CASE OF BIRYUCHENKO AND OTHERS v. RUSSIA

Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-c - Reasonable suspicion);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review by a court);Violation of Article 6 - Right to a fair trial (Article 6-2 - Presumption of innocence)

The applicants are all NORP nationals . They were charged with different criminal offences and placed in detention . The applicants complain in particular that after their cases had been submitted to the trial court they were detained for DATE without a court order . The applicants’ individual circumstances are detailed below .

The applicant was born in DATE and lives in PERSON .

In DATE criminal proceedings were instituted against him on suspicion of being a member of a large criminal group which had committed extortions by threats and other serious crimes .

On DATE he was arrested by NORP police in GPE and on DATE extradited to GPE where he was placed in detention .

On DATE the Prosecutor of GPE extended his detention DATE , until DATE . The applicant did not appeal against this order .

On DATE the Deputy Prosecutor General extended the applicant ’s detention until DATE .

On DATE the applicant ’s counsel lodged an application for release with ORG claiming that the applicant should be released on the ground that LAW had entered into force on DATE , and that a person could now be detained only on the basis of a court order .

NORP On DATE ORG dismissed the application for release . This decision was quashed on DATE by GPE on the applicant ’s appeal and the matter was sent back for reconsideration . On DATE ORG referred the matter back to ORG because the case had already been referred to it for trial .

On DATE the applicant was served with a bill of indictment and on the same date the case was referred for trial to GPE .

On DATE and on DATE the applicant applied to GPE asking to be released on the grounds that his detention had ceased to be lawful after the expiration on DATE of the last detention order .

On DATE the applicant complained to ORG ( “ the ORG ” ) about GPE failure to examine his application for release of DATE . On DATE ORG forwarded his complaint to ORG .

The applicant ’s detention was further extended by GPE on DATE , DATE and DATE . Each time ORG relied on the gravity of charges . All detention orders were appealed by the applicant . The detention orders of DATE and DATE were upheld by ORG on DATE and on DATE , respectively , whereas the detention order of CARDINAL DATE was quashed on DATE .

On DATE the applicant lodged an application for release with GPE on the ground that since the extension order of DATE had been quashed on appeal , he should be immediately released from detention . This application was never examined by ORG .

On DATE GPE relying on the gravity of the charges extended the applicant ’s detention for further DATE , until DATE .

On DATE the applicant appealed on the ground that the order had been unlawful since it was only based on the gravity of charges against him . Moreover , his detention had been extended despite the fact that the previous detention order had been quashed on appeal .

It appears that the applicant ’s detention was further extended on DATE and that the applicant appealed against that decision . On DATE GPE referred the case for additional investigation and confirmed that the applicant should remain in detention .

On DATE GPE referred the case for additional investigation . On DATE an investigator with ORG of GPE ordered the applicant ’s release on an undertaking not to leave his place of residence .

On DATE GPE found the applicant guilty as charged and sentenced him conditionally to DATE imprisonment .

The applicants , Mr PERSON ( “ the first applicant ” ) , Mr NORP ORG ( “ the second applicant ” ) and Mr PERSON ( “ the third applicant ” ) were born in DATE , DATE and DATE respectively and live in GPE , in the GPE region .

On DATE the applicants were arrested on suspicion of theft .

On DATE the Lodeynopolskiy Town Court of the GPE Region extended the applicants’ custody up to TIME . The applicants did not appeal this decision .

On DATE the same court ordered the applicants’ pre - trial detention . No appeal was lodged against this order .

On DATE ORG by CARDINAL separate decisions extended the applicants’ detention until DATE . ORG held , in respect of the first and second applicants , that they “ had committed the crime ” while they had been under a written undertaking not to abscond . In respect of the third applicant , ORG held that he “ had committed the crime ” while he had been under a suspended sentence . The applicants appealed , notably on account of the wording used in these orders .

On DATE the prosecuting authorities referred the criminal case against the applicants to ORG for trial .

On DATE ORG upheld the detention orders of DATE .

On DATE ORG remitted the criminal case against the applicants to the prosecuting authorities . ORG also held that the measure of restraint should remain unchanged without other details .

On DATE and DATE the ORG detention was upheld by ORG with the same summary formula . Both decisions were appealed by the applicants and on DATE both were upheld by ORG .

On DATE ORG extended the applicants’ detention , indicating that this extension was necessary given that DATE period of the applicants’ detention pending trial would expire on DATE .

On DATE the ORG acquitted the applicants of all charges and they were immediately released . On DATE ORG quashed this judgment .

On DATE ORG found the applicants guilty of theft and sentenced them to different terms of imprisonment . On DATE ORG upheld that judgment .

The applicant , Mr NORP PERSON was born in DATE and lives in GPE .

On DATE the applicant was charged with causing grave bodily injury , an offence under LAW .

On DATE the Vyborgskiy District Court of GPE ordered the applicant ’s placement in detention . On DATE this order was upheld by GPE .

On DATE the Vyborgskiy District Court extended the applicant ’s detention until DATE . The applicant appealed . On DATE GPE , in the applicant ’s absence , upheld the extension order of DATE .

On DATE the case was referred to the Vyborgskiy District Court for trial .

NORP On DATE ORG , in the absence of the applicant , decided to set the case for trial without holding a preliminary hearing and held that the measure of restraint applied to the applicant should remain unchanged . The prosecutor and the applicant appealed .

On DATE GPE , in the applicant ’s absence , quashed the decision of DATE in so far as it had set the examination of the case without holding of a preliminary hearing and remitted the matter for fresh examination to ORG . It also held that the review of the lawfulness of the applicant ’s detention was not within its competence . It further decided that the measure of restraint applied to the applicant should remain unchanged .

On DATE the applicant lodged an application for release with ORG . He complained that after DATE he had been detained without any court order , that on DATE GPE quashed the decision of DATE in his absence and , without giving any reasons , ordered not to change the measure of restraint . On DATE this application was rejected by ORG .

On DATE the ORG opened the preliminary hearing . The applicant applied for release . On DATE the court rejected the applicant ’s motion for release having found that the applicant was charged with a serious offence , had been previously convicted and might interfere with the proceedings if released . The hearing was adjourned until DATE and subsequently until DATE .

On DATE the applicant appealed against the decision of CARDINAL DATE .

On DATE the applicant ’s counsel lodged an application for release with ORG . On DATE the ORG dismissed it having found that the applicant was charged with a serious offence , had been previously convicted , and might interfere with proceedings if released

On DATE , after having held the preliminary hearing , ORG , set the case for trial on DATE and held that the measure of restraint should remain unchanged .

On DATE and DATE the applicant appealed against the decisions of CARDINAL June CARDINAL .

On DATE the Vyborgskiy ORG extended the applicant ’s detention until DATE , having found that the applicant was charged with a serious offence , he had been previously convicted and might interfere with proceedings if released . The applicant appealed . On DATE GPE upheld the detention order of DATE .

DATE . On DATE GPE held that it was impossible to examine the applicant ’s appeals against the decisions of CARDINAL May and DATE by which his requests for release had been dismissed .

The applicant ’s detention was further extended by ORG on DATE , DATE , CARDINAL DATE and on DATE . All these extension orders were based on the same grounds . Each time the applicant appealed . All these extension orders were upheld by ORG .

On DATE the applicant was found guilty and sentenced to CARDINAL years’ imprisonment . His conviction was upheld by GPE on appeal on DATE . On CARDINAL DATE the applicant was released for good behaviour .

On DATE Mr Biryuchenko and on DATE Mr PERSON complained to ORG about the de facto extension of their detention after their case files had been sent by the prosecution authorities to the respective trial courts . ORG examined their complaints together with similar complaints lodged by other individuals . In a Ruling adopted on DATE ORG found that the challenged provisions of the new CCrP complied with LAW . However , their practical interpretation by the courts may have contradicted their constitutional meaning . In part CARDINAL of ORG held :

“ The second part of LAW provides that ... the detention is permitted only on the basis of a court order ... . Consequently , if the term of detention , as defined in the court order , expires , the court shall decide on the extension of the detention , otherwise the accused person should be released ...

These rules are common for all stages of criminal proceedings , and also cover the transition from CARDINAL stage to another . ... The transition of the case to another stage does not automatically put an end to the preventive measure applied at previous stages .

Therefore , when the case is transmitted by the prosecution to the trial court , the preventive measure applied at the pre - trial stage ... may continue to apply until the expiry of the term , for which it has been set in the respective court decision [ imposing it ] ...

