Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)

Alena Poláčková;Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova

The applicant was born in 2001 and lives in St Petersburg.

In August 2004 the applicant started attending public pre-school educational institution no. 42 (“the nursery school”). His teachers were Ms K., Ms P. and an assistant teacher, Ms Ch.

In the spring of 2005 the applicant’s parents noticed a change in his behaviour. In particular, he became nervous and unwilling to go to nursery school. During the summer holidays of that year the applicant’s physiological state significantly ameliorated and his mood returned to normal. However, as soon as he resumed nursery school in September 2005 he again became nervous and frightened of the dark and noises. He resisted going to school and refused to discuss school with his parents or sisters.

On 7 November 2005, when picking him up from the nursery school, the applicant’s mother noticed that his eyes were twitching and that he had a bruise on his left temple. The applicant complained that his neck and eyes were aching. The teacher, Ms P., told the applicant’s mother that the children had been given eye drops containing an antibiotic. According to her, one of the children in the class had an eye infection and it was necessary to take preventive measures against its spreading among the children.

On 8 November 2005 the applicant was examined by an ophthalmologist, who noted a bruise on his temple. She found no symptoms of any eye infection or disease. She recommended a consultation with a neurologist in order to verify whether the eye tics could have neurological causes.

On the same day the applicant started to display mouth tics.

On 14 November 2005 the applicant’s mother lodged a complaint with the local department of the Federal Authority for Consumer Protection and the Supervision of Public Well-being. She complained that the teachers at nursery school no. 42 had administered eye treatment to her son without her consent and had used physical force against him. Her son had developed nervous tics as a result.

On 15 November 2005 the applicant was examined by a neurologist and was diagnosed with hyperkinesia (a state of excessive restlessness which is manifested in a wide variety of disorders that affect the ability to control motor movement and which is mainly psychological in nature).

On 16 November 2005 the applicant’s mother complained to the local department of education about the incident of 7 November 2005 and asked that the applicant be transferred to another nursery school.

By a letter of 23 November 2005 the local department of the Federal Authority for Consumer Protection and the Supervision of Public Wellbeing informed the applicant’s mother that the director of nursery school no. 42 had been disciplined for breaching sanitary standards.

By a letter of 29 November 2005 the local department of education replied to the applicant’s mother, stating that the facts described in her complaint had been confirmed in part and that the director of the nursery school, teachers Ms K. and Ms P. and medical nurse Ms Pt. had been disciplined. It had been decided to transfer the applicant to another public nursery school.

When the applicant learnt that he would not have to return to nursery school no. 42, he was happy and told his parents that he had been mistreated by Ms K. and Ms P. In particular, he had been punished for a failure to sleep during the afternoon sleeping hours. Sometimes he had been made to lie on a folding bed in the toilets. The lights in the toilets had been switched off and the teachers had told him that he would be eaten by rats. The applicant had felt very frightened as he had once seen a rat in the toilets. On other occasions he had been forced to stand in the entrance hall, barefoot and wearing only his underpants, for the entire duration of the sleeping hours. He had been very cold. The applicant had also on occasions been hit on the back with a fist. On one occasion the teachers had taped his mouth shut with sellotape. After he had started to suffocate, he had tried to remove the sellotape. The teachers had then taped his hands behind his back. Some other children had also been subjected to similar punishments. They had been threatened that if they complained to their parents about the teachers they would be punished.

The applicant also told his parents in detail about what had happened on 7 November 2005. He had been given eye drops twice. In the morning Ms K. had bent his head back with such force that his neck had ached. In the afternoon, she had sat on the applicant’s legs and tried to force his eyes open with her hands. Frightened, the applicant had resisted. Ms K. had then slapped his face.

On 23 November 2005 the applicant’s father was questioned by the police in connection with a complaint lodged by Ms K. and Ms Pt. that he had assaulted them. The applicant’s father stated to the police that his conflict with Ms K. and Ms Pt. had arisen because his four-year-old son had been mistreated by the staff of the nursery school. He denied assaulting them. The criminal proceedings against the applicant’s father were discontinued after one of the nursery school staff members stated in writing that Ms Pt. had attempted to convince her and other staff members to falsely accuse the applicant’s father of assaulting Ms K. and Ms Pt.

On 21 December 2005 the local department of education informed the applicant’s mother that the director of nursery school no. 42 had been dismissed.

By a letter of 13 March 2006 the local department of education informed the applicant’s father that an internal inquiry had established that teachers Ms K. and Ms P. had made some of the children sleep outside the sleeping quarters. That fact, although denied by Ms K. and Ms P., had been confirmed by assistant teacher Ms Ch. and by the grandmother of one of the children. Ms K. and Ms P. had been disciplined.

By a letter of 17 July 2006 the Vice-Governor of St Petersburg informed the applicant’s mother that medical nurse Ms Pt. had been disciplined.

On 21 February 2006 the applicant’s mother sued nursery school no. 42 for compensation for the damage sustained by the applicant to his health.

On 30 June 2006 the Kirovskiy District Court of St Petersburg approved a friendly settlement agreement between the applicant’s mother and nursery school no. 42. Under that agreement, the nursery school was to pay the applicant’s mother 5,000 Russian roubles (RUB) (approximately 150 euros (EUR)) in compensation for medical expenses.

On 29 September 2006 the applicant’s mother complained to the Kirovskiy district prosecutor’s office about her son’s ill-treatment by the staff of nursery school no. 42. She described the incident of 7 November 2005, complained that during the sleeping hours her son had been occasionally locked in the toilets with the lights off, and submitted that as a result of such treatment he had developed nervous tics. She also submitted that she had not received an adequate response to her complaints to the local department of education and the local department of the Federal Authority for Consumer Protection and the Supervision of Public Well-being.

By letter of 27 October 2006 the Kirovskiy district prosecutor’s office informed the applicant’s mother that an inquiry had been opened into her allegations of ill-treatment. It also noted that the local department of education had failed in its obligation under section 9 of the Minors Act to inform the district prosecutor’s office of the applicant’s ill-treatment (see paragraph 134 below).

On 2 November 2006 the investigator questioned several of the parents of the children who had attended nursery school no. 42 with the applicant. Some of them stated that their children had never complained about being mistreated by teachers Ms P. or Ms K. Others stated that their children had told them about being locked in the entrance hall or in the toilets, where they had on occasion seen rats. They also confirmed that on 7 November 2005 eye drops had been given to the children without the parents’ consent.

Assistant teacher Ms Ch. stated to the investigator that on 7 November 2005 two children had shown symptoms of eye infection. Teacher Ms K. had consulted medical nurse Ms Pt., who had decided to give eye drops to all children in order to prevent the spread of the infection. The parents’ consent had not been obtained. The drops had been given by the teacher herself rather than by the medical nurse. Ms K. had used physical force against those children who had resisted. Many of them had been frightened and had cried. Immediately after that the applicant’s eyes had started twitching. Ms Ch. also stated that both Ms K. and Ms P. had many times made certain children, including the applicant, sleep on folding beds in the toilets or in the entrance hall. Ms K. and Ms P. had often shouted at the children and had punished them by sending them to the toilets. She had once seen a child tied with string to his chair.

The investigator also questioned Ms K., who denied mistreating the applicant or other children. She stated that on 7 November 2005 the children had been given eye drops by the medical nurse. The children had submitted to the treatment without any resistance or stress. No physical force had been used against the applicant or other children. The applicant had already had nervous tics before 7 November 2005.

On an unspecified date at the beginning of November 2006 the applicant was questioned by the investigator. The applicant’s mother and a psychologist were present during the questioning. The applicant described the incident of 7 November 2005. He also stated that he and some other children had often been made to sleep on a folding bed in the entrance hall or in the toilets with the lights turned off or left standing in the entrance hall with few clothes on. They had been frightened and cold.

On 8 November 2006 the Kirovskiy district prosecutor’s office refused to open a criminal investigation against the teachers of nursery school no. 42, finding no evidence of a criminal offence. The applicant’s parents were not given a copy of that decision.

On 12 January 2007 the Kirovskiy district prosecutor’s office cancelled its decision of 8 November 2006 and resumed the preinvestigation inquiry.

The investigator then questioned Ms P. and medical nurse Ms Pt., who gave the same testimony as Ms K.

During the following year the Kirovskiy district prosecutor’s office issued two more decisions (on 22 January and 6 July 2007 respectively) refusing to open a criminal investigation against the teachers of nursery school no. 42 on the ground that there was no evidence of a criminal offence having been committed.

The applicant’s mother challenged those decisions before the Kirovskiy District Court. However, before the District Court could examine her complaints against the decisions, the Kirovskiy district prosecutor’s office annulled them (on 20 June and 24 December 2007 respectively) and resumed the pre-investigation inquiry. No investigative measures were performed during this one-year period.

On 27 September 2007 the applicant’s medical documents were examined by a child psychiatrist at the request of the applicant’s mother. The psychiatrist found that before November 2005 the applicant had not suffered from any neurological or psychiatric disorders. He had, however, on occasions suffered allergic reactions. The psychiatrist further noted that in 2005 the applicant had been subjected to a prolonged, psychologically traumatic experience at the nursery school. Against the background of that prolonged, traumatic experience, the incident of 7 November 2005 involving the use of violence had served as a trigger for his present neurological disorder. An allergic reaction to the eye drops could have also contributed to the development of the disorder. The psychiatrist concluded that there had been a causal link between the traumatic experience suffered by the applicant in the nursery school from September 2005 to November 2005 and his persistent neurological disorder.

