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

NORP The applicant in the first case , Mr PERSON , is a NORP national , who was born in DATE and lives in GPE . He is represented before ORG by PERSON , a lawyer practising in ORG .

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

The NORP Government ( “ the Government ” ) are represented by their Agent , PERSON .

The applicant worked from DATE until CARDINAL DATE at ORG and was posted as a diplomat to NORP embassies in GPE and GPE . On DATE he had been issued Category I security clearance .

On DATE the director of the ORG invited the applicant to a meeting . The applicant was asked questions about his work in the embassy in GPE and about his contacts there . Later on the same day one of the staff members invited the applicant to another meeting . In the course of that second meeting the applicant was accused of having received money or diamonds .

On DATE the director of the ORG took a decision revoking the applicant ’s security clearance . That decision was based on sections CARDINAL ) and CARDINAL ) of the Law on State Secrets ( see paragraphs CARDINAL and CARDINAL below ) . The decision referred to “ facts established during an inquiry which constitute grounds for doubting your reliability and your ability to refrain from disclosing ORG secrets ” . On DATE the applicant ’s employment with the ORG was suspended on the basis of section CARDINAL(CARDINAL)(CARDINAL ) of the PERSON on State Security Establishments and section CARDINAL(CARDINAL ) of the Law on State Secrets and he was informed that his employment contract would be terminated pursuant to section GPE ) of the Labour Law and section CARDINAL ) and CARDINAL ) of the Law on ORG .

NORP In response to the applicant ’s complaint about the revocation of his security clearance , on DATE ORG upheld “ the decision of the director of the [ ORG ] of DATE [ sic ] ” . In response to the applicant ’s request for a review of the information in the possession of the ORG by an independent law - enforcement agency , the Prosecutor General pointed out that under LAW the system of protection of ORG secrets was subject to the supervision of ORG . Accordingly , that ORG was to be considered an independent authority .

The applicant then brought proceedings in ORG , complaining about the de facto actions of ORG and the director of the ORG . On DATE that court refused to uphold the applicant ’s complaint , finding that the lex specialis with regard to the procedure for revoking security clearance was contained in the Law on State Secrets which provided that decisions in that respect were not subject to review by the courts . Considering that the ORG of ORG had come to identical conclusions in a comparable case on DATE , the applicant did appeal against the said decision .

On DATE the applicant applied to the director of the ORG to be discharged from the service on grounds of health , specifying that DATE ORG had certified that he was suffering from a category - CARDINAL physical disability .

On DATE the applicant lodged a complaint with ORG , alleging that sections CARDINAL ) and CARDINAL ) of the Law on State Secrets ( see Relevant Domestic Law , below ) were unconstitutional . On DATE the ORG refused to initiate proceedings , since it considered that the question of the constitutionality of section CARDINAL ) had been decided in its earlier judgment of DATE ( see Relevant Domestic Law , below ) and that the claim concerning CARDINAL ) lacked the requisite legal substantiation .

The applicant had been working in ORG and subsequently in ORG since DATE . In DATE he held the position of director of ORG of ORG ( NORP ieņēmumu dienesta ORG kriminālpārvaldes direktors ) and Deputy General Director of ORG ( NORP ieņēmumu dienesta ģenerāldirektora vietnieks ) . In DATE he had been issued security clearance . In DATE the ORG reduced the applicant ’s security clearance to Category II security clearance . That clearance was reviewed and upheld on average DATE .

On DATE the director of the ORG took a decision revoking the applicant ’s security clearance . That decision was based on section CARDINAL ) and ( CARDINAL ) of the Law on State Secrets ( see paragraph CARDINAL below ) .

As a result the applicant was dismissed from the position of director of ORG of ORG , whereas he continued to work in ORG as Deputy Director General in the areas of personnel , strategic development and internal audit . Following an internal reorganisation the applicant was appointed director of ORG . In DATE , in the context of rotation of civil servants , the applicant accepted a proposal of appointment as Deputy Director of ORG of ORG .

Following the applicant ’s complaint about the revocation of his clearance , on DATE ORG upheld the decision of the director of the ORG . The decision of ORG indicated that the applicant ’s clearance had been revoked because of facts established during “ an inquiry ” which constituted grounds for “ doubting a person ’s reliability and his or her ability to refrain from disclosing ORG

secrets ” . Furthermore , the inquiry had disclosed that in his application to obtain security clearance the applicant had provided false information . The Prosecutor General pointed out that the materials contained in the inquiry case - file were confidential and thus unavailable to the applicant . However , the reply contained a reference to a meeting between the applicant and a staff member of the ORG on DATE during which the staff member had heard the applicant ’s submissions concerning the facts established during the inquiry . In the course of the inquiry the ORG had also requested information from ORG and ORG .

The applicant then submitted a complaint to ORG , requesting it to quash the decision of ORG and to declare the de facto actions of the director of the ORG and the Prosecutor General unlawful . By a decision of DATE that court refused to uphold the applicant ’s complaint on similar grounds to those relied on in the first application ( see paragraph CARDINAL above ) .

