Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Inhuman punishment;Inhuman treatment);Violation of Article 5 - Right to liberty and security (Article 5-1 - Security of person);Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman punishment;Inhuman treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);No violation of Article 14+2 - Prohibition of discrimination (Article 14 - Discrimination) (Article 2 - Right to life;Article 2-1 - Life)

The applicant , PERSON , who was born in DATE , is a NORP citizen and lives in GPE , a village in GPE of the province of GPE in LOC GPE . Her application is brought on behalf of herself , as well as of her CARDINAL sons , GPE ( DATE in DATE ) and PERSON ( DATE in DATE ) and her grandson PERSON , who have allegedly disappeared in circumstances engaging the responsibility of the State .

The facts surrounding the disappearance of the applicant ’s CARDINAL sons and her grandson are disputed . The facts presented by the applicant are contained in LAW below . The facts as presented by the ORG are set out in LAW .

A summary of the documents that are submitted by the applicant and the Government in support of their assertions and the evidence gathered from the witnesses at hearings conducted in GPE by the ORG is given below in Part C.

On DATE at TIME , CARDINAL soldiers from ORG raided the applicant 's village . Leaving their vehicles at the entrance of the village , they arrived on foot .

The soldiers went round the houses to wake villagers up , telling them to gather by the mosque and to bring their identity cards with them . When CARDINAL villagers gathered by the mosque , the soldiers collected the identity cards of the male villagers . The women and children were sent home , as a result of which they were not able to witness what happened next . According to what the applicant was told by the male villagers who were present , the soldiers carried out an identity check by calling out the ORG names CARDINAL by CARDINAL from a list . Thereafter , the soldiers gave back the villagers’ identity cards except for those of FAC , PERSON , PERSON , PERSON and PERSON ( the applicant 's son ) . These CARDINAL villagers were told to stand aside . The identity card of GPE ( the second son of the applicant ) was initially returned but he was immediately called back and sent to join the other CARDINAL .

NORP The soldiers left the village , taking these CARDINAL villagers into custody . Witnesses confirmed that the detainees were taken to ORG . It is alleged that PERSON , PERSON and PERSON were ill - treated there .

It appears that , on DATE of their custody , the soldiers separated GPE and PERSON from the other detainees saying that they were releasing the CARDINAL brothers and would release the rest of them as well .

On DATE , the other CARDINAL villagers were released . When they returned home , they were surprised to find that GPE and PERSON had not come back although they had been released .

After DATE subsequent to the detention of her sons , the applicant contacted a villager who had been released from ORG , where she believed her sons had been detained . Upon the applicant ’s description of her sons , the villager affirmed that he had been detained with CARDINAL brothers , who corresponded to her description .

The applicant also met another villager released DATE from custody at ORG . When the applicant described her sons and asked whether he had seen them , this villager confirmed that he had been detained with someone who resembled GPE .

The applicant was told by witnesses that , on DATE , GPE 's son PERSON ( i.e. her grandson ) was taken away by security forces from the garden of their family house . PERSON , who was DATE at the time of the events , is visually impaired ; he can not see at all at night and his vision is limited to QUANTITY in daylight .

The applicant has made several applications in search of her sons and grandson . She went to ORG on CARDINAL occasions and asked about them . She was told that they could not help her . The applicant is elderly , lives in a village and can not speak NORP . This limits the enquiries she can make . Her daughter , PERSON , who lives in GPE , submitted verbal petitions to ORG . She was given a verbal reply to the effect that her brothers and nephew ( i.e. the applicant 's sons and grandson ) were not in custody .

The Government state that the applicant ’s sons and grandson were not taken into custody by the security forces and deny that an operation had been conducted in Dernek on DATE by the security forces . They note that this village did not fall within the zone between GPE and ORG districts in ORG , where military operations were conducted DATE . In this respect , the Government refer to custody records that do not mention the names of PERSON , PERSON and PERSON and to the testimonies of CARDINAL villagers from Dernek , who confirm that no operation was carried out in their village on DATE .

A full scale investigation based on the applicant ’s allegations was first initiated by FAC and later a preliminary investigation was initiated by the ORG public prosecutor under file number CARDINAL . The village muhtar PERSON and another habitant of the GPE , PERSON , were heard by the gendarmes on DATE . Another subject living in Dernek , PERSON , stated before the gendarmes that he did not remember any operation taking place in his village and those names read to him had not been detained as alleged . The public prosecutor of ORG heard on DATE PERSON , PERSON , PERSON and PERSON as witnesses in this case .

The ORG also maintain that there are strong grounds to believe that the applicant ’s sons , GPE and PERSON , have moved to GPE , where they have relatives .

The parties submitted various documents concerning the investigation following the disappearances of PERSON , PERSON and PERSON .

The custody records of ORG concerning tthe period between DATE and DATE show that PERSON had been taken into custody on DATE and released on DATE .

NORP The custody records of ORG and ORG in GPE for the period DATE do not contain the names of PERSON , PERSON and PERSON .

Upon the request of the Commission delegates the Government submitted the plan of ORG . The plan includes the ground floor , the first floor and the second floor , whereas it does not contain the basement .

The second commando regiment reported that DATE military operations had been conducted in PERSON , PERSON , Daltepe , Mizagül Dağı , PERSON and GPE regions , situated between GPE and Lice Districts , in the LOC province . According to this report , Dernek and ORG villages , albeit near , remained outside the operation area .

In this statement , the witness was asked about his knowledge and observations as regards PERSON allegations as stated in her application to ORG . He replied that he did not recall whether or not an operation had been carried out in the village on DATE . He maintained that FAC , PERSON , PERSON and PERSON had not been taken into custody . He further stated that these persons were not actually living in the village .

In his statement , the witness was asked about his knowledge and information about the allegations of PERSON as stated in her application to ORG . In reply , the witness stated that he did not remember an operation being conducted on DATE . He stated that the persons mentioned in the application had not been taken into custody by the security forces .

In his statement , the witness explained that DATE soldiers had come to Dernek and questioned the villagers about terrorists who made frequent visits to the village . Subsequently , he was arrested together with PERSON , PERSON , PERSON , PERSON and PERSON and taken to ORG . The witness explained that , on their arrival , the soldiers blindfolded them and placed them all in the same room . On DATE of their detention they were taken to another military base in ORG and released from there . According to him , PERSON and GPE had been released DATE . The witness further maintained that no one had been ill - treated in custody . He had not seen PERSON PERSON or GPE after their release and had no information concerning PERSON ’s disappearance .

The witness explained that DATE , on a DATE , early in the morning , soldiers had come to their village , carried out an identity check and arrested PERSON , PERSON , PERSON , PERSON , PERSON and himself . They were then taken to ORG , together with some other detainees from neighbouring villages . At the boarding school , they were all blindfolded and put in a room close to the hamam , in the basement of the building . The witness maintained that during the TIME they spent in custody , the detainees were not interrogated by the soldiers . They were released from the Regiment on DATE , whereas GPE and PERSON had already been released on DATE . He had no information on their whereabouts or on PERSON disappearance . Moreover , he had not heard or seen PERSON and PERSON being ill - treated in custody .

In his statement to the public prosecutor , PERSON stated that DATE , soldiers had come to their village and asked the villagers to gather by the mosque . The soldiers then separated PERSON , PERSON , PERSON , PERSON , PERSON and himself from the others and took them to ORG . The witness stated that there had also been other detainees from neighbouring villages . The soldiers kept the detainees in the basement of the boarding school for DATE and DATE . According to the witness , GPE and PERSON had been released on DATE and the remaining detainees , including the witness , on DATE . The witness stated that GPE had a taxi and had been travelling quite frequently . The witness further maintained that DATE subsequent to their detention , a new operation was carried out in GPE , after which GPE ’s son PERSON also disappeared . PERSON stated that his eyes were blindfolded while in custody but , as there were no soldiers in the room , the detainees were able to communicate with each other . He also maintained that no one had been ill - treated while in detention . The witness finally stated that he had no idea as to the whereabouts of the CARDINAL brothers .

The documents contain a description of steps taken by PERSON in her search for her relatives .

On DATE PERSON filed CARDINAL petitions with ORG asking whether her brothers , who had been taken away by the security forces on DATE , were actually held in custody . She only received a verbal reply to the effect that they were not in custody . The same day she filed another petition with the public prosecutor as regards the disappearance of her nephew , PERSON . Again , verbally , she was told that PERSON was not in custody .

In her statement to the ORG , PERSON stated that she had been living in the village of Dernek , in GPE , ORG and gave the following account concerning the disappearance of her CARDINAL sons , PERSON and PERSON , and her grandson , PERSON .

