The applicant , PERSON , is a GPE national , who was born in DATE and lives in GPE ( GPE ) . She is represented before the ORG by PERSON , a lawyer practising in GPE .

The applicant was the ex - wife and current unmarried cohabiting partner of CARDINAL Mr PERSON ( hereinafter Mr ORG ) . Mr ORG was born on DATE . He died on DATE from a gunshot wound sustained in a shooting incident involving police officers , in the course of which the applicant herself was wounded .

The facts of the case , as submitted by the applicant and as apparent from documents submitted by her , may be summarised as follows .

ORG ( officier van justitie ) of ORG ( arrondissementsrechtbank ) of GPE ordered PERSON arrested on drugs charges . With the permission of ORG ( hoofdofficier van justitie ) it was decided that PERSON should be arrested without warning in his home in the town of GPE by a police arresting team . The reason was that Mr FAC was believed to be in possession of a firearm .

The arrest was planned for DATE . It was intended that Mr ORG house would be searched once Mr FAC was held .

The commander and members of the arresting team , all members of the GPE - Rijnmond police force , were briefed on DATE . They were provided with information concerning the suspect and shown plans and photographs of the house where he was to be arrested . They were further told that Mr ORG elder son , Mr PERSON ( born on DATE , sometimes referred to as PERSON ) , was also believed to possess a firearm .

The arresting team commander had the choice between a fast arresting procedure and a slower procedure . The fast procedure involved forcing an entry as quickly as possible and gaining control of all rooms in the building , pistols remaining holstered ; only when a pair of police officers entered the room which they were detailed to clear would the first officer , and only the first officer , draw his pistol . The slower procedure involved the use of bulletproof shields . It might , depending on the circumstances , involve entering the building with pistols drawn . If the faster procedure was used but difficulties were encountered , the slower procedure was resorted to . The arresting team commander chose the fast procedure .

TIME before the operation was to take place police officers undertook a final reconnaissance . It was established that the light was on in the hallway on the ground floor ; the front door was locked and in addition bolted at the top but not at the bottom .

The arresting team were dressed in dark blue overalls , bulletproof vests bearing the word “ police ” in large black letters on a light - coloured reflecting background and bulletproof helmets with visors . They were equipped with electric torches and the standard police issue PERSON PCARDINAL pistol . The pistols were loaded with standard police issue Action CARDINAL ammunition .

The arresting team was comprised of QUANTITY police officers . Their names have been withheld from the public and they are referred to by code numbers .

The team was divided into pairs , each detailed to search a particular part of the house , leaving CARDINAL member who would guard the back of the house . The first pair to enter the house would consist of Police Officers CARDINAL and CARDINAL , who would then proceed to the back bedroom on the first floor where FAC was expected to be .

Shortly after the team arrived outside the ORG home the commander was informed that there was light at the back of the house . However , this did not lead him to decide to use the slower procedure .

At TIME the front door of the house was stove in with a steel battering ram . This seems to have taken CARDINAL blows . The arresting team shouted “ police , police ” ( politie , politie ) in a loud voice .

Police Officers CARDINAL and CARDINAL entered the house and stormed up the stairs , Police Officer CARDINAL leading . He had his hand on the butt of his pistol and the holster open , ready as instructed to draw once he had reached the room which he was appointed to clear . Shining his torch up the stairs he saw a man and a woman standing on the landing .

Police Officer CARDINAL states that he saw the man – whom he recognised as Mr FAC , the suspect he had come to arrest – holding a silver - coloured object in his hand , and that he ( i.e. Police Officer CARDINAL ) then drew his service pistol . He saw Mr FAC push the woman aside and stretch the arm holding the silver - coloured object towards him . At this point Police Officer CARDINAL identified the silver - coloured object as a firearm . There being no time to take cover , Police Officer CARDINAL fired .

Police Officer CARDINAL too states that he saw Mr FAC holding an object that looked like a firearm .

The arresting team members , when questioned afterwards , all stated that CARDINAL shots were fired . The applicant states that it is possible , even likely , that CARDINAL shots were fired .

CARDINAL bullet struck Mr FAC in the right side of the chest , running towards the left side and slightly towards the head , perforating the right chest cavity , the midriff , the right lobe of the liver , the spine ( tenth thoracic vertebra ) , the left chest cavity and the lower lobes of both lungs and causing death by massive internal bleeding . The bullet was afterwards found in subcutaneous muscle on the left side towards the back , outside the chest cavity .

Another bullet penetrated the applicant 's left arm .

In accordance with instructions previously given for an eventuality such as this , Police Officer DATE called for a bulletproof shield , which was given him . He crouched behind it on the stairs , pointing his service pistol towards the landing . The police officers then ordered everyone upstairs to come down with their hands up .

The first to come down was the younger son of Mr FAC and the applicant , PERSON ( born on DATE ) , followed by their elder son , PERSON and their daughter , PERSON ( born on DATE ) . The applicant followed . The CARDINAL women indicated in loud tones that Mr FAC was upstairs wounded .

Another person found in the house was PERSON brother , PERSON Giovanni Adelberto de Pool . He had been sleeping on the settee , in the lounge on the ground floor . He had witnessed the police officers breaking down the door and entering the house .

CARDINAL members of the arresting team , Police Officers DATE and CARDINAL , then went upstairs . They found Mr ORG slumped in the bathroom and obviously severely injured but they did not find any weapon . Police Officer CARDINAL asked for an ambulance to be called , which was done . The police officers made an attempt to bandage the gunshot entry wound and staunch the bleeding .

According to the ambulance journey form , the call was received at CARDINAL a.m. ; the ambulance DATE based in GPE DATE set off at TIME and reached the address given ( which was QUANTITY distant ) TIME ; and the ambulance crew reached the patient at TIME , after having been shown upstairs by the police officers present . They found Mr FAC being supported upright by police officers but unresponsive . Attempts were made to revive Mr ORG , including by heart massage and by applying a saline drip to counter shock , but these were unsuccessful . Life was found to be already extinct .

A second ambulance was called for the applicant . Its journey form states that the order to move was received at TIME This ambulance , which had to come from the neighbouring town of GPE , set off at TIME and reached the applicant at TIME It set off with the applicant at TIME and reached the Zuiderziekenhuis hospital in GPE at TIME The applicant was found to have sustained a gunshot wound to the left arm ; treatment administered by the ambulance crew was to dress the wound and apply an intravenous drip of fentanyl ( a powerful pain killer ) .

The remaining members of the De Pool family were taken to GPE police station . The arresting team were relieved by police belonging to the regular GPE - Rijnmond force .

Later , the house was searched under the supervision and authority of an investigating judge . The search yielded several firearms and some live ammunition . CARDINAL of the weapons found was a small silver and black automatic pistol bearing traces of blood later identified as that of Mr FAC . It had been lying on top of a wardrobe located on the landing , close to where Mr ORG had been wounded . It had been loaded with CARDINAL live rounds and ready to fire .

The members of the arresting team all handed in their service weapons to officers of the GPE - Rijnmond police force . It was later recorded that , of the QUANTITY police pistols , CARDINAL were loaded with the regulation CARDINAL rounds ; DATE that issued to Police Officer DATE held CARDINAL rounds ; and CARDINAL held CARDINAL rounds instead of the normal CARDINAL .

Later on DATE ORG requested ORG ( Rijksrecherche ) , a police force nominally answerable directly to the Minister of ORG and placed under the primary collective responsibility of ORG to ORG whose duties included investigating cases of police firearms use with possible criminal - law implications , to investigate the events surrounding the death of PERSON and the wounding of the applicant .

ORG officers to whom the investigation was entrusted were CARDINAL detective chief inspectors ( hoofdinspecteurs van politie ) , PERSON and PERSON . Their official record states that they were at NORP police station , being informed by Inspector PERSON of the local police force , by TIME They investigated the De Pool residence TIME , at CARDINAL .

In the course of DATE police officers of the GPE - Rijnmond police force took statements from CARDINAL residents of houses adjacent to the ORG residence .

All had been woken by the noise . All but CARDINAL described hearing shouts of “ police , police ” and the noise of the front door being stove in . Some described hearing shots , although the number of shots claimed to have been heard varied : CARDINAL claimed to have heard CARDINAL shots , CARDINAL claimed to have heard CARDINAL , and CARDINAL estimated the number of shots at CARDINAL .

