Preliminary objection joined to merits and rejected (non-exhaustion of domestic remedies);No violation of Art. 2 in respect of killing of applicant's relatives;Violation of Art. 2 on account of lack of effective investigation;No violation of Art. 3;Not necessary to examine Art. 6-1;Violation of Art. 13;No violation of Art. 8;No violation of Art. 14

The applicant , PERSON , is a NORP citizen , born in DATE . At the relevant time , she lived in the village PERSON near Mazıdağı ( Mardin ) in south - east GPE . The application was brought by the applicant on behalf of her deceased parents and brother , on her own behalf and on behalf of her CARDINAL suriving siblings , namely PERSON , GPE , GPE , PERSON , PERSON , PERSON , Sevgi , Iskender , PERSON and GPE . It concerns the killing of their parents and brother PERSON , allegedly by armed members of the NORP village guards , and the investigation thereof .

Since DATE , a violent conflict has been conducted in the south - eastern region of GPE between the security forces and sections of the NORP population in favour of NORP autonomy , in particular members of the ORG ( ORG ) . According to the Government , CARDINAL of the main terrorist activities of the ORG was the killing of people who have acted contrary to the cause of this organisation or who have misused property of the ORG . At the time of the events in issue , CARDINAL of the CARDINAL provinces of south - east GPE had been under emergency rule since DATE .

The facts of the case , in particular the circumstances of the killings and the efforts of the authorities to investigate the killings , are disputed .

As the village of ORG , where the applicant and her family lived at the time of the events in issue , had refused the village guard system , tension had arisen between PERSON and its neighbouring village GPE . This refusal had also resulted in pressure being applied to the villagers by the gendarmes .

On or about CARDINAL DATE , CARDINAL GPE guards were killed in a clash with the ORG . On DATE , shortly after the clash , gendarmes and village guards attacked the village of ORG . This attack lasted TIME . The following day , the FAC of PERSON complained to the Governor that his village was being subjected to pressure and violence from the gendarmes and village guards . No investigation of the attack took place .

DATE before DATE the house of the GPE and the applicant 's family house were both strafed by several rounds of bullets fired by GPE guards . The PERSON again complained to the Governor about the pressure exerted on his village by the NORP village guards and requested that steps be taken to put an end to it .

In TIME of DATE the applicant 's older brother , PERSON , and her parents , PERSON and PERSON , were killed and the applicant suffered a wound to her foot as a result of a planned action by members of the NORP village guards to kill PERSON . Before he was shot and killed , the applicant 's father was able to pull the scarf from the head of CARDINAL of the intruders and shouted that he recognised the gunmen as PERSON , head of the NORP village guards , and his nephew PERSON , a former GPE village guard . The applicant 's mother , who was seriously injured by a bullet , died on her way to hospital .

NORP The Commander of the local ORG gendarme station , who had possibly been informed beforehand of the plan by the ORG village guards to kill PERSON , seriously delayed the applicant 's mother 's access to medical treatment by refusing to provide a car to replace the defective minibus which was to transport her to a hospital and by unduly delaying the departure of this minibus for Mazıdağı .

The subsequent investigation of these killings was not only ineffective and inadequate in professional terms , but was in fact designed to cover up the involvement of the NORP village guards and to prevent the conviction of PERSON and PERSON . From the very beginning of the investigation , and throughout the entire subsequent proceedings , the authorities blamed the ORG for the killings and failed to keep the applicant informed of any steps taken in the investigation .

On DATE ORG forces attacked GPE guards on the slopes of the PERSON hill close to the village of ORG . This clash lasted TIME . There were no casualties . To date , the perpetrators of this attack have not been found .

On DATE ORG forces ambushed CARDINAL NORP village guards on a road near the village of ORG . In the course of this clash , which lasted TIME , CARDINAL village guards were killed and CARDINAL others wounded . An investigation into the clash was carried out . The ORG gendarme station commander , PERSON , took statements from the CARDINAL surviving village guards during the course of the investigation . To date , the perpetrators of this attack have not been identified .

On DATE at TIME an armed ORG attack using rocket missiles and heavy weapons was carried out on a PTT radio link station in LOC , at a distance of QUANTITY from Mazıdağı . The village guards present returned fire . The clash lasted TIME . There were no casualties . Shortly after the clash , gendarmes from the LOC gendarme station arrived at the scene . DATE , a land mine was found on the road leading to the PTT station . The initial investigation of this attack was carried out by LOC gendarme station under the responsibility of the public prosecutor at Mazıdağı .

Also in TIME of DATE the killing of CARDINAL PERSON villagers was reported to the public prosecutor in Mazıdağı . For reasons of security , the public prosecutor only arrived at the scene of the incident at TIME . He conducted an investigation , including attendance at the post mortem examination of the bodies of the victims carried out by a medical doctor .

All necessary steps were taken to investigate the killing of the applicant 's parents and brother , including the collection of evidence . After having completed his preliminary investigation , the public prosecutor of Mazıdağı issued on DATE a decision of lack of jurisdiction and the investigation was referred to the public prosecutor 's office at ORG . This referral resulted in the institution of proceedings against PERSON and PERSON before ORG .

On DATE , in the context of these proceedings and on the instructions of ORG , further statements were taken before a judge of ORG from PERSON , PERSON and ORG . No statements were taken from the applicant and her sister PERSON , since they no longer resided in PERSON and their new address could not be established .

On DATE ORG acquitted PERSON and PERSON for lack of evidence . After this decision the investigation nevertheless continued but the perpetrators of the killing of the applicant 's parents and brother have not been found .

The Government submitted that it appeared from information obtained that the ORG had provided the applicant 's brother PERSON with a taxi , which he had put to his own private use . He had thus made his family a target of the ORG , a terrorist organisation which was in all likelihood responsible for the killing of the applicant 's parents and brother .

On DATE an incident report was drawn up by the gendarmes of the LOC gendarme station stating that at TIME that day , a group of terrorists belonging to the outlawed ORG organisation entered the home of PERSON and opened fire . PERSON and PERSON were shot and killed . PERSON and PERSON were injured and PERSON died on the way to hospital . The report also referred to CARDINAL empty PERSON cartridges without further specifications .

On the same date ORG PERSON of FAC drew a sketch map of the interior of the PERSON family 's CARDINAL - room house . It indicated in CARDINAL room the location of the bodies of PERSON and PERSON , CARDINAL blood stains between the body of PERSON and the front door and CARDINAL empty cartridges . In the other room the location of the body of PERSON and CARDINAL empty cartridges was indicated . No blood stains were recorded in the room where the body of PERSON was indicated . The sketch map only recorded what had been found inside the house . It did not contain any information about the immediate surroundings of the house .

According to a post mortem examination report dated DATE , due to security precautions , the team of experts only arrived on DATE at TIME in PERSON , acting on a report that CARDINAL persons had been killed there on DATE at TIME . This team consisted of the public prosecutor of ORG , the medical doctor PERSON of ORG , a clerk , an autopsy assistant and a driver . The report further indicated that Mome had died on the way to hospital and that her body had been brought back to the village . The bodies of PERSON , PERSON and PERSON had been identified by a relative , PERSON . The examination report contained information on bullet - entries and exits and concluded that the respective causes of death were haemorrhaging of the lungs , loss of blood and cessation of vital functions . Given the obvious nature of the cause of death , it was decided that there was no need to conduct an autopsy .

On CARDINAL and DATE statements were taken from the applicant and her sister PERSON by the ORG gendarme station commander , PERSON , and by gendarme officer PERSON of the NORP district gendarme station .

On DATE PERSON took statements from the NORP village guards PERSON , son of PERSON and born in DATE , and ORG , son of PERSON and born in DATE , in relation to the events of DATE . PERSON stated that he was the Head of the NORP village guards and that on DATE he had been on patrol duty on the Kırmızıtepe hill to the west of ORG . He denied any involvement in the killing of the applicant 's parents and brother and stated that he felt slandered . His account was supported by ORG who confirmed that he had been on patrol on the Kırmızıtepe hill together with PERSON until TIME of DATE . ORG further declared that neither the village of GPE nor PERSON had any involvement in the killings .

