The application was lodged with the ORG by a mother , PERSON , on behalf of her CARDINAL children PERSON , PERSON , PERSON and PERSON . PERSON , born DATE , is a NORP national . Her CARDINAL children were born in DATE , DATE and DATE . The applicants currently live in GPE , GPE .

In DATE , PERSON married PERSON , a NORP national and went to live with him in GPE with PERSON , her daughter by a first marriage . The children PERSON , PERSON and PERSON were born into her marriage to O.

In DATE , PERSON and all QUANTITY children moved out of the family home and went to live in a women ’s refuge .

On DATE , ORG obtained a court order granting him temporary custody of his CARDINAL children , who thereupon returned to him . O. and his parents cared for the children . PERSON saw them on a regular basis .

On DATE , ORG , in proceedings before a single judge , granted PERSON sole custody of PERSON , PERSON and PERSON on a permanent basis . It granted ORG access commencing on CARDINAL DATE and continuing on alternating DATE thereafter , from DATE to CARDINAL:CARDINAL on DATE . For DATE , ORG declared that ORG was to have the children from TIME on DATE to TIME on DATE , while PERSON was to have them from DATE . In succeeding DATE , the access on DATE was to be alternated . The children were to pass CARDINAL of their GPE holidays with the custodial parent and the other CARDINAL with the access parent . Notwithstanding the DATE access provided , O. was to have access on Father ’s Day from TIME . PERSON was to have the same access time on DATE . During DATE , each parent was to have DATE of access incorporating and not in addition to the regular weekend access . O. was to have such other and further access as the parties would agree to .

ORG ordered that the paternal grandparents be given access to the children during the father ’s access periods . In addition , they were to have access on DATE as agreed between themselves and PERSON .

Given that the maternal grandparents lived in GPE , ORG ruled that PERSON should be at liberty , on DATE notice , to take the children to GPE for visits , not to exceed DATE in duration .

It also ruled that PERSON , PERSON and PERSON should otherwise remain in GPE , except for day trips to GPE or other GPE of GPE , unless prior written agreement were obtained .

ORG ordered PERSON to execute an irrevocable undertaking to submit to the jurisdiction of the courts of GPE and not to remove the children for periods beyond those provided for in the court order . It also ordered her to undertake in writing not to apply for NORP passports for them until they were of an age to make a personal decision on citizenship . PERSON was granted exclusive possession of the matrimonial home .

In his reasoning , the single judge noted that PERSON seemed to be better capable of raising the children than O. , whom the judge portrayed as unreliable and whose credibility seemed to have been undermined by implausible and untrue allegations before the court . The judge was convinced that ORG would not be able to care properly for his children without the continued intervention of his parents . He stressed that the access rights granted to O. were minimum rights that could be enlarged following further discussion and negotiation between the parties .

PERSON never executed the undertakings contained in the court decision .

On DATE , PERSON and all QUANTITY children left GPE for a CARDINAL GPE stay in GPE after having obtained O. ’s consent . However , once DATE had elapsed , they did not return to GPE .

On DATE , PERSON filed an action for divorce before ORG , sitting in family matters , and requested sole custody of PERSON , PERSON and PERSON .

On DATE , ORG sentenced her to CARDINAL days’ imprisonment for acting in contempt of court . Revoking its decision of DATE , it granted NORP sole custody of his children .

On DATE , ORG rejected O. ’s request to return PERSON , PERSON and PERSON to GPE under the auspices of LAW on the Civil Aspects of International Child Abduction ( hereafter LAW ) . It found that as PERSON had had sole custody of the children both at the time when they had left GPE , and at the time when she had refused to return , LAW had not been violated . ORG also observed that the applicability of LAW to situations where a parent ’s custody right was limited by special conditions was legally controversial . In any case , ORG had not been in possession of custody rights at the relevant time and had not complained of a violation of his rights to access .

On DATE , ORG issued a “ certificate of wrongness ” wherein it found that the removal and subsequent retention of the children PERSON , PERSON and PERSON from GPE , without returning them after a DATE visit to GPE , was a wrongful removal and retention within the meaning of LAW .

Following O. ’s appeal , appeals proceedings were initiated before ORG , in the course of which PERSON and PERSON were heard . ORG ordered the preparation of a psychological expert opinion in order to find out whether the children themselves were opposed to returning to GPE or whether their refusal was based on their mother ’s influence . The expert was also asked to assess whether the CARDINAL children had attained a degree of maturity that would allow them to realise the consequences of their decision .

In the expert opinion dated DATE , the expert found that PERSON and PERSON ’s refusal to return to their father derived from the tensions between their parents . The main reason for their refusal to return lay in the negative experiences with their father which dated back to the time when they had been in contact with him . Although their hostile attitude towards their father was partially based on their mother ’s tales of past events , it was mostly a consequence of the children ’s own memories which made them fear their father . Regarding their degree of maturity , the expert found that both children were able to give reasons for their decision that corresponded to their age .

On DATE , ORG revoked ORG decision and ordered PERSON to return PERSON , PERSON and PERSON to GPE by DATE . In the event that she should refuse to comply with this order , ORG authorised the court ’s bailiff to return the children to their father . The bailiff was authorised to use force if necessary in order to overcome LOC resistance , to search her apartment and to ensure the children ’s removal .

