Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Reminder inadmissible;Violation of Art. 2 (substantive aspect);Violation of Art. 2 (procedural aspect);Violations of Art. 3 (substantive aspect);Violations of Art. 3 (procedural aspect);Violation of Art. 5;Violation of Art. 13+2;Pecuniary and non-pecuniary damage - award

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

The applicants are :

( CARDINAL ) Mr PERSON , born in DATE ,

( CARDINAL ) PERSON ( also spelled as PERSON ) PERSON , born in DATE ,

( CARDINAL ) PERSON , born in DATE ,

( CARDINAL ) PERSON , born in DATE ,

( CARDINAL ) Mr PERSON , born in DATE and

( CARDINAL ) Mr PERSON , born in DATE .

The applicants live in GPE , GPE . The first and second applicants are the parents of PERSON ( also known as PERSON or PERSON ) , who was born in DATE . The third applicant is his sister , the fourth applicant is his grandmother , the fifth applicant is his grandfather and the sixth applicant is his uncle .

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

At the material time the settlement of Gikalo in the ORG district of GPE was under the full control of the NORP federal forces ; checkpoints of the NORP military were located on the roads leading to and from the village . On DATE the NORP federal forces conducted a special operation in the village . The operation was carried out with APCs ( armoured personnel carriers ) and LOC vehicles .

In TIME DATE PERSON and the second and third applicants were at home at CARDINAL , FAC , Gikalo . The fourth applicant lived nearby .

At TIME the second applicant heard some noise and looked out of the window . She saw armed military servicemen jumping over the fence . Some of the men were wearing masks . When the second applicant went outside , CARDINAL of the men ordered her to stand up against the wall and pointed his machine gun at her .

Then a large group of the servicemen broke into the house . The second applicant went back inside . There she saw her son , PERSON , and her daughter , the third applicant , standing against the wall . The intruders , who were of NORP appearance and spoke unaccented NORP , demanded that the second applicant give them her son 's passport ; while she was looking for it , they kept hitting her in the back with rifle - butts and saying : “ Hurry up , search faster ” . After the second applicant found the passport and handed it over to the men , CARDINAL of them took it outside , to an ORG which was parked next to the house . Shortly after that the man brought PERSON passport back . The second applicant attempted to put clothing on ORG , but the servicemen started beating her , PERSON and his sister with rifle - butts .

After that the servicemen dragged PERSON outside . The second and third applicants asked the servicemen to release PERSON saying that his identity documents had already been checked by them . The servicemen told the applicants that they would release him after a check ; the applicants kept begging the men to release their relative and the servicemen beat them with rifle - butts . Then the third applicant ran to the neighbours screaming for help and the second applicant kept following the servicemen . CARDINAL of them pressed his machine gun against her chest and ordered her to get out of the way .

Meanwhile the fourth applicant , who had been told by her neighbours that the servicemen were raiding her son 's house , arrived at the yard and joined the second applicant in attempts to prevent the abduction of PERSON . A crowd of neighbours started gathering and the servicemen began shooting above the crowd 's heads to disperse it . Continuing the beating of the second and fourth applicants in front of the neighbours , the servicemen put PERSON in a LOC vehicle which was parked next to the house ; its registration numbers were covered with mud . A dog , which had arrived with the servicemen , jumped after PERSON into the body of the vehicle and sat next to him .

When the second applicant attempted to get into the LOC , CARDINAL of the servicemen pushed her over and she fell to the ground and lost consciousness . As a result of DATE , the second applicant was hospitalised on DATE and stayed in the Gikalo hospital from DATE to DATE ; she was diagnosed with brain concussion and chest contusion . The fourth applicant was beaten with rifle - butts , dragged aside by CARDINAL soldiers and shoved into a gap between a wall and a block of concrete .

According to a resident of PERSON , PERSON . Ts . , at TIME on DATE he was at home when an ORG pulled over next to his house . CARDINAL armed military servicemen , some of them in masks , rushed into his yard . They put him and his brother , Mr V.Ts . , against the wall and ordered their female relatives to bring over their passports . After the documents were brought over , one of the men read out the passport information to someone via a portable radio set ; TIME Ts . was told that the passports were in order . After that the witness and his brother were taken in the ORG to the village centre and transferred into an “ GPE ” vehicle ( GAZ-CARDINAL lorry equipped for transportation of detainees ) . The ORG took the CARDINAL brothers and a number of other male residents of PERSON to the LOC military commander 's office in ORG .

According to another resident of PERSON , PERSON , on TIME CARDINAL DATE she was woken up by the noise of vehicles and dogs ' barking . She went outside and saw a group of armed men in camouflage uniforms . They spoke unaccented NORP and were searching the courtyard . Then the men took her brothers , PERSON S. and Mr Sup . S. , outside , searched them and put them in a large military vehicle . The servicemen told her that they would take her brothers for an identity check . After that they took the CARDINAL brothers to the Oktyabrskiy temporary district department of the interior ( the Oktyabrskiy VOVD ) .

According to another resident of PERSON , Mr V.Ts . , at QUANTITY on DATE he arrived at his brother 's house . There he saw a military vehicle with CARDINAL armed servicemen in camouflage uniforms on it ; some of them were wearing masks . The servicemen had specially trained NORP shepherd dogs with them . The majority of these men were of NORP appearance , but CARDINAL of them looked NORP . The servicemen checked the passports ; after that CARDINAL of them spoke with someone via a portable radio set . After that the witness and his brother were taken by the military vehicle to the village centre . There they were transferred to an ORG vehicle in which the witness found a number of his fellow villagers , including PERSON . From there the detainees were taken to the PERSON for TIME and then to the LOC military commander 's office .

According to the applicants , as a result of the special operation CARDINAL residents of Gikalo were detained , and at some point all of them , except for PERSON and Mr Sul . S. , returned home .

NORP Some time later one of PERSON . brothers , PERSON . PERSON , returned home and told her that after the sweeping - up operation on DATE they had been taken to the Oktyabrskiy VOVD . From there the group of detainees from PERSON had been taken to GPE detention centre , and only PERSON and Mr Sul . S. had remained in LOC . According to PERSON . S. , PERSON and Mr Sul . S. had been subjected to torture by the investigators in the PERSON ; during an interrogation one of the officers had cut off an ear from each of them .

According to Mr V.Ts . , after being detained he and his fellow villagers from Gikalo , including PERSON , were taken in the ORG vehicle to ORG . At TIME on DATE the men were taken to a building with a basement . There the witness and his fellow villagers were subjected to continued beatings by their abductors , who used shovels and iron pipes . At some point he fainted ; he regained consciousness when CARDINAL military servicemen were dragging him into a basement . In the basement he and all the other detainees from PERSON , including PERSON , were stripped naked and subjected to another round of beatings with iron pipes and steel rods , and dogs were set on them . After that the villagers were allowed to put their clothes back on and were taken to PERSON in a NORP vehicle . There the detainees spent TIME in the vehicle , handcuffed to a bar and being beaten by military servicemen . In TIME the detainees were taken to the Oktyabrskiy military commander 's office , but PERSON and another detainee were not there as they had probably stayed behind .

According to the sixth applicant , TIME of CARDINAL DATE he was at home when a large group of military servicemen in masks and camouflage uniforms rushed into his yard . The servicemen dispersed throughout the applicant 's household and searched his house , barn and shed . The servicemen forced the applicant into an ORG and took him to the outskirts of Gikalo , where he was transferred to an GPE vehicle . In the ORG the sixth applicant saw CARDINAL other men from the village , including his nephew PERSON . The vehicle took the detainees to LOC , where the men were forced to stand against the wall and were subjected to beatings by shovels , bludgeons and steel rods . At TIME a senior officer arrived at the site and personally kicked each detainee between the legs . After a short break a serviceman with a dog arrived and set the dog on the detainees . Then the detainees were ordered to run to the basement . In the basement they were ordered to take off their clothes ; meanwhile PERSON and Mr Sul . S. were seated at a table and questioned . The applicant heard one of the guards ordering PERSON to put his hands on the table and hitting PERSON 's fingers with a truncheon . Next the officer asked the other servicemen if they had a knife . He could not find one in the basement and went outside . Having found a knife , which looked like that of a hunter , he cut off PERSON ear , wrapped it in a bandage and put it in his pocket saying : “ It 's a souvenir for me ” . After that he cut Mr Sul . S. 's ear off and gave it to another officer saying : “ And here is a souvenir for you ” . The latter also put it in his pocket . According to the applicant , after continued beatings he and other detainees were taken to GPE whereas PERSON and Mr Sul . S. remained in LOC .

The applicants further submitted that at DATE , Mr R.Ya . , the head of the criminal search division of FAC , had suggested to their fellow villager , PERSON . PERSON . , that he could show him PERSON who was detained in the building of the PERSON . In addition , DATE , a woman who lived in the ORG neighbourhood in LOC of ORG had visited the GPE detention centre and had seen CARDINAL young men being brought there in APCs . CARDINAL of these men had been PERSON .

