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

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

In DATE the applicant was struck down by paralysis , blindness and dysarthria as a result of the compulsory polio inoculation provided by Law no . CARDINAL of DATE .

Section CARDINAL of Law no . CARDINAL of CARDINAL DATE provided that people struck down by permanent illnesses as a result of compulsory inoculations were entitled to an allowance from DATE following the claim and to a lump - sum payment . In fact , by a judgment of CARDINAL DATE ORG had declared PERSON no . CARDINAL of DATE unconstitutional because it did not provide for any fair compensation for illnesses as a result of compulsory polio inoculation .

On DATE the applicant requested the compensation she was entitled to .

On DATE ORG established , on the basis of the applicant ’s claim , that she was entitled to an allowance of MONEY ( ORG ) per annum from DATE .

On DATE ITL CARDINAL were paid in arrears for the period from DATE to CARDINAL DATE .

By a judgment of DATE ORG declared section CARDINAL of Law no . CARDINAL of CARDINAL DATE unconstitutional because it did not provide for any compensation for the period between the date on which the cause of action arose and the award of the allowance .

In DATE , after ORG judgment , several decree - laws were issued and re - issued in order to resolve the matter of the retrospective compensation . The last decree - law no . CARDINAL of DATE converted into PERSON no . CARDINAL of DATE and later PERSON no . CARDINAL of CARDINAL DATE amended LAW no . CARDINAL of CARDINAL DATE . According to the new LAW , in addition to the principal allowance and lump - sum payment already awarded , people injured by compulsory inoculations were entitled to a further compensation for the period between the date on which the cause of action arose and the award of the allowance , calculated for DATE at PERCENT of that allowance , without statutory interest and monetary revaluation . Moreover , section CARDINAL provided that people injured by multiple illnesses as a result of compulsory inoculations were entitled to additional compensation , to be determined by a decree of ORG , of not PERCENT of the principal award .

On DATE the applicant lodged an application with ORG ( PERSON ) alleging that the decree - law ’s provisions were unconstitutional on the grounds of the arbitrary reduction of the retrospective compensation and requesting a declaration of her right to obtain it without any reduction . The applicant also alleged that the provision in relation to the additional award was unconstitutional , because it was determined in a different way from the sum awarded to disabled workers and ex - servicemen . In any case , the applicant requested a provisional order against ORG to pay the retrospective compensation as determined by PERSON no . CARDINAL of CARDINAL DATE ( that is , PERCENT of the principal award ) and statutory interest from DATE to CARDINAL DATE on the principal allowance arrears .

ORG asked for the applicant ’s requests to be dismissed .

ORG provisionally ordered that ORG pay ITL CARDINAL in retrospective compensation as determined by PERSON no . CARDINAL of DATE .

By judgment of DATE ORG found the applicants’ arguments concerning constitutionality to be manifestly ill - founded and ordered ORG to pay ITL CARDINAL,CARDINAL,CARDINAL in retrospective compensation as determined by PERSON no . CARDINAL of CARDINAL DATE and ITL CARDINAL in statutory interest from DATE to CARDINAL DATE in principal allowance arrears . ORG also declared that the applicant was eligible for the additional compensation because of the multiple illnesses following the compulsory inoculation but did not fix the amount because ORG decree had not yet been issued .

ORG lodged an appeal against ORG judgment .

The applicant asked for the appeal to be dismissed and her previous requests confirmed .

By judgment of DATE ORG upheld ORG judgment and ordered ORG to pay additional compensation of PERCENT of the principal award .

By judgment no . CARDINAL of CARDINAL DATE ORG declared as follows :

Law no . CARDINAL of DATE ( polio compulsory inoculation ) is unconstitutional insofar as it does not provide , outside section DATE of the civil code , for any fair compensation to be charged to the State for damage as a result of infection or other serious illness following compulsory polio inoculation which have struck down inoculated children or people who have personally and directly taken care of them .

This unconstitutional declaration ( ... ) introduces a compensation for damage as direct result of compulsory medical treatment within the limits of a fair settlement which considers all the aspects of damage . This compensation is justified ( ... ) by a balanced consideration of the principles of section CARDINAL of the LAW in relation to the solidarity between individuals and the collectivity , which justifies the imposition of medical treatment .

According to LAW of CARDINAL DATE :

Everyone struck down by illnesses or infirmities as a result of compulsory inoculations ( ... ) is entitled to a compensation to be charged to the ORG on the conditions and in the ways established by the present law .

Section CARDINAL of Law no . CARDINAL of CARDINAL DATE provided as follows :

The compensation ( ... ) starts from DATE following the claim .

By judgment no.CARDINAL of DATE ORG declared as follows :

Section CARDINAL , par . CARDINAL and CARDINAL , par . CARDINAL of Law no . CARDINAL of CARDINAL DATE is unconstitutional insofar as it denies the right of people struck down by illnesses as a result of polio compulsory inoculation or of people who have personally and directly taken care of them to a compensation to be charged to the ORG -outside the provision of section DATE of the civil code- for the period between the date on which the cause of the action arose and the award of the allowance determined according to the law above .

( ... ) The individual can not be expected to sacrifice his own health for the benefit of the whole community . The coexistence between the individual and the collective aspect of constitutional discipline of health as well as the duty of solidarity , established by LAW , which ties the individual to the collectivity , but also the collectivity to the individual , imposes a proper supporting measure of fair compensation for damage to be arranged for people who have suffered damage as a result of compulsory medical treatment . The compensation must be paid independently of the one claimed by the part concerned , if the conditions of section DATE of the civil code are satisfied . Whereas the defence against tort provided by the section above necessarily and fully pays also for health damages -( ... )- the compensation at issue is not concerned with guilt but with the unbreakable duty of solidarity overhanging in this case on the collectivity and , in its place , on the ORG . Though this compensation could not be derisory and -( ... )- must consider all the aspects of damage , it has equitable nature .

( ... ) This is a special duty . The issue for the collectivity is not only the duty to help people in trouble for any cause , but also the duty to compensate the sacrifice that someone can suffer for a benefit to the collectivity . It would be against principles of justice , such as results from section CARDINAL of LAW , in the light of the duty of solidarity of LAW , that people struck down were left to their own destiny and resources or that the damage at issue was considered an unforeseen event to be compensated with general instruments of public assistance , or that satisfaction for compensation requests of damaged people was subordinated to the existence of others’ negligent behaviour which could be missing .

Section CARDINAL of Law no . CARDINAL of DATE , revised by PERSON no . CARDINAL of DATE and later by law no . CARDINAL of DATE , provides as follows :

The allowance of par . CARDINAL is integrated by a lump - sum payment corresponding to the special additional compensation of Law no . CARDINAL of CARDINAL DATE ( ... ) and starts from DATE following the claim ( ... ) By claim and even if the allowance has been already given , a compensation is paid to people indicated in LAW , par . CARDINAL for the period between the date on which the cause of action arose and the award of the allowance , calculated for DATE at PERCENT of the allowance , without statutory interest and monetary revaluation .

ORG ( ... ) .

People injured by multiple illnesses with distinct disabling effects are entitled to an additional compensation , to be determined by a decree of ORG , of not PERCENT of the allowance of par . CARDINAL and CARDINAL .


CASE OF SKENDŽIĆ AND KRZNARIĆ v. CROATIA

Remainder inadmissible;Violation of Art. 2 (procedural aspect);Non-pecuniary damage - award

Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

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

On DATE , during the Homeland War in GPE , an arrest warrant , signed by the then head of Otočac police station ( FAC postaja PERSON ) GPE , was issued in respect of GPE , the first applicant 's husband and the second and third applicants ' father , born on DATE and of NORP ethnic origin , who was suspected of having committed the criminal offence of terrorism . On DATE QUANTITY police officers from the station , GPE and PERSON , went to the applicants ' flat in PERSON and arrested PERSON , who was taken to GPE

On DATE , at an unspecified time , CARDINAL other police officers from the same police station , GPE and GPE , took PERSON to ORG of the nearby town of GPE and handed him over to ORG , the Head of ORG ( PERSON štab Gospić ) . They saw FAC handcuffing GPE and then went back to PERSON . The whereabouts of PERSON have remained unknown ever since .

