Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading punishment;Inhuman punishment) (Substantive aspect);Non-pecuniary damage - finding of violation sufficient

Egidijus Kūris;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens;Robert Spano

In DATE , criminal proceedings were initiated against the applicant in absentia for being a member of the ORG ( ORG , an illegal armed organisation . In the indictment , the public prosecutor relied on , among others , incriminating statements by certain accused persons who , in their statements to the police , had maintained that the applicant had been involved in a number of terrorist activities since DATE . A Red Notice was accordingly issued in respect of the applicant via ORG .

On an unspecified date the applicant was arrested in GPE . After being detained in ORG , allegedly for DATE , the applicant was handed over to the NORP authorities on QUANTITY DATE . The medical report issued at the beginning of the applicant ’s custody indicated no signs of ill - treatment .

On DATE the applicant was questioned at ORG , in the absence of a lawyer . According to a form explaining arrested PERSON rights , which the applicant had signed , he had been reminded of the charges against him , his right to a lawyer and his right to remain silent . The applicant refused legal assistance , and gave a detailed statement regarding his activities in the illegal organisation . He admitted that he had been a member of the ORG since DATE , maintained that he had been involved in several armed attacks and gave details about such events . He also stated that he had been acting as the GPE representative of the illegal organisation since DATE and signed his statement as such .

On DATE , the applicant was examined at the hospital ; no signs of ill - treatment were noted on his body . Subsequently , he was questioned by ORG . The applicant refused legal assistance and confirmed this in his statement given to the gendarmerie . In this connection , he admitted to being a member of the ORG and participating in several terrorist activities DATE and also being the GPE representative of the illegal organisation since DATE . He further admitted that he had been involved in some of the armed attacks with which he had been charged . These events were indicated by their location , nature and dates , which were DATE .

The applicant denied his participation in CARDINAL terrorist attacks which had happened in DATE .

Later on DATE , the applicant was taken to ORG . Before the court he expressed the wish to be represented by a lawyer , and stated that he would make further submissions once a lawyer had been appointed . The court remanded the applicant in pre - trial detention and allowed him time for the assignment of a representative until the next hearing to be held on DATE .

On DATE ORG lodged an additional indictment , charging the applicant under LAW with seeking to destroy the constitutional order and unity of ORG and to remove part of the country from the ORG ’s control .

On DATE , at the fifth court hearing , in the presence of his CARDINAL lawyers , the applicant retracted the statements he had made to the gendarmerie and the public prosecutor , alleging that he had been under psychological pressure during his interrogation . He confessed to being a member of the ORG , but only in charge of the instruction of the members , and claimed that he had never taken part in any armed attack . He further submitted that he had been injured during an armed clash in DATE and since then had been unable to use his right hand . In this connection he requested a medical report establishing that he was not able to hold a gun with his right hand . The prosecutor opposed this request by referring to the applicant ’s healthy physical appearance .

During the hearing the applicant ’s representatives contested the testimonies of other accused persons in different criminal proceedings indicating the applicant ’s involvement or responsibilities as a team leader , by alleging that such testimonies had been given only in order to benefit from legal provisions allowing reduction of sentences . The crossexamination of these witnesses was not requested at any stage of the proceedings .

Again on DATE , the applicant made written submissions to the court and stated that he had signed his statement in custody without reading it .

On DATE ORG of ORG issued a report . It found loss of function in the applicant ’s right hand and concluded that the applicant would have serious difficulty in using a firearm with one hand . However , it was further reported that if his right hand were supported by other parts of his body he would be able to use a firearm .

On DATE , at the ninth hearing , the applicant objected to the medical report , requesting a new report from ORG . The trial court refused this request , holding that a new medical report would not have any effect on the merits of the case and therefore was not necessary . In this connection , the court held that the illegal acts admitted by the applicant , which had been committed prior to DATE , thus before his hand was injured , would suffice for charges to be brought against the applicant under LAW . It accordingly held that an additional expert report was not required .

At a hearing held on DATE , the applicant repeated his request for an additional medical report , and stated that during his interrogation by the gendarmes and the prosecutor he had felt fearful and anxious and had given his statements under pressure as a result of the conditions in which he had been detained in GPE . He repeated that the testimonies against him by persons accused of terrorism in different proceedings had been made only for collaborating and benefiting from lenient criminal provisions and could be dismissed once the medical report concerning his incapacity was established . The applicant ’s lawyers also based their arguments on the establishment of a new report .

In the meantime , ORG were abolished by PERSON no . CARDINAL of DATE . Accordingly , the case was transferred to ORG .

On DATE the ORG convicted the applicant as charged . In a reasoned judgment , the court found it established that the applicant had been involved in CARDINAL armed attacks committed prior to DATE , among the CARDINAL incidents of which he was accused . It enumerated the acts to which the applicant had confessed while being questioned by the gendarmes and subsequently by the prosecutor , such as setting fire to CARDINAL primary schools , the robbery of several village guards and clashes with security forces . These acts also corresponded chronologically with each other and with the numerous official documents related to these events . The court further held that these acts would suffice to convict the applicant under LAW and underlined that only after several hearings had he contested his initial statements , while choosing to accept his involvement in armed attacks in which terrorists had been killed and denying his implication in those in which members of the security forces had been killed . The court pointed out that the applicant ’s argument could not be considered credible in view of the chronology of the events . The court further stated that throughout the criminal proceedings the applicant had consistently and proudly stated that he was a member of the illegal organisation to the point of making propaganda for the organisation , and he had shown no remorse which would indicate the likelihood that he would not repeat such crimes . Finally , it indicated that the applicant even refused the possibility of using PERSON no . DATE for rehabilitation ( certain paragraphs of LAW cited law foresee sentences varying DATE of imprisonment in replacement of an “ aggravated life sentence ” , according to the authenticity of information provided about the structure of a terrorist organisation or its activities ) and accordingly sentenced him to “ aggravated life imprisonment ” .

On DATE ORG upheld the conviction .


RYMSKO-KATOLYTSKA GROMADA SVYATOGO KLYMENTIYA V MISTI SEVASTOPOLI v. UKRAINE

Angelika Nußberger;Erik Møse;Ganna Yudkivska;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev

NORP The applicant association , GPE - Katolytska ORG v ORG громада ORG місті ORG ) , is part of the ORG Eparchy of ORG and belongs to PERSON ( NORP ) . It was registered as a religious organisation on CARDINAL DATE . It is currently composed of CARDINAL parishioners of various nationalities , residents of LOC and the surrounding area , and was headed by a prior of the parish Mr PERSON and vicar PERSON . The applicant association operates a DATE school . It was represented by PERSON , a lawyer practising in PERSON .

ORG ( “ the Government ” ) were represented , most recently by their Acting Agent , PERSON , of ORG .

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

NORP The NORP community in PERSON was founded in DATE and consisted of CARDINAL members . After receiving permission from the authorities and approval from the NORP Emperor on CARDINAL DATE , the community built a NORP church ( костьол ) , which was named after PERSON ( ORG ) . The construction of this church was financed by the NORP community in PERSON , was authorised in DATE and completed in DATE . The church was owned and managed by the community until DATE , after the arrest of the prior of the community by ORG ( PERSON ) on DATE . A formal decision on “ liquidation of the NORP church ” or dissolution of the NORP religious community had been taken by the ORG of ORG and subsequently by ORG in DATE as the religious community had insufficient membership .

In DATE ORG decided to transfer the church building to the LOC electricity company GPE for use as an electricity substation ( трансформаторна підстанція ) .

