Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva

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

On DATE the applicant , who had consumed alcohol , listened to loud music in his flat , disturbing his neighbours . At TIME , a neighbour asked him to cease the disturbance . The applicant apparently lowered the sound only for a while . As the disturbance continued , TIME and TIME the neighbour made several calls to the police seeking assistance .

Police officers P. and PERSON were dispatched to the address . From their statements it appears that they made CARDINAL visits , the second one being at TIME

At TIME , having heard loud music emanating from the applicant 's apartment , the police officers rang the doorbell and shouted “ Police ! Open the door ! ” . In reply , the applicant required to see their identity documents and a warrant authorising their entry into his apartment . The police officers insisted to be let in . According to the applicant , they started hitting the door . Fearing that they might break in , the applicant eventually opened .

According to the applicant , upon entering the police officers battered him violently .

According to the police officers , the applicant threatened them with a knife which necessitated the use of physical force against him .

The police officers eventually handcuffed the applicant and took him to the police station . His name was entered in the detained persons ' register , with a note that he had “ assaulted the patrol with a knife and resisted [ orders ] ” .

He was released TIME , at TIME on DATE .

Later on DATE the applicant had PERSON photographs of his body taken which confirmed that he did not have fractures .

Police officers P. and PERSON drew up reports on offences punishable in summary administrative proceedings ( акт за административно нарушение ) , dated DATE and duly registered in the police reports register . According to the reports , a knife had been seized from the applicant at TIME DATE and the applicant had refused to comply with a police order to cease a disturbance to the public and had thus committed violations of the relevant regulations .

According to the applicant , he never received copies of the above mentioned reports . In his view , it was possible that some of the documents allegedly documenting an assault with a knife might have been created later and backdated .

On DATE the applicant was examined by a forensic medical doctor who found numerous contusions , haematomas and scars on the applicant 's head , chest , abdomen area and on his limbs . There were CARDINAL bruises on the applicant 's head , CARDINAL on his back , more on his arms and legs . The medical certificate stated , inter alia , that all injuries had been inflicted by a blunt object . It was possible that they were inflicted in the manner and at the time indicated by the applicant .

The applicant was eventually fined by the municipal authorities for causing a night disturbance .

On DATE the applicant submitted a complaint to ORG ( окръжна военна прокуратура ) stating that he had been ill - treated by police officers . He enclosed a medical certificate . A preliminary inquiry was opened .

On DATE a prosecutor instructed local police in GPE to investigate the complaints .

On DATE police officers PERSON submitted written statements to their superior . They maintained that the applicant had assaulted them with a kitchen knife . PERSON stated that he had hit the applicant several times in his chest and then used a special technique to retrieve the knife as the applicant had been trying to stab him in his right hand .

On DATE the police reported to the prosecutor , summarising the police officers ' version of the facts . He added that in the absence of witnesses , it was not possible to draw up reports on offences punishable in summary administrative proceedings under LAW .

It appears that the prosecutor did not undertake any other steps in DATE .

On DATE the applicant complained of the delay to the higher prosecutor .

On DATE the applicant 's lawyer requested the examination of CARDINAL witnesses – the applicant 's brother who had taken him from the police station upon his release and CARDINAL of his neighbours .

On CARDINAL DATE the applicant and the witnesses were heard by a police officer and given the opportunity to submit written statements . CARDINAL of the applicant 's neighbours stated that in TIME of DATE he had heard someone shouting for help and had seen , at the opened door of the applicant 's apartment , a man delivering blows to someone inside . He had then seen the applicant being escorted by CARDINAL men into a police car . Another witness gave evidence from which it transpired that the applicant 's front door had not been forced by the police , as initially maintained by him .

On DATE the applicant 's lawyer complained of the delay in the inquiry .

On DATE the competent prosecutor at ORG terminated the inquiry and refused to institute criminal proceedings against the police officers . He summarised the facts as presented by the police officers involved and then stated the blows administered on the applicant during the incident were justified under the relevant provisions which allowed the use of force and handcuffs to put an end to a rampant behaviour or other serious violation of public order .

A copy of the decision was sent to the applicant . The accompanying letter advised the applicant that he had the right to appeal to ORG ( военно-апелативна прокуратура ) in GPE . The applicant did not appeal .

In the meantime , on DATE the applicant submitted an application to the former ORG alleging , inter alia , violations of Articles CARDINAL , CARDINAL and CARDINAL of the LAW in relation to the events of DATE .

By final decision of DATE the ORG , to which the competence to examine the application was transferred by virtue of LAW No . CARDINAL to the LAW , declared the application inadmissible for failure to exhaust domestic remedies , since the applicant had failed to appeal against the regional prosecutors ' decision of DATE ( see PERSON v. GPE ( dec . ) , no . PERSON , DATE ) .

On DATE the applicant filed with ORG an appeal against the decision of DATE of ORG .

On DATE ORG dismissed the appeal , upholding the decision of DATE .

The applicant appealed to ORG .

On DATE a prosecutor from that service dismissed the appeal as the prosecution of the police officers concerned was time - barred .

He commented on the substance of the complaints , noting that the applicant 's allegation that the police had forced his front door had been contradicted by witness evidence and also finding that the applicant 's injuries corresponded to the police officers ' version of the events . The prosecutor also found that in any event the prosecution of the police officers concerned was time - barred , which excluded any possibility of pursuing the matter .

Under LAW read in conjunction with Articles CARDINAL - CARDINAL of LAW , as in force at the relevant time , the prosecution of a police officer accused of ill - treatment which had not resulted in serious permanent or life - threatening injury was precluded after the expiry of DATE , depending on whether the ill - treatment could be characterised as having affected the victim 's health or had only caused pain .


ORG On DATE at TIME the officers of the PERSON brigade of gendarmerie received a telephone call from PERSON informing them that an attack had just been carried out at her and her husband 's farm at ORG ) . The perpetrator of the attack had been fatally wounded .

When the officers arrived at the scene of the incident , they found the body of a man , identified at the morgue as being that of PERSON , the applicants ' son and brother . The deceased had been a militant nationalist on the run , whose photograph had appeared on police posters offering a reward for information leading to his arrest .