At the request of his family , PERSON was presumed dead from CARDINAL DATE TIME by virtue of a decision of ORG ( PERSON ) of CARDINAL DATE .

The applicants allege that in the same period a number of individuals of NORP ethnic origin had disappeared or had been killed in the area around the nearby town of GPE .

In DATE following the arrest of her husband by the police , the first applicant telephoned the local authorities in PERSON and FAC on numerous occasions to enquire about his fate , but to no avail .

On DATE , after the first applicant had made enquiries to ORG ( the “ Ministry ” ) regarding her husband , ORG sent an official letter to PERSON police station enquiring as to the whereabouts of GPE since his arrest on DATE . On DATE GPE replied that PERSON had been arrested on DATE at TIME and taken to FAC ( GPE zatvor FAC ) DATE .

On DATE the ORG sent an official letter to ORG enquiring as to PERSON 's whereabouts .

On DATE ORG replied that PERSON had been arrested by officers from PERSON police station and that ORG had not been informed of his arrest . They further stated that , to their knowledge , PERSON had been taken to GPE Prison ( GPE zatvor GPE ) . Further to this , on DATE ORG informed the ORG that PERSON had never been detained in FAC .

On DATE the ORG sent a letter to both PERSON police station and ORG enquiring as to the whereabouts of PERSON and whether he had been listed as a missing person .

On DATE PERSON , CARDINAL of the above - mentioned police officers from Otočac police station , drew up a report stating that after he had been arrested on DATE PERSON had been taken to ORG and handed over to its head , ORG He also stated that there was no further information as to ORG 's whereabouts .

On DATE the first applicant sent a letter to the Minister of Justice calling for an official investigation into the disappearance of her husband . On DATE the letter was forwarded to the ORG Attorney with a request that appropriate steps be taken . The first applicant was served with a copy of that request , but received no further information .

The first applicant sent a second letter to ORG on DATE seeking information about the steps taken in order to establish the circumstances of her husband 's disappearance .

On DATE the GPE State Attorney 's ORG ( GPE državno odvjetništvo u ORG ) ordered investigative measures in connection with the disappearance of PERSON and asked the PERSON police to conduct an interview with former police officer PERSON and former head of the police station GPE about the disappearance of GPE The PERSON police interviewed PERSON on DATE . He said that in the autumn of DATE he and another police officer , PERSON , had arrested PERSON in his flat in PERSON pursuant to an arrest warrant issued by GPE They had taken GPE to GPE and left .

On DATE the Otočac police informed the GPE State Attorney 's ORG that they had not been able to interview GPE because he had moved to GPE .

In a letter sent to the ORG on DATE , the first applicant complained that no action was being taken in respect of the inquiry into the fate of her husband . On DATE the ORG asked the applicant to explain what exactly her request was .

On DATE police officer , GPE , since retired , was interviewed at Otočac police station . He said that in DATE he had been a police officer at that station and that during that period PERSON had been brought to the premises of PERSON police station , where he had been briefly detained and then transferred to FAC by CARDINAL police officers , GPE and GPE

On DATE PERSON , the aforementioned police officer from PERSON police station , made a written statement that on DATE he and another police officer , ORG , had executed an arrest warrant and arrested PERSON in his flat in PERSON . They had handed him over to GPE and left .

On DATE former police officer GPE was interviewed at Otočac police station . He said that he could not remember a person named PERSON but did remember having on CARDINAL occasion , together with his colleague PERSON , driven an official police vehicle to ORG , but could not say for what purpose .

The PERSON police informed ORG of the result of the interviews on DATE and the GPE State Attorney 's ORG on DATE .

On DATE the first applicant officially registered PERSON with the PERSON police as a missing person . On DATE the Otočac police informed the GPE police that GPE had been listed as a missing person and asked them to carry out an inquiry because PERSON had disappeared on the territory under their jurisdiction . On DATE the NORP police asked FAC authorities whether they had a record of GPE having been detained there in DATE and whether ORG had had any function at FAC at that time .

On DATE the ORG authorities informed the FAC police that GPE had never been registered as having entered that prison and that ORG had had no function at the prison , but had been head of ORG .

On DATE the NORP police asked the Ličko - Senjska Police Department ( FAC uprava ličko - senjska – the former ORG ) to request ORG to interview ORG , who was now living in GPE . On DATE the Ličko - Senjska Police Department duly made that request .

On DATE ORG interviewed GPE He stated that during the Homeland War in GPE , as an officer in ORG , he had arrived in GPE on DATE and left sometime at DATE . He had no knowledge of the arrest and disappearance of GPE

On DATE the first applicant asked the ORG Attorney to take steps in order to establish the whereabouts of her husband .

In DATE the ORG Attorney sent a letter to the GPE State Attorney 's ORG ( GPE državno odvjetništvo u ORG ) stating that in DATE his office had already forwarded to ORG a request that an investigation be carried out into the death of GPE , in particular in connection with the criminal proceedings opened in DATE against a certain ORG and other persons . The first applicant 's submissions from DATE , in which she stated that she had received no information in reply to her enquiry about the circumstances of her husband 's death , were enclosed . The ORG Attorney requested all information about GPE that had been obtained during the investigation concerning ORG and his accomplices . A copy of this letter was served on the first applicant .

On DATE the GPE State Attorney 's ORG informed the Ličko - Senjska Police Department about the interview with ORG and also said that the records of ORG showed that ORG had not been on their payroll .

On DATE ORG interviewed GPE He stated that from DATE to CARDINAL DATE he had been head of PERSON police station and that sometime in DATE or DATE an order had been given for GPE to be arrested and taken to ORG for questioning on suspicion of having participated in the criminal offence of kidnapping a driver in DATE . He did not know who had given that order but was sure that it had not been him . GPE also said that he had not seen PERSON when he was taken to the PERSON police but that he knew that PERSON , together with CARDINAL or CARDINAL other police officers , had taken PERSON to the NORP police in a police car . He had no knowledge as to what had happened there but had heard rumours that on DATE had run away to the occupied territories .

On DATE ORG NORP uprava zadarska ) interviewed FAC , who had been Head of ORG of ORG ( načelnik GPE operativnih poslova javne sigurnosti PERSON uprave Gospić ) in the period DATE and DATE . He had no knowledge of the arrest and disappearance of GPE and had never heard of a person of that name .

On DATE the Ličko - Senjska Police Department interviewed ORG , a retired police officer from ORG who said that he had not ordered the arrest of GPE and that it had most likely been GPE who had ordered it . He had not witnessed GPE being brought to ORG .

In DATE the Deputy ORG Attorney sent a letter to the first applicant telling her that both ORG and the GPE State Attorney 's ORG had been ordered to take all necessary steps to establish the circumstances of her husband 's disappearance .

On DATE the GPE State Attorney 's ORG asked ORG ( Županijski sud u ORG ) to hear evidence from witnesses PERSON ( the first applicant ) , GPE , GPE , GPE , GPE , PERSON and GPE At hearings held on DATE and DATE an investigating judge of ORG heard evidence from all these witnesses , save GPE All of them repeated what they had already said to the police . Further to this , on DATE an investigating judge of ORG ( Županijski sud u GPE ) heard evidence from GPE He repeated the statement he had made to the police .