On DATE Mr PERSON took a statement from PERSON , son of ORG and born in DATE , who stated that on DATE he had not been in ORG . On DATE he had been loading goods onto his lorry in the province of GPE and had driven his lorry to GPE . He further declared that due to his work , he never stayed very long in GPE .

DATE and CARDINAL DATE a ballistics examination was carried out . According to a ballistics report of DATE of the forensic laboratory in GPE , the CARDINAL empty CARDINAL PERSON calibre PERSON cartridges found at the scene of the killing had been fired from CARDINAL different weapons with the same calibre , i.e. QUANTITY from CARDINAL weapon , CARDINAL from another and CARDINAL from a third weapon . In a report of CARDINAL DATE , transmitted to the Mazıdağı prosecutor , the forensic laboratory in ORG concluded that none of the CARDINAL cartridges found at the scene of the killings matched the CARDINAL empty cartridges reportedly taken from the PERSON rifle of PERSON and that , therefore , the CARDINAL cartridges had not been fired from PERSON weapon .

On DATE the NORP public prosecutor PERSON , decided that he lacked jurisdiction to deal with the case . The decision listed PERSON and PERSON as being suspected of the offence of “ politically motivated murder ” of the applicant 's parents and brother . It noted that , following its investigation , LOC command had concluded that unidentified members of the ORG terrorist organisation had committed the killings , but that , according to the respective accounts of the applicant and her sister PERSON , their father had recognised the perpetrators as PERSON and PERSON . Concluding that the alleged offence fell within the scope of PERSON No . CARDINAL , it was decided that the Mazıdağı prosecutor 's office lacked jurisdiction and that the case - file should be transmitted to the prosecutor 's office at ORG .

On DATE , following referral of the prosecution 's case file to the prosecutor at ORG , the prosecutor at this court , PERSON , took certain additional measures with respect to the ballistics examination . He enquired as to why CARDINAL empty cartridge shells had been sent for examination , whereas CARDINAL such cartridges taken from PERSON weapons owned by CARDINAL village guards had been required for a comparison . He further instructed the gendarmerie to provide him with a list of the PERSON village guards as well as the PERSON delivery receipts of these village guards and to send the PERSON delivered to PERSON and all other PERSON belonging to the village guards to the forensic laboratory in ORG for a ballistics examination . In the event of there being insufficient replacement rifles , he instructed that these rifles be discharged and the empty cartridges numbered in order to identify which cartridge was fired from which weapon and to send these cartridges to the forensic laboratory for a ballistics examination .

On DATE the LOC gendarme command sent to the prosecutor 's office at ORG CARDINAL weapon and ammunition delivery receipts of the GPE guards and CARDINAL numbered empty cartridges . No information was provided as to the circumstances of the firing of the weapons . On DATE ORG in ORG submitted to ORG a ballistics examination report which concluded that none of the CARDINAL empty PERSON cartridges matched the CARDINAL cartridges found at the place where the applicant 's parents and brother had been shot .

On DATE prosecutor PERSON charged PERSON and PERSON with politically motivated murder of the applicant 's parents and brother PERSON , under LAW , CARDINAL and CARDINAL of GPE and LAW DATE .

On DATE ORG instructed ORG , inter alia , to take statements from PERSON and PERSON , ORG and PERSON , and to take evidence from ORG and PERSON . It adjourned its further examination until DATE . On that date it noted that the results of its instructions had not yet arrived and that it appeared from the case - file that weapons seized from the suspects had been sent to ORG for a ballistics examination .

Pending the implementation of its above - mentioned orders for the hearing of witnesses and a request for the preparation of a further forensic laboratory report , ORG adjourned the proceedings several times , on the last occasion until DATE .

In the meantime , according to a statement dated CARDINAL DATE and signed by the gendarmes PERSON and PERSON and by the FAC of PERSON , the applicant and her sister PERSON were living around Cezaevi in the Diyarbakır province , but their address could not be established . In another statement dated CARDINAL DATE and signed by the same gendarmes and ORG , ORG , it was noted that the current whereabouts of PERSON were unknown .

On DATE , in the presence of the NORP public prosecutor PERSON , the judge at ORG , PERSON , took statements from PERSON , PERSON and PERSON . It was noted that PERSON had not appeared . PERSON stated that PERSON had left ORG some time ago , that he was unaware of PERSON 's whereabouts and , in any event , PERSON had not been in the village for a long time . As regards the applicant and her sister PERSON , it was noted that they had not appeared and that the response to their summons indicated that they were not in the village and were residing in the Cezaevi neighbourhood in GPE . On DATE ORG noted that no statements had been taken from the applicant and her sister PERSON as their address could not be established .

On DATE ORG tried the case in the absence of the defendants as well as of the applicant and her sister . The prosecution submitted that the applicant and her sister had only heard their father state the names of the accused but that there was no other evidence supporting their account . The prosecution argued that , in these circumstances , the accused should be given the benefit of the doubt and acquitted . By judgment of DATE ORG unanimously acquitted PERSON and PERSON of the charges against them .

Since the facts of the case are disputed , particularly concerning the circumstances of the killings and the adequacy of the follow - up investigation , the ORG conducted an investigation with the assistance of the parties . The ORG obtained documentary evidence , including written statements . The oral evidence of the applicant and CARDINAL witnesses was heard by CARDINAL Delegates at a hearing in GPE on DATE and CARDINAL and DATE .

As regards written evidence , the ORG had particular regard to the statements of both the applicant and his sister PERSON of CARDINAL and DATE ( taken by the ORG gendarme station commander PERSON and by gendarme officer PERSON of the NORP district gendarme station ) ; a statement by the applicant of DATE ( taken by Mr PERSON , the public prosecutor of ORG ) ; an undated statement taken by Mr Sedat Aslantaş of LOC of ORG ( submitted to the Commission on DATE ) ; a statement by the applicant 's sister of DATE ( taken by ORG ) ; statements by village guards PERSON and ORG taken on CARDINAL and DATE ( at ORG gendarme station by PERSON ) ; a statement by PERSON ( taken on DATE by gendarme PERSON at the LOC gendarme station ) ; a statement of DATE of PERSON ( taken by ORG ) ; statements taken on DATE from PERSON , PERSON and PERSON by judge PERSON of ORG upon request of ORG .

The ORG also had regard to an incident report and a sketch map , both dated DATE ; an ambulance record of DATE ; a post mortem examination report dated DATE ; correspondence of the NORP public prosecutor ; forensic ballistics inquiries and examinations ; ORG decision of lack of jurisdiction dated DATE and a number of TIME of the proceedings before ORG ; as well as other documents .

The latter included gendarme reports and statements related to the investigation of the attack on GPE guards on DATE , according to which a group of CARDINAL LOC guards travelling by tractor on the road from GPE to the ORG gendarme station were attacked by ORG forces on DATE at TIME . At the time of the attack , the village guards found themselves between the villages PERSON and PERSON . CARDINAL village guards were injured , amongst whom PERSON , son of PERSON and born in DATE . CARDINAL others were killed , amongst whom PERSON , son of ORG and born in DATE , and PERSON , son of PERSON and born in DATE .

Account was also taken of letters of various dates DATE and DATE , from the Commander of the LOC gendarme station to the office of the public prosecutor in Mazıdağı in which he informed the public prosecutor that the identities of the ORG members who had killed the applicant 's parents and brother had not yet been established . A number of these letters , including one sent on DATE , stated that the investigation of the matter was still ongoing .

The oral evidence included statements by the applicant herself , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , ORG , ORG , ORG , PERSON and PERSON .

The verbatim record of the hearing held on DATE contained the following passages of relevance to the ORG 's preliminary objection as to the authenticity of the application ( see paragraph CARDINAL below ) :

“ Mr PERSON : Did you make CARDINAL statements at the station , and did you sign them ?

Miss PERSON : Yes . I went there a few times . They asked me questions . I answered them . They wrote them down . I put my fingerprint as I do n't know how to write . But I do n't know what they wrote . I answered the questions just as I 'm doing here DATE . My brother was with me . I put my fingerprint to the statements .

Mr. PERSON : Since you can not read , I will only show you your fingerprint , and you will say whether it 's yours or not .

A document is shown to the applicant .

