Remainder inadmissible;Violation of Article 14+3 - Prohibition of discrimination (Article 14 - Discrimination) (Article 3 - Prohibition of torture;Effective investigation;Positive obligations);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Ksenija Turković

The applicant was born in 1988 and lives in Zagreb.

On 9 June 2013 Zagreb police (Policijska uprava Zagrebačka, hereinafter “the police”) received an emergency call informing them that two men were attacking a man and a woman of Roma origin.

The police immediately went to the scene, where they found the applicant and her partner Š.Š., and another individual, I.M., with whom the applicant and her partner had had a verbal and physical conflict. They all had visible injuries. Soon afterwards, nearby, the police found and arrested another man, S.K., who had also been involved in the conflict.

A preliminary report prepared by the police stated that the applicant and her partner had first had an argument with I.M. and S.K., during which S.K. had said “all Gypsies should be killed, we will exterminate you”. S.K. and I.M. had then attacked the applicant’s partner. The applicant and her partner had tried to escape but I.M. and S.K. had managed to catch them. S.K. had grabbed the applicant’s T-shirt and thrown her to the ground and then kicked her in the head. I.M. and S.K. had then continued beating the applicant’s partner, whose hands had been slashed with a knife by S.K..

The police report stated that the applicant had a contusion that was visible below her left eye. The emergency medical services also attended the scene. A doctor recorded the applicant’s injuries as minor bodily injuries. On the same day the applicant was examined at a hospital, where her injuries were confirmed. She was told to rest and take painkillers.

In connection with the incident, the police carried out an on-site inspection and a further assessment of the available material. The police also interviewed the applicant and her partner as well as the two assailants.

In his police interview of 9 June 2013 the applicant’s partner Š.Š. stated that he was of Roma origin. On the day of the incident he had been at a flea market with the applicant when some passers-by had pushed her. He had realised that it had been two young men and he had told the applicant to ignore them because they were drunk (“wasted”). One of them had heard him and had turned to Š.Š., saying “Fuck your Gypsy mother, who is wasted? Who are you to tell me that? You should all be exterminated, I fuck your Gypsy mother” (Jebem ti mater cigansku, tko je urokan, šta ti meni imaš govoriti, sve vas treba istrijebiti mamu vam cigansku jebem). The other man had also turned towards Š.Š., saying “Fuck your mother, you should all be exterminated, I will kill you” (Jebem vam majku, treba vas istrijebiti, ubit ću te). Š.Š. stated that he had then panicked and had drawn a knife in order to scare them. However, that had created a further outburst of anger from the two men; one of them had taken out a knife and they had started chasing Š.Š. As Š.Š. was running away, the applicant had joined him and they had started running away together, looking for help. However, the attackers had managed to get hold of Š.Š. and had started beating him. At that point the applicant had tried to help and had also been hit. The two men had then continued beating Š.Š., saying that he was a Rom and should be killed.

In her police interview of 9 June 2013 the applicant stated that she lived with Š.Š., with whom she had had two children. She confirmed Š.Š.’s version of events, saying that she had been pushed by the two men. After Š.Š. had reacted by saying that the men should be left alone because they were drunk, one of the two men had said, “Who is drunk? Fuck your Gypsy mother, you should all be exterminated, this will be a white Croatia again, you are garbage” (Tko je pijan, jebem ti mater cigansku, vas treba istrijebiti, ovo će ponovno biti bijela Hrvatska, smeće jedno). The applicant stated that after this the two men had started attacking Š.Š. She had tried to approach them to help Š.Š. but another woman had prevented her from doing so. However, at one point she had joined Š.Š. and they had started running away. The two men had then caught them and one of them had grabbed her by the T-shirt and said, “What are you going to do now you bitch? I will beat you now” (Što ćeš sad kujo jedna, sad ću te prebiti). He had then kicked her in the head. The two men had continued beating Š.Š., while she had run away and looked for help.

In their interviews of 9 June 2013 the two assailants explained that the conflict had broken out because Š.Š. had offended them by saying that they were drunk. They denied the conflict had had any racial overtones.

On 10 June 2013 the police lodged a criminal complaint against S.K. and I.M. with the Zagreb Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Zagrebu) for suspected commission of a hate crime, perpetrated by attempting to inflict grievous bodily harm on Š.Š., and motivated by the latter’s Roma origin. The applicant was mentioned in the criminal complaint as a witness.

In the course of the investigation the Zagreb Municipal State Attorney’s Office questioned the two suspects and on 17 June and 31 July 2013 it instructed the police to conduct an identification procedure and formal questioning of the applicant and Š.Š. as witnesses.

When questioned as a witness, Š.Š. repeated the statement he had given during the first police interview. He explained how, after the two men had pushed the applicant, one of them had turned towards him and uttered the insults related to his Roma origin (see paragraph 11 above). Š.Š. also stated that the applicant had been attacked after she had tried to help him when the two men were beating him up.

During her questioning as a witness, the applicant repeated the statement she had given during the first police interview (see paragraph 12 above).

Upon completion of the investigation, on 30 October 2013 the Zagreb Municipal State Attorney’s Office indicted S.K. and I.M. in the Zagreb Municipal Criminal Court (Općinski kazneni sud u Zagrebu) on charges of making serious threats against Š.Š. and inflicting bodily injury on him, associated with a hate-crime element. The indictment also made reference to the attack on the applicant, suggesting that she had been kicked in the head while trying to save Š.Š. from the beating.

The indictment was confirmed and the case was sent for trial on 21 March 2014.

Meanwhile, on 31 October 2013 the Zagreb Municipal State Attorney’s Office informed Š.Š., as a victim in the proceedings, that an indictment had been lodged against S.K. and I.M. in connection with the attack on him. On 23 January 2014 the Zagreb Municipal State Attorney’s Office informed Š.Š.’s lawyer, L.K., of the institution of the proceedings in the Zagreb Municipal Criminal Court.

At a hearing on 9 October 2014 the Zagreb Municipal Criminal Court questioned Š.Š. He repeated the statements given to the police. When asked whether the two assailants had said anything to the applicant related to Š.Š.’s racial origin, Š.Š. stated that she had told him something but he could no longer remember the details. He thought that she had said that the two assailants had told her that she was also Roma if she was with a Roma man. On the basis of an agreement between the parties, including Š.Š.’s representative, the applicant’s statement to the police was admitted in evidence and she was not questioned further at the trial.

By a judgment of 13 October 2014 the Zagreb Municipal Criminal Court found S.K. and I.M. guilty as charged and sentenced them to one year and six months’ imprisonment.

In the meantime, on 29 July 2013 the applicant and her partner, represented by the lawyer L.K., had lodged a criminal complaint with the Zagreb Municipal State Attorney’s Office against two unidentified suspects in connection with the incident of 9 June 2013 (see paragraphs 6-13 above). It was alleged in the criminal complaint that one of the suspects had first pushed the applicant and had then told her that she was a “bitch” (kuja) who had a relationship with a Roma man and that she would be beaten. She had been grabbed by the T-shirt and thrown to the ground, banging her head. The assailants had then continued beating Š.Š., threatening to kill him and the applicant. The criminal complaint also alleged that the assailants had stolen two mobile telephones from Š.Š. at the same time.

The applicant’s representative tried to obtain the relevant information about the attackers from the police on the grounds that she needed the information in order to institute court proceedings. On 12 November 2013 the police informed the applicant’s representative that they had lodged a criminal complaint with the Zagreb Municipal State Attorney’s Office against two individuals in connection with a suspicion that they had committed the offence of attempted grievous had been classified as a hate crime. The applicant’s representative was also informed that she should contact the Zagreb Municipal State Attorney’s Office for all further information.

The applicant’s representative then informed the Zagreb Municipal State Attorney’s Office that the applicant and her partner would participate in the proceedings as victims and requested to be informed of all relevant procedural steps. On 17 February 2014 the applicant’s representative, invoking the domestic authorities’ obligations under the Convention, requested information from the police and the Zagreb Municipal State Attorney’s Office about the criminal complaint lodged on behalf of the applicant.

On 31 October 2014 the Zagreb Municipal State Attorney’s Office rejected the applicant’s criminal complaint. It examined the materials related to the investigation into the incident of 9 June 2013 and the criminal proceedings against S.K. and I.M. (see paragraphs 10-22 above). The relevant part of the decision reads:

“In view of the above, it is established without any doubt that on the day in issue there was a physical conflict between S.K. and I.M. and Š.Š. whereby [S.K. and I.M.] caused bodily injury to and threatened Š.Š., and those offences were committed primarily because of hatred towards Roma.

However, the statements of the witnesses Š.Š. and Maja Škorjanec show that [S.K. and I.M.] pushed her in the back, causing her to fall onto a [flea market] stall, not because she was the partner of Š.Š., who is of Roma origin, but because they were drunk and they accidentally pushed her towards the stalls.

