , with reference to sections QUANTITY , to assign street number CARDINAL to the house in which the applicant and his family lived . The document indicated that the decision was to be delivered to the house owner and to ORG in GPE . It contained no information as to the availability of any remedy . In a separate letter with DATE and addressed to the house owner ORG stated that the house should normally have street number CARDINAL . However , according to the relevant documents , the same street number had been assigned to the pharmaceutical company whose LOC were located in the same street . It resulted from the fact that the company ’s LOC had had street number CARDINAL from the moment of its establishment while further buildings had been built in the street subsequently without any change in the numbering . Given the position and activities of the company , ORG decided to assign a different street number to the house of the applicant ’s son . The company was to bear any costs related to the change of the number plate attached to the house .

On DATE ORG informed the applicant ’s son that its employees would come to his house , on DATE , with a view to resolving the problem of the company ’s advertisement board .

The applicant and his wife continued to be regularly disturbed throughout DATE by a large number of persons who thought that the above company or other companies which leased the latter ’s LOC ( and thus had the same street address ) had their offices there .

In DATE the applicant complained of the situation to the Mayor of GPE . On DATE ORG sent copies of the above documents dated DATE together with a certificate that the inhabitants of the house had their permanent address at GPE street DATE . As the applicant continued insisting that the house should have street number CARDINAL , the Mayor of GPE decided to allocate street number ORG to the house in DATE . The documents submitted to the ORG indicate that the applicant ’s son and the members of his family had also registered their permanent address in the house at that time .

Despite that change the applicant and his wife were regularly disturbed by persons looking for CARDINAL of the companies whose address was at GPE street CARDINAL . Such encounters sometimes resulted in misunderstandings and conflicts , for example with employment seekers . As a result , the health of the applicant and his wife deteriorated . In particular , the applicant submitted medical certificates according to which his wife had been undergoing long - term psychiatric treatment since DATE . Both the applicant and his wife underwent treatment in a sanatorium .

On DATE the applicant asked ORG to express its opinion as to whether ORG had proceeded in an appropriate manner from the point of view of respecting the rights of the persons living in the house and whether the company concerned had violated the rights of those persons .

In a letter of DATE , a constitutional judge informed the applicant that individuals could initiate proceedings before ORG under Articles CARDINAL and CARDINAL § CARDINAL of the LAW only . ORG was not entitled to express an opinion on the questions put by the applicant . The letter concluded that the applicant ’s submission did not meet the formal requirements for proceedings to be brought before ORG .

In DATE a TV company reported on the case . In the broadcast the applicant explained that he and his family were regularly disturbed by persons looking for PERSON street DATE . On DATE CARDINAL persons rang their bell . The applicant held in his hands a standardised street number plate bearing the number CARDINAL . He stated that that number had originally been attached to their house and that he would not abandon the claim that it still belonged to them . The Mayor explained that the company had had street number CARDINAL in its address from the moment of its establishment . The municipality accepted that a change in the company ’s address would result in disproportionately high costs . The decision adopted in DATE to allocate street number CARDINAL to the house of the applicant ’s son seemed to be the most appropriate solution . The Mayor expressed the view that if the applicant ’s family had accepted the proposed solution including the placement of an additional board announcing where the company ’s LOC were situated , the problem would have been resolved . A lawyer whom the TV team consulted advised the applicant to indicate visibly on the house street number CARDINAL allocated by the municipality . The pictures of the house indicate that , unlike the neighbouring ones , the house in which the applicant lived had no identification number attached to it at the time when the broadcast was made .

As from DATE the company in issue started using a new address - FAC street CARDINAL . That address indicates the main entrance to the company ’s newly built administrative building . However , the address of several other companies leasing the LOC remained unchanged .

In a reply to the applicant ’s complaint , ORG GPE expressed the view , on DATE , that ORG in GPE had acted in accordance with LAW in that it had allocated street number ORG to the house .

In his submissions to different authorities the applicant repeatedly indicated “ PERSON CARDINAL ” as his address .

According to the Government , the applicant and his son disregarded the decision of DATE to allocate street number CARDINAL/A to the house . They submitted photographs taken by the employees of ORG , on DATE , showing that the house bears street number CARDINAL .

The applicant contended that the number attached to the house had been carved in wood and bought by his son , and that they had not been provided with plates .

Pursuant to LAW , as in force until DATE , ORG decided on complaints concerning final decisions made by , among others , local government authorities and local self - governing bodies in cases concerning violations of the fundamental rights and freedoms of citizens , unless the protection of such rights fell under the jurisdiction of another court .

Under LAW of the LAW , as in force until DATE , ORG could commence proceedings upon a petition ( podnet ) presented by any individual or corporation claiming that their rights had been violated .

According to its case - law under former LAW of LAW , as in force until DATE , ORG lacked jurisdiction to draw legal consequences from a violation of a petitioner ’s rights . It could neither grant damages to the person concerned nor impose a sanction on the public authority responsible for the violation found . In ORG view , it was therefore for the authority concerned to provide redress to the person whose rights were violated .

The lawfulness of decisions given by authorities charged with public administration can be reviewed by courts in accordance with Part CARDINAL of LAW which governs the administrative judiciary .

Article CARDINAL ) provides that administrative courts review the lawfulness of decisions given by ORG administrative authorities or local selfgovernment authorities , as well as of other legal persons authorised by law to decide on individual rights and obligations in the context of public administration . As from DATE , this provision has been amended in that courts are also entitled to review the way in which administrative authorities proceed , including their failure to act .

Under paragraph CARDINAL of Article CARDINAL , decisions of administrative authorities are decisions which such authorities delivered in the context of administrative proceedings as well as other decisions which establish , modify or annul the rights and obligations of natural or legal persons .

Under LAW ) , courts are entitled to decide on actions against decisions delivered by administrative authorities where such decisions have become final after the exhaustion of all available ordinary remedies .

Act CARDINAL/CARDINAL Coll . governed the territorial and administrative division of GPE . It was in force until DATE .

Section CARDINAL(CARDINAL ) provided that , in order to facilitate orientation in streets , every building and every separate entry thereto were to be marked by an “ orientation number ” . Every street given a name was to have a separate series of orientation numbers .

Section CARDINAL(CARDINAL ) provided that municipalities were to decide on and register the numbering of buildings .

Pursuant to section DATE ) , a single type of plates with street orientation numbers is to be used in a municipality . The house owners were to obtain a plate with the corresponding number and attach it to their house at their own expense . Paragraph CARDINAL of section CARDINAL provided that a street orientation number is to be placed to the right from the entrance to a building in a manner permitting it to be seen from public space .

Act CARDINAL/CARDINAL on ORG of GPE entered into force on DATE and it repealed LAW .

The following relevant provisions were in force until DATE .

Under LAW , every building in a street or in a public place having a name and every separate entrance to such a building were to have an orientation number . Every street or public place having its own name was to have its own series of orientation numbers .

Section CARDINAL(CARDINAL ) entrusted to municipalities the numbering of buildings and its registration . Municipalities decided also on the type of plates with street numbers to be used on their territory . Pursuant to paragraph CARDINAL of section DATE , house owners were to obtain a plate with the corresponding number and attach it to their house at their own expense .

Section CARDINAL provided that decisions under Act CARDINAL/CARDINAL were not covered by LAW of DATE .

As from DATE the numbering of buildings has been governed by LAW , as amended by Act No . CARDINAL/CARDINAL .

Pursuant to section CARDINAL ) , municipalities allcoate orientation and registration numbers to buildings , keep a register of such numbering and ensure that it corresponds to the factual situation .

Section CARDINAL ) provides , inter alia , that decisions by which street numbers are assigned to houses are not covered by LAW of DATE .

Regulation CARDINAL/CARDINAL was issued by ORG with reference to LAW and it governed , inter alia , the details of the numbering of buildings . It was in force from DATE until DATE .

Regulation CARDINAL/CARDINAL repealed Regulation CARDINAL/CARDINAL with effect from DATE .

Section CARDINAL(CARDINAL ) provides that a street orientation number can be changed or annulled in exceptional cases only and after the owner of the building has been duly notified .


Violation of P1-1;Violation of Art. 6-1;Pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses partial award - Convention proceedings

The applicant is the owner of a flat in GPE , which it had let to ORG

In a writ served on the tenant on DATE , the applicant informed the tenant that it intended to terminate the lease on expiry of the term and summoned her to appear before ORG .

By a decision of CARDINAL DATE , which was made enforceable on CARDINAL DATE , ORG upheld the validity of the notice to quit and ordered that the premises be vacated by CARDINAL DATE .

On DATE , the applicant served notice on the tenant requiring her to vacate the premises .

On DATE , the applicant informed the tenant that the order for possession would be enforced by a bailiff on CARDINAL DATE .

