CASE OF ATANASOV v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Angelika Nußberger;Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE .

On DATE the public prosecutor requested an investigating judge of ORG ( “ the trial court ” ) to open an investigation against the applicant on the count of forgery of a notice convening a meeting of shareholders of a company , ORG , in which he was also a shareholder ( “ the notice ” ) . The applicant was accused of having deceived a considerable number of shareholders into signing the notice by misleading them in the belief that there would be CARDINAL item on the agenda , instead of CARDINAL , as was actually the case . The investigating judge heard the applicant and CARDINAL witnesses . After the investigation had been completed , on CARDINAL DATE the public prosecutor lodged an indictment against the applicant .

The trial court fixed QUANTITY hearings , including that of DATE , which the applicant did not attend , although he had been summoned properly . During the trial , the court again heard oral evidence from the applicant , who had a court - appointed lawyer , and the CARDINAL witnesses and admitted other documentary evidence . On DATE , in the presence of the applicant 's lawyer only , the trial court convicted the applicant and sentenced him to DATE imprisonment suspended for DATE . It did not rely on the statements made by the witnesses before the company 's management denying that they had been informed about the remaining items on the agenda . The court rejected the applicant 's defence as self - serving and the testimony of CARDINAL defence witnesses as inconsistent and implausible .

On DATE the applicant who , at the relevant time , was not represented by counsel , appealed against that decision . He did not request to be notified of the date of the session ( седница ) of ORG .

On DATE ORG dismissed the applicant 's appeal and upheld the trial court 's decision . The court decided in private . The public prosecutor was present , but not the applicant . The court addressed the public prosecutor 's written submission of DATE and her oral pleadings requesting that the applicant 's appeal be dismissed .

The decision was served on the applicant on DATE .

On DATE the public prosecutor informed the applicant that there were no grounds for lodging a request with ORG for the protection of legality ( “ legality review request ” ) .

NORP Under section CARDINAL ( CARDINAL ) and ( CARDINAL ) of LAW ( “ LAW ” ) ( ORG за кривична постапка ) , the chairman of the adjudicating panel of ORG will appoint a judge rapporteur . The latter , in cases involving offences automatically subject to prosecution by the ORG , will forward the case file to the public prosecutor , who will examine and return it without delay . After receiving the case file , the chairman will fix a date for the session ( седница ) of the adjudicating panel . The public prosecutor will be notified thereof .

Section CARDINAL ( CARDINAL ) and ( CARDINAL ) of the LAW provides for notification of the date of session to be given , inter alia , to the defendant and his lawyer , the victim ( as a plaintiff , тужител ) and the private prosecutor ( приватен тужител ) if , within the period prescribed for the appeal or reply to the appeal , they so request or propose that a hearing ( section CARDINAL of the Act ) be held before the second - instance court . Such notification may be given to parties who have not made such a request if their attendance would contribute to establishing the facts . The session starts with the presentation of a report prepared by a judge rapporteur . The panel may seek additional explanations from the parties attending the session . Parties can propose , with the aim of supplementing the report , that some documents from the case - file are read . They can also specify their arguments submitted in the appeal or reply to the appeal .

Section CARDINAL ( CARDINAL ) and ( CARDINAL ) of the LAW provides that the second - instance court will hold a hearing ( претрес ) only if new evidence needs to be produced or evidence re - produced , or if the case does not need to be remitted for fresh consideration . The defendant and his or her counsel , the public prosecutor , the victim and any witnesses or experts to be heard are summoned to attend the hearing before the second - instance court .

NORP Under sections CARDINAL , the public prosecutor can submit a legality review request in respect of a final decision . The public prosecutor is always apprised of the session of ORG , which decides the legality review request . If the court accepts the legality review request submitted in favour of a person convicted , it can not amend the final decision to his or her significant disadvantage in respect of the legal qualification of the crime and penalty imposed . If the legality review request is lodged against the person convicted , the court can only acknowledge the violation without amending the final decision .


No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);No violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

David Scicluna;David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä

The applicant was CARDINAL of the parties to civil proceedings instituted against , inter alia , him ( as possessor ) , concerning the recission of a contract of perpetual emphyteusis of a hotel owing to a failure to effect the relevant payments , namely PERSON et proprio et nomine v ORG and for any interest they might have PERSON [ the applicant ] and PERSON . In these proceedings the address of the applicant ( the then defendant in the proceedings ) was correctly marked as “ FAC , GPE FAC , GPE ” , and the claimant ’s address correctly marked as “ DATE , PERSON , GPE ” .

By a judgment of DATE , the first - instance court found against the defendants and ordered the property to be returned to the claimant . The defendants had DATE to vacate the property .

Caral Ltd , the holder of the emphyteusis and main defendant , did not appeal . In consequence , the rescission of the emphyteusis and the eviction of ORG became final .

