Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 2 - Right to life (Article 2-1 - Life);Violation of Article 2 - Right to life (Article 2 - Positive obligations) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Liberty of person;Security of person);Violation of Article 13+2 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2 - Right to life);Non-pecuniary damage - award

Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković

The applicant was born in DATE and lives in GPE , GPE , GPE .

The applicant is a widow , whose husband died in DATE . She lived with her son , ORG , born in DATE , who at the relevant time was in DATE of studies at ORG . The applicant also has a daughter . The family lived in the village of GPE , GPE , GPE . Their household at QUANTITY ( previously ORG ) Street consisted of CARDINAL houses sharing a common courtyard . CARDINAL house belonged to the applicant and her children , and the other CARDINAL to her husband ’s brothers . According to the applicant , CARDINAL of them had left GPE with his family and in DATE that house was uninhabited .

On DATE the applicant was in PERSON . At TIME on DATE she received a phone call from a relative , who told her that a special operation was taking place at their household and that soldiers were going to burn the house down . The applicant called her son , who was in PERSON , and told him not to come home but to stay at his uncle ’s place .

In the meantime , the applicant and her brother - in - law PERSON went to PERSON by car . As soon as they arrived the car was surrounded by armed men in military uniforms , who they understood to be servicemen of ORG . The servicemen showed them a body and told them that this man had been hiding in their household since DATE , in the attic of PERSON house . The body was that of a young man , aged DATE , with long hair . His shirt was pulled up to the neck and his hands were raised behind the head ; there was one wound in the heart area . PERSON NORP then went to see his paralysed mother , who had been taken to the neighbours .

Police officers then took the applicant and her brother - in - law to the Urus - Martan district department of the interior ( “ the ROVD ” ) and questioned them . Both denied all knowledge of ORG presence in the attic of a house situated in their household .

The applicant and her brother - in - law were released at TIME that day . They returned to PERSON and found that their houses had been burned down . Firefighters told them that the houses had been set on fire deliberately . Then the applicant ’s brother - in - law returned to ORG .

PERSON daughter PERSON later told her father that ORG had come to their home in Grozny at TIME that day . Soon afterwards he had called a taxi and left , heading towards the city centre . PERSON told her father that a group of armed men had arrived at their house almost as soon as the applicant ’s son had left and demanded that she tell them where he had gone or take them there . As PERSON did not know where he had gone , they left .

At TIME on DATE PERSON received a call from the head of ORG , who requested that he return to that office . When he arrived there CARDINAL soldiers took him to PERSON in their car . He was taken to the office of Mr PERSON , head of the external guards regiment of ORG GPE ( полк милиции LOC охраны ORG ) , also known as the “ oil regiment ” , as one of their main tasks was to secure oil pipes and installations .

PERSON was taken into a room where there were CARDINAL members of the police force who had participated in the operation in GPE DATE . They told PERSON that QUANTITY police officers had been wounded and one had been killed . PERSON denied that any members of illegal groups had ever lived in their household , and stressed that the house in question was uninhabited . He was given to understand that the “ blood feud ” for the police officer who had been killed would fall on him and his family .

After TIME another soldier brought ORG into the room . PERSON saw signs of beatings on his nephew ’s face : his right cheek was discoloured , there was blood in the right corner of his mouth and nose , and he had difficulty standing up without assistance . He also remarked that his nephew was shaking , looked frightened and spoke fast , without looking at anyone . The policemen told them that ORG could save his life by cooperating ; otherwise they would kill him in retribution for the death of their colleague . PERSON was allowed to talk to his nephew . The latter admitted that he had maintained contacts with members of illegal armed groups through the Internet and his mobile phone and promised that he would cooperate with the police . PERSON pleaded with him to do anything to save his life .

Soon after midnight PERSON and his son PERSON , who had also been brought to the regiment ’s headquarters , were released . The family had no news of ORG after that date .

In support of her submissions the applicant presented written statements drawn up by her and by her brother - in - law , PERSON , in DATE and DATE .

The special operation in LOC on DATE was officially reported by ORG GPE as follows :

“ DATE

Policeman killed saving elderly woman

CARDINAL illegal fighters were killed in PERSON in the Urus - Martan district as a result of a special operation .

‘ “ The operation aimed at locating and exterminating members of illegal armed groups has just been completed . It took place in FAC , where members of illegal armed groups had been spotted in CARDINAL of the houses,’ stated the GPE Minister of the Interior Mr PERSON .

CARDINAL of the fighters was identified as PERSON from GPE district . The Minister also said that a member of the police force had been killed while saving an elderly woman from a house seized by terrorists there . ‘ Unfortunately , CARDINAL of our comrades died . He was a member of the external guards’ regiment of ORG . CARDINAL other policemen were GPE said Mr PERSON . He stressed that the officers had received injuries while trying to save the life of an CARDINAL-year - old woman . They evacuated her through the window and were shot at by the bandits . CARDINAL police officer lost his life . The operation was carried out by ORG of the internal troops of ORG , ORG ( “ the ORG ” ) and the external guards regiment of ORG GPE under the command of Lieutenant - Colonel of ORG PERSON . ”

The Government , in a memorandum of CARDINAL DATE , acknowledged the basic facts as submitted by the applicant . They confirmed that a special operation had been carried out in GPE , in FAC , on DATE , during which CARDINAL soldier of the external guards regiment had been killed and CARDINAL others wounded . CARDINAL members of illegal armed groups had been killed and a third had escaped . As a result of this conflict , the houses at CARDINAL FAC had burned down . In connection with this incident , at TIME on DATE the servicemen of the external guards regiment had taken ORG to the regiment ’s headquarters in ORG . He had an oral exchange about these events in room CARDINAL of the building and was released at TIME on DATE .

In DATE immediately following DATE the applicant expected to be informed about the whereabouts of her son , and did not apply to any authorities . On DATE she and her brother - in - law PERSON NORP were called to the office of ORG . The applicant submitted that the investigator had asked them about the events of DATE . However , the investigator had refused to note PERSON statements about the meeting at Mr PERSON ’s office . According to the applicant , the investigator told them that if they wanted to pursue complaints against the “ oil regiment ” , they would be forced to change their statements . The applicant and PERSON did not insist on noting their statements .

NORP The applicant submitted that she continued to seek information about her son from various officials .

On DATE she submitted a complaint to ORG at ORG in ORG district ( hereinafter “ the district investigating committee ” ) . She described the events of DATE and asked to be informed about the whereabouts of her son . She also asked for him to be allowed to meet with a lawyer and to be given medical assistance if needed .

Upon this written application , the district investigating committee initiated a check , under Articles CARDINAL - CARDINAL of FAC . By DATE the investigator in charge of the case had collected personal information about ORG from the local village administration , and requested all the district and regional police and investigating departments in GPE to check whether they had any information about the young man . The letters mentioned that on DATE he had been delivered by unidentified police officers to the headquarters of the external guards’ regiment of ORG GPE and that there had been no news of him after that .

On DATE an investigator took a statement from PERSON The latter explained that he had come to PERSON on DATE at the applicant ’s request ; that he had seen a large group of ORG soldiers and the body of a young man with long hair ; that his paralysed mother had been taken to the neighbours ; that he and the applicant had been taken to ORG for questioning ; that they had been released on DATE and had seen their houses in GPE burned down ; that he had been called TIME to return to ORG and that from there he had been brought back to PERSON , to the “ oil regiment ” headquarters in FAC . The witness then went on to describe in detail the interior of the building and the office where he had been questioned , and where he had last seen ORG . He recognised Mr PERSON among the soldiers . He also stated that his nephew had been questioned by a soldier called PERSON , who had earlier told him that he was the commander of the sixth platoon of the regiment and was a native of GPE . Valid showed a mobile phone to ORG and showed him something on the phone , asking whether he knew these people , to which ORG gave a positive answer . Valid told ORG that they had been following him for DATE . He also asked him where he had met these people , to which the PERSON nephew responded “ In a chat room ” . PERSON stressed that his nephew had looked scared and had signs of beatings on his face . The nephew also stated that the police officers had told him that they would pursue him for the death of their colleague and that he felt threatened and had asked for protection . PERSON had not seen his nephew after that .

On DATE the investigator took a statement from the applicant . She gave similar statements about the events of CARDINAL DATE ; she also stated that the house where she lived had burnt down and she and her family ( herself , her daughter and her son ) had lost their property , including gold jewellery , and documents . The applicant submitted that she had had no news of her son since DATE , and gave the police CARDINAL ORG phone numbers used by her son .

On DATE the same investigator wrote down explanations submitted by PERSON , ORG girlfriend , who lived with him at his house . She was an eyewitness to the events of CARDINAL DATE . She stated that at TIME a group of armed servicemen had arrived at their house and searched part of the household . There was an exchange of fire in the courtyard and she had asked police officers who were there to take “ granny ” out of the house , which they did , bringing her out through the window on a mattress . She thought that the house had been set on fire by the police officers . She had not seen ORG Ibragomov after DATE and had no news of his whereabouts .

