15 судових рішень
The European Court of Human Rights (ECHR) emphasizes the necessity of non-discrimination in enjoying the rights and freedoms outlined in the Convention. The court's decisions often revolve around the thoroughness and lawfulness of investigations, especially in cases involving alleged human rights abuses or crimes committed by state agents. The court endorses the principle that those seeking to bring their case against a state before an international judicial body should first exhaust remedies provided by the national legal system. However, these remedies should be sufficiently certain, accessible, and effective.
The court has consistently affirmed that the state has a primary duty to secure the right to life, which requires an effective official investigation when individuals are killed as a result of force by state agents. It has rejected arguments suggesting that civil claims for compensation are ineffective or illusory rights, particularly in situations where the state's actions have been found to be lawful under domestic law.
Furthermore, the court requires that applicants or potential applicants should communicate freely with Convention organs without any pressure from authorities to withdraw or modify their complaints. It encourages transparency and the disclosure of relevant documents in support of the applicant's case. It also stresses that remedies should take into account the personal circumstances of the applicants, the general legal and political context, and the existence of formal remedies in the national legal system.
|Рішення №||Справа||Дата||Заява №||Суд||Предмет спору||Фрагмент тексту|
|001-208279||CASE OF HANAN v. GERMANY||16/02/2021||4871/16||Court, Grand Chamber||Code of Crimes against International Law Code of Criminal Procedure|| |
|001-172660||CASE OF TAGAYEVA AND OTHERS v. RUSSIA||13/04/2017||26562/07 |
|Court, First Section||Suppression of Terrorism Act of the Russian Federation of 1998 (Law no. 130-FZ – hereinafter “the Suppression of Terrorism Act”), in force until 1 January 2007 1989 Army Field Manual (Боевой устав Сухопутных войск), enacted by the Commander-in-Chief of the Soviet Union on 9 April 1989 and published by the Ministry of Defence of the USSR in 1990|| |
|001-115865||CASE OF MILTAYEV AND MELTAYEVA v. RUSSIA||15/01/2013||8455/06||Court, First Section|| |
|001-203825||CASE OF TËRSHANA v. ALBANIA||04/08/2020||48756/14||Court, Second Section||Article 88 of the Criminal Code|| |
|001-139177||CASE OF T.K.H. v. SWEDEN||19/12/2013||1231/11||Court, Fith Section|| |
|001-216925||CASE OF BURSAĆ AND OTHERS v. CROATIA||28/04/2022||78836/16||Court, First Section||Section 154(1) of the Civil Procedure Act Sections 376 and 377 of the Civil Obligations Act Act on the liability of the Republic of Croatia for damage caused by members of the Croatian army and police in the performance of their duties during the Homeland War (Official Gazette, no. 117/2003) Decision of the Government of Croatia of 28 May 2009 on the writing-off of claims for the costs of civil proceedings awarded to the Republic of Croatia in certain proceedings Decree of the Government of Croatia of 25 April 2013 on the criteria, benchmarks and procedure for the deferral of payment, payment of debt in instalments and the sale, writing-off or partial writing-off of claims|| |
|001-72236||CASE OF ARTUN AND OTHERS v. TURKEY||02/02/2006||33239/96||Court, Third Section|| |
|001-110944||CASE OF DAMAYEV v. RUSSIA||29/05/2012||36150/04||Court, First Section|| |
|001-101936||CASE OF ABUYEVA AND OTHERS v. RUSSIA||02/12/2010||27065/05||Court, First Section||Articles 42, 125, 161 and 198 of the Code of Criminal Procedure of the Russian Federation|| |
|001-78623||CASE OF MARKOVIC AND OTHERS v. ITALY||14/12/2006||1398/03||Court, Grand Chamber||Italian Constitution, Articles 10 § 1, 24 § 1, 28, 113 Article 31 of Royal Decree no. 1024 of 26 June 1924 Article 2043 of the Civil Code Article 41 of the Code of Civil Procedure, which deals with the issue of jurisdiction and Article 37 Criminal Code, Articles 6, 185 Article 174 of the Wartime Military Criminal Code|| |
|001-161740||CASE OF DZHABAROV AND OTHERS v. BULGARIA||31/03/2016||6095/11 |
|Court, Fith Section||Section 63(1), 64 and 65(1) of the Ministry of Internal Affairs Act 1997 Section 35(1) of the National Police Act 1993|| |
|001-58062||CASE OF AKDİVAR AND OTHERS v. TURKEY||16/09/1996||21893/93||Court, Grand Chamber||Constitution, Articles 13-15 and 125 Criminal Code, Articles 179, 181, 188, 191, 193, 194, 369-372, 382, 383, 526 et seq. Code of Criminal Procedure, Articles 148, 151 and 153 Military Code, Articles 86 and 87 Law no. 2935 of 25 October 1983 on the State of Emergency, Article 1 Law no. 353 on the Constitution and the Procedure of Military Courts, sections 93 and 95 Law no. 3713, Anti-Terror Law (1981) Decree no. 285, as amended by Decrees nos. 424 and 425 Decree no. 430 of 16 December 1990, Article 8|| |
|001-115007||CASE OF LENEV v. BULGARIA||04/12/2012||41452/07||Court, Fourth Section||Sections 1 and 2(1) of the 1988 Act Section 49 of the 1951 Act New sections 34b(1), 34b(3), 34b(5), 34c, 34d, 34g and 34h of the Special Surveillance Means Act 1997, enacted on 15 December 2008 and into force on 27 December 2008|| |
|001-88770||CASE OF ALBEKOV AND OTHERS v. RUSSIA||09/10/2008||68216/01||Court, Third Section||Article 161 of the Code of Criminal Procedure 2002|| |
|001-77688||CASE OF LEDYAYEVA, DOBROKHOTOVA, ZOLOTAREVA and ROMASHINA v. RUSSIA||26/10/2006||53157/99 |
|Court, First Section||['Constitution, Article 42', 'Law on Sanitary Safety 1999', 'Atmosphere Protection Act', 'Sanitary Regulations (2000, 2001, 2003)', 'State Sanitary Service Decree no. 41 (1996)', 'Town Planning Code (1998, 2004)', 'Housing Code (1983, 2005)']|| |
- "The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
- On 26 March 2004 the military prosecutor’s office of the United Group Alignment informed the first applicant that the decision to discontinue the criminal proceedings in connection with the attack of 19 October 1999 had been lawful and well-founded, as it had been established during the investigation that the federal aircraft had bombed fortified command points, bases and ammunition depots of the illegal armed groups rather than any residential areas of Urus-Martan.