On DATE soldiers from the ORG raided their village and told the villagers to gather by the mosque . An identity check was carried out and , subsequently , the women and children were sent home . Hamsa could therefore not see what followed . According to what she heard from other villagers , the soldiers arrested FAC , PERSON , PERSON , PERSON and her CARDINAL sons PERSON and PERSON , and took them to ORG . Hamsa was told that her sons had been released on DATE of their detention and the remaining detainees on DATE .

After DATE following the detention of her CARDINAL sons , PERSON met a villager who had been detained with her sons . Upon her description , the villager told PERSON that he had seen her sons in custody . He also said that he had been ill - treated in custody like almost everyone who had been there .

Subsequently , PERSON met another villager released from ORG DATE . This villager told PERSON that , while in custody , he had seen someone who could have been GPE and who seemed to be in suffering due to ill - treatment . This villager confirmed that he had last seen the person who resembled GPE at ORG .

According to what PERSON was told on DATE , GPE ’s son PERSON had also been taken away by the security forces from the garden of their house .

Hamsa further stated that she had requested information from ORG as regards her CARDINAL sons and her grandson . In reply , she was told that the ORG Commander could do nothing to help her . Moreover , PERSON daughter , PERSON , filed CARDINAL petitions with ORG , who informed them that PERSON and PERSON were not in custody . PERSON stated that she was concerned that her sons might have been killed in custody by security forces .

The Commission conducted CARDINAL hearings in GPE DATE and DATE and took oral evidence from CARDINAL witnesses . The evidence of the witnesses may be summarised as follows .

The applicant , who was born in DATE , was currently living in GPE . At the time of the events , she was in the village . She confirmed that she had lodged a petition with ORG ( ORG ) about the disappearance of her CARDINAL sons , PERSON and PERSON , and her grandson , PERSON . She further stated that she had instructed PERSON to represent her before ORG .

In DATE PERSON was living in Dernek in his own house situated opposite that of the applicant ’s . He was married and had CARDINAL children . PERSON , who lived with the applicant , was preparing for his military service . The applicant had also CARDINAL more daughters . PERSON was GPE ’s son and lived with his father .

On DATE of the incident , early in the morning , leaving their vehicles at the entrance of the village , soldiers came to the village on foot . They ordered the villagers to gather by the mosque . The applicant assumed that these soldiers came from ORG . They carried out an identity check . Making CARDINAL of the villagers stand aside , including the applicant ’s son PERSON , they told the rest of the villagers to return home . Although the soldiers released GPE at first , they called him back TIME and ordered him to join the group of CARDINAL .

From a distance , the applicant had seen PERSON and GPE being arrested . The soldiers ordered the detainees to strip naked to search them . When they left , the applicant tried to follow but was blocked by QUANTITY gendarmes . Later , she heard that the detainees had been taken to the regional boarding school . On QUANTITY occasions , she went to the commandos from FAC and asked about her sons . She was referred to the ORG .

The applicant explained that ORG was partially used by the military . The building housed students and teachers as well as soldiers . According to what the applicant had heard , her sons had been released DATE of the rest of the detainees , who showed surprise at not seeing GPE and PERSON in Dernek on their return .

The applicant had also heard that her sons suffered ill - treatment in custody . Some other detainees claimed seeing them in wet clothes .

When the applicant went to see ORG , a captain received her . The mayor of the village accompanied her , as she could not speak NORP . The captain told the applicant that he had no information about her sons , but that it was possible that gendarmes from the Bolu region might have information about this incident . However , when she visited the commander a second time , the gendarmes from Bolu were not mentioned .

The applicant explained that GPE had disputes with some of the villagers . He had been taken into custody DATE before his disappearance , on his way home from a wedding . She was told that a young man , called Cihat , son of the village mayor at the time , denounced GPE to the gendarmes . When GPE was released from custody DATE , he accused the mayor , PERSON , of spying on him and the mayor had to leave the village . The applicant further claimed that , when she went to ORG in search of information on her sons , she came across ORG , who told her that PERSON had been killed and that GPE was in the hands of the soldiers .

DATE after the disappearance of her sons , the applicant learned that her grandson , PERSON , had been arrested by the soldiers . She was not in the village at the time of the incident , but was told that PERSON had been taken away from their garden by soldiers . The applicant explained that she was concerned about her grandson ’s fate as he suffered from poor health .

The witness , who was born in DATE , was the applicant ’s daughter . She lived in GPE , where she had moved DATE . She gave the following account as regards the disappearance of her CARDINAL brothers and her nephew . At the time of the events , her brothers , PERSON and GPE , lived in GPE . GPE lived with his family in a house close to their mother 's and PERSON lived with his mother . DATE before the alleged incident GPE had been arrested on his way home from a wedding , upon a complaint filed against him by a young man . The witness had last seen her CARDINAL brothers DATE prior to their disappearance , when they brought her belongings to ORG . The witness explained that the family had no enemies in Dernek and that there was no conflict within the family .

On DATE towards TIME , she received a telephone call from GPE , the son of PERSON . GPE told her that CARDINAL people from the village had been arrested including his father and her QUANTITY brothers . She went to Dernek immediately .

She reached the village that TIME , and was told by her mother that the soldiers had raided the village in TIME , searching all the houses and ordering everyone to gather at the square by the mosque bringing their identity cards . The men and women had been separated . After an identity check , CARDINAL men were set apart , including PERSON . These CARDINAL men were stripped naked and searched .

According to her mother ’s account , there had been CARDINAL soldiers . The villagers also told her that there had been different types of soldiers ; the first group wore blue berets , while those in the second had none . She was further told that the soldiers had then gone to GPE ’s house to arrest him as well . The detainees were then taken away on foot . Although her mother and some other villagers tried to follow the group , they were told to turn back . The testimony of other villagers confirmed her mother 's story .

The witness explained that she had stayed in Dernek for DATE and then returned to ORG . DATE , when a minibus driver coming from PERSON told her that CARDINAL of the detained villagers had been released , she went back to Dernek .

In Dernek , she spoke to PERSON , released from custody that DATE . He told her that her brothers had been released DATE . PERSON also affirmed that they had been taken to the boarding school together and kept there blindfolded until TIME DATE . He recalled that first PERSON and then GPE had been taken away for interrogation . He told the witness that PERSON had been ill - treated and a statement had been taken from him . GPE did not mention what happened to GPE , though he told the witness that PERSON and GPE had been taken away . He did not know where they went but when he was given back his identity card , he got the impression that the CARDINAL brothers had already been released .

The witness submitted that apart from the CARDINAL villagers , a crippled man , also detained in the regional boarding school , had seen her brothers . A minibus driver , who drove this person to his house after his release , informed the applicant that there was someone who had seen her brothers in custody . Consequently , the witness went to see this man , who told her that he had been detained with CARDINAL brothers . The man said that CARDINAL of the brothers told him that he came from a village , which was not Dernek . He recalled that although he had not spoken to the other one , he had the chance to see both of them from beneath his blindfold . He described CARDINAL as a bit on the short side , plump and balding , and the second as very slim . The witness decided that the first description corresponded to GPE and the second to PERSON .

NORP Moreover the witness learned from her mother that a certain GPE , also detained in FAC , told her mother that he and GPE had been chained together in prison for DATE . GPE had been more or less unconscious and had kept repeating the name of his daughter .

The witness further explained that DATE after the arrest of her brothers , her nephew PERSON , GPE 's son , had also been arrested . At that time she had been in the village . In TIME his mother put PERSON on a donkey and sent him to the fields . PERSON did not come back . TIME , they were contacted by a relative who claimed she saw PERSON being taken away by soldiers from the field along with CARDINAL other women . The witness recalled that the soldiers had passed through the village on DATE when PERSON was arrested .

The witness maintained that her mother had tried everything to locate her sons . She explained that she , herself , applied to ORG , where a lawyer prepared petitions for her . She took these petitions to ORG , who verbally replied that these people were not in custody . The petitions were not registered and nothing was written on them . However , she was given a paper and told to go to the security forces .

The witness was a non - commissioned senior gendarme sergeant . He was commander of the central gendarme station in ORG at the time of the events . He explained that in DATE , ORG was a very considerable ORG activity area , and the gendarmes from ORG paid frequent visits to the villages in and around the district . Military units , which came from time to time to ORG were lodged at the regional boarding school for a period of DATE . These units participated in operations with the gendarmes . However , they were under the command of their own unit commander , who generally held a higher rank than the district gendarmes commander . The witness explained that prior to an operation , the CARDINAL units studied maps of the area and shared out tasks . Before such a unit arrived or left the region , a written message was sent to all other units who had to ensure their security .

During operations all soldiers wore the same uniform for security reasons , including the commandos , who normally wore “ blue berets ” When gendarmes paid a visit to a village , they acted in accordance with the orders received . Sometimes they just talked to villagers to warn them not to support or help the ORG .