DATE and DATE , the bailiff made DATE attempts to recover possession . Each attempt proved unsuccessful , as the applicant was not entitled to police assistance in enforcing the order for possession .

On DATE , the applicant recovered possession of the flat .

Since DATE the public authorities in GPE have frequently intervened in residential tenancy legislation with the aim of controlling rents . This has been achieved by rent freezes ( occasionally relaxed when the Government decreed statutory increases ) , by the statutory extension of all current leases and by the postponement , suspension or staggering of the enforcement of orders for possession . The relevant domestic law concerning the extension of tenancies , the suspension of enforcement and the staggering of evictions is described in the ORG 's judgment in the case of ORG GPE [ ORG ] , no . CARDINAL , § § DATE , ORG CARDINAL-V. Lastly , for some cases , a suspension of the enforcement of the orders for possession until DATE was introduced by Legislative Decree no . CARDINAL of DATE , which became PERSON no . CARDINAL of CARDINAL DATE .

As regards the control of the rents , the evolution of the NORP legislation may be summarised as follows .

The first relevant measure was the PERSON no . CARDINAL of DATE which provided machinery for “ fair rents ” ( the so - called equo canone ) on the basis of a number of criteria such as the surface of the flat and its costs of realisation .

The second step of the NORP authorities dated DATE . It was taken in the view of progressive liberalisation of the market of tenancies . Accordingly , a legislation relaxing on rent levels restrictions ( the so - called patti in deroga ) entered into force . Owners and tenants were in principle given the opportunity to derogate from the rent imposed by law and to agree on a different price .

Lastly , PERSON no . CARDINAL of DATE reformed the tenancies and liberalised the rents .

The tenant is under a general obligation to refund the owner any damages caused in the case of late restitution of the flat . In this regard , Article CARDINAL of the NORP Civil Code provides :

“ The tenant who fails to vacate the immovable property is under an obligation to pay the owner the agreed amount until DATE when he leaves , together with other remaining damages . ”

NORP However , PERSON no . CARDINAL of DATE set out , inter alia , a limit to the compensation claimable by the owner entitling him to a sum equal to the rent paid by the tenant at the time of the expiration of the lease , proportionally increased according to the cost of living ( LAW no . CARDINAL of DATE ) plus PERCENT , along the period of inability to dispose of the possession of the flat .

In the judgment no . CARDINAL of DATE , ORG was called upon to decide whether such a limitation complied with LAW . ORG held that it was compatible with the LAW with regard to periods of time during which the suspension of the evictions was determined by law . ORG explained that the introduction of that limitation was intended to settle the tenancies of the time of the emergency legislation , when the housing shortage made the suspension of the enforcement necessary . While evictions were suspended ex lege , the law predetermined the quantum of the reimbursement chargeable to the tenant , both measures being temporary and exceptional . Besides , the interests of the owner were counterbalanced by the exemption for him from the burden to prove the damages .

The Constitutional Court declared the limitation to the compensation claimable by the owner unconstitutional with regard to cases where the impossibility for the owner to repossess the flat depended on the conduct of the tenant and was not due to a legislative intervention . Accordingly , it opened the way to owners for the institution of civil proceedings in order to obtain full reparation of the damages caused by the tenant .


André Potocki;Ganna Yudkivska;Mark Villiger

The applicants were born in DATE , DATE and DATE and live in GPE , GPE and PERSON , respectively .

The applicants instituted separate sets of civil proceedings against their employers mainly claiming occupational disability allowances .

On DATE the first applicant , a former miner , instituted civil proceedings in the NORP ORG ( “ the Mykytivsky Court ” ) against his former employer , a ORG - owned mine , seeking recalculation of his occupational disability payment .

DATE and DATE ORG reconsidered the case on CARDINAL occasions . Its judgments of DATE and DATE and DATE were quashed by ORG on DATE , DATE and DATE for procedural irregularities and legal and factual errors . Accordingly , the case was remitted for fresh examination .

On DATE ORG replaced the respondent in the case upon the applicant ’s request . In particular , the court ordered another company , the mine ’s successor , to stand as a respondent . The court also ordered the local social security fund to take part in the proceedings as a co - respondent .

On DATE ORG delivered a judgment , ordering the fund to make DATE payments in respect of the applicant ’s occupational disability . By a separate procedural decision , the applicant ’s claims against the other co - respondent were left without consideration as the applicant withdrew them in the course of the court hearing .

On DATE ORG quashed the judgment of DATE and ordered reconsideration of the case .

On DATE ORG quashed the decision of ORG , finding that the latter had not complied with the rules of procedure .

On DATE ORG reconsidered the case and adopted a new judgment reducing the payments awarded to the applicant by the first - instance court .

On DATE ORG , acting as a court of cassation , rejected the applicant ’s appeal and confirmed the judgment of DATE .

The applicant unsuccessfully tried to challenge the courts’ decisions in an extraordinary appeal , which was rejected by ORG on DATE .

According to the Government , out of CARDINAL scheduled hearings , CARDINAL were adjourned for various reasons . In particular , the hearings were adjourned twice because of the failure of the applicant to appear , CARDINAL times due to the failure of the respondents or their representatives to appear , and twice because of both parties’ failure to appear . Additionally , CARDINAL hearings were adjourned as the judge was absent for health and business reasons . On several occasions the courts had to renew , at the applicant ’s and the respondent ’s request , the term for lodging an appeal which resulted in a delay of DATE . Lastly , due to the expert examination ordered at the applicant ’s request , the consideration of the case was delayed for DATE .

According the applicant , the hearings were adjourned CARDINAL times due to the failure of the respondents or their representative to appear . The applicant also indicated that the case had not been heard DATE and DATE as the presiding judge ’s mandate had expired .

On DATE the second applicant , then a miner , instituted civil proceedings in FAC ( “ FAC “ ) against her employer , a ORG - owned mine , asking the court to order the mine to issue her a certificate confirming that she had received an occupational injury .

In the course of the proceedings the applicant amended her claims on several occasions . In particular , she sought compensation for pecuniary and non - pecuniary damage , resulting from her injury , to be paid by the mine and the local social security fund .

DATE and DATE ORG reconsidered the case on CARDINAL occasions . Its judgments of DATE and DATE were quashed by ORG on DATE and DATE , respectively , for procedural irregularities and failure to accurately establish the circumstances . Accordingly , the case was remitted for fresh examination .

By the judgment of DATE , ORG rejected the applicant ’s claims as unsubstantiated . Following CARDINAL reconsiderations of the case on appeal , the judgment was eventually confirmed by ORG on DATE .

On DATE ORG rejected the applicant ’s appeal in cassation , finding no fault on the part of the lower courts .

According to the Government , out of CARDINAL hearings scheduled in the course of the proceeding , CARDINAL were adjourned because of the failure of the applicant or her representative to appear , CARDINAL due to the respondents’ or their representatives’ failure to appear or requests to adjourn hearings , and CARDINAL because all the parties failed to appear .

According to the applicant , she attended all the hearings ; her representative failed to appear at CARDINAL hearings and was later dismissed by the applicant .

On CARDINAL occasions the courts had to renew , at the applicant ’s and respondents’ requests , the term for lodging an appeal which resulted in a delay of DATE .

On DATE the applicant , then a miner , instituted civil proceedings in FAC of PERSON ( “ the Ternivsky Court ” ) against CARDINAL ORG - owned companies who were the successors of his former employer , a ORG - owned mine , and the local social security fund , seeking recalculation of his occupational disability payments and compensation for pecuniary and non - pecuniary damage .

In the course of the proceedings the applicant amended his claims on several occasions . The amendments mainly concerned the amounts he claimed .

DATE and DATE ORG reconsidered the case on CARDINAL occasions . Its judgments of DATE , DATE and CARDINAL DATE were quashed by ORG on DATE , DATE and CARDINAL DATE , respectively , for procedural irregularities and legal and factual errors . Accordingly , the case was remitted for fresh examination .

The applicant ’s appeal in cassation against the decision of CARDINAL DATE was rejected by ORG on DATE .

The case is currently pending before ORG .

Out of CARDINAL hearings scheduled DATE and DATE , CARDINAL were adjourned because of the failure of the applicant or her representative to appear , CARDINAL were adjourned due to the respondents’ or their representatives’ failure to appear , CARDINAL times both parties failed to appear . On CARDINAL occasions the hearings were adjourned for the presiding judge was busy with another case .


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

On DATE the NORP State expropriated an area of land measuring CARDINAL m² , located on the outskirts of the town of LOC ( LOC ) , for the purpose of building an airport . This area , which now falls within the jurisdiction of ORG , included plots of land which belonged to the applicants ' ascendants .

The amount of expropriation allowance was set by judgments ORG . CARDINAL/CARDINAL and CARDINAL of ORG of First Instance , no . CARDINAL of ORG and no . CARDINAL of ORG .