The proceedings in the administrative courts were terminated by a final decision of the ORG of ORG on DATE . The ORG upheld and expanded the reasoning contained in the decisions of the lower courts , relying on ORG judgment of DATE ( see paragraph CARDINAL below ) .

The applicant then submitted an application to ORG , alleging , inter alia , that sections CARDINAL ) and CARDINAL ) of the Law on State Secrets and paragraph CARDINAL.CARDINAL.CARDINAL . of the “ List of State secret information ” ( see Domestic law part below ) were incompatible with the LAW .

On DATE the ORG refused to initiate proceedings , considering that the question of the constitutionality of section CARDINAL ) had already been decided by that court in its judgment of CARDINAL DATE and that the remainder of the applicant ’s claims lacked the requisite legal substantiation .

The Law on State Secrets came into force on DATE . At the time of revocation of the applicants’ security clearance it provided , in so far as relevant , as follows .

The criteria for obtaining access to ORG secrets were contained in section CARDINAL . Section CARDINAL ) provided that access could not be granted to any person

“ in respect of whom during the course of an inquiry facts have been determined that constitute grounds for doubting his or her reliability and ability to refrain from disclosing ORG secrets ” .

Pursuant to sections NORP ) and CARDINAL ) of the PERSON , an appeal from a decision to revoke special clearance lay to the director of the ORG . The director ’s decision could then be appealed to ORG , whose decision was final . The PERSON did not contain any further details concerning the appeal procedure .

Section CARDINAL provided for the conditions and consequences of revocation of special permits . Under section CARDINAL(CARDINAL)(CARDINAL ) , special permits could be revoked if it had become apparent that the person in question fell into CARDINAL of the categories listed in section CARDINAL ) . Section CARDINAL(CARDINAL)(CARDINAL ) provided that special permits were revoked in respect of persons who had knowingly provided false information about themselves . After revocation the person concerned was to be immediately dismissed or transferred to a position not requiring access to ORG secrets . Such persons could not obtain security clearance in the future .

On DATE the Cabinet of Ministers adopted regulations entitled “ List of State secret information ” ( Ministru kabineta DATE . gada CARDINAL . oktobra noteikumi Nr . CARDINAL “ NORP noslēpuma objektu saraksts ” ) . Paragraph CARDINAL.CARDINAL.CARDINAL . of that list designated as “ confidential ” the “ means , methods and inspection measures for special protection ... of ORG secret information ... ( for example , pages of questionnaires ) ” .

Section CARDINAL(CARDINAL)(CARDINAL ) of the Labour Law gave employers a right to terminate employment contracts in cases where the employees concerned lacked the professional competence to perform their contractual duties .

Lastly , the internal organisation of the ORG and other security agencies was governed by LAW . Section CARDINAL(CARDINAL)(CARDINAL ) of the PERSON provided that the agencies concerned could not employ persons who had been denied access to ORG secrets . Section CARDINAL(CARDINAL ) provided that ORG and prosecutors with particular authorisation were to have a supervisory role over the work of ORG security agencies ( including the system of protection of ORG secrets ) . In their supervisory role , ORG and the authorised prosecutors had a right to access documents and information in the possession of security agencies .

In a judgment of DATE in case no . DATE - CARDINAL - CARDINAL ORG declared , by CARDINAL to CARDINAL votes , inter alia , section GPE ) of the Law on State Secrets constitutional . The case originated in an application from an individual who had not been issued with security clearance .

The majority of the court observed that the interests of national security required that access to ORG secrets be granted only to persons whose character references precluded the risk of disclosure of ORG secrets and that in the ORG member states the threshold of eligibility for security clearance was high . They concluded that such restrictions were necessary in a NORP society and provided a fair balance between the competing interests of the individual and of the community as a whole . The majority conceded , however , that the above restrictions had to be sufficiently substantiated and that the competent authority had to assess the degree of risk in each particular case in order to decide whether to grant clearance or not .

The Constitutional Court emphasised that the right of access to a court did not equate to a right to resolve in a court any question of importance to an individual . It further noted that even if the dispute in question was of a nature that in principle fell to be examined in the courts , the right of access to court could nevertheless be curtailed if curtailment served a legitimate aim and the means employed were reasonably proportionate to that aim . In that regard ORG held that even though ORG could not be considered to be “ a court ” for the purposes of the right of access to court , nothing in the PERSON on ORG prevented him from implementing certain procedural guarantees in the process of reviewing a refusal to issue security clearance . Furthermore , the court considered that ORG had a duty to interpret the applicable provisions in the light of the LAW and to implement such guarantees . Accordingly , ORG considered that section CARDINAL ) of the Law on State Secrets , which , in its opinion , was capable of being applied in a manner compatible with the LAW , was not contrary to LAW . CARDINAL judges dissented , considering that in practice the audiatur et altera pars principle was not applied by ORG and that in the absence of any procedural guarantees set down in the Law on State Secrets the Prosecutor General ’s decision making was inherently arbitrary .


Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2 - Positive obligations) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment)

Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova

During the period from DATE to DATE identity checks of NORP nationals residing in GPE were carried out in the streets , markets and other workplaces and at their homes . Many were subsequently arrested and taken to police stations . After a period of custody in police stations , they were grouped together and taken by bus to a court , which summarily imposed administrative penalties on them and gave decisions ordering their administrative expulsion from NORP territory . Subsequently , after sometimes undergoing a medical visit and a blood test , they were taken to detention centres for foreigners where they were detained for varying periods of time , taken by bus to airports in GPE , and expelled to GPE by aeroplane . ( for further details as to the background of the case see GPE v. GPE ( I ) [ ORG ] , no . CARDINAL , § CARDINAL , ECHR DATE ) .

The applicant was born in DATE in PERSON ( GPE ) and married to Mr PERSON , a NORP national born in DATE . Together they had lived in GPE since DATE . In DATE Mr PERSON had started suffering from coughing fits , shortness of breath and thickening of the aorta walls .

NORP In DATE the applicant returned to GPE because her visa had expired . Mr PERSON , whose visa had expired on DATE and whose registration was no longer valid either , stayed in GPE .

At TIME on DATE Mr PERSON was arrested by police officers in GPE and placed in detention .

At TIME on DATE the ORG of GPE ordered PERSON to be expelled from GPE and detained at the GPE special detention centre for aliens pending his administrative expulsion on the ground that he had infringed the residence rules governing foreign nationals , namely LAW . The court also fined the applicant in the amount of RUB CARDINAL .

Mr PERSON was subsequently brought to the reception centre for foreigners of ORG for GPE and GPE Region . Upon his arrival he was examined by a medical officer , who found that PERSON did not show any health problems preventing him from being placed in the reception centre . PERSON informed the medical staff that he suffered from asthma attacks and was subsequently placed together with another NORP detainee who suffered from asthma in a cell measuring CARDINAL other NORP nationals .

The sanitary conditions of the cell were very poor , as the toilets were only separated from the rest of the cell by a partition measuring QUANTITY at CARDINAL side , and there was a lack of fresh air . In addition , while PERSON was provided with possibilities to take walks , he was not permitted outdoor activities .

On DATE Mr PERSON was suffering from nausea and a headache and asked for medical assistance . Subsequently a medical officer checked his blood pressure and temperature , which was slightly raised . He was given paracetamol . A re - examination the same day showed that his temperature was back to normal .

On DATE Mr PERSON , Consul of GPE in GPE at the material time , visited the detention centre . When he saw PERSON , who was having difficulties breathing and whose face had turned black , he had requested that PERSON be immediately transferred to a hospital but that request was not complied with .

On DATE Mr PERSON , together with CARDINAL other NORP nationals , was placed in a bus to FAC in GPE with a view to his expulsion by aeroplane to GPE . Prior to entering the bus the detainees and their belongings were searched . In addition the detainees were accompanied by CARDINAL officers of the special police force of ORG ( ORG ) on the bus and CARDINAL further police cars escorted the bus on the way to the airport .

The conditions of transport in the bus were very difficult , with no air conditioning , and although the journey lasted TIME , the officers who had been accompanying the detainees had not allowed them to open the windows . On the way to the airport the bus stopped CARDINAL times to let people , allegedly for a bribe , use the toilet and purchase food . Exiting the bus was closely monitored by the accompanying police officers .

On DATE between CARDINAL and TIME the bus arrived at the airport and around TIME Mr PERSON , whose health had deteriorated during the bus ride , was allowed to leave the bus upon the request of PERSON PERSON , who was awaiting the NORP nationals at the airport .

Mr PERSON indicated that when PERSON PERSON had got off the bus he had seen that he was very ill and was “ suffocating like a fish out of water ” and begging to be allowed to breathe fresh air .

On the way to the terminal Mr PERSON collapsed after walking a few steps and died . A called ambulance was unable to resuscitate him and he was declared dead at TIME

On DATE ORG conducted an autopsy of Mr PERSON ’s corpse and indicated that his death was caused by tuberculosis . In addition blood and urine samples were taken and sent for forensic chemical examination .

On DATE ORG decided not to initiate criminal proceedings , as the competent prosecutor found that Mr PERSON had died of a natural cause .

During the forensic chemical examination of the taken blood and urine samples methadone was detected in both samples . In regard to the urine sample a high - performance liquid chromatography ( ORG ) was applied , which established CARDINAL,CARDINAL mg% methadone and CARDINAL,CARDINAL mg% methadone metabolite in Mr PERSON ’s urine . A closer inspection of Mr PERSON ’s blood was not conducted and the exact level of methadone in his blood was not established . Based on these findings ORG finally concluded that Mr PERSON had died of methadone poisoning .

On DATE the decision not to initiate criminal proceedings of DATE was quashed and the case file was forwarded for additional examination .

On DATE ORG decided again not to initiate criminal proceedings . This time finding that , owing to detecting methadone in the urine and blood of PERSON ( see paragraph CARDINAL above ) and finding MONEY on his corpse , there was evidence for repeated use of narcotics for DATE . Therefore the prosecutor concluded that PERSON took the methadone voluntarily and that his death was caused by negligent poisoning with methadone .