At DATE the first applicant wrote to the Vice - President of the Government , enquiring about the progress of the investigation , and the latter forwarded the letter to the ORG Attorney . In DATE the Deputy ORG Attorney informed the applicant that in DATE a request for an investigation into the disappearance of GPE to be opened had been lodged with ORG ( Županijski sud u Gospiću ) . On DATE the investigating judge assigned to the case heard evidence from a number of witnesses .

In DATE the first applicant 's counsel sought information about the investigation from ORG .

In DATE the GPE State Attorney 's Office informed the applicant that those responsible for the disappearance of her husband had yet to be identified . The GPE State Attorney asked ORG to continue with their efforts to establish the circumstances of GPE 's disappearance .

In DATE the first applicant 's counsel asked the ORG Attorney to transfer the case to another ORG Attorney 's office , objecting to the lack of impartiality of the GPE State Attorney 's ORG on the grounds that the investigation had revealed involvement on the part of the local authorities in the disappearance of GPE

NORP In DATE the ORG Attorney replied to the first applicant 's counsel that he had asked for a report from the GPE State Attorney 's ORG and the local police .

In DATE the first applicant 's counsel told the representatives of FAC to GPE that the investigation was ineffective . In DATE the Mission enquired of the ORG Attorney as to progress with the investigation .

At the same time the first applicant 's counsel requested that PERSON be listed as a disappeared person with ORG and provided information as to where his body might be found . Soon afterwards , ORG , Homeland War Veterans and ORG ( ORG obitelji , branitelja i međugeneracijske solidarnosti ) informed the representative that CARDINAL corpses of unidentified persons had been found as a result of exhumation at a graveyard in Vraneš . In connection with this the members of the PERSON family gave samples of their blood .

In DATE the State Attorney 's Office informed GPE that further information had been requested from the GPE State Attorney 's ORG . The latter ordered the local police authorities to undertake further steps in order to identify the perpetrators . However , no further steps were taken .

On DATE the applicants lodged a constitutional complaint about the ineffectiveness of the investigation . The proceedings are still pending .

In DATE the applicants brought a civil action against the ORG in ORG seeking damages in connection with PERSON 's disappearance .

In a judgment of CARDINAL DATE ORG established that PERSON had been arrested by the police and alive while in police custody and that therefore the ORG was responsible for his disappearance and death . It awarded the applicants each CARDINAL NORP kunas ( HRK ) for non - pecuniary damage in respect of their suffering for the death of a close relative , and also a DATE allowance to the first applicant until her death and to the second and third applicants for as long as they attended school . The relevant part of the judgment reads :

“ ... the arrest warrant issued by the PERSON police station on DATE in respect of GPE , on the basis of which he was brought to that station , and at the same time the lack of any evidence that PERSON was handed over to any other ORG body , leads this court to establish the defendant 's responsibility .

As stated above , the fact that there is no evidence that the PERSON police station handed the detainee PERSON over to any other State body is crucial for the question of the defendant 's responsibility because the issue of control over the detainee includes taking of responsibility for his safety and for the protection of his physical integrity .

The evidence given by the witnesses , in particular the police officers who participated in GPE 's arrest and his transfer to ORG , shows that their actions violated the detainee 's fundamental human rights and freedoms guaranteed under LAW , which can not be restricted even at the time of ... the immediate war danger ... as well as the rights guaranteed by LAW then in effect .

It has been established that the defendant , in addition to infringing the procedure prescribed by law , did not secure to the detainee the protection of his physical integrity and life , which resulted in his disappearance and presumption of his death .

In such a way , it is clear that damage was caused by unlawful and incorrect acts on the part of the ORG bodies , namely , ORG ...

This court has no doubt that the suffering on account of the death of a husband and father can not be translated into money : it concerns just satisfaction so that the plaintiffs may be at least partially helped in regaining their mental balance , which was certainly upset by the loss of a husband and father . In assessing the amount of just satisfaction for the plaintiffs ' suffering , the court has had particular regard to the circumstances and manner in which the deceased PERSON disappeared , and accordingly considers the plaintiffs ' sufferings as being particularly serious .

The court has taken into account that the deceased , PERSON , was arrested by the legitimate authorities and that since he was taken from his home , his family – the plaintiffs – have had no further information about [ his whereabouts ] . Of course the fate of the plaintiffs ' husband and father has given rise to an exceptionally frustrating and stressful situation for the plaintiffs as a family , in particular seeing that the family has never learned the complete truth about his disappearance .

In her statement the first plaintiff vividly described the atmosphere of utter despair and uncertainty which the plaintiffs felt at the time when PERSON was arrested and then disappeared , stressing that she had taken tranquilisers because she had received no answers as regards the fate of her husband .

The statement of the second plaintiff that as a DATE child she had been constantly crying , that she and her brother had retreated into themselves and that she would like to know at least where her father had been buried so that she could attend his grave on DATE was also moving .

The third plaintiff , who was CARDINAL at the time of [ the disappearance of his father ] , stressed the strong bond between himself and his father and the time of his arrest and uncertainty about his fate , describing it as ' horrible in which he can not remember a single nice moment . '

It is clear that the mental suffering caused by the loss of a parent or a husband is immeasurable . In the case at issue the plaintiffs ' suffering has an additional dimension owing to the fact that they still do not know the exact circumstances of GPE 's death or the place of his grave . ”

The part of the judgment concerning the award for non - pecuniary damage was upheld by ORG on DATE , whereas the part concerning the DATE allowance was quashed . On DATE ORG ( PERSON ) upheld ORG judgment concerning the award for non - pecuniary damage . This judgment was fully enforced on DATE .

The proceedings concerning the claim for a DATE allowance resumed before ORG , which delivered a fresh judgment on DATE , again awarding the applicants a DATE allowance , which was upheld by ORG on DATE .

DATE . On DATE the applicants sought enforcement of that judgment in ORG and an enforcement order was issued on DATE .

NORP However , upon a request by the State on DATE , the enforcement of the judgment was adjourned on the grounds that the ORG had in the meantime lodged an appeal on points of law with ORG , which was still pending .


The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in GPE . He is represented before the Court by Ms I. Abelovská , a lawyer practising in GPE .

The applicant acted as receiver in bankruptcy of a ORG - owned company . On DATE he submitted his final report to ORG for approval . It indicated the sum obtained from the sale of the company 's assets and also the receiver 's costs and his remuneration . The bankrupt company and its creditors filed no objections to the report .

On DATE ORG heard the applicant and a representative of the bankrupt company . The latter stated that he did not object to the receiver 's report subject to its conformity with the relevant law . On DATE ORG delivered a decision in which it approved of the report with a modification concerning the applicant 's remuneration . The decision stated that the applicant had not determined the sum due to him in accordance with Sections CARDINAL ) and CARDINAL(CARDINAL ) of Regulation No . CARDINAL/CARDINAL as amended .

In ORG view , the applicant had mistakenly included in the sum obtained through realisation of the bankrupt 's assets ( which serves as the first component for determination of a receiver 's remuneration ) the sum of CARDINAL NORP korunas ( SKK ) which the company in bankruptcy had in its bank account at the moment of adjudication of bankruptcy . The receiver calculated the second part of his remuneration ( based on the sum reserved for satisfying the creditors ' claims obtained as a result of receiver 's activities ) in that he had repeatedly included in it the sum obtained as a result of realisation of the assets after deduction of claims relating to those assets , of sums to which the bankrupt 's employees had been entitled as well as of other items . ORG therefore modified the calculation of remuneration submitted by the applicant in that it deducted SKK CARDINAL,CARDINAL.CARDINAL from the sum representing the income from realising the bankrupt 's assets and administration of its property . The remaining sum , which included ORG ( obtained as a result of realising the assets ) and SKK CARDINAL,CARDINAL,CARDINAL , DATE ( sum reserved for satisfying the creditors ' claims obtained in the course of the administration in bankruptcy ) , served as the basis for determining the receiver 's remuneration . Considering that the administration in bankruptcy carried out by the applicant had been complex , ORG increased the remuneration by MONEY as the relevant law permitted .

