Remainder inadmissible;Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage)

David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Pavlina Panova;Zdravka Kalaydjieva

The applicants were born in 1981, 1979 and 1959 respectively and live in Harmanli.

The first two applicants are the sons, and the third applicant is the widow, of Mr Todor Dimov Todorov (alias Chakara), who died on 10 or 11 December 2003 in the course of a police operation for his arrest.

Between 1973 and 2001 Mr Todorov, born in 1955, was convicted six times of various offences. In 1973 he was convicted of inflicting bodily harm of medium severity. In 1974 he was convicted of forming a group intending to engage in sabotage, of trying to cross the border illegally, of stealing public and private property and a motor vehicle, and of unlawfully possessing firearms and ammunition. In 1983 he was convicted of inflicting minor bodily injury on an official in connection with the performance of the latter’s duties. In the same year he was convicted of stealing fiftythree lambs. In 1990 he was convicted of trying unlawfully to export valuables. In 1998 he was convicted of stealing two lambs and unlawfully possessing firearms.

On 5 July 2001 Mr Todorov was convicted of systematically letting out his house for lewd acts, and sentenced to six months’ imprisonment. The conviction and sentence became final on 21 October 2003.

On an unspecified date in November 2003 the Harmanli police were notified of that latest conviction and sentence, and dispatched two officers to arrest Mr Todorov with a view to sending him to prison to serve the sentence. The officers went to his house in Harmanli, informed him that he was due to be imprisoned, and asked him to come with them. Mr Todorov, visibly calm, asked the officers to wait for a few minutes, so that he could prepare his luggage. The officers waited for about ten minutes outside the house. When they went in to arrest Mr Todorov, they saw that he had fled. After that they went back to the police station and reported the incident to the head of the Harmanli police and to the Harmanli District Prosecutor’s Office.

The account of the circumstances surrounding Mr Todorov’s death is based on the findings of the investigation carried out by the military prosecuting and investigating authorities (see paragraphs 3043 below).

In early December 2003 the Supreme Cassation Prosecutor’s Office ordered the police to carry out a series of operations for the arrest of individuals with final convictions and sentences. As a result, in the morning of 10 December 2003 the head of the Harmanli Regional Police Department assembled three groups of officers to arrest Mr Todorov. The first group had to check his house in Harmanli, the second had to check the sheep pen of an associate of his, and the third had to check Mr Todorov’s country house, situated near Harmanli. All three groups were armed with their service pistols. They were told that Mr Todorov might try to escape or put up armed resistance, and instructed to use their weapons only as provided for by law.

At about 7.15 a.m. the three groups set out to carry out their respective tasks. The first and the second group were unable to find Mr Todorov. The third group, which consisted of three officers, two of whom were in uniform (one wearing a bulletproof vest) and one in plain clothes, arrived near Mr Todorov’s country house at about 7.25 a.m. The house was surrounded by service buildings. All of those were erected on uneven terrain sloping steeply from the north-west to the south-east. The officers stopped their car in front of the gate, close to which they saw a big pile of used car tyres. They noticed that the gate was closed and started to whistle and shout. Several dogs in the yard started barking and Mr Todorov’s mother came out of one of the service buildings. One of the officers presented himself and told her that they were looking for her son. Then she opened the gate and held the dogs back. The officers moved towards the house, the one with the bulletproof vest walking in front, and went through another gate between several service buildings. At that point they spotted Mr Todorov on the steps outside the house, carrying an unidentified weapon. He also saw them, waved to them to go away and fired a shot, apparently in their direction. Two of the officers hid behind the service buildings and one behind some building materials scattered around the yard. He then ran back to the car and radioed the headquarters in Harmanli about the incident. At about 7.30 or 7.45 the head of the three officers ordered them to remain where they were and not to take further action.

Shortly after that the head of Harmanli Regional Police Department directed all police teams in the town towards Mr Todorov’s country house and requested assistance from the police in two neighbouring towns, Haskovo and Svilengrad. The Haskovo police dispatched an emergency response team consisting of six officers, and the Svilengrad police sent eight officers divided into two teams. The head of the Svilengrad police also went to the scene of the incident.

At about 9 a.m. the Harmanli police, some of whom had armed themselves with long barrel weapons, surrounded the house and cut off all access points, waiting for the emergency response team from Haskovo to arrive. It seems that Mr Todorov fired several shots at them, with one of the bullets hitting the mudguard of a police car. The police did not fire back.

Shortly after that the Haskovo team arrived and positioned themselves around the house. The head of the team informed the Minister of Internal Affairs of the situation. The Minister decided to dispatch the special antiterrorism squad and psychologists of the Ministry of Internal Affairs’ Psychology Institute. The Svilengrad police also arrived a few minutes later. Most of them took up position around the house. A fire engine also came to the scene.

The head of the Haskovo team decided to try to establish contact with Mr Todorov through relatives of his. At about 9.30 a.m. Mr Todorov’s sister was called in and asked to help the police. At the same time Mr Todorov’s elder son (the first applicant) also arrived. He offered to take his father a mobile phone so that he could communicate more easily with the police. The head of the Haskovo police team refused, apparently for fear that the first applicant might be taken hostage by Mr Todorov. Some time after that the two officers hiding behind the service buildings managed to get out of the yard with the help of Mr Todorov’s mother.

At about 11 a.m. Mr Todorov’s sister approached the house and brought her mother out. She spotted Mr Todorov, who waved at her. She understood the gesture to mean that he wished to talk to somebody on the phone, and asked the police to allow her to take a mobile phone or a megaphone to Mr Todorov. Her request was turned down with the explanation that the police were waiting for psychologists, who would try to establish contact with Mr Todorov, to arrive.

Shortly after that two psychologists of the Ministry of Internal Affairs’ Psychology Institute arrived. They started gathering information about Mr Todorov’s personal history, character and relations with his family, in order to decide whether his relatives might be able to exert a positive influence on him. The first applicant again asked for permission to take his father a mobile phone, but his request was turned down due to security concerns.

Shortly after that the special antiterrorism squad arrived. They gathered information about the internal structure of the house from Mr Todorov’s relatives, with a view to determining safe ways of approaching the house.

Around 11.30 a.m. the psychologists tried to make contact with Mr Todorov from a height situated at about one hundred metres from the house, using a megaphone. As communication from such a distance was difficult, at the suggestion of the first applicant they advanced to twentyfive or thirty metres from the house. They tried to persuade Mr Todorov to surrender. He requested to speak with his mother and his sister, but his request was denied. He then apparently said that if anyone was to get hurt, it would be him. As the psychologists believed that the first applicant would be able to exert a positive influence on Mr Todorov, they tried to continue the negotiations with his participation until 2.30 p.m. As Mr Todorov did not reply for about forty minutes, they gave up. According to the first applicant, the reason for the discontinuation of the negotiations was the fact that the megaphone’s battery had run out.

Around 3.30 p.m. the police decided to attack the house, because they believed that Mr Todorov had prepared a secret escape route and might try to flee. The head of the anti-terrorism squad split his men into two groups. The first, consisting of six officers, was to attack from the northwest, from high ground, and the second from the service buildings. The first group was moving in a column, with the first officer carrying a protective shield. They fired about thirty smoke bombs at the house, with a view to forcing Mr Todorov out of it. However, as the windows and the doors were covered with linoleum, cardboard and blankets, most of the smoke bombs failed to penetrate. Mr Todorov started firing at the first group, and this forced them to take cover in a ditch. The head of the squad ordered the second group to fire at the house to divert Mr Todorov’s attention and Mr Todorov fired back at them. The skirmish lasted for about an hour, after which both groups of officers retreated. At about 5 p.m. the Haskovo police, who were hiding behind the pile of tyres, were also ordered to retreat to a safe distance.

After that the police tried to resume the negotiations. A group of officers and the first applicant advanced to about ten or fifteen metres from the house and invited Mr Todorov to continue negotiating. He did not reply and the police gave the megaphone to the first applicant, who called upon his father to surrender. Again, there was no reply. At that point the police saw that as a result of the earlier attack a room on the first floor of the house had caught fire. The psychologists and the first applicant then retreated. The first applicant shouted towards the house “Father, please come out unarmed and surrender, so that this whole episode can be over”, but his supplication went unanswered.

At about 6 p.m. the head of the antiterrorism squad ordered his men to blow up holes in the walls of the house. They used stunt grenades. According to his later statements, this led to explosions and a short skirmish. According to the first applicant, after 5 p.m. Mr Todorov did not talk or shoot back at the police, or react to their attacks in any other way.

After that the head of the antiterrorist squad informed the Minister of Internal Affairs about the latest developments. The Minister called a halt to all actions pending the arrival of the Secretary General of the Ministry, general B.B., on the spot. In the meantime, police vehicles were placed on a height facing the house, so as to shed light on the scene with their headlights.

The Secretary General arrived at about 8.30 or 9 p.m. and took command of the operation. He ordered the police to blow a hole in the walls of the house. The police carried out the order. According to a later statement by the Secretary General, after the first explosion there was a second one, coming from the upper levels. As a result, the roof caught fire and quickly burned down. Apparently several unsuccessful attempts were then made to enter the house, but it is unclear in what exactly they consisted. Meanwhile, an individual who had worked on the house and who had heard about the incident on the radio came to the police and told them that Mr Todorov had warned him that the house was booby-trapped.