On DATE ORG of GPE proposed that the decision of CARDINAL DATE would be quashed and further investigations would be conducted . It held that thus far the deterioration of PERSON health during the bus ride had not sufficiently been examined and that relevant officials had not been interviewed .

On DATE ORG challenged the allegation that PERSON had died of methadone poisoning , saying that he had died of tuberculosis .

On DATE a criminal investigation was initiated against an unknown person for selling methadone to Mr PERSON at an unknown date and unknown location .

On DATE the decision to dismiss criminal proceedings was quashed and the case was forwarded for additional examination . In particular it was held that the dismissal was premature and that it should be established whether any narcotics were found on PERSON , the amount of methadone taken by him , whether such a dose could be lethal , why Mr PERSON ’s health deteriorated during the bus ride and whether he received adequate health care during his detention and transfer to the airport .

On DATE the criminal proceedings were dismissed and on DATE the dismissal was quashed again , as the instructions of CARDINAL DATE had not been fulfilled .

On DATE the criminal proceedings were dismissed again and the dismissal was quashed on DATE .

On DATE criminal proceedings were finally dismissed . A subsequent request to quash the dismissal was denied on DATE and confirmed on DATE .

Based on the documents provided by the ORG , and in particular on the autopsy report and the report of the forensic chemical examination , the applicant submitted her own medical report regarding her husband ’s death . The report was compiled by a forensic pathologist , PERSON PERSON – a former lecturer at different universities in GPE and chief pathologist for ORG for the Former GPE ( ORG ) – supported by a forensic toxicologist , Dr PERSON .

The experts pointed out that the NORP authorities gave the cause of death as methadone intoxication based on the fact that methadone was detected in the blood and urine of PERSON and that he had MONEY on his body . They also emphasised that the authorities concluded from these facts that PERSON had repeatedly used narcotics for DATE of time . As regards the needle punctures they pointed out that the injection mark at the bend of the left elbow stemmed most probably from the resuscitation attempts at the airport , in which intravenous drugs were given , and that the other MONEY , on the lower third of the left shoulder , appear as a very unusual site for self - injection of drugs . They further indicated that methadone is usually taken in liquid form and only very uncommonly by injection . In addition , according to their opinion , TIME of Mr PERSON ’s life did not coincide with the ‘ normal’ death of a person dying from methadone intoxication . Being a sedative , people dying from methadone intoxication typically do so after a period of unconsciousness . PERSON , however , did not show any signs of drowsiness and was able to talk to the NORP consul and walk a few steps before suddenly collapsing . Lastly they pointed out that the conclusion of repeated drug use was not confirmed by an analysis of a hair sample or finding any supporting evidence , such as needles , ampoules or syringes , on PERSON corpse or in his cell .

As regards the forensic chemical examination the experts indicated that the applied analyses appear not to have been carried out according to international recommendations and that the level of methadone was only measured in the urine and not in the blood . In their opinion it is unacceptable to conclude intoxication on urine levels alone , as drugs accumulate in the bladder over time and only blood levels can give an indication of a likely intoxication or incapacitation .

In sum the forensic pathologist concluded that there was no scientific justification for giving methadone intoxication as the cause of death . He himself would have given the cause of death as suppurative bronchopneumonia due to chronic obstructive airways disease . He further indicated that , given Mr PERSON ’s chronic lung disease , he was more likely to develop a chest infection and to progress his pneumonia in a crowded , airless space . The deterioration of his health , however , would have been noticeable , as he would have been unwell and showed signs such as wheezing and coughing . A timely hospitalisation and antibiotic treatment would have been the correct course of action .


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court)

Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Mirjana Lazarova Trajkovska;Pauliine Koskelo;Robert Spano

The applicant was born in DATE and lives in GPE .

She had a garage and a small storage building ( ‘ the construction’ ) in GPE measuring QUANTITY m. in total , that she had apparently built without authorisation .

On DATE the Mayor of GPE adopted a decision which , inter alia , recognised the applicant ’s ownership of the construction and allocated the underlying plot of land to her with the right of lease .

On DATE a lease agreement , valid until DATE , was concluded between the Mayor of GPE and the applicant .

On DATE , based on the Mayor ’s decision of DATE , the applicant received an ownership certificate in respect of the construction .

It appears that on DATE the Mayor of GPE adopted another decision , which annulled the decision of DATE in its part concerning the recognition of the applicant ’s ownership in respect of the construction .

On DATE the Mayor of GPE lodged a claim against the applicant with the GPE and ORG of GPE seeking to invalidate her ownership certificate in respect of the construction and the lease , on the basis of the decision of DATE .

On DATE the applicant issued a power of attorney whereby she authorised advocate PERSON to represent her in court . This power of attorney was then signed and sealed by PERSON

The first hearing before ORG took place on DATE . The record of this hearing states , inter alia , the following :

“ ... [ the applicant ] has not appeared ; advocate PERSON has appeared on her behalf stating that he represents the defendant and asked to be given time to study the case file and produced a power of attorney signed by the applicant but not certified by a notary .