By judgment no . CARDINAL of the President of ORG , the applicants ' ascendants were recognised as being entitled to the compensation in question . However , the ORG refused to pay it . The airport was ultimately constructed elsewhere .

On DATE , by a joint decision of the Minister of Finance and the Minister of Public Works ( no . E.CARDINAL/CARDINAL ) , the ORG went ahead with expropriation of the above - mentioned area , which included the disputed plots of land , with a view to building housing for workers . As the decision did not fulfil a public - interest aim , however , it was revoked on DATE .

On DATE a royal decree designated the land for the construction of a sports centre .

On DATE the LOC prefect modified the development plan ( ρυμοτομικό σχέδιο ) for the area , which he designated as a “ green area ” and “ sports and leisure zone ” . This decision was confirmed by a decision of the Minister of ORG dated DATE and by a presidential decree of CARDINAL DATE .

On DATE the applicants or their ascendants applied to the GPE requesting that the development plan in force be amended to have the encumbrance affecting their land removed . The prefecture did not reply .

On DATE the applicants or their ascendants applied to ORG , seeking to have set aside the authorities ' implicit refusal to remove the encumbrance affecting their land .

On DATE the ORG filed its observations on the case . A hearing was held on DATE .

On DATE ORG granted the applicants ' request . In particular , it found that , having failed for a long time to proceed with the expropriation of the land in question in furtherance of the project provided for in the development plan , the authorities were duty bound to lift the encumbrance on the disputed properties . ORG sent the case back to the authorities , asking them to take the necessary measures to make available the applicants ' land ( judgments FAC . CARDINAL/CARDINAL , QUANTITY and TIME ) . Those judgments were finalised and certified as authentic on DATE .

On DATE ORG lodged a third - party appeal ( τριτανακοπή ) against the above - mentioned judgments by ORG . This form of appeal , open to persons who have been neither parties to nor represented in proceedings , enables them to contest a decision which adversely affects them . Where the third - party appeal – which does not have suspensive effect DATE is found to be valid , the impugned judgments are set aside retrospectively and the application to the administrative court is re - examined . In the instant case , as the third - party appeal did not have suspensive effect , judgments nos . CARDINAL/CARDINAL , QUANTITY and QUANTITY thus remained immediately enforceable .

On DATE ORG declared the third - party appeal inadmissible ( judgments nos . CARDINAL/CARDINAL , DATE and DATE ) . It held that ORG could not rely on this form of appeal since it had already had an opportunity to submit its observations on the case . The above - mentioned judgments were finalised and certified as authentic on DATE .

On DATE the Minister for ORG modified the urban development plan of GPE municipality in order to designate the land in question as the site for a sports and leisure centre ( decision no . DATE ) .

On DATE the applicants or their ascendants applied to ORG seeking to have the above - mentioned decision set aside . On DATE they submitted various documents in support of their application , including the title deeds to the properties . The hearing , initially scheduled for DATE , was postponed several occasions times . It was finally held on DATE . ORG has not yet delivered its judgment .


Violation of Art. 8;No violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings

On DATE the applicant arrived at FAC on a flight from GPE . On the same flight was his cousin , ORG Both men were stopped and searched by customs officials . ORG was found to be in possession of heroin with a street value of MONEY . He was interviewed and then arrested and charged . No drugs were found on the applicant . He too was interviewed , but made no admissions . He was released without charge . On DATE the applicant visited a friend , B. , in GPE . PERSON was under investigation for dealing in heroin . On DATE the installation of a listening device on B. 's premises had been authorised by the Chief Constable of GPE on the grounds that the conventional methods of surveillance were unlikely to provide proof that he was dealing in drugs . It was not expected or foreseen that the applicant would visit the LOC . Neither PERSON nor the applicant was aware of the aural surveillance equipment which had been installed by the police .

By means of that device the police obtained a tape recording of a conversation , in the course of which the applicant admitted that he had been a party to the importation of drugs by ORG on DATE . The applicant was arrested on DATE . Again he made no admissions when interviewed , but subsequently he and ORG were jointly charged with offences under the ORG and Excise Management Act DATE and ORG DATE and committed for trial .

The trial took place in DATE . The applicant pleaded “ not guilty ” . The applicant admitted that he had been present at the GPE address and that his voice was CARDINAL of those recorded on the tape . It was admitted on behalf of the ORG that the attachment of the listening device had involved a civil trespass and had occasioned some damage to the property . Thereupon , the trial judge conducted a hearing on the voir dire ( submissions on a point of law in the absence of the jury ) as to the admissibility in evidence of the conversation recorded on the tape . The ORG accepted that without it there was no case against the applicant .

NORP The trial judge ruled that the evidence was admissible . Following an amendment to the indictment , the applicant was re - arraigned and pleaded guilty to being knowingly concerned in the fraudulent evasion of the prohibition on the importation of heroin . On DATE the applicant was sentenced to DATE imprisonment .

The applicant appealed to ORG on the ground that the evidence ought to have been held to be inadmissible . On DATE ORG dismissed the applicant 's appeal against conviction but also certified , as a point of law of general public importance , the question whether evidence of tape - recorded conversations , obtained by a listening device attached by the police to a private house without the knowledge of the owners or occupiers , was admissible in a criminal trial against the defendant .

On DATE ORG of ORG granted the applicant leave to appeal from the decision of ORG dismissing his appeal against conviction . On DATE ORG dismissed the applicant 's appeal . ORG noted that the question before it gave rise to CARDINAL separate issues , the first being whether evidence of the taped conversations was admissible at all and the second whether , if admissible , it should nonetheless have been excluded by the trial judge in the exercise of his discretion at common law or under the powers conferred by section CARDINAL of ORG “ PACE ” ) . As to the former issue , ORG held that there was no right to privacy in LANGUAGE law and that , even if there were such a right , the common - law rule that relevant evidence which was obtained improperly or even unlawfully remained admissible applied to evidence obtained by the use of surveillance devices which invaded a person 's privacy . As to the latter issue , it was held that the fact that evidence had been obtained in circumstances which amounted to a breach of the provisions of LAW was relevant to , but not determinative of , the judge 's discretion to admit or exclude such evidence under section CARDINAL of PACE . The judge 's discretion had to be exercised according to whether the admission of the evidence would render the trial unfair , and the use at a criminal trial of material obtained in breach of the right to privacy enshrined in LAW did not mean that the trial would be unfair . On the facts , the trial judge had been entitled to hold that the circumstances in which the relevant evidence was obtained , even if they constituted a breach of LAW , were not such as to require the exclusion of the evidence . PERSON , giving the opinion of the majority of the ORG , added :

“ The sole cause of this case coming to your Lordship 's ORG is the lack of a statutory system regulating the use of surveillance devices by the police . The absence of such a system seems astonishing , the more so in view of the statutory framework which has governed the use of such devices by ORG since DATE , and the interception of communications by the police as well as by other agencies since DATE . I would refrain from other comment because counsel for the respondent was able to inform us , on instructions , that the government proposes to introduce legislation covering the matter in the next session of ORG . ”

The applicant was discharged from prison on DATE . His release was on licence until CARDINAL DATE .

Guidelines on the use of equipment in police surveillance operations ( ORG of DATE ) provide that only chief constables or assistant chief constables are entitled to give authority for the use of such devices . The Guidelines are available in the library of ORG and are disclosed by ORG on application .

In each case , the authorising officer should satisfy himself that the following criteria are met : ( a ) the investigation concerns serious crime ; ( b ) normal methods of investigation must have been tried and failed , or must from the nature of things , be unlikely to succeed if tried ; ( c ) there must be good reason to think that the use of the equipment would be likely to lead to an arrest and a conviction , or where appropriate , to the prevention of acts of terrorism ; ( d ) the use of equipment must be operationally feasible . The authorising officer should also satisfy himself that the degree of intrusion into the privacy of those affected by the surveillance is commensurate with the seriousness of the offence .

The Guidelines also state that there may be circumstances in which material so obtained could appropriately be used in evidence at subsequent court proceedings .

ORG was created by CARDINAL of PACE . It is an independent body empowered to receive complaints as to the conduct of police officers . It has powers to refer charges of criminal offences to ORG and itself to bring disciplinary charges .

Section CARDINAL(CARDINAL ) of PACE provides as follows :

“ In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that , having regard to all the circumstances , including the circumstances in which the evidence was obtained , the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it . ”

The CARDINAL Act provides a statutory basis for the authorisation of police surveillance operations involving interference with property or wireless telegraphy . The relevant sections relating to the authorisation of surveillance operations , including the procedures to be adopted in the authorisation process , entered into force on CARDINAL DATE .


Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 2;Violation of Art. 3 (applicant's brother);No violation of Art. 3 (applicant);Violation of Art. 5;Violation of Art. 13;No violation of Art. 14;No violation of Art. 18;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

The applicant , Mr PERSON , is a NORP citizen who was born in DATE and is at present living in GPE in south - east GPE . His application to the Commission was brought on his own behalf and on behalf of his brother PERSON , who , he alleges , has disappeared in circumstances engaging the responsibility of the ORG .

The facts surrounding the disappearance of the applicant ’s brother are disputed .

The facts presented by the applicant are contained in LAW below . In his memorial to the ORG , the applicant relied on the facts as established by the ORG in its report ( former LAW ) adopted on DATE and his previous submissions to the Commission .

The facts as presented by the Government are set out in LAW .

A description of the materials submitted to the ORG is contained in Part C. A description of the proceedings before the domestic authorities regarding the disappearance of the applicant ’s brother as established by the ORG is set out in Part D.

The Commission , with a view to establishing the facts in the light of the dispute over the circumstances surrounding the disappearance of the applicant ’s brother , conducted its own investigation pursuant to former LAW ( a ) of the LAW . To this end , the ORG examined a series of documents submitted by both the applicant and the Government in support of their respective assertions and appointed CARDINAL delegates to take the evidence of witnesses at hearings conducted in GPE on DATE and in GPE on DATE . The ORG ’s evaluation of the evidence and its findings thereon are summarised in Part E.

On DATE , the applicant ’s brother , PERSON , was detained during an operation in the village of ORG carried out by gendarmes and village guards . When the operation commenced early in the morning , PERSON hid in a house near the fountain while the other men were gathered in an open area . The security forces began setting fire to the houses . PERSON retrieved money , MONEY ( TRL ) , which he had hidden in the roof of his house and was caught leaving the house . PERSON was taken from the village by the security forces . This was witnessed by the other villagers . The money was taken from PERSON by a first lieutenant . PERSON , PERSON wife , was told by a boy from the village that he had seen a gendarme take money from PERSON .

PERSON was first taken to ORG , where he was kept TIME before being taken to ORG . In ORG , he was detained at the provincial gendarmerie headquarters . After DATE , he was held for DATE in the same room as PERSON , PERSON and ORG , who had been taken into custody on DATE by the security forces in an operation at GPE . PERSON had been beaten , a rib being broken and his head split open . He was taken out of the room for interrogation on several occasions , when he received electric shocks and was beaten . PERSON was also told by PERSON that a first lieutenant had taken money from him . At DATE , the other CARDINAL detainees were brought before the court . ORG and ORG were released and PERSON was remanded in custody . ORG did not see PERSON again .

After DATE at the provincial gendarmerie headquarters , in or DATE , PERSON was taken back to ORG where he was detained for DATE . From there he was moved to the gendarmerie station at GPE . During a period of DATE in or DATE or DATE , PERSON , who was also detained at GPE , saw PERSON when they were taken out of the cells for meals . At the end of that period , PERSON was transferred to ORG .

In DATE , following the transmission of Government submissions , the applicant learned for the first time that it was claimed by the authorities that PERSON had been killed in a clash DATE on PERSON , PERSON . The identification appeared to be based solely on the claim that PERSON identification card was found on CARDINAL of the bodies .

The Government recall that at this time the ORG ( ORG ) had destroyed numerous villages , inflicted suffering on CARDINAL of innocent victims and exerted intolerable oppression over the population of the south - east region .

They state that PERSON was not taken into custody by the security forces during the operation carried out at ORG on DATE and was not held in detention over any subsequent period . The custody records indicated that he was not held at ORG or at ORG provincial gendarmerie headquarters . Nor was he was taken to the gendarmerie station at GPE .

PERSON was a militant member of the ORG organisation . Following an armed clash between the ORG and the security forces on CARDINAL to DATE , he had been found dead with CARDINAL other militants at PERSON . PERSON had been implicated in the killing on DATE of CARDINAL teachers from PERSON whom he had reportedly described as “ servile dogs of the State ” . He most probably disappeared after this incident with the intention of escaping justice and continuing his activities for the ORG .

No complaint was made to the public prosecutor at GPE by any member of the applicant ’s family in respect of the alleged disappearance .

In the proceedings before the ORG , the applicant and the ORG submitted a number of statements by the applicant , which he had made to ORG in GPE ( ORG ) and to the public prosecutor at ORG . Statements had also been taken by the ORG and the public prosecutor from PERSON , the wife of PERSON , and PERSON , who had been detained from DATE to CARDINAL DATE at ORG provincial gendarmerie headquarters . PERSON had also made a statement to a police officer . Statements had been taken by PERSON , on behalf of the applicant , from LOC , who had been detained at the same time as PERSON , and from CARDINAL villagers , PERSON and PERSON .

The Government also provided an arrest report dated DATE concerning the apprehension of PERSON , PERSON and ORG , CARDINAL operation reports dated CARDINAL and DATE respectively concerning the operation at ORG village , documents concerning the witness FAC whom the ORG ’s delegates had summoned to give evidence but who did not appear and documents relating to inquiries made by the authorities into the allegations .

The Commission requested copies of the custody records for the relevant period for ORG gendarmerie station , ORG gendarmerie station , ORG provincial gendarmerie headquarters and the gendarmerie station at GPE . The ORG ’s delegates further requested the opportunity to inspect the original records of ORG , GPE and GPE . The Government provided the original custody record of the NORP central gendarmerie station as well as copies of the custody record of ORG gendarmerie headquarters and ORG provincial gendarmerie headquarters for the relevant period . The Government did not provide the ORG ’s delegates with sight of the original custody record for ORG provincial gendarmerie headquarters , or with either a copy of , or sight of , the original custody record for the gendarmerie station of GPE .

On DATE , PERSON , the father of the applicant and PERSON , submitted a handwritten petition to ORG requesting information as to what had happened to PERSON , who had been taken into custody on DATE by the security forces at the same time as PERSON , PERSON and ORG , who had been released DATE . An oral reply was given to him that PERSON was not on the list of persons in custody .

By letter dated DATE , the NORP public prosecutor , PERSON , informed ORG at ORG that , on examination of their records , PERSON had not been taken into custody or detained on DATE .

NORP By letter dated DATE to ORG at ORG , the NORP public prosecutor , PERSON , confirmed his letter of DATE and stated that no application had been filed by PERSON family to the effect that he was missing .

By letter dated DATE , ORG ( ORG and ORG ) , referring to correspondence from ORG of DATE outlining the complaints made by the applicant to ORG , requested the ORG Attorney - General to have the applicant ’s complaints investigated and evaluated according to law .

On DATE , the applicant ’s statement was taken by a public prosecutor at ORG . In his statement , he stated that his brother PERSON had been taken into custody by soldiers on DATE and that he had been seen by PERSON and PERSON , who were also detained . On DATE , the public prosecutor took a statement from PERSON . She stated that gendarmes had taken away her husband during an operation on DATE .

NORP By letter dated DATE , Colonel PERSON of GPE provincial gendarmerie command informed the ORG Attorney - General , in reply to a letter of enquiry of DATE , that their records indicated that PERSON had not been detained on DATE [ error for DATE ] .

NORP By letter dated DATE , Colonel PERSON reported to the ORG provincial authorities on the subject of the applicant ’s application to ORG . It was reported , inter alia , that police officers had been unable to find the addresses of the applicant , his father , PERSON , PERSON , PERSON ORG for the purpose of taking their statements . It had been established that PERSON , who was alleged to be missing , was involved with the ORG , having participated in killings . He was reported to have been a member of the NORP mountain team which , on DATE , kidnapped CARDINAL persons ( CARDINAL teachers , an imam and the imam ’s brother ) from GPE and killed CARDINAL of them . Their headquarters were looking for him .

By letter dated DATE , Colonel PERSON forwarded to ORG district gendarmerie command documents found in the area and upon the bodies of CARDINAL terrorists found dead as a result of an operation carried out in the PERSON region from DATE .

By letter dated DATE , ORG public prosecutor PERSON requested that the ORG public prosecutors investigate whether PERSON and ORG were detained by the gendarmes on DATE , and that they seek observations from PERSON concerning PERSON , who was alleged to have disappeared in custody .

By letter dated DATE , NORP public prosecutor PERSON requested the NORP district gendarmerie command urgently to inform him concerning the operation carried out in ORG on CARDINAL DATE and to investigate and establish whether PERSON had been detained along with PERSON , PERSON and ORG .

NORP By letter dated CARDINAL DATE , the ORG district gendarmerie command informed the ORG public prosecutor in reply that the operation on DATE had been intended to capture members of the ORG and those aiding and abetting them and that their records indicated that PERSON , PERSON , PERSON and ORG had not been detained .

By letter dated CARDINAL DATE , the ORG public prosecutor requested the ORG district gendarmerie command as a matter of urgency to establish the whereabouts of PERSON .