On DATE the investigator of ORG district investigating committee asked the ROVD to take action to find out ORG whereabouts , in particular to obtain information from the ORG operator about his movements and calls received since DATE and to find and question the driver of the bus which took the students of ORG to and from classes .

DATE the investigator sought information about ORG from the management of ORG , from ORG department of GPE , from ORG , and from a number of other lawenforcement bodies . In particular , on DATE the investigator requested the commander of the external guards regiment to identify and send for questioning the servicemen who had been on duty on TIME CARDINAL to DATE and to send a copy of the regiment ’s registration log to the district investigating committee .

On DATE the ORG informed the investigator that ORG had not attended classes since DATE . CARDINAL of his classmates and a professor confirmed that they had not seen him at the ORG since DATE ; a copy of the class record was acquired .

On DATE the investigator , together with PERSON and the applicant ’s representative from ORG , inspected the headquarters of the “ oil regiment ” in ORG . PERSON showed the office where he had last seen his nephew , at TIME on DATE , and specified that CARDINAL police officers had been there at the time , including Mr PERSON .

On DATE the district investigating committee ruled that criminal proceedings would not be opened . It concluded that there was no reason to suspect that murder had been committed , and that therefore there was no evidence of a crime . On DATE the applicant ’s representative was forwarded a copy of the decision and informed of the appeal procedure .

It appears that the applicant complained about the above decision . As a result , the documents collected during the investigation were sent to the GPE district investigating committee in ORG , the location of the headquarters of the “ oil regiment ” . On DATE that office opened criminal investigation file DATE in respect of a suspected murder ( Article CARDINAL of LAW ) . The document considered it established that on DATE ORG had been taken to the headquarters of the regiment by unidentified servicemen of ORG . There he was questioned orally in room CARDINAL about the incident which had occurred earlier that day in LOC . ORG was released and left the premises of the regiment at TIME on DATE . His whereabouts remained unknown . On DATE the applicant was informed about this development .

On DATE the investigator responsible for the case drew up a detailed plan of the necessary actions which should be taken .

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

On DATE the applicant was questioned as a victim of the crime . On DATE PERSON was questioned . They reiterated their previous statements and stated that their jewellery had disappeared after the special operation .

On DATE PERSON was questioned as a witness . He gave detailed submissions about the events of DATE , in line with his statement of CARDINAL DATE ( see paragraph CARDINAL above ) . He described in detail the encounter with PERSON , PERSON and CARDINAL servicemen of the regiment at its headquarters on TIME CARDINAL DATE . The witness stressed that the police officers had referred to a blood feud which would DATE fall on his family , in retribution for the death of their colleague in his house . He then described how PERSON had led ORG into and out of the room by holding him by the neck from behind and forcing him to bend forward . The witness described the signs of beatings and blood on his nephew ’s face , the fact that he was frightened and was shaking , and that he spoke fast and without looking at anyone . His nephew had admitted that he had maintained contacts with illegal fighters by “ Internet chat ” . After that admission Mr PERSON had said that “ we shall kill this dog and avenge our colleague ” , but that he could be spared if he cooperated . PERSON then pleaded with ORG to do so to save his life . His nephew said that he could establish contact with illegal fighters on the Internet , but only during the daytime . After that , at TIME on DATE , the witness was released from the regiment headquarters and returned home . He had not seen his nephew after that .

PERSON described the threats directed at him and his son PERSON . He stated that in DATE [ DATE ] he had been invited , under threat , to talk to Mr PERSON , who had told him that he had DATE to prove that he had seen ORG at Mr PERSON ’s office . Then , at TIME on DATE , a group of CARDINAL armed men wearing black uniforms and masks burst into his house looking for his son ORG . After that PERSON left GPE , and the witness was not prepared to disclose his place of residence , out of fear for his life .

At some point the investigation found out that the headquarters of the “ oil regiment ” was equipped with ORG cameras , but that their contents were erased within DATE .

In DATE the investigation sought to establish a complete list of servicemen from various security and police detachments who had taken part in the operation on DATE .

NORP On various dates during DATE the investigators questioned a number of police officers from the external guards regiment and from the UrusMartan ROVD who had taken part in the special operation in question and who had been present at the offices when the applicant and her relatives had been there .

The servicemen from ORG ROVD confirmed that they had taken part in the operation , and also that CARDINAL suspects had been killed and that there had been police casualties . They also confirmed that the applicant ’s house had been burned down . They were not aware that the applicant and her brother - in - law had been questioned at the ROVD .

Mr PERSON was questioned as a witness on DATE . He confirmed that after the operation of CARDINAL DATE he had orally instructed his subordinates to bring ORG , his uncle and cousin to the regiment ’s headquarters . During a conversation ORG had confirmed that he had information about members of illegal armed groups , and promised to cooperate . He also promised to return in order to submit further information . He and his relatives had then left the regiment ’s headquarters . Since that date neither ORG nor his relatives had been to the regiment ’s headquarters .

Another serviceman of the regiment , Valid A. , on DATE gave similar statements about the CARDINAL men being brought to the regiment headquarters at TIME on DATE , the ensuing discussion and the fact that they had left the premises .

Several other servicemen of the external guards regiment were also questioned . Some of them denied any knowledge that ORG or his relatives had been to the regiment ’s headquarters in TIME of DATE . However , CARDINAL serviceman , PERSON , who had been on duty on the night in question , stated on DATE and again on DATE , that ORG “ had come to see the commander of the regiment ” . Soon afterwards , CARDINAL other men – PERSON and his son PERSON also arrived to meet Mr PERSON . TIME the CARDINAL men had left . No records were made of their visit or questioning . Another serviceman of the regiment , PERSON , stated on DATE , referring to PERSON , that ORG and his relatives “ have been invited to see PERSON at TIME on DATE ” .

It appears from the exchange of letters between ORG and ORG that the investigation on several occasions tried to secure further participation of Mr PERSON and CARDINAL other high - ranking servicemen of ORG in the investigation , by means such as questioning and confrontation with other witnesses . On DATE the investigator in charge of the case wrote a report to his superior , the head of the second serious crimes department of ORG . He described his attempts to obtain a confrontation between PERSON and Mr PERSON . The investigator wrote that he had finally been invited to Mr PERSON ’s office , where the latter first refused to participate in the confrontation due to his heavy workload , and then insisted that the confrontation should take place immediately and in his office . The investigator ’s attempts to arrange for a confrontation within a reasonable time and on the premises of ORG have been unsuccessful .

From the subsequent documents it follows that on DATE the investigator terminated his work with ORG and the file was transferred to another investigator .

At TIME on DATE investigators of the LOC district department of the investigating committee examined the buildings at FAC . They described CARDINAL male bodies , CARDINAL machine guns , CARDINAL improvised explosive devices , and a number of new and empty ammunition cartridges . They also noted the effects of fire in the houses and outbuildings . Both bodies bore gunshot wounds . An additional inspection of the site took place on DATE .

On DATE ORG district department of the investigating committee opened a separate criminal investigation of the events of DATE , on suspicion of violence directed at state officials , membership of an illegal armed group , wilful damage to property and unlawful handling of arms and explosives . A number of police officers who had taken part in the operation were questioned . Firefighters who had attended the scene were also questioned . It does not appear that the cause of the fire at the applicant ’s address has been established .

It appears that this investigation , directed at unknown persons , is still pending .

In response to the ORG ’s request , the ORG submitted a complete copy of the criminal investigation file no . DATE ( CARDINAL volumes , CARDINAL pages ) . The investigation was adjourned on CARDINAL occasion and reopened . In the latest documents the investigator summarised the findings as follows ( the passage quoted below is taken from the decision of CARDINAL DATE to extend the term for investigation ) :

“ On DATE a special operation aimed at discovering members of illegal armed groups was carried out at QUANTITY . The operation was carried out jointly by servicemen from [ CARDINAL different units of ORG , including the external guards regiment ] , [ ORG of ORG ( ORG ) ] and servicemen of ORG . In the course of the operation unidentified servicemen of ORG detained [ the applicant ] and [ PERSON ] . At TIME on DATE ORG arrived voluntarily at the headquarters of the [ external guards regiment ] situated in Grozny at the following address ... where he was orally questioned in room CARDINAL about the incident which had taken place on DATE ... At TIME on DATE S .- S. Ibragimov left the headquarters of the [ regiment ] and his whereabouts remain unknown ” .

In addition to the measures described above , the investigation has sent out CARDINAL of requests to various law - enforcement bodies , detention centres , hospitals and travel agencies , but has not received any additional relevant information about the whereabouts of ORG .

It appears that by DATE the investigation was still pending , without any tangible results as to the fate of the applicant ’s son . CARDINAL has been charged with any crime .

The applicant submitted that on DATE PERSON had been invited to meet with the commander of the “ oil regiment ” , Mr PERSON . PERSON and his representative went to Mr PERSON ’s home , situated next to the regiment ’s headquarters . PERSON claimed that he had covertly made an audio recording of the conversation , which was partly in NORP and partly in NORP ; a copy of that recording has been submitted to the ORG by the applicant . According to the applicant , PERSON PERSON told PERSON that as the oldest man in the house he was to be held responsible for what had happened there . Accordingly , the blood feud resulting from the death of the policeman should fall on him . Mr PERSON alleged that he had protected PERSON from revenge attacks by other servicemen , but now since he had accused Mr PERSON of the torture and murder of his nephew , he would no longer do so . Mr PERSON also stated that he could obtain plenty of statements which would show that ORG was released from the headquarters of the regiment . He suggested that ORG had “ gone to the forest ” to fight , and that his family had staged the story of kidnapping .

