Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review)

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

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. In application no. 59613/14, the applicant also raised other complaints under the provisions of the Convention.


Remainder inadmissible;Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Just satisfaction reserved (Article 41 - Just satisfaction)

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

The applicant was born in 1960 and lives in Bad Dürkheim, Germany. Through the German stock market, he purchased 81,529 Turkish and 737 German share certificates in Demirbank, which at the time was identified as the fifth largest private bank in Turkey.

By a decision dated 6 December 2000 (no. 123), the Banking Regulation and Supervision Board (Bankalar Düzenleme ve Denetleme Kurulu, hereinafter referred to as “the Board”) transferred the management and control of Demirbank to the Savings Deposit Insurance Fund (Tasarruf Mevduatı Sigorta Fonu – hereinafter “the Fund”), pursuant to section 14(3) of the Banking Activities Act (Law No. 4389). In its decision the Board held that the assets of Demirbank were insufficient to cover its liabilities and that the continuation of its activities would threaten the security and stability of the financial system. Accordingly, Demirbank’s management and control, and the privileges of its shareholders except for dividends, were transferred to the Fund. The Fund also confiscated all properties belonging to Demirbank.

On 31 January 2001 all of the bank’s equities were removed from its account at the Istanbul Stock Exchange (Istanbul Menkul Kıymetler Borsası – hereinafter “the Stock Exchange”) and transferred to the account of the Fund. Subsequently, on 20 September 2001 the Fund entered into an agreement with the HSBC bank and sold Demirbank to the latter for 350,000,000 United States dollars (USD). As a result, on 14 December 2001 Demirbank’s legal personality was extinguished and it was struck off the commercial register.

On 2 February 2001, the main shareholder of Demirbank, namely Cıngıllı Holding A.Ş., brought administrative proceedings against the Banking Regulation and Supervision Agency (Bankalar Düzenleme ve Denetleme Kurumu – hereinafter “the Agency”) before the Ankara Administrative Court, seeking a ruling setting aside the decision of 6 December 2000 to transfer Demirbank to the Fund.

The Ankara Administrative Court found that it lacked jurisdiction, and transferred the case to the Supreme Administrative Court.

In its submissions before the Supreme Administrative Court, the plaintiff claimed that its property rights had been violated. It also raised a plea of unconstitutionality under section 14 of the Banking Activities Act. The company further stated that prior to November 2000 Demirbank had never encountered major financial problems. It was pointed out that pursuant to section 14(2) of the Act, a bank with financial difficulties should first be given a warning to strengthen its financial structure and be allowed time to take specific measures. However, no such warning had been given in the instant case. Secondly, the Board had not claimed that Demirbank’s financial situation was so weak that it could not be strengthened even if specific measures were taken. Lastly, the company stated that following the transfer of the bank to the Fund, a General Assembly composed of the Fund’s officials had exonerated the former managers of Demirbank, holding that they had not been at fault in the incident leading to the bank’s transfer.

After examining the case file, on 3 June 2003 the Supreme Administrative Court dismissed the case. It held that the takeover of the bank by the Fund had been in accordance with section 14(3) of the Banking Activities Act.

On 18 December 2003 the Joint Administrative Chambers of the Supreme Administrative Court decided to quash the decision of 3 June 2003. In its judgment, the court held that prior to ordering the transfer of Demirbank to the Fund, the Board should have carried out an objective evaluation of the bank’s financial situation. The court also concluded that the Board should first have ordered Demirbank to take specific measures in accordance with section 14(2) of the Banking Activities Act before applying section 14(3) of the Act.

On 29 April 2004 a request for rectification lodged by the Agency was refused.

The case was remitted to the Supreme Administrative Court, which delivered its decision on 5 November 2004 applying the decision of the Joint Administrative Chambers of the Supreme Administrative Court. It accordingly set aside the Board’s decision of 6 December 2000 ordering the transfer of Demirbank to the Fund, holding that the takeover had been illegal. A further appeal and a request for rectification lodged by the Agency were rejected on 14 April 2005 and 15 December 2005 respectively.

On 20 September 2001 Ms S. Cıngıllıoğlu, the main shareholder of Cıngıllı Holding A.Ş., brought administrative proceedings against the Fund before the Ankara Administrative Court, seeking the annulment of the agreement to sell Demirbank to HSBC.

Given that the transfer of Demirbank to the Fund had been found to be illegal by the Joint Administrative Chambers of the Supreme Administrative Court, on 21 April 2004 the Ankara Administrative Court annulled the agreement entered into by the Fund and HSBC on 20 September 2001. An appeal and a request for rectification lodged by the Fund were rejected on 3 June 2005 and 24 February 2006 respectively.

Following the transfer of Demirbank to the Fund, the applicant applied to the Board claiming compensation. He did not receive any reply.

Subsequently, on an unspecified date in 2002, the applicant brought compensation proceedings against the Agency before the Supreme Administrative Court. He argued that he had lost his shares in Demirbank as a result of its transfer to the Fund and requested that the Board’s implied rejection of his compensation claim be reversed.

On 26 June 2003 the Supreme Administrative Court dismissed the applicant’s case. On the basis of a previous judgment it had rendered on 3 June 2003 (see paragraph 11 above), the court found that the takeover of the bank by the Fund had been in accordance with section 14(3) of the Banking Act.

The applicant lodged an appeal.

On 21 October 2004 the Joint Administrative Chambers of the Supreme Administrative Court decided to quash the judgment. It indicated that the previous judgment dated 3 June 2003, which had constituted the basis of the latter, had been quashed on 18 December 2003 (see paragraph 12 above).

A rectification request lodged by the Agency was rejected on 26 May 2005.

On 19 September 2005 the Supreme Administrative Court held that it lacked jurisdiction ratione materiae, as the applicant’s case merely concerned an implied rejection by the Board, which should be assessed by the Ankara Administrative Court.

On 29 December 2005 the Ankara Administrative Court dismissed the case as out of time. The court held that the applicant should have initiated proceedings within sixty days of the date on which Demirbank’s equities had been transferred to the Fund’s account at the Stock Exchange, namely 31 January 2001 (see paragraph 7 above).

The Supreme Administrative Court upheld the first-instance court’s judgment on 12 March 2007.

Following the two judgments in respect of the main shareholders (see paragraphs 8-16 above), on 10 and 11 May 2006 the applicant applied to the Agency and the Fund respectively, requesting the restitution of his rights as a shareholder. Relying on the restitutio in integrum principle, he claimed that the above-mentioned judgments of the Supreme Administrative Court should be enforced and his rights as a shareholder of Demirbank reinstated.

The Agency did not respond to the applicant’s request within the statutory time-limit.

On 15 June 2006 the Fund refused the applicant’s request, stating that restitution was legally and practically impossible.

Subsequently, the applicant initiated another set of proceedings before the Ankara Administrative Court, claiming that the Agency should enforce the above-mentioned judgments and that his rights as a shareholder of Demirbank should be reinstated. He argued that the bank still owned a certain amount of assets following its sale to HSBC and that restitution was therefore possible to a certain extent. He further claimed that in the event that his rights were not reinstated, he ought to be awarded compensation for the loss of his shares.

On 30 November 2007, the Ankara Administrative Court dismissed the case. It pointed out that under Articles 12 and 28 of the Code of Administrative Procedure only “those concerned” had the right to bring proceedings seeking to remedy the situation in full (tam yargı davası). It found that the applicant could not be considered as “concerned” as he had not been a party to the annulment proceedings (iptal davası) brought by the main shareholders. The court held that if the annulled administrative act had been regulatory (düzenleyici işlem), the concept of “concerned persons” would have applied to anyone who had been affected by it, whereas in the case of an individual act (bireysel işlem), it applied only to those who had been parties to the annulment proceedings. Holding that the annulled administrative acts were individual acts, the court considered that the applicant had not been “concerned” by the annulment. Lastly, it indicated that the decisions of the Agency and the Fund to reject the applicant’s requests had been lawful and that restitution would not be possible.

On 23 October 2008 the Ankara Regional Administrative Court upheld that judgment and on 26 February 2009 it rejected the applicant’s request for rectification.


George Nicolaou;Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Zdravka Kalaydjieva

The applicants, Mr Alistair Brogan and Ms Lesley Brogan, are British nationals, who were born in 1964 and live in Doncaster. They are represented before the Court by Ms Matwala Vyas of Matwala Vyas LLP, a firm of solicitors based in Essex.

The United Kingdom Government (“the Government”) are represented by their Agent, Mr M. Kuzmicki of the Foreign and Commonwealth Office.

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

On 16 August 2003 the first applicant purchased Dove Cottage (“the property”), apparently with the assistance of a mortgage in favour of GMAC-RFC. The property subsequently became the applicants’ main residence. Although the second applicant claims that she used some of her funds to purchase the property, it was registered in the first applicant’s sole name.

On 30 August 2006 the first applicant entered into a second mortgage with Kensington Mortgage Company Limited (“KMCL”). The total amount loaned was GBP 26,875.00.

The first applicant fell into mortgage arrears in or around mid-2008 and KMCL commenced possession proceedings against him in the County Court.