NORP was immediately placed in police custody , but was released at CARDINAL TIME on CARDINAL DATE . His wife was also questioned . A post - mortem report was drawn up on CARDINAL DATE . The following day the ORG public prosecutor sought ballistic and toxicological reports , which were submitted on DATE and CARDINAL DATE .

ORG In CARDINAL communiqués issued DATE after the killing , ORG ( PERSON ) - an organisation that had been dissolved in DATE - described the deceased as a " brother in arms " and a " martyr for the nationalist cause " , deliberately assassinated by R.

On DATE Mr and PERSON left Corsica under false identities as the local police commander ( capitaine de gendarmerie ) had advised them that he could not guarantee their safety . The furniture disappeared from the R.s ' farm on DATE .

ORG On DATE the police investigation concluded that there was sufficient serious and consistent evidence to justify charging NORP with fatal wounding , but that he had apparently been acting in self - defence .

On DATE the deceased 's parents laid a complaint against NORP for intentional homicide and filed an application to join the proceedings as civil parties . They wished to discover the circumstances of their son 's death and requested a reconstruction of the events ; they did not seek damages . On DATE they lodged security for costs of MONEY ( ORG ) fixed by an order of DATE .

ORG On DATE the R.s ' farm , which had been under police surveillance , was partly destroyed by a bomb attack . The investigation opened into this incident was closed on DATE under the amnesty of DATE .

ORG On DATE an investigation was opened into an offence of fatal wounding by persons unknown . On the same day Judge PERSON was assigned to the investigation and the prosecutor 's office requested an inquiry and a reconstruction of the events .

ORG The applicants were interviewed on DATE . On DATE the prosecutor 's office called for evidence to be taken from the doctor who had signed the death certificate and the senior officer of the gendarmerie . These CARDINAL persons were questioned on DATE .

The civil parties were summoned to appear on DATE , but did not do so because their lawyer was unable to be present .

On DATE the investigating judge sought the opinion of the doctors who had carried out the post - mortem examination . They submitted their report on DATE . On DATE evidence was taken from the police officers concerned , as witnesses .

ORG On DATE the R.s ' farm - which had been purchased in DATE by ORG - was placed under seal .

ORG On DATE the applicants were interviewed on the subject of the medical experts ' report . They maintained their complaint and continued to stress the need for a reconstruction .

On DATE NORP was summoned to give evidence , but he requested the judge to excuse him and did not appear on DATE for the interview .

ORG In additional submissions of CARDINAL DATE the public prosecutor called for fresh expert reports , in particular a ballistic report . DATE the civil parties also sought further investigative measures .

On DATE the investigating judge visited FAC , near GPE , to question NORP as a " witness assisted by a lawyer " ( temoin assisté ) and his wife as an ordinary witness .

ORG On DATE the judge rejected the applications for investigative measures submitted by the prosecutor 's office and civil parties . The prosecutor 's office and the applicants challenged his decision .

PERSON , who had been appointed to another post , was replaced on DATE by Judge PERSON .

ORG The ORG public prosecutor and the applicants appealed to ORG of ORG , which ruled , in a preliminary decision of CARDINAL DATE , that the refusal to carry out the investigative measures requested adversely affected the civil parties ' rights .

In accordance with the principal public prosecutor 's submissions , ORG quashed Judge PERSON 's decision and ordered further investigative measures including a reconstruction of the events at the scene of the incident in the presence of NORP and CARDINAL ballistic experts . It assigned the task of carrying out the reconstruction to Judge PERSON and ordered that the costs of the expert reports be advanced out of public funds .

ORG On DATE the prosecutor 's office lodged further submissions calling for PERSON and PERSON to be brought to the scene of the incident for the purposes of the reconstruction . NORP was interviewed as a " witness assisted by a lawyer " in GPE on DATE .

ORG On DATE the gendarmerie found that the seals put on the farm had been broken and that an item of evidence , the front door , which bore bullet marks , had been stolen . In a report submitted DATE the senior police officer indicated that this had made it impossible to carry out the reconstruction under satisfactory conditions , in view in particular of the fact that there was no furniture in the house .

The investigating judge visited the scene on DATE . He questioned NORP in GPE on DATE .

ORG On DATE the ORG public prosecutor 's office called for the opening of an investigation in respect of the destruction of the seals and the theft of the door by persons unknown . This investigation was subsequently terminated by a decision finding that there was no case to answer .

ORG On DATE the investigating judge ordered an inquiry into the removal of the furniture and the disappearance of the door . He visited the site on DATE and interviewed the applicants the following day in connection with the preparations for the reconstruction .

In the course of this inquiry the judge questioned the police officers concerned on DATE , PERSON and PERSON son on DATE and on DATE the prosecutor who had been called out on TIME of the killing . On DATE he gave instructions for evidence to be taken .

ORG The former public prosecutor of ORG told him on DATE that it had been planned from the beginning of the investigation to organise a reconstruction .

The reconstruction , which had been scheduled for DATE and organised with extensive security precautions , did not take place because of the absence of NORP and the police officer who had conducted the inquiry and the applicants ' refusal to attend in such circumstances .

ORG The following day the applicants requested that coercive measures be taken in regard to Mr and PERSON

On DATE the prosecutor 's office called for the transmission of the documents to ORG for a ruling on the new applications and a decision on the further procedure .

ORG On DATE Judge PERSON forwarded the file to ORG , which , on DATE , ordered that it be communicated to the principal public prosecutor . On CARDINAL DATE the latter called for a reconstruction of the events .

ORG On DATE the applicants laid a complaint concerning the destruction of the seals put on the R.s ' house and the theft of the front door ; they also applied to join the proceedings as civil parties . This complaint for theft , concealment and destruction of evidence was declared inadmissible on technical grounds .

ORG On DATE ORG of ORG held a hearing . At the opening of the hearing the applicants protested at the presence in the courtroom of the lawyers of NORP , a " witness assisted by a lawyer " . By an interlocutory decision of DATE , the court allowed the objection and reserved judgment on the remaining issues until DATE .