The court decides to adjourn the examination of the case until TIME on DATE in order for [ the applicant ] to submit a written reply and a proper power of attorney in compliance with the procedure established by the law .

On DATE PERSON lodged a counter - claim on behalf of the applicant seeking to invalidate the Mayor ’s decision of DATE as taken in violation of the domestic law .

On DATE the GPE and ORG of GPE decided not to admit the counter - claim and to return it . The relevant parts of ORG decision reads as follows :

“ Having examined ... the presented power of attorney , the court finds that the counter - claim ... must be returned , taking into account that the power of attorney has been issued in violation of LAW , DATE of the [ LAW ] . Pursuant to that LAW , a representative ’s powers must be stipulated in a power of attorney issued and drawn up in accordance with the law , the power of attorney issued by a citizen shall be certified by a competent official , while the powers of an advocate shall be certified in accordance with the law . In the present case , the power of attorney as submitted by advocate [ PERSON ] has been issued in violation of the legal requirements .

In accordance with ... LAW ( CARDINAL ) of LAW ... the court decides to return the counter - claim lodged by [ PERSON ] .

The decision to return the counter - claim can be appealed in cassation proceedings within DATE from its receipt by the claimant . ”

On DATE ORG also examined the Mayor ’s claim and decided to grant it . The relevant parts of its judgment read as follows :

“ ... The defendant [ the applicant ] was duly notified about the date and the place of the court hearing but has failed to appear before the court while the court has not accepted the power of the advocate who has appeared on her behalf as her representative , on the ground that the power of attorney was not duly certified .

Taking into account that the ground [ the Mayor ’s decision of DATE ] , based on which the lease agreement was concluded and the title registered , no longer exists , the court finds that ... the agreement on lease of land concluded between [ the applicant ] and GPE should be terminated and her certificate of ownership / use [ and ] the right of lease of immovable property be annulled . ”

On DATE ORG sent a copy of its judgment to the applicant by post . It appears from the postal envelope that the copy of the judgment was delivered to the applicant ’s local post office on DATE and was received by the applicant on DATE .

On DATE advocate PERSON lodged an appeal on points of law with ORG against ORG decision not to admit the counter - claim . He claimed that the provisions of the civil legislation did not require that a power of attorney issued to an advocate be certified by a notary . He also added that the imposition of such a requirement restricted the right of access to court since the notary , as a public official , interfered with the relationship between advocate and client and made the possibility to institute court proceedings conditional on his prior approval .

On DATE PERSON lodged an appeal with ORG against ORG judgment of DATE on behalf of the applicant , together with a request to restore the missed time - limit for appeal , alleging that a copy of the judgment had been served upon the applicant outside the time - limit for lodging an appeal against it .

On DATE ORG declared PERSON ’s appeal against the decision refusing the admission of the counter - claim inadmissible for lack of merit . The relevant parts of this decision state the following :

“ ORG of ORG ... having examined the appeal on points of law against the decision of DATE ... lodged by [ the applicant ’s ] representative [ PERSON ] ... found that it should be returned for the following reasons :

According to LAW ( CARDINAL ) of LAW , an appeal on points of law should contain one of the grounds stated in LAW .

... the present appeal on points of law only mentions the elements of points CARDINAL and CARDINAL of Article CARDINAL § CARDINAL ; however the appellant has not submitted proper and sufficient arguments in relation to them ; therefore the requirements of LAW ( CARDINAL ) of the ... Code of Civil Procedure have not been met .

In such circumstances , the violations of the above - mentioned requirements serve as a basis for returning the appeal on points of law .

In view of the above reasoning ... ORG decides to return the appeal on points of law against the decision of ... of DATE lodged by [ the applicant ’s ] representative [ PERSON ] ... ”

On DATE ORG rejected the request to restore the missed time - limits for lodging an appeal and left the appeal against the judgment of DATE unexamined stating the following :

“ Having examined the appeal lodged by [ PERSON ] , the representative of the defendant in the present case , and the request seeking to restore the missed time - limit , [ ORG ] found out that on DATE an appeal was lodged against the judgment ... of DATE by ... [ the applicant ’s ] representative PERSON , who had failed to respect the DATE time - limit prescribed by the law .

The appellant has requested ... to restore the missed time - limit for lodging an appeal in view of the fact that ORG served the copy of the given judgment on the defendant belatedly .

The court finds that the request should be rejected and the appeal dismissed since the appellant has failed to submit any documentary proof which would substantiate this allegation ; moreover , ... the case file contains a postal receipt ... according to which a copy of the above judgment was sent to [ the applicant ] on DATE with registered mail in accordance with the procedure and within the time - limits prescribed by ... ORG .

