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3

The case concerns the authorities’ alleged failure to protect the applicants from acts of domestic violence and to carry out an effective investigation into these acts. The applicants relied on Articles 2, 3 and 8 of the Convention, taken on their own and in conjunction with Articles 13 and The individual circumstances and domestic procedures relevant to each case are set out in the appended table.

8, 3

In 2008 the applicant was arrested, in the course of an operation planned by special police forces on suspicion of having committed a robbery. Shortly after his arrest he complained that injuries recorded during his medical examination were caused as a result of the use of excessive force during his arrest. His complaints were repeatedly dismissed by the investigative authorities on the ground that the use of force by the police against the applicant was lawful and justified. The decisions referred to the circumstances of the arrest as described by the police officers, namely the resistance mounted by the applicant, as well as to his background of a former police officer with a firearms training and a criminal record. The applicant disagreed, arguing that he did not resist the arrest or the search. These decisions were quashed by higher investigating authorities as being incomplete. The applicant’s appeals were rejected by courts on the grounds that the decisions complained of had been quashed and new inquiries were under way (see details in the Appendix). Relying on Article 3 of the Convention, the applicant complained about the use of excessive force against him and lack of an effective investigation thereof. In 2010 the applicant was convicted of robbery and sentenced to nine years’ imprisonment. The trial court relied, among other things, on audio recordings of his telephone conversations and on information obtained through the monitoring of his communications data. The applicant made unsuccessful attempts to exclude this evidence. Relying on Article 8 of the Convention, he complained about an interference with his right to respect for his private life.

P7-4

The police compiled an offence report in respect of the applicant under Article 1 § 2 of the Code of Administrative Offences (CAO) punishing minor hooliganism, that is a breach of the public order consisting in manifest disrespect to the society together with the use of rude language in a public place or insulting others, where those actions were linked ( сопряжены с ) to disobedience to a lawful order from a public official on duty or when putting an end to a breach of public order. On 30 May 2012 a justice of the peace convicted the applicant and sentenced him to a fine of 1,000 Russian roubles (RUB). As to the facts of the case, the court only stated as follows: “Pursuant to the offence report, at 10 pm. on 29 May 2012 [the applicant] ... loudly used rude language, thereby breaching the public order and committing an offence under Article 1 § 2 of the CAO; he did not react to the repeated orders from [the] police officers to cease his hooliganism and continued to use rude language.” No appeal was lodged. The judgment became final on 9 June 2012. On 7 June 2012 the applicant was charged under Articles 318 and 319 of the Criminal Code (CC) punishing violence against a public official in relation to his or her official duties and a public insult of a public official in relation to or during the exercise of his or her official duties, respectively. On 13 August 2013 the Yessentuki Town Court of the Stavropol Region convicted the applicant as charged and sentenced him to a fine of RUB 60,000 and community work of 160 hours. The court considered, as regards the charge under Article 319 of the CC, as follows: “Around 10 p.on 29 May 2012 [the applicant] ... used rude language, did not react to [the] officers’ orders to cease his unlawful actions thereby breaching the public order connected with disobedience to a lawful order from a public official and thereby committing an offence under Article 1 § 2 of the CAO. Having identified that offence, between 9 and 10 p.[officer Ya.] and [officer Z.] sought to put an end to defendant’s hooliganism and ordered him to cease using rude language ... In the presence of another person, P., the defendant started to use rude language against Ya., thereby diminishing his dignity and honour.” As to the charge under Article 318 of the CC, the court stated as follows: “Around 10 p.the defendant committed the offence under Article 1 § 2 of the CAO, which officers Ya. and S. tried to put an end to. The defendant used violence against Ya. by way of grabbing his uniform causing damage to the right epaulette, then giving one slap with a hand to the officer’s face, causing physical pain.” 4 . On 10 October 2013 the Stavropol Regional Court upheld the judgment. The applicant served the sentences. After the communication of the application to the Government, on 29 February 2016 the Presidium of the Regional Court examined a prosecutor’s request, quashed the conviction under Article 319 of the CC and upheld the one under Article 318 of the CC with the fine of RUB 60,000. The court considered that the rude language against the officer had been “connected” to the applicant’s conduct against the same officer at the same time and at the same place as well as in relation to the same officer’s exercise of his duty to put an end to a breach of the public order; thus, the classification of the applicant’s actions under Article 319 of the CC, in addition to Article 318, had been “excessive”.

5, 5

The applications concern the applicants’ right to liberty and security of person. The applicants were arrested on suspicion of different crimes. The courts placed them under house arrest or under house arrest and pre-trial detention. They allege that the courts failed to provide relevant and sufficient reasons for the house arrest (see Buzadji the Republic of Moldova [GC], no. 23755/07, §§ 104-105, ECHR 2016 (extracts)). Ms Lepeshkina (application no. 50956/15) also complains about delayed review of her appeals against house-arrest orders (see, mutatis mutandis , Pichugin Russia , no. 38623/03, §§ 148-56, 23 October 2012). Lepeshkina v . Russia ( application no. 50956/15) The applicant was born in 1989 and lives in Moscow. On 20 August 2014 the applicant was arrested on suspicion of banditry and vandalism. On the next day the Taganskiy District Court of Moscow ordered to place her under house arrest. It was subsequently extended by the District Court on 14 October, 17 November 2014, 19 January, 16 March, 15 May and 17 July 2015. 5 . On 16 October and 20 November 2014, and 21 January, 19 March and 18 May 2015 she contested the court orders of 14 October, 17 November 2014 and 19 January, 16 March and 15 May 2015, respectively. On 12 November, 22 December 2014, 18 March, 20 April, 25 June 2015, respectively, the Moscow City Court upheld them on appeal. On 10 September 2015 the District Court acquitted the applicant. On 17 December 2015 the City Court upheld the verdict on appeal. 7 . On 18 April 2016 the Simonovskiy District Court of Moscow awarded her 100,000 roubles (RUB) in non-pecuniary damage for the unlawful prosecution. 8 . On 16 September 2016 the Taganskiy District Court of Moscow awarded her RUB 667,021.48 in pecuniary damage for the unlawful prosecution. Shilov v . Russia ( application no . 37964/17) The applicant was born in 1981 and lives in Seltso, Bryansk Region. On 6 July 2012 the applicant was arrested on suspicion of multiple offences, including drug-related crimes, smuggling and organisation or participation in a criminal organisation. On the same day the Bryansk Regional Court remanded him in custody. His pre-trial detention was subsequently extended on multiple occasions. On 21 November 2016 the Regional Court replaced the applicant’s pre-trial detention with house arrest. It was subsequently extended by the Regional Court on multiple occasions. On 24 January 2019 the Regional Court acquitted the applicant, following the non-guilty verdict of the jury. JOINDER OF THE APPLICATIONS Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

2

The applicant is the father of Mr G.The case concerns the death of the applicant’s son as a result of a special operation carried out by State agents. 2 . According to the Government (who have not provided relevant documents), at some point the Federal Security Service of the Republic of Dagestan (“the FSB”) and officers of the Ministry of Interior of the Republic of Dagestan (“the UVD officers”) acquired information on alleged involvement of G.and his acquaintance K.A. in an illegal armed group and preparation of attacks on law enforcement officers. On 11 January 2010 the UVD officers obtained information on G.’s and K.A.’s whereabouts and decided to arrest them. 3 . According to the eyewitnesses’ statements submitted by the applicant, on 10 January 2010 and on the morning of the next day several masked men in a Gazel vehicle inspected houses in a crowded Irchi Kazaka street in Makhachkala. The events of 11 January 2010 4 . According to the Government, on 11 January 2010 at about 2 p.the UVD and the FSB officers attempted to apprehend G.and K.A., who were driving in a car in the centre of Makhachkala. G.and K.A. disobeyed the officers’ order to stop the car, opened fire “using firearm of unspecified type”, and K.A. attempted to throw a hand grenade. The officers (none of whom were harmed) fired at them in defence and killed G.and K.A. 5 . According to the applicant (who provided detailed statements of seven witnesses including eyewitnesses of the fatal shooting, as well as photographs of the scene), when G.and K.A, unarmed, were approaching K.A.’s car parked in Irchi Kazaka street that day, unspecified officers blocked the road. G.(who remained in the street) and K.A. (who entered the car) came under intense fire from three masked men in plain clothes – as subsequently established, law enforcement officers, – who had been waiting for them in an ambush. Without giving any warning, the men fired three shots from unspecified firearms. Then the above-mentioned Gazel vehicle arrived and blocked the road. Witnesses heard automatic gunfire . Those shots were fired by men standing near the vehicle. G.and K.A. were killed on the spot. Several bullets hit the car (as further confirmed by the ballistics experts). G.’s body was lying on the ground, as he had not got in the car. Immediately after the shooting, the masked men moved G.’s body and searched for firearms but did not find any on him. The officers allegedly planted firearms and ammunition at the scene, to imitate a shootout. Criminal case against G.and K.A. 6 . On the same date the authorities opened criminal proceedings against G.and K.A. on suspicion of encroachment on the officers’ lives and illegal arms possession. 7 . During an on-site inspection a pistol was found lying on the sidewalk next to G.’s body, as well as three hand grenades, including one in the applicant’s pocket. According to a forensic explosives report, the gunshot residue was found on swabs taken from G.’s hands. The biological forensic report of 6 May 2010 did not exclude that the traces of sweat discovered on the seized firearms could belong to G.and K.A. According to the Government, firearms and ammunition were found during searches in G.’s and K.A.’s homes on unspecified dates. They did not submit copies of the search records or other relevant documents. 9 . Multiple bullet wounds were found on G.’s body, including at sternum area. 10 . The investigators questioned several witnesses who had been in the vicinity of the scene, heard the gunshots but had not seen the events unfolding; as well as relatives of G.and K.A., including the applicant. 11 . It does not appear that the authorities questioned other witnesses, including, in particular, the officers carrying out the operation, or established those officers’ identities. 12 . The applicant did not have access to the criminal case file. Several times the proceedings against G.and K.A. were discontinued due to their death and resumed by a higher investigating authority, since the investigation was incomplete. On 23 March 2011 the proceedings against G.and K.A. were discontinued on the same grounds. The applicant’s attempts to initiate an investigation into his son’s death The applicant and his lawyer on several occasions requested the investigative authorities to open a criminal case into the killing of G.and K.A.; to grant the applicant and other relatives victim status; to provide information and records of investigative actions; and to question eyewitnesses and the officers carrying out the operation. Those requests were dismissed or left unanswered. 15 . On 9 July 2010 the Sovetskiy District Court of Makhachkala dismissed the applicant’s complaint about the investigators’ inaction (as upheld on appeal on 16 August 2010 by the Supreme Court of the Republic of Dagestan). The courts upheld the investigator’s decision that, in view of the ongoing criminal proceedings against G.and A.K., it was not appropriate, at that stage, to open proceedings into their killing, and to grant victim status to the relatives. The courts confirmed that the identities of the officers involved in the operation could not be revealed as that was confidential information in terms of the Suppression of Terrorism Act, and therefore they could not be questioned. The courts upheld the refusal of the request for access to the criminal case-file material as lawful. The applicant complained under Articles 2 and 13 of the Convention that the authorities had intentionally killed his son covering the whole operation as a shootout, and that the authorities failed to investigate his son’s death.

6

The case concerns access to court. 2 . A real estate agency initiated order-for-payment proceedings against the applicant in April 2017, claiming that the applicant had failed to pay a fee agreed upon under a brokerage contract. It presented the contract, which mentioned the applicant’s address at that time and the address of the flat she had bought. An order for payment was issued by the Sofia District Court on 10 May 2017. In principle, notice of it had to be served to the applicant, who could object, if she so wished. Service was attempted on a third address, which the Sofia District Court established to be the applicant’s address declared to the local authorities, but already during her first visit the service officer found that the applicant no longer lived there, and had in fact moved out nine years earlier. Nonetheless, the service officer visited the same address several more times, and then attached the notice to the door. Later on, observing that no objection to the order for payment had been received, the Sofia District Court issued a writ of execution on 23 October 2017. 3 . Once the real estate agency initiated enforcement proceedings, on 6 November 2017 a bailiff had the writ served on the applicant at her workplace. Finding out about the proceedings against her, the applicant finally objected against the order for payment. The objection could be accepted, under Article 423 § 1 of the Code of Civil Procedure, if the applicant could show that the notice had not been duly served on her. However, in a final decision of 12 March 2018 the Sofia City Court found that the notice had to be deemed duly served, as it had been left at the applicant’s declared address. 4 . Eventually, the applicant paid in full the debt of 3,776 Bulgarian levs (BGN), equivalent to 1,930 euros (EUR), comprising the sum ordered against her, interest and costs. The applicant complained before the Court under Article 6 § 1 of the Convention that she had been denied access to a court to participate in the order-for-payment proceedings.

10

The present case concerns the applicant’s conviction for posting an offensive comment, under Article In March 2012 an analytical centre posted an article on its website with the headline “Pomorye in the Eurasian world” dedicated to a large region located in the North of European Russia, and its inhabitants, Pomors, living on the White Sea coast. Any visitor to the website could comment on the article. In April 2012 a visitor posted the following comment: “Pomors! Give it a rest. There are one million Russians and only two thousand Pomors in Arkhangelsk Region. How can you, Pomors, Ugrofins, believe that you are ‘the spiritual and cultural pivot’ of the Arkhangelsk Region? The author of the article and his friends suffer from megalomania. The word ‘Pomor’ will soon become a vulgarity. We will not let the Pomor leaders exclude this Region from the Russian civilisation.” The applicant replied as follows: “What will you do to us? There are millions of you, scum («быдло»), and two thousand of us, human beings.” In June 2012 an investigator initiated criminal proceedings against the applicant under Article 282 § 1 of the Criminal Code for posting a comment humiliating the Russian nation. In March-May 2013 the domestic courts found the applicant guilty of humiliating the dignity of a group of people on the ground of ethnic origin and fined him 100,000 Russian roubles.

5

The present application concerns mainly (i) the length of and reasons for the applicant’s pre-trial detention under Article 5 § 3 of the Convention; (ii) whether there was a breach of the applicant’s right to be presumed innocent, guaranteed under Article 6 § 2 of the Convention; as well as other complaints related to the fairness of the proceedings. Criminal proceedings against the applicant On 9 August 2009 four police officers were killed as a result of exchange of fire between , a fugitive from criminal prosecution, and E.Xh. with police forces. E.Xh.’s mobile telephone was seized at the crime scene, and it appeared that the applicant had made frequent calls to E.Xh., who was charged with aiding and abetting in the commission of crimes. In August 2009 criminal proceedings were opened against the applicant. Proceedings concerning pre-trial detention 4 . At the prosecutor’s request, on 22 November 2009 the Serious Crime First Instance Court (hereinafter the “FISC”) ordered the applicant’s pre-trial detention, on the basis of the charge of abuse of office on account of his alleged contacts with the individuals involved in the above-mentioned killing of four police officers, under Article 244 of the Criminal Procedure Code (“CPC”) on account of danger of absconding. 5 . As to the reasonable suspicion that the applicant had committed the criminal offence of abuse of office, the court held that the applicant had close social ties with E.Xh. He had managed to procure a police uniform for E.Xh. at the Korça Police Directorate, where the applicant had served as a police officer. The photographs taken had shown that the rank on the police uniform had worn matched the applicant’s rank. ’s alleged position in the police forces on the forged identification document that he had had on him matched that of the applicant’s. On 23 November 2009 the applicant was arrested and on 26 November 2009 he was heard by the FISC which confirmed the applicant’s pre-trial detention under Article 248 of the CPC, on account of danger of absconding, without elaborating further on that issue. 7 . On 14 December 2009, the Serious Crimes Appeal Court (SC Appeal Court) upheld the FISC’s decision. It held that the evidence showed that there existed a reasonable suspicion that the applicant had committed the crime of abuse of office. Moreover, even though the applicant had known of E.Xh.’s and ’s criminal acts, he had agreed to assist them. The applicant’s appeal was dismissed by the Supreme Court on 11 January 2010. On 18 February 2010, the applicant lodged a constitutional complaint with the Constitutional Court. The complaint was dismissed on 17 June 2010 on the ground that it did not fall within the Constitutional Court’s jurisdiction. 9 . The applicant’s further requests of 1 March and 24 December 2010, and 20 March 2012 that his pre-trial detention be lifted or substituted by other measures were dismissed by the domestic courts on the ground that the conditions on which the pre-trial detention had been ordered had not changed. The applicant’s references to the passage of time and completion of the investigation were not addressed by the domestic courts. Proceedings before the District Court 10 . On 17 December 2012 the case against the applicant was transferred to the Durrës District Court (hereinafter the “District Court”) which on 24 December 2012 extended the applicant’s detention on remand until the trial of the case. The District Court took into account, inter alia , the delays in proceedings caused by the applicant’s co-defendant and concluded that the applicant’s pre-trial detention had been justified and permissible under the legislation, even if it formally exceeded the statutory time-limits. On 6 February 2013 the District Court found the applicant guilty as charged and sentenced him to four years and eight months’ imprisonment. Since the time spent in pre-trial detention, as calculated under the applicable ratio of one and a half days, exceeded his sentence, the court ordered the applicant’s immediate release. The applicant was further banned from holding public office for a period of three years. The applicant did not appeal his conviction. Media coverage and Prime Minister’s statement In 2009 and 2010 several articles were published referring to the case against the applicant in harsh terms. 13 . On 25 January 2010 the Ministry of Interior’s Official Bulletin cited a statement of the Prime Minister in which he criticised corruption within the police, referred to the applicant as a person who had assisted the killers of four police officers in Durrës and called him a criminal. The applicant has not raised this matter in any domestic proceedings.

9

The cases concern the disruption of Jehovah’s Witnesses religious meetings. The applicants are Jehovah’s Witnesses who organised or participated in religious assemblies held on the premises – buildings or plots of land – which they owned or rented specifically for that purpose, whether in their own name or on behalf of the Administrative Centre of Jehovah’s Witnesses in Russia, a national organisation of Russian Jehovah’s Witnesses. In all cases, the religious assemblies were disrupted by the police who arrived at the premises during the events. In some cases, the police disrupted the religious meetings on the basis that the meetings were conducted without prior notification. The police ordered the meetings to stop or stayed on the premises to take photos and make video recording of the events, checked the documents and questioned the organisers and participants. The applicants in applications nos. 19428/11 and 73036/11 were found liable for breaching the established procedure for conducting public events, an offence under Article 2(1) of the Code of Administrative Offences. They had allegedly failed to notify the authorities of a religious event being held on the premises which were not specifically allocated for holding religious events. 3 . In other cases, the police disrupted the religious assemblies in order to search the premises where they were being held. The searches had been ordered in the framework of criminal proceedings against unidentified individuals suspected of involvement in extremist activities. The warrants did not explain why the prayer halls were to be searched and stated that “evidence relevant to the criminal case” might be found there. In the case of Mr Khilyuta and eight other applicants from Dubna, the police searched the premises allegedly because they had received information about missing persons or fugitives from justice who could be present among the attendees. When the police arrived to carry out the searches, the applicants unsuccessfully pleaded with them to postpone the search until after the end of the religious services. During the searches the police seized the religious literature belonging to the applicants and checked their identity documents. The searches lasted for several hours. According to the applicants in applications nos. 44363/11, 78114/11 and 5571/12 the police were violent against some of the applicants and kept them on the premises throughout the night. All applicants complained to the domestic courts about the insufficient grounds and intrusive nature of the searches. The courts dismissed the complaints, finding that the searches were conducted in accordance with the applicable requirements of domestic law (see Appendix I for the dates of final decisions). Relying on Articles 9 and 11, taken alone and in conjunction with Article 14 of the Convention, the applicants complained that the disruption of their religious meetings by the authorities, the investigative measures, and the administrative convictions had had no basis in the Russian law and had not been necessary in a democratic society. Some of the applicants also referred to Articles 3, 8 and 10 of the Convention.

P7-2, 11, 6, 6, 5

In the beginning of March 2017 Mr Aleksey Navalnyy, a political activist and popular blogger, released a film on YouTube alleging that a high ‑ ranking State official had used charities and shell companies to amass a collection of luxuries. The video has been watched nearly twelve million times by the end of March. Following Mr Navalnyy’s call, on Sunday 26 March 2017 thousands of people took the streets in more than eighty Russian cities protesting against corruption, lawlessness and inequality. Hundreds of protesters were arrested at peaceful rallies and later convicted of administrative offences for breach of rules on public events. Application n o . 25809/17 On 14 March 2017 Mr Navalnyy notified the Moscow Government about his intention to hold a march and a gathering in the centre of Moscow on 26 March 2017 to call for investigation of corruption by state officials. On 16 March the Regional Security and Anti-Corruption Department of Moscow (“the Department”) informed Mr Navalnyy that the march was likely to disrupt traffic and breach the rights of others. On 22 March the Department suggested to Mr Navalnyy that he hold his public events either in Sokolniki park or in Lublino district, both located quite far from the centre of Moscow. Mr Navalnyy refused to accept these proposals; on his YouTube channel he called on people to join the march on 26 March 2017 in Tverskaya street by exiting any of the five metro stations located along that street and walking at any direction. He also promised to those who would be arrested at the march to assist in preparing an application to the Court. The Department, being aware of the call, asked the police to deploy additional forces to secure safety and public order in the city centre. On 26 March 2017 Mr Navalnyy arrived in Tverskaya street to take part in the march. He was walking down the street with other participants when at 28 p.he was apprehended by the police and placed in a police bus. At 31 p.Mr Navalnyy was administratively arrested at the Konkovo police station of Moscow; he stayed there until 45 a.of the next day when he was taken to the court. On 27 March 2017 the Tverskoy District Court of Moscow found Mr Navalnyy guilty of organising and holding an unauthorised public event with about 4,000 participants, which caused disruption of movement of pedestrians and traffic (an offence punishable under Article 2 § 1 of the Code of Administrative Offence (“CAO”)). He was sentenced to a fine of 20,000 Russian roubles (RUB). Having announced the judgment in this case, the court informed Mr Navalnyy that he was also accused of failure to obey a lawful order of a police officer during his arrest and that this case would be examined right away. Mr Navalnyy’s requests to adjourn the hearing and provide him with adequate time to prepare for the trial, to question the eyewitnesses of his arrest and two police officers who had drawn up the reports depicting the events of 26 March 2017 were dismissed. Mr Navalnyy was found guilty of breach of Article 3 § 1 of CAO and sentenced to 15 days’ administrative detention. On 30 March 2017 the Moscow City Court dismissed Mr Navalnyy’s appeal. It refused to question the eyewitnesses of his arrest and disallowed his questions to the police officers during their examination. OTHER Applications The applicants were administratively prosecuted and sentenced to administrative detention or fined for participation in the unauthorised march in Moscow on 26 March 2017. The relevant facts and complaints are set out in the Appendix.

5, 3

The case concerns removal of the applicant to <COUNTRY>, in breach of an interim measure issued by the Court, and the conditions and lawfulness of the applicant’s detention pending removal. Articles 3, 5 and 34 of the Convention are, principally, invoked. 2 . The present case is brought by a national of <COUNTRY> (see Appendix for factual details). The applicant was charged in absentia with a crime of membership of an extremist organisation by the Tajik authorities and then his administrative removal was ordered by the Russian authorities. On 28 September 2018 an interim measure was indicated by the Court preventing his administrative removal to <COUNTRY>. The applicant was detained in Russia in pre-trial detention facilities and in a temporary detention centre for foreigners and alleged that the conditions of such detention had been inhuman. In September 2020 the applicant was allegedly removed to <COUNTRY>, despite the application of the interim measure. According to this subsequent information, the applicant was ill-treated upon arrival to <COUNTRY> and later sentenced to a lengthy prison sentence. The applicant and his lawyer submitted written statements providing details of the applicant’s transfer to <COUNTRY>. No investigation was carried out into the applicant’s alleged abduction.

Tajikistan

10

These applications concern civil defamation proceedings brought by public figures against the applicants, who complain under Article 10 of the Convention. The applicant companies were the publishers of two national newspapers: Novaya Gazeta and Vedomosti . Mr Litinskiy, Ms Tagayeva and Mr Kharatyan are journalists. The common facts of the applications, as submitted by the parties, may be summarised as follows. Specific details as regards each application appear in Appendix II below. The applicants wrote or published two articles. Public figures mentioned in the publications considered that certain statements in the articles had tarnished their honour, dignity, reputation, and business reputation and brought civil defamation claims before the domestic courts. 3 . The domestic courts in each set of defamation proceedings found for the claimant or claimants and ordered a retraction of the impugned statements. In application no. 35023/13, the domestic courts awarded compensation of non-pecuniary damage to one of the claimants. In application no. 25657/15, they ordered to remove the impugned article from the Vedomosti website (see Appendix II for details). When examining the defamation claims, the domestic courts limited themselves to establishing three elements: (i) whether the defendants had disseminated impugned statements; (ii) whether the statements had been of tarnishing nature; and (iii) whether the defendants had proved the truthfulness of the statements.

10

The case concern two sets of civil defamation proceedings against a publisher of a newspaper, Novaya Gazeta , and the journalists writing for it, in which the domestic courts found for the claimants – the CEO of Rosneft, a Russian State-owned oil exporter corporation, and the Federal Security Service. Application n o . 83662/17, Novaya Gazeta and Anin On 1 August 2016 the Novaya Gazeta newspaper published an article entitled “The secret of ‘Princess Olga’” (“the article”) authored by Mr Anin. In it, the journalist analysed Instagram posts by Ms O.S., the then spouse of Mr Igor Sechin, the CEO of Rosneft, the major State ‑ owned oil corporation, and publicly available sailing routes of the “St. Princess Olga” megayacht. Pointing to six overlaps in terms of the yacht’s location and geotags of Ms O.S.’s Instagram posts that had occurred over the course of three years, as well as to the resemblance of the publicly available images of the yacht to the photos posted by Ms O.S., the article suggested that Ms O.S. had vacationed several times on that yacht which was owned by a company registered in the <COUNTRY>. The article did not contain claims to the effect that the yacht was owned by Mr Igor Sechin or by Ms O.S. Prior to publication, the newspaper had sought comment from Mr Sechin asking whether the yacht had belonged to him or his spouse. In response, the press office of Rosneft had sent a letter refusing to provide information and expressing regret that the request for information had formed part of a targeted smear campaign against the corporation and its head. An extract from that letter was published in the article. Mr Igor Sechin brought defamation proceedings against the editorial board of the newspaper and Mr Anin. On 10 October 2016 the Basmannyy District Court of Moscow (“the District Court”) found that the defendants had tarnished Mr Sechin’s honour, dignity and business reputation and ordered the applicant company to publish a retraction. The Moscow City Court (“the City Court”) upheld the judgment on 30 November 2016. The applicants published a court-ordered retraction. Their cassation appeals were unsuccessful. Application n o . 46808/20, Novaya Gazeta and Zhilin On 28 January 2019 the Novaya Gazeta newspaper published an article entitled “Khusnidin must confess he blew up a house” (“the article”) authored by Mr Zhilin. It was an interview with the wife of Mr Khusnidin Z., a Kyrgyzstani national arrested on 25 January 2019, in which the interviewee voiced her husband’s allegations that he had been severely ill-treated by officers of the Federal Security Service of Russia (the FSB), while detained on the premises of a local police station. The ill ‑ treatment had been administered with a view to extracting a confession related to a terror attack – the explosion of a block of flats in Magnitogorsk. On 29 January 2019 the newspaper’s website published a news item by Mr Zhilin, “The prosecutor’s office: the migrant who had alleged torture in the hands of the Magnitogorsk police withdrew his allegations. But he had been talking about torture in [the hands of the] FSB” (“the news item”). A follow ‑ up to the interview, it reported on the phone conversation between Mr Zhilin and the interviewee that had taken place after the publication of the article. On 11 March 2019 the FSB brought civil defamation proceedings against the applicant company and Mr Zhilin seeking a retraction and deletion of the impugned publications from the website. The defendants presented records of the interview and the phone conversation as well as a copy of the statement given to their counsel by Mr Khusnidin Z. and his wife detailing the alleged ill ‑ treatment by officers of the FSB. On 26 April 2019 the District Court found that the impugned publications had tarnished the business reputation of the FSB and ordered the applicant company to publish a retraction and to delete the impugned article from the newspaper’s website. The fact that the statements had emanated from a third person was considered irrelevant. The City Court upheld the judgment on appeal on 10 July 2019. The applicants deleted the impugned publications from the website and published a court-ordered retraction. Their cassation appeals at two levels were unsuccessful. Common elements of applications n os . 83662/17 and 46808/20 The District and City Courts, finding for the claimants, limited themselves to establishing three elements: (i) whether the defendants had disseminated impugned statements; (ii) whether the statements had been of tarnishing nature; and (iii) whether the statements had been untruthful. They found it established that the defendants had disseminated impugned statements of tarnishing nature and had not furnished proof to their truthfulness, without considering the role of the press in a democratic society or attempting to balance the competing interests.

Cayman Islands

6

The case concerns the alleged breach of the applicant’s right of access to court under Article 6 § 1 of the Convention on account of the domestic courts’ refusal to examine her employment claim against a foreign embassy on the grounds of state immunity. The facts Between 2012 and 2014 the applicant was employed as a secretary at the Embassy of <COUNTRY> in Tirana. Under the employment contract the applicant’s position was referred to as “secretary” and “administrative officer”. The contract did not include a specific job description. In practice, she also acted as a translator for the embassy. 3 . The contract provided that, should any dispute arise between the parties, it: “shall be referred to the competent judicial authority without prejudice to the privileges and diplomatic immunities of the mission.” In November 2014 the embassy terminated her employment on grounds of breach of confidentiality and discipline. The applicant brought a claim for unlawful termination before the Albanian courts. Domestic proceedings The first set On 13 February 2015 the Tirana District Court gave an interlocutory decision rejecting the embassy’s inadmissibility plea based on State immunity and declaring that it had jurisdiction to hear the claim. The court noted that the dispute did not concern a public action (“ acta iure imperii ”) but rather a private action (“ iure acta gestionis ”) which was not connected to the foreign State’s sovereignty. The court added that to decline jurisdiction would amount to a violation of the applicant’s right of access to court under Article 6 § 1 of the Convention. 6 . The Qatari Embassy lodged an appeal with the Supreme Court arguing, essentially, that under the 1961 Vienna Convention on Diplomatic Relations (“Vienna Convention”) their immunity should have been upheld. They added that the applicant’s duties were related to the mission of the embassy. They also stated that the employment contract was silent on which judicial authority was competent to hear the claim; therefore the applicant was under an obligation to negotiate with the embassy as to whether the claim would be reviewed by the Albanian or the Qatari courts. On 8 April 2015 the Supreme Court overturned the lower court’s decision and ruled that the action was inadmissible on account of State immunity. The court found that in the employment contract the parties had not determined the competent court to hear any dispute. Furthermore, the Supreme Court relied on domestic law and the Vienna Convention to conclude that there was no reason to rule out the foreign State’s immunity. 8 . Following a constitutional appeal by the applicant, on 15 March 2016 the Constitutional Court quashed the Supreme Court’s decision and returned the case for retrial before that court. The Constitutional Court found that the Supreme Court had failed to take into account the evolution of the case-law of the European Court of Human Rights which pointed to a limitation of State immunity in connection with employment disputes. In the same vein, the Supreme Court had failed to ascertain whether the specific duties of the applicant within the embassy involved the exercise of merely administrative duties or contributed to the fulfilment of sovereign objectives of the represented State. The Constitutional Court therefore instructed the Supreme Court to clarify these matters and to determine whether any of the exceptions provided for under Article 11 § 2 of the 2004 United Nations Convention on Jurisdictional Immunities of States and their Property (“2004 UN Convention”) were applicable to the case. Lastly, the Constitutional Court instructed the Supreme Court to address the foreign State’s plea that the applicant had had access to “a number of confidential documents” which she had translated for the embassy. The second set 10 . In her subsequent submissions before the Supreme Court the applicant stated that she had been only a secretary rather than consular staff and that all she had translated for the embassy were articles from the Albanian press. 11 . On 29 June 2016 the Supreme Court acknowledged that there had been a general trend in limiting States’ immunity in connection to employment disputes as illustrated by the Court’s judgments in Cudak <COUNTRY> ([GC], no. 15869/02, §§ 54-59, ECHR 2010) and Sabeh El Leil <COUNTRY> ([GC], no. 34869/05, §§ 46-54, 29 June 2011). However, relying on Article 39 of the Code of Civil Procedure (“CCP”) and Articles 31 § 1 and Article 32 of the Vienna Convention (see paragraphs 15-16 below), it found that the defendant had not waived their immunity and ruled once again that the action was inadmissible. As regards the 2004 UN Convention, which it considered to be applicable to <COUNTRY> as customary international law, it found that: “[...] the present case falls under the second paragraph of article 11 [of the 2004 UN Convention] since [...] the employment contract under review is part of the sphere of actions connected directly to the fulfilment of the diplomatic mission or function under the Vienna Convention but also within the meaning of Article 11/2/a/d [ sic ] of the United Nations Convention on Jurisdictional Immunities of States and their Property (exceptions). [...] since the plaintiff was employed as a translator and secretary to the Ambassador of the State of <COUNTRY>, her activity was connected to the sovereignty of the foreign state. The tasks of the plaintiff were connected directly to the activity of the diplomatic representation of the foreign State, therefore the sovereign immunity of the foreign State justifies the limitation of the plaintiff’s right of access to court. The Civil Bench of the Supreme Court takes also into account the specific tasks performed by the plaintiff. By reference to the parties’ submissions, it emerges that the plaintiff had access to certain documents which she translated and forwarded directly to the representatives of the state of <COUNTRY>, that is, she had access to confidential sensitive materials that were directly related to sovereign interests of the state of <COUNTRY>. On the other hand, the plaintiff failed to submit before the court that the materials translated by her were not confidential. ... Accordingly, the duties of the plaintiff related to matters of confidentiality... The plaintiff’s activity cannot be classified as simple administrative activity.” 12 . Moreover, by reference to the employment contract (see paragraph 3 above), the court found that: “the defendant never intended to waive their privileges and immunity ... From the interpretation of this contractual provision, it transpires that the parties never intended to submit the resolution of their disputes to Albanian courts, since (i) the dispute arises from labour relations; (ii) the defendant is an entity enjoying diplomatic immunity ...; (iii) the defendant has not waived their immunity so that the dispute could be heard by the Albanian courts.” 13 . On 21 December 2016 the Constitutional Court, by a majority of five to three, dismissed the applicant’s constitutional appeal as inadmissible, finding that the Supreme Court had duly reasoned its decision. 14 . Two judges appended a joint dissenting opinion stating that the court should have analysed the case under the “access to court” angle rather than the “lack of reasons”. They also maintained that the Supreme Court had not taken into account sufficiently the Court’s case-law which went in the direction of limiting state immunity. They concluded that in view of the prima facie issues disclosed, the case should have been declared admissible. RELEVANT domestic law 15 . Article 39 of the CCP reads: Article 39 “Members of consular and diplomatic missions residing in the Republic of <COUNTRY> are not subject to the jurisdiction of Albanian courts unless: a) they voluntarily agree [to that jurisdiction]; b) the conditions and terms provided by the Vienna Convention on Diplomatic Relations [for the lifting of immunity] are satisfied.” RELEVANT INTERNATIONAL LAW The 1961 Vienna Convention on Diplomatic Relations 16 . Article 31 § 1 and Article 32 of the Convention, in force in <COUNTRY> as of 8 February 1988, read: Article 31 “A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction ... ... Article 32 The immunity from jurisdiction of diplomatic agents and of persons enjoying immunity under article 37 may be waived by the sending State. ...” The 2004 United Nations Convention on Jurisdictional Immunities of States and their Property In December 2004 the United Nations General Assembly adopted the Convention on Jurisdictional Immunities of States and their Property. It was opened for signature on 17 January 2005 and has not yet entered into force. Article 11 of the Convention reads as follows: Article 11 – Contracts of employment “Unless otherwise agreed between the States concerned, a State cannot invoke immunity from jurisdiction before a court of another State which is otherwise competent in a proceeding which relates to a contract of employment between the State and an individual for work performed or to be performed, in whole or in part, in the territory of that other State. Paragraph 1 does not apply if: (a) the employee has been recruited to perform particular functions in the exercise of governmental authority; ... (d) the subject matter of the proceeding is the dismissal or termination of employment of an individual and, as determined by the head of State, the head of government or the Minister for Foreign Affairs of the employer State, such a proceeding would interfere with the security interests of that State; ...”

Qatar, Lithuania, France, Albania

10

The case concerns the wholesale blocking of access to a new website of an online media on the grounds that its content “mirrored” the proscribed content on its former website. The applicant company is the owner of online magazine Ezhednevnyy Zhurnal at www.ej.ru. Since 2004 it has been publishing research and analysis by political scientists, economists and journalists, many of whom have been critical of the Russian authorities. On 13 March 2014 the Prosecutor General requested the telecoms regulator Roskomnadzor to block access to the applicant company’s website and its “mirrors” once they were identified (for more details, see OOO Flavus and Others Russia , nos. 12468/15 and 2 others, §§ 5-10, 23 June 2020). In 2015 the applicant company created a new website at www.ej2015.ru. The content of the original website had not been moved to the new website. On 29 November 2017 the applicant company found out that access to the new website had been blocked. Roskomnadzor informed its web hosting service provider that access to the website www.ej2015.ru had been restricted on the basis of the Prosecutor General’s blocking request of 13 March 2014 as the new website was a “mirror” of the original one and contained “calls for extremist activities”. As the URL addresses of pages containing offending material were not specified, the applicant company asked Roskomnadzor to identify web pages containing “calls for extremist activities”. On 11 December 2017 Roskomnadzor replied that they had detected content on the new website which was “identical” to the content of the old website and fell within the scope of the Prosecutor General’s blocking request of 13 March 2014. No details as to the nature or location of the offending content were given. The applicant company complained to a court. On 15 May 2018 the Taganskiy District Court in Moscow dismissed the complaint. It declined to assess the legal basis for the Prosecutor General’s blocking request on the grounds that it had previously upheld that request as being lawful (see the judgment of 29 August 2014 in OOO Flavus and Others , cited above, § 9). On the argument that the 2014 blocking request had not included the new website, the court replied that the law did not require the Prosecutor General to reference all websites to which access had to be restricted. The court refused to examine the content of the new website, holding that Roskomnadzor’s assertion that the offending content was present on it was sufficient evidence of its existence. It also held that Roskomnadzor was not required to identify specific web pages containing offending content. On 4 September 2018 the Moscow City Court dismissed the applicant company’s appeal, endorsing the position of the District Court. It stated that “a lack of the statutory definition of the term ‘mirror website’ does not render the Prosecutor General’s blocking request unlawful, since [the applicant company] had set up a copy of the website www.ej.ru with a new domain name ... The fact that the ‘mirror website’ is owned by [the applicant company] is apparent from its application to a court”. On 11 February and 18 April 2019 the Moscow City Court and the Supreme Court of Russia, respectively, refused the applicant company leave to appeal to a cassation instance.

13

The applications concern the non-enforcement of judgments in the applicant companies’ favour issued against a State unitary enterprise (for the legal status of unitary enterprises, see Liseytseva and Maslov Russia , nos. 39483/05 and 40527/10, §§ 54-127, 9 October 2014). The applicant companies concluded sub-contract agreements with the Federal State Unitary Enterprise “Department of Special Construction Works no. 42 of the Federal Special Construction Agency” (“the FGUP”) for reconstruction and clean-up of debris in Grozny, devastated during the hostilities in Chechnya. 3 . The FGUP was set up in 2006 by the Russian Government as a part of the Federal Special Construction Agency («Спецстрой», “the FSCA”) for construction of social, cultural and household objects. The assets allocated to its economic control were federal property. Its activities were financed from the federal budget. It was assigned with the task of clean-up and reconstruction in and around Grozny. 4 . The works were commissioned by the Government of Chechnya. The FGUP was the principal contractor. Treasury Enterprise “Directorate for Construction and Recovery Works of the Chechen Republic” acted as a client. The works were paid by the Chechen Republic and financed by the State capital investments. The client was liable to pay the FGUP for the works performed “within the limits of funds allocated for 2007”, and the FGUP (under the sub-contract agreements) undertook to pay for the applicant companies’ work within the limit of funds received from the “financing organisations”. The applicant companies performed the works but the FGUP did not pay for them in full. 6 . In October 2007 the Government of Russia transferred the entirety of the FGUP’s assets to the ownership of the Chechen Republic. The enterprise was renamed “State Unitary Enterprise Spetsstroy of the Ministry of Construction of the Chechen Republic” (“GUP Spetsstroy”, or “the debtor GUP”). GUP Spetsstroy was the legal successor of the FGUP and accepted 1,556 million Russian roubles (RUB) of the latter’s debts towards its creditors. At the time of the transfer, the Government of Chechnya owed a debt in the amount of RUB 1,891 million towards GUP Spetsstroy for works performed in 2006-2007. It appears that in August 2008 the FSCA suggested that the latter amount be allocated from the federal budget in the form of a targeted transfer for the settlement of the debt. No follow-up information was submitted by the parties. In 2009 domestic courts awarded the applicant companies the amounts specified in the Appendix in respect of the unpaid debts and interest against GUP Spetsstroy (the legal successor of the FGUP). The debtor GUP did not comply with the judgments, for the lack of funds. 8 . In late 2010 the bailiffs issued an attachment order in respect of the debtor’s banking account and in 2011 seized five buildings under the GUP’s economic control. The Ministry of Construction of Chechnya objected to the seizure, referring to the debtor GUP’s strategic importance for the region and to the risk that the seizure would paralyse the GUP’s activity and impair the reconstruction. 9 . In response to the applicants’ complaints, a prosecutor’s office issued several warnings in connection with the bailiffs’ failure to open the enforcement proceedings, to assess the debtor’s assets and to seize the buildings in good time. 10 . In 2009-11 the Government of the Chechen Republic (i) re-organised the debtor GUP transferring it to the republican Department of Construction; and (ii) transferred a healthcare centre building from the debtor GUP under the economic control of another unitary enterprise. 11 . In 2012 a supervision procedure was put in place, and since 2013 insolvency proceedings have been pending in respect of the debtor GUP. By that time, the aggregate amount of the GUP’s debt towards its creditors was approximately RUB 2,341 million (including RUB 1,946 million towards the third-line creditors), whilst the aggregate balance-sheet value of its assets was RUB 48 million. The applicant companies’ claims were included in the third and fourth lines of the creditors’ claims. According to an undated extract from the GUP’s financial analysis, by 2012 the debtor GUP had had no assets unencumbered by liabilities; for years it had been accumulating debts with no attempt to settle them; and its loss of solvability had been to an important extent caused by its dependence on budgetary funding. 12 . Throughout the proceedings insolvency managers on several occasions informed the creditors that the debtor GUP had lacked assets to meet their claims. In 2017 a commercial court granted the GUP’s insolvency manager’s request in unrelated proceedings to adjourn payment of a court fee in the amount of RUB 3,000, as the debtor company lacked funds on its current account. The debtor GUP sued the republican authorities for arrears in payment for the works performed. In 2016 its claims were rejected by courts, as lodged outside the limitation period. The first applicant company brought subsidiary liability proceedings against the owner of the debtor GUP’s assets. The claims were rejected as belated, and as the claimant had failed to demonstrate that the insolvency had been caused by the authorities’ actions. On 27 April 2016 the Supreme Court of Russia rejected the first applicant company’s claim for damages against the bailiffs, as the defects identified by the prosecutor’s office had been made good, had not resulted in a loss of assets, and therefore a causal link between the bailiffs’ actions and the losses claimed had not been established. 16 . On 22 November 2021 a first-instance court discontinued the insolvency proceedings, as the insolvency manager had resigned and a new one had not been appointed for more than six months. The applicant companies complained under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 thereto about the non ‑ enforcement of the judgments by the debtor company and about the State’s failure to assist the applicants in obtaining execution of the awards.

8

The application concerns complaints, under Article 8 of the Convention, related to the decision-making process and the length of judicial proceedings for the immediate return of the applicant’s child to the country of his habitual residence. In 2014 the applicant married a Bulgarian national, G.O. Their son, , was born in December 2014 in the <COUNTRY>, where the family lived until their relocation to <COUNTRY> in 2017. In July 2019, while on holiday with in <COUNTRY>, G.O. informed the applicant that she and would not return to <COUNTRY>. 4 . On 25 July 2019 the applicant sought the child’s return under the Hague Convention on the Civil Aspects of International Child Abduction (”the Hague Convention”). The Bulgarian Ministry of Justice, acting as Central Authority under the Hague Convention, received the request from the Swiss Central Authority on 5 August 2019 and instituted proceedings before the Sofia City Court (“the SCC”) on 5 November 2019. 5 . A psychological expert report found that separating from either his mother or father would have strong traumatic consequences for him. On 1 July 2020 the SCC ordered ’s return to <COUNTRY>. 6 . In a final judgment of 20 April 2021 the Sofia Court of Appeal (“SCA”) quashed the SCC’s decision and rejected the applicant’s request. It observed that had established a close emotional connection with the applicant and, if the child remained to live in <COUNTRY> without his father, that would be traumatic for him. However, ’s return to <COUNTRY> without his mother would endanger his physical and psychological development, a valid exception to return under Article 13 (b) of the Hague Convention. If separated from G.O., might develop anxiety which could in turn translate into him becoming aggressive to other children and they aggressive to him in return. The effects of a separation from the mother and the need for to learn a new language [German], if returned to <COUNTRY>, could lead to difficulties with his education. had been adapting better to life in <COUNTRY> than he had to life in <COUNTRY>. In <COUNTRY> he was daily attending kindergarten and extracurricular activities, while in <COUNTRY> he had only gone to day-care twice a week. 8 . G.O. had felt oppressed and lacking in confidence in <COUNTRY>, and her emotional state inevitably affected that of the child. G.O.’s own physical and psychological wellbeing had improved during her stay in <COUNTRY>. The existing conflict between the parents had negatively affected ’s emotional state and his ability to adapt to the environment in <COUNTRY>. The risks held by ongoing criminal proceedings against G.O. in <COUNTRY> were further obstacles to her and the child’s return. On 7 October 2021 the Troyan District Court, ruling on interim measures, attributed custody rights to G.O. until conclusion of the divorce proceedings. On 24 March 2022 that court dissolved the marriage and gave custody rights to G.O. and contact rights to the applicant. The case is currently pending before the Lovech Regional Court on appeal by the applicant.