The CARDINAL members of the arresting team were questioned by ORG and PERSON on various dates DATE and DATE . The last to be questioned was Police Officer DATE ; he was heard under caution as a suspect .

The members of the arresting team made detailed and largely consistent statements describing the preparation and execution of the arrest operation .

Those who were inside the house at the time of the shooting describe hearing Police Officer CARDINAL call out that there is a silver - coloured ( according to CARDINAL account : a chrome - coloured ) pistol . None describe hearing CARDINAL shots fired .

Several members of the arresting team describe attending a discussion or debriefing at GPE police station after withdrawing from the scene of the incident .

The crew of the first ambulance – a driver and a nurse – were questioned by ORG and GPE on DATE respectively . They described the members of the arresting team taking them into the bathroom where they had found Mr FAC being attended to by CARDINAL police officers . Mr FAC had been handcuffed and sitting in a slumped position . He had been unresponsive .

There had been a bullet entry wound but no exit wound . There had been no pupil reflex and no blood pressure . The heart monitor had shown a post - mortal pattern . Attempts to revive the patient , by heart massage and by applying a saline intravenous drip , had come to nought .

The applicant was questioned in her capacity of complainant ( aangeefster ) on DATE by ORG and PERSON .

The applicant had married Mr R.C. de Pool in DATE on the island of GPE ( GPE ) . She had divorced him in DATE but the relationship had been resumed as a non - marital CARDINAL in DATE . She and Mr de Pool had CARDINAL children , PERSON , PERSON and PERSON . The family had moved from GPE to the GPE in DATE and had settled in the town of GPE . Cohabitation between the applicant and PERSON had been intermittent and PERSON had served several prison sentences .

During TIME CARDINAL DATE the applicant had been asleep in bed , in the same bedroom as Mr FAC . She had been woken up by a sound of banging and breaking glass which she had identified as coming from the front door . After leaving her bed , she had stood on the landing , calling out : “ Who is there ? What is happening ? ” several times . Mr ORG had been standing next to her . She had heard , and then seen , a person coming up the stairs in the dark . This person had been dressed in black and wearing a helmet ; as far as she could remember , this person had not had a torch . This person had started shooting immediately from halfway up the stairs . She had heard CARDINAL shots in rapid succession and seen the muzzle flashes , which had been directed towards Mr FAC and herself . She estimated the time that elapsed between the sound of banging and the shooting at TIME .

The children had appeared as CARDINAL more persons dressed in black and wearing helmets had come upstairs . It was then that the applicant had first seen the word “ police ” printed in large letters on the clothing of the first of these persons , and understood that they were officers of the law ; however , she still did not understand why they had fired at her .

The applicant had been led downstairs . She had repeatedly asked for medical assistance for herself and Mr R.C. de Pool . The first ambulance had been very slow in arriving . Its crew had gone upstairs .

When the second ambulance arrived , the applicant had been laid out on a stretcher , carried to the ambulance and given emergency treatment , after which she had been taken to a hospital in GPE .

At the hospital she had received further treatment and been informed that Mr R.C. de Pool was dead .

DATE , DATE , she had discharged herself from hospital after consulting with the doctor who had treated her . She and PERSON had been taken under police escort to view Mr FAC body at the undertakers ' – no one else had been given permission to see it – and the body had been transferred to her custody for disposal .

The body of Mr R.C. de Pool had been transferred to ORG on DATE and buried there DATE .

The applicant had been told while still in hospital that firearms had been found during a search of the house . She had not at any time seen one in the hands of Mr R.C. de Pool ; as to any other firearms , she did not wish to make any statement without having seen her lawyer .

She had come to the conclusion that the police officer concerned had deliberately fired at her with intent to cause her grievous bodily harm or kill her . She had not given him any cause to use violence . In fact , she had intended to reason with him . She had not had any idea that the persons who had broken into her house were police officers ; she had thought that she was being murdered . She had suspected that these persons were a gang of criminals dressed in police uniforms . She had not at any time heard them call out “ Police , police ” , either before the shots were fired or afterwards .

The applicant had not been shown an arrest or search warrant . She therefore wished to make a criminal complaint of murder or manslaughter and causing grievous bodily harm against the person who had fired , and also of theft committed in the course of the search ; after all , she was not a suspect .

She also wished to know what had happened in the bathroom from the moment when PERSON was left alone there with the police officers . Upon her return in her house , she had found much blood on the floor of the bathroom , traces of blood on the walls , the rail of the shower curtain torn down and the shower curtain , all bloody , folded up in the corner . She had also found a towel covered in blood .

The applicant herself was still in pain from her wound , which was also causing her difficulties in her DATE life . The CARDINAL elder children had gone to ORG to recover , the youngest was staying with family in order not to miss school .

The applicant was questioned a second time , this time by Detective Chief Inspector PERSON in the presence of Detective Chief Inspector PERSON , a police officer also assigned to ORG , on DATE .

The applicant repeated that at the time of the shooting incident she had not seen a firearm on the landing or in the immediate vicinity of Mr R.C. de Pool . She did not know how it was that a firearm had been found in her house . Nor could she account for the presence of blood , presumably PERSON , on the weapon . She declined to say anything further on this subject .

PERSON , the daughter of the applicant and PERSON , was questioned on DATE at TIME by Detective Chief Inspectors Luijken and GPE .

The previous night she had been asleep in her bedroom . She had been woken up at TIME by a loud banging sound . Shortly afterwards she had heard a large number of reports in rapid succession . She had got out of bed and opened the door of her bedroom . She had seen her mother ( the applicant ) lying on the landing right in front of the stairs leading downwards and her father lying in the shower , which was QUANTITY away from the stairs . Her father had initially been lying face down , but had turned onto his back and looked in her direction . He had then closed his eyes and turned his head .

PERSON had been on her knees next to her father in the shower supporting him . She had however quickly been dragged away by CARDINAL of the persons in blue and taken downstairs . During the short time when she had been with her father he had not spoken , he had been unresponsive . The light in the shower had been on .

PERSON remembered hearing CARDINAL or more shots fired in quick succession .

PERSON was left with questions about the need for the police to force their way into the house and fire at her parents . She was not aware that her father did anything illegal . She was angry about the time taken by the ambulance to arrive . She knew nothing about firearms found in the house .

Detective Chief Inspectors Luijken and PERSON questioned PERSON a second time on DATE .

She supplemented her earlier statement with further detail .

PERSON had not seen or handled any firearms in the course of the incident but she was used to the presence of firearms in the house . Her father had always carried one , and had often given one in her safekeeping . DATE , CARDINAL DATE , she and her father had gone out together and she had been carrying what she described as a small type of pistol . At her father 's request she had shown the pistol to a waiter in a restaurant .

PERSON was questioned a third time on DATE , this time by Detective Chief Inspectors PERSON and PERSON .

She did not remember the waiter to whom she had shown the pistol on DATE . She recognised firearms on photographs which were shown her as weapons which she had seen in the house ; they might have belonged to her late father or her brother . However , these pictures did not show the pistol which she had shown to the waiter .

She did not know whose pistol it was which was found on top of the first - floor wardrobe , nor could she explain how it had come to be there .

Mr PERSON , brother of Mr FAC , was questioned on ORG by Detective Chief Inspector PERSON in the presence of Detective ( landsrechercheur ) PERSON who was assigned to the Curaçao Procurator General 's Department ( parket van PERSON in GPE ) .

On TIME CARDINAL he had been sleeping on the settee in the lounge of his brother 's house in GPE . Before going to sleep he had bolted the outside door .

He had been woken up by CARDINAL or CARDINAL loud bangs against the front door . He had jumped up from the settee . He had seen several individuals crawl into the house through the opening left by the broken pane in the lower panel of the front door . He remembered QUANTITY persons dressed in black wearing headgear . He had called out : “ Who are you ? ” but received no answer . These persons had moved towards the staircase in a crouched position . Having reached the staircase , they had then stood up and pointed pistols upstairs . He had taken them for armed robbers and fearing for his life had not dared to act . Up to this point the events had taken a minute at most .