On DATE the applicant appealed . The appeal application was signed by PERSON , the Assistant Advocate for Legal Aid . On DATE , through the assistance of PERSON ( in his capacity as ORG ) , the applicant requested legal aid ( Article CARDINAL of the Code of Organisation and Civil Procedure “ COCP ” ) . In both the appeal application and the legal - aid request , signed by PERSON , the addresses of the applicant and the respondent were inverted .

On DATE the applicant was granted legal aid and PERSON and PERSON were nominated as advocate and legal procurator respectively for this purpose . The applicant was informed that he should enquire at the court registry for details of those nominated . It would appear that he did not make an enquiry at the relevant time .

On DATE the court bailiff unsuccessfully attempted to serve notification of the appeal on the respondent at “ FAC , FAC , GPE ” ( the applicant ’s address ) . In consequence , he marked the notification as undelivered “ riferta negattiva ” ( see Relevant domestic law ) and noted that the venue was derelict .

No further attempts at notification were made .

On DATE , at the first appeal hearing conducted in the absence of both parties , the appeal was declared to have lapsed ( been deserted ) , on the basis that no notification of the appeal application had been made to the respondent within the peremptory DATE period .

On DATE the applicant lodged an application with the ordinary courts requesting the revocation of the decision of DATE , in that it had been issued on the basis of a lack of notification as a result of an error in the address of the respondent as submitted in the appeal application signed by ORG .

By a decision of DATE , the applicant ’s request was rejected as unjustified on the basis that it had been the applicant , through his legal representative , who had supplied the erroneous address and during the rest of DATE the applicant had not taken any steps to rectify the error .

On DATE , the applicant lodged another application with the ordinary courts , requesting the revocation of the decision of DATE . He argued , inter alia , that the error had been made by ORG and not by himself , and that he had never been given a copy of the procedural acts presented in his name , which would have enabled him to rectify the error . On DATE the applicant ’s case was dismissed as it was substantially the same as his previous request .

On DATE the applicant instituted constitutional redress proceedings before ORG ( FAC ) . Referring to ORG judgments LAW QUANTITY ( c ) , he complained that the decision of DATE and the decisions confirming it denied him the right to a fair trial , to legal assistance and to access to court as guaranteed by LAW . He therefore requested the court to revoke the said decision .

On DATE ORG rejected the applicant ’s claims . Having considered the evidence , the court noted that the relevant addresses in the appeal folder had been incorrect and that at the time ( after the appeal application against the decision of DATE ) the applicant was not in contact with ORG but with legal counsel who had acted for him previously , and maybe PERSON , his appointed advocate for legal aid . However , neither of these advocates advised the applicant to verify the acts of the proceedings . Thus , neither the applicant nor a legal representative had ever verified whether the respondents had been successfully notified . In consequence , ORG found that the applicant was mostly responsible for causing the case to lapse , as he had failed to conduct the necessary verifications and had failed to prove that what had happened had been beyond his control . Even assuming that the initial error was imputable to somebody else it was up to the applicant to follow up his appeal proceedings . Moreover , unlike in the case of PERSON v. GPE ( no . CARDINAL/CARDINAL , ECHR CARDINALVIII ) the error in the present case did not make the appeal null and void , and it could have been avoided if the applicant had been careful to monitor the state of his case .

On DATE the applicant appealed to ORG . He argued , inter alia , that in view of an error on the part of an agent of the ORG , the application of “ lapsed ” status ( desertion ) provisions to his case had had disproportionate consequences .

On DATE ORG dismissed his claims on the merits . It reiterated that throughout DATE the applicant had done nothing to correct the underlying error or to follow up his appeal proceedings . The case was the applicant ’s and not the lawyer ’s and therefore it was the applicant ’s responsibility to show assiduous interest in what was going on and to follow the case scrupulously . The error in the present case was a minor one and could have been corrected . It was , therefore , irrelevant who had originally made the mistake . A simple check could have easily been made with the court ’s registry . However , nothing had been done , and in consequence CARDINAL attempt to notify the respondent had been made .

As to the application of LAW ( see Relevant domestic law ) of LAW ( “ COCP ” ) , ORG held that the provision used the word “ may ” and therefore the court was not obliged to make any assessment to decide whether the use of the provision would be justified . In any event , in the present case , it had appeared that notwithstanding the first failed notification ( riferta negattiva ) nothing had been done to request a second notification . It followed that the court ’s decision not to make use of the provision had been justified . Moreover , procedural rules safeguarded the interests of both parties and those of legal certainty .

At the time of the present case , LAW , regarding desertion of causes , read as follows :

“ ( CARDINAL ) Saving the provisions of sub - article ( CARDINAL ) and of articles CARDINAL and CARDINAL , the written pleadings in any cause shall be closed , in first instance , within the peremptory time of DATE , and , in second instance , within the peremptory time of DATE .

( CARDINAL ) The time shall commence to run , in first instance , from DATE on which the sworn application is filed , and , in second instance , from the date of the application of appeal for the reversal or variation of the judgment appealed from .

( CARDINAL ) If it is found that the written pleadings in any cause set down for hearing are not closed , the court may order such cause to be again placed with the causes the pleadings whereof are not yet closed and fix for the closing of the pleadings of that cause a peremptory time not exceeding one month .