ORG NORP appealed on points of law to ORG and requested an expedited hearing of his appeal .

ORG decided on DATE to stay the proceedings pending the decision of ORG . The same day the President of the ORG instructed the investigating judge not to take any new steps until further notice .

ORG On an application by the public prosecutor , and then by ORG , ORG , by a decision of DATE , quashed the CARDINAL investigative measures effected after DATE .

ORG On DATE ORG dismissed NORP 's appeal , which it declared inadmissible on the ground that his status as a " witness assisted by a lawyer " did not confer on him the standing of party to the proceedings .

The status of " witness assisted by a lawyer " introduced by Law no . CARDINAL - CARDINAL of DATE was intended to afford persons who are the subject of a complaint laid with a civil party application the same guarantees as those accorded to persons charged ( inculpés ) or , to use the current terminology , placed under judicial investigation ( mises en examen ) .

ORG On an application by its principal public prosecutor , ORG decided on DATE to remove jurisdiction from ORG . On grounds of public safety it transferred the proceedings instituted against persons unknown for fatal wounding to ORG .

ORG That ORG examined the case file as communicated by Judge PERSON by his order of CARDINAL DATE .

On DATE it gave a preliminary decision in which it allowed the principal public prosecutor 's application and held " that it was not necessary to carry out the reconstruction ordered by ORG " . The reconstruction could no longer " be effected in satisfactory conditions . In addition the participation of PERSON and PERSON in such events would entail unacceptable risks in view of the insecurity reigning in the region in question according to police reports " .

It annulled all the measures taken with a view to the reconstruction , delegated its President to continue the additional investigative measures decided on DATE and ordered that from that point the costs should be borne by the civil parties , who might be required to lodge further security .

ORG By letter of CARDINAL DATE the President of ORG asked the applicants to inform him what steps they wished to have carried out and on DATE ORG communicated the investigation file to the prosecutor 's office for its final submissions .

ORG On DATE the GPE prosecutor 's office called for an order finding that there was no case to answer . On DATE the applicants lodged pleadings seeking a reconstruction of the events .

In a decision of DATE ORG found that NORP had been acting in self - defence and that there was not sufficient evidence to justify charging anyone with the offence that was the subject of the proceedings . It therefore ruled that there was no case to answer .

ORG The applicants lodged an appeal on points of law against this decision . In a judgment of DATE their appeal was declared inadmissible by ORG on the ground that the pleadings had not been lodged with the registry of ORG but had been sent directly to ORG without using the services of a lawyer with a right of audience before ORG . The grounds of appeal had not therefore been validly submitted to ORG . The decision was served on the applicants on DATE .

ORG LAW provides as follows :

" All those who have personally suffered from the damage directly caused by a serious offence ( crime ) , less serious offence ( delit ) or petty offence ( contravention ) may bring civil party proceedings ( action civile ) to seek compensation for such damage .

Discontinuance of such proceedings can neither halt nor stay the criminal proceedings , without prejudice to the cases provided for in paragraph CARDINAL of Article CARDINAL [ of the present Code ] . "

However , in the case of petty offences , only the prosecuting authority may set in motion the criminal proceedings .

Under paragraph CARDINAL of LAW ,

" [ Criminal proceedings ] may , in addition , be discontinued by settlement where express provision is made for this possibility . They may likewise be discontinued in the event of withdrawal of the complaint where the complaint was an essential condition for the proceedings to be brought . "

ORG A civil party application ( constitution de partie civile ) , which has the effect of staying the proceedings in the civil courts , may be made at any time to the investigating judge or the indictment division up to the decision concluding the investigation . It may be opposed by the prosecuting authority , by the person placed under investigation or by another civil party , or the investigating judge may , of his own motion , declare it inadmissible by an order which must state reasons and which is open to appeal ( LAW ) .

The decision of the investigation authority allowing a civil party application to join the proceedings does not prejudge that of the trial court as to the admissibility of that application .

ORG The intervention of a civil party may be motivated solely by the wish to support the public prosecution and to ensure that the guilt of the accused is established . For this reason , according to the case - law , a civil party application may be admissible even if no claim for damages is possible . As a civil party , the victim is kept informed of the steps of the investigation , may appeal against decisions which harm his interests and has access to the investigation file under the same conditions as the person placed under investigation .

ORG When an investigation that has been opened on the basis of a civil party complaint is terminated by an order finding that there is no case to answer , any person who was the subject of the complaint may seek damages in the criminal and civil courts and request that criminal proceedings be brought against the civil party for false accusation ; the prosecuting authority may also summons the civil party to appear in the criminal court before which the investigation was conducted . If the civil party application is held to have been improper or vexatious , the court may impose a civil fine not exceeding FRF CARDINAL,CARDINAL ( LAW ) .


Remainder inadmissible;Violation of Art. 2 (procedural aspect);Non-pecuniary damage - award;Dommage matériel - claim dismissed

András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky

The applicants were born in DATE , DATE , DATE and DATE respectively . They all live in the town of Cizre .

In DATE PERSON , PERSON , PERSON and ORG were killed . The applicants were related to these people as follows : PERSON is the brother of PERSON ; PERSON was the wife of PERSON ; PERSON is the father of PERSON and PERSON was the wife of ORG . The application was brought by the applicants on their own behalf and on behalf of the remaining heirs of the CARDINAL deceased men .

The facts of the case , particularly concerning events which took place on DATE , are disputed by the parties .

The facts as presented by the applicants are set out in Section B below ( paragraphs CARDINAL - CARDINAL ) . The Government ’s submissions concerning the facts are summarised in Section C below ( paragraph CARDINAL).The documentary evidence submitted by the applicant and the Government is summarised in Section D ( paragraphs CARDINAL ) .

NORP The CARDINAL relatives were working as tradesmen , buying food , tea and tobacco from the area near the NORP - NORP border and selling them in the nearby town of GPE and the surrounding areas .