The witness stated that CARDINAL villages were within his jurisdiction . He dealt with their judicial and security problems , taking over the duties of the police . He recalled having gone to Dernek a couple of times , as it was his duty to visit the villages frequently . There were a few ORG supporters in that village and he had heard about PERSON . He explained that if GPE and PERSON had been taken into custody , their names would definitely appear in the custody records .

When soldiers planned to enter a village , the superior commander was immediately informed by a written message , which indicated the number of persons who would take part in the operation and the leader of the group . All messages were registered . They also kept a logbook , in which all incidents were recorded , if necessary , TIME . To verify whether soldiers had been to Dernek on DATE , it would suffice to check records , which would indicate exactly where the gendarmes had been on DATE . The soldiers lodged in the regional boarding school also kept records as they assisted gendarmes during operations .

The witness further submitted that the district gendarme headquarters had custody facilities for CARDINAL detainees . If there were more , they were put in an office under the supervision of a soldier . Detainees were initially kept in the offices and then placed in the detention area . At that stage , their names were not registered . Following the interrogation , if it was established that the detainee had committed an offence , he was transferred to ORG office . If not , he was released . The commando units did not have the authority to take people into custody . If they found a person who had committed an offence , they would hand this person over to the gendarmes .

There were no detention facilities at ORG . If an army unit , based at the boarding school , took part in an operation with the gendarmes and arrested a number of villagers , then it could be possible that these people were first brought to the regional boarding school before being referred to the gendarmerie .

If the military found people on the “ wanted ” list during an identity check , they had to inform the gendarmes by phone or radio who would then take over . When placed in detention , a person ’s name would be registered in a custody ledger book and he would be searched . Only after these steps , could he be placed in custody . Some detainees might be referred to the intelligence unit of the gendarmerie in ORG for further investigation .

The witness , who was a captain at the time of the incidents , was commander of ORG . He was based in ORG DATE and DATE .

DATE . The witness , who knew ORG , had never actually entered it , though he had passed by frequently . Dernek was known to give considerable support to the ORG . He had not met PERSON personally although he had heard that the PERSON family had connections with the ORG . He recalled that PERSON was a name used by several families , not all of whom were ORG supporters . On the dates in question he had not taken part in an operation where suspected terrorists had been arrested or detained .

All military units , when engaged in an operation , sent a message or an operation information form / pro forma document indicating the time , place and purpose of the operation and the units that would be involved in it . This was conveyed to the superior officer . Such operations should be distinguished from the regular visits made by gendarmes to villages for administrative and judicial purposes . When the witness received information on terrorist presence in the area , he had to complete a pro forma message for his superiors . Whenever someone was taken into custody , be it during an ordinary visit or during an operation , soldiers had to inform their superior of this . Anyone taken into custody was registered in the ledger and the public prosecutor was subsequently notified .

Lice consisted of a settlement area involving CARDINAL villages divided into CARDINAL sections and each section was attached to a gendarme station . There were CARDINAL gendarme stations under the command of the witness , including the central gendarme station commanded by PERSON and to which Dernek was attached .

From time to time military units were based in the regional boarding school . In general , the gendarmes alone were responsible for security in rural areas . However , if the forces were insufficient to control a particular situation , reinforcements would be requested and infantry or ground forces deployed in the area . In joint operations , the most superior officer of the participating units would take command . Although the witness was independent in the execution of his administrative / judicial powers , he nevertheless had responsibility towards the Governor for his administrative acts and to the district public prosecutor for judicial ones .

The reinforcement units could never perform the gendarmes ' judicial duties . If these units went out on an operation in the mountain areas and found a suspect , they would wire the gendarmes to check whether the individual was wanted and , if so , then could bring him in . The reinforcement units had a totally different system of records and , as far as the witness knew , did not use service ledgers or custody records , given that they had no judicial functions to perform . During operations , the “ blue beret ” gendarme commanders removed their caps and wore normal army caps for camouflage .

The witness did not accept that anybody detained during a joint military and gendarme operation could be taken even temporarily to the regional boarding school . He explained the difference between taking a person into custody and putting him in a custody room . To render a suspect ineffective and perform a body search , the witness had the authority to keep the person near him , for example in the cafeteria under guard . That suspect might then be released within TIME . Such a person would not be put in a custody room and therefore would not be mentioned in a custody ledger . The witness said that this was “ taking somebody in for observation ” and not custody . The suspect ’s statement would be taken and , if guilty of an offence , he would be put in the custody room and mentioned in the ledger . If someone was clearly dangerous and required interrogation or was to be kept TIME , he would definitely be placed in the custody room and registered in the ledger . However , if somebody were to be sent straight to ORG for interrogation for terrorist offences , he might not be mentioned in the ORG records . As there was no interrogation unit in ORG , people were sent to ORG or sometimes an interrogation team was invited to come to ORG . Sometimes a person 's interrogation would reveal other names , in which case ORG might request their arrest and dispatch to ORG .

The witness further explained that he had not checked the records before coming to the hearing and did not remember exactly what he was doing on CARDINAL DATE . However , he had checked that he had not been in GPE on DATE . He could not recall anyone who had asked information about their relatives in detention . He had no comment on the fact that some people had disappeared in the Lice area in DATE .

The witness stated that he had been commander of ORG in DATE . His whole unit consisted of CARDINAL men . Mr PERSON was his district commander and PERSON , his station commander . His job was to secure an area . The administrative and judicial tasks were performed by other gendarmes . He had never seen commandos search or detain people or carry out identity checks . The “ blue berets ” of the commando units were not used in operations as they were too conspicuous .

DATE . It was possible that commando units based in the regional boarding school be sent out on an operation . There was a unit of CARDINAL soldiers stationed at the regional boarding school to ensure security in the region , given the number of schools that had been burned down . ORG units did not keep separate written records or DATE service ledgers . They reported to the superior officer after completing their activities . If they had taken part in an operation , it would be indicated on the operation pro forma beforehand . However , the preparation of this form was not his task but that of the district gendarmes commander . His duty was training and exercise of his men . Anyone caught by his forces would be taken directly to the gendarmes headquarters . The district gendarmes had exclusive authority to detain people .

He knew the village of Dernek but had never actually gone into it . He had passed by . He had not participated in any operation in that village around DATE . It would be difficult to say which units had been involved in such an operation . If it was a major operation , then all the commando units in the area would have participated ; otherwise , it would have been just the local gendarmes .

The witness lived in Dernek . He knew GPE and PERSON , both fellow villagers . GPE was married and had QUANTITY children ; he lived in a house close to his mother ’s , near the mosque . He owned a taxi and was occasionally away from the village . PERSON was a bachelor and lived with his mother .

On DATE , CARDINAL gendarmes came to the village on foot early in the morning . The villagers were already up for their TIME prayers . The witnesses could not recall whether the soldiers were commandos or gendarmes from ORG . He did not recognise any of the gendarmes or their commanders . He stated that , before DATE , when soldiers came to the village , they had gone straight to the mountains in search of terrorists . The villagers had not been disturbed .

The witness could not remember exactly on DATE they had been detained . He thought it might have been a DATE . On DATE of the operation , the soldiers ordered all the villagers to gather by the mosque . They took everyone ’s identity cards and compared the names with a list . The soldiers then returned most of the identity cards except for those of PERSON , GPE , PERSON , PERSON , PERSON and himself . The rest of the villagers went home . The soldiers also searched the houses , and subsequently took the CARDINAL villagers directly to the regional boarding school on foot .

The witness said they were not blindfolded at first . They walked to the boarding school , which he knew well as his children had studied there . He confirmed that part of the building was used by the military . At the school they were blindfolded , but their personal belongings were not registered . Neither did they undergo a medical examination .

They were kept all together in the basement of the building near the toilet and washing area . Their hands were free but their eyes were blindfolded The witness asserted that he knew PERSON and ORG had been with him because they sat side by side and could talk quietly . At night they slept on chairs . They were given bread , biscuits and water .

During their detention no explanation was given as to the reason of their arrest . He was the only one to be interrogated . He was asked whether his son had joined the guerrillas in the mountains and he told the soldiers that his son was in GPE . Then he was asked about his son ’s precise address ; he told the soldiers that he did not know and was released . The soldiers only took his statement . He emphasised that no one had been ill - treated while they were in the boarding school .

The witness stated that they had stayed at the school for DATE . The soldiers released GPE and PERSON on DATE . He had heard someone say " PERSON , PERSON , take your identity cards , you 're free " . The others stayed TIME in the boarding school . On DATE the rest of the detainees were taken to the regiment on the border of ORG and released from there . The witness could not make out whether the soldiers were commandos or army regulars . A helicopter came and they were told that the villagers from Dernek were to go out . They were then told that they were free . The witness and the other detainees went to the ORG station DATE to get their identity cards back . The witness explained that the ORG gendarme station and the regiment were distinct organisms .

When the witness returned home , the villagers asked him about PERSON and GPE . He told them that PERSON and GPE had already been released . The witness stated that he never said to PERSON that either he or her sons had been ill - treated .