( CARDINAL ) Notwithstanding the provisions of sub - article ( CARDINAL ) , the pleadings shall be deemed to be closed if the party not served with the pleading necessary for the close of the record appears at the trial and does not raise the question that the pleadings are not closed and proceeds or knowingly allows others to proceed to further acts without raising such question . ”

NORP In DATE , sub - article CARDINAL above was amended to read as follows :

( CARDINAL ) If , even where the peremptory times referred to in sub - article ( CARDINAL ) shall have lapsed , it is found that the written pleadings in any cause are not closed , the court shall once only give such orders which it may deem fit so that such pleadings may be closed as soon as possible in order to avoid that such cause be deserted by reason of some failure to notify or by reason of the failure of performance of a procedure or formality .

( CARDINALA ) The desertion of a cause shall be declared by means of a decree delivered in open court if , after the orders referred to in sub - article ( CARDINAL ) shall have been given , the written pleadings are not closed .

Following the DATE amendments , LAW , regarding the signing of pleadings , read as follows :

Article CARDINAL

“ The written pleadings and the applications whether sworn or not shall be signed by the advocate and also by the legal procurator , if any . ”

According to NORP practice , once an advocate or legal procurator pays the dues relevant for the notification ( notifika ) of an act , the bailiff will attempt to deliver notification to the address indicated . Subsequently , the bailiff must record the outcome of his attempt in the court file . Thus , an individual can learn whether the bailiff has successfully notified the other party or otherwise by virtue of a note ( ir - riferta ) that the bailiff sticks on the back of the document in the case file , which may be consulted in the registry . In the event that notification was unsuccessful , the stamp on the back of the document will be in red ( riferta negattiva ) . If notification is successful the stamp on the back of the document will be in blue ( riferta pozittiva ) . In the case of a “ riferta negattiva ” , the bailiff normally notes down the reason why notification was unsuccessful . Further notification will require payment and the relevant instruction depending on the bailiff ’s written comments . Article CARDINAL ( CARDINAL ) of the ORG reads as follows :

“ The officer charged with the service of an act shall , on DATE when he serves or unsuccessfully seeks to serve the act , or , at the latest , on DATE , draw up a certificate stating whether the service was effected or not . In the affirmative , the certificate shall state the name and surname of the person on whom service was effected and , if the act was not served directly on the person on whom service was to be effected , the name and the surname of the person to whom the copy was delivered and the place where the act was served ; in the negative , the certificate shall state the reason why service was not effected . ”

Article CARDINAL of the ORG , concerning the duties of legal - aid representatives , reads as follows :

“ ( CARDINAL ) The advocate or legal procurator assigned to the person admitted to the benefit of legal aid shall :

( a ) act in the best interest of the person admitted to the benefit of legal aid , and may not demand any form of payment from that party ;

( b ) appear in court when the case of the person admitted to the benefit of legal aid is called ;

( c ) make the necessary submissions and file the requisite notes , applications , replies , notices , applications , and other written pleadings as circumstances require .

( CARDINAL ) The advocate or legal procurator shall remain responsible for a cause assigned to him as aforesaid , until the same has been finally disposed of , even though the period of his appointment may have expired . ”

In the judgments of ORG v Commissioner of Police , of DATE and ORG v ORG , of CARDINAL DATE , both cases decided by ORG ( First Hall ) in its Constitutional Jurisdiction , in the same single judge formation , ORG entered into the admissibility and where necessary the merits of the applications , notwithstanding that the applications to the court had been presented by the claimant without the assistance of a lawyer . However , ORG did not deal specifically with the respondents’ objection that the application was null and void , on the basis that it had not been signed by an advocate , as required by law and confirmed by the judgment in PERSON v ORG of DATE .


Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE .

On an unspecified date in DATE ORG and Highways expropriated a plot of land belonging to the applicant in GPE in order to build ORG . The authorities paid him the value of the land , assessed by a committee of experts , when the expropriation took place .

Following the applicant ’s request , on DATE ORG awarded him additional compensation plus interest at the statutory rate applicable .

On DATE ORG upheld that judgment .

On DATE the amount of MONEY ( TRL ) was paid to the applicant .

The relevant domestic law and practice are set out in the case of ORG v. GPE ( judgment of DATE , Reports of Judgments and Decisions DATE , § § CARDINAL ) .


Remainder inadmissible;Violations of Art. 3;Violation of Art. 13;No violation of Art. 34;Pecuniary and non-pecuniary damage - awards

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

On DATE the applicant and his school friend Mr N. were spending the evening together . At TIME they went to Mr N. ’s place as Mr N. , who is a diabetic , needed an insulin injection . After that they took a taxi to the applicant ’s place .

While walking through the courtyard they were assaulted , near house no . CARDINAL on FAC in LOC of GPE . The attacker called out to them from behind and , before they could turn round , they received strong blows to their heads , fainted and collapsed on the ground . A considerable sum of money , a gold bracelet and a cell phone were stolen from them .