The LOC were partially damaged in the Second World War and then rebuilt in DATE using the foundations and walls of the old church , which had largely remained undamaged , at the expense of ORG . In accordance with a redevelopment project in DATE they were to be used as a cinema for CARDINAL persons , with a screen measuring QUANTITY . However , the existing architectural constructions had to be retained to the maximum possible extent . According to the architectural plans , the cathedral premises had to be rebuilt in such a way as not to reflect their religious origin and also in order to provide office premises for ORG . The rebuilding also led to the destruction of the bell - tower , the internal reorganisation of the LOC and the addition of an entrance hall for the cinema . After reconstruction , as from DATE , the premises were used as a cinema , which was eventually transformed into the “ PERSON ” cinema for children . The lower part of the cathedral ’s altar was transformed into a public toilet . The premises were also used to house a currency exchange bureau . The applicant association conducts religious ceremonies during the religious holidays near the entrance to the church , as it does not have permission to use it . It also conducts religious ceremonies at a rented apartment close to the LOC in question .

On DATE the First Deputy Chairman of ORG provided ORG with a list of religious LOC which had previously been nationalised and could be transferred to religious communities for permanent use . The church was included on the list of such LOC , provided that funds be made available for the construction of a children ’s cinema .

On DATE the applicant association requested ORG to transfer to it title to the premises of the former ORG . On DATE the ORG referred the applicant association ’s request to ORG ( hereinafter DATE “ ORG ) for a decision .

On DATE ORG of ORG , acting on the basis of a resolution of DATE of ORG authorising the transfer of religious LOC to religious communities , included the former NORP church building in the list of LOC that were to be transferred to the applicant association , the only NORP religious community in PERSON . The transfer was to take place on condition that a new children ’s cinema was built by certain ORG authorities .

On DATE ORG , by decision no . CARDINAL , came to the conclusion that the transfer of the LOC for use by the applicant association was “ not advisable ” . The applicant association sought to institute restitution proceedings before various judicial and administrative authorities . These proceedings are described below ( see paragraphs CARDINAL below ) .

On DATE ORG issued order no . CARDINAL requiring the city authorities to include the cinema in the register of ORG communal property . Following that , on DATE , ORG rejected the applicant association ’s request for transfer of the premises for its use , based on the provisions of LAW of the Freedom of Conscience and LAW of DATE ( see paragraph CARDINAL below ) .

On DATE the applicant association instituted proceedings against ORG before ORG seeking to quash ORG decision no . CARDINAL of DATE . It also sought to obtain title to the LOC , referring to LAW .

On DATE ORG rejected the applicant association ’s claim , holding that it was not competent to hear a dispute between CARDINAL legal entities as to title over property . On DATE the applicant association appealed against that judgment to ORG .

On DATE ORG quashed the judgment of CARDINAL DATE and terminated the proceedings . In particular , it held that disputes between legal entities ( in this case the applicant association and ORG ) , except in certain specified circumstances , were subject to examination by the ORG arbitration courts . ORG held that the applicant association was a religious community and had become a legal entity as from the moment of its registration on DATE . The claims had been lodged against ORG and ORG , which were also legal entities . The court ruled that the applicant association had to institute proceedings before the commercial ( former arbitration ) courts as the courts of general jurisdiction were , according to the court , not competent to deal with the matter .

NORP In DATE the applicant association instituted proceedings in ORG seeking the invalidation of the decision of ORG of DATE rejecting its request for transfer of the LOC ( see paragraph CARDINAL above ) .

On DATE ORG refused to examine the applicant association ’s request as it fell outside its jurisdiction . The court stated that the dispute related not to the decision of DATE , but to a controversy over the right to own particular premises between CARDINAL legal entities , and had therefore to be examined by the commercial ( former arbitration ) courts .

On DATE ORG quashed that ruling and remitted the case to the same court for fresh examination . In particular , it ruled that the issue under examination did not just concern a dispute between CARDINAL legal entities as to the ownership of LOC . The court stated that the applicant association ’s claims concerned restitution of a religious building and thus had to be examined on their merits , in accordance with the provisions of LAW .

On DATE ORG rejected the applicant association ’s request to transfer the title to LOC to it and allow it their use . Without referring to any specific legal provision , it considered that the LOC were not owned or administered by ORG , but were “ communal property ” administered by ORG according to LAW . The court also rejected the applicant association ’s arguments that the original NORP cathedral building had been constructed by the NORP religious community of LOC and confiscated by the ORG authorities in DATE . It ruled that these claims concerned title to the LOC , which had become “ communal property ” and the transfer of the LOC into “ communal property ” was not challenged by the applicant . It established , having reviewed the evidence before it , that the cathedral had been damaged during the Second World War , rebuilt afterwards in DATE , and had been used as a cinema ever since . The court referred to Articles CARDINAL ( adversarial nature of proceedings ) , CARDINAL ( burden of proof ) , DATE ( evaluation of evidence ) and CARDINAL ( decisions with regard to administrative offences ) of LAW , and in general terms to LAW ( “ the LAW ” ) , without referring to specific provisions of that law .

The applicant association appealed in cassation . It challenged inter alia the first instance court ’s failure to apply the law that was applicable to the proceedings in the present case ( LAW ) and its erroneous application of legal provisions which were of no relevance to the legal relations at issue . In particular , the applicant association stated that :

- the courts had not examined its complaints as to the lawfulness of the refusal of ORG to transfer the religious premises at issue into its ownership and use ;

- the first instance court had established that the premises at issue were “ communal property ” , administered by ORG , even though the proceedings concerned property owned by the ORG ;

- the property at issue had been unlawfully confiscated from a NORP religious community in LOC and the ORG had undertaken to return this property back ;

- the “ communal status of property ” and the association ’s failure to challenge transfer of property into “ communal administration ” were irrelevant to the determination of whether nationalised religious property should be returned or not .

On DATE ORG examined the applicant ’s appeal in cassation and upheld the ruling of DATE , finding no grounds for quashing it . In particular , it held that the LOC had become communal property on DATE and thus ORG was the competent body to transfer title to property owned by it . Therefore , it was only within the competence of ORG to decide and order return of such LOC . It further stated that the first - instance court had lawfully refused to examine complaints about the right to claim property restitution as such complaints were to be examined in a different procedure . The court referred in its reasoning to ORG and ORG CARDINAL and CARDINAL of the Code of Civil Procedure .

In DATE the applicant association instituted new proceedings before ORG , seeking a declaration that order no . CARDINAL issued on DATE was null and void . On DATE the court , referring to the judgment of CARDINAL DATE as being res judicata , ruled that the applicant association ’s complaints were unsubstantiated .

On DATE the First Deputy President of ORG upheld the judgment of DATE in supervisory - review proceedings . In particular , it held that the applicant community had not raised any claims concerning the return of property to it before the first - instance court , and that the claims as to the unlawfulness of order no . CARDINAL were unsubstantiated .

On DATE the division responsible for review of decisions , rulings and resolutions of ORG examined the applicant association ’s request for supervisory review of the aforementioned arbitration - court decisions and ruled that they were lawful and substantiated . It found that the LOC at issue were communal property , had been damaged during Second World War and rebuilt in DATE . The court also cited the findings made in the judgment of ORG of DATE as to the origin of the LOC at issue .

From DATE the applicant association made repeated requests , both separately and jointly with religious groups of other denominations , for the transfer of the premises for use for religious purposes . In particular , they claimed that other larger religious denominations had received premises whereas their requests had been unsuccessful . These requests were heard by ORG , at the request of ORG , on DATE and DATE . However , according to a letter from the Chairman of ORG of DATE , a proposal by ORG to permit the use of the LOC by the NORP religious community of PERSON was not supported by the majority of the members of ORG and so was not adopted .

On DATE the then Prime Minister of GPE , PERSON , instructed the Chairman of ORG to organise , in cooperation with ORG , the transfer of the LOC to the applicant association .

On DATE the Chairman of ORG informed the applicant association that the cinema was part of a communal enterprise known as GPE “ Kinosvit ” ( Кінооб’єднання “ GPE ” ) . He also stated that a transfer of the cinema for use by the religious community would be contrary to LAW , so that there was no further need for ORG to review the issue anew .

The most recent refusals to examine the issue of transfer of LOC to the religious community date from DATE and DATE . It appears from information in the case file , provided by the applicant association that the LOC , which were cultural and historical monuments , were not being used as a cinema due to the poor state of the building and the need for significant renovation works .