Around 10 p.m., on the orders of the Secretary General, a border police unit was called in to monitor the house and its surroundings with nightvision devices. The monitoring continued until the next morning.

Later, following a discussion with other senior officers, the Secretary General ordered the police to use a rocket propelled grenade launcher, in order to diffuse any possible booby traps and speed up the search of the house. The launcher was brought at about 1.30 a.m. on 11 December 2003, and given to the antiterrorism squad. Between 2 and 2.30 a.m. an officer of the squad fired fifteen rocket propelled grenades at the lower parts of the house and a room on the first floor, which made a big breach in the wall. It was decided to await daylight to attack.

Around 6 or 7 a.m. the police formed a thick cordon around the house. They started entering the house and checking the ground and the first floor. When they reached the attic floor, using a fireladder, they saw the legs of Mr Todorov’s charred body. The operation was then terminated, the house was sealed off, and the incident was reported to the military prosecuting authorities.

The same day, 11 December 2003, the Plovdiv Regional Military Prosecutor’s Office opened an investigation into the above events. An investigator carried out an inspection of the scene of the incident and took photographs.

The next day, 12 December 2003, a doctor from the forensic ward of the Haskovo hospital performed an autopsy on Mr Todorov’s body. He noted the following:

“The body is split in two and the vertebral column is severed at the fifth or the sixth vertebra. The body is as a whole charred. The configuration of the skull is intact. The hair is missing. There are remains of charred soft tissue on the calvaria and the face. The lower jaw is broken at the level of the right ramus mandibulae, with broken fragments and teeth. The skull bones are crumbly, charred. The configuration of the brain is intact, as if it has been parched. The brain tissue is not damaged and there are no haematomas in the cranial cavity. The skin at the neck is charred. Part of it, near the trachea and right part of the neck, is missing, which allows one to see the charred underlying neck muscles. The upper third of the thorax is preserved, but the soft tissue is fully charred. The lungs and the heart are still connected to their holders; they have shrunk, they are parched and dry with charred surfaces and hard to cut. The surrounding tissue of the section has no visible structure. The liver, shrunk and charred, reduced in size and parched, lies beneath. The vertebral column is segmented at the level of the fifth or the sixth vertebra, and what remains of it, including the lumbar part, has charred vertebrae covered with remains of charred tissue. The remaining two thirds of the abdominal wall are missing. The pelvis, including the wings of the iliums, the ischium and the pubic bone, is broken into pieces. The symphysis is separated. Parts of the intestines, charred, and remains of fatty tissue were found inside the pelvic cavity. Limbs: the right arm is strongly flexed at the elbow joint; the bones in the joint are apart. The wrist is flexed and the fist is clenched. A safetyloop from a hand grenade was found on the third finger, between the first and the second phalanges. The skin and the muscles of the hand are charred. The palm and two thirds of the forearm of the left hand are missing, and the remains have an uneven edge and are strongly flexed at the elbow joint. The soft tissue is charred. The skin and the muscles on the entire surface of the right thigh are charred. The skin on the front surface of the knee and on the front surface of the upper two thirds of the shank is preserved. The soft tissue on the back surface of the shank is charred to the bone, and the back surface of the heel is burned. The foot is encased in a [militarytype] shoe. One can see the remains of trousers and of woollen socks. The skin and the muscles of the left leg and of the thigh are charred. The left shank has been affected in the same way as the right one, with a [militarytype] shoe and a charred sock on. There are greyish metal pellets driven into the tissue and the bones of the pelvis area. Two such pellets were taken out of the left ilium and given to the investigator. We made Xrays of the body in the autopsy room... On the images one can see ovalshaped foreign bodies with similar diameters driven into the tissue, mostly in the pelvis and the thorax. One can see a metal safetyloop attached to the third finger of the right hand. ...”

In the following months the authorities interviewed all officers who had taken part in the operation: thirtynine officers from the Harmanli Regional Police Department, six officers from the Haskovo Regional Directorate of Internal Affairs, sixteen officers from the Svilengrad Regional Police Department, thirtyone officers from the special antiterrorism squad, nineteen border police officers, three psychologists from the Ministry of Internal Affairs’ Psychology Institute, and the Secretary General of the Ministry of Internal Affairs. They also interviewed the applicants and other eyewitnesses, and commissioned a number of expert reports.

On 3 August 2004 the investigator in charge of the case proposed that the prosecuting authorities discontinue the investigation. On 3 September 2004 the Plovdiv Regional Military Prosecutor’s Office agreed to the proposal. It said that the investigation had categorically established that Mr Todorov’s death had been due to the explosion of a hand grenade which he had himself detonated close to his body. No officers were responsible for that. The actions of the police had fully complied with the applicable rules and had been the only actions possible under the circumstances, in view of the resistance put up by Mr Todorov and the fact that he had fired at them.

On 17 September 2004 the applicants sought judicial review of the discontinuance.

On 28 September 2004 the Plovdiv Military Court, sitting in private, set the discontinuance aside and referred the case back for additional investigation. It noted that the investigation had failed to establish the exact time of Mr Todorov’s death, which had prevented the prosecuting authorities from assessing fully the lawfulness of the actions of the police, including the use of explosives, smoke bombs and a grenade launcher. It went on to say that the prosecuting authorities had failed to analyse the evidence properly and give reasons why they believed that all actions of the police had been lawful. In particular, they had failed to give any reasons why they considered that the actions of the police after 9 or 9.30 p.m. on 10 December 2003, including the firing of fifteen rocket propelled grenades, had been warranted, especially in view of the fact that the evidence showed that after that time Mr Todorov had not resisted or fired at the police. Lastly, it could not be categorically concluded that Mr Todorov’s death had been caused by a hand grenade which he had had activated himself; a number of other explosive devices had been used by the police.

Accordingly, on 5 October 2004 the Plovdiv Regional Military Prosecutor’s Office sent the case back to the investigator, instructing him to (a) ask ballistics experts to identify all explosive devices which had been used, explain their mode of operation, and express their opinion on whether the smoke bombs fired at the house had been capable of creating a concentration of gases sufficient to cause the death of Mr Todorov; (b) seek the opinion of forensic and ballistics experts on the exact time of Mr Todorov’s death, on the origin of the metal fragments found in his body, and on whether the death had resulted from a hand grenade; (c) interview again the participants in the operation and ask them why it had been deemed necessary to use a grenade launcher and other explosive devices at a time when Mr Todorov had no longer been showing any signs of resistance; (d) establish whether boobytraps had indeed been planted in or around the house; and (e) identify the officers who had caused damage to the house and ascertain whether their actions had amounted to a criminal offence. It went on to note that Mr Todorov’s heirs had not been given an opportunity to acquaint themselves with the materials in the case file, which had been a serious breach of the rules of procedure.

The investigator asked several experts to draw up the reports requested by the prosecuting authorities.

In a report drawn up on 11 November 2004 an expert said that no devices which could be described as boobytraps had been found in Mr Todorov’s house or yard. Two fully operational defensive hand grenades had been found inside the house.

In their report, drawn up on 23 November 2004, the ballistics experts described the characteristics of the weapons and ammunition used during the operation or found on the spot (Kalashnikov assault rifle and ammunition for it, antitank rocket propelled grenades, teargas grenades, small wallblasting explosives, a defensive hand grenade), and said that the wall of the house had been demolished by the antitank rocket propelled grenades fired during the operation. They also said that from the materials in the case file it appeared that no teargas grenades had fallen inside the house, and that the concentration of any such gas in the room where Mr Todorov had been standing had not been high enough to kill him.

The combined forensic and ballistics expert report, drawn up by a forensic doctor, an army weapons specialist and an expert in automatic weapons, became ready on 2 December 2004. It said that the complete charring of Mr Todorov’s body prevented a medical determination of the time of his death. The explosive device which had killed him had been very close to his body at the moment of detonation, with the result that the body had suffered the impact of all components of the explosion: the detonation, the gases, parts of the explosive, soot, parts of the device’s casing and fragments of it. Mr Todorov’s body had been destroyed and had sustained deep burns, to the point of charring, and multiple wounds from the device’s casing and filling. The metal fragments found inside the body showed that the device was a hand grenade, of the type used in the Bulgarian army, consisting of a metal casing and, underneath it, plastic shells containing 200 to 400 pellets. All of those had impacted on Mr Todorov’s body. The mechanism of the grenade and the force needed to pull its lever were such as to prevent accidental detonation, including detonation resulting from the closeby detonation of another device, which meant that Mr Todorov had been fully conscious of his actions when activating the grenade. He had thus blown himself up, as could be seen from the safetypin loop found on the third finger of his right hand. However, it was probable that the charring of his body was due to a secondary fire in the room, and had occurred after his death.

On 4 January 2005 the Plovdiv Regional Military Prosecutor’s Office again decided to discontinue the investigation. It set out its findings of fact and the conclusions of the expert reports, and reasoned as follows:

“... The initial steps taken by officers of the Harmanli Regional Police Department with a view to [Mr] Todorov’s localisation and arrest were lawful. When he used firearms against them, they duly reported that to their superiors. They, in turn, lawfully decided to use firearms as a means of last resort, in accordance with section 80(1)(1) and (1)(4) of the Ministry of Internal Affairs Act [1997]. As [Mr] Todorov refused to obey their order to surrender and continued to fire at them, it was lawful to bring in the antiterrorism squad. This was in line with section 157(1)(2) of the [Act] and based on a decision of the Minister of Internal Affairs. The police were confronted with an individual who had committed numerous criminal acts and had numerous convictions and who, during an operation for his arrest to enforce a sentence ..., put up armed resistance. This was established on the basis of the statements made by the officers and by [Mr] Todorov’s relatives. The fact that he fired upon the police is also confirmed by the bullet-hole in the left mudguard of [a police car] and the asbestos cement sheets placed outside the house.