At the material time LOC was staffed by officers from ORG . From the documents submitted it follows that the Oktyabrskiy VOVD and the district military commander 's office were located either in the same building or around the same yard .

NORP In support of their statements , the applicants submitted the following documents : a statement by the second applicant ( the date is illegible ) ; a statement by the third applicant dated DATE ; a statement by the sixth applicant ( undated ) ; a statement by the fourth applicant ( undated ) ; a statement by PERSON . Ts . dated DATE ; a statement by PERSON dated DATE ; a statement by Mr DATE . dated DATE ; a statement by Mr NORP dated DATE ; a copy of the medical certificate issued by the ORG district hospital confirming the second applicant 's hospitalisation from DATE to CARDINAL March CARDINAL in the Gikalo hospital dated DATE , and copies of documents received from the authorities .

The Government did not dispute the facts as presented by the applicants . At the same time they stated that no special operation had been carried out in NORP on DATE and that the federal forces had not been involved in the abduction of the applicants ' relative .

According to the applicants , they complained about PERSON abduction to the authorities immediately after the events . However , no reply to their complaints was received .

On DATE the ORG district department of the interior ( the Grozny ROVD ) refused to open a criminal investigation into the abduction of PERSON for the lack of corpus delicti .

On DATE , DATE , the ORG opened search file no . CARDINAL in connection with the disappearance of PERSON .

In DATE the first applicant spoke with the deputy Chairman of ORG NORP President in ORG , PERSON , and the latter informed him that his son was alive and detained somewhere in LOC .

On DATE ORG ( ORG ) forwarded the fifth applicant 's complaint about his grandson 's abduction to the Oktyabrskiy VOVD for examination .

On DATE ORG , PERSON and Order of ORG requested that detention centre LOC in GPE - on - Don inform them whether PERSON , who had been taken away from his home by a group of federal servicemen , was listed among their detainees . In DATE the detention centre replied in the negative .

On DATE the first applicant complained to the GPE prosecutor about his son 's abduction . He stated that PERSON had been abducted with CARDINAL other residents of PERSON during a special operation conducted by a group of federal servicemen in military armoured vehicles ; that the servicemen had beaten the detainees and their relatives with rifle - butts ; that shortly after the abduction the applicant had found out that his son had been detained in the basement of the Oktyabrskiy VOVD where , in the presence of many witnesses , one ear had been cut off as a souvenir from both PERSON and Mr Sul . S. ; that the men had subsequently been thrown into different pits and beaten in the presence of the head of the PERSON , Major PERSON ; that , according to eyewitnesses , on DATE PERSON had still been detained in the basement and that in DATE he had been taken to the GPE detention centre . The applicant requested the authorities to assist him in the search for his son and to prosecute the perpetrators .

On DATE the ORG prosecutor 's office forwarded the first applicant 's complaint about his son 's abduction to the Oktyabrskiy VOVD for examination .

On DATE the GPE prosecutor 's office forwarded the first applicant 's complaint about his son 's abduction by federal servicemen during a special operation on DATE to the ORG prosecutor 's office for examination .

On DATE an investigator from the Gikalo department of the Grozny ROVD questioned the first applicant , who stated that on DATE a group of NORP military servicemen had arrested CARDINAL residents of Gikalo , including PERSON . According to the witness , PERSON had been taken to LOC , where his ear had been cut off as a souvenir and he had been beaten in the presence of the head of the Oktyabrskiy VOVD , officer R.E ; that in DATE PERSON had been taken to the GPE detention centre and that the applicant had visited a number of detention centres in GPE but could not find his son .

On DATE the Prosecutor General 's office in ORG forwarded the first applicant 's complaint about the abduction to the GPE prosecutor 's office . On DATE the latter forwarded this complaint to the ORG prosecutor 's office for examination .

On DATE the ORG district prosecutor 's office ( the district prosecutor 's office ) instituted an investigation into the abduction of PERSON under LAW ( murder ) . The case file was given number DATE . The decision stated , inter alia , as follows :

“ ... on DATE a group of unidentified armed men in camouflage uniforms in APCs and a UAZ vehicle took PERSON away to PERSON ; after that he disappeared ...

In this connection , on DATE the ORG refused to institute a criminal investigation owing to the lack of corpus delicti ....

This decision was unlawful as PERSON has not returned home and , therefore , there are sufficient grounds to presume that he was killed ... ”

On DATE the first applicant was granted victim status in the criminal case .

On DATE the applicants ' representatives wrote to the district prosecutor 's office and requested to be informed about the investigative measures taken by the authorities and their results . They also requested to be provided with access to the investigation file . On DATE the district prosecutor 's office replied they were taking operationalsearch measures to establish the whereabouts of PERSON .

On DATE the sixth applicant complained to LOC about the disappearance of PERSON from PERSON on DATE .

To verify the applicant 's complaint , the ORG conducted an inquiry into the allegations and in that context the following steps were taken ( see paragraphs DATE below ) .

On DATE police officers questioned the sixth applicant , who stated that on TIME CARDINAL DATE he had been taken away from home by a group of armed men in camouflage uniforms . The men had put him into an ORG and taken him to the outskirts of Gikalo , where he had been transferred into another vehicle in which he had found CARDINAL of his fellow villagers including PERSON . The detainees had been taken first to the PERSON and then to GPE , PERSON had not been among those transferred to GPE . From GPE the sixth applicant had been taken to the village of GPE , then to GPE , GPE , and subsequently , along with CARDINAL other residents of PERSON , PERSON ORG , Mr GPE and Mr PERSON , to the town of GPE in LOC . The applicant had been released DATE after the arrest .

On an unspecified date the police investigators also questioned the second applicant , who stated that she did not know the whereabouts of her son since DATE .

The police investigators obtained a report of a police officer dated DATE according to which PERSON had not been listed as a detainee in LOC in DATE .

On DATE the ORG opened operational - search file no . ORG and took other measures to establish the whereabouts of PERSON .

On DATE the ORG refused to initiate a criminal investigation into the matter stating that “ as a result of the inquiry it was not established that a crime had been committed against PERSON ” .

On DATE the above refusal was overruled by the supervising prosecutor and criminal case no . DATE was opened under LAW ( murder ) .

On DATE the investigators questioned PERSON , who at the material time worked as the district police officer . He stated that in DATE PERSON had been taken away by armed men in camouflage uniforms who had driven around in APCs . CARDINAL other residents of PERSON had been taken away on TIME . All of them save for PERSON and Mr Sul . S. had returned home at some point later .

DATE . On DATE and DATE the investigators granted the first applicant victim status in the criminal case and questioned him . He stated that on TIME CARDINAL DATE a group of armed masked men had broken into his house and taken away his son PERSON . He further stated that his son had been abducted with CARDINAL other residents of PERSON , including the sixth applicant , who at TIME had been released from a detention centre in GPE . According to the witness , the abductors had taken PERSON and other detainees to LOC , where the guards , PERSON nicknamed “ NORP ” , PERSON , PERSON , PERSON and Mr I. , together with a ORG driver PERSON , had ill - treated PERSON and the other detainees . The witness further stated that the sixth applicant had been taken from FAC to GPE and then , on CARDINAL or DATE , had been brought back to the PERSON where he had seen PERSON for the last time . The witness provided investigators with all the names and ranks of the senior officers of the Oktyabrskiy VOVD who had served there at the material time and with a phone number of CARDINAL of them .

On DATE the investigators requested ORG to inform them whether any special operations had been carried out by them on DATE in Gikalo . ORG replied that no such operations had been conducted and that they had not arrested PERSON .

On DATE the investigators questioned PERSON Ts . , who stated that on TIME CARDINAL DATE a group of armed men in camouflage uniforms had broken into his house . The intruders had taken him and his brother PERSON . and had put them in a vehicle with PERSON and Mr Sul . S. in it . After that , the detainees had been taken in the direction of PERSON to a building which looked like a gym . There they had been questioned by unidentified men ; in TIME of the same day , the witness had noticed that PERSON and Mr Sul . S. had not been among the rest of the detainees .

On DATE and CARDINAL DATE the investigators questioned Mr LOC . and Mr GPE , whose statements about the events were similar to that given by PERSON . Ts . The investigators questioned Mr NORP again on CARDINAL DATE and he stated that he had been abducted from home by armed men in camouflage uniforms and masks , who had searched his house and taken him and his brother to the PERSON where they had been subjected to beatings and questionings . He also stated that in his presence one of the abductors had cut off an ear from PERSON and Mr Sul . S. and that on DATE all the detainees from PERSON , except for PERSON and Mr Sul . S. , had been transferred to GPE .