Around this time, the first applicant’s solicitor became concerned that he lacked the capacity to manage his own affairs. Medical reports indicated that he had Asperger’s Syndrome and a schizophrenic illness. On 20 August 2008, a few days after the claim form was issued in the County Court by KMCL, the solicitor applied to the Court of Protection for an order authorising her to act as an Interim Deputy for Property and Affairs (“Interim Deputy”) to defend, inter alia, the possession proceedings on his behalf. The Court of Protection made an order on 24 September 2008 authorising her to take control of his property and affairs and to exercise the same power over them as a beneficial owner. In doing so, the court imposed a security bond requirement on the Interim Deputy in the sum of GBP 50,000 in favour of the first applicant.

The Interim Deputy thereafter informed KMCL that there was money available to pay the arrears and make advance payments.

The possession claim was heard on 6 October 2008. The first applicant did not attend and was not represented, although a letter from him was submitted to the court. The contents of that letter are not known. KMCL indicated to the court that the first applicant had made no payments on the mortgage since 11 April 2008. Consequently, the District Judge ordered that he give KMCL possession of the property before 3 November 2008.

The Office of the Public Guardian commissioned a Court of Protection Visitor to meet with the applicants and the Interim Deputy on 19 March 2009. The visitor was (incorrectly) told by the Interim Deputy that all payments on the mortgage were up to date. He also noted that the applicants’ situation was “very difficult and unstable” and seemed to be “on the edge of crisis” as the second applicant was unwell and might not be able to continue to care for the first applicant.

In mid-2009 the second applicant complained to the Office of the Public Guardian about the conduct of the Interim Deputy. In particular, she claimed that the Interim Deputy had failed to use funds of GBP 25,000 to discharge the mortgage arrears and that she had been on sick leave for five weeks and was not dealing with her deputyship duties. KMCL also complained about the Interim Deputy’s conduct, both to the Office of the Public Guardian and to the Law Society. They claimed that they had discontinued possession proceedings after the Interim Deputy had verbally agreed a settlement with them but that she had subsequently reneged on that agreement by insisting, without foundation, that KMCL pay her costs. Following the complaints, the Office of the Public Guardian launched an investigation into the activities of the Interim Deputy.

The second applicant subsequently withdrew her complaints against the Interim Deputy unreservedly. In a report dated 18 July 2009 the Office of the Public Guardian found that there had been a dispute between KMCL and the Interim Deputy which should be resolved between the parties. It also found that there had been a dispute between the Interim Deputy and her firm which resulted in her leaving the firm and working from home. Following a period of claimed ill-health, she had resumed activity in the affairs of the first applicant. The Office of the Public Guardian therefore closed its investigation.

On 16 December 2009 KMCL obtained a warrant for possession from the County Court. On the same date, a Notice of Eviction was sent to the first applicant “and any other occupiers” at Dove Cottage, stating that the eviction would take place on 14 January 2010.

By 6 January 2010 an application had been made on the first applicant’s behalf to suspend the eviction. A further application appears to have been made to “withdraw” the warrant of possession.

Both applications came before a district judge on 8 January 2010, on which date the first applicant appears to have been represented by the Interim Deputy. The applications were adjourned.

On 25 January 2010 the Court of Protection ordered a report into the management and administration of the property and affairs of the first applicant by the Interim Deputy. The report was prepared by the Office of the Public Guardian and published on 21 April 2010. The report noted that on her appointment, the Interim Deputy had advised KMCL that there was sufficient money in the Brogan’s client account to pay their arrears. However, KMCL informed the Office of the Public Guardian that the Interim Deputy had “made no attempt to pay the outstanding arrears or to ensure that mortgage payments are going forward”. In fact, she had entered into a verbal agreement to pay the arrears but then reneged on the agreement leaving KMCL no alternative but to seek possession. The report concluded that the Interim Deputy was struggling with her general, day-to-day duties and that there was a worrying – and unexplained – disparity as to the disbursement of approximately GBP 27,000 received into her employer’s client account in September 2008. Although the Court of Protection Visitor’s Report stated that all payments were up to date and that the GBP 25,000 received in September 2008 had been used in paying the arrears of the mortgage, in mid-2009 those funds were still in the client account. The report concluded that the first applicant’s best interests had not been served by the Interim Deputy.

On 21 May 2010 the adjourned applications to suspend and withdraw the warrant for possession were heard by a district judge. Both parties were represented by counsel at the hearing. However, the applications were dismissed and the possession warrant was returned to the bailiff for a new eviction date to be set.

On the same day the Interim Deputy’s authority to act in the possession proceedings came to an end.

Nevertheless, it appears that the Interim Deputy filed an application for permission to appeal against the district judge’s decision of 21 May 2010 on behalf of the first applicant without any authority to do so. The application was dismissed on 28 May 2010 at a hearing at which both parties were represented.

On 1 June 2010 the applicants were evicted from the property.

On 4 June 2010 the Interim Deputy made a further application to set aside the first applicant’s credit agreement with KMCL on the ground, inter alia, that he had not had the mental capacity to enter into it in 2006. This application was not made with the authority of the Court of Protection. On the same date the second applicant applied to join the application on the ground that she had also been in occupation of the property, she had an interest in the property and she was left homeless after KMCL were granted possession. She wrote to the court, setting out details of the first applicant’s mental health problems and outlining her own health concerns (including severe spondylosis, sciatica, heart disease, angina and depression).

On 8 July 2010, the Court of Protection revoked the appointment of the Interim Deputy with immediate effect. However, she was appointed as the first applicant’s Deputy limited to the single issue of making an application on his behalf for public funding to apply for judicial review of the decision of 28 May 2010. This appointment was to expire on 28 October 2010 unless extended by the Court.

On 14 July 2010, following a hearing at which the parties were represented by counsel, the District Court Judge dismissed the application to set aside the credit agreement and join the second applicant to the proceedings. The second applicant was ordered to pay KMCL’s costs of the application, which were assessed in the sum of GBP 5,765.06. Permission to appeal was refused.

On 3 August 2010, the applicants, through the Interim Deputy (again acting without authority), sought to appeal against the order of the District Court Judge. In particular, they submitted that there had been no consideration of their rights under Article 8 of the Convention.

On 30 November 2010 the Court of Protection gave the applicants’ daughter, Kate, authority to act as the first applicant’s litigation friend at the appeal hearing.

The appeal was heard on 3 December 2010. The judge found that the first applicant was not validly a party to the purported appeal as the Interim Deputy had not had authority to issue it. The second applicant and her representative were not able to attend the hearing owing to difficult weather conditions. Her appeal was dismissed as totally without merit and she was ordered to pay costs of GBP 4,863. The Interim Deputy was joined to the proceedings and was ordered personally to pay to KMCL costs in excess of GBP 10,000.

According to the applicants, following the eviction the first applicant spent ten days without his maintenance medication, which caused a temporary deterioration in his condition. The applicants initially lived with their youngest daughter in a van before all three moved to a tent in another daughter’s garden. They stated that during this period the first applicant attempted suicide on two separate occasions. The family later stayed in a hotel for 10 days before moving into a rental property from October 2010 onwards.

The medical evidence submitted to the Court indicates that the first applicant has a history of mental illness and had made a number of suicide attempts prior to the eviction proceedings which are the subject of his complaint to the Court. While there is some evidence to support the assertion that he also attempted suicide following the eviction, this attempt appears to have taken place while he was in custody and psychiatrists were establishing his fitness to plead in respect of a prosecution for conspiracy to defraud.

Section 16 permits the Court of Protection to appoint a Deputy to act on behalf of a person who lacks capacity in relation to matters concerning either his personal welfare or his property and affairs. However, the powers conferred on the Deputy should be as limited in scope and duration as is reasonably practicable in the circumstances and the court may revoke the appointment of a Deputy or vary the powers conferred on him if it is satisfied that he has behaved, is behaving, or is proposing to behave in a way that contravenes the authority conferred on him by the court or is not in the protected party’s best interests.

Pursuant to section 18, the Deputy’s powers extend, inter alia, to the discharge of the protected person’s debts and obligations, whether legally enforceable or not.

Section 19(6) provides that the Deputy is to be treated as the protected person’s agent in relation to anything done or decided by him within the scope of his appointment.

The Office of the Public Guardian is an executive agency of the Ministry of Justice which implements the Mental Capacity Act 2005 by administering powers of attorney, supervising Deputies who manage the affairs of others and investigating and acting on allegations of abuse by attorneys and Deputies.

Pursuant to Regulation 33(1) of The Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007 (“the 2007 Regulations”) the court may order a person to give to the Public Guardian security in the form of a bond for the discharge of his functions.

Pursuant to Regulation 36 of the 2007 Regulations, the court may order the enforcement of the security.

Possession claims are governed by Part 55 of the Civil Procedure Rules and Practice Direction 55A. With regard to land subject to a mortgage, the Practice Direction provides that at the hearing the claimant’s evidence should include the amount of any rent or mortgage arrears and interest on those arrears. These amounts should, if possible, be up to date to the date of the hearing (if necessary by specifying a daily rate of arrears and interest).

If relevant, the defendant should give evidence of the amount of any outstanding social security or housing benefit payments relevant to rent or mortgage arrears and the status of any claims for social security or housing benefit about which a decision has not yet been made or any applications to appeal or review a social security or housing benefit decision where that appeal or review has not yet concluded.