- The document stated that on 19 October 1999 an unidentified aircraft had launched a strike on Urus-Martan, with the result that six residents had died, sixteen were wounded, thirteen private houses were destroyed, including that of the first applicant, and twenty-seven houses were damaged.
- In a letter of 14 April 2001 the district prosecutor’s office replied to the first applicant that his request for certified copies of decisions instituting criminal proceedings in case no. 24031 and extending the term of the preliminary investigation “had no basis in law” and therefore could not be granted.
- It stated, in particular, that the involvement of the federal aircraft in the attack had been established by eyewitness statements and the results of ballistics tests, which had confirmed that fragments found at the scene of the incident had been those of artillery shells and aerial bombs.
- The letter then listed in detail the procedural breaches that had occurred during the inspection of the scene of the incident and the seizure and examination of ammunition fragments found there and stated that as a result of those breaches the seized splinters could not be admitted in evidence.
- It stated that after the reopening of the investigation on 1 October 2002, the investigating authorities had sent a request to interview a number of high-ranking officers, carried out an expert’s examination of an orchard that one of the residents had lost during the attack in question and declared two other persons victims.
- In particular, it was necessary to question high-ranking officers in command of the counter-terrorism operation in the Chechen Republic; to identify and interview an officer in charge of the operation in Urus-Martan on 19 October 1999, an officer in command of the pilots who had carried out bomb strikes on Urus-Martan on the date in question and the pilots themselves; to examine and, if necessary, seize relevant military documents, including a register of combat air missions and tactical maps; to examine the materials of enquiries carried out by the military authorities in connection with the first applicant’s complaints about the attack; to conduct expert examinations; and to perform other necessary investigative actions.
- According to the experts, any other methods of action by federal forces, such as a ground attack, storming or forcing out, would have led to unjustified losses among them.
- ‘zone of a counter-terrorist operation’ shall refer to an individual terrain or water surface, means of transport, building, structure or premises with adjacent territory where a counter-terrorist operation is conducted; ...”
- They also argued that, when examining a civil claim for compensation for damage sustained as a result of a criminal offence, a domestic court was entirely independent of decisions taken by investigating authorities and courts in the context of criminal proceedings in connection with that offence.
- The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges those seeking to bring their case against the State before an international judicial or arbitral organ to use first the remedies provided by the national legal system.
- The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness.
- The Court emphasises that the application of the rule of exhaustion of domestic remedies must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting States have agreed to set up.
- It must then examine whether, in all the circumstances of the case, the applicant did everything that could reasonably be expected of him or her to exhaust domestic remedies (see the Akdivar and Others judgment cited above, p. 1211, § 69, and the Aksoy judgment cited above, p. 2276, §§ 53-54).
- As regards the applicants’ alleged failure to appeal against the same procedural decisions to a court under Article 125 of the Russian Code of Criminal Procedure, the Court observes that the legal instrument referred to by the Government became operational on 1 July 2002 and that the applicants were clearly unable to have recourse to this remedy prior to that date.
- As regards the period thereafter, the Court considers that this limb of the Government’s preliminary objection raises issues which are closely linked to the question of the effectiveness of the investigation, and it would therefore be appropriate to address the matter in the examination of the substance of the relevant complaint under Article 2 of the Convention.
- Indeed, Article 1069 of the Russian Civil Code invoked by the Government establishes the rules on compensation for damage inflicted by representatives of the State and provides that State agents are liable only for damage caused by their unlawful actions or failure to act.
- In support of this finding, the Court also refers to the practice of the Russian courts, which have consistently refused to award any compensation for damage caused by the federal forces during the conflict in the Chechen Republic, stating, in particular, that the latter’s actions had been lawful as the counter-terrorist operation in the region had been launched under relevant presidential and governmental decrees which had not been found to be unconstitutional (see paragraphs 89- above).
- With this in mind, the Court rejects the Government’s argument that it was open to the second and third applicants to file a civil claim for compensation in respect of their damaged housing and property, as the right in question was illusory and devoid of substance.
- In addition to setting out the circumstances when deprivation of life may be justified, Article 2 implies a primary duty on the State to secure the right to life by putting in place an appropriate legal and administrative framework defining the limited circumstances in which law-enforcement officials may use force and firearms, in the light of the relevant international standards (see Makaratzis v.
- The Court further reiterates that the obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force, in particular by agents of the State.
- Article 55 § 3 provides that rights and freedoms may be restricted by federal laws for the protection of constitutional principles, public morals, health and the rights and lawful interests of others, and to ensure the defence and security of the State.
- The applicant complained that he had been denied an effective remedy by which to challenge the destruction of his house and his forced eviction by the security forces, including access to a court to assert his civil rights.
- However, the investigation in question was limited to asking the Gendarmerie Headquarters to provide information about the applicant’s allegations (see paragraph 15 above).
- Accordingly, there is no causal link between the matter held to constitute a violation of the Convention – the absence of an effective investigation – and the pecuniary damage claimed by the applicant.
- The Court has found that the national authorities had failed to carry out an effective and thorough investigation into the applicant’s complaints in breach of Article 13 of the Convention (see paragraphs 61-69 above).
- (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amounts, to be converted into new Turkish liras at the rate applicable at the date of settlement and to be paid into the applicants’ bank account in Turkey:
- Exceptional circumstances such as internal political instability or any other public emergency may not be invoked to justify any departure from these basic principles.
- The sixth applicant also adduced an extract from a housing inventory issued by the Urus-Martan Administration on 27 March 2009, stating that he had real estate at 46 Pervomayskaya Street and that the property, measuring 300 square meters, had been built or acquired in 1978.
- Regard must therefore be had in this case to the situation which existed in south-east Turkey at the time of the events complained of by the applicant, which was characterised by violent confrontations between the security forces and members of the PKK (see the Mentes and Others v.
- The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and/or mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Ireland v. the United Kingdom, cited above, § 162).
- There is no doubt that these acts, in addition to giving rise to a violation of Article 3, constituted a grave and unjustified interference with the applicant’s rights to respect for his private and family life and home, and to the peaceful enjoyment of his possessions (see Menteş and Others v.
- Where an individual has an arguable claim that his or her home and possessions have been purposely destroyed by agents of the State, Article 13 requires, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible and including effective access for the complainant to the investigation procedure (see Menteş and Others, cited above, pp. 2715-16, § 89).