Bulgaria, Switzerland, United Kingdom

11

The case concerns the dissolution of the applicant organisation, a public association registered in 2001 in the Kemerovo region and eventually becoming “the all-Russia charitable public organisation ‘Preobrazheniye Rossii’” (charter amendments registered in 2008) carrying out its activities in 65 regions of the country. The second applicant was its vice president, and the third applicant was a member of its management board. Its objectives included providing support to disadvantaged individuals, such as drug and alcohol addicts, ex-convicts and the homeless, by their voluntary involvement in cultural, educational and labour activities, rehabilitation and social adaptation. In particular, it organised charitable events and created so called “rehabilitation centres” in which people in need could stay free of charge. During their stay people worked to provide cleaning and loading services to third parties, from which the applicant organisation financed itself. On 8 April 2010 the Ministry of Justice, after carrying out a review of the organisation activities from February 2007 to February 2010, issued a warning inviting it to rectify certain breaches of law before 20 May 2010. On 15 September 2010, considering that the warning had not been complied with, the Ministry instructed the organisation to do so by 10 November 2010. On 15 November 2010 the Ministry suspended the organisation’s activities until 20 March 2011. 3 . On 22 November 2010 the organisation submitted documents to the Ministry aimed to show that it had rectified some of the breaches. It argued that the remaining requirements had not been based on law. No reply followed. On 15 March 2011 it made repeated submissions which were also left unanswered. It unsuccessfully appealed against the suspension order (the Supreme Court’s judgment of 6 April 2011, as upheld by the Cassation Panel of the Supreme Court on 7 June 2011). On 23 March 2011 the Ministry applied to the Supreme Court seeking dissolution of the organisation on the grounds that it had failed to comply with the warning and instruction, and that it had organised events in breach of the decision suspending its activities. The organisation (represented by the second applicant) disputed the Ministry’s arguments noting that the alleged violations had either been rectified or not based on law, and that they in any event could not be considered serious enough to justify its dissolution. On 8 June 2011 the Supreme Court granted the Ministry’s request and dissolved the organisation relying on the Public Associations Act. On 16 August 2011 the Cassation Panel of the Supreme Court dismissed the organisation’s appeal and upheld the judgment, stating that the organisation had “repeatedly” and “grossly” violated the national laws (and had not rectified the violations) as follows. Firstly, an unregistered logo resembling the coat of arms of Moscow (depicting St George killing the dragon) had been used on the stamp and letterheads without the Moscow government’s permission. Flyers, photo or video materials featuring the logo had still been disseminated in 2011. On 2 September 2010 the organisation management board decided to stop using the unauthorised logo. On 1 February 2011 the general assembly warned the organisation members that using the logo was unacceptable and would be sanctioned by up to the exclusion from the organisation. On 11 May 2011 the general assembly approved a modified logo which was submitted to the Ministry for registration. On 3 June 2011 the Ministry refused to register the modified logo for failure to comply with formal requirements. The organisation argued that all instances of using the unauthorised logo had been established by the court solely on the basis of submissions of the Ministry or its regional offices and were unproven. In any event, they concerned only nine out of 65 regions in which it operated and had been committed in violation of the decisions taken by the organisation. Secondly, membership records, charity programs and details of their financing had not been submitted to the Ministry. On 1 August 2010 the general assembly confirmed the list of the members of the organisation, based on previous applications for membership and membership records kept by the management board. The record of the general assembly was submitted to the Ministry in 2010. In May 2011 the Ministry received two lists of the organisation members, as of 1 August 2008 and 11 May 2011, and records of the management board meetings on the admission and exclusion of members. In 2007 the organisation submitted to the Ministry its program for 2007 ‑ 11 with an estimate of incoming resources and expenditure. In 2010 it reported actual resources and expenditure in 2009. In May 2011 it submitted more detailed information concerning the expenditure. The court stated that the record of the general assembly of 1 August 2010 did not contain the list of those present and that, under the charter, the management board (and not the general assembly) was responsible for admitting new members. The charity program for 2007-11 did not contain an estimate of expenditure and the additional document submitted in May 2011 had not been approved by the general assembly. Thirdly, commercial activities, such as cleaning and loading services, not commensurate with the aims indicated in the charter had been conducted, and “social services” for helping disadvantaged individuals had been provided without creating special organisations for those purposes. The organisation argued that it had financed itself by rendering cleaning and loading services which people staying in its centres were able to voluntarily perform as part of their rehabilitation. This, as well as helping disadvantaged individuals as part of its charitable activities, were commensurate with the aims set forth in its charter and did not require the creation of separate entities. The mentioning of “social services” had been excluded from the charter. However, on 27 May 2011 the Ministry had refused to register the amendments. Lastly, activities had been carried out despite the suspension order, namely an open call on its website in November 2010 for the best letter in its support to the Minister of Justice, charity event “Feed the Hungry” (distribution of hot meals) in Vladimir on 6 and 13 March 2011 and unspecified events to mark Children’s Day in March 2011. The organisation argued that those activities did not constitute “public events” prohibited in case of the suspension. The applicants complained that the dissolution had breached Article 11 of the Convention.

10

The case concerns the applicant’s criminal conviction on the charges of false denunciation for reporting an alleged abuse of power by a public official. The applicant is a former president of the homeowners’ association in the Ramenki District in Moscow. According to him, his successor in that position Ms S., invoking her friendship with the wife of the Deputy Minister of Interior, had brought pressure on him, causing him to resign. When the homeowners’ assembly voted to oust Ms S. from presidency one year later, she refused to hand over her post to the new president and called the Deputy Minister’s wife for support. Within an hour, a tactical police unit arrived, along with the heads of the city and district departments of the Ministry of Interior and the head of the local police department. On 23 October 2009 the applicant sent a letter to the President of Russia complaining about the Deputy Minister’s misuse of his official position. He submitted that the Deputy Minister had used his powers to assist his wife’s friend in the unlawful takeover of the association by securing the intervention of high-ranking police officials and a tactical police unit. The President’s Administration office referred the applicant’s complaint to the General Prosecutor’s office, which found no evidence of misconduct. The Deputy Minister lodged a criminal complaint against the applicant on the charges of false denunciation. On 16 May 2011 the applicant was convicted and sentenced to a fine; the conviction was upheld on appeal by the Moscow City Court. On 10 August 2012 a judge of the Supreme Court referred the applicant’s case for supervisory review on the grounds that the courts had failed to consider the Deputy Minister’s professional status, the limits of acceptable criticism applicable to him and whether the applicant had overstepped them. On 7 September 2012 the Presidium of the Moscow City Court dismissed the request for the supervisory review. Following another request for supervisory review, on 17 June 2013 the Supreme Court quashed the courts’ judgments and remitted the case for a new examination. It found that the applicant might have had cause to believe that his complaint had a valid factual basis and the courts had failed to substantiate their finding that the applicant had intended to falsely accuse the Deputy Minister. On 21 November 2013 the Moscow City Court found the applicant guilty and sentenced him to a fine, but relieved him from criminal liability by applying the statute of limitations. The applicant complained, relying on Article 10 of the Convention, that his conviction for reporting the irregularities in the conduct of a public official violated his right to impart information.

6

The case concerns the alleged violation of the applicant company’s right of access to the Constitutional Court, lack of impartiality of the Appeal Court, and lack of reasoning of the Supreme Court’s decision, under Article 6 § 1 of the Convention. In 2006 a private party started construction on a plot of land claimed by the applicant company. In 2007 the applicant company lodged a civil claim seeking protection of its alleged property rights and an injunction against any further construction on its land, relying on Article 303 of the Civil Code. On 4 December 2007, the Tirana District Court (the District Court) granted immediate injunction ( masa e sigurimit të padisë ), halting the construction. That decision was upheld by the Appeal Court on 20 June 2008 and by the Supreme Court on 26 February 2009. After an enforcement order had been issued the applicant company, initiated enforcement proceedings. On 14 May 2008 the District Court dismissed the opposing side’s civil action brought against the applicant company and seeking that the enforcement proceedings be terminated. On 29 September 2008 the District Court dismissed the applicant company’s claim and lifted the injunction, holding that it was not the owner of the land at issue and that it therefore lacked locus standi. The District Court also held that the applicant company’s civil action was time-barred since it had been lodged out of the one-year time limit, provided in Article 303 of the Civil Code. On 11 November 2009 the Court of Appeal, composed of three judges, accepted the opponent’s action concerning the enforcement proceedings and terminated them. It relied, inter alia , on the decision of 29 September 2008 which had rejected the applicant company’s action on the merits and had lifted the injunction. 5 . On 5 February 2010 the Court of Appeal, composed of the same three judges who gave the decision of 11 November 2009, upheld the District Court’s decision concerning the applicant company’s civil action. The applicant company did not make a formal request that the three judges withdraw from the case. On 4 March 2010 the applicant company lodged an appeal on points of law with the Supreme Court, complaining that the three judges of the Court of Appeals lacked impartiality because of their previous involvement in the decision of 11 November 2009; that a technical expert should have been appointed by the trial court; that it had been wrongly assessed that the plot of land at issue was not property of the applicant company; that the National Agency of Privatisation should have been invited to take part in the proceedings; and that its opponent had presented a forged document. On 25 March 2011 that appeal was dismissed de plano . On 31 October 2013 the Constitutional Court, in a formation of eight judges, dismissed without prejudice the applicant company’s complaint because its vote was tied. The reasoning was limited to the fact that the court could not reach a majority on any of the issues raised in the case. The applicant company was informed of the possibility, under section 74 of the Constitutional Court Act, to lodge a fresh complaint at a later time. 8 . In 2016, Law No. 99/2016 amended Section 73 § 4 of the Constitutional Court Act no. 8577/2000. Pursuant to these amendments, it is no longer possible to dismiss without prejudice an individual complaint due to a tied vote of the Constitutional Court. In cases in which that court cannot reach a five-member majority on any aspect of a constitutional complaint, which includes tied vote situations, the complaint is dismissed with prejudice in a final and definitive fashion.

6, 6, 6

The present case concerns the applicant’s removal from a criminal trial. The applicant and five other persons were charged with drug trafficking committed as members of an organised group. On 25 March 2015 the trial of the applicant and his co-accused commenced before the Nizhnekamsk Town Court. The applicant was represented by a court-appointed lawyer, , who on 15 April 2015 was replaced by another court-appointed lawyer, S. 4 . At the hearing of 21 April 2015 the trial judge issued a warning to the applicant and his co ‑ accused, F., indicating that they must not speak to each other while the prosecutor was reading the indictment. 5 . At the beginning of the hearing of 28 May 2015 the judge issued a new warning to the applicant and co ‑ accused F. indicating that they could not speak to each other while he was informing one of the witnesses of his procedural rights. The applicant replied that he was not speaking to F. while the judge was reading the indictment bill. The judge then issued a new warning to the applicant because “after having been warned, [the applicant] started bickering with the judge, raising his voice against him”. Later on in the hearing of 28 May 2015, the judge removed one of the co ‑ accused from the courtroom for repeated breaches of order. Immediately after that the judge reminded the applicant and co ‑ accused F. that they had already received three warnings about their conduct at the trial and that after a fourth warning they would be removed from the courtroom. Sometime later during the same hearing, the applicant was given the possibility to comment on the recusal of the judge submitted by one of the co ‑ accused. The applicant stated, inter alia , that the judge’s reminder about his conduct had been unfounded as he had not spoken with his co-accused, F. The relevant part of the minutes of this hearing reads as follows: “The accused Pukhachev uses obscene language, shakes the bars [of the cage]. The presiding judge issues a new warning to the accused Pukhachev about the breach of order in the trial, that is, the use of obscene language, and, pursuant to Article 258 of the Code of Criminal Procedure, decides to remove the accused Pukhachev from the courtroom until the end of the closing arguments (...)” 7 . On 17 August 2015 the applicant himself lodged an appeal against the decision of 28 May 2015. He contested the veracity of the minutes of the hearing of 28 May 2015 in the part concerning the alleged use of obscene language. 8 . On 25 March 2016 the Supreme Court of the Republic of Tatarstan dismissed the applicant’s appeal against the decision of 28 May 2015. It found that the trial judge’s decision to remove the applicant from the courtroom was well-founded. The appeal instance refused to examine the audio recording of the hearing submitted by the applicant, stating that its authenticity could not be verified. 9 . It transpires from the materials submitted by the parties that between 29 May 2015 and 24 May 2016 the trial court held at least forty hearings during which it heard several dozen witnesses and the applicant’s co ‑ accused, as well as examining voluminous documentary evidence. Lawyer S. was present at those hearings. During the applicant’s absence from the trial, lawyer S. did not visit him in the remand prison or contact him in any other way to inform him about the evidence examined during the trial. 10 . On 18 August, 18 November 2015 and 9 February 2016 the applicant took part in the hearings concerning the extension of his pre-trial detention before the trial judge and behaved properly. 11 . On 27 May 2016, the applicant was provided with the 898 pages of minutes of the trial hearings that had taken place before that date. On 6 June 2016 the applicant was returned to the courtroom in order to present his final submissions. On 9 June 2016 the Nizhnekamsk Town Court convicted the applicant as charged and sentenced him to a nineteen-year term of imprisonment. The applicant appealed against this judgment complaining, inter alia , about his removal from the courtroom. On 1 February 2017, the Supreme Court of the Republic of Tatarstan upheld the applicant’s conviction on appeal. It held that the applicant had been duly removed from the courtroom as “he had committed numerous breaches of order in the trial and had ignored the judge’s warnings”. Relying on Article 6 §§ 1 and 3 (c) and (d) of the Convention, the applicant complained about his removal from the courtroom. He also complained that the legal assistance provided by lawyer S. was not effective and that he could not question witnesses for the prosecution because of his absence from the trial.

8

The first applicant lived in Russia since December 2013, when he married the second applicant, with whom he has two minor children. The second applicant and the applicants’ children are Russian nationals. The applicants’ family lived in Perm. On 17 November 2017 the police took the first applicant to the Kirov District Court in Perm as his residence permit in Russia had expired on 28 October 2017. His application for its renewal had been rejected by the authorities on 27 October 2017 as the actual place of the first applicant’s residence in Perm did not match the one he had indicated in his application for the renewal. At the hearing the first applicant stated that his wife, the second applicant, and their two minor children were Russian nationals and that his expulsion from Russia with the automatic five-year re-entry ban would disrupt their family life. On the same date, with reference to the provisions of the Russian Federal Code of Administrative Offences , the court found him guilty of violation of the immigration regulations. It fined him 2,000 roubles (about 30 euros) and ordered his administrative removal from Russia with the five-year re-entry ban. As for the allegations of the disproportionality of the sanction and its disruptive effect on the applicants’ family life, the court limited its examination to the statement “having two minor children in the <COUNTRY> does not provide Mr Rakhmonov with the right of stay [in the country]”. On 28 November 2017 the Perm Regional Court upheld that decision on appeal, having left without examination the arguments of disproportionality of the sanction and its detrimental effect on the applicants’ family life. On 4 December 2017 the first applicant was subjected to removal from Russia. On 28 February 2018 the Perm Regional Court refused further appeal against the removal order.

Russian Federation

11

“Hybrid” public event on 5 May 2018 1 . Mr A. Navalnyy launched a nationwide campaign called “He is not our Tsar” consisting of holding, on 5 May 2018, rallies to protest against the forthcoming inauguration of Mr Putin as the President of the <COUNTRY> after the election on 18 March 2018. Ms P. notified the Cheboksary town administration of her intention to hold a public event in the form of a march and a meeting. The town administration informed Ms P. that the itinerary for the march included areas where public events were not allowed under the regional legislation (see paragraph 6 below). The town administration invited Ms P. to hold a meeting instead of the planned event, and to do it in one of the specially designated areas approved by the regional government in its Decree no. 598 of 26 December 2012, specifically at Sosnovskaya Street next to a church, a local police station and a children’s park. Ms P. replied, indicating her disagreement. According to the applicants, while the venue mentioned by the town administration remained within the town borders, the distance between it and the initially proposed venue amounted to some fifty kilometres, it had a poor transport and public infrastructure which would have been impracticable for the presence of hundreds of participants. Subsequently, the administration’s decision was upheld on judicial review. On 5 May 2018 people assembled into a non-approved rally, albeit in a different manner as compared to the notice lodged by Ms P. At 2 p.at Respublika Square, according to the applicants, the police ordered the demonstrators to cease the meeting, threatening them with use of force. The demonstrators then started to move through the main town streets, walking on the pavements (to avoid disruption of traffic) and were followed by the police. At Chapayev Square they were met by another police squad and dispersed. 3 . According to the authorities, the applicants did not comply with the police order to cease participation in the meeting at Respublika Square. Then, from 30 to 4 p., at Chapayev Square they participated in what the authorities and the courts classified as a “demonstration” under the Public Events Act (see below). They did not comply with the police order to cease participation in that demonstration. At both venues the police made several warnings informing the demonstrators of the unlawful nature of their presence in a public place and required them to cease their unlawful activities. Proceedings against the applicants Mr Raymov On 15 May 2018 the Leninskiy District Court of Cheboksary examined, at two hearings, two separate cases concerning the applicant’s participation in the meeting and the demonstration. In each case he was convicted under Article 2 § 5 of the CAO and was sentenced to fines of 10,000 and 20,000 Russian roubles (RUB; approximately 135 and 270 euros at the time). The applicant appealed, arguing that he had exercised his freedom of peaceful assembly by taking part in one single event. It had been unjustified to prosecute and punish him separately for two parts of the same event. On 5 June 2018 the Supreme Court of the Chuvashiya Republic held appeal hearings in each case and upheld the trial judgments, stating that the applicant had violated section 6 § 3 of the PEA because he had not complied with the orders to disperse that had been given during the meeting and demonstration; and that the applicant had been prosecuted for different facts. 6 . In a separate (third) set of proceedings the applicant was convicted under Article 3 of the CAO in relation to his non-compliance with the order to disperse during the meeting on 5 May 2018. The appeal court set aside that judgment and discontinued the proceedings for lack of corpus delicti, pursuant to a recent resolution by the Plenary Supreme Court of the <COUNTRY> on the application of the lex specialis rule in cases concerning rallies (see Korneyeva Russia , no. 72051/17, §§ 25 and 60, 8 October 2019). Mr Ryabenko 7 . On 9 June 2018 the District Court examined the charges under Article 3 and Article 2 § 5 of the CAO on account of his participation in the meeting on 5 May 2018. The applicant was sentenced to a fine of RUB 10,500. The court took note of the existence of a final decision by which the town administration’s reply to Ms P.’s notice had been upheld on judicial review (see paragraph 1 above); that the applicant had taken part in “a non ‑ notified public event consisting of a meeting, which had then transformed into a demonstration”; and that he had not complied with the repeated orders from the police requiring the termination of that event. The court also stated as follows: “The court takes into account that the event’s organisers had defined its topic as protection of citizen’s rights while the slogans and speeches during the event were in breach of that topic; in substance they amounted to negative assessment of the person who had been elected to the post of the President of the <COUNTRY>, and did not contain an indication of any civic views or deficiencies in the functioning of the State or proposals for improvements.” 8 . In separate proceedings, on 9 June 2018 the District Court convicted the applicant under Article 2 § 5 of the CAO on account of his participation in the demonstration. He was sentenced to up to twenty hours of community work. 9 . On 10 July 2018 the Supreme Court of the Chuvashiya Republic reviewing the judgment described in paragraph 7 above, set aside the conviction under Article 3 of the CAO, upheld the conviction for the offence under Article 2 of the CAO relating to the meeting and reduced the fine to RUB 10,000. On the same date the same judge also examined the applicant’s appeal against the judgment relating to the demonstration (see paragraph 8 above). He upheld it, considering that the applicant had violated section 6 § 3 (1) of the PEA; that the applicant had committed a serious breach of public order and public safety; his actions had entailed consequences consisting of the presence of numerous people on the pavements in the town centre and near buildings hosting public authorities; thereby he had impeded the movement of pedestrians and had “created a real threat” of interfering with the authorities’ functioning and the other people’s rights.

Russian Federation

He is a musician and an artistic producer. A. Background to the case In autumn 2003 the applicant published a book entitled “Backstage” ( Hinter den Kulissen ). A number of passages in the book had to be redacted because of a series of urgent judicial proceedings which had been brought against him. On 27 October 2003 a tobacco company, British American Tobacco (<COUNTRY>) GmbH (“the company”), launched an advertisement showing two packets of Lucky Strike cigarettes in the foreground. There was a lit cigarette on top of one of the packets, with a thick black marker pen leaning against the other packet. The following text appeared at the top of the advertisement in large lettering: “Look, dear Dieter, how easy it is to write super books.” (“ Schau mal, lieber Dieter, so einfach schreibt man super Bücher .”) The words “dear” (“ lieber ”), “easy” (“ einfach ”) and “super” (“ super ”) were blacked out but were still legible. At the bottom of the advertisement was the phrase “Lucky Strike. Nothing else.” (“ Lucky Strike. Sonst nichts. ”) The full-page advertisement was published in the 17 October 2003 issues of the weekly magazine Der Spiegel and the popular national daily newspaper Bild , with a circulation of 42 million and 67 million respectively. It was part of an advertising campaign run by the company for the Lucky Strike brand; the campaign, launched in 1989, ran until September 2004 with more than 500 variants, showing one or more packets of cigarettes with a humorous slogan which often referred to a current event and the individual involved in that event. At the applicant’s request the company gave a written undertaking to refrain from further publication of the advertisement in question with its heading referring to him, but refused to pay him the sum of 70,000 euros (EUR) which he had demanded for a “notional licence” ( fiktive Lizenz ). B. Decisions of the German courts The applicant applied to the Hamburg Regional Court for an order requiring the company to pay him EUR 100,000 for a notional licence. Regional Court judgment On 3 September 2004 the Regional Court allowed the applicant’s application. It first of all noted that the use of the forename Dieter in the impugned advertisement was clearly a reference to the applicant’s name. It further noted that although the forename Dieter was very common and several well-known public figures shared it, the advertisement was obviously referring to the applicant in view of its other component elements. The Regional Court observed that the company’s advertising campaign regularly alluded to current events and the persons involved in them. It noted that there was no indication that at the time the advertisement had been published, another individual also called Dieter, like the applicant, had published a book that had had certain passages censored following court injunctions, or that any other book had prompted as much public debate upon publication as the applicant’s book had. The Regional Court added that the company was entitled to rely on the right to freedom of expression as safeguarded by Article 5 § 1 of the Basic Law (see “Relevant domestic law and practice” below), a right that also extended to commercial advertising provided that its content contributed to shaping public opinion. In the court’s view, that applied to the impugned advertisement, which had commented humorously on the publication of the applicant’s book and had apparently advised him on how to write “super books” by striking through certain passages before publication. Given that the company had in this way called for the contents of a book to be properly checked prior to publication, the advertisement had, in the Regional Court’s view, raised a matter of public interest. The Regional Court then pointed out that both the right to freedom of expression and the right to protection of personality rights were protected under the Basic Law and that, in principle, they deserved equal respect. Where a person was used for advertising purposes without his or her consent, the right to protection of personality rights prevailed as a general rule. As everyone had the right to decide whether or not to allow his or her name to be used for advertising purposes, personality rights protected individuals against the unlawful use by third parties of their names in the context of advertising. Inasmuch as the company had argued that the applicant had himself caused the event to which the advertisement referred, that fact was not capable of depriving the applicant of protection, but it could result in a lesser degree of interference and a higher level of protection of freedom of expression. The Regional Court held that when balancing the competing interests in the case, more weight was to be attached to the protection of the applicant’s personality rights than to the company’s right to freedom of expression. It noted in particular that the advertisement had primarily pursued commercial aims, that is to say increasing the sales of a cigarette brand, and that it had above all been intended to entertain the public, without providing any real contribution to shaping public opinion. Lastly, it noted that neither the content of the advertisement ( Aussagegehalt ) nor the applicant himself had any direct link with the product advertised. It concluded that the applicant was entitled to claim compensation for exploitation of his fame for commercial purposes, having regard, inter alia , to the judicial decisions given in cases concerning a tennis player (Boris Becker) and a politician (Oskar Lafontaine). The Regional Court further held that the damage suffered by the applicant corresponded to what the company and the applicant would reasonably have agreed on as the cost of the licence if a contract had been signed. The purpose of a notional licence was to ensure that anyone using someone else’s personality without permission would not be in a more advantageous position than if he or she had obtained the person’s consent. The Regional Court explained that the cost of such a licence should be freely determined on the basis of all the relevant circumstances, including the following criteria: the person’s fame and brand image ( Imagewert ), the attention attracted by the advertisement, the extent of its distribution and the role assigned to the person in the advertisement. Applying those criteria and taking account of the amounts awarded in similar cases concerning persons as well known as the applicant had been at the time of publication of the advertisement relating to them (see paragraph 14 above), the Regional Court considered it appropriate to award the applicant EUR 100,000. To that end it took into consideration the fact that the advertisement mocking the applicant had taken up a full page in publications such as Der Spiegel magazine, and had been seen by more than six million readers. However, it also had regard to the fact that the advertisement had included neither a picture of the applicant nor his surname, so that a number of people would have been unable to make a connection between the advertisement and the applicant. Judgment of the Court of Appeal On 29 November 2005 the Hamburg Court of Appeal upheld the findings of the Regional Court as to the existence of unlawful interference and the outcome of the balancing exercise between the competing rights, while pointing out that the fact that the company had used the applicant’s forename for commercial purposes, in order to increase sales of its cigarettes, meant that the protection of the applicant’s personality rights prevailed from the outset. However, it reduced the fee to be paid for the notional licence in accordance with the principle of unjust enrichment to EUR 35,000. The advertisement had not been designed to debase the applicant and, on account of its humorous approach had not had any negative impact on him. Moreover, in publishing his book the applicant had deliberately sought the limelight. The Court of Appeal concluded that there had been an unlawful interference with the applicant’s right to protection of his personality rights, adding that no other conclusion could be reached from the standpoint of the right to freedom of expression in artistic matters, on which the company had relied. As regards pecuniary damage, the Court of Appeal noted that the peculiar aspect of the case was that the impugned advertisement had, in a humorous manner, used only part of the applicant’s name without his consent, and that it had only been published once in two periodicals. Endorsing the findings of the expert whom it had commissioned to assess the damage suffered by the applicant, it deemed it appropriate to set the amount of damages at EUR 35,000. The Court of Appeal did not grant leave to appeal on points of law, holding that the case was not of fundamental importance, given that a decision was not required from the Federal Court of Justice in the interests of either the development of the law or consistency in its application. The judgment of the Federal Court of Justice The company applied for leave to appeal on points of law. On 26 October 2006 the Federal Court of Justice granted the application. In a judgment of 5 June 2008 (no. I ZR 223/05) the Federal Court of Justice quashed the Court of Appeal’s judgment. It held that the applicant’s claim was ill-founded because the company had not unlawfully interfered with his right to protection of personality rights or his right to his name, given that the use of his name in the impugned advertisement was covered by freedom of expression as guaranteed by Article 5 § 1 of the Basic Law. While upholding the findings of the Court of Appeal as regards the existence of an interference and the possibility of granting a notional licence in accordance with the principle of unjust enrichment, the Federal Court of Justice held that the Court of Appeal had not had sufficient regard to the fact that the pecuniary components of the right to protection of personality rights and the right to one’s name were only protected by ordinary law, whereas freedom of expression enjoyed protection under constitutional law. The Federal Court of Justice explained at the outset that the case before it related solely to interference with the pecuniary components of the rights relied upon, since no infringement of the non-pecuniary components of those rights had been alleged. It pointed out that the rights to protection of personality rights were among the fundamental rights safeguarded by the Basic Law to the extent that they protected non-pecuniary interests, but that the pecuniary components were only protected by civil law and therefore did not prevail over freedom of expression. The Federal Court also observed that the protection conferred by Article 5 § 1 of the Basic Law also covered advertising whose content contributed to shaping public opinion, while specifying that that was not only the case where the advertisement referred to a political or historical event, but also where it dealt with questions of general interest. Furthermore, reports with an entertainment purpose could also play a role in shaping public opinion, or indeed, in certain circumstances, could stimulate or influence the shaping of public opinion more effectively than strictly factual information. The Federal Court of Justice noted that the impugned advertisement referred humorously to the fact that the applicant had published a book. It considered that even though the company had merely referred to that event as part of an advertising campaign, it could still rely upon the specific protection of freedom of expression. It held that the fact that the advertisement – by using the applicant’s forename and alluding to the book which he had published – had been mainly intended to increase sales of a cigarette brand by capturing the attention of the general public did not mean, as the Court of Appeal had maintained, that the right to protection of personality rights prevailed in general. The Federal Court of Justice continued as follows: “In weighing up the competing interests the Court of Appeal failed to take adequate account of the fact that the only issue at stake in this case was the protection of the pecuniary components of the right to protection of personality rights, such protection being based solely on civil law and not constitutional law. In the case of interference with the pecuniary components of the right to protection of personality rights because a well-known person’s name has been used in an advertisement without his consent, it cannot simply ( ohne weiteres ) be maintained that the person’s right to protection of his personality rights will always prevail over the advertiser’s right to freedom of expression. On the contrary, it might be appropriate to tolerate an interference with protection of personality rights resulting from reference to a person’s name if, on the one hand, the advertisement alludes in a derisive, satirical manner to an event involving the person and forming the subject of public debate and if, on the other hand, it does not exploit the person’s brand image ( Imagewert ) or advertising value ( Werbewert ) by using his name, and if it does not give the impression that the person identifies with the product advertised or advocates its use (reference to the Federal Court of Justice judgment of 26 October 2006, no. I ZR 182/04).” The Federal Court of Justice held that the impugned advertisement had not given such an impression. It had concerned a subject of public interest in so far as it referred in a humorous fashion to the events surrounding the publication of the applicant’s book, shortly after that event and in the context of the ensuing debate in the media. The advertisement had therefore been part of the ongoing public debate on the circumstances surrounding the applicant’s publication of his book. The Federal Court of Justice emphasised that above and beyond the derisive, satirical allusion to that event, which was already known to the public, the advertisement had been devoid of any degrading or negative content in relation to the applicant. Furthermore, given the absence of any suggestion that the applicant identified in any way with the product advertised, there were no grounds for considering that the advertisement was disparaging towards the applicant simply because it was promoting a brand of cigarettes. The Federal Court of Justice agreed, moreover, with the Court of Appeal that the applicant had sought public attention for his own publicity needs. It found that the applicant’s interest in not being mentioned in the advertisement without his consent carried less weight than the tobacco company’s freedom of expression. There were therefore no grounds for examining whether the company could also have relied on the right to freedom of expression in the artistic field. The Federal Court of Justice concluded that in the absence of a violation of the pecuniary components of his right to protection of his personality rights, the applicant could not claim an entitlement to a notional licence. Decision of the Federal Constitutional Court On 7 April 2009 the Federal Constitutional Court declined to accept for adjudication a constitutional appeal by the applicant (no. 1 BvR 3143/08), adding that no reasons would be given for its decision. The applicant received the decision on 24 April 2009. ...

Germany

6

The application concerns alleged lack of impartiality in criminal proceedings against the applicant. The trial resulted in his conviction by a judgment of the Rasskazovo District Court of the Tambov Region (“the District Court”) of 5 August 2016, delivered by a judicial formation composed of Judge E. and upheld on appeal on 18 November 2016 by the Tambov Regional Court. The applicant was found guilty of obstruction of justice (Article 294 § 1 of the Russian Criminal Code). The domestic courts established that the applicant, a convict serving a prison sentence at the material time, disseminated false information about Judge Zh. with the aim of preventing her from taking a decision on an application for early release submitted by one of the applicant’s inmates. In particular, the applicant twice called the district court and alleged that Judge Zh. had received money in exchange for a favourable decision on the application submitted by the inmate in question. During the proceedings before the District Court, the applicant submitted a challenge for bias in respect of Judge E. and all other judges of the District Court alleging that they lacked the requisite impartiality in so far as the offence he was accused of was directed against the administration of justice in the same district court where the judges worked. Judge E. rejected the applicant’s challenge, stating that none of the grounds for recusal enumerated in Article 61 of the Code of Criminal Procedure (“the CCrP”) were present. Relying on Article 6 § 1 of the Convention, the applicant complained that the District Court which had determined a criminal charge against him had not been impartial because Judge E. was a colleague of Judge Zh.

6, 6

The issue in this case is the inability of the applicant to cross-examine three prosecution witnesses whose statements had been used in evidence in criminal proceedings against him. The applicant rented a house from a housing association. In 2015 he sublet it to a couple (witnesses 1 and 2) with the help of a letting agent (witness 3). After the couple had moved in and tried to register as residents with the local municipality, they found out that the applicant was not the owner of the house and was not in a position to sublet it. In January 2016 the couple found that the applicant had entered the house and moved their belongings. The applicant was convicted by the Central <COUNTRY> Regional Court (rechtbank) of fraud and unlawful entry of a dwelling in use by another person, based on the statements of the couple and the letting agent, and on the tenancy agreement. The applicant appealed against his conviction and asked to cross ‑ examine the three witnesses. He repeated the request at the hearing. The Arnhem-Leeuwarden Court of Appeal (gerechtshof) rejected the first request because it had been made too late (it had been sent by fax only nine days, instead of the required fourteen days, before the hearing) while the second request, made at the hearing and on which the court applied the “necessity criterion” ( noodzakelijkheidscriterium ), was rejected because there was no reason to doubt the accuracy of the witness statements. The court noted that the defence had had an opportunity to examine the witnesses if it had submitted the request in time. The court also found that the witness statements were not the sole and decisive evidence, as they were corroborated by other evidence. The Court of Appeal upheld the applicant’s conviction. On 21 May 2019 the Supreme Court dismissed the applicant’s appeal on points of law with summary reasoning. Relying on Article 6 of the Convention the applicant complained that he ought to have been allowed to cross-examine the three witnesses for the prosecution because their statements had been the decisive evidence during the proceedings which had led to his conviction, there was no good reason for their non-attendance and there were no counterbalancing factors.

Netherlands

5

The present case under Article 5 § 1 of the Convention concerns the applicant’s allegedly unlawful detention between 10 and 24 December 2018, on the ground that the applicable provisions of the domestic law did not provide for the power of an appeal court to extend or order detention pending administrative removal when an initial removal order was annulled by the appeal court . On 13 January 2016 a request for an interim measure staying the applicant’s removal from Russia was granted by this Court in another case lodged by the applicant. This measure was in place during all of the material events in the present case. On 26 November 2018 the applicant was arrested for a violation of migration rules. On 27 November 2018 the Belgorodsky District Court of the Belgorod Region (“the District Court”) ordered the applicant’s administrative removal and detention pending removal. It appears that the applicant had not informed the District Court of the interim measure indicated by the Court in Strasbourg. On 10 December 2018 the Belgorod Regional Court (“the Regional Court”), sitting as an appeal court in a single judge formation, having been informed by the applicant about the interim measure indicated by the Court in Strasbourg, annulled the above removal order and remitted the case for reconsideration to the first instance. In respect of the applicant’s detention it was held that the applicant should stay in the temporary detention centre for aliens until the District Court reconsidered his case. On 24 December 2018 the District Court, referring to the above interim measure indicated by the Court in Strasbourg, terminated the administrative removal proceedings. On the same day the applicant was released.

8

In 2004 the applicant married Mr Zh. In 2006 she gave birth to their son. The couple split up in 2007 and divorced in 2008. The child continued living with the applicant. In 2010 the Vyborgskiy District Court of St Petersburg (“the District Court”) granted the applicant a residence order in respect of the child. In 2013 Zh. applied to the District Court seeking the child’s residence to be determined as being with him. Zh.’s claim was granted in June 2013. In March 2014, with the assistance of the bailiffs, the boy was handed to him. The applicant, however, succeeded in challenging the June 2013 judgment (taken in her absence) and on 17 March 2015 obtained a judgment by the Kalininskiy District Court of Tuymen determining the residence of the child as being with her and obliging Zh to return the child to her. Zh. refused to comply. Enforcement proceedings were opened in September 2015. Between October 2015 and February 2017 the bailiffs made unsuccessful attempts to enforce the judgment of 17 March 2015. In particular, they launched a search for Zh. on two occasions (October 2015 and January 2017) and visited, in vain, the latter’s presumed place of residence on ten occasions (February 2016 – February 2017). They also sent requests to various domestic authorities. 3 . Following the applicant’s complaints about the bailiffs’ failure to secure enforcement of the judgment of 17 March 2015, in February 2016 the deputy head of the Department for Examination of Complaints in Enforcement Proceedings at the Bailiffs’ Service informed the applicant that the bailiff in charge of the enforcement proceedings had indeed failed to carry out enforcement proceedings in a timely manner and had been subjected to disciplinary measures. In March 2016 the Prosecutor’s Office in St Petersburg established that the bailiff had failed to act in a timely manner and to take all the measures provided for by the law to secure the enforcement of the judgment of 17 March 2015. A formal warning (представление) was issued to the head of the Bailiffs’ Service for St Petersburg. In February 2017 the Prosecutor’s Office for St Petersburg further acknowledged a breach of domestic law in respect of the proceedings for enforcement of the judgment of 17 March 2015. Meanwhile, in November 2016 Zh. again applied for a residence order in respect of the child. A forensic psychological examination (report of 15 January 2018) showed that the child’s emotional state was characterised by an elevated level of anxiety, a low level of emotional control, and stress connected with fear of being withdrawn from his father’s family. Issues connected to relations with the mother caused tension and negative feelings. Owing to his involvement in a protracted parental conflict and being brought up by one of the parents in the absence of stable relations with the other parent, the child was developing social anxiety disorder. In order to avoid psychological trauma it was necessary for the child to have meaningful contact with both parents. The father was found to have influenced the child into having a negative image of the mother and a negative attitude towards her. During the hearing of the case on 17 January 2018 S., 11 years old, was questioned and expressed the wish to continue residing with his father, with whom he had a warm and trusting relationship. He did not mind renewing contact with his mother so long as she did not continue to pursue him with the bailiffs and cause him to fear being taken away from his father. On 17 January 2018 the District Court granted Zh.’s claim. The District Court relied on the child’s residing with Zh. since March 2014, his wish to continue residing with his father, the opinion of the childcare authority to the effect that maintaining the child’s established way of life with his father corresponded to his interests and wishes, the report of the forensic psychological examination and the report on examination of Zh.’s living conditions. The District Court further warned Zh. not to prevent the applicant from having contact with the child, participating in the latter’s upbringing, and having a role in decisions about his education. In June 2018 the judgment in question was upheld on appeal. The applicant’s cassation appeals were rejected in November 2018 and January 2019. The applicant complained under Article 8 of the Convention that the domestic authorities had for several years failed to enforce the judgment of 17 March 2015, which ultimately led to the adoption of the judgment of 17 January 2018 determining the child’s residence as being with his father.

10

On 31 May 2012 during discussion at the Pskov Regional Parliamentary Assembly (“the Assembly”) on the revocation of Mr G.’s status of parliamentarian on account of his engaging in unlawful activities, Mr S., one of the parliamentarians, said that the applicant switched too easily from one political party to another. The applicant answered with the following phrase: “I have never been a party-switcher and the entire region is aware of this! The entire region also knows that you have always been G.’s errand boy (“ шестерка ”)!”. The applicant also stated that he had some testimony that Mr S. had foreign nationality and that a prosecutor’s inspection was necessary in this respect. The discussion was broadcasted online. Mr S. sued the applicant for defamation and insult. By decision of 30 August 2012, upheld on appeal by the Pskov Regional Court on 13 November 2012, the Pskov Town Court found that some information about Mr S. mentioned by the applicant was not defamatory but the expression “errand boy” (“ шестерка ”) had pejorative connotation and therefore was an insult. The courts based their decision on an opinion of an expert appointed without the applicant’s participation. The subject-matter of the discussion was of public interest, however, the applicant’s statement was not relevant to the main issue of debate. They therefore concluded that an uninformed audience watching the session online would understand the applicant’s utterance in a pejorative sense. The courts awarded Mr S. compensation in non-pecuniary damage in the amount of 20,000 Russian roubles (RUB).

10, 11

On 20 July 2012 the applicant participated in a demonstration in Moscow to raise public awareness of constitutional rights and freedoms. The demonstration had been approved by the authorities. During the demonstration, the applicant held a banner which read “Russia without Putin”. He was supported by other participants. Police officers who were present on the spot repeatedly ordered the applicant to remove the banner. As the applicant refused to comply, he was arrested and taken to the police station for the purposes of compiling an administrative offence record. During the arrest, the applicant physically resisted the police officers and pushed them away. 2 . On 21 July 2012 the justice of the peace of the 399th Circuit of the Zamoskvoretskiy District of Moscow found the applicant guilty under Article 2 § 5 of the Code of Administrative Offences (“the CAO”) for a breach of the procedure for holding a public event. The court found that “the banner displayed [by the applicant] was contrary to the declared aim of the demonstration and was clearly political in nature”. The court fined the applicant 10,000 Russian roubles (RUB) (equivalent to 121 euros (EUR)). In a separate judgment delivered on the same day, the same court established that the applicant had refused to comply with the police officers’ repeated orders to remove the banner and that he had physically resisted them during the arrest, in violation of Article 3 § 1 of the CAO (failure to comply with a lawful order of an official in connection with the exercise of his duties). The court sentenced the applicant to four days’ administrative detention. On 7 September and 3 October 2012 the Zamoskvoretskiy District Court of Moscow upheld the above judgments on appeal. The applicant was also administratively prosecuted and fined for taking part in the unauthorised public event in 2011. The relevant facts and complaint under Article 11 of the Convention are set out in the Appendix.

6

The case concerns the applicant’s dismissal from her judicial office in accordance with the decision of the Regional Judicial Qualifications Board based on interception of her telephone conversations by unknown persons, the publication of their transcripts in the press and the storage, use and dissemination of the recordings by the domestic authorities in the disciplinary and judicial review proceedings against her. On 14 April 1989 the applicant was appointed as a judge of the Leninskiy District Court of Kaliningrad. On 17 January 2003 she became its president. In November 2004 R., a member of the Kaliningrad Regional Council and the founder and editor-in-chief of a local newspaper, found two audio tapes in his letterbox from an anonymous sender. The audio tapes contained recordings of telephone conversations of a businessman, K., with several people, supposedly including the applicant and her husband, the K.’s counsel. Later in December 2004 and May 2005, the extracts from the K.’s telephone conversations with the applicant were published by regional and national newspapers. The publications, inter alia , accused the applicant of corruption. On 28 October 2005 the Regional Judicial Qualifications Board in disciplinary proceedings against the applicant ordered the early termination of her judicial office as a judge and president of the Leninskiy District Court. The decision referred to the extracts from the recorded telephone conversations as the decisive evidence justifying the applicant’s dismissal for a breach of judicial ethics. 5 . The applicant appealed arguing that that decision was based on evidence obtained without prior judicial authorisation and admitted in breach of procedural rules. On 3 February 2006 the transcripts of the telephone recordings were read out in open court notwithstanding the applicant’s objections. On 6 February 2006 the Kaliningrad Regional Court upheld the Judicial Qualifications Board’s decision, stating that the information about the breach of judicial ethics by the applicant reported in the press and the telephone recordings received confirmation. On 12 April 2006 the Supreme Court of Russia upheld the judgment on appeal.

10

On 10 February 2014 the applicant published a blog post drawing certain parallels between the 2014 Sochi Olympics with the 1936 Berlin Olympics on the website of the Ekho Moskvy radio station. On 12 February 2014, in an interview given to the Dozhd TV channel, he commented on the fact that his article had been criticised by certain officials, in particular, Mr Vasilyev, Deputy Chairperson of the State Duma and the head of the United Russia parliamentary group, saying, “If I lived in a democratic country, then from today on I would have stopped working and spent the rest of my life living on fines [paid] by numerous scoundrels, from Vasilyev and many State Duma deputies, who called me a fascist, to [the State ‑ owned TV channel] VGTRK ...”. On 28 February 2014 Mr Vasilyev brought defamation proceedings against the applicant. A summons was sent by telegram at the applicant’s registered home address, but he did not receive it. On 4 April 2014 the Preobrazhenskiy District Court of Moscow held a hearing in the applicant’s absence. It found it established that the use of a word “scoundrels” amounted to a “public insult” of Mr Vasyliev. Emphasising that the claimant was “a well-known politician and a holder of a high public office”, the District Court awarded him 1,000,000 Russian roubles (RUB) in damages. On 10 June 2014 the Moscow City Court, having refused to admit into evidence an expert report supplied by the applicant to prove that the impugned word was an expression of his value judgment, dismissed the applicant’s appeal. The applicant’s cassation appeals were unsuccessful. On 4 August 2014 the applicant paid RUB 1,000,000 (approximately 20,910 euros [1] ) in execution of the judgment.

8

On 18 September 2017 the Prikubanskiy District Court in Krasnodar fined the applicant, who was married to a Russian national, 2,000 roubles (about 30 euros) for overstaying the term of authorised stay in Russia by several days and ordered her removal, which implied automatic five-year re ‑ entry ban. The applicant’s appeals against the removal, in which she stressed disproportionality of the sanction and its disruptive effect on her family life, were to no avail. The courts left those complaints unexamined until the Supreme Court of Russia examined her appeal and lifted the removal order. In its decision of 3 September 2018 annulling the removal order, the Supreme Court referred to the applicant’s personality, the lack of immigration infractions by her, her marriage to a Russian national living in Russia and the insignificant period of her unauthorised stay in Russia. The court stated in general terms that there was a violation of her right to respect for family life, but it did not suggest any form of redress for the difficulties endured by her in connection with the imposition of the sanction. Meanwhile, in September 2017, while the applicant’s appeals were pending, she was deported from Russia. On 3 October 2018 the applicant re-entered Russia and in January 2019 she was granted a residence permit there. In November 2020 she obtained Russian nationality. According to the applicant, her removal was a disproportionate punishment for a minor administrative violation and the domestic courts failed to examine her complaints of its adverse effect on her family life.

2

The case concerns the applicant’s wounding during a counterterrorist operation in Chechnya and the authorities’ failure to investigate the matter. On 31 May 2016 the applicant was tending to his cattle at a pasture. Without any warnings of an ongoing special operation, a group of servicemen opened gunfire at him and severely wounded him. Between July 2016 and April 2017 the authorities, having carried out a preliminary inquiry into the matter, repeatedly refused to open a criminal case for the lack of corpus delicti . These decisions were repeatedly overruled by the investigators’ superiors as unsubstantiated due to being based on the statements of seven out of thirteen implicated servicemen, while the other six officers had not been interviewed at all; the statements given had not been verified and key elements of the incidents, such as the number of civilians and servicemen present at scene during the shooting and provenance of the bullets that had wounded the applicant, remained unelucidated. According to the Government, the use of lethal force against the applicant was justified and the ensuing inquiry complied with the Convention standards of an effective investigation.

2

On 9 July 2001 at around 30 a.officer N. attempted to arrest the applicant’s son and his friend, both young people apparently had been involved in a street fight earlier that morning. They tried to escape. N. drew his service gun and, after making a warning shot, fired at the pair, severely wounding both of them. On 18 July 2001 the applicant’s son died in a hospital as a result of the wounds. Although it was established that N. had acted in excess of the measures needed for an arrest, criminal proceedings against him were eventually terminated as time barred. In total, they lasted approximately seven years (for more details see the Appendix).

5, 5

The present case concerns the duration of the detention on remand of the first applicant, Mr Slavkov. It also concerns the freezing of the three applicants’ assets with a view to their prospective forfeiture as proceeds of crime. 2 . Mr Slavkov was arrested on 20 October 2008 upon charges of participation in an organised criminal group created for the commission of money laundering, pimping, human trafficking and drug trafficking. He remained in detention until 11 July 2012 when he was released on bail; by that time the criminal proceedings against his group were pending before the first-instance Varna Regional Court. During the period of his detention the first applicant submitted twenty-two requests to be released, which were dismissed by the Varna Regional Court and the Varna Court of Appeal. On many occasions the domestic courts referred to the gravity of the charges against the applicant, the fact that his criminal group had been well-structured and armed and had functioned for some time before being dismantled, his leading position in it and his having “authority” in criminal circles; all these elements were seen as justifying a risk of the applicant reoffending, absconding or intimidating witnesses. The first applicant’s “aggressiveness” in the courtroom was also seen as an indication that he might reoffend or try to tamper with evidence. The domestic courts pointed out that the criminal proceedings were complex, that the hearings were being held at regular intervals, and that substantial delays had been caused by the defence. 3 . In a judgment of 15 January 2013 the Varna Regional Court convicted the first applicant and his co-accused; its finding was that their criminal group had operated between 1996 and 2008. The applicant was sentenced to ten years’ imprisonment. However, the conviction and sentence were quashed by the Supreme Court of Cassation and the proceedings restarted from first instance, where they were still pending at the time of the latest communication from the parties in May 2023. 4 . In the meantime, the Commission for Uncovering Proceeds of Crime (hereinafter “the Commission”) opened proceedings and in December 2008 applied for the freezing of assets of the three applicants – Mr Slavkov, his wife and a company controlled by him (see the appended list), with a view to their prospective forfeiture as proceeds of crime. While the Commission could only apply for actual forfeiture after the close of the criminal proceedings, and if the first applicant was convicted, its preliminary investigation already showed that during the period under examination, between 1997 and 2008, Mr Slavkov and his wife had received lawful income equivalent to about 1,517 minimum monthly salaries (on the national courts’ use of such equivalents in similar situation, see Todorov and Others <COUNTRY> , nos. 50705/11 and 6 others, § 109, 13 July 2021), while the three applicants’ expenses had equalled 6,892 minimum monthly salaries. The Commission was thus of the view that it could be presumed that the assets owned by the applicants at that time, namely two flats in Varna, several cars and shares in several companies, were the proceeds of crime. 5 . In a decision of 13 January 2010 the Varna Court of Appeal froze those assets, save for a flat which was not subject to the freezing request. Injunctions were also imposed on bank accounts of the applicants in which, according to the Government, there were no funds. 6 . Subsequently the applicants applied for the unfreezing of their assets, but their application was dismissed in a final decision of the Varna Court of Appeal of 1 November 2012. The domestic courts held that the continuing criminal proceedings against the first applicant justified the validity of the contested measures, and that at that stage it was impossible to assess the well ‑ foundedness of the prospective forfeiture application. 7 . The applicants’ assets described above remained frozen at the time of the latest communication from the parties in May 2023. 8 . Mr Slavkov complained under Article 5 § 3 of the Convention of the length of his detention on remand, and under Article 5 § 5 of the lack of an enforceable right to compensation in that regard. The three applicants complained under Article 1 of Protocol No. 1 of the freezing of their assets; they considered this measure unjustified and excessively lengthy.