On 24 December 2007 the Kirovskiy district prosecutor’s office noted that the pre-investigation inquiry was incomplete and that it was necessary to question the children who had attended the nursery school with the applicant and their parents, to obtain an expert opinion on the contraindications and side-effects of the eye drops given to the children, and to question other teachers at the nursery school.

On 17 January 2008 the case was transferred to the Kirovskiy district police department for further pre-investigation inquiry.

In February 2008 the investigator questioned the parents of some of the children who had attended the nursery school with the applicant. They stated that they did not have any complaints against teachers Ms P. and Ms K. None of them gave the investigator permission to question their children.

The investigator also questioned one of the teachers at nursery school no. 42. The teacher stated that she could not give any useful information.

On 29 February 2008 the Kirovskiy district police department refused to open a criminal investigation against Ms P. and Ms K., having found no evidence of a criminal offence. The applicant’s parents were informed about that decision on 4 May 2008 and received a copy of it on an unspecified later date.

On 23 May 2008, after being criticised by the St Petersburg prosecutor’s office for delays in the conduct of the pre-investigation inquiry and for its ineffectiveness, the Kirovskiy district police department cancelled the decision of 29 February 2008 and resumed the preinvestigation inquiry.

On 11 June 2008, in reply to a complaint by the applicant’s mother, the St Petersburg prosecutor’s office again criticised the Kirovskiy district prosecutor’s office for delays in the conduct of the pre-investigation inquiry and for its ineffectiveness.

On 26 June 2008 the Kirovskiy district police department informed the staff of nursery school no. 42 that criminal proceedings into the applicant’s allegations of ill-treatment would not be opened because the prosecution had become time-barred.

On 30 June 2008 the Kirovskiy district police department refused to open a criminal investigation into the allegations of ill-treatment, finding no evidence of a criminal offence. On 4 July 2008 the Kirovskiy district prosecutor’s office quashed that decision and ordered a further inquiry.

On 11 July 2008 the Kirovskiy district police department refused to open a criminal investigation against Ms K. It found that, although there was evidence that Ms K.’s actions amounted to cruel treatment of minors, an offence under Article 156 of the Criminal Code, the criminal proceedings had become time-barred.

On 29 July 2008 the St Petersburg prosecutor’s office quashed the decision of 11 July 2008, finding that the inquiry had been incomplete. It noted that it was necessary to question the children who had attended the nursery school with the applicant and with their parents; to establish the seriousness of the damage sustained by the applicant to his health; to obtain and analyse the documents regulating the actions of the staff of public nursery schools; and to investigate Ms P.’s actions.

On 9 August 2008 the investigator questioned the father of a child who had attended the nursery school with the applicant. He stated that his son had never complained of being ill-treated by the nursery school teachers.

On 11 August and then again on 11 September 2008 the Kirovskiy district police department refused to open a criminal investigation against Ms K. on the ground that there was no evidence of a criminal offence having been committed. Those decisions were cancelled on unspecified dates.

In reply to new complaints lodged by the applicant’s mother, on 21 November 2008 the St Petersburg prosecutor’s office again criticised the Kirovskiy district prosecutor’s office for the delays in the conduct of the pre-investigation inquiry and for its ineffectiveness.

On 1 December 2008 the investigator questioned the mother of another child who had attended the nursery school with the applicant. She stated that her daughter had never been mistreated by the staff of the nursery school.

On 19 January 2009 the Kirovskiy district police department opened a criminal investigation against Ms K. and Ms P.

On 4 March 2009 the applicant was granted the procedural status of victim. The applicant’s mother was recognised as his representative.

In the course of the criminal investigation, which lasted at least until December 2014, the police department collected the following evidence.

On 4 March 2009 the applicant was questioned by the investigator in the presence of his counsel, his mother and a teacher. The applicant stated that Ms K. and Ms P. had often punished him and some other children. In particular, on many occasions they had made him sleep in the toilets and had threatened that he would be eaten by rats. Ms K. had once taped his mouth and hands with sellotape. She had also slapped him on the face when he had refused to open his eyes to receive eye drops. On another occasion Ms K. had splashed paint over his friend’s face because she had not liked his drawings. The applicant also stated that Ms K. and Ms P. had forbidden him from telling his parents about those punishments.

On 24 March 2009 the applicant was taken by the investigator to nursery school no. 42, where he repeated his previous statements. In particular, he showed the investigator the spot in the toilets where his folding bed had been placed and the place in the entrance hall where he and other children had been forced to stand wearing only their underwear and Tshirts and keeping their arms up and apart during the entire duration of the sleeping hours. He further showed the investigator where and how he had been bound with sellotape and where and how he had been given eye drops. He also showed the investigator a closet in which he had been locked in the dark. Lastly, he told the investigator that if he did not sleep during the sleeping hours Ms K. and Ms P. would hold his head against the bed until it started to ache. The applicant’s lawyer, the applicant’s mother, a psychologist and a teacher were present during the questioning.

On 9 June 2009 the applicant was questioned again. He repeated his previous statements. He also added that Ms K. had hit him on the back.

Ms P. was questioned by the investigator on 6 February and 21 May 2009, 23 August 2011 and 13 March 2014. She initially cited her right to remain silent and refused to testify. She then denied ill-treating the applicant or other children. She stated that the applicant had had nervous tics since September 2005. During the last round of questioning she asked that the criminal proceedings be discontinued as time-barred.

Ms K. was questioned on 5 February and 22 June 2009 and 13 March 2014. She also initially refused to testify. She then denied illtreating the applicant or other children. She stated that the applicant had had nervous tics since the summer of 2005 and that assistant teacher Ms Ch. had given false testimony against her in revenge for critical remarks she had made in respect of Ms Ch.’s unsatisfactory work. During the last round of questioning she again refused to testify and asked that the criminal proceedings be discontinued as time-barred.

On 10 April 2009 medical nurse Ms Pt. was questioned. She stated that she had been the one who had administered eye drops to the children on 7 November 2005 because one of them had had an eye infection. When she had learned from the applicant’s mother that the applicant had eye tics, she had talked to Ms K. and Ms P., who had affirmed that the applicant had had nervous tics before 7 November 2005. She had never seen Ms K. and Ms P. mistreating the children. However, when questioned on 24 October 2011 and 24 July 2012 Ms Pt. stated that she had lied during the previous rounds of questioning about having given the eye drops to the children on 7 November 2005. In fact the eye drops had been given by Ms K. without her (that is to say Ms Pt.’s) permission. She had lied about that fact because she had had felt sorry for Ms K. and had not wanted her to be punished.

On 19 June 2009 and 21 October 2010 assistant teacher Ms Ch. was questioned. She stated that on 7 November 2005 Ms K. had given eye drops to the children on the advice of the medical nurse. Ms K. had used physical force against those children who had resisted. Many of them had been frightened and had cried. Immediately after that the applicant’s eyes had started twitching. Ms Ch. also stated that on many occasions she had seen Ms K. and Ms P. make the applicant and some other children sleep on folding beds in the toilets or in the entrance hall. Ms K. and Ms P. had often shouted at the children and had punished them by locking them up in the toilets. She had once seen a child tied with string to his chair. She added that she had never talked to the applicant’s parents except at the nursery school.

On 30 June 2009, 24 and 30 August 2011, and 12 and 13 March 2014 the investigator held confrontations between Ms Ch. and Ms P., between Ms Ch. and Ms K., and between Ms Pt. and Ms Ch. They all reiterated their previous statements.

In April and May 2009, October and November 2011 and July 2012 the investigator questioned six teachers from nursery school no. 42. They stated that they had never seen Ms K. or Ms P. mistreating the children. Some of them also stated that the applicant had already had nervous tics before the incident of 7 November 2005. One of them stated that assistant teacher Ms Ch. had sometimes taken the applicant home in the evenings because she lived in the same block of flats as the applicant. Ms Ch. had often shouted at the children in the nursery school and the children had been afraid of her.

On 21 September 2009 the investigator questioned the former director of nursery school no. 42. She stated that Ms K. and Ms P. had been competent and affectionate teachers who had been appreciated by the children and their parents. She had never received any complaints about them.

On 12 December 2011 and 16 July 2012 the investigator questioned the then director of nursery school no. 42, who had taken up that position in December 2005. She gave positive references for Ms P. and Ms K. She stated that she had never seen them mistreating the children or received any complaints from the parents in respect of her.

In April, May and September 2009, September and November 2011, and July 2012 the investigator questioned the parents of several children who had attended the nursery school with the applicant. Most of them stated that their children had never complained of having been mistreated by Ms K. or Ms P. One of them stated that her son had on occasions been punished by the teachers; in particular he had been made to sleep outside the sleeping quarters, in the changing room. Her son had also told her that he had seen a rat in the toilets. She had, moreover, seen some children carrying heavy folding beds from one place to another upon the instruction of the teachers. Lastly, she stated that her son had told her on 7 November 2005 that Ms K. had used force against the applicant (who had resisted and cried) when administering eye drops to him. Another parent stated that Ms K. had locked her son up in the toilets on two occasions and had once made him sleep outside the sleeping quarters, near the toilets. Another parent stated that her daughter had told her about the applicant and another boy being made to sleep separately from the others. She however did not know the details.

Between 16 November and 2 December 2011 the investigator questioned four of the children who had attended the nursery school with the applicant. They all stated that Ms K. and Ms P. had been kind to them and had never mistreated them or other children.