[ Under Articles CARDINAL and CARDINAL of the Code of Criminal Procedure ] a judge , after having received the criminal case concerning a detained defendant , should , within DATE , set a hearing and establish ‘ whether the preventive measure applied should be lifted or ORG . This wording implies that the decision to detain the accused or extend his detention , taken at the pre - trial stage , may stand after the completion of the pre - trial investigation and transmittal of the case to the court , only until the end of the term , for which the preventive measure has been set .

The prosecution , in its turn , while approving the bill of indictment and transferring the case file to the court , should check whether the term of detention has expired and whether it is sufficient to allow the judge to take a decision [ on further detention of the accused pending trial ] . If by the moment of transferal of the case - file to the court this term has expired , or if it appears to be insufficient to allow the judge to take a decision [ on detention ] , the prosecutor , pursuant to ORG and CARDINAL of LAW , [ should ] request the court to extend the period of detention . ”

On DATE Mr Biryuchenko lodged a complaint with ORG office . He submitted that DATE , which was after his case had been referred for trial to ORG , and DATE , he had been detained unlawfully ( see paragraphs CARDINAL above ) . Subsequently , his detention had been extended CARDINAL times : on DATE , DATE , DATE and DATE , on DATE and DATE . He pointed out that he had appealed against all the extension orders , but the appeal court had failed to take his arguments into account . Relying on the ruling of ORG of DATE , the applicant argued that in his case the courts had wrongly interpreted LAW and had taken an unlawful decision on DATE . All the subsequent detention orders had also been unlawful . He requested the Prosecutor to lodge a request for supervisory review with ORG and apply for quashing of the extension orders .

On DATE ORG replied that the ambiguity of LAW allowed the courts to detain the defendants during DATE without taking any decision in this respect . Therefore , when extending the applicant ’s detention and dismissing his applications for release , the courts of first and second instances had not found any violation of law . Furthermore , the applicant had been released on DATE . Therefore , his right to liberty had been reinstated long before the adoption of the ruling of CARDINAL DATE by ORG . For these reasons , there had been no grounds to apply for a supervisory review of detention orders .


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

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 civil proceedings and of the lack of any effective remedy in domestic law .


CASE OF KUDRYAVTSEV AND OTHERS v. RUSSIA

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)

The applicants complained of the inadequate conditions of their detention . Some applicants also raised other complaints under the provisions of the Convention .


BAJRAMOVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Aleš Pejchal;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Pauliine Koskelo;Ksenija Turković

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

ORG ( “ the Government ” ) were initially represented by their former Agent , PERSON , later succeeded by Ms D. Djonova .

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

In DATE the applicant lodged a civil action against GPE and PERSON with ORG ( GPE суд PERSON , “ the first - instance court ” ) , claiming recognition of a title to a house and a courtyard that had been returned to the defendants in earlier restitution proceedings .

On an unspecified date thereafter Judge PERSON , the presiding judge in the applicant ’s case , notified the president of the first - instance court that ORG was a judge of that court , and asked him to request that the next level of court up from the first - instance court assign the case to another firstinstance court .

On DATE , under section CARDINAL of LAW ( “ the LAW ” ) and for the reasons relied upon by Judge PERSON , the president of the first - instance court requested that ORG ( Апелационен суд PERSON , “ ORG ” ) assign the case to another competent first - instance court .

On DATE ORG returned the case file to the first - instance court . The Government submitted that ORG had found no grounds to assign the case to another competent court . No copy of a decision was provided .

On DATE a CARDINAL - judge panel of the first - instance court , presided over by Judge PERSON and CARDINAL lay judges , dismissed the applicant ’s claim . The panel established that the applicant ’s father had bought the property from a third party whose legal predecessor had acquired it unlawfully and in bad faith .

The applicant appealed against that judgment , complaining of factual and legal errors and an incorrect assessment of the evidence . He also complained that the court had not provided sufficient reasons for its judgment . He did not voice any concerns about an alleged lack of impartiality on the part of the first - instance court .

On an unspecified date the applicant ’s lawyer requested that ORG assign the case to another second - instance court under LAW of the LAW , given the fact that CARDINAL judges of the first - instance court ( former colleagues of Judge PERSON ) had been appointed judges of ORG , the court which was to decide the applicant ’s appeal . The relevant part of the application read as follows :

“ The defendant , ORG , is a judge of ORG . The claim was submitted to ORG in the belief that the court would deliver a correct judgment based on the facts of the case ... ”

On DATE ORG dismissed the applicant ’s application , holding that the reasons given by the applicant were “ irrelevant ” and that a transfer of jurisdiction to another competent court was not warranted .

On DATE a CARDINAL - judge panel of ORG not including the CARDINAL judges in respect of whom the applicant had voiced concerns about impartiality dismissed the applicant ’s appeal and upheld the first - instance court ’s judgment . It found no reasons to depart from the established facts and reasons provided by that court .

The applicant lodged an appeal on points of law with ORG in which he reiterated the complaints described in paragraph CARDINAL above . He also referred to the earlier requests ( see paragraphs CARDINAL , DATE and DATE above ) for his case to be assigned to different first and second - instance courts .

On DATE ORG dismissed the applicant ’s appeal on points of law . It did not address his submissions concerning the lower courts’ alleged lack of impartiality .

The relevant provisions of LAW provide as follows :

“ If the competent court is not able to act , owing to a judge being excluded , it shall notify the higher court . The higher court shall assign the case to another competent court in its territory . ”

“ ORG may , following a proposal by a party or the competent court , assign a case to another court if this would obviously facilitate the proceedings , or for other important reasons . ”

“ A judge or a lay judge can not perform his / her judicial function if :

he / she is a party , a statutory representative , or a party ’s counsel ... ;

he / she is permanently or temporarily employed by a party to the proceedings ;

a party or a party ’s counsel is his / her relative ... ;

he / she is a custodian , an adoptive parent , [ or ] an adoptive child ... of a party ;

he / she participated in rendering any decision by a lower court or another body in the relevant proceedings ; and

there are other grounds which cast doubt on his / her impartiality . ”

ORG has previously granted applications for a transfer of jurisdiction based on section CARDINAL of the Act in cases where : the court before which proceedings were conducted was itself a party to those proceedings , for example a defendant in employment disputes or a claimant in enforcement proceedings ( Р.бр. CARDINAL , Р.бр. CARDINAL , Р.бр. CARDINAL/CARDINAL , Р.бр. CARDINAL/CARDINAL ) ; a judge of the court was a party in a case which was to be decided by that court ( Р.бр. CARDINAL , Р.бр. CARDINAL , Р.бр. CARDINAL/CARDINAL ) ; a claimant ’s mother was a judge of the trial court ( Р.бр. CARDINAL ) ; a legal representative of defendants who were minors was a judge of the trial court ( Р.бр. CARDINAL/CARDINAL ) ; a claimant was the son of a judge of the trial court ( Р.бр. CARDINAL ) ; some judges of the trial court had been excluded and against other judges the defendant had initiated criminal proceedings expressing doubts about their impartiality ( Р.бр.CARDINAL/CARDINAL ) .

In CARDINAL case , ORG refused an application for a transfer of jurisdiction where the claimant in the case was a judge of the trial court ( Р.бр. CARDINAL/CARDINAL ) .

The President of ORG granted applications for exclusion from all of the judges of that court in a case between ORG of First Instance and one of its employees ( ORG ) .


No violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life);No violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for family life)

András Sajó;Egidijus Kūris;Guido Raimondi;Nebojša Vučinić;Paul Lemmens;Peer Lorenzen;Robert Spano

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

The first applicant was born in GPE , where he lived until DATE and again briefly from DATE . From DATE he lived in GPE with his uncle . He attended school there for DATE and speaks the local language . On DATE , when he was DATE , he entered GPE and requested asylum , which was refused by a final decision of DATE .

In the meantime , on DATE he had married a NORP national . Having regard thereto , on DATE , by virtue of the former section CARDINAL , subsection CARDINAL(ii ) , of LAW ( PERSON ) he was granted a residence permit , which became permanent on DATE .

On DATE , the first applicant and his NORP wife divorced .

On DATE the first applicant acquired NORP citizenship . Thus , at the relevant time he met the requirement relating to the length of his period of residence , age , general conduct , arrears owed to public funding and language proficiency .

On DATE in GPE , the first applicant married the second applicant , whom he had met during CARDINAL of CARDINAL visits to GPE made in DATE prior to their marriage . The second applicant was born in GPE .

On DATE , at ORG in GPE in GPE , the second applicant requested a residence permit for GPE with reference to her marriage to the first applicant . At that time she was DATE . She stated that she had not visited GPE . Her parents lived in GPE . In the application form , the first applicant submitted that he had not received any education in GPE , but had participated in various language courses and short - term courses concerning service , customer care , industrial cleaning , hygiene and working methods . He had been working in a slaughterhouse since DATE . He had no close family in GPE . He spoke and wrote LANGUAGE . The spouses had come to know each other in GPE and they communicated in the NORP and NORP languages .