Bulgaria

6, 6, 6

On 7 June 2016, the Taganskiy District Court of Moscow found the applicant guilty of the use of malicious computer programmes, an offence under Article 273 § 1 of the Criminal Code. The court found that the applicant, working as a computer specialist in a private firm, used three such programmes on various office computers. The court sentenced the applicant to one year imprisonment and suspended the sentence. Pursuant to an amnesty act, the applicant was released from serving the sentence. On 9 February 2017, the Moscow City Court modified the conviction on appeal. It considered that the computer programmes used by the applicant were not malicious within the meaning of Article 273 § 1 of the Criminal Code. The court requalified the applicant’s conviction to Article 272 § 1 (unlawful access to computer information entailing its copying). It considered that the programmes used by the applicant permitted him to access the information stored on several computers in the firm unlawfully. It reduced the sentence to eight months’ imprisonment and suspended the sentence. Relying on Article 6 §§ 1 and 3 (a) and (b) of the Convention, the applicant complained that the requalifying of the criminal charges against him by the appellate instance breached his right to be informed of the nature and the cause of the accusation and the right to prepare his defence.

5

The case concerns a complaint under Article 5 § 5 of the Convention that, when the applicant sought compensation for having been unlawfully detained by the police, the Supreme Administrative Court (hereinafter “the SAC”) refused such compensation, on the ground that she had not sufficiently proven any mental suffering. 2 . The applicant was detained by the police on 24 July 2014 and released on the next day, after the expiry of twenty-four hours. After she contested the detention order, on 18 September 2014 the Yambol Administrative Court quashed it as unlawful, noting that while the police seemed to have suspected that the applicant had committed a criminal offence, this had not been properly indicated in the order, nor had the police referred to any factual circumstances to justify such a suspicion. Subsequently the applicant sought non-pecuniary damage. The Administrative Court allowed her action at first instance, but in a final judgment of 16 January 2017 the SAC dismissed the claim. It found that the applicant had not proven that she had sustained any damage, relying in particular on the testimony of a police officer who described the applicant at the time of her arrest as “visibly calm” and “self-confident”. The SAC refused, on the other hand, to take into account the witness statement of a lawyer who had met the applicant after her release, considering him partial. According to the lawyer, the applicant had been “indignant”, “emotional” and “crushed” by the arrest.

P1-1

The application concerns the delayed provision of compensation to the applicant for her parents’ property which was expropriated for urban development in 1985 by the municipal authorities of Dobrich. The applicant was to be compensated with a flat in a building the authorities intended to construct. Construction work commenced in 2010; however, in 2014 this was postponed, apparently mainly due to financial difficulties experienced by the municipality. In November 2019 the construction work was resumed and, according to the latest information submitted by the Government, the building was expected to be completed by 30 November 2022. The applicant had not received her flat or any alternative compensation by the time the parties filed their latest submissions with the Court in September 2022. 2 . On 31 August 2020 the applicant brought a tort action under the State and Municipalities Responsibility for Damage Act 1988 (hereinafter “the 1988 Act”), seeking compensation for the delay in providing the flat due to her for the period from 1 September 2015 to 1 September 2020. In a final judgment of 10 February 2022 the Supreme Administrative Court (hereinafter “the SAC”) held that the municipality was responsible for the failure to deliver the flat within a reasonable time, and awarded the applicant 14,440 Bulgarian levs (BGN) (7,383 euros (EUR)) in pecuniary damage and BGN 5,000 (EUR 2,556) in non-pecuniary damage. These sums were paid to the applicant on 17 March 2022. The applicant complains under Article 1 of Protocol No. 1 and Article 13 of the Convention of the delays in the compensation procedure.

8, 3

The case concerns conditions of detention in Pärnu Arrest House where the applicant spent several separate periods in pre-trial detention (varying from 6 days to 100 days at a time, 345 days altogether) between August 2016 and December 2018. He spent the remainder of his pre-trial detention in Tallinn Prison. 2 . The domestic courts found that the ventilation and access to natural light were insufficient in Pärnu Arrest House; that the toilet was not adequately separated from the rest of the cell (which the applicant sometimes shared with other detainees); that the applicant had no possibility to spend time outdoors as there was no outside yard; that without any fault on the applicant’s part the authorities had limited his meetings with family members to approximately ten minutes at a time; and that the arrest house provided no technical possibilities for detainees to have access to a certain online legal database. Assessing all the above-mentioned shortcomings in conjunction, the domestic courts awarded the applicant 1,500 euros (EUR) in respect of non ‑ pecuniary damage while the applicant had claimed EUR 3,450 before the Tallinn Court of Appeal. 4 . With regard to access to the online legal database, the first-instance court initiated constitutional review proceedings. By a judgment no. 5-19-41 of 18 December 2019 the Supreme Court declared unconstitutional a part of the section 31(3) of the Regulation no. 21 of the Minister of the Interior on the Internal Rules of the Arrest House ( Arestimaja sisekorraeeskiri ). Under this provision detainees were authorised to have access to an online database containing legal acts and court judgments “in so far as the arrest house had technical conditions for it.” The Supreme Court observed that the restriction in question interfered with the constitutional right to freely obtain information disseminated for public use. It noted that that above-mentioned clause left it entirely up to each arrest house whether to provide access to the legal database in question or not. However, section 31 1 of the Imprisonment Act (as in force at the relevant time) provided that remand prisoners had the right to access that legal database. The Supreme Court found that the Imprisonment Act did not authorise the minister to set any further restrictions to such access. The impugned restriction was thus not based on law and was accordingly unconstitutional. The applicant invokes complaints about the physical conditions of detention in Pärnu Arrest House, about the meetings with family members and a lack access to the online legal database.

6

The case is of the type examined in Todorov and Others <COUNTRY> (nos. 50705/11 and 6 others, 13 July 2021) and concerns the forfeiture of assets of the applicants as proceeds of crime. Forfeiture proceedings were opened following a conviction of Mr Yordan Tonov for coercion committed in 1993, and were directed against him and members of his family – the remaining applicants. In judgments of 19 February 2010 and 14 March 2011 the Vratsa Regional Court and the Sofia Court of Appeal allowed the State’s forfeiture application. They ordered the forfeiture of assets worth 215,000 Bulgarian levs (BGN), the equivalent of about 110,300 euros (EUR). 2 . In a decision of 24 February 2012, given under case no. 991/2011, the Supreme Court accepted for examination the applicants’ appeal on points of law, and instructed them to pay in a court fee of BGN 4,312 (EUR 2,205). The applicants applied for an exemption, claiming that they did not have sufficient financial means to pay the fee. However, in a new decision dated 6 April 2012, once again given under case no. 991/2011, the Supreme Court rejected their application. The applicants appealed against that latter decision. On 14 June 2012 a different panel of the Supreme Court, examining the matter under case no. 355/2012, dismissed their appeal at a closed hearing. 5 . Since the decision of 14 June 2012 was final as concerns the exemption request, and domestic law does not require the service of final decisions and judgments, the decision was not served on the applicants’ legal representatives. The representatives claimed that they had checked the Supreme Court’s website where decisions are published, but under case no. 911/2011, since they were not aware of the new number. They did not thus find out about the decision of 14 June 2012, and the applicants did not pay the court fee within the statutory seven-day time-limit, starting running as from the date of the decision. Accordingly, the Supreme Court, noting that the applicants had not paid the fee, discontinued the examination of their appeal on points of law. The applicants complained under Article 1 of Protocol No. 1, relying also on Article 13 of the Convention, considering the forfeiture of their assets unjustified. They also complained under Article 6 § 1 of the Convention that they had been denied access to a court, seeing that the Supreme Court had not examined on the merits their appeal on points of law.

Bulgaria

11

Following unsuccessful request for information in January 2007 and a failed attempt to locate the applicant organisation at the address of its registration in February 2007, the Vladimir Regional Department of the Federal Registration Service of the Ministry of Justice (“the registration authority”) filed a claim for dissolution of the applicant organisation alleging that the latter had ceased functioning. The Leninskiy District Court granted the claim by default judgment on 9 April 2007. It was quashed at the request of the applicant organisation on 22 October 2007. During the fresh examination of the case the registration authority amended the claim seeking the applicant organisation be dissolved for “repetitive and gross violations of domestic law”, namely the organisation’s failure to: (i) submit annual activity reports for the last nine years; (ii) regularly inform the registration authority of the re-election of the organisation’s chairperson; or (iii) inform that authority of the change in the organisation’s address. On 4 February 2008 the Vladimir Regional Court examined the case. It focused its analysis on the question as to whether the shortcomings identified by the registration authority amounted to “repetitive” and (or) “gross” violations punishable by the dissolution of the organisation. Having found that the shortcomings constituted both “repetitive” and “gross” violations, the court ordered the dissolution of the applicant organisation. On 22 April 2008 the Supreme Court of Russia upheld the above decision on appeal. It dismissed in a summary fashion the argument by the applicant organisation that the dissolution had not been “necessary in a democratic society” and breached Article 11 of the Convention. Relying on Article 11 of the Convention the applicant organisation claimed that its dissolution was an unlawful and disproportionate sanction for violations of formal requirements of domestic law. Relying on Article 13 of the Convention the applicant organisation claimed that the domestic courts had not thoroughly examined the case.

6, 8

The case concerns a ban on telephone calls for prisoners serving life sentences under the strict regime. Some applicants also raised other complaints under the provisions of the Convention.

P1-1

The case is of the type examined in Todorov and Others <COUNTRY> (nos. 50705/11 and 6 others, 13 July 2021), and concerns the forfeiture of assets of the applicant as proceeds of crime. 2 . The competent body – the Commission for Uncovering Proceeds of Crime (hereinafter “the Commission”) – applied for forfeiture after in 2008 the applicant had been convicted for embezzlement: she had appropriated 43,345 euros (EUR) owned by an association she had headed, but had eventually returned the money. The Commission verified the applicant’s income and expenditure between 1985 and 2008. Its forfeiture application concerned 108,067 Bulgarian levs (BGN), equivalent to EUR 55,300 – money available on bank accounts of the applicant. The sum was forfeited in a final judgment of the Supreme Court of Cassation of 25 June 2015. The national courts found that the applicant had opened the bank accounts at about the same time when she had committed embezzlement (between 2005 and 2007), that she had not had sufficient lawful revenues to justify owning such a sum of money, her expenses during the period under examination surpassing her lawful income, and that she had not rebutted the presumption on the criminal provenance of the money. The applicant complained, relying on Article 1 of Protocol No. 1 and Article 13 of the Convention, that the forfeiture had been unfair, in particular because it had resulted in a double repayment of the appropriated money. 3 . The applicant complained in addition under Article 1 of Protocol No. 1 of having to cover the Commission’s litigation costs. In particular, the first-instance court had ordered her to pay BGN 2,611 (EUR 1,336) for the Commission’s representation by an in-house lawyer, and BGN 200 (EUR 102) for other expenses. The former amount equalled what would have been the minimum remuneration of a private party’s lawyer in proceedings concerning a claim with the same value, in accordance with the practice of the national courts at the time. The second-instance court, on the other hand, noting the award made by the lower court, awarded BGN 200 (EUR 102) for the Commission’s representation, while the Supreme Court of Cassation, without giving any specific reasons, awarded BGN 830 (EUR 425) on that account. The global amount of adverse costs, totalling BGN 3,841 (EUR 1,965), was paid by the applicant on 29 July 2015.

Bulgaria

6

The case concerns the criminal proceedings against the applicant in which she was found guilty of aggravated fraud and sentenced to fourteen years’ imprisonment by the Tirana District Court on 13 March 2013. The applicant’s appeal was dismissed by the Tirana Appeal Court on 8 November 2013. The applicant then brought a further appeal with the Supreme Court which dismissed it on 25 May 2015. On 8 November 2016 Law no. 99/2016 of 6 November 2016 was published in the Official Journal. It shortened the time-limit for lodging a constitutional complaint from two years to four months “of obtaining knowledge of the interference [with a constitutional right or freedom]” ( konstatimi i cënimit ). It also provided that the new time-limit should enter into force on 1 March 2017. On 27 February 2017 the applicant sent a constitutional complaint through a post office. On the envelope she put the address as: “Gj – K.SH, Tirané”. On an unspecified date the applicant checked with the post office whether her mail had been delivered to the Constitutional Court and learned that it had not because the recipient of her mail could not be identified since the name and address were incomplete. 5 . The applicant re-sent her constitutional complaint at the proper address of the Constitutional Court on 22 May 2017. It was declared inadmissible as being lodged out of the four-month time-limit on 16 June 2017. 6 . On 16 June 2017 the Constitutional Court adopted two other separate decisions in the cases of Pajova (decision no. 157) and Ibrahimi (decision no.152) in which it applied the newly introduced four-month time-limit in respect of the Supreme Court’s decisions adopted respectively on 7 May 2015 and 25 June 2015 and counting from the date of their adoption.

10

The applicant company is an independent information agency that runs Rosbalt, an online media outlet at www.rosbalt.ru (“the website”). On 18 February 2013 Ilya Ponomaryov, then a member of the Russian State Duma, sent a “request by the member of the State Duma” to the Prosecutor General of Russia concerning Mr Vladimir Zhirinovskiy, the leader of the LDPR party and of its parliamentary group in the State Duma. Referring to the circumstances under which Mr Zhirinovskiy had obtained a higher doctoral degree, Mr Ponomaryov alleged that a half of the members of the academic council competent to award such degrees had left the deliberations in protest and the remaining members had been bribed. On 20 February 2013 the Moskovskiy Komsomolets newspaper published an article entitled “A ‘two-times academician’ Zhirinovskiy could have written ‘hundreds of [doctoral] theses”. 4 . On 20 February 2013 Mr Ponomaryov held a press conference and observed that there were reasons to believe that “bribes [had been] given” in connection with the award of the degree to Mr Zhirinovskiy. On 27 February 2013 Mr Ponomaryov requested in writing the Prosecutor General of Russia to check on which grounds Mr Zhirinovskiy had been promoted to the rank of colonel. On 28 February 2012 a news item was published on the website. It was entitled “Ponomaryov has decided to check on what grounds Zhirinovskiy was promoted to the rank of colonel” and included the following passage: “We shall remind [the reader] that earlier Ilya Ponomaryov sent to the Prosecutor General of Russia, Yu. Chayka, a request to lift the parliamentary immunity of the leader of LDPR. This was connected to the machinations that, according to the information in the possession of [Mr Ponomaryov], had taken place when Zhirinovskiy had received a [higher] doctoral degree.” Mr Zhirinovskiy brought two sets of civil defamation proceedings: one against Mr Ponomaryov, the editorial board of Moskovskiy Komsomolets and its journalist, and another one against the applicant company. 8 . The Presnenskiy District Court joined the two sets of proceedings. By judgment of 17 June 2013 it dismissed the claims concerning Mr Ponomaryov. In the District Court’s view, the latter had exercised his right to petition the authorities when making the impugned statements and thus could not be held liable for defamation, as well as the claims concerning Moskovskiy Komsomolets and its journalist because they had reproduced the words of Mr Ponomaryov verbatim and thus had reported on his value statements. The District Court also noted that the newspaper had performed an important social function when reporting on the activities of a high-level public office holder. At the same time the District Court dismissed the applicant company’s argument that they had reported on Mr Ponomaryov’s position using a value judgment to rephrase it, and found that the phrase “[t]his [had been] connected to the machinations that, according to the information in the possession of [Mr Ponomaryov], had taken place when Zhirinovskiy had received a [higher] doctoral degree” was untruthful because the word “machinations” had not been used in Mr Ponomaryov’s written and oral statements and because the applicant company had failed to prove that such machinations had taken place. The District Court also noted that it had not been shown that the phrase in question had contained a value judgment not susceptible of proof. It ordered a retraction of the article published on the website and awarded Mr Zhirinovskiy 100,000 Russian roubles (RUB) (approximately 2,360 euros (EUR) at the time) in compensation of non ‑ pecuniary damage to be paid by the applicant company. On 20 August 2013 the Moscow City Court upheld the judgment on appeal. The applicant company paid RUB 100,000 in execution of the judgment.

5, 9

The case concerns the apprehension of the applicant, a Jehovah’s Witness, while preaching door-to-door, her subsequent conveyance to the police station, where she was questioned, searched, and had her religious literature seized. On 17 March 2011 the applicant was preaching door-to-door and talking about the Bible with local residents in her home town. She was approached by two police officers who, after checking her identity documents, took her to a police station. While at the station, the officers photocopied her passport and interviewed her for two hours. They also seized her personal belongings and religious literature. After four and a half hours, she was released. The applicant complained to a court of her unlawful detention and seizure of her possessions. By judgment of 19 August 2011, as upheld on appeal on 20 September 2011, the Ivanteyevka Town Court in the Moscow Region dismissed the complaint, finding that the police had lawfully sought to uncover an administrative offence and stop her unlawful activities. Relying on Articles 9 and 10, taken alone and in conjunction with Article 14, and on Articles 3 and 5 of the Convention, the applicant complains of the disruption of her religious activity, followed by her detention at the police station, and the seizure of her personal belongings.

6

On 15 June 1995, Patrick 'Nobby' Clarke was murdered in the flat he had shared with the applicant for the preceding eighteen months. He had been clubbed over the head with what was probably a hammerhead in a sock and possibly another weapon. The applicant was arrested and charged with murder on 16 June 1995. On 10 July 1996, the applicant was tried for the murder of Mr Clarke, the issue for the jury being whether it was the applicant who was responsible for the murder. He was convicted on 26 July 1996 and on 26 September 1996 appealed against the conviction. On 26 February 1998, the conviction was quashed by the Court of Appeal on the basis that the judge had misdirected the jury. A retrial was ordered which took place between 20 July and 5 August 1998, when the jury was unable to reach a verdict and was discharged. The Crown elected to proceed with a second retrial which began on 22 July 1999. At the outset counsel had unsuccessfully submitted that it was oppressive and an abuse of process to try the applicant again, after two unsuccessful trials. During the trial the applicant dispensed with the services of his counsel and solicitor and proceeded to defend himself, with assistance from a new solicitor. There came a point where he no longer felt able to do so and requested an adjournment. On 2 August 1999, the jury was duly discharged, and a further retrial began on 13 September 1999. The applicant did not give evidence at that trial. On 21 September 1999, he was convicted, by a majority of 10 to 2, and was sentenced to life imprisonment. At each of the trials the Crown's case was essentially the same, except that a witness called Crittenden, to whom the applicant allegedly made a confession whilst they shared a prison cell, was not relied upon after the first trial, the Crown being of the view that they were not able to present him as a witness of truth. In addition, from the 84 prosecution witnesses called to give evidence at the first trial, only 33 were later called. On 29 October 1999, the applicant appealed against the conviction. He argued inter alia that the second retrial (in July 1999) was an abuse of process, in that it flouted the convention in English law that if the prosecution has failed to secure a conviction on two occasions it does not then seek a further trial. Although the circumstances were different from those usually relied upon (namely the failure of the jury to reach a verdict on two occasions), it was argued on the applicant's behalf that the first conviction was found not to be safe and so could not be relied upon and on the second occasion the jury could not agree. The discharge of the jury in July 1998 should have been the end of the matter. On 19 January 2001, the Court of Appeal found that there was no reason to conclude that the practice was applicable in the particular circumstances of the applicant's case. The court noted that there was a practice but not a rule of law for the prosecution not to offer evidence where two juries have disagreed and found no general principle existed barring further retrial where the prosecution had failed twice to secure a conviction. It said: “...Where a serious crime has been committed and it is shown that there is a case to answer as far as a defendant is concerned, there is a clear public interest in having a jury decide positively one way or another, whether that case is established. Having said that, we recognise the possibility that in any given case a time may come when it would be an abuse of process for the prosecution to try again. Whether that situation arises must depend on the facts of the case which include, first, the overall period of delay and the reasons for the delay; second, the results of previous trials; thirdly, the seriousness of the offence or offences under consideration; and fourthly, possibly, the extent to which the case now to be met has changed from that which was considered in previous trials. Here the prosecution case did change in that reliance ceased to be placed on the evidence of a man called Crittenden, a prisoner who had given evidence in the first trial as to what had allegedly been said by the [applicant]. But the changes in the prosecution case cannot, in our judgment, have rendered it impossible for the [applicant] to have a fair trial. The reality was he no longer had to face evidence which was adduced in the previous trial as to what he himself had said when attempting to deal with the evidence of Crittenden. ... ... For the reasons we have given we are satisfied that the abuse of process argument was rightly rejected here.” The Court of Appeal refused leave to appeal to the House of Lords, but certified two questions of law of general public importance, namely, “Whether a defendant having been tried twice without a safe verdict being returned it is oppressive to try him a third time and hence an abuse of the court's process. Whether it is oppressive for the Crown to depart from its established practice of not trying a defendant for a third time, absent compelling fresh evidence or conduct by the defendant causing the retrials.” On 17 June 2001, the House of Lords refused the petition for leave.

The applicant was born in 1972 and lives in <COUNTRY>. Before the Court, he was represented by Ms Schjatvet, a lawyer practising in Oslo. The Norwegian Government (“the Government”) were represented by Mr Emberland of the Attorney General’s Office (Civil Matters) as their Agent, assisted by Mr J. Vangsnes and Mr T. Midttun Tobiassen, attorneys at the same office. The facts of the case, as submitted by the parties, may be summarised as follows. Background The applicant has two children living in <COUNTRY>, T. and G., born in 1999 and 2011 respectively. He lives in <COUNTRY> and is married and has five children there. The applicant was married to K.J. when their oldest son, T., was born in <COUNTRY> in 1999. The applicant and K.J. divorced around 2003. K.J. married another man in <COUNTRY> who successfully applied for family reunification with her there in 2003. K.J. was given an independent residence permit in 2004. The oldest son, T., was given a residence permit in <COUNTRY> in 2007. Until then he had resided with his grandmother in <COUNTRY>. G. was conceived when K.J. visited <COUNTRY> for three weeks in 2010. K.J. returned to <COUNTRY>, and G. was born there in 2011. In 2011 or 2012 the Norwegian Labour and Welfare Directorate ( Arbeids- og velferdsdirektoratet ) contacted K.J. to clarify who G.’s father was. She informed them that it was the applicant and the Directorate therefore sent a request to the Norwegian embassy in <COUNTRY>, who tried to track down the applicant through the consulate in <COUNTRY>. They were able to reach the applicant’s brother, who stated that the applicant had moved to <COUNTRY>-Bissau. As they were unable to reach the applicant himself, the matter was put on hold in 2012. K.J. was informed that she should contact the Directorate if she received new information about the father. As the applicant himself has not recognised paternity of G., he is listed with an unknown father in the Norwegian National Population Register. 10 . The applicant has never been to <COUNTRY>, and neither has he ever had parental responsibilities for G. From his birth in 2011, G. lived with his mother and brother in <COUNTRY>. 11 . G. met with the applicant in <COUNTRY> in 2015, when K.J. took her children on a two-week holiday there. The parties’ accounts of the degree of contact between the applicant and G. differ. The applicant submitted that K.J. and the children stayed close to where he lived, and that the applicant and G. saw each other every two to three days during that period. G. had probably also been to <COUNTRY> and met the applicant once prior to that. Moreover, the applicant maintained that he also had telephone contact with the children until K.J. died on 25 June 2017; the Government have argued, however, that it is undisputed that G. did not speak English at this time, and that he would therefore not have been able to communicate with the applicant in a shared language. After the death of their mother, G. lived with a friend of the family, G.N., whom they call an “uncle”, and his family. At some point, G.’s maternal uncle, J., arrived in <COUNTRY> from England to look after G. and they moved into K.J.’s flat together. T. then moved out. The proceedings concerning parental responsibilities for G. On 20 August 2017 G.N. (see paragraph 12 above), applied to the City Court ( tingrett ) to be given parental responsibilities for G. That application was withdrawn on 29 August 2017. The City Court notified the child welfare services of the situation; they had already been informed of K.J.’s death. 14 . On 19 September 2017 the sister of G.’s late mother, A.J., who lived in England, applied to the City Court to have parental responsibilities for G. 15 . On 10 October 2017 the City Court received an email from the applicant, also applying for parental responsibilities for G. 16 . The City Court appointed a lawyer to assist G., who submitted a response to the applications on 13 October 2017. The applicant further explained his application for parental responsibilities for G. in a letter of 23 October 2017. 18 . On 25 October 2017 the City Court held a planning meeting which a court-appointed expert, G’s uncle J. (see paragraph 12 above), G.’s guardian, A.J.’s lawyer (see paragraph 14 above) and the lawyer appointed by the City Court to assist G. (see paragraph 16 above) attended. It was decided that the expert should examine the situation in England further. The expert was given a mandate and asked to prepare a written report. In the meantime, on 22 November 2017, the applicant applied for a Schengen visa at the Norwegian embassy in Accra. On 29 November 2017 the embassy rejected the application, giving the following explanation: “Where our and the local Schengen Cooperation’s experience with specific groups and nationalities indicates that many fail to leave <COUNTRY> or the Schengen area upon expiration of their visas, it has become our practice to issue a visa only in exceptional cases. Probability of return is assessed individually, and importance is attached to both the emigration potential in the applicant’s country of origin and to the individual factors regarding the applicant.” The applicant lodged an appeal against the decision not to issue a visa with the Directorate of Immigration ( Utlendingsdirektoratet – UDI), which rejected it on 6 April 2018. In the meantime, on 17 December 2017, the City Court had received a further written communication from the applicant, in which he explained that he had not been granted a visa at that time. The court-appointed expert (see paragraph 18 above) submitted her written report on 2 January 2018. The City Court held a hearing on 4 January 2018. A.J. attended and gave evidence and one witness was heard. The expert also gave evidence about her work on the case. G.’s guardian opposed the applications from both A.J. and the applicant. The City Court gave judgment on 8 January 2018. It reiterated that G’s mother, K.J., had had sole parental responsibilities for G. when she died. G.’s father, the applicant, had at no time lived with the family in <COUNTRY>. As a result of this, there was, within the meaning of section 38 of the Children Act, no longer anyone with parental responsibilities for G. and, as provided in section 63 of the Children Act, the City Court had to decide on the applications from those who had applied to have parental responsibilities granted to them (see paragraph 49 below). The City Court found that there would be a danger of G. not being given adequate care and maintenance, or that he would suffer in other ways, if A.J. were granted parental responsibilities for him. Her application was therefore dismissed. The court then moved on to assess the applicant’s application, and noted in that context that he had never been to <COUNTRY> and had expressed the wish that G. should move to <COUNTRY>. Moreover, G. knew little of the applicant – he had probably only met him once and spoken to him on the telephone a few times. In addition, the applicant had failed to show much interest in assisting G. after his mother’s death. There was in the City Court’s assessment a significant danger of G. not being given adequate care and maintenance if the applicant were to be granted parental responsibilities for G. After assessing all the information that had been presented to it, the City Court found that the minimum standards referred to in the third and fourth paragraphs of section 63 of the Children Act had clearly not been met (see paragraph 49 below) and the applicant’s application to be granted parental responsibilities for G. was therefore dismissed. Since the City Court had dismissed both of the applications for parental responsibilities for G., it notified the child welfare services in accordance with section 63 of the Children Act (see paragraph 49 below). G. had already been placed in a foster home by that time. 27 . G.’s aunt, A.J., appealed against the City Court’s judgment to the High Court ( lagmannsrett ). The applicant wrote a letter to the City Court following its judgment. The High Court did not, however, consider that by writing the letter the applicant had intended to appeal against the City Court’s judgment and he was therefore not included as a party to the case. A preparatory meeting before the High Court was held in June 2018, at which the applicant was accordingly not present or represented. The High Court scheduled the hearing of the appeal for 11 and 12 September 2018. The High Court reappointed the expert that had been appointed by the City Court (see paragraph 18 above), who submitted a first report to the High Court on 31 August 2018. 28 . In the meantime, on 27 June 2018, the applicant applied again for a Schengen visa. The Directorate of Immigration rejected the application on 25 July 2018. The applicant appealed against that decision on 17 October 2018. 29 . It became clear that the applicant had intended to appeal against the City Court’s judgment and he instructed counsel, who presented herself at the High Court on 30 October 2018. A new preparatory meeting was held on 15 November 2018 and the hearing was rescheduled for 10 and 11 January 2019. 30 . On 22 November 2018 the High Court wrote a letter to the Directorate of Immigration. It confirmed that the applicant was a party to a case before it concerning parental responsibilities for his son, following the death of the child’s mother, and stated that the hearing of the appeal had been scheduled for 10 and 11 January 2019 and that it was desirable that the applicant be present throughout the whole hearing. It was expected that he would give evidence, and both the court-appointed expert, members of the bench and the parties’ counsel would want to put questions to him. Given the far-reaching character of the case, the High Court considered that evidence given by Skype would not be an optimal solution. In the letter, the High Court further stated that it was of the view that it was important for the elucidation of the case and for the equality of arms between the parties that the applicant be present throughout the whole hearing. The applicant had opposed A.J.’s application and he had to be given the opportunity to question her and any witnesses she might wish to present. It would be difficult to ensure these rights as a party for the applicant if he were not present. 32 . The High Court stated furthermore that, in purely technical terms, the proceedings could be transmitted to <COUNTRY> via video-link so that the applicant could follow them, providing that compatible equipment could be found. But the applicant would have to be able to discuss with his counsel when questions were put and, as they could not discuss openly in front of the whole court, it was difficult to picture how it would be possible to carry out the hearing without numerous interruptions. 33 . On 3 January 2019 the expert appointed by the High Court submitted a second report (see paragraph 27 above). 34 . The Immigration Appeals Board ( Utlendingsnemnda – UNE) dismissed the applicant’s appeal against the rejection of his application for a Schengen visa (see paragraph 28 above) on 7 January 2019. The Appeals Board concluded that the likelihood of the applicant returning to his home country was not sufficiently high to enable a visa to be granted. The decision included, inter alia , the following considerations: “UNE notes the statement from [the High Court], dated 22 November 2018. Furthermore, UNE holds that taking part in a child custody case in court is in many cases considered to be a strong welfare reason for issuing a visa. However, as this case stands now, UNE considers there is a great potential for emigration. UNE therefore agrees with UDI in its assessment that there are not sufficiently strong welfare reasons in this case to outweigh the appellant’s lack of necessary ties to his country of origin. In its assessment UNE emphasised the fact that it is technically possible for the appellant to follow the proceedings via Skype. Further, his attorney can attend the proceedings and safeguard the appellant’s legal interest. UNE does not consider that not granting a visa breaches Article 3 of the Convention on the Rights of the Child or section 104 of the Constitution.” The applicant since several times requested that the decision be revised, and one of the decisions taken in response to a request to that effect was made on 29 May 2019. In a letter received by the High Court on 8 January 2019, the applicant requested that the appeal hearing be rescheduled, due to the negative decision of the Immigration Appeals Board. He argued that the refusal to grant him a visa was invalid, and that the High Court had to reschedule the hearing until a visa had been granted, so that he could attend it. 36 . The High Court refused the request in a decision of 9 January 2019, in which it noted that it was not likely that the visa decision was flawed. It also took note of the fact that the applicant had understood that he might not get a visa and that the possibility of following the proceedings by Skype had been outlined already in the planning meeting in November 2018 (see paragraph 29 above). For the High Court, the applicant following the proceedings via Skype was not a perfect solution, but acceptable in the circumstances. The High Court, moreover, distinguished the applicant’s case from that in Cılız the <COUNTRY> (no. 29192/95, ECHR 2000 ‑ VIII), inter alia on the grounds that it was not a similar issue of interference with family life in the applicant’s case, since he had never lived with G. and had only met him twice. In addition, the High Court stated that the fact that the expert reports (see paragraphs 27 and 33 above) had not been translated did not give grounds for rescheduling and pointed out that the first report dated from as early as 31 August 2018. Lastly, the High Court emphasised that it was important for G. that the matter relating to parental responsibilities for him be decided – since more than a year since the City Court had given judgment had already passed – and that the applicant had counsel who would protect his interests during the appeal proceedings. 37 . The appeal hearing was held in the High Court on 10 and 11 January 2019. A.J. attended with counsel, as did G.’s guardian and lawyer, the court-appointed expert, and the applicant’s counsel. In addition to the parties and the court-appointed expert, five witnesses gave evidence. On 10 January 2019 the applicant asked in limine litis for his appeal and that of A.J.’s to be split, so that his appeal could be examined at a later point in time. The High Court refused the request. The court records include the following order: “On 8 January 2019, Attorney Schjatvet [(the applicant’s counsel)] petitioned for the appeal proceedings to be rescheduled. On 9 January 2019, the Court of Appeal refused the petition. Among other things, it was stressed that [G.] was in need of peace and stability, that it was vital for him that the matter of parental responsibilities be decided straight away, and that further rescheduling of the matter would be a burden to him. The same arguments apply now. Before the Court of Appeal, it has been clarified that Ebrima Pa Jallow is not applying for day-to-day care of the child, but only parental responsibilities. However, this makes no difference to the burden the matter places on the boy. It has been argued that Ebrima Pa Jallow was not assessed by the expert witness. The Court of Appeal refers in this context to the fact that the appeal proceedings were rescheduled because the father had not made a statement, and he was given the chance to identify reference persons/informants for the expert’s assessment. The Court of Appeal has unanimously found that the matter should not be subdivided, and that the petition for parental responsibilities on Ebrima Pa Jallow’s behalf will not be rescheduled.” 38 . Moreover, it appears from the court records that the issue of the applicant’s participation via Skype was returned to on several occasions, inter alia by way of the following notes: “The presiding judge raised the question of how Ebrima Pa Jallow would follow the proceedings in a technical sense. It was clarified that, technically, it would be difficult to get the translation into English to him via Skype. Technical assistance would have to be called, which would be organised in a later break. Following this, attorney Schjatvet agreed that the opening statements could be made without her client, Ebrima Pa Jallow, being able to follow the proceedings on Skype. ... The court adjourned for a break from 05 a.to 25 a.Things were still not ready for Ebrima Pa Jallow to be able to follow the proceedings via Skype, but attorney Schjatvedt still allowed the proceedings to continue without the Skype transmission. ... The technology for transmission by Skype was now ready so the interpreter translated while sitting beside the person testifying, using the laptop belonging to attorney Schjatvet which had Skype. ... On Friday 11 January 2019, the appeal proceedings continued in the same location with the same persons present. Ebrima Pa Jallow was not on Skype from the commencement of the day’s proceedings, but it was decided that contact would be attempted later. Attorney Schatvet gave her consent that the proceedings could continue without Ebrima Pa Jallow being on Skype. ... After the lunch break, Ebrima Pa Jallow came on Skype and was able to follow the proceedings. ...” 39 . In its judgment of 11 February 2019, the High Court dismissed the appeals. The High Court concluded that it was not in G.’s best interests that his aunt, A.J., or the applicant be given parental responsibilities for him. After describing the legal framework, the High Court first set out G.’s situation, before turning to the applications of A.J. and the applicant, respectively. In respect of G.’s situation, it stated among other things that G. was well aware of the ongoing dispute about him and that it had been an additional burden on him. According to the expert (see paragraph 27 above), G. needed peace, stability and predictability going forward. He was a child with special needs both in terms of emotional and social development and the expert recommended that he live with people with special skills regarding children and development, care persons who would be particularly sensitive to his signals and able to recognise and interpret his fundamental needs and emotional states. Moreover, the expert reported that G., who was by then nine years old, had found his place in his foster family and called them “mummy, daddy and big brother”. He had stated clearly that he wanted to live with them in <COUNTRY> and the expert considered that removing him from them would represent a risk to his development. The High Court went on to find that it would not be in G.’s best interests for A.J. to be given parental responsibilities for him. In that context it took note that A.J.’s application to be given parental responsibilities had been made on the assumption that she would also have daily care of him. Turning, then, to the applicant’s application, the High Court noted that it had become clear that he did not wish to be responsible for the daily care of G. and for G. to move to his home in <COUNTRY>. It appeared uncertain to the High Court whether the applicant intended to come to <COUNTRY> and claim responsibility for the daily care of G. at a later point in time. 42 . Furthermore, the High Court emphasised that as the question before it was whether it would be in G.’s best interests for the applicant to be given parental responsibilities for him without also being given daily care of him, the applicant’s parenting skills were not relevant. According to the expert, it would be positive if the applicant gained parental responsibilities for G. provided he did not want G. to move, but otherwise it would in her opinion be unnatural for the applicant to participate in parental-responsibility decisions. A potential future case concerning daily care would be a heavy burden on G., but the expert stated that if the applicant were granted parental responsibilities, she would expect him to maintain a low profile, and to introduce him and his family cautiously. The expert further asserted that what was important to G. at the time was where and with whom he lived. Who had parental responsibilities for him was less important. The High Court stated that it agreed with the expert that it would not have any immediate practical consequences for G. whether or not the applicant was granted parental responsibilities, and that what seemed important was that the applicant become a part of G.’s life in due course, in a way that was useful for G. In the first place, this could be by sending photographs, showing an interest in G.’s daily life, and being there if G. was interested in contact. Gradually they could become better acquainted. Such contact would not depend on the applicant having parental responsibilities. 44 . As to parental-responsibility decisions, the High Court noted that the applicant had little knowledge about G. and therefore lacked the qualifications to participate in those decisions in a manner that would be in G.’s best interests. In addition, the geographical and cultural gulf between the applicant and G.’s care provider in <COUNTRY> would make shared parental responsibilities between the applicant and G.’s guardian difficult. 45 . The High Court also stated that it had to be mindful of the fact that the applicant would, were he given parental responsibilities for G., be more easily able to initiate future proceedings concerning G. It referred to the applicant having made different statements about what he wished for G. with regard to where and with whom he was to live. The High Court stated, lastly, that it considered that the Court’s judgment in Gül <COUNTRY> (19 February 1996, Reports of Judgments and Decisions 1996 ‑ I) did not provide guidance, as the applicant’s case concerned only issues of parental responsibilities, not daily care, whereas the case of Gül had concerned family reunification. The applicant appealed against the High Court’s judgment to the Supreme Court ( Høyesterett ). The Supreme Court’s Appeals Committee ( Høyesteretts ankeutvalg ) refused him leave to appeal in a decision of 10 April 2019. Judicial review of the applicant’s visa decisions subsequent to the application lodged with the Court 47 . On 4 October 2019 the applicant applied to the City Court for judicial review of the visa decision of 7 January 2019 of the Immigration Appeals Board, that had not been refused revised in, inter alia , a decision of 29 May 2019 (see paragraph 34 above) by way of a civil lawsuit against the Norwegian State. He also requested a declaratory judgment holding that there had been a violation of Article 8 of the Convention on the grounds of that decision. 48 . The court hearing took place on 5 May 2020, and the City Court delivered its judgment on 10 June 2020. It concluded that the relationship between G. and the applicant did not amount to “family life” within the meaning of Article 8 of the Convention. The visa rejection therefore did not violate Article However, it found that there had been a procedural error in the decision of the Immigration Appeals Board. The Board had originally been under the assumption that the applicant had not documented his family relations in <COUNTRY>. This point had been rectified in one of several motions for reversal, but the City Court found that the Immigration Appeals Board had not assessed the case on the correct factual grounds. The decision was therefore found to be invalid. RELEVANT LEGAL FRAMEWORK 49 . Section 38 of the Children Act of 8 April 1981 ( barneloven ), as worded at the time of the facts of the case brought before the Court, provided that parental responsibilities for a child who had lost a parent was transferred to the other parent if the latter already shared parental responsibilities or the child was living with him or her. Section 63 set out at the relevant time that if there was no longer anyone with parental responsibilities for a child, persons who wanted to be given it were to contact the court in the area where the child lived. If only one application to have parental responsibilities was received, the court was to grant the application unless there was a danger of the child not being given adequate care and maintenance, or if he or she would suffer in other ways. If no one applied to have parental responsibilities, or the court dismissed all the applications, the court was to inform the child welfare services in order for them to make a decision on the placement of the child.

Ghana, Switzerland, Guinea, Netherlands, Gambia, Norway

On 25 November 1992 the Zala County public prosecutor’s office preferred a bill of indictment against the applicant, charging him with aggravated embezzlement. The public prosecutor’s office alleged that between July 1990 and May 1991 the applicant, then the managing director of a Hungarian limited liability company (“E. Kft”), had been involved in a foreign-trade commission-contract between a Dutch company and a Hungarian business partner. According to the public prosecutor’s office, the applicant had failed to transfer, on behalf of E. Kft, part of the amounts due under the contract to the Hungarian partner and had spent it for E. Kft’s own purposes, thus causing damage of some 4 million Hungarian forints. On 30 June 1993 the Keszthely District Court convicted the applicant of aggravated embezzlement and sentenced him to one year and four months’ imprisonment and a fine, under Article 317 §§ 1 and 5 (a) of the Criminal Code. The District Court found that, in the context of a commission-contract scheme valid between July 1990 and May 1991, the applicant, acting on behalf of E. Kft, had failed to transfer part of the amounts collected from the Dutch partner to the Hungarian partner, contrary to what he should have done under the contract; in fact, he had spent it for E. Kft’s own purposes. The District Court noted the applicant’s defence that he had simply failed to pay the necessary attention to his contractual duty to transfer the amounts in question; that he had not been aware until April 1991 that the amounts in question had been available for transfer; that E. Kft’s subsequent failure to fulfil its contractual obligations had simply been due to its inability to recover some outstanding debts; and, finally, that he had entered into a verbal agreement with the Hungarian partner about the use of part of the amounts in question. However, taking into consideration the testimony of a Mr S. and of two further witnesses, the District Court was convinced that the applicant had deliberately failed to transfer the amounts in question in order to finance the activities of E. Kft. The applicant appealed against the District Court’s judgment, whereas the public prosecutor’s office accepted it. In his appeal the applicant sought to be acquitted on the ground that the findings of fact in his case had been erroneous. On 12 November 1993 the Zala County Regional Court upheld the applicant’s conviction and sentence, but reclassified his offence as aggravated fraud, under Article 318 §§ 1 and 5 (a) of the Criminal Code. The Regional Court held that the facts of the case, as outlined in the bill of indictment and established by the District Court, did not constitute the offence of embezzlement. However, the Regional Court was satisfied that the applicant’s conduct, namely that in the context of the transaction in question he had, on several occasions, given the Hungarian partner false information about the payments actually made by the Dutch partner, had constituted the offence of aggravated fraud. Completing the findings of fact with some further details, the Regional Court essentially relied on the contents of the case file as compiled at first instance, and in particular on the statements made by the applicant and the witness Mr S. during the first-instance hearings and on investigation documents. The Regional Court’s decision was served on the applicant on 8 December 1993. The applicant and his defence counsel lodged a petition for review with the Supreme Court. He maintained that he had been convicted erroneously. He also submitted that the reclassification of his offence at second instance had run counter to Article 9 § 2 of the Code of Criminal Procedure, and had thus constituted a serious breach of procedural rules. In its observations in reply, the Attorney-General’s Office proposed that the decisions of the lower courts be upheld. On 16 June 1994 the Supreme Court held a “public session” ( nyilvános ülés ) in the case. The Supreme Court heard addresses by defence counsel, who argued that the applicant’s liability was of a civil-law nature and requested the Supreme Court to quash, under Article 291 § 3 of the Code of Criminal Procedure, the first- and second-instance judgments and to acquit the applicant, and by the Attorney-General’s Office, proposing that the applicant’s conviction be upheld. On 28 June 1994 the Supreme Court upheld the applicant’s conviction for aggravated fraud. Concerning defence counsel’s arguments about a serious breach of procedural rules, the Supreme Court observed that, while it was true that courts were bound by the factual contents of the bill of indictment, this did not apply to the legal classification of the offences. It held that the elements of fact, which – in the second-instance proceedings – had warranted the reclassification of the offence, had already been contained in substance in the bill of indictment. In reply to defence counsel’s arguments of a substantive-law character disputing the applicant’s conviction of fraud, the Supreme Court held that the applicant’s duty under the contract in question would have been to inform the Hungarian partner about his receipt of payments without delay. The decision concluded, inter alia , that the applicant, having failed to do so and, instead, having transferred the money into E. Kft’s own bank account, “... committed the offence of fraud. ... ... In this manner, the defendant secured unlawful gains for E. Kft and, to that end, had maintained from the outset [the Hungarian partner’s] deception, as a consequence of which it suffered damage in the amount of 1,440,680 Hungarian forints. This conduct of his constituted the offence of fraud, prohibited by Article 318 § 1 of the Criminal Code.” On that ground, the Supreme Court upheld the Regional Court’s decision, in accordance with Article 291 § 7 of the Code of Criminal Procedure. The Supreme Court’s decision was served on the applicant on 18 August 1994.