Section 36 of the Administration of Justice Act 1970 provides that:

“(1) Where the mortgagee under a mortgage of land which consists of or includes a dwelling-house brings an action in which he claims possession of the mortgaged property, not being an action for foreclosure in which a claim for possession of the mortgaged property is also made, the court may exercise any of the powers conferred on it by subsection (2) below if it appears to the court that in the event of its exercising the power the mortgagor is likely to be able within a reasonable period to pay any sums due under the mortgage or to remedy a default consisting of a breach of any other obligation arising under or by virtue of the mortgage.

(2)The court—

(a) may adjourn the proceedings, or

(b) on giving judgment, or making an order, for delivery of possession of the mortgaged property, or at any time before the execution of such judgment or order, may—

(i) stay or suspend execution of the judgment or order, or

(ii) postpone the date for delivery of possession,

for such period or periods as the court thinks reasonable.

(3)Any such adjournment, stay, suspension or postponement as is referred to in subsection (2) above may be made subject to such conditions with regard to payment by the mortgagor of any sum secured by the mortgage or the remedying of any default as the court thinks fit.”

Pursuant to section 55(2) – (3) of the Family Law Act 1996, which applies if a mortgagee of a dwelling house brings an action in any court for the enforcement of its security,

ʺ(2) A connected person who is not already a party to the action is entitled to be made a party in the circumstances mention in subsection (3).

(3) The circumstances are that—

(a) the connected person is enabled by section 30(3) ... to meet the mortgagor’s liabilities under the mortgage;

(b) he has applied to the court before the action is finally disposed of in that court; and

(c) the court sees no special reason against his being made a party to the action and is satisfied—

(i) that he may be expected to make such payments or do such other things in or towards satisfaction of the mortgagor’s liabilities or obligations as might affect the outcome of the proceedings; or

(ii) that the expectation of it should be considered under section 36 of the Administration of Justice Act 1970.ʺ


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Zdravka Kalaydjieva

The applicants were born in 1972 and 1966 respectively. At the time of the events in question they were detained in Lovech Prison, serving sentences of life imprisonment, after being convicted of numerous crimes, including murder, rape and armed robberies.

On an unspecified date in 2006 the two applicants brought proceedings against the Ministry of Justice under the State and Municipalities Responsibility for Damage Act, seeking damages for the allegedly poor conditions of detention in Lovech Prison. The case was examined by the Sofia City Court, which accepted a request by the applicants to have two of their fellow inmates questioned as witnesses regarding the living conditions in the prison.

A special court hearing for that purpose took place on 26 January 2007 in a hearing room in Lovech Prison.

The applicants were brought to the hearing with their arms handcuffed behind their backs and their ankles shackled. Once the hearing began, Mr Radkov requested that his handcuffs be removed because he was uncomfortable. The judge presiding over the hearing refused, without giving any specific reasons. Mr Sabev then asked that it be noted in the record of the hearing that his handcuffs had not been removed either. The applicants’ arms remained handcuffed behind their backs until the end of the hearing.

The two witnesses heard by the court – who were from the same group of life prisoners – had their handcuffs removed.

A prosecutor was also present at the hearing.

The hearing continued for about an hour.


Remainder inadmissible;Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly)

Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Georges Ravarani;Ksenija Turković

The applicant was born in 1992 and lives in Diyarbakır.

On 14 July 2008 a demonstration was held in Diyarbakır to protest about the conditions of detention of Abdullah Öcalan, the leader of the PKK (Kurdish Workers’ Party), an illegal armed organisation.

According to a report prepared by four police officers on 21 July 2008 following the examination of video footage of the demonstration recorded by the police, on 11 July 2008 the Fırat News Agency, a website which was controlled by the PKK, had published a declaration of the Democratic People’s Initiative of Turkey and Kurdistan. The declaration contained instructions to hold meetings and marches in each town and city on 14 July 2008 to show support for Abdullah Öcalan. The report also stated that on the website www.rojaciwan.com, which was also controlled by the PKK, a news article containing a call for participation in the reading out of a press statement to be held by the Party for a Democratic Society (Demokratik Toplum Partisi (DTP)) in Diyarbakır on 14 July 2008 had been published.

The report stated that the police had received information according to which the Diyarbakır branch of the DTP was the organiser of the press statement to be held and MPs, mayors and local politicians from the DTP as well as members of a number of non-governmental organisations would gather in front of the DTP’s Diyarbakır party office at around 5.30 p.m. and march to Koşuyolu Park, where they would make a press statement. The police took the necessary measures as they suspected that there could be violent protests during the march, which could become a demonstration for the PKK.

According to the police report, people started to assemble by 4.30 p.m. in front of the DTP party office. Mayors and MPs were among the demonstrators. By 5.50 p.m. approximately 3,000 people had gathered. Thereafter, demonstrators started to march, arriving at 6.30 p.m.at Koşuyolu Park, where the press statement was made. At 7 p.m. while Emine Ayna, a Member of Parliament from the DTP, was giving a speech, a group of people started throwing stones at the police officers and the cars parked in the neighbourhood. Both in front of the local branch of the DTP and during the march, demonstrators chanted slogans praising Abdullah Öcalan, such as “Every Kurd is Öcalan’s fedai” (“Her Kürt Apo’nun Fedaisidir”), “We will drop the world without Öcalan on your head” (“Öcalansız dünyayı başınıza yıkarız”), “The Youth to Botan, to the free country” (“Gençlik Botan’a, Özgür Vatana”), “Salutations to İmralı ” (“Selam Selam İmralı’ya Bin Selam”), “With our blood, with our life, we are with you, Öcalan” (“Canımızla, kanımızla, seninleyiz Öcalan”) , “Long live President Öcalan” (“Biji Serok Apo”), “Martyrs are immortal” (“Şehîd Namirin”), “No life without the Leader, Mr./Esteemed Öcalan” (“Başkansız yaşam olmaz, Sayın Öcalan”). They carried banners which contained slogans such as “Stop the torture in İmralı” (“İmralı işkencesine son”) and “We make war for life, we die for peace” (Yaşamak için savaşırız; Barış için ölürüz”); photographs of Abdullah Öcalan and flags of the so-called “Confederation” were also brandished. Subsequent to the press statements, when the crowd dispersed, some people within the crowd knocked over waste containers and attacked the police and the shops in the neighbourhood with stones and bats while chanting slogans in support of the PKK and its leader. The police gave a warning to those people and asked them to disperse. The demonstrators refused to obey the warnings. As a result, the police had to use proportionate force against the group, who were holding an illegal demonstration. The police intervened using truncheons, water and tear gas. The police report also noted that some people had taken down the Turkish flag in the schoolyard of the Diyarbakır nursery school.

At the end of the report it was noted that, according to the video footage, the applicant had thrown stones at the police together with a number of other persons and had acted with the group which had taken down the Turkish flag at the Diyarbakır nursery school.

The report of 21 July 2008 also contained twenty-four photographs extracted from the video footage recorded by the police. In four photographs, the applicant is seen in a group of young men while, according to the police, throwing stones at the security forces. In two photographs, he is seen while standing together with a group of people by a flag pole. A total of six photographs concern the taking down of the Turkish flag; one photograph contains an image of a knocked-over waste container; and one other photograph shows a damaged passenger van. The remaining photographs contain images of demonstrators standing in front of a building or walking.

The applicant was arrested on 21 July 2008. According to the arrest and transfer report, the video recording of the demonstration by the police showed that the applicant had thrown stones at the police officers and had been in the crowd which had taken down the Turkish flag in a schoolyard. The officers who drafted the report stated therein that the applicant had been informed of his rights when arrested and had been transferred to the children’s branch of the Security Directorate, as he had been found to be a minor subsequent to a medical check. The applicant noted “I am not signing” and put his signature under that sentence on the report.

On 22 July 2008 the applicant made statements before the Diyarbakır public prosecutor in the presence of a lawyer. His statement reads as follows:

“...I am a primary school graduate and a peddler. On 14 July 2008 my brother and I were selling watermelons in front of Koşuyolu Park in Diyarbakır. Suddenly, a large group of demonstrators chanting the slogan “Long live President Öcalan” (“Biji Serok Apo”) approached us. Subsequently, the police intervened and took a number of persons into custody. Some individuals among the crowd then began throwing stones at the police officers. I also joined the demonstrators at the beginning and chanted the slogan “Long live President Öcalan”. I then threw stones at the police officers. After a short while, some people went to a school. I also went with them. Some of them climbed on the flagpole in the school garden. They took down the Turkish flag and replaced it with a PKK flag. I was not involved in taking down the Turkish flag. I did not have any particular purpose when I chanted the slogan and threw stones at the police. I only acted together with the crowd. I do not know why there was a demonstration. I do not have any connection with the illegal organisation. The person in the photograph that you have shown is me.”

On the same day the applicant was brought before a judge of the Fifth Division of Diyarbakır Assize Court. He maintained that his statements to the public prosecutor had reflected the truth. His lawyer asked the court not to remand the applicant in custody, submitting that the applicant was a minor and therefore not capable of realising the meaning and consequences of his acts.

