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

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in the village of PERSON , near the town of PERSON .

He was represented before the ORG by PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON , of ORG .

On TIME CARDINAL DATE the applicant went to a neighbouring village on business . While on his way back to his home village , he allegedly met a neighbour , PERSON , who was transporting stones in a horsecart . Apparently the applicant and PERSON had for DATE been involved in a property dispute relating to a plot of agricultural land owned by the applicant .

After that the applicant had lunch in his house and at TIME went to clean the abovementioned plot of land . He saw a pile of stones there and started throwing them out . Then PERSON allegedly tried to enter the applicant ’s plot with his cart . The applicant took a pole and tried to hit PERSON horse . According to the applicant ’s allegations , at that point PERSON PERSON struck him in the face with a pitchfork and then knocked him on the back of the head with it . The assault left the applicant blinded and bleeding . After that he reportedly heard the noise of a horsecart driving away . There were no other persons present at the scene .

Some time later Mr NORP and Mr GPE arrived at the scene of the incident . Mr PERSON took the applicant to a hospital . They did not witness the incident , but the applicant told them that PERSON had assaulted him .

As a result of the pitchfork blow to the face , the applicant lost the sight of both eyes .

DATE the police opened a preliminary inquiry ( see below , Relevant domestic law and practice ) into the incident and impounded CARDINAL pitchforks from Mr PERSON ’s house . They did not apprise the competent prosecutor of the impounding . It seems that in the course of the inquiry Mr PERSON admitted to having hit the applicant .

Later , a criminal investigation was opened and on an unspecified date in DATE PERSON was charged with inflicting grievous bodily harm on the applicant , contrary to LAW ( see below , Relevant domestic law and practice ) . The investigation authorities interviewed the applicant , CARDINAL witnesses , and PERSON , who denied any wrongdoing .

A medical expert report drawn up during the proceedings found that the applicant had completely lost the sight in his left eye , and could only distinguish light from dark with his right eye . The report also established that the injuries were consistent with a pitchfork blow as the CARDINAL described by the applicant . The report concluded that the applicant had become permanently blind in both eyes , which amounted to grievous bodily harm , while the other injuries , to his face and the back of his head , were minor .

On DATE the applicant applied to join the proceedings as a private prosecutor and a civil claimant .

On an unspecified date the investigator in charge of the case sent the file to ORG with a proposal to indict PERSON ORG

In a decision of CARDINAL DATE a prosecutor of ORG decided to drop the charges against PERSON and discontinue the investigation in respect of him , continuing it against an “ unknown perpetrator ” . She reasoned that he had denied his guilt and that , apart from the applicant , there were no eyewitnesses who could positively establish the identity of the perpetrator of the offence ; the statements of the witnesses could not fill this lacuna . It followed that the charges could not be proved beyond reasonable doubt , whereas a conviction or even an indictment could not rest on inferences . All possible investigative steps had been taken and no further incriminating evidence had been uncovered . It was true that the police had impounded a pitchfork on DATE of the offence , but it could not be admitted in evidence , as the impounding had not been carried out in accordance with the relevant rules of procedure . According to ORG caselaw , all acts of procedure carried out prior to the institution of criminal proceedings , within the framework of a preliminary inquiry under LAW ( “ the ORG ” – see below , Relevant domestic law and practice ) , could exceptionally be considered valid only if they had been undertaken with the knowledge of the competent prosecutor . In the case at hand the competent prosecutor at ORG had not been informed of the impounding either before or immediately after it had been carried out . Under LAW § CARDINAL of the ORG ( see below , Relevant domestic law and practice ) , this omission had compromised the evidence thus obtained . Finally , the prosecutor decided to stay the investigation , as the identity of the perpetrator was unknown .

In line with LAW of the ORG , as in force at the relevant time ( see below , Relevant domestic law and practice ) , ORG sent a copy of the decision to ORG . On DATE that office confirmed it , citing the same reasons . It added that the impounding had not been carried out in the presence of certifying witnesses , that the scene of the crime had not been preserved , that after the incident of DATE Mr PERSON had not been examined for traces of blood on him , and that he had an alibi , confirmed by CARDINAL witnesses . No other investigative steps were possible .

A copy of the prosecutor ’s decision was sent to ORG . In a decision of DATE it also confirmed the discontinuation , agreeing with the ORG reasoning . The applicant was not notified of the court ’s decision .

After he found out about it , on DATE he lodged an appeal with ORG . On DATE that office dismissed the appeal , informing the applicant that the discontinuation of the proceedings was not subject to appeal . The review procedure was automatic and had already taken place .

On DATE the applicant requested ORG to reopen the investigation . In reply , on DATE ORG informed the applicant that following the amendments of the ORG which had come into force on DATE ( see below , Relevant domestic law and practice ) it was not possible to reopen criminal investigations whose discontinuation had been confirmed by a court .

On DATE the applicant resubmitted his request and as a result on CARDINAL DATE the Chief Prosecutor requested ORG to reopen the criminal investigation . He argued that the decisions to discontinue it were overly formalistic and not sufficiently reasoned , and that the competent authorities had not properly assessed the evidence . In his view , this constituted grounds for reopening under LAW ( CARDINAL ) in conjunction with LAW ( CARDINAL ) of the ORG ( see below , Relevant domestic law and practice ) .

In a judgment of DATE ( реш. № CARDINAL от CARDINAL април DATE г. , по н.д. CARDINAL/CARDINAL г. , ORG , ORG н.о. ) ORG rejected the Chief Prosecutor ’s request as inadmissible . It noted that reopening had been possible prior to DATE . However , under the amendments to the ORG of that date prosecutors alone had competence to discontinue criminal proceedings . Their decisions were subject to appeal before the respective firstinstance courts , whose decisions were subject to appeal and then to appeal on points of law ( see below , Relevant domestic law and practice ) . The counterpoise of these newly introduced possibilities to appeal had been the withdrawing of the possibility of setting aside the court ’s decision by way of reopening . The LAW for the amendment of the ORG contained no provisions allowing judicial decisions confirming discontinuations of criminal investigations under the old system to be reviewed in reopening proceedings .

No investigative steps were taken DATE in the investigation against an “ unknown perpetrator ” .

Articles CARDINAL , CARDINAL and CARDINAL of the DATE LAW make it an offence to inflict bodily harm on another . Harm is classified as minor , intermediate or grievous by reference to medical criteria laid down in the second paragraphs of these ORG . Permanent blindness in CARDINAL or both eyes constitutes grievous bodily harm ( LAW ) . Inflicting grievous bodily harm is a publicly prosecutable offence in all cases ( LAW of the Code ) .

Criminal proceedings for publicly prosecutable offences could be opened only by the decision of a prosecutor or an investigator ( LAW and CARDINAL of the ORG , as in force at the relevant time ) . They had to open an investigation whenever they received information , supported by sufficient evidence , that an offence might have been committed ( Articles CARDINAL to CARDINAL of the ORG ) .

If the investigation authorities did not have enough evidence to institute criminal proceedings and no immediate investigative steps were required , they could carry out a preliminary inquiry ( “ предварителна проверка ” ) to determine whether the institution of criminal proceedings was warranted . The inquiry could be opened by the investigator or the police , who had to inform the competent prosecutor , or be ordered by the prosecutor ( LAW ORG , as in force at the material time ) . The authorities carrying out the inquiry could search the crime scene and impound objects they found there if this was the only opportunity for preserving the evidence . The investigator had to inform the prosecutor about these actions forthwith ( LAW ORG , as in force at the material time ) .

Evidence which was not gathered in the manner prescribed by the ORG was inadmissible ( LAW ORG ) . According to ORG caselaw , this requirement meant that the results of investigative actions undertaken before the institution of criminal proceedings could be taken into account only if they had taken place in the course of a preliminary inquiry . It followed that the competent prosecutors had to be apprised promptly , so as to be able to exercise their supervisory powers . This was an essential prerequisite for the results of these actions to be taken into account in the ensuing criminal proceedings . The failure to inform the prosecutor had the effect of compromising these actions and the evidence obtained through them ( реш. № CARDINAL от CARDINAL юли DATE г. по ORG DATE г. , ORG , I н.о. ) .

LAW ORG provided that the victim of an offence who had suffered damage could bring a civil claim in the context of the criminal proceedings . Until DATE such a claim could be lodged even during the preliminary investigation ( LAW ORG , as in force until DATE ) . After that it could be made only after the case had proceeded to trial ( LAW ORG , as in force after DATE ) . The latter position was maintained under LAW DATE Code of Criminal Procedure . Civil claimants are entitled to take part in the proceedings , acquaint themselves with the case file and make copies , adduce evidence , make requests and objections , and challenge the decisions which impinge on their rights and legitimate interests ( LAW ORG and LAW DATE Code ) .