The applicant’s mother was questioned on 10 March and 9 April 2009 and on 14 October 2010. She described the applicant’s change in behaviour and mood after he had started to attend nursery school. She described the incident of 7 November 2005 and her son’s subsequent development of nervous tics. She also related a conversation she had had with her son during which he had for the first time told her about being mistreated by Ms K. and Ms P. She also stated that her son continued to suffer from nervous tics and to undergo treatment for them. Lastly, she told the investigator that although Ms Ch.’s sister was her neighbour she did not have any friendly relationship with her.

On 24 November 2011 and 28 February 2014 the applicant’s father was questioned. He made similar submissions as the applicant’s mother.

On 7 December 2011 and 28 February 2014 the investigator held confrontations between the applicant’s mother and one of those teachers at the nursery school who had already been questioned in November 2011. They both reiterated their previous submissions.

On 13 December 2011 and 12 March 2014 the investigator held confrontations between Ms Ch. and one of the teachers of the nursery school. Ms Ch. confirmed her previous submissions, while the teacher stated that Ms P. and Ms K. had never mistreated the children, that Ms Ch. had shouted at the children, that Ms. Ch. had sometimes babysat the applicant and that the applicant had had nervous tics before November 2005.

On 17 March 2014 the investigator questioned the applicant’s neighbour who lived on the same landing, who stated that the applicant’s tics had started in November 2005. She also stated that the applicant’s parents were on good terms with Ms Ch.’s sister but that she had not noticed any kind of relationship between the applicant’s parents and Ms Ch. herself.

On 12 March 2014 the applicant’s mother produced material from the civil case file and asked that it be included in the criminal case file. In particular, she asked for the inclusion of the written statement by one of the staff members of nursery school no. 42 (see paragraph 18 above) that medical nurse Ms Pt. had attempted to convince her and other staff members to give false testimony against the applicant’s family. On 17 March 2014 the investigator refused the requests, finding that the documents from the civil case file were irrelevant to the criminal case.

On 10 April 2009 a panel of psychiatrists and psychologists examined the applicant and issued an expert opinion. They found that the applicant continued to suffer from nervous tics. Given that such tics could have had both organic and neurological causes, it was impossible to establish a causal link between the events of November 2005 and the applicant’s current neurological disorder. Given the applicant’s age at the material time and the time that had passed since the events in question, the applicant could not accurately recall those events. He was therefore psychologically incapable of testifying within the framework of the criminal proceedings.

On 9 October 2009 a panel of medical experts examined the applicant’s medical records and issued an expert opinion. They noted that his nervous tics could have had both organic and neurological causes. It was therefore impossible to establish a causal link between the events of September-November 2005 and the applicant’s current neurologic disorder.

On 14 January 2011 a panel of experts in psychiatry and psychology examined the applicant and analysed his medical records. When interviewed by the experts, the applicant stated that he wanted to forget about what had happened to him in the nursery school but he was constantly being reminded of those events because of the investigation. He affirmed that his tics were aggravated each time that he remembered, or had to discuss, the treatment to which he had been subjected in the nursery school. The experts confirmed that the aggravation of the tics was indeed related to the applicant’s memories of the nursery school. The experts found that before November 2005 the applicant had not suffered from any psychiatric disorder. There had been a causal link between his nervous disorder and the prolonged, psychologically traumatic experience to which he had been subjected in the nursery school from September to November 2005. Many years later he still continued to suffer from nervous tics. He had therefore suffered damage of medium severity to his health. The experts further noted that the applicant did not suffer from any memory or intellectual disorder and that his intellectual development corresponded to his age; he was therefore capable of understanding and relating the relevant events accurately. However, his ability to remember the events had decreased with time. If in 2006 he had been still capable of remembering the events in question accurately, with the passage of time his memory of the events had become unrealistic and distorted. His statements – both in 2009 and at that current moment – could not therefore be relied upon in the criminal proceedings. Moreover, given that each discussion of the relevant events revived his memories of the traumatic experience and prevented him from moving on, his further participation in investigative measures was inadvisable.

On 6 April and 2 November 2011 the investigator questioned a psychiatric expert chosen by the applicant’s mother. The expert stated that she disagreed in part with the expert opinion of 14 January 2011. In her opinion, the applicant had suffered severe damage (rather than damage of medium severity) to his health.

On 25 and 26 October and 23 December 2011 and 28 February 2014 the investigator questioned some of the experts who had participated in the expert examinations mentioned above. They confirmed the findings contained in the respective expert opinions.

On 11 March 2009 the psychologist treating the applicant stated to the investigator that the applicant had been suffering from a neurological disorder since November 2005. His health had improved as a result of the treatment.

On 17 July 2009 the applicant’s mother submitted to the investigator a copy of a medical certificate showing that the applicant did not have any anomalies in the brain. She argued that the certificate proved that the applicant’s neurological disorder was psychological rather than organic in nature.

On 11 November 2009 the investigator questioned a child psychiatrist who, after examining the applicant’s medical records, stated that there was a causal link between the traumatic experience suffered by the applicant in the nursery school from September until November 2005 and his persistent neurological disorder.

On 22 April 2010 a psychiatrist and a psychologist analysed the applicant’s medical records at the applicant’s mother’s request. They found that in the absence of any anomalies in the applicant’s brain, his neurological disorder could not be organic in nature. It was highly probable that they had been caused by psychological trauma. Given that the nervous tics had appeared for the first time in November 2005, there was a causal link between the ill-treatment in the nursery school to which the applicant had been subjected from September until November 2005 and his nervous tics. Finally, the experts noted that the applicant was of normal intellectual development and did not suffer from any memory or intellectual disorders. His statements to the investigator had been detailed and consistent. There were therefore no reasons to consider that the applicant could not remember the relevant events accurately and was psychologically incapable of testifying within the framework of the criminal proceedings.

The investigation was suspended from 2 until 16 September, from 23 until 30 September, from 9 until 12 October, from 15 October until 5 November and from 6 until 11 November 2009; from 15 September until 11 October, and from 22 October until 28 November 2010; from 15 December 2010 until 11 January 2011, from 15 January until 28 March, from 28 until 29 July, from 16 June until 4 August, and from 5 until 6 September 2011; and from 30 December 2011 until 9 July 2012. The decisions to suspend the investigation were taken by the investigator on the basis of medical certificates showing that Ms K. was on maternity leave and could not therefore participate in investigative measures. All those decisions were annulled by the investigators’ superior as unlawful.

On 17 July 2009 the Kirovskiy district police department discontinued the criminal proceedings against Ms K. and Ms. P., finding that their actions in the period from September to November 2005 amounted to battery or other violent acts causing physical pain and cruel treatment of minors, offences under Article 116 § 1 and 156 § 1 of the Criminal Code. The prosecution of those offences was time-barred. There was insufficient evidence of premeditated infliction of damage of medium severity to health, an offence under Article 112 of the Criminal Code. Moreover, according to the experts, the applicant could not remember the relevant events accurately and was psychologically incapable of testifying within the framework of the criminal proceedings.

On 27 July 2009 the Kirovskiy district prosecutor’s office quashed the decision of 17 July 2009, finding that the investigation was incomplete, and ordered further investigative measures.

On 29 August 2009 the applicant’s mother complained to the Kirovskiy district prosecutor’s office that, despite her having lodged numerous requests, she had still not been given copies of the decisions of 17 and 27 July 2009.

On 11 November 2009 the Kirovskiy district police department discontinued the criminal proceedings against Ms K. and Ms. P. for the same reasons as those set out in the decision of 17 July 2009.

On 25 June 2010 the Kirovskiy District Court found that the decision of 11 November 2009 had been unlawful because the findings contained in that decision had been contradictory. It held, in particular, that in order to resolve those contradictions it was necessary to perform a new psychiatric examination of the applicant.

On 19 July 2010 the Kirovskiy district prosecutor’s office quashed the decision of 11 November 2009 and ordered further investigative measures.

By a letter of 26 August 2010 the St Petersburg prosecutor’s office criticised the Kirovskiy district prosecutor’s office for the delays and the ineffectiveness of the investigation. On the same day the Kirovskiy district prosecutor’s office gave instructions to the Kirovskiy district police department as regards further investigative measures to be performed.

On 5 December 2011 Ms K. asked the investigator to discontinue the proceedings. She was suspected of inflicting damage to health of medium severity, an offence under Article 112 of the Criminal Code. The statutory limitation period for that offence was six years. The proceedings had therefore become time-barred. On the same day the prosecutor refused Ms K.’s request, finding that the previous expert examinations had yielded contradictory results. It was therefore necessary for a new expert examination to be performed in order to establish the severity of the damage sustained to the health of the applicant. The investigation could not therefore be discontinued.

On 15 December 2011 Ms P. also asked the investigator to discontinue investigations as time-barred. On the same day the prosecutor refused the request for the same reasons as those for which Ms K.’s similar request had been refused.

On 8 February 2012 the Kirovskiy District Court examined Ms K.’s complaint against the decision of 5 December 2011 and dismissed it. It found that it was necessary for an additional expert examination to be performed in order to establish the severity of the damage sustained by the applicant to his health. If experts were to find that the applicant had sustained severe damage to his health, the limitation period would be ten years and the proceedings would not have become time-barred.

On 13 July 2012 Ms K. again asked the investigator to discontinue the investigation because the proceedings had become time-barred. On the same day the investigator refused the request for the same reasons as those above.