- The Court points out that it has already found that the applicant's home and possessions were destroyed in violation of Articles 3 and 8 of the Convention and Article 1 of Protocol No. 1.
- The Court refers to its findings above that it has not been established with sufficient certainty that the remedies referred to by the Government provided in the circumstances of this case any effective prospect of obtaining redress (see paragraph 47 above).
- The applicants argued that the enforced evacuation of between two and three million people from south-east Turkey, allegedly for security reasons, disclosed an arbitrary exercise of power, outside the framework of domestic legal safeguards and in deliberate subversion of the rule of law and the rights guaranteed under the Convention.
- Referring to other cases concerning events in south-east Turkey in which the Commission and the Court had also found breaches in similar cases, the applicant submitted that they revealed a pattern of denial by the authorities of allegations of serious human-rights violations as well as a denial of remedies.
- Having regard to its findings under Articles 3, 8 and 13 of the Convention and Article 1 of Protocol No. 1 above, the Court does not find it necessary to determine whether the failings identified in this case are part of a practice adopted by the authorities.
- The Court reiterates that it is of the utmost importance for the effective operation of the system of individual petition instituted by former Article 25 (now replaced by Article 34) that applicants or potential applicants should be able to communicate freely with the Convention organs without being subjected to any form of pressure from the authorities to withdraw or modify their complaints (see the Akdivar and Others v.
- However, as the applicant has not substantiated her claims as to the quantity and value of her lost property with any documentary or other evidence, the Court’s assessment of the amounts to be awarded must, by necessity, be speculative and based on principles of equity.
- Otherwise, the general legal prohibition of torture and inhuman and degrading treatment and punishment would, despite its fundamental importance, be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity (see Assenov and Others, cited above, § 102, and Labita v.
- This means amongst other things that it must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned but also of the general legal and political context in which they operate as well as the personal circumstances of the applicants.”
- Article 1067 provides that damage inflicted in a situation of absolute necessity, notably for the elimination of a danger threatening the tortfeasor or third parties if the danger, in the circumstances, could not be eliminated by any other means, is to be compensated for by the tortfeasor.
- Having regard to the circumstances in which the damage was caused, a court may impose an obligation to compensate for such damage on a third party in whose interests the tortfeasor acted, or may release from such an obligation, partly or in full, both the third party and the tortfeasor.
- It accordingly awards the applicant EUR 14,500 for non-pecuniary damage, to be converted into Turkish liras at the rate applicable at the date of payment.
- Where the applicant makes out a prima facie case and the Court is prevented from reaching factual conclusions owing to the lack of such documents, it is for the Government to argue conclusively why the documents in question cannot serve to corroborate the allegations made by the applicants, or to provide a satisfactory and convincing explanation of how the events in question occurred.
- The burden of proof is thus shifted to the Government and if they fail in their arguments, issues will arise under Article 2 and/or Article 3 (see, among many other authorities, Toğcu v.
- In other words, just satisfaction is not sought with a view to compensating the State for a violation of its rights but for the benefit of individual victims, as described in paragraph 45 above.
- This obligation requires the Contracting States to furnish all necessary facilities to the Court, whether it is conducting a fact-finding investigation or performing its general duties as regards the examination of applications” (see, mutatis mutandis, Janowiec and Others v.
- Therefore, the Court finds that the remedy relied on by the Government was ineffective in the circumstances and rejects their preliminary objection in this respect.
- On 30 August 2001 the prosecutor's office instituted criminal proceedings under Article 158 § 2 (c) and (d) (aggravated theft) of the Russian Criminal Code in connection with the theft of the applicant's Oldsmobile vehicle.
11 судових рішень
The European Court of Human Rights emphasizes that for a case to be brought before it, the complaints should have been lodged with the appropriate domestic body first, in compliance with domestic law. This must not include any inadequate or ineffective remedies. The Court underscores that even unintentional killing due to the use of force is covered by Article 2 and allegations made under Articles 2 and 3 necessitate a rigorous scrutiny. The Court also asserts that victims should have access to effective remedies that can lead to the identification and punishment of the responsible parties.
Moreover, the Court maintains that it can award non-pecuniary damages considering the severity of the violations. The Court also highlights the need for evidence to support claims made before it and the importance of a thorough and effective investigation into complaints.
For a case to be admissible, the Court emphasizes the need for the applicant to show diligence and interest, and the adequacy of the domestic investigation. The Court also reiterates that an applicant must provide a satisfactory explanation for any alleged discrepancies in their submissions.
The Court's task is to review whether the courts have subjected the case to the careful scrutiny required by Article 2 of the Convention. The Court also points out that it is not bound by the findings of the domestic courts and may depart from them if necessary.
The Court stresses that any damages caused by the property of an individual or legal entity shall be fully compensated by the person who inflicted the damage. However, the Court notes that it can only reimburse legal costs and expenses that have been necessarily and actually incurred.
Finally, the Court emphasizes that Article 3 of the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment, enshrining one of the fundamental values of democratic societies. The Court also maintains that authorities are required to remedy any damage arising from the actions of third parties which the authorities are unable to prevent in spite of their obligation.
|Рішення №||Справа||Дата||Заява №||Суд||Предмет спору||Фрагмент тексту|
|001-144673||CASE OF PRIMOV AND OTHERS v. RUSSIA||12/06/2014||17391/06||Court, First Section||Public Gatherings Act|| |
|001-168933||CASE OF GERASIMENKO AND OTHERS v. RUSSIA||01/12/2016||5821/10 |
|Court, Third Section|| |
|001-211791||CASE OF M.D. AND OTHERS v. RUSSIA||14/09/2021||71321/17 |
|Court, Third Section|| |
|001-69670||CASE OF MOLDOVAN AND OTHERS v. ROMANIA (No. 2)||12/07/2005||41138/98 |
|Court, Second Section||Code of Civil Procedure, Article 244 Code of Criminal Procedure, Articles 10, 15, 22 and 343 Civil Code, Articles 999-1000 and 1003|| |
|001-170055||CASE OF KIRINS v. LATVIA||12/01/2017||34140/07||Court, Fith Section|| |
|001-210038||CASE OF BİŞAR AYHAN AND OTHERS v. TURKEY||18/05/2021||42329/11 |
|Court, Second Section|||| |
|001-207467||CASE OF ZLIČIĆ v. SERBIA||26/01/2021||73313/17 |
|Court, Second Section|| |
|001-87354||CASE OF CHEMBER v. RUSSIA||03/07/2008||7188/03||Court, First Section||Articles 24, 27 and 213 of the Code of Criminal Procedure Article 1064 of the Civil Code|| |
|001-61560||CASE OF AYDER AND OTHERS v. TURKEY||08/01/2004||23656/94||Court, First Section|| |
|001-164460||CASE OF A.M. v. THE NETHERLANDS||05/07/2016||29094/09||Court, Third Section||Article 31 § 3 (c) of the 1969 Vienna Convention on the Law of Treaties 1951 Refugee Convention|| |
|001-215164||CASE OF KHUDOROSHKO v. RUSSIA||18/01/2022||3959/14||Court, Third Section||['Parliamentary Assembly of the Council of Europe issued Recommendation 1742 (2006) on the human rights of members of the armed forces']|| |
- In the present case, the Court took no decision about the exhaustion of domestic remedies at the admissibility stage, having found that this question was too closely linked to the merits.