The DATE Code of Criminal Procedure gave the victims of offences certain rights which do not depend on their joining the proceedings as private prosecutors or civil claimants . Under LAW of this Code , they are entitled to be apprised of their procedural rights , be kept abreast of the progress of the proceedings , if they have so requested , and challenge the decisions to discontinue the proceedings .

By LAW ORG , as in force until DATE , public prosecutors discontinued proceedings if they found that the charges had not been proven . Paragraphs CARDINAL and CARDINAL of that Article , as in force between CARDINAL January CARDINAL and DATE , provided that after the discontinuation the prosecutor had to send the file and his decision to the immediately superior prosecutor ’s office , which could confirm , modify or quash it . If it confirmed the decision it had to send the file to the appropriate court , which had to rule in private on the wellfoundedness or otherwise of the discontinuation ( Article CARDINAL § § CARDINAL , CARDINAL and CARDINAL of the ORG , as in force at that time ) . Paragraph CARDINAL of that Article provided that the court ’s decision was not subject to appeal . No provision was made for the victim of the offence to be notified of the discontinuation .

Article CARDINAL of the ORG was completely changed with effect from DATE and henceforth provided that the prosecutor ’s decision to discontinue the proceedings was to be served on the accused and the victim of the alleged offence . Either of them could then appeal against it to the respective firstinstance court within DATE . The court ’s decision was in turn subject to appeal to the higher court within DATE of its delivery ( LAW ORG , as in force DATE and DATE , and LAW ORG ) . The higher court ’s decision was then subject to appeal on points of law to ORG , within DATE of its delivery ( LAW ORG , as in force DATE and DATE , and LAW . In DATE the ORG was amended again , following which the firstinstance court ’s decision was not subject to appeal .

Under LAW , the decision of the firstinstance court to uphold the discontinuation of a criminal investigation by the prosecutor is served on the accused and the victim of the offence and is subject to appeal before the higher court , but the latter ’s decision is not appealable on points of law ( Article CARDINAL § § CARDINAL , CARDINAL and CARDINAL of that Code ) .

Article CARDINAL of the ORG enumerated the judicial rulings which could be set aside by way of reopening . In its version DATE and DATE the list included the decisions confirming the discontinuation of a criminal investigation by the prosecutor ( see above ) . The amendment to the ORG which entered into force on DATE ( see above ) removed those decisions from the list , with the result that decisions upholding the discontinuation of a criminal investigation made after its entry into force were not annullable by way of reopening . However , the amendment was silent on the issue whether such decisions made prior to its entry into force were likewise no longer capable of being set aside by way of reopening . The issue was settled in a couple of judgments given by the First and FAC of ORG in DATE : the judgment in the applicant ’s case and a judgment delivered DATE , on DATE ( реш. № CARDINAL от CARDINAL април DATE г. по ORG г. , ORG , I н.о. ) . In both of them the court , after analysing in some detail the amendment ’s overall scheme , ruled , against the views of ORG , that decisions made prior to the entry of the amendment into force – CARDINAL DATE – could not be set aside by way of reopening . A majority of ORG of the court confirmed this approach in a decision of DATE ( опр. № CARDINAL от CARDINAL март DATE г. по ORG № ORG г. , ORG , I н.о. ) , against the dissent of the presiding judge , who was of the view that reopening was still available in respect of decisions made before DATE .

Article CARDINAL § CARDINAL of the DATE Code of Criminal Procedure provides that judicial decisions upholding the discontinuation of a criminal investigation by the prosecutor are capable of being set aside by way of reopening .

Requests for reopening are examined by ORG ( Article CARDINAL of the ORG and LAW ) . Requests based on material breaches of the substantive or the procedural law ( LAW ( CARDINAL ) in conjunction with LAW ( CARDINAL ) and ( CARDINAL ) of the ORG , superseded by LAW ( CARDINAL ) in conjunction with LAW ( CARDINAL ) and ( CARDINAL ) of the DATE Code of Criminal Procedure ) , can be made only by ORG ( Article CARDINAL § CARDINAL in fine of the ORG ) .


CASE OF IGLESIAS GIL AND A.U.I. v. SPAIN

Violation of Art. 8;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The first applicant , PERSON , was born in DATE and lives in GPE . She is the mother of the second applicant , GPE , who was born in DATE .

On DATE the first applicant married A.U.A. On DATE the couple divorced . Their son GPE was born on DATE and A.U.A. acknowledged paternity . In a decision of DATE , ORG awarded the first applicant custody of GPE , and the father access . On DATE A.U.A. abducted his son during an access visit and left GPE with him . After passing through GPE and GPE , he travelled with the child by air to GPE .

The first applicant lodged a criminal complaint with ORG investigating judge no . CARDINAL alleging child abduction and applied to be joined to the proceedings as a civil party . On DATE the investigating judge made orders for a nationwide search to be made for A.U.A. and for the child ’s immediate return to its mother . Subsequently , the first applicant also made criminal complaints against various members of LOC ’s family who , she said , had assisted in her son ’s abduction .

During the investigation , the first applicant requested PERSON investigating judge no . CARDINAL to monitor calls on LOC ’s mobile telephone and to interview members of ORG ’s family . In a decision of DATE , the investigating judge turned down both requests , the former on the ground that there was no evidence that the mobile telephone number that had been given was LOC ’s and the latter because the first applicant had not given precise details of the questions she wished to be put to her former husband ’s relatives . The first applicant also asked the investigating judge for a search to be carried out at the registered office of a company belonging to LOC that was responsible for administering his property in his absence , and for the examination of a vehicle he had used to leave GPE . The judge again refused .

The first applicant asked the judge to issue an international search and arrest warrant against A.U.A. , but in an order of CARDINAL DATE , he declined , stating :

As regards the international search and arrest warrant , the offences of coercion and extortion have not been made out . It is debatable whether there has been an offence of criminal contempt , since it has not been proved that the person concerned was ordered to comply with the judgment of the family court and warned that he was liable to commit this offence . In addition , since this offence ( LAW ) only carries a prison sentence of DATE , an international search and arrest warrant is not justified , [ especially ] as the conduct complained of appears to come within Article CARDINAL of LAW , which characterises it as a minor offence .

Furthermore , it should be noted that the requested procedural steps are neither lawful , nor adapted to the aim pursued , and must therefore be refused pursuant to LAW . ”

In a decision of DATE , investigating judge no . CARDINAL turned down further requests by the first applicant for investigative steps to be taken as a result of her former husband ’s contempt and failure to comply with the judgment of the family court on the following grounds :

Investigative steps are taken in order to establish whether an offence has been committed . The investigation is brought to an end by a judicial decision , not at the request of a party ( LAW ) .

The inquiries made to date do not prove that LOC failed to return his son to his mother at DATE for which he was entitled to have him to stay .

A wanted notice has been issued for LOC nationally . As soon as he has been traced , final provision CARDINAL of Institutional Law no . CARDINAL of DATE on the legal protection of minors can be applied . ”

In an order of CARDINAL DATE , the investigating judge also examined whether a person could be prosecuted for the abduction of a minor for whom he had joint parental responsibility . He found that this was not possible under the case - law , as the only offences that could be committed in such circumstances were criminal contempt and extortion . In a further order dated DATE the investigating judge reiterated that no international search and arrest warrant could be issued for the suspected offence of criminal contempt , for the following reasons :

“ ... As regards an international search and arrest warrant against A.U.A. , this issue was resolved by LAW in its decision of DATE . No new facts have emerged since then that would justify reclassifying the offence . Under no circumstances can it amount to ‘ false imprisonment’ , as the judgment of DATE on the abduction of minors makes clear . In that judgment , the court held : ‘ The fact that a father has taken his minor child with him solely in order to enjoy its company can not amount to the offence of child abduction’ ...

Lastly , as to the suspected offence of criminal contempt , no international search and arrest warrant can be issued as it is not an offence that comes within the extradition treaties . Consequently , ORG would not act on such a warrant , as it would not be valid in law . ”

An appeal by the first applicant was dismissed by FAC on DATE .

The first applicant sought amparo relief under LAW ( right to a fair hearing ) , CARDINAL ( right to life and mental and physical integrity ) and CARDINAL ( right to liberty and security ) of the LAW , and LAW on the Rights of the Child of DATE . In a decision of DATE , ORG dismissed her appeal as manifestly ill - founded , holding that she had not stated why she disagreed with the reasoned decisions of the lower courts .

At the end of the investigation , on DATE , ORG investigating judge no . CARDINAL issued a provisional discharge order dismissing the charges against A.U.A. However , he renewed the orders for a nationwide search for A.U.A. and the order freezing his assets . He also made a final order dismissing the charges against the members of LOC ’s family who had been implicated by the first applicant . The reason given by the judge for making the provisional discharge order in respect of A.U.A. was that the latter ’s absence from GPE had prevented his being questioned or formally charged in accordance with LAW of LAW . An appeal by the first applicant was dismissed by FAC on DATE .