The judge remanded the applicant in custody in view of the existence of a strong suspicion that he had committed the offences of “committing an offence on behalf of an illegal organisation without being a member of the organisation”, in breach of Law no. 2911, and “dissemination of propaganda in support of a terrorist organisation”, and having regard to the evidence.

On 22 July 2008 the Diyarbakır public prosecutor filed a bill of indictment against the applicant with the Fifth Division of Diyarbakır Assize Court, which had special jurisdiction to try a number of aggravated crimes enumerated under Article 250 § 1 of the Code of Criminal Procedure at the material time. The applicant was charged with membership of an illegal organisation as he was considered to have committed a crime on behalf of an illegal organisation under Article 314 § 2 of the Criminal Code (Law no. 5237) on the basis of Articles 220 § 6 and 314 § 3 of the same Code, resisting the security forces by way of throwing stones under sections 23(b) and 33(c) of the Meetings and Demonstration Marches Act (Law no. 2911), disseminating propaganda in support of the PKK under section 7(2) of the Prevention of Terrorism Act (Law no. 3713) and denigration of the symbols of the sovereignty of the State under Article 300 § 1 of the Criminal Code.

On 21 October 2008 the Fifth Division of Diyarbakır Assize Court held the first hearing in the case. During the hearing, the applicant reiterated his statements of 22 July 2008 and asked to be released. He maintained that he had participated in the demonstration, chanted the slogan “Long live President Öcalan” and thrown stones at the police when they intervened. He submitted that he had not been among those who had taken down the Turkish flag.

The public prosecutor asked the court to convict the applicant under Articles 300 and 314 of Law no. 5237, section 7(2) of Law no. 3713 and sections 23(b) and 33(c) of Law no. 2911. The public prosecutor also requested that the sentences be reduced taking into account the fact that the applicant had been aged between 15 and 18 years old at the material time.

On 11 November 2008 the Fifth Division of Diyarbakır Assize Court rendered its judgment in the case against the applicant. The court noted, at the outset, a summary of the applicant’s defence submissions, the public prosecutor’s observations on the merits of the case and the following evidence in the case file: the applicant’s statements before the public prosecutor and the judge on 22 July 2008; his identity documents and a document showing that he did not have a previous criminal record; the arrest and transfer report of 21 July 2008; an incident report dated 14 July 2008; printed versions of documents downloaded from the Internet; the police report of 21 July 2008 describing the events of 14 July 2008 and the applicant’s participation in those events; photographs extracted from the video footage recorded by the police; and medical reports.

In its judgment, the Assize Court held as follows:


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

The applicant was born in 1964 and is detained in Vinzili, Tyumen Region.

The authorities initiated several criminal proceedings against the applicant. On 28 August 2012 she was arrested on suspicion of fraud.

On 31 August 2012 the Leninskiy District Court of Tyumen remanded her in custody. The court extended her detention stating that she was accused of serious crimes, the crimes did not relate to commercial sphere, another set of criminal proceeding against her was pending and she had been convicted previously, she did not live at her place of residence, she might put pressure on witnesses, destroy or conceal evidence, re-offend, abscond or in any other way interfere with investigation. It appears that criminal proceedings against the applicant are still pending.


Remainder inadmissible;Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-e - Persons of unsound mind);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Dmitry Dedov;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković

The applicant was born in 1974 and lives in Miass, Chelyabinsk Region.

The applicant is a mentally disabled person. On 19 September 2003 the applicant was arrested on a suspicion of having committed a murder. On the same day the applicant’s mother informed the investigator that the applicant suffered from a mental disease.

In the period from 19 September until 25 October 2003 during the questionings conducted in the presence of counsel the applicant confessed, and furthermore confessed to murders of another five persons.

On 20 September 2003 the Kopeysk Town Court of the Chelyabinsk Region remanded the applicant in custody upon the investigator’s request.

On 14 November 2003 the Tsentralniy District Court of Chelyabinsk extended the applicant’s detention. It was subsequently extended on 18 February, 23 April and 17 September 2004 on the grounds that he was suspected of an especially serious criminal offence, might abscond, reoffend, interfere with the witnesses or obstruct the investigation in some other way. On 17 September 2004 the applicant detention was extended until 25 November 2004.

On 4 March 2004 the investigator ordered a psychiatric expert examination of the applicant.

On 16 July 2004 the commission of experts concluded that at the time of examination the applicant was in an acute phase of the disease and was not able to account for his actions. It was therefore impossible to determine the applicant’s state of mind at the time of the offences. The experts stated that the applicant posed a danger to society and needed a compulsory treatment at a psychiatric institution of a specialized type with intensified supervision.

On 22 October 2004 the applicant’s case was sent by the investigator to the court.

On 11 November 2004 the Chelyabinsk Regional Court held a preliminary hearing and extended the applicant’s detention.

The court hearings in the applicant’s case started on 17 November 2004.

On 11 February 2005 the Chelyabinsk Regional Court ordered compulsory treatment of the applicant in a psychiatric institution of a specialized type with intensified supervision until the improvement of his condition subsequently followed by the expert examination. The court also stated that until his placement to the hospital the preventive measure should remain unchanged. The relevant part of the decision reads as follows:

“The court has no reason to doubt the conclusions of the medical experts [of 16 July 2004]. Taking into account the mental state of Y. and the nature of committed acts posing a danger to society and the need for compulsory treatment in a specialized psychiatric hospital with intensive supervision, the court considers that in accordance with Articles 97, 99(1) (g), 101 (4) of the Criminal Code he should be placed in this kind of hospital for compulsory treatment. However the question of releasing him from execution of sentence or criminal responsibility cannot be currently resolved, as it was not possible to resolve the question of sanity of Y. in relation to the alleged acts due to a temporary disorder, namely the depressive episode of severe degree. In these circumstances Y. should be placed in the mental hospital until the improvement of his condition ...

The preventive measure should remain unchanged until his placement in the mental hospital.”

The applicant’s counsel appealed. In particular she argued that the applicant should be released, as the compulsory treatment of the applicant in a psychiatric institution of a specialized type with intensified supervision would worsen his state of health. He should be treated in a mental hospital of a general type, noting that more than seven months had passed since the last medical examination.

On 15 April 2005 the Chelyabinsk Regional Court extended the applicant’s detention until 22 July 2005 on the grounds that he was suspected of an especially serious criminal offence and the consideration of his case on the merits was still pending.

On 12 May 2005 the Supreme Court of Russia quashed the decision of 11 February 2005 and remitted the case for fresh examination to the first instance court. The Supreme Court noted that the first instance court had wrongly applied the provisions of the Code of the Criminal Procedure on compulsory medical treatment of offenders who had committed a crime in the state of insanity to the applicant’s case since his state of mind at the time of the commission of the crimes had not yet been established. The relevant part of the decision reads as follows:

“Having examined the materials of the case, grounds of appeal statements ... the court finds that the decision should be quashed due to the violation of rules of criminal procedure.

The present criminal case was transmitted to the Regional Court with a view of application of the compulsory measures of a medical nature. The court considered this case according to the Articles 441-442 of the Code of Criminal Procedure ... and found that Y. having a mental disease, currently in acute state, committed the acts ... and placed him in a psychiatric institution of a specialized type with intensified supervision for compulsory treatment until the improvement of his condition subsequently followed by the expert examination.

However according to the Article 443 (1) of the Criminal Code [Code of Criminal Procedure] the measures indicated in Article 99 of the Criminal Code could be applied only in respect of the person who has committed an act, prohibited by the criminal law, in the state of insanity, or to a person who became mentally ill after committing the crime, which makes it impossible to sentence him or to execute it. Only in such circumstances is it possible to consider the case according to these rules ... provided by Articles 440-443 of the Code of Criminal Procedure.

It follows from the materials of the case, in particular from the results of the expert examination, that Y. does not fall into any of these categories of persons as until improvement of his acute condition it is not possible to establish whether he committed an act, prohibited by the criminal law, in the state of insanity, or has plunged into a state of mental disorder after committing the crime, which makes it impossible to sentence him or to execute the sentence.

Nevertheless the court accepted this case and considered it according to Articles 440-443 of the Code of Criminal Procedure, at the same time the court in its decision notes that Y. committed the act, prohibited by the criminal law ... However as it mentioned before it does not follow from the expert report that he was in a state of insanity ...

At the same time it follows from the experts report ... that Y. suffers from the acute state of the disease and is in need of the treatment in a psychiatric institution. According to Article 435 of the Code of Criminal Procedure when it is established that a person to whom detention on remand has been applied as a preventive measure suffers from a mental illness, a court, upon a prosecutor’s request and in accordance with the procedure laid down in Article 108 of the of Code of Criminal Procedure, shall take a decision authorising a transfer of that person to a psychiatric hospital ...

The preventive measure shall remain unchanged.”

On 23 June 2005 the Chelyabinsk Regional Court scheduled another hearing of the applicant’s case for 7 July 2005.

On 7 July 2005 the Chelyabinsk Regional Court returned the case to the prosecutor in order to cure the violations of certain procedural rules. The court also extended the applicant’s detention on remand. The decision remained silent as to the grounds on which such conclusions were based and also as to the period of such authorised detention or the date of its next review. The applicant appealed. In particular he indicated that the period of his detention had expired.