Hungary

The applicant was born in 1953 and lives in the Lori Region of <COUNTRY>. She was represented by Mr S. Grigoryan and Ms T. Barbakadze, lawyers practising in Yerevan. The Government were represented by their Agent, Mr B. Dzamashvili, of the Ministry of Justice. Having been informed of their right to intervene in the proceedings (Article 36 § 1 of the Convention and Rule 44), the Armenian Government did not avail themselves of that right. The facts of the case, as submitted by the parties, may be summarised as follows. 6 . On 20 May 2010 the applicant arrived, together with two travelling companions, at the Sarpi Border Checkpoint on the land border between <COUNTRY> and Turkey to cross into <COUNTRY>. As it appears from the case-file material, the applicant had travelled through that route twenty-six times in the period between 21 May 2009 and 20 May 2010. After going through the passport control at the checkpoint she passed the desk designated for customs declarations without making such a declaration. Subsequently the applicant was approached by customs officers and asked whether she had anything to declare. The applicant responded in the negative. She was nevertheless required to go through a search procedure which revealed that she had 40,000 <COUNTRY> dollars (USD) hidden on her person which she had failed to declare. The money was hidden underneath the applicant’s clothes, placed in a stocking tied around her waist. The customs officers drew up a report on the discovery of an undeclared sum of money on the applicant’s person and its seizure, which was signed by the customs officers, the applicant, and an interpreter. No objections were recorded on that document. The officers also drew up an official report concerning the violation of customs rules, which was also signed by the applicant, without objections having been recorded on that document. 7 . As it appears from the case-file material, on 9 June 2010 the applicant applied to the Batumi Regional Office of the Revenue Service of the Ministry of Finance (“the Revenue Service”). She noted, among other arguments, that while she had carried the entire sum seized by the customs officers, only USD 9,000 (approximately 16,000 Georgian laris (GEL)) had belonged to her while the remaining sums of USD 13,000 and USD 18,000 had belonged to her travelling companions who had entrusted her with their money for security purposes, not to have it stolen from them during their travels. This amount had not, the applicant argued, exceeded the limit of GEL 30,000 set by Georgian law; and in accordance with the law, only sums exceeding that limit had to be declared at a customs inspection. 8 . On 14 June 2010 the Revenue Service informed the applicant that “the undeclared goods should be forfeited, in accordance with Article 242 § 1 of the Customs Code” (see paragraph 17 below). On 3 August 2010 the applicant appealed, reiterating her arguments (see paragraph 7 above). 10 . On 12 August 2010 the applicant’s complaint was dismissed by the Revenue Service. It reasoned that Article 242 § 1 of the Customs Code had provided for a fine of 100% of the customs value of goods transported by avoiding the customs inspection, or the forfeiture of such goods. As the applicant had signed the report concerning the violation of customs rules, the factual circumstances underlying the forfeiture order had been proved, justifying its imposition. 11 . On 23 August 2010 the applicant lodged a complaint with the Council of Tax Appeals reiterating her arguments (see paragraph 7 above) and noting that at least the sum of GEL 30,000 (the legally allowed amount not subject to the declaration requirement) should have been returned to her. On 13 September 2010 the Council of Tax Appeals dismissed her application. It reasoned that the obligation to declare any sum exceeding GEL 30,000 during a customs inspection had been provided for by law, and the applicant had deliberately avoided complying with that obligation, which had warranted the application of measures under Article 242 § 1 of the Customs Code. For the purposes of that provision, it did not matter whether the entire sum or part of that sum had been the applicant’s property, as at the time of the discovery of the violation of the declaration obligation, it was the applicant who had held the whole sum in question, and the sanction had been applicable to the totality of the sum concerned. On 30 September 2010 the applicant instituted judicial proceedings before the Batumi City Court requesting that the customs inspection and seizure orders were declared null and void. She reiterated her earlier arguments (see paragraphs 7 and 11 above), and complained of the manner in which the customs inspection procedure had been implemented in her respect, stating that she had signed a document the content of which she had not understood. 14 . By a decision of 26 November 2010 the Batumi City Court dismissed the applicant’s submissions. It found that she had been duly assisted by an interpreter. As regards the confiscation measure, the court established that the applicant had deliberately avoided making the customs declaration by failing to stop at the desk designated for such declarations, and had concealed the money underneath her clothes, placed in a stocking tied around her waist. The court also noted that the applicant had failed to substantiate her submission concerning the shared ownership of the money confiscated from her given that she had deliberately avoided making the appropriate declaration and this argument had not been raised at the time the violation of the customs regulations had been discovered. The court considered that the applicant’s behaviour had indicated that the subsequently raised argument concerning the shared ownership of the confiscated sum had been aimed at avoiding the imposition of the relevant sanction. It further noted that given the “dubious circumstances” of the case, the verbal explanations given by the applicant and her travelling companions as to the shared ownership had been insufficient to substantiate her assertions. The court continued to note that, in any event, the relevant regulation had been concerned with the transportation of money, not its ownership, and it had been the applicant who was found to have transported the whole amount on her person. Therefore, the declaration obligation had rested with her. The undeclared money having been found through the personal search, it had been, in the court’s conclusion, rightfully forfeited, in accordance with Article 242 § 1 of the Customs Code. The applicant lodged an appeal on an unspecified date, reiterating her complaints (see paragraphs 7 and 11 above). 15 . On 26 April 2011 the Kutaisi Court of Appeal upheld the lower court’s findings. The appellate court agreed with the Batumi City Court that the applicant had been duly assisted by an interpreter at the time the violation of the customs regulations had been discovered. It further endorsed the finding that the applicant’s argument regarding shared ownership of the confiscated money had been unsubstantiated, as she had failed to put that argument forward at the time the violation of the customs rule had been found, and had signed the relevant reports on the violation of the customs regulations. The appellate court continued to note that regardless of the question of ownership, as the person transporting the full amount, it had been the applicant’s obligation to have it declared in accordance with the relevant regulations. The appellate court also noted that the declaration obligation and the relevant sanction had applied to the totality of the sum exceeding GEL 30,000, and not the part in excess, as argued by the applicant. Therefore the applicant had been under the obligation to declare the transportation of USD 40,000 which she had instead chosen to conceal. The Kutaisi Court of Appeal stated that while no taxes had been applicable to any sum transported through <COUNTRY>, a failure to declare a sum of money exceeding GEL 30,000, as in the applicant’s case, had constituted a violation of customs rules, warranting the application of the sanction provided for in Article 242 § 1 of the Customs Code. 16 . By a final decision of 16 November 2011 the Supreme Court rejected an appeal by the applicant on points of law. According to the case file material, the decision of 16 November 2011 was served on the applicant’s lawyer on 17 April 2012. RELEVANT LEGAL FRAMEWORK 17 . Article 242 § 1 of the Customs Code, as in force at the material time, read as follows: “Carrying goods across the customs border of <COUNTRY> by means of bypassing the customs inspection or hiding [the goods from the inspection] shall entail a fine for the person [carrying those goods] in the amount of 100% of the customs value of the goods, but not less than GEL 1000, or the confiscation of such goods and/or the transport vehicle.” 18 . Section 5(3) of the 2003 Act on Facilitating the Prevention of Legalisation of Illicit Income (“the Money Laundering Act”), as in force at the material time, provided that the transfer into and out of <COUNTRY> of cash or cheques whose value exceeded GEL 30,000 (approximately USD 15,700 at the material time) or the equivalent of that amount in another currency was subject to monitoring by the Revenue Service. Additionally, under Section 3(1) of Appendix no. 6 of Decree no. 1232 of the Minister of Finance, dated 22 November 2007, as in force at the material time, any amount of currency could be freely imported into or exported from <COUNTRY> without any charges. However, a person carrying an amount of cash equal to or exceeding GEL 30,000, or the equivalent in another currency, was required to declare it.

Georgia, Armenia, United States

5

The case concerns the length and justification of the applicants’ detention on remand and the speediness of, and other procedural guarantees in, the proceedings on the review of its lawfulness. On 6 March 2017 the applicants were arrested and later remanded in custody pending trial on drug-related charges with an organised-crime background. Having been committed for trial on 29 October 2018, they were found guilty and sentenced to life imprisonment on 25 September 2020. Upon the dismissal of their appeal, the convictions became final, but they were quashed on 28 February 2024 in response to the applicants’ appeal on points of law. They were then again remanded pending a new trial. In the present case, relying on Article 5 § 3 of the Convention, the applicants complained about the length of their detention in the context of their original trial and contested its justification, as those matters had been addressed in the Constitutional Court’s decisions of 13 May 2020, case no. US 171/20 (application no. 55788/20), 7 July 2020, case no. US 337/20 (application no. 8058/21), 10 September 2020, case no. US 381/20, and 18 March 2021, case no. US 129/21 (applications nos. 22074/21 and 21850/21). 5 . Furthermore, under Article 5 § 4 of the Convention, they contended that the Constitutional Court’s review of the lawfulness of their detention, resulting in its decisions of 10 September 2020 (applications nos. 22074/21 and 21850/21) and 18 March 2021 (applications nos. 22074/21 and 21850/21), had fallen short of the requirement of speediness. Lastly, relying on Article 5 § 4 of the Convention, the first applicant complained (application no. 55788/20) that, in the proceedings ultimately resulting in the Constitutional Court’s decision of 13 May 2020, no account had been taken of the reasons submitted on 28 January 2020 for an interlocutory appeal which he had lodged against a decision of 15 January 2020 dismissing his request for release.

She comes from a traditional family of practising Muslims and considers it her religious duty to wear the Islamic headscarf. A. The circular of 23 February 1998 On 26 August 1997 the applicant, then in her fifth year at the Faculty of Medicine at Bursa University, enrolled at the Cerrahpaşa Faculty of Medicine at Istanbul University. She says she wore the Islamic headscarf during the four years she spent studying medicine at the University of Bursa and continued to do so until February 1998. On 23 February 1998 the Vice-Chancellor of Istanbul University issued a circular, the relevant part of which provides: “By virtue of the Constitution, the law and regulations, and in accordance with the case-law of the Supreme Administrative Court and the European Commission of Human Rights and the resolutions adopted by the university administrative boards, students whose ‘heads are covered’ (who wear the Islamic headscarf) and students (including overseas students) with beards must not be admitted to lectures, courses or tutorials. Consequently, the name and number of any student with a beard or wearing the Islamic headscarf must not be added to the lists of registered students. However, students who insist on attending tutorials and entering lecture theatres although their names and numbers are not on the lists must be advised of the position and, should they refuse to leave, their names and numbers must be taken and they must be informed that they are not entitled to attend lectures. If they refuse to leave the lecture theatre, the teacher shall record the incident in a report explaining why it was not possible to give the lecture and shall bring the incident to the attention of the university authorities as a matter of urgency so that disciplinary measures can be taken.” On 12 March 1998, in accordance with the aforementioned circular, the applicant was denied access by invigilators to a written examination on oncology because she was wearing the Islamic headscarf. On 20 March 1998 the secretariat of the chair of orthopaedic traumatology refused to allow her to enrol because she was wearing a headscarf. On 16 April 1998 she was refused admission to a neurology lecture and on 10 June 1998 to a written examination on public health, again for the same reason. B. The application for an order setting aside the circular of 23 February 1998 On 29 July 1998 the applicant lodged an application for an order setting aside the circular of 23 February 1998. In her written pleadings, she submitted that the circular and its implementation had infringed her rights guaranteed by Articles 8, 9 and 14 of the Convention and Article 2 of Protocol No. 1, in that there was no statutory basis for the circular and the Vice-Chancellor’s Office had no regulatory power in that sphere. In a judgment of 19 March 1999, the Istanbul Administrative Court dismissed the application, holding that by virtue of section 13(b) of the Higher Education Act (Law no. 2547 – see paragraph 52 below) a university vice-chancellor, as the executive organ of the university, had power to regulate students’ dress for the purposes of maintaining order. That regulatory power had to be exercised in accordance with the relevant legislation and the judgments of the Constitutional Court and the Supreme Administrative Court. Referring to the settled case-law of those courts, the Administrative Court held that neither the regulations in issue, nor the measures taken against the applicant, could be considered illegal. On 19 April 2001 the Supreme Administrative Court dismissed an appeal on points of law by the applicant. The disciplinary measures taken against the applicant In May 1998 disciplinary proceedings were brought against the applicant under paragraph 6 (a) of the Students Disciplinary Procedure Rules (see paragraph 50 below) as a result of her failure to comply with the rules on dress. On 26 May 1998, in view of the fact that the applicant had shown by her actions that she intended to continue wearing the headscarf to lectures and/or tutorials, the dean of the faculty declared that her attitude and failure to comply with the rules on dress were not befitting of a student. He therefore decided to issue her with a warning. On 15 February 1999 an unauthorised assembly gathered outside the deanery of the Cerrahpaşa Faculty of Medicine to protest against the rules on dress. On 26 February 1999 the dean of the faculty began disciplinary proceedings against various students, including the applicant, for joining the assembly. On 13 April 1999, after hearing her representations, he suspended her from the university for a semester pursuant to Article 9 (j) of the Students Disciplinary Procedure Rules (see paragraph 50 below). On 10 June 1999 the applicant lodged an application with the Istanbul Administrative Court for an order quashing the decision to suspend her. The application was dismissed on 30 November 1999 by the Istanbul Administrative Court on the ground that, in the light of the material in the case file and the settled case-law on the subject, the impugned measure could not be regarded as illegal. Following the entry into force of Law no. 4584 on 28 June 2000 (which provided for students to be given an amnesty in respect of penalties imposed for disciplinary offences and for any resulting disability to be annulled), the applicant was granted an amnesty releasing her from all the penalties that had been imposed on her and the resultant disabilities. On 28 September 2000 the Supreme Administrative Court held that Law no. 4584 made it unnecessary to examine the merits of the applicant’s appeal on points of law against the judgment of 30 November 1999. In the meantime, on 16 September 1999, the applicant abandoned her studies in Turkey and enrolled at Vienna University, where she pursued her university education.

A. The murder of the applicant's son On 8 November 1989 the applicant's son was murdered by a criminal (R.) who had just robbed a bank with two accomplices (G.and G.B.). After leaving the bank the three robbers had failed to find the fourth accomplice (A.), who was supposed to be waiting for them with the getaway car. They had therefore made off on foot with the police in pursuit. Their path had then crossed a car being driven by A.Mastromatteo, the applicant's son. They had attempted to take control of the car, but it would appear that A.Mastromatteo had tried to get away from his attackers by accelerating, whereupon R. had shot him at point-blank range. He died a few hours later. B. Identification of the criminals The four criminals were subsequently identified and charged. Three of them (R., A.and G.) were serving prison sentences at the material time, whereas the fourth accomplice, G.B., was free. From the documents in the case file it is possible to reconstruct the case history of the criminals, particularly that of R. and G., both of whom were responsible for the applicant's son's death. R. R., who fired the fatal shot, was serving a prison sentence of fifteen years and seven months for attempted murder, armed robbery and other offences. He was due to be released on 2 July 1999 and was serving his prison sentence in Alessandria. When it convicted R. on 25 March 1987, the Milan Assize Court of Appeal had considered him to be a danger to society. In a decision of 26 October 1989 the Alessandrian judge responsible for the execution of sentences granted R. prison leave from 45 a.on 1 November 1989 to 45 a.on 3 November 1989 with the condition that he remain at his home in Monza (near Milan). It was the first time that R. had been granted prison leave. The case file shows that the judge responsible for the execution of sentences relied on the reports by the prison authorities concerned stating that they were satisfied with R.'s behaviour, rehabilitation and willingness to reintegrate. The decision granting prison leave was communicated to the appropriate police authorities. The information provided by Monza Police Station shows that R. had reported to the police station at 15 p.on 1 November 1989. In a note drawn up on 6 March 2000 the police station stated that at the time no anomaly had been recorded during R.'s prison leave. On the expiry of R.'s prison leave on 3 November, he failed to return to Alessandria Prison and could not be found. On the same day Alessandria Prison informed Monza Police Station that R. had not returned and that he should therefore be considered to have absconded. A “wanted” notice was drawn up and circulated throughout the country by means of the police national computer system. The notice has not been kept in the police files. G.G.was serving a six-year prison sentence imposed on 16 December 1986 for aiding and abetting armed robbery and other offences. Since 21 October 1988 he had been subject to a semi-custodial regime, which is an alternative measure to imprisonment, pursuant to a decision of the Venice court responsible for the execution of sentences. G.worked in Milan and returned to the city prison in the evenings. In granting him that alternative regime to imprisonment, the court had relied on the reports by the prison authorities stating that G.had been of good behaviour and showed a willingness to reintegrate and that nothing untoward had occurred during his previous periods of prison leave. Furthermore, on 28 June 1988 the Milan Police had given a favourable opinion of the work which G.would be undertaking. The following obligations were attached to the semi-custodial regime: (a) leave the prison after 5 a.(subsequently 4 a.) and return by 11 p.at the latest; (b) not quit the authorised job without giving notice; (c) not spend money without permission; (d) use public transport; (e) avoid excessive consumption of alcohol; and (f) spend bank holidays with his family and remain in the Milan area. That decision was sent, inter alia , to the Social Services Department of Milan, which was the authority responsible for implementing supervisory measures. That authority carried out one inspection, at the prisoner's home and his place of work, during the period of approximately twelve months which elapsed between the date on which the semi-custodial measure was granted and the date on which G.absconded. No supervisory measure was envisaged by the police authorities. G.'s criminal record shows that on 26 October 1989, which was a few days before the applicant's son was murdered, he had committed a handling offence. He was convicted of that offence in 1991 in a judgment which became final on 18 March 1992. A.A.was serving a prison sentence for armed robbery committed jointly with R. His criminal record shows that he had a previous conviction for murder. He was in prison in Alessandria. In a decision of 23 August 1989 the Alessandrian judge responsible for the execution of sentences granted him prison leave from 19 to 26 September 1989. The judge responsible for the execution of sentences, relying on the reports by the prison authorities concerned, had been satisfied with A.'s behaviour in prison. The report prepared by the prison workers responsible for monitoring A.had stressed his good behaviour during his previous periods of prison leave. While on prison leave A.was subject to a number of constraints: he had to report to the police station daily; stay at home from 10 p.to 8 a.; and not leave the district of Sesto San Giovanni (Milan). The decision granting him prison leave was communicated to the appropriate police authorities. The file shows that A.reported to the police station daily to sign the register. On 26 September 1989, when his prison leave expired, A.did not return to the prison and was deemed to have absconded. On the same day Alessandria Prison informed Monza Police Station that A.had not returned and that he should therefore be considered to have absconded. A “wanted” notice was drawn up and circulated to the various police forces throughout the country. G.B. G.B., the fourth accomplice, was not in prison at the material time. His criminal record shows a number of convictions for armed robbery and other offences. The criminal proceedings against the offenders and the applicant's application to join the proceedings as a civil party seeking damages The four offenders were subsequently identified and charged. Of the three prisoners, only R. and G.were convicted of the murder of the applicant's son, aided and abetted by G.B., and given long sentences. The third prisoner, A., who was to have been the driver, was convicted only of armed bank robbery. The applicant lodged an application to join the criminal proceedings against the offenders as a civil party. The defendants were ordered to pay the civil parties damages in an amount to be determined by the civil courts; the criminal courts awarded the applicant 50,000,000 Italian lira (ITL), however, as a down payment to be made immediately. The applicant did not state whether the down payment of ITL 50,000,000 had been paid to him or whether, failing payment, he had taken steps to attempt to obtain the money. In any event the applicant has not sued the criminals for damages in the civil courts. He submitted that they would not in any case have been solvent. The claim for compensation under Act no. 302 of 1990 On 6 November 1992 the applicant lodged a claim with the Ministry of Justice and the Ministry of the Interior for compensation under Act no. 302 of 1990, which provides for compensation for victims of terrorism and mafia-type criminal organisations. In support of his claim, the applicant alleged that his son had been murdered by criminals who were serving prison sentences and that they were members of a “gang” whose criminal activities fell into the category of organised crime. The applicant stated that the Minister for Justice had advised him, at a meeting, not to bring legal proceedings against the State. On 6 October 1994 the committee responsible for examining the applicant's claim ordered a further inquiry with a view to establishing whether or not the criminals responsible for the death of the applicant's son could be deemed to be members of a “criminal organisation”, which would have rendered applicable the statutory provisions on which the applicant relied. The committee attached some weight to a report drawn up by the Prefect ( Prefetto ) of Milan stating that the bank robbery which had culminated in the murder of the applicant's son was not an isolated episode, but the workings of a criminal organisation operating in the area. However, on 21 April 1995, on the basis of the results of the further inquiry, the above-mentioned committee ruled out the possibility that A. Mastromatteo's murder could be deemed to be the workings of a criminal organisation. Relying on that negative opinion, the Ministry of the Interior rejected the applicant's claim for compensation. On 25 July 1995 the applicant lodged a special appeal with the President of the Republic against the decision of the Ministry of the Interior. On 20 November 1996 the Consiglio di Stato expressed the opinion that the appeal should be dismissed because the instant case did not involve terrorist acts or acts of a mafia-type criminal organisation within the meaning of Article 416 bis of the Criminal Code. On 24 February 1997 the President of the Republic dismissed the appeal.

P1-3

The Electoral Registration Officer replied on 25 April 1994: “The provisions of Annex II of the EC Act on Direct Elections of 1976 limit the franchise for European parliamentary elections to the <COUNTRY> [see paragraph 18 below]. This Act was agreed by all member States and has treaty status. This means that <COUNTRY> will not be included in the franchise for the European parliamentary elections.” relevant law in gibraltar A. <COUNTRY> and the <COUNTRY> <COUNTRY> is a dependent territory of the <COUNTRY>. It forms part of Her Majesty the Queen’s Dominions, but not part of the <COUNTRY>. The <COUNTRY> parliament has the ultimate authority to legislate for <COUNTRY>, but in practice exercises it rarely. Executive authority in <COUNTRY> is vested in the Governor, who is the Queen’s representative. Pursuant to a dispatch of 23 May 1969, certain “defined domestic matters” are allocated to the locally elected Chief Minister and his Ministers; other matters (external affairs, defence and internal security) are not “defined” and the Governor thus retains responsibility for them. The Chief Minister and the Government of <COUNTRY> are responsible to the <COUNTRY> electorate via general elections to the House of Assembly. The House of Assembly is the domestic legislature in <COUNTRY>. It has the right to make laws for <COUNTRY> on “defined domestic matters”, subject to, inter alia , a power in the Governor to refuse to assent to legislation. B. <COUNTRY> and the European Community The Treaty Establishing the European Community (“the EC Treaty”) applies to <COUNTRY> by virtue of its Article 227(4), which provides that it applies to the European territories for whose external relations a member State is responsible. The <COUNTRY> acceded to the precursor to the EC Treaty, the Treaty Establishing the European Economic Community of 25 March 1957 (“the EEC Treaty”), by a Treaty of Accession of 22 January 1972. <COUNTRY> is excluded from certain parts of the EC Treaty by virtue of the Treaty of Accession. In particular, <COUNTRY> does not form part of the customs territory of the Community, with the result that the provisions on free movement of goods do not apply; it is treated as a third country for the purposes of the common commercial policy; it is excluded from the common market in agriculture and trade in agricultural products and from the Community rules on value-added tax and other turnover taxes, and it makes no contribution to the Community budget. European Community (“EC”) legislation concerning, inter alia , such matters as free movement of persons, services and capital, health, the environment and consumer protection applies in <COUNTRY>. Relevant EC legislation becomes part of <COUNTRY> law in the same way as in other parts of the Union: regulations are directly applicable, and directives and other legal acts of the EC which call for domestic legislation are transposed by domestic primary or secondary legislation. Although <COUNTRY> is not part of the <COUNTRY> in domestic terms, by virtue of a declaration made by the <COUNTRY> government at the time of the entry into force of the British Nationality Act 1981, the term “nationals” and derivatives used in the EC Treaty are to be understood as referring, inter alia , to British citizens and to British Dependent Territories citizens who acquire their citizenship from a connection with <COUNTRY>. The European Community and the European Parliament The powers of the European Community are divided amongst the institutions set up by the EC Treaty, including the European Parliament, the Council, the Commission (“the European Commission”) and the Court of Justice. Before 1 November 1993, the date of the entry into force of the Maastricht Treaty on European Union of 7 February 1992 (“the Maastricht Treaty”), Article 137 of the EEC Treaty referred to the “advisory and supervisory powers” of the European Parliament. Since 1 November 1993, the words “advisory and supervisory powers” have been removed and the role of the European Parliament has been expressed by Article 137 to be to “exercise the powers conferred upon it by [the] Treaty”. The principal powers of the European Parliament under the EC Treaty may now be summarised as follows: Article 138b provides that the European Parliament shall “participate in the process leading up to the adoption of Community acts by exercising its powers under the procedures laid down in Articles 189b and 189c and by giving its assent or delivering advisory opinions”. Further, the second paragraph of Article 138b empowers the European Parliament to request the European Commission to submit any appropriate proposal on matters on which it considers that a Community act is required for the purpose of implementing the Treaty. The reference in the first paragraph of Article 138b to “assent” refers to a procedure whereby the EC Treaty (for example, in Articles 8a(2) and 130d) provides for adoption of provisions by the Council on a proposal from the European Commission and after obtaining the assent of the European Parliament. The procedure is called the “assent procedure”. Article 144 provides for a motion of censure by the European Parliament over the European Commission whereby if a motion is carried by a two-thirds majority, representing a majority of the members, the members of the European Commission are required to resign as a body. Article 158 provides that the European Parliament is to be consulted before the President of the European Commission is nominated, and the members of the European Commission, once nominated, are subject as a body to a vote of approval by the European Parliament. The first paragraph of Article 189 provides: “In order to carry out their task and in accordance with the provisions of this Treaty, the European Parliament acting jointly with the Council, the Council and the Commission shall make regulations and issue directives, take decisions, make recommendations or deliver opinions.” Article 189b provides: “Where reference is made in the Treaty to this Article for the adoption of an act, the following procedure [ [4] ] shall apply. The Commission shall submit a proposal to the European Parliament and the Council. The Council, acting by a qualified majority after obtaining the opinion of the European Parliament, shall adopt a common position. The common position shall be communicated to the European Parliament. The Council shall inform the European Parliament fully of the reasons which led it to adopt its common position. The Commission shall inform the European Parliament fully of its position. If, within three months of such communication, the European Parliament: (a) approves the common position, the Council shall definitively adopt the act in question in accordance with that common position; (b) has not taken a decision, the Council shall adopt the act in question in accordance with its common position; (c) indicates, by an absolute majority of its component Members, that it intends to reject the common position, it shall immediately inform the Council. The Council may convene a meeting of the Conciliation Committee referred to in paragraph 4 to explain further its position. The European Parliament shall thereafter either confirm, by an absolute majority of its component Members, its rejection of the common position, in which event the proposed act shall be deemed not to have been adopted, or propose amendments in accordance with subparagraph (d) of this paragraph; (d) proposes amendments to the common position by an absolute majority of its component Members, the amended text shall be forwarded to the Council and to the Commission which shall deliver an opinion on those amendments. If, within three months of the matter being referred to it, the Council, acting by a qualified majority, approves all the amendments of the European Parliament, it shall amend its common position accordingly and adopt the act in question; however, the Council shall act unanimously on the amendments on which the Commission has delivered a negative opinion. If the Council does not approve the act in question, the President of the Council, in agreement with the President of the European Parliament, shall forthwith convene a meeting of the Conciliation Committee. The Conciliation Committee, which shall be composed of the members of the Council or their representatives and an equal number of representatives of the European Parliament, shall have the task of reaching agreement on a joint text, by a qualified majority of the members of the Council or their representatives and by a majority of the representatives of the European Parliament. The Commission shall take part in the Conciliation Committee’s proceedings and shall take all the necessary initiatives with a view to reconciling the positions of the European Parliament and the Council. If, within six weeks of its being convened, the Conciliation Committee approves a joint text, the European Parliament, acting by an absolute majority of the votes cast, and the Council, acting by a qualified majority, shall have a period of six weeks from that approval in which to adopt the act in question in accordance with the joint text. If one of the two institutions fails to approve the proposed act, it shall be deemed not to have been adopted. Where the Conciliation Committee does not approve a joint text, the proposed act shall be deemed not to have been adopted unless the Council, acting by a qualified majority within six weeks of expiry of the period granted to the Conciliation Committee, confirms the common position to which it agreed before the conciliation procedure was initiated, possibly with amendments proposed by the European Parliament. In this case, the act in question shall be finally adopted unless the European Parliament, within six weeks of the date of confirmation by the Council, rejects the text by an absolute majority of its component Members, in which case the proposed act shall be deemed not to have been adopted. The periods of three months and six weeks referred to in this Article may be extended by a maximum of one month and two weeks respectively by common accord of the European Parliament and the Council. The period of three months referred to in paragraph 2 shall be automatically extended by two months where paragraph 2(c) applies. The scope of the procedure under this Article may be widened, in accordance with the procedure provided for in Article N(2) of the Treaty on European Union, on the basis of a report to be submitted to the Council by the Commission by 1996 at the latest.” Article 189c provides: “Where reference is made in this Treaty to this Article for the adoption of an act, the following procedure [ [5] ] shall apply: (a) The Council, acting by a qualified majority on a proposal from the Commission and after obtaining the opinion of the European Parliament, shall adopt a common position. (b) The Council’s common position shall be communicated to the European Parliament. The Council and the Commission shall inform the European Parliament fully of the reasons which led the Council to adopt its common position and also of the Commission’s position. If, within three months of such communication, the European Parliament approves this common position or has not taken a decision within that period, the Council shall definitively adopt the act in question in accordance with the common position. (c) The European Parliament may, within the period of three months referred to in point (b), by an absolute majority of its component Members, propose amendments to the Council’s common position. The European Parliament may also, by the same majority, reject the Council's common position. The result of the proceedings shall be transmitted to the Council and the Commission. If the European Parliament has rejected the Council’s common position, unanimity shall be required for the Council to act on a second reading. (d) The Commission shall, within a period of one month, re-examine the proposal on the basis of which the Council adopted its common position, by taking into account the amendments proposed by the European Parliament. The Commission shall forward to the Council, at the same time as its re-examined proposal, the amendments of the European Parliament which it has not accepted, and shall express its opinion on them. The Council may adopt these amendments unanimously. (e) The Council, acting by a qualified majority, shall adopt the proposal as re-examined by the Commission. Unanimity shall be required for the Council to amend the proposal as re-examined by the Commission. (f) In the cases referred to in points (c), (d) and (e), the Council shall be required to act within a period of three months. If no decision is taken within this period, the Commission proposal shall be deemed not to have been adopted. (g) The periods referred to in points (b) and (f) may be extended by a maximum of one month by common accord between the Council and the European Parliament.” Article 203 makes provision for the budget of the Community. In particular, after the procedure for making modifications and amendments to the draft budget, it is open to the European Parliament to reject the draft budget and to ask for a new budget to be submitted (Article 203(8)). Article 206 provides for parliamentary involvement in the process of discharging the European Commission in respect of the implementation of the budget. In particular, the European Parliament may ask to hear the European Commission give evidence on the execution of expenditure, and the European Commission is required to submit information to the European Parliament if so requested. Further, the European Commission is required to take all appropriate steps to act on the observations of the European Parliament in this connection. Elections and the European Parliament Article 138(3) of the EEC Treaty provided, in 1976, that the European Parliament was to draw up proposals for elections. The Council was required to “lay down the appropriate provisions, which it [was to] recommend to Member States for adoption in accordance with their respective constitutional requirements”. Identical provision was made in the European Coal and Steel Community Treaty and the European Atomic Energy Community Treaty. In accordance with Article 138(3), Council Decision 76/787 (“the Council Decision”), signed by the President of the Council of the European Communities and the then member States’ foreign ministers, laid down such provisions. The specific provisions were set out in an Act Concerning the Election of the Representatives of the European Parliament by Direct Universal Suffrage of 20 September 1976 (“the 1976 Act”), signed by the respective foreign ministers, which was attached to the Council Decision. Article 15 of the 1976 Act provides that “Annexes I to III shall form an integral part of this Act”. Annex II to the 1976 Act states that “The <COUNTRY> will apply the provisions of this Act only in respect of the <COUNTRY>”. E. The application of the Convention to <COUNTRY> By a declaration dated 23 October 1953, the <COUNTRY>, pursuant to former Article 63 of the Convention, extended the Convention to <COUNTRY>. Protocol No. 1 applies to <COUNTRY> by virtue of a declaration made under Article 4 of Protocol No. 1 on 25 February 1988.

Gibraltar, United Kingdom

At 11 p.on 4 March 1991, when off-duty, the applicant and two passengers, in a private car (described in subsequent police reports as a “jeep”) towing a van on a trailer, crossed from Northern <COUNTRY> into <COUNTRY> at a <COUNTRY> permanent vehicle checkpoint in County Derry. Precisely what occurred that night is disputed between the parties. It is not, however disputed that the applicant accidentally drove his car into the checkpoint barrier. The check-point was manned by armed British soldiers, one of whom, a corporal in the British Royal Military Police, approached the applicant after the accident. The Government contend that he asked the applicant to stop and was ignored. The applicant alleges that he did stop and that the soldier then waved him on. In any event, it would appear that the soldier moved towards the car and was hit by the vehicle being towed. He was thrown forward on to the tow-bar and dragged for a short distance until he managed to pull himself up into a standing position on the tow-bar. The applicant maintains that he was unaware of the soldier’s position and continued driving into <COUNTRY>. According to the report completed by the Irish Police in April 1991 following their investigation into the incident (see paragraph 9 below), the soldier fired six shots, one of which entered the car’s exhaust pipe, another of which went through the back windscreen and exited through the roof. The Government claim that some, at least, of these shots were fired in Northern <COUNTRY>. According to the applicant he heard the shots and, fearing a terrorist attack, continued driving until he reached a police station, where he considered he would be safe. He stopped the car about two miles from the border, in the village of Muff, in County Donegal, <COUNTRY>. According to the police report, at this stage the soldier, described by witnesses as in a state of “blind panic”, ordered the applicant and the two passengers to get out of the car and stand against the wall with their hands in the air. The applicant alleges that he turned to face the soldier, intending to explain that he was a police officer and that there was no cause for alarm. Again, according to the applicant, the soldier then aimed his gun at him and pulled the trigger twice, although the shots did not fire because the gun jammed. The Irish police had been notified of the incident at the border and soon arrived at Muff. The applicant was arrested on suspicion of driving having consumed excess alcohol. He refused to comply with police requests to provide blood and urine samples. As mentioned above, the Irish Police carried out an inquiry into the incident in the course of which 71 witnesses were interviewed. In his report the investigating officer concluded that the applicant had shown “a regrettable degree of recklessness” in leaving the scene of the accident at the check-point. The report continued: “This was a most serious incident and one which could have resulted in the serious injury or death of one or more persons. First of all the soldier was at great risk, had he fallen off the draw-bar. The three occupants of the jeep may well have been shot by [the soldier] or his colleagues at the check-point. The safety of the bystanders at Muff was also put in jeopardy resulting from the presence of the armed and terrified soldier. This matter has been vigorously and thoroughly investigated and the only conceivable reason that I can find that would prompt Garda McElhinney to deliberately leave the scene of the accident would be because he was intoxicated ...”. The applicant was subsequently prosecuted and convicted in <COUNTRY> for his refusal to provide blood and urine samples. No disciplinary proceedings were taken against him, but he was transferred to another area. The applicant alleges that he feared for his life and suffered severe post-traumatic shock as a result of the above incident. On 29 June 1993 he lodged an action in the Irish High Court against the individual soldier and the British Secretary of State for Northern <COUNTRY>. He claimed damages, including exemplary and punitive damages, in respect of his allegation that the soldier had wrongfully assaulted him by pointing a loaded gun at him and pulling the trigger. On 5 November 1993 the <COUNTRY> Government’s solicitors wrote to the applicant’s solicitors as follows: “... The Secretary of State for Northern <COUNTRY> bears no responsibility for the actions of the first defendant who is a soldier in the British Armed Forces under the authority of the Secretary of State for Defence in the <COUNTRY> and accordingly the Secretary of State for Northern <COUNTRY> is not a proper defendant to these proceedings. Even if the Secretary of State was the proper defendant, both it and [the soldier] contend that they are exempt from the jurisdiction of the Irish courts on the basis of the doctrine of sovereign immunity. If your client considers that he does have a valid claim there is nothing to prevent him from pursuing it in Northern <COUNTRY> against the proper body. ...” The applicant’s solicitors replied in a letter dated 3 December 1993: “... We have also sought advice on the issue of foreign sovereign immunity raised by you and have been advised that, in these circumstances, no such immunity would apply. That being so, our client prefers to seek his redress in the courts of this jurisdiction where the incident in question occurred. ...” On 13 January 1994 the applicant applied for permission to substitute for the second defendant the <COUNTRY> Secretary of State for Defence. On 21 January 1994 the Secretary of State for Northern <COUNTRY>, claiming sovereign immunity, applied for the summons to be set aside. On 15 April 1994 a High Court judge granted the Secretary of State’s request, on the ground that the applicant was not entitled to bring an action in the Irish courts against a member of a foreign sovereign government. The applicant appealed, arguing, first, that the doctrine of sovereign immunity did not apply to claims for damages for personal injury caused by torts taking place within the forum State’s jurisdiction. Secondly, he submitted that the principle of reciprocity should apply to prevent the Irish court granting immunity to the <COUNTRY> in circumstances in which British courts, applying the State Immunity Act 1978, would not grant immunity to <COUNTRY>. Thirdly, he put forward the argument that, even if the doctrine of state immunity applied, it should yield in his case since he alleged an infringement of the constitutionally protected right to bodily integrity. The Supreme Court gave judgment on 15 December 1995, rejecting the applicant’s appeal. The applicant had relied on the Supreme Court’s judgment in Government of <COUNTRY> the Employment Appeals Tribunal (1992) 2 IR 484, but the court held that that judgment was authority only for the proposition that the doctrine of immunity did not apply in respect of commercial or trading activities carried out by a foreign government. The facts alleged by the applicant did not relate to any commercial activity, and it was not established that, as a principle of public international law, immunity no longer applied in respect of personal injuries caused by the tortious act of a foreign State’s servant or agent acting within the sphere of sovereign activity (“ de jure imperii ”). In his judgment, Chief Justice Hamilton, with whom Justices O’Flaherty and Blayney agreed, observed: “There can be no doubt but that the first defendant [the soldier] in carrying out his duties at the said checkpoint was acting within the sphere of governmental or sovereign activity and the acts complained of must be regarded as ‘ jure imperii’ even though alleged to have been committed within this jurisdiction. It is submitted on behalf of the plaintiff that, as the acts complained of were tortious and caused personal injuries to him, the principle of foreign sovereign immunity should not apply to such acts and that it was a near-universally recognised principle of international law that claims for personal injuries allegedly inflicted in the forum state by or on behalf of a foreign government constitute an exception to the sovereign immunity principle. In support of such submission, counsel for the plaintiff referred in particular to the <COUNTRY> State Immunity Act 1978; the Canadian State Immunity Act 1982; the Australian Foreign Sovereign Immunities Act 1985 and the European Convention on State Immunity 1972. ... The plaintiff relies on these statutes as indicative of a recognised principle of public international law. ... Distinction must be drawn between the provisions of legislation in a number of states and the provisions of public international law, and the principles set forth in individual state legislation cannot be regarded as establishing principles of public international law. The provisions of statutes cannot be used as evidence of what international law is: statutes are evidence of the domestic law in the individual states and not evidence of international law generally. Article 11 of the European Convention on State Immunity provides that:- ‘A Contracting Party cannot claim immunity from the jurisdiction of a court of another contracting party in proceedings which relate to redress for injury to the person or damage to tangible property, if the facts which occasioned the injury or damage occurred in the territory of the State of forum, and if the author of the injury or damage was present in that territory at the time when those facts occurred.’ I do not have to decide, in the circumstances of this case, whether the terms of the Convention are part of the domestic law of this State because even if it were, the plaintiff’s claim herein would fail by virtue of the terms of Article 31 of the said Convention, which provides that:- ‘Nothing in this Convention shall affect any immunities or privileges enjoyed by a Contracting Party in respect of anything done or omitted to be done by, or in relation to its armed forces when on the territory of another Contracting State.’ The terms of Article 31 recognise that, as a matter of international law, immunities and privileges in respect of anything done or omitted to be done by or in relation to armed forces, when on the territory of another Contracting State, exist. ... Despite the Herculean efforts of the plaintiff’s legal advisers in making available to the court copies of all relevant decisions, articles and draft Conventions, and the cogent arguments of counsel, I am not satisfied that it is a principle of public international law that the immunity granted to sovereign states should be restricted by making them liable in respect of tortious acts, committed on their behalf by their servant or agent, causing personal injuries to the person affected by such act or omission, when such act or omission is committed jure imperii and I would dismiss the appeal on this point ...” The applicant did not pursue his action against the individual soldier who had allegedly assaulted him.