- Article 35 § 1 also requires that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law, but that no recourse should be had to remedies which are inadequate or ineffective (see the Aksoy v.
- The Court observes that Russian law provides, in principle, two avenues of recourse for the victims of illegal and criminal acts attributable to the State or its agents, namely civil procedure and criminal remedies.
- The Court considers that this limb of the Government's preliminary objection raises issues concerning the effectiveness of the criminal investigation in uncovering the facts and responsibility for the attack of which the applicants complain.
- Article 2 covers not only intentional killing but also the situations in which it is permitted to “use force” which may result, as an unintended outcome, in the deprivation of life.
- Nonetheless, where allegations are made under Articles 2 and 3 of the Convention the Court must apply a particularly thorough scrutiny (see, mutatis mutandis, Ribitsch v.
- In view of this, the applicants should accordingly have been able to avail themselves of effective and practical remedies capable of leading to the identification and punishment of those responsible and to an award of compensation, for the purposes of Article 13, at least as regards the claims under Article 2.
- The Court considers that an award should be made in respect of non-pecuniary damage, bearing in mind the seriousness of the violations which it has found in respect of Articles 3, 8 and 13 of the Convention and Article 1 of Protocol No. 1 due to the deliberate destruction of the applicant's home and property and his subsequent relocation from Kaynak hamlet.
- The Regional Court held, in particular, that the first applicant’s argument to the effect that the child’s return to her father in Donetsk would put her life and health at risk due to the military actions there had not been supported by admissible and relevant evidence.
- In any event, in order to ensure the second applicant’s safety following her return to Ukraine, on 20 March 2016 he had begun renting a flat in Kramatorsk, located outside the conflict zone.
- The inhabitants of the applicant’s village were suspected of “aiding and abetting terrorists”; and accordingly they were strictly and frequently controlled by the gendarmes stationed near the village.
- Mr Yıldırım stated, inter alia, that the villages were evacuated either by the PKK, in order to intimidate those who opposed it, by the authorities since they were unable to protect the villages, or because the inhabitants of those villages refused to become village guards or were suspected of having aided the PKK (p. 20).
- This Law provided for a sufficient remedy capable of redressing the Convention grievances of the applicant who had suffered damages during the authorities’ struggle against terrorism.
- The Government therefore asked the Court to suspend the examination of this application and to require the applicant to avail himself of the new remedy introduced in domestic law.
- The Court recalls that in its admissibility decision of 2 September 2003 it has already held that the applicant was not required to pursue any further remedy in domestic law given the lack of an effective investigation into his complaints.
- However, it must be wary of the fact that the documentary material provided by the parties have not been tested in examination or crossexamination and, thus, might constitute a potentially misleading basis for any conclusion to be reached in the present case.
- In this context, the Court notes that the applicant did not submit any eye-witness statement in relation to the burning down of his house and possessions by the security forces.
- The applicant’s insecure personal circumstances arising from the alleged loss of his home and possessions do not fall within the notion of security of person as envisaged in Article 5 § 1 (see Çaçan, cited above, § 70; and Cyprus v.
- The Government contended that there had been no shortcomings in the investigation and that the authorities had conducted an effective inquiry into the applicants’ allegations.
- The Court recalls that on the basis of the evidence collected in the present case, it has not found it proved to the required standard of proof that the applicant’s house was destroyed or that he was forcibly displaced by the State security forces as alleged (see paragraph 49 above).
- Furthermore, in its admissibility decision of 2 September 2003, the Court had already concluded that the applicant had been absolved from pursuing any further remedy in domestic law given the lack of a thorough and effective investigation into his complaints.
- Accordingly, having regard to its findings in the admissibility decision and to its conclusion that the applicant’s allegations could not be discarded as being prima facie untenable (see paragraph 60 above), the Court considers that the applicants’ complaints raised arguable claims of violations of the Convention for the purposes of Article 13 of the Convention (see, mutatis mutandis, insofar as the applicability of Article 6 of the Convention was at stake, Mennitto v.
- Turning to the particular circumstances of the case, the Court notes that following the Ovacık Public Prosecutor’s decision of non-jurisdiction, the administrative authorities of the Ovacık District Council commenced an investigation into the applicant’s allegations.
- It does not seem that any attempt was made to interview members of the security forces during the course of investigation, despite the fact that the applicant had clearly accused gendarmes as the perpetrators of the burning of their houses and possessions.
- In any event, the Court has previously expressed serious doubts as to the ability of the administrative councils in south-east Turkey to carry out an independent investigation given that they were composed of civil servants, who were hierarchically dependent on the governor, and an executive officer was linked to the security forces under investigation (see, among many others, Güleç v.
- In these circumstances, it cannot be said that the authorities have carried out a thorough and effective investigation into the applicants’ allegations of the destruction of property in Tepsili.
- The applicant maintained that, because of his Kurdish origin, he had been subjected to discrimination in breach of Article 14 of the Convention, in conjunction with Articles 6, 8 and 13 of the Convention and Article 1 of Protocol No. 1.
- The applicant argued that the destruction of his house and possessions was the result of an official policy, which constituted discrimination due to their Kurdish origin.
- However, the Court recalls that in the instant case it was not established to the required standard of proof that the applicant’s houses were burned or that they were forcibly evicted from their village by the State security forces (see paragraph 49 above).
- Taking into account the seriousness of the allegations and deciding on an equitable basis the Court awards the applicant EUR 4,000, to be converted into Turkish liras at the rate applicable at the date of payment.
- That said, the Court reiterates that only legal costs and expenses that have been necessarily and actually incurred can be reimbursed under Article 41 of the Convention.