On DATE the applicant appealed . He submitted reasons for the appeal on DATE . He argued that ORG had disregarded the fact that no objections had been filed to his report and concluded that the court had exceeded its power in that it had modified a part thereof . He further submitted that ORG had incorrectly interpreted Section CARDINAL ) of Regulation No . CARDINAL/CARDINAL , as amended by Regulation No . CARDINAL/CARDINAL , in that it had excluded from the second component of his remuneration the sum obtained as a result of realisation of the bankrupt 's property and that the sum which the bankrupt had had in its account at the moment of adjudication of bankruptcy had not been taken into consideration when determining the sum on the basis of which his remuneration was to be calculated . In support of his argument the applicant referred to CARDINAL decisions delivered by ORG in DATE and in DATE . He also referred to doctrinal interpretation of the relevant law published in ORG in DATE and in a law review .

On DATE ORG upheld ORG decision concerning the sum which was due to the applicant . In its judgment ORG summed up the reasoning of the first instance court and the arguments put forward in the appeal without mentioning , however , the above CARDINAL ORG decisions of DATE and DATE relied upon by the applicant . The reasons for ORG decision read as follows :

“ [ Under LAW . CARDINAL/CARDINAL , as amended , ] a bankruptcy receiver 's remuneration is composed of the addition of remuneration determined on the basis of the sum obtained as a result of realisation of the bankrupt 's property after adjudication of bankruptcy and of remuneration determined on the basis of the sum which is reserved for satisfying the creditors ' claims and which the receiver obtained as a result of other activities than realisation of assets , such as filing claims with courts or proposing enforcement of decisions etc .

In the present case the first instance court [ in accordance with the relevant provisions of LAW ] had before it the final report on realisation of assets and on remuneration and expenses and examined it at the hearing held on DATE in the course of which the bankrupt 's representative stated that he did not object to the receiver 's remuneration subject to its second component being in accordance with the law . The first instance court ... came to the conclusion that the remuneration had not been calculated in accordance with LAW . CARDINAL/CARDINAL , as amended by ORG . CARDINAL/CARDINAL , and modified the remuneration due .

The appellate court also reached the conclusion that the sum of ORG which had been deposited in the bankrupt 's bank account prior to adjudication of bankruptcy could not serve as the basis for determining the first part of the receiver 's remuneration as that sum had not been obtained as a result of realisation of the bankrupt 's assets . The second part of remuneration should be determined on the basis of the sum obtained by the receiver through other activities than realising the assets . In the case under consideration the approved final report indicates that other incomes have amounted to SKK CARDINAL,CARDINAL,CARDINAL.CARDINAL . The incomes from realising the assets and from other activities total SKK CARDINAL,CARDINAL,CARDINAL.CARDINAL and this sum serves as the basis for determining the receiver 's remuneration under LAW No . CARDINAL/CARDINAL , as amended by ORG . CARDINAL/CARDINAL ... The first instance court decided correctly when concluding that the receiver 's remuneration amounted to the sum mentioned . ”

ORG decision was subsequently published in the Collection of opinions of ORG and of courts ' decisions under No . CARDINAL/CARDINAL . The conclusion was emphasised according to which a sum which a debtor had in a bank account prior to adjudication of bankruptcy is not to be included in the sum on the basis of which a receiver 's remuneration is determined as it was not obtained as a result of realisation of the bankrupt 's assets .

Regulation No . CARDINAL/CARDINAL , as amended by Regulation No . CARDINAL/CARDINAL , governs the implementation of certain provisions of LAW of DATE .

Section CARDINAL(a ) provides that the basis for determining the remuneration of a receiver in bankruptcy is composed of the sum obtained through realisation of the bankrupt 's assets and of the sum reserved for satisfying the creditors ' claims which the receiver obtained in the course of carrying out his or her duties .

Under LAW ) of Regulation No . CARDINAL/CARDINAL , as amended , a receiver in bankruptcy is entitled to remuneration equal to MONEY of the sum mentioned in Section CARDINAL(a ) , the minimum remuneration being SKK CARDINAL .


Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE . In DATE he joined ORG .

In or DATE , he was charged , pursuant to section CARDINAL of LAW DATE ( “ the DATE LAW ) , with CARDINAL civilian offences ( CARDINAL under LAW DATE and CARDINAL under the Forgery and LAW DATE ) . He was also charged , inter alia , on CARDINAL counts of misapplication of public property contrary to section CARDINAL of the CARDINAL Act . The charge sheet was signed by the convening authority , ORG Admiral PERSON ( ORG GPE ) .

By convening order dated DATE , the convening authority acknowledged receipt of the “ circumstantial letter ” and ordered the convening of a court - martial for DATE ( see paragraph CARDINAL below ) . He appointed the Prosecutor by name ( of lower rank and in the convening authority ’s chain of command ) . He also appointed the President of the court - martial and the other CARDINAL members by name : all were subordinate in rank to the convening officer but were not in his chain of command . The Judge Advocate was also appointed by name by the convening authority and was not in the latter ’s chain of command .

Advised that he could be represented by a civilian or naval lawyer , the applicant instructed a civilian lawyer , his current representative .

The court - martial took place on board ORG on DATE and the applicant pleaded guilty to all charges . Having presented evidence in mitigation of sentence , he was sentenced , inter alia , to CARDINAL months’ imprisonment , to be discharged from the navy and to stoppages of pay in the sum of MONEY .

NORP By letter dated DATE the applicant was informed that his petition against sentence , which had been reviewed on behalf of ORG by the Naval Secretary / Director General Naval Manning , had been rejected but that he could request that the petition be further considered by ORG .

He subsequently renewed his petition against sentence . On DATE he was released from prison and by letter dated DATE he was notified that his petition had been rejected .

The law and procedures in respect of naval courts - martial were contained in LAW DATE ( “ the DATE LAW ) and in certain statutory instruments made under LAW including ORG ) DATE ( “ the DATE Orders ” ) . Following the ORG ’s report in the case of GPE v. GPE , certain provisions of LAW were amended by LAW ( “ the LAW ” ) which LAW came into force on DATE ( PERSON v. GPE , no . CARDINAL/CARDINAL , Commission ’s report of DATE and , see also , judgment in that case of CARDINAL DATE , Reports of ORG ) . Sections A - G below concern the applicable law and practice prior to the entry into force of LAW .

NORP Under CARDINAL of the DATE LAW civilian ” offences were also offences under LAW . Accordingly , even if the charge amounted to a civilian offence , in most cases naval personnel could be tried on that charge by the naval authorities under LAW .

At the material time a naval court - martial consisted of CARDINAL naval officers not below the rank of lieutenant , though the rank of the members might have been higher depending on the rank of the accused . Not all members belonged to the same ship or naval establishment and the captain and executive officer of the accused ’s ship could not sit on the court - martial .

A President of the court - martial was appointed from the members . A Judge Advocate also took part in every naval court - martial . The Prosecutor could be a legally qualified naval officer or any other competent person . In exceptional cases , a civilian lawyer was appointed to act as Prosecutor .

An accused was allowed to engage , inter alia , an officer or civilian counsel ( “ the accused ’s friend ” ) who advised the accused , examined the accused if he desired to give evidence , cross - examined witnesses for the prosecution and examined witnesses for the defence . If the accused wished to be represented by a civilian lawyer he could apply to the convening authority for approval of legal aid .