On DATE the CARDINAL men were travelling from Cizre to Silopi in a vehicle which was being driven by ORG . They were stopped by gendarmes at a checkpoint QUANTITY outside the town of Silopi . CARDINAL unmarked ORG cars were parked nearby . At that point , a certain Mr DATE , who lived in Cizre and who knew the CARDINAL men , was travelling from Cizre to Silopi in a minibus and saw the CARDINAL men arguing with a group of gendarme officers in plain clothes . PERSON and PERSON , who used to be ORG members but who had been working for the gendarmerie since their arrests , were also with the gendarme officers . PERSON . Güven and PERSON were referred to in the area as “ confessors ” . The applicants’ relatives were then put into vehicles . They were joined by gendarme officers and the confessors and the cars began driving in the direction of Cizre .

Mr A.M. then saw something being thrown out of CARDINAL of the vehicles . He stopped and picked it up and realised that it was PERSON driving licence . The vehicles then turned off the main road and started heading towards GPE . Mr A.M. did not see the vehicles again .

According to the information the applicants subsequently gathered from a number of villagers living in GPE village , CARDINAL of their relatives had jumped out of the moving vehicle and tried to run away , but was shot by CARDINAL of the confessors or the gendarme officers . His body was put in the boot of CARDINAL of the vehicles .

The CARDINAL surviving men were then taken to the gendarme station in GPE , which is located QUANTITY from Cizre . Before sunset they were taken in the same vehicles to a place nearby and were shot and killed .

The killing was witnessed by a certain PERSON and her female friends who were working in a nearby field .

DATE , DATE , Mr TIME told the applicants what he had seen and gave them PERSON driving licence . The applicants then contacted the police and the gendarmerie in Silopi , but were unable to obtain any information from them . The same day PERSON told the applicants about the fate of their relatives . The applicants then contacted the gendarmerie and informed the offices of the prosecutor and the governor .

On DATE gendarmes found the bodies of the CARDINAL men covered with soil and stones . They had all been shot dead and their heads smashed with stones . An on - site report prepared DATE stated that the killings had probably been carried out by members of the ORG in a revenge attack because the deceased had been village guards . However , the deceased had never agreed to become village guards , contrary to the advice of the gendarmerie .

No other action was taken in the area by the gendarmes . They did not question the applicants or any of the persons present in the vicinity .

Furthermore , no steps were taken by the Cizre prosecutor who , on CARDINAL DATE , sent the investigation file to the prosecutor at ORG who had jurisdiction to continue the investigation .

The investigation carried out by the prosecutor in ORG was limited to the sending of occasional letters to the gendarmerie , asking them to search for the perpetrators . The gendarmerie replied that they had been unable to find the perpetrators despite their searches .

The number plate of the vehicle in which the applicants’ relatives had been travelling on DATE was subsequently changed , and the vehicle continued to be used by confessors and other plain clothes officials in Cizre .

The authorities unsuccessfully searched for the CARDINAL confessors , GPE . NORP and PERSON . The requests by the prosecutor to be informed of their whereabouts were ignored by the gendarmerie for a long time . Mr PERSON was subsequently found and questioned by a police officer . Although the applicants were able to find Mr PERSON ’s address and gave it to the authorities , no steps were taken to question him . During the eventual trial of the CARDINAL confessors for homicide ( see paragraphs DATE below ) , neither of them ever appeared before ORG ( hereafter “ the trial court ” ) to give evidence .

The DATE ’s submissions were based on the documents drawn up by the national authorities in the course of the investigation , the trial and the compensation proceedings , which documents are summarised below .

On DATE the bodies of the CARDINAL men were recovered by gendarmes and identified by villagers who were present in the area at the time . The gendarmes found CARDINAL PERSON - type spent bullet cases around the bodies . It was concluded in an on - site report prepared by the gendarmes that the CARDINAL men had probably been killed by members of the ORG in order to deter other members of their families from becoming village guards . It was established that the CARDINAL men had been killed where they were found .

DATE the bodies were examined in situ by a doctor who concluded that the CARDINAL men had been killed by gunshot wounds . The doctor , who observed a large number of bullet entry and exit holes on the bodies , deemed it unnecessary to conduct a full autopsy ; the cause of death was established and that was sufficient . A bullet which had entered and exited the body of PERSON was secured for further examination . The Cizre prosecutor was also present at the time of the doctor ’s examination .

Also DATE the Cizre prosecutor decided that his office lacked jurisdiction to investigate the killings “ perpetrated by members of the illegal organisation ” and sent the file to ORG prosecutor ’s office ( “ the ORG prosecutor ” ) .

The ORG prosecutor instructed the gendarmerie on DATE to search for the perpetrators of the killings .

According to a ballistic examination , the CARDINAL spent bullet cases had been fired by CARDINAL separate weapons .

On a number of occasions DATE and DATE , the gendarmerie reported to the ORG prosecutor that they had been “ unable to find the perpetrators of the killings which , in all likelihood , had been carried out by members of the NORP ” . On DATE a number of soldiers had visited the place where the bodies had been found in DATE , but they had been unable to establish the identities of the perpetrators .

On DATE a lawyer representing the applicants wrote to the ORG prosecutor and asked him to investigate the killings . The lawyer pointed to the fact that none of the relatives of the deceased men or anyone living in the area where the bodies had been found had been questioned by the authorities . He also informed the prosecutor that Mr A.M. and PERSON had witnessed the incidents .

The applicants , who were questioned by the ORG prosecutor on DATE , stated that after the killing of their relatives they had been warned by the security forces not to make any complaints . They also told the prosecutor that no investigating authority had ever questioned them .

The same day Mr A.M. and PERSON were also questioned by the ORG prosecutor . They gave the prosecutor their eyewitness accounts of the events DATE which are summarised above ( see paragraphs CARDINAL and CARDINAL above ) – leading up to the killing of the CARDINAL men .