The steps taken by the officers of the [antiterrorism] squad after their arrival were also lawful. They were faced with an urgent special operation which required fast appraisal of the situation and decisionmaking. Their decisions were taken on the basis of the situation described above. After [Mr] Todorov failed to heed the advice of his relatives and the psychologists to turn himself in, it was lawful and in line with section 159(1)(1) of the [Act] and regulations 8(3), (5) and (7) to resort to the use of pyrotechnical devices and explosives. One of the walls of the ground floor of the house was blown up with a view to storming it and making a passage to the inside. However, in view of the explanations of [the individual who had worked on the house] about booby traps in various unknown locations in and around the house and the darkness, the attack was postponed. It was only at that point that a decision was taken to use antitank grenades, in line with regulation 8(3). The purpose was to diffuse any explosive devices and clear a passage for the storming party, which was supposed to attack in the morning. As a result of the firing of those grenades, part of the ground floor of the building was destroyed. When the goal had been achieved, the firing stopped. The attack began in the early morning of 11 December 2003 in order to protect the health and the lives of the police officers. Then they found the body of [Mr] Todorov.

In this case, there was overt resistance by [Mr] Todorov and refusal to obey police orders. Also, before using weapons the police officers and the members of the antiterrorism squad considered the specific situation, the nature of [Mr Todorov’s] act and [his] personality. They took all necessary safety measures and discontinued the use of weapons immediately after achieving their goal – opening a breach for the storming party.

The actions of the officers would be criminal only if they were socially dangerous, committed with mens rea, and punishable... The lack of any of those characteristics makes their actions not criminal. By Article 12a of the Criminal Code, it is not criminal to cause damage to a person who has committed an offence in order to effect his arrest and prevent him from committing further offences, if there is no other way to carry out the arrest and if the necessary and lawful measures are not exceeded. This equally fully applies to the house used by [Mr] Todorov as a shelter. Since there was no other way of entering it, it became necessary to demolish part of it. The available evidence shows that the actions of the police were not socially dangerous, but socially necessary, and, indeed, the only ones possible under the relevant provisions of the Ministry of Internal Affairs Act [1997] and the regulations. Therefore, there has been no criminal offence. All exculpating circumstances under Article 12a are in place. ...

Moreover, under section 159(3) of the Ministry of Internal Affairs Act [1997], the identities of the members of the special antiterrorism squad are to be kept secret, which means that they cannot be held criminally liable.

The investigation categorically and unequivocally found that [Mr] Todorov’s death was due to his blowing himself up with an offensive hand grenade which he detonated close to his body. No officers are responsible for that. No other offences committed by the officers in connection with the performance of their duties were established. ...”

On 25 January 2005 the applicants sought judicial review of the discontinuance. They argued that not enough evidence had been gathered on the time and the causes of Mr Todorov’s death, and that only experts in pathology would be able to give an informed opinion on those points. It was also hard to believe that Mr Todorov had blown himself up with a hand grenade. He was a righthander and the grenade safetyloop was found on a finger of his right hand, whereas it was highly unusual for someone to draw the safetyloop of a hand grenade with his strong hand and hold the grenade itself with his weak hand. The investigation had not done enough to elucidate that paradox, which was central to its conclusions. It was also incomprehensible how the experts, none of whom was a psychologist, were able to give an opinion about Mr Todorov’s state of mind before his death. No explanation was provided about the type of explosives used at 9 p.m. on 10 December 2003 to blow up the hole in the wall of the house. This seriously weakened the prosecutor’s conclusion that the metal pellets found in Mr Todorov’s body were from a hand grenade. After 5 p.m. on 10 December 2003 the police were not acting in selfdefence because Mr Todorov had not fired any shots at them after that time. They clearly overstepped the limits set by Article 12a of the Criminal Code and did not try to contact him or arrest him without using force after that time. The conclusion that a grenade launcher was needed to diffuse possible booby traps could not withstand scrutiny. No such traps were found, and it was absurd to believe that trained police officers could suppose that such traps had been laid around a house whose yard was used by Mr Todorov, his family and domestic animals. The police apparently only resorted to using a grenade launcher to speed up the operation. It was also telling that the names of the officers who ordered the use of a launcher were not mentioned in the prosecutor’s decision. Lastly, the applicants pointed out that this Court’s caselaw under Article 2 of the Convention required that there should be an effective official investigation when individuals have been killed as a result of the use of force by the police.

On 8 February 2005 the Plovdiv Military Court, sitting in private, decided to uphold the discontinuance in the following terms:

“... After fully checking the materials in the case file, the court comes to the only possible conclusion, namely, that the decision to discontinue the proceedings was correct, wellfounded and lawful.

The investigation was objective, all-inclusive and comprehensive. The investigating and the prosecuting authorities have taken all necessary steps to establish the truth. All circumstances surrounding the main fact – the cause of [Mr] Todorov’s death – have been examined. The authorities have not committed serious breaches of the rules of procedure. The remitting of the case for additional investigation was a major factor in that respect. The prosecutor’s conclusions are correct, wellfounded, not internally inconsistent, accurate and fully correspond to the evidence and the facts. To come to them, the prosecutor, along with an assessment of the available materials, has taken into account the constant caselaw of the Supreme Court of Cassation and academic studies of criminal law.

The prosecutor’s conclusion that the proceedings should be discontinued corresponds to the totality of the evidence, which has been precisely analysed and assessed. The court finds that the prosecutor was right to conclude that the police were acting in a situation falling under Article 12a [of the Criminal Code]. They were aiming to arrest an individual who had committed an offence, and who had been convicted and sentenced by means of a final decision. He refused to obey their orders and put up fierce armed resistance. His actions consisted in an attack against the police that seriously endangered their lives. This leads to the incontestable and unequivocal conclusion that the police officers were acting in pursuance of their duties and that their actions were correct, lawful and adequate in a situation which was extreme, critical and gravely dangerous for their health and lives.

The court fully shares the remaining conclusions of the prosecutor ... which it considers correct and accurate.

On that basis, the court finds that the arguments raised in the application [for judicial review] are groundless and illfounded. Firstly, the arguments ... that the ‘prosecutor’s findings about the time of death are unconvincing and solely based on the conclusions of the medical expert’s report’ ... are groundless. If the [applicants’ lawyers] had bothered to acquaint themselves with [the] evidence ..., they would not have reached those conclusions. The prosecutor’s findings about the causes and the time of [Mr] Todorov’s death were based not only on the conclusions of the medical expert’s report and the complex ballistics and medical experts’ report, but also on the statements of all eyewitnesses. The lawyers should be aware that a fact, namely the time and the causes of death, can be established through all types of evidence allowed under the rules of criminal procedure, not solely expert reports. Since the experts’ conclusion, whose accuracy the court does not doubt, is supported by an abundance of other evidence, including eyewitness statements, the court finds this fact to be unequivocally established ... For that reason, the court finds that the time and the cause of [Mr] Todorov’s death have been unequivocally established, and that this has been accurately described in the prosecutor’s decision. The court therefore finds the [applicants’] arguments in that connection unfounded and not corresponding to the evidence in the case. For the same reasons, the court finds no force in the [applicants’] arguments relating to the lack of clarity of the prosecutor’s decision about the type of expert report to be ordered by the investigator. The court reiterates that if the [applicants’ lawyers] had read the complex medical and ballistics report, they would have understood this alleged lack of clarity ...

The [applicants’] assertion relating to the ‘strong’ and the ‘weak’ hand of [Mr Todorov] is also groundless and lacking legal logic. The safetyloop from the detonator of a grenade, the specific dismemberment of the body in the middle (near the stomach and the groins), and the remains of a defensive grenade (pellets and fragments) in the body lead to the only possible conclusion that [Mr Todorov] blew himself up in the way described in detail by the prosecutor ... This unequivocally proves that the grenade was not thrown, as asserted by the [applicants], because if that were the case there would be no pieces of a detonated grenade on the body of [Mr] Todorov. The court finds whether [Mr] Todorov was right or lefthanded irrelevant and for this reason shall not engage in further discussion on that point.

The complex medical and ballistics experts’ report gave a conclusion about [Mr] Todorov’s psychological state at the time of his ‘self-detonation’, which the court finds accurate and corresponding to the evidence analysed by the experts. It is necessary to note that the ‘psychological’ state of [Mr] Todorov has been analysed and assessed by the experts in the context of the grenade’s specificity as a type of weapon, the particularities of its construction and the manner in which it needs to be handled and detonated. On that basis, the court finds no force in the [applicants’] argument concerning the mandatory participation of a psychologist in the elucidation of the above fact.

The [applicants’] assertion that there is no explanation about types of explosives used again shows that [their lawyers] have not acquainted themselves with all the evidence. The court finds it illfounded and unsupported by any arguments. The experts have given an accurate, clear and comprehensive description of the type and character of all types of explosives and munitions used [in the operation].