The relevant domestic law and practice with regard to the activities of religious associations is summarised in PERSON - Mykhaylivska Parafiya v. GPE ( no . GPE , DATE ) , and ORG v. GPE ( no . CARDINAL , § § DATE , DATE ) . Other relevant domestic regulations and administrative and judicial practice are briefly summarised below .

Under section CARDINAL § CARDINAL of the Freedom of Conscience and LAW of DATE , the ORG undertook to transfer title to or possession of religious LOC and property belonging to the ORG to religious organisations . The transfer of property had to be done free of charges , on the basis of decisions of the GPE and ORG , regional administrations or ORG .

The relevant extracts from the text of LAW ( in force at the material time ) read as follows :

“ Religious organisations shall be entitled to use buildings and property placed at their disposal by the ORG , by organisations and by private individuals , on a contractual basis .

Religious buildings and property which constitute ORG - owned property shall be transferred by the organisations administering them to the religious associations for their unpaid use or shall be returned into their ownership without payment , in accordance with decisions by the regional , GPE and ORG , and in GPE , by ORG ...

Religious buildings and other property of historical , artistic and other cultural value shall be transferred into the use of the religious organisations and shall be used by them in compliance with the rules on protection and use of historical and cultural monuments ...

Requests made by religious organisations for transfer of religious buildings and property into ownership or unpaid use shall be considered within DATE , and information in writing sent to the petitioners .

Decisions by the ORG bodies with regard to ownership or use of religious buildings and property may be appealed against to a court in compliance with the procedure envisaged by LAW ... ”

The relevant extracts from ORG of GPE “ On the Procedure for Entry into Force of the Freedom of Conscience and Religious Organisations Act ” , as amended on DATE , read as follows :

ORG of GPE , ORG and the regional , GPE and ORG shall ensure in accordance with the LAW the return to the ownership of or free use of religious buildings and property by religious groups , taking into account the following :

- the rights of the religious organisations which owned these buildings and property when they were nationalised ;

- the rights of the religious organisations which use these buildings and property in accordance with the procedure established by law ;

- investments made by the religious organisations in the property , rebuilding of the religious LOC and length of use of such LOC ;

- existence in the same residential area of other religious LOC and their use by other religious organisations ... ;

- other important matters in their entirety .

The decision of the relevant State body shall be reasoned ... ”

Under LAW of DATE “ On Measures Relating to the Return of Religious Property to Religious Organisations ” it was established that all religious premises and property owned by the ORG and used “ contrary to their mission ” should be returned to the religious associations within DATE . This period was further extended until DATE by ORG of DATE . On DATE the President issued another decree “ On Urgent Measures Relating to the Final Overcoming of ORG GPE with regard to Religion and on Restoration of LAW ” , in which he recommended that regional bodies of local selfgovernment finalise the transfer of church LOC that were being used “ contrary to their designation ” , and other buildings , to religious organisations .

Resolution No . CARDINAL of ORG of DATE ( in force until DATE ) “ On the List of Historical Architectural Monuments which shall not be subject to ORG by Religious Organisations ” , provided that the following cathedrals in LOC were not to be returned to religious organisations : FAC ( DATE ) , PERSON and ORG ( DATE ) .

By Resolution No . CARDINAL “ On ORG which are ORG to Religious Organisations ” , adopted on DATE by ORG , it was decided that such religious LOC could be given to religious organisations for permanent use if the relevant educational institutions , archives or cultural institutions were moved to other LOC .

On DATE ORG rejected a request for interpretation of section CARDINAL § CARDINAL of the Act , stating , inter alia , that complaints concerning the use of religious buildings and property were to be examined by courts of general jurisdiction . It also referred to the recommendations of the Presidium of the Higher Commercial ( former ORG in that regard .

On DATE ORG rejected a request for interpretation of the provisions of section CARDINAL § CARDINAL of the LAW , lodged by the NORP - Catholic community “ GPE ” , finding , inter alia , that there was no proof of inconsistent application of its provisions by the domestic courts .

According to paragraph CARDINAL of the Practice Recommendation , the religious LOC and property that belonged to ORG property were to be transferred into unpaid use or ownership of the religious organisations on the basis of the decisions taken by the regional , GPE and LOC city state administrations and ORG . The above - mentioned authorities were under an obligation to return such property , not used for religious purposes , within DATE . The return of property included transfer into unpaid use or ownership . The property could be returned to religious associations , which proved that they had owned the property before nationalisation . Thus , the Recommendation , with reference to Presidential Decree of DATE , mentioned that the transfer of ownership of the religious premises was CARDINAL of the measures envisaged by law . Moreover , religious LOC or property could be transferred to another religious association if there was no “ legal successor ” ( правонаступник ) religious association found in the vicinity where the religious LOC or property were situated .

Paragraph CARDINAL of the Practice Recommendation provided that property was to be returned to the same religious confessions which had owned the religious buildings before nationalization ( orthodox church to be returned to orthodox community , NORP church to RomanCatholic community , etc . ) . Information or written evidence as to the previous ownership of religious premises was to be sought from the parties , ORG archives , or ORG ( paragraph CARDINAL of the Recommendation ) . Claims for the return of religious LOC to their original ownership could be lodged under the provisions of LAW with the commercial courts , and the lodging of complaints with the courts of general jurisdiction did not impede the examination of such claims ( paragraphs CARDINAL - CARDINAL.CARDINAL of the Recommendation ) .

Paragraph CARDINAL of ORG stated that all property belonging to religious organisations before the entry into force of the LAW was deemed to belong to the ORG and the ORG was to be regarded as the proper owner of such property . In particular , this ensued from the provisions of LAW . Therefore , in accordance with LAW , ORG bodies , which are mentioned in LAW of the law , could perform any lawful acts with respect to such property and the courts were to reject any claims against such lawful acts , unless these acts contravened the law .

NORP The applicant association submitted CARDINAL decisions of ORG dated DATE and DATE , by which title to former religious premises that were in communal ownership and used for cultural purposes had been transferred to NORP communities in LOC . By the decision of DATE ORG transferred title to the religious premises of the former GPE Peter and Paul Cathedral , which had been used by FAC , to ORG of the Moscow Patriarchate . According to the decision of DATE , ORG was to be moved to different premises .

DATE LAW ( repealed by LAW DATE ) , hereafter DATE LAW , established CARDINAL forms of property ownership in GPE , which included private , collective and ORG property , with all CARDINAL forms receiving equal protection from the ORG . LAW provides that the ORG property includes the ORG property itself and the property of administrative - territorial units ( municipal or communal property ) . According to LAW , the subjects of the ORG property administration were the Verkhovna Rada of GPE ( in relation to national property ) and regional , district , town and village councils ( in relation to communal property ) . Under LAW the Verkhovna Rada of GPE and the local council were responsible for administration of ORG property . LAW provides that communal property consisted of inter alia property necessary for ensuring economic and social development of a particular territory .

Paragraphs CARDINAL of Article CARDINAL of ORG , in line with LAW , provide that the bodies of local self - government that represent local territorial communities , including the regional councils , shall be responsible for administration of “ communal property ” .

According to paragraphs CARDINAL of ORG . CARDINAL of CARDINAL DATE “ On ORG of GPE into ORG - owned ( NORP ) Property and Property of the Administrative - territorial entities ” , the “ cultural property ” had to be transferred into communal property and administered by the local territorial community of LOC from the ORG property .

According to Article CARDINAL of the Code , the courts had jurisdiction to hear complaints concerning decisions of ORG bodies with regard to the registration of religious associations and the ownership and use of religious property . Under LAW such complaints were to be lodged with the regional courts , the GPE and ORG and , exceptionally , with ORG if the complaint concerned ORG . A complaint could be lodged within DATE from the date of the decision . According to LAW , the complaint had to be examined within DATE , if necessary with the participation of the complainant and the respondent State body . Under LAW of the LAW , the court could order the ORG body to rectify its previous decisions so as to ensure that they complied with the law . The courts were to reject the claims if the State bodies’ decisions were lawful .