Miss PERSON : Yes , it 's mine . That 's how I put my fingerprint . ”

In relation to the oral evidence , the ORG was aware of the difficulties in assessing evidence obtained orally through interpreters : it therefore paid careful attention to the meaning and significance to be attributed to the statements made by the witnesses appearing before its Delegates . The ORG was aware that the cultural context of the applicant and witnesses rendered it inevitable that there would be a certain degree of imprecision with regard to dates and other details . However it did not consider that this by itself detracted from the credibility of the testimony .

In a case where there were contradictory and conflicting factual accounts of events , the ORG was acutely aware of its own limitations as a first instance tribunal of fact . The problems of language were adverted to above ; there was also an inevitable lack of detailed and direct familiarity with the conditions in the region . In addition , the Commission had no powers to take specific measures to compel witnesses to give oral or written evidence . In the present case , despite the ORG 's specific request , the ORG failed to submit certain relevant documents . The ORG was therefore faced with the difficult task of determining events on the basis of incomplete evidence .

The ORG 's findings can be summarised as follows .

The villages of ORG and PERSON were situated in an area which was subjected to significant ORG activity in DATE . It was undisputed that , prior to the events at issue , village guards from ORG had been attacked on CARDINAL occasions by ORG forces and that , on DATE , ORG forces attacked a nearby PTT radio link installation .

The inhabitants of ORG and CARDINAL other villages belonged to the “ LOC ” clan . It appeared that , at the relevant time , all villages belonging to this clan , with the exception of the village of PERSON and CARDINAL other village , had village guards and that pressure was exerted to join the village guard system . A number of witnesses stated that the refusal of ORG to join the village guard system had resulted in tension between PERSON and ORG . Other witnesses denied such tension . The public prosecutor at ORG confirmed that he had heard rumours that the inhabitants of ORG opposed ORG and , therefore , the village guards were their enemies . The NORP village guards were not authorised to act on their own initiative . They received their orders from and had to report to the Commander of the nearby ORG gendarme station .

Although it could not make any definite findings on this point , the Commission did not consider it to be implausible that PERSON ' refusal to join the village guard system during a period of significant ORG activity in the area , had resulted in tension between the village guards of ORG and the inhabitants of ORG .

The Commission was satisfied from the evidence given by the applicant and her sister , that in TIME of DATE after having introduced themselves as soldiers knowing that the PERSON was absent from PERSON and wishing to conduct a house search , CARDINAL armed and masked men entered their family home . CARDINAL of the men immediately shot and killed their brother PERSON . In the course of their struggle with the intruders , the applicant 's father was shot and killed by one of the intruders and the applicant 's mother was seriously injured by a shot fired by the other intruder . There was no reason to doubt that both the applicant and her sister heard their father call out the names of the CARDINAL perpetrators whom he had recognised as PERSON and PERSON from GPE .

The killings in question were the result of a premeditated plan to kill the applicant 's brother . As to the possible motive for the killing it could not be excluded that there were tensions between the inhabitants of ORG and the NORP village guards at the relevant time which had already resulted in armed attacks on houses in ORG . Nor could it be excluded that PERSON may have been a particular target because of his suspected involvement in the ORG killing of village guards from ORG . On the other hand , the ORG 's contention that the ORG had a motive for killing PERSON because they had provided him with a vehicle which he had used for his own benefit rather than for services required by the ORG had not only remained unsubstantiated but was , moreover , contradicted by substantial evidence submitted by the applicant .

As to the circumstances of the killing itself , the ORG found it established that the killers were aware that the Muhtar of PERSON was absent from the village and that the applicant and her sister heard their father call out the names of the perpetrators , identifying them as PERSON and PERSON . Moreover , the evidence of PERSON and PERSON that the NORP village guards , including PERSON , had been on guard duty throughout TIME DATE was at least open to question . In addition , the suspicion of the involvement of GPE guards was reinforced by the identification of PERSON and PERSON by the applicant and her sister at the NORP gendarme station . Nevertheless , while the evidence was sufficient to give rise to suspicion as to the identity of the killers , it had not been established to the required standard of proof beyond reasonable doubt that the applicant 's brother , father and mother were killed by agents of the ORG .

In this connection , the ORG noted that the applicant had given the Delegates a description of the CARDINAL men : the one who shot her brother PERSON and her mother had been described as a person with long fair hair , hazel eyes and a fair complexion , whilst the man who shot their father was described as having a moustache and black eyes . Her sister , PERSON , confirmed that the man who shot PERSON had hazel eyes but stated that she had not seen the second intruder . The applicant had further given evidence that , on DATE , when she subsequently attended the NORP gendarme station , she saw PERSON and PERSON and recognised them as the same CARDINAL men . This was confirmed by PERSON in that , on the same occasion , she had recognised PERSON as CARDINAL of the killers from his height , build , hazel eyes , nose and complexion .

The Commission considered that this evidence should be treated with caution . In the circumstances of the sudden and traumatic events of that TIME , it was at least doubtful whether either the applicant or her sister would have had an opportunity to form a clear and accurate impression of the features of either man . In particular , PERSON appeared only fleetingly to have seen her brother 's killer , whose face had been masked with a scarf . The Commission noted that the description given by them of PERSON and PERSON was contradicted by ORG , who knew both men and who described PERSON as being lean with a dark complexion and black hair and PERSON as being a more bulky man of the same height with a light complexion and chestnut brown hair .

As to the evidence of the subsequent identification of these CARDINAL men , the Commission found no reason to doubt that the applicant and her sister did see PERSON and PERSON at the NORP gendarme station on DATE . What was , however , more doubtful was whether the identification of the CARDINAL men was entirely spontaneous or whether the applicant and her sister were made aware that the men were PERSON and PERSON , whose names had been called out by their father .

Finally , it had not been established that PERSON , the Commander of the ORG gendarme station , had considerably delayed the provision of medical treatment to the applicant 's injured mother or that the gendarme forces failed to offer her available assistance . In this connection , the ORG had regard to its findings as regards the time of the armed attack and the moment at which the applicant 's mother received medical care in Mazıdağı .

From the evidence of PERSON it appeared that , after the minibus transporting the applicant 's mother had left for Mazıdağı , he reported the incident in PERSON to his superiors at the GPE gendarme station in Mazıdağı and stated that he suspected that the ORG was responsible for the killings . He was told that , for reasons of security , the public prosecutor would only come to PERSON TIME . He then ordered a first gendarme team to secure the area around ORG . A second team , led by himself , joined the first team DATE . Thereupon , he and CARDINAL gendarme team went to ORG . They arrived TIME and found the bodies of the CARDINAL victims inside the applicant 's house .

Although the local gendarmes only arrived in PERSON TIME after the killings occurred , the ORG accepted that this delay had been caused by the fact that on the same evening an armed attack on a nearby radio link installation had taken place . However , once in ORG , the gendarmes only secured the scene of the crime and , in the absence of any instructions , passively awaited the arrival of the competent investigation authorities , in the instant case the public prosecutor at Mazıdağı .

According to PERSON , the villagers present were unwilling to provide the first team of gendarmes with any information about the killings . After having secured the scene of the killings , he and the other gendarmes merely awaited the arrival of the prosecutor since they had not been ordered to take any investigative steps .

In TIME of DATE an investigation team consisting of the public prosecutor of CARDINAL , PERSON , and , amongst others , Dr. PERSON left CARDINAL for ORG .

After the investigation team had arrived in PERSON and before attending the post mortem examination of the victims ' bodies , the public prosecutor briefly inspected the scene of the killings and ordered PERSON to draw a sketch map of the scene of the killings and to collect the empty cartridges lying there . Without having been numbered and without having recorded the exact location of each cartridge , the CARDINAL empty cartridges found were put together in a bag and handed to the public prosecutor . No photographs of the scene of the killings were taken by or on behalf of the investigation team .

The information recorded on the sketch map of the scene of the killings appeared to be incomplete . In contrast to a remark in the post mortem body examination report and the testimony of Dr. PERSON , the sketch map did not indicate a large blood stain on the spot where the body of PERSON had been found . Furthermore , although both PERSON , who drew the sketch map , and ORG were aware that the body of the applicant 's mother had been moved , this fact had not been recorded on the sketch map . Although the ORG accepted that , at the time this sketch map was drawn , the members of the investigation team may have been unaware of the fact that the body of the applicant 's father had also been moved from the outside of the house , the subsequent investigation could not have been assisted by the fact that the scope of the sketch map was confined to the inside of the house and did not contain any information about the immediate surroundings .