On 21 July 2005 the Chelyabinsk Regional Court extended the applicant’s detention until 22 October 2005 on the grounds that he was suspected of an especially serious criminal offence.

On 26 September 2005 the Supreme Court of Russia dismissed the applicant’s appeal. Referring to the gravity of the charges, it noted that there were no reasons which would make it necessary to cancel or change that preventive measure.

On 10 October 2005 the Chelyabinsk Regional Court extended the applicant’s detention until 22 January 2006 on the grounds that he was suspected of an especially serious criminal offence and the consideration of his case on the merits was still pending.

On 25 October 2005 the investigator suspended the criminal investigation until the improvement of the applicant’s condition. The deputy prosecutor of the Chelyabinsk Region asked the court to transfer the applicant to a psychiatric institution, relying on Article 435 of the Code of Criminal Procedure.

On the same date the Tsentralniy District Court of Chelyabinsk, relying on Article 435 of the Code of Criminal Procedure, ordered the applicant’s transfer to a psychiatric institution until the improvement of his condition. The court noted that since it did not deal with the issue of compulsory medical treatment of the applicant it was not authorized at that stage to determine the type of the institution the applicant had to be transferred to. The relevant part of the decision reads as follows:

“It follows from the medical expert’s report that Y. suffers from the acute state of the disease. Currently he is not able to understand the factual character of his actions and control them. Taking into account his current mental state it is not possible to establish his mental state at the material time in respect of the acts he is accused of. Taking into account his current mental state, the presence of the mood disorders, the hallucinatory experiences, the lack of criticism towards his own mental state, Y. represents a danger to society and is in need of the treatment in a psychiatric institution of a specialized type with intensified supervision until the improvement of his condition. According to Article 435 of the Code of Criminal Procedure the court can transfer a person who is detained on remand to an inpatient psychiatric institution when it is established that the person suffers from a psychiatric illness. he court takes the decision about the transfer of Y. to the mental hospital. However the court does not deal with the issue of compulsory medical treatment of the applicant; thus it is not authorised at that stage to determine the type of the institution the applicant had to be transferred to ...

... Decides to transfer the applicant to a psychiatric institution ...”

The applicant’s counsel appealed. She argued, in particular, that she had not been notified of the hearing and the applicant was not in the acute state of the disease anymore.

On 17 November 2005 the Chelyabinsk Regional Court upheld the decision on the applicant’s transfer.

The administration of the remand prison IZ-74/3 of Chelyabinsk asked the court to determine the type of psychiatric institution the applicant had to be transferred to.

On 13 January 2006 the applicant was transferred to the Smolensk psychiatric hospital of a specialized type with intensified supervision.

On 17 January 2006 the Tsentralniy District Court of Chelyabinsk taking into account the results of the expert examination of 16 July 2004 decided that the applicant had to be transferred to a psychiatric institution of a specialized type with intensified supervision. The relevant part of the decision reads as follows:

“... Taking into account the medical expert’s report of 16.07.2004 ... the court considers it necessary to transfer Y. to a psychiatric institution of a specialized type with intensified supervision until the improvement of his condition ...”

On 2 February 2006 the Chelyabinsk Regional Court upheld the decision of 17 January 2006.

On 22 March 2006 the Tsentralniy District Court of Chelyabinsk upheld the investigator’s decision of 25 October 2005 to suspend the proceedings. The applicant appealed.

On 9 June 2006 the Chelyabinsk Regional Court upheld the decision of 22 March 2006.

On 22 September 2006 the medical commission of the Smolensk psychiatric hospital concluded that the applicant’s condition had improved so that he could be transferred back to the judicial and investigation authorities.

On 17 November 2006 the Sychevskiy District Court of the Smolensk Region passed the decision to stop the compulsory medical treatment of the applicant.

On 28 December 2006 the investigation was resumed and the applicant signed an undertaking not to leave the town and was released.

On 10 January 2007 the prosecutor decided to conduct an outpatient psychiatric expert examination of the applicant. The applicant failed to appear and his representative requested an inpatient examination.

On 7 March 2007 the Tsentralniy District Court of Chelyabinsk ordered the applicant’s inpatient psychiatric expert examination.

On 19 April 2007 the commission of experts delivered the results of the examination. The commission of experts concluded that at the time of the crimes the applicant was in a state of insanity. The experts stated that the applicant posed a danger to society and needed a compulsory treatment in a psychiatric institution of a specialized type with intensified supervision.

On 25 July 2007 the applicant’s case was sent to the court.

By decision of 21 August 2007 the Chelyabinsk Regional Court scheduled the hearing of the applicant’s case for 22 August 2007.

On 22 August 2007 the Chelyabinsk Regional Court ordered the applicant’s detention for three months with reference to the expert’s report of 19 April 2007 and to the fact that he was suspected of an especially serious criminal offence.

On an unspecified date the applicant’s counsel lodged a request for conducting an additional psychiatric expert examination of the applicant. On 22 August 2007 the Chelyabinsk Regional Court granted the request of the lawyer.

On 17 November 2007 the Chelyabinsk Regional Court extended the applicant’s detention until the end of consideration of the case by the trial court. It referred to the seriousness of the charges against him and the fact that he had changed his place of residence without due notification of the investigation authorities. On 14 January 2008 the Supreme Court of Russia upheld the decision of 17 November 2007.

On 6 December 2007 the commission of experts delivered the results of the psychiatric examination, which confirmed the conclusions reached in the report of 19 April 2007 and the applicant’s inability to take part in the court’s hearings.

On 18 February 2008 the Chelyabinsk Regional Court decided to return the case to the prosecutor to correct the inaccuracy in the description of the facts of the case. On the same day the court also extended the applicant’s detention on remand until 22 May 2008.

On 12 May 2008 the Chelyabinsk Regional Court scheduled the hearing of the applicant’s case for 23 May 2008 and extended the applicant’s detention on remand until 22 August 2008.

On 20 August 2008 the Chelyabinsk Regional Court extended the applicant’s detention on remand until 22 November 2008. It referred again to the fact that he had changed his place of residence without due notification of the investigation authorities.

On 11 September 2008 the Chelyabinsk Regional Court found it established that the applicant had sexually assaulted and murdered six women and stole the belongings of one of them. Since the applicant had committed the crimes in the state of insanity, the court relieved him of criminal responsibility and ordered his compulsory treatment in a psychiatric institution of a specialized type with intensified supervision. The applicant appealed.

On 25 December 2008 the Supreme Court of Russia upheld the decision of 11 September 2008.


Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-3-a) Manifestly ill-founded;No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)

André Potocki;Angelika Nußberger;Erik Møse;Síofra O’Leary;Yonko Grozev;Gabriele Kucsko-Stadlmayer

The applicants in application no. 11308/16 (Tlapak) are a mother and father. Their son J. was born on 15 January 2012. The applicants in application no. 11344/16 (Pingen) are also a mother and father. Their two daughters A. and B. were born on 7 October 2009 and their son G. was born on 23 May 2013. All the applicants are members of the Twelve Tribes Church (Zwölf Stämme) who lived in a community of around twenty members of the church in Wörnitz, Germany. A second community with around 100 members was located in the nearby village of Klosterzimmern.

In 2012 the press reported about the Twelve Tribes Church and its position on the right of parents to apply corporal punishment, especially caning. Furthermore, statements by a former member of the community were published, confirming that children had been punished with rods.

In 2012 and 2013 the local youth offices (Jugendamt) visited both communities and its spokespersons were invited to a meeting at the Bavarian Ministry of Education. Corporal punishment and the issue of compulsory schooling were discussed at the meeting.

On 16 August 2013 the Klosterzimmern youth office and the Nördlingen Family Court received video footage from a television reporter showing ten different instances of corporal punishment in the community in Klosterzimmern. The footage, filmed with a hidden camera, showed the caning of various children between the ages of three and twelve. According to the television reporter, the person who carried out the punishment was not, in most cases, a parent of the child being punished.

On 3 September 2013 the Ansbach Family Court, upon an application by the competent youth office, made an interlocutory order regarding all children in the Twelve Tribes community in Wörnitz, including the applicants’ children. The court withdrew the applicants’ rights to decide where their children should live (Aufenthaltsbestimmungsrecht), and to take decisions regarding their health (Gesundheitsfürsorge), schooling and professional training, and transferred those rights to the youth office. The court based its decision on the above-mentioned video footage and the testimony of the television reporter and six former members of the Twelve Tribes community. It concluded that there was a reasonable likelihood that the children would be subjected to corporal punishment in the form of caning and so-called “restraining”, involving holding a child’s limbs tight and pressing his or her head down until the child had no strength left to cry and struggle.

On 5 September 2013 the youth office took the community’s children into care. They were supported by around thirty police officers, who, at the same time, searched the community’s premises and found a wooden rod.

The applicants’ children were subsequently examined but no physical signs of abuse or beating were revealed.

J. Tlapak was subsequently placed in a foster family. As he was still being breastfed, his mother was permitted daily visits to give him milk.

A. and B. Pingen were also placed in a foster family. Their aunt’s family was approved as fosterers and they were then placed with them.