On DATE the investigators questioned Mr Sup . S. who stated that on DATE he and CARDINAL other residents of PERSON had been taken to the LOC military commander 's office , then to GPE , then to the GPE ( the detention centre ) in GPE where he had been detained until DATE . According to the witness , his brother PERSON S. and PERSON had not been taken to these detention places as they had remained in the basement of the district military commander 's office .

On DATE the investigators suspended the investigation in the criminal case for failure to identify the perpetrators .

On DATE the above decision was overruled by the supervising prosecutor and the investigation was resumed .

On DATE the investigators questioned the sixth applicant , who stated that on TIME CARDINAL DATE he had been at home when he had seen a group of armed men in camouflage uniforms surrounding his house . He had heard them communicating with someone via a portable radio and then someone 's order to “ take one PERSON and get out as the locals have started gathering around ” . After that the intruders had put him in an ORG and taken him to the outskirts of Gikalo , where he had been transferred to another vehicle with CARDINAL other residents of the village already inside , including PERSON . Then all the detainees had been taken to the Oktyabrskiy VOVD ; PERSON had been taken out of the vehicle first and had been immediately subjected to beating . After that all the detainees had been taken to a room where they had been beaten with bludgeons and steel rods ; as a result the applicant 's ribs had been broken . Then the applicant had been taken to a basement , where he had found PERSON and Mr Sul . S. The intruders had forced the detainees to put their hands on the table and had hit them with bludgeons . After that the applicant had been taken to GPE , whereas PERSON and Mr Sul . S. had stayed behind . From GPE the applicant had been taken to GPE , then to GPE , then to GPE in LOC . In the remand prison in GPE the applicant had met his fellow villagers Mr PERSON , Mr GPE and Mr PERSON , who had been taken away from Gikalo on the same date , then DATE the applicant had been released .

On DATE the investigators again questioned Mr V.Ts . , who stated that on DATE he had been taken from home by military servicemen who had arrived in an ORG . The witness and his neighbour PERSON Ts . had been transferred from the vehicle to an GPE lorry , in which they had met a number of their fellow villagers , including PERSON . The ORG had taken the detainees to the Oktyabrskiy VOVD , where they had been subjected to beatings and put into a basement . There the men had been stripped naked and subjected to further beatings by abductors who had kept taking turns to beat the detainees . On DATE of the detention the men had been taken to the military commander 's office where they had been made to sign documents by a woman of NORP appearance , with a short haircut , called PERSON . She had taken samples of the detainees ' nails and hair , put them in envelopes and sent them for expert evaluation . After that the detainees had been taken in a LOC vehicle to the ORG and then to GPE , where all the men , except for PERSON and Mr Sul . S. , had been detained until DATE . On the latter date the detainees had been transferred to the GPE detention centre from which the CARDINAL residents of PERSON had been released on CARDINAL DATE .

On DATE the investigators again questioned another resident of PERSON who had been detained on DATE , Mr ORG , who stated that he could not recall the details of his detention because as a result of the beatings to which he had been subjected in GPE and other detention centres he suffered from memory problems . On DATE the investigators again questioned the witness , but the Government did not furnish a copy of this statement to ORG .

On DATE the investigators requested the FAC of GPE to provide information about the officers from ORG who had served on DATE in the Oktyabrskiy VOVD .

On DATE the investigators requested information from various detention centres in the LOC concerning the detention of CARDINAL residents of PERSON , including PERSON and the sixth applicant , who had been apprehended on DATE . The investigators also requested various prosecutors ' offices in GPE to inform them whether they had initiated a criminal investigation against any of these residents of Gikalo . On DATE ORG of the Execution of Punishment replied that the CARDINAL applicants and CARDINAL other residents of PERSON had been detained in detention centre IZCARDINAL/CARDINAL in GPE between DATE and CARDINAL DATE and that they had been released as a result of an amnesty . PERSON had not been detained in this prison . From the replies received from the prosecutors ' offices , no criminal proceedings were pending against any of these men .

On DATE the investigators questioned the applicants ' neighbour Mr PERSON , who stated that on TIME CARDINAL DATE a special operation had been carried out in Gikalo ; as a result his neighbour PERSON and CARDINAL other village residents had been taken away . All of them except for PERSON and Mr Sul . S. had subsequently been released .

On DATE the investigators questioned the applicants ' neighbour PERSON , who stated that on DATE a special operation had been conducted in their settlement , as a result of which LANGUAGE - speaking federal servicemen had arrested and taken away PERSON along with CARDINAL other residents of PERSON . The witness stated that the second applicant had tried to prevent the soldiers taking away her son and that the servicemen had subjected her to a beating , as a result of which she had lost consciousness .

On DATE , and subsequently on DATE , the investigators questioned PERSON Ts . , who stated that on TIME CARDINAL DATE a group of CARDINAL armed NORP military servicemen had arrived at this house on an ORG . The soldiers had run an identity check and verified the passport information by calling someone via portable radio . Then they had taken him and his brother PERSON DATE . in the ORG to the GPE . In the vehicle he had found several of his fellow villagers , including PERSON . Then the detainees had been taken to the Oktyabrskiy VOVD . After their arrival at the police station the CARDINAL detainees had been taken from the vehicle CARDINAL by CARDINAL and beaten ; then they had been taken to a basement and questioned . After that all the detainees save for PERSON and Mr Sul . S. had been taken to GPE . The rest of the witness statement was identical to that given by Mr V.Ts . ( see paragraph CARDINAL above ) .

On DATE the investigators questioned PERSON , who stated that her brothers PERSON and Mr Sul . S. had been abducted by NORP military servicemen on DATE during a ' sweeping - up ' operation . She further stated that her brothers had been detained for some time and that CARDINAL of them , PERSON S. , had managed to return home at some point later . He had told her that after the abduction the brothers had been taken to PERSON , where PERSON S. and PERSON had been subjected to torture , and that their ears had been cut off by the abductors .

On DATE the investigators questioned the third applicant , whose statement about the events of DATE and the subsequent development was similar to that given by PERSON In addition , the applicant stated that during the abduction the intruders had subjected her and the second applicant to insults and beatings and that as a result of it the second applicant had lost consciousness . She stated that she had not sought medical help after the events of DATE , but that her mother , the second applicant , had spent some time in hospital in Gikalo .

On DATE the investigators questioned Mr S .- S.S. , who stated that he had been taken away from home on DATE by NORP federal servicemen who had been conducting a special operation in his village of ORG , and that according to the information received by him from the residents of PERSON , a similar special operation had been conducted in Gikalo on DATE as a result of which CARDINAL NORP residents had disappeared .

On DATE the investigators questioned Mr GPE , who stated that on TIME CARDINAL DATE he had been taken away from home by servicemen from the PERSON ( the special police task force ) . He had been brought with other detained residents of PERSON to the Oktyabrskiy VOVD where they had been beaten . According to the witness , at the PERSON he had been questioned by unidentified persons , one of whom had the rank of PERSON and had been of NORP appearance . The witness and other detainees , except for CARDINAL young men from PERSON , had been taken to GPE . DATE they had been returned to the Oktyabrskiy VOVD , but the young men had not been there . The rest of the witness statement concerning his further detention is similar to those given by PERSON V.Ts . and PERSON . Ts . ( see CARDINAL and DATE above ) .

DATE . On DATE the investigators questioned PERSON . PERSON . , who stated that in DATE he had been searching for his brother , who had been arrested in LOC on DATE and had subsequently disappeared . DATE after his brother 's disappearance , the witness had had a conversation with the head of the criminal police department of the Oktyabrskiy VOVD , Mr R.Ya . , who told him that “ ... I have got the right hand of PERSON [ a leader of illegal armed groups ] ” and suggested to the witness to have a look at the detainee . The witness had refused . He further stated that the police officers who had served in LOC at the material time had been there on mission from the police department of ORG . He submitted that currently [ at the time of the questioning ] the police officers who had been in charge of the Oktyabrskiy VOVD in DATE were working in various NORP cities and provided the investigators with information concerning their current ranks and positions , as well as their places of work .

On DATE and DATE the investigators questioned Mr Sa . S. and PERSON , who stated that on the morning of QUANTITY DATE CARDINAL of their male relatives had been taken away from home by armed men in camouflage uniforms . The intruders had conducted an identity check , then put their CARDINAL relatives in a lorry and taken them away to an unknown destination . DATE of them had returned home , whereas another one , PERSON S. , had disappeared .

On DATE the investigators questioned PERSON , whose statement about the events was similar to those given by PERSON and Ms GPE

On DATE and DATE the investigators questioned Mr ORG , Mr GPE , PERSON , PERSON and Mr I.E. , all of whom provided similar statements to the effect that on TIME CARDINAL DATE PERSON and Mr Sul . S. had been abducted from their homes by armed masked men in camouflage uniforms , who had arrived in armoured military vehicles and conducted an identity check .