Ireland, Canada, United Kingdom

The <COUNTRY> nuclear tests Between 1952 and 1967 the <COUNTRY> carried out a number of atmospheric tests of nuclear weapons in the Pacific Ocean and at Maralinga, <COUNTRY>, involving over 20,000 servicemen. Among these tests were the “Grapple Y” and “Grapple Z” series of six detonations at <COUNTRY> in the Pacific Ocean (November 1957–September 1958), of weapons many times more powerful than those discharged at Hiroshima and Nagasaki. The line-up procedure During the <COUNTRY> tests, service personnel were ordered to line up in the open and to face away from the explosions with their eyes closed and covered until twenty seconds after the blast. The applicants alleged that the purpose of this procedure was deliberately to expose servicemen to radiation for experimental purposes. The Government denied this and stated that it was believed at the time of the tests, and was the case, that personnel were sufficiently far from the centre of the detonations to avoid being exposed to radiation at any harmful level and that the purpose of the line-up procedure was to ensure that they avoided eye damage and other physical injury caused by material blown about by the blast. Radiation levels records No record exists of the degree of exposure to radiation, if any, of servicemen such as the applicants, since film badges (which turn black if exposed to radiation) were issued only to the approximately 1,000 predominantly non-service personnel on <COUNTRY> who were working in identified, controlled and active areas. According to the applicants (see paragraph 78 below), this decision was taken to avoid future liability for radiation-caused harm. According to the Government, however, experience of earlier nuclear test explosions in Maralinga, <COUNTRY>, where film badges had been issued to all personnel, had shown that personnel with duties such as the applicants’ were not exposed to measurable levels of radiation. Documents containing the original contemporaneous recordings of environmental radiation levels in the vicinity of <COUNTRY> following the tests were stored at the Atomic Weapons Research Establishment (“AWRE”) at Aldermaston, England. Although these documents were not available for inspection by members of the public, the Government claimed that since the information contained in them would not have given rise to security concerns, they could have been produced if required for the purposes of proceedings before the Pensions Appeal Tribunal (“PAT” – see paragraph 59 below). In 1993 a summary of “all the surviving data” gathered by the environmental monitoring programme was published as Technical Note no. 16/93, “Environmental Monitoring at <COUNTRY> 1957 ‑ 1958”. This, inter alia, described the environmental monitoring programme set up for the tests and included sample measurements of radiation in the air, sea water and deposited on the ground. The sources of the information upon which the technical note was based were also listed. The Government annexed to their memorial to the Court in the present case a number of documents, not hitherto in the public domain, including a report by the AWRE of the measurements made of radioactive fall-out on various Pacific islands, including <COUNTRY>, during April ‑ May 1958 (Grapple Y) and of the concurrent programme of fish sampling; a report by Major J.T. McLean describing measurements of fallout on various Pacific Islands between 1 July and 30 November 1958 (Grapple Z); a report of residual radiation measurements following the Grapple Y explosion on <COUNTRY>; a summary statement of environment radiation measurements following the Grapple Y explosion, by AWRE, dated May 1958; and interim reports on radiological measurements following the Grapple Y and Grapple Z detonations. B. The particular circumstances of the first applicant’s case Mr McGinley’s presence during the <COUNTRY> tests Mr Kenneth McGinley was born in 1938 and lives in Paisley, Scotland. In 1956, following a medical examination which found him fit for full combat service in any part of the world, he was enlisted into the army as a sapper with the Royal Engineers. In December 1957 he was posted to <COUNTRY> where he worked as a plant operator at Port London and in the quarries at the northern end of the island. According to information supplied by the Ministry of Defence (“MOD”) for the purposes of his pension application (see paragraph 22 below), he was present at a distance of approximately 25 miles (40 kilometres) from the following test detonations: Grapple Y on 28 April 1958, Grapple Z on 22 August 1958, Grapple Z2 on 2 September 1958, Grapple Z3 on 11 September 1958 and Grapple Z4 on 23 September 1958, in which three nuclear explosive devices in the megaton range were detonated as high air bursts over the sea to the south of <COUNTRY> and two balloon-borne nuclear explosive devices in the kiloton range were detonated over the south-east corner of the island. Mr McGinley’s medical records Mr McGinley stated in his pension application (see paragraph 21 below) that four days after the test explosion on 28 April 1958 he attended his medical officer on <COUNTRY> because he had developed nausea, diarrhoea and itchy blisters on the backs of his hands, neck and cheeks. He stated that he was treated for the blisters with a plastic spray twice a day for ten to twelve days. No contemporaneous record of this treatment has been produced. The transcripts of his medical records set out in his Statement of Case to the PAT (see paragraph 28 below) contained the following entries. He was treated on <COUNTRY> between 15 and 23 September 1958 for a throat infection and in the <COUNTRY>’ Tripler Army Hospital and on <COUNTRY> for tonsillitis in October and November 1958. In February 1959 he was admitted to the Catterick Military Hospital, England, suffering from influenza. In August 1959 he was admitted to the Cowglen Military Hospital in Scotland suffering from a duodenal ulcer, which led to a recommendation that he be discharged from the army as unfit for further military service. This was effected on 10 November 1959 and he was awarded a 20% pension in relation to the ulcer since it was considered to be attributable to military service. In his statement on discharge, in response to the question “If you are suffering from any diseases, wound, or injuries, state what they are, and also when and where they first started…”, he referred to out-patient treatment which he had received in <COUNTRY> in June 1957 for a torn cartilage and on <COUNTRY> in May 1958 for a broken ankle; this latter treatment had not been recorded elsewhere in the service medical records contained in the Statement of Case. In response to the question “Give details … of any incidents during your service which you think caused or made worse your disability”, he referred to his service in May 1959 as a plant operator in Northumberland, England, and the fact that “the food consisted of compound rations three meals per day”. He made no mention of the conditions he allegedly developed following the test explosion on 28 April 1958 (see paragraph 17 above). Subsequent to his discharge, the medical records show that Mr McGinley continued to suffer stomach pain and in August 1962 he underwent an operation to remove the duodenal ulcer. In June 1968 he was admitted to hospital for a week suffering from renal colic. In July 1976 he had a sebaceous cyst removed from his right cheek. In December 1976 he was diagnosed as infertile. In June 1980 he applied for his pension to be reviewed on the ground that the condition of his ulcer had deteriorated. The pension was increased to 30%, reduced again to 20% in June 1982 and restored to 30% on 13 December 1982 following an appeal to the PAT. Mr McGinley’s application for a pension based on complaints allegedly related to exposure to radiation Following a series of articles in the press in 1982 about the potential effects of the <COUNTRY> explosions on those exposed to them, Mr McGinley came to attribute his health problems to his service on the island and became chairman of the British Nuclear Tests Veterans’ Association (“BNTVA”), an organisation which campaigned for compensation for the servicemen present during the tests. On 1 April 1984 he made a claim for an increase in his pension, complaining of depression, sterility and severe arthritis. In his application he described the line-up procedure followed during the tests and the rash he had allegedly developed subsequently (see paragraphs 10 and 17 above), and continued: “I consider that my problems are directly linked with radiation exposure. Since leaving the service I have experienced bouts of moodiness and at time [ sic ] unexplained attacks of very quick tempered actions. Then later regret them. I have been examined at the Western Infirmary in 1976 and diagnosed as sub-sterile. My own doctor … believes there is a direct link. I have also suffered from mysterious paralysis of legs and arms and have been for the past four years been [ sic ] in extreme pain sometimes 24 hours per day.” In response to this application, the Department of Social Security (“DSS”) made enquiries of Mr McGinley’s general practitioner (“GP”) and the MOD. His GP reported that the applicant’s records showed treatment for a duodenal ulcer in 1960 and a stomach ulcer in 1980, and an investigation of fertility in 1977. In 1983 the applicant had complained of arthritis, but the specialist who had given him a full medical examination could find no evidence of any organic disease. The GP also stated that Mr McGinley suffered from an acneiform skin condition and also reported “one positive finding – of which he is unaware – is a polycythaemia (haemoglobin level 6%) [a disorder whereby an abnormally high number of red blood cells are produced]”. The MOD responded to the DSS’s enquiries by stating that the areas on <COUNTRY> in which the applicant had served were not subject to fall-out, and therefore: “His radiation exposure from the UK nuclear tests was ZERO and the radiation effective dose equivalent which it represents was ZERO. His overall radiation dose from the ever present background radiations was no more and probably less than he would have received had he remained in UK instead of seeing service in the South Pacific area in 1958. As his radiation effective dose was ZERO, ex-Spr [sapper] McGinley’s medical condition would not have been caused by ionising radiations from the UK nuclear test programmes.” On 30 November 1984 Mr McGinley’s claim was refused, on the grounds that there was no evidence that the condition of his ulcer had deteriorated or that his reduced fertility, facial acne, right renal colic or arthritis had been either attributable to or aggravated by his service in the armed forces. Mr McGinley’s appeal to the Pensions Appeal Tribunal On 21 January 1985 the applicant appealed to the PAT, stating: “I was deliberately exposed to unknown hazards e. THREE HYDROGEN BOMB TESTS in 1958 for the Government’s Scientific Curiosity Programme… My own Military Medical Records have been ‘doctored’ along with many other members of the BNTVA. I have been victimised by the Ministry of Defence in that they have admitted that they advise the DSS on Medical matters of Nuclear Tests Participants…” On receipt of the notice of appeal, the DSS prepared a Statement of Case for the PAT (see paragraph 57 below). Thus, on 11 February 1985, an enquiry was sent to the Medical Records Section of the MOD, asking for all the available medical records relating to the applicant between December 1957 and December 1958 and/or confirmation that he had been treated for a rash on his body and face on <COUNTRY> at some time during this period. On 13 February 1985, the MOD replied: “No A & D [admission and discharge] books held under particulars quoted. N/T [no trace] medical records. “ The DSS also sought further medical evidence, including hospital case notes and the following reports from the applicant’s GP and a number of specialists who examined him for the purposes of his appeal. Mr McGinley’s GP stated that he considered him to be “fit within limits”, although he had some reservations, namely the polycythaemia and sterility. The psychiatrist who saw Mr McGinley did not consider that he was suffering from any psychiatric condition. The consultant rheumatologist concluded that the pain and stiffness in his hands, arms, shoulders and neck of which the applicant complained related to normal wear and tear and could “find nothing to connect it with radiation exposure”. The dermatologist reported that the appearance of the applicant’s skin was consistent with the long-term effects of untreated constitutional acne vulgaris, concluding however that since he had no competence to give an opinion as to whether this condition might have been linked to exposure to radiation, the opinion of an expert familiar with the effects of ionising radiation should be sought. The DSS declined to follow this advice since they were satisfied by the MOD’s statement that Mr McGinley had not been exposed to radiation. The consultant urologist found that Mr McGinley was not suffering from any kidney disease. In relation to his infertility he stated: “… it is impossible to be certain of its cause as there is no indication of the patient having had a normal seminal analysis prior to his alleged exposure to ionising radiation in 1957. His seminal analysis was performed in 1976 at which time he was 38 years of age and to which age many men are beginning to show a reduction in sperm count. The incidence of oligospermia in the normal male population at this age is probably not less than 10%. In all, it is impossible to incriminate exposure to ionising radiation as a primary cause of the patient’s subfertility problem…” Also included in the Statement of Case to the PAT was the opinion of a DSS medical officer, who explained that, in the light of the medical evidence and the MOD’s statement that Mr McGinley had not been exposed to ionising radiation, it was not considered that the disablement from acne vulgaris, generalised osteoarthritis or reduced fertility with associated nervous symptoms were attributable to or had been aggravated by service in the armed forces. In view of the consultant urologist’s report, the applicant was found not to be suffering from right renal colic. An edited version of the Statement of Case, omitting information that it was “undesirable in the interests of the applicant to disclose to him”, was sent to Mr McGinley (in accordance with Rule 22 of the Pensions Appeal Tribunals (Scotland) Rules 1981). His representatives, the British Royal Legion, received an unedited version. The applicant then had the opportunity to make written submissions to the PAT, adduce additional evidence or request the production of documents in accordance with the procedure under Rule 6 of the Tribunal Rules (see paragraph 59 below), none of which he Together with his representative, he attended the hearing before the PAT where he made oral submissions. On 25 February 1988, the PAT dismissed the appeal. Mr McGinley’s further pension claims On 9 July 1991 the applicant submitted another claim based on alleged radiation-linked acne vulgaris, sterility and arthritis, but he did not pursue it after the DSS reminded him of his previous claim’s rejection in 1988. In 1992 he applied for and received an added assessment to his pension of 5% for hearing loss. The particular circumstances of the second applicant’s case Mr Egan’s presence during the nuclear tests Mr Edward Egan was born in 1939 and lives in Glasgow, Scotland. In October 1956, following a medical examination, he was enlisted into the Royal Navy, fit for full combat duty in any part of the world. On 28 April 1958 he was serving as a stoker on board Her Majesty’s Ship Ulysses which, according to information provided by the MOD, was positioned off <COUNTRY> at a distance of approximately 60 miles (97 kilometres) from the detonation of the Grapple Y test (15–20 miles according to the applicant: see paragraph 47 below). Mr Egan’s medical records Mr Egan’s medical records, as set out in his Statement of Case to the PAT, show, inter alia , that on 8 March 1958 he had an X-ray at a naval hospital in Auckland, <COUNTRY>. From 2 to 10 April 1958 he was admitted to the War Memorial Hospital, <COUNTRY>. Subsequent to the test explosion on 28 April 1958, he was treated (in November 1958 and February–March 1959) for a common cold and influenza respectively and he was given another X-ray on 30 April 1959. In March 1960 he fractured his right clavicle, in connection with which he was X-rayed on 30 May 1960. In early 1961 he applied to be discharged from the navy. In his statement on discharge, in response to the question “If you are suffering from any diseases, wound, or injuries, state what they are, and also when and where they first started …”, he referred only to the fractured clavicle, and he made no response to the question “Have you suffered from any diseases or injuries other than those mentioned above?” His medical report on discharge stated that his clavicle was badly deformed, but apart from this noted no problems. With regard to his respiratory system, it stated that he had had a full plate X-ray on 2 February 1961 which had detected nothing abnormal. On 8 February 1961, Mr Egan was discharged from the navy on compassionate grounds. In June 1965, following a chest X-ray, he was diagnosed as suffering from sarcoidosis, a chronic disease one of the symptoms of which is the formation of small nodules, or granulomas, in the lungs and/or other organs and tissues. His medical records show that in July 1965 he told the consultant chest physician to whom he had been referred that he had “had a normal X-ray in 1961 when in the navy, but was in hospital for two weeks in 1958 for investigation following a routine X-ray in <COUNTRY>”. Mr Egan’s application for a war pension On 10 July 1970 the applicant applied for a pension in respect of his sarcoidosis, alleging that he had suffered from the disease since the date of his discharge from the navy and that it was attributable to the fact that “while serving at <COUNTRY> I was exposed to the blast from atomic bomb resulting in the burning of skin tissues”. On 14 July 1970 the DSS requested from the MOD all the available medical records relating to Mr Egan. The reply, which was received on the same day, read “No trace medical records”. On 12 August 1970 the applicant’s X-ray of 2 February 1961 was requested. The response, dated 18 September 1970, noted that a thorough search of the large film records for 1961 had been made and that no trace of a large film for the applicant could be found. On 5 October 1970 the DSS made another enquiry of the MOD, asking whether any type of atomic device had been detonated whilst the applicant’s ship was stationed off <COUNTRY> and, if so, the distance of the ship from the epicentre of the blast; whether the ship was stationed sufficiently close for any crew members to have sustained radiation burns; whether the applicant was likely to have had cause to be in the open and thereby subjected to blast and, if so, what protective clothing had been issued. Finally, the DSS noted that there was reference in Mr Egan’s medical records to a two-week stay in hospital following a routine chest X ‑ ray in 1958 (see paragraph 38 above), and asked the MOD whether there was any trace of his medical records for 1958 or of any X-rays taken for him during his service. The reply, dated 16 October and 17 November 1970, stated that all available medical documents had already been sent to the DSS, and that an examination of the records of the detonation on 28 April 1958 (held by the War Historical Branch) and of the ship’s log-book showed that HMS Ulysses was approximately 70 miles (113 kilometres) from the epicentre. The Naval Plan for Operation Grapple had required “Precautions to be taken by ships in target area – all exposed personnel are to be completely covered, anti-flash hats, gloves and goggles are to be worn, and long trousers tucked into socks”. On 12 January 1971 the DSS medical board found against the applicant. On 4 March 1971, following further representations by the applicant, the DSS again requested the MOD to trace his service medical records. The MOD replied that: “This case has been thoroughly dealt with and to date we cannot provide any further service documents.” Mr Egan’s appeal to the Pensions Appeal Tribunal On 5 April 1971 the applicant lodged an appeal with the PAT. For the purposes of the appeal the DSS obtained a medical report from a senior chest physician, who stated: “It is my opinion, that, from the initial radiographic appearances, the investigations carried out and the course of the disease, the diagnosis of the condition was correctly assessed as sarcoidosis. I think that the respiratory symptoms of cough and occasionally blood-stained sputum were associated with intercurrent respiratory infection. One possible alternative diagnosis is considered below… I think it is true to say that there is no reference in the international literature to any case of sarcoidosis specifically related to the effects of atomic explosion. The only possible aetiological factor which could be incriminated is exposure to beryllium copper alloy. I do not know whether this alloy was in use in April 1958. The features of chronic berylliosis … are very similar to those which occur in chronic sarcoidosis… In summary, it is, in my opinion, virtually certain that the correct diagnosis in this case is sarcoidosis and that the disease had no relationship to proximity to an atomic explosion in April 1958.” The Government subsequently confirmed, in response to a parliamentary question, that beryllium is commonly used in nuclear test devices, although for security reasons it was not possible to disclose the materials used in specific devices. In response to an enquiry, the MOD informed the DSS that: “It is most unlikely that this man was ever exposed to beryllium copper alloy or other beryllium compounds in his work as a stoker. The log of HMS Ulysses has been carefully scrutinised especially with relation to the periods at <COUNTRY> in 1958 and there is no record to substantiate the story of atomic bomb blast. Certainly had he been ashore there would have been no significant exposure.” Also included in Mr Egan’s Statement of Case was the opinion of the Medical Division of the DSS, which stated, inter alia: “… In the first place we would explain that in the absence of evidence in favour of a diagnosis of chronic berylliosis and in the absence of any evidence that Mr Egan was ever exposed to beryllium copper alloy during service, we are satisfied that his lung condition has been correctly diagnosed as sarcoidosis… Mr Egan has based his claim on the ground that he was exposed to atomic radiation, which he says burned his skin tissues, while in the vicinity of <COUNTRY> in 1958 and instancing that he was in hospital for two weeks in 1958 following a routine X-ray taken in <COUNTRY>. Dealing with the question of radiation, we would stress that … there is no evidence to suggest that exposure to atomic radiation – even a heavy dosage – can be a cause of sarcoidosis… There is no evidence that Mr Egan sustained burns of his skin as a result of atomic blast. Had such an event occurred, he would have required medical attention and we consider it to be inconceivable that such a sequence of events could have happened without some mention in his service documentation. In view of this and having regard to the recorded history, we are satisfied beyond reasonable doubt that there is no evidence at all to relate his sarcoidosis to the incident in question or to any other factor of his service. As regards Mr Egan’s contention that following a routine mass X-ray taken in <COUNTRY> in 1958, he was admitted to hospital for investigation, it is pointed out that the routine X-ray in question was taken on 8 March 1958, more than six weeks before the atomic explosion. We do not consider it in any event likely that a further routine X-ray would have been taken during the same year and there is no evidence of an admission to hospital after the X-ray mentioned although we note he had treatment for a common cold in November that year… Also, … on clinical examination prior to discharge, apart from the after-effects of the fractured clavicle sustained off-duty, no disabilities were found…” On 7 December 1971 an edited Statement of Case was sent to the applicant and an unedited version was sent to his representatives, the Royal British Legion. Mr Egan then had the opportunity to make written submissions, adduce additional evidence or request the production of documents in accordance with the procedure under Rule 6 of the Tribunal Rules (see paragraph 59 below). He chose to make a supplementary statement in response, in which he disputed the fact that there was no medical record concerning the treatment he received in the hospital in <COUNTRY> (see paragraph 36 above), where he alleged to have been given a number of X-rays. He also disputed that there was no evidence in the log of HMS Ulysses that the crew was exposed to the atomic blast, contending that he was 15–20 miles (24–32 kilometres), rather than 70 miles (113 kilometres), from the explosion, that during it he had been made to stand on the upper deck wearing protective clothing and dark glasses and that he had felt ill with a cold and “dampness through my body” after it. The DSS then contacted the Medical Records Section of the MOD and the MOD’s Liaison Officer in Bath, requesting special searches for any medical records or X-rays relating to Mr Egan’s hospitalisation in <COUNTRY> between 2 and 10 April 1958 and confirmation of the distance of HMS Ulysses from the blast. No further medical records could be traced, but the MOD recalculated the ship’s position as 60 miles (97 kilometres) from the blast. On 29 August 1972 the PAT dismissed Mr Egan’s appeal. Mr Egan’s further pension claims On 21 October 1982 the applicant submitted another claim for a war pension based on allegedly radiation-related sarcoidosis of the lung. The DSS responded to the applicant by reminding him of the decision of the PAT taken in 1972 and informing him that it was legally binding unless set aside by the Court of Session in Scotland on a point of law (see paragraph 58 below). On 11 July 1991 the DSS received another, similar, war pension claim, lodged by the BNTVA on Mr Egan’s behalf. He was again reminded of the PAT’s decision of 1972 and he replied, by letter dated 30 October 1991, that he was not happy with that decision. The DSS replied by referring the applicant to the fact that the PAT had looked at his service documents while considering his case. On 25 April 1992 the applicant made a further claim for a war pension based on deafness. The claim was rejected by the Secretary of State and Mr Egan did not appeal the decision.

United States, Christmas Island, New Zealand, Fiji, Germany, Australia, United Kingdom

A. Proceedings concerning real estate transactions The applicant and her husband were involved in a number of real estate transactions. On 1 June 1993 the applicant's husband presented her with a flat in Nevinnomyssk of the Stavropol Region which she subsequently exchanged for another flat in a different locality. On 5 July 1994 the applicant became involved in the dispute challenging the four-way real estate exchange transactions through the claims brought by the other parties to the transactions. On 26 December 1994 the Shpakovskiy District Court of the Stavropol Region (“the District Court”) annulled the transactions concerning the applicant and her husband. The parties did not appeal, and the judgment came into force. On 26 December 1995 and 30 September 1996 two other trial courts of the region adopted further judgments related to the same dispute. The parties did not inform the Court of the content of those judgments. On 27 February 1997, at the applicant's request, the deputy president of the Supreme Court of the <COUNTRY> brought an extraordinary appeal against the judgment of 26 December 1994. On 14 March 1997 the Supreme Court of the <COUNTRY> granted the appeal, quashed the impugned judgment and remitted the case for fresh consideration. On 8 September 1997 the Presidium of the Stavropol Regional Court suggested that the District Court review the judgments of 26 December 1995 and 30 September 1996 on account of newly discovered circumstances. On 22 September and 22 December 1997 the District Court explained to the applicant that it was necessary to file a request for review of the impugned judgments on account of newly discovered circumstances. On 26 February 1998 the applicant filed such a request with the District Court, at the same time claiming invalidation of two exchange transactions, involving her husband and third parties and Kh. On 12 January 1999 the District Court decided to quash the judgment of 26 December 1994 on account of newly discovered circumstances. Between 23 October 1998 and 27 September 1999 the District Court scheduled eleven hearings. Five of them did not take place due to the parties' failure to appear. According to the Government, on 27 September 1999 the District Court “made certain arrangements to ensure the parties' appearance for the next hearing”. On 5 October 1999 the District Court annulled all the real estate exchange transactions between the parties to the dispute. The court found it lawful to examine the case and adopt the judgment in absence of one of the respondents Kh. who had been notified of court hearings on multiple occasions. On 22 December 1999 the Stavropol Regional Court (“the Regional Court”) set aside the above judgment on appeal for errors in application of the procedural law, including insufficient measures to ensure Kh.'s appearance in court, and ordered a new hearing. On 31 January 2000 the District Court stayed the proceedings until the end of a counter-terrorist operation in Grozniy of the Chechnya Republic, where one of the disputed flats was located. The proceedings were resumed on 19 May 2000. On 26 June 2000 the court postponed the hearing due to some of the parties' failure to appear, having again “made certain arrangements to ensure their appearance for the next hearing”. On 6 October 2000 the hearing was adjourned due to the failure to appear of one of the parties' legal counsel. After a hearing on 13 November 2000, the court decided to send a rogatory letter to the Nevinnomyssk Town Court (“the Town Court”) for questioning of one of the parties. The proceedings were stayed until its execution. On 13 March 2001 the proceedings were resumed. The court scheduled the next hearing for 14 August 2001 due to examination of one of the parties' appeal of an injunction order. On 14 August 2001 the hearing did not take place due to some of the parties' failure to appear. On 12 September 2001 the District Court accepted some of the parties' renunciation of their claims, transferred the rest of the claims for consideration to the Town Court and discontinued the proceedings. After two hearings, on 25 December 2001 the Town Court discontinued the proceedings, including the part concerning the applicant's flat. On 8 February 2002 the Regional Court overturned the above decision of on appeal and ordered a new examination. On 5 April 2002 president of the Regional Court brought an extraordinary appeal ( протест в порядке надзора ) against the District Court's decisions of 12 January 1999 and 12 September 2001. It is not clear from the parties' submissions when the higher court called up the case for examination of the extraordinary appeal. On 22 April 2002 the Presidium of the Regional Court quashed the impugned decisions by way of supervisory review for errors in application of the procedural law and remitted the matter for fresh consideration. On 28 May 2002 the District Court admitted the claims for new consideration and scheduled preparatory meetings with the parties. On 23 October 2002 following one of the parties' protest against examination of the case in absence of the respondent Kh., the District Court stayed the proceedings until Kh.'s whereabouts could be established. In particular, the court noted that it had procured information from the post office, town administration and address bureau of the region of Kh.'s possible residence and obtained a police report. The parties were apprised of their right to file a request with the police for Kh.'s search. On 23 December 2002 the Regional Court upheld the decision on appeal. On 5 June 2008 the District Court quashed its decision of 23 October 2002 at the parties' request and resumed the proceedings. On 16 June 2008 the District Court rejected the applicant's claims for invalidation of the four-way exchange transactions. It transpires from the text of the judgment that Kh., whose whereabouts were still unknown, was represented by legal counsel appointed by the court in accordance with Section 50 of the Code of Civil Procedure. The applicant appealed the judgment but did not inform the Court about the outcome of her appeal. B. Action for damages allegedly arising out of the State's failure to pay the guardian's allowance to the applicant On 20 September 2002 the Justice of Peace of Court Circuit No. 1 of the Kochubeyevskiy District of the Stavropol Region dismissed the applicant's claim for pecuniary and non-pecuniary damages allegedly resulting from delayed payment of the guardian's allowance to her. On 25 December 2002 the Kochubeyevskiy District Court of the Stavropol Region upheld the judgment of 20 September 2002 on appeal.

Russian Federation

3

During the past few years he has been convicted of various criminal offences. In particular, he was sentenced on 9 November 1992 by the Assize Court for the département of Cher to ten years' imprisonment for armed robbery; on 2 September 1998 by the Bernay Criminal Court to six months' imprisonment for making off without payment; on 14 January 1999 by the Nevers Criminal Court to five years' imprisonment for armed robbery; and on 20 January 1999 by the Rouen Court of Appeal to six months' imprisonment for making off without payment. He was due for release from September 2001 onwards according to him, and from 17 February 2002 onwards according to the Government. In February 1998 the applicant was also sentenced to six months' imprisonment by the Nevers Criminal Court for failing to return to prison on time after his last period of leave in 1998, having complied with the arrangements on the previous four occasions. The experts who examined him on the subject concluded that “at the material time” he had been suffering from a “psychological disorder” that had temporarily “impaired his judgment” and that prison could not be “therapeutic” for him, especially in view of his advanced age. The applicant subsequently underwent a medical examination in prison and was found to have swollen glands in the throat area. The relevant service accordingly prescribed medical treatment. It was decided that the applicant would undergo an operation on 8 November 2000 after being taken to hospital on 7 November 2000 at 30 p.On 6 November 2000 the governor of Eysses Prison informed the prefect that the prisoner needed to be taken to hospital and requested the presence of a police escort to supervise and guard him throughout his stay. As regards the security risk, the prison staff were issued with instructions that the applicant was to be kept under normal and not heightened supervision, left to the discretion of the senior escorting officer but in principle not requiring the permanent use of handcuffs and restraints. On 7 November 2000, the day before the operation, the applicant was transferred, in handcuffs, to Pellegrin Hospital in Bordeaux in a prison van. Two police officers were waiting for him at the hospital in order to supervise and guard him throughout his time there. For the rest of the day the applicant remained handcuffed but not shackled. During the night, a restraint was used on the applicant, consisting of a chain attaching one of his ankles to the bedpost. The Government assert that the restraint left him considerable freedom to move about in the bed, whereas the applicant maintains that the tension of the chain made any movement difficult or painful and sleep impossible. On 8 November 2000, in the morning, the applicant stated that, if he could not be kept in humane conditions in hospital, he would prefer to be operated on once he had been released from prison. After a meeting with the hospital staff, he returned to prison on the same day at 45 a.On 9 November 2000 the applicant lodged a criminal complaint, together with an application to join the proceedings as a civil party, with the senior investigating judge at the Agen tribunal de grande instance , alleging “serious ill-treatment”, “assault” and “torture”. In the complaint, lodged against the two police officers who had guarded him while he was in hospital, he alleged a violation of Article 803 of the Code of Criminal Procedure and of Article 3 of the Convention, on account of the use of a restraint during the night of 7 to 8 November 2000. In an order of 16 November 2000, served on 24 November, the senior investigating judge set the amount of the security payable for costs at 6,000 French francs. On 24 November 2000 the applicant appealed against that order in a registered letter with acknowledgment of receipt to the senior registrar of the Agen tribunal de grande instance , and also applied to the legal aid office on account of his limited resources. On the same day, he informed the senior investigating judge that he was appealing because his means were insufficient. The application for legal aid was registered on 8 December and refused on 15 December 2000. In an order of 23 March 2001 the President of the Agen tribunal de grande instance confirmed the refusal on the following ground: “The Code of Criminal Procedure expressly reserves the use of restraints for persons who are likely to attempt to abscond. That is so in the case of a prisoner who is outside the prison compound.” In an order of 15 May 2001, the senior investigating judge declared the applicant's complaint inadmissible for failure to pay the security. In the meantime, on 4 April 2001, the Investigation Division of the Agen Court of Appeal had declared the appeal against the order for payment of a security inadmissible for failure to comply with Article 503 of the Code of Criminal Procedure, by which an appeal by a prisoner must be lodged through the prison governor. On 11 April 2001 the applicant appealed on points of law against that judgment. The proceedings are currently pending before the Court of Cassation. Having been released on 1 October 2001 after completing his sentence, the applicant has subsequently been imprisoned in the context of separate proceedings.

In March 2000, officers from the Pleine-Fougères gendarmerie station took a statement from one of the applicant’s daughters, , born on 9 March 1986. She explained that she had been sexually and physically assaulted by her father since sharing a bedroom with him after her mother had left the family home. Her mother was interviewed but said that she was unaware of any such incidents and refused to lodge a criminal complaint. The investigation established, however, that she had reported incidents of violence and sexual abuse against her daughters to a high-school supervisor. ’s sister, S., confirmed that she had heard friends of her sister mention obscene acts; the friends in question confirmed, as did the school bus driver, that had confided in them. ’s half-brother, K.P., and half-sister, S.P., from their mother’s first marriage, were also interviewed. K.P. stated that he had received a letter from revealing that she had been raped. S.P., born on 8 August 1973, said that she had been raped by the applicant on several occasions while on holiday in <COUNTRY> aged only thirteen, and described the violent atmosphere the applicant had created within the family. She lodged a criminal complaint at the same time as making her statement. A., born on 20 June 1977, the applicant’s daughter from a previous marriage, stated that after her parents had separated, she had been raped on several occasions by her father, who had made her sleep in his bed when she had been just six years old. She also lodged a criminal complaint. The applicant was arrested and taken into police custody. He initially denied the allegations before admitting that there had been involuntary contact of a non-sexual nature. Having failed to reply to a summons from the investigating judge dealing with the case at the Saint-Malo tribunal de grande instance , the applicant was arrested and brought before the judge pursuant to a warrant. On 1 February 2002, after initial questioning, the investigating judge placed the applicant under formal investigation and remanded him in custody. By an order of 23 January 2003 the applicant was released subject to court supervision. Following the investigation, the applicant requested that only the alleged offences concerning his daughter be taken into account and that the proceedings be discontinued in respect of the alleged offences of rape against his daughter A. and step-daughter S.P. In an order of 28 May 2004 the investigating judge committed the applicant for trial in the Ille-et-Vilaine Assize Court on multiple counts of rape by an ascendant in respect of his daughter A., rape by a person exercising authority in respect of his step-daughter S.P. and sexual assault by an ascendant in respect of his daughter , all three having been under the age of fifteen at the time of the alleged offences. He also remanded the applicant in custody. The applicant appealed on 3 June 2004. In a judgment of 16 September 2004 the Investigation Division of the Rennes Court of Appeal, after outlining the facts and the statements taken during the police inquiry and the judicial investigation, upheld the order. The operative part of the judgment included the following passage: “Upholds the order appealed against and holds that [the applicant] should be charged with the following: - committing acts of sexual penetration against [A.] by violence, coercion or by taking the victim unawares, in La Morlaye ([ département code] 60), between 1 January 1982 and 31 December 1983, or in any event within the département of Oise and outside the period to which the time-limit for prosecution applies, * with the aggravating circumstances that [A.] was a minor under the age of fifteen on the date of the acts specified above, having been born on 20 June 1977, and that [the applicant] is her legitimate father; - committing acts of sexual penetration against [S.P.] by violence, coercion or by taking the victim unawares, in La Panne, Kingdom of <COUNTRY>, between 1 January and 31 December 1986, or in any event as a French citizen and outside the period to which the time-limit for prosecution applies, * with the aggravating circumstances that [S.P.] was a minor under the age of fifteen on the date of the acts specified above, having been born on 8 August 1973, and that [the applicant] exercised authority over her, as he was her mother’s husband and she lived with them; - committing or attempting indecent assault on [], born on 8 March 1986 and thus a minor under the age of fifteen, in Vieux-Viel (35), between 1 March 1999 and 31 March 2000, or in any event within national territory and outside the period to which the time-limit for prosecution applies, * with the aggravating circumstances that the acts specified above were committed by violence, coercion or by taking the victim unawares, and that [the applicant] is her legitimate father; The above-mentioned serious crimes and related offence being defined by and punishable under Articles 222-22, 222-23, 222-24, 222 ‑ 27, 222-29, 222-30, 222-44, 222-45, 222-47 and 222-48-1 of the Criminal Code and former Articles 331 and 332 of the Criminal Code, repealed with effect from 1 March 1994, and falling within the jurisdiction of the Assize Court in accordance with Article 214 of the Code of Criminal Procedure ...” On 14 December 2004 the Court of Cassation dismissed an appeal on points of law. On 23 April 2007 the trial began in the Ille-et-Vilaine Assize Court. In a judgment of 25 April 2007 the court and jury found the applicant guilty of “rape of a minor under fifteen years of age by a legitimate ascendant, rape of a minor under fifteen years of age by a person exercising authority and sexual assault of a minor under fifteen years of age by a legitimate ascendant or a person exercising authority” and sentenced him to twelve years’ imprisonment. The court ordered the applicant’s immediate detention. In a judgment of 13 June 2007 the Court of Cassation conferred jurisdiction on the Côtes d’Armor Assize Court to hear an appeal by the applicant and a cross-appeal by the prosecution. On 27 July 2007 the applicant was released subject to court supervision. On 24 March 2009 the oral proceedings began in the Côtes d’Armor Assize Court. The following questions were put to the court and the jury: “ Question no. 1 : Is the accused Olivier Legillon guilty of having committed acts of sexual penetration, of any nature whatsoever, against [A.], by violence, coercion or by taking the victim unawares, in La Morlaye (Oise), between 1 January 1982 and 31 December 1983? Question no. 2 : Was [A.], born on 20 June 1977, under fifteen years of age on the date of the acts specified above in question no. 1? Question no. 3 : Is the accused Olivier Legillon the legitimate father of [A.]? Question no. 4 : Is the accused Olivier Legillon guilty, as a French citizen, of having committed acts of sexual penetration, of any nature whatsoever, against [S.P.], by violence, coercion or by taking the victim unawares, in La Panne (Kingdom of <COUNTRY>), between 1 July 1985 and 15 September 1985? Question no. 5 : Was [S.P.], born on 8 August 1973, under fifteen years of age on the date of the acts specified above in question no. 4? Question no. 6 : Did the accused Olivier Legillon exercise authority over [S.P.] on the date of the acts specified above in question no. 4, as the husband of the mother of said minor, who lived with them? Question no. 7 : Is the accused Olivier Legillon guilty of having committed acts of indecent assault against [], born on 8 March 1986 and thus a minor under the age of fifteen, in Vieux-Viel, département of Ille-et-Vilaine, between 1 March 1999 and 31 March 2000? Question no. 8 : Were the acts of indecent assault specified above in question no. 7 committed by violence, coercion or by taking the victim unawares? Question no. 9 : Is the accused Olivier Legillon the legitimate father of []? Subsidiary question no. 1 : Is the accused Olivier Legillon guilty of having committed acts of sexual assault not involving penetration against [], by violence, coercion or by taking the victim unawares, in Vieux-Viel, département of Ille-et-Vilaine, between 1 March 1999 and 31 March 2000? Subsidiary question no. 2 : Was [], born on 8 March 1986, under fifteen years of age on the date of the acts specified above in subsidiary question no. 1? Subsidiary question no. 3 : Is the accused Olivier Legillon the legitimate father of []?” The answer given to the first six questions and the three subsidiary questions was “yes, by a majority of at least ten”, the answer to question 7 was “no” and questions 8 and 9 were found to be “devoid of purpose”. In a judgment of 27 March 2009 the applicant was found guilty and sentenced as follows: “It follows from the verdict reached by the court and jury together, by a majority of at least ten, that [the applicant] is guilty of: - having committed acts of sexual penetration, of any nature whatsoever, against [A.], by violence, coercion or by taking the victim unawares, in La Morlaye (Oise), between 1 January 1982 and 31 December 1983, with the aggravating circumstances that [A.], born on 20 June 1977, was under fifteen years of age on the date of the acts, and that he is her legitimate father; - as a French citizen, having committed acts of sexual penetration, of any nature whatsoever, against [S.P.], by violence, coercion or by taking the victim unawares, in La Panne (Kingdom of <COUNTRY>), between 1 July 1985 and 15 September 1985, with the aggravating circumstances that [S.P.], born on 8 August 1973, was under fifteen years of age on the date of the acts, and that he exercised authority over her, being her mother’s husband and living in the same household; - having committed acts of sexual assault not involving penetration against [], by violence, coercion or by taking the victim unawares, in Vieux-Viel, département of Ille-et-Vilaine, between 1 March 1999 and 31 March 2000, with the aggravating circumstances that [], born on 8 March 1986, was under fifteen years of age on the date of the acts, and that he is her legitimate father. The above facts, found to have been established by the court and the jury, constitute the serious crimes of rape of a minor under fifteen years of age by an ascendant, rape of a minor under fifteen years of age by a person exercising authority and the related offence of sexual assault of a minor under fifteen years of age by an ascendant, defined by and punishable under Articles 121-1, 121-3, 131-26, 131-27, 131-31, 222 ‑ 22 § 1, 222-23, 222-24 § 2, 222-29 § 1, 222-30 § 2, 222-44, 222-45, 222-47 of the Criminal Code and former Article 332 of the Criminal Code, repealed with effect from 1 March 1994 ... [The applicant] is SENTENCED to FIFTEEN YEARS’ IMPRISONMENT.” The judges of the court ordered the applicant’s immediate detention. The applicant appealed on points of law. The first ground submitted in his further pleadings in support of the appeal referred specifically to Article 6 § 1 of the Convention and the Court’s case-law, arguing that the indication “yes, by a majority of at least ten” in response to the questions constituted vague and abstract reasoning from which he was unable to discern why the questions had been answered in the affirmative or negative. In a judgment of 3 March 2010 the Court of Cassation dismissed the appeal on points of law against the Assize Court’s judgment of 27 March 2009. It held that the judgment convicting the applicant had included the answers which the judges and jury comprising the Assize Court of Appeal had given on the basis of their personal conviction, immediately after the oral proceedings, by a qualified majority of two-thirds following a secret vote, to the questions put to them, which had been the subject of adversarial argument. It held that since information had been provided in advance as to the charges forming the basis of the indictment, the rights of the defence had been freely exercised and the proceedings had been public and adversarial, the Assize Court’s judgment satisfied the statutory and Convention requirements that had been relied on.

Belgium

6

PARTICULAR CIRCUMSTANCES OF THE CASE The applicant, a Portuguese national born in 1930, is a businessman resident at Vitoria in <COUNTRY>. Until May 1975, he lived with his wife and their five children at Cascais (in <COUNTRY>). On 17 May 1975, the chairman of the "Commission for co-ordinating the disbandment of the PIDE/DGS (the International Political Police for the Protection of the State/Directorate-General of Security) and the LP (the Portuguese Legion)" ordered the applicant’s immediate arrest on the grounds that he was a "dangerous reactionary" and that it was necessary to "investigate his reactionary activities". At the time, following the attempted coup of 11 March 1975, <COUNTRY> was going through a difficult period, which lasted until the adoption of the new Constitution on 25 April 1976. Having learned that he was about to be arrested, the applicant fled to <COUNTRY> with his family and did not return to <COUNTRY> until September 1978, after the warrant for his arrest had been revoked. In his absence the employees of his civil-engineering firm took over the company and other assets of his, including his house, furniture and bank accounts. On 31 May 1976, the Cascais District Court declared the applicant’s business insolvent. Furthermore, the Cofre da Previdência, a public bank from which the applicant had bought his house, repossessed the house for default on payment and sold it to someone else. The applicant was later able to reach a friendly settlement and recover possession of the house on payment of certain sums to the bank and to the other person involved. On 30 July 1981, the applicant brought a civil action in the Administrative Court (auditoría administrativa) of Lisbon seeking damages from the State under Legislative Decree no. 051 of 21 November 1967 on the State’s non-contractual liability for acts of public administration (see paragraph 30 below). He contended that the warrant for his arrest had been illegal as it did not specify an offence and did not have a "proper purpose". The applicant claimed 8,800,000 escudos in compensation for pecuniary and non-pecuniary damage. The next day, the court registered the originating application (petição inicial) and issued a summons to the defendant - represented by State Counsel’s Office (ministério público) - requesting a reply within twenty days, in accordance with Article 486 § 1 of the Code of Civil Procedure (see paragraph 32 below). On 28 October 1981 and again on 27 January 1982, the Administrative Court granted a three-month extension of time applied for by State Counsel under Article 486 § 3 of the aforementioned Code (see paragraph 32 below). On 26 April 1982, State Counsel again applied for an exceptional thirty-day extension on the ground that he needed more information in order to prepare his submissions in reply (contestação). The court granted the application on 28 April 1982. Two further applications for exceptional thirty-day extensions were made by State Counsel on 8 June and 21 July 1982, on the ground that he did not yet have all the material with which to prepare his reply. The court granted these applications on 14 June and 27 July respectively. On 30 July 1982, the applicant complained to the court of this series of extensions and requested copies of some of the documents in the file in order to complain to the Supreme Council of the Judiciary and to the European Commission of Human Rights of a breach of Article 6 § 1 (art. 6-1) of the Convention. On 29 September 1982, he lodged notice of an appeal against an interlocutory order (de agravo - "interlocutory appeal") to the Supreme Administrative Court (Supremo Tribunal Administrativo) in respect of the Lisbon Administrative Court’s decision of 27 July in allowing State Counsel more time. He lodged the appeal with the lower court, with a request that it should be forwarded immediately to the higher court. On 15 October 1982, the Administrative Court declared the interlocutory appeal admissible but ordered that it should be placed on the file with the main appeal and not separately forwarded to the Supreme Administrative Court straightaway. It added that the interlocutory appeal had no suspensive effect. In his statement of grounds of appeal (alegações) dated 26 October 1982, the applicant contended that the Administrative Court had infringed Article 486 § 3 of the Code of Civil Procedure in extending the time allowed to State Counsel to file his pleadings by more than six months without exceptional cause, and that State Counsel had failed to specify what evidence and information he still needed. Such an extension of time could not be granted by the court arbitrarily, but only on exceptional grounds, and it could not exceed six months. Yet on this occasion more than a year had passed without State Counsel submitting his pleadings or giving valid reasons for not doing so. On 4 November 1982, State Counsel applied for another exceptional ten-day extension on the ground that the Administrative Court had moved into other premises and that for a time this had halted his office’s work. When invited by the court on 9 November to comment on this application, the applicant replied - on 15 November - that he considered it unjustified; he further demanded that it should be refused and that the time allowed to State Counsel should be declared to have expired. State Counsel’s pleadings were filed with the Administrative Court on 18 November and immediately forwarded to Mr. Baraona by the registrar of the court. In the belief that the Administrative Court had decided to include these in the file and have a copy served on him, the applicant lodged with that court notice of an interlocutory appeal to the Supreme Administrative Court on 25 November and requested that the appeal should be forwarded immediately to the higher court and should have suspensive effect. On 30 November, the applicant nevertheless filed his reply (réplica) to the pleadings lodged by State Counsel, who made a rejoinder (tréplica) on 17 December. On 21 December 1982, State Counsel submitted his observations (contra-alegações) on the applicant’s interlocutory appeal of 29 September. As grounds for the requested extensions, he alleged the need not only to assemble evidence but more particularly to decide on the general thrust of his pleadings, especially as regards objections. Moreover, there was no requirement under Article 486 § 3 of the Code of Civil Procedure to give detailed reasons for his application; a general justification was sufficient. Admittedly, Article 266 of the Code of Civil Procedure required the court to remove any hindrance delaying the proceedings, but that was a discretionary power which in the present case could not be usefully exercised. On 11 February 1983, the Administrative Court of Lisbon reversed its decision of 27 July 1982 to allow State Counsel more time and instead refused the application. Relying on Article 486 § 3 of the Code, it ruled that an extension of time could only be granted if State Counsel neither had the necessary information nor could obtain it in the time allowed. In addition, he had to specify the subject on which he needed information and the steps he had taken to obtain it. In the present case he had simply said he needed more information, without giving further particulars. The court accordingly excluded as having been filed out of time all pleadings submitted by the parties after 27 July 1982, that is to say State Counsel’s pleadings of 18 November 1982, the applicant’s reply of 30 November and the rejoinder of 17 December, and ordered that they be removed from the file. Noting, lastly, that State Counsel’s pleadings had been sent to the applicant by the registrar and not by the court itself, the court refused to entertain the applicant’s interlocutory appeal of 25 November 1982, as no appeal lay to the higher court against actions by the registrar, and a complaint should be made to the court itself. On the same day, the court ordered a number of investigatory measures, including a search for the warrant issued for Mr. Baraona’s arrest in 1975. When it became apparent that no trace of the warrant could be found, the Administrative Court gave a preliminary decision (despacho saneador) on 30 December 1983 declaring the case admissible and setting out a list of the facts agreed by the parties (especificação) and a list of matters to be clarified at the hearing (questionário). On 20 January 1984, under Article 511 § 2 of the Code of Civil Procedure, the applicant lodged a complaint against this decision. He argued that, as State Counsel’s pleadings had been withdrawn from the case file, all the allegations he had made in his own statement of claim were to be regarded as admitted, since Article 485 sub-paragraph (b) and Article 490 § 4 of the Code of Civil Procedure (see paragraph 32 below) had been abrogated by Article 6 § 1 (art. 6-1) of the Convention, which laid down the principle of equality of arms. Consequently, all the matters which the court had considered needed clarification at the hearing should have been put in the especificação as having been conceded. State Counsel’s comments on the complaint were lodged with the court on 27 January. On 2 February 1984, the registrar submitted the file to the court, and on 12 April the judge dismissed the complaint, apologising for the delay caused by his absence abroad on official business from January to March. He acknowledged that the applicant’s arguments were lent support by a learned article and by a court decision at first instance; but the latter had been set aside by the Oporto Court of Appeal on 7 June 1983, and he stated his agreement with that court’s decision: State Counsel’s Office had less opportunity to meet those it represented, particularly where the defendant was a State body. In addition, the law, in order to be fair, sometimes had to treat the parties differently if they were not to be equal on paper only; the principle of equality of arms entailed compensating for initial inequality - for example, by providing legal aid or setting more generous time-limits in the case of persons resident in a distant country or whose whereabouts were unknown. On 8 May 1984, this decision was communicated to Mr. Baraona, who on 10 May 1984 lodged notice of an interlocutory appeal against it to the Supreme Administrative Court. On 17 May, the Administrative Court decided to forward the appeal to the higher court together with the entire case file and to give it suspensive effect. In his statement of grounds of appeal dated 5 June, the applicant put forward substantially the same arguments as in the complaint he had made to the Administrative Court of Lisbon on 20 January. On 20 and 24 July 1984, State Counsel and the latter court submitted their observations on the appeal. The file reached the Supreme Administrative Court in October 1984, whereupon State Counsel was asked to submit his opinion, and two judges of the court then drew up their report. On 21 March 1985, the Supreme Administrative Court dismissed both interlocutory appeals, of 29 September 1982 and 10 May 1984. With regard to the first appeal, against the Administrative Court’s decision of 27 July 1982, the Supreme Court found that on 11 February 1983 the judge below had himself rectified the situation by rescinding the impugned decision and excluding all pleadings submitted after 27 July 1982 as being out of time. With regard to the second appeal, against the Administrative Court’s decision of 12 April 1984, the Supreme Court ruled that, contrary to the applicant’s contention, Article 485 sub-paragraph (b) of the Code of Civil Procedure had not been abrogated by Article 6 § 1 (art. 6-1) of the Convention. The State was in any case differently placed from private companies. Accordingly, not all Mr. Baraona’s submissions as to the facts were to be regarded as having been conceded; it was for the Administrative Court to consider them in the light of evidence adduced at the hearing. On 8 April 1985, the applicant appealed against this decision (acordão) to the Constitutional Court, asking it to rule whether Article 485 sub-paragraph (b) was still in force. The Constitutional Court registered the appeal on 16 April 1985. The applicant and State Counsel filed their pleadings on 15 July and 24 October 1985 respectively. State Counsel submitted that the court had no jurisdiction, as no breach of the Constitution had been alleged by the applicant either at first instance or before the Supreme Administrative Court. Mr. Baraona replied on 12 November 1985 that a breach of the principle of equality of arms was contrary both to the Convention and to the Constitution. On 5 March 1986, the Constitutional Court dismissed the objection and proceeded to consider the question of the principle of equality of arms. In a judgment on 19 November 1986, it dismissed the appeal, and the applicant immediately challenged the judgment as being null and void; but it was confirmed on 14 January 1987. The proceedings in the Administrative Court of Lisbon have since resumed and are at the preliminary stage. LAW GOVERNING THE STATE’S NON-CONTRACTUAL LIABILITY Following the revolution of 25 April 1974, the "Armed Forces Movement" promulgated Law no. 3/74, of 14 May, which upheld the existing schedule of basic rights and freedoms in the 1933 Constitution and also laid down fundamental principles concerning judicial independence and defence rights. Article 8 § 17 of the 1933 Constitution recognised "the right to reparation for actual infringements of rights"; as to non-pecuniary damage, statutory provision could be made for financial compensation. Most of the existing provisions of civil and criminal law were retained, in particular Legislative Decree no. 051 of 21 November 1967 on the State’s non-contractual liability. By Legislative Decree no. 36/75 of 31 January 1975, the powers of the "Commission for co-ordinating the disbandment of the PIDE/DGS and the LP" - a commission which had been set up pursuant to an order (despacho) issued by the Army Chief of Staff on 7 June 1974 - cover the preparation of proceedings against individuals who belonged to the relevant police forces or collaborated with them (Article 2 § 3); the chairman of the Commission had the same powers as those conferred on commanding officers of the military regions under the Military Criminal Code (Article 2 § 4). By Article 21 of the Constitution of 25 April 1976: "The State and other public bodies shall be jointly and severally liable in civil law with the members of their agencies, their officials or their agents for actions or omissions in the performance of their duties, or caused by such performance, which result in violations of rights, freedoms or safeguards or in prejudice to another party. Wrongly convicted persons shall have a right to retrial and to compensation for damage sustained, on conditions to be laid down by law." The Constitution was amended by Constitutional Law no. 1/82 of 27 September 1982, Article 22 of which reproduces the foregoing Article 21 § 1 unchanged, however. The Civil Code of 1966, which is still in force, deals with the State’s civil liability but only in respect of acts of "private administration" (Article 501). As regards acts of "public administration", Legislative Decree no. 051 of 21 November 1967 contains provisions on the non-contractual liability of the State and other public bodies for acts due to negligence, abuse of authority or deceit by their agencies or officials. The most important of these are as follows: "Article 2 The State and other public bodies shall be liable to third parties in civil law for such breaches of their rights or of legal provisions designed to protect the interests of such parties as are caused by negligent acts (actos ilicitos culposamente praticados) of their agencies or officials in the performance of their duties or as a consequence thereof. Where any compensation is paid pursuant to the previous paragraph, the State and other public bodies shall have a right of recourse against the members of the agency or the officials at fault if they failed to act with proper diligence. Article 3 Members of the agency and officials of the State and other public bodies shall be liable to third parties in civil law for unlawful acts in breach of their rights, or of legal provisions designed to protect the interests of such parties, where they have exceeded their powers or if they acted with wrongful intent in exercising them. The public body shall always be jointly liable with the members of the agency or the officials concerned for acts performed with wrongful intent. Article 4 The negligence (culpa) of the members of the agency or of the officials concerned shall be assessed in accordance with Article 487 of the Civil Code. Where more than one person is liable, Article 497 of the Civil Code shall apply. Article 5 The right to compensation under the foregoing provisions shall be time-barred after expiry of the periods laid down in the Civil Code. Limitation of actions by the State to enforce its right of indemnity is likewise governed by civil law. ..." Under the Administrative Code, actions for damages in respect of liability of public authorities come within the jurisdiction of the administrative courts (auditores - Articles 815 and 820). With the exception of certain rules regarding locus standi and limitation (Articles 824 and 829), Article 852 explicitly refers to the provisions governing ordinary civil procedure. Decisions of administrative courts are subject to appeal as to the merits, interlocutory appeal and complaint (Article 853). Certain interlocutory appeals have a suspensive effect and must be referred forthwith to the Supreme Administrative Court, in particular those made against a decision to dismiss a complaint against a preliminary decision (Article 859 sub-paragraph (d)), while others must be forwarded with the case file when the final decision is appealed, and have no suspensive effect (Article 860). The procedure in question must therefore comply with the rules in the Code of Civil Procedure. Article 484 § 1 of the Code provides that "if the defendant fails to submit pleadings in reply notwithstanding the proper issue of a summons ..., the facts as pleaded by the plaintiff shall be deemed to have been admitted". Article 485 lays down certain exceptions to this principle, however; in particular, sub-paragraph (b) states that the rule does not apply where the defendant is a legal person. Under Article 486 § 1 the defendant has twenty days in which to reply to the claim, but paragraph 3 of the same Article provides: "State Counsel shall be granted more time when he needs information he cannot obtain within the time-limit or when he is awaiting a reply from a higher authority. The extension may not exceed six months unless exceptional cause is shown." Article 490 § 1 of the Code of Civil Procedure stipulates that "the defendant shall reply clearly to each item of fact in the originating application; items not expressly (especificadamente) disputed shall be regarded as agreed between the parties except where obviously inconsistent with the defence as a whole, or not capable of being admitted, or provable only by written document". By paragraph 4, however, this provision applies neither to defence counsel assigned by the court nor to State Counsel. Under Article 511 § 2, once the parties have been informed of the preliminary decision they may make "any complaints they wish about the list of the facts agreed by the parties or the list of matters to be clarified at the hearing on grounds of procedural irregularity (deficiência), irrelevance (excesso), complexity or obscurity".