On 7 August 2012 the investigator found that after 16 June 2011 the investigation had been extended in breach of the procedure and time-limits provided by law. The investigative measures carried out between 16 June 2011 and 9 July 2012 had therefore been unlawful and all evidence collected during that period was inadmissible.

On 10 August 2012 the Kirovskiy district police department discontinued the criminal proceedings against Ms K. and Ms P., finding that there was insufficient evidence of a criminal offence under Article 112 of the Criminal Code. It noted that only four witnesses had confirmed that illtreatment had occurred: the applicant, the applicant’s mother, Ms Ch. and Ms Pt. (in her statements of 24 July 2012). The experts had found that, because of his young age at the material time, the applicant’s description of the events was unreliable and his further participation in investigative measures was inadvisable. There were therefore doubts about the credibility of his statements. The applicant’s mother’s statements were equally unreliable because she had learned about the events from the applicant. Ms Pt.’s statements of 24 July 2012 contradicted her previous statements and statements by other witnesses. They could not therefore be considered reliable either. The expert opinions establishing a causal link between the alleged ill-treatment and the applicant’s neurological disorder could not serve as evidence of ill-treatment because it was not within the experts’ remit to establish whether or not ill-treatment had occurred. The expert opinions had been made on the assumption that such ill-treatment had indeed taken place. Ms Ch.’s statements therefore constituted the only evidence of such ill-treatment. The investigator considered that those statements were insufficient to prove that ill-treatment had indeed taken place. The investigator further noted that all evidence collected between 16 June 2011 and 9 July 2012 had been declared inadmissible. Given that that evidence did not contain any proof of ill-treatment, it was not necessary to collect it again.

The applicant’s parents learned about that decision on 24 August 2012 and received a copy of it on 27 August 2012.

On 9 October 2012 the applicant’s mother challenged the Kirovskiy district police department’s decision of 10 August 2012 to discontinue the criminal proceedings before the Kirovskiy District Court against Ms K. and Ms P. On 23 October 2012 the applicant’s mother also challenged that decision before the St Petersburg prosecutor’s office.

On 23 November 2012 the St Petersburg prosecutor’s office found that the decision of 10 August 2012 had been lawful.

On 2 August 2013 the Kirovskiy District Court rejected the complaint lodged by the applicant’s mother on 9 October 2012. It found that the investigation had been thorough and effective. The breaches of procedure committed during the investigation – such as the failure to promptly notify the applicant’s mother about certain procedural decisions taken by the investigator or the investigator’s failure to comply with the prosecutor’s instructions – were insufficiently serious as to warrant the quashing of the decision of 10 August 2012.

On 24 December 2013 the St Petersburg City Court quashed the decision of 2 August 2013 on appeal and found that the decision of 10 August 2012 to discontinue the investigation had been unlawful. It found that the investigation had been ineffective. In particular, given that all evidence collected between 16 June 2011 and 9 July 2012 had been declared inadmissible, it was necessary to undertake anew the investigative measures carried out during that period and to carry out further investigative measures. The court also noted that although, according to the experts, the statements that the applicant had given after 2006 were unreliable, the statements that he had given before then could be taken into account in the assessment of evidence. The City Court also criticised the District Court for the delays in the examination of the complaint lodged by the applicant’s mother on 9 October 2012 and the resulting excessive length of the judicial proceedings.

On 5 March 2014 the applicant’s mother applied to the investigator, asking that Ms P. and Ms K. be charged with the premeditated infliction of severe damage to health. The investigator refused her request, finding that there was no evidence of the premeditated infliction of severe damage to health.

On 18 March 2014 the Kirovskiy district police department discontinued the criminal proceedings against Ms P. and Ms K., finding that their actions did not amount to a criminal offence under Article 112 of the Criminal Code.

On 20 March 2014 the applicant’s mother challenged that decision before the St Petersburg prosecutor’s office, submitting that the investigation had been incomplete. On 18 April 2014 the St Petersburg prosecutor’s office found that the decision of 18 March 2014 to discontinue the criminal proceedings had been lawful.

On 23 May 2014 the Kirovskiy District Court held that the decision of 18 March 2014 had been unlawful, finding that the investigator’s assessment of evidence had been selective and that he had disregarded some facts and evidence (such as a bruise on the applicant’s face), some witness statements, and expert opinions. It also found that the investigation had been excessively long.

On 9 June 2014 the Kirovskiy district police department annulled the decision of 18 March 2014 and resumed the investigation. After two written requests for a copy of that decision, the applicant eventually received it on 30 June 2014.

On 19 July 2014 the Kirovskiy district police department discontinued the criminal proceedings against Ms P. and Ms K. The investigator found that although they had indeed given eye drops to the applicant, thereby causing damage of medium severity to his health, there was no evidence of intent to cause such damage. The infliction of damage to health had not therefore been intentional or premeditated. The police department further added that although the applicant had indeed had a bruise on his face, it was not possible to establish how he had received that bruise. The applicant’s testimony was unreliable due to his young age and mental development at the time of his giving it, while the allegations of illtreatment made by the applicant’s mother and by Ms Ch. had been countered by the statements of all other witnesses – namely the staff of the nursery school and the parents of other children – that Ms P. and Ms K. had never mistreated the applicant or other children. The investigator concluded that the evidence collected was contradictory and that it was not possible to resolve that contradiction. Any further investigative measures would be useless. Given that suspects should benefit from any doubt, it could not be found that Ms P.’s and Ms K.’s actions amounted to a criminal offence under Article 112 of the Criminal Code.

On 29 August 2014 the St Petersburg prosecutor’s office annulled the decision of 19 July 2014, finding that the investigation had been ineffective and incomplete. In particular, the criminal proceedings had been unlawfully discontinued even though it had been established that Ms P. and Ms K. had mistreated the applicant and had caused damage to his health.

On 12 September 2014 the Kirovskiy district police department discontinued the criminal proceedings against Ms P. and Ms K. for the same reasons as those given in the decision of 19 July 2014.

On 15 October 2014 the St Petersburg prosecutor’s office annulled the decision of 12 September 2014, finding that the investigator had not complied with the prosecutor’s decision of 29 August 2014.

On 10 November 2014 the Kirovskiy district police department discontinued the criminal proceedings against Ms P. and Ms K., repeating verbatim the decision of 12 September 2014.

On 4 December 2014 the Kirovskiy district police department again refused to open criminal proceedings against Ms P. and Ms K. under Article 156 of the Criminal Code (cruel treatment of minors), finding that the prosecution had become time-barred.

The applicant’s mother several times asked the investigator to declare the expert opinions of 10 April 2009 and 9 October 2009 inadmissible as evidence. She argued in particular that the panel of experts of 10 April 2009 had not included an expert in child psychiatry. The investigator refused the requests made by the applicant’s mother, finding that the expert opinions of 10 April 2009 and 9 October 2009 had been obtained in accordance with the procedure prescribed by law and had contained clear findings.

The applicant’s mother lodged numerous complaints about the alleged ineffectiveness of the investigation with the Kirovskiy district police department, the Kirovskiy district prosecutor’s office, the St Petersburg prosecutor’s office, the Prosecutor General and the Kirovskiy and Krasnogvardeyskiy District Courts of St Petersburg. She complained that the investigation had been flawed by delays, in particular on account of the numerous unlawful suspensions of the investigation, and that she had often been denied access to the case file. She also complained that, although sufficient evidence of ill-treatment had been gathered, Ms P. and Ms K. had still not been charged with a criminal offence. She further argued that the applicant had sustained severe damage to his health (rather than damage of medium severity) as a result of the ill-treatment he had suffered. She also challenged the investigator’s refusals to declare the expert opinions of 10 April 2009 and 9 October 2009 inadmissible as evidence.

By letters of 16 and 18 November 2011 the St Petersburg prosecutor’s office informed the applicant’s mother that the investigator and the officials of the Kirovskiy district prosecutor’s office responsible for supervising the case had been disciplined for the delays during the investigation and its ineffectiveness.

On 2 December 2011 the Kirovskiy district prosecutor’s office noted that the investigation had been conducted with serious delays and shortcomings. In particular, the investigator had not performed all requisite investigative measures, such as an additional medical examination of the applicant.

On 12 January 2012 the Kirovskiy District Court found that it had no authority to assess whether the evidence was sufficient for charges to be brought. It was for the investigator to assess the collected evidence and to decide whether charges were to be brought.

On 3 February 2012 the Kirovskiy district prosecutor’s office found that the investigator’s refusals (see paragraph 112 above) to declare the expert opinions of 10 April and 9 October 2009 inadmissible as evidence had been lawful.

On 7 February 2012 the Kirovskiy District Court found that the rights of the applicant’s mother had indeed been breached by the failure to provide her with copies of the numerous decisions to suspend the investigation. However, given that all of those decisions had been annulled, it was not necessary to examine the applicant’s complaint relating to those decisions. Moreover, given that the decisions had been annulled by the investigator’s superiors, the court concluded that those superiors had exercised effective supervision over the course of the investigation. On 18 April 2012 the St Petersburg City Court quashed that decision on appeal for procedural defects.

On 13 August 2012 the Kirovskiy District Court found that the investigator had still not organised an additional expert examination of the applicant, even though he had been instructed to do so in August 2010 and again in August 2011. It also found that the applicant’s mother had been unlawfully denied access to some documents in the case file. On 16 October 2012 the St Petersburg City Court quashed that decision on appeal for procedural defects.