By letter dated DATE to the NORP public prosecutor , the district gendarmerie command at ORG referred to the prosecutor ’s enquiry dated CARDINAL DATE about the whereabouts of PERSON and to the letter dated DATE from the ORG provincial gendarmerie command . It stated that PERSON had been a member of the ORG . Following an operation carried out at FAC on DATE which resulted in the deaths of CARDINAL terrorists , PERSON identity was established by the identity card located amongst the documents found on the body of a terrorist . It was concluded that he was one of the terrorists .

By letter dated DATE , the ORG public prosecutor informed the ORG Attorney - General , in reference to their letter of DATE and the letter of ORG of DATE , that an operation had been carried out on DATE in order to apprehend members of the ORG and those assisting them and that PERSON , PERSON and ORG had not been detained as claimed . Referring to the letter of DATE above , it was stated that PERSON was a member of the ORG and found dead during operations carried out in LOC , LOC , on DATE . The ORG public prosecutor had been requested to obtain a statement from PERSON , a response to which was still awaited .

By letter dated DATE , the ORG public prosecutor ’s office informed ORG ( ORG ) of the information provided by the ORG gendarmes ( see paragraph CARDINAL above ) . It stated that a preliminary investigation ( no . MONEY ) had been started and was still pending .

NORP By letter dated DATE , the ORG public prosecutor informed ORG that upon its request the ORG Attorney - General had been instructed to take a statement from PERSON .

On DATE , a police officer took a brief statement from PERSON in which it was stated that he had not seen PERSON for DATE . On DATE , a public prosecutor at ORG took a statement from PERSON . In this statement , he stated , inter alia , that he had not seen PERSON in custody though PERSON might have seen him and referred to himself having been given electric shocks once while he was detained at ORG provincial gendarmerie headquarters .

By decision of DATE , NORP public prosecutor PERSON issued a decision of lack of jurisdiction and transferred the file to ORG . The decision named the applicant and PERSON as the complainants and identified the victim as PERSON . The offence was described as ill - treatment , torture and confiscation of money of a detainee and the defendants as unidentified individuals of ORG gendarmerie station and village guards . It stated that the complainants claimed that soldiers from ORG gendarmerie command arrived in ORG on TIME CARDINAL DATE and detained the victim , that the victim had been taken to ORG where he was tortured and that a lieutenant had removed TRL CARDINAL from him . The investigation had established that the victim was a member of the ORG terrorist organisation and that following an operation by the security forces in LOC on CARDINAL and DATE the victim ’s identity card had been located on one of the dead terrorists , thus confirming the individual ’s identity as PERSON without doubt . PERSON had made a statement to the effect that he had not seen PERSON . The suspects fell under the PERSON on the prosecution of civil servants and following the withdrawal by the ORG prosecution the documentation was transferred to the Presidency of ORG for the necessary action .

Since the facts of the case were disputed , particularly concerning the events in or around DATE , ORG conducted an investigation , with the assistance of the parties , and accepted documentary evidence , including written statements and oral evidence taken from CARDINAL witnesses : the applicant ; PERSON , previous muhtar of ORG ; PERSON , the wife of PERSON ; PERSON , who had been detained at ORG provincial gendarmerie headquarters from DATE to DATE ; PERSON , who had been gendarmerie commander of ORG in DATE and had commanded the operation at ORG on DATE ; PERSON , a villager from ORG ; PERSON , public prosecutor in GPE from DATE ; PERSON , the ORG central station commander at ORG district gendarmerie headquarters from DATE to DATE ; PERSON , the gendarme responsible for keeping the custody records at ORG provincial gendarmerie headquarters since DATE ; PERSON , a gendarme who had served at GPE station from DATE to DATE ; and PERSON , the brother of the imam who had been kidnapped with CARDINAL teachers from PERSON .

A further CARDINAL witnesses had been summoned but did not appear : PERSON , ORG public prosecutor in DATE ; Colonel PERSON , ORG provincial gendarmerie commander ; PERSON , who was alleged by the applicant to have seen his brother in detention at GPE ; PERSON , the father of the applicant and PERSON ; PERSON and PERSON , who had both been detained at ORG provincial gendarmerie headquarters from DATE to CARDINAL DATE . It appeared that PERSON had died prior to the hearing . The Government claimed that they were unable to locate the witness FAC for the hearing in DATE despite the fact that they had been provided with information from the applicant that he was detained in FAC . The Government stated that FAC was served with the summons for the hearing to take place before the delegates on DATE but that he refused to sign the acknowledgment of service and was released from prison on DATE . The Government failed to provide the Commission with any explanation as to the timing and reason for his release . PERSON had informed the ORG by letter that he had no direct or indirect knowledge of the incident and that he did not consider himself obliged to attend . At the hearing in DATE , ORG explained to the delegates that they were unable to require public prosecutors to attend , nor could they oblige a senior officer such as PERSON to attend either .

The ORG made a finding in its report ( at paragraph CARDINAL ) that the ORG had fallen short of their obligations under former LAW CARDINAL ( a ) of the LAW to furnish all the necessary facilities to the Commission in its task of establishing the facts . It referred to

( i ) the Government ’s failure to provide the ORG ’s delegates with the opportunity to view original custody records ( see paragraph CARDINAL above ) ;

( ii ) the Government ’s failure to facilitate the attendance of the witness FAC ;

( iii ) the Government ’s failure to secure the attendance of the witnesses PERSON and PERSON .

In relation to the oral evidence , the ORG was aware of the difficulties attached to assessing evidence obtained orally through interpreters . It therefore paid careful attention to the meaning and significance which should be attributed to the statements made by witnesses appearing before its delegates .

In a case where there were contradictory and conflicting factual accounts of events , the Commission particularly regretted the absence of a thorough domestic judicial examination . It was aware of its own limitations as a first - instance tribunal of fact . In addition to the problem of language adverted to above , there was also an inevitable lack of detailed and direct familiarity with the conditions pertaining in the region . Moreover , the Commission had no power to compel witnesses to appear and testify . In the present case , while CARDINAL witnesses had been summoned to appear , CARDINAL gave evidence . The lack of documentary materials is adverted to above . The Commission was therefore faced with the difficult task of determining events in the absence of potentially significant testimony and evidence .

The Commission ’s findings may be summarised as follows .

GPE was in a district where terrorist activity was intense in DATE . On or about DATE , members of the ORG kidnapped CARDINAL teachers , an imam and the imam ’s brother , PERSON , from the village of PERSON and marched them across country , passing near the village of GPE . PERSON was required to shelter CARDINAL of the teachers , who was of NORP origin , TIME before allowing him to leave . The ORG shot and killed CARDINAL teachers and the imam , while PERSON , though wounded , was able to reach safety . He gave the gendarmes at ORG gendarmerie headquarters descriptions of the persons whom he had seen , including the villagers who had brought food and stood guard . ORG was a village under the jurisdiction of ORG gendarmes . The kidnap victims had also passed close to the village of ORG , QUANTITY from GPE , but which was under the jurisdiction of the ORG gendarmes .

ORG The gendarmes from ORG and ORG conducted a coordinated operation on DATE . This operation concerned the collecting of evidence and information relating to the kidnapping and murder and the apprehension of persons suspected of involvement . PERSON was in command of the gendarmes from ORG . The operation order drawn up by him on DATE indicated that the purpose of the operation was the capture of ORG terrorists and their collaborators and the destruction of shelters , and it named PERSON as the place of the operation . The Commission rejected the testimony of ORG that they were not looking for PERSON when they went to ORG . The delegates assessed his evidence as evasive and unhelpful , and demonstrating a lack of sincerity . The Commission had regard to the evidence from CARDINAL other gendarmes that PERSON was already wanted by the authorities in relation to suspected ORG involvement before this operation and found that in all probability the ORG gendarmes went to ORG with the intention of locating and apprehending PERSON in relation to the kidnapping incident .

The Commission assessed the evidence of the witnesses from the village , PERSON , PERSON and PERSON , who stated that they saw PERSON being taken from the village by the gendarmes , as being on the whole consistent , credible and convincing . They found the ORG ’s objections to their credibility to be unfounded on examination . Accordingly , the ORG found that when the gendarmes arrived in ORG on DATE , PERSON attempted to hide but was found and taken from the village in custody by the ORG gendarmes . Meanwhile , in GPE , the ORG gendarmes took into detention CARDINAL individuals , PERSON , PERSON and ORG .

PERSON , PERSON and Tahsin Demirbaş were taken to ORG gendarmerie headquarters where they spent TIME . They were not entered into the custody records . DATE , on DATE , they were taken to ORG provincial gendarmerie headquarters , where entries in the custody record stated that they had been detained on DATE .