The court does not share the [applicants’] arguments ... concerning the alleged incorrectness of the prosecutor’s decision. The above considerations lead it to the conclusion that the police were acting in a situation which falls within the ambit of Article 12a of the Criminal Code ... It must also be observed that the [applicants’] arguments are onesided and analyse solely the lawfulness of the actions of the police without commenting on the lawfulness of the actions of [Mr] Todorov. Basing itself on the rules of objectivity and impartiality, and analysing the direct and circumstantial evidence in isolation and jointly, the court finds the [applicants’] arguments incorrect and illfounded.

The court fully shares the [applicants’] assertion that, in view of the requirements of the [Convention] and the criteria developed by the European Court of Human Rights in its caselaw, there must be a thorough and comprehensive investigation whenever there has been an interference with a person’s right to life during a police operation. However, the court does not share the [applicants’] view that there has been no such investigation in the present case. On the contrary, in view of what has been said above, the court finds that the investigation was objective, comprehensive and full, that the authorities have taken all necessary steps to uncover the truth, and have taken their decisions freely and after assessment of relevant facts. The prosecutor’s conclusions are correct, accurate and wellfounded, and the court fully shares them.

In view of above, the court ... finds that the decision to discontinue the proceedings ... has to be upheld as lawful and wellfounded.”

The case file contains no information on whether at the time of his death Mr Todorov had a valid title to the house or the plot of land on which it had been erected. It does not appear that he had applied for or obtained a building permit for the house. During the investigation is was established that on 15 June 2004 the Harmanli lands commission, in proceedings brought by the first applicant (Mr Todorov’s son) under the lands restitution laws, decided to restore the plot to the heirs of an ancestor of Mr Todorov.

The applicants presented a notary deed showing that on 19 May 2006 the first applicant bought from third parties a plot of land in the area where the house is situated. From certificates issued by the cadastre authorities it appears that this plot is the same on which the Mr Todorov’s house had been built.

The applicants also presented a certificate of 20 January 2007 in which the building control department of the municipality of Harmanli said that the house was a tolerable building within the meaning of the building control legislation. Under that legislation, tolerable buildings are those that have not been erected pursuant to a building permit but which nonetheless comply with the applicable zoning plans and building regulations, and have either been built before a certain date or been declared to the authorities within certain timelimits. Tolerable buildings are not subject to demolition.

Section 80 of the Ministry of Internal Affairs Act 1997, as in force at the material time, provided, in so far as relevant:

“(1) The police may use firearms as a means of last resort:

in cases of armed attack or threat to use firearms;

in selfdefence [or the defence of others];

after giving a warning, to arrest a person who has committed or is committing a publicly prosecutable offence, if he or she resists or tries to escape;

(2) When using firearms the police are under a duty to protect, as far as possible, the life of the person against whom they use force, and not put in danger the life and the health of others.”

The wording of section 74(1)(1), (1)(3) and (2) of the Ministry of Internal Affairs Act 2006, currently in force, repeats verbatim that of section 80(1)(1), (1)(4) and (2) of the 1997 Act.

On 30 May 2012 Parliament enacted a bill amending section 74 of the 2006 Act; the amendment came into force on 1 July 2012. The words “as a means of last resort” in section 74(1) were changed to “only where absolutely necessary”, and the words “to protect, as far as possible” in section 74(2) were replaced by “do everything possible to protect”. A new subsection 5 was added to section 74, providing that “[t]he police shall discontinue the use of firearms immediately after attaining its lawful aim”, as well as a new subsection 6, providing that “[i]t shall be prohibited to use firearms to arrest or prevent the escape of a person who is about to commit or has committed a nonviolent offence if that person does not pose a danger to the life or health of another”. A new section 74a was added, providing that “[t]he planning and control of the use of physical force, auxiliary means and firearms by the police ... shall include [the taking of] measures to attain the lawful aim at minimal risk to the life and health of the citizens”. In the explanatory notes to the bill the Government had referred to, inter alia, the need to bring domestic law fully into line with the applicable international standards and the Court’s caselaw.

The special antiterrorism squad was a unit of the Ministry of Internal Affairs whose task was to, among other things, combat terrorism and prevent and uncover serious offences (section 156 of the 1997 Act). It could arrest or neutralise persons who had committed especially dangerous offences and who were putting up or likely to put up armed resistance (section 157(1)(2)). The squad’s intervention had to be authorised in writing by the Minister of Internal Affairs in each case (section 157(2)). Its mode of operation was governed by regulations issued by the Minister (section 157(3)).

Those regulations, which were apparently not published, were issued by the Minister on 27 May 2003. Under regulation 7, when carrying out a special operation the squad had to set up an appropriate organisational structure. However, the overall control of a given operation was to be ensured by the head of the authority which had requested the use of the squad or a person designated by him or her (regulation 26(1)). The squad’s plan of action in a given operation had to be included in the plan of the requesting authority (regulation 25). In its operations the squad could use, inter alia, firearms and grenade launchers (regulation 8(3)), pyrotechnical devices and explosives (regulation 8(5)) and chemical substances (regulation 8(7)).

By section 159(3) of the Ministry of Internal Affairs Act 1997, “in the performance of the squad’s tasks, the identity of its members [was] to be kept secret”. This rule currently features in section 91(3) of the Ministry of Internal Affairs Act 2006 and extends to all police officers who take part in armed police operations for the arrest of dangerous offenders who put up armed resistance. Regulation 150s of the regulations for the application of the 2006 Act repeats it with reference specifically to the members of the special antiterrorism squad.

Article 12a § 1 of the Criminal Code 1968, added in August 1997, provides that causing harm to a person while arresting him or her for an offence is not criminal where no other means of effecting the arrest exist and the force used is necessary and lawful. According to Article 12a § 2, the force used is not necessary when it is manifestly disproportionate to the nature of the offence committed by the person to be arrested or the resulting harm is in itself excessive and unnecessary.

Under Article 237 § 1 (1) of the Code of Criminal Procedure 1974, public prosecutors were to discontinue a preliminary investigation if they found that, inter alia, the acts alleged did not constitute an offence. Article 237 §§ 3 and 4, as in force at the material time, provided that the decision to discontinue a preliminary investigation was reviewable by a firstinstance court whose decision was final.

Section 1 of the State Responsibility for Damage Caused to Citizens Act 1988 (Закон за отговорността на държавата за вреди, причинени на граждани), in July 2006 renamed the State and Municipalities Responsibility for Damage Act (Закон за отговорността на държавата и общините за вреди – “the 1988 Act”), provides that the State is liable for damage suffered by individuals (and since 1 January 2006 also legal persons) as a result of unlawful decisions, actions or omissions by civil servants, committed in the course of or in connection with the performance of their duties.

The general rules of the law of tort are set out in sections 45 to 54 of the Obligations and Contracts Act 1951 (Закон за задълженията и договорите – “the 1951 Act”). Section 45(1) provides that everyone is obliged to make good the damage which they have, through their fault, caused to another. Section 49 provides that a person who has entrusted another with carrying out a job is liable for the damage caused by that other person in the course of or in connection with the performance of the job. Legal persons cannot incur liability under section 45(1), as they cannot act with mens rea. They may, however, be vicariously liable under section 49 for the tortious conduct of individuals employed by them (пост. № 7 от 30 декември 1959 г., ВС, Пленум). One of the prerequisites of the liability under sections 45 to 50 of the 1951 Act is wrongfulness of the impugned conduct (реш. № 567 от 24 ноември 1997 г. по гр. д. № 775/1996 г., ВС, петчленен състав). The Bulgarian courts have on occasion examined claims against the authorities under section 49 (see the domestic cases cited in First Sofia Commodities EOOD and Paragh v. Bulgaria (dec.), no. 14397/04, § 17, 25 January 2011).


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

The applicant, Mrs Liana Nazaretian, is a Georgian national who was born in 1959 and lives in Tbilisi. She was represented before the Court by Mr Malkhaz Labadze, a lawyer practising in Tbilisi. The Georgian Government (“the Government”) were successively represented by their Agents, Mr David Tomadze and Mr Levan Meskhoradze of the Ministry of Justice.

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

In a judgment of 8 July 1999 the Gldani-Nadzaladevi District Court in Tbilisi ordered that a monthly allowance be paid to the applicant by her former spouse until their child, born in 1993, reached the age of majority. That judgment became binding on 10 August 1999.

As disclosed by the case file, since the debtor failed to comply with this judgment, the applicant obtained a writ of execution from the GldaniNadzaladevi District Court and requested, on an unspecified date, the initiation of enforcement proceedings. The bailiffs, resorting to a number of forcible measures, retrieved from the debtor the child allowance for approximately ten months.

As further disclosed by the case file, on 2 May 2001 the applicant requested, for unspecified reasons, the discontinuation of the enforcement proceedings. According to a receipt paper signed by the applicant on the same day, the bailiff handed to her all the case materials, including the enforcement writ.

On 20 June 2001 the applicant, claiming that her former spouse had a higher income than that acknowledged in the judgment of 8 July 1999, requested that the allowance be increased (“the second set of child allowance proceedings”). Her claim was found to be unsubstantiated by several instances, and, lastly, by the Supreme Court of Georgia on 8 October 2004.

Subsequent to the termination of the second set of child allowance proceedings, the applicant requested, either in October or November 2004, the bailiffs to proceed with the enforcement of the judgment of 8 July 1999. The Enforcement Department of the Ministry of Justice (“the Enforcement Department”) replied in late November 2004, reminding the applicant of the fact that the enforcement proceedings had been discontinued at her request. If she wished to have those proceedings re-opened, she had to re-submit the relevant writ of execution, as required by section 20 § 1 of the Enforcement Proceedings Act of 16 April 1999 (“the Enforcement Act”).