Furthermore, the medical documentation regarding Maja Škorjanec, as well as the records of the questioning of the witnesses Š.Š. and Maja Škorjanec and the statements of S.K. and I.M. given in their defence in the proceedings before the Zagreb Municipal Criminal Court, show that there is no doubt that S.K. kicked Maja Škorjanec in the left side of the face with the result that she sustained a minor bodily injury.

Given that there is no indication that S.K. and I.M. inflicted injuries on Maja Škorjanec because of hatred towards Roma, as she is not of Roma origin, the criminal offence under Article 117 § 2 in conjunction with Article 87(21) of the Criminal Code has not been established.

In particular, the injury which Maja Škorjanec sustained would, by its nature, suggest an injury within the meaning of Article 177 § 1 of the Criminal Code. ... As criminal proceedings for the offence under Article 177 § 1 of the Criminal Code are instituted on the basis of a private prosecution, the criminal complaint ... must be rejected ... on the grounds that the impugned criminal offence is not an offence that is prosecuted of the prosecutor’s own motion.

With regard to the criminal offence under Article 139 § 2 in conjunction with Article 87(21) of the Criminal Code, it should be pointed out that it is obvious that S.K. and I.M. threatened Š.Š. and not Maja Škorjanec ... Moreover, ... it does not follow from the record of Maja Škorjanec’s witness statement, which has been examined, that S.K. and I.M. threatened her, but rather Š.Š., and thus the criminal complaint ... should be rejected on the grounds that the impugned criminal offence is not an offence that is prosecuted of the prosecutor’s own motion.”

The applicant was informed that she could take over the prosecution of S.K. and I.M. as a subsidiary prosecutor, as provided for under the relevant domestic law (see paragraph 30 below).


Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)

Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Paulo Pinto De Albuquerque

The applicant was born in 1952 and lives in Celje.

He had been a professional truck driver until he became unable to work due to epilepsy.

On 29 September 2003 the applicant was certified as having a “category III work-related disability” as a result of his condition. He was found to have a right to be reassigned to a suitable position of employment where he and others would not be at risk because of his condition, with (retroactive) effect from 14 August 2002.

On 21 February 2005 the Celje regional unit of the Pension and Disability Insurance Institute of Slovenia (hereinafter “the regional ZPIZ”) granted the applicant a so-called “allowance for the period of waiting to be reassigned to or employed in a different appropriate position of employment” (hereinafter “waiting period allowance”) from 8 October 2004. Though the sums appear to be lower during the first few months, he had been subsequently receiving around 390 euros (EUR) per month in waiting period allowance. The regional ZPIZ relied on section 123 of the Pension and Disability Insurance Act (hereinafter “the 1992 Act”) and section 446 of the new Pension and Disability Insurance Act (hereinafter “the 1999 Act” – see paragraphs 24 and 25 below). It noted that the applicant had been registered as unemployed on 3 March 2003 and had been a beneficiary under section 22 of the 1999 Act from 1 March 2003 to 7 October 2004. Thus, once his unemployment allowance had come to an end he had become entitled to a waiting period allowance under section 123 of the 1992 Act (see paragraph 24 below). The regional ZPIZ also noted that, under section 193 of the 1992 Act, beneficiaries were entitled to a waiting period allowance until they fulfilled the conditions for retirement (ibid.).

On 15 October 2010 the applicant’s doctor informed the regional ZPIZ about a shoulder injury the applicant had sustained and requested a reassessment of his level of disability.

On the basis of, inter alia, information provided by the applicant’s doctor, the regional ZPIZ, on 2 February 2011, decided that the applicant had a right to be reassigned to another position of employment with several limitations, such as not to work at unprotected heights or drive category C and E vehicles, with effect from 1 February 2011. Subsequently, on 28 June 2011 it adopted a decision granting him a disability allowance (nadomestilo za invalidnost) from 24 February 2011 onwards. The regional ZPIZ relied on the 1999 Act, which had introduced certain new disability benefits (the term “disability benefit” is used to cover any type of allowance that arises from a disability) and discontinued some of those provided for under the 1992 Act, including the waiting period allowance. Sections 397 and 446 of the 1999 Act stipulated that a right to a disability allowance applied as from 1 January 2003 (see paragraph 25 below). The regional ZPIZ noted in its decision that the applicant had not been insured under the compulsory insurance scheme at the onset of his disability, but had been registered as unemployed on 3 March 2003 within thirty days of the final decision on his disability, as required by section 97 of the 1999 Act. It was established that his capacity to work had in fact further reduced, even though the category (III) of his disability remained unchanged. The regional ZPIZ found that, pursuant to section 94(1)(1) and (3)(1) of the 1999 Act, he should receive a benefit in the form of disability allowance, which in his case amounted to EUR 192.91. It drew the applicant’s attention to section 185 of the 1999 Act, which required beneficiaries to inform the ZPIZ of any change in circumstances which could affect their rights under that Act (see paragraph 26 below).

On 21 July 2011 the applicant appealed against the above decision, arguing that in determining the amount of his disability benefit, the regional ZPIZ should have respected the principle of acquired rights. He pointed out that his benefit had reduced considerably, even though his disability had in fact worsened, and claimed that such a decision was unlawful.

On 21 October 2011 the central Pension and Disability Insurance Institute of Slovenia (hereinafter “the central ZPIZ”) dismissed the applicant’s appeal, confirming that the regional ZPIZ had properly applied the law and correctly calculated the amount of his disability allowance.

On 5 December 2011 the applicant lodged a claim with the Celje Labour and Social Court challenging the above decisions. He reiterated that the disability allowance granted to him under the 1999 Act violated his acquired rights and that instead of increasing his benefit it reduced it by half, which was unlawful and unconstitutional.

On 26 March 2012 the Celje Labour and Social Court dismissed the applicant’s claim. It explained that while recipients of disability-related rights under the 1992 Act retained their acquired rights after the date set out in section 446 of the 1999 Act, in the applicant’s case a reassessment of his disability had been carried out on 2 February 2011 due to a worsening of his condition (see paragraph 10 above), which had resulted in further workplace limitations and his rights being consequently determined anew. In cases where a fresh assessment was made the 1999 Act was to be applied. The court concluded that the 1999 Act did not contain the right to a waiting period allowance. Instead, under section 94, it provided for the disability allowance (see paragraph 25 below) which had been correctly granted to the applicant.

On 25 April 2012 the applicant appealed against the judgment, repeating the complaints he had made before the first-instance court and alleging that he ought to have been informed of the consequences of a request for a reassessment of his disability. If that had been the case, he would have “forbidden” his doctor from making such a request. Lastly, he reiterated that the decision of the regional ZPIZ of 28 June 2011 (see paragraph 10 above) was unlawful and unconstitutional, as it violated his right to social security; he pointed out that he was unable to survive on the newly determined disability allowance.

On 21 June 2012 the Higher Labour and Social Court dismissed the applicant’s appeal, confirming the position of the lower court that the applicant’s case concerned a change in the level of disability, which had required a fresh determination of his disability benefit. In such a situation, section 397(3) of the 1999 Act provided that the applicant acquired rights under the Act. Also, since the applicant’s rights had been determined anew, the Higher Labour and Social Court concluded that there had been no violation of his acquired rights related to social security, and thus no violation of the Constitution.

On 4 September 2012 the applicant lodged an appeal on points of law before the Supreme Court, arguing that he could not have legitimately expected that the worsening of his disability would result in a severe reduction of his disability benefit. In that connection, he alleged that the Higher Labour and Social Court’s view that the reduction did not interfere with his acquired rights or constitute a violation of his constitutional right to social security was arbitrary, as the court had provided no reasoning for that conclusion. The applicant further alleged that the newly determined amount of disability benefit interfered with his constitutional right to property.

On 5 March 2013 the Supreme Court dismissed the applicant’s appeal on points of law, finding that the Higher Labour and Social Court had sufficiently explained that the change in his level of disability had required a fresh determination of his benefit in accordance with the 1999 Act.

On 21 May 2013 the applicant lodged a constitutional complaint against the Supreme Court’s judgment, alleging a violation of his constitutional rights to property and social security. He argued that the reduction in the disability benefit had put his subsistence at risk and failed the test of proportionality.

On 18 November 2013 the Constitutional Court refused to accept the applicant’s complaint for consideration on the merits, referring to section 55b(2) of the Constitutional Court Act (see paragraph 27 below).

In the meantime, on 22 May 2013, the applicant fulfilled the conditions for a retirement pension in the amount of EUR 374.73 and his disability allowance was discontinued from that date. He thus received the disability allowance for a period of twenty-seven months.

Data concerning the applicant’s income provided by the Slovenian tax authorities shows that he received EUR 4,908 in 2010 in pension and disability insurance and, after the impugned change in his allowance, EUR 2,902 in 2011 and EUR 2,480 in 2012.


André Potocki;Angelika Nußberger;Carlo Ranzoni;Ganna Yudkivska;Khanlar Hajiyev;Yonko Grozev

The applicant, Mr Leonid Yuriyovych Kholodov, is a Ukrainian national who was born in 1964 and lives in Kharkiv.