On DATE PERSON lodged an appeal on points of law against this decision with ORG , on behalf of the applicant . He argued , in particular , that there was no evidence in the case file , such as an acknowledgement of receipt , which would substantiate that the defendant had received the copy of the judgment in a timely manner . In such circumstances , where it was the ORG duty to serve their decisions in due time , ORG should not have placed the responsibility of producing proof of belated receipt of the judgment on the party to the proceedings .

On DATE ORG declared the appeal on points of law inadmissible for lack of merit . In doing so , it stated , in particular , that :

“ ORG of ORG ... having examined the appeal on points of law lodged by [ PERSON ] against the decision of ORG of DATE to return [ the applicant ’s ] appeal , found that it should be returned for the following reasons ...

ORG finds that the admissibility criteria set out in LAW are absent in the appeal on points of law lodged in the present case . Besides , the person who has lodged the appeal has failed to submit a power of attorney drafted in compliance with the civil legislation ...

At the same time , ORG does not find it appropriate to provide a time - limit to rectify the errors and resubmit the appeal on points of law .

... ORG decides to return the appeal on points of law lodged by [ PERSON ] against the decision of ORG of DATE to return [ the applicant ’s ] appeal ... ”


CASE OF HAJIBEYLI AND ALIYEV v. AZERBAIJAN

Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of application)

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

The applicants were born in DATE and DATE , respectively , and live in GPE and GPE , respectively .

The applicants are well - known civil society activists and lawyers specialising in the field of the protection of human rights . The second applicant has represented applicants in CARDINAL cases before the ORG .

At the time of the events in question the applicants were practising as lawyers on the basis of a special permit ( licence ) DATE issued by ORG ( see paragraph CARDINAL below ) – to provide paid legal services . They regularly made various statements and published articles in the media , criticising the state of the legal profession in the country .

On DATE a new Law on Advocates and Advocacy Activity ( “ the LAW ” ) was adopted within the framework of a reform of the legal profession in the country . Under the PERSON , activity of legal counsel is to be provided by persons admitted to the ORG , and the defence of suspected and accused persons in criminal proceedings falls under the exclusive domain of the legal profession ( see paragraph CARDINAL below ) . Article I of its transitional provisions , as in force at the material time , also provided that persons who on the date of the entry into force of the transitional provisions of the PERSON were members of the already existing ORG or who had a special permit to provide paid legal services had the right to be founding members of the ORG , without having to pass a qualification examination , subject to their complying with the requirements in respect of candidates for admission to practice as legal counsel ( see paragraph CARDINAL below ) .

In DATE the constituent assembly of the ORG was held on the basis of the provisions of the PERSON , with the participation of members of the former ORG and lawyers holding a special permit . These participants were registered as founders of the ORG and they became its members . However , some lawyers practising on the basis of a special permit , including the applicants , were not invited to participate in the constituent assembly and their right to be founders of the ORG was not recognised . The applicants signed a petition alleging that holding the ORG ’s constituent assembly under these conditions had been illegal and instituted court proceedings in this respect .

In the meantime , on DATE new amendments to the transitional provisions of the PERSON were adopted providing for admission to the ORG of all lawyers holding a special permit , including those whose right to be founding members of the ORG had not been recognised , without passing a qualification examination , subject to their complying with the requirements in respect of candidates for admission to practice as legal counsel ( see paragraph CARDINAL below ) .

On an unspecified date in DATE the first applicant applied for admission to the ORG on the basis of the amendments of DATE to the transitional provisions of the PERSON .

On DATE the Presidium of the ORG ( ORG FAC Heyəti – hereinafter “ the Presidium ” ) held a meeting at which it examined and then dismissed his application . It appears from a document entitled “ Extract from the record of meeting no . CARDINAL dated DATE of the ORG ” and annex no . CARDINAL to that document DATE signed by the head of the administration of ORG that the President of the ORG ( ORG ) declared the meeting open and then the members of the ORG questioned the first applicant about his stance on the functioning of the ORG , before dismissing his application . The transcript of the meeting , which was CARDINAL page long , reads as follows :

“ After giving the information about LOC [ the first applicant ] to the members of the ORG , ORG gives the floor to them for questions .

PERSON : Mr GPE , you are one of the lawyers who brought an action in court asking for the invalidation of the constituent assembly of the ORG . What could you say about that ?

[ The first applicant ] : I suppose that the members of the ORG are familiar with my opinion . I still maintain that the constituent assembly of the ORG was held in blatant breach of the requirements of the law . Moreover , numerous persons , who were entitled to be co - founders of the ORG , were unlawfully not allowed to attend the constituent assembly .

ORG : Mr GPE , your opinion is clear . Please wait outside . We want to discuss the question .

Member of the ORG [ ... ] : TIME . I have a question .

[ The first applicant ] : Please .

Member of the ORG : It follows that you consider this organ illegal . But why do you want to become a member of it ?

[ The first applicant ] : Irrespective of my stance on the constituent assembly of the ORG , the latter ’s creation and functioning is a fact . Unfortunately , NORP law allows for the creation of CARDINAL bar association . I want to practise as a legal counsel . That is why I applied for admission to this bar association .

ORG : Everything is clear . Please wait for the issuance of the decision .