- On 23 August 2008 an investigator from the investigation unit of the Chernovskiy district police suspended the investigation in accordance with Article 208 § 1 (1) of the Code of Criminal Procedure on the grounds that the perpetrator had not been identified.
- The investigator stated that before 9 April 2008 at an unidentified place an unidentified person who had been entrusted with guarding firearms, ammunition and explosive devices had failed to carry out his or her duties properly.
- On 13 February 2009 an investigator of the investigation unit of the Chernovskiy district police suspended the investigation again on the same grounds as before.
- The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds.
- This substantive positive obligation entails a primary duty on the State to put in place a legislative and administrative framework designed to provide effective deterrence against threats to the right to life.
- The choice of means for ensuring the positive obligations under Article 2 is in principle a matter that falls within the Contracting States’ margin of appreciation.
- There are different avenues to ensure Convention rights, and even if the State has failed to apply one particular measure provided by domestic law, it may still fulfil its positive duty by other means (see Ciechońska, cited above, § 65; Fadeyeva v.
- The Court’s task therefore consists in reviewing whether and to what extent the courts, in reaching their conclusion, may be deemed to have submitted the case to the careful scrutiny required by Article 2 of the Convention, so that the deterrent effect of the judicial system in place and the significance of the role it is required to play in preventing violations of the right to life are not undermined (see Öneryıldız, cited above, § 93).
- “Since ammunition such as VOG-17 grenades could only be lawfully used by State-authorised organisations operating, inter alia, in the spheres of defence and internal affairs ..., the investigation should have identified such State organisations and their officials or service personnel and verified whether the procedure provided for by the legislation for cases of the loss or damage of ammunition ... had been carried out by them.”
- In sum, there is nothing in the case file to indicate that, having established facts which pointed to possible negligence on the part of military personnel, the investigating authorities made all reasonable efforts in accordance with their procedural obligation under Article 2 of the Convention to collect relevant evidence which would enable clarification of the nature of any liability to satisfy the authorities that there were no grounds to continue a criminal investigation (see paragraph 65 above).
- Where it is clear from the outset, however, that no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of, or from the date of knowledge of such acts or their effect on or prejudice to the applicant.
- The determination of whether the applicant in a given case has complied with the admissibility criteria will depend on the circumstances of the case and other factors, such as the diligence and interest displayed by the applicant, as well as the adequacy of the domestic investigation (see Narin v.
- In particular, the difficulties in securing probative evidence for the purposes of domestic legal proceedings, inherent in such a troubled situation, may make the pursuit of judicial remedies futile and the administrative inquiries on which such remedies depend may be prevented from taking place (ibid. § 70).
- The term “refugee” refers to an alien who is outside the country of his or her nationality owing to a well-founded fear of being persecuted on grounds of race, nationality, religious or political beliefs, or on grounds of gender, sexual orientation or other membership of a particular social group and who is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country (Chapter 4, section 1).
- However, when information is presented which gives strong reasons to question the veracity of an asylum seeker’s submissions, the individual must provide a satisfactory explanation for the alleged discrepancies (see, among other authorities, Collins and Akaziebie v.
- Decides, unanimously, to continue to indicate to the Government under Rule 39 of the Rules of Court that it is desirable in the interests of the proper conduct of the proceedings not to expel the applicants until such time as the present judgment becomes final or until further order.
- Article 1064 of the Civil Code provides that damage caused to the property of an individual or legal entity shall be compensated in full by the person who inflicted the damage.
- The latter may be released from the obligation to make compensation if he or she can prove that the damage was not inflicted through his or her own fault; however, the law may provide for compensation in respect of damage even in the absence of fault by the person who caused it.
- Article 1079 stipulates that damage inflicted by a “source of increased danger” (источник повышенной опасности) is to be compensated by the person or entity using that source of danger, unless it has been proved that the damage was caused by force majeure or through the fault of the person affected.
- The Court reiterates that, although sensitive to the subsidiary nature of its role and cautious about taking on the role of a first-instance tribunal of fact, the Court is nevertheless not bound by the findings of the domestic courts and may depart from them where this is rendered unavoidable by the circumstances of a particular case (see, for example, Matyar v.
- She claimed RUB 360,000 for the loss of movable and immovable property, and RUB 1,000,000 for non-pecuniary damage for the mental and physical suffering she and her daughter had been caused by the disaster.
- On 9 October 2001 the Baksan District Court of the KBR examined her claim and rejected it on the same grounds as those of the other applicants referred to above.
- She further complained about the authorities’ failure to conduct a prompt and effective investigation leading to the identification, prosecution and punishment of the assailant.
- Not every alleged risk to life, therefore, can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising.
- However, having regard to its findings under Article 2 of the Convention above (see paragraph 161 and 138), it is not necessary to examine the merits of this complaint.
- In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2,720 covering costs under all heads.
- It added that, even if the civil court were allowed to examine in the particular case whether the applicants’ father’s killing had amounted to a crime, there would be insufficient evidence for such a conclusion since the applicants’ aunt had not directly seen his killing, but had only heard gunshots.
- States parties should ensure that their domestic laws provide that a victim who has suffered violence or trauma should benefit from adequate care and protection to avoid his or her re-traumatisation in the course of legal and administrative procedures designed to provide justice and reparation.
- The Government acknowledged that the attack of 12 September 1999 had resulted in the destruction of a number of residential and non-residential buildings in the (Runnoye).
- However, as the applicant has not supported his claims as to the quantity and value of his lost property with any documentary or other evidence, the Court will make its assessment of the amounts to be awarded on an equitable basis.
- The Chamber having decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine), the parties replied in writing to each other’s observations.
- The Court observes that in previous cases it has found this explanation insufficient to justify the withholding of key information requested by the Court (see Imakayeva v.
- It therefore has to assess the effectiveness of the investigation on the basis of the few documents submitted by the parties and the information about its progress presented by the Government.
- It considers that the nature of the violation alleged under Article 1 of Protocol No. 1 requires that the complaint brought under this heading should provide at least a brief description of the property in question.
- It held that claimants in proceedings under section 1 of the 1988 Act bore the burden of proving all elements of the tort, including the existence of damage, and that the only evidence that could be used to prove non-pecuniary damage in the form of mental suffering was medical expert evidence, not witness evidence.
- On that account, the Court points out that in the cases referred to by the Government, the administrative courts awarded compensation on the basis of the doctrine of social risk, which is not dependent on proof of fault.
- As regards a civil action for redress for damage sustained through illegal acts or patently unlawful conduct on the part of State agents, the Court recalls that a plaintiff must, in addition to establishing a causal link between the tort and the damage he has sustained, identify the person believed to have committed the tort (see Yaşa v.