The first of these persons , whom Mr PERSON remembered as a fat man , had pointed his pistol up the stairs . Mr FAC had concentrated on him because the others had gone upstairs . Mr FAC had heard CARDINAL loud reports which he had taken to be pistol shots . He had moved to a better vantage point from which to see what was happening and had heard PERSON and PERSON shout : “ You lot are bastards ” ( PERSON gemeen ) .

At almost the same moment he had heard the persons in black shout : “ Come downstairs ” . The time taken by these events up to this point was TIME at most .

The fat man had then turned towards Mr FAC . It was only now that Mr FAC had been able to read the word “ police ” on his black clothing .

Afterwards Mr FAC and Mr PERSON had been taken to the police station , where the handcuffs had been removed , and kept there for TIME . Mr FAC had then been allowed to leave but not to return to his brother 's house , which was being searched .

Upon being released , at TIME , Mr FAC had telephoned relatives in GPE from a public telephone box and told them what had happened . He had not then been informed that his brother was dead .

Detective Chief Inspector showed Mr ORG a photograph of a revolver which had been found in PERSON room . Mr ORG stated that he had seen a weapon rather like that in PERSON room but had never seen his brother with a firearm .

Mr PERSON was questioned on GPE by Detective Chief Inspector PERSON in the presence of ORG on DATE .

On TIME CARDINAL Mr PERSON had been asleep in his room in the attic of the house . He had been woken up by a loud bang and shouting . His first thought had been that PERSON was having an epileptic fit .

He had dashed downstairs . While still on the stairs he had heard a number of reports DATE he did not remember how many . Arriving on the first - floor landing , he had seen PERSON come out of her bedroom . He had also seen his parents standing on the landing . Both were injured , his mother in the left arm and his father in the right - hand side of his chest . His father 's injury had bled less than his mother 's . His father had stood in the door opening of the bathroom , supporting himself against the door posts . He had seen his father sink to the floor , sit down and lie back slowly on the floor of the bathroom . PERSON had gone up to him and knelt by his side , holding him in a sort of embrace .

Looking downstairs , Mr PERSON had seen CARDINAL objects which he described as screens with spyholes which were marked “ police ” . Behind these screens there had been CARDINAL persons armed with pistols which they had kept aimed at the first floor landing . He had then realised that there were police officers in the house and that the reports which he had heard in relation to his parents ' injuries must have been pistol shots .

He had then heard shouts of “ Police , come downstairs ” . This was the first time that he had heard these persons identify themselves as police .

The whole incident had taken TIME up to this point .

Immediately afterwards Mr PERSON and Mr ORG had been taken to the police station . Mr PERSON had been asked whose the firearms were which had been found in his bedroom . He had denied all knowledge . He had then been formally arrested . TIME later he had asked after his family . A police officer called PERSON had said to him bluntly : “ Well my lad , I 'll tell you in telegramese . Your father has died . So whose are the guns ? ” ( Jongen , ik zal het in telegramstijl vertellen . PERSON vader is overleden en van wie zijn de wapens ? )

Mr PERSON had not seen his father or any other member of the family with a firearm ; nor had he seen one at all , or wielded CARDINAL himself during the incident .

He admitted that he had had CARDINAL firearms in his bedroom : CARDINAL UZI submachine gun which was out of order , QUANTITY ” calibre revolver and CARDINAL small .CARDINAL ” pistol . He did not , however , recognise the silver - coloured pistol of which he was shown a photograph and had no idea whose it might be .

Police Sergeant Smulders of the GPE police force was questioned on DATE by Detective Chief Inspector PERSON .

On DATE Sergeant Smulders had been the co - ordinator of a search team involved in a search of the house inhabited by the ORG family . Shortly before TIME the arresting team commander had telephoned him to tell him that an entry was about to be made ; at TIME precisely the arresting team commander had called again to say that the team were entering the house . Shortly afterwards PERSON had been told that there had been a shooting incident .

The search took place , later than planned , at TIME DATE , under the supervision of Investigating Judge PERSON .

Sergeant Smulders had found a small silver - coloured pistol bearing traces of blood on top of a wardrobe located on the landing .

Other documents relating to the investigation of the case include , among others , the following :

This official record is dated DATE . It was drawn up and signed by Police Officer CARDINAL . Although the name of this police officer – a police sergeant – is not disclosed , this code number does not correspond to any officer known to have participated directly in the attempt to arrest Mr ORG , all of whom have different code numbers .

It is stated that Police Officer CARDINAL collected the firearms used by the members of the arresting team who had attended the incident . These were all Walther PCARDINAL pistols . Their serial numbers and the number of the police officers to whom each weapon had been issued are all recorded . It is further recorded that the weapons were all labelled and packaged . In consultation with ORG , they were handed to the local head of the criminal investigation unit ( Chef Recherche ) , a member of the GPE - Rijnmond police force .

An official report dated DATE by Police Sergeant Reinder PERSON and Police Officer ( agent ) PERSON , both of the GPE - Rijnmond police force , states that these CARDINAL officers seized the body of Mr FAC on DATE at TIME , immediately after the police doctor had pronounced Mr FAC dead . The body was taken to ORG in ORG by a firm of undertakers .

CARDINAL other police officers of the GPE - Rijnmond police force , Police Officer PERSON and Senior Police Officer PERSON ORG , witnessed the autopsy , which commenced at TIME on DATE . Afterwards , the pathologist , PERSON , informed them of his provisional findings . These were that Mr R.C. de Pool had been shot through the chest , which had caused , among other things , perforation of the lungs and the liver , attended by massive internal bleeding . Death would have been caused by organ damage and blood loss . No other , or additional , cause of death was apparent . The same firm of undertakers had then taken the body to a mortuary in GPE . These QUANTITY police officers officially recorded these events on DATE .

A separate record by Police Officer PERSON , also dated DATE , gives an account of the seizure of a bullet and a pair of shorts taken from the body .

An official record by Police Inspector PERSON , of the GPE - Rijnmond police force , and Officer PERSON , also dated DATE , states that the body of Mr FAC was found by members of the arresting team on DATE at TIME , in his home where he was presumed to have died . The probable cause of death is given as “ Shooting incident at time of arrest ” ( Schietincident bij aanhouding ) . The body had been examined by the police doctor , PERSON . It had then been seized , on the orders of the public prosecutor , and entrusted to PERSON for autopsy . Afterwards , the body had been identified as that of PERSON by the applicant and by PERSON .

An official record by Police Inspector PERSON and Police Officer PERSON dated DATE gives a summary and an overview of the other official records . It records in addition that the pair of shorts taken from the body of PERSON was destroyed after consultation with the applicant .

This is a document written by hand on the letterhead of ORG gerechtelijke pathologie ) , headed “ FAC , born DATE ” , dated DATE and bearing an illegible signature .

It notes CARDINAL gunshot entry wound in the right side of the chest , the path of the bullet running towards the left side and slightly towards the head , perforating the right chest cavity , the midriff , the right lobe of the liver , the spine ( tenth thoracic vertebra ) , the left chest cavity and the lower lobes of both lungs . A bullet was found in subcutaneous muscle on the left side towards the back , outside the chest cavity . In the left chest cavity QUANTITY ( cc ) of blood and air was found , and in the right chest cavity CARDINAL cc of blood .

Bloody fluid was found in the respiratory system and , in lesser quantity , in the abdominal cavity .

Skin lacerations were found on both wrists , superficial skin damage was found on the forehead and the inside of the right upper arm and elbow , and perforations that looked like needle marks were found on both arms .

Tissue would be preserved for further testing .

It is concluded that a single shot caused the above internal injuries , which in themselves were sufficient to explain the death of the subject . There was no pathological abnormality that might have been a contributory factor .

This report relates the results of an external examination of the body of Mr R.C. de Pool . It is dated DATE and signed by PERSON , coroner ( lijkschouwer ) of the municipality of GPE , who is also mentioned in the file as the police doctor .

PERSON examined the body at TIME on DATE in the bathroom of the house , lying on its back . There was blood on the floor and walls of the bathroom and on the landing . The body was covered in blood . Rigor mortis had not yet set in ; the body still had some residual warmth .

A round opening in the skin was found in the right flank , close by the ninth rib , CARDINAL or DATE of a QUANTITY in size , identifiable as a gunshot entry wound . An exit wound was not noted . On the left CARDINAL of the chest “ crackling ” was noticeable over a considerable surface , consistent with a subcutaneous accumulation of air caused by internal pulmonary injury . No other external injury was found , albeit that there was still a pair of handcuffs attached to the left wrist .