TIME the decision of the Presidium of the ORG rejecting PERSON application for admission to that organ was declared . ”

On an unspecified date in DATE the second applicant applied for admission to the ORG , relying on the amendments to the PERSON of DATE .

On DATE the ORG held a meeting at which it examined his application but decided to dismiss it . It appears from the document entitled “ Extract from the record of meeting no . CARDINAL dated DATE of the ORG ” ( as well as annex no . CARDINAL thereto ) DATE signed by the head of the administration of ORG that ORG declared the meeting open and then the members of the ORG questioned the second applicant about his stance on the functioning of the ORG , before dismissing his application . The relevant parts of the transcript of the meeting , which is CARDINAL pages long , read as follows :

“ After giving the information about Intigam Aliyev [ the second applicant ] to the members of the ORG , ORG gives the floor to them for questions .

PERSON : Mr PERSON , you brought an action in court against the ORG . Are you going to withdraw your action after your admission to the ORG ?

[ The second applicant ] : I do n’t know other people ’s opinion , but personally I have no intention of withdrawing my actions against the ORG and ORG . Unfortunately , these actions remain unexamined by the courts because of pressure brought by the previously - mentioned organs . ...

PERSON : You state in your writing in the media that CARDINAL of the main reasons for the current catastrophic situation of the courts in GPE is the [ poor state of ] legal profession . We would like to know your opinion in this respect .

[ The second applicant ] : I am still of the same opinion . I consider that CARDINAL of the main reasons for the current catastrophic situation of the law and human rights in GPE is the absence of independent judicial power and legal profession in the country . ...

A.A. : I have a great respect for Mr PERSON as a person and lawyer . However , he published articles insulting the members of the ORG in the media and in Law Newspaper .

[ The second applicant ] : Whom have I insulted ?

A.A. : You have insulted the ORG in your writings . You write that advocates are acting as intermediaries ( vasitəçiliklə məşğuldurlar ) .

ORG : The fact that you have stated that you will maintain your court actions against the ORG indicates that you do n’t recognise the lawfulness of the ORG .

[ The second applicant ] : Firstly , my colleagues and I did not question before the courts the lawfulness of the ORG , but rather sought the invalidation of its constituent assembly , which was held in blatant breach of the requirements of the law . ...

ORG : You want to become a member of the ORG , but you bring an action against it ?

[ The second applicant ] : What does that mean ? Is it forbidden to bring an action against the ORG ? In your law , the right of legal counsels to bring an action against the ORG is provided for .

ORG : You are not yet a legal counsel .

[ The second applicant ] : I have practised as a legal counsel for DATE and the ORG gave me a permit . In any event , what difference does being a legal counsel make ? You are a legal counsel ; how can you speak like that ? Everybody has the right to bring an action against any organ , including the ORG .

ORG : I consider that the ORG should give its opinion by vote .

PERSON : It is not allowed to admit PERSON to the ORG because of the stance that he has held about the current ORG .

[ The second applicant ] : I will not be surprised if you refuse my admission to the ORG on account of my critical views about the functioning of the ORG and its directorate , although such a decision will be shameful . ...

ORG : Please , those who are in favour of the issuance of a decision refusing PERSON admission to the ORG should vote .

By a unanimous decision of the members of the Presidium of the ORG the admission of PERSON to the ORG is refused . ”

On DATE the first applicant brought an action in the ORG alleging that the ORG ’s decision of DATE had been unlawful . In particular , he argued that the ORG had failed to substantiate its decision and had breached the transitional provisions of the LAW . He further alleged the violation of his rights , as protected under LAW , CARDINAL and DATE of the LAW , as a result of the refusal to admit him to the ORG .

Following a series of procedural decisions concerning the admissibility of the action , at DATE ORG commenced examining the case on the merits . It appears from the transcript of ORG hearing held on DATE , which was submitted to the ORG by the first applicant , that the representative of the ORG at the hearing , PERSON , stated , in reply to the first applicant ’s question concerning the grounds for the ORG ’s decision of DATE , that the first applicant ’s replies to the questions and his previous statements had justified the decision of the ORG ’s members .

On DATE the ORG delivered its judgment on the merits . The court held that the first applicant ’s complaint should be dismissed because admission to the ORG was a matter which fell within the exclusive competence of the members of the ORG and there had been no breach of law in the examination of the first applicant ’s request by the ORG . The relevant part of the judgment reads as follows :

“ It was established in the course of the court investigation that , while he disputed the decision of the ORG , PERSON [ the first applicant ] did not challenge the legality of that decision , but rather its motives . It follows that the issue argued by A. GPE in his application falls within the exclusive competence of the members of the ORG and is related to their personal consideration and will .

LAW ) of LAW provides that the prohibition of any interference with or pressure on the professional activity of legal counsels and their [ professional ] association by the prosecutor ’s office , court , other ORG bodies , public associations , [ or ] any company , entity , organisation or official constitutes the basis of the legal profession .