At the relevant time , under section CARDINAL , subsection CARDINAL , of LAW family reunion could only be granted if both spouses were over DATE and their aggregate ties to GPE were stronger than the spouses’ attachment to any other country .

On DATE , ORG ) refused the request because it found that it could not be established that the spouses’ aggregate ties with GPE were stronger than their aggregate ties to GPE .

In DATE or DATE the second applicant entered GPE on a tourist visa .

On DATE she appealed against the Aliens Authority’ decision of DATE , to the then ORG ( Ministeriet for Flygtninge , GPE og Integration).The appeal did not have suspensive effect .

On DATE the applicants moved to GPE .

By Act no . CARDINAL of DATE , section CARDINAL , subsection CARDINAL , of LAW was amended so that the attachment requirement was lifted for persons who had held NORP citizenship for DATE ( the so - called DATE rule , CARDINAL-års reglen ) . Furthermore , persons born or having arrived in GPE as small children could be exempted from the attachment requirement , provided they had resided lawfully there for DATE .

On CARDINAL DATE the applicants had a son . He was born in GPE but is a NORP national due to his father ’s nationality .

On DATE ORG upheld the decision by ORG of DATE to refuse to grant the second applicant a residence permit . It noted in particular that the second applicant had always lived in GPE and had family there , and that the first applicant had ties with GPE and had , among other things , attended school there for DATE . Finally , it found that the family could settle in GPE , as that would only require that the first applicant obtain employment there .

On DATE , before ORG of Eastern GPE ( PERSON ) , the applicants instituted proceedings against ORG and relied on LAW , alone and in conjunction with LAW , as well as LAW . They submitted , among other things , that it amounted to indirect discrimination against them when applying for family reunion , that persons who were born NORP citizens were exempt from the attachment requirement altogether , whereas persons who had acquired NORP citizenship at a later point in life had to comply with the CARDINAL-year rule before being exempted from the attachment requirement . In the present case that would entail that the first applicant could not be exempted from the attachment requirement until DATE , thus after DATE of NORP citizenship , and after having reached DATE .

By a judgment of CARDINAL DATE ORG of Eastern GPE unanimously found that the refusal to grant the applicants family reunion with reference to the DATE rule and the attachment requirement did not contravene the Articles of the Convention or the European Convention on Nationality relied on . It stated as follows :

“ ... the facts given in the decisions of the immigration authorities in the case are found not to be disputed .

Hence , [ the second applicant ] who is a NORP national , was thus DATE when she applied for a residence permit on DATE , and she had no other ties with GPE than her recent marriage to [ the first applicant ] . [ The second applicant ] had always lived in GPE and had family there . [ The first applicant ] had some ties with GPE , where he had lived with his uncle while attending school in GPE for DATE . He entered GPE in DATE at DATE and became a NORP national on DATE . [ The applicants ] married in GPE on DATE and have lived in GPE since DATE with their child , born on DATE . [ The first applicant ] has told ORG that the family can settle lawfully in GPE if he obtains paid employment in GPE .

It appears from a ORG judgment of DATE , reproduced on page CARDINAL in the NORP Weekly Law Reports ( ORG for DATE , that LAW does not impose on ORG any general obligation to respect immigrants’ choice of the country of their residence in connection with marriage , or otherwise to authorise family reunion .

In view of the information on [ the applicants’ ] situation and their ties with GPE , ORG accordingly finds no basis for setting aside the Defendant ’s decision establishing that [ the applicants’ ] aggregate ties with GPE were stronger than their aggregate ties with GPE and that [ the applicants ] therefore did not meet the attachment requirement set out in section CARDINAL , subsection CARDINAL , of LAW . In this connection , the High Court finds that the refusal did not bar [ the applicants ] from exercising their right to family life in GPE or in a country other than GPE . The fact that [ the first applicant ] is only able to reside in GPE if he obtains paid employment there is found not to lead to any other assessment . Accordingly , ORG holds that the decision of ORG did not constitute a breach of LAW .

Although ORG has held that LAW has not been breached in this case , ORG has to consider [ the applicants’ ] claim that , within the substantive area otherwise protected by DATE , the decision of ORG constituted a breach of Article CARDINAL read in conjunction with Article CARDINAL of the Convention .

ORG initially observes that [ the first applicant ] had been residing in GPE for DATE when the ORG made its decision . Although he acquired NORP nationality in DATE , DATE after his entry to GPE , he did not meet the CARDINAL-year nationality requirement applicable to all NORP nationals pursuant to section CARDINAL , subsection CARDINAL of LAW , irrespective of whether they are of foreign or NORP extraction . Nor did he have the comparable attachment to GPE throughout DATE which will generally lead to an exemption from the attachment requirement according to the preparatory works to the DATE statutory amendment .

The CARDINAL-year rule is a generally worded relaxation of the attachment requirement based on an objective criterion . In practice , however , the rule may imply that a NORP national of foreign extraction will only meet the CARDINAL-year rule later in life than would be the case for a NORP national of NORP extraction . When applied , the rule may therefore imply an indirect discrimination .

According to the relevant explanatory report , LAW must be taken to mean that LAW concerns the conditions for acquiring nationality while LAW concerns the principle of non - discrimination . According to the report , it is not a mandatory rule that GPE are obliged to observe in all situations . Against that background , LAW is considered to offer protection against discrimination to an extent that goes no further than the protection against discrimination offered by LAW .

The assessment of whether the refusal of the ORG implied discrimination amounting to a breach of LAW read in conjunction with LAW is accordingly considered to depend on whether the difference in treatment which occurred as a consequence of the attachment requirement despite the nationality can be considered objectively justified and proportionate .

According to the preparatory works to the LAW , the overall aim of the attachment requirement , which is a requirement of lasting and strong links to GPE , is to regulate spousal reunion in GPE in such manner as best to ensure the integration of immigrants in GPE , which aim must in itself be considered objective . In the view of ORG , difference in treatment between NORP nationals of NORP extraction and NORP nationals of foreign extraction can therefore be justified by this aim relative to the right to spousal reunion if a NORP national of foreign extraction has no such lasting and strong attachment to GPE .

The balancing of this overall consideration relative to the specific circumstances in the case requires a detailed assessment . The High Court finds that the assessment and decision of the Ministry were made in accordance with section CARDINAL(CARDINAL ) of LAW and the preparatory works describing the application of the provision . Accordingly , and in view of the specific information on [ the first applicant ’s ] situation , the High Court finds no sufficient basis for holding that the refusal by the Ministry to grant a residence permit to [ the second applicant ] with reference to the attachment requirement of LAW implies a disproportionate infringement of [ the first applicant ’s ] rights as a NORP national and his right to family life . ORG therefore finds that the decision of ORG was not invalid , and that it was not contrary to LAW . ”

The applicants appealed against the judgment to ORG ( Højesteret ) , which passed its judgment on DATE confirming the ORG judgment .

ORG found , unanimously , that it was not in breach of LAW to refuse the second applicant a residence permit in GPE . It stated as follows :

“ By its decision of DATE , ORG refused the application from [ the second applicant ] for a residence permit on the grounds that the aggregate ties of herself and her spouse [ the first applicant ] with GPE were not stronger than their aggregate ties with GPE , see section CARDINAL , subsection DATE , of LAW .

[ The applicants ] first submitted that the refusal was unlawful because it was contrary to LAW . If the refusal was not contrary to LAW , they submitted as their alternative claim that it was contrary to the prohibition against discrimination enshrined in LAW read in conjunction with LAW , for which reason they were eligible for family reunion in GPE without satisfying the attachment requirement set out in section CARDINAL(CARDINAL ) of the Act .

For the reasons given by ORG , ORG upholds the decision made by ORG that it is not contrary to Article CARDINAL to refuse [ the second applicant ’s ] application for a residence permit . ”

NORP Moreover , the majority of ORG ( CARDINAL judges ) found that the DATE rule was in compliance with LAW in conjunction with LAW . They stated as follows :

A minority of CARDINAL judges was of the view that the DATE rule implied an indirect discrimination between persons who were born NORP citizens and persons who had acquired NORP citizenship later in their life . Since persons who were born NORP citizens would usually be of NORP ethnic origin whereas persons who acquired NORP citizenship at a later point in their life would generally be of foreign ethnic origin , the CARDINAL-year rule also entailed an indirect discrimination between ethnic NORP citizens and NORP citizens with a foreign ethnic background . More specifically , they stated :

“ As stated by the majority , the requirement of section CARDINAL , subsection DATE , of LAW that the spouses’ or ORG aggregate ties with GPE must be stronger than their aggregate ties with another country ( the attachment requirement ) does not apply when the resident person has been a NORP national for DATE ( the CARDINAL-year rule ) .