The applicant submitted further that on DATE a group of armed men had burst into PERSON house and searched it , without presenting any documents or identifying themselves . The applicant submitted that her brother - in - law had complained to the ORG office about this incident , but did not present any documents .

On DATE CARDINAL lawyers of ORG involved in representing the applicant and other individuals complaining of human rights violations in GPE were detained overnight by officers of ORG of the ORG . On DATE the ORG issued a public statement denouncing the detention as unlawful , and referred to previous instances of pressure on the applicant and her relative .

Articles DATE , DATE and DATE of the LAW provide that everyone has the right to life and the right to liberty and personal security , which are guaranteed and protected by the ORG . No one shall be subjected to cruel or degrading treatment or punishment .

Articles DATE and CARDINAL of the LAW guarantee judicial protection of rights under LAW .

Articles DATE and CARDINAL of the LAW protect the rights of victims of crimes . The ORG guarantees victims access to justice and compensation for damage . Everyone is entitled to compensation for damage caused by unlawful actions of ORG officials .

Articles CARDINAL and CARDINAL of LAW Criminal Code stipulate that kidnapping and unlawful deprivation of liberty , respectively , are crimes punishable by CARDINAL and DATE of imprisonment respectively . Article CARDINAL provides that murder is punishable by DATE imprisonment . Aggravated murder , for example if committed by an organised group , is punishable by prison terms , including life imprisonment , and by the death penalty .

Articles DATE and CARDINAL of the Code provide as follows :

Article CARDINAL . Obligation to prosecute

“ CARDINAL . Public prosecution in criminal cases ... shall be carried out on behalf of the ORG by a prosecutor , an investigator or an inquiry officer .

NORP In every instance in which evidence of a crime is observed , the prosecutor , investigator , inquiry agency , or inquiry officer shall take the actions specified by this Code to determine the facts of the crime that took place and to apprehend the persons guilty of committing the crime ... ”

Article CARDINAL . TIME Victims’ right to take part in criminal prosecutions

“ The victim , his legal guardian and/or designated representative shall have the right to take part in the criminal prosecution of the accused ... ”

Articles CARDINAL and CARDINAL of the Code provide as follows :

Article CARDINAL . Examination of complaints by a prosecutor or head of an investigating body

“ CARDINAL . A prosecutor or head of an investigating body shall examine a complaint within ... DATE of its receipt ... ”

Article CARDINAL . Judicial examination of complaints

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

NORP The court shall examine the legality and the grounds of the impugned decisions or acts ... within DATE of receipt of the complaint ...

Following examination of the complaint , the court shall deliver one of the following decisions :

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

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

Article CARDINAL . Grounds and bases for initiating a criminal case

“ CARDINAL . The following shall serve as grounds for initiating a criminal case :

a ) a complaint of a crime ... ”

Article CARDINAL . Criminal complaint

“ CARDINAL . A criminal complaint may be submitted in oral or written form . ”

Article CARDINAL . Procedure for reviewing a report of a crime

“ CARDINAL . An inquiry officer , inquiry agency , investigator , or prosecutor must accept and investigate every report of a crime ... and shall make a decision on that report ... DATE after the filing of the report ...

A prosecutor , head of an investigation unit or head of an inquiry agency ... may extend the time period specified by ( CARDINAL ) of this LAW to up to ten days ...

Any refusal to accept a report of a crime may be appealed against to the prosecutor or to a court in accordance with the procedures established by ORG CARDINAL and CARDINAL of this Code ...

Article CARDINAL . Urgent investigative actions

“ CARDINAL . When there is evidence of a crime for which a preliminary investigation is required , an inquiry agency shall initiate a criminal case and take urgent investigative actions ... ”

Article CARDINAL . Mandatory review of official requests submitted

“ CARDINAL . An investigator or inquiry officer shall be obliged to review every official request filed in a criminal case ...

NORP Under this requirement ... a victim ... or their representatives may not be denied the opportunity to question witnesses or to have a forensic expert analysis or other investigative actions conducted ... ”

LAW provides that pecuniary and non - pecuniary damage caused , amongst other things , by unlawful actions of ORG officials should be compensated for in full .

According to document ORG / DH(CARDINAL)CARDINALE of CARDINAL DATE entitled “ Action of the security forces in GPE of GPE : general measures to comply with the judgments of ORG , a special unit has been set up within ORG in GPE to address the issues raised in the ORG ’s judgments . An information document submitted by ORG in DATE ( DH - DD(CARDINAL)CARDINALE ) stated that of CARDINAL cases discussed ( concerning the “ ORG group ” involving findings of violations of core rights in LOC ) , CARDINAL criminal cases have been concluded ( CARDINAL of which was terminated as a result of the suspect ’s death ) . The remainder were pending ; most of them have been suspended for failure to identify the suspects .

The relevant part of Interim Resolution CM / ORG of DATE on “ Execution of the judgments of ORG in CARDINAL cases against GPE concerning actions of the security forces in GPE of the GPE ” stated :

“ CARDINAL . General framework for domestic investigations carried out in cases which gave rise to a judgment of the ORG or to an application before the ORG

Considering the important changes introduced after the events described in the ORG ’s judgments in the general framework governing domestic investigations and in particular those conducted in cases which gave rise to a judgment of the ORG or an application before the ORG ; ...

Noting with interest the efforts reported by the NORP authorities with a view to remedying the shortcomings of the initial investigations , establishing the facts as well as the identities of those responsible , including servicemen and other representatives of federal forces who might have been involved in the events described in the judgments ; ...

Noting however with concern that despite the efforts made by ORG and by other competent authorities , DATE after the first judgments of the ORG , in the vast majority of cases , it has not yet been possible to achieve conclusive results and to identify and to ensure the accountability of those responsible , even in cases where key elements have been established with sufficient clarity in the course of domestic investigations , including evidence implicating particular servicemen or military units in the events ;

Underlining therefore the need to ensure that the investigating authorities make full and effective use of all means and powers at their disposal as well as to reflect on whether any other additional measures are still required , bearing in mind the difficulties inherent in investigations conducted into the consequences of a large - scale antiterrorist operation such as that at issue ;

Stressing in addition that the necessary action in this respect should be taken as a matter of priority since with the passage of time , the risk of loss of evidence increases and even if they are eventually identified , the prosecution of those responsible may become impossible given the expiry of the time - limits in the statutes of limitation ...

URGES the NORP authorities to enhance their efforts so that independent and thorough investigations into all abuses found in the ORG ’s judgments are conducted , in particular by ensuring that the investigating authorities use all means and powers at their disposal to the fullest extent possible and by guaranteeing effective and unconditional co - operation of all law - enforcement and military bodies in such investigations ;

STRONGLY URGES the NORP authorities to take rapidly the necessary measures aimed at intensifying the search for disappeared persons ;

ENCOURAGES the NORP authorities to continue their efforts to secure participation of victims in investigations and at increasing the effectiveness of the remedies available to them under the domestic legislation ; ... ”

ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( ORG ) issued CARDINAL public statements in relation to GPE DATE , deploring the absence of cooperation in the investigation of the alleged violations . The public statement of CARDINAL DATE conceded that “ the abductions ( forced disappearances ) and the related problem of unlawful detention ... continue to constitute a troubling phenomenon in the GPE ” . In DATE the ORG , for the first time , published a report to ORG drawn up after its visit to the NORP region of GPE from DATE to CARDINAL DATE . The report focussed on the allegations of ill - treatment and reported allegations of unrecorded detentions and detentions in unlawful locations . It raised the problems of impunity of the law - enforcement personnel for such crimes and recommended to implement measures aimed at safeguarding the interests of the detainees as of first moments of detention , including proper record - keeping of detention , notification of relatives , access to a lawyer and to medical council , providing full information about their rights .