On DATE the investigators conducted the crime scene examination at the household from which PERSON had been abducted on DATE . In that connection no evidence was collected from the scene .

On DATE the investigators questioned PERSON , who stated that in DATE he had been abducted and taken to the Oktyabrskiy VOVD where he had been detained for DATE and subjected to regular beatings . During his detention in the PERSON he had not seen PERSON .

On DATE the investigators questioned PERSON . S. , who stated that on DATE her neighbour PERSON had been abducted by officers of law - enforcement agencies . According to the witness , the abductors had been armed and wearing camouflage uniforms ; CARDINAL of them had been of NORP appearance , had CARDINAL golden teeth and a short grey moustache . She and the second applicant had tried to stop the officers taking FAC away , but the abductors had started beating the women with rifle - butts . After that the officers had put PERSON in a military vehicle and taken him away . CARDINAL other residents of PERSON had been abducted around the same date ; some of them had later returned home .

On DATE , DATE and DATE the investigators questioned CARDINAL operational - search officers of the Grozny ROVD , PERSON and PERSON , and the head of the criminal search division of the PERSON , Mr PERSON All of the officers stated that according to the information received during the investigation of PERSON abduction it had been established that in DATE local law - enforcement agencies had been taking steps to identify members of illegal armed groups and that after the abduction PERSON had been taken to LOC .

DATE . On DATE the Department of ORG ( the UVD ) in GPE replied to the investigators stating the following :

“ ... According to order ... no . CARDINAL , any information disclosing personal data of the police officers who are participating or participated in the carrying out of counterterrorist or special operations is a secret . Therefore , it is impossible to provide you with lists and photographs of the officers of the UVD of the KhantyMansiysk Region who were on service mission in GPE in DATE . ”

DATE and DATE the investigators questioned CARDINAL former and acting officers of the UVD of ORG who had been on mission in GPE in DATE and had been serving in LOC at the material time . All of the witnesses stated that they did not recall the details of their service in LOC , that they had not participated in special operations and that they had not detained PERSON .

On DATE the investigators questioned PERSON Ts . , who confirmed his previous statements ( see paragraph DATE above ) and added that after the abduction , in the basement of FAC , he had seen PERSON and that his face had been covered in blood .

The Government submitted that the investigating authorities had sent a number of queries to various ORG bodies DATE concerning the possible whereabouts of PERSON , his criminal record , discovery of his body , his detention in custodial institutions , medical treatment in hospitals and any criminal proceedings against him . As a result , a number of negative replies had been received and the whereabouts of the applicants ' relative had not been established . The law enforcement authorities had never arrested or detained PERSON on criminal or administrative charges and had not carried out a criminal investigation concerning him . No special operations had been carried out against the applicants ' relative .

According to the documents submitted by the ORG , the investigation was suspended on CARDINAL occasions : on DATE , CARDINAL DATE and DATE , DATE , DATE , DATE , DATE and CARDINAL DATE . Each decision to suspend the investigation was subsequently overruled by the supervising prosecutors as unlawful and premature . The prosecutors criticised the investigation and ordered that a number of necessary steps be taken . For example , such orders were given to the investigators on CARDINAL occasions : on DATE and DATE , DATE , DATE , DATE , DATE , DATE and DATE .

The Government further stated that even though the investigation had failed to establish the whereabouts of PERSON , it was still in progress and all measures envisaged under domestic law were being taken to solve the crime . The investigation had found no evidence to support the involvement of ORG servicemen in the abduction of PERSON .

Despite specific requests by ORG , the Government did not disclose the entire contents of the investigation file in criminal case no . DATE , providing only copies of “ the main documents ” from the file of CARDINAL pages .

The applicants complained to the investigators about the illtreatment to which the second and fourth applicant had been subjected by the abductors ( see paragraphs CARDINAL and DATE above ) .

On DATE the investigators decided to conduct a forensic medical examination of the second applicant . The text of the decision included the following :

“ ... The investigators questioned the mother of the disappeared ORG Amint Gelayeva [ the second applicant ] , who stated that ... she had tried to stop the abductors from taking away her son , but she could not stop them as she had been hit several times on the head by a rifle - butt and as a result she had lost consciousness . Subsequently she had been treated at the outpatient department of the PERSON hospital ...

... [ it is necessary ] to put the following questions to the experts :

- Are there any injuries on the head and the body of PERSON and if so , how they could have been received , and what is their location , mechanism and the time of their origin ?

-What is the degree of the injuries suffered [ by the applicant ] ?

- How could these injuries have been caused ?

- Was it possible for the injuries to be received under the above circumstances ? ”

On DATE the investigators refused to initiate a criminal investigation into the applicants ' complaints of ill - treatment by the abductors . The text of the decision included the following :

“ ... the investigators questioned PERSON [ the second applicant ] , who stated that ... when she had attempted to prevent the abductors from taking away her son , the abductors had beaten her and her daughter PERSON [ the third applicant ] , and had hit them several times with rifle butts , as a result of which she had lost consciousness . Subsequently she had been treated at the Gikalo hospital .

The investigators questioned PERSON [ the third applicant ] , who stated that ... she and her mother [ the second applicant ] had attempted to stop the abductors , but they had been subjected to beatings as a result of which her mother [ the second applicant ] had lost consciousness .

... According to the medical statement provided by the Gikalo hospital , on DATE medical assistance had been provided to PERSON [ the second applicant ] as no [ other ] treatment had been possible at the time owing to the military actions ...

... According to the forensic medical examination report no . CARDINAL of DATE ... no bodily injuries or spots on the head or neck of PERSON [ the second applicant ] were found ...

Thus , the investigation did not establish that PERSON had received bodily injuries ... ”

For a summary of the relevant domestic law see PERSON and PERSON GPE ( no . CARDINAL , § § CARDINAL , CARDINAL DATE ) .


Violation of P1-1;Violation of Art. 6-1;Pecuniary and non-pecuniary damage - award

András Sajó;Françoise Tulkens;Guido Raimondi;Kristina Pardalos;Nona Tsotsoria

The applicant is a limited partnership under liquidation , with its seat in GPE .

In DATE ORG established that the applicant owed MONEY ( ORG ) in outstanding taxes . To secure this claim , on DATE it attached a CARDINAL%-share the applicant had in another company , which was nominally worth over ORG CARDINAL . Aware of the applicant ’s own intention to sell the share by DATE , ORG forbade the transaction but did not proceed to auctioning it within the statutory DATE deadline or afterwards .

In the ensuing DATE administrative procedure , the applicant ’s tax debt was eventually cancelled and the asset unfrozen . However , by that time the company in which the share belonged had been liquidated – as of DATE – and the share had lost its value altogether .

NORP Some time in DATE the applicant sued ORG for damages . On DATE the Baranya County Regional Court awarded it ORG CARDINAL . On DATE ORG quashed this decision . On DATE ORG again found for the plaintiff .

On appeal , on DATE ORG reversed this judgment and rejected the applicant ’s action . It held in essence that there had been no causal link between ORG unlawful omission to hold an auction to sell the attached asset within DATE from its attachment , as required by section CARDINAL(CARDINAL ) of the Enforcement Act DATE , and the damage the plaintiff had sustained . In the court ’s view , the burden of proof to show that had there been a timely auction the share could have successfully been sold to a buyer with the requisite liquidity lay with the applicant . However , the applicant could not prove this assertion . The court observed that the buyer suggested by the applicant had never had , according to its books , the capital needed for the acquisition ; that the company in which the share belonged had lost all its own capital by DATE and been in liquidation as of DATE ; and that its manager had been convicted of fraudulent bankruptcy .

On DATE ORG dismissed the applicant ’s petition for review . This decision was served on DATE . The applicant ’s request for a re - opening was to no avail .


Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He is represented before the Court by Ms N. Milanova , a lawyer practising in GPE . The respondent Government are represented by their Agent , PERSON , of ORG .

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

On DATE the applicant was attacked in his home in the village of GPE by CARDINAL individuals who beat him with a baseball bat , took his money and ran away . He lost consciousness and suffered CARDINAL fractured ribs and injuries to his chest and lungs .

The police were immediately called to the scene but failed to apprehend the attackers . A preliminary investigation was then opened and , on an unspecified date , CARDINAL suspects were arrested .

On DATE the applicant filed a request with the investigating authorities under LAW to join the criminal proceedings as a civil claimant and made a claim for compensation from the assailants in the amount of MONEY ( MONEY ) .

On DATE the assailants were charged with burglary and theft .

On DATE the prosecuting authorities and the assailants concluded a plea - bargain agreement which was approved by ORG on DATE . Under the terms of the agreement , the assailants pled guilty to burglary and theft and were sentenced to DATE imprisonment , suspended for DATE . The court did not examine the applicant 's civil claim and failed to indicate whether any of the damage caused by the offence had been compensated in any way .