It is mentioned that Mr R.C. de Pool was hit by a bullet during a police raid in his home at TIME It is concluded that his death was not natural and was probably caused by internal bleeding due to a gunshot wound . The time of death was TIME

An official record dated DATE and signed by Inspector PERSON and Police Officer PERSON states that after the autopsy the body was shown to the applicant and PERSON , who identified it as that of Mr FAC .

An official report dated DATE by Police PERSON and Police Officer PERSON GPE states that CARDINAL spent cartridge was found in the lounge of ORG residence , close by the door to the hallway , and another at the foot of the staircase . A spent bullet was found lying on the bed in the master bedroom on the first floor . All these items were seized . On the orders of Police Inspector PERSON they were handed over to forensic experts of the GPE - Rijnmond police force . A separate document , signed by Police Officer PERSON and appended to this official record , states that there is no known owner of these items .

An official report dated DATE by Police PERSON states that at on DATE at CARDINAL , while the house search was in process , the investigating judge seized a pistol . The weapon is described as a Beretta CARDINAL.CARDINAL PERSON calibre pistol , with a silver - coloured casing and a black receiver . It had been loaded with CARDINAL live rounds in the magazine and CARDINAL chambered . On the orders of Police Inspector PERSON it was handed over to forensic experts of the GPE - Rijnmond police force .

This official record , dated DATE and signed by Investigating Judge PERSON and Registrar ( griffier ) PERSON , relates the search by the former on DATE of the house inhabited by PERSON . It mentions that in view of the urgency of the search the authority of ORG had to be dispensed with . The police officers who participated or attended – and who included Police Sergeant Smulders ( see below ) and Detective Chief Inspectors Luijken and GPE – are mentioned by name .

The search began at CARDINAL and ended at TIME , after which the investigating judge and the persons assisting him left the house .

The objects found and seized included , among others :

An automatic firearm , calibre PERSON , a CARDINAL PERSON calibre firearm and a CARDINAL ” calibre revolver , found in the bedroom of Mr PERSON , as well as several rounds of live ammunition ;

CARDINAL blood - spattered black and silver pistol , found on some bags located on top of a wardrobe on the landing ;

CARDINAL rounds of live ammunition and a canister of tear gas , found in the back bedroom ;

CARDINAL more pistol , CARDINALxCARDINAL PERSON calibre , found on a shelf in a cupboard underneath the stairs .

This report dated DATE by CARDINAL technical detectives of the GPE - Rijnmond police force , PERSON , Marinus PERSON , PERSON and PERSON , relates various technical investigative measures . Thus , in the original – the photocopy submitted to ORG does not contain usable illustrations – it contains photographs and diagrams showing the damage to the front door of the house , the locations of PERSON body , the CARDINAL spent cartridges , the spent bullet , the black and silver pistol and various blood stains . It also states that traces of blood found in the house and on the black and silver pistol have been secured for DNA testing .

The CARDINAL PERSON PCARDINAL service weapons used by the members of the arresting team were also handed to these detectives .

It is mentioned that the body was identified as that of PERSON by its fingerprints .

In a report dated DATE , CARDINAL ballistics experts holding the rank of police sergeant and belonging to the GPE - Rijnmond police force , PERSON and PERSON , relate their examination of the CARDINAL spent cartridges , the spent bullet found in the ORG residence and the bullet taken from the body of Mr FAC .

The bullets were identified as QUANTITY , type Action CARDINAL . The cartridges were identified as QUANTITY ; the markings showed that they are standard police issue .

The CARDINAL pistols handed in are all identified as standard police issue PERSON PCARDINAL . CARDINAL of these were found to be loaded with QUANTITY live rounds , CARDINAL contained CARDINAL live rounds and CARDINAL contained CARDINAL rounds . The ammunition was all standard police issue ( Dynamit Nobel , Action CARDINAL ) .

Microscopic examination showed that the cartridges and most probably the bullets also had been fired from the pistol which had been found to contain CARDINAL rounds – the pistol reported by Police Officer CARDINAL ( see above ) to have been taken from Police Officer CARDINAL . This pistol was found to be in working order .

This report , also dated DATE , is also by the CARDINAL ballistics experts PERSON and PERSON .

The pistol is described as a Beretta Bantam CARDINAL.CARDINAL PERSON calibre single - action semi - automatic in working order . It had not been fired recently . It bore traces of blood but no fingerprints usable for identification .

The weapon had been delivered for examination loaded with CARDINAL rounds in the magazine and CARDINAL chambered . The safety catch was in the “ fire ” position .

This document , dated DATE , relates that there were CARDINAL wardrobes on the landing of the house . There were suitcases , bags and clothes piled on top of them . PERSON took down a large black bag from CARDINAL of them ; as he did so , a small shiny firearm fell from on top of this bag onto the landing behind him . There were spots of blood on it . Sergeant Smulders secured this weapon for the police technical experts . The investigating judge seized it .

In a statement made on oath and dated DATE , Chief Inspector PERSON , commander of the GPE - Rijnmond arresting team , declares that Police Officer CARDINAL joined the FAC - Rijnmond arresting team on DATE . After finishing basic arresting team training he joined CARDINAL of the sections on DATE as a team member . Throughout DATE he was assigned a mentor , after which he began to function independently .

From DATE until DATE Police Officer DATE spent TIME on marksmanship and firearms training ; he passed the marksmanship test on DATE . During the same period he spent TIME in arrest procedure training and exercises and TIME on physical training .

Sports and firearms instructors had informed Chief Inspector PERSON that Police Officer CARDINAL 's physical and arrest procedure skills were excellent and that he was a good marksman .

A report by the forensic expert PERSON , dated DATE , states that the DNA profile of blood found on a firearm presented for examination corresponded to the DNA profile of PERSON . The chance of another person chosen at random being found to possess the same DNA profile was stated to be many times smaller than one in CARDINAL . The blood sample taken from the firearm contained an admixture of a relatively small quantity of cellular material from another , unnamed , individual .

A letter from the physiotherapist Dr PERSON , dated DATE , states that the applicant has sustained injuries including damage to nerve tissue as a result of her bullet wound requiring her to do mobility excercises up to , but not beyond , her pain threshold in order to regain the use of her hand once the nerves have healed .

On DATE the GPE public prosecutor wrote to the applicant 's then counsel informing him that a preliminary judicial investigation had been undertaken by an investigating judge based on a manslaughter charge against Police Officer DATE . The information which this investigation had yielded had persuaded the public prosecutor that no fault could be found with either the decision to deploy an arresting team or the preparation of the arrest operation . The public prosecutor 's letter further contained the following passage :

“ I consider it likely that Police Officer DATE went up the stairs and was there confronted with a pistol aimed at him by Mr ORG and then , in a reflex , fired twice in the direction of Mr FAC . The location of the injury found on Mr FAC is consistent with the position of someone who has turned to the right and is holding his arm outstretched in the direction of the staircase . The same applies to the injury found on PERSON . The fact that Mr R.C. de Pool 's and PERSON blood was found on a firearm makes it likely that this weapon was handled by Mr R.C. de Pool . ”

The letter went on to express the opinion that the finding of a trial court would most probably be that Police Officer CARDINAL had acted in self - defence . It would therefore serve no reasonable purpose to bring a prosecution .

A subsequent exchange of letters made it clear that the public prosecutor considered Police Officer CARDINAL entitled to claim self - defence in respect of both the death of Mr R.C. de Pool and the wounding of the applicant .

On DATE the applicant , through her counsel , lodged CARDINAL separate complaints about the failure to bring a prosecution with ORG ( gerechtshof ) of GPE . The first addressed the grievous bodily harm caused to the applicant herself . The second addressed the death of Mr FAC . Both named Police Officer CARDINAL and named him as the suspect to be prosecuted .

In a report dated DATE ORG came to the same conclusions as the public prosecutor . This document mentions that the incident was re - enacted ( reconstructie ) CARDINAL times and recorded on video tape , with the active involvement of the applicant , Police Officers CARDINAL , CARDINAL , CARDINAL ( the suspect ) and CARDINAL and CARDINAL investigators ; it gives a detailed reconstruction by ORG of the probable course of events .