Also DATE the ORG prosecutor decided that he lacked jurisdiction to investigate the killings because , although it had been stated by his opposite number in Cizre in DATE that the killings had been carried out by members of the ORG ( see paragraph CARDINAL above ) , it was now being alleged by the applicants that their relatives had been killed on account of their refusals to become village guards . The CARDINAL confessors and “ their accomplices whose identities could not be determined ” were referred to in this document as the “ accused ” . The ORG prosecutor then forwarded the file to the office of the Cizre prosecutor .

The applicants and the QUANTITY eyewitnesses , Mr A.M. and PERSON , were questioned by the Cizre prosecutor on various dates in DATE and DATE and DATE . They repeated their respective complaints and eyewitness accounts of the events . Mr TIME also told the prosecutor that he would be willing to identify the CARDINAL confessors in an identity parade .

On DATE Abdulhakim Güven , CARDINAL of the CARDINAL confessors allegedly involved in the killings , was questioned by a police officer . He denied the accusations against him .

The other confessor , PERSON , was questioned by the Cizre prosecutor on DATE . He also denied the accusations and stated that he had been performing his military service at the material time .

On DATE the Şırnak prosecutor filed an indictment with ORG ( “ the PERSON court ” ) , charging the CARDINAL confessors with the offence of multiple homicide .

In the course of its first hearing on DATE the PERSON court sent letters rogatory to ORG in GPE and Batman where the CARDINAL defendants were living , and asked those courts to question the defendants .

On DATE ORG questioned PERSON who disputed the allegations and stated that at the time of the killings he had been in prison .

During a hearing held on DATE , Mr DATE and PERSON repeated their eyewitness accounts before the PERSON court . The same day the PERSON court issued an arrest warrant for PERSON . It also ordered that ORG be photographed with a view to showing his photographs to the eyewitnesses .

On DATE PERSON was arrested and questioned by the ORG pursuant to the letters rogatory mentioned above . He denied the accusations and maintained that he had been performing his military service at the time of the killings . He was released DATE .

On DATE the lawyer for the applicants sent a letter to the Şırnak court , requesting permission for his clients to join the proceedings as interveners . This request was accepted on DATE .

During the subsequent stages of the proceedings it transpired that on DATE that is , DATE before the killings – Abdulhakim Güven had been released from prison for DATE with the permission of ORG so that he could “ help the security forces with their anti - terrorism operations ” . In fact , on various dates in DATE he had been released from prison to help the security forces .

The PERSON court had to postpone a number of its hearings to wait for the photographs of Abdulhakim Güven .

After having sent a number of reminders , on DATE the PERSON court was finally provided with the photographs of ORG taken on DATE . During a hearing held on DATE , the eyewitness Mr A.M. was shown the photographs but was unable to identify ORG . Mr TIME told the PERSON court that he had last seen Mr Güven more than DATE and that at that time Mr Güven had had a long beard ; the person in the photograph did not have a beard .

At the same hearing the prosecutor asked the PERSON court to acquit the defendants . The PERSON court accepted that request and acquitted the defendants for lack of sufficient evidence . It considered , in particular , that although Mr A.M. had been in a minibus with a number of other persons , he had been the only person to witness the alleged abduction of the CARDINAL men . In any event , the defendants had been working as informers and helping the security forces . Such informers were not well regarded by the residents of the region and , as such , the testimony of Mr A.M. implicating the confessors in the killings was disregarded . According to the PERSON court , the fact that Abdulhakim Güven was not in prison at the time of the killings did not prove that he had taken part in them . He had been helping the security forces with their operations and , as such , it was not logical that he would be involved in a killing . The PERSON court also decided to inform the relevant prosecutor to continue with the search for the perpetrators .

The applicants appealed . In their appeal petition they referred to the obligations under LAW and CARDINAL of the Convention to carry out effective investigations into incidents of killings , and alleged that the investigation into the killing of their relatives had been flawed . They maintained that the eyewitnesses had been consistent throughout the criminal investigation . The confessor PERSON had lied to the investigating authorities when he said that he had been in prison on DATE ( paragraph CARDINAL above ) . The PERSON court had contented itself with showing the photographs of CARDINAL of the defendants to an eyewitness and had not summoned the defendants to the trial . Furthermore , the investigating authorities had failed to follow up leads concerning the involvement of the gendarmerie and the security services and had only prosecuted the CARDINAL confessors . They argued that the trial court had also failed to ensure an identity parade so that the eyewitnesses could have seen and identified the CARDINAL confessors .

On DATE ORG rejected the appeal and upheld the CARDINAL GPE acquittals .

In their letter of CARDINAL DATE the applicants informed the ORG that the same CARDINAL confessors ( that is , Mr Abdulhakim Güven and Mr PERSON ) , a high - ranking army official and CARDINAL intelligence officers working for the gendarmerie had been indicted in DATE and put on trial for the killing of their CARDINAL relatives as well as the killing of a number of other persons at around the same time .

DATE . On DATE the second to fourth applicants , together with a number of other heirs of their deceased relatives , submitted petitions to ORG office and claimed compensation under the provisions of ORG resulting from Terrorism and LAW ( Law no . DATE of DATE ) . In their petitions the CARDINAL applicants repeated their allegations of ORG involvement in the killings .

On DATE the Şırnak Governor ’s office partially accepted the compensation claims made by the CARDINAL applicants in respect of the killings of their relatives “ by members of the ORG ” . The second applicant PERSON Gasyak was awarded approximately MONEY ( ORG ) in respect of the killing of her husband PERSON . The third applicant PERSON was awarded approximately ORG CARDINAL,CARDINAL in respect of the killing of his son PERSON . The fourth applicant PERSON was awarded approximately EUR CARDINAL,CARDINAL in respect of the killing of her husband ORG . Other heirs of these CARDINAL deceased men were also awarded various sums of money .


Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Violation of Art. 5-1;Non-pecuniary damage - award

David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza;Vincent A. De Gaetano

The first applicant was born in DATE , and is the son of the second applicant , who was born in DATE . They live in PERSON . The first applicant was DATE at the time of the events giving rise to the present application . According to the second applicant , he has an intellectual impairment and has been medically supervised by a psychiatrist since childhood . In view of his condition , he received his schooling at home .