The convening authority was an officer authorised by ORG to convene a court - martial . Appendix CARDINAL to Volume II of ORG published by the naval authorities ) gave a list of officers who could act as convening authority : Commander in Chief , Fleet ; Commander in Chief , ORG ; ORG GPE ; ORG GPE and GPE ; ORG ; ORG GPE ; NORP Officer LOC ; Flag Officer Sea Training ; Commander ORG ; and Commander NORP Forces GPE .

An application for a court - martial to be held was generally made to the convening authority by the Commanding Officer by way of a “ circumstantial letter ” . This letter reported the circumstances upon which a charge was based in sufficient detail to show the real nature and extent of the offence . Any statement made by the accused in the course of inquiries , during investigation or after he was charged had to be forwarded in a separate document annexed to the letter . A charge sheet in the prescribed form , a list of witnesses for the prosecution , summaries of evidence of those witnesses and a list of exhibits which the Prosecutor proposed to put in evidence accompanied the letter .

Based on the material submitted , the convening authority decided on the charges to be retained against an accused and , if he was satisfied with the charge sheet accompanying the circumstantial letter , he could countersign the charge sheet . He also decided on the necessity to hold a court - martial on the charges retained . In this latter respect , the convening authority was guided by the principles issued by ORG under section CARDINAL of LAW DATE and was not to order the holding of a court - martial unless satisfied that the charges were correct , that the evidence was sufficient ( namely , that there was a realistic prospect of a conviction ) and that there was a “ service interest ” in trying the matter by court - martial . In convening the court - martial , the convening authority appointed the date , time and place for trial .

The convening authority appointed the President and other members of the court - martial . He also appointed , or directed an officer to appoint , a Judge Advocate and a Prosecutor . He ensured that the accused was properly assisted . In this latter respect , and unless the accused wished to represent himself or to instruct civilian counsel , the convening authority would nominate a competent naval officer to act as the accused ’s friend .

The convening authority could , in exceptional circumstances , countermand the ordering of a court - martial before its commencement and dissolve a court - martial during the trial if circumstances arose which , in his opinion , rendered such action necessary ( orders CARDINAL ) and CARDINAL ) of the DATE Orders ) .

The Judge Advocate of the ORG was appointed by the Queen on the recommendation of the Lord Chancellor and was removable on the same authority for inability or misbehaviour . He had to be a barrister or advocate of not less than ten years’ standing . He acted as legal advisor to ORG on matters regarding the administration of justice under LAW . It was his duty to review all contested courts - martial whether the verdict was guilty or not guilty and , in particular , he advised that ORG whether a court - martial had been properly conducted according to law and whether the conviction could stand , he gave a view on the sentence and he drew attention to any gross errors or irregularities . He also gave the Chief Naval Judge Advocate his view as to the manner in which the naval barristers had conducted themselves as Judge Advocate , Prosecutor and as the accused ’s friend . As a result of the latter advice , “ there may well be downstream actions issuing guidance either specifically or generally ” ( LAW , Appendix CARDINAL ) .

The Chief Naval Judge Advocate was a serving officer of the rank of captain of ORG and he was also a barrister . The Chief Naval Judge Advocate was assisted by a staff of serving naval officers who were barristers . His duties included assisting and consulting with the Judge Advocate of the Fleet , advising on the selection and appointment of naval barristers and sitting as Judge Advocate at naval courts - martial where the seriousness of the charges , the complexity of the trial , the rank of the accused or the interests of the Service so required .

In all other cases , a Judge Advocate was appointed to a court - martial from the staff of the Chief Naval Judge Advocate .

Before the trial the Judge Advocate appointed informed the convening authority of any defect in the constitution of the court - martial . He advised the court - martial , whether his opinion was requested or not , upon all questions of law and procedure which arose and the court - martial had to accept his advice unless there were weighty reasons for rejecting it , in which case those reasons had to be recorded .

The Judge Advocate had to ensure that the accused did not suffer any disadvantage during the hearing in consequence of , inter alia , the accused ’s position , ignorance or incapacity to examine witnesses . Before the closing of the trial the Judge Advocate summed up the relevant law and evidence . The Judge Advocate was not present when the court considered its finding and , if during the court - martial ’s deliberations on the charges further advice was required , the court - martial had to receive that advice in open court . The Judge Advocate advised the court - martial on sentence but not in open court .

The accused could object to any particular member of the court - martial and to its general constitution . If the objection to the President was upheld the court had to adjourn until another was appointed . If an objection to a member was upheld , another member could be appointed from the “ spare members list ” and , if an objection as to the constitution of the court - martial was upheld , the court - martial had to adjourn and report the matter to the convening authority . All members of the court and any other officers of the court - martial had to take a prescribed oath or affirmation ( section CARDINAL of the DATE Act ) . The opinion of the President and of each member of the court - martial had to be given orally and on each charge separately , and their opinions had to be given in order of seniority commencing with the junior in rank . The vote of the majority determined sentence .

Before the court accepted a plea of guilty , the Judge Advocate had to ensure that the accused understood the charge to which he had pleaded and the different procedure which would result from that plea . The Prosecutor then read the circumstantial letter . Before the court proceeded to deliberate on sentence , the ORG , whenever possible , called relevant witness evidence on information in the possession of the naval authorities as to the accused ’s background and history which might have rendered the accused more likely to commit the offence , as to his service history and as to his previous convictions . The accused could also give evidence and call witnesses in mitigation . The court - martial had to take note of the accused ’s naval record ( for example , awards for gallantry ) . The members of the court - martial retired ( with the Judge Advocate ) to consider the sentence . The court - martial did not give reasons for its decision on sentence .

Having received the report of the finding and sentence , the convening authority took the necessary steps to give effect to the sentence ( either by a committal order or otherwise ) or he could order the suspension of the sentence pursuant to section CARDINAL of the CARDINAL LAW of ORG law ( Volume II ) pointed out that before the convening authority gave effect to or suspended the sentence , he ( or , inter alia , the Commander in Chief ) had to satisfy himself so far as he was able , that no errors had been made in the conduct of the court - martial likely , in his opinion , to invalidate the finding of the court - martial . If he doubted the correctness of the finding , in fact or in law , or the legality of the sentence , he could not execute the sentence pending reference to ORG . In such circumstances , the accused was retained in custody or the sentence was suspended under LAW .

The convening authority ( among other naval authorities ) could at any time , and had to at intervals of not DATE , reconsider any case of suspension and if on reconsideration it appeared that the conduct of the offender since his conviction had been such as to justify a remission of sentence , he had to remit the whole or any part of it ( section CARDINAL of the CARDINAL Act ) .

A certified transcript of the proceedings was completed and sent through the commander - in - chief or senior naval officer to ORG . ORG could , at any time , review a finding of guilt , any sentence awarded in respect of such a finding and any finding by a court - martial that a person was unfit to stand trial or was not guilty by reason of insanity . This had to be done by ORG in the case of a court - martial as soon as practicable after the receipt of the record of proceedings ( section CARDINAL(CARDINAL ) of the DATE Act ) .

A convicted person could also petition ORG against the findings or sentence or both ( section CARDINAL(CARDINAL ) of the DATE Act ) . Having reviewed the petition , ORG could , inter alia , quash or alter findings , authorise a re - trial and annul , remit or alter sentences . However , those powers could be , and were normally , carried out by ORG or by any officer so empowered by ORG . Once an appeal was lodged with ORG , the review functions of ORG ceased . ORG

The Courts - Martial Appeal Court ( “ ORG ” ) was established by ORG DATE and was confirmed by ORG DATE . The ORG had the same status and , in essence , the same procedure as ORG and considered appeals from courts - martial . The judges of this court included ordinary and ex officio judges of ORG and such judges of ORG as were nominated by the Lord Chief Justice . There was no provision for an appeal against sentence only , although certain powers of revising such sentences , pursuant to an appeal against conviction , were available to the ORG . Once an application to the ORG was received by the Registrar of the ORG , ORG duty to review ceases .