The first applicant lodged an amparo appeal against those decisions with ORG , in which she alleged violations of LAW ( right to liberty and security ) , taken together with Articles CARDINAL ( rights to private life and family privacy ) , CARDINAL ( right to a fair hearing ) and DATE ( social , economic and legal protection of the family and children ) of the LAW . She also relied on LAW . In her appeal , she complained in particular of the investigating judge ’s systematic refusal to issue an international search warrant for her child , a refusal which , she said , was in breach of the positive duty to protect children and families . She also alleged a violation of LAW of DATE , which requires GPE to take measures to combat the illicit transfer and non - return of children abroad . In her submission , by refusing to take any investigative steps , the investigating judge had directly infringed both her and her son ’s right to private and family life , and her right to judicial protection , as guaranteed by LAW .

In a decision of CARDINAL DATE , ORG dismissed the amparo appeal as unfounded , holding that the first applicant had confined herself to contesting the decisions of the criminal courts which , in reasoned and well - founded decisions , had decided to make a provisional discharge order in respect of her criminal complaint of child abduction , while renewing certain preventive measures .

In connection with an appeal by the first applicant to FAC against one of his decisions , investigating judge no . CARDINAL said in a report to FAC on DATE :

“ ... The purpose of criminal proceedings is to prosecute the offence and , if appropriate , to punish the perpetrators . However , an investigating judge can not , under any circumstances , allow himself to be manipulated by a woman driven by jealousy or hatred against her former husband ’s family and take a series of procedural measures that serve no purpose other than to inconvenience third parties uninvolved in the proceedings . In the present case , all that has been proved so far is that A.U.A. did not return his son GPE to his mother at the end of the period he was allowed by the family court . ”

An application for an order requiring investigating judge no . CARDINAL to stand down was dismissed in a decision of DATE . In a decision of CARDINAL DATE , an application for the proceedings to be declared null and void was likewise dismissed .

In a judgment of CARDINAL DATE , ORG withdrew parental responsibility from LOC and awarded the first applicant full parental responsibility . It gave the following reasons for its decision :

“ ... Having considered the evidence , the ORG has decided to grant the applicant ’s application . ... the case file shows that , after continually failing to comply with the access arrangements ( see this ORG ’s decision of DATE ) , the respondent did not return the child to its mother at DATE stipulated in the decision of DATE . Furthermore , since DATE , the whereabouts of both father and child have been unknown , which means that the child has been removed from the applicant ’s custody in breach of a court order . Such conduct can only be described as very serious , as it has entailed the cruel and abrupt removal of the child from the family background in which it was being happily brought up , thereby depriving it both now and then of its mother ’s love and protection ... at the most tender of ages , with the serious harm which that entails ... Thus , by putting his own interests before those of his child , [ A.U.A. ] has acted in a manner that is seriously detrimental to the child ’s welfare ... ”

According to a psychologist ’s report produced by the first applicant in DATE , LOC first made contact with her through a telephone call in which he imposed various conditions for the child ’s return , threatened her and used the prospect of her not seeing her son again as blackmail . On DATE the first applicant lodged a criminal complaint against A.U.A. alleging threatening behaviour and coercion . On DATE Vigo investigating judge no . CARDINAL made a provisional discharge order . On an appeal by the first applicant , that order was quashed by FAC in a decision of DATE .

On DATE the first applicant saw her son for the first time since his abduction in DATE . On DATE A.U.A. voluntarily appeared before the investigating judge , who , after hearing his representations , decided not to order his detention pending trial . Finally , on DATE the first applicant was able to recover her child with police assistance on LOC ’s return to ORG with the child . She said that for a time she was forced to go into hiding with her son in a shelter for women .

On DATE ORG granted A.U.A. access . As he was prevented from exercising that right , A.U.A. lodged a criminal complaint with the ORG investigating judge against the first applicant and her parents alleging aggravated contempt .

The relevant provisions of the LAW read as follows :

“ Provisions relating to the fundamental rights and the freedoms recognised by the LAW shall be construed in accordance with LAW and international treaties and agreements on human rights that have been ratified by GPE . ”

“ CARDINAL . Everyone ’s right to honour and to private and family life ... shall be protected .

“ CARDINAL . Everyone shall have the right to effective protection by the judges and courts in the exercise of his or her rights and legitimate interests ; in no circumstances may there be any denial of defence rights .

“ Children shall enjoy the protection provided for in the international agreements safeguarding their rights . ”

“ Once officially published in GPE , international treaties that have been validly concluded shall be part of the domestic legal order . ... ”

The relevant provisions of the Convention on the Rights of the Child [ GPE ratified this instrument on DATE . GPE signed it on DATE , but have not yet ratified it ] provide as follows :

“ CARDINAL . DATE States Parties shall take measures to combat the illicit transfer and non - return of children abroad .

To this end , GPE Parties shall promote the conclusion of bilateral or multilateral agreements or accession to existing agreements . ”

The relevant provisions of this convention [ GPE ratified this instrument on DATE and GPE on DATE ] provide as follows :

“ The objects of the present Convention are :

( a ) to secure the prompt return of children wrongfully removed to or retained in any ORG ; and

( b ) to ensure that rights of custody and of access under the law of CARDINAL ORG are effectively respected in GPE . ”

“ Contracting States shall take all appropriate measures to secure within their territories the implementation of the objects of the Convention . For this purpose they shall use the most expeditious procedures available . ”

“ The removal or the retention of a child is to be considered wrongful where :

( a ) it is in breach of rights of custody attributed to a person , an institution or any other body , either jointly or alone , under the law of the ORG in which the child was habitually resident immediately before the removal or retention ; and

( b ) at the time of removal or retention those rights were actually exercised , either jointly or alone , or would have been so exercised but for the removal or retention .

The rights of custody mentioned in sub - paragraph ( a ) above may arise in particular by operation of law or by reason of a judicial or administrative decision , or by reason of an agreement having legal effect under the law of that ORG . ”

“ A Contracting State shall designate ORG to discharge the duties which are imposed by the LAW upon such authorities .

“ ORG shall cooperate with each other and promote cooperation amongst the competent authorities in their respective GPE to secure the prompt return of children and to achieve the other objects of this LAW .

In particular , either directly or through any intermediary , they shall take all appropriate measures :

( a ) to discover the whereabouts of a child who has been wrongfully removed or retained ;

( b ) to prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures ;

( c ) to secure the voluntary return of the child or to bring about an amicable resolution of the issues ;

( d ) to exchange , where desirable , information relating to the social background of the child ;

( e ) to provide information of a general character as to the law of their ORG in connection with the application of the ORG ;

( f ) to initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and , in a proper case , to make arrangements for organising or securing the effective exercise of rights of access ;

( g ) where the circumstances so require , to provide or facilitate the provision of legal aid and advice , including the participation of legal counsel and advisers ;

( h ) to provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child ;

( i ) to keep each other informed with respect to the operation of this LAW and , as far as possible , to eliminate any obstacles to its application . ”

“ Any person , institution or other body claiming that a child has been removed or retained in breach of custody rights may apply either to ORG of the child ’s habitual residence or to ORG of any other ORG for assistance in securing the return of the child .

“ The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children .

If the judicial or administrative authority concerned has not reached a decision within DATE from the date of commencement of the proceedings , the applicant or ORG of the requested ORG , on its own initiative or if asked by ORG of the requesting ORG , shall have the right to request a statement of the reasons for the delay . ... ”

“ Where a child has been wrongfully removed or retained in terms of LAW and , at the date of the commencement of the proceedings before the judicial or administrative authority of ORG where the child is , a period of DATE has elapsed from the date of the wrongful removal or retention , the authority concerned shall order the return of the child forthwith .

The judicial or administrative authority , even where the proceedings have been commenced after the expiration of DATE referred to in the preceding paragraph , shall also order the return of the child , unless it is demonstrated that the child is now settled in its new environment .

Where the judicial or administrative authority in the requested ORG has reason to believe that the child has been taken to another ORG , it may stay the proceedings or dismiss the application for the return of the child . ”

“ Notwithstanding the provisions of DATE , the judicial or administrative authority of the requested ORG is not bound to order the return of the child if the person , institution or other body which opposes its return establishes that :

( a ) NORP the person , institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention , or had consented to or subsequently acquiesced in the removal or retention ; or

( b ) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation .

The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views .

In considering the circumstances referred to in this LAW , the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by ORG or other competent authority of the child ’s habitual residence . ”

The relevant provisions of this PERSON provide :

“ Minors shall enjoy the rights afforded them by LAW and international treaties ratified by GPE , in particular , LAW on the Rights of the Child , and the other rights guaranteed by domestic legislation ...