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

According to police records , the first applicant was arrested by police officers at TIME on DATE after they were called to a private apartment building where the applicant had already been apprehended by some of the residents .

According to the applicants , he had been taken to the building forcibly by CARDINAL persons of his acquaintance who had accosted him in the street TIME and assaulted him . Their intention had been to push him from the roof of the building , but their presence had been detected by CARDINAL of the residents . Believing that there was a robbery in progress , these men seized the first applicant and beat him . He had already sustained some injuries when the police arrived . The applicants maintained that he received a further beating from the police .

According to the ORG , at the time of his arrest the first applicant was already under police suspicion of having committed a number of thefts . An ordinance had been issued against him charging him under Article CARDINAL ) of LAW . As he had failed to present himself to the police to be informed of the charge , an ordinance to search for him was issued by a prosecutor on DATE . On TIME the first applicant was caught in the act of theft inside an apartment building . As for his injuries , the Government speculated that these could have been caused by the persons who apprehended him , or may have been self - inflicted when the applicant had tried to conceal himself in a ventilation duct .

The applicants alleged that following his arrival at LOC police station , the first applicant was punched by police officers and beaten with rubber truncheons in an attempt to make him confess to a number of thefts . He was repeatedly sworn at and refused food , drink and access to the toilet . No medical treatment was provided for his injuries .

The second applicant stated that she came to the police station that DATE to visit him and to give him food and clothes , but was not permitted to see him . The applicants maintained that DATE , CARDINAL DATE , the first applicant was taken by the police to a marketplace for certain procedural acts . No lawyer was present . The applicant 's other son witnessed this , and noted his brother 's visible injuries . TIME , TIME , the first applicant was questioned by police officers in the presence of a lawyer as well as of the second applicant . During the interrogation , the first applicant complained of pain in his head and of strong nausea . It appeared to the second applicant that he had been badly beaten , and he was hungry . Despite his complaints , he was required to answer the questions put to him and was refused access to the toilet . After the interrogation he was returned to his cell , having received no medical assistance .

On TIME , the second applicant returned to the police station , expecting that her son would be released by TIME , which marked the end of the CARDINAL-hour period during which he could be detained without a court order . She was denied access to the building . The first applicant was again taken to the marketplace for undisclosed purposes . He was brought back at TIME The second applicant , assisted by CARDINAL lawyers from ORG , requested the first applicant 's release , which was initially refused . According to police records , he was eventually released at TIME that day .

DATE after his release , the first applicant underwent a medical examination . This recorded a bruise covered with a red - brown crust measuring QUANTITY on the right side of his head , and an adjacent one measuring QUANTITY . A similar bruise measuring QUANTITY was found in his right parietal region . Multiple oval bruises were found on his right , central and left lumbar region , covered by a brown crust and each measuring QUANTITY . The doctor noted the first applicant 's explanation of what happened to him ( see paragraphs CARDINAL above ) and concluded that this was consistent with the injuries recorded . The applicant attended a hospital for treatment for DATE .

The second applicant made several written complaints to the authorities regarding the events set out above . On DATE she complained to ORG and to the investigating judge of the ill - treatment of her son by the police . She referred to his intellectual disability and to the fact that he was a minor . On DATE she lodged a complaint with the investigating judge and described the events of DATE . She referred , inter alia , to Articles CARDINAL ( CARDINAL ) and CARDINAL ( CARDINAL ) of LAW ( see below ) and asked that those responsible for abusing her son be punished . On DATE the second applicant complained to ORG that her apartment had been searched DATE by the police , who had refused to identify themselves or show a search warrant . She requested that those responsible be identified and punished .

All of these complaints were investigated by prosecutor PERSON of the PERSON prosecutor 's office . He interviewed the applicants , other family members , the lawyer who attended the interrogation on DATE , the applicants ' neighbours , and the police officers involved . By a letter of CARDINAL DATE the prosecutor informed the second applicant that he had decided not to initiate a criminal investigation since there was no evidence that the police had committed a crime . He added that “ in view of the irregularities that have been allowed , a note was sent to the LOC police station ” .

On DATE the second applicant challenged the prosecutor 's decision before the investigating judge . In her complaint , she ; that she had been refused access to him ; that he had been detained for DATE hours contrary to the law ; and that an unlawful search had taken place at the applicants ' apartment on DATE . She criticised the prosecutor 's answer as very general . Although he mentioned that the police had committed “ certain irregularities ” , he had not explained what these were and had not provided a copy of the note sent to the LOC police station . Moreover , the prosecutor had not sent a reasoned decision , as required by law . The complaint referred to both the substantive and procedural obligations of the authorities under the Convention in respect of the first applicant 's ill - treatment and the obligation to respect the inviolability of their home .

On DATE the investigating judge of ORG rejected the complaint as unfounded . He found that the first applicant had been accused of a number of thefts and that all the investigative acts had been carried out within the framework of lawfully conducted criminal proceedings . Since the first applicant had failed to appear before the investigator after several summonses had been sent to him , it had been necessary to be compel his attendance at the police station . All procedural acts that had required authorisation had been properly authorised . Moreover , the prosecutor had fully and objectively verified the complaints concerning ill - treatment and had found no confirmation of the allegations .

That decision was final . It was sent to the second applicant on DATE and reached her on DATE .

The relevant domestic law has been set out in GPE v. GPE ( no . CARDINAL , § CARDINAL , DATE ) .