The Commission noted that , according to the post mortem examination report , the applicant 's brother , lying in bed , was hit by numerous bullets in his face , by CARDINAL bullet in his chest and by another bullet in his knee . The ORG found this recorded observation difficult to reconcile with the fact that , according to the sketch map , CARDINAL empty cartridges were found in the room where PERSON was shot and with the evidence that not a single bullet had been found in that room . Furthermore , although there was strong evidence suggesting that the applicant 's father had been shot and killed outside the house , the sketch map only contained information on what had been found inside the house . Although this was denied by PERSON , the Commission could not exclude that more than the CARDINAL recorded empty cartridges were in fact found and collected , including empty cartridges found outside the house .

After having conducted the examination of the bodies and released the victims ' remains for burial , the investigation team left ORG . Although the public prosecutor was aware that both the applicant and her sister were present in PERSON during the visit of the investigation team , neither the public prosecutor nor any other official took any statement 's from them or any of the other inhabitants of PERSON on DATE .

As early as CARDINAL DATE the public prosecutor suspected that the ORG was responsible for the killings and , in a telegram sent DATE , informed the office of the public prosecutor at ORG in ORG accordingly . Although in his evidence to ORG , ORG stressed that this had only been a provisional opinion , his respective requests dated DATE to ORG in DATE to issue death certificates in respect of the applicant 's parents and brother simply state that they “ were murdered by fire - armed members of the outlawed ORG terrorist organisation ” and , consequently , their deaths were officially recorded as having been caused by the ORG terrorist organisation .

It was only on DATE that the applicant and her sister PERSON gave a statement about the events of DATE to the commander of the ORG gendarme station PERSON . The applicant stated that she had heard her father call out the names of the intruders and she further gave a description of the intruders ' physical appearance . PERSON stated that she had heard her father call out CARDINAL name and did not give any description of the intruders ' physical features . According to PERSON , this was the first time that he heard the allegation that PERSON and PERSON had committed the killings .

In his testimony to the Delegates , PERSON had a firm recollection that he had also taken statements from ORG , PERSON and PERSON . In reply to the request of ORG to submit these statements , the Government stated by letter of CARDINAL DATE that PERSON had not participated in the interrogation of these QUANTITY persons . The ORG further noted that its case - file did not contain any statement given by any of these QUANTITY persons at the ORG gendarme station .

The Commission further found it established that ORG , from the outset , had a rather firm conviction that ORG forces had committed the killings . Although he stressed that this had only been a provisional opinion inspired by views expressed by the gendarmes and his own experience , the ORG found no support for the asserted provisional nature of this suspicion . In fact , it appeared from the contents of his written communications of DATE that he had firm ideas about the identity of the perpetrators . This element , taken together with his failure to try to talk to the applicant and her sister on DATE , resulted in a loss of time in the initial phase of the investigation .

As regards the encounter on DATE between the applicant and her sister and PERSON and PERSON in the LOC gendarme station , the ORG found that it could not be excluded that this encounter was in fact the result of a coincidence since ORG had not ordered a confrontation . It did not appear from the evidence that the applicant and her sister had been invited by the investigation authorities to identify the perpetrators either from a collection of photographs or at an identity parade . The ORG found that no photographs of PERSON and PERSON had ever been shown to the applicant and her sister and that at no point in time had a formal confrontation been ordered .

The ORG further noted from the evidence submitted that , apart from the statement taken from PERSON at the ORG gendarme station on DATE , hardly any attempts were made or seriously pursued to obtain any further evidence from him . Nor did it seem that any attempt had been made to verify his alibi by , for instance , checking his whereabouts on CARDINAL and DATE by seeking confirmation from those persons present when he was allegedly loading goods in GPE or from those to whom he had delivered these goods . It did not appear from the statement he gave at the ORG gendarme station that he was in fact asked to give the names of persons who had seen him on DATE .

As regards the alibi advanced by PERSON , the ORG noted that his presence on Kırmızıtepe hill at the time of the killings was in fact only supported by the statements of ORG and PERSON , whereas the latter had stated to ORG that he had not in fact been in the presence of PERSON at the time of the killings , but had only seen him shortly afterwards . Given the evidence that there were , in total , CARDINAL village guards in ORG who were organised in teams of CARDINAL persons , the Commission found it remarkable that , apart from ORG , no evidence was taken from the other village guards who were on duty in the same team as PERSON at the relevant time in order to verify the respective positions of each team member on PERSON hill TIME .

After having received the case - file , PERSON , the public prosecutor at ORG noted that the investigation had been incomplete . In order to complete the investigation , he issued a number of instructions to the LOC gendarme station by letter of CARDINAL DATE including that comparison cartridges be taken from the weapons held by the village guards from ORG . On DATE the Commander of the LOC gendarme station transmitted CARDINAL weapon delivery receipts and CARDINAL empty cartridges taken from the GPE guards to the office of the public prosecutor at ORG . This letter contained no information as to when and in which manner these cartridges were obtained .

Although PERSON considered that there was no concrete evidence in support of the accusations made against PERSON and PERSON and was convinced that the ORG was responsible for the killings , he nevertheless brought proceedings against PERSON and PERSON on charges of politically motivated murder and indicted them on DATE before ORG , which had jurisdiction to determine murder charges linked to terrorism . He did not find it necessary to take any further statements or to order the arrest or pre - trial detention of the accused . In his opinion , it was excluded that the security forces would cover up a crime committed by village guards .

In the subsequent proceedings before it , ORG in ORG requested , inter alia , that statements be taken from PERSON and PERSON , from the applicant and her sister PERSON , and from ORG and PERSON . They were all summoned to appear on DATE before a judge of ORG in order to give statements , but only PERSON , ORG and PERSON in fact did so . As the whereabouts of PERSON , the applicant and her sister were not established , their summonses were returned to ORG and , consequently , no further statements were taken from them .

The ORG noted that , although the gendarmes and ORG were informed that the applicant and her sister were residing in the Cezaevi neighbourhood in ORG , it did not appear that any attempts were made or ordered to locate them . Nor did it seem that any further attempts were made or ordered to find PERSON . The Commission noted that the FAC of Karataş , ORG , testified that he had been aware of the exact address of the applicant and her sister in ORG , but that he had never been asked to provide the local gendarmes with this address . He explained his signature on a document dated DATE by stating that it had been normal practice in the area for gendarmes to require PERSON to sign blank documents for future use . No further clarification on this point could be obtained from PERSON , as he had left the ORG gendarme station in DATE . In these circumstances , it was impossible for the ORG to make any findings in this respect . What was clear , however , was that ORG was informed that the applicant and her sister were residing at that time in LOC ORG . In this connection , the ORG had also regard to the evidence of the applicant 's brother that , since their departure from ORG and to date , the PERSON family had always lived at the same address in ORG .

The Commission accepted that the supplementary investigation measures ordered by the public prosecutor at ORG , PERSON , in order to mend certain deficiencies in the preliminary investigation , were appropriate , although it was open to doubt whether , given the passage of time since the killings , these measures were as effective as they might have been in the initial phase of the proceedings . Moreover , he testified that he was convinced at the outset that the ORG was responsible for the killings , which might explain why he decided to indict PERSON and PERSON before ORG , rather than referring the case to a court competent to try common crimes . This was supported by the fact that , apart from PERSON , none of the other vital witnesses gave evidence to ORG .

The principles and procedures relating to liability for acts contrary to the law may be summarised as follows .

Under LAW ( TPC ) all forms of homicide ( Articles CARDINAL to CARDINAL ) and attempted homicide ( Articles CARDINAL and DATE ) constitute criminal offences . The authorities ' obligations in respect of conducting a preliminary investigation into acts or omissions capable of constituting such offences that have been brought to their attention are governed by ORG CARDINAL to CARDINAL of LAW . Offences may be reported to the authorities or the security forces as well as to public prosecutor 's offices . The complaint may be made in writing or orally . If it is made orally , the authority must make a record of it ( LAW .