Tahsin had a son , called ORG . The witness had not been in the village at the time when PERSON disappeared . When he returned , he was told that PERSON was not in the village any more .

The muhtar of Dernek in DATE was PERSON . He was a neighbour of the witness , who also knew the muhtar ’s son , Cihat . Although Cihat had not been taken into custody , he had followed the group to the regional boarding school . When the soldiers asked him why he was coming with them , Cihat answered that he had lost his identity card and wanted to have a new one issued . He consequently went with the detainees to ORG . The witness had not seen him after DATE . Cihat was not kept with the detainees at the regional boarding school .

The witness lived in Dernek and was in the village during the incident of CARDINAL DATE . GPE and PERSON were sons of his uncle 's daughter , PERSON .

NORP In DATE before they were taken into custody - GPE had been arrested during the wedding of the NORP son in the district . The witness explained that some men had come and taken GPE away and released him DATE . He did not know the reason of this arrest .

In DATE the witness was in the village when the operation took place . According to the witness there were around CARDINAL soldiers , some of them commandos , though he could not be sure . The soldiers gathered the villagers and carried out an identity check . A soldier had a list of names but the witness could not see the list . The soldiers separated QUANTITY or CARDINAL villagers and the witness from the rest and took them to ORG . GPE and PERSON were amongst those arrested . The soldiers also brought people from other hamlets . The witness could not remember how many detainees there were in total . The detainees were taken to the square near the school on the lower side of the village . The soldiers searched all the houses . From the square they were taken on foot to ORG . As soon as they were inside the building , they were blindfolded . In the boarding school there were students as well as soldiers . From the room where they were kept , the detainees could hear the children talking outside .

When they arrived at the boarding school , the soldiers did not take down their details or enter their names in a register . Their identity cards were not given back . They were taken to the basement of the building near the toilet and washing area . They were all kept together in the same room , together with villagers from other hamlets . There were no chairs or tables in the room . The floor was concrete and they sat on the floor . They were all blindfolded . PERSON and GPE were in the same room with the witness , sitting next to him . The witness was not interrogated . The detainees managed to talk quietly to each other although it was forbidden . When necessary , the detainees collected money and the soldiers bought food for them . The witness gave some money to PERSON and asked him to give it to a soldier to buy bread . A soldier brought them bread . However , they never talked about why they had been taken into custody .

According to the witness , they were taken out CARDINAL by CARDINAL to give statements . The soldiers did not question him , but the witness confirmed that GPE and PERSON had been taken for questioning . However , he had no knowledge as to what they had been asked about . The witness stated that he could not recall how many times the CARDINAL brothers had been taken away for interrogation .

The witness submitted that he had not been subjected to ill - treatment whilst he was held in the regional boarding school . For TIME they waited in the room and were then taken to the regiment and released from there . The witness continued that he had not heard anyone else being ill - treated . However , he stated that he had not seen anything because of the blindfold . GPE had been sitting next to him and PERSON coat lay near him . The soldiers took GPE and PERSON away from the room for TIME and later brought them back . The witness stated that he did not know whether they had taken them to another room or outside . They were detained on a DATE , and on DATE GPE and PERSON were released . The soldiers read out their names and probably returned their identity cards too . The witness heard a voice say , " Go now . You 're both free . " He was sitting on PERSON coat when they took him away . PERSON must have told the soldier about his coat as the soldier came back and told the witness to give PERSON coat . The witness stated that he did not know where the brothers were taken and added that he had not seen them since then . Thereafter , on DATE , the soldiers released the rest of the detainees . The soldiers removed their blindfold when they arrived at the regiment . The witness explained that the regiment was in the centre of ORG . They waited there for TIME and were then released . They were told to come back in a DATE 's time to get their identity cards .

All the detainees then returned to the village . PERSON and ORG mother came and asked the witness about her sons’ whereabouts . The witness told PERSON that her sons had already been released on DATE . PERSON told him that they had not come home .

The witness explained that he did not say to PERSON that PERSON , GPE or himself had been ill - treated at the boarding school . He had not been subjected to ill - treatment . The witness further pointed out that it was possible that the brothers might have been ill - treated when the soldiers took them out of the room . However , he had not heard or seen anything .

The witness further stated that he did not know where PERSON was . GPE had many sons , including PERSON , who was blind . He had heard that PERSON had disappeared from the village . He , however , had not seen anything . He had no knowledge as to why they had taken PERSON . He had heard that PERSON had disappeared CARDINAL or DATE after the operation . By that time , the witness was in ORG . He was not aware that there had been an operation .

The witness confirmed that he had talked to ORG Çicek , PERSON ’s daughter once or twice . He last talked to DATE . In reply to ORG ’s question , he replied that he had witnessed the soldiers taking her brothers away . Feride then went to the Diyarbakır HRA and told them about the incident . She also asked him to testify in GPE . The witness confirmed that he repeated the story to the public prosecutor and insisted that he was not scared to testify on this matter .

The witness , a farmer , lives in Dernek and was in the village during the incident of CARDINAL DATE .

He knew that PERSON lived with his mother , PERSON . Tahsin lived in his own house with his own family and had CARDINAL children . PERSON used to work in the village but sometimes found jobs elsewhere . He had sheep , goats , animals and some agricultural land . He also had a taxi , which was taken from him before his custody . The witness explained that he had no knowledge of whether GPE had ever been in trouble with the authorities before DATE . He had not attended the wedding of PERSON son .

He was in the village when the operation took place . The soldiers came on foot during morning prayers . There were a lot of soldiers , however he could not discern whether they were gendarmes or regular soldiers . The soldiers had come to the village before this operation but had had nothing to do with the villagers ; they had gone up into the mountains . On DATE , however , they came and gathered the villagers . They carried out an identity check and kept some identity cards ( including the cards of the witness and CARDINAL other villagers ) . Finally the soldiers took them away . There were also other villagers from other hamlets . FAC , PERSON , PERSON , PERSON and PERSON were among those arrested . They were taken to ORG on foot . Although it was a boarding school , a part of the building was used by the soldiers . The witness had never been in the school before .

The soldiers did not take down the details of the detainees or register them in a record or ledger . They took away their belongings . In the school , they first blindfolded GPE and then the witness . He never had the chance to remove his blindfold .

The detainees were taken to a room in the basement of the building . It was made of concrete . It was a place like a bath ( hamam ) . As the witness was blindfolded , he could n't really see but noted that there was no furniture . All the detainees were fellow - villagers and there were a few people from nearby hamlets . Their hands and feet were not bound . The guards and soldiers remained near them to stop any attempts at conversation . However , the room was small and the detainees could speak covertly . The witness could hear the voices of GPE and PERSON , who were kept in detention for TIME . The witness was not taken to interrogation at any stage . The detainees were not informed of the reasons of their arrest . The witness stated that he did not know whether GPE and PERSON had been interrogated . The soldiers took them elsewhere ; he had no knowledge of what could have happened to them . He did not see PERSON or GPE being taken away for questioning at any stage of the detention .

The witness stated that he did not hear the soldiers call out PERSON and ORG names since his hearing was not good . It is possible that that they did so without his being aware . At some point he heard some detainees say that GPE and PERSON had been released and sent home . The soldiers later said that they had released the brothers . The other detainees stayed for TIME . They were then conveyed to the regiment in vehicles , still blindfolded , and released . Their identity cards were returned later . The witness went to his village and asked about GPE and PERSON . He was told that they had not come back . Their mother came to his house and asked him where her sons were . The witness told her that they had been released DATE . The witness stated that he had not been subjected to ill - treatment in detention . Neither had he told PERSON that others had been ill - treated . The soldiers had treated people well . After that date the witness did not see or hear anything about PERSON or GPE .

ORG . Tahsin had a son called ORG , who was blind . The witness did not know where he was . At the time when PERSON disappeared , the witness had been tending animals on the mountain . In TIME , he came down and was told that PERSON had disappeared . A long time had elapsed after their detention . The witness was not aware of a military operation in the village on the day PERSON disappeared .

The witness knew the muhtar ’s son Cihat as well . He had not heard anything about him either joining the ORG , or accompanying the soldiers during an operation ; nor did he know whether he had been the one who informed against GPE and PERSON . He did not know where PERSON was . When they were taken into custody , PERSON came with them in order to get his identity card . When they were released , he was n't with them .

The witness stated that he was not frightened to testify and had not told anyone that he was scared to testify .

The witness finally explained that as PERSON sons have disappeared , she lives by ORG . Her husband had died a long time ago in a traffic accident and she has CARDINAL or CARDINAL children with health problems .

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

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

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

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

Article CARDINAL of LAW provides as follows :

“ All acts and decisions of the administration shall be liable to indemnify any damage caused by its own acts and measures . ”

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

LAW makes it a criminal offence

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

- to subject an individual to torture and ill - treatment ( Articles CARDINAL and CARDINAL ) .