The CARDINAL-year rule applies both to persons born NORP nationals and to persons acquiring NORP nationality later in life , but in reality the significance of the rule differs greatly for the CARDINAL groups of NORP nationals . For persons born NORP nationals , the rule only implies that the attachment requirement applies until they are DATE . For persons not raised in GPE who acquire NORP nationality later in life , the rule implies that the attachment requirement applies until DATE have passed after the date when any such person became a NORP national . As an example , [ the first applicant ] who became a NORP national at DATE , will be subject to the attachment requirement until he is DATE . The CARDINAL-year rule therefore implies that the major restriction of the right to spousal reunion resulting from the attachment requirement will affect persons who only acquire NORP nationality later in life far more often and with a far greater impact than persons born with NORP nationality . Hence , the CARDINAL-year rule results in obvious indirect difference in treatment between the CARDINAL groups of NORP nationals .

The vast majority of persons born NORP nationals will be of NORP ethnic origin , while persons acquiring NORP nationality later in life will generally be of other ethnic origin . At the same time , the CARDINAL-year rule therefore implies obvious indirect difference in treatment between NORP nationals of NORP ethnic origin and NORP nationals of other ethnic origin regarding the right to spousal reunion .

Pursuant to section CARDINAL , subsection CARDINAL , of LAW , the attachment requirement may be disregarded if exceptional reasons make it appropriate . According to the preparatory works to LAW , this possibility of exemption is to be administered in such a manner that aliens who were born and raised in GPE or who came to GPE as small children and were raised here must be treated comparably to NORP nationals , which means that they will be exempt from the attachment requirement when they have lawfully resided in GPE for DATE . However , relative to persons who were not raised in GPE , but acquire NORP nationality later in life , this does not alter the situation described above concerning the indirect difference in treatment implied by the CARDINAL-year rule .

When the attachment requirement was introduced by Act No . CARDINAL of CARDINAL DATE , all NORP nationals were exempt from the requirement . Act No . CARDINAL of DATE made the attachment requirement generally applicable also to NORP nationals . Concerning the reason for this , the preparatory works to the LAW state , inter alia : “ With resident aliens and NORP nationals of foreign extraction it is a widespread marriage pattern to marry a person from their countries of origin , among other reasons due to parental pressure [ ... ] . The Government finds that the attachment requirement , as it is worded DATE , does not take sufficient account of the existence of this marriage pattern among both resident foreigners and resident NORP nationals of foreign extraction . There are thus also NORP nationals who are not well - integrated in NORP society and where integration of a spouse newly arrived in GPE may therefore entail major problems . ” By Act No . CARDINAL of DATE , the application of the attachment requirement to NORP nationals was restricted through the CARDINAL-year rule , and the preparatory works to the LAW stated that the purpose was , inter alia , “ to ensure that NORP expatriates with strong and lasting ties to GPE in the form of DATE of NORP nationality will be able to obtain spousal reunion in GPE ” . In the light of these notes , it is considered a fact that the indirect difference in treatment between NORP nationals of NORP ethnic extraction and NORP nationals of other ethnic extraction following from the CARDINAL-year rule is an intended consequence .

Under LAW , the enjoyment of the rights and freedoms recognised by the LAW , including the individual ’s right under LAW for his or her family life , must be “ secured without discrimination on any ground such as sex , race , colour , language , religion , political or other opinion , national or social origin , association with a national minority , property , birth or other status . ” As mentioned above , the CARDINAL-year rule implies both indirect difference in treatment between persons born NORP nationals and persons only acquiring NORP nationality later in life and , in the same connection , indirect difference in treatment between NORP nationals of NORP ethnic extraction and NORP nationals of other ethnic extraction . Both these types of indirect difference in treatment must be considered to fall within Article CARDINAL read in conjunction with Article CARDINAL of the Convention . The QUANTITY types of indirect difference in treatment implied by the CARDINAL-year rule are therefore contrary to LAW unless the difference in treatment can be considered objectively justified and proportionate .

LAW of DATE , which has been ratified by GPE , provides in LAW : “ ORG shall be guided by the principle of non - discrimination between its nationals , whether they are nationals by birth or have acquired its nationality subsequently . ” The memorandum of DATE made by ORG and the memorandum of DATE made by the working group composed of representatives of ORG , ORG and ORG state that the provision solely concerns issues on the revocation and loss of nationality . In our opinion it is dubious whether there is any basis for such restrictive interpretation as the provision , according to its wording , comprises any difference in treatment exercised as a consequence of how and when nationality was acquired . As appears from the explanatory report , the provision is not a prohibition from which no derogation may be made , and the provision must be taken to mean that it may be derogated from if the difference in treatment is objectively justified and proportionate . However , when assessing the CARDINAL-year rule relative to LAW read in conjunction with LAW , we consider it necessary to include the fact that , at least according to its wording , LAW comprises a general provision stating that any difference in treatment between different groups of ORG own nationals is basically prohibited .

In an assessment made under LAW read in conjunction with LAW , another factor to be taken into consideration is the crucial importance of being entitled to settle with one ’s spouse in the country of one ’s nationality .

As mentioned , NORP nationals were originally generally exempt from the attachment requirement . ORG established in a judgment reproduced on p. CARDINAL in the NORP Weekly Law Reports for DATE that discrimination relative to the right to spousal reunion based on whether the resident spouse is a NORP or foreign national is not contrary to the prohibition of discrimination laid down in LAW read in conjunction with LAW . In this respect , ORG referred to paragraphs CARDINAL of the judgment delivered by ORG DATE in ORG and NORP v. GPE . Difference in treatment based on nationality must be seen , inter alia , in the light of the right of NORP nationals to settle in GPE , and no significance can be attributed to the fact that such discrimination is not considered contrary to LAW CARDINAL when assessing whether it is permissible to implement a scheme implying difference in treatment between different groups of NORP nationals . In our opinion , no crucial significance can be attributed to paragraphs CARDINAL to CARDINAL of the Abdulaziz , Cabales and NORP judgment either in this assessment , among others because difference in treatment based on the length of a person ’s period of nationality is not comparable to difference in treatment based on place of birth .

In the cases in which the attachment requirement applies , some of the factors emphasised are whether the resident spouse has strong links to GPE by virtue of his or her childhood and schooling in GPE . Such strong attachment to GPE will exist in most cases in which a person has held NORP nationality for DATE . However , when assessing whether the difference in treatment implied by the CARDINAL-year rule can be considered objectively justified , it is not sufficient to compare persons not raised in GPE who acquire NORP nationality later in life with the large group of persons who were born NORP nationals and were also raised in GPE . If exemption from the attachment requirement was justified only by regard for the latter group of NORP nationals , the exemption should have been delimited differently . The crucial element must therefore be a comparison with persons who were born NORP nationals and have been NORP nationals for DATE , but who were not raised in GPE and may perhaps not at any time have had their residence in GPE . In our opinion , it can not be considered a fact that , from a general perspective , this group of NORP nationals has stronger ties with GPE than persons who have acquired NORP nationality after entering and residing in GPE for DATE . It should be taken into consideration in that connection that one of the general conditions for acquiring NORP nationality by naturalisation is that the relevant person has resided in GPE for DATE , has proved his or her proficiency in the NORP language and knowledge of NORP society and meets the requirement of self - support .

Against that background , it is our opinion that the indirect difference in treatment implied by the DATE rule can not be considered objectively justified , and that it is therefore contrary to LAW .

The consequence of this must be that , when applying section CARDINAL , subsection CARDINAL , of LAW to NORP nationals , the authorities must limit the CARDINAL-year rule to being solely an age requirement , meaning that the attachment requirement does not apply in cases in which the resident spouse is a NORP national and is DATE .

Accordingly , we vote for ruling in favour of the [ applicants’ ] claim to the effect that ORG must declare invalid the decision of DATE , thereby remitting the case for renewed consideration .

In view of the outcome of the voting on this claim we see no reason to consider the claim for compensation . ”


Violation of Article 7 - No punishment without law (Article 7-1 - Nullum crimen sine lege;Retroactivity;Criminal offence;Article 7-2 - Criminal offence);Pecuniary damage - award (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;André Potocki;Ann Power-Forde;Dean Spielmann;Egidijus Kūris;Guido Raimondi;Ineta Ziemele;Jon Fridrik Kjølbro;Josep Casadevall;Khanlar Hajiyev;Mark Villiger;Nebojša Vučinić;Paulo Pinto De Albuquerque;Peer Lorenzen;Ksenija Turković

The applicant was born on DATE and lives in PERSON .