This law , its implementing provisions and other statutory provisions concerning minors shall be construed in accordance with the international treaties ratified by GPE and , in particular , the Convention on the Rights of the Child of DATE .

The public authorities shall guarantee compliance with the rights of minors and shall ensure their decisions comply with this law and the aforementioned international instrument . ”

Pursuant to final provision CARDINAL of the aforementioned PERSON on the legal protection of minors , a second paragraph was added to LAW , which provides as follows :

“ The functions of guardianship constitute a duty . They shall be performed for the benefit of the person for whom the guardian has been appointed and subject to the protection of the judicial authorities .

The measures and action contemplated by LAW may also be ordered by the court , on its own initiative or on the application of any interested party , in all cases of de facto or de jure guardianship or custody of minors , ... if their interest so requires . ”

Article CARDINAL of the Civil Code provides as follows :

“ The court shall , on its own initiative , or on an application by the child , a parent or the public prosecutor , order the following measures :

( CARDINAL ) appropriate action on a transfer of custody to avoid the unsettling the child in a way that is harmful ;

( CARDINAL ) NORP in general , any other action it considers expedient to remove the child from danger or prevent it coming to harm .

All such measures may be ordered in any civil or criminal proceedings ... ”

The provisions read as follows :

“ Responsibility for dependent minors shall be vested in their mother and father .

Parental responsibility shall always be exercised in the child ’s interest and in accordance with its personality ; it shall include the following powers and duties :

( CARDINAL ) to provide the child with protection , company , food , an upbringing and proper guidance ;

( CARDINAL ) NORP to represent the child and administer its property ;

Parents may seek judicial assistance when exercising their parental responsibility . ... ”

“ Parents in whom parental responsibility is vested shall represent their dependent minor children in legal matters .

In general , the NORP courts have refused to characterise a failure by a person with parental responsibility for a minor to return the child as false imprisonment or kidnapping , offences under ORG CARDINAL to CARDINAL of LAW carrying CARDINAL ten years’ imprisonment . Under the case - law , a person guilty of such conduct may only be prosecuted for criminal contempt or extortion under LAW , for which the punishment is TIME imprisonment .

Institutional Law no . CARDINAL/CARDINAL of DATE amended the provisions of ORG dealing with the abduction of minors .

As regards the position under the criminal law , the explanatory memorandum to the PERSON indicated that a clearly worded provision , creating a separate offence from the generic offence of criminal contempt , had become necessary when the person guilty of removing or failing to return the minor was one of the parents and custody of the minor had been lawfully granted to the other parent or to another person or institution in the child ’s interest .

The PERSON inserted a new LAW bis in LAW , worded as follows :

“ CARDINAL . A parent who , without any justification , abducts his or her minor child shall be liable on conviction to CARDINAL years’ imprisonment and shall forfeit his or her parental responsibility for DATE .

For the purposes of this LAW , the following acts shall be deemed to constitute abduction :

( i ) transferring a minor from his place of residence without the consent of the parent with whom he or she habitually resides or the persons to whom or institutions to which custody of the minor has been granted ;

( ii ) failing to return a minor in material breach of an obligation arising under a judicial or administrative decision .

NORP If the minor is removed from GPE or a condition is imposed for its return , the sentence shall be in the upper CARDINAL of the range set out in paragraph CARDINAL .

The penalties stated in this Article shall also apply to any person from whom the minor is descended or any relative of the parent by blood or marriage up to the second degree who has committed the aforementioned acts . ”


Violation of Art. 10;Pecuniary damage - financial award;Costs and expenses partial award

On DATE the ORG dismissed the applicant 's request for registration of the title of a periodical , ORG A NORP Moral Tribunal ( PERSON społeczno - polityczny , europejski sąd moralny ) to be published in PERSON . The court considered that in accordance with LAW and the Ordinance of the Minister of Justice on the registration of periodicals , the name of a periodical should be relevant to its contents . The name as proposed by the applicant would suggest that a NORP institution had been established in GPE , which was untrue and would be misleading to prospective buyers . Moreover , the proposed title would be disproportionate to the periodical 's actual importance and readership as it was hardly conceivable that a periodical of a NORP dimension could be published in GPE . The court went on to state :

“ ... the applicant stubbornly applies for registration of periodicals the titles of which would suggest the existence in GPE an institution of international character ( such as ORG or ORG ) , and when requested by the court to change the titles he declares that he will not do so . ”

On DATE ORG dismissed an appeal by the applicant against this decision . The court stated , inter alia , that in the proceedings before the first - instance court the applicant had been requested to change the proposed title by deleting the term “ NORP Moral Tribunal ” , but he had refused to do so .

Subsequently , the applicant made a number of further applications for the registration of periodicals . He succeeded in obtaining CARDINAL registrations .

On DATE the Minister of ORG refused to grant leave for an extraordinary appeal against the decision of DATE , finding that it was in accordance with the law .

On DATE the ORG dismissed a new request by the applicant for registration of a periodical , GPE – A DATE enemy of GPE . The court noted that at a hearing on DATE the applicant , when requested to change the proposed title so as to remove its negative character , had refused to do so . The court considered that registration of the periodical with the proposed title would be harmful to NORP reconciliation and detrimental to good cross - border relations .

The applicant appealed against this decision , submitting that it was incomprehensible and amounted to censorship .

On DATE ORG upheld the contested decision . The court observed that the title , as proposed by the applicant , suggested that the proposed periodical would concentrate unduly on negative aspects of NORP relations . The court considered that such a title would be in conflict with reality in that it would give an unbalanced picture of the relevant facts . The court further considered that the lower court had been justified in refusing registration on the ground that the title would be detrimental to NORP reconciliation and to good relations between GPE and GPE .

Section CARDINAL of LAW of DATE requires registration of a press title by the regional court as a prerequisite for publication of a periodical . A request for registration should contain the proposed title , the editor 's address , the name of the editor - in - chief and other personal data , the name and address of the publishing house and information on how often the periodical would be published . The decision on registration is to be taken within DATE of the date on which the request has been filed with the court . The court must refuse registration if the request does not contain the required information or if the proposed title would prejudice a right to protection of the title of any existing periodical . LAW provides that a person who publishes a periodical without the required registration is liable to a fine .

Section CARDINAL(a ) of LAW authorises the Minister of ORG to issue an ordinance specifying the manner in which the press register should be run .

Section CARDINAL of the Ordinance of the Minister of Justice on the registration of periodicals , as applicable at the material time , provided that registration was not possible if it would be “ inconsistent with the regulations in force and with the real state of affairs ” ( “ niezgodny z przepisami prawa lub z istniejącym stanem rzecz ” ) .

On DATE the ordinance was amended in that section CARDINAL was deleted .


Violation of Art. 3 (substantive aspect);Violation of Art. 5-1;Violation of Art. 5-3;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Volodymyr Butkevych;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE .

The applicant is a former vice - president of ORG ( ORG ) , a ORG - owned company trading in grain .

On DATE ORG ( the “ ORG ” ) opened a criminal investigation in respect of the applicant and another employee of ORG on charges of aggravated embezzlement of public funds by means of fraudulent transactions for the amount of MONEY ( ORG ) via the private company ORG ( “ the ORG case ” ) . The applicant was also accused of producing a copy of a forged university degree certificate when applying in DATE for a position in the civil service .

The applicant was arrested on DATE .

On DATE the investigator appointed to deal with his case formally charged the applicant with aggravated embezzlement of public funds and forgery .

On DATE the Deputy Prosecutor General ordered the applicant ’s detention on remand for DATE on the grounds that the charges were serious and that the applicant might abscond and pervert the course of justice . The applicant appealed against his detention to the ORG of GPE ( “ the ORG ” ) .

On DATE the ORG extended the applicant ’s detention to DATE .

On DATE the ORG opened CARDINAL more criminal cases against the applicant for aggravated embezzlement of public funds by means of fraudulent transactions via ORG and ORG ( respectively “ the PERSON case ” and “ the PERSON case ” ) . These cases were joined to the ORG case .

On DATE ORG , on the applicant ’s appeal , revoked the detention order of DATE . The court found that there was no evidence that the applicant would abscond or pervert the course of justice if released . In particular , the applicant had his permanent residence in GPE and financially supported his wife and a child living in GPE . He had never failed to respond to a summons or attempted to obstruct the investigation . Moreover , the court found that , when ordering the applicant ’s detention , the prosecution had not taken into account the fact that the applicant suffered from a number of serious illnesses .

On DATE , without releasing him from the Kyiv SIZO , the investigator placed him under arrest again , this time on suspicion of involvement in the PERSON case . The Deputy General Prosecutor , on that same date , ordered the applicant ’s detention on remand for a period of DATE on the ground that he was suspected of a serious offence and that he might abscond or pervert the course of justice .