By Article CARDINAL of LAW , any public official who fails to report to the police or a public prosecutor 's office an offence of which he has become aware in the exercise of his duty is liable to imprisonment .

A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts in order to decide whether or not there should be a prosecution ( LAW ) .

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

If the suspected offender is a civil servant and if the offence was committed during the performance of his duties , the preliminary investigation of the case is governed by LAW on the prosecution of civil servants , which restricts the public prosecutor 's jurisdiction ratione personae at that stage of the proceedings . In such cases it is for the relevant local administrative council ( for the district or province , depending on the suspect 's status ) to conduct the preliminary investigation and , consequently , to decide whether to prosecute . Once a decision to prosecute has been taken , it is for the public prosecutor to investigate the case .

An appeal to ORG lies against a decision of the ORG . If a decision not to prosecute is taken , the case is automatically referred to that court .

By virtue of DATE , paragraph ( i ) , of Legislative Decree no . CARDINAL of DATE on the authority of the governor of a state of emergency region , the DATE PERSON ( see paragraph CARDINAL above ) also applies to members of the security forces who come under the governor 's authority .

If the suspect is a member of the armed forces , the applicable law is determined by the nature of the offence . Thus , if it is a “ military offence ” under LAW ( Law no . CARDINAL ) , the criminal proceedings are in principle conducted in accordance with PERSON no . CARDINAL on the establishment of courts martial and their rules of procedure . Where a member of the armed forces has been accused of an ordinary offence , it is normally the provisions of LAW which apply ( see LAW and sections CARDINAL to CARDINAL of Law no . CARDINAL ) .

The Military Criminal Code makes it a military offence for a member of the armed forces to endanger a person 's life by disobeying an order ( LAW ) . In such cases civilian complainants may lodge their complaints with the authorities referred to in LAW ( see paragraph CARDINAL above ) or with the offender 's superior .

Under LAW of PERSON no . CARDINAL on administrative procedure , anyone who sustains damage as a result of an act by the authorities may , within DATE after the alleged act was committed , claim compensation from them . If the claim is rejected in whole or in part or if no reply is received within DATE , the victim may bring administrative proceedings .

Article CARDINAL § § CARDINAL and CARDINAL of the LAW provides :

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

The authorities shall be liable to make reparation for all damage caused by their acts or measures . ”

That provision establishes the ORG 's strict liability , which comes into play if it is shown that in the circumstances of a particular case the ORG has failed in its obligation to maintain public order , ensure public safety or protect people 's lives or property , without it being necessary to show a tortious act attributable to the authorities . Under these rules , the authorities may therefore be held liable to compensate anyone who has sustained loss as a result of acts committed by unidentified persons .

DATE of Legislative Decree no . CARDINAL of DATE , the last sentence of which was inspired by the provision mentioned above ( see paragraph CARDINAL above ) , provides :

“ No criminal , financial or legal liability may be asserted against ... the governor of a state of emergency region or by provincial governors in that region in respect of decisions taken , or acts performed , by them in the exercise of the powers conferred on them by this legislative decree , and no application shall be made to any judicial authority to that end . This is without prejudice to the rights of individuals to claim reparation from the ORG for damage which they have been caused without justification . ”

DATE . Under LAW , anyone who suffers damage as a result of an illegal or tortious act may bring an action for damages ( Articles CARDINAL to CARDINAL ) and non - pecuniary loss ( Article CARDINAL ) . The civil courts are not bound by either the findings or the verdict of the criminal court on the issue of the defendant 's guilt ( Article CARDINAL ) .

However , under LAW no . CARDINAL on ORG employees , anyone who has sustained loss as a result of an act done in the performance of duties governed by public law may , in principle , only bring an action against the authority by whom the civil servant concerned is employed and not directly against the civil servant ( see LAW ) . That is not , however , an absolute rule . When an act is found to be illegal or tortious and , consequently , is no longer an “ administrative act ” or deed , the civil courts may allow a claim for damages to be made against the official concerned , without prejudice to the victim 's right to bring an action against the authority on the basis of its joint liability as the official 's employer ( LAW ) .


David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano

NORP The applicant , PERSON , is a NORP national , who was born in DATE . The President of the Section decided of his own motion to grant the applicant anonymity ( Rule CARDINAL § CARDINAL of ORG ) and confidentiality of the case file documents ( Rule CARDINAL of ORG ) . He was represented before the ORG by PERSON , a lawyer practising in PERSON .

ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON of ORG .

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

In DATE the applicant started dating the future mother of his child . They were engaged and moved in together . Their cohabitation broke down in DATE , before the child was born in DATE . The mother did not allow the applicant to visit his daughter .

On DATE the applicant ’s paternity was confirmed by ORG ( käräjäoikeus , tingsrätten ) . The applicant contacted the child welfare authorities in order to have contact with the mother and the child , but in vain .

On DATE the applicant requested ORG to grant him visiting rights to his daughter .

On DATE and CARDINAL May CARDINAL the child ’s mother and her current husband requested that a restraining order be issued against the applicant .

On DATE the applicant attempted to murder the husband of the child ’s mother .

On DATE ORG issued a restraining order against the applicant . He was not allowed to approach the child , the mother of the child or her husband . This judgment was final .

On DATE ORG refused the applicant ’s application for visiting rights . It found that the applicant had never met his daughter , who was by then DATE . However , the applicant had had his paternity confirmed and had also tried to establish contact with his daughter . On the basis of these circumstances , visiting rights could be granted to the applicant . As the daughter did not know her father , the meetings needed to be conducted in the presence of the mother . The applicant being detained , these meetings would have to take place in prison , which could not be regarded as a suitable place for initiating the meetings . Considering the existence of the restraining order , the mother could not be obliged to take the child to prison to meet the father . There were thus no grounds for granting visiting rights to the applicant at that moment . Such rights could be granted later when the applicant was released from prison .

The applicant did not appeal against this decision .

On DATE the applicant requested ORG to change the previous decision so that the daughter would have the right to visit and to maintain contact with her father first under supervision and later unsupervised . The mother opposed such visiting rights .

On DATE ORG refused the applicant ’s application . It noted that the applicant had been found guilty of the attempted murder of the current husband of his child ’s mother . Although a prison sentence as such did not prevent visits from taking place , the applicant had committed the criminal act in a state of diminished responsibility and , while in prison , he had seriously threatened the life of the child ’s mother . It was not in the best interest of the child to meet her father , even under supervision .

NORP By letter dated DATE the applicant appealed against the decision of CARDINAL DATE to ORG ( hovioikeus , hovrätten ) , reiterating the grounds already presented before ORG .

On DATE the applicant was released from prison .

On DATE ORG , after having held an oral hearing on DATE , rejected his appeal . It found that the child was at the time DATE . Even though the applicant ’s circumstances had improved since his release from prison , the child ’s mother still had grounds to fear for her life and the life of the child . Moreover , the applicant had been diagnosed as suffering from mental problems which also gave an additional reason to fear for the child ’s safety . In such a situation , the best interest of the child required that the applicant was not granted visiting rights .

By letter dated DATE the applicant further appealed to ORG ( korkein oikeus , högsta domstolen ) , reiterating the grounds of appeal already presented before ORG .

On DATE ORG refused the applicant leave to appeal .

According to sections CARDINAL and CARDINAL of ORG and Right of Access Act ( laki lapsen huollosta ja tapaamisoikeudesta , lagen angående vårdnad om barn och umgängesrätt , Act no . CARDINAL/CARDINAL ) , a child has a right to maintain contact with and visit the parent with whom he or she does not live . Custody and right of access must be decided in the best interest of the child .


The applicants , Mr PERSON and Mr PERSON GPE , are NORP nationals who were born in DATE and DATE respectively and live in GPE . The first applicant is the father and legal representative of the second applicant . The respondent Government were represented by Mr PERSON , Representative of GPE at ORG .

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

Both applicants live , together with the second applicant ’s mother and his elder brother PERSON ( born in DATE ) , in a flat in GPE which is not the subject of the present application ( “ the old flat ” ) . Under the terms of a private ownership certificate dated DATE , the second applicant is the sole legal owner of the old flat .

In DATE the first applicant invested money in the construction of a block of flats in GPE . Once the work was completed , the first applicant registered title to a flat in that block ( “ the new flat ” ) in his own name and those of his CARDINAL sons , PERSON ( the second applicant ) and PERSON , in equal shares .