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

The applicant participated in the clean-up operations following the Chernobyl disaster and has special status as a “first category liquidator”. He is a second-degree disabled person as a result of his participation in the clean-up operations. In 2012 a commission of medical experts found that the applicant had lost 80% of his working ability.

The applicant suffers from multiple ailments of his joints. He has been diagnosed with polyarticular rheumatoid arthritis of his feet joints; arthritis of the left knee joint and the right ankle joint; and rheumatoid arthritis of the right elbow joint.

The applicant is a practising lawyer. He supports two daughters who were born in 2008. Owing to his condition the applicant is only able to walk for short distances and can hardly move during periods of exacerbation. The applicant uses his car extensively for personal, family and professional purposes. He has had a driving licence since 1986.

On 27 December 2013 the applicant caused a traffic accident after his negligent driving led to his car being hit by another car. Both cars were damaged, with that of the applicant being damaged in several places, including in the steering mechanism. The applicant admitted his fault.

On 18 February 2014 the Dzerzhynskyy District Court of Kharkiv found the applicant liable for a breach of traffic regulations resulting in damage to vehicles. When determining the penalty the court had regard to the nature of the offence and decided to suspend the applicant’s driving licence for one year.

The applicant appealed, arguing that the suspension of his driving licence was an excessively severe punishment in his case. He asked for the penalty to be converted into a fine. The applicant contended that in view of his disability a car was indispensable for his professional activities and a driving ban would eventually worsen his financial position and ability to support his family. Moreover, he also used the car for personal and family purposes on a daily basis. The applicant submitted that he had had a driving licence since 1986 and that he had not committed any other administrative offences. He asked the Kharkiv Regional Court of Appeal (“the Court of Appeal”) to take into account the fact he had admitted being at fault in the accident and that his car had been badly damaged.

By a final decision of 19 March 2014 the Court of Appeal amended the penalty and reduced the term of suspension of the licence to nine months. In its reasons the Court of Appeal first stated that there had been no evidence to suggest that the applicant’s disability was the sole reason for his using a car. Nor was a car the sole source of his income given that the applicant had a lawyer’s licence. The Court of Appeal then had regard to the facts that the applicant was a disabled person and that he had participated in the Chernobyl clean-up operation. It also noted that the applicant had admitted his fault but he had not expressed remorse. In addition, the applicant had not reimbursed the other party for the damage.

Article 124 of the Code of Administrative Offences of 1984 provides for administrative liability for breaches of traffic regulations which result in damage to vehicles, goods, roads, streets, railway level crossings, road construction equipment or other objects. It provides for a fine or a suspension of the offender’s driving licence for a period of six months to one year as a penalty for such an offence.


András Sajó;Guido Raimondi;Helen Keller;Nebojša Vučinić;Paulo Pinto De Albuquerque

The cases originated in three separate applications against Serbia (see list appended), lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”).

The persons stated as the applicants in the application forms were Mr Milomir Vidić (application no. 60/10), Mr Radomir Aleksić (application no. 77/10), and Mr Petronije Perić (application no. 110/10). They were all Serbian nationals, born in 1960, 1935 and 1953, respectively. Mr M. Jevtović, a lawyer practising in Užice, claimed to represent the applicants before the Court. The Serbian Government (“the Government”) were represented by their Agent, Mr S. Carić.

The applications were lodged on 6 November 2009 and concerned the non-enforcement of four final court judgments rendered against a socially/State-owned company (see, for example, R. Kačapor and Others v. Serbia, nos. 2269/06, 3041/06, 3042/06, 3043/06, 3045/06 and 3046/06, 15 January 2008). Enclosed with the application forms were the powersofattorney dated 15 October 2009 and signed “Vidić Milomir”, “Radomir Aleksić” and “Perić Petronije”. The powers-of-attorney were also signed by Mr Jevtović and stamped with his stamp.

On the basis of signed declarations according to which the Government undertook to pay to each applicant 2,100 euros in respect of non-pecuniary damage and legal costs plus the sums awarded in the final domestic decisions, on 13 November 2012 the Court decided to strike the applications out of its list of cases.

By letter of 20 February 2013 the Government notified the Court that Mr Milomir Vidić, Mr Radomir Aleksić, and Mr Petronije Perić had actually died on 1 June 2003, 16 December 2004 and 21 August 2004 respectively, that is before the applications had been lodged.

In his reply of 30 April 2013 Mr Jevtović did not contest that Mr Milomir Vidić, Mr Radomir Aleksić, and Mr Petronije Perić had died before the applications were lodged, but stated that he had been unaware of this fact at that time, because he had represented those applicants, along with many of their colleagues. Since his clients performed construction work in the field, he was unable to meet them all, but asked some of them to have powers-of-attorney signed by their colleagues and to bring those forms to him. He also stated that he had no reason or interest in lodging applications on behalf of dead persons, when he could have lodged the application on behalf of their heirs. In this respect, Mr Jevtović produced powerofattorney forms signed by the heirs of Mr Milomir Vidić, Mr Radomir Aleksić and Mr Petronije Perić authorising him to receive the amounts agreed in the friendly settlement declarations.

On 1 October 2013 the Court decided to restore the applications to its list of cases.


Preliminary objection joined to merits and dismissed (Article 34 - Victim);Remainder inadmissible;Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award

Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall

The applicant was born in 1950 and lives in Belgrade. The applicant’s son, Mr Dejan Petrović, was born in 1973 and died on 15 February 2002 in hospital, a month after reportedly having fallen from the window of a police station in Belgrade.

At about 9.30 p.m. on 16 January 2002 Mr Dejan Petrović was arrested by the Vračar Police Department (OUP Vračar-SUP Beograd) on suspicion of having snatched a woman’s handbag earlier that evening and was kept overnight in police custody. Mr Dejan Petrović, then aged twenty-nine, was apparently known to the police as an alleged drug user and as having been involved in similar incidents previously.

According to the police reports, the following morning at 8.30 a.m. Mr Dejan Petrović was questioned by three police officers, D.K., S.K. and N.K. Mr Dejan Petrović allegedly confessed that he had committed the robbery in question and had hidden a sum of money (around 20,000 Serbian dinars (RSD)) in his home. After an unsuccessful search of the Petrović family’s flat that morning, the police officers left the house together with Mr Petrović in handcuffs.

The applicant alleged that her son had been visibly distressed and very pale, and his mouth had been yellowish. On the way out, he had turned to her and said “call a lawyer, I have done nothing, they will kill me”.

According to the incident report of 17 January 2002 drawn up by Major M.M., the police officers’ superior, Mr Dejan Petrović had been brought back handcuffed, at around 10.30 a.m., to office no. 24 on the second floor of the Vračar police station to be questioned further. As they entered the office, while D.K. was approaching his desk, S.K. was standing and N.K. was closing the office door, Mr Dejan Petrović suddenly rushed forward, jumped head first through a closed window, breaking a window pane, and fell out into the courtyard. None of the police officers had been able to prevent it. The police officers ran out to the courtyard and, as Mr Dejan Petrović showed some signs of still being alive, they took the handcuffs off, while some other colleagues called an ambulance.

Around noon, the police informed the applicant’s family that Mr Dejan Petrović had jumped from the second floor of the police premises and that he had been taken to the emergency unit of the Serbian Clinical Centre in Belgrade.

Upon their arrival at the emergency unit, the applicant and her husband (Mr Dejan Petrović’s father) were informed that at around 11.10 a.m. the hospital had admitted an unidentified and severely injured patient who had jumped from the second floor of a building. He was in a comatose state, with a fracture of his left ribs and femur and contusion and haematoma of the liver, and was undergoing surgery that could take several hours.

While the surgical operation was being carried out, the applicant’s husband went to the Vračar Police premises. Following an on-site inspection (see paragraphs 18-19 below), he was shown the scene of the incident. The applicant claimed that her husband, as well as certain media, had initially been informed that their son, who had been handcuffed and in his winter jacket, had been alone in the office when he had jumped through the window, but had later been told that their son had broken away in the presence of the three police officers.

Mr Dejan Petrović remained in a comatose state while in hospital, except between 26 and 28 January 2002, when he showed some signs of consciousness and movement.

According to the medical certificate issued by the Serbian Clinical Centre, Mr Dejan Petrović died from sepsis and cardiac arrest on 15 February 2002 at 4.30 a.m. Following a request by the investigating judge (M.P.) of the Belgrade District Court, the post-mortem examination of Mr Dejan Petrović’s body was carried out on 18 February 2002 at 9 a.m. by two doctors, Sl.K. and V.D.J., of the Institute for Forensic Medicine of the Faculty of Medicine in Belgrade. The autopsy report stated that Mr Dejan Petrović’s death had been violent and caused by damage to his brain (vitalne centre) and complications thereafter. It further concluded that the damage to his brain, as well as the rib and femur fractures and other external and internal bodily injuries described in the report, had been “inflicted with a blunt, heavy and swinging object (naneti tupim, teškim i zamahnutim predmetom)”. No photographs or results of any toxicological analysis have been submitted to the Court.