DATE . On DATE ORG Human Rights presented a report entitled “ Legal remedies for human rights violations in GPE ” . On the basis of that report , on DATE PACE adopted ORG no . DATE and Recommendation no . DATE deploring the absence of an effective investigation and prosecution of serious human rights violation in the region , including disappearances . They found that “ the suffering of the close relatives of CARDINAL of missing persons in the region and their inability to get over their grief constitute a major obstacle to true reconciliation and lasting peace . ” Among other measures , the ORG called on the NORP authorities to :

“ CARDINAL.CARDINAL.CARDINAL . bring to trial in accordance with the law all culprits of human rights violations , including members of the security forces , and to clear up the many crimes which have gone unpunished ... ;

DATE . intensify co - operation with ORG in enforcing the judgments of ORG , especially where they concern reinforcement of the individual measures to clear up the cases of , in particular , abduction , murder and torture in which the ORG has ascertained a lack of proper investigation ;

be guided by the example of other countries which have had to contend with terrorism , particularly as regards the implementation of measures conducive to the ORG co - operation with justice in dismantling the terrorist networks and the criminal entities that exist within the security forces , and to prevent further acts of violence ; ...

both ORG of ORG to devote their utmost attention to the situation in the LOC and to demand exhaustive explanations of the executive and judicial authorities concerning the malfunctions observed in the region and mentioned in this resolution , and to stipulate that the necessary measures be applied . ”

In Recommendation no . DATE , PACE advised ORG to :

“ CARDINAL . pay the utmost attention to the development of the human rights situation in the LOC ;

in enforcing the judgments of ORG ) concerning this region , emphasise the prompt and complete elucidation of the cases in which the ORG has ascertained an absence of effective investigation ; ... ”

In DATE ( DATE ) entitled “ Implementation of judgments of ORG , PACE considered deaths and illtreatment by law - enforcement officials and a lack of effective investigation thereof in GPE as one of the CARDINAL “ major systemic deficiencies which cause a large number of repetitive findings of violations of the ORG and which seriously undermine the rule of law in the states concerned ” .

A report dated DATE by PERSON , Commissioner for Human Rights of ORG , following his visit to GPE from DATE , found a number of positive developments aiming to improve DATE life in the GPE visited . Despite those positive steps , the Commissioner defined as some of the most serious issues counter - terrorism measures , abductions , disappearances and ill - treatment , combatting impunity and the situation of human rights defenders . The report included the Commissioner ’s observations and recommendations in relation to those topics .

NORP In particular , the Commissioner was deeply concerned by the persistence of allegations and other information relating to abductions , disappearances and ill - treatment of people deprived of their liberty in LOC . While the number of abductions and disappearances in GPE might have decreased recently compared with DATE , the situation remained far from normal . Referring to the far - reaching effects of disappearances on a society as a whole , he supported the proposal of ORG to create an interdepartmental federal commission to determine the fate of individuals who had gone missing during the entire period of counter - terrorism operations in LOC . The Commissioner further emphasised the importance of systematic application of rules prohibiting the wearing of masks or non - standard uniforms without badges , as well as the use of unmarked vehicles in the course of investigative activities .

The Commissioner went on to state that the persistent patterns of impunity for serious human rights violations were among the most intractable problems and remained a source of major concern to him . There had certainly been a number of positive steps , such as the establishment of ORG structures , increased support for victim participation in criminal proceedings , and the promulgation of various directives regarding the conduct of investigations . Despite those measures of a systemic , legislative and regulatory nature , the information gathered during the visit had led the Commissioner to conclude that the situation had remained essentially unchanged in practice since his previous visit in DATE . He called on the NORP leadership to help in creating the requisite determination on the part of the investigators concerned by delivering the unequivocal message that impunity would no longer be tolerated .

In DATE ORG ( HRW ) issued a report entitled ‘ Who Will Tell Me What Happened to PERSON ? GPE ’s ORG on Chechnya’ , which was strongly critical of the absence of progress in the investigations in disappearance cases .

On DATE ORG and CARDINAL NORP NGOs , ORG , published a joint open letter to the NORP President . They spoke of a “ complete failure of GPE investigating authorities to deal with abductions of GPE residents by local law - enforcement and security agencies ” , of “ systematic sabotage of investigations by NORP law - enforcement agencies and the inability of ORG to fulfil its direct mandate to investigate crimes ” .


Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger

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

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

On DATE the police officers took the applicant to GPE of GPE ( “ the ORG ” ) in order to question her about a crime allegedly committed by ORG the applicant ’s colleagues . A number of the applicant ’s co - workers were also taken to ORG for the same reason .

According to the applicant , she was held in ORG from TIME on DATE to TIME DATE .

At TIME on DATE the applicant was allegedly again taken to ORG , where she was questioned further and released at TIME that day .

While the applicant was being held in ORG she was allegedly physically and psychologically coerced to testify against ORG ; the reasons why she had been brought to ORG were not immediately explained to her ; and her relatives were not informed of her whereabouts .

On DATE the applicant lodged a complaint under Article CARDINAL of the Code of Criminal Procedure ( “ the CCrP ” ) with the Holosiyivskyy ORG of Kyiv ( “ the ORG ” ) against the police officers . She claimed that her detention was unlawful and that the reasons for her arrest had not been explained to her . The applicant invoked Articles CARDINAL and CARDINAL of the LAW in support of her complaint .

By letter of CARDINAL DATE the President of ORG replied that her complaint under LAW ORG could not be considered by the court since she had not been arrested as a suspect .

On DATE the applicant lodged with ORG of the Holosiyivsky District of GPE ( “ the ORG ” ) an application for criminal proceedings to be instituted against the police officers . The applicant alleged that she had been unlawfully arrested , the reasons for the arrest had not been explained to her , and she had been illtreated by the police officers .

By a letter of DATE the ORG informed the applicant that her application was unsubstantiated . It noted that at TIME on DATE the applicant and her co - workers were taken to ORG for an interview concerning a crime allegedly committed by ORG ; at TIME the applicant left ORG ; no irregularities could be found in the acts of the police officers which necessitated the adoption of any decision under LAW

On DATE the applicant challenged the ORG reply of DATE before ORG in accordance with the procedure provided by LAW The applicant alleged that ORG had unlawfully refused to institute criminal proceedings .

On DATE ORG dismissed the applicant ’s complaint . It noted that under LAW CCrP the courts could consider only complaints against formal decisions on refusal to institute criminal proceedings . No such a decision had been taken in the applicant ’s case .

On DATE the applicant and her lawyer lodged an appeal against that decision .

On DATE ORG upheld the decision of ORG .

The relevant provisions of the LAW read as follows :

“ Every person has the right to freedom and personal inviolability .

No one shall be arrested or held in custody other than pursuant to a reasoned court decision and only on grounds and in accordance with a procedure established by law .

In the event of an urgent need to prevent or stop a crime , bodies authorised by law may hold a person in custody as a temporary preventive measure , the reasonable grounds for which shall be verified by a court within TIME . The detained person shall be released immediately if he or she has not been provided , within TIME of the moment of detention , with a reasoned court decision in respect of the holding in custody .

Everyone who has been arrested or detained shall be informed without delay of the reasons for his or her arrest or detention , apprised of his or her rights , and from the moment of detention shall be given the opportunity to personally defend himself or herself , or to have the legal assistance of defence counsel .

Everyone who has been detained has the right to challenge his or her detention in court at any time .

Relatives of an arrested or detained person shall be informed immediately of his or her arrest or detention . ”

“ Human and ORG rights and freedoms are protected by the courts .

Everyone is guaranteed the right to challenge in court the decisions , actions or omissions of bodies exercising ORG power , local self - government bodies , officials and officers ... ”

“ A prosecutor , investigator , body of inquiry or a judge shall be obliged to accept applications or communications as to the committed or prepared crimes , including in cases that fall outside their competence .

Following an application or communication about a crime the prosecutor , investigator , body of inquiry or a judge shall be obliged , within the DATE time limit , to adopt one of the following decisions :

( CARDINAL ) to institute criminal proceedings ;

( CARDINAL ) NORP to refuse to institute criminal proceedings ;

( CARDINAL ) NORP to remit the application or communication for further examination according to jurisdiction . ... ”

“ The body of inquiry shall be entitled to arrest a person suspected of a criminal offence for which a penalty in the form of deprivation of liberty may be imposed only on CARDINAL of the following grounds :

NORP if the person is discovered whilst or immediately after committing an offence ;

NORP if eyewitnesses , including victims , directly identify this person as the one who committed the offence ;

NORP if clear traces of the offence are found either on the body of the suspect , or on his clothing , or with him , or in his home .

If there is other information which gives grounds for suspicion that a person has committed a criminal offence , a body of inquiry may arrest such a person if the latter attempted to flee , or does not have a permanent place of residence , or the identity of that person has not been established .

For each case of detention of a criminal suspect , the body of inquiry shall be required to draw up TIME outlining the grounds , the motives , DATE , time , DATE , the place of detention , the explanations of the person detained and the time when it was recorded that the suspect had been informed of his right to have a meeting with defence counsel , starting with the moment of his arrest , in accordance with the procedure provided for in paragraph CARDINAL of Article CARDINAL of the present Code . The TIME of detention shall be signed by the person who drew it up and by the detainee .

A copy of TIME with a list of his rights and obligations shall immediately be handed to the detainee and sent to the prosecutor . At the request of the prosecutor , the material which served as grounds for the detention shall be sent to him as well . ...

Within TIME of the arrest , the body of inquiry shall :

( CARDINAL ) NORP release the detainee if the suspicion that he committed the crime has not been confirmed , if the term of detention established by law has expired or if the arrest has been effected in violation of the requirements of paragraphs CARDINAL and CARDINAL of the present Article ;

( CARDINAL ) NORP release the detainee and select a non - custodial preventive measure ;

( CARDINAL ) bring the detainee before a judge with a request to impose a custodial preventive measure on him or her .