At the relevant time , the victim of any tort which was also a publicly prosecutable offence could choose either to initiate a civil action against the alleged tortfeasor , which would then be stayed awaiting the outcome of the pending criminal proceedings ( LAW ( d ) of LAW DATE ) , or to file a civil claim for damages in the context of the criminal proceedings instituted by the prosecuting authorities ( Articles CARDINAL of LAW of DATE ) . In the latter case , the civil claim was examined together with the offender 's culpability but could not be a reason for delaying the criminal case as such ( LAW and CARDINAL of LAW of DATE ) . If the criminal proceedings were terminated , the civil claim was not to be examined but could be submitted to the civil courts ( LAW ) .

Prior to DATE a civil claim could be filed in the context of the criminal proceedings at any time after the criminal proceedings had been opened . Subsequently , it could only be filed once the case had been brought to trial . However , civil claims that had been filed before the amendment entered into force were to be examined under the old procedure ( paragraph CARDINAL of the transitory provisions to the LAW amending LAW of DATE ) .

In a decision of DATE ( реш. № CARDINAL от CARDINAL декември DATE г. по конституционно дело № DATE г. , обн. , GPE , бр. CARDINAL г. ) ORG held that the amendment of DATE struck a fair balance between victims ' rights and the public interest in more efficient , faster , and yet fair criminal proceedings . It noted that the joining of civil claims to criminal proceedings was an optional procedure aimed at assisting victims but that criminal courts were not obliged to admit such claims for examination if this could delay the criminal proceedings . It further emphasised that victims were entitled to bring an action before civil courts at any time .

At the relevant time , a plea - bargain agreement could be concluded after the preliminary investigation had been finished ( LAW ) .

If pecuniary damage had been caused by the offence , an agreement could be concluded only after the damage had been compensated or adequate security had been provided to the victim ( LAW of LAW of DATE ) .

A plea - bargain agreement was subject to approval by the domestic court , which would then conclude the criminal proceeding with a decision . The decision had the force of a final judgment and was not subject to appeal ( LAW and Article CARDINALh § CARDINAL of the Code of Criminal Procedure of DATE ) .


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

In a letter of DATE to ORG ( “ the GPE ” ) the applicant complained that under domestic legislation , anyone attending PERSON study classes had to be DATE ( at the material time that was the normal primary - school leaving age ) . As his son did not satisfy that requirement , the applicant requested dispensation to enrol him in religious - study classes of that kind . In his letter the applicant also referred to Articles CARDINAL and CARDINAL of the Convention .

In a letter of CARDINAL DATE the ORG replied that section CARDINAL of Law no . DATE required students enrolling in such classes to have obtained the primary - school leaving certificate and refused the applicant 's request .

Section CARDINAL of Law no . DATE , supplementing ORG ( Law no . CARDINAL ) , provides :

“ ORG shall afford those wishing to learn about the Koran and its interpretation and to increase their knowledge of religion the opportunity to attend Koranic study classes , outside the compulsory religious - education lessons at primary and secondary schools , provided that they have obtained the primary - school leaving certificate . ... ”


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

The applicant was born in DATE and lives in PERSON .

On DATE the applicant , a farmer who reared cows , concluded an insurance agreement ( полиса за осигурување ) ( “ the agreement ” ) with an insurance company ( “ the defendant ” ) against a risk of the cows ' death under which the latter would be liable to pay the damage , irrespective of the time of the death , if it was caused by reasons other than illness . On DATE CARDINAL of the applicant 's cows died . Since the defendant refused to pay for the loss , on DATE the applicant brought a claim against the defendant before ORG ( “ the first - instance court ” ) .

On DATE the trial judge 's wife was employed with the defendant as an assistant to the manager of its branch office .

On DATE the first - instance court dismissed the applicant 's claim .

The applicant appealed , arguing , amongst other things , that the first - instance court had arbitrarily given weight to evidence in favour of the defendant and that it had refused to examine witnesses as to the cause of death .

On DATE ORG quashed the court of first instance 's decision , instructing it to hear evidence from the vet who had examined the cow in order to determine the cause of the death .

On DATE the first - instance court dismissed the applicant 's claim , reiterating its earlier findings .

On DATE the applicant appealed , arguing that he had never received a copy of the general terms of the contract , and that the cause of death had not been properly established . He also contended that that judge was biased since his wife had started working with the defendant just after the proceedings had started . He asked for the trial judge to be removed if ORG were to quash the lower court 's decision and remit the case

On DATE ORG dismissed the applicant 's appeal , finding no grounds to depart from the established facts and the reasons given by the lower court . It did not make any comments on the applicant 's allegations that the trial judge was biased .

The decision was served on the applicant on DATE .

The relevant provisions of the then LAW ( ORG за парничната постапка ) provided as follows :

“ A judge or a lay - judge can not perform his/ her judicial function if :

he/ she is a party , a statutory representative or a counsel of a party ... ;

he/ she is permanently or temporary employed by a party to the proceedings ;

the party or its counsel is his/ her relative ... ;

he/ she is a custodian , an adoptive parent , an adoptive child ... of a party ;

he/ she participated in the rendering of any decision by a lower court or another body ; and

there are other grounds which cast doubts to his / her impartiality . ”

Section CARDINAL § CARDINAL

“ A judge who considers that there are other grounds which put his / her impartiality under doubt should give notice to the President of the court who will decide on his / her exclusion . ”

Section CARDINAL § § CARDINAL , CARDINAL , CARDINAL

“ The parties may also challenge the participation of a judge . The party concerned is obliged to challenge ( изземање ) a trial judge or a lay - judge as soon as it learns about it , but not later than the end of the trial before the first - instance court i.e. until the adoption of the decision . The party concerned is obliged to provide the reasons for challenging a judge 's ability to sit in a case . ”


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

The applicant , Ms PERSON , is a GPE national born in DATE and resident in PERSON .

She worked at a dry cleaner ’s from DATE . In DATE she started to develop physical complaints which caused her to take sick - leave for DATE at a time . It was alleged that these complaints were caused by chemical substances used in dry cleaning .

While she was not at work the applicant enjoyed sick - pay from ORG ( Bedrijfsvereniging voor de Chemische Industrie ) under LAW ( ziektewet ) .

By a letter of CARDINAL DATE ORG informed the applicant that according to the information at their disposal she was no longer unfit for work , and that accordingly her entitlement to sick - pay would be terminated with retrospective effect from DATE

The applicant lodged an appeal with ORG ( PERSON ORG ) on CARDINAL DATE . On DATE she filed an additional statement setting out her grounds of appeal .

The Appeals Tribunal followed the simplified procedure known as the permanent - medical - expert procedure ( vaste deskundige procedure – see paragraphs CARDINAL–CARDINAL below ) .

On DATE the applicant was examined by a permanent medical expert ( vaste deskundige ) attached to ORG – a general practitioner .

On DATE the acting president of ORG , Judge PERSON , dismissed the appeal .

This decision , which was typed on a pre - printed form , contained the following reasoning :

“ In his opinion , which was received at the registry of ORG on DATE , the expert reached the conclusion that on and after the date to which the decision appealed against relates the applicant was not unfit for work ...

ORG considers that it should accept this opinion .

In view of this opinion , as well as the other documents contained in the case file , it must be held that in the decision appealed against the respondent authority acted correctly in deciding to discontinue the applicant ’s sick - pay . ”

On CARDINAL DATE the applicant filed an objection ( verzet ) . This caused the decision of the president to lapse provisionally ( section CARDINAL ( CARDINAL ) of LAW – see paragraph CARDINAL below ) .

She filed a statement of the grounds on which her objection was based on DATE . The grounds of her objection went to the merits of the case .

The applicant received an invitation to take part in a hearing set for CARDINAL DATE .

By a letter of CARDINAL DATE addressed to Judge PERSON , the applicant ’s lawyer stated that he had learnt that Judge PERSON would officiate as president of ORG constituted to hear the case and announced his intention of challenging him .

At the hearing the applicant ’s lawyer submitted a written note dated DATE before requesting that Judge PERSON withdraw and , in the alternative , challenging him . It was not alleged that Judge PERSON was subjectively biased , but doubts were expressed as to his objective impartiality in view of the fact that he had given a decision in the case earlier , based on evidence contained in the case file .

The Chamber of the Appeals Tribunal withdrew to consider the applicant ’s challenge in camera . The discussion was presided over by a judge who was not a member of the ORG ( section CARDINAL of LAW – see paragraph CARDINAL below ) .

Judge PERSON did not withdraw . It was decided to reject the challenge , pursuant to the internal policy of ORG ( see paragraph CARDINAL below ) .

ORG thereafter resumed the hearing in the same composition .