In accordance with LAW , in force at the material time , that is to say , before DATE , legal entities and private entrepreneurs engaged in business activities were entitled to apply to the arbitration courts , in accordance with the relevant jurisdictional rules , for the protection of their legal rights and interests .

Article CARDINAL of the Code established that ORG had jurisdiction over complaints against ORG . In accordance with the rules on exclusive jurisdiction , under LAW cases concerning the enjoyment of possessions were to be examined in the arbitration court with jurisdiction for the area in which the property was situated . Under LAW , the court which had been wrongly seised was required to transfer the case file to another court that had jurisdiction in the case .


CASE OF SVINARENKO AND SLYADNEV v. RUSSIA

Preliminary objection dismissed (Article 34 - Victim);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Anatoly Kovler;Dean Spielmann;Dmitry Dedov;Elisabeth Steiner;George Nicolaou;Guido Raimondi;Helen Keller;Helena Jäderblom;Ineta Ziemele;Isabelle Berro-Lefèvre;Ján Šikuta;Johannes Silvis;Josep Casadevall;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Luis López Guerra;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Vincent A. De Gaetano

The applicants were born in DATE and DATE respectively . The first applicant , Mr Svinarenko , is currently serving a sentence of imprisonment in the FAC region . The second applicant , Mr PERSON , lives in the settlement of PERSON in the LOC district of the GPE region .

In DATE ORG of ORG at ORG brought several sets of criminal proceedings against a Mr PERSON .

On DATE the first applicant was questioned as one of the suspects in those proceedings . On DATE he was arrested . In a decision of CARDINAL DATE ordering his detention on remand , ORG noted that the crimes he was charged with had been committed during a DATE probation period under a judgment of LOC of DATE convicting him of theft and imposing on him a conditional sentence of CARDINAL years’ imprisonment . It also noted that he had negative references from his place of residence and that he had breached his undertaking to appear before the investigating authority . According to the final charges against the first applicant , he was accused of robbery with violence against Mr FAC and PERSON T.S. in DATE as a member of a gang led by Mr PERSON , and of the illegal acquisition , storage , transportation and carrying of ammunition .

On DATE the second applicant , who was serving a sentence of imprisonment after his conviction by LOC on DATE for negligent infliction of death under LAW § CARDINAL of LAW of GPE ( “ the ORG ” ) , was questioned as one of the suspects in the proceedings brought against Mr PERSON . On DATE he was charged with the following crimes :

( i ) establishing an armed gang under PERSON PERSON ’s leadership and participating in the gang ’s attacks on citizens from DATE to DATE – under Article CARDINAL § CARDINAL of the ORG ;

( ii ) the robbery in DATE of Mr GPE , the director of a private goldrefining company , with the use of weapons and violence endangering life and health and a threat to use such violence , by an organised group , with the aim of misappropriating another ’s property of substantial value – under LAW CARDINAL of the ORG ;

( iii ) illegal storage and transportation of precious metals ( industrial gold allegedly misappropriated from Mr V.B. ) of substantial value by an organised group in DATE under LAW of the ORG ;

( iv ) extortion ( against Mr V.B. ) in DATE with the aim of obtaining a right to property under the threat of the use of violence , by an organised group DATE under LAW of the ORG ;

( v ) the robbery of Mr Ya . B. in DATE with the use of weapons and violence endangering life and health and the threat to use such violence , by a group of persons according to a premeditated plan , by means of illegal entry into a dwelling with the aim of misappropriating another ’s property of substantial value – under LAW of the ORG ; and

( vi ) NORP illegal acquisition , storage , transfer , transportation and carrying of firearms by an organised group in DATE under Article CARDINAL § CARDINAL of the ORG .

On DATE the FAC found the second applicant to be eligible , in view of his orderly behaviour and positive references , for early conditional release DATE and DATE of the term of DATE and DATE to which he had been sentenced under ORG judgment of CARDINAL DATE .

On DATE the ORG ordered the second applicant ’s remand in custody in the criminal proceedings at issue in the present case . It noted , inter alia , that he was accused of grave crimes which had been committed during a DATE probation period under ORG judgment of DATE convicting him of hooliganism and wilful infliction of grievous bodily harm and sentencing him conditionally to CARDINAL years’ imprisonment .

On DATE the investigation was completed and the defence received access to the case file .

On DATE the ORG found that the second applicant had been deliberately delaying the examination of the case file and set a time - limit for the examination at DATE .

On DATE the case was sent for trial to ORG , which held from DATE to DATE a preliminary hearing to decide on numerous requests by the applicants and their CARDINAL co - defendants concerning the admissibility of the evidence and other procedural issues , as well as to prepare the jury trial requested by the defendants . During this period the hearing was postponed for DATE at the co - defendants’ request .

As a result of the preliminary hearing , on DATE ORG ordered that the case be examined at an open hearing by a jury on DATE . On DATE CARDINAL candidate jurors appeared before the court instead of the CARDINAL invited and the court , therefore , ordered that another CARDINAL candidate jurors be summoned .

On DATE a jury was empanelled and sworn in .

ORG held about CARDINAL court sessions , during which it decided various procedural issues , such as the replacement of some jurors , the exclusion or examination of certain evidence and the ordering of expert opinions . It examined the evidence , including the testimony of the victims , witnesses and experts , and heard the defendants . The hearing was adjourned for DATE as CARDINAL of the defence lawyers could not attend .

On DATE the prosecution amended CARDINAL of the robbery charges against the second applicant ( concerning Mr Ya . B. ) to the lesser charge of “ arbitrary unlawful acts ” ( самоуправство ) with the use of violence , under LAW § CARDINAL of the ORG .

On DATE the jury found the applicants not guilty . They were released in the courtroom . On DATE the ORG delivered a judgment in which they were acquitted and their right to rehabilitation was acknowledged .

The co - defendants and the prosecution appealed against the trial court ’s judgment . On DATE ORG of GPE examined the case on appeal and quashed the judgment on the grounds , inter alia , that some of the jurors had concealed information about their family PERSON criminal records although they had been obliged to disclose such information to the parties and to the court at the time of their selection ; and that the presiding judge had failed to sum up all the evidence in his directions to the jury , in particular failing to sum up the GPE and ORG statements . ORG remitted the case to ORG for fresh examination .

On DATE ORG received the case file . It adjourned its hearing twice , on DATE and DATE , as the second applicant ’s lawyer had failed to appear .

In a decision of CARDINAL DATE ORG imposed on the defendants an undertaking not to leave their place of residence without its authorisation , to appear before it when summoned , and not to obstruct the proceedings .

ORG decision of the same date to remit the case to ORG for the rectification of errors in the indictment was appealed against by the defence and quashed as erroneous by ORG on DATE .

The hearing before ORG was adjourned on DATE as a result of the first applicant ’s and a co - defendant ’s failure to appear , for unknown reasons . It was adjourned again on DATE owing to a co - defendant ’s hospitalisation and the impossibility of examining the case in respect of the others in separate proceedings .

The hearing resumed on DATE . On DATE , however , CARDINAL candidate jurors appeared before the court instead of the CARDINAL invited and the court , therefore , ordered that another CARDINAL candidate jurors be summoned .

On DATE ORG ordered that the applicants and the other CARDINAL defendants be detained on remand . It noted the applicants’ previous convictions , the serious charges against them , and the fact that during the preliminary investigation and the current trial some of the victims and witnesses had expressed fears of unlawful behaviour by the defendants . In its decision it did not give any details concerning the fears referred to , or the names of the defendants concerned . The ORG appeals against the detention order were dismissed by ORG of GPE in its decision of DATE . In upholding ORG detention order , ORG noted that one of the victims , Mr Ya . B. , had asked for the case to be examined without his participation as he had been afraid to give evidence in open court . This fear constituted , according to ORG , a sufficient ground to consider that the defendants did not satisfy the condition of not obstructing the proceedings in order for them to remain free under the previously imposed undertaking not to leave their place of residence . The applicants’ detention was subsequently extended for similar reasons .