If the detention is appealed against to a court , the detainee ’s complaint shall be immediately sent by the head of the detention facility to the court . The judge shall consider the complaint together with the request by the investigating body for application of the preventive measure . If the complaint is received after the preventive measure has been applied , the judge shall examine it within DATE of receiving it . If the request has not been received or if the complaint has been received after the term of TIME of detention , the complaint shall be considered by the judge within DATE of receiving it .

The complaint shall be considered in accordance with the requirements of LAW . Following its examination , the judge shall give a ruling , either declaring that the detention is lawful or allowing the complaint and finding the detention to be unlawful .

The ruling of the judge may be appealed against within DATE of the date of its adoption by the prosecutor , the person concerned , or his or her defence counsel or legal representative . Lodging such an appeal does not suspend the execution of the court ’s ruling .

Detention of a criminal suspect shall not last for CARDINAL .

If , within the terms established by law , the ruling of the judge on the application of a custodial preventive measure or on the release of the detainee has not arrived at the pre - trial detention facility , the head of the pre - trial detention facility shall release the person concerned , drawing up TIME to that effect , and shall inform the official or body which carried out the arrest accordingly . ”

“ Complaints against a decision of a prosecutor , an investigator or a body of enquiry to refuse to institute criminal proceedings shall be lodged with the district ( city ) court ... by the person whose interests are touched upon , or a representative of that person , ... within DATE of its receipt or information given by the prosecutor that he has refused to quash the decision . ”

“ Complaints against a decision of a prosecutor , investigator or body of inquiry to refuse to institute criminal proceedings shall be examined by a single judge within DATE of the arrival of the complaint at the court .

The judge shall request relevant materials on which the refusal to initiate criminal proceedings was based , examine them and inform the prosecutor and the complainant of the date when it will be examined . If necessary , a judge shall hear explanations by the complainant .

... the judge shall take one of the following decisions :

CARDINAL ) NORP to quash the decision refusing to initiate criminal proceedings and return the case file materials for additional examination ;

CARDINAL ) NORP to reject the complaint .

Within DATE of its adoption the decision of a judge may be appealed against to the court of appeal by a prosecutor or a complainant .

A copy of the judge ’s decision shall be sent to the person who has adopted the contested decision , the prosecutor and the complainant . ”

Chapter CARDINAL-A of the Code dealt with complaints against decisions , acts or inactivity on the part of ORG and local self - government bodies as well as their officials .

In particular , Article CARDINAL - CARDINAL of the Code provided that anyone who considered that his or her rights or freedoms had been infringed by a decision , act or omission on the part of a ORG body , legal entity or official could lodge a complaint with a court . Article CARDINAL - CARDINAL § § CARDINAL and CARDINAL of the Code provided that such complaints were outside the courts’ jurisdiction if they concerned a decision , act or omission by an official of a body of inquiry , pre - trial investigation authority , prosecutor ’s office or court which could be challenged by a different procedure .

In this decision , ORG declared Article CARDINAL § CARDINAL of the Code of Civil Procedure unconstitutional to the extent that it did not give the courts jurisdiction to hear complaints concerning decisions , acts or omissions by officials of bodies of inquiry , pre - trial investigation authorities or prosecutor ’s offices in cases where the legislation provided only for a non - judicial remedy .

According to this ORG , inactivity on the part of a body of enquiry , investigator or prosecutor resulting in a decision not being taken under LAW could be challenged by a procedure established in LAW .


Violation of Art. 10;Preliminary objections rejected (non-exhaustion of domestic remedies, estoppel);Violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

John Freeland;Luzius Wildhaber;Paul Mahoney

The applicant is a NORP citizen who was born in DATE and lives in GPE .

At the material time , the applicant was the major shareholder in ORG ve PERSON , a NORP limited liability company which owns a DATE review entitled Haberde Yorumda Gerçek ( ORG and Comments ) , published in GPE .

NORP In issue no . CARDINAL of the review , dated DATE , a news commentary entitled “ PERSON and Dehak Once Again ” was published . The article analysed possible events , which could occur during the upcoming celebrations of LANGUAGE .

A translation of the relevant parts of the news commentary is as follows :

“ ... It ’s DATE in GPE . The biggest confrontation between the demands of the NORP people and intolerance in the face of the expression of these demands occurs during DATE . The tradition of rebellion is awakened . PERSON and PERSON are once again invested with flesh and bones . It is time to settle accounts . There is nothing vague about PERSON . All the mountains , all the cities are full of PERSON . There are CARDINAL of them . All right , who , then , is Dehak ? Who is the candidate for representing Dehak in DATE ? Is it Demirel ? Is it PERSON ? The regional Governor ? Or the new commander PERSON ? This time round , is PERSON represented by every counter - insurgency ORG chief , indeed , every counter - insurgency operative , every special team member , every police commissioner or superintendent officer ? Has Dehak become anonymous too ? Be it as it may , but PERSON and PERSON will settle their accounts once again . ...

DATE , a revolutionary publication described DATE as follows :

‘ Nowadays over CARDINAL soldiers massed into GPE . Tanks and weapons are sent over . Bombs are raining on NORP villages and mountains . The Chief of ORG has inspected the preparations for the offensive . Instructions are being issued to provincial and district governors , special team leaders , police chiefs and military officials . The Head of MİT intelligence agency talks of the prospect of much blood being shed . Members of ORG are organising information - gathering trips in order to take the pulse of the people.’ ...

Unlike DATE , the ORG - leaning ORG ( ORG ) is also expected to take on a role during GPE DATE . ...

On the other hand emergency measures are being implemented in large cities outside GPE where there are concentrations of NORP people . It is highly likely that there will be large demonstrations in DATE there . ”

In the same issue and within the context of the above news commentary , an interview was also published by ORG with a representative of ORG of GPE ( “ the ERNK ” ) , the political wing of ORG ( “ the NORP ” ) . Both organisations are illegal under NORP law .

A translation of the relevant part of the interview is as follows :

“ ... We wish to emphasise this finding , indeed , we feel that it ought to be underlined . And we call on all NORP countries . We are open to any humanitarian , political solution , including the calls for an armistice . The ORG movement and its struggle are absolutely not terrorist movements . This misapprehension must be abandoned DATE it must definitely be abandoned DATE and a move must be made towards co - operation and support . The real terrorist is GPE . We believe that attitudes on this matter will be much clarified DATE , that very positive dialogues will develop and that GPE will be gradually further isolated . ”

On DATE ORG ( GPE PERSON ) ordered the seizure of all copies of issue no . CARDINAL of the review , since it allegedly disseminated separatist propaganda .

In an indictment dated DATE , ORG at ORG , on account of the publication of the above news commentary , charged the applicant in his capacity as the owner of the review with disseminating propaganda against the indivisibility of the State . He was also charged with publishing the declaration of the ERNK ( see paragraph CARDINAL above ) . The charges were brought under sections CARDINAL and CARDINAL of the Prevention of Terrorism Act DATE ( hereinafter “ the DATE LAW : see paragraphs DATE and CARDINAL below ) , respectively .

In the proceedings before ORG , the applicant denied the charges . He pleaded that the incriminated news commentary did not fall within the scope of section CARDINAL of the DATE Act . He maintained that arguing and commenting on possible activities in which the ORG might engage during the PERSON celebrations could not be regarded as publishing a declaration of a terrorist organisation within the meaning of section CARDINAL of the CARDINAL Act . As regards his freedom of expression , the applicant referred to LAW and the case - law of the Commission and the ORG . He stated that pluralism of opinion was essential in a NORP society including opinions which shock or offend . He argued that the provisions of sections CARDINAL and CARDINAL of the CARDINAL Act restricted freedom of expression in contravention of LAW and the criteria laid down in the case - law of the Commission and the ORG .

In a judgment dated DATE , ORG found the applicant guilty of an offence under section CARDINAL § CARDINAL of the CARDINAL Act . The court first sentenced the applicant to a fine of MONEY . However , having regard to the applicant ’s good conduct during the trial , it reduced the fine to MONEY .

In its reasoning , the court held that the incriminated news commentary contravened section CARDINAL of the CARDINAL Act . The court concluded that it referred to a certain part of the NORP territory as “ GPE ” as well as a certain section of the population as “ NORP ” , and amounted to propaganda against the indivisibility of ORG .

The court further observed that the review had also published the declaration of an illegal terrorist organisation in which GPE was referred to as a terrorist ORG . However , it considered that the declaration constituted part of the incriminated news commentary . Having regard to the provisions of LAW of LAW , the court found no grounds for a separate conviction under section CARDINAL of the CARDINAL Act .

The applicant appealed against his conviction to ORG . He relied on the defence grounds which he had invoked at his trial before ORG .

On DATE ORG dismissed the applicant ’s appeal , upholding ORG reasoning and its assessment of the evidence .

On DATE the applicant paid the last instalment of the fine imposed on him .

Following the amendments made by Law No . CARDINAL of DATE to the DATE LAW see paragraphs CARDINAL and CARDINAL below ) , ORG ex officio re - examined the applicant ’s case .

On DATE the court ruled that these amendments did not affect the applicant ’s case as his sentence had already been executed .