On DATE GPE ( hereafter at times referred to as “ the GPE ” ) , led by PERSON , signed a non - aggression treaty with GPE , led by PERSON ( “ ORG ” ) . Under a secret additional protocol approved by the parties on DATE , as amended on DATE and DATE , GPE and other GPE were attributed to the GPE ’s sphere of interest in the event of a future “ territorial and political rearrangement ” of the territories of these then independent countries . After GPE ’s invasion of GPE on DATE and the subsequent start of the Second World War , GPE began exerting considerable pressure on ORG with a view to taking control of those countries pursuant to ORG and its additional protocol .

Following an ultimatum to allow an unlimited number of NORP troops to be stationed in the NORP countries , on DATE the NORP army invaded GPE . The Government of GPE was removed from office , and a new Government was formed under the direction of ORG of GPE , the GPE ’s only political party . On DATE GPE completed the annexation of GPE by adopting an act incorporating the country into the GPE , with GPE being named the “ the NORP Soviet GPE ” ( hereinafter referred to as “ the GPE ” ) . In DATE the territory was occupied by NORP forces . In DATE NORP rule was re - established in NORP territory ( see PERSON and Others v. GPE , nos . CARDINAL/CARDINAL , CARDINAL and CARDINAL , § DATE , and also PERSON v. GPE [ ORG ] , no . MONEY , § § DATE , ORG CARDINALIV ) .

A nation - wide partisan movement began in GPE . The goal of the entire armed and unarmed resistance was the liberation of and reestablishment of independent GPE . In DATE an all - partisan organisation , ORG ( NORP laisvės kovos sajūdis ( “ LKKS ” ) ) was formed . On DATE the organisation adopted the Declaration stating that ORG was “ the highest political authority of the nation , leading the nation ’s political and military struggle for freedom ( aukščiausias tautos politinis organas , vadovaująs politinei ir karinei tautos išsilaisvinimo kovai ) ” . The NORP repressive structures , embodied in the GPE ( ORG , PERSON ) , the ORG ( ORG , PERSON ) and other bodies , sought to suppress the resistance . The system of repressive organisations was reorganised on repeated occasions . Most of the leading and operative employees of those structures were NORP sent to GPE from the GPE . In DATE the partisan movement was suppressed by the NORP authorities , although separate partisan formations were operating for some time until after DATE , DATE in which the leadership of the ORG was captured and murdered .

DATE GPE regained its independence on DATE ; this was officially recognised by the GPE on DATE . The NORP army left GPE on DATE .

The Government provided the ORG with copies from ORG ( NORP ypatingasis archyvas ) of the applicant ’s service file from the period when he worked for the ORG of the NORP SSR . The documents are in NORP and were translated into NORP by a translator from the GPE region public prosecutor ’s office . It appears that these documents were relied upon by the prosecutor when he brought the bill of indictment against the applicant in DATE ( see paragraph CARDINAL below ) . The documents disclose the following information .

DATE the applicant studied at ORG in GPE .

On DATE the applicant was employed as an assistant operational agent ( operatyvinis įgaliotinis ) , and from DATE he worked as an operational agent in the ORG district unit of ORG . As of DATE the applicant worked as a senior operational agent in the ORG and subsequently in the ORG .

The minutes of the ORG district ORG unit NORP party ORG meeting of DATE record that the agenda of that meeting was devoted to discussing “ the decisions of ORG , and orders from the GPE ORG and ORG MGB as to the extermination of nationalist elements in the [ ORG ] district ” . The minutes further record that a member of the ORG district ORG urged that in the immediate future the “ bandits and nationalist underground should be eradicated ” . The regional unit of ORG was encouraged to put more effort into enlightening the inhabitants about the “ fight against the bandits and nationalist underground ” . TIME record the applicant ’s view that “ their [ his ORG unit ’s ] goal was to exterminate as quickly as possible the bandits , those who help them and their contacts ” .

It appears from TIME of the meeting of DATE of the ORG district ORG unit NORP party members , that on that occasion the applicant gave a speech about “ the fight against the nationalist underground ” . The applicant stated that so far he “ had not succeeded in exposing all the members of the nationalist gangs in the district assigned to him ” . In the applicant ’s view , “ if each NORP , each member of his [ ORG ] unit , takes up his duties more thoroughly , they can obtain good results in the fight against the nationalist underground ” .

During the meeting of CARDINAL DATE of the ORG district ORG unit NORP party members , the applicant was described as a person who had achieved good results in his work .

On DATE the applicant became a member of ORG of GPE . The record of the meeting of the ORG district ORG unit NORP party members indicates , that the applicant ’s superiors characterised him as being disciplined ( disciplinuotas ) , being politically aware ( politiškai raštingas ) and having good work results . The superiors pointed out that joining the ranks of the “ glorious NORP party ” obliged the applicant to “ raise his political awareness , study the history of the NORP party in its fight with various enemies and always be alert ” .

In DATE the applicant gained the qualification of a jurist at the KGB Felix ORG .

DATE until he retired in DATE on health grounds , the applicant worked as the Head of ORG in the LOC district .

According to the applicant ’s service record , during his CARDINAL years’ service in the ORG ( ORG ) , he was awarded , decorated or commended CARDINAL times . During his service in the ORG and the ORG the applicant served up to the rank of lieutenant - colonel ( papulkininkis ) .

On DATE the applicant took part in an operation against CARDINAL NORP partisans , the brothers PERSON and PERSON , who had been hiding in the forest in the ORG area . GPE , the applicant ’s co - accused in the subsequent criminal proceedings for genocide , had provided the NORP authorities with information about the partisans’ whereabouts . An operation to capture or liquidate the partisans had been planned . Several soldiers were involved and the applicant was part of the operation . During the attempt to apprehend them , J.A. and PERSON resisted by opening fire on the ORG officers and NORP soldiers . The partisans were shot and killed .

On DATE of the operation , that is , on DATE , the Head of the ORG district ORG drafted a report to his superior – the head of the GPE region ORG , wherein it was mentioned that the applicant had contributed to the success of the operation during in which “ CARDINAL bandits had been liquidated ” , and thus deserved to be commended ( užsitarnavo paskatinimą ) .

On DATE the Head of the ORG district ORG wrote to the Minister of ORG the NORP SSR , informing him that on DATE the applicant and the ORG officers had liquidated “ CARDINAL members of a nationalist gang [ J.A. and PERSON ] ” . He proposed that the applicant be rewarded for that operation . The applicant ’s service file indicates that on DATE the applicant received a commendation and was paid a premium of MONEY .

On DATE the Chairman of ORG of the ORG district indicated that brothers PERSON and PERSON belonged to a “ bourgeois nationalistic armed gang ” during the post - war period and that in DATE they were shot as its members .

After GPE regained its independence , the GPE region public prosecutor ’s office started an investigation in DATE into the death of the brothers PERSON and PERSON In DATE the prosecutor charged the applicant and GPE with genocide , pursuant to LAW then in force ( see paragraph CARDINAL below ) . The prosecutor found it to be established that as of DATE the applicant had served as an operational agent in the GPE region ORG district branch of the ORG MGB . He knew that “ the ORG MGB ’s main purpose was to physically eradicate part of the NORP population belonging to a separate political group ( atskira politinė grupė ) , namely , the NORP partisans , participants in the resistance to the NORP occupation ” . “ The applicant had been active in fulfilling that main goal of the ORG MGB by killing some of the inhabitants of GPE belonging to the aforementioned political group ” . For the prosecutor , the applicant ’s guilt was proved on the basis of his service record ( tarnybos kortelė ) , the applicant ’s ORG commendation for his persistence when executing search measures , managing the operation and personal participation when apprehending the bandits ( pareikšta padėka už atkaklumą pravedant agentūrines - tyrimo priemones , vadovavimą operacijai , asmeninį dalyvavimą sulaikant banditus ) . The evidence examined by the prosecutor included statements by witnesses , TIME of the meetings of the ORG district ORG unit which were obtained from ORG ( NORP ypatingasis archyvas ) and the Genocide and Resistance Research Centre of GPE ( NORP gyventojų genocido ir rezistencijos tyrimo centras ) and translations of those documents , which mentioned the applicant , the tasks he had been assigned with regard to the liquidation of banditry , bandits’ assistants and contact persons . Other evidence included [ MGB ] reports about the liquidated bandits PERSON and PERSON

By a judgment of CARDINAL February CARDINAL , ORG found that there was sufficient evidence to convict the applicant of genocide . On the basis of witness statements , written evidence provided by ORG of GPE and statements by the applicant and his co - accused GPE , the court established that J.A. and PERSON had belonged to the CARDINALth unit of the PERSON district partisans . The trial court noted that the information in the case file allowed it to conclude that in order to compromise the partisan brothers the NORP authorities had spread misinformation to the effect that J.A. and PERSON had deserted from the partisan unit , were hiding alone and , thereafter , had no connection with the partisans . Those accusations were untrue . In reality , the partisans , including the brothers PERSON and PERSON , operated in small groups in order to avoid extermination by the NORP . Lastly , there was no credible evidence in the case which would disprove the assertion that J.A. and PERSON “ were members of the organised resistance and that they belonged to a political group ” . The trial court also noted testimony by CARDINAL witness that the partisan brothers had been hiding in the forest for DATE , and that his family had given them food .