On 24 August 2012 the Krasnogvardeyskiy District Court of St Petersburg found that the complaints lodged by the applicant’s mother about the delays and the ineffectiveness of the investigation were wellfounded. However, given that on 10 August 2012 the investigation had been discontinued for lack of evidence of a criminal offence, they had to be dismissed. On 15 November 2012 the St Petersburg City Court quashed that decision on appeal. It found that some of the complaints lodged by the applicant’s mother had not been examined, that the decision had been based on certain documents that had not been examined during the hearing and that the court, even though it had found some of the complaints to be wellfounded, had nevertheless dismissed them.

On 14 February 2013 the Kirovskiy District Court found that the investigator’s decisions issued between 15 September 2010 and 6 October 2011 to suspend the investigation had been unlawful. The rights of the applicant’s mother had, moreover, been breached by the investigator’s failure to inform her about the suspensions of the investigation. Her complaint that the investigator had intentionally delayed the investigation with the aim of rendering the proceedings time-barred was, however, unsubstantiated. The investigation had been discontinued for lack of evidence of a criminal offence rather than on the ground that the proceedings had become time-barred.

On 24 April 2013 the Kirovskiy District Court found that the applicant’s mother had been unlawfully denied access to certain documents in the case file. It however rejected the remainder of her complaints relating to the alleged ineffectiveness of the investigation. In particular, the court established that the investigator had not complied with the prosecutor’s instructions as to additional investigative measures to be performed. However, the prosecutor had later confirmed the investigator’s decision to discontinue the investigation, thereby agreeing that it was no longer necessary to comply with his previous instructions and to undertake the investigative measures in question. The investigator’s actions had therefore been lawful. On 6 August 2013 the St Petersburg City Court upheld that decision on appeal, finding it lawful, well-reasoned and justified.

On 17 March 2014 the Kirovskiy district police department replied to the applicant’s mother that all necessary investigative measures had been performed and that all relevant facts had been established. It was therefore not necessary to carry out any further investigative measures. On the same day the Kirovskiy district prosecutor’s office also replied to the applicant’s mother that the investigation had been thorough and complete and that there was no need for any further investigative measures.

The applicant is regularly examined by a neurologist. After the initial diagnosis of hyperkinesia on 15 November 2005 (see paragraph 12 above), he was examined by a neurologist on 2 February, 24 April and 10 October 2006 and 26 January, 25 April, and 18 and 22 May 2007. He complained of nervous tics, sleeping difficulties, nervousness and fears. The neurologist noted that the symptoms had been caused by a prolonged, psychologically traumatic experience at the nursery school in 2005. The applicant was prescribed treatment.

From September 2007 until June 2008 the applicant followed a course of treatment for nervous tics.

On 22 October 2008 the applicant’s medical documents were examined by a child psychiatrist, who found that the applicant continued to suffer from a neurological disorder of medium severity.

From March until June 2009 the applicant underwent a new course of treatment for nervous tics. He underwent a further course of treatment between January and April 2010.

Further medical certificates stated that in 2014 the applicant was still suffering from a neurological disorder and was following treatment for it.


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

The applicants, Ms Maria Tzilivaki, Mr Georgios Yianakakis and Mr Loucas Yianakakis, are Greek nationals who were born in 1969, 1939 and 1970 respectively and live in Chania, in Greece. They are represented before the Court by Mr E. Levantis, a lawyer practising in Athens.

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

On 22 July 1974, during the Turkish invasion, a military aircraft carrying the 1st commando battalion of Chania, sent as reinforcements from Greece, was shot down by friendly fire in the area of Tymvos, in Makedonitissa. Out of the 32 commandos and crew only one survived. The victims included the first applicant’s brother, Stefanos Tzilivakis, and the son and brother of the second and third applicants respectively, Kosmas Gianakakis.

According to army records, Stefanos Tzilivakis and Kosmas Gianakakis were buried in individual and marked plots in Lakatamia Cemetery on 22 July 1974. Not all the bodies of the victims of the crash had been recovered and buried separately. The crash site had been covered over and converted into a Memorial for all Greek soldiers killed in the conflict; some unidentified remains from the crash had been buried in an unnamed mass grave, due to the small size of the bones, at the Memorial itself. At the site, there was built a memorial as well as a military cemetery with a church. The site was regarded altogether as a monument for honouring and commemorating those who fell.

In 1979, the army authorities exhumed and returned the bodies of 44 Greek soldiers killed in 1974 and buried in graves at Lakatamia Cemetery, including 16 victims of the crash. The remains from the grave bearing the name of Stefanos Tzilivakis were exhumed in the presence of his father and returned to the family in Greece on 3 September 1979. The grave bearing the name of Kosmas Gianakkis was exhumed in the presence of two of his brothers and returned to his relatives in Greece on 10 November 1979.

Sometime later a doubt arose as to the correct identification of remains. Beginning in 1999, an organization PHR (“Physicians for Human Rights”) in agreement with the authorities conducted exhumations at Lakatamia and other cemeteries, in particular of unidentified remains. In a 2000 report, PHR stated that burials in 1974 had taken place “under confusing circumstances” and that it appeared that the identifications had not been objectively verified, resulting in many mistaken attributions of identity and that due to lack of expertise, incomplete skeletons had been removed and parts of several individuals had been mixed together.

In 2001 the families of the victims, including the applicants’ families, were visited by experts involved in the exhumation of the remains of the victims and were asked to give blood with a view to proceeding to proper identifications.

In June 2003 the first applicant’s family handed over to the Cypriot authorities for DNA tests the remains which they had been given in 1979. Following such tests, the first applicant and her family were informed that these remains received in 1979 had not been those of Stefanos Tzilivakis.

In 2005, following testing of the remains given to the family of the second and third applicants and sent back to Cyprus, the family were informed that the remains contained parts of several other individuals.

In February 2005, DNA tests disclosed that the remains buried under the name of S.Y. had included part of the remains of Stefanos Tzilivakis. The family was so informed. The applicant was informed in 2006 that further remnants of Stefanos Tzilivakis had been discovered.

In 2006, it became apparent that the 22 remains returned to families represented at least 42 different individuals.

The first applicant applied to the authorities in 2003 and 2004, urging that the crash site be excavated in order to find the remains of her brother that she thought must still be at that location. It is not apparent that the second or third applicants approached the authorities on this matter.

By a letter dated 18 February 2004, the Director of the Diplomatic Office of the President informed the first applicant that instructions had already been given for the planning of the excavations. The letter stated as follows, in so far as relevant:

Before receiving your letter instructions had been given to start the planning for the excavation in Tymvos.

We had discussed the matter with the Greek Ambassador and following the instructions of the President of the Republic we are taking the necessary measures to excavate the site where the remains of the aircraft are and to exhume the remains which may have possibly been buried with them.

As I had told you orally we acknowledge the obligation to fully investigate the possibility that human remains have been buried with the aircraft remains; upon a possible finding of such remains and their forensic identification, we will give a reply to the family/families concerning the fate of their loved ones who fell while carrying out their duties for their country.

We also have an obligation in such a case to deliver the remains to the families so they can be buried with the befitting honour and in accordance with the religious rites and customs.

You appreciate that this task will take time and we therefore ask you to be patient.”

By a letter dated 25 February 2004 the Director General of the Ministry of Foreign Affairs informed the first applicant that the authorities were doing everything possible to locate the remains of her deceased brother in order to end the agony and uncertainty of her family and of the families of the remaining victims.

On 16 September 2003 the first applicant filed a complaint with the Commissioner of Administration (“Ombudsman”) against the Ministry of Foreign Affairs (complaint 1205/2003).

In a letter dated 2 March 2004 the Ombudsman informed the first applicant that the Director General of the Ministry of Foreign Affairs had informed her that they were taking the necessary measures towards excavating the remains of the aircraft and to exhume the bodies that may have been buried there. In view of this the Ombudsman considered that there were no grounds for her continued intervention.

The Government submitted that work was undertaken to identify all the available remains in order to clarify the situation before proceeding to any large-scale excavations at the Memorial site. They also stated that they were hampered in identifications by the decisions of some families not to participate in the return of remains for identification; it also appears that one family had destroyed the remains. They stated that a large part of the remains of Stefanos Tsilivakis were recuperated; as his commando badge and ID tags had been found at Lakatamia Cemetery, there were no strong grounds for assessing that his body had been left at the site and that it was more likely that his remains were with all those transferred to Lakatamia.

Meanwhile several surveys and exploratory excavations were carried out at the Memorial site. This culminated in a PHR report of 22 July 2008 which stated that the unnamed remains stored at the Memorial site had been removed but their state was such that current DNA analysis methods had not been able to yield reliable results. It appears that there was a decision by the authorities not to proceed to excavate the site at this time due to

Unreliable evidence as to whether there were any bodies or remains buried under the Memorial site without being marked;

No indication from surveys and excavations that any remains were present at the site;

The incomplete DNA samples from families and return of remains which meant that there was no comprehensive identification of those who had been buried at Lakatamia Cemetery;

Concerns that the excavation would require the dismantling of the memorial erected on the site as well as disturbing existing graves at the cemetery on the site;

Lack of certainty as to where on the site the aircraft was located.

On 2 April 2009, the PHR issued a report, stating inter alia, that some victims of the crash remained unaccounted for and that there was a possibility that remains had been buried along with the aircraft on the site and urged that an investigation be launched to put an end to the uncertainty of the relatives.