On DATE DATE ORG held the objection to be unfounded .

The applicant filed a further appeal ( hoger beroep ) to ORG ( Centrale PERSON GPE ) on DATE .

Relying specifically on LAW , she complained about the rejection by ORG of her challenge of Judge PERSON , stating that the latter had lacked objective impartiality . She asked that the case be referred back to ORG for a rehearing ( see paragraph CARDINAL below ) under the presidency of a different judge .

As an alternative submission , she asked that her entitlement to sick - pay after CARDINAL DATE be recognised .

ORG rejected the applicant ’s further appeal on DATE .

In so far as its judgment concerned the applicant ’s challenge of Judge PERSON , it referred to another judgment delivered DATE in which the same problem of functional impartiality was addressed .

That judgment contained the following reasoning :

“ ORG construes the [ relevant ] case - law of ORG ... in the sense that the possibility of a violation of the guarantee of judicial impartiality is accepted if the judge participating in the determination of the legal question in the principal proceedings [ hoofdgeding ] has been involved in preparatory decisions which were independent in nature and had a purport of their own , and which generally fall to be taken on the basis of a global or provisional view of the main issue in the principal proceedings and which in general can not be reconsidered when the main issue is dealt with .

The procedure according to LAW , as called into question by the applicant , concerns a judge who , within a single instance on appeal , within the framework of continuous judicial construction [ rechtsvinding ] in the stage before as well as after the objection , which , if filed in due time , causes the preceding decision to lapse in accordance with section CARDINAL [ of LAW ] , is involved in a decision with the same purport , given in relation to the same legal question and on the basis of the same standards .

In view of these essential differences ORG is of the opinion that no violation of judicial impartiality can be found on the basis of the criteria which may be deduced from the above - mentioned case - law of ORG . ORG will not address the question whether the ORG ’s case - law , which has been formed in the field of criminal law , may be transposed to other fields of law without further ado . ”

The following is a rendering of the relevant domestic law and practice at the time of the events complained of .

The Health Insurance Act sets up an insurance scheme which is compulsory for all employees ( section CARDINAL ) . Under this scheme , an employee has a right to sick - pay in the event of inability to perform his or her work due to illness , pregnancy or disability ( section CARDINAL ) . In the event of illness or disability the employee may receive sick - pay for a period of up to DATE ( section CARDINAL ( CARDINAL ) ) . Provision for illness or disability continuing beyond this period was made under a different Act , ORG ( Wet op de arbeidsongeschiktheidsverzekering ) , which is not relevant to the present case .

Pursuant to section CARDINAL of ORG ( Organisatiewet sociale verzekeringen ) it falls to the occupational associations to implement certain social - security legislation , including LAW .

CARDINAL occupational association exists for each of the various sectors of economic life . An occupational association is an association ( vereniging ) under private law set up by ORG and employees’ organisations considered by ORG ( Minister PERSON PERSON en GPE ) to be sufficiently representative of the sector concerned ; its purpose is defined as being to implement the relevant social - security legislation , it must be a non - profit - making body and its statutes must satisfy certain requirements ( section CARDINAL ( CARDINAL ) of ORG ) .

An employer is automatically a member of the occupational association corresponding to the sector of the economy to which the work carried out by his employees belongs ( section CARDINAL ( CARDINAL ) of ORG ) .

The Appeals Tribunals – which have in the meanwhile been abolished ( see paragraph CARDINAL below ) – were the judicial bodies with jurisdiction to rule at first instance on disputes concerning most social- security legislation , including ORG ( at the relevant time , section CARDINAL of ORG ) .

A Chamber of an Appeals Tribunal comprised CARDINAL members . Its president was always a judge appointed for life : the president of ORG concerned or a vice - president or acting president ( sections CARDINAL and CARDINAL ( CARDINAL ) of LAW ) . The other CARDINAL members were appointed for DATE by the Minister of ORG , from lists of persons put forward by organisations of employers and employees ( sections CARDINAL and CARDINAL ) .

NORP In addition , ORG had a number of permanent medical experts at its disposal . These were physicians ( section CARDINAL of LAW ) . They were appointed for DATE at a time by the Minister of ORG ( section CARDINAL ( CARDINAL ) ) . Upon appointment , they swore that they would report according to their conscience ( section CARDINAL ) . They were not allowed to be connected to any organisation concerned with social - security matters , or to act as permanent medical experts in cases in which they had previously been involved in another capacity ( section CARDINAL ) .

In the event of a dispute between an occupational association and an employee with regard to the latter ’s fitness for work , the permanent - medical - expert procedure provided for by LAW was followed ( section DATE CARDINAL ) of ORG ) .

When an appeal was lodged against a decision of an occupational association concerning an employee ’s fitness for work , the president of ORG appointed a permanent medical expert ( section CARDINAL of LAW ) . The registry of ORG informed the occupational association in question of the lodging of the appeal ; the occupational association was then required to submit the relevant documents in its possession , normally within DATE ( section CARDINAL ) . These were included in the case file , which was then forwarded to the permanent medical expert .

The permanent medical expert was required to consult the physician who had examined the appellant on behalf of the occupational association and the physician who had treated the appellant , unless it appeared from the case file that their opinions corresponded to his own ; he also examined the appellant ( section CARDINAL ) .

He then drew up an opinion which he submitted to the president of ORG ( section CARDINAL ) .

The president of ORG , or an acting president as the case might be , gave a reasoned decision which was pronounced in public ( section CARDINAL ) .

Both the appellant and the occupational association could file an objection with ORG against the decision of the president ( section CARDINAL ( CARDINAL ) of LAW ) .

As a consequence of the filing of such an objection , the decision objected against lapsed unless the objection was eventually held to be inadmissible or unfounded ( section CARDINAL ( CARDINAL ) ) .

Before the ORG ’s judgment in the case of ORG v. the GPE ( judgment of CARDINAL DATE , Series A no . CARDINAL ) , such an objection could only be based on certain formal grounds ( ibid . , p. CARDINAL , § CARDINAL ) .

After that judgment the presidents of ORG established a policy guideline pursuant to which appellants were informed that they could file an objection on any grounds desired ( Nederlands ORG DATE , p. CARDINAL ) .

The objection proceedings involved a hearing in camera before a Chamber of the Appeals Tribunal ( section CARDINAL ( CARDINAL ) and ( CARDINAL ) ) .

A decision dismissing the objection had to be reasoned ( section CARDINAL ( CARDINAL ) ) .

Pursuant to section CARDINAL ( CARDINAL ) of LAW , a party to proceedings before an ORG was entitled to challenge a member of the ORG called upon to hear the case “ on the ground of facts or circumstances which might prevent [ the member concerned from forming ] an impartial opinion ” ( die een onpartijdig QUANTITY kunnen belemmeren ) . A member of the ORG was entitled to withdraw for the same reason ( section CARDINAL ( CARDINAL ) ) .

After a hearing of the party concerned , the challenge was decided on in camera by the other members of the ORG , chaired by the president of ORG or his or her deputy . No appeal lay against the ensuing decision ( section CARDINAL ( CARDINAL ) of LAW ) .

It appears from the decision in the present case ( see paragraph CARDINAL above ) that ORG had an internal policy under which objections against decisions which had lapsed as a result of the filing of the objection were normally dealt with under the presidency of the acting president who had given the original decision unless no further appeal was possible .

ORG was , and is , composed entirely of judges appointed for life ( section CARDINAL of LAW ) . At the relevant time it always sat in NORP of CARDINAL ( section CARDINAL ) . Its hearings are public ( section CARDINAL ) .

A further appeal against the decision or judgment of an Appeals Tribunal lay to ORG , unless the law provided otherwise ( section CARDINAL of LAW ) .

The procedure normally involved a complete re - examination of the case , including a hearing ( section CARDINAL ) . ORG could confirm the decision of ORG , with different reasoning if necessary , or do what ORG ought to have done ( section CARDINAL ) ; it could also refer the case back to ORG if it saw fit ( section CARDINAL ) .

However , according to section CARDINAL ( CARDINAL ) of ORG , no appeal lay against a decision given by ORG in objection proceedings such as those in issue .

In its judgment of CARDINAL DATE ( PERSON ( Social Security Law Reports , ORG ) DATE , no . CARDINAL ) ORG nevertheless opened the possibility of a further appeal in such cases if it appeared that rules of a formal nature had not been followed , if incorrect standards had been applied , or to the extent that the decision appealed against was unreasonable .

The General Administrative Law Act entered into force on DATE .

It replaced ORG by administrative - law divisions of ORG ( arrondissementsrechtbanken ) .

An employee who does not wish to accept the decision of an occupational association concerning his or her fitness for work may file an objection ( bezwaarschrift ) to that body ( section CARDINAL of LAW ) .