On DATE the applicant was officially charged with embezzlement of public funds in the PERSON case .

On DATE the Deputy Prosecutor General lodged a request for supervisory review ( protest ) with ORG against ORG decision of DATE .

On DATE the ORG of ORG quashed ORG decision of CARDINAL DATE and upheld the detention order of DATE . It found that the applicant ’s wife and CARDINAL children lived in GPE . In GPE the applicant lived with his partner and their son in GPE whilst being registered in Dnipropetrovs’k . He had CARDINAL registered addresses ( in GPE and GPE ) , CARDINAL international passports ( CARDINAL NORP and CARDINAL NORP : ordinary and official ) and had an account with an NORP bank , and was therefore likely to abscond if released . Moreover , ORG held that the first - instance court had overlooked the fact that the applicant in his appeal had requested the “ replacement of the preventive measure ” rather than the “ annulment of the detention order ” and , therefore , this appeal fell outside the scope of judicial review at the investigation stage .

On DATE and CARDINAL DATE the ORG prolonged the applicant ’s pre - trial detention respectively to DATE and DATE .

On DATE the investigator , with a view to preventing any communication between the applicant and his co - accused , ordered the applicant ’s transfer from the Kyiv SIZO to ORG no . CARDINAL ( ORG обласний слідчий ізолятор № CARDINAL“the GPE ” ) for the period from DATE to DATE .

The applicant was transferred to the GPE on DATE .

On DATE the ORG prolonged the applicant ’s detention to DATE .

On DATE the investigator ordered the applicant ’s transfer back to the Kyiv SIZO .

Meanwhile , on an undetermined date in DATE , the applicant ’s lawyer appealed against the prosecutor ’s detention orders of DATE and DATE .

On DATE the appeal was examined by ORG in the presence of the prosecutor and the applicant ’s lawyer . The court held that , although the domestic law allowed the detention of a defendant charged with aggravated embezzlement of public funds on the sole basis of the gravity of the charges , the other grounds provided for by the law should also be taken into account . ORG found , in particular , that there was no compelling evidence that if released the applicant would abscond or pervert the course of justice . The applicant had permanent residence in GPE and could not lawfully leave it since his international passport had expired . The applicant lived with his wife and CARDINAL children in GPE . He also financially supported his father and mother - in - law , who lived in GPE . Moreover , the applicant suffered from serious health problems . ORG considered the medical experts’ report produced by the prosecution , to the effect that the applicant was fit for detention in the remand facilities , unreliable in the light of the fact that during his detention in the GPE the applicant had not been administered any of the drugs prescribed for him . On the basis of the above findings the ORG quashed the detention orders of DATE and DATE . On DATE the Deputy Prosecutor General lodged a request for supervisory review against this decision .

On DATE the applicant , while still detained in the GPE , was arrested by the investigator on suspicion of involvement in the PERSON case . On DATE the applicant was officially charged with the said offence .

On DATE the ORG extended the applicant ’s pre - trial detention to DATE .

On DATE the ORG of ORG , following the prosecution ’s request for supervisory review , quashed ORG decision of CARDINAL December CARDINAL , citing essentially the same arguments as in its decision of DATE . The court also stated that there was no reason why the applicant could not be detained on the sole basis of the gravity of the charges , as provided for by LAW ORG .

On DATE the ORG extended the applicant ’s detention DATE .

On DATE the ORG instituted another criminal case against the applicant and PERSON respectively for giving and taking bribes . This case was joined to the criminal case against the applicant .

On DATE the applicant and his lawyer were granted access to the CARDINAL case file . The applicant , however , refused to study the case file , alleging that the relevant formalities had not been completed . On DATE the investigator rejected this complaint as unsubstantiated .

On DATE the prosecution lodged the bill of indictment with ORG ( the former ORG ) .

On an unknown date the applicant requested and was granted access to the case file , a right which he and his lawyer exercised from DATE to DATE .

On an unknown date in DATE ORG referred the applicant ’s case file to ORG of GPE for examination .

On DATE the Deputy Prosecutor General decided that only the ORG case was ready for trial and withdrew the remainder of the charges because they required further pre - trial investigation .

On DATE an amended bill of indictment was lodged with the Svyatoshynsky ORG ( “ the Svyatoshynsky Court ” ) .

On DATE a preparatory hearing was held before a judge of ORG . The judge considered that the case was ready for trial and decided that the applicant was to remain in detention on remand . The applicant ’s request for release was rejected on the ground that , although he had already spent a total of DATE in detention , the period of his detention during the investigation had not exceeded DATE and thus was in compliance with LAW ORG . The judge considered that the applicant ’s transfer to the GPE was necessary for the proper conduct of the investigation and that there was no indication of ill - treatment . He concluded that there were no medical or other special circumstances warranting the applicant ’s release .

The proceedings before the trial court started on DATE .

At a hearing on DATE ORG dismissed the applicant ’s request for release , stating that there were no new circumstances warranting a re - evaluation of the preventive measure imposed . The court also granted the prosecution ’s motion to adjourn the hearing until DATE to allow the new prosecutor to familiarise himself with the case file .

On DATE the Svyatoshynsky Court of its own motion decided that further pre - trial investigation was necessary . The court also ordered the applicant ’s release on an undertaking not to abscond .

On DATE the applicant tried to leave GPE for GPE by train but was stopped on the border and sent back to GPE .

On an unspecified date the prosecution appealed against the remittal of the case for further investigation , considering that it was ready for examination on the merits . The applicant also challenged the remittal , stating that it was motivated by the court ’s reluctance to acquit him . On DATE ORG granted the appeals , quashed the decision of DATE and ordered that the trial proceedings in the applicant ’s case be resumed .

The hearings before ORG resumed on DATE . On DATE the trial court ordered that by DATE the ORG was to carry out additional enquiries in order to collect further evidence . However , it was not until DATE that the authorities produced the requested evidence in court and the trial could resume .

On DATE ORG acquitted the applicant of the charges brought against him . The prosecution appealed . On DATE ORG upheld the applicant ’s acquittal .

On DATE ORG , following the appeal of the ORG , reversed the decisions of the lower courts and remitted the case for further investigation .

The case file was received by the ORG on an unknown date in DATE . On DATE the investigator amended the applicant ’s charges in accordance with the new DATE LAW . On DATE the applicant was summoned to give evidence but failed to appear . Since then , according to the ORG ’s submissions , the ORG has carried out a number of forensic examinations , questioned witnesses and seized documentary evidence . Further documents have been requested and received from NORP authorities .

On an unknown date the applicant made use of the recent amendments to the ORG by challenging the initial decision of the ORG of DATE to institute criminal proceedings against him . On DATE ORG allowed this application and revoked the impugned decision . The prosecution appealed .

DATE . On DATE ORG reversed ORG decision and rejected the applicant ’s application .

On DATE and CARDINAL DATE the applicant requested the investigator for termination of the criminal proceedings as time - barred . In reply the investigator informed the applicant that his requests would be examined and the decision would be adopted in accordance with the relevant law .

On DATE the applicant was charged with abuse of power and forgery and ordered not to leave his place of residence .

The investigation in the applicant ’s case is still pending .

On DATE the applicant ’s lawyer , referring to LAW , filed an administrative complaint about the inactivity of the administration of GPE , namely for their failure to release the applicant after DATE , when the overall term of his detention had reached DATE . On DATE the Shevchenkivsky ORG of GPE refused to entertain this complaint on the ground that the lawyer ’s authority to act issued by the applicant was limited to the criminal proceedings before ORG . This decision was not appealed against by the applicant .

The applicant ’s similar administrative complaint against the ORG was declared inadmissible on DATE by ORG on the ground that such complaints fell to be examined in the criminal proceedings which at that time were pending before ORG .

After the applicant ’s arrest in DATE his health started to deteriorate . According to ORG decision of CARDINAL DATE the applicant started to receive medical treatment in the GPE for his illnesses as early as DATE .

On DATE , in response to the applicant ’s numerous requests , the investigator dealing with his case ordered that a forensic medical report on the applicant ’s state of health be obtained . In its report no . CARDINAL of DATE , a commission of ORG ( PERSON міське бюро судово-медичних експертиз ) stated that the applicant suffered from a post - traumatic encephalopathy , duodenal ulcer with reflux and heart pathology . The applicant was prescribed a diet and heart drugs . In conclusion the experts suggested that the applicant ’s encephalopathy be examined in a specialised neurological institution .

On DATE an expert commission of ORG ( Київський центр судово-психіатричних експертиз ) , with the participation of a neuropathologist from the district hospital , drew up a forensic report ( no . CARDINAL ) at the request of the investigator . The commission found that the applicant suffered from post - traumatic encephalopathy ( after a head injury suffered at DATE ) . According to the applicant this disease caused him severe headaches and hand tremor . The applicant was prescribed the relevant drugs . He was found fit for detention on remand subject to the prescribed treatment .