Since G. Pingen was then only one year and four months old and was also still being breastfed, he and his mother were placed together in a foster family.

On 13 September 2013 the Ansbach Family Court heard the applicants and on 23 September 2013 it upheld its order of 3 September 2013 in an interim decision.

On 2 December 2013 the Nuremberg Court of Appeal dismissed an appeal by the applicants against the interim decision of the Family Court in essence, but set the decision aside to the extent it concerned the parental right to decide on schooling matters. Given the son’s age, the court held that there was no need to decide on that issue in the interim proceedings.

In 2015 the applicants moved – without their son J. – to the Czech Republic, where they have been living since.

The Ansbach Family Court heard the applicants on 13 September 2013 and the applicants’ daughters on 18 September 2013 in the foster family’s home. The daughters reported that their parents had hit them on the hand with a rod as a form of corporal punishment. On 23 September 2013 the Family Court upheld its order of 3 September 2013.

On 2 December 2013, upon an appeal by the applicants, the Nuremberg Court of Appeal reversed the decision to withdraw the right to decide where G. Pingen should live. The earlier decision on the daughters was upheld, with the proviso that the parents were to retain the right to take decisions on school matters and on their daughters’ choice of education or training and career.

The son was subsequently returned to the applicants, who moved first to Belgium and later to the Czech Republic, where they have been living since. The applicants’ daughters are still in the care of the foster family (see paragraph 14 above).

Upon an application made by the applicants on 9 September 2013 the Family Court initiated the main proceedings and, on 24 September 2013, it commissioned an expert opinion.

After interviewing the applicants and observing a meeting between them and their son, the expert submitted a written opinion on 19 December 2013. He found that even though the applicants had a loving attitude towards their son, they considered corporal punishment with objects as an appropriate and necessary parenting method. Owing to their willingness to apply that method to their son, there was a likelihood bordering on certainty that if he remained with them, they would apply corporal punishment. This, the expert concluded, would significantly jeopardise the son’s development and result in psychological problems. Overall, it was in the child’s best interests to place him away from his parents to protect him from the applicants’ parenting methods, which were dangerous for the child. Since their parenting was based on religious convictions, they were unwilling to abandon the parenting method of corporal punishment and lacked the will to cooperate with the authorities or accept help. Consequently, less intrusive measures could not be considered sufficient.

Subsequently the applicants submitted a privately commissioned expert opinion, in which the court-appointed expert’s approach and methodology was criticised. In addition, the applicants retrospectively withdrew their consent to being assessed by the court-appointed expert and to an assessment of their son.

In separate proceedings the Family Court, on 1 August 2014, issued an interim decision in which it withdrew the applicants’ parental right to decide on the son’s assessment by the court-appointed expert and consented to such a measure.

On 4 August 2014, the Family Court forwarded the privately commissioned expert opinion to the court-appointed expert, who responded to the criticism and gave details of his methodology in a letter of 15 August 2014.

In a hearing on 19 September 2014 the court proposed an agreement between the applicants and the youth office, with the aim of returning their son to them. However, the applicants and the youth office did not agree on a settlement owing in particular to a disagreement about the son attending a state school and play therapy. Moreover, there were concerns about the parents attending a development course and assisting with medical measures. The youth office considered those aspects as essential and declined the partial settlement proposed by the applicants.

After hearing the applicants’ son in the home of the foster family where he had been placed on 21 October 2014, the Family Court decided on 22 October 2014 to withdraw the applicants’ right to decide where their son should live and to take decisions regarding his health and schooling, and transferred those rights to the youth office, which had been appointed as supplementary guardian.

The Family Court stated that it would be very detrimental to the best interests of the child if the son continued to live with the applicants owing to their parenting methods. Based, in particular, on the courtcommissioned expert opinion and the statements by the applicants during the court proceedings, the court concluded that there was a high, concrete probability that the son would be subjected to corporal punishment using physical objects over the course of several years. According to the expert, this would give rise to an expectation that the applicants’ son would suffer from psychological issues. Even though separating the parents and the child constituted a severe interference with their right to a family under Article 6 of the Basic Law (see paragraph 53 below) and may possibly have negative consequences for the child, that interference was justified in the case at hand. Corporal punishment of the kind at issue was particularly degrading for a child. It was not only banned by Article 1631 § 2 of the Civil Code (see paragraph 54 below) but also constituted an interference with a child’s human dignity, protected under Article 1 of the Basic Law (see paragraph 50 below), and a child’s right to physical integrity, protected under Article 2 of the Basic Law (see paragraph 51 below).

The court also held that the risk to the child could not be averted using less drastic measures. Throughout the course of the proceedings the applicants had unreservedly advocated their parenting style and had refused to accept the opinion that the type of corporal punishment they endorsed was covered by the ban on violence under Article 1631 of the Civil Code. The physical effects of such punishment were only short-lived, which was why it would only be possible for the youth office to observe any such effects if it made unannounced visits and the child had – by chance – been punished immediately prior to such a visit. According to the expert’s explanations, the psychological consequences could, by contrast, only be determined after a longer period of time and they were difficult to discern at first glance. Although the applicants had most recently indicated to the court that they were ready to refrain from corporal punishment in the future, the court regarded such statements as not being compelling since they had not provided any grounds. The Family Court, nonetheless, pointed out that the applicants were free to reach an out-of-court settlement with the youth office concerning the conditions under which the son could be returned after the proceedings had been concluded. However, the previous settlement proposal had been refused because the applicants had not been willing to agree to have their son take part in play therapy and attend a state school.

In regard to the fact that the applicants had withdrawn their consent to being examined by the court-appointed expert after the expert opinion had already been submitted, both for themselves and their child, the court held that this did not render the expert’s report unusable in the proceedings. While the court had given its own consent in place of the parents’ as far as it concerned the son, the parents’ actions on that point could not, in light of the state’s obligation to protect children under constitutional law, hinder the use of the expert opinion in the proceedings. Allowing parents to reject expert opinions they disagreed with by retrospectively withdrawing consent to an examination would prevent any effective protection of children in family court proceedings.

The applicants subsequently appealed against the decision of the Family Court. The Court of Appeal, after hearing the applicants, their son, the son’s guardian ad litem, a representative of the youth office, the courtappointed expert and the expert commissioned by the applicants, dismissed the applicants’ appeal on 26 May 2015.

In a decision of thirty-nine pages, the Court of Appeal considered in detail the applicants’ statements concerning corporal punishment, publications by the Twelve Tribes Church, the expert’s opinion and the criticism of the report by the privately commissioned expert. Overall it confirmed the decision and reasoning of the Family Court of 22 October 2014. The court emphasised that not all individual violations of the right to a non-violent upbringing under Article 1631 § 2 of the Civil Code (see paragraph 54 below) could justify a withdrawal of parental authority. However, there was a fear in the applicants’ case that systematic caning with a rod would be the reaction whenever the child was deemed to have broken a rule. There was moreover already a threat to the child’s best interests as he would live in constant fear of suffering physical pain and experiencing the resulting humiliation as psychological suffering. Beatings as such, the court held, constituted child abuse and misuse of parental authority. It was of no relevance whether or not lasting physical injuries occurred.

The court further held that on account of their religious beliefs, the applicants were convinced that their child-rearing methods were legitimate. Accordingly, they were neither willing nor able to avert the danger to their child and the recent contradictory statements they had made could not be considered as credible.

On 16 August 2015 the Federal Constitutional Court refused to admit a constitutional complaint by the applicants (1 BvR 1467/15), without providing reasons.

The Family Court, upon an application by the applicants dated 9 September 2013, initiated the main proceedings and on 24 September 2013 commissioned an expert opinion.

After interviewing the applicants, their two daughters and the children’s foster parents, and observing a meeting between the applicants and their children, the expert submitted a written opinion on 23 December 2013. He stated that the applicants and their daughters had confirmed that the parents had used a rod as corporal punishment on the daughters and that even though the applicants had a loving attitude towards their children, they considered corporal punishment using physical objects as an appropriate and necessary parenting method. Given the past incidents of corporal punishment and the applicants’ general willingness to use that method on their children, it was virtually certain that they would subject them to corporal punishment again. The expert concluded that the applicants’ rigid, authoritarian parenting style and their conviction that children should be raised to obey their parents by means of corporal punishment using physical objects from the age of three conflicted significantly with the best interests of the children and was also detrimental to the unimpaired development of their personality. He expected that such methods would likely result in psychological issues. Overall, it was in the best interests of the children to place them away from their parents. Since the applicants’ parenting style was based on religious convictions, they were unwilling to abandon the parenting method of corporal punishment and were not fully prepared to cooperate with the authorities and accept help. Consequently, measures that infringed on their rights to a lesser degree could not be considered sufficient.

Subsequently, the applicants submitted a privately commissioned expert opinion, in which the court-appointed expert’s approach and methodology was criticised. In addition, the applicants retrospectively withdrew their consent to being assessed by the court-appointed expert and to the assessment of their three children.

In separate proceedings the Family Court, on 1 September 2014, issued an interim decision in which it withdrew the applicants’ parental right to decide on the children being assessed by the court-appointed expert and consented to the psychological examination. It also forwarded the privately commissioned expert opinion to the court-appointed expert, who responded to the criticism in it and gave details of his methodology in a letter of 1 October 2014.