On DATE the jury was empanelled and sworn in and the court held hearings on CARDINAL , DATE and DATE . On the last - mentioned date CARDINAL of the co - defendants was granted leave to engage a new lawyer . On DATE his new lawyer failed to appear and the hearing was adjourned until DATE , DATE being non - working days . ORG continued the examination of the case in DATE . It ruled on numerous procedural requests by the defence , in particular requests seeking the replacement of the presiding judge and the prosecutor .

As the witnesses and victims who lived in PERSON had failed to appear at the hearings several times , on DATE the court ordered them to be brought before it under escort . The hearing was adjourned on DATE until DATE and on DATE until DATE , pending the execution of that order .

The examination of the case continued in DATE , DATE , DATE and DATE . During this time the hearing was adjourned on a number of occasions for DATE in total at the request of jurors who could not participate , and for DATE at the request of CARDINAL of the defence lawyers , who was ill . On DATE the presiding judge declared the examination of the evidence closed . In CARDINAL sessions in DATE ORG heard the parties’ oral argument . It announced a break from CARDINAL July until DATE in view of the fact that several jurors were leaving for DATE in central GPE .

The hearing resumed on DATE . Having consulted the parties , the court decided that they would repeat their oral argument . They did so on DATE , DATE and DATE and DATE . The preparation of questions to be put to the jury then followed . The jury gave its verdict on DATE . The first applicant was found not guilty and was released in the courtroom .

On DATE , after an examination of the legal issues during the sessions held in DATE , ORG delivered its judgment . The first applicant was acquitted and his right to rehabilitation was acknowledged . The second applicant was convicted of extortion ( against Mr PERSON ) , and “ arbitrary unlawful acts ” with the use of violence ( in respect of Mr Ya . PERSON ) , and was sentenced to CARDINAL years’ imprisonment ( which took into account his DATE conviction , in respect of which the conditional sentence was revoked ) . He was acquitted on the remaining charges . His detention on remand was to continue until the judgment took effect .

On DATE ORG examined the appeals against the judgment lodged by a co - defendant , one of the victims and the prosecution . It found that the defendants and their lawyers had breached the rules on criminal trials by committing an abuse of their rights , namely , by discussing in the ORG presence , despite the presiding judge ’s warnings , issues which fell outside the scope of the ORG competence . They had also made remarks which did not concern the issues to be decided by the jury and which had been aimed at discrediting the evidence against them , thus creating a negative impression of the victims and the presiding judge , and a positive one of themselves . This was held by ORG to have unlawfully influenced the jury ’s verdict . It was also noted that the jury ’s verdict had not been entirely clear as some of the answers to the questions put to them had been contradictory . ORG quashed the judgment and remitted the case to ORG for a fresh examination . It also ordered that the second applicant remain in custody .

In DATE the first applicant was detained on remand in connection with an unrelated set of criminal proceedings brought against him on suspicion of an extortion allegedly committed in DATE .

On DATE ORG received the case file and opened the proceedings . On DATE CARDINAL candidate jurors appeared before ORG instead of the CARDINAL invited and the court , therefore , ordered that CARDINAL candidate jurors be summoned .

On DATE the selection of the jurors began . However , after a number of candidate jurors refused to sit in the case , the number available was still insufficient and the court ordered that another CARDINAL candidate jurors be summoned . The same situation occurred on DATE .

The number of candidate jurors who appeared before ORG was again insufficient on DATE and DATE , necessitating the summoning of CARDINAL persons respectively .

A jury , composed of CARDINAL jurors and CARDINAL substitute jurors , was empanelled on DATE from CARDINAL candidate jurors who had appeared before the court , and the trial commenced . The court held CARDINAL or CARDINAL sessions DATE from DATE , CARDINAL sessions in DATE , CARDINAL in DATE ( after a break for the ORG holidays from DATE to CARDINAL DATE ) , TIME in DATE , CARDINAL in DATE , CARDINAL in DATE and DATE . Some of the sessions were held without the jury as they concerned various procedural issues , including the admissibility of evidence and requests for the examination of the evidence before the jury . The court examined the vast body of evidence , including the testimony of CARDINAL victims and witnesses , and numerous expert reports .

For DATE the trial was delayed because a co - defendant was ill . Some delay was caused by difficulties in ensuring the appearance of some of the victims and witnesses , who resided in remote settlements in GPE and PERSON , or who had moved to the central and other parts of the country .

On DATE ORG started hearing the parties’ oral argument .

On DATE the jury returned a “ not guilty ” verdict in respect of the first applicant . It found the second applicant guilty of “ arbitrary unlawful acts ” and not guilty on the remaining charges .

On DATE ORG ordered the second applicant ’s release on an undertaking not to leave his place of residence and to behave in a law - abiding manner .

On DATE it delivered its judgment , acquitting the first applicant and finding , in respect of the second applicant , that on DATE he , Mr PERSON and PERSON PERSON ( against whom the criminal proceedings were terminated owing to his death ) had requested Mr Ya . B. to repay a debt in the amount of MONEY ( RUB ) ; following Mr Ya . B. ’s refusal Mr PERSON and PERSON PERSON had beaten him up ; the second applicant had beaten up Mr PERSON , who had witnessed Mr Ya . PERSON ’s beating ; they had then taken Mr Ya . B. to his home and Mr PERSON had taken money from him in the amount of RUB CARDINAL .

ORG noted that there had been mixed references in the materials of the case about the second applicant , who had been characterised negatively by the local authority and by a district police officer at the place of his residence , and positively by the administration of a detention facility , in which he had been detained on remand , and by the administration of a prison in which he had served his sentence after a previous conviction .

ORG convicted the second applicant , under LAW § CARDINAL of the ORG , of “ arbitrary unlawful acts ” with the use of violence , sentenced him to DATE and QUANTITY months’ imprisonment , revoked the conditional sentence under his DATE conviction as the new crime had been committed during the probation period , and , after adding the revoked conditional sentence , sentenced him to a total of DATE and CARDINAL months’ imprisonment ; it discharged him from serving the sentence in the part relating to the conviction under LAW § CARDINAL as liability for the relevant offence had become time - barred , and found that he had served his sentence in the remaining part in view of his detention on remand from DATE to DATE and from DATE to DATE , which amounted to DATE , DATE in total . It acquitted him on the remaining charges .

As of DATE the first applicant was still detained in connection with unrelated criminal proceedings against him ( see paragraph CARDINAL above ) .

On DATE ORG dismissed an appeal by a codefendant and the prosecution and upheld the judgment .

During the applicants’ detention on remand they were taken to ORG from their detention facility by police guards . During the hearings they sat on a bench enclosed on CARDINAL sides by metal rods QUANTITY in diameter . The enclosure was QUANTITY long , QUANTITY wide and QUANTITY high , with a steel mesh ceiling and a door , also made of metal rods . The distance between the metal rods was QUANTITY .

Armed police guards remained beside the caged dock . There were always CARDINAL police guards per detainee – QUANTITY police guards in total during the first and second trials and QUANTITY police guards for the applicants and one of their co - defendants during the third trial .

After the first applicant ’s acquittal had become final he brought proceedings against the ORG for damage suffered as a result of the criminal proceedings against him .

On DATE the ORG awarded him RUB CARDINAL in respect of pecuniary damage , representing an unemployment allowance that had not been paid as a result of his detention on remand . On DATE ORG of GPE upheld ORG judgment .

On DATE the ORG awarded the first applicant RUB CARDINAL in respect of non - pecuniary damage incurred by him as a result of his criminal prosecution , the imposition on him of an undertaking not to leave his place of residence and his detention on remand from DATE to the moment of his release , following the first “ not guilty ” jury verdict of DATE and from DATE until DATE . The applicant appealed against the judgment arguing , inter alia , that the amount awarded to him was not just or reasonable . On DATE ORG dismissed the applicant ’s appeal and upheld ORG judgment .


Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Linos-Alexandre Sicilianos;Pauliine Koskelo;Ksenija Turković

NORP The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in GPE . He was represented before the Court by Ms K. Lea , a lawyer practising in GPE .

ORG ( “ the Government ” ) were represented by their Agent , PERSON , of ORG .

At the relevant time , the applicant was a schoolteacher with DATE of teaching experience . In DATE he was diagnosed with depression and granted sick leave from work . He returned to work in DATE .

On DATE , following provocative behaviour from several pupils in his class , he assaulted a pupil with a dumbbell . The pupil sustained a serious head injury requiring hospital treatment . It was also alleged that during the incident the applicant had kicked a female pupil and thrown the dumbbell at another pupil . The applicant was arrested and remanded into custody .

He was subsequently charged with attempted murder and grievous bodily harm with intent under LAW of the Offences against LAW . He pleaded guilty to grievous bodily harm ( without specific intent ) under LAW CARDINAL of LAW . On DATE he was found not guilty of attempted murder and of grievous bodily harm with intent following a jury trial in ORG . At the sentencing hearing on DATE , the judge sentenced the applicant to CARDINAL GPE community service , taking into account the time spent in pre - trial detention .

The judge referred to significant mitigation in the case , including the applicant ’s depressive illness , difficult personal and family circumstances at the relevant time and his previously unblemished record of teaching over DATE . The judge declined to make a disqualification order against the applicant precluding him from working with children , on the basis that he was satisfied that the applicant was unlikely to commit any further offence against a child , largely because as a teacher he was subject to a professional code of practice and disciplinary arrangements and he had recognised that his career teaching children was over .

On DATE , following disciplinary proceedings , the applicant was dismissed from his post for gross misconduct .

On DATE the local authority referred the matter to ORG ( “ ISA ” ) , a body established by LAW ( “ the LAW ” ) , to consider whether to bar the applicant from working with children or vulnerable adults . Meanwhile , the applicant commenced voluntary work at a small local charity , run by the ORG , providing support to homeless persons .

By a letter dated CARDINAL DATE , the ORG informed the applicant that it had received the referral and was minded to bar him from working with children and vulnerable adults in light of his conviction . He was therefore invited to make written representations as to why he should not be barred . He submitted written representations through his solicitors on DATE and disputed that he represented a threat to children when operating in a supervised environment , or a threat to vulnerable adults in any circumstances .

By letter dated DATE the ORG notified the applicant of its decision to include the applicant ’s name in both the Children ’s Barred List and Adults’ Barred List . It referred to his conviction and considered that he had engaged in conduct which had endangered a child and which constituted “ relevant conduct ” , within the meaning of LAW , justifying inclusion in the barred lists .

As regards the risk to vulnerable adults , the letter stated :

“ We also remain of the view that you may harm a vulnerable adult and it is appropriate to include you on ORG . This is because vulnerable adults with learning difficulties or mental health issues could exhibit similarly challenging behavioural traits as children in certain situations . There are insufficient reassurances that should you engage in ‘ regulated activity’ in a vulnerable adult setting , you would not pose a similar significant risk to those in your care . ”

The accompanying “ Barring Decision Process ” document , prepared by an ISA case worker , reviewed the applicant ’s conduct and the risk he posed . The document explained that the applicant was considered to pose a significant risk to children if placed in a similar situation in the future . As regards vulnerable adults , the document stated :

“ It would not be unreasonable to surmise that vulnerable adults , particularly those with learning difficulties or mental health issues , could exhibit similar challenging behavioural traits in certain situations . Because of this there are real concerns that [ the applicant ] might react in a similar manner as he did at [ school ] , if he was placed in a difficult position with vulnerable adults . While there is no evidence to indicate that he has worked in a paid or voluntary capacity with vulnerable adults in the past , he might in the future and his risk is such at the present time that he would pose a risk of harm if he was allowed to do so . [ The applicant ’s ] harmful behaviour clearly constitutes risk of harm and a minded to bar decision is proportionate on ORG . ”

As to whether it was appropriate to bar the applicant from working with children or vulnerable adults , the document concluded that it was . In particular , as regards the bar on working with vulnerable adults , the document stated :

“ There is no evidence to indicate that [ the applicant ] has worked in paid or voluntary capacity with vulnerable adults in the past . However , consideration needs to be given to whether it would be appropriate for him to work in regulated activity within a vulnerable adults setting in the future . It is important to consider if [ the applicant ] was to obtain employment with vulnerable adults with learning difficulties or mental health issues , they could exhibit similar challenging behavioural traits as children in certain situations . There is a potential , significant risk that if he was placed in a similarly difficult situation in a vulnerable setting he could react in a similar manner with potential fatal consequences . Therefore it is deemed appropriate to include [ the applicant ’s ] name on ORG . ”

The applicant subsequently ceased his voluntary work with the homeless charity , having received legal advice that the work was potentially contrary to the ORG barring decision .

The applicant appealed the decision to include him in LOC to ORG . He did not appeal the decision to include him in LOC . He argued that the ORG had wrongly found that he had kicked a female pupil and that the decision to bar him from working with vulnerable adults was disproportionate and thereby in breach of LAW . He obtained a report from a consultant psychiatrist , PERSON , to assist the tribunal to assess his level of risk . The report confirmed that the applicant ’s diagnosis was one of a recurrent depressive disorder and that as a result of depression and considerable work stress he had assaulted his pupil in DATE . It noted that , since that time and with medical assistance , his situation had significantly improved .

Following receipt of the psychiatric report , the parties requested that the proceedings be stayed in order to allow the ORG to review its decision . A stay was granted .

By letter dated CARDINAL DATE the ORG confirmed its decision to include the applicant ’s name on ORG but retracted its finding of fact that the applicant had kicked a female pupil in light of further inquiries into that incident . The ORG review letter noted that Dr PERSON ’s report showed that , since the incident , the applicant had taken significant steps to address his long - term issues with depression through psychiatric support , psychotherapy and support from his general practitioner . However , while acknowledging the significant progress that he had made , the letter emphasised that a relatively short period of time had elapsed since this marked improvement . Although PERSON report was compelling , it was also apparent from the report that he believed that “ some basic safeguards would seem prudent ” to mitigate against future risk . The ORG concluded that Dr PERSON ’s report served to strengthen its view that there continued to be an unacceptable risk , noting that the report proposed a risk assessment for any post for which the applicant wished to apply and recorded the applicant ’s recognition of the fact that he should not work alone . The ORG noted that it had no scope to impose a “ partial bar ” or any type of restriction on the applicant which would allow the recommendations made by PERSON to be incorporated into any future employment and , accordingly , it had to balance the level and nature of the risk identified against the impact on the applicant of continued inclusion on ORG .

On DATE the ORG quashed the ORG decision to include the applicant ’s name in ORG . It commented that the ORG caseworker had not specifically addressed proportionality in the context of the decision - making process . The tribunal considered the correct approach to its review of the ORG decision was that set out in its previous judgment in ORG , at that time pending before ORG ( see further “ Relevant domestic law and practice ” , below ) , namely that it should examine the evidence and allocate weight to it , and decide whether the balance had been struck in the right place . It noted that the ORG had not had the opportunity of hearing the applicant give evidence whereas the tribunal , with CARDINAL experienced , specialist members , had heard his evidence and tested it in some detail . It considered that the ORG had “ fundamentally misconstrued ” PERSON report since the tribunal failed to see how that report could have strengthened ORG ’s view that there continued to be an unacceptable risk . It was of the view that PERSON suggestion that there be a basic risk assessment before the applicant was engaged in work with vulnerable adults was a very sensible one and one which , the tribunal understood , would in any event be carried out by ORG in respect of the homelessness project in which the applicant was interested .

The tribunal therefore directed the ORG to remove the applicant ’s name from ORG . It also directed that :

“ ... there is to be no publication of the any matter likely to lead members of the public directly or indirectly to identify any person , including the Appellant , who has been involved in the circumstances giving rise to this Appeal ” .