Neighbours called the LOC police station . At TIME on DATE the police officers PERSON and PERSON PERSON arrived at the scene . They served in the CARDINALnd police battalion of LOC of GPE , whose main task was to provide security to businesses and private property under commercial contracts . In addition to that , they acted as neighbourhood patrol officers .

According to their statements , they saw CARDINAL young men on the road whom they believed to be drunk . CARDINAL of them was sitting , the other lay still . Some vomit could be seen . The policemen claimed that they reported the situation to the officer at the GPE police station and told him that an ambulance or specialists from a sobering - up centre should be called .

The policemen then dragged the unconscious applicant and his friend away from the road into the courtyard of house no . CARDINAL . According to the Government , the policemen left the applicant and N. “ on a grass plot ” ; the applicant claimed that they had been put “ in the rubbish dump ” . At that moment the private security co - ordinator ( дежурный по отделу вневедомственной охраны ) informed the officers that an alarm had gone off and instructed them to check it out . They reported it to the officer at the police station and left the scene .

At TIME janitors PERSON and PERSON spotted CARDINAL young men CARDINAL metres away from the rubbish bins and attempted to wake them up . However , both were unconscious , the dark - haired CARDINAL ( Mr N. ) mumbled incoherently . They called for an ambulance .

At TIME in the first ambulance . On seeing CARDINAL victims , he called for another ambulance and began attending to Mr N. who had an abrasion and haematoma on his left cheek . When PERSON regained consciousness , Doctor PERSON helped him climb into the van and took him to FAC no . CARDINAL .

In the meantime , a second ambulance arrived with Doctor PERSON . He loaded the still unconscious applicant into the van and took him to FAC no . CARDINAL .

Upon arrival at the hospital at TIME the applicant was diagnosed with alcohol intoxication . Injuries and abrasions on his wrists and forehead were noted . TIME he was examined by a neurosurgeon .

Until TIME on DATE the applicant remained , still unconscious and also undressed , on a trolley in the hospital corridor .

At TIME emergency surgery – bilateral trepanation of the skull – was performed on him .

On DATE the applicant ’s mother invited a private doctor to examine her son . The doctor determined that the applicant was in a life - threatening condition . An ambulance transferred the applicant in a state of coma to ORG in GPE .

From DATE the applicant was in a coma . On DATE tracheotomy ( creation of a surgical airway in the cervical trachea ) was performed and a cannula was inserted .

After he woke up from the coma , he was transferred to the neurosurgery unit where he stayed in a critical state until DATE .

Until the removal of the cannula in DATE and then in DATE , the applicant underwent several operative procedures for osteomyelitis of the skull .

On DATE a medical panel recognised the applicant as having disability of the second category .

In DATE the applicant developed post - traumatic convulsive disorder . On DATE he had a seizure and fainted . He was taken to ORG and operated upon for a pus abscess in the skull .

On DATE and DATE the GPE police station received from Hospitals nos . CARDINAL and CARDINAL reports on bodily injuries concerning the applicant and Mr N. The head of the inquiries section of the police station asked the operational officer Mr PERSON to check the reports . Subsequently the internal inquiry ( see below ) revealed that Mr PERSON had not taken any measures for the purpose of inspecting the crime scene , identifying witnesses or interviewing the victims .

On DATE Mr PERSON forwarded the materials to ORG where the case was assigned to the operational officer Mr PERSON . Mr PERSON did not take any procedural decision regarding the materials until DATE .

On DATE the head of the PERSON police station launched an internal inquiry which revealed that nothing had been done with regard to the injury reports . Both Mr PERSON and Mr PERSON were disciplined . On DATE the crime scene was examined for the first time . On DATE a criminal investigation into the assault on the applicant and Mr N. was opened .

On DATE the investigator Mr ORG issued a decision to discontinue the proceedings because the perpetrator of the assault could not be identified . The only items of evidence referred to in the decision were statements by the police officers PERSON and PERSON , by the ambulance doctor and by Mr N.

On DATE the investigator Mr PERSON decided to re - open the investigation .

NORP By letter of DATE , a deputy to the Presidential Envoy in ORG wrote to the applicant ’s mother that her complaint about the prolonged investigation had been examined by ORG of ORG . It had been established that the inquiry had not been properly conducted , that no one had visited or examined the crime scene , and that no other investigative steps had been taken . Operational police officers Mr PERSON and PERSON PERSON had been reprimanded .

On DATE , DATE , DATE , DATE and DATE , decisions to suspend the proceedings were issued because the perpetrator(s ) could not be identified . Supervising prosecutors set these decisions aside and instructed the investigator to take additional investigative measures , such as interviewing caretakers in the neighbouring buildings and the night watchman in the PERSON café and examining the list of calls made from the stolen cell phone .

On DATE the case was transferred to ORG of ORG .