Following a telephone call from the Belgrade criminal police department for investigative and operational affairs (Odelenje za uviđajno-operativne poslove Uprave kriminalističke policije (UKP) - SUP Beograd; hereinafter “the DIOA”), the investigating judge on duty, V.M., from an unspecified court, arrived at the Vračar Police Department at an unspecified time to inspect the scene of the incident. D.Z., from the DIOA, and a crime-scene technician, M.K., from the Belgrade criminal police forensics unit (Odeljenje kriminalističke tehnike UKP-a) were also present.

According to the investigating judge’s one-and-a-half-page report of his inspection of the scene of the incident (zapisnik o uviđaju), upon his arrival at the Vračar Police Department, unspecified police officers had shown him office no. 24 and a broken window pane in the left corner of the window, closest to the floor. As it was a double, wooden multi-paned window, and as he had been informed that Mr Dejan Petrović had jumped out through the window pane by breaking the glass, he had examined the pane in question. As he had seen no blood stains, hair or any other trace of this nature, he had asked the two above-mentioned investigators whether they had seen any traces, in order to inspect them, but they had both responded in the negative. He had ordered the crime-scene technician to draw a sketch of the scene and to photograph it, as well as to measure the size of the window.

The investigating judge had noted the broken window pane, as well as pieces of glass between the two window frames and on the floor below the inside window. In the snow-covered courtyard of the police building, into which the suspect Mr Dejan Petrović had allegedly fallen, he had “noticed footprints and trodden snow of an indeterminate shape below the window”, but had not found “any blood stains or other physical traces”.

The sketch of the scene of the incident, thirteen photographs of the office and three of the courtyard were an integral part of the investigating judge’s report. The copies of the photographs submitted to the Court show an armchair under the broken window with a cabinet to its right and a hat stand to its left. In the report on the forensic inspection of the scene of the incident (izveštaj o kriminalističko-tehničkom pregledu lica mesta), the crime-scene technician noted the following: (a) as regards biological traces, the investigating judge had not requested that fingerprints be lifted and collected; (b) as regards the other evidence and objects found, broken glass had been noticed in the pane of the lower left part of the interior and exterior window frames. The window pane’s frames measured 50 x 55 and 45 x 50 centimeters respectively and stood one metre from the office floor. Both window frames had been found closed. Pieces of broken glass had been found between the interior and exterior window frames and on the windowsill. The outside window stood nine metres above the ground. The trodden snow and pieces of glass had been found 1.5 metres away from the building’s wall. Other traces had not been found.

According to a separate report on the questioning of the three police officers drawn up by D.Z. from the DIOA, they had provided concurring statements to the same effect as those detailed in the incident report (see paragraph 11 above). The police officers also stated that Mr Dejan Petrović had, as usual, been very well-behaved that morning and had confessed to committing the robbery.

A report was drawn up, apparently in the framework of a fact-finding visit conducted on 17 January 2002, at an unspecified time, by Major D.T. and Captain Ð.D. of the Belgrade Police Internal Control Department (Odeljenje za kontrolu zakonitosti u radu SUP-a Beograd). The report restated the events as outlined by the previous reports (see paragraphs 11 and 20 above). It was further noted that Mr Dejan Petrović’s parents had mentioned that he had been taking antidepressants as part of his therapy for drug addiction in order to prevent any possible self-injury. Regarding the police officers’ accountability, the inspectors considered that the police officers in charge had undertaken preventive, but apparently insufficient, measures for the protection of Mr Dejan Petrović. For that reason, disciplinary action against S.K. and D.K. and a verbal reprimand to N.K. by her superior were recommended. The inspectors also recommended that the police ensure appropriate conditions, for example, window security bars, on premises where apprehended individuals were questioned.

In the framework of a preliminary disciplinary inquiry (prethodni disciplinski postupak) that evening, the three police officers were questioned again, one by one, by their superior, Major M.M. The three officers repeated their earlier statements.

On 7 March 2002 S.K. and D.K. were prosecuted in disciplinary proceedings for gross misconduct, namely, omitting to take adequate measures for the protection of Mr Dejan Petrović’s safety while in custody. The disciplinary body heard the officers as the suspects, as well as N.K. as a witness, all of whom reiterated their earlier recollection of the incident. The police officers were acquitted at two levels, the last decision being rendered on 10 May 2002. It was found thathave done more than they had done to protect Mr Dejan Petrović and prevent his suicide.

On 28 January 2002 the applicant’s husband lodged a criminal complaint against police officer D.K. on behalf of the Petrović family, on the ground that there was a reasonable suspicion that he had forcibly extracted a statement from Mr Dejan Petrović. In the complaint it was claimed that the police officers had used force in order to extract a statement and had severely ill-treated Mr Dejan Petrović to such an extent that it had driven him to jump out of the office window. The family also alleged that the police officers had failed to disclose Mr Dejan Petrović’s identity and all the circumstances of the incident to the emergency medical team.

In the meantime, on 24 January 2002, the Belgrade police sent the District Public Prosecutor’s Office in Belgrade (hereinafter “the DPPO”) the two reports of 17 January 2002 (see paragraphs 21-22 above). On 14 May 2002 and 12 June 2002, respectively, the DPPO also received the autopsy report and the report on the forensic inspection of the scene of the incident (see paragraphs 16 and 18-19 above).

On 11 October 2002 the DPPO requested information from the Belgrade Police Internal Control Department on the outcome of the disciplinary proceedings against the police officers who had been present during the incident. The DPPO also supplied that department with its own case file to enable them to establish the facts of the case more easily. The requested documentation from the disciplinary proceedings was received by the DPPO on 14 November 2002.

On an unspecified date, the applicant’s husband extended the criminal complaint to include two other police officers who had been involved in the incident.

On 9 January 2003 the DPPO requested a commission of forensic experts from the Institute for Forensic Medicine of the Belgrade Faculty of Medicine to give their opinion on what other causes, apart from a fall from the window, could explain Mr Dejan Petrović’s injuries. On 1 August 2003 the Institute for Forensic Medicine requested the case file and the DPPO sent it to them a month later. On 18 September 2003 the DPPO requested an investigating judge of the District Court to issue an order for a forensic opinion, as the Institute could apparently not proceed on the basis of the DPPO’s order alone. The investigating judge did so on 8 October 2003.

Almost a year later, in an expert opinion dated 13 September 2004, the experts stated, on the basis of the autopsy report and other medical records, that a person of Mr Dejan Petrović’s height and build could have “squeezed through” the window in question. They further maintained that Mr Dejan Petrović’s fatal injuries could have been caused by his jump from the window and his falling on a hard surface. Finally, they concluded that no other injuries, lacerations, scratches or bruises of a nature or location which would indicate that they had any cause other than the one mentioned above had been recorded in the autopsy report or in the hospital’s files.

On 1 November 2004 the DPPO rejected the criminal complaint on the ground that there was no reasonable suspicion that the suspects had committed the alleged crime. The applicant’s husband was notified accordingly and informed that he could pursue a subsidiary criminal prosecution (preuzeti krivično gonjenje) within eight days of the date that decision had been served on him by filing a request for an investigation (zahtev za sprovođenje istrage).

On 16 February 2005 the Petrović’s family lodged with the DPPO a new and more detailed criminal complaint against the police officers (P.N., N.K., D.K. and S.K.) for causing severe bodily harm (teške telesne povrede), extracting a statement by coercion (iznuđivanje iskaza) and ill-treatment in the discharge of their official duties (zlostava u službi). In the complaint they expressed their doubt that Mr Dejan Petrović had jumped out of the office window of his own volition and their suspicion that the suspects had thrown their son’s corpse out of the window in order to conceal previous ill-treatment. The complaint pointed out certain alleged contradictions and shortcomings in the previous investigative measures and reports, and proposed numerous investigative activities to be carried out in order to investigate the circumstances of Mr Dejan Petrović’s death adequately.

On 22 March 2005 the DPPO in Belgrade rejected that criminal complaint for the same reasons relied on in its decision of November 2004, and repeated the information it had provided about the possibility of a subsidiary prosecution. That letter was served on the applicant on 8 April 2005.

Following the rejection of the first criminal complaint (see paragraph 30 above), on 17 November 2004 the applicant attempted to take over the prosecution as a subsidiary prosecutor by filing a request for an investigation with the District Court in Belgrade and subsequently, on 11 April 2005, a request to broaden the scope of the investigation (zahtev za proširenje istrage). She relied on and reaffirmed the assertions and requests she had made in her second criminal complaint (see paragraph 31 above).