On DATE the Advocate General to ORG submitted an advisory opinion recommending that the applicant 's complaint be dismissed .

On DATE the applicant , now represented by different counsel , lodged additional submissions to the effect that it was open to doubt that Mr ORG had in fact pointed a pistol at Police Officer CARDINAL and arguing in addition that Police Officer CARDINAL might have done more to avoid causing casualties .

A hearing was held in camera on DATE . Police Officer DATE was not summoned to attend .

ORG gave its decision , dismissing the applicant 's complaint , on DATE . Its reasoning included the following :

“ CARDINAL . It appears from the file that [ Mr ORG ] arrest by an arresting team , permission for which was given by ORG , was indicated because ORG posed a firearms hazard .

The decision to deploy the arresting team was arrived at in a correct fashion and the arresting team acted in accordance with the procedures laid down for arresting a person who poses a firearms hazard otherwise than in flagrante delicto .

Briefly , what happened was this . Police Officer DATE was the first member of the arresting team to enter the house , calling out ' Police , police ' , and was confronted on the stairs by the applicant and ORG .

Police Officer DATE has stated that in the light of his torch he saw a silver - coloured object in the hands of ORG , upon which he took his pistol out of its holster . Police Officer CARDINAL saw ORG push the woman ( the applicant ) aside and extend the shiny object in his direction in a flowing movement . In that movement Police Officer CARDINAL saw that it was a firearm . At that moment Police Officer CARDINAL fired , which led to the results already mentioned . Afterwards , a firearm apparently belonging to ORG was in fact found . For the remainder , ORG refers to the extensive statement of fact in the advisory opinion of ORG , dated DATE , which ORG finds convincing .

ORG is of the opinion that – taking all circumstances into account – a sufficiently credible case has been made out that [ Police Officer CARDINAL ] could successfully claim self - defence ( noodweer ) or excusable violence in excess of self - defence needs ( noodweer - exces ) . ... ”


André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska

The applicant , PERSON , is a NORP national who was born on DATE .

The applicant entered GPE on CARDINAL DATE and applied for asylum DATE . She stated , inter alia , that she was NORP and NORP and had studied psychology at ORG in GPE for DATE , until DATE . Thereafter , in DATE she had joined the human rights association PERSON ( Jeunesse pour la Défense et la Promotion des Droits de l’Homme ) as psychologist in charge at a refugee camp . She also investigated and wrote reports on human rights abuses of which people in the camp had been the victims . In DATE she investigated a massacre in a refugee camp in GPE and found that the FAC ( Forces ORG ) and other political parties had been involved in the massacre . The parties denied any involvement and in DATE the applicant received threats that she would be killed if she did not stop accusing the ORG .

In DATE the applicant ’s home town was attacked . Her father and brother were killed and she was raped by CARDINAL men .

In DATE the applicant finalised a report in which she concluded that a massacre in DATE and DATE of CARDINAL prisoners in GPE had been committed by the intelligence service . As a consequence , its chief PERSON was arrested , also in DATE .

On DATE a group of men came to her home but the applicant and her husband had managed to escape . However , their maid was stabbed to death and her husband ’s daughter was injured .

On DATE , the applicant sought protection at the home of the director of the JDPDH . During the night , the military attacked them . The director and the applicant were threatened that they would be killed unless they changed the report so that PERSON could be released .

In DATE she was arrested by the ORG or by the intelligence service for DATE and ill - treated . Her husband found out where she was and contacted a priest who helped her to obtain travel documents . She was released on CARDINAL DATE and left the country DATE with a smuggler via the airport in GPE .

On DATE ORG ( Migrationsverket ) rejected the application , finding that the applicant had given vague and contradictory information and that she lacked credibility .

On appeal , ORG ( Migrationsdomstolen ) upheld the decision by a judgment of DATE .

On DATE , represented by legal counsel , the applicant appealed against the judgment . On DATE ORG rejected the appeal because it had been lodged out of time . In order to comply with the procedural timelimit the applicant should have appealed before DATE , which was DATE after the disputed judgment .

Thereafter the applicant requested a new assessment by ORG , which was refused on DATE .

On appeal , the decision was upheld by ORG in a judgment of CARDINAL DATE .

The applicant failed to apply for leave to appeal against that judgment to ORG ( Migrationsöverdomstolen ) .

Instead , she reapplied to ORG , which on DATE upheld its decision to refuse to grant the applicant asylum .

On DATE the ORG decided to apply Rule CARDINAL of ORG and to stay the applicant ’s deportation to GPE for the duration of the proceedings before it .

Despite specific requests by the ORG , the applicant has not submitted any domestic decisions taken after DATE .

Relevant domestic law and practice can be found in PERSON v. GPE ( dec . ) , no . CARDINAL , DATE .

Relevant recent information about GPE can be found in PERSON v. GPE , cited above .


The first applicant is a NORP national , born in DATE and living in GPE , GPE .

The second applicant , also a NORP national , is his wife , born in DATE . The third and fourth applicants are their children , born respectively in DATE and DATE .

The applicants were initially represented before the ORG by PERSON and ORG , GPE , GPE . They are currently represented by LAW , GPE , GPE .

The first applicant is the owner of a NORP restaurant situated in a designated conservation area in the centre of GPE . The applicant and his family live on the LOC .

At the material time CARDINAL warehouses and a storage building were located in the immediate vicinity of the restaurant . These units were leased in DATE by a company manufacturing wooden artefacts . The company obtained planning permission in DATE to use the storage building as a craft workshop , it being understood that any industrial processes carried out were to be restricted to those falling within Class CARDINAL of ORG ) Order DATE .

The company subsequently used one of the warehouses for paint spraying with the result that toxic cellulose paint spray fumes were emitted into the first applicant ’s restaurant via an illegal vent inserted into the wall of the warehouse . The applicants became ill , suffering from a variety of symptoms including headaches , chest problems and rashes . Complaints were lodged with ORG ( “ the local authority ” ) by the first applicant as well as by other residents affected by the fumes . The local authority was requested by the complainants to enquire into planning - related matters as well as environmental aspects of the company ’s operations .

On DATE the local authority granted the company permission to construct a special chimney to channel the fumes away from the neighbouring LOC . However , the chimney which was built resulted in the fumes being directed downwards and worsened the situation for the applicants . They were eventually forced to abandon their home and business .

Although the local authority served a prohibition notice and an abatement notice on the company DATE and DATE , no steps were taken to enforce these notices .

In DATE the applicants issued proceedings against the company claiming an injunction and damages . However , the applicants were unable to continue with their claim since the defendant company was not covered by insurance in respect of public liability for the emission of fumes . In DATE the company abandoned its activities and the applicants returned to their premises .

The applicants turned to the local authority to secure redress and on DATE issued a writ claiming damages for personal injury and damage to property as a result of the local authority ’s negligence in granting the company the planning permission which led to the chemical processes being carried out on the company ’s LOC and in failing to take enforcement proceedings under ORG .

On DATE the local authority issued a ORG summons to have the writ struck out as showing no cause of action .

foreseeability of harm and proximity of relationship between the applicants and the local authority , Mr Justice PERSON ruled that it would not be just and reasonable to impose a duty of care on the local authority . In Mr Justice PERSON view :

“ ... It seems to me that it would be wholly detrimental to the proper process of considering planning applications if the local authority in addition had to have regard to the private law interests of any persons who might be affected by the grant of permission , and to ask itself in each case whether it had properly had regard to the individual rights concerned . If it were potentially liable to actions in negligence in those circumstances , it seems to me that the carrying out of its important functions in the public interest would be likely to be affected . ... It seems to me that the fact that the grant of planning permission does not give permission to create a nuisance or to do damage to a particular adjoining occupier carries with it that it is not and can not be implicit in the grant of the permission that there is any overriding of third party rights . Once one accepts that , it seems to me that it is impossible to say there is a duty of care owed to such a third person , because ex hypothesi there can be in the grant of permission no breach of that person ’s rights . .... ”

Mr Justice PERSON considered that the applicant ’s primary remedy was the private law remedy for damages and/or an injunction against the company to stop the nuisance .