In a letter of CARDINAL DATE ORG of ORG acknowledged that the investigation of cases nos . CARDINAL and CARDINAL ( see below ) had been improper , noting as follows :

“ Thus , it has been established that at the initial stage the investigation of case no . DATE was carried out at a low professional level and in breach of the rules of criminal procedure . On many occasions proceedings were prematurely suspended on the ground that the persons responsible could not be identified . Certain officers of the GPE police station of LOC in GPE were disciplined for violations of the rules of criminal procedure and inadequate management of the investigation . Investigation of case no . CARDINAL [ medical negligence ] was also held back because of significant failures .

Having regard to deficiencies in the investigation and in compliance with the directions of the GPE city prosecutor ’s office , additional investigative steps and operational measures are now being carried out in the above cases with a view to examining the events in a comprehensive and thorough fashion and establishing the criminal liability of those responsible . ”

On DATE and CARDINAL DATE public prosecutors reversed further police decisions suspending the investigation and ordered that specific investigative measures be taken .

On DATE the case was referred to the LOC prosecutor ’s office and assigned to the investigator PERSON , who was in charge of particularly important cases . On DATE , DATE , DATE and DATE , and DATE Mr PERSON suspended the investigation on the ground that the perpetrator(s ) of the assault could not be identified . Those decisions were reversed by supervising prosecutors .

The most recent decision by Mr NORP on suspending the investigation which has been made available to the ORG is dated DATE . It took stock of the evidence that had been collected in the case .

The decisions indicated that the statements had been taken from both victims – the applicant and DATE who had not remembered the attacker , their friends who had not seen the attack , and also the police officers , janitors and doctors who had seen the victims after the attack . The forensic experts had established that the applicant had sustained “ serious bodily injuries ” and ORG “ light bodily injuries ” .

The applicant ’s mother told the investigator that shortly after the crime she had visited the GPE police station . CARDINAL of the police officers who had curly hair and the nickname “ PERSON ” , had described to her that the victims had been found near the PERSON café . The applicant ’s mother had gone to the café and talked to the employees who had told her that on TIME CARDINAL police officers nicknamed “ PERSON , “ PERSON , and “ NORP ” had been heavily drinking in the café and had been aggressive to the point of seeking a fight with the bartender . However , they had not witnessed any fights between the officers and her son or PERSON investigator also took testimony from CARDINAL officers from the LOC police station who claimed they were unable to remember visiting the café on TIME and did not know anyone nicknamed “ PERSON ” or “ PERSON ” . CARDINAL of them denied that they had ever been to the PERSON café and the other CARDINAL acknowledged that they had gone there from time to time .

Mr N. ’s mother stated to the investigator that in the hospital her CARDINAL - conscious son had mumbled incoherently about “ cops ” hitting him on the head . When she came to visit him DATE , she stumbled upon CARDINAL men in civilian clothing by her son ’s bed , CARDINAL of them was shaking her son and asking him whether he had remembered the “ cops ” who had beaten him . She loudly protested and they all went out into the corridor where the men produced their badges and introduced themselves as the police officers from the LOC police station , Mr PERSON and Mr PERSON . Between themselves , they called each other “ PERSON ” and “ PERSON ” . They told her that they were investigating the assault on her son . The investigator interviewed Mr PERSON , who denied that he had ever visited Mr N. in hospital . Mr PERSON was not available for questioning .

The investigator found that it was impossible to identify the persons responsible for the assault . On DATE a supervising prosecutor annulled that decision and instructed Mr Volk to elucidate discrepancies in the testimony by organising confrontations and to locate and examine former police officers from the LOC police station .

On DATE , following on the applicant ’s mother ’s complaint about an improper performance of their duties by the police officers Mr PERSON and PERSON and by Doctor PERSON , who had not rendered assistance to the applicant that was appropriate for his condition , certain material was severed from the main criminal case for a separate inquiry .

On DATE an investigator with the Izmaylovskiy District prosecutor ’s office , on the basis of statements by Mr N. , the applicant ’s mother , Doctors P. , PERSON . and PERSON , and the officers PERSON and PERSON , decided that there was no indication of a criminal act because Doctor PERSON had correctly diagnosed the applicant and had taken all the required measures , and because the officers had “ erred in good faith as to Mr PERSON ’s and Mr N. ’s capacity to take care of themselves ” .

On DATE a supervising prosecutor quashed that decision . She found that the conclusion about the police ORG good - faith error contradicted the facts of the case , as the applicant had been unconscious when they had arrived . She decided on the institution of criminal proceedings under LAW of LAW ( criminal negligence leading to the victim ’s death or grave injury ) . The investigation was assigned to the LOC prosecutor .

On DATE and DATE the investigation was discontinued for a lack of indications of a criminal offence . These decisions were set aside by higher - ranking prosecutors .

On an unspecified date the officers PERSON and PERSON were formally charged with abandonment of the applicant and PERSON in danger , an offence under LAW .

On DATE the applicant was granted the status of a victim in the proceedings .