- In the majority of cases documented by OHCHR, detainees were denied information about the reasons for their detention and other due process rights, or their families were denied information concerning their whereabouts or their fate, raising concerns that in some cases such detentions may constitute enforced disappearances.
- In many such cases, individuals appear to have been subjected to enforced disappearance, and the fact that they were detained by the Government did not become known until their deaths were acknowledged.
- The bodies of the deceased were rarely returned to their families, who were also denied the opportunity to question the official causes of death or to know the whereabouts of the bodies.
- The court noted that the victims had requested pecuniary damages for the destruction of the houses and their contents (furniture, etc.), as well as non-pecuniary damages.
- The court further noted that, during the events of 20 September 1993, eighteen houses belonging to the Roma population in Hădăreni had been totally or partially destroyed and three Roma had been killed, a criminal court having found twelve villagers guilty of these acts.
- The court finally rejected all the applicants' requests for non-pecuniary damages on the ground that they had not substantiated their claim, and that the crimes committed were not of a nature to produce moral damage.
- However, the question whether granting just satisfaction to an applicant State is justified has to be assessed and decided by the Court on a caseby-case basis, taking into account, inter alia, the type of complaint made by the applicant Government, whether the victims of violations can be identified, as well as the main purpose of bringing the proceedings in so far as this can be discerned from the initial application to the Court.
- Accordingly, for the purposes of awarding just satisfaction, the Court considers that at least 166 Georgian nationals were victims of this administrative practice, for which the Russian Federation was found to be responsible (see paragraphs 252 and 256 of the principal judgment).
- The ophthalmologist diagnosed mild hyperaemia and an issue with the epithelium of the cornea, while the neuropsychiatrist concluded that the applicant had been suffering from a reaction to a severely stressful situation and an “adaptation disorder”.
- The applicant’s cohabitee, S.Đ., stated, inter alia, that the applicant had come home at around midnight on 10 January 2014 and that she had observed swelling on his left eyelid.
- The applicant’s cohabitee provided the internal investigation unit with photographs of the applicant’s face which she had taken one day after his release, in the evening of 11 January 2014.
- He described the alleged police abuse of 10 January 2014, submitted medical reports corroborating his allegations thereof, and maintained that such police conduct and the lack of a proper investigation in that regard, by the police as well as the public prosecution service, had clearly amounted to a breach of his right to physical and mental integrity as guaranteed under Article 25 of the Constitution (see paragraph 39 below).
- In its reasoning the Supreme Court of Cassation noted, inter alia, that the fact that the applicant had been in possession of cannabis had been established on the basis of the police officers’ testimony and “not solely based on” the seizure certificate.
- Where an individual is taken into police custody in good health but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused, failing which a clear issue arises under Article 3 of the Convention (see, among many other authorities, Selmouni v.
- This also holds true for the use of real evidence obtained as a direct result of acts of torture (ibid., § 173); the admission of such evidence obtained as a result of an act qualified as inhuman treatment in breach of Article 3, but falling short of torture, will only breach Article 6, however, if it has been shown that the breach of Article 3 had a bearing on the outcome of the proceedings against the defendant, that is, had an impact on his or her conviction or sentence (ibid., § 178; see also El Haski, cited above, § 85).
- The Court points out that under Rule 60 of the Rules of Court any claim for just satisfaction must be itemised and submitted in writing together with the relevant supporting documents or vouchers, “failing which the Chamber may reject the claim in whole or in part”.
- The applicants argued that the Government’s failure to submit the documents requested by the Court disclosed a failure to comply with their obligations under Article 38 § 1 (a) of the Convention, which, in so far as relevant, provides:
- In a case where the application raises issues as to the effectiveness of the investigation, the documents of the criminal investigation are fundamental to the establishment of the facts and their absence may prejudice the Court’s proper examination of the complaint both at the admissibility and at the merits stage (see Tanrıkulu v.
- The Government did not dispute the details of the calculations submitted by the applicants, but pointed out that they should be entitled to the reimbursement of their costs and expenses only in so far as it had been shown that they had been actually incurred and were reasonable as to quantum (they referred to Skorobogatova v.
- As it has observed on many occasions, Article 3 of the Convention enshrines one of the fundamental values of democratic societies and as such it prohibits in absolute terms torture or inhuman or degrading treatment or punishment.
- In order to determine whether any particular form of ill-treatment should be qualified as torture, regard must be had to the distinction drawn in Article 3 between this notion and that of inhuman treatment or degrading treatment.
- However, as an exception to this rule, the authorities must pay compensation – irrespective of any causal link – for damage connected with its field of activity which it has been unable to prevent despite its responsibility for so doing.
- According to this principle, the authorities are required to remedy any damage which, although not caused by their acts, arises out of the acts of third parties which the authorities are unable to prevent in spite of their obligation to do so.
- (i) EUR 35,000 (thirty-five thousand euros), plus any tax that may be chargeable, to be converted into Russian roubles at the rate applicable at the date of settlement, to each of the first and second applicants in respect of non-pecuniary damage;
- Under Article 265.4 of the CCP, if upon examination of a civil claim a court discloses an appearance of criminal elements in the actions of the parties to the case or other persons, it must deliver a special ruling (xüsusi qərardad) informing a public prosecutor thereof.
6 судових рішень
The European Court of Human Rights determined several key points in these numerous proceedings. Most notably, the court highlighted the importance of cooperation from respondent governments in Convention proceedings, emphasizing the difficulties associated with evidence-gathering exercises of this nature.
The court confirmed that no one should be intentionally deprived of life, except under specific lawful circumstances. It also stressed that deprivation of life should not be seen as contravening this rule when it results from the use of force deemed absolutely necessary.
The court emphasized the need for a thorough investigation when an individual claims to have suffered from ill-treatment at the hands of state agents, highlighting the necessity of securing evidence and taking all reasonable steps to establish the facts.
The court also underscored the principle that even in difficult circumstances such as fighting terrorism, the Convention absolutely prohibits torture or inhuman or degrading treatment or punishment.
The court reiterated that everyone who is deprived of his liberty should have the right to a speedy court decision regarding the lawfulness of their detention. It also held that no one should be deprived of their possessions except in the public interest and subject to the conditions provided for by law and by international law principles.