Pursuant to the applicant’s request, the Gldani-Nadzaladevi District Court issued, on 24 January 2005, another writ of execution for the judgment of 8 July 1999, and on 31 January 2005 the enforcement proceedings were formally reopened. However, since the writ of 24 January 2005 indicated an invalid address for the debtor, the bailiff sent the document back to the applicant on 7 April 2006 unenforced.

On 22 June 2005 the Enforcement Department, acting in reply to the General Prosecutor Office’s enquiry about the cause of non-enforcement, reminded the applicant of her obligation to provide an enforcement writ with the debtor’s correct address, without which information no enforcement measures could be undertaken.

Section 5 § 1

“Bailiffs at Enforcement Offices [of the Ministry of Justice] shall be responsible for the execution of the decisions provided for hereunder.”

Section 17 § 5

“Bailiffs shall take all lawful measures available in order to secure the speedy and effective enforcement of decisions, to explain to parties their rights and responsibilities, and to assist in the protection of their rights and legal interests.”

Pursuant to section 18 §§ 1 and 2, an appeal against any procedural decision, action or omission of the bailiff lay to a court.

Section 20 § 1 stated that enforcement proceedings could not be launched without the relevant writ of execution.

Pursuant to section 37, the reasonableness of the decision to discontinue the enforcement proceedings could be reviewed by a court at the creditor’s request.

Pursuant to Articles 207-209, the State could be sued for the harm done by action or omission of any public servant as well as by the implementation of a lawfully issued legal-administrative act. In such proceedings, the relevant provisions of the Civil Code could be applied, if necessary.

Pursuant to Article 1005 § 1, damage done to an individual by either negligent or deliberate misconduct of a public servant should be compensated by the State.


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

Alvina Gyulumyan;Elisabet Fura;Josep Casadevall;Luis López Guerra

The applicants were born in 1948, 1978, 1968, 1976, 1980, 1981, 1983, 1984, 1985 and 1986 respectively and live in Diyarbakır.

On 3 October 1992, at 10:30 a.m., clashes occurred in the district of Kulp in the province of Diyarbakır, between the PKK (the Workers' Party of Kurdistan, an illegal organisation) and the security forces, subsequent to the killing of two gendarmes and grave injury of two other gendarmes in a military vehicle by PKK militants. At that time the applicant, Hakan Narin and his father, Abduvahit Narin, were in the Narin Hotel, which belonged to them. During the clash some other individuals from the town and hotel customers joined them in the basement of the hotel to seek shelter from the clash. There were a total of thirty-five people hiding in the basement of the hotel.

According to the applicants' version of events, at around 4 p.m. the security forces raided the hotel and gathered the people on the ground floor. They singled out Adulvahit Narin from the crowd and took him into the hotel director's office. After a while the applicant, Hakan Narin, heard gunshots coming from the office. The security forces then allegedly poured petrol on the floor and set the hotel on fire.

On 4 October 1992 two incident reports describing the events in question were prepared and signed by a number of gendarme officers who took part in the clashes. According to this report, on 3 October 1992, at around 10.30 a.m., PKK militants opened fire on a military vehicle on a main street in Kulp. As a result, two gendarmes died and two were severely injured. Hearing the gunfire, security forces arrived on the scene. PKK militants also fired at them and the security forces returned fire. The clashes, which lasted until 5 p.m., caused the destruction of a number of vehicles and some buildings. It was understood that the real aim of the PKK members was to take control of the Kulp Gendarmerie Station and to seize the weapons therein. Some of the PKK militants hid in the Narin Hotel and opened fire on the security forces. When leaving the town they set the hotel and a number of other buildings on fire. When they were informed that there was a burned body at the hotel, a team of security forces arrived at the hotel in the morning of 4 October 1992. They found an unidentifiable burned body, a Kalashnikov rifle and sixty-four empty cartridges there. The security forces noted that all the furniture in the hotel had been burned, there were a number of bullet holes in the walls and gas cannisters found in the kitchen had exploded as a result of the fire and had caused massive damage to the building. A sketch map describing the state of the hotel and location of the body was also drawn up by a gendarme officer.

On 4 October 1992, at 3:50 p.m., the Kulp Public Prosecutor arrived at the Narin Hotel with a doctor. They conducted a classical autopsy and an on-site investigation. The on-site investigation report noted that a burned body was lying in one of the ground-floor rooms of the hotel. The report also contained Hakan Narin's testimony that two expert sergeants, whose names he did not know but whom he could identify if shown, took his father to the director's office. He then heard gunshots coming from that direction, and saw the security forces throw grenades into the room. He further stated that M.Y., A.Y., M.A., and the teachers A.A., M.Y., H.S. and F.A., who were in the hotel at the time, also witnessed the incident. The report noted that five discharged bullet cartridges were found twenty or thirty metres from the body. Neither Hakan Narin nor the deceased's wife Perinaz Narin could determine whether the burned body was that of Abdulvahit Narin.

The Kulp Public Prosecutor took statements from two gendarmes who were injured in the course of the clashes. They stated that they had come to Kulp from Diyarbakır Regional Gendarmerie Command in order to ensure security. When they arrived in Kulp they were attacked by members of the PKK and wounded as a result of the gunfire.

On 6 October 1992 the Kulp Public Prosecutor issued a decision of non-jurisdiction and referred the case to the Chief Public Prosecutor's office at the Diyarbakır State Security Court.

On 8 October 1992 the Diyarbakır Chief Public Prosecutor's Office issued a decision to join the investigation files concerning the killing of two gendarmes and Abdulvahit Narin, since both had occurred in the course of the events in Kulp.

On 25 June 1993 the public prosecutor at the State Security Court took statements from the deceased's two sons and two persons who had witnessed the events. The applicant Hakan Narin repeated the statement he had made to the public prosecutor during the on-site investigation. He further stated the following:

“During the events in question, I was with the deceased (Abdulvahit Narin). The hotel was under gun and rocket fire. I locked the doors of the hotel and went down to the basement together with the customers for safety reasons. They (the soldiers) broke down the door and entered the hotel. My father was alive and holding my hand. Two expert sergeants who work in Kulp, namely N.T. and L.B., hit my hand and took my father to the director's room. I heard a sound of gunfire from the director's room. They had already locked down the basement when they took my father to the director's room. When the gunfire ended, they took us to the lounge and told us to take off our jackets. We took off our jackets. They poured petrol on us. However, they did not burn us. They then carried the jackets into the director's room. They poured petrol on my father and burned him. They left three hand grenades in the director's room. These bombs exploded one after the other. They burned everything in the hotel. The expert sergeants whom I have mentioned above caused the death of my father. There were thirty-five customers who witnessed this event. I request that criminal charges be brought against [the expert sergeants]...”

Azattin Narin, who is another of the sons of the deceased, stated that he had been in Istanbul at the time of the events. He had also heard that two expert sergeants, N.T. and L.B., had caused the death of his father. Mehmet Yıldırım and Aladdin Yıldırım, who were customers at the Narin Hotel at the time of the events, gave statements in line with Hakan Narin's. They added that the security forces took them to the station after the incident, but released them without taking statements from them.

In addition to the above statements, the applicants' representative submitted to the Court statements given by another witness, Nihat Ezer, on 13 August 2001. According to this witness, who sought shelter in the Narin Hotel during the clashes, Abdulvahit Narin was separated from the rest of the group and taken to the director's room in the hotel. The witness then heard gunshots coming from that room. The soldiers threw three hand grenades and the hotel caught fire. The witness was taken to the gendarme station together with other people and released afterwards.

On 12 May 1994 and 10 June 1994 the Diyarbakır Public Prosecutor took statements from N.T. and L.B. in relation to the allegations concerning the killing of Abdulvahit Narin. N.T. and L.B. denied the allegations that they had been involved in the killing of Abdulvahit Narin and claimed that they had taken part in the clashes against the PKK in order to ensure security in Kulp. They had seen that the Narin Hotel and a number of other buildings had caught fire and stated that they had gone back to their barracks when the clashes were over.

In a letter dated 28 July 1994 the Kulp Public Prosecutor requested the Gendarmerie Command in Kulp to provide information concerning the location of and duties assigned L.B. and N.T. on 3 October 1992.

In a report dated 14 November 1994, signed by a gendarme sergeant and two gendarmes, it was stated that the location of and duties assigned to L.B. and N.T. on 3 October 1992 were unknown, since there was no record.

It transpires from the documents submitted by the parties that since 1994 no further steps have been taken to identify the perpetrators of the killing of Abdulvahit Narin.

On 24 November 1992, one of the sons of Abdulvahit Narin applied to the Kulp Civil Court of First Instance for an assessment report of the damage caused to the hotel in order to lodge actions for compensation.

On 28 September 1993 the applicants applied to the Ministry of the Interior (“the Ministry”) for compensation for the loss they had suffered as a result of the death of their relative and the damage done to the hotel. The Ministry rejected the request.

On 4 April 1994 the applicants brought an action for compensation in the Diyarbakır Administrative Court against the Ministry, for the damage they had suffered in respect of the death of their relative (“first set of proceedings”). In their application to the court the applicants noted that the perpetrators of the killing of Abdulvahit Narin were unknown. Although the officials claimed that he had been killed and that his hotel had been burned down by members of the PKK during the clashes, the witnesses stated Abdulvahit Narin had been killed by the security forces. Notwithstanding who killed the victim, the State was responsible for the death of the victim and was obliged to compensate for the damage resulting from his death and the destruction of the hotel.