On DATE the applicant asked the investigator to amend the legal characterisation of the ORG actions . He pointed out that the officers had been on duty and had acted in breach of requirements of LAW . For that reason they should have been charged with criminal negligence leading to grave consequences , an offence under LAW of LAW . On DATE the applicant asked the investigator to recognise his status as a civil party . His application bore a handwritten acknowledgement of receipt by the investigator , dated DATE . It is not clear what response the investigator gave to the applicant ’s requests .

On DATE the bill of indictment was served on Mr PERSON and PERSON . The prosecution ’s case under LAW was that they had been the patrolling police officers on duty when they had arrived at the scene and found CARDINAL unconscious men . Being aware that the men had been helpless and unable to care for themselves , PERSON and PERSON had not fulfilled their legal duty , under LAW , the Regulation on Police Patrols and the internal instructions , to protect victims of offences or accidents , intoxicated persons unable to move , and other vulnerable individuals . Even though they had a realistic possibility of providing assistance , they had failed to examine or identify the victims , call an ambulance , administer first aid or take them to a hospital , locate witnesses or secure the crime scene . Instead , they had moved the victims to the side and had falsely reported to the officer at the LOC police station that all the required measures had been taken .

On DATE the Izmaylovskiy ORG of GPE scheduled the opening of the trial for DATE . The judge allegedly told the applicant that his request to join the proceedings as a civil party would be examined at a later stage .

Hearings were held on DATE , DATE , DATE , DATE , CARDINAL DATE and CARDINAL DATE .

The trial court took testimony from a neighbourhood resident , the janitors PERSON and PERSON , ambulance doctors PERSON and PERSON . , who described the circumstances in which they had discovered the applicant and Mr N. The senior operational officer PERSON , who had been on duty at the PERSON police station on TIME to DATE , stated that no telephone call concerning CARDINAL young men on FAC had been recorded in the log . However , he had been replaced for TIME by the officer Mr Vancharin . He also testified that the police officers serving in the private - security department ( отдел вневедомственной охраны ) had to give priority to the orders of the security co - ordinator rather than the orders of the officer - on - duty at the police station .

The officer Mr Vancharin confirmed that he had taken a call concerning the young men but had not recorded it in the log because it had not been placed through the emergency line . He had radioed to the patrol officers from the private - security department and told them to verify the information . They reported back that they had found CARDINAL drunk men and that the situation was under control . In response , he instructed them to continue patrolling . The security co - ordinator testified to the court that at TIME he had received an alarm signal and had dispatched the officers PERSON and PERSON to check it out .

On DATE ORG acquitted both police officers , having made the following assessment of the evidence :

“ ... [ T]he court considers that it has not been shown that the defendants PERSON and PERSON acted in the knowledge of the fact that [ the applicant and his friend ] were in a state that was dangerous for their life and health because they could not know it , as they only spent TIME on the scene in the night time and as no injuries were visible . They decided that [ the applicant and his friend ] were in a state of alcohol or drug intoxication ...

In support of their claim that Mr PERSON and PERSON made a false report [ to the officer - on - duty ] the prosecution referred only to the testimony by the witness Mr Vancharin , who was a police officer but who was not authorised to take any reports . However , he was replacing the officer - on - duty , in breach of the regulations of the LOC police station ...

Upon receipt of such information , an officer - on - duty has an obligation to record it in the registration log , to check it and to record the results of the check . The court considers that the officer - on - duty , upon receiving information from PERSON and PERSON that the situation was under control , was required to verify it and obtain credible information about the situation . Mr Vancharin , however , did not do that and did not relay that information or the results of the check to the actual officer - on - duty ... The court therefore lends credence to the testimony by PERSON and PERSON ... because in these circumstances Mr Vancharin had no interest in telling the truth . ”

On DATE ORG upheld the judgment on appeal in a summary fashion .

On DATE the chief medical officer of the emergency care unit informed the applicant ’s mother that an internal inquiry had established that the ambulance doctor had diagnosed the applicant on the basis of his friend ’s statements . As a result , he had underestimated the gravity of his condition . The doctor had been severely disciplined .

On DATE and DATE and DATE the public prosecutors at various levels informed the applicant ’s mother that the doctors of Hospital no . CARDINAL had committed no prosecutable offence and refused to institute criminal proceedings .

NORP By letter of DATE , the deputy head of ORG confirmed that a review of the medical care administered to the applicant at Hospital no . CARDINAL had not identified any defects or shortcomings .

Further to a complaint by the applicant ’s mother , on DATE the first deputy to the GPE prosecutor cancelled the decision of DATE , by which the institution of criminal proceedings had been refused , and instructed LOC prosecutor to open a criminal investigation into the offence under LAW of LAW ( failure to render medical assistance to a patient resulting in grave damage to his health ) .

On DATE a composite medical study was commissioned for the purpose of determining whether the applicant ’s health could have been harmed by belated and inadequate medical treatment at Hospital no . CARDINAL .

On DATE a panel of CARDINAL experts from the ORG of ORG began their work .

On DATE the investigator PERSON suspended proceedings because the person responsible could not be identified .