On 26 February 2014 the Council of Ministers approved the Ministry of Foreign Affairs proposal no. E268/2014 for the excavation of the air crash site. The excavation was to take place under the supervision of the Ministry of Foreign Affairs and will be conducted by the scientific staff of PHR in co-operation with the Cypriot archeologists, the Ministry of Defence and the National Guard. The proposal included an analysis of the costs to be incurred in the total amount of 90,000 euros.


CASE OF SPIRIDONOVSKA AND POPOVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property)

The applicants were born in 1954 and 1951 respectively and live in Kumanovo.

On 23 August 1948 a plot of agricultural land (“the land”) was confiscated from V.R., the applicants’ late grandmother, on the basis of the Expropriation Act (акт за експропријација – “the first confiscation order”), issued by the Kumanovo Peoples’ City Council (Градски Народен Одбор во гр. Куманово). According to the first confiscation order, the total surface area of the land was six shinik (шиник – an old unit of land area (see paragraph 25 below)).

On 20 October 1948 a second confiscation order was issued concerning a plot of land owned by V.R. The second confiscation order did not specify the surface of the land which was to be confiscated.

On 17 December 1948 the Kumanovo Confiscation Commission adopted a confiscation decision (решение за експропријација), which confirmed the above confiscations of V.R.’s real property. According to the decision, the total area of the confiscated land was 3,349 square metres (sq. m).

In a final court decision in inheritance proceedings of 19 January 2001, each applicant was declared heir of one half of the land confiscated from their late grandmother. According to this decision, the surface area of the land in question was six shinik.

On 15 February 2001 the applicants instituted restitution proceedings under the Restitution Act seeking restoration of the land confiscated from their grandmother. In support of their claim they submitted the first confiscation order (see paragraph 6 above). Copies of the restitution claim and the accompanying documents were communicated to the Solicitor General (Јавен Правобранител). It appears that the Solicitor General did not submit any observations in reply.

On 25 June 2001 the Kumanovo Restitution Commission (part of the Ministry of Finance) (“the Restitution Commission”) made an on-site inspection and found that the land in question had been free of any buildings.

On 14 January 2002 the Restitution Commission accepted the applicants’ restitution claim and decided to restore to their possession the plot of land, the total surface area of which was 8,309 sq. m, which, as stated in the order, corresponded to six shinik (“the restitution order”). The order stated that the plot had been confiscated on the basis of the first confiscation order (see paragraph 6 above). Through a proprio motu investigation it also established that the land in question had been part of a larger undeveloped, State-owned plot.

It appears that the Solicitor General was served with a copy of the order but did not lodge an appeal against it. As a consequence, it became final on 18 June 2002.

On 27 June 2002 the total area of the land was transferred in the second applicant’s possession (воведување во владение). The applicants then had their property rights registered in the relevant Land Registry.

In a decision of 15 April 2003, which became final on 16 May 2003, the Kumanovo Court of First Instance, in non-contentious proceedings, accepted the applicants’ application to have the State, represented by the Solicitor General, delineate the area belonging to them (8,309 sq. m) from a larger plot of land belonging to the State. By this decision the applicants became the owners of a separate plot of land with the total area of 8,309 sq. m.

In October 2003 the Solicitor General applied to have the applicants prohibited from further disposing of the land since the land restored to their possession had not corresponded to the land confiscated from their late predecessor in terms of its surface area.

On 28 October 2003 the Kumanovo Court of First Instance dismissed that application finding that the land had been restored to the applicants’ possession on the basis of the restitution order. Furthermore, no proceedings had been instituted under section 63 of the Restitution Act (see paragraph 37 below) by a third party.

On 1 July 2004 the Skopje Court of Appeal upheld this decision noting that the Solicitor General had furthermore participated in the proceedings concerning the delineation of the land (see paragraph 15 above).

On 7 October 2003 the Solicitor General sought, in administrative proceedings, that the restitution order be declared, under section 267(1)(5) of the Administrative Procedure Act (see paragraph 37 below), partially null and void in respect of the part of the land which had been returned to the applicants but allegedly had not been confiscated from their predecessor. The Solicitor General argued that the restitution order had been based on the first confiscation order, which had been invalid since it had neither been signed nor stamped and it had specified the surface of the confiscated land in shinik. He had submitted the second confiscation order, which had specified that the surface area of the confiscated land had been 3,340m2. The Solicitor General therefore lodged an application to have the restitution order declared partially null and void regarding the difference in surface area of the land specified in the first confiscation order of 23 August 1948 and the confiscation decision of 17 December 1948.

On 23 May 2005 the Second-Instance Administrative-Procedure Commission in the Area of Denationalisation (Комисија за решавање во управна постапка во втор степен од областа на денационализацијата – “the second-instance commission”) dismissed that application finding that the final restitution order, which had meanwhile been enforced, could not be declared null and void on the basis of section 267(1)(5) of the Administrative Procedure Act because the sections of the Restitution Act on the basis of which the restitution order had been made had not contained any explicit provisions allowing for its nullification, as required under that subparagraph. As for the argument that the confiscation order had been neither signed nor stamped, is was stated that this could have been put forward before the finality of the restitution order, and could not have led to declaring the order null and void on the basis of section 267(1)(5).

The Solicitor General challenged the latter decision by lodging an administrative action (тужба за управен спор) with the Administrative Court in which he complained that the restitution order of 14 January 2002 had been based on a confiscation order which had not been signed and stamped and on erroneous facts regarding the surface area of the land. In this connection the Solicitor General referred to an extract from the State Archives dated 16 August 2005 which indicated that the land had been expropriated on the basis of a confiscation order of 20 October 1948. In this submission the Solicitor General noted that his claims regarding the differences in the surface areas had been substantiated by documents supplied to him by “interested parties” according to which the accurate area of the land could be established.

On 14 March 2008 the Administrative Court upheld the decision of the second-instance commission, finding that the remedy under section 267(1)(5) relied on by the Solicitor General had been inapplicable to the facts of the case. It further stated that the missing stamp and signature were not sufficient reasons to declare the restitution order null and void. Under the terms of the relevant domestic law applicable at the time, this was the final decision. With regard to the differences in surface areas the judgment stated:

“The court, in deciding, assessed the arguments of the [Solicitor General] put forward in the claim, but it did not accept them as bases to decide differently, because none of the conditions under [section] 267 of the Administrative Procedure Act for declaring the order null and void had been fulfilled.”

On 14 January 2009 the Restitution Commission, acting on its own motion (по службена должност) and relying on section 267(1)(3) of the Administrative Procedure Act, found that the restitution order was unenforceable and declared it null and void in full (“the nullity decision”). It further held that the merits of the case would be decided in a separate decision. It also issued a provisional measure (привремен заклучок), prohibiting the applicants from selling the land until the final resolution of the case.

The Restitution Commission indicated that in the course of examining a separate restitution claim submitted by the heirs of a certain G.T, it had reviewed the documents concerning the applicants’ restitution application.

The Restitution Commission held that under the applicable law in 1948, a confiscation order (акт за експропријација) had had to precede a confiscation decision (решение за експропријација). It found that the restitution order had been based on the confiscation order of August 1948, according to which the total surface area of the land formerly owned by the applicants’ predecessor had been six shinik. However, the confiscation decision dated 17 December 1948, on the basis of which the plot had been confiscated, had specified that the surface area of the confiscated land had been 3,349 sq. m. The Restitution Commission also referred to evidence submitted on 23 August 2001 by the Land Registry Office, according to which the area of the plot had been six shinik and had represented a part of a larger plot of land, the total surface area of which was 8,309 sq. m. A further extract from a “Geodetic Review of the Association of Land Experts of Macedonia” and “Review of old units of land area and their conversion into hectares, areas and sq. m”, issued on the basis of a letter dated 25 March 1952, specified that one shinik corresponded to 650 sq. m. Lastly, the Commission relied on a cadastral plan drawn up by a licenced surveyor (катастарска скица изработена од геометар) made for a separate set of restitution proceedings (instituted by the heirs of G.T.), according to which the surface area of the land, formerly owned by the applicants’ predecessor, had been 3,763 sq. m. In such circumstances, the Commission found that the applicants had unlawfully obtained possession of 4,546 sq. m of land, on the basis of the restitution order. For those reasons, the Commission held that the restitution order had been contrary to sections 1 and 2 of the Restitution Act and was legally unenforceable pursuant to section 267(1)(3) of the Administrative Procedure Act. In respect of the latter section, the Commission held that the unenforceability of a decision concerned not only the factual (фактичка), but also the legal (правна) impossibility of enforcement.

Both applicants appealed, arguing that the restitution order was a final decision which could not be altered. They also referred to the judgement of the Administrative Court of 14 March 2008, which had stated that none of the conditions for nullity under section 267 of the Administrative Procedure Act had been fulfilled (see paragraph 22 above).

On 13 October 2009 the second-instance commission dismissed the applicants’ appeals, endorsing the reasoning given by the Restitution Commission. It held that the Restitution Commission had been obliged, pursuant to section 268 of the Administrative Procedure Act, to declare the restitution order null and void.

The applicants lodged an administrative action against the latter decision before the Administrative Court. They again referred to the judgement of the Administrative Court of 14 March 2008 (see paragraph 22 above). They further stated that the issue of nullity had already been finally resolved following the application lodged by the Solicitor General (see paragraphs 19-22 above).