The changes to the naval court - martial system brought about by this LAW are set out in the ORG ’s judgment in the case of ORG v. GPE ( [ ORG ] , no . CARDINAL , § § DATE , ECHR CARDINALXII ) .


Preliminary objection partially allowed;Violation of Art. 6-1

The applicants were born in DATE and DATE respectively . The first applicant lives in Batman and the second applicant is currently detained in FAC .

On DATE the applicants were taken into custody by policemen from the Anti - Terrorism Branch of the Batman Security Directorate on suspicion of their membership of an illegal organisation , namely ORG of Kurdistan ( “ the NORP ” ) .

On DATE the applicants were brought before the public prosecutor and subsequently the investigating judge , who ordered the applicants ' detention on remand .

On DATE ORG filed an indictment against CARDINAL accused persons , including the applicants . He accused the first applicant of membership of the ORG and requested the court to sentence him under LAW . The public prosecutor further accused the second applicant of carrying out activities aimed at breaking up the unity of the ORG and removing part of the national territory from the ORG 's control . The prosecutor requested the court to sentence him in accordance with LAW .

On DATE the constitution was amended and the military judge sitting on the bench of ORG was replaced by a civilian judge .

DATE and DATE , the court held CARDINAL hearings . On DATE ORG , which was composed of CARDINAL civilian judges , acquitted the first applicant of the charges against him . The court further found the second applicant guilty as charged and sentenced him to the death penalty under LAW . The death penalty was commuted to a life sentence .

On DATE ORG upheld the decision of ORG .


The applicant , Mr PERSON , is a GPE national , who was born in DATE and lives in GPE . He is represented before the Court by Mr J.H. GPE , a lawyer practising in GPE .

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

On DATE the applicant ’s ex - wife requested ORG ( arrondissementsrechtbank ) of GPE to establish a maintenance arrangement ( alimentatievoorziening ) for herself and the CARDINAL children born of their marriage . ORG acceded to this request and ordered the applicant to pay DATE amounts of maintenance both to his children and his ex - wife . The applicant lodged an appeal with ORG ( gerechtshof ) of GPE , which quashed the decision of ORG and reduced the amount of the applicant ’s maintenance obligations . As the applicant considered that the reasoning and calculations applied by ORG were both incorrect and incomprehensible , he lodged an appeal on points of law ( beroep in cassatie ) with ORG ( PERSON Raad ) .

In his advisory opinion of CARDINAL DATE , CARDINAL of the advocates - general ( advocaten - generaal ) of ORG recommended that the appeal be dismissed . A reply to this opinion was sent to ORG by counsel for the applicant on DATE . According to a stamp placed on the reply , it was received on DATE .

ORG ( civil - law division , PERSON ) rejected the appeal on DATE . The decision ( beschikking ) stated that the applicant ’s ex - wife had requested ORG to reject the appeal and that the advisory opinion of the advocate - general had also proposed that the appeal be dismissed . The decision did not mention that the applicant , or counsel on his behalf , had replied to that opinion or that account had been taken of that reply . In dismissing the appeal , ORG referred to LAW ( Wet op de Rechterlijke Organisatie ) according to which ORG , if it considered that a complaint did not provide grounds for overturning the impugned decision and did not require answers to questions of law in the interests of the unity or development of the law , could , when giving reasons for its decision , limit itself to that finding .

At the time relevant to the present case , LAW , “ ORG ” ) provided that neither the parties nor their representatives were allowed to address the court after the public prosecution service had presented its opinion ( LAW in conjunction with LAW . However , pursuant to LAW , simple notes ( eenvoudige aantekeningen ) contesting facts , which the parties believed had been presented incorrectly by the public prosecution service , could be submitted to the President of the court by the parties or their representatives .

In a judgment of DATE , ORG held that it was free to take cognisance of comments submitted in response to the opinion issued by the public prosecution service by one of the parties unless this ran counter to the requirements of due process , seen also in the light of the interests of the other party ( PERSON ( GPE ) DATE , no . CARDINAL ) .

A similar reasoning was adopted by ORG in a judgment of DATE ( GPE DATE , no . CARDINAL ) , in which it held , with reference to the ORG ’s judgment in the case of PERSON v. GPE ( judgment of DATE , Reports of Judgments and Decisions CARDINAL-I ) , as follows :

“ ... where LAW [ of LAW ] prevents parties from responding to the advisory opinion of the public prosecution service as they see fit , [ this provision ] should be deemed inapplicable as being incompatible with the provisions of LAW , as interpreted in the case - law of ORG ... ) . No restrictions other than those arising from due process , for instance in connection with the interests of the other party , apply to this document [ i.e. the reply to the advisory opinion of the public prosecution service ] . ”

In order to observe the principle of due process , ORG allowed a period of DATE for the submission of the response to the advisory opinion of the public prosecution service .

On DATE an amended LAW ORG entered into force , paragraph CARDINAL of which gives parties the right to submit written comments in reply to the advisory opinion issued by PERSON of ORG within DATE of the transmission of the advisory opinion to them .

At the time of the decision in the present case , DATE , the general practice of ORG was to mention in its judgment or decision that a reply to the advisory opinion had been submitted . This was established as general practice in an internal decision ( intern besluit ) of the civil - law division of ORG of DATE , but the practice existed even before that time . The internal decision was not published .


Preliminary objection (ratione temporis) allowed (substantive aspect, art. 2 and 3);Preliminary objection (ratione temporis) dismissed (positive obligations, art. 2 and 3);Preliminary objection dismissed (six month period);Violation of Art. 2 and 3 (procedural aspect);Not necessary to examine Art. 13;Remainder inadmissible;Pecuniary damage - claim rejected;Non-pecuniary damage - financial award;Costs and expenses partial award

Antonella Mularoni;Elisabet Fura;Ireneu Cabral Barreto;Jean-Paul Costa;Mindia Ugrekhelidze

The applicant was born in DATE and lives in GPE . She is the widow of Mr PERSON ( “ C.A. ” ) , who died on CARDINAL DATE .

On DATE martial law was declared in GPE following military intervention by the army .

On DATE , who was a teacher in the village of ORG , in the province of Artvin , surrendered to the police during a military operation and was taken into custody . He was suspected of belonging to the illegal organisation Dev - Yol ( PERSON ) . He spent DATE in custody at the headquarters of the gendarmerie in ORG and the following CARDINAL at the headquarters of the gendarmerie of the district of PERSON . C.A. , who was in good health at the time of his detention in both locations , was not questioned .

On DATE he was transferred to Artvin , where he was interrogated in a sports hall until the following DATE . On DATE , he was imprisoned in the martial law detention facility ( sıkıyönetim gözetim evi ) .

After having been taken ill on DATE , ORG was admitted to hospital in a pre - comatose state . On DATE , he was transferred by ambulance to ORG where he died on CARDINAL DATE .

According to the autopsy report drawn up on CARDINAL DATE , the following marks were found on the body of the deceased :

“ Abrasions measuring QUANTITY , going from the outside towards the inside of DATE ribs , the scabs of which were coming off ; on the right wrist and on the inside of the wrist , a purple mark in the form of CARDINAL parallel bracelets QUANTITY wide and on the mark , CARDINAL wounds , the scabs of which were coming off ; on the left wrist , the same mark , QUANTITY wide ; on the left side of the penis , a wound without a scab ; on the left foot , a wound with a scab measuring CARDINAL x QUANTITY , with , underneath , a bruise measuring QUANTITY ; CARDINAL wounds with scabs under the left knee , a wound with a scab measuring CARDINAL x QUANTITY inside the left tibia ... ; bruising on the top and lateral surface of the right foot . ”

Since the cause of death could not be established on the basis of this information , a conventional autopsy was performed . An examination of the skull and ribcage revealed “ ecchymosis measuring QUANTITY at the back , a large haematoma inside the cervical cavity ; an infection of the lungs ... ” A post - mortem examination was deemed necessary .