On DATE the experts’ panel returned their findings based on the applicant ’s medical record ( no . DATE ) from Hospital no . CARDINAL , materials of the criminal case and information from attending physicians . The experts found , in particular , that an incomplete and contradictory description of the applicant ’s injuries upon his arrival at Hospital no . CARDINAL made it impossible to determine the exact origin , time and cause of his injuries . It could only be established that he had been hit on the head with a heavy blunt object . Moreover , a subsequent examination at ORG revealed CARDINAL broken thoracic vertebrae which had gone unnoticed at Hospital no . CARDINAL , where an X - ray examination had been indicated but never carried out .

The experts determined that , given the grave condition in which the applicant had been admitted , he should have been examined immediately by a neurosurgeon and other specialists for differential diagnosis of craniocerebral injury and intoxication and for decisions on urgent treatment . However , a neurosurgeon examined the applicant TIME later upon his arrival and in the following TIME no specialists saw him and no medical tests , not even the basic blood and urine tests , were carried out . Even the applicant ’s temperature was not taken . The experts determined as follows :

“ From the moment of arrival ( at TIME on DATE ) and until the beginning of preparation for surgery ( at TIME on DATE ) the [ applicant ] was not adequately and objectively examined , the real clinical diagnosis was not made ... and appropriate medical treatment was not indicated ... Prolonged passive observation of the [ applicant ] not accompanied by clinical examination led to drastic deterioration of his condition and , as a consequence , to belated surgical intervention not based on clinical and lab tests which resulted in markedly negative post - traumatic and post - surgery complications for the [ applicant ] ...

In the post - surgery period antibacterial treatment was indicated but given inconsistently and without appropriate supervision which , most likely , pre - determined subsequent development of CARDINAL inflammation of post - operative wounds , arachnoid membranes and medullary substances , osteomyelitis of the right parietal bone , etc ... ”

The experts also noted that there had been no objective basis for diagnosing the applicant with alcohol intoxication . Neither the ambulance doctor in his notes nor his colleagues in subsequent entries in the medical record mentioned alcohol breath . A reference to alcohol breath appeared for the first time in the partly illegible and incomplete report of a medical examination of DATE . However , that examination was carried out in breach of the applicable regulations . No treatment for intoxication was indicated and the intoxication diagnosis did not feature in any other documents . The credibility of the intoxication diagnosis was further undermined by the fact that the amount of alcohol allegedly found in the applicant ’s blood would have been lethal .

The experts concluded as follows :

“ The extent of damage resulting from the [ applicant ’s ] prolonged stay in a medical institution without adequate medical assistance can not be fully ascertained . It can only be asserted that his condition gravely deteriorated during that period and that irreversible brain changes progressed to the point where emergency surgery was required by life - saving indications ...

The present study identified a number of defects in the medical care dispensed to [ the applicant ] at Hospital no . CARDINAL of GPE – in particular , unjustified conservative treatment , incomplete examination , belated and incomplete diagnosis , belated surgical intervention , inadequate medical measures – which failed to arrest development of the grave post - traumatic process and contributed to an unfavourable outcome and the [ applicant ’s ] disability . However , it is not possible to measure the extent to which these defects affected the outcome because appropriate measurement methods do not exist . ”

At some point in DATE it transpired that the applicant ’s medical record from Hospital no . CARDINAL was lost . It had been removed by the investigator Mr PERSON from the hospital in DATE and produced to the experts for examination . It was then returned to the investigators , who were no longer able to locate it .

On DATE a deputy GPE prosecutor reversed the decision suspending the proceedings and asked that those responsible for delays and procedural violations be disciplined . On DATE an internal inquiry established that the investigator PERSON had unlawfully decided to discontinue the proceedings before the medical examination had been completed . The investigator received a reprimand and his superior was demoted .

On DATE the investigator Mr Shakhov from ORG of ORG took up the case . He wrote to the applicant ’s mother that those responsible for the loss of the medical record had been disciplined .

DATE . On DATE the investigator Mr PERSON commissioned a new medical study by the same experts and with the same questions . The previous study was considered inadmissible because it had been completed at the time when the proceedings had been suspended . On CARDINAL DATE the new study was completed . The experts returned the same findings . They also noted that their task had been hampered by numerous corrections of entries , in particular dates and times , in the medical records from ORG no . CARDINAL and because of inexplicable contradictions in those entries .

On DATE the investigator Mr Shakhov issued a decision suspending the proceedings on the ground that the authorised investigation period had expired . On DATE the decision was annulled by a supervising prosecutor .

The investigation was transferred to PERSON who suspended the proceedings on the same ground on DATE and DATE . A public prosecutor set aside his decisions on DATE and DATE .

On DATE the investigator noted that the initial forensic examination had not determined the extent of correlation between the deficiencies in the medical assistance provided to the applicant at Hospital no . CARDINAL and the damage to his health . He appointed a new medical examination by the experts from ORG of ORG and suspended the proceedings in the case .