On 17 May 2010 the Administrative Court upheld their action and annulled the decision of the second-instance commission. The court further rejected as inadmissible an application by R.T. and B.T., the legal successors of G.T. (“the third persons”), to intervene in the proceedings. The relevant part of the judgment reads as follows:

“... In the court’s opinion, there has been no breach of section 267(1)(3) of the Administrative Procedure Act ... This section concerns the impossibility for factual enforcement and the legal impossibility for enforcement which would be in contravention of ... legislation. In the present case there is no such situation and therefore it cannot be considered that section 2 of the Restitution Act has been breached ... This is so because the evidence admitted in the course of the proceedings provides a certain basis for the court to conclude that in the present case the restitution order ... was adopted in accordance with the Restitution Act, which had been preceded by a correct and full establishment of the facts, thereby leading to the conclusion that in that case all statutory conditions had been fulfilled for [the return of] the property concerned.

With regard to the application lodged by R.T. and B.T. ... it is clear that [they] did not participate, nor could they have participated in the administrative proceedings initiated by other persons who claimed a right to restitution of a part of the property which had indisputably been in the possession of their legal predecessors. In view of that ... in the present case there is no possibility that third persons (interested persons) can have standing as parties to the restitution proceedings. However, that does not mean that those persons will be deprived of the right to protect their rights and interests ... a possibility remains for them to establish their rights by lodging a civil claim before a competent court within five years of the finalisation of the restitution order (section 63, paragraph 2 of the Act), against the persons to whom possession was restored or compensation was paid in accordance with the provisions of the Act.”

On 3 and 4 August 2010 the Solicitor General and the third persons respectively appealed against that judgment before the Supreme Court, which had in the meantime become competent to act upon appeals against judgments of the Administrative Court. In the appeal the third persons argued that the difference between 3,349 sq. m and the surface originally granted to the applicants belonged to them and adduced evidence to this end. The applicants submitted observations in reply.

On 25 October 2010 the Supreme Court accepted the appeal submitted by the Solicitor General and overturned the decision of the Administrative Court. The relevant part of the judgment reads as follows:

“In the Supreme Court’s opinion, which has been stated in several of this court’s cases, a restitution order can be considered as legally impossible to enforce, if there are breaches of the law which cannot be remedied with the application of other legal means, as is the situation in the present case. In particular, with the [restitution] order more was restored to the [applicants] than what they had been entitled to, having in mind the surface of the property which was in their legal predecessor’s possession. In support of this, the State organs submit ‘Geodetic Review of the Association of Land Experts of Macedonia’ and ‘Review of old units of land area and their conversion into hectares, areas and sq. m’ as evidence that one shinik in the city of Kumanovo amounted to 650 sq. m. This finds support in the expropriation decision of 17 December 1948 where it was noted that the expropriated land had had a surface of 3,349 sq. m, which had been preceded by an accurate determination of the object of expropriation. The finding is further supported by a cadastral plan done by a licenced surveyor (катастарска скица изработена од геометар) on the basis of the limits and boundaries of the plots of land as laid out in the expropriation decision.

... [T]he conclusion is correct that in the present case, with the restitution order, the property registered as property of the State was restored contrary to the conditions specified in the Restitution Act, sections 1 and 2. Since the State organs established that part of the concerned property was not in possession of the legal predecessor [of the applicants], there is a legal obstacle for the exercise of a restitution right over that part of the property. Hence, such an order cannot be enforced, which is grounds for the application of paragraph 1 subparagraph 3 of section 267 of the Administrative Procedure Act, meaning that the decision is null and void (ништовно) ...

... In respect of the third persons, or the interested persons, the Restitution Act excludes the possibility for them to appear as parties to the restitution proceedings, but what remains for them is the possibility to claim their rights in a civil suit before a competent court within five years after the finalisation of the restitution order (section 63 paragraph 2 of the Act), against the persons to whom possession was restored or compensation was paid in accordance with the provisions of this Act.”

This decision was served on the applicants on 24 December 2010 and 25 January 2011 respectively. By decisions of 31 January and 28 March 2011 the Supreme Court rejected as inadmissible their applications for the reopening of the proceedings.

On 19 December 2012, in civil proceedings initiated by the second applicant against the Land Registry, the Kumanovo Court of First Instance issued an injunction banning the respondent State from disposing of the plot of land. On 1 March 2013 the latter decision was annulled (става вон сила) as the applicant had withdrawn the action against the Land Registry.

Acting upon the initial restitution application, the Restitution Commission requested clarification from the Land Registry regarding the historical records of the plot of land in question on 27 March 2013. The Land Registry confirmed that the plot which had been taken from the applicants’ predecessor was now a part of a plot owned by the State with an area of 8,309 sq. m.

On 29 October 2013 the Restitution Commission accepted the applicants’ restitution claim and decided to restore to their possession a plot of land with an area of 2,460 sq. m and to award them financial compensation for the remaining part of the plot with an area of 889 sq. m which could not be restored, in total amounting to a total surface area of 3,349 sq. m.

On 5 December 2013 the second applicant challenged the latter decision with an administrative action. It appears that the proceedings are still pending.


Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Article 5-1-e - Persons of unsound mind);No violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention)

Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney

The applicant was born in 1936 and lived in Żary. She is currently residing in a social care home in K.

The applicant, who is a widow, was living alone in an apartment in Żary. She was receiving a pension from the Social Security Board. She has a daughter, with whom she apparently had had no contact for several years.

On 24 March 1981, at the request of the applicant’s daughter, the Zielona Góra Regional Court declared the applicant to be partially incapacitated. The court established that she had been suffering from psycho-organic dementia syndrome with elements of paranoia and that she had a tendency to abuse alcohol and medications. It reasoned that it was necessary to declare her to be partially incapacitated because she needed help in making the right decisions, particularly as regards her treatment and the amount of money she spent on alcohol.

On 19 December 2007 the Żary City Centre for Social Services (Miejski Ośrodek Pomocy Społecznej) requested the Żary District Court to place the applicant, against her will, in a social care home. The City Centre for Social Services submitted that the applicant was suffering from mental disorders, did not go to doctors and behaved in a way that departed from “socially accepted norms”, which posed a threat to her health and life. The Centre explained that the applicant had been “walking in the streets incompletely dressed, untidy and dirty. She smelled, talked to herself and often looked as if she was under the influence of alcohol”. A medical certificate dated 3 December 2007 was attached to the request. The certificate had been issued by a psychiatrist on the basis of an examination of the applicant in the psychiatric ward of the Żary Military Hospital. It had been found that the applicant had been suffering from organic personality disorders (organiczne zaburzenie osobowości) and that she needed constant care. However, she did not require hospital treatment.

The Żary District Court scheduled several hearings at which the applicant failed to appear. Therefore, it was decided to hear the applicant at her place of residence on 25 March 2008. On that day contact with the applicant was difficult; her answers to some of the court’s questions were illogical. She made it clear, however, that she did not want to be placed in the social care home. At the end of the hearing she refused to sign the relevant document and told the people present in her apartment to get out.

On 19 June 2008 the Żary District Court decided to place the applicant in a social care home. The court based its decision on an opinion given by a psychiatrist, I.S., who had examined the applicant once, on 8 May 2008, and had diagnosed her with chronic schizophrenia and a disorder of the central nervous system. The doctor found that until the time of the examination the applicant had been in the care of a social guardian, R.D. However, the doctor claimed that “care was not provided properly or was not provided at all”. The applicant had been neglecting the basic principles of hygiene and nutrition, which might lead to infections or undernourishment. He stressed however that she did not pose a direct danger to her own or other peoples’ health or life. The doctor also found that the applicant needed to be under the constant care of a third person. The relevant part of the opinion read as follows:

“Through her behaviour she poses a risk to her life, i.e. in certain circumstances leaving her without constant care significantly raises the probability of risk to her life. It is not however a direct risk, but it results rather from the applicant’s neglect of basic hygiene principles, place of residence and nutrition. [The applicant is therefore exposed to] a risk of malnutrition, [and] infections.”

The court also examined the possibility of the applicant’s stay at her home and referred in this respect to the possibility of taking care of the applicant by third persons and to the assistance provided by the Local Social Care Centre. The relevant part of the court’s decision read as follows:

“...there are no members of family or third persons who could take care of the applicant on permanent basis. In particular the applicant’s daughter declared that she did not want to look after her mother on permanent basis and that she would not take her mother to her place...

The expert opinion is clear in so far as it states that (the applicant) needs constant care lack of which poses a danger to her life.

As regards the assistance from the employees of the Żary Social Care Centre it is to be noted that this assistance is not of a permanent nature. This means that social employee does not spend the whole day with a person concerned and does not take care of that person on permanent basis because, as a rule, social employees [...] assist at the same time many persons living in the area covered by their activity. The applicant in turn, requires permanent care which cannot be secured by the social employees.”

The applicant was placed in a social care home in K. on 10 September 2008.

It appears that the District Court granted the applicant a legal aid lawyer in 2007. However, according to the applicant’s submission the lawyer was not present at the hearing before the first-instance court and de facto she was not represented in the judicial proceedings.

On 8 December 2008 the applicant’s daughter appealed against the decision of 19 June 2008. She also requested that her mother be granted a legal aid lawyer and that she be served with the decision of 19 June 2008 with written reasoning.

On 29 December 2008 the Żary District Court dismissed the request for a legal aid lawyer, finding that the applicant’s daughter had sufficient knowledge and abilities to represent her mother before the court. It also rejected the appeal and the request for the reasoning of the first-instance decision.