The ORG gendarmerie station custody record made no entry on CARDINAL DATE with respect to PERSON . Nor did the copies of the entries for the period DATE at the ORG provincial gendarmerie headquarters . The ORG examined in detail the entries for both . It found disturbing discrepancies . In particular , it found that entries were not in sequential or chronological order ; that all the entries in the ORG custody record were in the same handwriting ; and that the number of persons recorded as detained in ORG exceeded the officially available number of cells . This gave rise , inter alia , to a strong suspicion that entries were not made contemporaneously . The oral explanations of PERSON , who was responsible for the ORG provincial gendarmerie records , were found by the ORG to be highly unsatisfactory , indicating that an entry in the register did not necessarily indicate the physical presence of a suspect and that no entries were made to reflect the movements of suspects in and out of the custody area . It concluded that the record did not constitute an accurate or comprehensive record of the persons who might have been detained over that period and the absence of PERSON name in the ORG and ORG records was not sufficient to prove that he had not been taken into custody .

The Commission accepted the oral evidence of PERSON , who stated that while he was detained at ORG provincial gendarmerie headquarters he saw and spoke to PERSON , who was detained over a period of DATE in the same room . It also accepted his evidence that PERSON looked in a bad condition , with dried blood on his clothes , and that PERSON had told him that he had been beaten , CARDINAL of his ribs broken , his head split open and that he had been given electric shocks twice . Supporting evidence for the fact that PERSON had been detained and ill - treated was to be found in the written statement of PERSON , taken by the ORG .

The Commission gave consideration to the written statements made by PERSON and relied on by the Government as undermining his oral testimony . It found the first statement taken from PERSON by a police officer on DATE to be a brief and imprecise denial . The statement taken by a public prosecutor on CARDINAL DATE was also brief and contained contradictory and ambiguous phrasing . It concluded that this statement was not a full and frank reflection of PERSON testimony and did not destroy the credibility of his evidence to the delegates . It accordingly found it established that PERSON was taken after his apprehension at ORG to ORG where he spent TIME CARDINAL DATE and that he was transferred to ORG provincial gendarmerie headquarters where he was last seen by PERSON on or DATE when the latter was released .

The Commission made no findings as to the allegation made by the applicant that PERSON was taken from ORG provincial gendarmerie headquarters to ORG and from ORG to GPE gendarmerie station . These allegations were based on oral statements made to the applicant by PERSON , who did not appear before the delegates and who had not produced any written statement . While there were some supporting elements , the ORG found that the evidence failed to reach the requisite standard of proof .

The family of PERSON were not informed of his alleged death in a clash between the ORG and the security forces on CARDINAL to DATE . Although Colonel PERSON had been requested to provide the authorities with information as to the whereabouts of PERSON , he made no official report as to the alleged finding of PERSON identity card on the body of CARDINAL of the dead terrorists at FAC . The first report as to the finding of the identity card was made by the ORG gendarmes , who had been passed information that the clash had occurred , accompanied by unspecified documents , by Colonel GPE . There were however no documents provided to the Commission relating to the identification of the body or release of the body for burial . The Commission was not prepared to find it established that PERSON was killed as alleged or that his body was amongst those found at PERSON .

The ORG found that the applicant and his father , PERSON , made petitions and enquiries to ORG prosecutor at ORG in relation to the disappearance of PERSON . The only steps taken by the authorities were to verify whether the ORG records contained the name of PERSON and for an enquiry to be sent to the ORG public prosecutor , who examined his records .

Following communication of the application to the ORG , further enquiries were made by the ORG and ORG public prosecutors . Statements were taken from PERSON , PERSON and the applicant . The addresses of ORG and PERSON were not discovered . ORG found that the ORG public prosecutor made enquiries from the ORG district gendarmerie as to their alleged apprehension of PERSON but that he did not inspect the original custody record . Nor was any inspection carried out by a public prosecutor of the ORG provincial gendarmerie custody records . No steps were taken to verify the information submitted by the ORG district gendarmerie that PERSON was amongst the dead terrorists at PERSON .

In reaching his decision of lack of jurisdiction of DATE , the ORG public prosecutor had available to him the statements taken from PERSON , PERSON and the applicant and the information from the ORG gendarmerie with regard to the alleged discovery of PERSON body . He also may have had documents relating to the applicant ’s application to the ORG and copies of custody records .

The Government have not submitted in their memorial any details on domestic legal provisions which have a bearing on the circumstances of this case . The ORG refers to the overview of domestic law derived from previous submissions in other cases , in particular the PERSON v. GPE judgment of CARDINAL DATE , Reports of Judgments and Decisions CARDINAL , pp . DATE , § § DATE , and the ORG v. GPE judgment of DATE , Reports CARDINAL-IV , pp . DATE , § § DATE .

Since DATE , serious disturbances have raged in the south - east of GPE between the security forces and the members of the ORG ( Workers’ ORG ) . This confrontation has , according to the ORG , claimed the lives of CARDINAL of civilians and members of the security forces .

CARDINAL principal decrees relating to the south - eastern region have been made under the PERSON on ORG ( Law no . CARDINAL , DATE ) . The first , Decree no . CARDINAL ( DATE ) , established a regional governorship of the state of emergency in CARDINAL of the CARDINAL provinces of south - eastern GPE . Under LAW b ) and ( d ) of the decree , all private and public security forces and ORG are at the disposal of the regional governor .

The second , Decree no . CARDINAL ( DATE ) , reinforced the powers of the regional governor , for example to order transfers out of the region of public officials and employees , including judges and prosecutors , and provided in LAW

“ No criminal , financial or legal responsibility may be claimed against the state of emergency regional governor or a provincial governor within a state of emergency region in respect of their decisions or acts connected with the exercise of the powers entrusted to them by this Decree , and no application shall be made to any judicial authority to this end . This is without prejudice to the rights of individuals to claim indemnity from the ORG for damage suffered by them without justification . ”

Article CARDINAL § § CARDINAL and CARDINAL of LAW provides as follows :

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

The administration shall be liable to make reparation for any damage caused by its own acts and measures . ”

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

Proceedings against the administration may be brought before the administrative courts , whose proceedings are in writing .

LAW makes it a criminal offence :

– to deprive an individual unlawfully of his or her liberty ( LAW generally , LAW servants ) ;

– to issue threats ( LAW ) ;

– to subject an individual to torture or ill - treatment ( Articles CARDINAL and CARDINAL ) ;

– to commit unintentional homicide ( Articles CARDINAL , CARDINAL ) , intentional homicide ( Article CARDINAL ) and murder ( Article CARDINAL ) .

For all these offences complaints may be lodged , pursuant to ORG CARDINAL and CARDINAL of LAW , with the public prosecutor or the local administrative authorities . A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts in order to decide whether or not to bring a prosecution ( LAW . Complaints may be made in writing or orally . A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings .

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

In the case of alleged terrorist offences , the public prosecutor is deprived of jurisdiction in favour of a separate system of national security prosecutors and courts established throughout GPE .

NORP The public prosecutor is also deprived of jurisdiction with regard to offences alleged against members of the security forces in the state of emergency region . Decree no . CARDINAL , LAW , provides that all security forces under the command of the regional governor ( see paragraph CARDINAL above ) shall be subject , in respect of acts performed in the course of their duties , to the Law of DATE on the prosecution of civil servants . Thus , any prosecutor who receives a complaint alleging a criminal act by a member of the security forces must make a decision of non - jurisdiction and transfer the file to ORG . These councils are made up of civil servants , chaired by the governor . A decision by the ORG not to prosecute is subject to an automatic appeal to ORG . Once a decision to prosecute has been taken , it is for the public prosecutor to investigate the case .


Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1;Non-pecuniary damage - award

András Sajó;Françoise Tulkens;Guido Raimondi;Kristina Pardalos;Nona Tsotsoria

The applicants , Mr PERSON ( “ the first applicant ” ) , Mr ORG ( “ the second applicant ” ) , Mr PERSON ( “ the third applicant ” ) , Mr PERSON ( “ the fourth applicant ” ) , Mr PERSON ( “ the fifth applicant ” ) , Mr PERSON ( “ the sixth applicant ” ) , Mr Ljubiša Janićijevic ( “ the seventh applicant ” ) , Mr PERSON ( “ the CARDINAL applicant ” ) , Mr PERSON ( “ the ninth applicant ” ) , Mr PERSON ( “ the tenth applicant ” ) , Mr PERSON ( “ the eleventh applicant ” ) , PERSON ( “ the twelfth applicant ” ) , Mr Predrag Todić ( “ the thirteenth applicant ” ) , Mr PERSON ( “ the fourteenth applicant ” ) , Mr PERSON ( “ the fifteenth applicant ” ) , Mr PERSON ( “ the sixteenth applicant ” ) , Mr PERSON ( “ the seventeenth applicant ” ) , Mr PERSON ( “ the eighteenth applicant ” ) , Mr PERSON Đorđević ( “ the nineteenth applicant ” ) , Mr PERSON ( “ the twentieth applicant ” ) , Mr PERSON ( “ the QUANTITY - first applicant ” ) , Mr PERSON ( “ the QUANTITY - second applicant ” ) , Mr PERSON ( “ the CARDINAL applicant ” ) , Mr ORG ( “ the CARDINAL applicant ” ) , Mr PERSON ( “ the CARDINAL applicant ” ) , Mr PERSON ( “ the CARDINAL applicant ” ) , Mr PERSON ( “ the CARDINAL applicant ” ) , Mr PERSON ( “ the CARDINAL applicant ” ) , Mr PERSON ( “ FAC applicant ” ) and Mr PERSON ( “ the thirtieth applicant ” ) are all NORP nationals .