On DATE the applicant was transferred to the GPE .

On DATE the applicant ’s lawyer asked the Governor of the GPE whether they had provided the applicant with the medicines prescribed for him .

On DATE the Governor of the Zhytomyr ORG issued a letter , stating that on his admission the applicant had been examined by the prison doctors , who had diagnosed him as suffering from encephalopathy . Subsequently he had been examined by the cardiologist who confirmed the above heart pathology diagnosis of the GPE experts . The Governor stated that , although the content of the above medical experts’ reports had been made known to the prison authorities , the drugs prescribed in those reports were not in the possession of the GPE and thus could not be administered to the applicant .

On DATE , after the applicant ’s transfer from the NORP ITU , he was examined by a doctor from the medical department of the GPE , who found that he suffered from headaches , heart and stomach pains . The applicant was prescribed CARDINAL drugs , including those specified in the experts’ reports .

The relevant domestic law is summarised in the judgment of GPE v. GPE ( no . CARDINAL , § § CARDINAL , ORG CARDINALII ) .


Preliminary objection dismissed (exhaustion);Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings

The applicant was born in DATE and lives in GPE .

The applicant was a civil servant at LOC .

On DATE he was arrested by police officers from ORG on suspicion of forgery . He admitted to the charges before the police .

On DATE the applicant was brought before the investigating judge at the GPE ORG , who ordered his detention on remand .

On DATE the public prosecutor filed an indictment with the GPE CARDINALth ORG against the applicant and CARDINAL co - accused ( ORG , PERSON and GPE ) , requesting that they be punished for committing forgery under ORG CARDINAL § CARDINAL and CARDINAL of LAW . The public prosecutor further decided that the PERSON on the Prosecution of Civil Servants ( Memurin Muhakemeti Kanunu ) did not apply to this case as the offence was ordinary .

On DATE ORG commenced the proceedings . On DATE it heard statements from the applicant and CARDINAL other co - defendants . The applicant denied the charges against him , alleging that his statement in the police station had been extracted from him under duress . At the following hearing on DATE , the court released the applicant and CARDINAL co - accused from detention on remand . It further decided to prolong , in absentia , the arrest warrant issued in respect of ORG as he had absconded .

On DATE the GPE public prosecutor launched an investigation concerning the applicant ’s alleged abuse of office in relation to the forgery . During the course of the investigation , the public prosecutor decided that he had no jurisdiction over the case as the applicant was a civil servant . Accordingly , he sent the file to ORG ( GPE PERSON ) , pursuant to the provisions of the PERSON on the Prosecution of Civil Servants , in order to seek authorisation to prosecute the applicant .

On DATE ORG decided not to authorise the applicant ’s prosecution .

On DATE ORG put aside this decision and ordered that the applicant be tried . Subsequently , on DATE the public prosecutor filed another indictment with the Istanbul CARDINALth Criminal Court accusing the applicant of abuse of office .

On DATE the CARDINALth ORG decided to join the case pending before it to the proceedings before ORG , and sent the case file to the latter .

In the course of the proceedings , during the QUANTITY hearings held DATE and DATE , the applicant ’s lawyer explicitly asked the court to separate his client ’s case from the others and to conclude it . The court each time rejected these requests given the search for ORG , and decided to postpone the hearings , awaiting the outcome of the arrest warrant . In particular , at one of these hearings on DATE , the applicant ’s lawyer informed the court that he had heard that ORG had escaped abroad . He further stated that his client had been victimised as a result of the prolongation of the proceedings .

On DATE the court decided that the criminal proceedings concerning ORG should proceed separately as he could not be found . DATE the court convicted the applicant and sentenced him to QUANTITY months’ imprisonment and a fine . The imprisonment was then commuted to a fine and its execution was suspended in accordance with LAW no . CARDINAL ( the PERSON on the execution of sentences ) .

Both the applicant and the public prosecutor appealed against the decision , the applicant alleging that there was no concrete evidence on which he could be convicted .

On DATE ORG rejected the reasons for appeal but quashed the judgment on account of a miscalculation of the amount of the fine imposed on the applicant . ORG did not order a retrial , but corrected the amount by reducing the fine and upheld the judgment with this amendment .


Violation of Art. 3 with regard to first applicant;No violation of Art. 3 with regard to second applicant;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicants , PERSON and PERSON were born in DATE and DATE respectively and live in Batman .

On DATE the applicants , accused of acting as couriers for the ORG , were arrested by police officers from ORG .

Prior to their detention in police custody , the applicants were examined by a doctor who found that they did not bear the marks of any injury . The applicants were then taken to ORG where they were detained and questioned .

On DATE the public prosecutor authorised the applicants ' continued detention until DATE .

On DATE and CARDINAL DATE the applicants were again examined by CARDINAL doctors who found that there was no evidence that the applicants had been illtreated .

The applicants allege that they were subjected to various types of torture and inhuman treatment during their detention in police custody . They claim they were blindfolded and immersed in high pressure cold water . They had to stand naked and electric shocks were administered to various parts of their bodies including their sexual organs . They state that their testicles were squeezed and that their hands and legs were tied . They were severely beaten and deprived of food and water and prevented from using toilet facilities . They were also kept in isolation , subjected to unbearable noises , insulted and threatened with death . From time to time , police officers applied medication to their injuries .

On DATE the applicants were brought before the Batman public prosecutor and then before ORG ) . According to a protocol dated DATE signed by CARDINAL police officers , the applicants bumped into each other while they were getting out of the police car and PERSON fell . It is to be noted that the applicants deny the authenticity of this protocol .

Both before the public prosecutor and ORG the applicants denied the veracity of the statements that had been taken from them by the police and stated that they had been subjected to ill - treatment during their detention in police custody . The judge of ORG observed that there was a violet - coloured bruise around PERSON left eye . She also noted the applicants ' allegation that their statements were incorrect and had been obtained under duress . ORG ordered the applicants ' detention on remand .

On DATE the applicants were taken to the Batman prison .

On DATE the applicants were examined by the prison doctor , Dr. PERSON , who noted that there were marks on Abdurrahman Çelik 's body resulting from the physical violence inflicted on him . He reported the following in respect of Abdurrahman Çelik :

“ There is a bruise of QUANTITY underneath the left eye . Furthermore , there are CARDINAL petechial lesions on both right and left inguinal areas . ”

In respect of PERSON , Dr. PERSON noted that the latter 's body did not bear any injury resulting from physical violence . The doctor further reported the following regarding PERSON :

“ There is a scar of QUANTITY in diameter on the left side of the lower lip on the exterior . ”

On DATE , the applicants filed petitions with ORG and requested the latter to annul the order for their detention on remand . They emphasised , inter alia , that the statements taken by the police were false as they had been signed under duress

On DATE CARDINAL of the applicants , PERSON was examined by a commission of medical experts from ORG ( tabipler odası ) . According to the report drafted by the commission , the applicant suffered somatic and psychological problems . The commission opined that the medical findings were a result of physical ill - treatment inflicted on the applicant .

On DATE the public prosecutor at ORG filed a bill of indictment charging the applicants under LAW of LAW with aiding and abetting the members of the ORG .

On DATE the applicants ' representative filed a petition with ORG , alleging that the applicants had been tortured while in detention at the Batman Security Directorate . He requested the court to order ORG to send the prison doctor 's medical reports of CARDINAL DATE .

On DATE the Batman prison administration submitted copies of the medical reports to the office of the Batman public prosecutor who transferred them to ORG .

On DATE ORG held the first hearing against the applicants . Before the court , the applicants denied the charges and stated , inter alia , that they were forced to sign statements while blindfolded at ORG . They also denied the veracity of the content of these statements .

ORG read out the medical reports of CARDINAL DATE drafted by the doctor of the Batman prison and asked the applicants ' representative to make comments if he wished . The representative submitted that he had no objections to their contents . He further added that there was no evidence against the applicants other than the statements taken by the police at ORG and that these statements were inadmissible as evidence against the applicants given that they had been obtained through ill - treatment . With reference to the medical report of CARDINAL DATE , the applicants ' representative formally requested the court to initiate a criminal investigation ( suç duyurusu ) against the police officers responsible for the ill - treatment of the applicants and against the doctor who examined them following their release from police custody , for failing to note their injuries in his medical report of CARDINAL DATE .

ORG dismissed the request of the applicants ' representative . It decided that the applicants had to lodge their complaints themselves with the local public prosecutor 's office . It further decided that that there was no ground for the continued detention of the applicants and ordered their immediate release .

On DATE ORG acquitted the applicants . The court held that there was no evidence against the applicants , other than the statements taken at ORG which was insufficient to ground a conviction .