Finally, the court outlined its standard of proof as "beyond reasonable doubt," indicating that a comprehensive body of strong, clear, and consistent inferences or similar unrebutted presumptions of fact can provide sufficient proof.
|Рішення №||Справа||Дата||Заява №||Суд||Предмет спору||Фрагмент тексту|
|001-213855||CASE OF BALJAK AND OTHERS v. CROATIA||25/11/2021||41295/19||Court, First Section||Act on the liability of the Republic of Croatia for damage caused by members of the Croatian armed forces and police during the Homeland War of 31 July 2003 Section 428a of the Civil Procedure Act|| |
|001-128036||CASE OF BENZER AND OTHERS v. TURKEY||12/11/2013||23502/06||Court, Second Section|| |
|001-104662||CASE OF KERIMOVA AND OTHERS v. RUSSIA||03/05/2011||17170/04 |
|Court, First Section||Article 125 of the Russian Code of Criminal Procedure Article 1069 of the Russian Civil Code Governmental Decree no. 510 of 30 April 1997 Governmental Decree no. 404 of 4 July 2003 Presidential Decrees no. 2137 of 30 November "On Measures Aimed at Restoration of Constitutional Lawfulness and Order within the Territory of the Chechen Republic" Presidential Decrees no. 2166 of 9 December 1994 "On Measures Aimed at Suppression of the Activity of Illegal Armed Groups within the Territory of the Chechen Republic and the Zone of the Chechen-Ingush Conflict" Presidential Decrees no. 2155c of 23 September 1999 "On Measures Aimed at Increasing the Effectiveness of Counter-Terrorism Operations within the Territory of the North-Caucasian Region of the Russian Federation" Presidential Decree of 11 December 1994 Section 21 of the Federal Law on Suppression of Terrorism of 25 July 1998|| |
|001-83273||CASE OF KHAMIDOV v. RUSSIA||15/11/2007||72118/01||Court, Fith Section||Section 21 of the Law on Suppression of Terrorism Article 119 of the Code of Civil Procedure|| |
|001-126540||CASE OF ABDULKHANOV AND OTHERS v. RUSSIA||03/10/2013||22782/06||Court, First Section|| |
|001-58734||CASE OF ILHAN v. TURKEY||27/06/2000||22277/93||Court, Grand Chamber||Article 125 of the Constitution|| |
- Under these circumstances and referring to the importance of a respondent Government's co-operation in Convention proceedings and mindful of the difficulties inevitably arising from an evidence-taking exercise of this nature (see the above-cited Orhan case, § 70), the Court finds that the Government fell short of their obligations under Article 38 § 1 (a) of the Convention to furnish all necessary facilities to the Court in its task of establishing the facts.
- Having regard to the documentary evidence submitted to it by the parties (see paragraphs 37-60 above) and the testimonies of the witnesses heard by the Court's Delegates (see paragraphs 61-91) the Court's conclusions of fact can be summarised as follows.
- No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
- Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:
- (b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
- (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ...”
- (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
- Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful ...”
- In the view of the Court, this fact in itself must be considered a most serious failing since it enables those responsible for an act of deprivation of liberty to conceal their involvement in a crime, to cover their tracks and to escape accountability for the fate of a detainee.
- No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
- The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
- The Court has found it established that the security forces deliberately destroyed the applicant’s house and property, obliging his family to leave their village (see paragraph 47 above).
- Nevertheless, the remedy required by Article 13 must be “effective” in practice as well as in law, in particular in the sense that its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the respondent State (see the Aksoy judgment cited above, p. 2286, § 95).
- The applicant's complaints in this regard are therefore also “arguable” for the purposes of Article 13 (see Boyle and Rice, § 52; Dulaş, § 67; and Yöyler, § 89).
- The Court has previously held that the implementation of the criminal law in respect of unlawful acts allegedly carried out with the involvement of the security forces disclosed particular characteristics in south-east Turkey in the first half of the 1990s and that the defects found in the investigatory system in force in that region undermined the effectiveness of criminal-law protection during this period.
- It is noteworthy in this connection that the Court has consistently found a general reluctance on the part of the authorities to consider the possibility that members of the security forces could have perpetrated such acts (see the above-mentioned judgments of Selçuk and Asker, § 68, İpek, § 206; Yöyler, § 92).
- However, it recalls that the Court has already found in a number of cases that the investigation carried out by this body cannot be regarded as independent since it is composed of civil servants, who are hierarchically dependent on the governor, and an executive officer is linked to the security forces under investigation, (see Güleç v.
- It notes in this connection that the present case involved complex issues of fact and law requiring detailed examination, including the taking of evidence from witnesses in Ankara.
- Holds that there has been a violation of Article 2 of the Convention in respect of the authorities’ failure to conduct an effective investigation into the circumstances of the applicant’s son’s death;
- Holds that there has been no violation of Article 14 of the Convention, in conjunction with Articles 3, 6, 8 and 13 of the Convention and Article 1 of Protocol No. 1;
- The letters added that air strikes were only aimed at targets which had been pre-selected and identified as military and were situated at a distance of at least two to three kilometres from inhabited areas, and that the accuracy of military aircraft precluded any possibility of accidental hits on civilian buildings.
- The letter also stated that the information allegedly received by the first applicant from the military prosecutor’s office, to the effect that on 19 October 1999 two SU25 military aeroplanes had launched an air strike on Urus-Martan, was inaccurate.
- However, at 1.30 p.m. on that date high-explosive 250 kg aerial bombs had been launched on a group of fighters located one kilometre from the south-eastern outskirts of Urus-Martan.
- On the same date the circuit military prosecutor’s office quashed the decision taken by the military prosecutor’s office of military unit no. 20102 on 7 April 2000.
- The events of 19 October 1999 had been confirmed by forty-eight witnesses listed in the report and other witnesses, reports of the inspection of the crime scene and forensic examination as well as other evidence, such as fragments of exploded bombs seized from the first applicant’s house and a video record of the site of the incident, dated 10 November 1999.
- Finally, the report stated that, as the illegal armed groups had no aircraft, on three occasions the criminal case had been sent for further investigation to the military prosecutor’s office, which, however, had returned it on various grounds, thus protracting the investigation and making it difficult to identify the pilots involved in the attack of 19 October 1999.
- The proceedings were brought under Articles 105 § 2 (aggravated murder) and 167 § 2 of the Russian Criminal Code, and the case was transferred to the district prosecutor’s office for investigation.