In addition , the relevant provisions of LAW read as follows at the material time :

“ CARDINAL . Short - time arrest is the deprivation of liberty for a short period , but not exceeding TIME , in accordance with the law . ... ”

... CARDINAL . Detention of a person in accordance with the present Article can not exceed CARDINAL hours from the moment when the deprivation of liberty started . ”

ORG for the Prevention of Torture has visited GPE several times , and has inspected LOC police station . The following extract , taken from the report of the visit of DATE , is relevant to the present case :

“ CARDINAL . The right of persons in police custody to have access to a doctor ( including to CARDINAL of their own choice ) , is still not expressly guaranteed by law . In the report on the DATE visit , the ORG considered that the form of words in LAW , paragraph CARDINAL , sub - paragraph CARDINAL of the CCP ( i.e. the right “ to submit requests , including for independent medical assistance ” ) fell short of meeting the ORG 's long - standing recommendation in this respect . Many persons who were in police custody in the context of the DATE events complained that , despite repeated requests for independent medical assistance , they had been refused such assistance . In some cases , police staff allegedly denied access to a doctor in order to obtain a confession or other statement from the injured detained persons concerned . Further , it appeared in a few cases of persons who had presented visible injuries that medical care had not been provided to them on the grounds that they had not specifically requested it . Such situations not only deprive detained persons of a safeguard which can play a significant role in the prevention of ill - treatment , but it may also have serious repercussions on the health of persons in police custody . Clearly , access to an independent doctor should not be left to the discretion of police officers . ”


Violation of Art. 6-1;Non-pecuniary damage - award;Pecuniary damage - claim dismissed

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

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

On DATE the ORG of LOC convicted the applicant of theft , robbery and forgery and sentenced him to DATE and DATE imprisonment . This judgment was upheld by ORG on DATE . The courts found , inter alia , that the applicant had paid for a car , purchased from Mr O. , with counterfeit MONEY . The court further indicated that Mr O. might bring civil proceedings against the applicant .

NORP In DATE Mr O. lodged a civil claim against the applicant , seeking to recover his car from the applicant . It was received by the ORG on DATE .

On DATE Judge PERSON of the ORG forwarded a copy of the statement of claim to the administration of the detention centre where the applicant was being detained ( remand prison PERSON ) . In a cover letter , the judge instructed the administration to hand the statement of claim to the applicant and obtain his written observations in reply by DATE .

According to the Government , on DATE the applicant was transferred to correctional colony OM-CARDINAL/CARDINAL where he was to serve his sentence . That colony was situated in GPE , GPE region . The documents sent by Judge PERSON to the applicant were forwarded to his new address in that colony . The colony received them on DATE .

On DATE , the ORG examined the civil claim in the applicant 's absence . On DATE ORG , by a default judgment , ordered the applicant to return the car to Mr O. The court indicated , inter alia , that the defendant ( the applicant ) had been properly notified of the date of the hearing but had failed to appear . Mr O. was present and made oral submissions to the court .

NORP The applicant alleged that he had been notified of the hearing only on DATE . The following day he had approached ORG seeking the reopening of the proceedings and reversal of the judgment on the ground that the hearing had taken place in his absence . The applicant had also requested legal aid and insisted on his personal presence at the hearing . On DATE his letters were dispatched to ORG by the administration of the correctional colony . They were received by the court on DATE .

On DATE the court set a date for hearing the applicant 's request and informed the applicant thereof . The Government maintained that the notification had been received by the applicant on CARDINAL DATE .

On DATE the applicant wrote a letter to ORG asking them to examine the case in his presence and provide him with a lawyer . That letter was dispatched to the court by the head of the correctional colony . His cover - letter was dated DATE ; however , according to the postal stamp , the applicant 's letter was actually posted on DATE .

On DATE the hearing took place in the applicant 's absence . Mr. PERSON was present and made oral submissions . The applicant alleged that he had been unable to attend the hearing for want of a court 's “ conveyance request ” ( заявка на этапирование ) ordering the correctional colony administration to escort him to the court .

By a decision of DATE the ORG refused to re - examine the case . The court found that the applicant had not presented any new evidence that might affect the court 's findings of DATE . The applicant 's argument that he had not been properly notified of the hearing and his request for legal aid were left open in the court 's decision . DATE , that decision was sent to the applicant .

Following ORG refusal to reopen the proceedings , the applicant appealed to ORG , complaining about the first - instance court 's decisions of DATE and DATE . He insisted that his personal presence at the hearing of DATE had been necessary to prove that the deal with Mr. PERSON 's car was legal and valid , and that the proceedings should therefore be reopened . He also asked ORG to order his conveyance from the correctional colony in order to take part in the hearing .

On DATE Judge PERSON informed the applicant of the date of the appeal hearing , by way of a simple notice . The judge indicated that the applicant 's personal presence at the hearing was not mandatory , and that bringing him to the court hearing was “ inopportune ” .

On DATE ORG examined the appeal in absentia and upheld the judgment of DATE and the decision of DATE . The court indicated that , under LAW , proceedings ending with a default judgment should only be reopened if CARDINAL conditions were met : ( a ) the absent party had been unable , with good reason , to attend the hearing or to inform the court in a timely fashion thereof , and ( b ) the absent party produced evidence that might affect the conclusions of the default judgment . The court further indicated that the default judgment of DATE had been fully based on the courts ' findings in the criminal case against the applicant . Lastly , ORG established that the applicant 's submissions about the circumstances of the deal with the car would not have had any impact on the findings of the default judgment . In conclusion the court stated as follows :

“ The argument that [ the applicant 's ] absence in court was excusable because he had been unable to inform the court in a timely fashion of the valid reasons for his absence can not be accepted as a sole ground for quashing the judgment since the default judgment may only be quashed if both of the above - mentioned conditions have been met . Furthermore , [ the applicant ] does not explain why he was not able to inform the court that he was serving a prison sentence . ”

As a consequence , ORG dismissed the appeal and upheld the default judgment .

NORP Parties to civil proceedings could appear before a court in person or act through a representative ( LAW in force until DATE ( “ the old ORG ” ) .

Article CARDINAL of the old ORG provided that a summons was to be served on the parties and their representatives in such a way that they would have enough time to appear at the hearing and prepare their case . Where necessary , the parties could be summoned by a telephone call or a telegram . Pursuant to ORG and CARDINAL , court summonses were to be sent by post or by courier and served on the person who was a party to the case . The party was to sign the second copy of a summons which was to be returned to the court . If a summons could not be served on a party , it was to be served on an adult family member who lived with the party . If a party was absent , the person who delivered the summons was to note on the second copy of the summons where the party could be found ( Article CARDINAL ) .