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

In respect of all these offences complaints may be lodged , pursuant to ORG CARDINAL and CARDINAL of LAW , with the public prosecutor or the local administrative authorities . The public prosecutor and the police have a duty to investigate crimes reported to them , the former deciding whether a prosecution should be initiated , pursuant to LAW . A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings .

Generally , if the alleged author of a crime is a ORG official or a civil servant , permission to prosecute must be obtained from local administrative councils ( ORG of ORG ) . The local council decisions may be appealed to ORG , a refusal to prosecute is subject to an automatic appeal of this kind . If the officer is a member of the armed forces , he would fall under the jurisdiction of the military courts and would be tried in accordance with the provisions of LAW .

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

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

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

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


David Thór Björgvinsson;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in PERSON . Before he changed it in DATE , the applicant ’s family name was PERSON . He was represented before the Court by Mr M. Ficek , a lawyer practising in GPE .

The Government of GPE ( “ the Government ” ) were represented by their Agent , PERSON .

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

On DATE a single judge of ORG súd ) issued a penal order ( trestný rozkaz ) finding the applicant guilty of theft and sentencing him to DATE in prison . The applicant challenged the order by way of an objection ( odpor ) which he later withdrew . The order thus became final and binding , on DATE .

Meanwhile , the applicant was charged with embezzlement on CARDINAL counts ( on DATE and DATE , respectively ) , continuing fraud ( on DATE ) , breach of the rules on the circulation of goods in foreign trade ( on DATE ) and fraud ( on DATE ) .

On DATE the applicant was arrested and , on DATE a single judge of the Bratislava II ORG remanded him in custody pending trial on the fraud charge of DATE .

The applicant was incarcerated in a detention centre ( Ústav na výkon väzby ) in GPE .

On DATE ORG ordered the enforcement of the penal order of CARDINAL DATE . The applicant was subsequently transferred from detention and put in prison ( Ústav na výkon trestu ) in ORG to serve his sentence under that order ( for details see section “ B ” below ) .

On DATE , while the applicant was detained pending trial on the fraud charge of DATE , that charge and the remaining charges against him were joined to a single set of proceedings

Upon service of his sentence under the penal order of CARDINAL DATE , the applicant was again remanded in detention pending trial on the fraud charge of DATE and the remaining charges ( for details see section “ C ” below ) .

He was incarcerated in the PERSON detention centre .

On DATE , sitting in private ( neverejné zasadnutie ) , a single judge of ORG ordered what amounted to an end of the applicant ’s detention pending trial ( prepúšťa z väzby ) and ruled that , immediately thereafter , he be transferred to prison ( ihneď dodaný do výkonu trestu ) in order to serve his DATE sentence under the penal order of CARDINAL DATE . The decision was to be implemented on DATE and , accordingly , the applicant was due to finish serving that sentence on DATE .

The decision of DATE was served on the applicant on CARDINAL DATE and a copy of it was sent to the GPE detention centre by fax on CARDINAL May CARDINAL . On the latter date the applicant was transferred from the detention centre to prison to serve his sentence under the penal order of CARDINAL DATE .

On DATE the prosecution service applied for a new order for detention of the applicant pending trial in view of the approaching end of his DATE prison sentence .

On DATE , sitting in private , a single judge of ORG ordered that , as soon as the DATE sentence under the penal order of CARDINAL DATE had been served , on DATE , the applicant be again detained pending trial in connection with the fraud charge of DATE and the remaining charges against him .

ORG judge referred to the order for the applicant ’s detention of DATE and its contents , including the fact that the applicant was not staying at the place of his registered residence ( trvalé bydlisko ) , that his whereabouts were unknown , that there had been CARDINAL warrants for his arrest issued and that he had been apprehended while attempting to commit another offence .

From DATE until his arrest the applicant had been involved in various property - related offences in CARDINAL districts , was unemployed and had no source of regular income . It was also observed that the applicant had CARDINAL previous convictions , mainly for property - related offences .

The order of DATE was enforced on DATE at TIME when the applicant was transferred from the ORG prison to the PERSON detention centre .

A copy of the decision of DATE was served on the applicant ’s lawyer on DATE . He lodged an interlocutory appeal ( sťažnosť ) on behalf of the applicant on DATE . He relied on the principle of presumption of innocence , argued that there was no risk that the applicant would reoffend and offered a pledge on the applicant ’s behalf that he would live in accordance with the law .

A copy of the decision of DATE was served on the applicant on DATE . In addition to the appeal lodged on his behalf by his lawyer , the applicant lodged an interlocutory appeal on his own .

In so far as it can be established from the documents submitted to the ORG , the applicant argued that the decision of DATE had been phrased in general terms , that there had been irregularities in transferring the applicant from the detention centre to prison , that the applicant had not been informed of the reasons for his arrest and had not been heard in person by a judge .

On DATE ORG ( Krajský súd ) upheld the decision of DATE .

It held that the applicant ’s transfer from the detention centre to prison had been in conformity with section CARDINAL of the Code of Criminal procedure , his detention was justified and his pledge could not be accepted as it had not been made directly by him .

On DATE the applicant lodged a complaint under LAW of the LAW with ORG ( Ústavný súd ) . On DATE he amended his complaint .

Relying on LAW ) , CARDINAL and CARDINAL of the Convention and on their constitutional counterparts , the applicant challenged the decisions of ORG of DATE and of ORG as being unlawful and arbitrary .

In so far as can be established from the documents submitted to the ORG , the applicant argued in particular that , in its decision of DATE , ORG had failed to examine properly his objections against the decision of DATE . The applicant also asserted that the decision of CARDINAL DATE had been taken by a court which had no jurisdiction ratione loci to take it .

On DATE ORG declared the applicant ’s complaint inadmissible . It found that , in so far as the complaint related to the decision of ORG of DATE , it had been lodged outside the applicable DATE time - limit .

As to the remainder of the complaint , ORG found no constitutionally relevant error or arbitrariness in the decision of ORG of DATE .

On a number of occasions the applicant sought review by the public prosecution service of the legality of his detention and of the procedure followed in respect of it .

The public prosecution service acknowledged in letters of CARDINAL May and DATE ( ORG ) , DATE ( ORG ) and DATE ( ORG ) that ORG had erred in having transmitted its decision of DATE to ORG no DATE . As the decision was to have taken effect on DATE , the applicant had been kept in detention DATE longer and had started serving his DATE sentence DATE . This , however , had no impact on the lawfulness of the deprivation of the applicant ’s liberty as the extra time spent in the detention centre had been deducted from the time spent in prison .


Anatoly Kovler;Elisabeth Steiner;George Nicolaou;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen

The applicant , PERSON , is a NORP national who lives in GPE , GPE . She is represented before the Court by PERSON NORP ORG , a lawyer practising in GPE , Ingushetia . The respondent Government are represented by PERSON , Representative of ORG at ORG .

The applicant had CARDINAL children . CARDINAL of them , PERSON , was born in DATE . The applicant lived in PERSON with her family .

In DATE ORG launched a counter - terrorist operation in GPE .

On DATE the applicant ’s daughter received a wound to the head as a result of an explosion . The family and the wounded child remained in the basement of their house in view of the ongoing hostilities .

On DATE when federal servicemen reached the district , they gave PERSON first aid and delivered the applicant and her daughter to a military hospital by helicopter . From there the applicant and her daughter were taken to a hospital in NORP where the child spent DATE in an intensive care unit .

On DATE PERSON was brought to ORG in GPE and diagnosed with a post - traumatic condition caused by a penetrating wound to the skull . She was operated upon and DATE she was transferred by plane to a specialised paediatric hospital , ORG , in GPE .

On DATE PERSON died at the intensive care unit of ORG in GPE .

On DATE the applicant and her husband sought assistance in receiving compensation for their child ’s death from ORG of the President of GPE ( “ the Human Rights Office ” ) .

On DATE the applicant sued the Government of GPE , seeking compensation for her daughter ’s death .

On DATE the Staropromyslovskiy District Court of ORG awarded her MONEY in a lump sum , such award being given to people whose relatives had died during the counter - terrorist operation in GPE . The remaining claims for non - pecuniary damage were dismissed for the absence of a causal link between the actions of the defendant and the claim .

The applicant did not appeal and on DATE the judgment became final .

On DATE ORG requested that the prosecutor ’s office of LOC of Grozny ( “ the district prosecutor ’s office ” ) investigate PERSON death . The letter indicated that information about the criminal proceedings had been sought by LOC within the scope of the compensation proceedings . It is unclear if this letter reached the district prosecutor ’s office .

On DATE the applicant complained about her daughter ’s death to the district prosecutor ’s office .

On DATE , referring to a letter from ORG of DATE , the district prosecutor ’s office opened an investigation under LAW ( murder ) . The case was assigned number CARDINAL .