The relevant provisions of LAW read as follows :

“ In the event of conviction , the court shall order the seizure and confiscation of any object which has been used for the commission or preparation of the crime or offence … ”

Article CARDINAL

“ A person who infringes various provisions of this LAW by a single act , shall be punished under the provision which prescribes the heaviest punishment . ”

The relevant provisions of LAW DATE read as follows :

“ For the purposes of the present PERSON , the term ‘ periodicals’ shall mean newspapers , press agency dispatches and any other printed matter published at regular intervals .

‘ Publication’ shall mean the exposure , display , distribution , emission , sale or offer for sale of printed matter on LOC to which the public have access where anyone may see it .

An offence shall not be deemed to have been committed through the medium of the press unless publication has taken place , except where the material in itself is unlawful . ”

NORP The relevant provisions of LAW DATE read as follows :

“ It shall be an offence , punishable by a fine of from CARDINAL to MONEY , to announce , orally or in the form of a publication , that terrorist organisations will commit an offence against a specific person , whether or not that person ’s ... identity is divulged provided that it is done in such a manner that he or she may be identified , or to reveal the identity of civil servants who have participated in anti - terrorist operations or to designate any person as a target .

It shall be an offence , punishable by a fine of from CARDINAL to MONEY , to print or publish declarations or leaflets emanating from terrorist organisations .

Where the offences contemplated in the above paragraphs are committed through the medium of periodicals within the meaning of section CARDINAL of LAW ( Law no . CARDINAL ) , the publisher shall also be liable to a fine equal to MONEY of the income from the average sales for DATE if the periodical appears more frequently than DATE , or from the sales of the previous issue if the periodical appears DATE or less frequently , or from the average sales for DATE of the DATE newspaper with the largest circulation if the offence involves printed matter other than periodicals or if the periodical has just been launched . However , the fine may not be MONEY . The editor of the periodical shall be ordered to pay a sum equal to CARDINAL the fine imposed on the publisher . ”

( before amendment by PERSON no . CARDINAL of DATE )

“ Written and spoken propaganda , meetings , assemblies and demonstrations aimed at undermining the territorial integrity of GPE or the indivisible unity of the nation are prohibited , irrespective of the methods used and the intention . Any person who engages in such an activity shall be sentenced to not CARDINAL and not more than five years’ imprisonment and a fine of from CARDINAL to MONEY .

Where the crime of propaganda contemplated in the above paragraph is committed through the medium of periodicals within the meaning of section CARDINAL of LAW ( Law no . CARDINAL ) , the publisher shall also be liable to a fine equal to MONEY of the income from the average sales for DATE if the periodical appears more frequently than DATE , or from the average sales for DATE of the DATE newspaper with the largest circulation if the offence involves printed matter other than periodicals or if the periodical has just been launched . However the fine may not be MONEY . The editor of the periodical concerned shall be ordered to pay a sum equal to CARDINAL the fine imposed on the publisher and sentenced to not less than six months’ and not more than CARDINAL years’ imprisonment . ”

( as amended by PERSON no . CARDINAL of DATE )

“ Written and spoken propaganda , meetings , assemblies and demonstrations aimed at undermining the territorial integrity of GPE or the indivisible unity of the nation are prohibited . Any person who engages in such an activity shall be sentenced to not CARDINAL and not more than three years’ imprisonment and a fine of from CARDINAL MONEY . The penalty imposed on a reoffender may not be commuted to a fine .

Where the crime of propaganda contemplated in the first paragraph is committed through the medium of periodicals within the meaning of section CARDINAL of LAW ( Law no . CARDINAL ) , the publisher shall also be liable to a fine equal to MONEY of the income from the average sales for DATE if the periodical appears more frequently than DATE . However , the fine may not be MONEY . The editor of the periodical concerned shall be ordered to pay a sum equal to CARDINAL the fine imposed on the publisher and sentenced to not less than six months’ and not more than CARDINAL years’ imprisonment .

Where the crime of propaganda contemplated in the first paragraph is committed through the medium of printed matter or by means of mass communication other than periodicals within the meaning of the second paragraph , those responsible and the owners of the means of mass communication shall be sentenced to not CARDINAL six months’ and not more than two years’ imprisonment and a fine of from CARDINAL MONEY …

The following amendments were made to LAW DATE after the enactment of LAW of DATE :

“ In DATE following the entry into force of the present PERSON , the court which has given judgment shall re - examine the case of a person convicted pursuant to LAW CARDINAL of the Prevention of Terrorism Act ( Law no . CARDINAL ) and , in accordance with the amendment ... to section CARDINAL of PERSON no . ORG , shall reconsider the term of imprisonment imposed on that person and decide whether he should be allowed the benefit of sections CARDINAL and CARDINAL of Law no . CARDINAL of DATE . ”

The Code of Criminal Procedure contains the following provisions :

“ An appeal on points of law may not concern any issue other than the lawfulness of the impugned judgment .

Non - application or erroneous application of a legal rule shall constitute unlawfulness . ”

“ Unlawfulness is deemed to be manifest in the following cases :

CARDINAL- where the court is not established in accordance with the law ;

CARDINAL- where CARDINAL of the judges who have taken the decision was barred by statute from participating ;

The Government supplied copies of several decisions given by the prosecutor attached to ORG withdrawing charges against persons suspected of inciting people to hatred or hostility , especially on religious grounds ( LAW ) , or of disseminating separatist propaganda against the indivisible unity of the ORG ( section CARDINAL of PERSON no . PERSON – see paragraph CARDINAL above ) . In the majority of cases where offences had been committed by means of publications the reasons given for the prosecutor ’s decisions included such considerations as the fact that the proceedings were time - barred , that some of the constituent elements of the offence could not be made out or that there was insufficient evidence . Other grounds included the fact that the publications in issue had not been distributed , that there had been no unlawful intent , that no offence had been committed or that those responsible could not be identified .

Furthermore , the ORG submitted a number of decisions of ORG as examples of cases in which defendants accused of the above - mentioned offences had been found not guilty . These were the following judgments : DATE ( no . CARDINAL ) and CARDINAL DATE ( no . CARDINAL/CARDINAL ) ; DATE ( no . CARDINAL/CARDINAL ) , DATE ( no . MONEY ) , DATE ( no . PERSON ) , CARDINAL DATE ( no . CARDINAL/CARDINAL ) and DATE ( no . CARDINAL ) ; CARDINAL DATE ( no . GPE ) , DATE ( no . CARDINAL ) , DATE ( no . GPE ) , DATE ( no . CARDINAL/CARDINAL ) and DATE ( no . CARDINAL ) .

As regards more particularly proceedings against authors of works dealing with the NORP problem , ORG in these cases reached their decisions on the ground that there had been no dissemination of “ propaganda ” , CARDINAL of the constituent elements of the offence , or on account of the scientific , historical and/or objective nature of the words used .

The constitutional provisions governing judicial organisation of ORG are worded as follows :

“ In the performance of their duties , judges shall be independent ; they shall give judgment , according to their personal conviction , in accordance with the LAW , statute and the law .

No organ , authority , ... or ... person may give orders or instructions to courts or judges in the exercise of their judicial powers , or send them circulars or make recommendations or suggestions to them . ”

“ Judges … shall not be removed from office or compelled to retire without their consent before the age prescribed by LAW … ”

“ ORG shall be established to try offences against the Republic , whose constituent qualities are enunciated in the LAW , against the territorial integrity of the ORG or the indivisible unity of the nation or against the free democratic system of government , and offences which directly affect the ORG ’s internal or external security .

ORG shall be composed of a president , CARDINAL other regular members , CARDINAL substitute members , a prosecutor and a sufficient number of assistant prosecutors .

The president , CARDINAL of the regular members , CARDINAL of the substitutes and the prosecutor , shall be appointed from among judges and public prosecutors of the first rank , according to procedures laid down in special legislation ; CARDINAL regular member and CARDINAL substitute shall be appointed from among military judges of the first rank and the assistant prosecutors from among public prosecutors and military judges .

Presidents , regular members and substitute members ... of ORG shall be appointed for a renewable period of DATE .

Appeal against decisions of ORG shall lie to ORG .

“ Military legal proceedings

“ The personal rights and obligations of military judges … shall be regulated by law in accordance with the principles of the independence of the courts , the safeguards enjoyed by the judiciary and the requirements of military service . Relations between military judges and the commanders under whom they serve in the performance of their non - judicial duties shall also be regulated by law ... ”

Based on LAW , the relevant provisions of LAW no . CARDINAL on ORG , provide as follows :

“ In the capitals of the provinces of … ORG shall be established to try persons accused of offences against the Republic , whose constituent qualities are enunciated in the LAW , against the territorial integrity of the ORG or the indivisible unity of the nation or against the free , democratic system of government and offences directly affecting the ORG ’s internal or external security . ”

“ The ORG shall be composed of a president , CARDINAL other regular members and CARDINAL substitute members . ”

“ The president of a ORG , CARDINAL of the [ CARDINAL ] regular members and CARDINAL of the [ CARDINAL ] substitutes ... shall be civilian … judges , the other members , whether regular or substitute , military judges of the first rank … ”

“ The appointment of military judges to sit as regular members and substitutes shall be carried out according to the procedure laid down for that purpose in ORG .