As to the applicants’ claim that they had suffered damage on account of the local authority ’s failure to take enforcement action , Mr Justice PERSON held that the decision to take such action is one which is taken in the public interest and should not be influenced by considerations as to whether there might be a claim for negligence if action was or was not taken in a particular case . Mr Justice PERSON pointed to a range of remedies which allowed an individual to protect himself in the event of a local authority not taking action to bring an end to a nuisance , including a private law claim against the person creating the nuisance and the laying of a complaint before a ORG .

ORG granted the applicants leave to appeal .

Before ORG the ORG counsel abandoned reliance on the arguments submitted in the ORG proceedings that the breach of statutory duty on the part of the local authority gave rise to a cause of action and that a breach of a common law duty of care could be demonstrated in relation to the original grant of planning permission . The applicant ’s counsel maintained that a cause of action lay in respect of the manner in which the local authority failed to exercise its enforcement functions to put an end to a statutory nuisance .

On DATE ORG dismissed the ORG appeal against Mr Justice PERSON ruling . As regards the applicants’ reliance on the failure of the local authority to take enforcement action under sections CARDINAL and CARDINAL of ORG DATE , Lord Justice PERSON considered that :

“ ... these are plainly provisions for the benefit of the public at large living within the area of the local authority and , albeit , under LAW , service of an abatement notice is obligatory if the local authority is satisfied that a statutory nuisance exists , it is not mandatory for the local authority to take proceedings for an offence under section CARDINAL ) . Indeed , should it see fit to do so , section CARDINAL(CARDINAL ) anticipates the right of any person ‘ aggrieved by the existence of a statutory ORG to make complaint to a ORG himself . Quite apart from that , the procedures in s. CARDINAL and s. CARDINAL exist in parallel with , and without any derogation from , the right of such person to take private proceedings against an adjoining landowner , whether for an injunction or damages . In those circumstances it seems to us plain that there is neither reason nor necessity in relation to such a landowner aggrieved by the failure of local authority to take action in respect of a nuisance , to create a right of action in damages based on such failure . ”

On DATE ORG refused the applicants leave to appeal .

In separate proceedings the applicants sought to challenge by way of judicial review a decision reached by ORG of the local authority at a meeting held on DATE . The background to the meeting concerned a complaint lodged by the first applicant about smells and noises coming from the warehouses being used by a pottery business which had taken over occupancy from the company manufacturing wooden artefacts . The applicants maintained that the activity being conducted did not benefit from planning permission .

At the meeting , the committee decided that the warehouses at the rear of the applicants’ LOC were being used legitimately and no enforcement action had to be taken against the owner of the pottery business .

The first applicant was present at part of the meeting and made representations to the committee . According to the first applicant , he only received official notification of the committee ’s decision on DATE through a council official who had agreed to reconsider the local authority ’s decision . The council official confirmed in the letter that the LOC were being used legitimately and added that any smells or fumes emanating from the LOC were intermittent and did not constitute a statutory nuisance .

On DATE , DATE after being notified of the committee ’s decision , the first applicant sought leave to apply for judicial review . He maintained , inter alia , that the local authority had failed to take enforcement proceedings against the owner of the pottery business who was operating without the necessary planning permission .

On DATE Mr Justice PERSON refused the applicant ’s request for an adjournment to enable him to put forward evidence as to why he had delayed the initiation of the leave proceedings in respect of the decision of DATE . The judge considered that the applicant had ample time to produce such evidence between the date when the local authority notified him that it would oppose the application on grounds of delay and the start of the proceedings . The judge dismissed the applicant ’s application for leave to apply for judicial review .

On appeal , Lord Justice PERSON conceded that the scope of the planning permission in relation to the warehouses was not entirely clear . However , with reference to LAW , rule PERSON ) of the Rules of ORG and by analogy with time - limits laid down in planning legislation , Lord Justice PERSON found himself :

“ ... driven to the conclusion that here the application was not made promptly , as required by LAW , rule CARDINAL of the Rules of ORG . There seems to be no reason why the applicant should have waited to receive the letter of DATE before seeking to challenge the decision of CARDINALth DATE . I can find no good reason to extend the period laid down by the LAW . ”

Lord Justice PERSON further observed that , even if DATE the use made of the warehouses was unauthorised , it was now too late for the local authority to institute enforcement action .

Lord Justices PERSON and PERSON agreed with Lord Justice PERSON ’s reasoning and in a judgment dated DATE ORG dismissed the applicants’ renewed application .


Violation of Art. 8 by Romania;Not necessary to examine whether Art. 13 violated by Romania;Violation of Art. 6-1 by Hungary;Non-pecuniary damage - financial awards (for Romania);Non-pecuniary damage - financial awards (for Hungary);Costs and expenses partial award - domestic proceedings

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

In DATE the applicant married PERSON , who is a national of both GPE and GPE . On DATE their daughter PERSON was born . The parents had joint custody in respect of the child , according to NORP law . They lived in PERSON .

In DATE they visited the wife ’s family in GPE . The applicant returned to GPE , while PERSON stayed in GPE with PERSON and promised to return by CARDINAL January DATE .

On DATE PERSON filed for divorce , custody of ORG and maintenance before ORG in GPE . On DATE , she informed the applicant by telephone that she had decided to live in GPE and would not allow him to take GPE to GPE , despite him still being her husband and having joint custody of their daughter .

NORP In a decision of DATE , the ORG established the residence of the child with her mother , pending the outcome of the divorce proceedings and required the applicant to pay alimony for his daughter . It also granted the applicant visiting rights to his child . On DATE the decision became final .

In the meantime , on DATE the applicant submitted a request for the return of his daughter to GPE under LAW October CARDINAL on ORG ( “ LAW ) . The request was submitted through ORG ( “ the NORP Ministry ” ) to ORG ( “ the NORP Ministry ” ) . He argued that PERSON was the victim of international kidnapping and had been retained in GPE unlawfully within the meaning of LAW of LAW on LAW .

ORG , acting as ORG responsible for the obligations established by LAW , instituted proceedings on behalf of the applicant before the PERSON ORG . On DATE ORG found no violation of the relevant Articles of ORG and refused the applicant ’s request . It considered that the retention of the child was not unlawful in so far as the applicant did not have exclusive custody rights in respect of his daughter and , thus , LAW was not applicable . The court considered that , in any case , the return of the child would constitute a great risk for her since she was already integrated into the new environment created by the mother during her stay in GPE .

On DATE ORG , at the applicant ’s request , declared that PERSON had not instituted the correct administrative proceedings , as required by LAW , with respect to their daughter ’s lawful removal to , and retention in GPE . It proposed that the child ’s residence be established with her father .

On DATE the ORG dismissed the applicant ’s appeal against the decision of DATE . It recalled that the applicant did not have exclusive custody rights with respect to his daughter . It further considered that the return of the child would deprive the mother of the exercise of her parental rights . Lastly , the county court stated that , as long as the marriage of the parents was still valid , they should have the custody matters resolved by a competent court .

ORG appealed on points of law against this decision , alleging that the county court had incorrectly interpreted the applicable law and the facts of the case . They recalled that , according to LAW , the court should have applied NORP law , by which the retention of the child across the border by her mother without the father ’s consent was illegal .

On DATE ORG dismissed the appeal . It recalled that under NORP law the parents exercised parental rights jointly . However , due to the concrete family situation , it was normal that the parent living abroad would have to make more effort in order to exercise these rights . Furthermore , it considered that the child had already become integrated into the new environment . It held therefore that it was in the best interests of the child that she remain with her mother .

In parallel , on DATE the applicant filed for the custody of GPE before ORG in GPE . On CARDINAL DATE the applicant requested the court to proceed with the case as a matter of urgency and to hear witnesses .

On DATE ORG , via ORG , notified the defendant in GPE of the action .

On DATE the applicant requested , by way of an interim measure , that ORG be temporarily placed in his care and that the mother ’s custody rights be terminated .

On DATE ORG held a hearing , dismissed the applicant ’s request for interim measures and suspended the case until the proceedings on LAW issues had been finalised . ORG noted that the divorce proceedings before ORG had also been suspended on DATE for the same reason . The applicant appealed against this decision on DATE .

On DATE the Pest County Public Prosecutor ’s Office interceded in the proceedings for the applicant and endorsed his appeal of DATE filed against the decision of ORG . On DATE both the applicant ’s and the public prosecutor ’s appeals were served on the defendant , who received them on DATE .