Pursuant to the ORG ’s request following the communication of the present case , the ORG submitted CARDINAL pages of documents from the criminal investigation file . These documents can be summarised as follows .

On DATE the district prosecutor ’s office granted victim status to the applicant . She was questioned and stated that her daughter had been wounded as a result of an explosion . CARDINAL neighbours stated that they had heard the explosions outside and then saw that the applicant and her daughter had been wounded . The investigator also collected medical records and attempted to obtain information about the military operations in PERSON at that time . It does not appear that they obtained any relevant information in this respect .

On DATE the investigation in case no . DATE was suspended for its failure to identify any suspects . The applicant was informed , but did not appeal against this decision .

On DATE the applicant wrote to ORG and asked for an update on the investigation .

LAW provides as follows :

“ LAW . Judicial examination of complaints

Decisions of an investigator or prosecutor concerning their refusal to initiate a criminal investigation ... or any other decisions and acts or omissions which are liable to infringe the constitutional rights and freedoms of the parties to criminal proceedings or to impede ORG access to justice , may be appealed against to a district court , which is empowered to examine the lawfulness and grounds of the impugned decisions ....

The court shall examine the lawfulness and the grounds for the impugned decisions or acts ... within DATE from the receipt of the complaint ...

As a result of the examination of the complaint the court shall deliver one of the following decisions :

CARDINAL ) Declaring the decisions , acts or omissions of the official as unlawful or unsubstantiated and obliging the official to eliminate the defects ;

CARDINAL ) Not allowing the applicant ’s complaint ... ”


No violation of Article 6 - Right to a fair trial

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

The applicant was born in DATE and lives in PERSON .

In DATE he had a car accident .

On DATE the ORG ( FAC ) granted the applicant a life disability pension payable by the insurer , ORG ( PERSON ) , in the amount of CARDINAL old NORP zlotys DATE .

The insurer did not pay the applicant ’s disability pension for DATE . Following a complaint by the applicant in DATE , the insurer paid him the amount of MONEY ( ORG ) , which at the relevant time was the equivalent of CARDINAL . The applicant unsuccessfully requested several times that his pension be index linked .

On DATE the applicant lodged a civil claim against the insurer . He sought the indexed pension for DATE . The value of his claim amounted to LAW .

On DATE the applicant requested the court to exempt him from the court fee .

On DATE he rectified the procedural shortcomings of his request . He submitted a declaration of means , pursuant to LAW ORG Cywilnego ) . The relevant part of that declaration read as follows :

“ I am married . My wife receives a disability pension of ORG DATE . I receive a disability pension of ORG DATE .

We have our CARDINAL biological grandchildren , to whom we are foster parents , to support . The grandchildren are CARDINAL , DATE and the oldest grandchild is still at school .

Our constant DATE expenses are :

- rent – PLN CARDINAL ,

- water MONEY ,

- electricity – PLN CARDINAL ,

- gas – PLN DATE ,

- television DATE ,

- telephone MONEY ,

-medicaments – PLN CARDINAL .

I do not have any shares or securities or any savings . I do not have a car or any other property of financial value .

In my opinion payment of the court fees will entail a substantial reduction in my and my family ’s standard of living . ”

On DATE the applicant completed his declaration of means submitting that he received a disability pension of ORG , CARDINAL , his wife received a disability pension of ORG MONEY and as foster family for their CARDINAL grandchildren they received a financial benefit of ORG .

On DATE the applicant was granted an exemption from court fees exceeding the amount of ORG CARDINAL,CARDINAL for his claim . The entire fee amounted to ORG CARDINAL . The applicant did not appeal against that decision and paid the required amount .

On DATE ORG ( PERSON ) gave judgment , dismissing the applicant ’s claim for compensation .

On DATE the applicant appealed against the first - instance judgment .

On DATE he requested an exemption from the court fees in the appellate proceedings . The fees amounted to ORG CARDINAL,CARDINAL .

On DATE ORG granted him an exemption from court fees exceeding PLN MONEY .

On DATE the applicant lodged an interlocutory appeal ( zażalenie ) against that decision .

On DATE ORG ( FAC ) dismissed his appeal . The relevant part of ORG reasoning read as follows :

“ The ORG found that , although the income received by the applicant and his wife was not high , they should , however , when lodging an appeal , have been aware that they would have to pay the court fee , and should have made the necessary savings in advance . The court ’s view could not be altered by the fact that the applicant and his wife were a foster family for their CARDINAL grandchildren . A party seeking his or her claim in a court should limit other expenses . ”

On DATE ORG discontinued the appellate proceedings .

The legal provisions applicable at the material time and questions of practice are set out in paragraphs CARDINAL of the judgment delivered by ORG on DATE in the case of PERSON v. GPE ( no . CARDINAL/CARDINAL , ORG CARDINAL-VI ; see also the judgment delivered by ORG on DATE in the case of GPE and GPE v. GPE , no . GPE , § § CARDINAL - CARDINAL ) .


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

All the applicants are NORP nationals and residents who opened savings accounts with ORG , which until DATE was an integral part of ORG . With the exception of the cases expressly referred to below , all the accounts were opened in DATE . Under the terms of the agreements : “ ORG ] that deposits [ would ] be repaid in full on demand by the account holder ” . The rule was not stated to be subject to any restrictions .

In DATE the NORP authorities implemented a monetary reform intended to replace the former monetary unit , the karbovanets coupon , with a new currency , the NORP hryvna ( українськa гривнa , ORG ) , at an exchange rate of CARDINAL karbovanets coupons for CARDINAL hryvna . The conversion also had an impact on the applicants’ deposits , which had already considerably depreciated as a result of inflation .

On DATE the NORP ORG enacted the NORP ORG Deposits ( ORG ( Law no . CARDINAL/CARDINAL ) . Pursuant to section CARDINAL of that Act , the applicants’ deposits were indexed at a ratio of CARDINAL karbovanets coupon to CARDINAL hryvnas . Section CARDINAL established a system for the indexed savings to be repaid progressively , taking into account the account holder ’s age , the amount on deposit and other criteria . DATE the ORG brings in regulations specifying the categories of account holders entitled to receive compensation in DATE . Under the regulations , only account holders aged DATE or over are entitled to recover a part of their savings ( UAH CARDINAL , equivalent to MONEY ( ORG ) per person ) . In addition , on an account holder ’s death , his or her heirs are entitled to LAW to pay for the burial .

In DATE each of the applicants issued proceedings against ORG in the relevant courts seeking payment of all or part of their indexed deposits in hryvnas . Their claims were dismissed both at first instance and on appeal on points of law . In most of the decisions , the courts held that the claimants concerned were not entitled to compensation under PERSON no . CARDINAL/CARDINAL for the fall in value of their deposits , as they were under LAW and thus had no valid legal claim granted by the Government under the LAW . As regards the fifth , twelfth , thirteenth and fourteenth applicants , who had attained the qualifying age , the courts found that they were entitled to compensation limited to ORG CARDINAL , as the legislation in force did not provide for the repayment of the full value of their deposits .

Subsequently , some of the applicants made CARDINAL or more unsuccessful applications for supervisory review of the final decision to the President of ORG or the president of the relevant regional court .

The first paragraph of LAW ) reads as follows :

“ Everyone has the right to own , use and dispose of his or her property ... ”

The relevant parts of LAW ( ORG кодекс ) read as follows :

“ Private persons may deposit sums of money in ORG savings banks and other financial institutions , have access to their deposits ...

The ORG guarantees the confidentiality and safekeeping of deposits and their repayment on demand by the account holder ... ”

The third paragraph of section CARDINAL of LAW ( ORG “ PERSON банки i банкiвську дiяльнiсть ” – Law no . CARDINAL of DATE ) , which was in force until DATE , provided :

“ ... GPE shall guarantee the safekeeping of deposits ... lodged by private persons with ORG and their repayment to account holders on demand . ”

The relevant provisions of LAW ( ORG “ PERSON державнi гарантiï вiдновлення заощаджень громадян ORG ” – Law no . CARDINAL of DATE ) provide :

Section CARDINAL

“ This Act sets out the ORG ’s obligations to NORP citizens who , following the devaluation , have lost money which they deposited before DATE in branches of ORG ... carrying on business on NORP territory ...

Similarly , NORP citizens who deposited money with a branch of ORG ... DATE which remained in the accounts of ORG for DATE shall be entitled to compensation ... ”

Section CARDINAL

“ The ORG undertakes to maintain and update the real value of individual ORG deposits and to pay them compensation in accordance with the relevant provisions . ”

Section CARDINAL

“ The deposits by the private individuals referred to in the first paragraph of section CARDINAL of this Act shall be revalued using the ratio of CARDINAL hryvnas for CARDINAL karbovanets coupon lodged , corresponding to the position at DATE . ”

Section CARDINAL

( as amended by PERSON no . CARDINAL of DATE )

“ The payment of compensation to NORP citizens for damage resulting from the depreciation of their deposits shall be made ... by the ORG ... from DATE onwards .