An appeal lies to ORG ( section CARDINAL:CARDINAL ) . ORG may appoint a medical expert to examine the appellant ( section TIME ( CARDINAL ) ) . It must hold a hearing , unless the parties to the case waive their right to be heard ( sections CARDINAL and CARDINAL:CARDINAL ) .

A further appeal lies to ORG ( section CARDINAL of LAW , as amended ) . The restrictions set out in paragraph CARDINAL above no longer apply .


Violation of Art. 5-4;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

NORP In DATE the applicant , then aged DATE , was convicted of manslaughter , qualified as such on the grounds of diminished responsibility , and sentenced to life imprisonment . Medical evidence adduced at the trial showed that the applicant suffered from a mental abnormality induced by alcohol .

On DATE the applicant was released on life licence for the third time subject to the condition , amongst others , that he should comply with any reasonable requirement imposed by his probation officer for the treatment of his alcohol problem . He had been recalled to prison twice previously and had since been transferred to open prison conditions in DATE .

On DATE the police were called to the home of the applicant 's partner , PERSON , who is a deaf mute . She was taken to hospital where she received treatment for injuries to her face and back .

On DATE the Secretary of ORG revoked the applicant 's licence and recalled him to prison . By a letter dated DATE , the Secretary of ORG indicated that the licence was revoked on the grounds that the applicant had caused PERSON 's injuries after drinking CARDINAL cans of lager . This was so stated in the report by the applicant 's probation officer who had met with PERSON on DATE . The case was referred to ORG which confirmed the revocation of the applicant 's licence on DATE .

On DATE ORG Discretionary Lifer Panel ( “ the ORG ” ) , chaired by a ORG judge , met to consider the applicant 's representations against recall . It considered the applicant 's written and oral representations , the views of CARDINAL probation officers , the oral evidence of PERSON and the submissions of the applicant 's solicitor and counsel for the Secretary of ORG .

In her oral evidence PERSON gave evidence to the effect that it had been she and not the applicant who had been responsible for her injuries . A prison officer , who had attained a stage CARDINAL NORP Sign Language qualification and was training towards stage CARDINAL , attended the hearing and acted as interpreter for M.

In its written decision of CARDINAL DATE the ORG stated , in its reasons for rejecting the applicant 's representations , that it had accepted the evidence which indicated that the applicant had been responsible for PERSON 's injuries , rather than the account put forward on behalf of the applicant . It expressed the opinion that , in order to minimise the risk posed by the applicant to members of the public , the applicant needed to carry out further work in respect of alcohol , anger and relationships . This was communicated to the applicant in a letter dated DATE by the Secretary of ORG , who informed the applicant that his next ORG review was set for DATE .

The applicant and PERSON married in prison on DATE .

The applicant applied for legal aid to challenge the ORG 's decision by judicial review . On appeal , legal aid was granted for the limited purpose of seeking further evidence and counsel 's opinion . On DATE , counsel advised that an application for judicial review would be unsuccessful and legal aid was not extended .

While in prison , the applicant attended courses in anger management , relationships , alcohol awareness and men and violence run by ORG . These had been completed within DATE of his recall .

On DATE the applicant had a further hearing before the ORG . Despite expressing some reservations , the ORG concluded that the applicant had made significant and sufficient progress since his previous review and recommended to the Secretary of ORG that he be released on licence . The applicant was released on DATE .

Persons sentenced to mandatory and discretionary life imprisonment , custody for life and those detained during Her Majesty 's pleasure have a “ tariff ” set in relation to the period of imprisonment they should serve in order to satisfy the requirements of retribution and deterrence . After the expiry of the tariff , the prisoner becomes eligible for release on licence . Applicable provisions and practice in respect of the fixing of the tariff and release on licence have been subject to change , most notably following the coming into force on DATE of LAW DATE ( “ the DATE LAW ) , which was in force at the relevant time . ( The provisions of the DATE Act were replaced by ORG “ the DATE LAW ) from DATE . )

Section CARDINAL of the DATE Act allowed the Secretary of ORG to revoke a discretionary life prisoner 's licence where it appeared to be expedient in the public interest to recall him to prison . Once recalled , the prisoner had to be informed of the reasons for his recall and could make representations in writing .

According to section CARDINAL(CARDINAL ) of the DATE Act , ORG had a duty to advise the Secretary of ORG with respect to any matter referred to it by him which was connected with the early release or recall of prisoners .

ORG chairman appointed CARDINAL members of ORG to consider discretionary life cases . They comprised the ORG . The ORG always held an oral hearing when considering whether to release a discretionary life prisoner whose tariff had expired or whether to recall a discretionary life prisoner whose licence had been revoked . It was the duty of the Secretary of ORG to release the prisoner if the ORG directed his release .

According to ORG , which came into force on DATE , a prisoner was entitled , among other things , to an oral hearing , disclosure of evidence before ORG and legal representation . He was also entitled to call witnesses on his behalf and to cross - examine those who had written reports about him . A reasoned decision by the ORG was delivered within DATE of the hearing .

When deciding under section DATE that recall should be confirmed , the ORG often gave guidance as to the timing of the next review . It normally recommended a further review in DATE but an earlier date could be given in appropriate cases , with reasons . Where no guidance was given , the Secretary of ORG decided the date of the next review . Where it became clear that the prisoner had made unexpectedly rapid progress prior to the set review date , the date of the review could be brought forward .

A discretionary life prisoner may request the Secretary of ORG to refer his case to ORG after DATE beginning with the disposal of a previous reference to ORG ( section CARDINAL ) of the CARDINAL Act , now section CARDINAL(CARDINAL)(b ) of LAW ) .


BAJRAKTAROV v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Volodymyr Butkevych

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in PERSON . He was represented before the ORG by Mr PERSON , a lawyer practising in PERSON . ORG ( “ the Government ” ) were represented by their Agent , PERSON .

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

On DATE ORG convicted the applicant of several offences and sentenced him to DATE and DATE imprisonment . The court also ordered confiscation of the proceeds gained by the applicant from the offences ( “ the confiscation order ” ) .

On DATE the then ORG of GPE partly quashed the lower court ’s decision since the statutory rules on time - barred prosecutions had been wrongly applied .

On DATE ORG stayed the criminal proceedings against the applicant . It did so because the public prosecutor had withdrawn the charges as the prosecution had become time - barred . It also ordered restoration of the confiscated funds to the applicant ( “ the restoration order ” ) . This decision became final on DATE .

On DATE ORG partly upheld a request by the applicant for enforcement of the restoration order . It ordered restoration of the confiscated funds , but refused to award interest because no provision for interest had been stipulated in the restoration order . The court also found that the confiscated funds had been transferred to GPE ( “ the Municipality ” ) and ultimately to the then ORG of the ORG . An appeal by the ORG was finally dismissed by a court decision of DATE . The confiscated funds were actually restored to the applicant on DATE .

On DATE the applicant brought a civil action against the Municipality and the ORG claiming interest on the funds . He claimed interest for the period between the actual confiscation of the funds and their restoration .

On DATE ORG rejected the applicant ’s claim as premature . It established that on CARDINAL DATE the applicant had sought compensation for wrongful conviction before the then ORG for ORG ( “ the ORG ” ) only in respect of his earnings and other rights deriving from his employment , but that he had not claimed interest on the confiscated funds . On DATE the ORG upheld that decision .

On DATE ORG allowed an appeal by the applicant on points of law and quashed the lower courts’ decisions . It found that his claim should not be regarded as a request for compensation for wrongful conviction and that , accordingly , he had not been required to apply to the relevant Ministry .

On DATE ORG ruled partly in favour of the applicant , allowing his claim only in respect of unpaid interest on the national - currency funds . It dismissed his claim for statutory interest on the foreign - currency funds . It further established that the foreign currency funds had actually been restored to the applicant on DATE .

On DATE the ORG partly upheld the lower court ’s decision and remitted the dismissed part for reconsideration .

On DATE ORG granted a request by the public prosecutor for the protection of legality ( барање за заштита на законитоста ) and quashed the lower courts’ decisions . It found that they had wrongly applied the national law by awarding double interest on the foreign currency funds .

On DATE ORG , after having obtained an expert report , upheld the applicant ’s claim and ordered GPE to pay him interest on the confiscated funds .

On DATE the applicant requested ORG to enforce that decision . On DATE the latter ordered ORG ( Завод за PERSON ) to transfer the award to the applicant ’s account .

On DATE ORG quashed the lower courts’ decisions and ordered a retrial . It found that they had incorrectly applied the civil - law rules on compensation instead of the provisions of LAW concerning wrongful convictions .

On DATE ORG Instance dismissed the applicant ’s claim in respect of the Municipality and declared it inadmissible in respect of the State . The court found that the applicant had failed to submit his claim to the ORG and that , accordingly , he had not been entitled to claim compensation on that ground in the civil proceedings .