All applicants are employed as police officers with ORG of GPE ( ORG unutrašnjih poslova PERSON , hereinafter “ the NORP ” ) . They reside and work in GPE .

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

On DATE and DATE , respectively , ORG adopted CARDINAL decisions whereby , inter alia , all of its employees who resided and worked in GPE were to be paid double salaries .

On DATE the ORG issued a decision stating that the police officers in question were entitled to have their salaries increased based on a coefficient of CARDINAL or CARDINAL.CARDINAL , depending on the circumstances .

In reality , the applicants only received the increase approved by ORG , amounting to significantly less than the envisaged doubling of their salaries .

In DATE and DATE , therefore , they filed separate civil claims against ORG with ORG ( PERSON opštinski sud ) in GPE , seeking payment of the difference between the salary increase received and the CARDINAL granted by the Government ( the value of the seventh , thirteenth , seventeenth , DATE , CARDINAL and CARDINAL applicants ' claims , respectively , exceeded QUANTITY , whilst the claims of all other applicants were below this threshold ) . The applicants further requested payment of unspecified amounts on account of the related pension and disability insurance contributions .

Certain applicants were successful before ORG ; others were not . However , all the applicants were unsuccessful at second instance before ORG ( Okružni sud ) in GPE ( hereinafter “ the ORG ” ) . The applicants received those decisions on the following dates :

- the first applicant on DATE ;

- the second and third applicants on DATE ;

- the fourth applicant on DATE ;

- the fifth applicant on DATE ;

- the sixth applicant on DATE ;

- the seventh applicant on DATE ;

- the eighth applicant on DATE ;

- the ninth , tenth and eleventh applicants on DATE ;

- the twelfth applicant on DATE ;

- the thirteenth and fourteenth applicants on DATE ;

- the fifteenth applicant on DATE ;

- DATE and DATE applicants on DATE ;

- the seventeenth applicant on DATE ;

- the eighteenth applicant on DATE ;

- the twentieth applicant on DATE ;

- the twenty - second applicant on DATE ;

- the CARDINAL applicant on DATE ;

- the twenty - fourth and CARDINAL applicants on DATE ;

- the CARDINAL applicant on DATE ;

- the CARDINAL applicant on DATE ;

- the twenty - seventh and thirtieth applicants on DATE ;

- the DATE applicant on DATE .

Many of the applicant 's colleagues ( hereinafter “ the plaintiffs ” ) had brought separate claims concerning the same issue ; some were successful whilst others were unsuccessful in ORG .

In its reasoning in the applicants ' cases , ORG held , inter alia , that the applicable domestic regulation was contained in the decision of ORG adopted on DATE .

NORP However , in CARDINAL other judgments , rendered DATE and DATE , the same ORG ruled in favour of the plaintiffs , notwithstanding the fact that their claims were based on the same facts and concerned identical legal issues . In its reasoning in these other cases , ORG held , inter alia , that the plaintiffs ' salaries had to be paid in accordance with ORG decisions of DATE and/or DATE .

Of the CARDINAL judgments mentioned above , in CARDINAL cases the respondent lodged appeals on points of law ( revizije ) with ORG ( PERSON , see paragraphs CARDINAL and CARDINAL below ) . In the remaining CARDINAL cases , however , the respondent lodged no such appeal , apparently in the light of the statutory threshold ( see paragraph CARDINAL below ) .

The Government provided relevant case - law adopted by ORG , in particular CARDINAL separate judgments of which CARDINAL was issued on DATE and the remaining CARDINAL between DATE and DATE . In each case , deciding upon appeals on points of law , ORG ruled against the plaintiffs , albeit with somewhat different reasoning compared to that employed by ORG . In particular , ORG held , inter alia , that the ORG 's decision of CARDINAL DATE had not been directly applicable .

In the meantime , on DATE , ORG ( PERSON odeljenje ) of ORG held a meeting which was meant to resolve the issue of how to rule in all cases such as the applicants ' ( see paragraph CARDINAL below ) . In TIME of this meeting , it was noted inter alia that in CARDINAL cases registered in DATE , where appeals on points of law had been considered , ORG had in fact confirmed the lower courts ' rulings rendered in favour of the plaintiffs ( PERSON CARDINAL/CARDINAL and PERSON CARDINAL/CARDINAL ) . The meeting , however , was ultimately adjourned pending the outcome of a case which had been brought before ORG ( ORG ) concerning the abstract review of the constitutionality of the ORG 's decision adopted on DATE . On DATE ORG held that the impugned decision was unconstitutional .

In DATE separate cases the plaintiffs thereafter lodged their appeals with ORG ( ustavne žalbe ) , but , according to the information contained in the case file , these proceedings are all still pending .

None of the applicants lodged an appeal on points of law or attempted to obtain constitutional redress .

The relevant provisions in this respect are set out in the PERSON and Others v. GPE judgment ( nos . CARDINAL , CARDINAL/CARDINAL , DATE , CARDINAL , CARDINAL , CARDINAL , DATE , DATE , DATE , GPE , ORG , CARDINAL , CARDINAL/CARDINAL , CARDINAL , CARDINAL , CARDINAL , GPE , CARDINAL , CARDINAL/CARDINAL , GPE , DATE , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL and CARDINAL , § § DATE , DATE ) .

Article CARDINAL § CARDINAL provides , inter alia , that all parties shall be entitled to the equal protection of their rights .

Articles CARDINAL - CARDINAL provide details as regards an appeal which may be filed against a judgment rendered at first instance ( žalba ) . Article CARDINAL § CARDINAL , in particular , provides that such an appeal must be filed within DATE .

Article CARDINAL , however , provides that an appeal ( žalba ) in a labour dispute must be filed within DATE .

Articles CARDINAL § CARDINAL , CARDINAL and CARDINAL provide that parties may file an appeal on points of law ( revizija ) with ORG . They may do so within DATE following receipt of a final decision rendered at second instance , and only if the relevant legislation , procedural or substantive , has been breached by the lower courts .

Article CARDINAL § CARDINAL provides , inter alia , that an appeal on points of law is “ not admissible ” in pecuniary disputes ( kad se tužbeni zahtev odnosi na potraživanje u novcu ) where the “ value of the part of the final judgment being contested ” does “ not exceed QUANTITY ” .

Article CARDINAL provides that an appeal on points of law shall be admissible in labour cases which concern one 's hiring or dismissal or the “ existence ” of one 's employment ( u parnicama o sporovima o zasnivanju , postojanju i prestanku radnog odnosa )

In accordance with Articles CARDINAL and CARDINAL - CARDINAL , inter alia , the ORG shall , should it accept an appeal on points of law lodged by CARDINAL of the parties concerned , have the power to overturn and/or amend the impugned judgment or quash it and order a re - trial before the lower courts .

Article CARDINAL provides that a case may be re - opened if ORG has in the meantime rendered a judgment in respect of GPE concerning the same or a similar legal issue .

Article QUANTITY provides , inter alia , that a meeting of a division ( sednica odeljenja ) of ORG shall be held if there is an issue as regards the consistency of its case - law . Any opinions ( pravna shvatanja ) adopted thereupon shall be binding for all panels ( veća ) of the division in question .


The applicants are Ms A. GPE , Mr P. GPE , Ms H.A. Liljeroos , Ms H.M. Liljeroos , Mr NORP Liljeroos , Ms S. PERSON , PERSON PERSON , Mr R.T.J. Nurminen and Mr R.R.K. PERSON . They are NORP nationals , born in DATE , DATE , DATE , DATE , DATE and DATE , respectively , and living in LOC in GPE . They are represented before the ORG by PERSON , a lawyer practising in GPE .

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

In the DATE ’s construction work was started in order to build a road to LOC , which has no connection to the mainland . The part of the road ( the Kattilaniemi road ) which is situated on the mainland , and in the construction of which the applicants also participated , was finished at DATE .