In a hearing of 29 September 2014 the parties discussed an agreement between the applicants and the youth office, with the aim of returning the daughters to the applicants and protecting all three children. However, the applicants and the youth office could not agree on a settlement as there was disagreement in particular on the children attending a state school and therapy. Moreover, the applicants were unwilling to remain in Germany under the supervision of the youth office for an extended period of time.

After hearing the applicants and their daughters several times, including in parallel proceedings, the Family Court decided on 21 October 2014 to withdraw the applicants’ right to decide where all three children should live and to take decisions regarding the children’s health and schooling, and transferred those rights to the youth office, which had been appointed as supplementary guardian. Additionally, the court ordered the applicants’ son to be handed over to the youth office.

In its reasoning, which was similar to that in application no. 11308/14 (see paragraphs 29-31 above), the Family Court held that the applicants’ parenting methods meant that it would be very detrimental to the best interests of all three children to continue to live with their parents. The court emphasised that the aim of Article 1666 of the Civil Code (see paragraph 55 below) was not to penalise past child abuse or views on parenting that were in contradiction to Article 1631 § 2 of the Civil Code (see paragraph 54 below), but to prevent imminent threats to the best interests of children. Based, in particular, on the opinion by the courtappointed expert and the statements by the applicants and their children, the court concluded that there was a high, concrete probability that the children would be subjected to systematic corporal punishment using physical objects, which would in turn be detrimental to the best interests of the children in physical and psychological terms. The severe interference with the applicants’ right to a family under Article 6 of the Basic Law (see paragraph 53 below) by separating them from their children was nonetheless not only justified but also proportionate since the risk to the children could not be averted using milder means. Besides the problem of detecting corporal punishment through unannounced visits by the youth office (see paragraph 30 above), the court also pointed out that the applicants had consistently, over the course of the proceedings, shown a lack of willingness to cooperate with the youth office and had refused to accept state schools, both of which the court found necessary to prevent degrading corporal punishment and ensure the children’s autonomous development. Furthermore, the court held that it could be expected that the applicants would leave Germany if their children were returned to them and thereby elude any orderly monitoring and supervision by the competent youth office. Lastly, the court concluded that the withdrawal of the consent to being examined by the court-appointed expert did not hinder the use of the expert opinion in the proceedings (see paragraph 31 above).

The applicants subsequently appealed against the decision of the Family Court and applied for an interim measure to suspend the order to hand their son over to the youth office.

On 15 December 2014 the Court of Appeal provisionally suspended enforcement of the Family Court’s order on the son. The court held that given his age, one year and six months, and the fact that he was still being breastfed, enforcement would constitute an especially serious interference with the applicants’ rights. In addition, the son’s young age meant there was no imminent and sufficient risk of him being subjected to corporal punishment.

During the appeal proceedings the applicants proposed a settlement to the Court of Appeal. The applicants would temporarily return to Germany and for two months they would gradually be reunited with their two daughters under the supervision of the youth office. At the end of that period, if the family reunification had been successful, the Family Court’s decision would be set aside and the whole family would move to the Czech Republic.

On 26 March 2015 the Court of Appeal conducted an oral hearing during which it heard, inter alia, the applicants, their daughters, the courtappointed expert, the expert commissioned by the applicants and the children’s guardian ad litem. The applicants’ daughters stated that, even though they would like to see their parents more often, they would prefer living with their foster parents. Moreover, a representative of the youth office indicated during the hearing that the applicants had not distanced themselves from their previous parenting methods in a credible way and that therefore the youth office was not able to agree to the settlement they had proposed.

On 10 June 2015 the Court of Appeal, in a detailed decision of fortyfive pages, rejected the applicants’ appeal and confirmed the reasoning of the Family Court. The court held that corporal punishment with a rod, prohibited by Article 1631 § 2 of the Civil Code (see paragraph 54 below), constituted the physical abuse of children and if applied regularly and repeatedly the competent authorities were obliged under Article 1666 of the Civil Code (see paragraph 55 below) to intervene and take the necessary measures in the best interests of the children. The applicants’ daughters had consistently stated during the proceedings that they had been caned on a daily basis and the applicants themselves had confirmed that they had “disciplined” their daughters with a rod. The court was convinced that the applicants would continue to use corporal punishment on their children in the future since that parenting method was already firmly established and was based on religious beliefs from which the applicants had not fundamentally distanced themselves. Their statements had shown that they, in essence, continued to approve of corporal punishment and considered it an appropriate parenting method. The fact that the applicants had recently acknowledged that their children had a right to a non-violent upbringing did not mean they had changed their attitudes to parenting in a permanent way; rather, that had only served a procedural purpose, namely to have their daughters returned to them as soon as possible. In the court’s opinion, the applicants were only prepared to refrain temporarily from corporal punishment. The court was therefore unable to find that the applicants had changed their way of parenting and distanced themselves from corporal punishment in a manner which the court could regard as credible. Consequently, there was an imminent danger of systematic corporal punishment if the two daughters were returned to their parents. The danger also existed for the applicants’ son as there was no fixed age when the applicants started “disciplining” their children as they rather considered it a tool to enforce their parental authority. As the two-year-old son was expected to start his “phase of defiance” soon, it also had to be expected that the applicants would respond with caning.

The Court of Appeal also confirmed that the applicants’ withdrawal of their consent to being assessed did not prevent the courts from using the expert opinion as evidence and that there were no less severe measures available to avert the imminent detriment to the best interests of the children resulting from their parents’ use of corporal punishment. In that regard, the court, inter alia, pointed to the fact that the applicants had already left Germany with their son and refused to return to live there permanently. The competent authorities would therefore from the very outset be unable to provide sufficient support to the family or effectively monitor the applicants’ parenting methods.

On 16 August 2015 the Federal Constitutional Court refused to admit a constitutional complaint by the applicants (1 BvR 1589/15), without providing reasons.


Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Possessions;Article 1 para. 2 of Protocol No. 1 - Control of the use of property);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

The applicant was born in 1952. He is a businessman living in Županja.

On 11 August 2000 the Vukovar County State Attorney’s Office (Županijsko državno odvjetništvo u Vukovaru) asked an investigating judge of the Vukovar County Court (Županijski sud u Vukovaru) to open an investigation in respect of the applicant, in his capacity of the director of company M., in connection with suspicion of several charges of economic crime. It also requested that several items of the applicant’s real property be restrained so as to secure effective enforcement of a probable confiscation order in the amount of 3,573,747.24 Croatian kunas (HRK) (approximately 469,475 Euros (EUR)).

The investigation was opened on 21 August 2000, and on 6 March 2001 the investigating judge declared the request for seizure of the applicant’s property inadmissible on the ground that under the Code of Criminal Procedure applicable at the time the State Attorney’s Office had not been authorised to make such a request.

After the completion of the investigation, on 10 May 2002 the applicant was indicted, together with three other persons, in the Vukovar County Court on several charges of economic crime, concerning in particular misappropriation of company shares, and misuse of the company M.’s assets and facilities.

On 28 May 2007 the Vukovar County State Attorney’s Office amended the indictment, dropping the charges on six counts against the applicant and charging him on one count of misappropriation of company shares, and several counts of misuse of the company M.’s assets and facilities. The total value of the pecuniary gain which the applicant had allegedly obtained by the commission of these offences was set out at approximately EUR 1,060,000.

On the basis of the amended indictment, on 8 April 2008 the Vukovar County Court found the applicant guilty of charges of misappropriation of company shares and acquitted him of all other charges. The applicant was sentenced to three years and six months’ imprisonment and confiscation of the pecuniary gain in the amount of HRK 6,169,977.35 (approximately EUR 850,000) allegedly obtained by the commission of the offence of which he was found guilty.

Upon appeal by the applicant and the Vukovar County State Attorney’s Office against this judgment, on 18 October 2011 the Supreme Court (Vrhovni sud Republike Hrvatske) quashed it and ordered a retrial.

In the resumed proceedings, and after the 2010 Confiscation of the Proceeds of Crime Act (see paragraph 36 below) had entered into force, on 27 June 2012 the Vukovar County State Attorney’s Office requested the Vukovar County Court that several items of the applicant’s real property be seized (ten plots of land, two houses and a commercial building) so as to secure effective enforcement of a probable confiscation order in the amount of approximately EUR 1,060,000.

In support of its request the Vukovar County State Attorney’s Office submitted records from the land registry attesting to the applicant’s ownership of the real properties in respect of which the request for a seizure order was made. It did not submit an assessment of the value of the property nor did it make any reference to its possible value. However, according to the information submitted by the Government, the assessment of the value of several items of the real property, which were the subject matter of the proceedings, had been made on the basis of the material available from the investigation case file and their estimated value at the moment of purchase in 1997 (in total estimated at approximately EUR 440,000), whereas the assessment of the value of the remainder of the real property had been made by the Vukovar County State Attorney’s Office with regard to the information available in the land registry, although the records in the land registry did not contain information on the value of the property itself.