In DATE the applicant decided to sell the new flat and applied for clearance of the transaction to the guardianship and wardship department of ORG in south - eastern GPE ( отдел опеки и попечительства районной управы « PERSON г. GPE , “ the guardianship authority ” ) .

On DATE a deputy head of ORG informed the applicant that clearance would not be given because the sale “ would result in a reduction of your underage son ’s property ” and it would therefore be “ not in the interests of the minor ” . The applicant appealed to a court .

On DATE ORG of GPE gave judgment . It found that LAW of LAW did not apply because the new flat had not been ( formally ) donated to the second applicant , nor had it been inherited by him or acquired at his expense . The new flat had been purchased by the first applicant , who had invested his and his wife ’s savings . Having regard to the fact that the second applicant was also the legal owner of the flat where the applicants’ family lived , the court found that the refusal by the guardianship authority had not been justified .

On DATE ORG , on an appeal by the guardianship authority , quashed the judgment and remitted the case to ORG . It pointed out that an interest in the new flat had been duly registered in the second applicant ’s name and that ORG had failed to verify what compensation would be made available to the second applicant following the sale of his share .

On DATE ORG of GPE delivered a new judgment and dismissed the complaint on the following grounds :

“ [ The first applicant ] confirmed before the court that onethird of [ the new flat ] had been transferred to [ the second applicant ] voluntarily . Accordingly , the sale of the flat , including [ the second applicant ’s share ] , would result in a reduction of his property .

The court can not take into account the [ first applicant ’s ] argument that the sale of [ the new flat ] would not impair the minor ’s rights because the minor is the legal owner of the [ old flat ] . The minor had acquired the right of ownership over the [ old flat ] in DATE , and in DATE he acquired the right of ownership to onethird of the [ new flat ] . As by that time he already had title to the [ old flat ] , the sale of onethird of the [ new flat ] would entail a reduction of the minor ’s property , which is not permitted under the applicable legislation . Pursuant to LAW and LAW , the underage child ’s property may be disposed of only in his interests .

Pursuant to letter no . CARDINAL/CARDINAL - CARDINAL sent by ORG ( on DATE ) , the sale of residential LOC must in all cases be accompanied by the purchase of residential LOC in the minor ’s name , if he is to lose his share of the property . [ The first applicant ] did not produce any evidence showing how [ the second applicant ] would be compensated for the loss of onethird of the [ new flat ] . ”

On DATE ORG upheld the judgment of DATE . It endorsed the same line of reasoning : the transaction would result in a reduction in the minor ’s property and was therefore not in the minor ’s interests .

Article CARDINAL provides that a child acquires title to , inter alia , the property donated to him , inherited by him or acquired at his expense . The child ’s rights to dispose of his property are governed by Articles CARDINAL and CARDINAL of LAW . The parents may dispose of the child ’s property in accordance with the rules set out in LAW .

LAW provides that the child ’s parents have no title to the child ’s property .

Article CARDINAL provides that , with certain exceptions concerning smallscale , routine transactions , transactions entered into by minors aged DATE are valid only if approved by their legal representatives , in other words their parents , adoptive parents or guardians .

Article CARDINAL provides that transactions on behalf of a minor DATE must be carried out by his or her parents , adoptive parents or guardians . Transactions carried out by legal representatives of the minor in respect of the minor ’s property are governed by LAW and CARDINAL .

Article CARDINAL § CARDINAL provides that a guardian may not alienate his charge ’s property or perform any transaction resulting in a reduction of the charge ’s property without obtaining preliminary clearance of the planned transaction from the guardianship and wardship authority . Article CARDINAL § CARDINAL designates the local self - government bodies which are responsible for guardianship and wardship matters .

On DATE ORG of ORG sent a letter ( no . CARDINAL/CARDINAL - CARDINAL ) entitled “ On additional measures for the protection of ORG right to housing ” to all guardianship and wardship departments . The relevant part of the letter reads as follows :

“ If a guardianship and wardship authority issues advance clearance of a transaction which involves the sale of a flat followed by the subsequent purchase of a flat , the operative part of the clearance ( resolution ) must either specify that the transaction is to be carried out subject to the condition that the new flat will be purchased in the minor ’s name if the minor loses his interest in the [ sold ] property , or indicate the address where the minor is to live if the minor is simply a member of the legal owner ’s family . ”


Violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 3 - Prohibition of torture (Procedural aspect)

Anatoly Kovler;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Volodymyr Butkevych;Zdravka Kalaydjieva

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

On DATE the first applicant was arrested on suspicion of having hijacked a car together with the second applicant and a Mr F. , and was brought to PERSON police station . According to the first applicant , QUANTITY police officers beat him severely , kicking him in the head and back , to force him to confess to CARDINAL hijacking incidents which had occurred in that district of GPE . After his resistance had worn down , the first applicant wrote a statement , prompted by the police officers , confessing to a car theft . The record of his arrest was drawn up at TIME

On DATE police officers arrested the second applicant . The second applicant submitted that on his arrest he had been placed in the boot of a car and had been brought to PERSON police station , where police officers had beaten him up and had forced him to confess to a car theft .

On DATE the acting PERSON district prosecutor questioned the applicants about their participation in hijacking incidents and authorised their release on their own recognisance . According to the ORG , the applicants did not complain to the prosecutor about any police brutality .

On DATE and DATE the applicants were examined in hospital no . CARDINAL in GPE . The first applicant was diagnosed with a compression fracture of the bodies of DATE vertebrae and the second applicant was diagnosed with injuries to the right side of the chest and neck . The first applicant was suffering from severe back pain , for which he was prescribed treatment and given a medical corset . For DATE he wore the corset and underwent medical treatment .

The applicants complained to the LOC district prosecutor that they had been ill - treated in the police station after their arrest . In DATE the GPE district prosecutor ’s office initiated an inquiry into the ORG complaints .

NORP On DATE a senior assistant of the GPE district prosecutor declined to institute criminal proceedings against the police officers , finding no criminal conduct in their actions ( LAW ) . The decision read as follows :

“ On DATE the Fili - Davydkovo [ police department ] was informed by hospital no . CARDINAL in GPE that on those dates PERSON , [ the second applicant ] and [ the first applicant ] had on their own initiative requested medical assistance at hospital no . CARDINAL , where Mr F .... was diagnosed with ... , [ the second applicant ] was diagnosed with an injury to the neck and the right side of the chest and [ the first applicant ] was diagnosed with a compression fracture of DATE vertebrae . Mr F. , [ the second applicant ] and [ the first applicant ] explained that on DATE they had been beaten up by police officers in PERSON police station .

[ The first applicant ] , a minor , questioned in the presence of his mother , stated that on TIME on DATE he , PERSON and [ the second applicant ] had hijacked CARDINAL cars ... ; he had been arrested by police officers and brought to the duty unit of PERSON police station ; after his arrest , on DATE at TIME a police officer , whom [ the first applicant ] could not name , had entered the duty unit of PERSON police station and had taken [ the first applicant ] to his office on the second floor . In the course of the interview the police officer had urged [ the first applicant ] to confess to having committed a crime , kicked him several times in the small of the back and at the same time demanded that [ the first applicant ] confess to several other hijackings which he had not committed . Other police officers in plain clothes had entered the office where [ the first applicant ] was being questioned ; they had hit [ the first applicant ] in different parts of his body and had demanded that he name the persons with whom he had committed criminal offences on DATE and indicate their addresses . After his written confession ... had been obtained , he had been brought back to the duty unit of ORG police station . On DATE , after a measure of restraint in the form of a written undertaking had been imposed , [ the first applicant ] had been sent home . On DATE he had sought medical assistance at hospital no . CARDINAL , where he had been diagnosed with a compression fracture of DATE vertebrae and had undergone treatment until DATE .

According to forensic medical report no . CARDINAL/CARDINAL of ORG , when [ the first applicant ] requested a medical examination no injuries were recorded on his body and the diagnosis of ‘ an injury of the lumbar ORG was not confirmed by objective clinical data and could not be subjected to forensic medical identification .