In response to a request of 22 March 2005 by the District Court’s investigating judge, B.P., as well as a reminder sent on October 2005, on 15 January 2006 two forensic pathologists, Dr Z.S. and Dr N.M., from the Military Medical Academy in Belgrade provided an expert opinion. Relying on the previous medical and autopsy reports, they found that the location, distribution and types of injuries observed on Mr Dejan Petrović indicated that they were severe and life-endangering, and that they could undoubtedly have been the result of a fall from the second floor, but only through an open window. In particular, they found that taking into account the circumstances of the incident, including Mr Dejan Petrović’s build, his winter clothes and his handcuffs, the size of the window pane in question and the position of the furniture and the window in the office, it would have been practically impossible for him to have broken through the window and jumped out. Otherwise, it would mean that he had been able to “fly horizontally” over the armchair and break the window with his head exactly in its centre.

On 18 April 2006 the investigating judge held a hearing and interviewed the suspects. They repeated their earlier statements. S.K. added that Mr Dejan Petrović had jumped from the floor one metre away from the window and gone through it without touching the armchair, which was under the window; none of the furniture had fallen over or been moved.

On 8 May 2006 the investigating judge refused to open the investigation sought by the applicant (izrazio neslaganje sa zahtevom), and referred the case to a three-judge criminal panel (see paragraph 49 below).

On 17 July 2006 the three-judge panel of the District Court upheld the investigating judge’s findings, relying on the case file, namely, the “concordant statements of the suspects” and the findings and opinions of the forensic experts in 2004 and 2006, “which [were] consistent and indicate[d] that all the injuries of the deceased could have been caused at the same time by his fall from a height of nine metres onto a hard surface”. The applicant was instructed that she could appeal against that decision within three days from the date on which the decision was served on her and she did so on 2 November 2006, reiterating her previous arguments.

On 30 November 2006 the Supreme Court of Serbia rejected the applicant’s appeal as unfounded. In reaching that decision, by reference to the expert commission’s forensic findings of 2004, it upheld the lower court’s reasoning as clear, conclusive and convincing. That decision was served on the applicant on 20 February 2007.

On 7 March 2007 the applicant applied to the Chief Public Prosecutor’s Office (inicijativa za podizanje zahteva za zaštitu zakonitosti), urging him to lodge a request with the Supreme Court for the protection of legality (zahtev za zaštitu zakonitosti) against the decision of 30 November 2006 on her behalf.

On 27 August 2007 the Chief Public Prosecutor informed the applicant that on that same day he had accepted her motion and had lodged a request for the protection of legality against the decision of 30 November 2006, submitting, in particular, that: (a) the court had based its finding on evidence that had been challenged by the applicant and, which, according to him, had been flawed by inconsistencies; (b) the court had dismissed the applicant’s appeals without addressing her arguments; and (c) the collection and examination of evidence had been superficial, which had resulted in the incorrect and implausible conclusion reached by the court.

On 8 February 2008 the Supreme Court of Serbia, sitting in a different composition from that of 30 November 2006, rejected the Prosecutor’s request. Having regard to the case file and a hearing in the presence of the three suspects and their lawyer, the court stated the following: (a) the forensic experts had not ruled out that the victim might have sustained the injuries while breaking the window and falling on a hard surface; (b) no evidence had shown that the suspects had caused the victim any bodily harm by any other means; (c) according to the relevant evidence, there was no reasonable suspicion that the suspects had committed the alleged crimes which would warrant the opening of criminal proceedings; and, lastly, (d) the impugned decision did not ultimately preclude the opening of criminal proceedings if the victim, as a subsidiary prosecutor, submitted new evidence which had not existed or had been unknown at the time of her previous request for an investigation. This decision was served on the applicant on 30 May 2008.

In December 2002 the applicant and her husband brought a joint civil action against the respondent State and the Ministry of the Interior to obtain redress for the mental anguish suffered as a consequence of Mr Dejan Petrović’s death. They relied on the Obligations Act and various international human rights instruments. The defendant contested the claim in general, but did not make any further clarification in that respect.

In its judgment of 4 June 2007, the First Belgrade Municipal Court clarified that although it could not ascertain a reliable course of the events in question or anyone’s clear fault, this was not its task in any event. Referring to the 2006 forensic experts’ report and Article 172 of the Obligations Act (see paragraphs 34 above and 51 below, respectively), the court concluded that the respondent State should compensate the plaintiffs on the basis of the State’s liability for its officials’ omissions, which had undoubtedly occurred given that Mr Dejan Petrović had sustained injuries and died while in police custody under the supervision of State officials. Pursuant to Articles 200 and 201 of the Obligations Act, it awarded each plaintiff RSD 1,000,000 for non-pecuniary damage, and made an award in respect of costs.

That judgment was upheld on the merits by the District Court and the Supreme Cassation Court on 23 February 2009 and 24 June 2010 respectively. The sums awarded were paid on 7 December 2010.


CASE OF RIMSCHI v. THE REPUBLIC OF MOLDOVA

Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention)

Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra

The applicant was born in 1952 and lives in Chişinău. At the time of the events he was an academic and member of the Moldovan Academy of Science.

On 21 July 2009 the applicant was arrested and charged with the offence of producing and putting into circulation counterfeit money. Since then he has remained remanded in custody pending criminal investigation and trial. The detention warrants were prolonged every month initially and every three months once the case had reached the Ialoveni District Court. Each time the reasons given for the detention were that the applicant had been accused of a serious offence punishable with imprisonment of up to fifteen years, that the criminal case was complex and that, if released, he might interfere with the investigation or collude with other co-accused, or abscond or reoffend.

The last two extensions of the applicant’s detention before the lodging of the present application took place on unspecified dates in May and August 2011. The applicant argued that there was no risk of his interfering with the investigation since all the witnesses and the parties to the proceedings had already been heard and all the evidence had been examined by the court. He also submitted that there were no reasons to believe that he would abscond or re-offend and agreed to be placed under house arrest if he could not be released. The applicant also argued that according to Article 186 § 8, once the case had been referred to a court, the detention could not last longer than six months, other than in exceptional cases.

The Ialoveni District Court dismissed the applicant’s arguments and, relying on the same grounds as before, extended his detention for a further three months. The court stated that the case was exceptional within the meaning of Article 186 § 9 of the Code of Criminal Procedure. The decisions of May and August 2011 contain similar wording. The applicant’s appeals against them were rejected by the Court of Appeal.

On 30 January 2012 the applicant was convicted and sentenced to twelve years’ imprisonment. His appeal was dismissed by the Court of Appeal on 10 April 2013 and the Court has not been informed about the proceedings before the Supreme Court of Justice.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention)

András Sajó;Egidijus Kūris;Guido Raimondi;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano

The applicants were born in 1985 and 1987 respectively and live in Istanbul. They are brothers. As the facts of the case are in dispute between the parties, they will be set out separately. The facts as presented by the applicants are set out in Section B below (paragraphs 6-17). The Government’s submissions concerning the facts are summarised in Section C (paragraphs 18-20). The documentary evidence submitted by the applicants and the Government is summarised in Section D (paragraphs 2174).

On 23 November 2002 at about 2.30 a.m. the applicants’ neighbour, B.S., was shot in the street. The applicants, who were at their aunt’s house at the time, and a number of their friends, took the injured neighbour to hospital, where he died on arrival.

A police chief and a number of police officers arrived at the hospital at 3 a.m. and asked the applicants and their friends to accompany them to Beyoğlu police station, where they could be questioned as witnesses in relation to the incident. By the time they arrived, however, the police officers had already established that the applicants’ neighbour had been shot by a police officer. They then decided to detain the applicants at the station. Although the applicants had been taken to the station at 3 a.m., the time of their arrival was stated as 5.30 a.m. in the relevant police report (see paragraph 24 below).

The necessary formalities concerning their detention at the police station were not complied with. For example, their names were not entered in the custody ledgers, and although they were minors and should have been taken to a special police station for minors, this was not done. Furthermore, they were not informed of their rights or allowed to contact a lawyer, nor were their next of kin informed.

On 24 November 2002 two police officers working at the special police station for minors went to Beyoğlu police station and questioned the applicants in the absence of a lawyer and thus in contravention of the applicable procedure, which stipulates that the presence of a lawyer is compulsory during the questioning of minors. Furthermore, although the applicants were questioned there, it was written in the statements taken from them that they had been questioned at the special police station for minors.

While detained at the police station, the applicants were stripped naked, doused with cold water, kicked, punched and beaten with truncheons. The reason for the ill-treatment was to force them to implicate themselves in the incident. As they were illiterate and unrepresented by a lawyer, they had no way of verifying the statements before they were forced to sign them. As a result of those incriminatory statements the prosecutor instigated an investigation against the second applicant, but it was subsequently closed for lack of evidence (see paragraph 35 below).

At around 4 or 5 p.m. on 25 November 2002 the police officers hit the applicants with their truncheons and told them to leave the police station.

The following day the applicants went to the Istanbul branch of the Human Rights Association and were referred to the Human Rights Foundation, also in Istanbul, where they were examined by a number of doctors the same day. The reports pertaining to their medical examination were drawn up on 8 April 2003.