Except as provided in the present PERSON or other legislation , the president and the regular or substitute members of ORG … may not be appointed to another post or place , without their consent , within DATE …

If , after an investigation concerning the president or a regular or substitute member of a ORG conducted according to the legislation concerning them , competent committees or authorities decide to change the duty station of the person concerned , the duty station of that judge or the duties themselves … may be changed in accordance with the procedure laid down in that legislation . ”

“ ORG shall have jurisdiction to try persons charged with

( a ) the offences contemplated in LAW ,

( d ) offences having a connection with the events which made it necessary to declare a state of emergency , in regions where a state of emergency has been declared in accordance with LAW ,

( e ) offences committed against the Republic , whose constituent qualities are enunciated in the LAW , against the indivisible unity of the State – meaning both the national territory and its people DATE or against the free , democratic system of government and offences directly affecting the ORG ’s internal or external security .

“ ORG shall hear appeals against the judgments of ORG . ”

“ The rules governing the rights and obligations of … military judges appointed to ORG and their supervision … , the institution of disciplinary proceedings against them , the imposition of disciplinary penalties on them and the investigation and prosecution of any offences they may commit in the performance of their duties ... shall be as laid down in the relevant provisions of the laws governing their profession …

The observations of ORG on military judges , the assessment reports on them drawn up by ORG assessors … and the files on any investigations conducted in respect of them … shall be transmitted to ORG . ”

“ A ORG may be transformed into a ORG , under the conditions set forth below , where a state of emergency has been declared in all or part of the territory in respect of which ORG concerned has jurisdiction , provided that within that territory there is CARDINAL ORG … ”

The relevant provisions of ORG are worded as follows :

“ The aptitude of military judges … appointed as regular or substitute members of ORG that is required for promotion or advancement in salary step , rank or seniority shall be determined on the basis of assessment reports drawn up according to the procedure laid down below , subject to the provisions of the present PERSON and ORG ( Law no . CARDINAL ) .

( a ) The first superior competent to carry out assessment and draw up assessment reports for military judges , whether regular or substitute members … shall be the Minister of ORG in ORG , followed by PERSON .

“ Members … of ORG belonging to ORG … shall be appointed by a committee composed of the personnel director and the legal adviser of ORG , the personnel director and the legal adviser attached to the staff of the arm in which the person concerned is serving and ORG at ORG … ”

“ Military judges … shall be appointed by a decree issued jointly by the Minister of Defence and the Prime Minister and submitted to the President of the Republic for approval , in accordance with the provisions on the appointment and transfer of members of the armed forces …

The procedure for appointment as a military judge shall take into account the opinion of ORG , the reports by ORG assessors and the assessment reports drawn up by the superiors … ”

“ The rules governing the salary scales , salary increases and various personal rights of military judges … shall be as laid down in the provisions relating to officers . ”

“ The Minister of Defence may apply to military judges , after considering their defence submissions , the following disciplinary sanctions :

A. A warning , which consists in giving the person concerned notice in writing that he must exercise more care in the performance of his duties .

B. A reprimand , which consists in giving the person concerned notice in writing that a particular act or a particular attitude has been found to be blameworthy .

The said sanctions shall be final , mentioned in the assessment record of the person concerned and entered in his personal file … ”

“ When military judges … sit in court they shall wear the special dress of their civilian counterparts … ”

Article CARDINAL of LAW of CARDINAL DATE provides :

“ It shall be an offence , punishable by DATE imprisonment , to abuse one ’s authority as a civil servant in order to influence the military courts . ”

Under LAW , ORG of ORG has jurisdiction to hear applications for judicial review and claims for damages based on disputes relating to the personal status of officers , particularly those concerning their professional advancement .


The applicant is a NORP citizen , born in DATE . It appears that he is presently residing in GPE , GPE . Before the ORG the applicant is represented by PERSON PERSON and Mr PERSON , both lawyers practising in GPE , GPE .

A.

On DATE the applicant was arrested in GPE on the basis of an international arrest warrant issued by the NORP authorities in order to obtain his extradition to GPE . He was suspected of having committed drug offences contrary to NORP law .

The applicant was extradited to GPE in DATE where he was placed in pre - trial detention .

On DATE the applicant and CARDINAL witnesses were heard by ORG ( ORG ) . The applicant was assisted by counsel at the hearing . On DATE the ORG convicted the applicant of having committed drug offences contrary to LAW of LAW ( straffeloven ) . He was sentenced to DATE imprisonment . On DATE the applicant appealed against the judgment to ORG ) which had competence to determine the case on points of law as well as on facts . ORG decided to release him during the appeal proceedings . It appears that the applicant left GPE upon his release .

The prosecution appealed against the decision to release the applicant to ORG which decided , on CARDINAL DATE , that he was to be detained until DATE pursuant to LAW , subsection CARDINAL , of ORG ( retsplejeloven ) , as there was specific reason to believe that he would leave the country and evade prosecution if he remained at large . On CARDINAL DATE ORG ( Statsadvokaten i Viborg ) requested ORG not to fix the length of the applicant ’s detention as the applicant was presumed not to reside in GPE any longer . On DATE ORG decided in accordance with ORG request .

The hearing in ORG was scheduled to take place on DATE . Prior to the hearing the applicant was appointed a NORP lawyer , PERSON , who put forward several requests to ORG on DATE in order , inter alia , to prepare for the hearing .

On DATE a NORP lawyer , GPE , sent a fax to the High Court whereby the court was informed , inter alia , that GPE had been approached by the applicant , who had chosen his domicile at GPE ’s office address . GPE requested that the hearing be adjourned due to the applicant ’s alleged illness . A notice impressed with the hallmark of ORG ) in GPE , in a NORP and an LANGUAGE version , was enclosed with the letter . According to the notice the applicant was admitted to “ a general medical check - up ” lasting DATE . From ORG ’s letter it transpires that the purpose of the medical check - up was the applicant ’s alleged heart decease and a severe flu . GPE stressed that the applicant wished to appear before the court to defend himself against the charges brought against him .

On DATE ORG faxed a medical statement to ORG signed by “ Dr. PERSON Cardiologist ” that described - in medical terms - the applicant ’s alleged heart decease and the envisaged cure .

On DATE the applicant ’s NORP counsel , PERSON , sent a letter to GPE , which read as follows :

Since [ the applicant ] has not reacted to my letters forwarded to his ORG address , I ask you to try to obtain his comments to the following :

At the court meeting held at [ the High Court of Western GPE ] on DATE , the Prosecutor requested a refusal of [ the applicant ’s ] appeal claiming that there was not sufficient documentation that his absence was unavoidable . However , the ORG sustained my claim that the trial was to be postponed as it was not found that the information contained in your letter of DATE , and the enclosed letter of admission from ORG , could be disregarded . As previously informed the trial was then postponed until DATE , DATE at TIME .

However , ORG has again made a request to [ ORG ] that the [ appeal ] be dismissed . In support of this request ORG maintains that the letter of admission of DATE is false . The police have contacted the management secretary of the hospital and [ the ] chief physician who have stated that [ the applicant ] has never been admitted . And the hospital does not know him , neither [ by ] name or the file number mentioned in the letter . Besides , the hospital has stated that it has never used letter paper as the one [ used for ] the letter of DATE ... However , until DATE , the printed letterhead on the invoices of the hospital has been used . Finally , the hospital has stated that the signature on the letter of admission does not belong to anybody employed at the hospital .

The letter sent later by you of DATE , from Doctor PERSON the police have submitted to the only NORP doctor of this name . And in [ a ] letter of DATE ... he has stated that also this statement is false .

[ ORG ] has postponed the decision of the claim made by ORG for a dismissal , awaiting my comments on the information provided . If possible , please obtain and send to me as soon as possible [ the applicant ’s ] comments to the claim that the CARDINAL letters are false .

On DATE ORG sent a letter to ORG , which read , inter alia , as follows :

As I already informed you , [ the applicant ] was not able to travel to GPE because of problems with his health in DATE .

Because of his health [ the applicant ] was not able to visit me at my office and for that reason he sent some friends . I pointed out to these gentlemen that it was necessary that I should receive a medical statement about the state of health of [ the applicant ] in order to send this statement to GPE .

Shortly after I received the statement of dr . PERSON , known by you , which appeared to be false . I can tell you that I was unpleasantly surprised by this false statement and I informed [ the applicant ] about this matter immediately .

[ The applicant ] was also unpleasantly surprised and [ he has in the meantime learned ] that the abovementioned gentlemen - entirely without his knowledge - tried to help him with a misplaced [ enthusiasm ] in an illegal way .

[ The applicant realises ] that he has been brought in a very difficult situation , but requests the ORG for understanding , all the more because he has been really ill and was not able to travel . [ The applicant ] refers to the enclosed medical statement of his physician dr . PERSON ...

[ He ] should like to have the opportunity to defend himself in appeal and should like to appear in court .

Finally I want to inform you that I want to declare formally that I will be the lawyer in this matter and that I will prepare the defence together with a NORP lawyer . I request you to send me a copy of the entire criminal file .