The ORG appealed to ORG on CARDINAL grounds , namely : ( i ) that ORG had erred in law in its approach to proportionality by failing to give appropriate weight to the ORG decision ; ( ii ) that the ORG decision was not , as a matter of law , disproportionate ; ( iii ) that ORG had failed to take into account the nature of the risk posed by the applicant ; and ( iv ) that ORG had erred in placing reliance on safeguards in place at the applicant ’s proposed place of work and had failed to take into account the risk that would be posed if the applicant worked with vulnerable adults in other environments .

ORG subsequently handed down judgment in ORG , overturning the judgment of ORG in that case and clarifying the correct approach to be taken when reviewing an ORG decision ( see “ Relevant domestic law and practice ” , below ) .

The functions of the ORG were transferred to ORG in DATE and the appeal continued in the latter ’s name .

In his skeleton argument of CARDINAL DATE , the applicant invited ORG to uphold the decision of ORG that the decision to include him in the Adults’ Barred List was disproportionate and thus unlawful . He argued , in particular , that proportionality had always to involve the striking of a fair balance between the rights of the individual and the interests of the community , inherent in the whole of the LAW ; that where the individual had not been interviewed by the primary decision - maker , the appellate authority was much better placed to investigate the facts and test the evidence ; that it was for the court before which the issue was raised to decide whether Convention rights had been breached and that this court was not merely to concern itself with whether the primary decision - maker took the relevant rights into account ; and that the court had to treat with appropriate respect the views of those who had the primary responsibility to make the judgments in question , especially where they had addressed their minds to the relevant issues .

On DATE ORG quashed the decision of ORG and reinstated the ORG decision . Lord Justice PERSON , delivering the lead judgment ( with which the other CARDINAL members of ORG agreed ) , considered that the process through which the ORG had worked in coming to its judgment that the applicant should be included on ORG was a “ thorough and careful ” one . That view had then been reviewed in the light of PERSON evidence , and the confirmed conclusion had “ appropriately recognised the force of Dr M. ’s evidence in relation to the improvement in [ the applicant ’s ] condition , but went on , after due consideration of the whole picture , to conclude that it did not provide a reason for reversing the decision , and if anything strengthened it ” . The judge continued :

“ DATE . I have found in the documentation relating to the ORG ’s decision - making the clearest evidence of careful thought and reasoning . I therefore find ORG view that the ORG had not given any detailed thought to its decision and that it had failed to carry out a balancing exercise to be very surprising . It seems to me to be clearly wrong .

Very considerable reliance was placed by ORG on Dr M. ’s report and the ORG is criticised for having " misconstrued the evidence of PERSON . Insofar as ORG placed additional reliance on the fact that it had heard oral evidence from PERSON , I accept the submission of [ the applicant ’s lawyer ] that in reality this does no more than confirm the evidence already before the tribunal from PERSON to the effect that PERSON had improved and was currently well motivated to avoid a repetition of his conduct . However , it seems to me that ORG reliance on PERSON evidence , together with its dismissal of the ORG ’s approach to it , was misconceived . ”

He also found that ORG was wrong to treat the ORG ’s view of the safeguards mentioned by PERSON as strengthening its case . He noted that the safeguards mentioned related to a man whose condition had improved , but only in the context of a person suffering from a recurrent depressive disorder and whose improvement was over a relatively short time span . These considerations , which weighed with the ORG , appeared to have been ignored by ORG , which had also concluded that the safeguards “ will be in place ” , thus rendering an absolute bar disproportionate . However , the judge noted , there was no guarantee whatsoever that the safeguards which PERSON thought prudent and which would exist under the aegis of the work which the applicant envisaged would necessarily apply in other employments or other situations . The judge considered that ORG assertion that those safeguards would be in place could not safely be made , nor could the safeguards be implemented as conditions attaching to any future work with vulnerable adults .

The judge saw “ considerable force ” in the ORG ’s argument that ORG had not taken the approach to proportionality mandated by ORG in ORG , which required it to accord weight to the judgment of the ORG . The judge therefore concluded :

“ CARDINAL . The effect of the ORG ’s decision was wrongly to characterise the ORG ’s decision as an error of law . There was , in my judgment , no such error made by the ORG whose valid decision was wrongly quashed . ”

In these circumstances , ORG considered that it was not appropriate to remit the case to ORG and instead ordered that the decision of the ORG be restored .

ORG also observed :

“ CARDINAL . There have been amendments to LAW pursuant to ORG since the ORG decision . However , none of those amendments impacts upon this appeal or the question of the correctness of ORG decision .

A recent change which will have an impact for the Respondent is that , whereas previously ORG ’s decision would not be subject to review for DATE , the position has now been altered so that a review may take place at any time if new information emerges , or there has been a change of circumstances , or it becomes apparent that ORG has made an error . See Section CARDINALA of LAW as inserted by LAW DATE ” .

The applicant sought permission to appeal from ORG . He argued , inter alia , that the DATE scheme was unlawful in failing to provide for a full - merits review on appeal . If there was no requirement for a fullmerits review on appeal , then at the very least ORG had to be permitted to carry out a robust proportionality exercise . In his submission , if the narrow remit afforded by ORG to ORG in his case were left undisturbed , this would mean that the barring scheme was incompatible with Articles CARDINAL and CARDINAL of the Convention . He further argued that the scheme was unlawful in that it did not allow ORG to implement a partial bar on working with vulnerable adults ( the “ all - or - nothing ” ground ) . The absolute bar that it was obliged to impose was disproportionate and in breach of LAW . The Disclosure and Barring Service therefore had to be empowered to impose a partial bar so that in appropriate cases individuals could only be excluded from positions where they would pose a significant risk to the relevant vulnerable group . If no such power could be read into LAW then a declaration of incompatibility under section CARDINAL of LAW DATE ( see “ Relevant domestic law and practice ” , below ) should be made .

On DATE ORG refused permission to appeal . It stated that the application did not raise a point of law of general public importance and that the “ all - or - nothing ” ground did raise a point of law of general public importance but that it was too late to raise it at this stage .

Section CARDINAL of the CARDINAL Act and its Schedule CARDINAL created the ORG , to consist of a chairman and members appointed by the Secretary of ORG who appeared to him to have knowledge or experience of any aspect of child protection or the protection of vulnerable adults . Appointment was for a term not exceeding five years and a member could be removed by the Secretary of ORG on various specified grounds , including that he was unable or unfit to carry out his functions .

Section CARDINAL of the LAW requires the ORG to keep CARDINAL lists of individuals deemed unsuitable to work with children and vulnerable adults respectively . Section CARDINAL provides that a person whose name has been included on one of the barred lists is precluded from taking part in “ regulated activity ” with the relevant group . LAW CARDINAL define “ regulated activity ” . The definition of “ regulated activity ” was amended by ORG to focus on work which involves close and unsupervised contact with vulnerable groups , thus reducing its scope . Section CARDINAL makes it an offence for a person included in the barred lists to engage in “ regulated activity ” .

The criteria for inclusion in the barred lists are set out in Schedule CARDINAL . Under paragraph CARDINAL of Schedule CARDINAL , ORG ( formerly the ORG ) is obliged to include a person in the Children ’s Barred List if satisfied , following consideration of representations by the affected person , that he has engaged in “ relevant conduct ” and that it is appropriate to include him in the list . “ Relevant conduct ” is defined in paragraph CARDINAL as including conduct that endangered a child .

Paragraph CARDINAL of Schedule CARDINAL provides that ORG ( formerly the ORG ) is obliged to include a person in ORG if satisfied , following consideration of representations , that he has engaged in conduct which fell within paragraph CARDINAL(CARDINAL ) and that it is appropriate to include him in the list . Paragraph CARDINAL(CARDINAL ) provides as follows :

“ A person falls within this sub - paragraph if he may—

( a ) harm a vulnerable adult ,

( b ) cause a vulnerable adult to be harmed ,

( c ) put a vulnerable adult at risk of harm ,

( d ) attempt to harm a vulnerable adult , or

( e ) NORP incite another to harm a vulnerable adult . ”

Section CARDINAL(CARDINAL ) of LAW provides for a right of appeal to ORG against a decision to include a person in the barred lists . For the purposes of determining appeals , ORG sits with a constitution of one legally - qualified judge and CARDINAL specialist , non - legal members .