Article CARDINAL required that civil cases be heard in a court session with mandatory notification of the case to all parties . Article CARDINAL provided that court sessions started with the court secretary informing the judge of the parties who had received summons but had failed to appear . The secretary had to inform the judge of the reasons for their absence . Pursuant to Article CARDINAL , if a party to the case failed to appear and there was no evidence that the party had been duly summoned , the hearing was to be adjourned .

Article CARDINAL provided that if a defendant was duly notified of the hearing but failed to appear , the court might proceed with the case , provided that the plaintiff did not object . Article CARDINAL provided that a default judgment could be challenged either by lodging a request for the reopening of the case with the first - instance court , or by appealing directly to the court of appeal . Under LAW , a decision of the first - instance court not to reopen the case was subject to an appeal as well . Under LAW , the reopening of a case was possible if CARDINAL conditions were met : ( a ) the absent party had been unable , with good reason , to attend the hearing or to inform the court in a timely fashion thereof , and ( b ) the absent party produced evidence which might have affected the outcome of the case .

The Penitentiary Code provides that convicted persons may be transferred from a correctional colony to an investigation unit if their participation is required as witnesses , victims or suspects in connection with certain investigative measures ( Article CARDINAL ) . The Code does not mention the possibility for convicted persons to take part in civil proceedings , whether as plaintiffs or defendants .

LAW ( Law of DATE ) , together with ORG ) , in force until DATE , provided that free legal assistance in civil cases could be provided to certain categories of litigants and for certain categories of disputes such as labour disputes , disputes concerning disability pensions , work - related accidents , etc . ( sections CARDINAL and CARDINAL respectively ) . Disputes involving prisoners similar to the one at the heart of the present case were not mentioned amongst them . However , the law stipulated that free legal assistance could be provided for litigants who had no means to pay for it , on the initiative of the advocate 's office , the investigator or the court ( section ORG ) of LAW ) . If free legal assistance was granted by the court , the lawyers ' fees had to be paid by the ORG .


Violation of Article 6 - Right to a fair trial

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

The first applicant is the mother and the remaining CARDINAL applicants are the sister and brother of PERSON , who was employed by ORG in GPE . On DATE a number of armed persons raided the ORG ' premises and killed PERSON and CARDINAL others .

On DATE the applicants wrote to ORG ( “ the Ministry ” ) and claimed compensation in accordance with LAW on the ground of the ORG 's failure to protect PERSON right to life . ORG rejected the claim on DATE .

On DATE the applicants filed a compensation claim against ORG before ORG ( hereafter “ the GPE court ” ) .

On DATE the GPE court partly allowed their claims for compensation and ordered the Ministry to pay certain sums of compensation to the applicants in respect of pecuniary and non - pecuniary damage .

On DATE the applicants asked the Ministry to pay them the amounts of compensation awarded by the GPE court .

The Ministry appealed against the decision on DATE and asked for an interim injunction suspending the execution of the GPE court 's decision . In his written submissions the prosecutor at ORG agreed with ORG and requested that an interim injunction be granted and that the decision of the GPE court be quashed . The prosecutor 's written submissions were not forwarded to the applicants .

On DATE ORG granted the injunction sought by ORG and on DATE it quashed the GPE court 's decision of DATE .

The case was remitted to the GPE court , which decided on DATE to reach the same conclusion as it had in its decision of DATE . It ordered the Ministry to pay the same amounts of compensation to the applicants as those awarded in its previous decision . ORG appealed . The applicants also appealed and argued that the amounts of compensation ordered by the GPE court were no longer satisfactory owing to the low rates of interest .

On DATE ORG ( NORP PERSON ) dismissed the ORG 's appeal and accepted the applicants ' claims for higher rates of interest in respect of non - pecuniary damage .

A request by ORG for rectification of the GPE court 's decision of DATE was rejected on DATE .

On DATE the GPE court adopted a decision in line with the decision of ORG in so far as it concerned the rates of interest for non - pecuniary damage , and awarded compensation to the applicants . On DATE the ORG appealed against the decision . According to the information provided by the ORG , the appeal proceedings are still pending .

On DATE the ORG paid the applicants the amounts of compensation awarded by the GPE court in its decision of DATE and the interest awarded in the same court 's decision of DATE . The total sum paid to the CARDINAL applicants was CARDINAL new NORP liras ( TRY – MONEY ( ORG ) at the time ) .

DATE Procedure provides that anyone who has suffered damage as a result of an act committed by the administrative authorities may claim compensation from the authorities within DATE of the alleged act . The victim must first apply to the relevant administrative entity and claim compensation for the damage before he or she can lodge a compensation claim in the administrative courts . If this claim is dismissed in whole or in part or if no reply is received within DATE , the victim may bring administrative proceedings .

Article CARDINAL of LAW provides :

“ ( CARDINAL ) The authorities shall be obliged to adopt a decision without delay or to take action in accordance with the decisions on the merits or a request for a stay of execution issued by ORG , the ordinary or regional administrative courts or the courts dealing with tax disputes . Under no circumstances may the time taken to act exceed DATE following service of the decision on the authorities .

( CARDINAL ) Where the authorities do not adopt a decision or do not act in accordance with a decision by ORG , the ordinary or regional administrative courts or the tax courts , a claim for compensation for pecuniary or non - pecuniary damage may be brought before ORG and the relevant courts against the authorities .

( CARDINAL ) In the event of deliberate failure on the part of civil servants to enforce judicial decisions within DATE [ following the decision ] , compensation proceedings may be brought both against the authorities and against the civil servant who refuses to enforce the decision in question . ”


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)

The applicant was born in DATE and lives in ORG .

In DATE the applicant initiated a land dispute with her neighbours .

On DATE the proceedings , which had taken place before the courts of CARDINAL levels of jurisdiction , were completed by a final ruling of ORG allowing the applicant ’s claim in part .

In the course of the proceedings , there was CARDINAL remittal of the case from the appellate court to the first - instance court for fresh consideration . The courts also ordered CARDINAL forensic technical expert examinations .

There were several adjournments in the proceedings due to the parties’ failure to appear for hearings .