NORP In her complaint lodged with the public prosecutor on DATE , the applicant stated :

“ CARDINAL soldiers , accompanied by the village schoolmaster came to our house on DATE before the religious holiday . They took my husband away saying that the lieutenant wanted to talk to him . He was held at the village gendarmerie for DATE . During that time , I was able to visit him and he was well . He was then transferred to the gendarmerie in the district of PERSON ; I was no longer able to visit him . I was told that he remained there for DATE and was then taken to Artvin .... When they returned his body to me , I noticed abrasions and signs of injuries . His tongue was as big as that of an animal , CARDINAL of his teeth were broken , ... there were marks of torture all over his body . Before being arrested , he had been in good health . ”

According to the administrative investigation report ( idari tahkikat raporu ) of CARDINAL DATE signed by CARDINAL officers , during the course of a military operation on DATE C.A. had been arrested after having obeyed an order to surrender . On DATE he had been placed in custody at the ORG gendarmerie , where he remained for DATE . He spent DATE at the gendarmerie of the district of PERSON . During this period no sign of any health problem was recorded . On CARDINAL October CARDINAL C.A. was transferred to the police headquarters at Artvin where he was questioned . After having been held at the police headquarters for DATE , he was transferred , on DATE , to the surveillance facility ( FAC evi ) attached to the martial law command . According to the records of that establishment , no sign of illness had been noted upon his arrival . On DATE , at his request , he was transferred to ORG . The head physician at that hospital stated that he had asked GPE if he had been hit on the head or on the body ; C.A. allegedly replied that he had not . According to the report drawn up by the hospital , meningitis and pneumonia were diagnosed . DATE , the patient was transferred to ORG where he died on DATE . The report concluded that this was a “ natural death ” ( ecel ) .

On DATE CARDINAL police officers , GPE , GPE and GPE , were questioned as suspects by the martial law prosecutor . They were the police officers who had taken ORG statement on DATE in a room at the sports hall . The police officers stated that they had not subjected C.A. to any mistreatment and had not found any evidence against him during questioning . GPE stated that on DATE , when the report was being drawn up in the presence of GPE , the latter was groaning . When the police officer asked what the matter was , the applicant replied that he had caught a chill and that he had pains in his chest . The QUANTITY police officers stated that they had brought GPE to the gendarmerie on DATE , that on DATE he was to have been placed in the military prison at Artvin , but was detained in custody by the gendarmerie until DATE , notwithstanding the orders of the martial law commander .

On DATE , at the request of the PERSON public prosecutor ’s office , the body of GPE was exhumed in order to examine the deceased ’s skull . According to the report dated CARDINAL September CARDINAL drawn up by the forensic institute , the skull showed no sign of trauma , apart from separation at the right temporo - occipital suture .

According to the report of CARDINAL DATE issued by the GPE forensic institute upon completion of the post - mortem examination of samples of tissue taken from ORG body , the latter had died of pneumonia with spinal haemorrhaging ( subaraknoidal kanama ) having lasted DATE , and showed no signs of traumatic injury .

In an indictment dated DATE drawn up by the military prosecutor at the martial law command , the QUANTITY police officers ( see paragraph QUANTITY above ) on duty at the material time at Artvin police station were accused of having caused the death of GPE after torturing him . The prosecutor stated that the accused had interrogated C.A. in a sports hall instead of in the customary location and that they had concealed their names at the foot of his statement , in breach of the relevant regulations . He also referred to the statements of several witnesses who had seen C.A. on the premises of Artvin police station , once attached to the wall , his arms outstretched , and another time in a deplorable condition , paralysed and unable to speak .

The applicant joined the criminal proceedings brought before ORG No . CARDINAL attached to the martial law command ( “ the military court ” ) .

On DATE , a gendarme , GPE , examined as a witness before ORG , stated that he had “ maybe seen ” C.A. ’s interrogation but had not participated in it . He stated that he had not noticed any ill treatment during the interrogation , which had been conducted on the top floor of gendarmerie LOC or in the sports hall . He stressed that as commander of the gendarmerie centre ( jandarma merkez komutanı ) , his role was limited to appointing the interrogation team guards .

NORP The report of CARDINAL DATE , unanimously adopted by the plenary meeting of the forensic institute , reads :

“ On DATE , while in police custody , C.A. was taken to ORG in a comatose state . First aid was administered on the basis of the diagnosis of meningitis and pneumonia . On the following DATE , he was transferred to ORG in a comatose state , with hemiplegia on the left - hand side . He died on CARDINAL DATE . The ecchymoses noted at the autopsy revealed that violence and assault had been involved and that the party concerned had died of an intracranial haemorrhage . As regards the clinical presentation , a pre - existing underlying condition was noted which prepared the ground for the haemorrhage which was triggered by the trauma . Since a causal link has been established between the cranial trauma and the death , Articles CARDINAL or CARDINAL § CARDINAL of the [ NORP ] Criminal Code are applicable in the instant case . ”

The accused denied the charges against them throughout the proceedings . They declared that they had never had any contact with C.A. save at the start of the interrogation . Certain witnesses who had initially testified against the accused subsequently retracted their statements .

In a judgment of CARDINAL DATE , the accused were each sentenced to DATE and CARDINAL months’ imprisonment under ORG CARDINAL and CARDINAL § CARDINAL of LAW .

The accused , the applicant and the martial law commander appealed on points of law .

NORP In a judgment delivered on DATE , ORG quashed the first - instance judgment on the ground that the degree of responsibility of the other persons , notably officers and members of ORG ( PERSON , hereafter “ the LOC ” ) having taken part in the interrogation of GPE , had not been established and that the defence witnesses had not been heard .

After having conducted a more thorough investigation and having examined further witnesses , in a new judgment of CARDINAL DATE the first - instance court acquitted the QUANTITY police officers on grounds of insufficient evidence .

The applicant again appealed on points of law .

By a judgment of CARDINAL DATE , ORG again overturned the judgment at first instance . In its judgment it stated that the records of the ORG command contained no entry concerning ORG and that there was therefore no accurate information on the dates of his arrival or transfer or the identity of the officers in charge of his case . It added that , furthermore , the case file contained no details of the place and conditions of the initial interrogation conducted on DATE , or the actual conditions of the interrogation of CARDINAL DATE . It pointed out that even though the accused had stated that the deceased was not “ a significant suspect ” the fact that agents of the ORG had participated in his interrogation suggested the opposite . In the opinion of the court , the treatment subsequently inflicted on the party concerned confirmed this argument . ORG concluded that given that C.A. had been interrogated and tortured during his detention on the gendarmerie LOC and up until DATE by the accused and other persons whose functions had not been ascertained , the omissions in the investigation had to be remedied and , in particular , the gendarmes , the members of the ORG and any other persons present at the material time and place should be questioned .

On DATE GPE ’s recognition of the right of individual petition became effective .

The case file was returned to ORG , which , after having re - examined it in the light of numerous new witness statements , confirmed its decision of CARDINAL DATE acquitting the accused . It concluded that the act of torture had been committed DATE and DATE by persons other than the accused . It gave notice ( ihbar ) that a new investigation was to be opened by the PERSON public prosecutor ’s office . That decision became final on DATE .

The investigation and correspondence between the military courts and the PERSON public prosecutor ’s office continued . However , a gendarme , PERSON , examined as a witness on DATE before ORG , following a request for judicial assistance , stated that he had taken leave on DATE for DATE .