As to the applicant , the court noted that as of DATE he had been working as an operational agent of the ORG of the NORP SSR and “ knew the main goal of that Ministry , which was to physically eradicate a separate political group , NORP partisans , constituting part of the NORP population ” . In the ORG files the CARDINAL brothers had been listed as partisans , members of the armed national underground resistance ( partizanai – nacionalinio ginkluoto pogrindžio dalyviai ) . The court dismissed the applicant ’s contention that he had not actively participated in the operation to capture or to liquidate the CARDINAL partisans during which those CARDINAL partisans had died . On the contrary , the applicant ’s superior officer ’s operational file had stated that CARDINAL of the bandits had been personally eliminated by the applicant . After the operation the applicant had been admitted to ORG and both he and PERSON had received a financial reward . Most importantly , neither the applicant nor GPE denied taking part in the operation to liquidate the partisans . The trial court took the view that all of the circumstances allowed the conclusion that both of the accused had participated on DATE “ in the physical extermination ( killing ) of inhabitants of GPE who belonged to separate political group ( atskira politinė grupė ) , participants in the resistance to the NORP occupational power , that is to say , [ the applicant ] took part in genocide ” .

ORG noted that LAW ” provided for the possibility of applying criminal liability for genocide retroactively .

The Kaunas Regional Court convicted the applicant of genocide under LAW ( see paragraph CARDINAL below ) and sentenced him to CARDINAL years’ imprisonment . The applicant was granted a suspension of his sentence on health grounds .

ORG was also convicted of being an accessory to genocide under the same provision of LAW . She was sentenced to DATE of imprisonment , suspended on health grounds .

The trial court also granted a civil claim by the injured party , PERSON , who was the daughter of PERSON and the niece of PERSON , but reserved the question of the amount of damages for separate civil proceedings .

Both the applicant and ORG appealed against their convictions .

On DATE ORG upheld the convictions and held that the trial court ’s verdict had been lawful and well - founded . The appellate court indicated that the trial court had not concluded that the applicant had personally shot one of the partisans . In fact , the applicant had been sentenced only for taking part in the operation to eradicate the partisans as representatives of a political group . The applicant himself acknowledged , and it had been proven by the ORG statements and documents , that he had taken an active part in the impugned operation , that he had been responsible for ORG , who had shown the NORP authorities the partisans’ hiding place , that he had been CARDINAL of the officers who had surrounded the bunker , and that he had stayed with GPE until the end of the operation . In passing sentence , ORG observed that the applicant , as an operational officer of the ORG district ORG who had worked voluntarily for the occupying authority ( ORG ) “ had clearly known that the goal of that institution was to physically exterminate the NORP partisans , as part of the NORP population ( tikrai žinojo , ORG šios įstaigos tikslas yra NORP partizanų , PERSON gyventojų dalies , fiziškas sunaikinimas ) ” . Conscious of that fact , the applicant , together with other participants in the operation , had taken part in person in the killing of the partisan brothers PERSON and A.A. Likewise , GPE , as an ORG agent , also understood the goals of that organisation and by providing it with information about the partisans’ whereabouts and by showing ORG the partisans’ bunker , had understood that the brothers would be exterminated . Accordingly , both the applicant and ORG had acted with direct intent ( tiesioginė tyčia ) . Lastly , ORG found that at the time of the criminal proceedings against him the applicant had still been of the view that the NORP authorities’ actions against the NORP partisans were lawful .

The appellate court dismissed the argument by the applicant that the definition of genocide under NORP law , pursuant to LAW , contradicted the definition enshrined in LAW DATE LAW ( hereinafter referred to as “ the LAW ” ) . ORG noted the trial court ’s conclusion that the brothers PERSON and PERSON had been exterminated for belonging to a “ political group ” . Whilst admitting that the definition of the crime of genocide in LAW also included social and political groups , and was therefore wider than that established by LAW , the appellate court found that the addition of those groups was “ reasonable and in line with reality ” . LAW did not contain specific provisions to the effect that the concept of genocide could be interpreted widely ; however , neither did LAW prohibit such an interpretation . The concept of genocide had been expanded in ORG of other countries . The appellate court further explained that “ political group means people connected by common political views and beliefs and the goal to physically eradicate such a group also means genocide , because this has an intention to eradicate part of the people ( politinė grupė DATE tai žmonės , susiję bendromis politinėmis pažiūromis ir įsitikinimais , ir siekimas tokią grupę fiziškai sunaikinti taip pat reiškia genocidą , nes siekiama sunaikinti dalį žmonių ) ” . The court emphasised that :

“ the attribution of the NORP partisans , that is to say , participants in armed resistance to occupational power , to a particular “ political ” group , as was done in the trial court ’s verdict , in essence was only relative / conditional and not very precise . The members of this group had at the same time been representatives of the NORP nation , that is , the national group . The NORP genocide was carried out precisely on the criteria of the inhabitants’ nationality - ethnicity . It follows that NORP partisans could be attributed not only to political , but also to national and ethnic groups , that is to say , to the groups listed in LAW . ”

ORG dismissed the applicant ’s and ORG contention that their actions were not genocide because at the time of their deaths the brothers PERSON and PERSON had not been partisans and thus could not have been considered as belonging to “ a political , social or other group ” :

“ ... The complaints of the convicted PERSON ORG and ORG also contain allegations that during the war the brothers PERSON and PERSON had collaborated with the NORP occupying forces and had committed crimes . Besides , in DATE they had deserted from the partisan squad and afterwards did not keep in touch with other partisans . Therefore , in the appellants’ view , PERSON and PERSON could not have been considered members of any political , social or other group , and actions against them could not have been considered as acts of genocide . ORG is of the view that these arguments have been reasonably rejected by th[is ] court and have already been addressed in the judgment of conviction . Both PERSON ORG and GPE mention certificate no . DATE of ORG , dated DATE . The certificate indicates that the ORG archive contains a criminal case on J.A. , and that in the indictment of that case it is written that , when GPE occupied GPE , J.A. joined the armed squad of white partisans ; he carried weapons and took part in arrests , detention and transportation of active NORP party members and NORP . Besides , he conducted anti - NORP agitation and made terrorist threats against communists , which means that he has committed the crime provided for in Article CARDINALa of the Criminal Code of the Russian NORP Federative Socialist Republic [ counter - revolutionary crime and treason of the motherland ] . On CARDINAL May CARDINAL J.A. escaped from prison and joined the partisan squad .

As regards PERSON , the certificate indicates that during the NORP occupation he served in the NORP police , and in DATE he began living as an outlaw , joining the armed nationalist partisans’ unit . It is also indicated that in DATE J.A. and PERSON left the partisan unit and went into hiding alone : they did not keep in touch with other partisans , and by order of the commander of the PERSON partisan unit were considered deserters . In respect of J.A. the same is indicated in the indictment of DATE drawn up by the [ ORG ] . The specific acts that ORG was accused of were not detailed . Assessing the above documents , it appears that they contain no data about the ORG involvement in particular crimes against humanity . Moreover , from the charges against J.A. it is more likely that he had been accused primarily of activity against the [ GPE ] occupying forces themselves . There are no data in the case file about any involvement by the brothers in other criminal acts . Even in ORG documents it is indicated that from DATE J.A. and PERSON were hiding “ without committing robberies , and they did not belong to any [ criminal ] gang ” . The Genocide and Resistance Research Centre ’s letter “ Resistance activity by J.A. and PERSON ” indicates that DATE they belonged to partisan unit no . CARDINAL ... According to data from the ORG MGB , in DATE [ J.A. and PERSON ] still belonged to partisan unit no . DATE ... Afterwards they left the unit and took no further part in active partisan actions .