Portugal, Brazil

PARTICULAR CIRCUMSTANCES OF THE CASE The applicant is a Danish citizen, born in 1919. He is a precious-stone cutter by profession and resides at Narssaq, <COUNTRY>. When, in 1979, the <COUNTRY> Local Government decided to introduce taxation of Danish nationals working on American bases in <COUNTRY>, a number of the persons affected (which persons did not include Mr Barfod) challenged that decision before the High Court of <COUNTRY> (Grønlands Landsret). They argued that the decision was illegal on the grounds, inter alia, that they did not have the right to vote in local elections in <COUNTRY> and did not receive any benefits from the <COUNTRY> authorities. The case was heard in the High Court sitting with one professional judge and two lay judges; the latter were both employed by the Local Government. In its judgment of 28 January 1981, which is not the object of the present complaint, the High Court unanimously found for the Local Government; this judgment was subsequently upheld by the High Court for Eastern <COUNTRY> (Østre Landsret) on 8 September 1983 ("the 1981 tax case"). After learning about the judgment of the High Court of <COUNTRY>, the applicant wrote an article on the judgment, published in a magazine called "Grønland Dansk" in August 1982. In the article he expressed his opinion that the two lay judges were disqualified under Article 62 of the Danish Constitution (see paragraph 15 below); he also questioned their ability and power to decide impartially in a case brought against their employer. The article included the following passage (translation from Danish): "Most of the Local Government’s members could ... afford the time to watch that the two <COUNTRY> lay judges - who are by the way both employed directly by the Local Government, as director of a museum and as consultant in urban housing affairs - did their duty, and this they The vote was two to one [cf paragraph 13 below] in favour of the Local Government and with such a bench of judges it does not require much imagination to guess who voted how." The professional High Court judge considered that these remarks on the two lay judges were of a kind which might damage their reputation in the eyes of the public and hence generally impair confidence in the legal system. As head of the <COUNTRY> judiciary, he consequently applied to the <COUNTRY> Chief of Police, asking for a criminal investigation to be instituted. The applicant was subsequently charged with defamation of character within the meaning of Article 71(1) of the <COUNTRY> Penal Code (Kriminalloven for Grønland; see paragraph 17 below) before the District Court (Kredsret) of Narssaq. After an initial question of venue had been settled, the case was heard by the District Court of Narssaq on 9 December 1983. The applicant confirmed that he had written the article in question but he maintained that the lay judges had been barred, by virtue of Article 62 of the Danish Constitution (see paragraph 15 below), from adjudicating in the tax case and that the defamation case brought against him violated Article 77 of the Danish Constitution, which guarantees freedom of expression (see paragraph 16 below). In its judgment of the same day, the District Court stated (translation from Danish): "The Court does not find that the validity of the High Court judgment of 28 January 1981 should be examined in the present proceedings. The sole question is whether the accused, through the contents of his article, has insulted two of the judges sitting in that case. The Court finds that in the particular paragraph of the article in question the accused used such words that the two judges concerned may rightly consider their honour offended. The right invoked by the accused to freedom of expression in accordance with Article 77 of the Constitution is not found to be violated since the accused is entitled, without prior censorship, to state his views, although he may still be held responsible in the courts. Accordingly, the Court finds the accused guilty of having violated Article 71(1) of the <COUNTRY> Penal Code since it does not find that the accused has, in accordance with Article 71(2) of the same Code, proved the justification of his choice of words in the article in question." The District Court imposed a fine of 2,000 Danish Crowns on the applicant. The applicant appealed to the High Court for Eastern <COUNTRY>, but the proceedings were transferred to the High Court of <COUNTRY> as this court was considered the proper court of appeal. When the High Court heard the case, the usual professional judge, who was disqualified as he had been responsible for initiating the proceedings, was replaced by one of his deputies (see paragraphs 10 above and 18 below). In its judgment of 3 July 1984 upholding the District Court’s judgment, the High Court emphasised that the applicant had misunderstood the votes in the 1981 tax case: it was only with regard to the reasoning that there was a dissent; with regard to the conclusion all three judges had decided in favour of the Local Government (see paragraph 8 above). As to the charge brought against the applicant, the Court stated inter alia (translation from Danish): "Like the District Court, the High Court agrees with the prosecution that the words of the article to the effect that the two <COUNTRY> lay judges did their duty - namely their duty as employees of the Local Government to rule in its favour - represent a serious accusation which is likely to lower them in public esteem. Proof of the accusation has not been adduced, something which, moreover, would not have been possible since it cannot be excluded that they would have reached the same result had they not been employed by the Local Government. The accused will hereafter be considered guilty of having violated Article 71(1) of the Penal Code. Finally, concerning the question of the competence of the two lay judges, the High Court agrees with the accused that they, being employed in leading positions by the defendant party, ought - as was pointed out by the defence and notwithstanding the specific difficulties in <COUNTRY> of observing strict rules in regard to competence - to have considered themselves as disqualified and thus refrained from participating in the case, and that he was correct in drawing attention to this. Having regard, on the one hand, to the seriousness of the accusation and the information now available about the accused’s economic situation - which would give grounds for a considerable increase of the fine imposed - and, on the other hand, to the appropriateness of drawing attention to the failure to observe reasonable rules of competence which occurred, the Court finds that the fine imposed should be confirmed." The applicant subsequently asked the Ministry of Justice for leave to appeal to the Supreme Court (Højesteret), but his request was rejected on 14 March 1985. DOMESTIC LAW AND PRACTICE A. Danish Constitution According to Article 62 of the Constitution (Danmarks Riges Grundlov), the administration of justice shall remain separated from the Executive and the rules in this respect shall be laid down by law. Freedom of expression is protected by Article 77 of the Constitution, which provides (translation from Danish): "Everyone shall be entitled to make public his views in print, in writing and in speech, with the proviso that he may be held responsible in a court of justice. Censorship and other preventive measures shall never again be introduced." B. <COUNTRY> Penal Code The crime of defamation of character is defined in Article 71 of the <COUNTRY> Penal Code (Kriminalloven for Grønland), which provides (translation from Danish): [(1)] "Any person shall be liable to punishment for defamation of character if he degrades the honour of another person through insulting words or acts or if he makes or disseminates an accusation which is likely to damage the esteem in which the insulted party is held by his fellow citizens or which may in other ways damage his relationship with other people. (2) However, no person may be convicted on the ground of an accusation which is proved true or has been made in good faith, if the perpetrator was under an obligation to make the statement or acted in order to safeguard, justifiably, an evident public interest or his own or another’s interest. (3) A person making an accusation supported by evidence may nevertheless be convicted if the wording of the accusation is unduly insulting or if the perpetrator had no reasonable cause to make the accusation. (4) Whenever a defamatory accusation is unwarranted, the insulted party may call for a statement to this effect to be included in the conclusions of the judgment." Administration of justice in <COUNTRY> The administration of justice in <COUNTRY> is much influenced by the special conditions obtaining there: time-honoured traditions, the country’s enormous size and widely scattered settlements. The legal system consists of two levels of courts: the district courts, which are the courts of first instance, and the High Court, which is the court of appeal but can also hear certain cases at first instance. Depending on whether the High Court decides a case on appeal or at first instance, its judgment can be appealed either to the Supreme Court, if leave to appeal is granted by the Ministry of Justice, or to the High Court for Eastern <COUNTRY>. The High Court is presided over by the High Court Judge or one of his deputies, all of whom are legally trained. The High Court also includes two lay judges, appointed for four years at a time by the <COUNTRY> Parliament (Landstinget) upon nomination by the High Court Judge. The district courts are composed of three lay judges appointed for four years: the president, appointed by the High Court Judge, and two other lay judges appointed by the local authorities upon nomination by the High Court Judge. The lay judges discharge their duties as a civic obligation alongside their ordinary work. Any person entitled to vote in local elections may be appointed to act as a lay judge. Only if it is especially onerous for a lay judge to discharge his duties, may he be relieved of his appointment by the High Court Judge. It is a fundamental principle of Danish as well as <COUNTRY> administration of justice that a judge must be impartial and be guided solely by the law and the evidence adduced. This principle applies to all persons exercising judicial power, that is both professional judges and lay judges. The rules relating to disqualification of judges are laid down in the <COUNTRY> Administration of Justice Act. However this Act is worded in general terms and does not explicitly mention an employee/employer relationship between judges and parties as a ground for disqualification. A decision given by a judge under the influence of considerations other than those deriving from the law or the evidence adduced, for example in deference to his employers, would be a manifest breach of duty for which sanctions would be available either under the <COUNTRY> Administration of Justice Act (disciplinary punishment) or under Article 28 of the <COUNTRY> Penal Code (abuse of public authority).

Greenland, Denmark

A. The period of the applicant’s detention The applicant was detained in Wrocław Remand Centre during various periods between 1991 and 2014, including from 24 June 2009 to 2 October 2010. He was released from detention on 8 July 2017. B. The conditions of the applicant’s detention The applicant submitted that during his detention in Wrocław Remand Centre he had been held in overcrowded cells in which the space per person had been below the Polish statutory minimum standard of 3 sq. m According to documents from the domestic proceedings and the Government’s submissions, the applicant was held in overcrowded cells between 29 July and 26 August 2009 (a period of approximately one month). Civil proceedings against the State Treasury On 5 April 2011 the applicant brought a civil claim before the Wrocław Regional Court against the State Treasury for infringement of his personal rights and for compensation on account of his detention in overcrowded cells in Wrocław Remand Centre. He claimed 20,000 Polish zlotys (PLN) in compensation. His case was transferred to the Wrocław ‑ Śródmieście District Court in Wrocław (hereinafter “the court”) and registered under the reference number IX C 295/10 . On 6 May 2011 the court exempted the applicant from the court fees and dismissed his application for legal aid. The court held that the applicant was able to formulate his claims in a clear and understandable manner. Hence, the legal aid was not necessary. The applicant did not challenge that decision. 11 . In the course of the judicial proceedings the applicant lodged several applications and requests with the court, including a letter of 8 August 2012. The court, by an order of 28 August 2012, instructed the applicant that to comply with formal requirements he should submit an additional copy of that letter. The order further stated: “At the same time the court informs [you] that all pleadings ( pisma ) should be submitted in two copies.” On 5 October 2012 the Wrocław ‑ Śródmieście District Court dismissed the applicant’s civil claim. The court found that the applicant’s cells had indeed been overcrowded for approximately one month, but that he had failed to demonstrate that the actions of the defendant had been unlawful. 13 . On 10 October 2012 the applicant lodged with the court a letter entitled “application: refers to an appeal against the judgment of the Wrocław ‑ Śródmieście District Court of 5 October 2012” which the court treated as an appeal. That pleading was submitted in one copy. 14 . On an unspecified date the applicant applied for legal aid. On 26 October 2012 the Wrocław ‑ Śródmieście District Court rejected the applicant’s request on the same grounds as previously (see paragraph 10 above). 15 . On 29 October 2012 the applicant was served with the judgment and information about the time and manner of the right to appeal, in the following terms: “A party who disagrees with the judgment has a right to request the written reasoning of the judgment within seven days of the service of that judgment and later to appeal to the second-instance court via the court that issued the judgment, within two weeks, calculated from the service of the reasoned judgment. If the party does not ask for the reasoned judgment, the appeal is to be submitted directly within 21 days of the service of the judgment. Article 369 § 1: The appeal shall be submitted to the court that issued the judgment within two weeks, calculated from the service of the reasoned judgment.” On 12 November 2012 the applicant received the reasoning of the court’s judgment of 5 October 2012. 17 . On 21 December 2012 the applicant lodged with the court a request for leave to appeal out of time against the judgment of 5 October 2012, as well as two copies of a letter entitled “appeal”. On 1 February 2013 the court dismissed the applicant’s request for leave to appeal, and explained that he had already lodged his appeal on 10 October 2012, which was within the relevant time-limit. The court underlined that the applicant’s appeal of 10 October 2012 did not comply with the formal requirements. 18 . Therefore, on 6 February 2013 the court issued an order and instructed the applicant to comply with the formal requirements of his appeal by submitting a copy thereof within seven days of the service of the court order. The order was served on 14 February 2013. 19 . On 15 February 2013 the applicant submitted a letter in which he informed the court that he was unable to comply with the order because he did not have the text of his appeal that he could copy or rewrite and he did not remember the exact wording of his pleadings. He added that he had not been aware that he should have submitted his appeal in two copies. 20 . On 19 March 2013 the court rejected the applicant’s appeal for failure to submit an exact copy thereof. 21 . On 30 March 2013 the applicant appealed against that decision. When ordered, he rectified the formal requirements of his interlocutory appeal by submitting a copy of it and stating the amount of his claim. On 21 June 2013 the Wrocław Regional Court dismissed the applicant’s interlocutory appeal, holding that the applicant, who had started a civil action and knew that he was deprived of his liberty, could justifiably be expected to keep copies of all letters he sent to the court, especially since he had been informed on 28 August 2012 that all letters to the court should be submitted in two copies. Additionally, after the judgment had been issued the applicant was informed about the means and procedure of submitting appeals.

The prohibition order On 2 December 1994 the Burgomaster ( Burgemeester ) of Amsterdam, relying on Sections 172 and 175 of the Municipality Act ( Gemeentewet ) as amended on 1 January 1994, imposed a prohibition order ( verwijderingsbevel ) on the applicant to the effect that the latter would not be allowed for a period of fourteen days to enter a particular area, e. the “Ganzenhoef” area, one of the emergency areas designated by the Burgomaster. The following events were referred to in the Burgomaster’s decision as having led to this order being issued: – It appeared from police reports that on 9 and 12 September, 3 October, 14 and 16 November 1994 the applicant had either overtly used hard drugs, had had utensils for the use of hard drugs in his possession or had had hard drugs in his possession in the Ganzenhoef area and that on four of those occasions the applicant had been ordered to leave the area for eight hours. – On 16 November 1994 the applicant had been heard by the police about his conduct and he had been told that he would either have to refrain from acts which disturbed the public order ( openbare orde ) or have to stay away from the area. The applicant had further been informed that if he committed such acts again in the near future, the Burgomaster would be requested to impose a prohibition order for fourteen days on him. On that occasion the applicant did not wish to state anything as to the reasons for his presence in that area. – On 25 November 1994 the applicant had nevertheless overtly used hard drugs in the Ganzenhoef area. He had once again been ordered to leave the area for eight hours and the police had subsequently requested the Burgomaster to impose a prohibition order for fourteen days on the applicant. In the opinion of the Burgomaster the applicant would again commit acts disturbing public order within the near future. In this respect the Burgomaster took account of the kind of conduct involved, e. acts seriously disturbing public order, the repetition and continuity of this conduct, the statement of the applicant, the short period of time within which the acts concerned had been observed and the fact that the applicant had continued his disruptive behaviour despite the eight-hour prohibition orders imposed on him and the warning given by the police. Finally, the Burgomaster noted that neither the applicant’s home nor his place of work were situated in the area concerned. B. The applicant’s objection to the Burgomaster On 12 December 1994 the applicant submitted an objection ( bezwaarschrift ) against the prohibition order to the Burgomaster. He submitted, inter alia , that the Burgomaster had failed to take into account the fact that he was residing in the Ganzenhoef area, that he needed to be present there in person twice a week in order to collect his social security benefits and that he received social counselling there. The applicant stated that the police knew this, but had failed to mention it in the police report on the applicant’s hearing of 16 November 1994. The applicant further submitted that the prohibition order could not be considered as having a legal basis in that the emergency powers granted to the Burgomaster under the Municipality Act were intended for emergency situations. According to the applicant, the legislature had never intended structural nuisance caused by drug abusers to be considered as creating an emergency situation. Moreover, the applicant’s absence from the Ganzenhoef area would not make any difference in this respect since he was only one of many drug abusers in that area. The applicant also complained that the order was contrary to Article 6 of the Convention in that it constituted a sanction and could therefore only be imposed by a judge. He further complained that the order restricted his freedom of movement and was contrary to his right to respect for his private life, family life, home and correspondence. On 10 January 1995 a hearing took place before an advisory committee. During this hearing the representative of the Burgomaster stated that already on 19 April 1994 a prohibition order for fourteen days had been imposed on the applicant and that on 16 November 1994 the applicant had not wished to make any statement to the police as to the reasons for his presence in the Ganzenhoef area. Despite the previous orders, the applicant had continued his undesirable conduct and on this ground the imposition of a new prohibition order had been sought. The Burgomaster’s representative further stated that the address where the applicant had stated that he resided and where he collected his mail and social security benefits was in fact the address of the Streetcornerwork Foundation. It was not possible to reside at that address. This Foundation had a procedure under which social-security benefits for persons subject to a prohibition order could be collected by an authorised third party and it was possible for the applicant to avail himself of that procedure. On 29 June 1995 the committee advised the Burgomaster to reject the objection and to maintain the prohibition order. It considered, inter alia , having regard to the fact that the applicant had, within a short period of time, regularly committed acts which had disrupted public order and that the prohibition orders for eight hours which had been issued had not prevented him from behaving in that manner, that the imposition of the prohibition order had not been unreasonable. It further found that the order was in conformity with Section 172 (3) of the Municipality Act, that therefore it was not necessary to examine the question whether or not the conditions set out in Section 175 of the Municipality Act had been fulfilled, and that the Burgomaster had not exceeded his competence under the Municipality Act. It did not agree with the applicant that the impugned measure constituted a penalty as it had been issued in order to maintain public order. The committee finally found that the interference with the applicant’s right to liberty of movement had been justified and that the prohibition order could not be regarded as disproportionate. By decision of 6 July 1995 the Burgomaster rejected the applicant’s objection, adopting as his own the reasoning applied by the advisory committee. Proceedings in the Regional Court The applicant lodged an appeal with the Regional Court ( arrondissementsrechtbank ) of Amsterdam. By judgment of 19 January 1996, following adversarial proceedings in the course of which a hearing was held on 8 December 1995, the Regional Court declared the applicant’s appeal well-founded and quashed the prohibition order. The Regional Court accepted that the overt use of hard drugs in public places and the presence of a concentration of drug abusers and dealers disrupted public order and acknowledged the necessity to end such nuisance, in particular when this occurred continuously at specific locations in the city. The Regional Court noted that the Burgomaster availed himself of two means to that end, namely prohibition orders of either eight hours or fourteen days. It considered the procedure established as regards the imposition of prohibition orders for a duration of fourteen days and noted that this procedure had not been fully complied with in that the applicant’s prohibition order had not been sought by the competent police officer. However, as it was not established that this had harmed the applicant’s interests, it did not find that this flaw should result in the quashing of the order. It did, however, find that the order should be quashed on other grounds. The Regional Court held that, unlike the situation in which an eight ‑ hour prohibition order has been imposed, Section 172 (3) of the Municipality Act offered no basis for the imposition of a prohibition order for a duration of fourteen days. It held on this point that the competence established by this provision aimed to create a possibility for direct reaction to an expected disturbance of public order and might serve to prohibit someone’s presence for a limited period of time in the area where the disturbance of public order was expected. It held that the eight-hour prohibition order was such as to meet this need, but not the fourteen days prohibition order, the latter measure being disproportionate in relation to the expected disruption of public order and thus going beyond what could be considered necessary for maintaining public order. The Regional Court added that in the present case this was all the more so as the applicant had no permanent place of residence and used the address of the Streetcornerwork Foundation as his postal address. The prohibition order implied that the applicant’s freedom of movement was limited for fourteen days in a manner which prevented him from collecting his mail and from receiving his social security benefits. It rejected the argument advanced by the Burgomaster’s representative that the police would not undertake any formal action against the applicant for acting contrary to Article 184 of the Criminal Code ( Wetboek van Strafrecht ), e. the offence of failure to comply with an official order ( ambtelijk bevel ), when collecting his social security benefits at the address of the Streetcornerwork Foundation, considering that the applicant’s freedom of movement could not be made dependent on the willingness of the police officer on duty to tolerate intrinsically punishable conduct. The Regional Court further found that the situation at issue, e. nuisance caused by drug abuse, did not constitute a situation within the meaning of Section 175 of the Municipality Act and accordingly held that the Burgomaster could not have based the prohibition order on this provision. As it had already found the prohibition order to be incompatible with national law, the Regional Court did not find it necessary to determine whether or not the order was compatible with Article 6 of the Convention. Proceedings in the Administrative Jurisdiction Division of the Council of State On 7 February 1996, the Burgomaster lodged an appeal against the Regional Court’s judgment with the Administrative Jurisdiction Division ( Afdeling Bestuursrechtspraak ) of the Council of State ( Raad van State ). In its judgment of 19 December 1996, following adversarial proceedings, the Administrative Jurisdiction Division quashed the Regional Court’s judgment of 19 January 1996 and rejected the applicant’s appeal to the Regional Court as ill-founded. Its reasoning included the following: “The prohibition order issued against Landvreugd is based on a decision of the appellant, dated 28 October 1993 and addressed to the Chief Superintendent of Police, which contains an instruction to the police relating to the preparation and issuing of a fourteen-day prohibition order. This instruction designates the Ganzenhoef area as an “emergency area” and indicates the behaviour which the appellant considers to be constitutive of serious breaches of public order, including the overt possession or use on or near the public highway of addictive substances within the meaning of Section 2 of the Opium Act. The Regional Court held, among other things, that the appellant was not competent to act on the basis of Section 175 of the Municipality Act, because a situation within the meaning of that Section was lacking. The Administrative Jurisdiction Division does not share this opinion. Its reasons are the following. It is laid down in Section 175, first paragraph, of the Municipality Act that in case of a riotous movement, of other serious disorders or of calamities, as well as in case of a well-founded fear of the development thereof, the Burgomaster is empowered to issue all orders which he deems necessary for the maintenance of public order or the limitation of general danger. In doing so he may deviate from rules other than those of the Constitution. The Administrative Jurisdiction Division notes at the outset that giving orders in the situations described in Section 175 of the Municipality Act is not contrary to the right to freedom of movement as guaranteed by Article 12 of the International Covenant on Civil and Political Rights and Article 2 of Protocol No. 4 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, since provision has been made for the possibility to limit this right by law – which also includes an order given by the Burgomaster pursuant to the law – for the protection of public order. Section 175 of the Municipality Act replaced Section 219 of the Municipality Act which was repealed as of 1 January 1994. As did Section 219, Section 175 grants the Burgomaster emergency powers which should only be used in exceptional situations. Thus provision has been made by law for circumstances in which ordinary means are insufficient to restore and maintain public order. The Administrative Jurisdiction Division notes in this connection that the wording of Section 175 does not lead to the conclusion that that provision, as compared with Section 219, is intended to introduce any changes as regards the circumstances in which emergency powers may be used. Its drafting history does not justify holding otherwise. In the opinion of the Administrative Jurisdiction Division, ordinary means may be considered insufficient in the present case and there was, at the time of the decision on the objection, an exceptional situation of the kind referred to above. The Administrative Jurisdiction Division finds in this regard that the facts relating to the situation in the Ganzenhoef area, based on which the appellant decided to issue the fourteen-day prohibition order, are established. In light of the decision of 28 October 1993 the situation there was characterised by the presence of a large number of drug addicts and the attendant nuisance, inconvenience, insecurity and threats to other citizens. This factual situation is so serious that the personnel and means available to the appellant were insufficient to counter the disruptions of public order thereby caused. It is important to note in this context that at the time the objection was decided on, it was not possible to solve the problem there by means of a regulation adopted by the municipality ( gemeentelijke regeling ). At that time there was no relevant provision in any municipality bye-law, nor were any other adequate administrative-law means available. Given that the decision dismissing the objection was given before the Administrative Jurisdiction Division delivered its decision of 14 May 1996 ..., the absence of such a provision cannot be held against the appellant. Apart from that, by a decision of 26 June 1996, Section 6 A has been added to the General Municipal Bye-law of Amsterdam, which contains a regulation governing prohibition orders in relation to hard drugs. Against this background, the Administrative Jurisdiction Division is of the opinion that it cannot be maintained that the appellant was not entitled to use the powers granted him by Section 175 of the Municipality Act. Moreover, nothing brought forward by Landvreugd constitutes a ground to find that the appellant could not reasonably decide, in the light of the circumstances of the case, to issue a fourteen-day prohibition order. ... The position taken by the appellant, that the risk of repetition of behaviour constituting a breach of the peace was so great that a fourteen-day prohibition order was necessary, is not unreasonable. The Administrative Jurisdiction Division further notes that Landvreugd is not resident in the Ganzenhoef area, is not dependent on that area for work, and that he was offered the possibility to collect his social-security benefits from the Streetcornerwork Foundation.” E. Criminal proceedings Apart from the proceedings described above, the applicant was arrested and placed in detention on 4 December 1994 for failure to comply with the prohibition order of 2 December 1994. On 20 December 1994 the single-judge chamber ( politierechter ) of the Amsterdam Regional Court ( arrondissementsrechtbank ) suspended the applicant’s pre-trial detention in order to allow the applicant to be admitted to the Crisis Observation and Detoxification Department of the J. clinic and adjourned the criminal proceedings against the applicant sine die . By judgment of 22 May 1995, the single-judge chamber of the Regional Court convicted the applicant of having failed to respect a prohibition order on two occasions and sentenced him to four months’ imprisonment with deduction of the time spent in pre-trial detention. The applicant appealed to the Court of Appeal ( gerechtshof ) of Amsterdam. In its judgment of 4 February 1997, the Court of Appeal quashed the judgment of 22 May 1995 and convicted the applicant of having failed to respect a prohibition order on one occasion. However, as the applicant had also amassed other convictions which the law required to be taken into account for sentencing purposes, the Court of Appeal was prevented from imposing any sentence as the maximum aggregate penalty had already been attained. The applicant’s subsequent appeal on points of law was rejected on 16 June 1998 by the Supreme Court ( Hoge Raad ). The criminal proceedings against the applicant do not form part of the case before the Court.

P1-1

The applicant’s criminal conviction 6 . On 22 September 2006 criminal proceedings were instituted against the applicant concerning bribery. On 25 September 2006 the investigator registered a restriction against the title to eleven immovable properties belonging to the applicant, effectively seizing them ( uzlika arestu ). This decision was approved by an investigating judge and could not be appealed against. 7 . On 22 February 2008 the Riga City Centre District Court convicted the applicant, under section 320(2) of the Criminal Law, of requesting and attempting to receive a bribe of 80,000 Latvian lati (approximately 114,000 euros (EUR)). It was established that as a head of an educational institution he had demanded a bribe from a board member of a private company to conclude a settlement in pending civil proceedings. After finding that there were no mitigating or aggravating circumstances, the court sentenced the applicant to four years’ imprisonment. The court also imposed a mandatory ancillary penalty of confiscation of property. The particular property to be confiscated was not specified (see paragraph 25 below regarding execution of that penalty). 8 . On 27 April 2009 that judgment was upheld by the Riga Regional Court. It noted that the punishment imposed on the applicant was fair and proportionate. Bearing in mind his personality and health condition, the circumstances of the crime and the harm caused, the penalty had been set close to the minimum margin of the sanction provided for in section 320(2) of the Criminal Law. The Riga Regional Court found no grounds to impose a suspended sentence or to apply a sanction below the margin set forth by the law. No specific comment was made with respect to the ancillary penalty of confiscation of property. On 4 November 2009 the judgment was further upheld by the Senate of the Supreme Court. Constitutional complaints The applicant brought several constitutional complaints challenging the constitutionality of section 320(2) of the Criminal Law. On 26 January 2010 and 3 March 2010 the Constitutional Court declined to institute proceedings, considering the reasoning provided by the applicant evidently insufficient for the claim to be allowed. On 17 March 2010 the applicant submitted an amended constitutional complaint. He objected, in particular, to the disproportionate nature of the penalty and argued that the confiscation of the entirety of his property would make it impossible for him to care for his minor son and disabled parents. Furthermore, the confiscation order also affected a house registered in his name but used by his adult son with his own family. The applicant argued that the compulsory confiscation of property was contrary to the prohibition of discrimination, the right to a fair trial, and the right of property, as guaranteed by the Constitution of <COUNTRY>. In relation to the prohibition of discrimination, the applicant complained of the indiscriminate character of the compulsory confiscation. He argued that the courts, when imposing the penalty of confiscation, ought to be able to take into account the material situation of the persons concerned in order to prevent a disproportionate impact. The applicant considered that confiscation of the entirety of a convicted person’s property was a relic of the Soviet criminal-law system. Concerning the right to a fair trial, the applicant contended that it entailed a right to fair punishment. The compulsory nature of confiscation prevented the criminal courts from differentiating and individualising the sanction and did not allow them to take into account the specific circumstances of each case. He further noted that the confiscation of property had, in most cases, an effect on the lives of other persons (relatives and others), and thus the sanction was imposed not only on the criminally culpable person but also on third parties. In addition, Latvian legislation did not contain sufficiently clear regulations on the property that could not be subject to confiscation. With respect to the right of property, the applicant referred to the fourth sentence of Article 105 of the Constitution, which required property expropriation to be based on a separate law and subject to payment of fair compensation. The decision of the Constitutional Court On 21 April 2010 the Constitutional Court instituted proceedings concerning the right of property, as guaranteed under Article 105 of the Constitution (case no. 2010-31-01). It declined to initiate proceedings with regard to the prohibition of discrimination or the right to a fair trial. On 6 January 2011, after having received observations from the parties to the proceedings and third parties, the Constitutional Court discontinued the proceedings. In its decision the Constitutional Court narrowed the scope of its review – as the claim had been submitted in the applicant’s name only, it would not take into account the reasoning provided with respect to the interference with the rights of the applicant’s relatives. Nonetheless, the Constitutional Court drew the attention of Parliament to the fact that the legislature had failed to specify what property could not be confiscated, and therefore enforcement of the confiscation penalty could infringe the rights of the convicted person’s family members. It referred to a policy document adopted by the Cabinet of Ministers stating that in practice people’s homes were also being confiscated. The Constitutional Court then noted that the protection under Article 105 of the Constitution did not cover property that had been acquired illegally. Nonetheless, the punishment of property confiscation was not connected with the manner in which the property had been acquired. The fact that a property had been inherited, received as a gift or purchased using the convicted person’s salary did not prevent it from being confiscated. The penalty was comparable to a fine, as its purpose was not to alienate illegally acquired property but to punish the convicted person. The Constitutional Court then found that the confiscation penalty was to be seen as an interference with property rights, rather than as an expropriation of property. That interference was in accordance with the law, since section 320(2) of the Criminal Law had been adopted using the correct procedure, and served the legitimate aims of the protection of democracy, public security and the rights of others. It remained to be determined whether the interference was proportionate to those legitimate aims. The Constitutional Court pointed out that an alternative way of achieving those aims would be improving the legislation with respect to the confiscation of illegally acquired property. However, the mere existence of alternative measures did not mean that the legislature had exceeded its margin of appreciation. 20 . The Constitutional Court then noted that there were conflicting opinions about the exact scope of the confiscation penalty. In particular, there was a disagreement as to whether the domestic courts had any discretion to individualise the penalty in order to prevent the outcome from being disproportionate. This was demonstrated by the case-law of the criminal courts, some of which had, on occasion, ordered the confiscation of part of the convicted person’s property while others had considered that the Criminal Law did not authorise anything short of confiscation of the entirety of the convicted person’s property. An example was cited where a conviction for having received a bribe of 10 Latvian lats (approximately EUR 14) had led to the confiscation of all the property belonging to the person concerned. Further, from section 42(4) of the Criminal Law the Constitutional Court inferred that the legislator’s purpose had not been to deprive the person of all belongings. However, the “law” mentioned in that section had never been adopted. In practice, the list of property that could not be confiscated was determined by applying, by analogy, the list of property that could not be subject to seizure. The Constitutional Court pointed out that seizure of property and confiscation had different purposes, and besides, the list of properties not subject to seizure had changed over time, for example, by excluding the person’s home. It also pointed to some other shortcomings in the domestic regulation, such as uncertainty as to whether the property that had to be confiscated was supposed to be determined with reference to the time of commission of the crime, the initiation or completion of the criminal proceedings, or the enforcement of the penalty. Accordingly, the Constitutional Court drew the Parliament’s attention to the fact that there were “serious deficiencies” in the legal regulation for imposing and executing the confiscation of property penalty. The Constitutional Court then noted that the punishment of confiscation of property was provided for with respect to 164 crimes and therefore the question of the proportionality of the contested provision could not be viewed in isolation. It had to be assessed by analysing the provisions of the General Part of the Criminal Law and their compatibility with the Constitution. In particular, the following questions would need to be assessed: which institution and which procedure determined the exact property to be confiscated; how to deal with the alienation of property that was already encumbered by civil obligations; whether the law prevented the confiscation of property needed to ensure that the person’s basic rights and needs were met; whether the convicted person was given the opportunity, in certain circumstances, to keep property that was necessary for the continuation of a professional activity; whether it was compatible with the principle of proportionality for property to be confiscated in circumstances when the person concerned could prove that the property had been acquired legally. Since the applicant had only contested the constitutionality of section 320(2) of the Criminal Law and not the norms of the Criminal Law that established confiscation as a type of criminal penalty, the Constitutional Court turned to the question of whether it was possible and necessary for it to expand, of its own motion, on the claim that had been submitted by the applicant. The Constitutional Court concluded that the legal arguments submitted by the applicant were not sufficient to enable it to assess the constitutionality of the pertinent norms of the General Part of the Criminal Law. Therefore, by its decision of 6 January 2011 it discontinued the proceedings. That decision was final and the applicant could no longer submit an amended claim, since more than six months had elapsed from the date on which his conviction had become final. Enforcement 25 . On 13 November 2009 a writ of execution was issued with respect to the judgment convicting the applicant of bribery. On 18 February 2010 the writ of execution was sent to bailiffs for execution. The Government submitted that the exact property to be confiscated was determined on the basis of the decision, taken at the pre-trial stage of the proceedings, concerning the effective seizure of the applicant’s property. At the pre-trial stage the investigator had placed restrictions on the titles to eleven immovable properties, effectively seizing them (see paragraph 6 above). With respect to one of those properties, the restriction was lifted, as that property had to be used in the enforcement of a judgment debt in respect of prior legal obligations. With respect to four of those properties, the titles were transferred to the State soon after the completion of the criminal proceedings. 29 . With regard to the remaining six properties, several sets of civil proceedings were instituted by the applicant’s family members who contested the applicant’s title to those properties. While some of those claims were successful, following a challenge by the Prosecutor General, the judgments were quashed by the Senate of the Supreme Court. Upon retrial most of the applicant’s family members’ claims failed. With respect to a further four of those properties, the titles were transferred to the State in 2014, 2018 and 2019. With respect to the remaining two properties, no updated information concerning their status has been provided to the Court.

Latvia

P1-1

The case was referred to the Court, as established under former Article 19 of the Convention [3] , by the European Commission of Human Rights (“the Commission”) on 29 May 1995, within the three-month period laid down by former Articles 32 § 1 and 47 of the Convention. It originated in an application (no. 14025/88) against the Italian Republic lodged with the Commission under former Article 25 by four Italian nationals Mrs Maddalena Zubani, Mrs Letizia Zubani, Mrs Angela Zubani and Mr Aldo Zubani, on 26 January 1988. Having originally been designated “A.Z. and Others”, the applicants subsequently agreed to the disclosure of their names. In its judgment of 7 August 1996 (“the principal judgment”), the Court held that there had been a breach of Article 1 of Protocol No. 1 notably owing to the length of the proceedings which the applicants had brought after the unlawful occupation of their land, which had become difficult to farm as a result of changes made in connection with the building of housing ( Reports of Judgments and Decisions 1996-IV, p. 1078, § 49). The applicants claimed several thousand million Italian lire (ITL) by way of just satisfaction under former Article 50 of the Convention for the damage they had sustained and costs and expenses. However, as the participants in the proceedings had not provided precise information on the question of the application of former Article 50, the Court reserved that issue in full and invited the Government and the applicants to submit, within three months, their written observations on the matter and, in particular, to notify the Court of any agreement they might reach (ibid., p. 1079, §§ 52 and 53, and point 3 of the operative provisions). The Government lodged their observations on 3 October and 5 November 1996 and the applicants lodged their observations on 8, 18 and 22 November 1996. On 10 December 1996 the Delegate of the Commission submitted his observations recommending an award of not less than ITL 200,000,000 to each applicant for pecuniary and non-pecuniary damage. The documents produced by the parties show that on 10 November 1996 the applicants appealed against the judgment of the Brescia District Court of 26 April 1995 seeking increased awards under all their heads of claim. The Municipality entered an appearance on 18 December 1996. On an unspecified date the court of appeal ordered that pleadings be filed by 4 June 1997. The applicants lodged their pleadings on 4 May 1997. As regards the proceedings instituted by the applicants in January 1996 (ibid., p. 1074, § 30), the Municipality, on an unspecified date, contested the application for an attachment. On 21 May 1996 the Brescia district judge ordered the Municipality to pay ITL 47,000,000 and to reimburse costs and expenses of ITL 1,000,000. On 28 June 1997, after consulting the parties and the Delegate of the Commission, Mr R. Bernhardt, the Vice-President of the Court at the time and President of the Chamber dealing with the case, granted the Government’s application for a stay of the proceedings on the ground that the domestic proceedings had reached a crucial stage. The Government and the applicants sent the registry a number of documents, with commentaries, between February 1997 and June 1998. The documents indicate that the proceedings pending before the court of appeal and the Brescia district judge were stayed under Article 301 of the Code of Civil Procedure (CCP) owing to the death of the applicants’ counsel on 15 May 1998. On 25 September 1998 the Court, being of the view that the material on the case file was insufficient to enable it to deliver judgment, decided to ask the parties to lodge with the registry, within six weeks, any relevant information they had regarding progress in the pending domestic proceedings together with final proposals for a possible friendly settlement. After the entry into force of Protocol No. 11 on 1 November 1998 and in accordance with the provisions of Article 5 § 5 thereof, the case was referred to the Grand Chamber of the Court. The Grand Chamber included ex officio Mr B. Conforti, the judge elected in respect of <COUNTRY> (Article 27 § 2 of the Convention and Rule 24 § 4 of the Rules of Court), Mr. Wildhaber, the President of the Court, Mrs E. Palm the Vice-President of the Court, Mr J.-P. Costa and Mr Fischbach, Vice-Presidents of Sections (Article 27 § 3 of the Convention and Rule 24 §§ 3 and 5 (a)). The other members appointed to complete the Grand Chamber were Mr A. Pastor Ridruejo, Mr G. Bonello, Mr J. Makarczyk, Mr R. Türmen, Mrs Strážnická, Mr P. Lorenzen, Mr Butkevych, Mr J. Casadevall, Mrs H.S. Greve, Mr A. Baka, Mr R. Maruste and Mrs S. Botoucharova (Rule 24 § 3 and Rule 100 § 4). Subsequently Mr Conforti, who had taken part in the Commission’s examination of the case, withdrew from sitting in the Grand Chamber (Rule 28). The Government accordingly appointed Mr Russo to sit as an ad hoc judge (Article 27 § 2 of the Convention and Rule 29 § 1). The President decided that there was no need to invite the Commission to appoint a Delegate in the present case (Rule 99). After consulting the Agent of the Government and the applicants the Grand Chamber decided not to hold a hearing. The Government’s observations were received by the registry on 11 March 1999, after two extensions had been given by the Court to the period fixed on 25 September 1998 (see paragraph 9 above). The applicants had lodged their observations on 18 January 1999. It appears from these observations that the proceedings in issue were not revived within the six-months’ time-limit laid down by Article 305 of the CCP and have therefore lapsed. Subsequently, as Mr Wildhaber was unable to take part in the further consideration of the case, his place as President of the Grand Chamber was taken by Mrs Palm (Rule 10); Mr Bîrsan, substitute judge, replaced him as a member of the Chamber (Rule 24 § 5 (b)).

Italy

The particular circumstances of the case Mr Adolfo Katte Klitsche de la Grange, a lawyer, lived in Rome until his death on 31 December 1989. He owned a large portion of Cibona Park, situated within the territory of the District Councils of Allumiere and Tolfa (province of Rome). The present case concerns solely the land within the territory of the District Council of Tolfa, 87 hectares of woodland, arable land, "unproductive" land and grassland. On 9 July 1966 Tolfa District Council unanimously approved a plan for the development of the park, submitted by the applicant, and the text of an agreement, which was intended, inter alia, to apportion the costs of putting in the infrastructure necessary for the scheme. On 18 November 1967 the Standing Committee on Agriculture, Forestry and the Upland Economy of the Rome Chamber of Commerce authorised the development of an area of 16 hectares and refused to examine a further application unless it concerned all the rest of the property. On 15 March 1968 the Ministry of Public Works informed the District Council that it did not intend to raise any objections to the proposed agreement. The agreement, which was signed on 10 May 1968, was subject to "the approval of the forestry authority for the remaining wooded portion of the [applicant's] land" and to "compliance with the restrictions deriving from any other legislative provision which is automatically deemed to be an integral part of the agreement". The latter proviso referred particularly "to the Town Planning Act [no. 1150 of 17 August 1942] and the subsequent amendments and additions thereto", including Act no. 765 of 6 August 1967 and the decision (decreto) of the Minister for Public Works of 2 April 1968, and to the "legislation for the protection of natural and historic sites". Mr de la Grange was also bound to accept any "modification of the agreement required by law or on reasonable and undisputed public interest grounds". The applicant then commenced work on the infrastructure necessary for the development (roads, location and provision of drinking water, electricity supply, installation of a telephone line, drains, etc.) and replaced the coppiced woodland by a plantation of tall-growing trees. A number of plots of land in the park were sold - 130 of a total of 202 - and between 1968 and 1976 the competent authorities granted 61 building permits, including 3 to Mr de la Grange. On 28 June 1969 Tolfa District Council adopted its land-use plan, which excluded part of the applicant's land from the area designated RE1, intended for "residential construction". On 23 September 1974 Mr de la Grange asked the Lazio Regional Authority to amend the detailed maps annexed to the land-use plan so as to include all the land covered by the 1968 agreement. On 18 July 1975 the authority refused to do this. In its decision, published on 20 October 1975, it stated that there was nothing to prevent the Tolfa District Council from considering a similar application if it subsequently adopted an alteration to the plan. A. The proceedings in the administrative courts The proceedings on the merits On 14 February 1976, relying on the lack of public interest grounds justifying the changes of policy adopted by the local authority in relation to the 1968 agreement, the applicant applied to the Lazio Regional Administrative Court, which on 14 July 1976 annulled the plan in so far as it concerned the applicant's property. On an appeal by Tolfa District Council, the Consiglio di Stato upheld the lower court's decision by a judgment of 14 February 1978. The development agreement was valid under the legislation in force and was therefore binding on the District Council. Admittedly the latter authority retained, in the exercise of its discretionary powers as regards planning, the right to amend all or part of the land-use plan, but it was under a duty to specify the grounds which had led it to change its previous policy, a policy that had "confirmed the legal positions of private individuals". The impugned plan had failed to state adequate reasons. The detailed maps were not rectified. On 15 May 1979, pursuant to Regional Law no. 43 of 2 September 1974 on "Measures for the protection and management of woodland", Lazio Regional Council classified Cibona Park as a site to be protected, prohibiting, among other things, hunting and fishing, the cutting down of trees, the opening of quarries and all construction. On 12 February 1980 the applicant and some of the owners of the plots concerned by the above-mentioned decision applied to the Regional Administrative Court to have the decision set aside. In a judgment of 19 January 1983, deposited with the registry on 2 February 1983, the court declared the action inadmissible for lack of interest. The impugned decision did not adversely affect the position of the owners of the land deemed to be wooded because it did not define the plots concerned precisely. Damage could arise for the plaintiffs only from supplementary measures refusing to authorise a use for the land on account of the restrictions laid down in the law and following verification of the characteristics of the land in question. The applicant did not file an appeal on points of law against this decision in the Consiglio di Stato. The proceedings for the enforcement of the judgment of 14 July 1976 of the Regional Administrative Court On 14 July 1984 the applicant again applied to the Regional Administrative Court. He sought an order requiring Tolfa District Council "to bring the detailed maps annexed to the land-use plan into conformity with the 1968 agreement ... and to issue the building permits in respect of which it had not yet given a decision". He further requested the appointment of a "commissioner ad acta" in the event of failure to comply with the judgment of 14 July 1976. On 28 November 1984 the court declared the application "inadmissible for lack of interest". Its decision of 1976 had been automatically enforceable and had reinstated "the legal situation ... obtaining prior to the measure annulled". The defendant authority was not therefore under a duty to rectify documents which no longer had any legal force. The Administrative Court stated that the matter of the building permits "was not covered by the above-mentioned judgment" and that accordingly Mr de la Grange would have to commence separate proceedings to secure a ruling on the question. The applicant appealed to the Consiglio di Stato, which, on 25 February 1986, upheld the decision of the Regional Administrative Court. B. Proceedings in the ordinary civil courts On 9 May 1978 Mr de la Grange instituted proceedings against Tolfa District Council and the Lazio Regional Authority in the Rome District Court (Tribunale). By way of primary claim, he sought compensation for the damage deriving from the fact that an unlawful measure - the 1969 land-use plan - had unfairly deprived him of the right to build on a part of Cibona Park. In the alternative, he maintained that, in so far as the contested measures also deprived him of his right to sell the plots in question, they constituted a de facto expropriation and consequently gave rise to a right to compensation. The defendants contended that the ordinary civil courts lacked jurisdiction inasmuch as the applicant's claim was based not on a "right", but on a mere "legitimate interest", which was a matter for the administrative courts. On 12 September 1979 Mr de la Grange filed an application for a preliminary ruling on the issue of jurisdiction with the Court of Cassation, which gave its decision on 29 January 1981. The text was deposited with the registry on 7 May. It held that "even where there was a development agreement, the regulation of the right to build did not affect a right of the landowner, but only a legitimate interest of the latter". The ordinary civil courts could not therefore examine the applicant's claim unless he could argue that the absolute prohibition on building on his land had rendered his right of property devoid of any substance and constituted a de facto expropriation giving rise to a right to compensation. On 7 July 1981 Mr de la Grange reopened the proceedings in the Rome District Court, which dismissed his action on 1 March 1982. His appeals to the Court of Appeal and to the Court of Cassation, lodged on 15 June 1982 and on 21 December 1984 respectively, were dismissed on 4 July 1984 and 11 November 1985. In its judgment, deposited with the registry on 13 May 1986, the Court of Cassation reiterated that the decisions of the administrative authorities on planning matters and building permits did not affect "rights" of the owners of the land in question, but only their "legitimate interests". Except where such decisions could destroy "the economic value of the use or exchange of property", the restrictions on the right of property deriving therefrom could not be regarded as an expropriation and give rise to a right to compensation. In the case under review, the total ban on building under the land-use plan had from the beginning been of limited duration, in accordance with sections 7 and 40 of the Town Planning Act, as amended by Act no. 1187 of 19 November 1968 (see paragraph 30 below). It followed that the applicant's property had not been the subject of a de facto expropriation and he was not entitled to claim compensation for the infringement of a "right". The prohibition on building deriving from the deliberations of the Lazio Regional Council on 15 May 1979 (see paragraph 16 above) could not give rise to a right to compensation for expropriation. It concerned a category of property - a wooded area of special interest on account of its vegetation - the ownership of which was subject to intrinsic restrictions and with regard to which it was deemed that no right to build had ever existed. Relevant domestic law A. The case-law concerning regulation of the right to build The judgment delivered by the Court of Cassation in the present case on 11 November 1985 (Il Foro Italiano - "Foro It." no. 3169/86, 1986, I, col. 3022) provides a summary of the principles deriving from its case-law and that of the Constitutional Court concerning the regulation of the right to build. It notes in the first place "that according to well-established case-law (Court of Cassation no. 2951/81 [29 January 1981 - see paragraph 23 above]), owners of land are from the outset the holders of a mere legitimate interest vis-à-vis the power of the authorities to use land for development and planning". A private individual can never be accorded a personal property right which amounts to absolute protection of the right to sell (ius vendendi) and the right to build (ius aedificandi). Accordingly, the "curtailing of either of these rights" as a result of the imposition of restrictions or prohibitions never gives rise to a right to compensation. Clearly, the landowner may suffer prejudice, indeed sometimes considerable prejudice, but such prejudice cannot be compensated because it falls to the State to strike a balance between the right to build of individuals and the general interest in a well-ordered planning policy. The Constitutional Court has established a form of protection for individuals in respect of restrictions which, inter alia in the planning sphere, render the right of property devoid of any substance, at least as regards "the right to build". The authorities retain the right to impose restrictions which are considered to be useful, but when the right of property is suppressed, the third paragraph of Article 42 of the Constitution may be applied. According to that provision, expropriation gives rise to a right to compensation. The principal points in this area are as follows: (a) The law defines the categories of property which may be privately owned and those which may not (Constitutional Court, judgment no. 55/68, Foro It. 1968, I, col. 1361). In the latter case the owners of the land concerned are not entitled to compensation or reparation. (b) The law permits private ownership of certain property, but may restrict its use "in order to safeguard its social function". It may therefore impose a total prohibition on building. It may also severely restrict the enjoyment and even the sale of certain possessions, for example works of art. No provision is made for compensation for the individuals whose possessions are affected in this way (Constitutional Court judgments nos. 56/68, Foro It. 1968, I, col. 1361, 202/74, Foro It. 1974, I, col. 2245, and 245/76, Foro It. 1977, I, col. 581). (c) The law allows expropriation subject to two conditions, namely that it is justified on general interest grounds and that the owner of the property in question receives adequate compensation. (d) Where, following an administrative decision concerning specific property, the owner retains the ownership subject to restrictions which reduce to virtually nothing the economic value of the use or exchange of the property, this is known as a "value expropriation" (espropriazione di valore) and it gives rise to an entitlement to compensation. This situation arises where the restriction is very severe - absolute prohibition - and where it is imposed for an indefinite period of time or remains in force for longer than is reasonable. On the other hand, there is no entitlement to compensation for damage resulting from a restriction which although imposed for an indefinite period does not have such a profound effect on the right, or a restriction which is due to cease within a reasonable time, even where it is a very severe one. In its judgment of 29 January 1981 concerning the issue of jurisdiction raised by Mr de la Grange (see paragraph 23 above), the Court of Cassation stated as follows: in the first place the appellant could not rely on any right to compensation in respect of damage allegedly sustained on account of the infringement of his right of property in terms of the "ius aedificandi" and the "ius vendendi" as a result of the unlawfulness of the contested land-use plan. Secondly, in so far as Mr de la Grange argued that the plan had had the effect of rendering his right of property devoid of any substance and constituted a "value expropriation", it was for the ordinary courts to rule on the matter and to fix, if appropriate, the amount of compensation. Giving judgment on the merits on 11 November 1985 (see paragraph 24 above), the Court of Cassation took the view that the case did indeed involve an absolute prohibition on building. However, it observed that the validity of the land-use plan was of limited duration, in accordance with Act no. 1187 of 19 November 1968 (see paragraph 30 below), with the result that the restrictions deriving therefrom were inevitably temporary and their duration appeared reasonable. Consequently, the two conditions necessary for the measure to qualify as a "value expropriation" were not satisfied and the applicant was not entitled to claim compensation under this head. B. The Town Planning Act Act no. 1150 of 17 August 1942 lays down rules governing town planning. It has been the subject of numerous amendments, the most relevant of which concern the length of validity of land-use plans. In this context, in judgment no. 56 of 29 May 1968 the Constitutional Court held various provisions of the Act to be unconstitutional inasmuch as they did not provide for any compensation in respect of restrictions imposed on possessions which took immediate effect, were of indefinite duration and were tantamount to an expropriation. As amended by Act no. 1187 of 19 November 1968, sections 7 and 40 of the Town Planning Act read as follows: Section 7 "The provisions of a land-use plan which concern specific plots of land or which impose on such land restrictions including a prohibition on building shall cease to take effect if the detailed plans or the development agreements have not been approved within five years of the plan's adoption." Section 40 "No compensation shall be available in respect of the restrictions and prohibitions deriving from land-use plans ..." As regards the rules applying to authorisations from the forestry authorities, Article 14 of the Royal Decree of 16 May 1926 may be cited. It provides as follows: "Applications for the lifting of hydrogeological restrictions must be made to the Chambers of Commerce through the mayors of the localities concerned. After ensuring that such applications are published for a period of thirty days in the registers of the district authority, the mayors shall communicate them to the relevant Chambers of Commerce ..."