With the assistance of their lawyer, Bülent Kurt, the applicants made an official complaint against the police officers on 29 November 2002. The prosecutor referred them to doctors, who examined them and described their injuries in medical reports. During the prosecutor’s investigation, police chief K.Ş.S., one of the police officers who had been responsible for the applicants’ ill-treatment, continued to serve as the chief of Beyoğlu police station and made numerous attempts to stall the investigation. It was not until he was posted elsewhere and another police chief was appointed to replace him that the necessary information could be handed over to the prosecutor to enable him to start the investigation (see paragraph 42 below).

When the prosecutor subsequently started taking meaningful steps to investigate their allegations of ill-treatment, the police officers started putting pressure on the applicants and their family. The applicants were unable to withstand the pressure and were forced to dismiss Bülent Kurt. At the behest of the police officers, they appointed Ali Tufan as their new legal representative and informed the Beyoğlu Assize Court on 8 June 2004 that they were withdrawing their complaints. They were also forced to tell the authorities that their allegations of ill-treatment had been fabricated. Mr Tufan made submissions against them during the first hearing, held on 7 October 2004 (see paragraph 53 below).

Although during that hearing the Assize Court decided to hold its next hearing on 28 December 2004, it held an unscheduled hearing on 15 December 2004 without informing the applicants or their legal representative. Police chief K.Ş.S. was thus heard by the Beyoğlu Assize Court in the absence of their lawyers and in breach of the applicable rules of criminal procedure (see paragraph 54 below). This deprived them and their lawyers of the opportunity to formally identify the police chief and put questions to him.

Although they subsequently dismissed Mr Tufan, reappointed Mr Kurt and informed the Beyoğlu Assize Court of the change of representation on 28 December 2004, the Assize Court did not entertain the new power of attorney until 12 October 2005. It thus attempted to prevent their lawyer from representing them.

As a result of the indifference of the national authorities to their allegations of ill-treatment and the collusion between the police authorities and the judiciary, the criminal proceedings against the police officers were not conducted diligently and were intentionally allowed to become timebarred. The investigation into their allegations of ill-treatment showed that the judiciary did not have the courage to prosecute people responsible for ill-treating children as young as 15 and 17 years old.

In their observations, the Government summarised the investigation documents (also summarised below in paragraphs 21 to 74), and submitted that the applicants had been taken to Beyoğlu police station with a view to being questioned as witnesses of a serious crime, namely the killing of B.S. The applicants, who were minors at the time, were taken to the station at 6.30 a.m. with a view to being referred to a special police station for minors. No custody reports were drawn up because the applicants had not been arrested, just taken in as witnesses. They were questioned at the special police station for minors.

On 29 November 2002 the applicants lodged a formal complaint with the Beyoğlu prosecutor against the police officers. According to the medical reports drawn up at the request of the prosecutor, both applicants had a number of injuries.

The information provided by the national authorities showed that the applicants were substance users and had regular problems with the police. During the trial, the applicants gave conflicting versions of events, and withdrew their complaints.

The following information appears from the documents submitted by the parties.

According to a report signed by three police officers, at 2.55 a.m. on 23 November 2002 a number of police officers arrived at Tarlabaşı Boulevard in the centre of Istanbul, where they saw an off-duty police officer, A.Ö., lying on the ground with various injuries to his head. Next to him was his pistol loaded with thirteen bullets and a spent bullet case. The officers also noted in their report that the applicants’ neighbour, B.S., had been shot some seventy-five metres from where A.Ö. was lying, and had since been taken to a hospital in Taksim.

The report also stated that hand swabs had been taken from four individuals with a view to establishing whether or not they had gunpowder residue on their hands. The four individuals included the first applicant who, according to the report, “had been taken in by the police in connection with the incident”.

According to another police report drawn up the same morning, six teenagers, including the two applicants, “who had been apprehended in connection with the incident” were “placed in the custody of the police” and taken to Beyoğlu police station at 5.30 a.m. with a view to being transferred to a special police station for minors.

Some twenty four hours later, at 5.15 a.m. on 24 November 2002, K.Ş.S., the chief of Beyoğlu police station, wrote in a report that he had contacted a prosecutor by telephone, who had given him permission to question the applicants and the four other teenagers as “statement makers” (ifade sahibi) in relation to the death of B.S. and the injuries caused to A.Ö.

The same day, between 9.30 and 11.30 a.m., statements were taken from the applicants and the remaining four teenagers by police officers S.Ö. and N.K., who worked at the special police station for minors. It is written in the statements that they were taken at the special police station for minors.

In the statements, the applicants were reported to have told the two police officers that they had been walking along the street with a number of their friends when they had seen A.Ö. They had noticed that he was drunk, and had attempted to rob him. However, he had produced a pistol and they had unsuccessfully tried to take it from him. During the scuffle, the pistol had gone off and their friend B.S. had been shot.

One of their friends had then pursued the armed man and started hitting him. When his pistol had fallen to the ground, their friend had taken it and shot him in the head. They had then taken B.S. to hospital and had been arrested there by the police.

There are no documents in the Court’s possession showing the time and date of the applicants’ release from the police station.

According to two medical reports, on 26 November 2002 the applicants were examined by doctors at the Human Rights Foundation. The first applicant told them that he had been beaten up at the police station, doused with cold water, hit on the back and the torso with a police truncheon, and grabbed by the throat by a police officer. The second applicant told them that a police officer had grabbed him by the throat, while another had held his hands behind his back, and the two officers had then pulled at his legs.

The doctors observed that the first applicant had a number of injuries. These included a scratch on the upper right side of his torso measuring 4 centimetres, as well as bruising on the back of his body in four places, measuring 14 x 1.5, 14 x 1, 10 x 1 and 7 x 1 centimetres. The doctors concluded that his description of the ill-treatment was compatible with their findings.

The second applicant did not appear to have any external injuries, but his description of the ill-treatment was deemed by the doctors to be compatible with his unsettled and nervous state of mind. They concluded that further medical examinations, including a bone scintigraphy and a psychological assessment, were necessary in order to reach a definitive conclusion.

On 29 November 2002 the applicants, assisted by their lawyer Bülent Kurt, lodged a formal complaint with the Beyoğlu prosecutor against the police officers. They informed him that their statements had been taken in the absence of the necessary safeguards, and contained things they had never said. They alleged that during their time in police custody, they had been subjected to ill-treatment. At the end of their detention they had not been taken to see a doctor, but had been hit with truncheons and told to “leave and never be seen again”. The applicants referred to their rights guaranteed by the European Convention on Human Rights and the Convention on the Rights of the Child, and asked the prosecutor to investigate their allegations.

The same day, the prosecutor referred the applicants to a doctor, who noted in his report that they had no visible signs of ill-treatment. He considered it necessary, however, that the applicants be examined more thoroughly at a hospital.

An investigation which had been started by a prosecutor against the second applicant and his neighbour B.S. for the “attempted robbery” of A.Ö. was discontinued on 3 December 2002, because the prosecutor observed that the applicants’ neighbour had been killed by the police officer, and there was no evidence implicating the second applicant in the incident.

On 11 December 2002 the Beyoğlu prosecutor questioned the applicants in relation to their allegations of ill-treatment, and opened a criminal investigation file. The first applicant told the prosecutor that he and his brother, the second applicant, had been beaten up by the chief of Beyoğlu police station, whose first name was “Kenan”. The ill-treatment to which they had been subjected included having been stripped naked and doused with cold water. During their time at the station, they had not been given any food or allowed to inform their family or a lawyer. They had been released “at 4 or 5” in the afternoon.

The same day, the prosecutor referred the applicants to Haseki Research Hospital, where further medical examinations were carried out on them on 12 December 2002. According to the reports drawn up at that hospital, both applicants had a number of injuries.

On 31 December 2002 the Beyoğlu branch of the Forensic Medical Institute drew up two reports, concluding that the first applicant’s injuries were of a nature to render him unfit for a period of three days. The second applicant’s injuries, which included a number of cuts and grazes on his lip, arms and the backs of his legs, rendered him unfit for a period of five days.

On 15 January 2003 the Beyoğlu prosecutor questioned police officers S.Ö. and N.K., who worked at the special police station for minors and had questioned the applicants on 24 November 2002 (see paragraph 26 above). They told the prosecutor that on 24 November 2002 they had been asked to go to Beyoğlu police station to take statements from a number of children. When they had arrived, they had been presented with four statements allegedly taken from the children and had been asked to sign them as if they had prepared them. They had refused to do so and insisted on questioning the children themselves before returning to their own police station at around 1 p.m. the same day.

In a letter of 24 February 2003 addressed to the Beyoğlu prosecutor, the chief of Beyoğlu police station, K.Ş.S., stated that no records existed at his station to show that the applicants had been detained there from 23 to 24 November 2002.