Section CARDINAL(CARDINAL ) of the LAW stipulates that an appeal can only be made on the grounds that the ORG has made a mistake on a point of law or in a finding of fact on which the decision was based . In section CARDINAL ) , the decision whether it was appropriate for a person to be included in a barred list is stated to be neither a question of law nor of fact .

Paragraphs DATE and CARDINALA of Schedule QUANTITY allowed a person included in a barred list to apply to ORG ( formerly the ISA ) for a review of his inclusion . At the time the applicant was placed on ORG , a review could only proceed after the end of the “ minimum barring period ” , which in the applicant ’s case was a DATE period , and with the permission of ORG .

However , following amendments introduced by ORG , a review may now take place at any time and a person ’s name is to be removed from the list if ORG is satisfied that , in the light of information which it did not have at the time of inclusion in the list , any change of circumstances or any error by ORG , it is not appropriate for the person to be included in the list .

In R ( ORG ) v. Secretary of ORG for ORG [ DATE ] EWHC CARDINAL ( Admin ) , the claimants argued that the scheme established by LAW did not permit an oral hearing and thus did not comply with LAW ; and did not give individuals placed on a barred list the opportunity for a full merits review on appeal , contrary to LAW Mr Justice PERSON , sitting in ORG , said :

“ CARDINAL . In light of the fact that ORG can put right any errors of law and any material errors of fact and , further , can do so at an oral hearing if that is necessary for the fair and just disposition of the appeal I have reached the conclusion that the absence of a right to an oral hearing before the [ ISA ] and the absence of a full merits based appeal to ORG does not infringe LAW . To repeat , an oral hearing before the [ ISA ] is permissible under the statutory scheme and there is no reason to suppose that in an appropriate case the [ ISA ] would not hold such a hearing ... Indeed , a failure or refusal to conduct an oral hearing in circumstances which would allow of an argument that the failure or refusal was unreasonable or irrational would itself raise the prospect of an appeal to ORG on a point of law . Further , any other error of law and relevant errors of fact made by the [ ISA ] can be put right on an appeal which , itself , may be conducted by way of oral hearing in an appropriate case .

NORP I am more troubled by the absence of a full merits based appeal but I am persuaded that its absence does not render the scheme as a whole in breach of LAW for the following reasons . First , the [ ISA ] is a body which is independent of the executive agencies which will have referred individuals for inclusion / possible inclusion upon the barred lists . It is an expert body consisting of a board of individuals appointed under regulations governing public appointments and a team of highly - trained case workers . Paragraph CARDINAL(CARDINAL)(b ) of Schedule DATE CARDINAL Act specifies that the chairman and members ‘ must appear to the Secretary of ORG to have knowledge or experience of any aspect of child protection or the protection of vulnerable PERSON . The [ ISA ] is in the best position to make a reasoned judgment as to when it is appropriate to include an individual ’s name on a barred list or remove an individual from the barred list . In the absence of an error of law or fact it is difficult to envisage a situation in which an appeal against the judgment of the [ ORG ] would have any realistic prospect of success . Second , if the [ ISA ] reached a decision that it was appropriate for an individual to be included in a barred list or appropriate to refuse to remove an individual from a barred list yet that conclusion was unreasonable or irrational that would constitute an error of law . I do not read section CARDINAL(CARDINAL ) of the LAW as precluding a challenge to the ultimate decision on grounds that a decision to include an individual upon a barred list or to refuse to remove him from a list was unreasonable or irrational or ... disproportionate . In my judgment all that section CARDINAL(CARDINAL ) precludes is an appeal against the ultimate decision when that decision is not flawed by any error of law or fact . ”

ORG considered the R ( ORG ) judgment in ORG v. ISA [ DATE ] ORG FAC ( ORG ) . It referred to counsel ’s submission that the weight the ORG attached to a particular feature was not a matter which the tribunal could redetermine but rather went to “ appropriateness ” , expressly excluded by section CARDINAL(CARDINAL ) of LAW , and said :

“ CARDINAL . We are not able to agree with this submission . We are mindful that we must read section CARDINAL ) in a way that is compatible with LAW DATE , and the approach adopted by PERSON , in our view , is the correct way to proceed . If a decision taken by ORG to place a person on a list , or not to remove him from the list , is disproportionate to the facts as presented to the [ ISA ] , then there is an error of law , and the ORG on appeal is entitled , indeed obliged , to direct ORG to remove the person from the list , or remit the matter to ORG for a new decision .

The only way in which a ORG can form a view as to whether a decision of the [ ISA ] is disproportionate is to engage in ‘ a weighing of evidence GPE , not so as to ascertain whether the decision is or is not appropriate ( that is a matter solely for the [ ISA ] ) but so as to ascertain whether it is disproportionate and therefore out with the lawful decision making exercise of the [ ISA ] . It is therefore the totality of the evidence that the ORG must concern itself with . In considering the totality of the evidence , it is in our view necessary to look carefully at individual aspects to that evidence and to form a view whether the conclusion that the [ ISA ] has placed on the totality of the evidence is disproportionate .

... On an appeal , the ORG is entitled to examine the evidence and to allocate weight to it and to decide whether the balance has been struck in the right place . ”

ORG judgment in ORG was subsequently overturned on appeal . Delivering the lead judgment for ORG on DATE ( [ DATE ] EWCA Civ CARDINAL ) , Lord Justice PERSON explained :

“ CARDINAL . ... The [ ISA ] assessment was a fair representation of the many indications and counter indications and specific mention was made of the numerous references and the fact that ORG had voluntarily sought counselling .

This brings me to CARDINAL particular points . First , there is the fact that , unlike the ORG , the [ ORG ] saw and heard ORG giving evidence . However , it can not be suggested that it was unlawful for the ORG not to do so . It had had at its disposal a wealth of material , not least the material upon which the criminal conviction had been founded and which had informed the sentencing process . The objective facts were not in dispute . Secondly , Mr PERSON , on behalf of ORG , emphasises the fact that the [ ORG ] is not a non - specialist court reviewing the decision of a specialist decision - maker , which would necessitate the according of considerable weight to the original decision . It is itself a specialist tribunal . Whilst there is truth in this submission , it has its limitations for the following reasons : ( CARDINAL ) unlike its predecessor , ORG , it is statutorily disabled from revisiting the appropriateness of an individual being included in a Barred List , simpliciter ; and ( CARDINAL ) whereas the [ ORG ] judge is flanked by non - legal members who themselves come from a variety of relevant professions , they are or may be less specialised than the ORG decision - makers who , by paragraph CARDINAL ) of schedule CARDINAL to LAW ‘ must appear to the Secretary of ORG to have knowledge or experience of any aspect of child protection or the protection of vulnerable PERSON . I intend no disrespect to the judicial or non - legal members of the [ ORG ] in the present or any other case when I say that , by necessary statutory qualification , the ORG is particularly equipped to make safeguarding decisions of this kind , whereas the [ ORG ] is designed not to consider the appropriateness of listing but more to adjudicate upon mistakes on points of law or findings of fact ( section CARDINAL(CARDINAL ) ) .

For all these reasons I consider that the complaint that the [ ORG ] did not accord ‘ appropriate ORG to the decision of the ORG is justified . ”


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 13+6-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 6 - Right to a fair trial;Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 2 of Protocol No. 4 - Freedom of movement-{general} (Article 2 para. 1 of Protocol No. 4 - Freedom of movement)

Iulia Motoc;Marko Bošnjak;Vincent A. De Gaetano

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

The applicants complained of the excessive length of criminal proceedings and of the lack of any effective remedy in domestic law . Some applicants also raised other complaints under the provisions of the Convention .