On 27 June 2012 a single judge of the Vukovar County Court ordered seizure of the applicant’s real property listed in the request of the Vukovar County State Attorney’s Office so as to secure effective enforcement of a possible confiscation order in the amount of approximately EUR 1,060,000. No reasoning was provided with regard to the proportionality of the alleged pecuniary gain obtained and the value of the restrained real property.

On the basis of an order of the Vukovar County Court, the seizure of the applicant’s real property was registered in the land registry.

The applicant challenged the decision of the Vukovar County Court before the Supreme Court and on 5 September 2012 the Supreme Court quashed it and remitted the matter for re-examination on the grounds that the decision on seizure of the real property was not within the competence of a single judge but a panel of three judges.

On 17 October 2012 the applicant requested the Vukovar County Court that the quashed seizure order be removed from the land registry. He contended that he had taken a bank loan which was secured by a mortgage on his real property and that the loan would not be extended due to the seizure of his property, which could lead to his total bankruptcy and destruction of his business. In support of his request, the applicant submitted email correspondence with the bank asking him to clarify when the seizure order would be lifted, as it affected the management of his loan.

On 18 October 2012 the applicant’s representative received a summons by the Vukovar County Court to appear before a three-judge panel of that court on 30 October 2012, without specifying the exact reason for the summons. It was also indicated that the court session could be held in the absence of the defence.

On 30 October 2012 a three-judge panel of the Vukovar County Court examined the request of the Vukovar County State Attorney’s Office for the seizure of the applicant’s real property. On the same day it accepted the request in full and ordered restraint of the applicant’s real property listed in the request of the Vukovar County State Attorney’s Office (see paragraph 12 above) by prohibiting its alienation or encumbrance. The relevant part of the decision reads:

“The records from the land registry ... show that the accused Antun Džinić is the owner of the above listed items of real property.

Under section 11 § 1(A) in conjunction with section 31 § 2 of the Confiscation of the Proceeds of Crime Act (Official Gazette no. 145/2010), and also in view of section 12 of the Confiscation of the Proceeds of Crime Act, this panel finds that it is presumed that there is a danger that the claim of the Republic of Croatia with regard to confiscation of the proceeds of crime would not be enforceable or that its enforcement would be difficult without ordering of a restraint measure.

Under Article 82 of the Criminal Code no one can retain the proceeds of crime.

By the indictment of the Vukovar County State Attorney’s Office ... the accused Antun Džinić is charged, under count 4 (a), (b) and (c), of having procured for himself a pecuniary gain in the amount of HRK 1,800,857.74.

[T]he proceedings at issue concern ... the confiscation of the proceeds of crime under section 11 § 1(A) in conjunction with section 31 § 2 of the Confiscation of the Proceeds of Crime Act. In view of the above, it is ordered to the land registry of the Županja Municipal Court to register the restraint of the listed property in the land registry.”

The restraint of the applicant’s real property was registered in the land registry on the basis of an order of the Vukovar County Court.

On 12 November 2012 the applicant lodged an appeal before the Supreme Court challenging the decision of the Vukovar County Court ordering the seizure of his property. He contended in particular that the value of the restrained property was according to his provisional estimate more than HRK 20,000,000 (approximately EUR 2,600,000), which significantly surpassed the pecuniary gain allegedly obtained by the commission of the offences which were the subject matter of the proceedings. He also stressed that it was reasonably expected from the Vukovar County Court to conduct at least a general assessment of the value of the property restrained and the pecuniary gain allegedly obtained by the commission of the offences in question. The applicant therefore submitted that by failing to make any such assessment, the Vukovar County Court had imposed an excessive individual burden on his property rights.

The Supreme Court dismissed the applicant’s appeal on 27 December 2012. With regard to the applicant’s specific complaint concerning the lack of proportionality of the measure imposed, the Supreme Court noted:

“The Supreme Court finds that the principle of proportionality has not been breached since Antun Džinić is charged with having obtained a pecuniary gain in the amount of HRK 1,800,857.74, and the value of the restrained property does not justify [his] argument that the value of the restrained property listed in the operative part of the impugned decision significantly surpasses the [possible confiscation] claim.”

On 18 February 2013 the applicant lodged a constitutional complaint before the Constitutional Court (Ustavni sud Republike Hrvatske) challenging the decisions of the lower courts on the seizure of his property. He relied on the Convention and the Court’s case-law, contending that the decision on the seizure of his property had been disproportionate.

On 20 February 2013 the applicant requested the Vukovar County Court that the seizure order be lifted or reassessed. He argued that there were other less restrictive means of securing the enforcement of a possible confiscation order, and contended that it had not been alleged that the seized property had been obtained by a criminal activity. He also urged the Vukovar County Court to make an assessment of the value of the seized property so as to limit the scope of the restraint to the value of the pecuniary gain allegedly obtained. He also contended that the value of the seized property significantly surpassed the alleged pecuniary gain obtained, which had endangered the normal functioning of his business.

On 25 April 2013 the Constitutional Court declared the applicant’s constitutional complaint of 18 February 2013 (see paragraph 23 above) inadmissible on the ground that the decisions of the lower courts did not concern a decision on the merits of any of the applicant’s rights or obligations or any criminal charge against him.

On 9 July 2013 a three-judge panel of the Vukovar County Court dismissed the applicant’s request that the seizure order be lifted or reassessed (see paragraph 24 above). The relevant part of the decision reads:

“The request for the lifting of the restraint and the request for its modification are unfounded.

It follows from the final indictment of the Vukovar County State Attorney’s Office ... that there is a reasonable suspicion that the accused Antun Džinić, by the offences listed in count 4 (a), (b) and (c) [of the indictment], obtained pecuniary gain in the total amount of HRK 1,800,857.

Since the [seizure order] is based, under section 12 § 1 of the Confiscation of the Proceeds of Crime Act, on the presumption that there is a danger that the confiscation of the proceeds from crime would not be enforceable or that its enforcement would be difficult without ordering of a restraint measure, it was decided as noted in the operative part of this decision.”

On 12 July 2013 the applicant challenged this decision by lodging an appeal before the Supreme Court. He complained that he had not had an effective opportunity to challenge the seizure order in a hearing before the Vukovar County Court and that the seizure of his property had been disproportionate and thus contrary to Article 1 of Protocol No. 1. The applicant further stressed that it was unclear for which amount of the alleged pecuniary gain the seizure order had been made given that the Vukovar County Court had only referred to one count of the indictment, alleging that he had obtained pecuniary gain in the amount of HRK 1,800,857, whereas it had ignored the other count of the indictment according to which he had obtained a pecuniary gain in the amount of HRK 6,169,977.35. The applicant, therefore, assuming that the overall amount of the pecuniary gain for which the seizure order had been made corresponded to the sum of the two amounts noted (approximately EUR 1,060,000), submitted a detailed estimate value of each item of the restrained property based on the information from a publicly available Internet portal on the market values of real properties in Croatia. According to this estimate, the total value of the seized property corresponded to some EUR 9,887,084. The applicant thus contended that there was a gross disproportionality between the alleged pecuniary gain obtained by the commission of the offences referred to in the indictment and the value of the seized property, which imposed on him an excessive individual burden.

On 17 October 2013 the Supreme Court, acting as the appeal court, dismissed the applicant’s appeal by noting the following:

“The same complaints had been made against the decision of 30 October 2012 ... and then it was answered to the appellant that the principle of proportionality had not been breached ... By a speculative assessment of the value of the real properties listed in the appeal, the appellant did not manage to put into doubt the findings of the first-instance court.

The appellant’s argument that it is not clear from the impugned decision which amount of the pecuniary gain he has allegedly obtained is unfounded.

The first-instance court stated in the impugned decision that the accused had obtained a pecuniary gain in the amount of HRK 1,800,857, as referred to in count 4 of the indictment, but it failed to cite the amount referred to in count 1 of the indictment of HRK 6,169,977.35, which is as such, in view of the status of the case, uncontested. There is therefore no doubt that the [seizure order] was made in respect of the overall amount of the possible pecuniary gain, as it was explained in the first decision by which the measure was ordered.”

The applicant challenged this decision before the Constitutional Court and on 7 February 2014 the Constitutional Court declared it inadmissible, reiterating its previous reasoning (see paragraph 25 above).

At a closing hearing in the criminal proceedings before the Vukovar County Court on 8 July 2014, the applicant again requested that the seizure order be lifted.

On 11 July 2014 the Vukovar County Court found the applicant guilty on the charges of misuse of the company M.’s assets and facilities by which he had allegedly obtained a pecuniary gain in the amount of HRK 1,800,857.74 (approximately EUR 240,000), and acquitted him on charges of misappropriation of company shares and one alleged event of misuse of the company M.’s assets and facilities. The applicant was sentenced to two years’ imprisonment and confiscation of the amount of HRK 1,800,857.74. The case is pending on appeal before the Supreme Court.

On the same day the Vukovar County Court dismissed the applicant’s request for lifting of the seizure order made at the hearing on 8 July 2014 (see paragraph 30 above) as ill-founded on the ground that the seizure of the property could be maintained for sixty days following the relevant procedures related to the finality of the judgment. As the judgment had not become final, the Vukovar County Court considered that there was no ground for lifting of the seizure order.