On DATE the International Law and Foreign Relations Directorate of ORG sent a letter to the public prosecutor 's office in Batman informing the latter about the applicants ' allegations before ORG .

Following the letter of CARDINAL DATE , the Batman public prosecutor initiated a preliminary investigation into the applicants ' allegations . He took statements from the accused police officers who denied the charges against them . The police officers alleged that the applicants sustained their injuries on account of the crowd in the prison vehicle while they were being taken to ORG .

On DATE the Batman public prosecutor filed a bill of indictment with ORG ( Ağır Ceza Mahkemesi ) charging QUANTITY police officers , who were on duty at the Batman Security Directorate at the relevant time , with inflicting ill - treatment on the applicants . The charges were brought under LAW . The defendants were accused of illtreatment of the applicants in order to obtain a confession from them . The public prosecutor however stated in the indictment that there was not sufficient evidence against the police officers which could prove that the applicants had been ill - treated in police custody .

The Batman Assize Court held CARDINAL hearings in the case against the police officers between DATE and CARDINAL DATE . The court heard oral evidence from the accused police officers , the witnesses and the applicants .

On DATE the ORG acquitted the accused police officers holding that there was insufficient evidence to conclude that the accused had ill - treated the applicants in police custody .

On DATE the ORG judgment became final .

A description of the relevant domestic law at the material time can be found in GPE and Others v. GPE , no . LOC and QUANTITY , § CARDINAL , DATE and Elçi and Others v. GPE , no . CARDINAL/CARDINAL and LOC , § § CARDINAL and CARDINAL , CARDINAL DATE .


David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza

The applicant was born in DATE and lives in GPE .

On DATE PERSON instituted civil proceedings for the dissolution of a co - ownership before ORG .

On DATE the case was transmitted to ORG .

On CARDINAL DATE the parties to the proceedings ( the applicant , ORG GPE , GPE , GPE , GPE ) lodged with the court their proposal for the dissolution of the co - ownership .

On DATE the court stayed the proceedings as PERSON had died . On CARDINAL DATE PERSON 's representative requested the court to resume the proceedings since PERSON 's heirs had been determined by ORG decision of DATE .

On DATE the court summoned GPE and ORG ( “ the plaintiffs ” ) to participate in the proceedings .

NORP Several subsequent hearings , namely of DATE , CARDINAL DATE , DATE and DATE were adjourned as some of the parties had not been properly summoned .

On DATE the court held a hearing and heard evidence from an expert as to the technical condition of the real property and possibilities of dividing it , and from some other parties , including the applicant .

On DATE the court decided to obtain another expert opinion .

On DATE the expert , PERSON , submitted an evaluation report on the real property in question .

CARDINAL subsequent hearings , scheduled for DATE and DATE , were adjourned as some of the parties had not been properly summoned .

On DATE a hearing was held . The applicant stated that the plaintiffs had erroneously declared their shares in the co - ownership and he evoked in this context the real property sale contract concluded in DATE between PERSON and GPE ( sellers ) and the members of the applicant 's family ( buyers ) . The court adjourned the hearing and obliged the parties to substantiate the above statement within DATE .

On DATE the court adjourned a hearing as the applicant and some other parties failed to appear , although they had been properly summoned .

On DATE the court adjourned a hearing as some of the parties had not been properly summoned and the applicant submitted a medical certificate justifying his absence .

On DATE the court held a hearing and heard evidence from some of the parties to the proceedings .

On DATE the court issued a preliminary decision ( postanowienie wstępne ) wherein it determined the co - owners and their shares in the real property .

On DATE the applicant appealed against the above decision .

On an unspecified date the court requested the applicant to rectify the formal lacunae in his appeal . On DATE the applicant complied with the court 's order .

On DATE ORG held a hearing and quashed the impugned decision .

On DATE the court adjourned a hearing as some of the parties had not been properly summoned .

DATE and DATE no actions were taken by the court apart from dealing with PERSON 's request for legal aid .

On DATE and DATE hearings were held and the court heard evidence from the plaintiffs and the applicant .

On DATE the court adjourned a hearing as CARDINAL of the plaintiffs failed to appear although he had been properly summoned .

The applicant requested an inspection of the real property .

On DATE the court summoned GPE to specify his and ORG 's shares in the co - ownership .

On DATE and DATE A.C. complied with the court 's order .

On DATE the court adjourned a hearing at the request of CARDINAL of the plaintiffs and the expert .

On DATE the court held a hearing and again heard evidence from the expert and summoned the parties to indicate the way in which the co - ownership should be dissolved .

On DATE the applicant sought the withdrawal of the judge dealing with his case .

On DATE ORG dismissed the applicant 's request . The applicant lodged an interlocutory appeal against this decision .

On DATE ORG dismissed the applicant 's interlocutory appeal .

On CARDINAL DATE a hearing was held at which some of the parties , including the applicant , requested the court to exempt them from court fees and appoint a legal - aid lawyer to represent them in future proceedings . The court ordered them to complete their request and submit information on their financial situation within DATE .

On DATE the court dismissed the above request as neither the applicant nor the other parties had submitted any information on their financial standing .

On DATE the court held a hearing . The applicant again challenged the ownership title of the plaintiffs .

On DATE the court ordered another expert opinion . The applicant lodged an interlocutory appeal against this decision but it was rejected as inadmissible .

On DATE the expert , ORG , submitted her opinion .

On DATE the court granted the applicant 's request for an inspection of the real property and adjourned the hearing , as in respect of CARDINAL of the parties there was no proof that the summons had been served .

On DATE the court dismissed a request by the applicant motion to provide security for the claim by putting on deposit a sum equivalent to the rents collected from the current tenants of the property . The applicant 's interlocutory appeal against this decision was rejected due to formal lacunae .

On DATE an inspection of the real property took place .

DATE and DATE the court held QUANTITY hearings at which it heard evidence from the parties and ordered them to indicate the manner in which the co - ownership should be dissolved .

On DATE the court decided to obtain another expert opinion to establish the possibilities of creating individual premises in the disputed real property . The applicant appealed against this decision but his appeal was rejected as inadmissible .

On DATE the expert returned the case file and informed the court that he would not be able to prepare the expert opinion for health reasons .

On DATE the court sent the case file to another expert and ordered him to prepare an expert opinion within DATE .

DATE . On DATE the court allowed the expert 's request for an extension of the time - limit for the submission of the expert opinion until DATE .

On DATE the case file was sent to ORG in connection with the proceedings before ORG .

On DATE the expert submitted his opinion . The proceedings are pending .

On DATE the applicant lodged a complaint under LAW on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) ( “ the CARDINAL Act ” ) . On DATE ORG confirmed that the proceedings in question had indeed been lengthy . The court considered that an award of MONEY ( ORG ) would be adequate ( approx . CARDINAL ( ORG ) , according to the exchange rate at the relevant time ) . The court stated , inter alia , that the measures taken by ORG on DATE and DATE , CARDINAL DATE and DATE not only infringed the relevant provisions of the civil procedure code but also appeared to be futile , as some of them had had to be taken for a second time . The court further stated that the fact ORG had failed to establish the scope of the claim for DATE could only be explained by the fact that the court had contributed to the excessive length of the proceedings .

As the proceedings continued to be lengthy , on DATE the applicant lodged a second complaint under LAW . On DATE ORG confirmed that the proceedings in question had been lengthy and ordered ORG to conduct an immediate examination of the applicant 's motion for the inspection of the real property in question .

As the proceedings continued to be lengthy , on DATE the applicant filed another complaint under LAW . On CARDINAL DATE ORG dismissed the applicant 's complaint on the ground that there had been no undue delay in the proceedings DATE ( the date of the previous decision ascertaining that there had been an undue delay ) and the time of the lodging of the complaint by the applicant .

The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings , in particular the applicable provisions of LAW , are stated in the ORG 's decisions in the cases of ORG v. GPE no . CARDINAL/CARDINAL ( dec . ) , § § DATE , ECHR CARDINAL-V ; NORP v. GPE no . CARDINAL ( dec . ) , ORG CARDINAL-VIII ; and the judgment in the case of ORG v. GPE , no . CARDINAL , § § DATE , ECHR CARDINAL-V.


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

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

The applicant ran a trout farm in ORG , GPE , which had been built with money lent by ORG plc ( “ the Bank ” ) . He lived on the farm LOC with his wife . In DATE , the ORG made a further advance of MONEY ( GBP ) ; this was increased to GBP CARDINAL,CARDINAL and then to GBP CARDINAL . The ORG ’s lendings were secured by a legal charge on the property which entitled the ORG to claim possession of the property in the event that the applicant and his wife did not comply with an agreed payment schedule .

The applicant and his wife failed to make payments . On DATE , the ORG brought proceedings against the applicant and his wife seeking possession of the farm . It also claimed a monetary sum in the amount of the money still owed to it . By DATE re - amendment of its Particulars of Claim , the ORG sought in the alternative a declaration that the property stood charged in equity ( in the event that the court agreed with the applicant ’s assertion that the legal charge was not valid ) .