When questioned on DATE by the acting PERSON district prosecutor , [ the first applicant ] stated that on DATE he had been arrested by police officers on suspicion of having stolen cars in the district under the jurisdiction of the PERSON police department . He did not complain about the conduct of the police officers , stating that the police officers had not used force or any other pressure against him .

The mother of the minor , [ the first applicant ] , PERSON , who was questioned in the presence of PERSON , a lawyer from no . CARDINAL ORG , stated that on DATE at TIME she had received a phone call from PERSON police station and had been informed that her son had been arrested on suspicion of a crime and had been kept in PERSON police station . On DATE at TIME , PERSON arrived at PERSON police station . From a conversation with an investigator she learned that her son had been arrested for having committed a hijacking in the district under the jurisdiction of the PERSON police department . The investigator allowed her to see and give food to her son . During a conversation in PERSON police station on DATE her son did not complain about the state of his health and did not say anything about being beaten by police officers . On DATE at CARDINAL CARDINAL PERSON took her son home ... On DATE her son complained to her of pain in his back and claimed that he had been beaten up by police officers in PERSON police station . PERSON did not attribute sufficient weight to her son ’s complaints and decided to treat him herself . On DATE she and her son sought medical assistance at hospital no . CARDINAL , where he was diagnosed with a compression fracture of DATE vertebrae . Her son underwent treatment and was on sick leave from DATE to DATE .

[ The second applicant ] gave similar explanations , asserting that on DATE he had sought medical assistance at hospital no . DATE , where he had been diagnosed with an injury to the neck and [ an injury ] to the right side of the chest ; he had not requested sick leave . He did not make any claims in respect of the police officers .

An investigator from the PERSON police department , ... PERSON , stated that on DATE , ... [ the first applicant ] had been arrested at TIME ... and [ the second applicant ] at TIME ; they had been questioned as suspects in relation to criminal case no . DATE ... in the presence of a lawyer , PERSON In the course of the interview the arrested persons did not make any complaints in respect of the police officers and did not complain about the state of their health ; after a measure of restraint in the form of a written undertaking had been imposed , they were released on DATE .

PERSON , a police officer at PERSON police station , explained during questioning that ... he had not questioned [ the first and second applicants ] , the arrested persons , and had not obtained any written statements from them ; he had not used any physical or psychological pressure against them .

Another police officer , PERSON . , stated during questioning that on DATE he had been in his office , no . CARDINAL . An arrested person ( [ the first applicant ] , as it transpired later ) suspected of having committed a hijacking had been there . The police officers , whose last names he did not know because he had worked in the police station for DATE , had questioned [ the first applicant ] . The police officers asked [ the first applicant ] questions pertaining to car thefts ; they had not used any physical , psychological or other pressure against [ the first applicant ] .

A junior police officer of the PERSON police department , PERSON . , gave a similar statement , asserting at the same time that when [ the second applicant ] had been brought from [ his ] place of residence he had not put him under any physical , psychological or other pressure . The arrestees had voluntarily , without duress , given statements pertaining to hijackings committed in the district under the jurisdiction of the PERSON police department .

Another police officer , PERSON , stated when questioned that on DATE he had had a conversation with [ the first applicant ] , who had informed him that he , Mr F. and [ the second applicant ] had stolen cars in the district covered by the police department . When he had talked to [ the first applicant ] , he had not used any physical or other pressure against [ him ] . Moreover , he , PERSON , had been involved in [ the second applicant ’s ] transfer [ to the police station ] . During the transfer Mr A. and the other police officers had not used any force or other pressure against the arrestees . After [ the second applicant ] and Mr F. had been brought to the police station , PERSON had talked to them in his office about car thefts committed by them . Mr F. and [ the second applicant ] had voluntarily , without duress , confessed to CARDINAL hijackings in the district of the police department . PERSON had not used physical , psychological or other pressure against the arrestees .

Hence , no objective data and evidence confirming the use of physical or other pressure by the police officers against [ the first and second applicants ] ... was gathered during the inquiry .

In view of the above , [ I ] conclude that there is no indication of a criminal offence ... in the police ORG actions .

However , the inquiry established that a minor , [ the first applicant ] , had been held for a protracted period in PERSON police station before an investigator took the decision to detain [ the applicants ] ... Following [ the first applicant ’s arrest ] at TIME .... and [ the second applicant ’s ] arrest at TIME , they were held in the duty unit of PERSON police station and were not transferred to the detention unit at GPE police station . On discovering these violations of the law the prosecutor ’s office issued a decision addressed to the head of the PERSON police department . ”

The decision of DATE was not served on the applicants .

The applicants were committed to stand trial before ORG of GPE ( “ the ORG ” ) . On DATE ORG , composed of the presiding judge PERSON and CARDINAL lay assessors P. and PERSON , remitted the criminal case for additional investigation and dismissed the request for release of the second applicant , who had been remanded in custody on DATE . ORG held that “ the defendants had committed serious criminal offences ” and that there were no grounds for releasing the second applicant . The lawyer for the first applicant , PERSON , appealed against that decision , but later withdrew her statement of appeal .

On DATE the applicants’ lawyers complained to ORG about the beating in the police station . They noted that a similar complaint about police brutality had been raised before the PERSON district prosecutor ’s office . The lawyers insisted that the results of the prosecutor ’s inquiry were unknown to them and their clients and asked ORG to request the materials from the inquiry .

On DATE the trial began . ORG was composed of the presiding judge PERSON and CARDINAL lay assessors , PERSON and PERSON The applicants’ lawyers , relying on Articles CARDINAL § CARDINAL and CARDINAL of LAW , unsuccessfully sought the removal of the presiding judge , alleging her personal bias against the applicants . The applicants and their lawyers , referring to the hospital reports recording the applicants’ injuries , further complained to ORG about the illtreatment occurring in the police station on DATE .

On DATE ORG found the applicants guilty of aggravated car theft and sentenced them to CARDINAL GPE imprisonment . As regards the allegations of police brutality , ORG noted that the investigating authority had conducted an inquiry into the applicants’ complaints about the beatings and had decided not to institute criminal proceedings because the allegations had not been proven .

The applicants and their lawyers appealed . In their statements of appeal they complained , inter alia , that the ORG conviction contravened the principle of the presumption of innocence , as the presiding judge PERSON had already found them guilty in her decision of CARDINAL DATE , that ORG had not examined their ill - treatment complaints thoroughly , that it had not asked the investigating authorities to produce the case file relating to the inquiry into the allegations of police brutality , and that they had learnt about the prosecutor ’s decision of DATE only during the trial proceedings .

On DATE ORG upheld the conviction , reduced the applicants’ sentence to CARDINAL years’ imprisonment and ordered the first applicant ’s conditional release , noting that his injury , namely a compression fracture of DATE vertebrae , warranted his release . ORG held that the applicants’ complaints about the beatings had been “ unfounded because these allegations were examined by the prosecutor ’s office and then by the [ ORG , and were correctly dismissed because they had not been proven ” . It further stated that ORG had not committed any violations of criminal procedural law .

The RSFSR Code of Criminal Procedure ( in force until DATE , “ the CCrP ” ) established that a criminal investigation could be initiated by an investigator on a complaint by an individual or on the investigative authorities’ own initiative , where there were reasons to believe that a crime had been committed ( Articles CARDINAL and CARDINAL ) . A prosecutor was responsible for overall supervision of the investigation ( ORG CARDINAL and CARDINAL ) . He could order specific investigative actions , transfer the case from CARDINAL investigator to another or order an additional investigation . If there were no grounds to initiate a criminal investigation , the prosecutor or investigator issued a reasoned decision to that effect which had to be notified to the interested party . The decision was amenable to appeal to a higher - ranking prosecutor or to a court of general jurisdiction ( LAW .

An appeal against a decision of a first - instance court ( including an order authorising or extending pre - trial detention ) lies to a higher court . It must be lodged within DATE and examined within the same time - limit as an appeal against a judgment on the merits ( Article CARDINAL of the CCrP ) .

Under LAW of the CCrP a judge should not sit in a case if there are any grounds to conclude that he / she has a direct or indirect personal interest in the case . In such circumstances the judge should withdraw from the case ; failing this , a party has the right to lodge a motion to challenge the judge ( LAW ) .


Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient

The applicant was born in DATE and lives in GPE .