On 12 September 2007 the applicant, who was 20, went to the workplace of G., who had been his girlfriend and who had told him, following threats and violence on his part, that she no longer wanted to see him. The applicant inflicted several stab wounds on G., who died from a massive haemorrhage, having been wounded in the throat and thorax, and on two other individuals. On 14 September 2007 the applicant was placed under judicial investigation, charged with the premeditated murder of his former girlfriend and the intentional wounding of the other two people, and remanded in custody. On the same day the Prefect ordered his compulsory admission to the Sevrey CHS. The applicant was examined by two boards of expert psychiatrists who found that, at the material time, he was suffering from a mental disorder which had impaired his discernment and the ability to control his actions within the meaning of Article 122-1 of the Criminal Code .... On 8 September 2008 the public prosecutor asked the investigating judge at the Dijon tribunal de grande instance to refer the case to the Investigation Division for a ruling as to the applicant’s lack of criminal liability, in accordance with Article 706-20 of the Code of Criminal Procedure, derived from the Law of 25 February 2008 on preventive detention and declarations of criminal insanity (hereafter “the 25 February 2008 Act”, ...). In a decision of 30 September 2008 the investigating judge found that it transpired from his investigation that there was sufficient evidence against the applicant to show that he had committed the offences as charged and that there were plausible reasons to apply Article 122-1, first paragraph, of the Criminal Code. He ordered the transmission of the case file by the public prosecutor to the Principal Public Prosecutor for the purposes of referral to the Investigation Division. On 18 November 2008 the Principal Public Prosecutor at the Dijon Court of Appeal made his submissions calling for referral to the Investigation Division for a ruling as to the applicant’s lack of criminal liability on grounds of criminal insanity, in accordance with the procedure set out in new Article 706-122 of the Code of Criminal Procedure, which provided in particular for a public hearing ... In a decision of 25 November 2008 the President of the Investigation Division noted that it was impossible for medical reasons for the applicant to appear at the hearing. At the hearing of 27 November 2008, his representative argued in particular that the decision of 30 September 2008 had breached the principle that harsher criminal legislation could not be applied retrospectively. He indicated that under the above-mentioned Article 706-122 of the Code of Criminal Procedure, the Investigation Division was required to rule on the commission of the offences by the applicant when deciding on compulsory psychiatric treatment, for an indefinite duration, and that this was tantamount to conviction for an offence and to the imposition of a sentence which had not been applicable at the material time. In a judgment of 18 February 2009 the Investigation Division stated that there was sufficient evidence to show that the applicant had “intentionally killed G.” and that he lacked criminal liability for those acts on the ground that he was suffering from a mental disorder which had impaired his discernment and ability to control his actions. It ordered his compulsory hospitalisation pursuant to Article 706-135 of the Code of Criminal Procedure, derived from the 25 February 2008 Act ..., on the grounds that “it transpire[d] from the proceedings that [the applicant’s] mental disorder represent[ed] a risk for the safety of others and require[d] long-term care which [could] only be provided in a hospital”. The court also prohibited him, for a period of twenty years, from having any contact with the complainants and from possessing or carrying a weapon, those being preventive measures provided for under new Article 706-136 of the Code of Criminal Procedure ... It sent the case back to the Dijon Criminal Court for a judgment on the applicant’s civil liability and on the claims of damages. The Investigation Division had previously ruled on the procedural objections raised by the applicant’s representative, including argument concerning the immediate application of the provisions of the 25 February 2008 Act and the alleged violation of Article 7 of the Convention: “... The declaration of the existence of sufficient evidence that the person has committed the offence as charged does not constitute a conviction but a finding that there is a factual situation which could have legal consequences ... ... contrary to the pleadings and contrary to the rules on preventive detention, the Investigation Division does not rule on judicial confinement of unlimited duration but orders the compulsory hospitalisation of the individual in an institution mentioned in Article 3222-1 of the Public Health Code, which provides for hospitalisation arrangements specifically in such contexts, and the Prefect is immediately informed of the decisions. Thus the person concerned will be subject to the compulsory hospitalisation arrangements solely under the auspices of the medical and administrative authorities, depending on the evolution of his state of health. Accordingly, this measure cannot be regarded as a penalty but as a preventive measure. ... The Law of 25 February 2008 and the Decree of 16 April 2008 are thus applicable.” The applicant appealed against that judgment on points of law. In his grounds of appeal he argued, relying on Articles 6 § 1 and 7 of the Convention, that the principle of “no punishment without law” precluded the immediate application of a procedure which had the effect of rendering him liable for penalties that his mental state would not have entailed under the former legislation in force at the material time. He contended that the declaration of his criminal insanity could not be accompanied by court-ordered sanctions or coercive measures, as this would breach the principle of the non-retrospective application of harsher criminal legislation. Before the Court of Cassation, the public prosecutor, in his opinion, took the view that it was impossible to find that there was sufficient evidence against the applicant to show that he had “intentionally” committed the offences as charged, since “legally speaking, a state of criminal insanity related to a loss of discernment preclude[d] a court from ruling on the mental element of the offence and consequently on the question whether the offences were made out under the law”. He pointed out that the legislature had sought to ensure that the investigating judge would anticipate the declaration of criminal insanity and confine his assessment to the facts: “as a result of such anticipation only the material element will stand, devoid of its punitive connotation, together with its ‘objective imputation’ to an individual, which would serve as a basis for granting redress to the ‘victims’ and was in itself the focus of the legislative intent”. On this point he called for the setting-aside of part of the judgment, namely the replacement of the operative part in order to delete the word “intentionally”. In a judgment of 14 April 2010 the Court of Cassation dismissed the appeal on points of law: “... The person under judicial investigation submitted that there could be no immediate application of the Law of 25 February 2008, as the provisions of Article 706-136 [of the Code of Criminal Procedure] derived therefrom would enable the judge to order, against the person declared criminally insane, measures which, by their effects, would be ‘quasi-criminal sanctions’, being listed in the person’s criminal record. To dismiss those arguments, the judgment uses the above-mentioned reasoning. As those grounds stand, the judgment does not warrant the alleged complaint in so far as the provisions of Article 112-1 of the Criminal Code, which provides that the only penalties that may be imposed are those legally applicable on the date of the offence, do not apply to the preventive measures that are prescribed in cases of criminal insanity under Articles 706-135 and 706-136 ... ... there is sufficient evidence [against the applicant] to show that he committed the offences of premeditated murder and wounding ...” In a decision of 23 February 2011, produced by the applicant with his observations, the Prefect of Saône-et-Loire denied his requests to go outside the institution unescorted. The Prefect’s letter to the responsible psychiatrist of the Sevrey CHS reads as follows: “... In a letter dated 12 August 2010, I informed you that I had requested two assessments to ascertain whether I would be able to grant such leave. Those assessments reached me today. One states as follows: ‘In view of Mr Berland’s current state of health we can envisage allowing him to go outside unescorted in the context of a trial period with a process of social rehabilitation, which seems indispensable’. The other one reads: ‘his current state of health allows the possibility of unescorted leave to be envisaged. We should gradually move towards trial arrangements to consolidate the rehabilitation plans’. Moreover, in accordance with his instructions, issued following the judgment against Mr Berland, I have contacted the public prosecutor of Dijon to inform him of the findings of the assessments which could lead me in the future to authorise Mr Berland to leave the hospital unescorted. The public prosecutor drew my attention to the prohibitions ordered by the Dijon Court of Appeal on 18 February 2009 against Mr Berland, pursuant to Articles 706-135 to 706-140 of the Code of Criminal Procedure ... In those circumstances, even though the assessments tentatively allow for the possibility of granting Mr Berland such unescorted leave, it appears impossible to me to guarantee that he would not come into contact during such leave, if therefore alone, with the complainants. Consequently I wish to inform you of my decision ... to grant Mr Berland permission in the future to leave the hospital exclusively if escorted, depending on any assessment data that you may wish to transmit to me.”

6

THE CIRCUMSTANCES OF THE CASE In December 1993, the applicant concluded a lease contract (“the contract”) with the company “” (“the debtor”) under which it rented a warehouse (“the property”) for a period of five years. On an unspecified date in 1996, the applicant claimed repossession ( враќање во владение ) of the property since on 12 November 1996 the debtor had broken in, removed its belongings and rented the property to a third person. The applicant’s claim was upheld in two court levels, the last being the Skopje Court of Appeal’s decision of 21 October 1998 ordering the debtor to restore the property in the applicant’s actual possession. On 3 February 1999 the Skopje Court of First Instance (“the first-instance court”) granted the applicant’s enforcement request of 16 December 1998 by ordering the debtor to vacate the property and to restore it in its actual possession (“the enforcement order”). It also made a charging order over the debtor’s bank account concerning the payment of trial costs. On 16 February 1999 the debtor objected, inter alia, that the validity of the contract had expired and that the enforcement was accordingly, inadmissible. This objection was finally rejected by the Skopje Court of Appeal’s decision of 17 November 1999. On 11 February 2000 the first-instance court dismissed the debtor’s request for postponement of the enforcement. On 7 February and 16 March 2000 respectively, it also dismissed same objections submitted by third parties, which had meanwhile joined the proceedings. On 16 May 2000 the public prosecutor lodged a legality review request ( барање за заштита на законитоста ) with the Supreme Court against the decision of 16 March 2000 arguing that inter alia the enforcement order could not be executed since the validity of the contract had meanwhile expired. On 29 September 2000 the first-instance court postponed, on the public prosecutor’s request, the enforcement proceedings pending the outcome of the legality review proceedings. On 9 October 2002 the Supreme Court dismissed the public prosecutor’s legality review request. Between 19 January 2000 and 29 May 2003, the first-instance court fixed five hearings to be held on-site. On two occasion, the debtor unsuccessfully requested exclusion of the sitting judge. On 20 July 2000 and 10 July 2003 the President of the first-instance court ordered removal of the sitting judge. On 4 March and 13 June 2003 respectively, it issued an eviction order against the debtor. On 29 May 2003 it refused the debtor’s request that the enforcement proceedings be suspended pending the outcome of other civil proceedings, instituted in the meantime, in which the latter had claimed revocation of the enforcement order (see paragraph 12 below). On 22 November 2005 the first-instance court adjourned the enforcement advising the debtor to challenge the admissibility of the enforcement ( недопуштеност на извршувањето) in separate civil proceedings. On 9 February 2006 the Skopje Court of Appeal rejected the debtor’s claim for revocation of the enforcement order, under section 53 of the 1997 Act, as having not been advised by the first-instance court to do so (see paragraph 15 below). On 15 December 2005, in separate civil proceedings, the debtor challenged the admissibility of the enforcement. On 30 December 2008 the Skopje Court of Appeal finally upheld its claim declaring the execution of the enforcement order inadmissible since the validity of the contract had expired on 31 March 1999. There was no formal decision terminating the enforcement proceedings.

The initial trial against the applicant Since July 1990 the applicant worked as a cleaner in a home for the care of mentally disabled persons. On 11 August 1994 the applicant was arrested on suspicion of having sexually abused Ms U., a mentally disabled resident of the said home. On 14 February 1995 the Munich Public Prosecutor's Office charged the applicant with having attempted to sexually abuse Ms U. twice, once on an unspecified date at the end of 1993 or the beginning of 1994 (first charge) and a second time on 12 July 1994 (second charge). On 29 February 1996 the Munich Regional Court II convicted the applicant on two charges of sexual abuse of a person unfit to defend herself and sentenced him to a cumulative sentence of three years' imprisonment (one year for the first charge and two years and six months for the second one). On 5 September 1996, following the applicant's appeal on points of law, the Federal Court of Justice quashed the Regional Court's judgment and remitted the case to a different chamber of the Munich Regional Court. The Federal Court of Justice found that the Regional Court, in dismissing the defence's motion to obtain another report of a psychiatric expert, had made a procedural mistake. In view of the fact that witness U. had abused alcohol and tablets at a period in time prior to the offences, it was necessary to have her examined by a medical expert in order to verify whether she suffered from a mental illness affecting her ability to give correct evidence ( Aussagetüchtigkeit ). In these circumstances, it was not sufficient, as was done by the Regional Court, to have the witness's credibility examined by a psychological expert. The applicant's retrial During an oral hearing on 15 December 1999, the sixth hearing in the case, the Munich Regional Court II heard further witnesses. It indicated to the parties that the offences in question could be qualified differently in law as Ms U. had not proved unable to defend herself. Following a short interruption of the hearing, the Regional Court discontinued the proceedings concerning the first charge preliminarily according to section 154 § 2 of the Code of Criminal Procedure (see paragraph 26 below) upon a motion by the Public Prosecutor's Office. The minutes of the hearing do not contain any reasons given either by the Public Prosecutor's Office or by the Regional Court for proceeding in this manner. It had not been possible throughout the proceedings to establish the exact date on which the offence underlying the first charge had been committed. On 17 December 1999 the Munich Regional Court II convicted the applicant in respect of the remaining second charge of sexual abuse and of bodily injury and sentenced him to two years' imprisonment suspended on probation. The Regional Court based its judgment mainly on the evidence given by Ms U., who was the only eye-witness to the alleged crime. Relying on reports given by both a psychological and a psychiatric expert, the court noted that due to her slight mental disability, Ms U.'s ability to give correct evidence was considerably restricted. Nevertheless, it was convinced that Ms U.'s statements were correct. She had not reported the offence on her own motion, but had confessed it to her partner on the same day when the latter had noticed that she felt depressed. Her partner had then convinced her some days later to inform the management of the home of the incident. Numerous other signs, such as the fact that U. had not tried unnecessarily to incriminate the applicant and had no other motives to accuse him demonstrated that the witness was credible. Moreover, two further female witnesses had confirmed that the applicant had harassed them. In the judgment, no reasons were given for discontinuing the proceedings in respect of the first charge. On 20 December 1999 the applicant, represented by counsel, lodged an appeal on points of law with the Federal Court of Justice, which he reasoned on 13 March 2000. He complained, inter alia , that there was a procedural error as no reasons for discontinuing the proceedings in respect of the first charge emerged either from the Public Prosecutor's request to do so or from the Regional Court's decision to partly discontinue the proceedings or from its judgment. However, the Regional Court had not found witness U. to be credible in this respect, which was documented by the fact that it had decided to discontinue the proceedings pursuant to section 154 § 2 of the Code of Criminal Procedure. The reasons for discontinuing the proceedings could be essential for the evaluation of Ms U.'s credibility as both charges concerned similar offences and were primarily based on Ms U.'s assertions. If the Regional Court did not follow Ms U.'s testimony with respect to the first charge, it would have been necessary to explain why that court found the same witness's testimony to be credible with respect to the second charge. On 18 April 2000 the General Public Prosecutor requested the court to dismiss the applicant's appeal on points of law as ill-founded. He argued in particular that no reasons had to be given for partly discontinuing the proceedings pursuant to section 154 § 2 of the Code of Criminal Procedure. In his submissions in reply dated 9 May 2000, the applicant agreed that section 154 § 2 of the Code of Criminal Procedure did not prescribe that reasons had to be given for the discontinuance of the proceedings. However, failure to do so nevertheless rendered the evaluation of evidence defective in the circumstances of the present case. On 30 May 2000 the Federal Court of Justice rejected the applicant's appeal on points of law. In respect of the said procedural error complained of, it dismissed his appeal on points of law as inadmissible, finding that the applicant had not sufficiently set out the facts which were relevant for his complaint as required by section 344 § 2 of the Code of Criminal Procedure (see paragraph 26 below). The court agreed with the applicant's submission that “in cases in which the charges for two offences were based on the statement of only one witness and the proceedings were discontinued pursuant to section 154 § 2 of the Code of Criminal Procedure in respect of one of these offences, the reasons to do so can have evidential value for the decisive question of the credibility of the sole witness for the prosecution; if no grounds for discontinuing the proceedings are given, there is a lack of reasoning ( Erörterungsmangel ) (see Federal Court of Justice, Strafverteidiger (StV) 1998, pp. 580, 582).” However, what had been discussed in the hearing before the Regional Court discontinued the proceedings pursuant to section 154 § 2 of the Code of Criminal Procedure could not be known by having regard to the text of the judgment alone, as there was no duty to mention the discontinuance of the proceedings pursuant to that section or the reasons therefor in the judgment. It was true that there were judgments in which courts had set out in detail the reasons for partly discontinuing the proceedings and the influence of that decision on the evaluation of evidence, but this was only done if the court saw reasons to do so. In the present case, the Federal Court of Justice was unable to ascertain on the basis of the applicant's reasoning in his appeal alone whether there had been a procedural error assuming that the facts submitted by him proved to be true (the court referred to its previous decisions published in the Neue Juristische Wochenschrift (NJW) 1995, p. 2047 and StV 1996, p. 530 in this respect). According to the Federal Court of Justice, “what is missing is a statement as to which reasons, if any, for discontinuing the proceedings were orally discussed during the court's hearing, because the failure to give reasons for the discontinuance could only constitute a procedural error if these reasons could have had an influence on the outcome of the judgment, such as doubts about the credibility of the statements of the only prosecution witness.” The Federal Court of Justice noted that as a rule, proceedings were not discontinued pursuant to section 154 § 2 of the Code of Criminal Procedure without any comments, despite the fact that there was no duty to record such statements in the minutes. If, in exceptional circumstances, no comments were made, the appellant was at least obliged expressly to state that the court had not given any other grounds, such as a limitation of the offences at issue in the proceedings for reasons of efficiency, which were irrelevant for the evaluation of evidence. The proceedings before the Federal Constitutional Court On 7 September 2000 the applicant lodged a constitutional complaint with the Federal Constitutional Court. He argued that his rights to be heard and to a fair trial were violated as in its decision the Federal Court of Justice had applied new admissibility criteria which he could not have foreseen. According to the applicant, the Federal Court of Justice, in its previous case-law, had demanded an account of the oral statements during the hearing only if the minutes disclosed that there had been such statements at all. Now on the contrary, that same court asked for an account of statements which (might) have been made in the course of the hearing and which were not included in the record. On 15 October 2000 the Federal Constitutional Court, sitting as a panel of three judges, refused to admit the applicant's constitutional complaint. The decision was served on the applicant's counsel on 19 October 2000.

Germany

On 23 September 2003 the applicant was arrested on suspicion of murder. He remained in custody pending investigation and trial. 7 . On 9 April 2004 the Solombalskiy District Court of Arkhangelsk found the applicant guilty of battery and sentenced him to six months’ community work. The applicant was represented by a State-appointed lawyer. On 28 May 2004 the Arkhangelsk Regional Court upheld the applicant’s conviction on appeal. It is apparent from the text of the appeal judgment that the applicant was not represented before the appeal court. 8 . On 8 July 2004 the Regional Court found the applicant guilty of murder and sentenced him to 13 years’ imprisonment. The applicant was again represented by a State-appointed lawyer. The applicant appealed against his conviction, alleging that the trial court had erred in its assessment of the evidence. On 20 October 2004 the Supreme Court of Russia upheld the applicant’s conviction on appeal. It is apparent from the text of the appeal judgment that the applicant was not represented before the appeal court. On an unspecified date, the correctional facility where the applicant was serving the prison sentence asked the Regional Court to advise as to the execution of the sentence for battery of 9 April 2004. The court fixed the hearing for 18 March 2005. On 5 March 2005 the Regional Court forwarded to the correctional facility a request to inform the applicant of the date, time and place of the hearing. The applicant signed a statement acknowledging receipt of the notice on 17 March 2005. The relevant part of his statement read as follows: “I, Aleksandr Leonidovich Dementyev, hereby acknowledge that I have been notified about the hearing to be held at the Arkhangelsk Regional Court concerning the execution of the sentence imposed by the Solombalskiy District Court on 9 April 2004. I have been informed that my attendance at the hearing is not mandatory and that I have a right to participate through a legal representative.” On 18 March 2005 at 11 a.the administrative office of the correctional facility where the applicant was serving a prison sentence informed the Regional Court by phone that the applicant had chosen not to be represented at the hearing. The message was worded as follows: “[The applicant] has chosen not to be represented by a lawyer at the hearing on 18 March 2005 concerning the execution of the sentence imposed by the Solombalskiy District Court on 9 April 2004.” On 18 March 2005 at 2 p.the Regional Court reconsidered the term imposed on the applicant sentence by the verdict of 9 April 2004. The court converted it into a prison sentence and added it, in part, to the term of imprisonment imposed on the applicant by the murder verdict. As a result, the applicant’s overall prison sentence was increased by one month to take into account his conviction for battery of 9 April 2004. After having examined the applicant’s statement - confirming that he had been apprised of the hearing and his right to attend - and the transcript of the telephone message from the correctional facility stating that the applicant had chosen not to be represented at the hearing by a lawyer, the court decided to hold the hearing in the applicant’s absence. The prosecutor and a representative of the regional department of corrections who attended the hearing considered it acceptable to proceed in the applicant’s absence. 13 . On 31 March 2005 the applicant received a copy of the decision of 18 March 2005 whereby he was also advised of his right to lodge an application for supervisory review of the said decision. No possibility of lodging an appeal was mentioned.

6

THE PARTICULAR CIRCUMSTANCES OF THE CASE Mr Karl Sekanina is an Austrian national and lives in Vienna. On 1 August 1985 he was arrested by the police on suspicion of having murdered his wife. Mrs Sekanina had fallen from a window of their matrimonial home, on the fifth floor of a building in Linz, on 4 July 1985. A. The detention on remand The day after his arrest he was questioned and remanded in custody. He remained in custody until 30 July 1986, his detention being extended on several occasions. The Linz Court of Appeal (Oberlandesgericht) ordered the last such extension on 30 April 1986; it ruled, pursuant to Article 193 paras. 3 and 4 of the Code of Criminal Procedure, that the applicant could be kept in detention until he had been in custody for a total of one year. In addition to the murder of his wife, the applicant was accused of having threatened a fellow detainee in connection with certain admissions relating to the murder charge. The decisions of the Austrian courts were based on various items of evidence and testimony. B. The trial On 30 July 1986 an assize court (Geschworenengericht) sitting at the Linz Regional Court (Landesgericht) acquitted the applicant on both the charges brought against him. The jury dismissed the first charge by seven votes to one and the second charge unanimously. The operative provisions and grounds of the judgment read as follows: "Pursuant to Article 259 para. 3 of the Code of Criminal Procedure, Karl Leopold Sekanina is acquitted on the charges brought against him, namely: (1) that he did on 4 July 1985 intentionally kill his wife, Maria Sekanina, by hitting her with a plastic bucket, as a result of which she fell out of the open window of a fifth floor flat and sustained fatal injuries on striking the ground from a height of approximately 5 metres; and (2) that he did at the beginning of August 1985, by making a death threat, namely that ‘he would catch his cell-mates outside and kill them’ if they ‘gave him away’, force Egon Werger to remain silent about the statements made by Karl Sekanina in his detention cell concerning the course of events on 4 July 1985. ... GROUNDS The acquittal is founded on the jury’s verdict." With regard to the first charge, the record (Niederschrift) of their deliberations stated as follows: "There is no conclusive evidence on which to convict Mr Sekanina of murder. According to the medical report by Professor Kaiser, Mrs Sekanina could still have called her husband a murderer. The testimony of certain witnesses appears to us to be unreliable." On the second charge, they noted that the three other fellow detainees of the persons in question had denied hearing serious death threats. Consequently, the applicant was immediately released. The prosecution did not appeal against the acquittal. The application for the reimbursement of costs and compensation for the detention On the following day the applicant applied for a contribution from the State to the costs necessarily incurred in his defence, in accordance with Article 393a of the Code of Criminal Procedure (see paragraph 15 below), and for compensation for the pecuniary damage sustained on account of his being kept in detention. On 4 November 1986 the public prosecutor’s office expressed the opinion that the costs sought were excessive and also opposed the claim for compensation, on the ground that the conditions laid down by section 2 (1) (b) of the 1969 Law on Compensation in Criminal Cases (Strafrechtliches Entschädigungsgesetz - the "1969 Law" - see paragraph 16 below) were not satisfied. The Linz Regional Court gave two separate decisions. On 12 December 1986 it awarded Mr Sekanina 22,546.50 schillings in respect of his necessary defence costs. His appeal against the amount awarded was dismissed by the Linz Court of Appeal on 15 January 1987. On 10 December, on the other hand, the Regional Court had refused to award the compensation sought. In its opinion, "A claim to compensation under section 2(1)(b) of the [1969] Law ... is conditional on the applicant’s being cleared of the suspicion of which he was the object in the criminal proceedings. A person who has been detained is so cleared only if all the suspicious circumstances telling against him have been satisfactorily explained, so that they cease to constitute an argument for the suspect’s guilt. Regard having been had to the prosecution evidence considered as a whole, however, it was not possible to dispel all the suspicions concerning the commission of the offence. Serious grounds for suspecting Mr Sekanina still subsist, in particular his numerous and repeated threats, the acts of violence and aggressive behaviour which have come to light, his evident satisfaction at his wife’s death, the description of events given to a cell-mate, the different versions of how the accident happened, the fact that he was under severe financial pressure, his unsuccessful efforts to obtain care and custody of his two children and the consequent build-up of aggressiveness, and his hopes of receiving payment under a life-insurance policy taken out on his wife. In addition, the jurors’ voting shows that they decided to acquit him only by giving him the benefit of the doubt." On 25 February 1987 the Linz Court of Appeal upheld this decision. It rejected the argument that section 2(1)(b) of the 1969 Law (see paragraph 16 below) was unconstitutional and in breach of Article 6 para. 2 (art. 6-2) of the Convention in that it required, in addition to an acquittal, the absence of all suspicion. The court held that the presumption of innocence had to be respected in the proceedings prior to the verdict, but did not confer on every detainee the right to compensation in the event of an acquittal. The impugned provision did not refer to guilt but to continuing suspicion. The finding by a court that suspicions subsisted did not conflict with the presumption of innocence. The Court of Appeal added: "The appeal also fails on its merits. Contrary to what is argued by the appellant, it cannot be inferred merely from the voting of the jury ... that such a clear verdict meant that suspicion had been removed. In order to establish whether or not such suspicion subsists, it might be more useful to refer to the record of the jury’s deliberations. The content of this record ... suggests rather that in the jury’s opinion all suspicion had not been removed. However, as the court called upon to rule under the [1969] Law ... is not bound, in its assessment of the position as regards suspicion, by the verdict (of acquittal) at the trial, not even the record of the jury’s deliberations is of decisive importance. It can hardly be denied that following the police inquiries and also after the judicial preliminary investigation there were strong grounds for suspecting the appellant. Indeed, the Linz Court of Appeal decided on 30 April 1986 ... that Sekanina could be kept in detention on remand for up to one year, thereby confirming the strength of the suspicion. In the appealed decision, the finding by the court below that suspicion subsisted was properly founded in particular on the numerous repeated threats made by Mr Sekanina, his acts of violence, his evident satisfaction at his wife’s death, the description of the events given to a cell-mate, the different versions of how the accident happened, the severe financial pressure, his unsuccessful attempts to obtain care and custody of his two children, and his hopes of receiving payment under a life-insurance policy taken out on his wife. With respect to the different versions of the accident related by the appellant to third parties, the Court of Appeal refers in particular to the evidence given at the trial of 28 to 30 July 1986 by the witnesses Gundula Sekanina (pp. 45, 50 and 51 of the transcript of the trial) and Johanna and Kurt Schöllnberger (pp. 105, 106, 117 and 119 of the transcript). The appellant told his fellow employee Siegfried Wurzinger that he had been in another room at the time of the fall (Wurzinger, pp. 126, 127), whereas Brigitte Grasböck noticed during the fall that the claimant - wearing a light-coloured vest - was already at the window, the entire upper part of his body being visible. He had been holding a bucket out of the window with outstretched arms and pouring water; in addition when he came down to his wife he had, she thought, been wearing a blue vest (Grasböck, pp. 65 and 66 of the transcript). During his interrogation (which was taken down in writing) by the Linz Federal Police on 2 August 1985 (p. 214, volume 1), the appellant placed on record that shortly before the fall his wife had quarrelled with him. According to the evidence of the witness Egon Werger, the appellant had told him that ‘during the quarrel he’ - Sekanina - ‘[had run] towards his wife in a rage’ (pp. 166 and 167 of the transcript). The appellant was described by several witnesses as quick-tempered and violent (pp. 44 and 82 of the transcript). He is said to have made death threats against his wife several times, the last occasion being about a week before her death (pp. 113 and 572 of volume 1, p. 216 of volume 2, and pp. 58, 75, 76, 102, 115, 142 and 143 of the transcript of the trial). Finally, it may also be noted that on 3 July 1985, the day before his wife’s death, the appellant pressed his tailor for a dark jacket he had ordered in 1983, as he now needed it." The Court of Appeal concluded: "Having had regard to all these circumstances, the majority of which were not disproved at the trial, the jury took the view that the suspicion was not sufficient to reach a guilty verdict; there was, however, no question of that suspicion’s being dispelled." THE APPLICABLE DOMESTIC LAW A. Acquittal Under Article 259 of the Code of Criminal Procedure, "The accused shall be acquitted by judgment of the court: ... ... where the court finds that the act giving rise to the prosecution is not an offence under the law or that the alleged offence was not made out or that it has not been established that the accused committed the act of which he is accused or that circumstances exist which deprive the act in question of its criminal character or that the continuation of the prosecution is ruled out on grounds other than those set out in paragraphs 1 and " B. Reimbursement of costs According to Article 393a of the same code: "(1) Where the prosecution is not brought solely on the basis of a private action seeking conviction or a private action for damages (Article 48), if an accused is acquitted ..., the federal authorities shall, on an application to this effect, make a contribution to the costs of the defence. The contribution shall cover the expenses necessarily and genuinely incurred by the accused and in addition, except in the case provided for in Article 41 para. 2, a flat-rate contribution to the costs of his defence lawyer ... (2) ... (3) A claim for compensation shall not be allowed where the accused has deliberately caused the suspicion which gave rise to the criminal proceedings or where the proceedings have come to an end solely because the accused carried out the act in question in a state in which he was not responsible for his actions or because the authorisation for the prosecution was withdrawn during the trial." Compensation in respect of detention on remand Entitlement to compensation for detention on remand during criminal proceedings in which the person concerned is acquitted is governed by section 2(1)(b) of the 1969 Law, which provides as follows: "(1) A right to compensation arises: (a) ... (b) where the injured party has been remanded in custody or placed in detention by a domestic court on suspicion of having committed an offence which is liable to criminal prosecution in <COUNTRY> ... and is subsequently acquitted of the alleged offence or otherwise freed from prosecution and the suspicion that he committed the offence is dispelled or prosecution is excluded on other grounds, in so far as these grounds existed when he was arrested; ..."

Austria

PARTICULAR CIRCUMSTANCES OF THE CASE A. Events leading up to the termination of the applicant’s employment Mr Sibson, who was born in 1929, was employed by Courtaulds Northern Spinning Ltd, formerly Courtaulds Northern Textiles Ltd, ("CNS") from November 1973 as a heavy goods vehicle driver. He was based at its depot at Greengate, Lancashire, together with between forty and fifty other drivers. His services gave complete satisfaction at all times. Until the events giving rise to the present case, the applicant was a member of the Transport and General Workers Union ("TGWU"); from 1981 to 1984 he was its branch secretary. In 1985 all the other non-managerial employees at Greengate save one belonged to that union. At that time, however, that depot was not a "closed shop" (see paragraph 17 below). Indeed, the later of two statements of his terms of employment furnished to the applicant specified that he had the right to be a member of no trade union and that he would be informed if this right came to be modified by the conclusion of a closed shop agreement. In March 1985 a fellow driver, Mr , allegedly accused Mr Sibson of having "milked the funds" of the union whilst he was branch secretary. The applicant subsequently lodged with the local TGWU branch a complaint to the effect that Mr had "disseminated false statements tending to depreciate" him as one of its officers, but it was dismissed by the branch adjudication panel on 20 July 1985. Mr Sibson was so dissatisfied with that decision that he resigned from TGWU by letter of 24 July and joined the United Road Transport Union instead. Some of his fellow drivers immediately ostracised him and others obstructed him in the performance of his work. Between July and October 1985 CNS attempted in vain to resolve the dispute. After a period of "uneasy peace", a substantial majority of the TGWU members at Greengate voted, on 12 October, in favour of (a) a closed shop agreement with CNS and (b) industrial action if Mr Sibson continued in employment at that depot after 25 October. At a meeting on 21 October between Mr Dear, the personnel manager of CNS, and the branch committee of the union it was agreed that the strike threat would be lifted if the applicant either rejoined TGWU or was employed on driving work not based at Greengate. On 22 October the applicant told Mr Dear that he would rejoin the union only if he received an apology from Mr and that he would not accept the alternative proposed by Mr Dear, namely a move to Chadderton, a depot about 1½ miles away from Greengate. In a letter of the same date to the applicant, Mr Dear summarised the discussions to date; stated that CNS were contractually entitled to transfer the applicant to Chadderton, where his earnings would be similar to those at Greengate; denied that the move would be a demotion; and expressed the hope that the applicant would give serious thought to his position because "[his] dismissal [was] a possibility". Further meetings were then held, with the participation of a senior official of the Advisory, Conciliation and Arbitration Service. The applicant declined to accept as an apology a certain statement to be signed by Mr As regards a transfer to Chadderton, the applicant expressed concern about conditions there, in particular his fear - which Mr Dear assured him was groundless - of losing his current lorry and allowances for nights spent away from home; he also said that he could not face the aggravation from other drivers which he was sure would continue at that depot. At a final meeting on 8 November 1985 the applicant declined to accept either of the alternatives then put before him - working at Greengate after rejoining TGWU or moving to Chadderton - and suggested that the management should dismiss him. Mr Dear refused to do that, and added that if the applicant reported to Greengate for work, he would be sent home without pay. Mr Sibson, citing his solicitor’s advice that that would constitute constructive dismissal (see paragraph 19 below), then said that he would resign with immediate effect, which he did by letter of the same date. He did not take up Mr Dear’s further offer, dated 14 November, of employment at Chadderton with the same opportunity for earnings and expenses as previously. B. Domestic proceedings taken by the applicant Mr Sibson then lodged with the Industrial Tribunal a complaint of unfair dismissal (see paragraph 18 below) against CNS and TGWU. In the grounds for his application he stated that he had "been ‘constructively dismissed’ for refusing to accept ‘action short of dismissal’" (see paragraph 20 below). His representative in these proceedings was not legally qualified, legal aid not being available for this purpose. CNS and TGWU contended that a closed shop agreement was in existence (which would have made any dismissal fair; see paragraph 18 below). CNS also denied that there had been either constructive dismissal or action short of dismissal. Mr Dear admitted in cross-examination the absence of any operational reason for moving the applicant to Chadderton, the sole purpose being to avoid a strike; had a strike not been threatened, CNS would have retained him at Greengate and not put any pressure on him to rejoin TGWU. By decision of 21 July 1986, the Industrial Tribunal unanimously accepted the complaint of unfair dismissal; it did not deal with the merits of the allegation of action short of dismissal. It found that Mr Sibson was entitled to refuse to rejoin TGWU because there was no closed shop agreement in force; that the request that he move to Chadderton was not reasonable since it was not made for genuine operational reasons but solely to avoid a strike; that CNS had no right to suspend the applicant without pay; that he was therefore entitled to treat himself as dismissed; and that the dismissal was unfair because its only motive was his exercise of his express right not to belong to a union. The tribunal reserved the question of remedies for further consideration, the applicant having opted for re-engagement (see paragraph 18 below). On 16 January 1987 the Employment Appeal Tribunal, by a majority, dismissed an appeal by CNS on points of law. It found that the Industrial Tribunal had not erred in law, misdirected itself or reached an unreasonable conclusion. On 25 March 1988 the Court of Appeal unanimously upheld an appeal by CNS on a point of law, confined to the question whether Mr Sibson had been constructively dismissed. It found that there was an implied term in his contract that his employer could - for any reason - direct him to work at any place within reasonable daily reach of his home; the Industrial Tribunal had erred in law in holding that this right could be exercised only if the direction were reasonable and that this condition would not be satisfied unless the direction was made for genuine operational reasons. Lord Justice Slade stated, as regards this implied "mobility term": "I cannot see how Mr Sibson could reasonably have objected to a term giving the contract this limited degree of flexibility when he entered the employment in 1973. If the evidence had disclosed any special circumstances which as at that time made it a matter of importance to him that he should be based at ... Greengate ... rather than at (say) Chadderton, the Industrial Tribunal would no doubt have said so." The Court of Appeal concluded that CNS had acted within its contractual rights in requiring the applicant to transfer to a nearby depot and that he could not be regarded as having been constructively dismissed. No question of unfair dismissal therefore arose. On 15 April 1988 Mr Sibson applied for legal aid to appeal to the House of Lords. On 30 June legal aid was granted for the purpose of obtaining counsel’s opinion on the merits of an appeal. On 8 August counsel advised that there were no reasonable prospects of success and that leave to appeal would not be given. Further legal aid was therefore refused on 19 August.

6

In May 1999 the applicant was injured in a road accident; in particular, his arm was broken. Immediately after the accident he was taken to hospital, where he was given first aid. Several days later his arm was amputated. In October 1999 the applicant brought proceedings for damages against the hospital before the Nikolaevskiy District Court of the Ulyanovsk Region. He claimed that the hospital’s medical staff had failed to provide him with appropriate medical care and that their negligence had led to the loss of his arm. On 2 April 2001 the court examined the case in a public hearing at which the applicant, his representative and the defendant were present. It heard the parties and witnesses and examined other evidence. At the close of the hearing the court read out the following operative part of the judgment: “On 2 April 2001 the Nikolayevskiy District Court, composed of ..., having examined in an open court session a civil case which originated in an application by Biryukov Ryakib Ismailovich against the Nikolaevskaya [Hospital] for compensation for bodily harm, on the basis of Article 1064 of [the Civil Code of the <COUNTRY>] and being governed by Articles 14, 50, 191, 194-97 of [the Code of Civil Procedure of the Russian Soviet Federative Socialist Republic], decided: To reject the claims by Biryukov Ryakib Ismailovich against the Nikolaevskaya Central District Hospital of the Ulyanovsk Region for compensation for bodily harm. An appeal or a protest against the judgment to the Ulyanovsk Regional Court can be lodged with the Nikolayevskiy District Court within ten days.” A copy of the reasoned judgment was served on the applicant on 6 April 2001. It stated that, according to Article 1064 of the Civil Code, harm inflicted on the person or property of an individual is to be reimbursed in full by the person who inflicted the harm. After a description of the evidence examined by the court, the judgment contained the court’s finding that there had been no malpractice on the part of the hospital staff and no causal link between the treatment and the amputation of the applicant’s arm. For those reasons the applicant’s claims were rejected. The applicant appealed, inter alia , on the grounds that the district court had not read out the full text of the judgment at the hearing. On 3 July 2001 the Ulyanovsk Regional Court examined the case on appeal at a public hearing. Having heard the parties, it dismissed the applicant’s appeal and upheld the judgment. It noted that by reading out the operative provisions of the judgment at the hearing and providing the applicant with a copy of the reasoned judgment within the established time ‑ limit the district court had fully complied with the Code of Civil Procedure, notably Article 203. According to the Government, the Regional Court read out the operative provisions of its decision at the hearing in the applicant’s presence and later served a copy of its reasoned decision on the applicant.

Russian Federation

6

6

6

A. The background of the case The applicant is a civil servant working as a lawyer for the Hamburg tax authorities. In 1995, the applicant was a board member of the local branch of a registered association called “Red Aid”. In this capacity he opened a bank account for the association. He and two other members of the association were authorised to draw on the account. The account was used for the deposit of donations and membership fees. The account data was therefore published, for example in brochures. In 2000 the applicant left the board of the association. In 2003, a third person reported to the police that he had bought a watch via eBay. The watch had turned out to be a fake. He had tried to rescind the purchase when he found out, but the seller – of whom he knew only the email address “ [email protected] ” – refused to cooperate. The police investigations showed that a certain Mr was registered with eBay as user of the email address “sternschnuppe756”. The bank account registered for the email address “sternschnuppe756” was the account of the “Red Aid” association. Investigations further showed that various other users, who were registered with eBay, cited the bank account of the “Red Aid” association as their bank account. The police also found out that the user of “sternschnuppe756” had traded computer programmes via eBay. An investigation of the transactions of the “Red Aid” bank account showed that there had only been one transaction connected to eBay: eBay had tried to collect fees (EUR 33) on 7 October 2003. The “Red Aid” association had protested against the payment, which had been returned on 27 November 2003. Mr was questioned by the police. He explained, convincingly, that he had nothing to do with the email address “sternschnuppe756” or the bank account of the “Red Aid” association. B. The search warrant in respect of the applicant’s flat On 21 September 2004, upon a request of the prosecutor’s office of Munich I, the Munich District Court issued a search warrant in respect of the applicant’s home (and the home of three other members of the “Red Aid” association who were authorised to draw on the association’s bank account) on suspicion that they had committed “copyright piracy” by selling fake goods such as watches and computer programmes. The search warrant authorised the search and seizure of computers and documents containing information about the sale of the fake watch and the computer programmes. The search of the applicant’s flat On 8 December 2004 the applicant’s (shared) flat in Hamburg was searched. The police found none of the items they were searching for. Instead, by coincidence, the police found 463.732 grams of hashish, which contained 09 grams of pure THC (tetrahydrocannabinol), and two defective weighing scales in the flat. The amount and quality of the hashish was asserted by an expert. The amount was enough for 2606 consumption units. The criminal proceedings regarding the suspected “copyright piracy” were discontinued. However, new proceedings for possession and trafficking of a substantial amount of drugs were initiated against the applicant. Proceedings challenging the search warrant and the search of the applicant’s flat Proceedings before the Munich District Court and the Munich I Regional Court challenging the lawfulness of the search warrant and the house search The applicant, represented by counsel, lodged a complaint against the search warrant before the criminal courts arguing that the warrant, and consequently the search, had been unlawful and had infringed his constitutional right to respect for his home under Article 13 of the German Constitution (“the Basic Law”; see paragraph 22, below). The Munich District Court and the Munich I Regional Court dismissed the complaint. First proceedings before the Federal Constitutional Court challenging the lawfulness of the search warrant and the house search The applicant subsequently lodged a constitutional complaint with the Federal Constitutional Court. On 13 November 2005 the Federal Constitutional Court held that the complaint was manifestly well-founded, found a violation of Article 13 of the Basic Law, declared the house search unlawful and quashed the search warrant and the decisions of the District and the Regional Court. The court left open whether the few indications supporting the initial suspicion that the applicant might have committed “copyright piracy” justified the ordering of a search warrant. In any event, however, the Federal Constitutional Court ruled that having weighed the few indications supporting a suspicion that the applicant could have committed “copyright piracy” against the massive impact of a house search on the applicant’s constitutional right to respect for his home, the issuing of a search warrant and hence the house search had not been proportionate. It would have been possible and necessary to take other investigative measures that would have interfered less with the applicant’s right before searching the applicant’s home. E. The proceedings in issue First stage of the criminal proceedings before the Hamburg District Court On 29 July 2005 the applicant was indicted by the Hamburg prosecution on charges of possession of and trafficking in a substantial amount of drugs. On 24 January 2006 the Hamburg District Court convicted the applicant of possession of a substantial amount of drugs in less serious circumstances and imposed a ten months’ suspended prison sentence. The judgment was exclusively based on the presence of hashish found during the house search of 8 December 2004. First stage of the criminal proceedings before the Hamburg Court of Appeal The applicant lodged an appeal on points of law before the Hamburg Court of Appeal, arguing that he should have been acquitted as the evidence found during the house search could not be admitted as evidence in the criminal proceedings for drug possession. As the search warrant had been invalidated by the Federal Constitutional Court, the police had never had a right to enter the applicant’s shared flat and would therefore never have had a legal possibility of finding the drugs at the applicant’s flat. Moreover, the seizure of the hashish had not even been covered by the unlawful search warrant. The infringement of the applicant’s right to respect for his home had been so severe that the evidence which had coincidentally been found during the house search could not be admitted as evidence against the applicant. On 5 September 2006 the Court of Appeal quashed the District Court’s judgment and referred the case back to the District Court because it was of the view that the District Court had not sufficiently examined whether the hashish belonged to the applicant. As he lived in a shared flat, the room, and hence the drugs, could have belonged to any of his flatmates. With regard to the admissibility of the evidence the Court of Appeal found that the hashish found during the search could be used as evidence against the applicant. The infringement of the applicant’s basic rights with regard to the criminal proceedings concerning copyright piracy had not been so serious that the applicant’s interest in respect for his home outweighed the public interest in prosecution. The Court of Appeal referred to the Federal Constitutional Court’s case-law (see paragraph 26 below), according to which unlawfully obtained evidence could be used in criminal proceedings as long as, after a thorough balancing of the different interests at stake, the public interest in prosecution did not have to stand back against the right to respect for his home of the person concerned and as long as that person’s rights had not been violated on purpose. It reiterated the Federal Constitutional Court’s finding that the applicant’s basic rights had been seriously infringed (see paragraph 12 above). Whether or not the search warrant had been sufficiently precise, and whether a sufficient initial suspicion for issuing a search warrant had been present or not, did not have to be determined because, even assuming that this had not been the case, such shortcomings did not render the obtained evidence unlawful. Because of the seriousness of the crime of drug possession, and the substantial amount of hashish found, the public interest in prosecution outweighed the applicant’s interest in respect for his home. Furthermore, the applicant’s rights had not been deliberately infringed, the house search had not been arbitrary and the amount of hashish found would theoretically have justified a house search. The Court of Appeal was hence of the view that the hashish found during the search could be used as evidence against the applicant. First set of proceedings before the Federal Constitutional Court challenging the admissibility of evidence found during the house search Considering that it was legally unclear whether or not the Court of Appeal’s findings regarding the admissibility of the evidence found during the house search were binding on the lower courts, the applicant lodged a constitutional complaint with the Federal Constitutional Court. On 27 December 2006 the Federal Constitutional Court rejected the complaint as inadmissible. Resumed criminal proceedings before the Hamburg District Court In the resumed proceedings before the Hamburg District Court, the applicant made a statement that the room in which the hashish had been found was exclusively used by him. On 18 April 2007 the District Court acquitted the applicant, ruling that the hashish found during the house search could not be used as evidence against him. The court noted that under the well-established case law of the Federal Constitutional Court (see paragraph 26 below) an unlawful house search did not automatically mean that the evidence seized during such a house search could not be used in the trial against the person concerned. Evidence might, however, be precluded if the violation of the applicant’s right to respect for his home had been particularly serious. The court weighed the public interest in prosecuting the crime of possession of drugs against the applicant’s interest in respect for his home. It was of the view that the initial suspicion that the applicant might have committed the offence of copyright piracy had been so vague that the issuing of a search warrant had not been justified at all. Hence, the applicant’s right to respect for his home had been infringed in such a severe way that despite the seriousness of the crime of drug possession and the substantial amount of hashish found, the public interest in prosecution could not outweigh the applicant’s interest in respect for his home. The proceedings before the Hamburg Regional Court On 5 October 2007, on appeal by the prosecution, the Regional Court quashed the acquittal, convicted the applicant of possession of a substantial amount of drugs in less serious circumstances and sentenced him to a six months’ suspended prison sentence. As regards the question whether the applicant had been in possession of the drugs the Regional Court relied on a statement of the applicant dated 13 March 2007 according to which the room in which the hashish had been found was solely used by himself. Furthermore, the Regional Court was of the view that the Court of Appeal’s findings in its judgment of 5 September 2006 (see paragraph 15 above) on the admissibility of the hashish as the sole evidence were binding and that hence the hashish found in the applicant’s flat could be used as evidence against him. Moreover, the court made it clear that even if the Court of Appeal’s findings were not binding in this respect it was itself of the view that, weighing the applicant’s interest in respect for his home against the public interest in prosecution, the latter prevailed and that the evidence was thus admissible. Second stage of the criminal proceedings before the Hamburg Court of Appeal The applicant subsequently lodged a fresh appeal on points of law before the Court of Appeal, arguing that the Regional Court should not have admitted the evidence. On 16 September 2008 the Court of Appeal dismissed the appeal. The court weighed the public interest in prosecuting the crime of possession of drugs against the applicant’s interest in respect for his home. It took the view that, considering the seriousness of the crime of drug possession and the substantial amount of hashish found, the public interest in prosecution outweighed the applicant’s interest in respect for his home because the applicant’s rights had not been deliberately infringed, the house search had not been arbitrary and the amount of hashish found would theoretically have justified a house search. Second stage of the proceedings before the Federal Constitutional Court challenging the admissibility of the evidence obtained during the house search The applicant lodged a fresh constitutional complaint, arguing that the admission of the evidence infringed his right to respect for his home under Article 13 of the Basic Law and his right to a fair trial under Article 2 § 1 read in conjunction with Article 20 § 3 of the Basic Law (see paragraph 23 below). On 2 July 2009 the Federal Constitutional Court dismissed the complaint (file no. 2 BvR 2225/08). The decision was served on the applicant’s counsel on 3 August 2009. The court assessed the applicant’s arguments mainly under the head of Article 13 of the Basic Law. It held that the Court of Appeal had balanced all the interests at stake in a way that was neither arbitrary nor unreasonable and that the conviction of the applicant, although exclusively based on the evidence found during the house search, did not infringe the applicant’s constitutional rights. With regard to the applicant’s claim that the use of the hashish seized as evidence against him had violated his rights under Article 2 § 1 read in conjunction with Article 20 § 3 of the Basic Law, the court held that the principle of a fair trial had been applied in a way that was neither unjustifiable nor arbitrary. Hence the applicant’s constitutional rights had not been violated. F. Disciplinary proceedings As the applicant was a civil servant, disciplinary proceedings were initiated in view of the criminal charges against him. The disciplinary proceedings were adjourned during the criminal proceedings. Following the conviction of the applicant by the criminal courts, the competent authorities formally noted that the applicant had committed a disciplinary offence and discontinued the proceedings as the offence had not been of a kind or degree demanding disciplinary measures.