The funds set aside to finance this compensation scheme ... shall constitute a special item in the budget of the NORP State ... ”

Section CARDINAL

“ Deposits shall be reimbursed progressively taking into account the account holder ’s age , the amount of the deposit and other criteria and the amount of funds allocated for that purpose in the NORP ORG budget for DATE .

[ Paragraph amended by PERSON no . CARDINAL of DATE ] The list of the categories of account holders , the order of reimbursement of the indexed pecuniary deposits and the amount of the payments referred to in section CARDINAL of this Act shall be determined by ORG to the extent the funds allocated for that purpose in the budget of the NORP State allow . ”

Section CARDINAL

“ [ Paragraph amended by PERSON no . CARDINAL of DATE ] On an account holder ’s death , the heirs ... may withdraw parts of the indexed deposit ... for the purposes of arranging the funeral , the amount being calculated by reference to the amount of the funeral grant ... ”

The categories of persons eligible for repayment of their deposits are defined in regulations ( постанова ) approved DATE by the ORG for DATE ( see regulations nos . CARDINAL of DATE , CARDINAL of DATE , CARDINAL of CARDINAL DATE , CARDINAL of CARDINAL DATE , and CARDINAL of DATE ) . Under these regulations , the right to partial reimbursement of the deposits is reserved to account holders who attained DATE by DATE and heirs of deceased account holders , for the purposes of making burial arrangements . Account holders from the first category are entitled to reimbursement of ORG MONEY ( approximately EUR CARDINAL ) , whereas the heirs of deceased account holders are entitled to an amount equivalent to the funeral grant , that is to say UAH CARDINAL ( approximately EUR CARDINAL ) . Since DATE disabled ex - servicemen have also been able to claim reimbursement of part of their deposits . Regulation no . CARDINAL , which covers DATE , added to these categories account holders who had reached DATE respectively by DATE . Account holders in the latter category are entitled to the sum of UAH CARDINAL . All the aforementioned payments may only be made “ to the extent the sum allocated in the ORG budget for DATE concerned allows ” .

According to a practice direction ( no . DATE ) issued by ORG on DATE on the implementation of Law no . CARDINAL , complaints concerning the repayment of indexed deposits to private individuals under the statutory guarantee provisions in force are to be dealt with under the contentious - business procedure . The practice direction is binding on all NORP courts . When deciding such cases , the courts must remember that they are not dealing with liability for breach of contract between the account holder and ORG , but with the repayment of revalued deposits under the relevant provisions . ORG also directed that payments of compensation for indexed deposits must be made solely through branches of ORG . Consequently , in the event of litigation , the regional branch of ORG and ORG must be joined to the proceedings as defendants . The Savings Banking reimburses the indexed deposits to the extent the sums allocated for that purpose in the budget of ORG have been paid over to it in accordance with the ranking provisions established by the ORG . Thus , if a court finds that the sums concerned have not been paid to ORG or that the claimant is not a person entitled to reimbursement of the deposits for DATE concerned , that person ’s claim must be dismissed . If the claim exceeds the prescribed sum , the court shall grant it to the extent laid down in LAW .

On DATE the ORG passed a resolution concerning the reimbursement in DATE of the value of deposits made by NORP citizens before DATE in branches of the former ORG situated on NORP territory ( PERSON виплату в DATE роцi грошових заощаджень громадян ORG , DATE до DATE р. в установи колишнього ORG , що дiяли на територiï ORG ) . By that resolution , the Government allocated UAH CARDINAL from the national budget to enable individual deposits to be indexed . Of that amount , UAH CARDINAL was allocated to the heirs of account holders who had died DATE , on condition that they had not yet received the grant available under LAW no . CARDINAL . The remaining UAH CARDINAL was to be divided between the other account holders . The amount payable to each beneficiary was , in principle , limited to ORG CARDINAL for people from the first category and UAH CARDINAL for people from the second .


The applicants PERSON Biç , PERSON , PERSON and ORG , were born in DATE , CARDINAL , DATE and DATE respectively and live in the village of Yukarıharım , attached to the province of ORG .

On DATE PERSON was arrested by security forces in Bismil on suspicion of having participated in an attack on a military convoy , organised by the ORG . In his statement to the gendarmes , he confessed to being a member of the ORG and having participated in the attack against the military convoy .

On DATE PERSON was brought before the public prosecutor . The same day he was brought before the investigating judge at ORG , who subsequently ordered his detention on remand . PERSON was accordingly sent to Batman prison .

On DATE the public prosecutor initiated criminal proceedings against PERSON in ORG . In his indictment , he accused him of membership of an illegal organisation , of aiding and abetting the members of this organisation and of having participated in an attack that had been aimed against the security forces . He asked the court to sentence him under LAW .

On DATE ORG concluded that there was insufficient evidence to prove that PERSON had taken part in any armed attack , but found him guilty of membership of an illegal organisation . He was accordingly sentenced to DATE and CARDINAL months’ imprisonment pursuant to LAW . The court further ordered his transfer to FAC .

On DATE PERSON appealed .

On DATE ORG quashed the decision of ORG and sent the case file back for re - examination .

The proceedings recommenced before ORG . The first - instance court decided to keep PERSON in detention on remand during the course of the trials . While the proceedings continued , PERSON was twice operated upon a stomach complaint . At DATE , he was also diagnosed with hepatitis B and subsequently died in the hospital on DATE due to liver cirrhosis .

ORG decided to discontinue the criminal proceedings against PERSON after his death .


Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

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

In DATE the applicant ’s predecessor ( “ the predecessor ” ) acquired a plot of land with a QUANTITY building situated in the centre of GPE ( “ the property ” ) , later in GPE , on the territory of GPE ( GDR ) .

From DATE onwards , the property was subjected to public administration by the GPE authorities but was not formally transferred into public property .

The predecessor died in DATE in GPE , in GPE ( FRG ) ; the land register was not rectified . In DATE his heir ( “ the heir ” ) relinquished her rights as regards restitution of the property to the applicant before a notary public .

On DATE ORG ( PERSON ) allowed the refurbishment of the building subject to expropriation of the property from its owner .

On DATE ORG of the GPE cabinet ( Ministerrat der DDR ) approved the refurbishment plans .

On DATE ORG responsible for ORG in ORG requested that the property be expropriated ; the compensation was set at MONEY .

On DATE ORG ( ORG Mitte ) expropriated the property from its owner with effect from DATE and transferred the property to ORG . The undated decision to expropriate the property was signed and sealed . The applicant contested that the expropriation had taken place on that date .

On DATE ORG sold the building built on the property to a public holding ( “ the holding ” ) for MONEY . On CARDINAL DATE the ownership of the property was transferred to the holding . The holding had been founded on DATE and had been registered in the register of public enterprises ( ORG der volkseigenen ORG ) on DATE . On DATE the holding requested to be registered as a limited company in the course of incorporation ; the company was dissolved with effect from DATE .

The ORG has summarised the political background to the dissolution of the GPE in the case of ORG , PERSON and PERSON v. GPE ( [ ORG ] , ORG . FAC , CARDINAL and CARDINAL , § CARDINAL , ORG CARDINAL ) as follows :

“ In DATE the flight of CARDINAL of citizens of the GPE to the ORG ’s embassies in GPE and GPE , and to GPE , which had opened its border with GPE on DATE , demonstrations by CARDINAL of people in the streets of GPE , GPE , GPE and other cities , and the restructuring and openness campaign conducted in GPE by PERSON ( perestroika and glasnost ) precipitated DATE of FAC on DATE , the collapse of the system in the GPE and the process that was to lead to the reunification of GPE on DATE . ”

On DATE the Secretary - General of ORG , PERSON , stepped down and was replaced by PERSON . Especially after DATE of FAC on DATE the GPE was in an ever - increasing state of dissolution .

On DATE the Under - Secretary of ORG in the GPE ’s ORG and Prices wrote to ORG to ORG and admonished them to comply with the rules of regulations governing expropriations from owners living outside the GPE , namely , that the latter should be kept correctly informed of and allowed to participate in proceedings concerning their property . On DATE , the date of the NORP reunification , the ORG entered into force on the territory of the new Länder .

On DATE the heir applied for rights under the Act on the Regulation of Outstanding Property Issues/ Property Act ( Gesetz zur Regelung offener Vermögensfragen/ Vermögensgesetz – hereinafter the “ LAW ” , see “ Relevant domestic law and practice ” below ) . On DATE ORG ordered that the public administration of the property be lifted .

On DATE the property rights were administratively allocated to the holding pursuant to the Act on the Allocation of Former Public Property ( see “ Relevant domestic law and practice ” below ) ; this decision became final on DATE after ORG had dismissed the heir ’s claim .