On 12 July 1994 the applicants brought a second action against the Ministry, claiming compensation in respect of the material damage caused to the hotel (“second set of proceedings”).

By decisions of 17 November and 20 November 1995 the Diyarbakır Administrative Court decided that it had no jurisdiction over the cases.

On 6 November 1997 and 4 December 1997 the Supreme Administrative Court set aside the Diyarbakır Administrative Court's decisions of non-jurisdiction and remitted the cases to it for examination.

On 18 June 1999 the Diyarbakır Administrative Court partly accepted the applicants' request and awarded them 523,200,000 Turkish liras (TRL, approximately 1,223 euros (EUR) at the material time) in compensation for the pecuniary damage caused to the hotel.

On 21 June 2000 the Diyarbakır Administrative Court, relying on the State's strict liability and “the social risk theory”, awarded the applicants a further TRL 738,107,475 (approximately EUR 1,264 at the material time) in compensation for the pecuniary and non-pecuniary damage they had suffered in respect of the death of their relative. This judgment was upheld by the Supreme Administrative Court on 13 December 2001.

On 16 June 2001 the Supreme Administrative Court upheld the judgment of the Diyarbakır Administrative Court concerning the damage caused to the hotel.

On 18 January 2002, the administration paid the applicants the sum of TRL 2,091,892,880 (approximately EUR 1,732 at the material time) in compensation for the death of their relative and damage done to the hotel.

In March 2002, the applicants applied to the Public Prosecutor's office at the Diyarbakır State Security Court requesting information about the outcome of the criminal investigation into the death of their relative.

On 11 March 2002 the Public Prosecutor informed the applicants that the investigation was still pending. Following this response, on 9 April 2002 the applicants lodged their application with the European Court.

According to the Diyarbakır Chief Public Prosecutor's report of 28 October 2008, the investigation into the killing of Abdulvahit Narin and the two gendarmes is still pending.

Under section 13 of Law no. 2577 on administrative procedure, anyone who sustains damage as a result of an act by the authorities may, within one year after the alleged act was committed, claim compensation. If the claim is rejected in whole or in part, or if no reply is received within six days, the victim may bring administrative proceedings.

Article 125 §§ 1 and 7 of the Constitution provides:

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

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

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


The applicants are French nationals. They are all members of the French Association of Holders of Russian Bonds (“AFPER”), which has more than 15,000 members. They were represented before the Court by Mr M. de Guillenchmidt, a lawyer practising in Paris.

Between 1822 and 1914 some two million French families purchased bonds issued by the Russian State for a total sum of approximately twelve billion gold francs, which represented a capital of 3,480 tons of gold. In 1892 the French Government allowed the bonds to be listed on the Paris stock exchange. In a decree of 14 January 1918 the Soviet Central Committee decided to cancel all the bonds issued by the tsarist regime.

As soon as the Soviet Government took power – and over the following years – the French Government promised on a number of occasions to press the bondholders’ claims. After the signing of the Treaty of Versailles France secured the re-assignment to itself of forty-seven tons of gold, which was part of the gold paid by Russia to Germany under the Treaty of Brest-Litovsk. In a statement made to the Senate on 9 April 1924 the Prime Minister declared that the said gold had been definitively made over to France in reduction of Russia’s debt. In 1929 the French State held 648,000,000 gold francs worth of Russian bonds in France. In 1963 the above-mentioned forty-seven tons of gold were officially assigned to reducing Russia’s debt to France.

In a treaty of 29 October 1990 the French and Soviet Governments undertook to solve their financial dispute quickly. That treaty was not ratified, however.

In 1992, when the Russian regime changed, the French authorities initiated negotiations again. An agreement of 7 February 1992, which was ratified but not applied, set out a solution to the dispute relating to the financial and material aspects of the property and interests of individuals and legal entities in both countries.

In a memorandum signed 26 November 1996 the Government of the Federation of Russia undertook to pay 400,000,000 dollars (approximately 2.4 billion francs) in eight six-monthly instalments. Under the terms of that agreement

“The Government of the French Republic and the Government of the Federation of Russia agreed the following:

The Government of the Federation of Russia shall pay the Government of the French Republic the sum of 400,000,000 US dollars in full and final settlement of mutual debts between France and Russia accumulated prior to 9 May 1945.

The sum shall be paid as follows: eight six-monthly instalments of 50,000,000 US dollars payable on 1 February and 1 August 1997, 1998, 1999 and 2000.

Neither the French party nor the Russian party shall, on their own behalf or on behalf of French or Russian natural and legal persons, present to each other or support in any way any financial debts or debts in rem whatsoever accumulated prior to 9 May 1945.

All the debts shall be deemed to have been fully and finally settled by payment of the entire sum referred to in the present memorandum.

The parties agree that, on the basis of the present memorandum, they shall reach an agreement as soon as possible on the payment of France and Russia’s mutual debts.”

According to the applicants, that sum was less than 1% of the debts converted to current value.

By Decree no. 97-134 of 12 February 1997 a “monitoring commission” was set up within the Conseil d’Etat with the task of proposing to the Government a means of identifying the qualifying bondholders according to the Franco-Russian basis and agreements, a method of assessing the value of the qualifying bonds and arrangements for paying compensation.

On 27 May 1997 a supplementary agreement was signed between the French Government and the Russian Government. Article 1 of that agreement listed the Russian debts which France agreed to waive and Article 2 listed the French debts in respect of which Russia undertook to make no further claim. Article 3 set out the arrangements for repayment by Russia of its debts as established in the 1996 memorandum. Article 4 added that all the debts would be deemed to have been fully and finally settled by the payment of the entirety of the sum referred to. Article 5 provided that on the date of entry into force of the agreement neither of the parties would take action against the other on the basis of any financial debts or debts in rem whatsoever accumulated prior to 9 May 1945.

On 11 June and 1 August 1997, Russia paid the first two instalments provided for in the agreement in a total sum of 100,000,000 dollars. Further instalments were sent to France in 1998, on 3 February and 4 August 1999 and, lastly, in February 2000, amounting to seven instalments in all.

In a government Bill (no. 229) filed on 24 September 1997, the Prime Minister acknowledged, in the statement of reasons, that the Franco-Russian agreements of 26 November 1996 and 27 May 1997 did not include any provision for others and produced no effects for the rights of third parties. On 20 November 1997 the National Assembly adopted a Bill, which was also adopted by the Senate on 10 December 1997, authorising approval of the above-mentioned agreements. In a Law of 19 December 1997 (no. 97-1160) Parliament authorised the ratification of those agreements.

Section 73 of Law no. 98-546 of 2 July 1998 and the Implementing Decree no. 98-552 of 3 July 1998 provided that the number of bondholders should be identified. This was done over a period of six months from the date of entry into force of the decree. On 9 February 1999 the provisional results obtained by the Ministry of the Economy, Finance and Industry showed 132,440 declarations in respect of a total of 3,760,98 bonds. On 23 March 1999 the Minister for the Budget stated that the number of bondholders was, to be more precise, 135,620 and the number of bonds 3,822,549. On 9 July 1999 the Ministry of the Economy, Finance and Industry declared that the number of bondholders stood at 300,000 and that there were more than 9,000,000 bonds.

According to the applicants, those figures were inaccurate. Their attempts to obtain clarification of this point remained fruitless. On 13 October 1999 the association representing the applicants (the AFPER) served official notice on the Minister for the Economy, Finance and Industry to publish, département by département, a monthly breakdown of the results of the survey, the number of bonds per category, a breakdown of the four thousand types of qualifying bonds taken into account and justification for the increase in the number of holders and bonds as compared to the figures given at the end of March. On 2 May 2000 an identical notice was served on the new Minister for the Economy, Finance and Industry.

On 26 July 1999 the AFPER served formal notice on the Federation of Russia to pay the sum of nine billion francs in honour of its debt plus interest.

On 27 August 1999 the embassy of the Russian Federation replied as follows:

“In accordance with the memorandum of agreement of 26 November 1996 between the Government of the French Republic and the Government of the Federation of Russia regarding final settlement of mutual financial debts and debts in rem accumulated before 9 May 1945, the French party undertook not to submit to its Russian counterpart, either on its own behalf or on the behalf of French natural or legal persons, or to support in any other manner financial debts or debts in rem of any kind accumulated prior to 9 May 1945.

The legal summons ... and service thereof on the embassy of the Federation of Russia constitute a breach of the above-mentioned undertakings.

It is for the French party to explain the above-mentioned provisions to the natural and legal persons concerned and to the courts in order to prevent any further misunderstandings in future.”

Various other legal actions instituted in France were equally unsuccessful.

On 18 December 1998 various bondholders applied to the judge of the Versailles tribunal de grande instance responsible for the execution of judgments for registration of a legal charge on real property situated in France belonging to the Russian State. In an order of 23 April 1999 the judge found that the bondholders’ claims were valid in theory. He considered that the debt subsisted and “was of undeniable public interest” despite payment of the sum of 400,000,000 dollars. However, he refused to charge the property in question because it was protected by diplomatic immunity.