Therefore , given that the issue addressed by PERSON in his application falls within the exclusive competence of the members of the ORG and is subject to their consideration and will , any interference with that issue is not allowed by law . ”

On DATE the first applicant appealed against that judgment , alleging a violation of his rights , as protected under LAW , DATE , DATE and DATE of the Convention and LAW No . CARDINAL to the LAW . In particular , he alleged that he had not been admitted to the ORG because of his statements about the functioning of the ORG and the poor state of the legal profession in the country . In support of his claim , the first applicant relied on the “ Extract from the record of meeting no . CARDINAL dated DATE of the ORG ” ( see paragraph CARDINAL above ) and the annex to that document . He also referred to the statements made by the representative of the ORG at the court hearings held before ORG , quoting the transcript of the above - mentioned court hearings . The first applicant further argued that the ORG ’s decision of CARDINAL DATE had been unlawful , as it had been contrary to the transitional provisions of the PERSON . In that regard , he pointed out that his candidacy for admission to practice as a legal counsel had met all the requirements for candidates for admission , as provided for by LAW .

On DATE ORG dismissed the appeal and upheld the first - instance court ’s judgment . The appellate court was silent as to the first applicant ’s particular complaints relating to the breach of his right to freedom of expression . It further appears from the transcript of ORG ’s hearing held on DATE , which was submitted to the ORG by the first applicant , that the representative of the ORG , PERSON , again stated at the hearing that the members of the ORG had considered that the first applicant should not be admitted to the ORG because of his stance on the functioning of the ORG . His statement reads as follows :

“ PERSON : You [ the first applicant ] have the transcript ( stenoqram ) . After the examination of your documents , you were questioned by the ORG , which then unanimously decided that PERSON [ the first applicant ] should not be admitted [ to practice as a legal counsel ] because of his stance [ on the functioning of the ORG ] . I consider that the vote should be against [ your admittance ] . ”

On DATE the first applicant lodged a cassation appeal , reiterating his previous complaints . In support of his claims , he again referred to the extract from the record of meeting no . CARDINAL dated DATE of the ORG and the annex thereto , as well as the transcripts of the court hearings held before ORG and ORG .

On DATE ORG dismissed the cassation appeal and upheld ORG judgment of DATE . ORG decision made no mention of the first applicant ’s particular complaints .

On DATE the second applicant brought an action in ORG , alleging that the ORG ’s decision dated DATE had been unlawful . In particular , he alleged a violation of his rights , as protected under LAW , DATE , DATE and DATE of the Convention .

Following a series of procedural decisions concerning the admissibility of the action , at DATE ORG commenced its examination of the action on the merits . It appears from the documents in the case file that in the course of the proceedings before the first - instance court the second applicant and the ORG lodged various requests and applications , which were dismissed by the court . The ORG also lodged a counterclaim against the second applicant for defamation .

On DATE the ORG delivered its judgment on the merits , dismissing both the claims of the second applicant and those of the ORG . As to the reasoning of the judgment concerning the second applicant ’s action regarding his admission to the ORG , it was similar to that of ORG dated DATE ( see paragraph CARDINAL above ) .

On DATE the second applicant appealed against that judgment , alleging a violation of his rights , as protected under LAW , DATE , DATE , DATE and CARDINAL of the Convention and LAW No . CARDINAL to the LAW . In particular , he pointed out that he had not been admitted to the ORG because of his statements and articles about the poor state of the legal profession in the country . In support of his appeal , the second applicant relied on the document entitled “ Extract from the record of meeting no . CARDINAL dated DATE of the ORG ” ( see paragraph CARDINAL above ) and the annex thereto . He further argued that the ORG ’s decision of CARDINAL DATE had been contrary to the transitional provisions of the PERSON .

On DATE ORG dismissed the appeal , finding that the judgment of the first - instance court had been lawful . The appellate court was silent as to the second applicant ’s particular complaints concerning the violation of his right to freedom of expression .

On an unspecified date the second applicant lodged a cassation appeal , reiterating his previous complaints .

On DATE ORG upheld ORG judgment of DATE .

On DATE criminal proceedings were instituted against the second applicant , Mr I. GPE , under ORG DATE ( illegal entrepreneurship ) , CARDINAL ( large - scale tax evasion ) and CARDINAL ( abuse of power ) of LAW , which are the subject of a separate application brought by him before the ORG ( application no . CARDINAL ) . At that time the second applicant was representing not only the applicants in the present case , but also a number of applicants in other cases before the ORG .

On DATE and CARDINAL DATE the investigating authorities seized a large number of documents from the second applicant ’s office , including all the case files relating to the proceedings pending before the ORG , which were in his possession and which concerned over CARDINAL applications in total . The files relating to the present CARDINAL applications were also seized in their entirety . The facts relating to the seizure and the relevant proceedings are described in more detail in a judgment relating to an application lodged by the first applicant ( see NORP GPE v. GPE , no . CARDINAL , § § CARDINAL , DATE ) .

On DATE the investigating authorities returned a number of the case files concerning the applications lodged before the ORG , including the files relating to the present applications , to the second applicant ’s lawyer .