It appears that the medical statement from PERSON short hand written note in NORP , dated DATE - was faxed to ORG by a colleague to GPE , on DATE .

On DATE PERSON sent a letter to ORG , reading , inter alia , as follows :

( Translation )

ORG has , by letters of CARDINAL DATE and CARDINAL DATE with enclosures ... requested [ ORG ] that [ the applicant ’s ] appeal be dismissed .

As appointed defence counsel for [ the applicant ] I hereby object to [ the ORG ’s proposal ] .

Immediately upon receipt of ORG letter of CARDINAL DATE I sent a letter to [ the applicant ] on CARDINAL [ DATE ] , addressed to PERSON address abroad of which he had informed me - which is the only address I know of - and asked him to inform me what was the actual position as regards his admission to ORG DATE and the received statement from dr . PERSON . As [ the applicant ] did not react I requested [ GPE ] to obtain and forward [ the applicant ’s ] views on the material from ORG , by letter of CARDINAL DATE . Subsequent to my receipt , on DATE , of the court transcripts of CARDINAL [ DATE ] , I informed [ GPE ] of their contents by letter of CARDINAL [ DATE ] . On DATE , I have received a copy of [ GPE ’s ] letter of the same date with enclosures to ORG .

In support of my objection against ORG proposal I have only the possibility of referring to the contents of [ GPE ’s ] letter of CARDINAL DATE from which it appears that it can not be ruled out that [ the applicant ] had a lawful excuse for his absence at the hearing in ORG , on DATE .

On DATE GPE , inter alia , requested ORG to appoint a new NORP lawyer as the applicant had no longer confidence in PERSON and as he was informed that PERSON had recommended ORG that the latter ’s appointment as counsel for the applicant be withdrawn . GPE further requested ORG to adjourn the case until a new lawyer had been found . In addition GPE requested the ORG to inform him whether it would “ acknowledge [ him ] as lawyer in [ the applicant ’s ] case ” and to send him copies of ORG letters of CARDINAL DATE and CARDINAL DATE with enclosures . On CARDINAL and CARDINAL March CARDINAL GPE , inter alia , repeated his request for access to the file and for acknowledgement as counsel for the applicant . He also requested that the NORP lawyer , PERSON , be acknowledged as counsel for the applicant .

In the meantime , on DATE , PERSON informed GPE that ORG had decided on DATE , pursuant to LAW of ORG ( retsplejeloven ) , not to hand over copies of the aforementioned letters in the file to GPE or the applicant .

On DATE ORG , sitting with CARDINAL professional judges and CARDINAL lay judges , decided to dismiss the applicant ’s appeal . Neither the applicant - or any of his representatives - nor the prosecutor was present at the court meeting . The decision was made on the basis of the written material in the case , including the medical statement of DATE from PERSON , GPE ’s letters of CARDINAL and DATE and DATE , PERSON ’s letters of CARDINAL and DATE , a report of DATE from the Chief of ORG , and the letter of CARDINAL DATE from ORG . The ORG transcripts read , inter alia , as follows :

( Translation )

The hearing is public .

On the basis of the material now available it must be considered established that the admission notice from the NORP hospital was false . In addition , subsequent to that , a false medical certificate allegedly issued by PERSON has been submitted . On this background - notwithstanding ... the medical certificate issued by a doctor , PERSON submission that [ the applicant ] had a lawful excuse [ for his absence ] at the beginning of the hearing , on DATE , must be rejected . ORG therefore , pursuant to LAW , reverses its decision of CARDINAL DATE as to the adjournment of the case .

On the basis of the information provided by the prosecution about the efforts made to have the indictment and summons served on the applicant , the ORG is satisfied that it has been impossible to serve these documents in the usual manner because he has changed address or place of residence without giving due notice thereof .

For these reasons the prosecution ’s request for dismissal of [ the applicant ’s ] appeal is sustained pursuant to section CARDINALc , subsection CARDINAL second part .

It is decided :

This appeal is dismissed .

In accordance with [ PERSON ’s ] recommendation of CARDINAL DATE ORG withdraws the appointment of [ PERSON ] as defence counsel for [ the applicant ] .

ORG has not found any reason to appoint a new counsel for [ the applicant ] before the decision to dismiss [ the applicant ’s ] appeal was made .

On DATE ORG rejected the applicant ’s request to reopen the case .

Upon the applicant ’s request , ORG granted him leave to appeal to ORG ( Højesteret ) on DATE . Enclosed with the letter from ORG was , inter alia , a copy in LANGUAGE of LAW of ORG , which sets out the conditions a lawyer must fulfil in order to be appointed counsel for an accused person .

Following several requests from the applicant for access to the file , the Ministry notified him on DATE that it did not consider itself competent to grant access to the file as long as the case had not been finally decided upon . However , ORG informed the applicant that it had forwarded his request for access to the file to ORG .

On DATE ORG decided that the lawyers [ GPE and PERSON ] could have access to the file , ( cf . LAW ) . However , in order to secure that the NORP rules concerning access to files in criminal cases were observed , the permission was subject to the condition that the lawyers were assisted by a NORP lawyer in the sense that the latter would receive a copy of the file for the use of the NORP lawyers .

On DATE ORG appointed the NORP lawyer PERSON to assist GPE and PERSON in the aforementioned manner . On DATE T.R. informed GPE and PERSON that he was not entitled to send the file or copies of the documents of the file to them or to the applicant but they were welcome to go through the file at his office and that he was willing to give them oral explanations regarding the contents of the documents .

On DATE T.R. asked ORG for permission to forward the file to the applicant ’s NORP lawyers .

On DATE ORG rejected the request and emphasised , by reference to its decision of DATE , that only T.R. was permitted to receive copies of the file for the NORP lawyers’ use .

After the parties’ submission of written statements , ORG decided , on DATE , as follows :

( Translation )

Notwithstanding [ ORG ’s ] request of CARDINAL DATE for withdrawal , which request was granted at the date of the order of dismissal , ORG holds that it has not been established to the satisfaction of the court that [ the applicant ] has been deprived of an adequate and effective defence in connection with ORG decision of CARDINAL DATE to dismiss his appeal or that the decision of ORG is wrong . On those grounds ORG rejects [ the applicant ’s ] claim for remission of the case for retrial . As no other allegations have been submitted which can lead to a reversal of ORG decision , ORG [ dismisses the appeal against ORG decision ] .

The applicant was arrested in GPE in DATE and expelled to GPE . It appears that he has now served his prison sentence .

B. Relevant domestic law

Appointment of defence counsel

Section CARDINAL of ORG reads , in so far as relevant , as follows :

( Translation )

Subsection CARDINAL

“ Any person who is charged with a crime shall have the right to choose a defence counsel to assist him in accordance with the rules laid down below ... ”

Subsection CARDINAL

“ Only lawyers who have a right to appear before the court concerned or who have been appointed by ORG to act as public defence counsel before the court concerned may be chosen to act as defence counsel . However , the court may , if it considers it justified , taking into account the nature of the case and other special circumstances , allow the choice of a lawyer from another NORP country to act as defence counsel ... ”

Access to the file

Section CARDINAL , subsection CARDINAL , of ORG reads , inter alia , as follows :

( Translation )

“ Counsel must have access to the material which is in the possession of the police ... Counsel is not allowed to hand over the material to the accused without the approval of the police . ”

The last part of subsection CARDINAL serves to prevent misuse of the case file . However , the accused is not prohibited from acquainting himself with the file at his counsel ’s office .

Dismissal of appeal

A person convicted in a criminal case tried by a city court is free , in principle , to appeal against the judgment to ORG in the district of which the city court in question belongs . Immediately upon pronouncement of the judgment , the convicted person can give notice orally to the court records that he wants to appeal against the judgment .

As soon as possible after receipt of the notice of appeal , ORG sees to it that attempts are made to serve a notification ( notice of appeal and indictment ) on the appellant in the usual manner , ( cf . Sections CARDINAL and CARDINAL of ORG ) .

When an appeal also comprises assessment of the evidence , ORG arranges for a summons containing information on the time and place of the hearing to be served on the appellant at a notice of DATE , ( cf . Section CARDINAL and LAW of ORG ) . If a summons is not served or if a summons is served on the appellant at a notice of DATE , the effect is that the appellant is not lawfully summoned to the hearing and therefore , as a point of departure , the hearing can not be held if the appellant fails to appear at the hearing .

However , Section CARDINALc , subsection CARDINAL of ORG reads as follows :

( Translation )

“ If the accused fails to appear without stating a lawful excuse for his absence in proceedings where the appeal was raised by him and comprises the assessment of evidence , the court can dismiss his appeal by order if it finds that the hearing can not usefully proceed in his absence . Furthermore , the accused ’s appeal can be dismissed if it has not been possible to serve the indictment or the summons upon him in the usual manner because he has changed his address or place of residence without giving due notice thereof . ”

The usual manner to serve indictments and summons on somebody are by postal or by personal service , ( cf . Sections CARDINAL until CARDINAL and Section CARDINAL , subsection CARDINAL , of ORG ) . In criminal cases documents can not be served upon the accused ’s lawyer .