On DATE the experts returned their findings which were based , in the absence of the original medical records , on the materials of the case file and extensive quotations from the original records in the text of the initial expert examination . The experts found that the applicant had suffered from a vascular pathology which had resulted in a subdural hematoma against the backdrop of a head trauma and alcohol intoxication . In their view , at the moment of the applicant ’s admission to Hospital no . CARDINAL , no urgent surgery was required . The hematoma was allowed to grow over a period of time under constant supervision by medical specialists who awaited the most propitious moment for brain surgery . The experts concluded that the findings of the initial examination had been “ objectively untenable ” and that the diagnosis and surgery had been carried out in a timely and precise fashion . On DATE the public prosecutor ordered the proceedings to be resumed .

Further decisions concerning the discontinuance of the proceedings on various procedural grounds were issued on DATE ( annulled on CARDINAL May ) and CARDINAL DATE ( annulled on DATE ) .

On DATE the investigator decided to commission a further forensic examination with a view to eliminating the discrepancies between the findings of the first and second experts’ reports . It was entrusted to ORG at ORG . However , the ORG refused to conduct the examination in the absence of the original medical records . The director of ORG stated to the investigator that an examination on the basis of the case - file materials and previous findings by other experts would be “ methodologically incorrect and in breach of the existing practice of expert examinations ” .

On DATE the investigator granted the applicant the status of a victim in the proceedings and recognised his mother as his legal representative .

DATE . On DATE and DATE the investigator Mr PERSON decided to discontinue the proceedings on the ground that no offence had been committed . The decisions were set aside by supervising prosecutors .

The most recent decision on discontinuance of criminal proceedings , which the ORG has in its possession , was made by the investigator Mr Volk on DATE . He took stock of the existing evidence , including the testimony by the doctors PERSON , PERSON . and PERSON from ORG no . CARDINAL , the ambulance doctors , the applicant ’s friend Mr N. , the applicant ’s mother , and the applicant himself . The findings of the first and second forensic studies were extensively quoted , as were the reasons given by the federal centre for forensic examination for refusing to conduct a “ conciliatory ” study in the absence of the original documents . The investigator reached the following conclusion :

“ Despite the existence of substantial discrepancies in the above - mentioned findings by CARDINAL experts’ commissions as to the origins and development of [ the applicant ’s ] disease and the professional level of treatment that was administered to him , neither commission could state that there was a link of causality between the treatment administered to [ the applicant ] and the consequences in the form of serious damage to the victim ’s health .

In these circumstances , the investigation finds that there are no objectively verifiable factual indications that Doctors K. , PERSON , and ORG no . CARDINAL failed to render medical assistance to [ the applicant ] without valid reasons , thus resulting in serious damage to his health , that is , that they committed the offence under LAW of LAW . ”

On DATE a supervising prosecutor quashed that decision and instructed Mr Volk to remedy the shortcomings in the investigation and , in particular , to locate the original medical documents .

Article CARDINAL of LAW defines the offence of non - provision of medical assistance to a patient as failure to provide medical assistance , without valid reasons , by the person who had a legal obligation to render such assistance . LAW concerns the situation in which such failure resulted in the patient ’s death or grave damage to his health .

Article CARDINAL concerns the offence of abandonment in a life - threatening situation , which is defined as the deliberate act of abandoning without assistance a person who finds himself or herself in a situation that endangers his or her life or limb and who is incapable of taking measures for self - preservation because of his or her young or old age , illness or helplessness , provided that the offender had the possibility of rendering assistance to that person and also a duty to take care of him or her .

Article CARDINAL defines the offence of professional negligence as non - performance or improper performance of professional duties entailing a substantial violation of the rights and legitimate interests of citizens .

Section CARDINAL provides that the police have , in particular , the duty to render assistance to victims of criminal and administrative offences and accidents , and to persons in a helpless state or in a state that is dangerous for their life or limb .

On arrival at the crime scene , a police patrol must render assistance to the victims , call an ambulance if necessary , identify possible witnesses and eye - witnesses to the crime , secure the site , report to the officer - on - duty and proceed in accordance with his instructions ( paragraph CARDINAL ) .

While administering first aid or transferring the victim to a medical institution , the police officer must examine the victim ’s clothing and exposed areas of the body with a view , in particular , to identifying him or her . If the victim shows no visible signs of life , the officer must firstly ascertain whether he is alive or not , without altering his position or that of surrounding objects ( paragraph CARDINAL ) .

Private - security departments attached to the police force are created for the protection of private property ( paragraph CARDINAL ) . Private - security forces comprise police officers as well as technical and support staff ( paragraph CARDINAL ) . Officers of private - security departments are recruited by ORG ( paragraph CARDINAL ) and they have the same rights as those conferred on the police officers under LAW , including the right to carry weapons and the right to arrest offenders ( paragraph CARDINAL) .

Before DATE LAW provided that a civil claim could be lodged after the institution of the criminal proceedings but before DATE pre - trial investigation ( LAW ) . After the amendments introduced by ORG no . CARDINAL-FZ of DATE , the time period for lodging a civil claim was extended up to the beginning of final pleadings in the first - instance court .