On DATE the heir was listed as owner in the land register on the basis of the heir ’s certificate . The registration had no effect on the ongoing proceedings .

On DATE the order that the public administration be lifted was revoked following an administrative appeal by the holding in dissolution ; on CARDINAL DATE ORG upheld the decision .

On DATE the property was administratively allocated to the ORG property holding ( ORG ) as successor to the holding .

On DATE the holding in dissolution was registered as its owner in the land register .

On DATE the GPE ORG granted the holding ’s request for an interim objection to the predecessor ’s listing as owner of the property in the land register .

On DATE ORG , CARDINALth ORG , quashed the decision of ORG and refused the request on the ground that the holding had not established that it had become the owner of the property . ORG noted that the expropriation by the GPE authorities had clearly been carried out in complete administrative disarray , likely caused by the then imminent NORP reunification . The decision to expropriate the property from the predecessor had been undated , the form had not been properly filled out and the note that the decision had become final had not been in conformity with standard practice . The expropriation procedure had furthermore violated theprovisions for the basic legal protection of property owners under GPE law , for the GPE authorities had not contacted the heir , as the owner , and had not ascertained whether the predecessor had died , although this would have been possible after the fall of FAC . ORG concluded that the GPE authorities had deliberately excluded the heir from the proceedings in order to finalise the expropriation before the NORP reunification on DATE .

On DATE the holding handed the property over to the heir without prejudice to the ownership of the property .

The heir then requested in the main proceedings that she be declared theowner of the property . The holding brought a counter - claim for it to be declared the owner . ORG dismissed the heir ’s request and granted the counter - claim on the grounds that the holding had become the owner by virtue of the decision that had administratively assigned the property to it and which had become final on DATE ( see above ) .

On DATE ORG , CARDINALst civil senate , dismissed the heir ’s appeal and ordered her to return the property in exchange for the return of a bond of MONEY she had deposited with the respondent . ORG held that the expropriation by the GPE authorities had been lawful . In particular , the public administrator had been informed of the expropriation .

On DATE ORG dismissed the heir ’s appeal on points of law .

On DATE ORG ordered that the property be returned to the applicant against the payment of compensation on the grounds that the applicant ’s predecessor had suffered a property loss within the meaning of section CARDINAL(CARDINAL ) ( b ) of LAW ( see “ Relevant domestic law and practice ” below ) .

On DATE ORG dismissed ORG administrative appeal .

On DATE ORG set aside the restitution order on the grounds that the heir had not been entitled to restitution of the property . The property had not been expropriated without compensation ( section CARDINAL(CARDINAL ) ( a ) of LAW ( see “ Relevant domestic law and practice ” below ) ) because in principle the owner could have been compensated under the laws and the state practice of the GPE . Furthermore , the property had not been expropriated for less compensation than citizens of the GPE would have been entitled to ( section CARDINAL(CARDINAL ) ( b ) of LAW ( see “ Relevant domestic law and practice ” below ) ) . According to the caselaw of ORG this provision was only applicable to expropriations for which the former owner had deliberately been granted less than a citizen of the GPE would have had ; following the entering into force of the decree on prices no . CARDINAL in DATE , which had been applicable in the present case , owners living in GPE were no longer systematically discriminated against in calculating the compensation due . Lastly , the property had not been taken by unfair means ( section ( CARDINAL)(CARDINAL ) of LAW ( see “ Relevant domestic law and practice ” below ) ) ; in particular , expressly relying on the case - law of ORG , ORG held that the property had not been taken for a purpose other than the one stated , that its transfer into public property before transferring it to the holding had not been unfair , that the fact that the owner that was listed in the land register had already died had no bearing on the fairness of the expropriation proceedings , and that the property had been expropriated before DATE . As regards the ORG observed that the GPE authorities had been of the opinion that the owner of the property did not have to be informed about the expropriation according to the GPE law as practised by its authorities , since the property had been subjected to public administration .

On DATE ORG refused leave to appeal on points of law and noted , inter alia , that it was not decisive that ORG had previously held that the deliberate exclusion of the owner living in the ORG from the expropriation proceedings by the GPE authorities after CARDINAL DATE had resulted in the expropriation being void . ORG noted that any difference in opinion between the CARDINAL federal courts had no bearing on the applicant ’s case because ORG had conclusively established that the GPE authorities had been of the opinion that they had not needed to inform the owner of the expropriation proceedings ; the GPE authorities had accordingly not deliberately excluded the owner from them .

On DATE ORG refused to admit the applicant ’s constitutional complaint for adjudication ( no . CARDINAL BvR CARDINAL/CARDINAL ) .

Pursuant to LAW between GPE and GPE concerning the German Reunification - Reunification Treaty ( PERSON GPE über die GPE der PERSON – Einigungsvertrag ) , administrative acts by the authorities of the GPE prior to reunification remain in force . Such acts may be repealed if they are incompatible with the principles of the rule of law or LAW .

A former owner may request restitution of property ( section CARDINAL of the Property Act ) that was expropriated in the GPE if the property was expropriated without compensation ( section CARDINAL(CARDINAL ) ( a ) of LAW ) , with less compensation than a GPE citizen would have been entitled to ( section CARDINAL(CARDINAL ) ( b ) of LAW ) , if the state administrator sold the property or if the nationalised property was sold to third persons ( section CARDINAL(CARDINAL ) ( c ) of LAW ) , or if the property was taken by unfair means , such as the misuse of power , corruption , coercion or deceit ( section ( CARDINAL)(CARDINAL ) of LAW ) .

According to this provision , the validity of expropriations that lead to the transfer of property into public property shall be determined in view of the law in force at the time of the expropriation . Expropriations are invalid if the property could not have been transferred into public property or if the transfer was plainly irreconcilable with the rule of law ( mit rechtsstaatlichen PERSON schlechthin unvereinbar ) because of serious violations of the rule of law or of the principle of proportionality or because the expropriation had been arbitrary .

The relevant authority may decide to allocate former public property following a procedure in which all interested parties have had the right to participate . Property rights of third persons such as ownership and specifically named rights of interested parties are not affected by this decision ( section CARDINAL(CARDINAL ) of the LAW on the Allocation of Former Public Property – Gesetz über die Feststellung der Zuordnung von ehemals volkseigenem Vermögen ) .

In a judgment of DATE ( no . CARDINAL C CARDINAL/CARDINAL , published in BVerwGE , vol . CARDINAL , p. CARDINAL et seq . ) , ORG held that expropriations by the GPE authorities in flagrant violation of the pertinent provisions of the GPE law amounted to a taking by unfair means ( section ( CARDINAL)(CARDINAL ) of LAW ) if the expropriation took place after DATE , the date of the letter of the Under - Secretary of ORG in the GPE ’s ORG and Prices to ORG to ORG .

In a judgment of DATE ( no . CARDINAL C CARDINAL/CARDINAL ) , ORG held that the assessment whether the GPE authorities expropriated using unfair means within the meaning of section CARDINAL(CARDINAL ) of the LAW was to be conducted on a case by case basis if the expropriation took place DATE PERSON PERSON stepped down DATE and DATE , the date of the aforementioned letter of the Under - Secretary of ORG in the GPE ’s ORG and Prices . Only after DATE the GPE administrative practice could be assumed to comply with the relevant procedural requirements of GPE law , and thus flagrant procedural shortcomings could result in a taking using unfair means .

In a judgment of CARDINAL DATE ( no . V ZR CARDINAL ) ORG held that as a general rule , expropriations by the GPE authorities after DATE had used unfair means within the meaning of section CARDINAL(CARDINAL ) of LAW if the owner living in the ORG had been deliberately excluded from the expropriation proceedings ; in such a case the owner had not lost the property and was entitled to be registered as owner in the land register .

In a judgment of DATE ( no . V ZR CARDINAL/CARDINAL ) ORG held that an owner could pursue a claim to be reinstated as owner in the land register if the GPE authorities’ expropriation order had not become effective , regardless of whether the taking had been accomplished by using unfair means within the meaning of section CARDINAL(CARDINAL ) of LAW . The ORG noted that it did not depart from the jurisprudence of ORG in a decisive manner and therefore did not need to refer the question as to the date on which expropriations by the GPE authorities became plainly irreconcilable with the rule of law .

Pursuant to LAW ORG der obersten PERSON ) of ORG , ORG , ORG , the ORG and the ORG shall be established to preserve the uniformity of decisions . The Common ORG decides the legal question that is disputed between senates of different federal courts if they can not agree on a common interpretation following a procedure laid down in the LAW on the Preservation of the Unity of the Federal Courts’ Jurisprudence ( Gesetz zur Wahrung der LOC oberten ORG ) . Proceedings before ORG with regard to an individual appeal on points of law pending before a federal court are interlocutory .