On 19 September 1999 some members of the APFER lodged an application with the judge of the Paris tribunal de grande instance responsible for the execution of judgments for registration of a provisional interim legal charge on shares of the Banque commerciale pour l’Europe du Nord. However, that application was also dismissed on the ground that “the principle of the applicant’s claim cannot be considered valid ... it cannot be inferred from the Russian State’s inertia that recovery of the debt is in jeopardy”.

In a judgment of 30 March 1966 the Conseil d’Etat acknowledged that the public authorities were liable for the loss which international agreements to which the State was a party might occasion for individuals. In the Compagnie générale d’énergie radio-électrique case, the applicant, whose property had been requisitioned by the German army, claimed to be entitled to compensation from the French State on the basis that there had been a breach of equality vis-à-vis public burdens as a result of the signing by the French Government of international agreements which prevented it until an unspecified date from pursuing its claim against the German State.

The Conseil d’Etat held that “the responsibility of the State is liable to be engaged on the basis of equality of citizens vis-à-vis public burdens to ensure that loss arising from agreements signed by France with other States and lawfully incorporated into domestic law is compensated, on condition that neither the Convention itself nor the Act authorising its ratification may be construed as having intended to exclude any compensation and that the loss in respect of which compensation is claimed is sufficiently serious and is individual in nature”. The Conseil d’Etat concluded that the condition relating to individuality had not been fulfilled “having regard to the generality of the above-mentioned agreements and the number of French citizens who were victims of damage analogous to the damage alleged by the applicant company” (Recueil du Conseil d’Etat, p. 257).

On 18 May 1992 the National Group for the Defence of Holders of Russian bonds (“GNDPTR”), which was a different association of holders of Russian bonds from the one of which the applicants were members, had sued the French State in the Paris Administrative Court for compensation for bondholders. On 17 December 1993 the Administrative Court dismissed the application for the following reasons:

“The applicant association seeks to establish responsibility on the part of the State on account of the conduct of the French authorities, who allegedly refused to engage in negotiations with the Soviet State and the succeeding States with a view to compensating its members; the Government’s decisions in that area are inextricably linked to the conduct of international relations between the two Governments; accordingly, the pleadings referred to above raise a question which, by its nature, is not a subject for contentious proceedings.

The provisions of Article 1 of Protocol No. 1 to the European Convention on Human Rights cannot usefully be relied upon where the interference or compliance with the right guaranteed by that Article are not imputable to the French State; similarly, a breach of the provisions of Article 14 of the said Convention combined with Article 1 of Protocol No. 1 cannot usefully be relied upon...

Lastly, the loss in respect of which the applicants seek compensation arises as a result of an act of a foreign State and cannot engage the responsibility of the French State even in the sphere of equality vis-à-vis public burdens; in any event, having regard to the risks attached to the realisation of financial operations with a foreign State, the damage in respect of which compensation is sought cannot be deemed to be abnormal or special...”


Violation of Art. 5-3;Violation of Art. 8;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

The applicant was born in 1960 and lives in Warsaw.

On 10 December 1999 the applicant was arrested by the police on suspicion of having committed armed robbery against a lorry driver. On 11 December 1999 the Żyrardów District Court (Sąd Rejonowy) ordered that the applicant be detained on remand for 3 months. It found that in the light of the evidence obtained, in particular from his accomplices, there was a strong likelihood that the applicant had committed that offence. The court further observed that the applicant had not confessed and found that there was a risk that he might obstruct the investigation. Having regard to the severity of the penalty that could be expected, the court held that keeping the applicant in custody was necessary in order to secure the proper conduct of the proceedings. That decision was upheld on appeal on 7 January 2000.

On 8 March 2000 the Skierniewice Regional Court (Sąd Okręgowy) prolonged the applicant’s detention until 10 June 2000, finding that, given that the applicant had been caught in flagrante delicto, there was a strong likelihood that he had committed the offence in question. The court stressed that the applicant had – like his 3 detained co-suspects – given contradictory evidence and had not confessed, which gave sufficient reasons to believe that, once released, he would obstruct the proper course of the proceedings. The applicant’s continued detention was also justified by the severity of the penalty that could be expected. Moreover, evidence from ballistics and fingerprint experts – which was crucial for the determination of the role played by each co-suspect – needed to be obtained.

On 6 June 2000 the Łódź Court of Appeal (Sąd Apelacyjny) ordered that the applicant be held in custody until 10 September 2000, reiterating the grounds previously given for his detention. It further held that the gravity of the charges and the severity of the likely penalty justified the prolongation of the most severe preventive measure.

On 25 August 2000 a bill of indictment was filed with the Skierniewice Regional Court against the applicant and his 3 accomplices. The applicant was charged with attempted armed robbery and unlawful possession of a firearm. The bill of indictment specified that the applicant had been previously sentenced for similar offences. The prosecution asked the court to hear evidence from 23 witnesses.

On 30 August 2000 the Skierniewice Regional Court prolonged the applicant’s detention until 31 March 2001, repeating the grounds that had been given in the previous decisions. It also held that the value of the goods that the accused had planned to steal and the previous criminal records of some of them made it likely that they would be given a heavy sentence.

Subsequently, apparently in November 2000, the Skierniewice Regional Court referred the case to the Płock Regional Court, finding that the latter court should deal with the matter. The ensuing jurisdictional dispute was determined on an unspecified later date by the Warsaw Court of Appeal. The latter court ordered that the case be referred to the Warsaw Regional Court since the Skierniewice Regional Court had in the meantime been closed down. On 18 June 2001 the bill of indictment was transmitted to the Warsaw Regional Court.

Meanwhile, on 22 March 2001, the Płock Regional Court had prolonged the applicant’s detention until 30 June 2001, finding that the reasons previously given for holding him in custody were still valid.

On 25 June 2001 the Warsaw Regional Court prolonged the applicant’s detention until 30 October 2001. On 25 October 2001 the Regional Court ordered the applicant’s continued detention until 10 December 2001. In both decisions the court relied primarily on the severity of the sentence that could be expected.

On 23 November 2001 the Court of Appeal dismissed the applicant’s appeal against the decision of 25 October 2001 prolonging his detention. It found that the applicant’s continued detention on the basis of Article 258 § 2 of the Code of Criminal Procedure remained valid. Having regard to the nature of the alleged offences, the circumstances in which they had been committed and the fact that the applicant had committed similar offences in the past, the Court of Appeal found that there was a very strong likelihood that he would be given a heavy sentence. It further held that Article 258 § 2 of the Code of Criminal Procedure established a kind of presumption to the effect that the likelihood of a severe penalty being imposed on an accused might induce him to obstruct the proceedings.

Since on 10 December 2001 the length of the applicant’s pre-trial detention reached the statutory 2-year time-limit laid down in Article 263 § 3 of the Code of Criminal Procedure, all further decisions prolonging his detention on remand were given by the Warsaw Court of Appeal.

The relevant decisions were taken on the following dates: on 7 December 2001 (extending his detention until 28 February 2002), 26 February 2002 (ordering his continued detention until 30 April 2002 and having regard to the particular complexity of the case) and on a later unspecified date in April 2002 (extending his detention for a further period). In its decision of 7 December 2001, the Court of Appeal found that prolongation of the applicant’s detention beyond the statutory 2-year time-limit was justified under Article 263 § 4 on account of major insurmountable difficulties, referring in this connection to the above-mentioned jurisdictional dispute.

The Regional Court listed the first hearing for 7 October 2001 but the trial could not be started since the case file was with another court. Two hearings listed for 7 and 16 November 2001 were adjourned due to the change of the applicant’s counsel and the need for the latter to prepare for the hearing. Two further hearings listed for 10 December 2001 and 11 January 2002 were also adjourned (at the defendants’ request and because of the absence of the applicant’s counsel respectively). As a result, the trial started on 15 January 2002. Further hearings were held on 31 January, 21 February, 12 and 24 April, 29 May and 10 June 2002.

On 13 June 2002 the Warsaw Regional Court convicted the applicant of attempted armed robbery and, having regard to his previous criminal record, sentenced him to seven years’ imprisonment. It acquitted the applicant of the charge of unlawful possession of a firearm. It also prolonged his detention until 30 September 2002.

The prosecutor and all the defendants appealed.

On 19 December 2002 the Warsaw Court of Appeal quashed the first-instance judgment and remitted the case. It ordered that the applicant be kept in detention pending the retrial until 30 March 2003 in view of the reasonable suspicion that he had committed the offence with which he had been charged and the severity of the likely sentence.

On 6 March 2003 the Warsaw Regional Court extended the applicant’s detention until 30 June 2003, holding that the grounds originally given for his detention were still valid. It further held that keeping him in detention was sufficiently justified by the severity of the likely sentence and the need to secure the proper conduct of the trial. Subsequent decisions prolonging the applicant’s detention were given by the Regional Court on the following dates: 26 June 2003 (ordering his continued detention until 30 September 2003), 1 September 2003 (extending his detention until 31 October 2003) and 23 October 2003 (ordering his continued detention until 31 January 2004). The court held that the grounds previously given for his continued detention were still valid.

On 13 January 2004 the Regional Court prolonged the applicant’s detention until 30 April 2004, relying on the severity of the likely sentence and the associated risk that the applicant might obstruct the proceedings. The applicant appealed. On 10 February 2004 the Court of Appeal ordered the applicant’s release and placed him under police supervision. It held that further prolongation of the applicant’s detention was unjustified, since the Regional Court had not put forward any arguments warranting the continued application of the most severe preventive measure. In particular, the Regional Court had not indicated any concrete grounds which would justify the risk that the applicant might obstruct the proceedings. The applicant was released on the same day.