On DATE ORG and Highways , expropriated plots of land belonging to the applicant in GPE , GPE . A committee of experts assessed the value of the plots of land belonging to the applicant and compensation was paid to him when the expropriation took place .

Following the applicant ’s request for increased compensation , ORG awarded him additional compensation at the statutory rate of PERCENT per annum , namely the rate applicable at the date of the court ’s decision . DATE was fixed by the domestic court for the running of the statutory rate of interest . On DATE , on ORG appeal , ORG upheld the decision of the first instance court . On CARDINAL DATE the administration paid the applicant CARDINAL NORP Liras as the additional compensation awarded to him together with interest .

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


David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä

The applicant and his siblings inherited real property from their father . The property is situated in GPE , PERSON . At the time , a master plan ( yleiskaava , generalplan ) had been drawn up for the area but it had not reached the town planning stage .

On DATE they sold the property for MONEY ( ORG ) ( MONEY ) ( ORG ) . The buyer was a company which was to be set up later and it was represented by the applicant .

On DATE the city decided to use its first call on the property , since it had already negotiated the purchase of the surrounding properties and the purchase price was considered advantageous .

On DATE the applicant challenged the city ’s decision .

On DATE ORG ( lääninoikeus , länsrätten ) rejected his appeal , finding that pursuant to the Pre - emption Act ( etuostolaki , förköpslagen ; Act no . CARDINAL/CARDINAL ) the city had a first call on the property since the sellers and the buyer were not close relatives ( sections DATE ) . It did not uphold the applicant ’s argument that the pre - emption was manifestly unfair ( section CARDINAL ) .

On DATE the applicant appealed . On both parties’ request , the consideration of the case was postponed pending negotiations with a view to reaching a friendly settlement .

On DATE ORG ( korkein hallinto - oikeus , högsta förvaltningsdomstolen ) rejected the appeal .

On DATE the applicant lodged an extraordinary appeal , arguing that the parties had been taken by surprise by the decision of DATE since they had been given to understand that the proceedings would be stayed until a settlement was reached .

On DATE ORG upheld the applicant ’s appeal and annulled its earlier decision . Having examined the applicant ’s procedural complaint , and since the case file contained clarifications which had not been available to ORG when it took its decision on DATE , the case was referred back to the lower court .

ORG ( hallinto - oikeus , förvaltningsdomstolen , which had replaced ORG ) , received the parties’ submissions , including , inter alia , a certificate according to which the property had a taxation value of ORG CARDINAL in DATE and an appraisal document according to which the property ’s market value was ORG CARDINAL . Both documents were lodged by the applicant . The city contested the appraisal document ’s relevance , arguing that it started from the wrong assumptions as to , inter alia , the size of the property and the planning situation . The city maintained that the purchase price , ORG CARDINAL , reflected the real value at the time of the purchase . The applicant also relied on a draft preliminary agreement ( drawn up in DATE ) between his father ’s estate and the city of PERSON , which stated an aggregate purchase price of ORG CARDINAL concerning the property in issue and another property . However , that price had been fixed on the understanding that the area would be the subject of town planning before the conclusion of the contract .

On DATE ORG revoked the city ’s decision . Although there was no evidence before it showing the market value of the property , it could however be concluded on the basis of an overall assessment of the case that the purchase price was below the market value . Having regard to the purchase price and the relationship between those who had signed the deed of sale , the court held that the pre - emption was manifestly unfair . It however rejected the applicant ’s complaint that the city had failed to duly inform him of its decision to pre - empt ( sections CARDINAL and CARDINAL of the Pre - emption Act ) . Having noted that the buyer was not the applicant but a company to be set up later , it also rejected his complaint that the city could not pre - empt the property as the sellers and the buyer were close relatives ( sections CARDINAL , CARDINAL and DATE ) . The fact that the deed of sale had subsequently been altered to the effect that the applicant stated that he had taken the place of the company did not detract from this position . The alteration had been made only on DATE , that is , after the lower court had rejected the applicant ’s appeal .

NORP The city appealed , arguing that the taxation value of DATE had no relevance to the case as the taxation value did not follow the fluctuations in the economic situation of the country or the demand for real property at a given time . It was to be noted that during DATE real property prices had dipped to CARDINAL of what they had been in DATE and DATE and that the taxation value was confirmed periodically and did not therefore reflect the situation in DATE . The city also argued that no relevance could be given to the relationship between those who had signed the deed of sale .

The applicant replied to the appeal , arguing that the market value was considerably higher than the taxation value . Furthermore , there had been no intention on the part of his family to sell the property to an outsider . He also argued that , following the entry into force of LAW ( maakaari , jordabalken ; Act no . CARDINAL/CARDINAL ) , on DATE , he was to be considered the owner under LAW , section CARDINAL since no company had been established .

Pursuant to the practice in ORG , it invited the city ’s submissions in reply . The city argued ( submission dated DATE ) that the property ’s taxation value had dropped as follows : in DATE to ORG CARDINAL,CARDINAL ; in DATE to ORG CARDINAL and in DATE to ORG CARDINAL,CARDINAL . Furthermore , the fluctuations in the market value were reflected in the taxation value with a delay of DATE . The drop in the relevant property ’s value followed the general price development . The city maintained that in considering whether the conditions for pre - emption were met at the time of the purchase in DATE , no relevance could be given to facts occurring thereafter . It also noted that no town plan had yet been drawn up .

On DATE ORG overturned the lower court ’s decision . Referring to the Government PERSON on the enactment of the Pre - emption LAW and on subsequent amendments thereto , the court noted that the aim of the said LAW was , inter alia , to slow the increase in value of real property and to reduce the number of cases in which the parties to the purchase , in order to evade tax , did not state the full price in the deed of sale . It also noted that a considerably lower price than the market value could be relevant to the assessment of whether the conditions for pre - emption were fulfilled . The purchase price had , however , to be assessed in the light of the situation on the real estate market and the planning of the area at the time of the pre - emption . The court considered that the taxation value as such did not attest the property ’s market value and that the afore - mentioned appraisal document and draft preliminary agreement were in part based on wrong assumptions . It noted that no town plan had been drawn up and that the property consisted of vacant land , whose price was affected by the advantageous location as to traffic communication and the expectations as regards future lucrative use of the property . The assessment of the value , however , could not have been based on the price of the permitted building volume expected to be allocated by a town plan .

ORG considered that in assessing whether the pre - emption was manifestly unfair , the purchase price had to be considered in relation to the prevailing planning and real property market situation at the time of the pre - emption . The court found that no credible and undisputed evidence as to the relationship between the purchase price and the market value had been presented . It could not be concluded that the purchase price had been considerably lower than the market value simply on the basis of the location of the property and the existence of a master plan which lacked legal effect . Furthermore , manifest unfairness within the meaning of section CARDINAL of the Pre - emption Act could not arise solely from an advantageous purchase price . Nor was a court required to make precise comparisons of purchase prices . ORG concluded that the use of the city ’s first call on the property was not manifestly unfair , having regard in addition to the content of section CARDINAL and the aim of the Pre - emption Act , as explained in the travaux préparatoires , to improve the land situation of the municipality by guaranteeing the availability of vacant land to be used for building purposes and for forwarding , to check real property speculation and to reduce the number of cases in which , in order to evade tax , the full price was not stated in the deed of sale . The court also noted that there was no evidence to the effect that the parties to the purchase had a special bond with the property in question . As to the other complaints raised by the applicant , it confirmed the lower court ’s view . The decision ran to CARDINAL pages , of which CARDINAL pages contained reasons .

On DATE the applicant lodged an extraordinary appeal with ORG claiming , inter alia , that the court had not invited his submissions in reply to the city ’s second set of representations of CARDINAL DATE .

In its decision of DATE ORG noted that the city ’s above - mentioned second set of representations had not been sent to the applicant for comment . Nor had he received them for information , which was the practice in ORG . The applicant had received the second set of representations after the decision of CARDINAL DATE and he had been given an opportunity to comment on them during the extraordinary proceedings . Bearing in mind that the applicant had already been able to express his views in CARDINAL sets of proceedings before ORG and ORG , and that the representations had not affected its decision of DATE in such a way that the case should be reopened , the court rejected the applicant ’s extraordinary appeal .