In the ORG ’s view , the information given does not indicate that until their liquidation J.A. and PERSON could not have been considered NORP partisans . In the judgment of conviction it is rightly noted that during the relevant period partisans had already been forced to fight in small groups to avoid extermination . Even in the ORG files there is an indication that in DATE other partisans were looking for an opportunity to meet PERSON and PERSON in order to form a single squad . Therefore the ORG decided to spread the rumour that ORG and PERSON were ORG agents . Particular plans to discredit PERSON and PERSON are apparent from the plan of CARDINAL DATE confirmed by the head of the ORG board of GPE ... FAC testified that in DATE she met partisans PERSON and PERSON and supplied them with food . In addition , J.A. and PERSON gave her a certificate confirming that she was a supporter of the partisans . She has kept that certificate to DATE .

On DATE ORG cleared ORG name in respect of crimes attributed to him in the indictment of DATE . The prosecutor indicated that from DATE to DATE J.A. was unlawfully imprisoned . In DATE and DATE the Lithuanian Genocide and Resistance Research Centre posthumously granted J.A. and PERSON volunteer fighter ( kario savanorio ) certificates . The fact that the ORG itself had considered J.A. and PERSON to be partisans is clear from the report of DATE , in which the head of the PERSON MGB informed the ORG Minister of the Interior that measures had been adopted to ascertain the hiding place of [ J.A. and PERSON ] and liquidate them . The ORG district ORG was to take measures for speedier liquidation of [ J.A. and PERSON ] . All this served to prove that when putting those plans into action J.A. and PERSON had been killed as participants in the armed resistance . ”

On DATE ORG , in cassation proceedings , upheld the conviction of the applicant and GPE As concerns the concept of genocide , the court held :

“ Both of those convicted argue that the concept of genocide , as established in LAW , is broader than the one established in LAW , thus not corresponding to the norms of international law . This argument must be dismissed .

Indeed , LAW does provide for a broader concept ( platesnė nusikaltimo sudėtis ) of the crime of genocide than that in LAW . According to LAW , genocide also comprises actions aimed at the physical eradication of some or all of the members of a social or political group . LAW does not mention such groups .

By acceding to the [ Genocide ] Convention , GPE acquired the obligation to ensure that its norms were applied on its territory . Accordingly , by acceding to the [ Genocide ] Convention GPE acquired the obligation to punish actions aimed at the total or partial destruction of a national , ethnic , racial or religious group , and to prevent such actions . Acceding to the [ Genocide ] Convention does not deprive a State of the right to define actions which are crimes , and to prohibit them ( apibrėžti veikas , kurios yra nusikaltimai , ir jas uždrausti ) . This is even truer because LAW [ above ] Convention provides that the Contracting Parties undertake to enact , in accordance with their respective Constitutions , the necessary legislation to give effect to the provisions of the LAW and to provide penalties for those guilty of genocide or any of the other acts enumerated in LAW . In GPE , this provision has been put into force by enactment of LAW DATE “ On Responsibility for Genocide of Inhabitants of GPE ” . The concept of genocide , as established in LAW that law , corresponded to the concept of genocide established in LAW . At the same time , when joining the LAW , in LAW On Responsibility for Genocide of Inhabitants of GPE ” the ORG established that killings and torture of NORP people and their deportations during DATE under NORP and GPE occupation and annexation corresponded to the characteristics of the crime of genocide as established by the norms of international law . The DATE amendments to LAW established the elements of the crime of genocide ( apibrėžta genocido nusikaltimo sudėtis ) , and included in them acts aimed at physical extermination of some or all of the members of a social or political group . This characteristic of the crime of genocide remained in LAW . It is clear that adding acts aimed at the physical extermination of some or all of the members of a social or political group to the definition of the crime of genocide amounts to nothing more than execution of the legal norms of LAW DATE “ On Responsibility for Genocide of Inhabitants of GPE ” . It follows that the doubts by the applicant and GPE about the interpretation of the concept of the crime of genocide are not founded . ”

ORG noted that the applicant and ORG had been convicted of involvement in the physical extermination of a part the inhabitants of GPE , who belonged to a separate political group , that is NORP partisans DATE members of the resistance to the NORP occupation power ( nuteisti MONEY NORP gyventojų dalį , priklausiusią atskirai politinei grupei , t.y . PERSON partizanams – pasipriešinimo sovietų okupacinei valdžiai dalyviams ) ” . The court dismissed arguments by the applicant and GPE that the brothers PERSON and PERSON had deserted from the partisans and at the time of their death they therefore no longer belonged to the partisans’ political group . That argument had been raised both before the trial and appellate courts and had been dismissed by them for sound and clear reasons .

ORG observed that in DATE the “ nation ’s armed resistance – the partisan war DATE against GPE occupying army and structures of occupying regime was underway in GPE ” . It further pointed out that under the PERSON on the Status of Participants in Resistance against the Occupations of DATE , enacted on DATE , the partisans who fought against the occupation had been declared to be volunteer - fighters . In DATE and DATE the Lithuanian Genocide and Resistance Research Centre granted volunteer - fighter status to LAW and PERSON , which meant that they had met the condition contained in that PERSON that such status was not to be granted to individuals who had committed crimes against humanity or had killed civilians .

ORG also dismissed the applicant ’s argument that he had not committed any act causing the death of the CARDINAL partisans :

“ The trial court has concluded that PERSON ORG took part in the killing of NORP partisans J.A. and PERSON : he surrounded the bunker with other ORG officers and attacked the bunker ; during the attack J.A. and PERSON were shot and killed . The trial court ’s verdict does not state that PERSON himself killed any of the partisans , although data to that effect exists in the case file [ DATE report by the head of the ORG district ORG ) .

Participation in killing people who belong to a political group is CARDINAL of the objective elements ( vienas iš nusikaltimo sudėties objektyviosios pusės požymių ) of the crime of genocide listed in LAW . Involvement in the killing of members of the groups enumerated in LAW means not only committing acts causing loss of life ; it also means setting up conditions ( sudarymas sąlygų ) so that the killings happen . It has been established that PERSON , as an ORG officer , together with an ORG subsection chief , took part in preparations for the operation to exterminate J.A. and PERSON ; PERSON was armed , and during the operation he was responsible for the ORG agent [ GPE ] , who had located the partisans’ bunker ; V. ORG stayed with GPE until the end of the operation . PERSON NORP himself acknowledges those actions . Having taken the above into account , ORG arrived at the reasonable conclusion that PERSON ORG had played an active role in the operation of extermination of the partisans J.A. and PERSON Even though it has not been established that V. NORP killed either of the partisans himself , the actions he took when preparing the operation and at the time of the operation correspond to the objective element of the crime of genocide , as established in LAW involvement in killing people who belong to a political group .

The actions of V. ORG also correspond to the subjective element of genocide – direct intent ( tiesioginė tyčia ) : PERSON ORG , when taking those actions , had known the goal of GPE – to eradicate all NORP partisans . He knew that the brothers PERSON and PERSON were partisans , and understood that during the operation they would be killed or arrested and then tortured , tried as “ traitors to the homeland ” and [ possibly ] sentenced to death , and [ V. ORG ] wished that to happen . ”

On DATE M.B. brought civil proceedings , claiming CARDINAL NORP litai ( ORG , MONEY ( ORG ) ) from the applicant and GPE , to be paid by them jointly . The plaintiff noted that one of the partisans who had been killed , PERSON , was her father , and the other partisan , PERSON , was her uncle . At the time of their death she was DATE . Her father ’s death had left her an orphan . Because of the applicant ’s actions she and her remaining family members had sustained enormous mental suffering , depression , humiliation , and loss of reputation ; her opportunities to communicate with others had been reduced and she had had to hide and constantly change her place of residence . PERSON argued that she continued to feel the repercussions of the crime up to the present time , because the applicant and PERSON still refused to tell her where her father was buried .

On DATE ORG dismissed the claim . It noted that GPE had already paid PERSON the sum of LTL CARDINAL as CARDINAL - off compensation payable to those whose families had suffered under the DATE - CARDINAL occupation ( see paragraph DATE below ) . It followed that the ORG had already compensated for PERSON ’s suffering caused by the loss of her family members .

By a ruling of CARDINAL June DATE ORG overturned the above decision and found that the applicant and GPE were to pay a sum of LTL CARDINAL for the damage their criminal actions had caused PERSON The court also emphasised that PERSON could not have applied for damages in NORP times , when GPE was under occupation , that is , during the period when the applicant and GPE had committed the crimes “ against the NORP partisans’ battles for the freedom and independence of ORG ( nukreipti prieš NORP partizanų kovas už NORP valstybės laisvę ir nepriklausomybę ) ” . It found that the loss of her family member and a close relative had caused PERSON serious suffering and emotional depression . Furthermore , the court emphasised that “ it had to be taken into consideration that the criminal acts were committed on a massive scale and in essence were directed not against particular individuals , but against everyone who had fought for the independence of GPE ” . Given the applicant ’s and GPE ’s serious health problems and the fact that considerable time had elapsed since the crimes were committed , the appellate court awarded PERSON the sum of LTL CARDINAL in compensation for non - pecuniary damage , to be paid jointly by both individuals who had been found guilty of genocide .