On DATE , ORG ( vesioikeus , vattenrätt ) of LOC entitled the applicants to build a bridge from ORG to a place called GPE on LOC as it was found to be the most advantageous place to build the road with a view to connecting with the network of public roads .

ORG ( lääninhallitus , länsstyrelsen ) of LOC , represented by PERSON , appealed against ORG decision to ORG ( vesiylioikeus , vattenöverdomstolen ) which , on DATE , upheld ORG decision .

On DATE , the proceedings concerning the construction of the private road to PERSON concluded and established the right to the road of those who owned property in the area in which the road was to be built , excluding the owners of such property which was used only for leisure activities and who had objected to the road plan . CARDINAL private persons as well as ORG appealed against the decision in the road construction proceedings to ORG ( maaoikeus , jorddomstolen ) , claiming , inter alia , that the road would , if built as planned , destroy conservable nature values in the area .

ORG decided , in its decision of CARDINAL DATE , not to examine the appeals lodged by ORG and CARDINAL of the private individuals as it found that they were not parties to the road construction proceedings in question . The rest of the appeals were rejected as ORG found , inter alia , that there was an important public interest to build a connecting road from the island to the mainland . Some of the private individuals whose appeals had been rejected by ORG applied to ORG ( korkein oikeus , högsta domstolen ) for leave to appeal . ORG granted them leave to appeal on DATE . On DATE , ORG rejected the relevant appeals and upheld ORG decision .

Meanwhile , on DATE , to prevent the enforcement of the ORG decision , ORG had issued an interim order prohibiting works in the area , for DATE , for the purpose of protecting the habitat of the white - backed woodpecker . ORG decision was signed by , inter alia , PERSON who had represented ORG in the appeal proceedings against ORG decision . The road construction work which had already started was thus discontinued .

CARDINAL of the applicants and the administrative committee for the maintenance of forest roads in NORP appealed against the order to ORG on the grounds that an error had allegedly taken place in the hearing of the parties and that the construction of the road would not endanger the protection of the white - backed woodpecker . On DATE , ORG found that no error had taken place in the hearing of the parties , noting that trees had already been cut down . Insofar as the decision depended on the assessment of the appropriateness of the decision , it transferred the issue to ORG .

Following the transfer , ORG ( ympäristöministeriö , miljöministeriet ) found , on DATE , that there was no reason to change the decision of ORG . The ORG ’s decision was appealed to ORG , inter alia on grounds that the Minister for Environment , PERSON , was biased as she had already participated in the decision - making before ORG in so far as the prohibition was concerned . On DATE , ORG rejected the appeal . The applicants’ request to reopen the proceedings was refused by ORG on DATE .

As the owner of the PERSON estate had refused to sell her real estate to the ORG , ORG granted , on DATE , permission for the expropriation of the PERSON estate with a view to protecting the white - backed woodpecker even though the municipality of GPE had , in its statement of DATE , objected to the expropriation , taking the view that the prohibition against building the NORP road would render the relevant part of the municipality more and more isolated and deserted as living there would become too difficult and unsafe . According to ORG , the expropriation would violate the general sense of justice if the interests of a species of a bird were preferred to those of the inhabitants of the municipality . It was also noted in the statement that ORG had already decided to allow the road to be constructed and that a contrary decision would be surprising and dubious .

The applicants appealed to ORG which , on DATE , dismissed the ORG appeal and upheld the expropriation . It held that the land was part of a larger area which was , due to its natural features , a suitable habitat for the white - backed woodpecker and that observations of the species had been made there . Thus the area was , with respect to the protection of the white - backed woodpecker , of such importance that it could be defined as a special protection area within the meaning of LAW , subsection CARDINAL of the DATE LAW . On DATE , the applicants asked for the annulment of this decision . The matter is pending .

By letter dated DATE , the administrative committee of PERSON requested ORG to lift the expropriation insofar as the right to the road was concerned . By reply dated DATE , ORG stated that it was impossible to establish a right to a road in the area , as it was so small that that no measures changing the nature of the forest could be allowed without endangering the existence of the bird which had been sighted in the area since DATE .

The expropriation proceedings concerning the PERSON estate were completed on DATE . The area concerned QUANTITY and was delimited so that , as a biotope , it covered the habitat of the white - backed woodpecker only . The compensation paid to ORG amounted to ORG CARDINAL,CARDINAL with costs and expenses of ORG .

On DATE , the executors of the expropriation of the ORG estate decided , after a vote , to expropriate the right to the road attached to the estate in accordance with the Ministry decision and then to establish a new right to a road for the same area to which the earlier right to a road was attached . In his dissenting opinion , the engineer considered that a right to the road could not be established for the same area as there was an alternative .

On DATE , ORG lodged an appeal with ORG ( acting as ORG ) , which on DATE upheld the decision of the executors . On DATE , ORG suspended the execution of the decision of ORG . On DATE ORG reversed the judgment of ORG and returned the matter to the executors stating that the right to a road could not be re - established on an area which under a decision of ORG had been expropriated . The executors were to take up the matter without delay in order to establish another route . On DATE , the applicants appealed for the annulment of ORG judgment . The matter is pending .

Meanwhile , the inhabitants of LOC continued to live on their island without any connection to the mainland during time when there was no open water or the ice was too thin to build an ice - road from the island to the mainland . Such a period could last for DATE each DATE and DATE . In DATE , when the water areas were not frozen , boats were used , for example , for delivering the DATE mail and groceries as well as the medication needed by the elderly islanders . There was no medical care nor fire and rescue service available to the islanders . The closest shop was CARDINAL ( CARDINAL ) kilometres away .

The applicants referred to a number of incidents as illustrating the risk to human life arising from the lack of proper connection to the mainland . A mailman was drowned in the lake when delivering the mail to LOC and a father , forced to leave the island by foot to get medicine for his sick child , was also drowned in the lake as the ice was too thin to carry him . On DATE , a local cabdriver risked his life by driving his cab to the island to fetch an islander to the hospital even though the ice was thin at the time . Allegedly , the islander in question would have died in a matter of hours if he had not been taken to hospital in time . It has also happened that a fire brigade was forced to watch from the other side of the lake when a barn was burned down by lightning as they could not reach the island with their equipment .

On DATE a question concerning the justification of the prohibition in terms of the cost of human lives was put in the ORG by a Member of ORG , Mr PERSON . The question was answered by ORG at the time , Ms S.Hassi , on DATE . She referred to the decisions given by ORG and found that the road could and should be constructed to the island but through another estate than the PERSON estate . She also noted that the loss to the islanders would be compensated for in accordance with LAW ( lunastuslaki , inlösningslag ) . PERSON and another Member of ORG , Mr PERSON , repeated the question in ORG on DATE , requesting that the Minister for Environment would herself visit the island . The question has been left unanswered . The applicants also sent an invitation to the Minister for Environment to visit the island .

The applicants in addition twice approached the Chancellor of ORG , who on DATE and DATE rendered decisions rejecting their complaints .


Violation of Article 6 - Right to a fair trial;Violation of Article 13 - Right to an effective remedy

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens

The applicant was born in DATE and lives in GPE .

NORP In DATE the applicant ’s neighbour caused a flood in the applicant ’s flat . According to the applicant , she sent a statement of claims to ORG of GPE by regular mail in DATE . She sought compensation for damage caused by her neighbour . It is unclear whether the applicant ’s statement was received by ORG .

On DATE the applicant resubmitted her tort action against her neighbour to ORG of GPE . On DATE the proceedings were stayed pending an expert examination . They were subsequently resumed on DATE with no examination having been performed .

From DATE to CARDINAL DATE several hearings were adjourned either because the defendant had not attended or because the judge was busy on another case .

On DATE another expert examination was ordered . The parties refused to pay for it . The examination was not performed and on CARDINAL DATE the experts returned the case file to ORG . On DATE and DATE the court made an offer to the applicant to pay for the expert report . According to the Government , she did not reply to the offer .

On DATE ORG resumed the proceedings .

On DATE the hearing was adjourned because the parties had not attended . On DATE ORG refused to examine the action because the parties had again failed to appear .

On DATE the applicant complained to ORG that she had not been properly notified of the hearing of DATE and had been unable to attend .

On DATE ORG quashed the decision of CARDINAL DATE and ordered the proceedings to be resumed . A hearing was listed for DATE .

From DATE to DATE several hearings were adjourned either because the defendant had not attended or had asked for an adjournment or because the judge was busy on another case .

On DATE ORG of GPE granted the applicant ’s action in part and awarded her MONEY as compensation for damage .

On DATE ORG upheld the judgment on appeal .

On many occasions in DATE the applicant complained to various domestic officials , including ORG , ORG of ORG of GPE , ORG , and ORG , of the excessive length of the proceedings in her case .

It appears that her complaints were either left unanswered or redirected to ORG of GPE .