By an indictment of CARDINAL DATE , the prosecutor at ORG ( “ the ORG ” ) charged CARDINAL new accused , GPE and GPE , gendarmes at the PERSON gendarmerie , who had been examined as witnesses before the military courts ( see paragraphs DATE and CARDINAL above ) with the acts of torture having caused the death of C.A.

The applicant sought to intervene in the proceedings before ORG .

DATE hearings were conducted before this court . DATE or so witnesses were questioned , some following a request for judicial assistance . Some hearings were postponed as a result of problems in ensuring the appearance of witnesses who for the most part had been co - detainees of the deceased and present on the LOC on which he had been subjected to the torture . All the witnesses stated that they had seen C.A. being tortured and some stated that they had seen the accused at the scene of the crime .

At the hearing of CARDINAL DATE the applicant stated , inter alia , that her husband had been unrecognisable when she saw him at ORG . She filed a complaint against the first doctor who had examined him in PERSON and who had drawn up a certificate , which , according to her , was untruthful , concealing ORG condition .

By a decision of CARDINAL DATE ORG sentenced both of the accused to DATE and CARDINAL months’ imprisonment under Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL of LAW . They were also banned from public office for DATE .

On an appeal by the accused , ORG overturned that decision in a judgment of DATE on grounds of shortcomings in the investigation . An inconsistency between the leave dates of the accused needed to be resolved and verification was required that the dates on which the witnesses and C.A. had been detained actually did coincide .

After having remedied the shortcomings highlighted by ORG , ORG decided , on DATE , to acquit both of the accused on grounds of insufficient evidence .

The applicant appealed on points of law against that decision .

By a judgment of DATE , ORG overturned the decision on the ground that under LAW NORP ] Code of Criminal Procedure , the accused , who were officers at the material time , could not be tried without authorisation from ORG .

By a decision of DATE , ORG suspended the proceedings for the same reason .

The authorisation in question having been granted by ORG on DATE , a new indictment was issued on the following DATE in respect of the same CARDINAL accused , this time by ORG at ORG .

During these proceedings , around QUANTITY hearings were held . As they had done previously , the accused denied any responsibility in the death of GPE , stating that they had never taken part in his interrogation . PERSON stated that on DATE in question he had been involved in operations in the PERSON and GPE , and PERSON stated that he had been on leave . The same witnesses ( see paragraph CARDINAL above ) were examined again , some following a request for judicial assistance , and repeated the statements made at the start of the proceedings .

On DATE ORG delivered its judgment , referring in particular to the testimony of the co - detainees who had been present at Artvin police station at the same time as FAC of these witnesses stated that they had seen C.A. naked , attached to the radiator , wet and trembling , with injuries to his hands and wrists . CARDINAL of them stated that officer PERSON had threatened them , pointing at C.A. and saying “ Look at what has happened to him ; if you do n’t sign , the same thing will happen to you . ” A detainee who had been in the neighbouring cell stated that he had heard C.A. moaning constantly , that in the evenings they would take him away for questioning naked , and that officers PERSON and GPE and CARDINAL men in civilian clothing would beat him in the middle of the room as a lesson to the others . Another witness stated that he had seen PERSON and others beat C.A. with truncheons while he was lying on the ground in a pool of water , all the while continuing to spray him with water . He stated that he had heard the sound of a magneto ( a magneto - electric machine ) and the delirious voice of C.A. uttering the names of his children , unable to walk , his body covered in wounds . These eyewitnesses stated that they had generally had their eyes covered but that sometimes the blindfold had come off , or they had recognized the ORG voices . CARDINAL other detainee witnesses stated that they had seen that the applicant had been tortured , but did not know who had done it . The court considered that the testimony of the co - detainees was only partially credible given their status as detainees and the fact that they would normally have had their eyes covered . In the reasons for the judgment , the court observed that the leave records relating to GPE kept by the gendarmerie command had been falsified and declared that his statements were not credible . As for GPE , the court pointed out an inconsistency between his statement of CARDINAL DATE ( see paragraph CARDINAL above ) and his subsequent statements . According to the court , the accused were indirectly responsible for the death of C.A. It added that “ a team of CARDINAL civilians ” had also taken part in the interrogations , but gave no details of the identity , function or action of these QUANTITY individuals . It concluded that it had not been definitively established that the accused had themselves tortured the deceased but that they had acted as accomplices to the illegal act by issuing orders ( talimat vermek ) , by procuring the LOC ( yer tedarik etmek ) and by failing to intervene [ to prevent the illegal act ] ( göz yummak ) . It found that the accused , together with civilians , had participated in the interrogation of GPE and that the latter had died as a result of his pre - existing condition ( önceki hastalığı ) and as a result of the torture inflicted by one or more of these civilians whose identity could not be established . The court sentenced PERSON and GPE to DATE and DATE imprisonment under ORG CARDINAL and CARDINAL § CARDINAL of LAW . The court accepted CARDINAL mitigating circumstances to reduce the sentences : the personality of the accused as evidenced by the case file ( dosyadaki kişilikleri ) and the fact that they were mere accomplices ( fer’î fail ) rather than the main perpetrators of the crime .

The accused officers and the applicant appealed on points of law .

By a judgment of CARDINAL DATE , ORG upheld the judgment of ORG .

On DATE ORG rejected an application for “ rectification of the judgment ” ( karar düzeltme ) lodged by the convicted officers .

On DATE the officers applied to ORG for renewal of the judgment ( yargılamanın yenilenmesi ) , an exceptional review procedure . The result of this application , accepted by ORG for consideration on the basis of various written testimonies submitted by civilians and military personnel and a letter from ORG command , was that execution of the sentences was suspended .

At the request of the accused , ORG gave a decision on DATE referring a matter concerning the discriminatory nature of a provision governing the content of an amnesty law to ORG .

By a decision of DATE , ORG declared that the provision in question was by no means unconstitutional .

By a judgment of DATE , after having heard new defence witnesses , notably CARDINAL officers , ORG dismissed the application lodged by the CARDINAL officers on the ground that the new evidence was not such as to create a favourable situation for the convicted officers . It lifted the stay of execution of their sentences .

The officers finally referred their case to the Minister of ORG for the latter to lodge an appeal with ORG ( GPE emir ile bozma ) against their conviction . Having accepted their application , on DATE the Minister of ORG ordered ORG at ORG to lodge an appeal in the interests of the law on the ground that the evidence had not been properly assessed by ORG .

By a judgment of DATE , ORG dismissed the ORG application .

NORP The officers continued to serve in the army throughout the proceedings until their retirement . Their sentences have not been executed to date .

The relevant parts of the above - mentioned provisions of LAW in force at the material time read as follows :

“ ... any public servant who tortures an accused or employs cruel , inhuman or degrading treatment to make him confess to a crime shall be liable to a maximum term of DATE imprisonment plus a permanent or temporary ban on holding public office . ... ”

” Should death occur as a result of assault or violence inflicted with no intent to kill , the perpetrator shall , in the cases listed in LAW ... be liable to a minimum term of CARDINAL years’ imprisonment ...

Where death results from circumstances which had existed prior ... to the offence and were unknown to the offender or from chance circumstances that the offender could not foresee , he shall , in the cases listed in LAW , be liable to a minimum term of CARDINAL years’ imprisonment ... ”

Article CARDINAL of LAW provides that where a claim of unconstitutionality is referred to a court by one of the parties to the proceedings , and where that court considers that the question should be referred to ORG , that referral shall suspend the proceedings before it for DATE . If ORG fails to reach a decision within that period , the court shall deliver its judgment under the existing legal provisions . However , if ORG gives a ruling before the lower court has given its final decision , the lower court is obliged to comply with it .