- 3) to detain persons who have committed or are committing offences or other acts in defiance of the lawful demands of persons engaged in an anti-terrorist operation, including acts of unauthorised entry or attempted entry to the zone of the anti-terrorist operation, and to convey such persons to the local bodies of the Ministry of the Interior of the Russian Federation;
- As to the facts that are in dispute, the Court recalls its jurisprudence confirming the standard of proof “beyond reasonable doubt” in its assessment of evidence (Avsar v.
- The Court is sensitive to the subsidiary nature of its role and recognises that it must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case (see, for example, McKerr v. the United Kingdom (dec.), no. 28883/95, 4 April 2000).
- Given the fundamental importance of the right to protection of life, Article 13 requires, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible for the deprivation of life and infliction of treatment contrary to Article 3, including effective access for the complainant to the investigation procedure leading to the identification and punishment of those responsible (see Anguelova v.
- There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”,
- The ECHR case-law requires that we must ascertain whether the first applicant’s objections to her daughter’s return were genuinely taken into account by the domestic courts, whether the decisions on this point were sufficiently reasoned, and whether the courts satisfied themselves that adequate safeguards and tangible protection measures were available in the country of return (see Andersena v.
- In conclusion, it was recommended in the report that the inhabitants of the settlement units should be re-housed in the provinces, districts or central villages – rather than hamlets – close to the area where they used to live and that necessary economic measures should be taken with a view to providing employment to the inhabitants of the region, priority being given to the immigrants.
- The applicant disputed the Government’s objection and argued that he could not be required to exhaust a new remedy after the admissibility decision of the Court.
- As noted earlier and having regard to the independent reports concerning the evacuation and destruction of villages in south-east Turkey at the relevant time (see paragraphs 23-34 above), the applicant’s allegation that he had been forcibly evicted from his village and that his house and possessions had been burned down by State security forces cannot be discarded as being prima facie untenable.
- However, for the Court, the required evidentiary standard of proof for the purposes of the Convention is that of “beyond reasonable doubt”, and such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences, or of similar unrebutted presumptions of fact (see Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, p. 65, § 161).
- Furthermore, there had consistently been a general reluctance on the part of the authorities to admit that this type of practice by members of the security forces had occurred.
- Accordingly, the Court finds that it has not been demonstrated by the Government with sufficient certainty that effective and accessible domestic remedies existed for complaints such as the applicant’s.
- Even in the most difficult of circumstances, such as the fight against terrorism or organised crime, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment.
- No provision is made, as in other substantive clauses of the Convention and its Protocols, for exceptions and no derogation from it is possible under Article 15 (see, inter alia, the Aksoy v.
- The Court considers it appropriate to take the statutory rate of interest applicable in the United Kingdom at the adoption of the present judgment, namely 7.5% per annum.
- (a) that the respondent State is to pay the applicant, within three months and into the sterling bank account identified by her in the United Kingdom, in respect of costs and expenses, 14,900 (fourteen thousand, nine hundred) pounds sterling together with any value-added tax that may be chargeable, less 7,500 (seven thousand, five hundred) French francs to be converted into pounds sterling at the rate applicable at the date of delivery of this judgment;
- Effective interrogation is based on the concept of using both physical and psychological pressures in a comprehensive, systematic, and cumulative manner to influence HVD behavior, to overcome a detainee’s resistance posture.
- The Court reiterates that where an individual raises an arguable claim that he has suffered treatment infringing Article 3 at the hands of the police or other similar agents of the State, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation.
- That means that the authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or as the basis of their decisions (see Assenov and Others v.
- They must take all reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony and forensic evidence (see Tanrıkulu v.
- These standards imply that the ill-treatment the applicant alleges he will face if returned must attain a minimum level of severity if it is to fall within the scope of Article 3.
- The civil courts rejected her claim as time-barred, noting that it had been lodged outside the objective statutory period under section 376(2) of the Civil Obligations Act, and that the longer statutory limitation period under section 377 of the Civil Obligations did not apply because there was no criminal conviction.
- Having regard to the parties’ submissions, the Court observes that the question arises whether, in accordance with Article 34 of the Convention, the relevant applicants can still claim to be “victims” of the alleged violation of Article 2 of the Convention.
- In the absence of independent evidence of the applicant's income from his landholdings, and having regard to equitable considerations, the Court awards him EUR 6,000 under this head.
- Consequently, in respect of pecuniary damage the Court awards the applicant a total sum of EUR 33,500 to be converted into Turkish liras at the rate applicable at the date of settlement, and to be paid to the applicant's estate.
- The Government also mentioned that the applicant had had the opportunity to apply for judicial review of the actions or omissions of the investigating authorities in the context of exhaustion of domestic remedies.
- Article 7 of Legislative Decree no. 285, as amended by Legislative Decree no. 425 of 9 May 1990, precludes any application in the administrative courts to have an administrative act performed pursuant to Legislative Decree no. 285 set aside.
- However, as the Court has constantly held in similar cases, despite the extent of village destruction or evacuation in the state of emergency region, there appears to be no example of compensation having been awarded in respect of allegations that villagers have been forcibly evicted from their homes and that property has been deliberately destroyed by members of the security forces or of prosecutions having been brought against those forces as a result of such allegations (see, mutatis mutandis, Selçuk and Asker, cited above, § 68, and Gündem v.
- It considers, however, that it is only in exceptional circumstances that physical ill-treatment by State officials which does not result in death may disclose a breach of Article 2 of the Convention.
- In the light of the patterns observed and the high numbers of incidents and civilians killed and injured in markets and residential areas, it appears that parties to the conflict have failed to respect the key principles under international humanitarian law of distinguishing civilians from fighters and civilian objects from military objectives; of refraining from indiscriminate attacks; of respecting proportionality in attack; and of taking constant care to spare civilians and civilian objects in the conduct of military operations.
- The Court has considered treatment to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering.
- As a result of the beatings the applicants could hardly walk, the skin on their feet peeled off, and their faces and bodies were bloated and covered with haematomas.
- Since they did not follow the orders of the law-enforcement officers, on 24 September 2001 the Sunzhenskiy District Court ordered their administrative imprisonment for three days.
- He submitted no copies of medical documents but a statement from his wife, who confirmed that he had suffered from the consequences of the beatings and could not work.
- Referring to the importance of a respondent Government’s cooperation in Convention proceedings, and mindful of the difficulties associated with the establishment of facts in cases of such a nature, the Court finds that the Government fell short of their obligations under Article 38 § 1 of the Convention because of their failure to submit copies of the documents requested in respect of the applicants’ detention and ill-treatment.
- Liability in law does not stem only from the principle of fault or the theory of negligence in the performance of public duties; the authorities can be held strictly liable.