P1-1

10

5

A. The background to the case On 10 October 1967 they bought a three-room flat in Nice from Mr Ange Torzuoli and his wife (their aunt) for a down payment of 10,000 French francs (FRF) followed by monthly payments of FRF 100 to the vendors during their lifetimes and to the survivor of the two, without any reduction on the death of the first. The amount of the monthly payments was to be increased if the national family consumer price index rose by 5% or more. If a single instalment was not paid on the due date and a formal notice to pay remained without effect a month later, the contract would automatically be rescinded if those to whom the payments were due so wished. On 18 July 1977 the applicants were served with a formal notice to pay arrears and co-ownership service charges, about FRF 7,000 in all, but they did not act on it. B. The proceedings at first instance On 12 December 1977 Mr and Mrs Torzuoli summoned Mr and Mrs Vernillo before the Nice tribunal de grande instance. They asked the court to declare that the sale was automatically rescinded through the fault of the defendants. The latter filed pleadings on 5 May 1978 and the plaintiffs - who had been granted three extensions of time by the judge responsible for preparing the case for trial - did so on 20 September 1978. On 27 March 1979 the applicants filed pleadings in reply. Their lawyer died and they instructed another one. On 20 June 1979 Mr Torzuoli died. On 21 October 1980 his widow asked the court to formally acknowledge her wish to continue with the proceedings. On 14 January 1981 the judge responsible for preparing the case issued an order certifying that it was ready for trial. The public hearing took place on 10 March 1981. In a judgment of 16 June 1981 the court refused to declare that the contract of sale was rescinded. The appeal proceedings On 31 July 1981 Mrs Torzuoli appealed to the Aix-en-Provence Court of Appeal and the case was entered in the court’s list on 28 September 1981. The respondents filed their pleadings on 11 March 1982 and the appellant filed hers on 13 April and 27 July 1982. The order certifying that the case was ready for trial was made on 18 March 1983, and the hearing took place on 27 April 1983. On 29 June 1983 the Aix-en-Provence Court of Appeal reversed the decision of the court below and granted a declaration that the sale was rescinded through the fault of the applicants. The proceedings in the Court of Cassation On 6 January 1984, this judgment having been notified to them, Mr and Mrs Vernillo appealed to the Court of Cassation. On 4 June 1984 they filed their supplementary pleadings, and on 18 June these were served on the respondent, who replied on 2 November 1984. The same month, the case was allocated to the Third Civil Division and the reporting judge appointed. The latter produced his report on 7 December 1984 and the Advocate-General to be responsible for the case was assigned on 29 January 1985. On 5 June 1985 the Court of Cassation dismissed the appeal on the following grounds: "... Having found that Mr and Mrs Vernillo had not within one month complied with the formal notice to pay of 18 July 1977, which ontained a reminder of the clause providing for automatic rescission of the contract, and had not within the same period made any genuine, serious offers to pay at least the sums which they acknowledged they owed, the court below, in response to the submissions and except for the misinterpretation of the detailed figures produced by Mr and Mrs Vernillo, legitimately decided that the sale was rescinded. Moreover, having noted that by the terms of the contract of sale ny instalments due or other sums paid by the date of the formal notice to pay would, in the event of rescission of the sale, remain the property of the beneficiaries by way of compensation, without prejudicing their right to sue for recovery of any amounts due, the court below applied these contractual provisions without misinterpreting them. For these reasons, the Court of Appeal’s decision was justified in law. ... ." THE RELEVANT LEGISLATION AND CASE-LAW A. The provisions of the new Code of Civil Procedure The Government relied on the following three provisions of the New Code of Civil Procedure: Article 373 "The proceedings may be voluntarily resumed in the manner prescribed for the submission of the grounds of defence. If they are not resumed voluntarily, they may be recommenced by way of summons." Article 780 "If counsel for one of the parties has not carried out the procedural steps within the time allowed, referral of the case to the court and termination of the preparation of the case for trial may be ordered by the judge [responsible for preparing the case for trial] of his own motion or on an application by another party; in the latter case the judge shall have a discretion to refuse the application in an order setting out his reasons and which shall be final." Article 910 "The case shall be prepared for trial under the supervision of a judge of the division of the court to which it has been allocated, as provided in Articles 763-787 and in the following provisions. (D[ecree] no. 85-1330, 17 Dec. 1985, Art. 12, with effect from 1 January 1986) Where a case appears to be urgent or to be ready for trial within a short time, the presiding judge of the division to which it has been allocated shall fix the date and time at which it will be called; on the appointed day, matters shall proceed as provided in Articles 760-762." B. The remedy provided in Article L 781-1 of the Code of Judicial Organisation By Article L 781-1 of the Code of Judicial Organisation, "The State shall be under an obligation to compensate for damage caused by any malfunctioning of the system of justice. This liability shall be incurred only in respect of gross negligence or a denial of justice. ... ." This provision can be relied on not only in a non-contentious application (recours gracieux) to the Minister of Justice, but also - subsequently or at the outset - for the purpose of instituting contentious proceedings. According to Ministry of Justice statistics, the Ministry received 267 applications between 1973 and 1987. Ninety-seven of these were successful; 134 were refused; no action was taken on 15 of them; and 21 were still under consideration at 31 December 1987. In 6 applications - of which 5 had failed and 1 was pending - the complaint concerned the length of proceedings. During the same period, likewise according to the Ministry of Justice, 77 cases came before the courts. The plaintiffs were unsuccessful in 25 cases and successful in 19, the compensation awarded totalling FRF 16,294,573. Two claims had been settled and 31 applications remained to be heard. In a bankruptcy case which had lasted for about seventeen years (Fuchs Agent judiciaire du Trésor public) the Paris Court of Appeal ordered the State to pay FRF 50,000 in damages. Its judgment of 10 May 1983 contained the following reasons: "The court’s delay in giving judgment and the persistent silence maintained by the bankruptcy judge and the court vis-à-vis the receiver of the Fuchs company amounted to a breach of duty, and the decision subsequently given on 3 June 1975 stemmed from an error in assessing the situation as submitted to the court. The breach of duty and the error in assessment are particularly serious on account of the factual and procedural circumstances with which the court was fully acquainted and which clearly made it imperative to terminate rapidly a bankruptcy that was no longer justified. These were flagrant breaches amounting to gross negligence in the functioning of the system of justice and they entail the State’s liability; ... ."

5, 3, P4-4

Background to the case The applicant and the newspaper 5 . The applicant is a journalist by profession. At the relevant time she was employed as a reporter at 24 Hours , one of the leading national daily newspapers. She continues to work there at present. The Information on Non ‑ Performing Credits Act of 1997 6 . Following a serious banking crisis in 1996 ‑ 97, during which a number of banks were sunk into insolvency by, inter alia , non-performing and unsecured loans extended to corporate and individual clients, the Bulgarian legislature enacted a comprehensive package of bank reform legislation (see Capital Bank AD <COUNTRY> , no. 49429/99, § 45, 24 November 2005). Part of that package was the Information on Non ‑ Performing Credits Act of 1997 (“Закон за информация за необслужвани кредити”), which stipulated that the Bulgarian National Bank should compile a list of all bank borrowers with loans that had been due for more than six months, send this list to the Chief Prosecutor’s Office, the Ministry of Internal Affairs, the tax and customs authorities, and the National Assembly, and publish it in a special bulletin. The persons on this list were colloquially referred to as “credit millionaires”. 7 . On 21 January 1998 the head of the banking supervision department of the Bulgarian National Bank presented the list to the chairman of the National Assembly. Mr 8 . Between 1994 and 1997 Mr was a Member of Parliament elected on the ticket of the political party Movement for Rights and Freedoms . He was deputy chairman of the Economy Committee and a member of the Budget and Finance Committee of the National Assembly. In the spring of 2001 he became involved with the newly formed coalition National Movement Simeon II , which won the parliamentary elections on 17 June 2001. During the 1990s Mr was a member of and shareholder in a number of commercial companies. Between 1995 and 2001 his name was mentioned in at least twenty ‑ four reports in national newspapers. The previous publication alleging that Mr was a “credit millionaire” and his tort action against Media Holding AD On 22 January 1998 Trud , a leading national daily newspaper, published an article under the headline ‘Credit millionaires disclosed’ and the caption ‘Several incumbent and former members of Parliament appear on the list’. In the article the newspaper reported on the handover of the list of “credit millionaires” to the chairman of the National Assembly the previous day and mentioned, inter alia , that several companies connected with the name of Mr were on the list. According to the article, the company Maxcom Holding owed 2 billion old Bulgarian levs (BGL) to one bank, the company FBK Maxcom owed BGL 4 billion to another bank, and the company Maxcom OOD was indebted in an amount of BGL 8 billion. 10 . On 30 January 1998 Mr issued civil libel proceedings against the publisher of Trud , Media Holding AD. He said that the allegation made in the article that he was a “credit millionaire” was not true. He further averred that this allegation seriously tarnished his reputation as a public figure and a Member of Parliament. He sought BGL 10,000,000 in non ‑ pecuniary damages. 11 . In a judgment of 9 January 1999 the Sofia City Court dismissed the action. It held that Mr ’s allegations had not been supported by any evidence and were therefore unsubstantiated. Neither party had attended either of the hearings in the case. Mr had not sought leave to adduce any evidence. He had therefore not proven his claim that he had suffered any damage on account of the impugned article. Apparently Mr did not appeal and the judgment entered into force on 9 March 1999. B. The impugned article 12 . On 3 August 2001 the parliamentary group of the National Movement Simeon II held a closed ‑ doors meeting in the National Assembly in order to discuss, inter alia , the candidates for the position of deputy Minister of Finance in charge of customs. For this reason the applicant, who at that time worked as a parliamentary reporter, went, together with other journalists, to the National Assembly lobby. There they met Members of Parliament, who told them that Mr was being considered for the above ‑ mentioned position. One of the MPs apparently said that his candidacy would probably not be approved because the Prime Minister was wary of the fact that Mr ’s name featured on the list of “credit millionaires”. At that point the applicant called the editor of 24 Hours and said that she would prepare an article on the topic. She also telephoned Mr N., the press officer of the customs administration, asking him whether Mr ’s name was on the list of “credit millionaires”. Mr N. replied that as far as he knew that was so, and referred the applicant to the Full list of credit millionaires, published by the Trud publishing house in 1998. It was stated in the preface of that publication that two companies linked with Mr – FBK Maxcom and Maxcom OOD – were on that list. The applicant checked in an electronic law database and found that Mr had been a member (first directly, and after 1993 through another company) of the company Vitaplant OOD, which was also among the debtor companies on the list. After unsuccessfully trying to contact Mr by telephone, she wrote an article about the story. According to the applicant, in the meantime other journalists from 24 Hours had contacted various institutions which could have had information on the matter (the Chief Prosecutor’s Office, the Ministry of Internal Affairs, the National Assembly, the Ministry of Finance, the Bulgarian National Bank) and all of them had confirmed that Mr featured on the list of “credit millionaires”. 14 . The article, which appeared on page eight of the 4 August 2001 issue of 24 Hours under the headline “Foreign Company to Run Customs under Concession?” and the applicant’s byline, was worded as follows: “The King’s men were intensely discussing whether to hire a Western company to run the customs administration, Members of Parliament say. The idea became topical because of difficulties with the selection of a strong candidate for the position of deputy Minister of Finance in charge of supervising the customs administration. The proposal that Mr is tapped for the position has not yet been approved by the Prime Minister. Simeon Saxe ‑ Coburggotski was concerned about the fact that [Mr ]’s name is on the list of credit millionaires, confided sources close to him. In the official document dated 21 January 1998 and signed by the head of the Bank Supervision [department of the Bulgarian National Bank], [Ms E. ], [Mr ] appears as a debtor. Three of his companies – Maxcom Holding, FBK Maxcom and Maxcom OOD –, had debts totalling 20,400,000 levs. The uncertainties about [Mr ] have brought the name of [Mr E. ] on to the agenda. However, the idea was for him to have operational control over customs, while the concession is awarded to the Western company.” The article was accompanied by photographs of Mr and Mr E. with their names in the captions. 16 . Later that day the applicant got in touch with Mr and was told that the statements in her article were not true. 17 . After the first printed copies of the newspaper were circulated, Mr called 24 Hours ’ editor and said that he was not a shareholder in Maxcom Holding, FBK Maxcom, or Maxcom OOD. The editor then decided to amend the article in the subsequent printed copies of the newspaper. The new version, which featured solely the picture of Mr , but not that of Mr E. , read as follows: “The King’s men were discussing whether to hire a Western company to run the customs administration, Members of Parliament say. The idea became topical because of difficulties with the selection of a strong candidate for the position of deputy Minister of Finance in charge of supervising the customs administration. The proposal that Mr is tapped for the position has not yet been approved by the Prime Minister. According to insiders, Simeon Saxe ‑ Coburggotski received reports that [Mr ] is on the list of credit millionaires. In the official document dated 21 January 1998 and signed by the head of the Bank Supervision [department of the Bulgarian National Bank], [Ms E. ], [Mr ] appears as a debtor. Mr categorically denied this. He said ‘I am not a debtor, but a creditor’. According to former Members of Parliament, the allegations that he was a credit millionaire were being spread by people who wanted to smear his name. Ill ‑ wishers used the similarity between the names of [Mr ]’s companies and the names of those companies featuring on the list of credit millionaires. This was done to foil his candidacy for the position of deputy Minister of Finance. In recent days the name of [Mr E. ] has been brought on to the agenda. However, the idea was for him to have operational control over customs, while the concession is awarded to the Western company.” 18 . The first version of the article was featured in 5,205 copies of the newspaper, 5,079 of which were sold. The second version was featured in 230,817 copies, 202,568 of which were sold. 19 . Two days later, on 6 August 2001, 24 Hours ran an additional article including the response from Mr The article, which appeared on page ten, was under the caption ‘You are wrong’ and its headline was ‘[]: I am not a credit millionaire!’. It read as follows: “In an article on page eight of issue 208 of this year, under the headline ‘Foreign Company To Run Customs under Concession?’, [the applicant] links my name to companies which feature on the list of credit millionaires. This statement does not correspond to the truth. I reiterate that I have never been a shareholder, member or manager in the companies Maxcom Holding, FBK Maxcom, or Maxcom OOD, nor can I be in any other way linked with debtor companies. Recently some of the newspapers in the country have been trying to participate in an orchestrated campaign to smear my reputation. To my displeasure I notice that 24 Hours , a newspaper which I respect, has joined in the foul attack. In my opinion, the publication of unauthentic, unverified and incorrect information does no honour to your newspaper and offends its readers.” Alongside the article there was a photograph of Mr with his name in the caption. Shortly after these events Mr announced that he had withdrawn his candidacy for the post of deputy Minister of Finance. The proceedings against the applicant 22 . On 8 October 2001 Mr lodged a criminal complaint against the applicant with the Sofia District Court. He alleged that the statements made in the article were not true. In particular, he had never been a shareholder, member, or manager of the companies mentioned in the article – Maxcom Holding, FBK Maxcom or Maxcom OOD –, nor did he appear as an individual on the list of “credit millionaires”. In his view, by writing the article containing the untrue statements the applicant had committed libel, contrary to Articles 147 § 1 and 148 §§ 1 (2) and 2 of the Criminal Code of 1968 (see paragraphs 32 and 33 below). He further alleged that he had suffered substantial non ‑ pecuniary damage as a result of the applicant’s act, and sought compensation in the amount of 10,000 new Bulgarian levs (BGN). He declared that he would donate any award made by the court to a church. On 28 November 2001 the judge ‑ rapporteur at the Sofia District Court sent a copy of the criminal complaint to the applicant, invited her to file a reply, and set the case down for trial. In her reply the applicant said that the allegations made in the criminal complaint were untrue and unproven. The article did not consist of her own statements; she had simply relayed information coming from Members of Parliament. This information had been verified through all available sources. The applicant had been certain that Mr had indeed been a “credit millionaire”, which was the actual vilifying circumstance, not the mere fact that he was involved in certain companies. 25 . The trial took place on 25 March, 10 April, 15 May, 19 June and 16 September 2002. The Sofia District Court admitted in evidence a number of documents produced by the applicant and Mr , and questioned several witnesses, one of whom was Ms N., a journalist who had been in the National Assembly on 3 August 2001 (see paragraph 12 above). While initially giving leave to the applicant to adduce evidence relating to Mr ’s links with companies which had failed to repay bank loans, the court later revoked its order and refused to admit such evidence, holding that these matters could be elucidated through the evidence already gathered. The court also gave leave to the applicant to call one of the Members of Parliament whom she had talked to on 3 August 2001. She tried to secure his presence, but failed to do so. She accordingly left it to the discretion of the court to subpoena him, but refused to name him. Her counsel said that even though the MPs who had spoken to the applicant had been named in Ms N.’s testimony, that did not allow the unequivocal identification of this witness and hence precluded a request to summon him. The court held that, failing clear identification of the witness, it was impossible to subpoena him. It added that the defence had had ample opportunity to secure his presence, but had failed to do so. 26 . In a judgment of 16 September 2002 the Sofia District Court found the applicant guilty of having divulged a vilifying fact about another person in a publication, contrary to Article 147 § 1 and Article 148 §§ 1 (2) and 2 of the Criminal Code of 1968 (see paragraphs 32 and 33 below). The court applied Article 78a of the Code (see paragraph 34 below) and replaced the applicant’s criminal liability with an administrative fine of BGN 500. The court further ordered the applicant to pay Mr BGN 2,000 plus interest from 4 August 2001 until settlement, as compensation for his injured reputation, and awarded him BGN 550 in costs. The court described the facts set out in paragraphs 12 ‑ 19 above, except the part concerning Mr ’s indirect membership of Vitaplant OOD at the time when it had taken out bank loans which it had failed to repay, and held as follows: “...The actus reus of the offence of defamation is characterised by the divulging of vilifying – and untrue – circumstances relating to a specific individual. The expression used by [the applicant] – ‘credit millionaire’ – is derived from the Information About Non ‑ Performing Credits Act [of 1997], on the basis of whose section 3 the administration of the [Bulgarian National Bank] has published a list of all debtors, persons who have outstanding credits. Therefore the expression ‘credit millionaire’ has a negative connotation and presupposes intolerance and extremely negative public attitudes. These are people who have prospered financially due to credits from financial institutions which they have failed to repay. In this sense, from a moral point of view these persons do not enjoy a good reputation and are perceived as dishonest. The law bans these persons from holding certain official posts. The above characterises the expression used by [the applicant] – ‘credit millionaire’ – as vilifying and damaging to the public reputation of the person [in respect of whom it is used] and the esteem of his personality. The vilifying circumstance has been divulged through the press to a large number of readers. The fact that the first version of the article had a smaller circulation than the second, which also contained [Mr ’s] rebuttal, is of no consequence, because the circulation of the printed material has no impact on the criminality of the act. The act has been committed wilfully, the form of mens rea being recklessness. [The applicant] realised the criminality of her act and its injurious consequences, and accepted that they would occur. [She] pursued another aim, which is not unlawful –informing the newspaper’s readers of the latest news about the candidates for the post of deputy Minister of Finance in the Saxe ‑ Coburggotski cabinet –, but was aware that the information published was untrue and did not correspond to the actual facts. The court’s findings in this respect are based on the fact that [the applicant] did not carry out a proper journalistic enquiry before publishing her story. No regulations for conducting a journalistic enquiry were in existence at the time when the article was published. Accordingly, in his or her work each journalist had to abide by and comply with the settled customary rules in the branch, which are in line with Articles 39 to 41 of the [Constitution of 1991 – see paragraph 31 below], which contain requirements and restrictions in the exercise of the rights proclaimed thereby. In the instant case, it was established that [the applicant] had not carried out the required comprehensive and thorough journalistic enquiry, as required by the rules of investigative journalism, that is, to receive confirmation from two independent sources. The first of [the applicant]’s sources was a Member of the majority in Parliament, who conveyed the information relating to [Mr ] off the record, citing no sources, that is, it was unclear whether he had obtained it through his participation in a parliamentary committee or also through unofficial channels. He should have therefore, according to best journalistic practice, been considered an unreliable source. This fact obliged [the applicant] to duly check the information she had received through other, public and reliable, sources and not trust completely what she had heard in Parliament. The information received from [Mr N.] did not in fact constitute another dependable source of information. The latter relied on the publication of the Trud publishing house The Full List of Credit Millionaires , in whose preface [Mr ] had been identified as a debtor through three of his companies – FBK Maxcom, Maxcom Holding and Maxcom OOD. [The applicant] was therefore under the obligation to check whether [Mr ] indeed owned shares in these companies, because the mere linking of his name to the companies in a publication was not enough to perceive the information as authentic. This conclusion is reinforced by the fact that the publication in issue gave the names of the companies, not of their shareholders, for which reason the statement in its preface was not confirmed by its contents. However, [the applicant] did not take the requisite steps to verify the facts alleged by [Mr N.] and the publication’s preface. She merely established, after a check in the APIS information system, that [Mr ] was a shareholder in the company Vitaplant [OOD], which also featured on the list of persons with outstanding credits. The company Vitaplant [OOD] was not, however, among the companies connected to [Mr ]’s name in the publication’s preface, and that should have prompted [the applicant] to double ‑ check her assumptions. However, [the applicant] assumed that the link uncovered by her was sufficient to corroborate the statement that [Mr ] was a credit millionaire. She thus failed to comply with her duty of thoroughly verifying the information through reliable, independent sources. [The applicant] did not check whether the statement in the [publication’s] preface that [Mr ] was connected to three debtor companies corresponded to the truth, which was mandatory. The fact that she works at a daily newspaper does not absolve her of the obligation to carry out thorough journalistic enquiries. She had access to information in the register of companies, which is public, in order to check the veracity of the information she had gathered. Not only did [the applicant] not do that, but in her article she relied on a document with which she had not been duly acquainted – the official list of borrowers compiled by the [Bulgarian National Bank]. The statement in her article that the three companies – Maxcom Holding, Maxcom OOD and FBK Maxcom – were companies of [Mr ] was not supported by due journalistic enquiry. Her source, [Mr N.], relied on the publication of Trud , which in fact means that [the applicant]’s information was solely based on the preface of the list, which was not enough, considering that this information had not been verified either. The readers’ right to be informed of so ‑ called ‘hot news’ does not absolve the article’s author from checking carefully the accuracy of her publication. The fact that [the applicant] did not take the necessary steps in this direction confirms the court’s conclusion that her act was wilful. There must be a balance between the reader’s right to information and the rights of the persons affected by journalistic materials. The one responsible for this balance is the author, who must abide by the rules of investigative journalism. It is beyond doubt that the time and means available to a journalist on a daily newspaper for a proper enquiry concerning a current issue are greatly limited, but [the applicant] was bound to do what was possible to verify the information she had gathered. In the case at hand [the applicant] had enough time to consult the register of companies, so as to report on the rumours heard in the lobby of the Parliament building and at the same time to present the actual facts. It is precisely [the applicant]’s passivity in respect of this second element which makes her act criminal. The lack of a full enquiry into the facts, performed with due journalistic care, and the applicant’s own statement that she did not carry out a full enquiry into Mr ’s involvement in the companies mentioned in the article, allow [the court to conclude] that she was not confident that her allegations were true. On the contrary, the fact that [the applicant] is an experienced journalist, maintains contacts with colleagues of hers from other media, with whom she exchanges information concerning such news, allows [the court to conclude] that she knew that information about outstanding credits of [Mr ] had been published before. She was therefore aware that the two newspapers which had published similar articles had also published refutations, and had apologised to [Mr ] for the untruthfulness of their allegations. [The applicant] did not do all she was professionally bound to do in respect of the specific enquiry, which points to intent. She allowed herself to rely on sources which she had not checked, but which made her article look persuasive and objective. CONCERNING THE PENALTY: In determining the type and quantum of punishment the court had regard to the following: The court is of the view that all necessary prerequisites for replacing [the applicant]’s criminal liability and imposing an administrative punishment on her are in place. The offence committed by her is punishable by a fine. [The applicant] has not been previously convicted of a publicly prosecutable offence and exonerated of criminal liability... For this reason, the court is of the view that [the applicant] should be exonerated of criminal liability and punished administratively by a fine. In determining the amount of the fine the court had regard to [the applicant]’s means, earned as a journalist, as well as to certain mitigating circumstances, such as a critical attitude to her act, cooperation in establishing the facts, [and] good character. All of these favour a lower fine, that is [BGN] 500. The court contemplated the possibility ... of imposing an additional punishment, but accepted that this is not necessary as the fine is sufficient to reform and deter [the applicant] and the general public. CONCERNING THE CIVIL CLAIM: The existence of damage resulting from the offence under Article 147 § 1 of the [Criminal Code of 1968] is an unrebuttable presumption and, in view of the court’s finding that the applicant acted with mens rea , the only outstanding issue is the quantum of damage. It is beyond doubt that the publication authored by [the applicant] damaged [Mr ]’s reputation and public esteem. He should therefore be compensated for that damage. At the same time it has not been proved beyond doubt that the article has affected [Mr ]’s business relations with his partners, [or] has hindered his prospective career in the executive, that is, has prevented him from being appointed to a high ‑ ranking position. [His] allegations in this respect remained a mere conjecture, lacking clear distinction between reality and possibility. All averments in a criminal complaint are subject to proof at trial, including the quantum of the damage. For this reason, the lack of evidence leads to the conclusion that [Mr ]’s claim for BGN 10,000 is unproven. [The claimant] is not relieved of the burden of proving the exact quantum of the sustained damage, irrespective of his statement in the criminal complaint that the amount will be donated for charitable purposes. The court ruled in equity, as required by [the law] and the established case ‑ law, accepting that [the applicant] should be ordered to pay [Mr ] the amount of BGN 2,000 as compensation for the non ‑ pecuniary damage suffered as a result of the offence. [The applicant] is to pay interest on this amount at the legal rate from 4 August 2001 until settlement. ...” On 15 October 2002 the applicant appealed to the Sofia City Court. She argued, inter alia , that the lower court had erred in varying its order giving her leave to present evidence on the ground that that evidence had already been adduced by the private prosecuting party. It had thus restricted her capacity to prove the veracity of her allegations against Mr The lower court had also erred in accepting that she had acted with mens rea , which was excluded on account of, in particular, the fact that there had been prior publications stating that Mr was a “credit millionaire”. The applicant finally stated that her conviction and sentence were contrary to, inter alia , Article 10 of the Convention. A journalist had the right to impart information received from others acting in their official capacity, which is how it was received in this case. She was under no obligation to verify publicly disclosed information. She had received the information from a Member of Parliament, immediately after a discussion within his parliamentary group on the matter, and had simply passed it on. In a supplementary memorial of 24 March 2003 the applicant further said that she had not committed the actus reus of defamation, as Mr was indeed a “credit millionaire”, which was the actual vilifying circumstance, not the fact that he had been involved in certain companies. This fact was further evidenced by the judgment dismissing his tort action against Media Holding AD. The evidence presented merely proved that he was not on the list of “credit millionaires” as a physical person. It was therefore still possible that he could have been one through participation in certain companies, as she had tried to prove. The lower court’s findings in respect of, inter alia , Mr ’s direct and indirect participation in the companies mentioned were likewise erroneous. The court had also incorrectly held that the applicant had acted recklessly. She personally, and also her colleagues, had made numerous checks through various sources, which had led them to believe, in good faith and in line with the rules of investigative journalism, that Mr was a “credit millionaire”. The alleged insufficiency of the verification could only indicate negligence, not intent. Finally, the fact that the impugned information had previously been made public excluded defamation. 29 . The Sofia City Court held a hearing on 31 March 2003. It admitted in evidence a number of documents produced by the applicant with a view to establishing Mr ’s participation in Vitaplant OOD, refused certain other evidentiary requests by the applicant, and heard the parties’ arguments. 30 . In a final judgment of 19 May 2003 the Sofia City Court noted the facts set out in paragraphs 12 ‑ 16 above, including the part relating to Mr ’s participation in Vitaplant OOD at the time when it had taken out bank loans which it had failed to repay, and upheld the applicant’s conviction and sentence in the following terms: “... The parties are not in dispute about the facts [established by the court]. There is also no dispute about the [lower court]’s finding that the statement that a given person is a ‘credit millionaire’ because companies owned by him appear on the [Bulgarian National Bank]’s list of debtors with ‘bad credits’ is objectively vilifying for him or her. [The applicant’s] defence raises legal arguments, which outline two disputed questions. The first is whether there is defamation where the facts set out in the publication are untrue, but the conclusion made on their basis is true on other grounds. The defence argues that [Mr ] is in fact a ‘credit millionaire’, not on account of the companies cited in the publication, but because of [his involvement in] another company – Vitaplant OOD. The second is whether an individual who owns a share in a company with outstanding credits can be deemed a ‘credit millionaire’. The view of [the court] on these questions is as follows: The expression ‘credit millionaire’ is not legally defined. It has entered the journalistic vernacular and is used in everyday speech to describe individuals who have acquired large amounts of money as a result of the use, by them personally or by physical or legal persons connected with them, of unsecured bank credits, which have remained unpaid and have been listed by the [Bulgarian National Bank] as unrecoverable. The expression is pejorative, because it implies that the people in question are supposedly responsible for the crisis in the banking system and the so ‑ called ‘draining’ of the banks – generally persons who have become rich in a criminal way. A list of ‘credit millionaires’ as an official document emanating from the [Bulgarian National Bank] has never existed. There exists a list of the persons with outstanding credits as of 1997, which has been compiled pursuant to the Information on Non ‑ Performing Credits Act [of 1997]. This Act requires the [reportable] credits to exceed 5,000 German marks – it does not concern only credits with seven or more figures. According to [the Act], the list is published in a special bulletin, which is not covered by bank secrecy and is sent to the Chief Prosecutor’s Office, the Ministry of Internal Affairs, the tax and customs authorities and the National Assembly. After its receipt at the National Assembly on 21 January 1998 the list was made available to journalists and was published in full or in part as a list of the “credit millionaires”. In fact, the vilifying circumstance is not to own specific companies, but to be a ‘credit millionaire’. In the view of the [court], however, such a dissection of the statement in [the applicant]’s publication and the application of paragraph 2 of Article 147 of the [Criminal Code of 1968] to one of the resulting parts cannot be made, for the following reasons. Readers are not bound to accept journalistic statements uncritically. An abundance of specifically alleged facts in support of those statements is key to persuading readers that they are truthful. Such facts in the case at hand are the citing of an official document featuring [Mr ]’s name (untrue) and the citing of specific companies owned by [Mr ] with specific debts (also untrue). There is no doubt that without these untrue allegations the statement that [Mr ] is a credit millionaire would have been uncorroborated and unconvincing and its refutation would have presented no problem for him. It would be wrong to divide an averment containing a vilifying circumstance into two parts for a second reason: the damage to the reputation and the public esteem of a defamed person is not a constant value. The degree of that damage may vary significantly. In the instant case, where there is a statement that an individual is a ‘credit millionaire’ because of his involvement in companies which have received credits, the [court] considers that the greater the amount of the outstanding credits, the more numerous the companies having received them, the more direct the connection of the individual with these debtor companies, and, last but not least, the noisier the public scandal, the more vilifying is the statement. [Mr ] would suffer a lesser degree of defamation if the amount of the outstanding credits was one and not twenty million levs, if the article had cited one unknown company instead of three companies which had become notorious because of their link with criminal investigations, and if [Mr ] had not been indicated as [their] sole owner instead of merely a shareholder [in them]. Because of the meaning implied in the expression ‘credit millionaire’ the [court] considers that in the event of a credit taken by a company, an individual could be deemed as having profited therefrom, in the range of millions of levs, only if [his or her] connection with that company is direct, and not through the intermediary of participation in companies which in turn participate in other companies, and if the shareholding is big enough to allow a substantial amount of the credit to pass on to him. The link may likewise exist through participation in the management [of these companies]. At the time when the credit was received [Mr ] did not participate directly in Vitaplant [OOD]. He was neither a manager of that company, nor a substantial shareholder. The credit itself was not in an amount which would make him a ‘millionaire’. The arguments relating to the existence of a civil judgment dismissing a tort action by Mr against Media Holding AD are irrelevant, as from the reasons of this judgment it is apparent that the action had not been supported by evidence of the non ‑ pecuniary damage sustained, whereas the civil courts are under no obligation to gather such evidence. This judgment is not binding on the criminal court. The arguments relating to the lack of mens rea are unfounded. The court considers that the [lower court] has correctly accepted as true [the applicant]’s statements that she had verified the information from two independent sources – the Members of Parliament and [Mr N.], after which she had assured herself of its veracity from the existence of numerous prior publications in different newspapers. In spite of that, the defamation was committed recklessly. [The applicant] has disregarded her duty to check the information she imparts with the only reliable source – the public register of companies – to which she had access. The opinion of the MPs was unofficial, as established by the testimony of [the applicant]’s colleagues, whereas [Mr N.], not having his own information, referred [the applicant] to the publication of Trud . This leads to the conclusion that [the applicant] was aware of the possibility that the vilifying information might not be accurate, but disregarded this concern in order to get her story to print as soon as possible.”

Bulgaria

3

The proceedings before the national authorities The applicants were born in 1965, 1978 and 1999 respectively. They live in Vilhelmina. The applicants requested asylum in <COUNTRY> on 28 December 2007. They stated that they had lost all their identity papers in the 1994 war. They had left Russia by lorry on 14 December 2007 because they were under threat from “Kadyrov’s group” [Ramzan Kardyrov], which had arrested and tortured the first applicant. They arrived in <COUNTRY> on 23 December 2007. On 7 March 2008 legal counsel was appointed to the applicants, who made the following two written submissions before the Migration Board ( Migrationsverket ). In the first submission of 9 April 2008 the applicants stated the following: The first applicant was of Chechen origin and a Muslim. The second applicant was partly of Ukrainian and partly of Chechen origin, and a Russian Orthodox. Between 1983 and 1985, the first applicant performed military service, following which he had worked as a carpenter and then as an apprentice at a periodical until 1992. In the beginning of 1995 he had worked at a hospital, helping wounded people. On 25 February 1995 he had been injured as a result of an explosion outside the hospital. In 1995 he had met a man called H, who accompanied the first and the second applicant to a mountain village. They had stayed there for twelve years until 6 October 2007. H had given the first applicant a camera in order to document the executions of villagers committed by the Russian federal troops. The first applicant had taken photographs and written reports concerning several such executions. The “Kardyrov group” had been behind all those executions. The material had been sent to different television broadcasting companies, including the BBC. In return he had been provided with food. On 6 October 2007 the first applicant had received news that his wife and child had been kidnapped by the Federal Security Service of the <COUNTRY> ("the FSB"). The second applicant had been tortured and raped for several days. On 11 October 2007 she had heard a male voice asking her and the child to be quiet and follow him. They had gone through a gate where another man was waiting for them and then hidden in a house in a village. On 31 October 2007 they had gone to another village where they stayed until 13 December 2007 when she was taken to the first applicant, with whom she and their child were reunited the following day. In the meantime, on 9 October 2007, while searching for his family, the first applicant contacted a military guard, who arrested him. The first applicant was wanted as a key figure and an agent had informed the FSB about him. There was a price on his head of 000 dollars. The first applicant had been detained in a cellar and forced under torture to provide information about the rebels, their hiding places and various radio signals. The torture included having a cross burned into his chest with cigarettes. After some time, he had been taken to a forest to be shot. He had been told to run, whereupon the FSB had fired at and hit him three times. He had lost consciousness. By chance he had survived and woke up on 11 October 2007 at a camp where he had been taken by rebels and where he had been operated on by a doctor. The latter told him that two rebels had been near to the place of his planned execution, had fired at the FSB officers and thereby prevented his execution. H came to see him on 14 October 2007 and informed him that he would be killed either by the FSB or by the rebels, who considered him as a traitor because he had revealed information about the rebel group under torture. H had therefore encouraged the first applicant to commit suicide. On 15 November 2007 he had confirmation that his wife and child were alive. Immediately after they were reunited on 14 December 2007, the family had left Russia. In a second written submission of 13 May 2008 the applicants added, inter alia, that the first applicant had previously worked with Amnesty International. Through this work he had come into contact with the journalist Anna Politkovskaja. His first contact with her had been in the year 2000. He had met her several times after that and provided her with information. The first applicant suspected that the reason why he was wanted was related to Anna Politkovskaja’s archives becoming available to opposing interests in connection with her death. On 16 September 2008 the Migration Board held a meeting which lasted approximately three and a half hours and included interviews with the applicants in the presence of an interpreter and their legal counsel. The first applicant stated, amongst other things, that before the war he had worked as correspondent for a small newspaper. After having met H in 1994 the first and second applicant had moved to the mountain village and joined the rebels. He met Anna Politkovskaja only once, in February 2002. After that he had begun to forward copies of his work to her and to H. He had spoken with her on the telephone and she had planned to write a book about him. Her assistant had photographed them on the day they met. He had documented an estimated total of over a thousand crimes between 1995 and 2007. It was R, a man he worked together with as a journalist, who had told him that he was wanted by the occupying authorities. Having been subjected to torture and an execution attempt, he had learned in October 2007 that his wife and child were alive and they were reunited on 13 December 2007. The second applicant added that she had been physically and verbally abused by her kidnappers because she was not a “pure” Chechen. Before the Migration Board the applicants submitted three letters dated August 2008 from private persons of Swedish nationality, and a medical certificate dated 17 April 2008 which stated that the first applicant had wounds on his body which had “a good relation” with his explanation both of the timing and the extent of the torture to which he had allegedly been subjected. By decision of 25 October 2008 the Migration Board refused to grant the applicants asylum. It observed that the applicants had no documents to prove their identity. However, it found it established that they originated from Chechnya. It did not find that the situation there or the general situation for Chechens in the <COUNTRY> alone could justify the granting of asylum. It went on to assess the applicants’ situation individually and found, notably, that the first applicant’s story had been incoherent and in part clearly inconsistent in that: i) on 9 April, 13 May and 16 September 2008 he had given divergent explanations about when and how many times he had met Anna Politkovskaja; the first time he did not mention her at all, the second time he said he had met her as from 2000 and several times, and most recently he said he had met her only once in 2002; ii) the first applicant had not been able to show or point to any of the pieces of documentary work that he had allegedly produced over twelve years during the period from 1995 to 2007, nor had he substantiated having worked as a journalist anywhere. It also noted, as to the first applicant’s suspicion that he was wanted due to the journalistic information furnished by him and found in Anna Politkovskaja’s archives, that the latter had died on 6 October 2006 and that the applicants had had no problems for a whole year thereafter; iii) the first applicant had provided divergent information about when he had been told that his wife and child were alive, in that originally he gave the date of 15 November 2007 and later changed this to October 2007; iv) apparently he had been able to stay at the camp until he was reunited with his family in December 2007, despite having been advised to commit suicide in October 2007 by H. Finally, the Migration Board did not find that the first applicant’s injuries were sufficient to substantiate his motive for asylum. The Migration Board concluded that the applicants had not substantiated their request for asylum, which was consequently refused. In a separate decision concerning the second applicant, the Migration Board noted her statement that she had been ill-treated by her kidnappers because she was not a “pure” Chechen. The Board found this statement to be remarkable if the kidnappers were indeed representatives of the FSB. The Board also noted that she had not been able to identify her kidnappers and considered that her statements about how she had been able to leave the building where she had been detained did not appear credible. In view of this, and the fact that the second applicant had not claimed to be personally threatened by the FSB or anyone else before or after this incident, the Board did not find that she had made probable that she was in need of protection. Accordingly, she could not be regarded as a refugee or as an alien otherwise in need of protection within the meaning of the Aliens Act. On appeal to the Migration Court ( Migrationsdomstolen ), the applicants were heard on 17 June 2009 in the presence of an interpreter and their legal counsel. The first applicant had stated that he had heard about Anna Politkovskaja in 2000 and that they had met in 2002 in Chechnya, where he had contacted her. He had not been in touch with her prior to that, and his subsequent contacts with her were through a contact person who gave him tapes to use in his work. He had sent all his material to this person in secret. The family were living in hiding when his wife and daughter were kidnapped. He had known that he was wanted at this time because people who had seen flyers in Grozny had told him so. No one in the mountain village had informed against him. The second applicant stated that she had received protection from H after she had escaped from her kidnappers. The applicants submitted a medical certificate of 13 November 2008 concerning the first applicant stating, inter alia, that he showed signs of post-traumatic stress disorder. By judgment of 15 July 2009, the majority of the Migration Court, (two members including the judicial judge) upheld the decision of the Migration Board. It agreed with the conclusion that the general situation in the <COUNTRY> was no ground for asylum as such and that an individual assessment should be made. It also found that the first applicant’s injuries had probably been caused by ill-treatment resembling torture. However, even though the evidence supported his statements, and taking into account that victims of torture cannot be expected to provide completely coherent and consistent statements, the Migration Court did not consider that the first applicant had made probable why he had been subjected to abuse and by whom. In assessing the first applicant’s credibility, the Migration Court noted that he had changed his statements several times on central points. Regarding his alleged contacts with Anna Politkovskaja, the Migration Court noted, in addition to the discrepancies pointed out by the Migration Board, that in the request for appeal, it was stated that the first applicant had been in telephone contact with Anna Politkovskaja on several occasions, starting in 2000. During the oral hearing, on the other hand, he had stated that he had only met her once in 2002 and had had no contact with her before or after that, except through a contact person. Furthermore, the Migration Court noted that it was unclear how he had established contact with Anna Politkovskaja in the first place. According to his submission of 13 May 2008, he had met her when he worked for Amnesty International. However, during the oral hearing before the Migration Court he had stated that he had sought contact with her through contact persons who worked in the same field as he As to the first applicant’s alleged journalistic work, the Migration Court noted that the description of his activities had been remarkably vague, and that although he claimed that he had collected material for several years he had not been able to provide any concrete examples of what he had done. Nor had he been able to provide any form of evidence of his work. Thus the Migration Court found reason to question the credibility of the applicants’ statements. Two members of the Migration Court dissented and found that the divergences in the applicants’ explanation concerned insignificant issues and that the applicants could not substantiate their story more than they already had done. Leave to appeal to the Migration Appeal Court ( Migrationsöverdomstolen ) was refused on 16 October 2009. B. Subsequent events and proceedings before the Court On 16 November 2009 the applicants lodged a complaint with the European Court of Human Rights and requested the application of an interim measure pursuant to Rule 39 of the Rules of Court. On 20 November 2009, the Court applied such an interim measure and requested the Swedish Government to stay the applicants’ expulsion to the <COUNTRY> until further notice. On 15 December 2009 the application was communicated to the Government and at the same time, the applicants were requested to furnish information about whether, before joining the rebel group in 1995, the first applicant had had any journalistic or photographic training and whether he had ever worked officially as a journalist or photographer. In the affirmative, he was requested to submit documentation in this respect or point to work he had produced. Moreover, he was requested to submit documentation or evidence of work, such as articles, tapes, photographs and so on that he allegedly produced during the period from 1995 to 2007 or, if this was impossible, to explain why, and as an absolute minimum, to provide a detailed description of the documentary material which he allegedly produced. In addition, he was requested to furnish detailed information about which documentary material produced by him was used by whom, be it persons, journalists, institutions, NGOs and so on. In reply to the first question, the applicants stated that the first applicant had commenced as an apprentice in 1985 at a local newspaper and there learned about the work of a photographic journalist. After two years he had started to work part time as assistant to the photographic journalist at the paper until 1992 when the printing house was closed. Subsequently, besides having other jobs, he had prepared himself for entrance exams at the university’s Faculty of Journalism, but had never entered due to economic sanctions in 1993 and the war in 1994. The material from his photographing and reporting of the execution of villagers were sent to television broadcasting companies. It was probably more accurate to say that the first applicant had worked in journalism rather than that he was a journalist. As to the Court’s request for documentation or evidence of the first applicant’s work, the Court received a compilation of work allegedly produced by the first applicant during the period from 1995 to 2007. He contended that he was not in possession of any articles where his name was mentioned. He did not develop on the link between his work and the compilation of incidents. In addition, the first applicant submitted one example of an article, translated from Russian, entitled “March 1996, ‘human shield’ in Samashki” which was allegedly based on his work. It could be found on a named internet site. The Government noted in that respect that the compilation merely contained a description in brief and general terms of different incidents in Chechnya, which were already available through open sources, including the internet, and that there was no explanation as to how these incidents were related to the first applicant’s work, if at all. In any event, the Government doubted that it would have been possible for the first applicant to move around so frequently and carry out all those alleged journalistic activities in so many different places, as implied by the submitted compilation, considering that since 1994 he had not been in possession of any identity papers. Finally, the example of the article allegedly based on the first applicant’s reports did not contain a single reference to him, although the English translation on the internet, in most of its footnotes, carried a reference to the source, or to the person who had recorded a certain statement, and information about where the incident took place and when.

Russian Federation, Sweden

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