Prior to 10 February 2004, the applicant made numerous, unsuccessful applications for release and appealed, likewise unsuccessfully, against refusals to release him and decisions extending his detention.

On 5 May 2004 the Warsaw Regional Court convicted the applicant of attempted armed robbery and sentenced him to seven years’ imprisonment. The applicant appealed.

On 28 September 2004 the Warsaw Court of Appeal upheld the first-instance judgment. The applicant’s legal aid lawyer declined to file a cassation appeal against the Court of Appeal’s judgment since he had not found any grounds on which an appeal could be based.

The applicant submits that during his detention his correspondence was censored by the authorities.

On 12 March 2002 the Registry sent the applicant a letter in reply to his first letter setting out his Convention complaints. That letter, with which an application form and accompanying documents were enclosed, was delivered to the applicant after having been controlled by the authorities. The Court’s envelope bears a stamp that reads “Censored. Judge” (“Ocenzurowano. Sędzia.”), followed by a date “12 [April 20]02” and an illegible signature. There are two other stamps that read: “Warsaw-Białołęka Detention Centre. Received 2002-04-05” (“Areszt Śledczy. Wpłynęło 2002-04-05) and “Warsaw-Białołęka Detention Centre. Received 2002-04-15” (Areszt Śledczy. Wpłynęło 2002-04-15).

The Code of Criminal Procedure of 1997, which entered into force on 1 September 1998, defines detention on remand as one of the so-called “preventive measures” (środki zapobiegawcze). The other measures are bail (poręczenie majątkowe), police supervision (dozór policji), guarantee by a responsible person (poręczenie osoby godnej zaufania), guarantee by a social entity (poręczenie społeczne), temporary ban on engaging in a given activity (zawieszenie oskarżonego w określonej działalności) and prohibition on leaving the country (zakaz opuszczania kraju).

Article 249 § 1 sets out the general grounds for imposition of preventive measures. That provision reads:

“1. Preventive measures may be imposed in order to ensure the proper conduct of proceedings and, exceptionally, also in order to prevent an accused’s committing another, serious offence; they may be imposed only if the evidence gathered shows a significant probability that an accused has committed an offence.”

Article 258 lists grounds for detention on remand. It provides, in so far as relevant:

“1. Detention on remand may be imposed if:

(1) there is a reasonable risk that an accused will abscond or go into hiding, in particular when his identity cannot be established or when he has no permanent abode [in Poland];

(2) there is a reasonable risk that an accused will attempt to induce [witnesses or co-defendants] to give false testimony or to obstruct the proper course of proceedings by any other unlawful means;

If an accused has been charged with a serious offence or an offence for the commission of which he may be liable to a statutory maximum sentence of at least 8 years’ imprisonment, or if a court of first instance has sentenced him to at least 3 years’ imprisonment, the need to continue detention to ensure the proper conduct of proceedings may be based on the likelihood that a severe penalty will be imposed.”

The Code sets out the conditions governing the continuation of a specific preventive measure. Article 257 reads, in so far as relevant:

“1. Detention on remand shall not be imposed if another preventive measure is sufficient.”

Article 259, in its relevant part, reads:

“1. If there are no special reasons to the contrary, detention on remand shall be lifted, in particular if depriving an accused of his liberty would:

(1) seriously jeopardise his life or health; or

(2) entail excessively harsh consequences for the accused or his family.”

The Code not only sets out maximum statutory time-limits for detention on remand but also, in Article 252 § 2, lays down that the relevant court – within those time-limits – must in each detention decision determine the exact time for which detention shall continue.

Article 263 sets out time-limits for detention. In the version applicable up to 20 July 2000 it provided:

“1. When imposing detention in the course of an investigation, the court shall determine its term for a period not exceeding 3 months.

The whole period of detention on remand until the date of the first conviction at first instance may not exceed 2 years.

Only the Supreme Court may, on application made by the court before which the case is pending or, at the investigation stage, on application made by the Prosecutor General, prolong detention on remand for a further fixed period exceeding the periods referred to in paragraphs 2 and 3, when it is necessary in connection with a stay of the proceedings, for the purpose of a prolonged psychiatric observation of the accused or a prolonged preparation of an expert report, when evidence needs to be obtained in a particularly complex case or from abroad or when the accused has deliberately prolonged the proceedings, as well as on account of other significant obstacles that could not be overcome.”

On 20 July 2000 paragraph 4 was amended and since then the competence to prolong detention beyond the time-limits set out in paragraphs 2 and 3 has been vested in the court of appeal within whose jurisdiction the offence in question has been committed. In addition, new paragraph 5 was added. It provides:

“A decision of the Court of Appeal taken pursuant to paragraph 4 may be appealed against to the Court of Appeal sitting in a panel of three judges.”

Rules relating to means of controlling correspondence of persons involved in criminal proceedings are set out in the Code of Execution of Criminal Sentences (Kodeks karny wykonawczy) which entered into force on 1 September 1998.

The relevant part of Article 103 § 1 of the Code provides as follows:

“Convicted persons (...) have a right to lodge complaints with institutions established by international treaties ratified by the Republic of Poland concerning the protection of human rights. Correspondence in those cases (...) shall be sent to the addressee without delay and shall not be censored.”

Article 214 § 1 reads as follows:

“Unless exceptions are provided for in the present Chapter, a detainee shall enjoy at least the same rights as are secured to a convicted person serving a sentence of imprisonment under the ordinary regime in a closed prison. No restrictions shall be applied to him except such as are necessary to secure the proper conduct of criminal proceedings, to maintain order and security in a remand centre and to prevent demoralisation of detainees.”

Article 217 § 1 reads, in so far as relevant, as follows:

“(...) detainee’s correspondence shall be censored by [the authority at whose disposal he remains], unless the authority decides otherwise.”

Article 242 § 5 reads as follows:

“The prohibition of censorship shall also mean the prohibition of acquainting oneself with the content of the letter.”

On 1 September 1998 the Rules of Detention on Remand (Rozporządzenie Ministra Sprawiedliwości w sprawie regulaminu wykonywania tymczasowego aresztowania) entered into force.

§ 36 of the Rules provides:

“The detainee’s correspondence, including the correspondence with the international institutions for the protection of human rights, which act on the basis of international agreements ratified by the Republic of Poland, with the Ombudsman and public and local government institutions, is mailed through the intermediary of the organ at whose disposal he remains.”


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

The applicant was born in 1924 and lives in Piacenza.

On 8 April 1974 the applicant sued M.P. in the Piacenza District Court seeking damages for the loss she had sustained as a result of works carried out by her neighbour which had resulted, among other things, in sewage being dumped on her property.

Preparation of the case for trial began on 11 May 1974. Of the sixty- six hearings scheduled between 11 November 1974 and 15 June 1995 nineteen were adjourned at the request of the parties, three at the request of the applicant, two at the request of M.P., four by the court of its own motion, and one on account of a lawyers’ strike; twelve were devoted to organising expert evidence, twelve to the filing of documents and the hearing of witnesses, twelve to attempts to seek a friendly settlement, and one was adjourned in order to allow the parties to make their submissions.

In the meantime M. P.’s lawyer had filed a death certificate with the registry in respect of his client. At a hearing on 29 February 1996 the judge declared the proceedings interrupted. On 25 September 1996 the parties resumed the proceedings and the judge fixed 11 June 1998 as the date for hearing submissions. On an unspecified date the case was referred to the panel of judges dealing with the oldest cases (Sezioni Stralcio). At a hearing on 18 November 1999 the parties requested that a date be fixed for hearing oral submissions and the judge adjourned the case to 8 June 2000. The hearing was not held on that date, but adjourned to 12 June 2000. On that date the judge allowed the parties to take the files out.

In a judgment of 23 October 2000, the text of which was deposited with the registry on the same day, the Piacenza Court allowed the applicant’s claim in part and ordered M. P.’s heir to move the septic tank that had not been installed at the prescribed distance and to replace part of the applicant’s sullage pipes. It also awarded her 15,000,000 Italian lire (7,747 euros).

On 17 October 2001 the applicant lodged an application with the Ancona Court of Appeal under Law no. 89 of 24 March 2001, known as the “Pinto” Act, complaining of the excessive length of the above-described proceedings. The applicant requested the court to rule that there had been a breach of Article 6 § 1 of the Convention and to order the Italian Government to pay compensation for the non-pecuniary damage sustained. The applicant claimed 200,000,000 Italian lire (103,291.37 euros (EUR)) in non-pecuniary damages.

In a decision of 31 January 2002, the text of which was deposited with the registry on 13 February 2002, the Court of Appeal found that a reasonable time had been exceeded. It dismissed the claim for pecuniary damages on the ground that the applicant had failed to substantiate it, awarded her EUR 5,000 on an equitable basis in compensation for the non-pecuniary damage and EUR 860 for costs and expenses. The decision was served on the applicant on 13 March 2002.

The applicant appealed to the Court of Cassation against that decision on 21 May 2002 on the ground that the amount awarded her by the Court of Appeal was inadequate.

However, in a judgment of 12 November 2002, the text of which was deposited with the registry on 3 January 2003, the Court of Cassation declared the appeal inadmissible on the ground that it had been lodged out of time. The authorities paid the amounts due on 23 December 2003.

In a letter of 25 August 2003 the applicant informed the Court of the outcome of the domestic proceedings and asked it to resume its examination of her application.