On 7 February 2009 the applicant lodged another appeal against the decision of 19 June 2008 and requested leave to appeal out of time.

On 3 March 2009 the applicant was granted a legal aid lawyer. Since she was not satisfied with the lawyer who represented her, on 2 June 2009 she was granted another lawyer, who subsequently requested that the court grant the applicant leave to appeal out of time.

On 25 August 2009 the Żary District Court granted the applicant’s request for leave to appeal out of time.

On 7 December 2009 the Zielona Góra Regional Court dismissed the applicant’s appeal. The minutes of the court decision reveal that nobody was present at the hearing on that day. The same minutes state, however, that “the applicant, who was not represented by a lawyer, was informed that she could request reasons for the decisions in writing if she lodged a relevant request within seven days from the day of publication [of the decision].” The applicant submitted that she had not been served with the court’s decision and that she had found out about it by chance two years later. In the meantime she lodged a complaint with the court about the excessive length of the proceedings. Her complaint was rejected by the Zielona Góra Regional Court on 31 October 2011.

When the applicant learned that her appeal had been dismissed she requested the leave of the Regional Court to lodge a request for written reasons for the decision out of time. She also requested leave to lodge a cassation appeal out of time, to be exempted from the court fees and to be granted a legal aid lawyer who would prepare and lodge a cassation appeal on her behalf.

On 21 November 2011 the Zielona Góra Regional Court dismissed her request for leave to appeal out of time and therefore she could not lodge a cassation appeal with the Supreme Court.

On the same day the Zielona Góra Regional Court dismissed the applicant’s request for exemption from the court fees and for the appointment of a legal aid lawyer to lodge a cassation appeal on her behalf.

On 20 November 2008 the applicant’s daughter requested the District Court to vary the measure applied to her mother and to amend the decision of 19 June 2008.

The Żary District Court ordered that the applicant be examined by a psychiatrist in order to check whether she needed to remain in the social care home. It also ordered that the applicant be heard by the Gorzów Wielkopolski District Court by way of judicial assistance.

The applicant was examined by a psychiatrist on 6 April 2009. The relevant part of the psychiatric opinion reads as follows:

“In her current mental state the applicant does not need to be admitted and treated in hospital.

As a result of her sickness she requires help in day-to-day matters, first of all, taking care of her treatment process and controlling her expenses so that she does not spend money on alcohol. She also needs assistance in preparing meals, personal hygiene and shopping.

The applicant needs the twenty-four-hour care that may be offered in a social care home. It is admissible that she be placed in a family home provided that the family is able to assure twenty-four-hour care.

There has been no change in the applicant’s mental state or circumstances which constituted the basis for her placement in the social care home.

The applicant does not require to be placed in a psychiatric ward ... She does not pose a direct danger to her own or a third person’s health or life.”

On 6 April 2009 the applicant was also heard by the Gorzów Wielkopolski District Court. The hearing lasted fifteen minutes. The applicant’s statement reads as follows:

“I am afraid that I could be locked up. I would need a sanatorium where they treat heart disease. I do not feel at ease in the social care home because the people there are not normal, they are constantly asking for cigarettes and I do not smoke. Medical care is assured there. The doctor is a colleague of mine, because I was manager of a chemist and he was the doctor. I take the medication promazyn because I was exposed to radiation during the war, but now I am fine. I am in good hands, I need my home, my daughter comes to see me. She comes every week. I lived in my home in Żary for 30 years. My daughter, when she became an adult, used to come to see me and she helped me out. I want to stay in my apartment in Żary, which is situated not far from my daughter’s apartment.”

On 15 June 2009 the court summoned the applicant’s daughter in order to establish whether she was capable of providing care for her mother. She failed to appear, so a further hearing was scheduled for 10 August 2009. The applicant’s daughter again failed to appear. The court then decided to close the case, finding that the facts had been sufficiently established to make a final decision.

On 20 August 2009 the Żary District Court dismissed the request lodged by the applicant’s daughter to vary the measure applied to the applicant. Neither the applicant, her daughter, nor the applicant’s guardian was present when the court announced its decision. The decision was not appealed against and became final on 10 September 2009.

On 5 April 2009 the applicant requested the Żary District Court to reopen the proceedings which had resulted in her placement in the social care home. If it was not possible to re-open the proceedings, she requested that the respective decision be varied.

On 21 May 2009 the District Court rejected her request. The court found that there were no grounds for reopening the proceedings. It further informed the applicant that, under section 41 of the 1994 Psychiatric Protection Act, an applicant placed in a social care home or members of his or her family could request that the court vary the decision on placing him or her in the social care home. The court disregarded the applicant’s alternative request in that regard.

On 9 February 2009 the applicant requested the District Court to supplement the decision of 19 June 2008 and allow her to leave the social care home for one hour a day in order to go to a shop, as well as allow her to stay in her room all day.

On 25 August 2009 the Żary District Court dismissed the request to supplement the original decision, finding that those matters fell outside the court’s jurisdiction and that they were provided for by the internal regulations of each social care home.

On 19 July 2009 the applicant again asked the court to vary the measure applied to her. She also requested legal aid; she submitted that she could not afford to appoint a lawyer at her own expense because 70% of her pension was retained by the social care home.

On 1 October 2009 the Żary District Court refused to grant a legal aid lawyer, finding that the applicant was able to deal with her affairs herself and that her case was not complicated from a legal or factual point of view.

The applicant appealed against that decision.

On 18 November 2009 the Zielona Góra Regional Court quashed the challenged decision and granted the applicant a legal aid lawyer.

As regards the applicant’s request to vary the measure, a hearing took place on 6 November 2009 in the presence of both the applicant and her lawyer. Following a request by the lawyer, the court decided to stay the proceedings. They were resumed on 5 February 2010.

On 15 March 2010 the Żary District Court dismissed the applicant’s request. The applicant did not appeal against that decision and it became final on 6 April 2010.


CASE OF ÖZMURAT İNŞAAT ELEKTRİK NAKLİYAT TEMİZLİK SAN. VE TİC. LTD. ŞTİ. v. TURKEY

Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Public hearing)

Jon Fridrik Kjølbro;Julia Laffranque;Ledi Bianku;Paul Lemmens;Robert Spano

The applicant is a construction company, which was established in 2003 and has its seat of business in Mersin.

In 2005, after having obtained a permit to operate a mine, the applicant opened a mine in a plot of land of 8,700 m² which it owned.

During the course of its mining activities, on 31 January 2006 an audit commission under the Mersin Provincial Administration conducted an inspection. Subsequently, the commission drew up a report, proposing that the applicant should be ordered to pay 131,250 Turkish liras (TRY) for quarrying substantial amounts of sand in the neighbouring plots of 5,000 m², outside of its licensed area.

On 8 March 2006 the Tarsus Provincial Administration informed the applicant that it had decided to impose the proposed administrative fine pursuant to Article 19 of the Regulation Concerning Group A Mines (A Grubu Madenlerle İlgili Uygulama Yönetmeliği).

On 8 February 2006 the applicant company’s president, Ü.T., filed a complaint with the Mersin Public Prosecutor’s office, stating that one of the auditors in the commission, M.A.L., had told him that the fine had initially been calculated as TRY 500,000 and that he had reduced that amount. Ü.T. claimed that M.A.L. had asked him to pay TRY 10,000 in return and had threatened to have his mine closed if he refused to do so. He indicated that M.A.L. had acted together with a certain F.G., an official at the Provincial Administration.

In his police statements on 9 February 2006, Ü.T. described his conversations with M.A.L. in detail. He noted, inter alia, that after the inspection of the audit commission, he had conducted another inspection with an official from the Directorate of Land Registration, and had calculated that he had trespassed on the neighbouring plots by only 400 metres. He also explained that he had acted as an undercover agent in line with the directions of the Public Prosecutor to catch the perpetrators in flagrante delicto. Accordingly, the police gave him TRY 10,000 and noted down the serial numbers of the banknotes. He stated that in line with the instructions of M.A.L. and F.G., he had given the money to a third person, who had received it in the name of the other two.

Subsequently, on 16 February 2006 the Mersin Public Prosecutor issued an indictment against M.A.L. and F.G., accusing them of extortion.

On 13 May 2011 the Mersin Assize Court found the two officials guilty as charged. The appeal proceedings with regard to that judgment are still pending before the Court of Cassation as of September 2017.

In the meantime, on 17 April 2006 the applicant had filed an objection with the Tarsus Magistrates’ Court and requested a stay of execution of the fine. It informed the court of the criminal proceedings pending against certain officials involved, in which they were being tried for extortion. By a subsequent petition dated 5 June 2006, the applicant also requested the court to hold an oral hearing, to carry out an on-site examination, and to hear its witnesses in order to better evaluate the credibility of the inspection report the fine was based on.

On 13 June 2006, the Tarsus Magistrates’ Court rejected the applicant’s requests for an oral hearing and on-site examination without indicating any reasons for its decision. Relying on the inspection report drawn up on 31 January 2006, the court rejected the applicant’s objection.

The applicant objected to that decision, arguing that the fine had been unlawfully imposed on it and that the Magistrates’ Court had failed to adequately assess the case as it had not held a hearing. It drew the court’s attention once again to the criminal proceedings against the officials involved.

On 10 July 2006 the Tarsus Assize Court rejected the applicant’s objection without holding a hearing.

On 7 March 2008 the administration seized the plot of land where the applicant conducted mining activities due to the latter’s failure to pay the administrative fine.