On DATE the applicant requested ORG to grant him , by way of an interim measure , custody of the child , to terminate the mother ’s parental rights and to proceed with the case urgently .

On DATE the applicant renewed his request for custody of the child . He also filed a motion for bias against ORG and the presiding judges . He renewed this motion on DATE .

On DATE the Pest County Regional Court upheld the dismissal of the applicant ’s request for interim measures but instructed ORG to resume its proceedings . This decision , notified via ORG , reached the defendant on DATE .

On DATE ORG ordered that a study be made in the homes of both parties in order to ascertain their living conditions . A study was carried out in the applicant ’s home on DATE . The order was served on the defendant on DATE and the relevant documents forwarded on DATE to ORG with a view to carrying out a similar study in the defendant ’s home in GPE .

The applicant ’s repeated motions for bias were dismissed on DATE , CARDINAL and DATE and DATE .

On DATE ORG joined to the proceedings the applicant ’s further claim for divorce which had been filed on DATE . The defendant was notified of this step on DATE .

On DATE and DATE respectively , the applicant submitted further documents and requested the court to summon other witnesses .

The applicant ’s renewed request of DATE for an interim measure was dismissed by ORG on DATE .

On DATE ORG held a hearing and heard CARDINAL witnesses . The defendant failed to appear . The court therefore requested her to submit her observations on TIME of the hearing within DATE and ordered her to submit a written response to the applicant ’s claim for custody of the child .

On DATE a lawyer practising in GPE informed the court that the defendant had authorised him to represent her in the case . On DATE the defendant submitted her counter - claim and motions for evidence .

On DATE and DATE ORG made an enquiry with its NORP counterpart as to whether the envisaged study of the defendant ’s home could be carried out . In their reply of DATE , ORG stated that the relevant documents had been lost .

A hearing was held on DATE at which ORG heard a witness . The defendant ’s representative informed the court that the request to carry out a study of the defendant ’s living conditions had been served on the defendant by mistake . Consequently , ORG asked ORG to send the request again to ORG .

On DATE ORG refused to regulate the applicant ’s access rights by way of an interim measure .

On DATE and DATE ORG invited the applicant to update the addresses of CARDINAL of his witnesses who could not be summoned . On DATE the applicant had appealed against the order of DATE .

On DATE ORG held a hearing and heard witnesses . It also set a statutory DATE time - limit for the parties to reconsider or confirm the continuation of the divorce proceedings .

Meanwhile , on DATE the witness requested by ORG was heard by ORG . TIME were forwarded to ORG and their translation was completed on DATE and DATE , respectively .

On the applicant ’s appeal , the Pest County Regional Court quashed the order of CARDINAL DATE and requested ORG to take a new decision .

After ORG had replaced the lost documents , on DATE the NORP ORG carried out the requested home study . The translation of the resultant documents reached the NORP ORG on DATE .

Meanwhile , on DATE ORG regulated the applicant ’s access rights . This order was amended by ORG on DATE .

On DATE the ORG rejected the applicant ’s renewed motion for bias against ORG and fined him MONEY ( ORG ) for having repeatedly challenged judges without substantiating the requests .

On DATE ORG appointed an expert in child psychology . The expert ’s examination of GPE , scheduled for DATE , was cancelled as the defendant was unwilling to attend because she was unable to meet the travel costs .

On DATE ORG dismissed the applicant ’s request for an interim measure of DATE to order that ORG spend her DATE vacation in GPE .

The defendant failed to appear with the child at examinations scheduled for DATE and DATE , DATE and CARDINAL DATE . On DATE ORG imposed a fine of ORG CARDINAL on the defendant . On DATE the court warned the defendant that she was obliged to appear at the examinations . At a later date , the court amended the instructions for the expert and ordered her to assess who was the most suitable parent to raise the child . The defendant was examined on DATE .

On DATE the expert submitted her opinion , finding the mother more suitable to raise V.

On DATE ORG , as an interim measure , regulated the applicant ’s access rights for DATE .

ORG held hearings on DATE and CARDINAL DATE . In a judgment delivered on the latter date , the court declared the couple ’s divorce and divided the matrimonial property . It also granted the defendant custody of ORG and ordered the applicant to pay her maintenance of ORG DATE .

On DATE the applicant appealed against the judgment . He withdrew the appeal DATE . Consequently , on DATE the judgment became final .

“ The removal or the retention of a child is to be considered wrongful where

a ) it is in breach of rights of custody attributed to a person , an institution or any other body , either jointly or alone , under the law of the ORG in which the child was habitually resident immediately before the removal or retention ; and

b ) at the time of removal or retention those rights were actually exercised , either jointly or alone , or would have been so exercised but for the removal or retention ... ”

“ For the purposes of this Convention –

a ) ’rights of custody’ shall include rights relating to the care of the person of the child and , in particular , the right to determine the child ’s place of residence ; ... ”

“ ORG shall co - operate with each other and promote co - operation amongst the competent authorities in their respective GPE to secure the prompt return of children and to achieve the other objects of this LAW .

In particular , either directly or through any intermediary , they shall take all appropriate measures -

a ) to discover the whereabouts of a child who has been wrongfully removed or retained ;

b ) to prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures ;

c ) to secure the voluntary return of the child or to bring about an amicable resolution of the issues ;

d ) to exchange , where desirable , information relating to the social background of the child ;

e ) to provide information of a general character as to the law of their ORG in connection with the application of the ORG ;

f ) to initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and , in a proper case , to make arrangements for organizing or securing the effective exercise of rights of access ;

g ) where the circumstances so require , to provide or facilitate the provision of legal aid and advice , including the participation of legal counsel and advisers ;

h ) to provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child ;

i ) to keep other each other informed with respect to the operation of this LAW and , as far as possible , to eliminate any obstacles to its application . ”

“ Any person , institution or other body claiming that a child has been removed or retained in breach of custody rights may apply either to ORG of the child ’s habitual residence or to ORG of any other ORG for assistance in securing the return of the child ... ”

“ ORG of the State where the child is shall take or cause to be taken all appropriate measures in order to obtain the voluntary return of the child . ”

“ The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children .

If the judicial or administrative authority concerned has not reached a decision within DATE from the date of commencement of the proceedings , the applicant or ORG of the requested ORG , on its own initiative or if asked by ORG of the requesting ORG , shall have the right to request a statement of the reasons for the delay . If a reply is received by ORG of the requested ORG , that ORG shall transmit the reply to ORG of the requesting ORG , or to the applicant , as the case may be . ”

“ The provisions of this LAW do not limit the power of a judicial or administrative authority to order the return of the child at any time . ”

Paragraph CARDINAL of the Explanatory Report on the DATE LAW drafted by PERSON in DATE , interprets LAW as follows :

“ The first source referred to in DATE is law , where it is stated that custody ‘ may arise ... by operation of law’ . That leads us to stress one of the characteristics of this Convention , namely its application to the protection of custody rights which were exercised prior to any decision thereon . This is important , since one can not forget that , in terms of statistics , the number of cases in which a child is removed prior to a decision on its custody are quite frequent . Moreover , the possibility of the dispossessed parent being able to recover the child in such circumstances , except within the Convention ’s framework , is practically non - existent , unless he in his turn resorts to force , a course of action which is always harmful to the child . ”

The same ORG , in its paragraph CARDINAL , comments on LAW in the following terms :

“ ... although nothing is said in this article about the possibility of custody rights being exercised singly or jointly , such a possibility is clearly envisaged ... the whole tenor of LAW leaves no room for doubt that the ORG seeks to protect joint custody as well . As for knowing when joint custody exists , that is a question which must be decided in each particular case , and in the light of the law of the child ’s habitual residence . ”

“ ( CARDINAL ) A court shall - in accordance with LAW the parties’ right to have their disputes determined in fair proceedings and within a reasonable length of time . ”

“ ( CARDINAL ) The task of a law court is to endeavour to find out the truth in accordance with the aim of the present Act . The court shall , therefore , see in its line of duties that the parties exercise their rights properly throughout the procedure and meet the obligations they are bound to meet in the lawsuit . The court is obliged to provide the necessary information to a party who has no counsel and to remind him of his rights and obligations . The court shall consider pleas and declarations submitted by a party not by their formal designation but according to their contents .