By a ruling of CARDINAL DATE the enlarged chamber of ORG upheld the appellate court ’s decision , but reduced the sum to be paid jointly ( solidariai ) by the applicant and M.Ž. to LTL CARDINAL,CARDINAL ( approximately LAW ) . The court observed , inter alia , that the applicant and GPE had committed the crime of genocide when acting together with officers of the GPE district ORG and NORP soldiers . Accordingly , it was necessary not to impose a disproportionate burden on the applicant and GPE Moreover , “ crimes against humanity had the characteristic that they were directed against many people , that is to say the perpetrator caused harm to many victims ” , which also had to be taken into account when adjudging the damages to be paid to each of the victims . Should the court grant too large a sum of money , it could complicate the execution of subsequent court decisions if not all the victims were known or should they come forward in future .

After ORG ruling of DATE ( see paragraphs CARDINAL - CARDINAL below ) , by a decision of CARDINAL DATE ORG decided to initiate a process under LAW on account of newly discovered circumstances . ORG noted that the trial court had found the applicant and GPE guilty of genocide of a political group . The conviction had been upheld by appellate and cassation courts . ORG decision states that , taking into consideration the conclusions set out in ORG ruling to the effect that retroactive prosecution for genocide of persons belonging to a political or social group was in breach of the principle of the rule of law , it had to be ascertained whether the applicant ( and his co - accused GPE ) were to be considered innocent , guilty of genocide or , as another alternative , whether they might have committed some other criminal activity . A prosecutor from ORG was appointed to examine those newly discovered circumstances .

By a final decision of CARDINAL DATE the prosecutor held that ORG ruling of DATE constituted an interpretation of a legal norm and not a newly discovered factual circumstance ( “ another circumstance ” within the meaning of LAW ( CARDINAL ) of LAW ) . Consequently , it could not be the basis for requesting ORG to re - open the applicant ’s criminal case . Accordingly , this constituted a legal impediment to an application to ORG to re - open the criminal procedure in the applicant ’s case .


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

The applicant was born in DATE and lives in GPE .

The applicant served his prison sentence in the closed section of GPE prison in the period between CARDINAL DATE and DATE . From CARDINAL DATE to DATE he was held in cell CARDINAL ( third floor ) , which measured QUANTITY ( including a separate QUANTITY sanitary facility ) and contained CARDINAL sleeping places . From DATE to CARDINAL DATE and from DATE to CARDINAL DATE he was held in cell CARDINAL ( second floor ) , which measured QUANTITY ( including a separate QUANTITY sanitary facility ) and contained CARDINAL sleeping places . From DATE to CARDINAL DATE he was held in cell CARDINAL ( second floor ) , which measured QUANTITY ( including a separate QUANTITY sanitary facility ) and contained CARDINAL sleeping places . According to the applicant , CARDINAL prisoners were being held in each of the cells during his detention . The Government submitted that in cell CARDINAL the numbers varied CARDINAL , in cell CARDINAL the applicant was held alone and in cell CARDINAL prisoners were held .

During his imprisonment the applicant had CARDINAL consultations with a general practitioner and CARDINAL dental appointment . He did not ask for psychological or psychiatric treatment .

As regards the general characteristics of the cells , material conditions inside the cells , sanitary conditions and health care , see the judgment in ORG and Others v. GPE , nos . CARDINAL/CARDINAL , CARDINAL/CARDINAL and GPE , § § CARDINAL to CARDINAL , DATE .

As to the out - of - cell time in the closed section , the ORG found in the aforementioned judgment that sentenced prisoners in the closed section of the prison were locked up in their cells and were only able to leave them if they applied for certain activities , most of which were to take place in the recreation room . There was , however , CARDINAL ORG - metre recreation room per floor , which was to be used by CARDINAL inmates at most ( NORP and Others § DATE ) .

From DATE to CARDINAL DATE the applicant was placed under a stricter regime as he had physically attacked another prisoner . During that time he could spend TIME per day outside his room during recreation time , he had TIME for visits per week and telephone contacts twice a week . He was not allowed to use a multipurpose hall and he received his meals in his cell .

As regards the cell temperature , the data provided by the Government showed that the average temperature in the cells in TIME ( CARDINAL- TIME ) in DATE and DATE had been approximately CARDINAL , exceeding CARDINAL on DATE .


CASE OF DUMITRESCU AND OTHERS v. ROMANIA

Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)

Marko Bošnjak;Vincent A. De Gaetano;Georges Ravarani

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

The applicants complained of the inadequate conditions of their detention .


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-3-d - Examination of witnesses)

Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström

The applicant was born in DATE and is detained in GPE .

On DATE the applicant was arrested on suspicion of membership of an illegal organisation , namely the ORG ( ORG ) . The following day , on DATE , he was questioned by the gendarmerie , at which time he was reminded of his rights , including the right to benefit from legal assistance . He refused the assistance of a lawyer and gave a statement of CARDINAL pages in length in which he admitted his membership of the ORG and gave detailed information about the organisation and its members . According to transcripts of that statement , the applicant read its content and signed every page of it .

On DATE the applicant was brought before the NORP public prosecutor and he was again reminded of his right to benefit from legal assistance . He indicated that he did not wish to be assigned a lawyer and that he would make a statement without assistance . He confirmed his membership of the ORG and his support for that illegal organisation , however maintaining that he had never been involved in an armed operation . The applicant was placed in detention pending trial on DATE .

On DATE the ORG public prosecutor filed an indictment with ORG , 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 . The public prosecutor claimed that the applicant :

- had exploded a remote - controlled land mine in GPE in DATE that had caused the injury of CARDINAL soldier ,

- had exploded a time bomb in GPE on DATE that had caused the injury of CARDINAL soldiers .

In its assessment report ( tensip zaptı ) dated DATE ORG ordered a copy of the police statements of D.T. , GPE , GPE , GPE , PERSON and GPE The trial court further ordered that the whereabouts of D.T. be ascertained .

M.A. was tried in another set of criminal proceedings concerning the same organisation . On DATE M.A. lodged an application to benefit from the Reintegration of Offenders into Society Act ( Law no . CARDINAL ) , which had come into force on DATE .

On DATE , at the first hearing , the applicant gave evidence in the presence of his lawyer and accepted the contents of his police statement . In other words , the applicant once again admitted his membership of the ORG while insisting that he had not been involved in any armed activity . He further stated that his statement had not been read back to him by the police and asked the trial court not to take it into consideration in case it had any incriminatory remarks in respect of himself or third persons in so far as they concerned participation in armed activities . When asked about his statement before the public prosecutor , the applicant essentially confirmed it , whilst insisting that he had not given any statement concerning the attacks in GPE , a city in the east of GPE , and adding that he had signed it without reading it . Lastly , the applicant stated that he had received training in bomb - making and that he had been planning to carry out bomb attacks in major cities in accordance with the instructions of the ORG . His lawyer submitted that he had nothing to add to the applicant ’s statements .

During the same hearing the trial court questioned several witnesses , namely GPE , ORG testified that he knew the applicant but that they had not carried out any armed attack together . ORG stated that he had not known the applicant ’s real name , but he had known him as “ GPE . M.A. further testified that he had no knowledge of the applicant ’s position and activities within the illegal organisation . PERSON testified that he did not know the applicant .

At a hearing on DATE the trial court noted that D.T. was in FAC and it issued a letter of request to ORG , requesting that the latter obtain his statements .

On DATE D.T. ’s statement was taken by ORG , pursuant to the letter of request by the trial court . According to the transcript of the hearing at ORG , D.T. was detained in GPE E - type Prison at the time his statement was taken . D.T. stated that he had known the applicant as “ GPE ” and that he had knowledge of the attack in GPE , adding that he had heard such information from the member with the code name “ GPE ” .

On DATE the applicant asked the trial court to hear evidence from D.T. in person . The trial court rejected this request on the basis that hearing D.T. ’s testimony in person would not contribute to its assessment since his statement given before another court had been considered sufficient for a conviction .

On DATE the ORG found the applicant guilty pursuant to LAW and sentenced him to life imprisonment . The court took account of the variety of evidence and witness statements , including those of D.T. , which had been taken by ORG at the trial court ’s request . The relevant parts of the trial court ’s reasoned judgment read as follows :