Between 20 March 2003 and 14 October 2003 the Beyoğlu prosecutor sent four letters to K.Ş.S., unsuccessfully requesting him to ensure that twelve police officers working at Beyoğlu police station attended his office. On 13 January 2004 the Beyoğlu prosecutor wrote to him for a fifth time, repeating his previous requests. In the same letter he also warned that a criminal investigation would be opened against him if he failed to comply with the request.

On 15 January 2004 the new chief of Beyoğlu police station replied to the prosecutor’s letter and gave him the names of the twelve police officers. He also informed him that he had been unable to contact eleven of them because they were working at different police stations around the country.

On 11 March 2004 the Beyoğlu prosecutor filed an indictment with the Beyoğlu Criminal Court of First Instance charging a total of twenty police officers with ill-treatment, an offence defined in section 245 of the Criminal Code in force at the time of the events. Those indicted included the former Beyoğlu police chief K.Ş.S.

The applicants joined as interveners in the criminal proceedings before the Istanbul Criminal Court of First Instance, which decided on 20 April 2004 that the police officers should have instead been charged with the offence of torture, an offence defined in section 243 of the Criminal Code which fell within the jurisdiction of the Assize Courts. The file was thus forwarded to the Beyoğlu Assize Court.

On 18 May 2004 the first applicant was shown photographs of the twenty defendant police officers. He identified K.Ş.S. and three other police officers, R.E., H.Y. and M.A.

In the meantime, a police chief was appointed to carry out a disciplinary investigation and questioned the applicants at Şişli police station on 8 June 2004. They were accompanied by their father, Mahmut Uğur, and Ali Tufan, a lawyer. In two almost identical statements drawn up by the investigating police officer the applicants were reported to have stated that on the day of the incident they had been taken to the special police station for minors and not Beyoğlu police station. Furthermore, they had never been beaten up there by officers. They added that a couple of days after they had left the police station, they had been sniffing glue and had been high when one of their friends had suggested they go to the Human Rights Association and make a complaint against the police. That way, their friend had told them, the police would never bother them ever again. That was how they had come to make the official complaint against the police officers. The injuries detailed in the medical reports had in fact been caused in a fight they had been involved in on the street that day. The lawyers and the Human Rights Association had then manipulated everything on their behalf.

The same day, the applicants gave two petitions to the Beyoğlu Assize Court stating that they wanted to withdraw their complaints “which, in any event, had been made as a result of a misunderstanding”. Also that day, the applicants officially dismissed Bülent Kurt, the lawyer who had been representing them since the lodging of their official complaint against the police officers.

On 14 June 2004 K.Ş.S. also made a statement at Şişli police station in the course of the same disciplinary investigation. He stated that when he had found out on the day of the incident that the applicants and their friends had been taken to his station, he had had them transferred to the special police station for minors. He had never beaten them up. In his opinion, the Human Rights Association had been interested in the incident because it concerned the killing of a civilian by a police officer, and it had then manipulated the incident with the assistance of a number of lawyers.

On 25 June 2004, at the end of the disciplinary investigation, the investigating police officer recommended that no disciplinary punishment should be imposed on the defendant police officers. In line with that recommendation, the police disciplinary committee decided on 20 August 2004 not to impose any such punishment.

On 30 June 2004 the applicants made a complaint to the Beyoğlu prosecutor, complaining that the police officers who had ill-treated them had also been responsible for, inter alia, their unlawful detention. They informed the prosecutor that they had been treated and questioned as suspects at the police station, and had had swabs taken from their hands. Nevertheless, no official records had been kept by the police officers in relation to their arrest, detention or release. This, in their opinion, meant that the police officers had committed an offence, the unlawful deprivation of their liberty. Moreover, although they had been detained for over twenty-four hours, no authorisation had been sought or obtained from the prosecutor for the period exceeding that time. They argued that although they had been under the age of 18 at the time, and should have been questioned directly by a prosecutor and in the presence of their lawyer, they had been questioned by police officers and in the absence of a lawyer.

These complaints were rejected by the prosecutor on 6 January 2005, who considered that the applicants had been questioned as “statement makers”, and that in an investigation into an unlawful killing there was nothing unusual about questioning people who had been seen in the vicinity of the incident. The applicants filed an objection against the prosecutor’s decision, submitting that in the Turkish legal system there was no such concept as a “statement maker”. They referred to the applicable legislation setting out the procedure to be followed when persons are deprived of their liberty, and argued that none of those formalities had been observed in their case. The objection was rejected by the Istanbul Assize Court on 4 March 2005 and the decision served on the applicants on 1 April 2005.

In the meantime, Bülent Kurt, who had initially represented the applicants but had been dismissed by them on 8 June 2004, sent a letter to the Istanbul Bar Association on 28 September 2004 stating that the applicants and the other children who had been arrested and ill-treated between 23 and 24 November 2002 were being threatened by the defendant police officers. For example, police chief K.Ş.S. had personally gone to court with the second applicant and a lawyer, and had made the second applicant sign certain documents there. He and other police officers had then threatened the applicants and their father, and had forced them to withdraw their complaints. Mr Kurt added that when he had suggested to the applicants and their father that they inform the prosecutor about the pressure being exerted on them by the police officers, they had declined to do so because they had been very scared. Mr Kurt further stated in his letter that K.Ş.S. had given the applicants’ father the business card of a lawyer and had asked him to appoint him to represent the applicants.

The trial of the police officers began before the Beyoğlu Assize Court. During the first hearing on 7 October 2004, the newly appointed lawyer, Ali Tufan, told the court that the applicants were known to the police because of their past criminal activities. Their initial lawyer Bülent Kurt also attended the hearing, and informed the court of the pressure being exerted on the applicants by the defendant police officers. In the official court transcript, Mr Kurt was referred to as the lawyer on record for the applicants. The court decided to hold a second hearing on 28 December 2004.

On 15 December 2004 the court held an unscheduled hearing and heard the defendant police chief K.Ş.S. The following entry features in the transcript of the hearing: “Although a second hearing in this case had been scheduled for 28 December 2004, the defendant K.Ş.S. and his lawyer came to court and told us that he was now working in the town of Halfeti and had come to Istanbul on other business. As it would be difficult for him to come back to Istanbul for the next scheduled hearing, he informed us that he would like to give his testimony now”. According to the transcript, apart from the three judges on the bench, a prosecutor, a court clerk and K.Ş.S., no one else was present. The defendant police chief told the court that the applicants and the other teenagers had been taken to his police station to be questioned as witnesses, but had subsequently been transferred to the special police station for minors. Neither he nor any of his colleagues had ill-treated them.

The applicants submitted their written observations to the trial court, complaining that the hearing held on 15 December 2004 had been unlawful. They argued that the court’s failure to ensure their attendance had deprived them of the opportunity to confront the police chief.

On 27 December 2004 the first applicant went to the Istanbul Bar Association and informed the lawyers there that pressure was being exerted on him and his brother by K.Ş.S. to dismiss their lawyers and withdraw their complaints. He further stated that the police chief had accompanied them to see a notary public, where they had signed a power of attorney giving their new lawyer authority. He informed the Bar Association of his wish to be represented by his previous lawyer Bülent Kurt.

According to a report drawn up on 28 December 2004 by Mr Kurt and signed by one of his colleagues, when he and the applicants arrived at court for the second hearing, which had been scheduled for that day, Ali Tufan was waiting there with some of the defendant police officers. When he asked the applicants what they were doing at court, the applicants told him that they wanted to attend the hearing and continue to press charges against the police officers. Mr Tufan then unsuccessfully tried to dissuade the applicants and urged them not to attend the hearing. When they insisted on attending, all but one of the defendant police officers waiting for the hearing left the building and did not attend.

During the hearing that took place later that day, the applicants repeated their allegations of ill-treatment. Mr Tufan, who claimed to be representing them, told the court that he had been unaware of any allegations of ill-treatment made by his clients against the police officers. The applicants then informed the court that their lawyer was Mr Kurt and not Mr Tufan.

On 28 February 2005 the applicants officially reappointed their previous lawyers, including Mr Kurt, dismissed Mr Tufan, and informed the court of the change of representation. At a hearing on 12 October 2005 the court decided to accept the applicants as “participants” (katılan) in the proceedings. In all subsequent hearings they were referred to as such.

On subsequent dates the lawyers representing the applicants continued to inform the Istanbul Bar Association and the court about the pressure being exerted on them and the applicants by the defendant police officers. They also submitted official documentation to the court showing that neither applicant had a criminal record, criticising the submissions made by Mr Tufan, who had told the court that “the applicants were known to the police because of their past criminal activities” (see paragraph 53 above).

The two police officers who worked at the special police station and had questioned the applicants on 24 November 2002 (see paragraph 39 above) attended one of the hearings, and told the court that when they had arrived at Beyoğlu police station they had been presented with two statements prepared by the police officers working there, and had been asked to sign them as if they themselves had taken them. However, they had refused to do so and had questioned the applicants personally. They also told the court that when they had urged the police officers at Beyoğlu police station to release the applicants because they were being kept there unlawfully, they had been told to mind their own business.