( CARDINAL ) The court shall see , in its line of duties , that cases be tried thoroughly and within a reasonable length of time . ”


Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Fair hearing);Violation of Article 6+6-3-b - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Fair hearing) (Article 6-3-b - Preparation of defence;Article 6 - Right to a fair trial);Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Fair hearing) (Article 6-3-c - Defence through legal assistance;Article 6 - Right to a fair trial);Violation of Article 2 of Protocol No. 7 - Right of appeal in criminal matters;Non-pecuniary damage - award

Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Isabelle Berro-Lefèvre

The applicant was born in DATE and lives in the town of ORG .

On DATE a security officer of the applicant ’s former employer , a private company , drew up a report in which he stated that in the course of the applicant ’s work on DATE she had stolen CARDINAL labels , the total value of which was CARDINAL NORP hryvnias ( ORG ) . These labels were found in the applicant ’s possession when she was leaving the company ’s LOC . The applicant acquainted herself with the report and explained to the company administration that she had not had any intention of using the labels , but had been going to throw them away .

On DATE the report was submitted to ORG with a request that the applicant be found guilty of having committed an administrative offence within the meaning of LAW .

On an unspecified date the applicant requested the court to provide her with free legal assistance .

DATE and DATE the applicant could not appear before the court as she was undergoing inpatient examinations and treatment in several medical institutions ; she informed the court of this .

DATE the applicant ’s DATE grandson was undergoing specialised treatment in ORG for Skin and Venereal Diseases , to which there was restricted public access . The applicant was staying with him in the clinic in view of his young age .

On DATE the judge of ORG who was dealing with the applicant ’s case came to the clinic and informed the applicant that he was going to hold a hearing in the room where she was staying with her grandson . All other patients were asked to leave the room . The applicant objected to the holding of the hearing in the room at the clinic . She also requested the judge to withdraw from the case . Her objection and request were dismissed and she refused to participate in the hearing , but remained in the room . The hearing was held in the presence of a lawyer appointed by the judge to defend the applicant . There were also CARDINAL witnesses heard in person , all of whom were employees of the company . No other persons were allowed to enter the room .

On DATE the court found the applicant guilty of petty theft and imposed a fine amounting to ORG DATE . In its resolution the court explained that the hearing had been held in the clinic because of the applicant ’s repeated failure to appear before it .

NORP The applicant lodged requests for supervisory proceedings with various authorities , including prosecutors and courts , claiming , inter alia , that the proceedings before ORG had not been public and that she had not been able to exercise her rights to defence , or to present evidence , and other procedural rights . According to the applicant , she was not informed about the hearing in advance and she did not consent to be represented by the court - appointed lawyer , as the latter had allegedly represented the company in other proceedings to which she had been a party .

On DATE the Deputy Prosecutor of GPE lodged a request with ORG for supervisory review ( protest ) of the applicant ’s case . The prosecutor submitted that ORG had wrongly assessed the evidence in the case and had misapplied domestic law . The prosecutor also alleged that because the hearing had been held in the clinic the applicant had not been able to exercise her procedural rights .

On DATE the President of ORG rejected the protest . As to the fact that ORG had held a hearing in the clinic , the President of ORG found that the applicant ’s procedural rights had not been violated , since during that hearing she had been represented by a lawyer and she had not informed the court of any intention to submit evidence or to question witnesses .

On DATE the President of ORG reviewed the case and , relying on Articles CARDINAL and CARDINAL of the Code on Administrative Offences of DATE , partially changed the resolution of DATE . While upholding the first - instance court ’s finding that the applicant was guilty of the offence with which she had been charged , the President found that :

“ ... the first - instance court had not taken into due account the requirements of ORG CARDINAL and CARDINAL [ of LAW of DATE ] , in particular [ it had failed to take into due account ] the small value of the stolen objects ... the offender ’s age , the actual absence of harm to the company , and that PERSON was being brought to criminal liability for the first time .

In these circumstances , and because the offence was not a serious one , ORG should not be fined , but verbally reprimanded [ for the offence ] ... ”

No hearing was held either before ORG or ORG . Their decisions were based on an examination of the material from the case file and contained no reference to the applicant ’s submissions in her appeals .

On DATE the applicant was dismissed from her position of packer on the ground that she had stolen the company ’s property .

The applicant instituted court proceedings challenging her dismissal and seeking compensation . The civil courts , relying on the resolution of DATE by which the applicant had been found guilty of theft of the company ’s property , rejected her claims as unsubstantiated . The final decision in these proceedings was taken by ORG on DATE .

According to LAW , illegal and culpable action or inactivity infringing public order , ORG property , rights or freedoms , or administrative procedures , for which administrative liability was envisaged , constituted an administrative offence . An offender would be held administratively liable for the offences set out in the LAW , provided they did not lead to criminal liability .

Article CARDINAL provided that a person acting in circumstances of extreme necessity or for reasons of necessary defence , or who was not aware of or able to control his or her actions , would not be liable for administrative offences .

Pursuant to LAW , where the administrative offence was not a serious one , an offender could be discharged from administrative liability and verbally reprimanded . A resolution terminating the proceedings should be issued in that case ( LAW ) .

Article CARDINAL defined an administrative sanction as a measure of administrative liability the aim of which was to compel a person who had committed an administrative offence to obey laws , respect the social order and refrain from reoffending , and to prevent the commission of offences by other persons .

Pursuant to LAW , administrative sanctions included , inter alia , a note of warning ( in writing ) , a fine , public or correctional work , or administrative arrest .

Article CARDINAL provided that when deciding to impose an administrative sanction the nature of the offence , the personality of the offender , his or her material condition , and any circumstances mitigating or aggravating the offender ’s liability had to be taken into account .

Article CARDINAL listed a number of mitigating circumstances , which included sincere repentance on the part of the guilty person , voluntary compensation for any losses caused by the offence , and cases where the offender was a minor . The list was not exhaustive and the authority deciding on the case was free to recognise other circumstances as mitigating administrative liability .

Article CARDINAL § CARDINAL provided that an administrative sanction could be imposed within DATE on which an offence had been committed , or following the discovery that the offence was of a continuous nature .

Article CARDINAL § CARDINAL of the Code envisaged the following sanctions for petty ( in the amount of MONEY ) theft of collective property , including property of private companies , or ORG - owned property : a fine in the amount of CARDINAL times the statutory non - taxable DATE income , or corrective work for DATE with a PERCENT salary deduction .

Pursuant to LAW , cases concerning administrative offences were to be considered at a public hearing . For educational and preventive purposes , such cases could be considered at an offender ’s place of work , study or residence .

Under Article CARDINAL § CARDINAL , the presence of a defendant at hearings concerning certain administrative offences , including the CARDINAL envisaged by LAW , was obligatory . Should the defendant fail to appear before the court , he or she could be brought before it by the police .

According to LAW , cases concerning administrative offences were generally to be considered at the location in which the offence had been committed .

Pursuant to LAW , the first - instance court ’s resolution imposing an administrative sanction was final and could not be appealed against save in cases provided for by law .

According to Article CARDINAL , a court resolution concerning an administrative offence could be reviewed by the judge who had adopted it , upon an extraordinary appeal lodged by a prosecutor , or by the president of a higher court of his or her own motion . The powers of the judge ( or president of a court ) reviewing the case were determined by Article CARDINAL § CARDINAL and included the power ( CARDINAL ) to approve the resolution without changes ; ( CARDINAL ) to quash the resolution and to remit the case for new examination ; ( CARDINAL ) to quash the resolution and close the case ; and ( CARDINAL ) to change the sanction within the limits envisaged by law . In the latter case a heavier penalty could not be imposed .

On DATE the Parliament of Ukraine made changes to the Code whereby it introduced an appeal procedure in administrativeoffence cases . In particular , under the amended Articles CARDINAL and CARDINAL of the LAW , the parties to the administrative - offence proceedings have the right to appeal against court resolutions in their cases within DATE of their delivery . Such an appeal is to be submitted through the court of first instance that adopted the contested resolution . That court must refer , within DATE , the appeal or appeals together with the case file to the appeal court , which , in its turn , has DATE to consider the case . Cases are dealt with by a judge of the appeal court in an open hearing . The judge has powers to reject the appeal , to quash the resolution and discontinue the proceedings or adopt a new resolution , or to change the resolution . The judge ’s decision is final and not subject to any further appeal .