The applicant and his wife initially filed a joint defence to the ORG ’s claim and acted without legal representation . Subsequently , they ceased to co - operate formally and separate amended Defences were submitted . The applicant ’s wife was seeking to argue that she had entered into the legal charge as a result of the undue influence of her husband , about which the ORG knew or should have known . In other aspects the applicant and his wife took identical positions , namely that the ORG ’s legal charge was invalid because it was blank at the time of execution and that the ORG had increased the amount of money lent to them without consultation and without their authority . They also pursued an identical counterclaim , claiming a declaration that the legal charge was invalid , damages for deductions wrongly made for bank charges and damages for negligence on the basis that the ORG had exercised undue pressure on them to borrow money from it rather than ORG with which they had also been in negotiation .

In DATE , the applicant and his wife separated .

The applicant and his wife sought separate representation . His wife was granted legal aid throughout the proceedings which followed . The applicant was granted legal aid for the purpose of defending the ORG ’s claims and making a counterclaim from DATE . As was the standard practice , his legal aid certificate was limited to obtaining further evidence and counsel ’s opinion on the merits of his defence and the merits and likely quantum of his counterclaim . It was necessary for the applicant to apply to extend his legal aid certificate if he wished legal representation for his trial .

In DATE or DATE , the trial was listed to start on DATE , and to take DATE . On DATE , counsel for the applicant gave the opinion that , while there was a reasonable prospect of establishing that the legal charge was invalid having regard to the fact that the details of the property were entered into the document schedule after the applicant and his wife had signed , there was no defence to the monetary claim and the applicant would be required as a practical result to sell the farm to meet the monetary judgment . The applicant ’s defence that he had not consented to the increase in the loan was entirely without substance while his counterclaim , even if well - founded ( which was not the case ) , was only worth MONEY . He concluded that “ it is not possible to say that it is reasonable for the ORG to support [ the applicant ’s ] case . I am quite satisfied that the costs of the defence of this action will far outweigh any benefit to the [ applicant ] ” .

On DATE , the applicant ’s application to extend legal aid for the trial was received by ORG . On DATE , ORG wrote to the applicant to inform him that it was considering whether to discharge his legal aid certificate because “ in view of ORG ’s Opinion it is not considered you have a reasonable prospect of success in this action ” . The letter indicated that if the applicant thought his legal aid certificate should not be discharged , he should write to the legal aid office within DATE of the date of the letter , and stated that ORG had asked the applicant ’s solicitor not to do any work in the meantime . The applicant received the letter on DATE .

On DATE , the applicant wrote to ORG stating why he considered his legal aid should not be discharged , submitting inter alia that :

“ The case is extremely complex with volumes of evidence , and documents , over DATE , with CARDINAL court appearances to date on pre - trial matters and discovery . At present I do not have my files , and evidence , and would explain that I can not cope with taking on such a mountain of paperwork , preparing my case , representing myself at such short notice , bearing in mind that the trial date is DATE for DATE . ”

On DATE , the applicant ’s legal aid certificate was discharged .

On DATE , the applicant sent ORG his notice of appeal against the decision to discharge his legal aid , and asked them to deal with the appeal without a hearing and using written information only .

On DATE , the trial began at ORG , with the applicant representing himself . The ORG and the applicant ’s wife were each represented by solicitors and counsel .

There had been CARDINAL pre - trial directions hearings . On DATE , the judge had ordered that Mr S. , the applicant ’s solicitor at the time the charge was made , be permitted to lodge a statement and that the applicant ’s accountant leave his working file in court . On DATE , the judge ordered that Mr S disclose his working file .

The trial concluded on DATE . On DATE , judgment was delivered in favour of the ORG , finding that the applicant ’s wife had not been subject to undue influence by her husband , that the ORG ’s loan had not been less advantageous than the one offered by the ORG and that the legal charge entered into by the applicant and his wife was valid . The judge ordered that the applicant and his wife give up possession of the property by DATE and pay the ORG the sum of ORG CARDINAL,CARDINAL.CARDINAL . He rejected the applicant ’s application for leave to appeal to ORG and also his application for a stay of execution of the possession order .

On DATE , the applicant appealed to ORG against the order and applied for a stay of execution of its possession order . He was assisted by his former solicitors in this process under the ORG and Assistance or Green Form scheme ( which provided for advice and assistance short of representation in court ) . His grounds of appeal were inter alia that the judge had erred in the orders made by him on DATE and DATE , alleging that the order concerning the accountant ’s file had the result that the ORG and his wife ’s lawyers had access to privileged documents and that Mr S. and a witness for the ORG had perjured themselves .

On DATE , ORG wrote to the applicant and indicated that his appeal would be dealt with shortly by the area committee . A second letter from the ORG dated DATE stated that the appeal would be considered by the area committee on DATE . On DATE , the applicant telephoned the ORG . On DATE , the ORG wrote to the applicant in connection with his appeal of DATE against the discharge of his legal aid certificate . The letter stated : “ I apologise for the fact that we did not action your faxed notice of appeal ( received in this office on DATE ) prior to ORG on DATE . I consider that we were at fault in either not processing the appeal prior to the hearing or , if that was not possible , at least notifying [ the applicant ] of that fact . ” The letter indicated that the appeal would not be considered , as the court had found against the applicant , informed him that he could apply for legal aid in connection with the application for leave to appeal , and stated that his communication was being treated as a complaint under Stage I of ORG complaints procedure .

On DATE , ORG acknowledged the applicant ’s application for leave to appeal and informed him that his application might be decided by a Lord Justice without a hearing , but that in most cases ORG would direct that the application be listed for oral hearing in court , and that if ORG directed an oral hearing , the applicant would be notified in due course of the hearing date .

The applicant and his wife did not give up possession of their property as ordered and , accordinly , on DATE the ORG obtained a warrant of possession , authorising an eviction , if necessary , on DATE . It appears that the applicant rang ORG to inform them of this fact and to impress upon them the urgency of holding a hearing in his case . It appears that ORG informed him that ORG would decide whether or not it would grant leave to appeal or a stay before DATE .

On DATE , the applicant telephoned ORG indicating that he wished to appeal against the refusal to grant him legal aid and was notified that his appeal would be heard on DATE . On DATE , the applicant notified ORG by telephone and in writing that his application for legal aid had been refused , and that his appeal against the refusal was due to be heard on DATE .

On DATE , the applicant completed a notice of appeal against the refusal to grant him legal aid in connection with his appeal . Also on DATE , the applicant ’s former solicitors wrote to ORG in support of the applicant ’s appeal .

On DATE , ORG wrote to the applicant notifying him that his application for leave to appeal would be heard on DATE . The applicant received the letter on DATE . Also on DATE , ORG wrote to the applicant and confirmed that his appeal against the refusal to grant legal aid in connection with his appeal would be heard on DATE .

On DATE , the applicant travelled to GPE and presented his application for leave to appeal in person , with the assistance of a PERSON friend ( an unqualified adviser ) whose first acquaintance with the case was TIME of the appeal . Although the application for leave to appeal was ex parte , the ORG was represented by counsel at the hearing of the application . The applicant applied for an adjournment of the application for leave to appeal , in order that his appeal against the refusal to grant legal aid might be heard . ORG refused to grant an adjournment but indicated that if , in the course of the application , it appeared that legal representation was necessary , they would keep in mind the application for an adjournment . After hearing the applicant , ORG dismissed the application for leave to appeal . It noted insofar as he appealed concerning the orders of CARDINAL and DATE , he should have appealed against those orders at the time . As regarded the allegations that privileged documents were disclosed , it found that there was no evidence that any such material from his accountant had been referred to by the judge or taken into account by him in reaching his decision and noted that no objection had been made during the trial to the use of any of those documents . It also found that no reference had been made to privileged material held by the solicitor PERSON beyond what was inevitable and proper in the circumstances .

On DATE , the applicant telephoned ORG and informed them that he would not be pursuing his appeal against the refusal of legal aid for the appeal , as the application for leave to appeal had been dismissed .

The ORG took possession of the farm pursuant to the warrant for possession , and sold it in order to recover the moneys due to them under the legal charge .

In order to qualify for legal aid at the relevant time , the applicant had to satisfy ORG :

( CARDINAL ) that he was financially eligible for legal aid in that his disposable income and capital fell below that prescribed for these purposes ( reg . CARDINAL of ORG ( General ) Regulations DATE , SI CARDINAL ) ;

( CARDINAL ) that he had reasonable grounds for taking or defending the proceedings or making any counterclaim therein ( section CARDINAL(CARDINAL ) of LAW DATE ( the “ legal merits ” test ) ;