During the proceedings, the court was informed that the special police station for minors did not have in its possession the custody records pertaining to the relevant period. As a result, it was not known whether or not the applicants had been detained there in November 2002.

A large number of defendants failed to attend the majority of the hearings held by the trial court. On each occasion the court urged them in writing to attend.

The lawyers representing the applicants drew the court’s attention to a number of shortcomings in its handling of the case, and the defendant police officers’ failure to attend the hearings. They asked the court to ensure the officers’ participation by, if necessary, ordering their remand in custody. The other teenagers who were taken to Beyoğlu police station with the applicants (see paragraph 24 above) also gave evidence during the trial, describing how the defendant police officers had beaten them up and tried to force them to admit that they had killed B.S. who, as it later turned out, had in fact been killed by a police officer (see paragraph 35 above).

In the course of a hearing held on 22 May 2007 the applicants’ father gave evidence. He told the court that his two children had not come home for three days. When they had finally come home, they had told him that they had been detained at Beyoğlu police station and beaten up there by officers. Mr Uğur explained to the court how his two sons’ mental state had deteriorated after the incident. In his testimony he also detailed the threats made to him and his family by the defendant police officers, and explained how, as a result of those threats, he and his sons had had to withdraw their complaints.

On 21 July 2009 the applicants submitted their written submissions to the trial court, urging it to conduct its proceedings effectively and fairly. They warned the court that the proceedings had been continuing for such a long period of time that they could soon risk becoming time-barred.

During one of the hearings a lawyer representing the defendant police officers complained about the press coverage given to the trial, and criticised suggestions published in various newspapers that his clients’ continued failure to attend the hearings would cause delays, which would cause the proceedings to become time-barred.

In a hearing held that day, the prosecutor made his final submissions to the trial court. He argued that police chief K.Ş.S. had ill-treated the applicants and caused them minor injuries, which had necessitated minor medical treatment. The prosecutor requested the court to conclude that the offence the police chief had been charged with should be changed to illtreatment, as defined in section 245 of the Criminal Code. In his opinion, the police chief had not committed torture, an offence defined in section 243 of the Code, because he had not ill-treated the applicants in order to obtain information from them. In any event, they had not been detained as suspects at Beyoğlu police station. The prosecutor also recommended that the remaining police officers be acquitted.

In the course of a hearing held on 19 November 2009 the lawyers representing the police officers were due to present their final defence arguments to the trial court. Nevertheless, they informed the court that they were unable to attend the hearing that day, and it was thus postponed until 29 December 2009. According to the transcript of the hearing, the court also decided to remind the lawyers representing the police officers that attending hearings in which they were scheduled to submit their final defence submissions was a legal requirement.

During the twenty-first hearing, held on 29 December 2009, the court decided that there was insufficient evidence to prove that ten of the defendant police officers had subjected the applicants to “torture” within the meaning of section 243 of the Criminal Code, and acquitted them. It also considered that the actions of the remaining ten police officers, including police chief K.Ş.S., had amounted to “ill-treatment” within the meaning of section 245 of the Criminal Code and not “torture”, because there was no evidence to show that the applicants had been ill-treated in order to force them to confess to a crime or give evidence. Nevertheless, as the end of the prescription period for the offence had been reached, the court discontinued the criminal proceedings against the ten police officers.

In support of its conclusion that the ten police officers had ill-treated the applicants, the court stated that they had been “unnecessarily kept at the police station for hours, and that their injuries had been caused when they had been pushed and jostled for no apparent reason”.

The applicants appealed and drew the Court of Cassation’s attention to the statements taken from them by the police officers, in which they argued they had been forced to incriminate themselves for offences they had never committed (see paragraphs 26-28 above). They argued that in the light of those statements, the police officers should have been found guilty of torture and not ill-treatment, because the statements had been obtained from them under ill-treatment. By finding them guilty of ill-treatment, for which the prescription period was shorter, the police officers had been allowed to go with impunity.

On 2 May 2011 the Court of Cassation held that the applicants had withdrawn their complaints against the police officers on 8 April [sic] 2004 (see paragraph 47 above), and that they did not, therefore, have the requisite standing to appeal against their acquittals. It upheld the trial court’s judgment of 29 December 2009.

In the meantime, a disciplinary investigation was conducted by the Istanbul Bar Association into the complaints made by Bülent Kurt. In a decision of 16 October 2007 its Disciplinary Council decided to reprimand Ali Tufan for failing to inform Mr Kurt of his appointment to take over representation of the applicants.


Violation of Article 14+8 - Prohibition of discrimination (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for family life)

André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Mārtiņš Mits;Yonko Grozev

The applicant was born in 1940 in Troschenreuth, in the former German Democratic Republic (GDR), and lives in Bayreuth.

The applicant is the natural and only daughter of Mr A.W., who recognised paternity in 1951. She lived in the territory of the former GDR until 1984, while her father lived in the Federal Republic of Germany (FRG), having married. The father and the daughter corresponded regularly during that period. Between 1954 and 1959, the applicant also visited her father and his wife once a year. After the applicant obtained an exit permit in 1984 for herself, her husband and her younger daughter, she left the GDR and moved to Bavaria. Thereafter the applicant visited her father on a regular basis until 2007. He died on 4 January 2009.

On 14 January 2009 the applicant applied to the Memmingen District Court for the right to administer her father’s estate, asserting the incapacity of her father’s wife to protect the applicant’s inheritance due to a grave illness, and notified the District Court of her inheritance claims. Furthermore, she asked to receive copies of all documents relating to the estate. She asserted that between 2002 and 2007 she had regularly visited her father at his retirement home and had talked to him on the telephone. Subsequently, her own health had prevented her from visiting. Telephone calls had been impossible because her father’s health had meant he had no longer been able to use a telephone. The retirement home had been in possession of her address and telephone number, and had phoned her on several occasions.

In a decision of 28 January 2009 the Memmingen District Court dismissed the applicant’s application, as there were no indications that the applicant’s father’s wife could not protect the inheritance. In addition, being born before 1 July 1949 and thus not being a statutory heir, she had no right to receive copies of documents about the estate.

On 6 February 2009 the applicant appealed to the Memmingen Regional Court, arguing in particular that she needed the power to administer the estate because her father’s wife suffered from dementia and that she was a statutory heir because she was her father’s natural daughter.

In a decision of 23 February 2009 the Memmingen Regional Court upheld the District Court’s decision refusing to give her the power to administer her father’s estate, holding that the applicant was not a statutory heir and thus had no right to apply. The Regional Court referred to the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act of 19 August 1969 (see paragraph 15 below) and to a decision of the Federal Constitutional Court of 8 December 1976, in which the provision had been found to be in conformity with the Basic Law (see paragraph 16 below).

On 8 March 2009 the applicant appealed to the Munich Court of Appeal, arguing that the application of the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act would discriminate against her and breach her inheritance rights and was therefore not in conformity with the Basic Law. The applicant pointed out that in her case there was no need to protect the legitimate expectations of the deceased or other heirs as she was her father’s only daughter and her father had been separated from his wife for more than ten years when he had died. Furthermore, cultural and social changes within society had to be considered when interpreting the Basic Law.

In a decision of 14 May 2009 the Munich Court of Appeal dismissed the applicant’s appeal on the grounds that it was bound by the decisions of the Federal Constitutional Court in which the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act had been found to be in conformity with the Basic Law. In the Court of Appeal’s view, the provision did not contravene the Basic Law, despite German reunification, as the Federal Constitutional Court had held in a decision of 20 November 2003 (file no. 1 BvR 2257/03).

On 17 July 2009 the applicant lodged a constitutional complaint with the Federal Constitutional Court, claiming discrimination as a result of the application of the aforementioned provision. According to her there were no apparent reasons why children born outside marriage should be treated differently from those born within marriage. That was particularly true in her case because she was her father’s only child. The applicant argued that the Munich Court of Appeal, when considering an appeal, had to respect Article 6 § 5 of the Basic Law, which provided that children born outside marriage must be provided by legislation with the same opportunities for physical and mental development and for their position in society as those enjoyed by children born within marriage. That provision prohibited a generalised application of the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act.

In a decision of 8 December 2009 the Federal Constitutional Court declined to consider the complaint, which it considered inadmissible for lack of sufficient substantiation (no. 1 BvR 2021/09). It observed, in particular, that the applicant had failed sufficiently to address the arguments of the Munich Court of Appeal’s decision. As the applicant doubted the validity of the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act, which had previously been declared valid by the Federal Constitutional Court, she had been obliged to give further reasons, which she had failed to do.


Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation)

Egidijus Kūris;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The list of applicants and the relevant details of the applications are set out in the appended table.

The applicants complained of the excessive length of their pre-trial detention. They also raised other complaints under the provisions of the Convention.