On DATE ORG allowed an appeal by the applicant and remitted the case for re - examination .

On DATE ORG Instance dismissed the applicant ’s claim . It found that ORG had not pardoned the applicant or overturned his conviction on the merits , but had quashed it solely because of the time bar . The court therefore concluded that the applicant had not been wrongly convicted and that , consequently , the ORG had not been liable to pay any damages .

On DATE the ORG allowed an appeal by the applicant and ordered a retrial . It held that his claim should not be considered under the rules for wrongful conviction , but as a civil compensation claim .

On DATE the President of ORG refused a request by the applicant for exclusion of the judge sitting in his case .

On DATE ORG Instance dismissed the applicant ’s claim . It established that the applicant ’s compensation claim for interest in respect of his wrongful conviction had been submitted to the ORG out of time . It held , inter alia , as follows :

“ ... the court finds that the applicant ’s compensation claim concerns unpaid interest on confiscated funds ... since the legal ground of that claim is the confiscation of the funds , as a security measure issued within the criminal proceedings , the case is to be analysed under the rules on compensation for wrongful conviction and detention ... Under section CARDINAL(CARDINAL ) of LAW , a plaintiff [ the applicant ] can claim compensation before the authorised ORG body and is entitled to receive compensation within DATE on which a decision staying the proceedings becomes final . In the instant case the decision of PERCENT , by which the criminal proceedings ... were stayed , was served on the applicant on DATE and became final on DATE . On DATE the plaintiff submitted his claim for unpaid interest on the confiscated funds to the ORG for ORG . On DATE the latter instructed the plaintiff to submit his claim to the court of competent jurisdiction . It transpires that the deadline for the plaintiff ’s claim was DATE . The application lodged on DATE was therefore time - barred ... ”

The court further found that the funds had been confiscated in lawful judicial proceedings . ORG of GPE had neither pardoned the applicant nor found substantial procedural deficiencies . It had quashed the applicant ’s conviction merely because of the time bar . The court therefore went on to conclude that the ORG could not be held liable for damage sustained by the applicant . On DATE ORG dismissed an appeal by the applicant in which he had , inter alia , expressed doubts about the impartiality of the first - instance court judge .

In DATE the applicant lodged an appeal with ORG in which he restated his arguments that his claim should be considered under the civil - law rules on compensation .

On DATE the public prosecutor submitted observations to ORG supporting in part the applicant ’s appeal related to his claim against the ORG . It stated that interest should be calculated as of DATE when the restoration order had become final until restoration actually occurred .

On DATE ORG dismissed the appeal by the applicant on points of law and upheld the lower courts’ findings that the damage had derived from the criminal proceedings and that , accordingly , compensation should have been sought under the rules related to wrongful conviction . This decision was served on the applicant on DATE .


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

He is represented before the ORG by PERSON , a lawyer practising in GPE .

A.

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

ORG Recourse No . CARDINAL/CARDINAL before ORG

On DATE the applicant applied to ORG for a declaration that ORG and ORG , the major shareholder of that company , had breached the LAW in refusing to employ him and employing others instead ( recourse No . CARDINAL/CARDINAL ) .

On DATE the applicant asked the Chief Registrar of ORG whether legal aid was available for actions alleging infringement of constitutional rights , such as recourse No . CARDINAL/CARDINAL . On DATE the Chief Registrar informed the applicant that “ legal aid is not available for civil cases ” .

The applicant represented himself in the proceedings .

On DATE ORG rejected the applicant ’s recourse as inadmissible . The court found that ORG was in every respect a private company . As a result , its decisions did not fall within the ambit of LAW . The refusal to employ the applicant was , therefore , wrongly challenged by means of a recourse to ORG .

II . Case No . CARDINAL before ORG

In DATE the applicant instituted proceedings before ORG seeking the annulment of ORG decision to issue work permits to CARDINAL foreign pilots employed by ORG , a subsidiary of ORG ( case No . CARDINAL/CARDINAL ) . On DATE ORG found in favour of the applicant .

Relying on the above decision , the applicant instituted proceedings before ORG for damages against the Government ( case No . CARDINAL/CARDINAL ) . He was represented by counsel who acted on a “ no fee ” basis . On DATE the court rejected the action .

The applicant ’s counsel lodged an appeal . The proceedings are still pending .

III . Case No . CARDINAL before ORG

On DATE the newspaper Alithia published a letter by ORG worded as follows :

“ With reference to your article in connection with PERSON , we confirm once again that our intention is to ‘ Cypriotise’ [ give priority to NORP employees ] as soon as possible . Within the bounds of safety and operations of the company , for us to achieve this aim , the recruitment of suitable , qualified pilots is an absolute necessity . … We have offered employment without exception to each and every qualified suitable NORP pilot who has applied and DATE we employ CARDINAL such pilots … . The recruitment of ab initio NORP pilots has already commenced and we will continue this policy until all the foreigners in our company are replaced . With regard to Mr PERSON 's specific case , the reasons he was not selected are known to both himself and the Government agencies concerned through correspondence dating from DATE . As for the rest it is against our policy to discuss individual cases in the press ” .

On DATE the applicant instituted proceedings for defamation against ORG before ORG ( Case No . CARDINAL/CARDINAL ) . He alleged that it transpired from the publication in question that

( a ) he was an unqualified and inexperienced pilot and not suitable to fly aircrafts ,

( b ) he was so incompetent and/or had such disadvantages as a person and as a professional so as to jeopardise the safety of the flights and the operation of the company , or any other airline company ,

( c ) he was not selected for employment , not because there were other persons more qualified than him , but because he was totally useless and/or incompetent and/or an ignorant professional pilot and

( d ) he was generally a dangerous and suspicious person and could not be trusted .

The applicant applied for damages and an injunction preventing the defendants from continuing to publish defamatory statements . The applicant was represented by counsel .

A hearing was fixed for DATE . On that date the applicant failed to appear and the court dismissed the action .

On DATE the applicant ’s counsel asked for the reinstatement of the action . On DATE the action was reinstated . A hearing was fixed for DATE . It was adjourned on several occasions .

On DATE the applicant informed his lawyer , PERSON , that he did not exclude the possibility of engaging the services of another lawyer . On DATE Mr K informed the applicant that he was no longer able to represent him . The lawyer invited the applicant to collect the file so he could prepare his case himself . He stated that “ no fees ( were ) expected to be paid by ( the applicant ) ” .

After Mr K ’s withdrawal the applicant sent a number of faxes to the court ’s registry asking for the case to be adjourned . On DATE Mr E , in whose chambers PERSON used to work , appeared before the court on behalf of the applicant and asked for an adjournment . The court adjourned the hearing of the case until DATE .

On DATE none of the parties appeared and the court dismissed the action .

On DATE Mr E wrote a letter to the applicant ’s representatives before the ORG to the effect that his firm had agreed to represent the applicant “ on a no fee basis ” , that Mr K had withdrawn from the case because he had been appointed a judge and that the case “ had a very good chance of success if handled properly ” .

B. Relevant domestic law

The law on defamation in GPE is found in sections CARDINAL to CARDINAL of LAW . The following principles transpire from the case - law :

“ In accordance with the principles of legal interpretation applied in GPE , expressions used in ( LAW ) shall be presumed so far as they are consistent with their context and except as may be otherwise expressly provided to be used with the meaning attaching to them in LANGUAGE PERSON and shall be construed in accordance therewith . … Time and again it was said that the gist of the torts of libel and slander is the publication of words conveying a defamatory imputation . A defamatory imputation is one to a man 's discredit , or which tends to lower him in the estimation of others , or to expose him to hatred , contempt or ridicule , or to injure his reputation in his office , trade or profession or to injure his financial credit . The standard of opinion is that of right - thinking persons generally . ” ( ORG of Cyprus in PERSON and Sons , ( DATE ) CARDINAL ORG pp . CARDINAL and CARDINAL )

“ The meaning of words in a libel case is not a matter of construction as a lawyer construes a contract . It is a matter of the impression an ordinary person gets on a first reading not on a later analysis . ” ( PERSON v. Daily Telegraph Ltd. ( DATE ) CARDINAL All GPE p. CARDINAL )

“ An innuendo properly so called which is an allegation that words were used in a defamatory sense other than their ordinary meaning and which provides a separate cause of action must be supported by extrinsic facts or matters and can not be found only on interpretation , because if the words bear the interpretation imputed to them they are defamatory in their natural and ordinary meaning . ” ( ORG v. ORG ( DATE ) CARDINAL All ORG p. CARDINAL )

According to a letter addressed to the applicant by ORG on DATE , ORG confirmed that “ legal aid ( was ) not available in civil cases . Despite the fact that LAW provides that every person has the right to have free legal assistance where the interests of justice so require and as provided by law , such a law has not as yet been introduced ” .