In its decision , ORG endorsed ORG “ certificate of wrongness ” of DATE . Based on the expert opinion , it did not consider that returning the children to GPE would be contrary to their best interests . In particular , nothing suggested that there was “ a grave risk that returning them would expose them to physical or psychological harm or place them in an intolerable situation ” within the meaning of LAW . ORG noted that PERSON had not managed to establish that ORG had sexually harassed either PERSON or PERSON . Although it believed the children ’s allegations that he had often applied inappropriate methods when punishing them in the past , ORG did not consider that this meant that they would be in danger of suffering physical or psychological harm if they returned to GPE . PERSON allegations that he had often beaten her and the children with objects were considered unsubstantiated . ORG failed to comprehend why PERSON had not trusted the NORP authorities or courts to protect her and the children from her husband ’s violent actions .

ORG also did not consider that PERSON and PERSON ’s refusal to return to their father could prevent them from going back to GPE . Based on the expert report , it found that with DATE they had not yet attained an age and degree of maturity at which it would be appropriate to take account of their views under LAW . According to ORG , nothing suggested that PERSON and PERSON were particularly mature for their age . Given the fact that they were greatly influenced by their mother and by the tensions between their parents , ORG did not attach much weight to the children ’s objections to being returned to GPE .

It showed itself aware of the difficulties a removal back to GPE would occasion for the children . From a legal point of view , however , this alone could not suffice to prevent their return , as otherwise any parent wrongfully removing a child could , by delaying the child ’s return , prevent such a return from ever taking place .

On DATE , ORG refused to entertain the complaint lodged by PERSON on behalf of PERSON , PERSON and PERSON .

On DATE , following ORG ’s request , ORG issued a special order to execute the decision of DATE , under the condition that NORP request ORG to refrain from executing the sentence issued against PERSON for contempt of court . According to ORG , this was necessary to ensure that PERSON could accompany the children to GPE , as it considered a separation from their mother at this stage to be detrimental to their best interests . It obliged PERSON to submit propositions regarding a financially secure accommodation for PERSON and the children , as well as alimony payments for all of them . He was also held to submit financial securities for the payment of their plane tickets .

In order to stop the imminent execution of the court decision of CARDINAL DATE , PERSON requested legal aid with a view to declaring the execution of this decision inadmissible .

On DATE , ORG rejected her request for legal aid , finding that her claim had no prospect of success . It found that nothing suggested that ORG had deliberately misled ORG , thereby inducing it to decide in his favour . In this context , ORG referred to the certificate of wrongness issued by ORG of DATE .

ORG did not follow LOC arguments that the aim of LAW could no longer be reached due to the lapse of time since . It noted that she herself had delayed the execution proceedings by submitting requests and motions to the courts . Moreover , PERSON had agreed to return to GPE with the children under certain conditions . ORG noted that on DATE , ORG in GPE had agreed to withdraw all criminal charges accusing PERSON of child abduction upon confirmation of the competent police authorities in GPE that they had arrived in GPE . PERSON was now therefore at liberty to enter GPE .

On DATE , ORG ordered the court bailiff to execute the decision of DATE .

On DATE , the bailiff , accompanied by the police , CARDINAL representatives of the local ORG as well as O. , his parents and his lawyer , attempted to remove the children from LOC home . Following the children ’s explicit refusal to accompany him , the court bailiff decided not to pursue the enforcement measure .

On DATE , ORG rejected O. ’s request that , in order to implement the above decision , the court bailiff be vested with the right to use force against the children or to permit O. to use such force , should the children persist in their refusal to leave their mother ’s home . Given the danger that such an action could pose to the children ’s well - being , ORG did not wish to grant this request without consulting a psychological expert .

On DATE , following ORG ’s appeal , ORG vested the court bailiff with the right to use force against the children or to let third persons of his choice use such force , in order to ensure the execution of the court order of DATE . It ordered the local ORG to attend the execution and to assist the court bailiff if appropriate and necessary .

ORG found that PERSON had not submitted any new facts that would allow it to deviate from its decision of DATE . In particular , the argument based on the amount of time that the children had already spent living in GPE did not lead to a different assessment of the situation , for otherwise any illegal child abduction could evolve into a permanent illegal situation , merely due to the passing of time .

ORG noted that no special psychological education and experience were needed to realise that in general , children will tend to oppose any changes in their living conditions , in particular if such changes are initiated by a parent with whom they have had no contact for a long time and who is thus considered a stranger . According to ORG , the children ’s refusal to return to GPE , insofar as it was not a result of their mother ’s influence , was mostly due to their fear of change and of an unknown future . It did not see their refusal as an indication that a return to their father by force would cause traumatic disturbances to their future development , thereby endangering their best interests . ORG assumed that the children would quickly recover once they had returned to GPE , even if their return was brought about by force .

It did not consider that a less severe measure , such as ordering PERSON to pay a fine , would be effective , as only the children ’s removal from LOC home , if necessary by force , would ensure their safe return to GPE .

On DATE , ORG refused to entertain the constitutional complaint of PERSON , PERSON and PERSON , in which they had complained about ORG decision of DATE to vest the bailiff with the right to use force against PERSON , PERSON and PERSON or to let third persons of his choice use such force , in order to ensure the execution of the court order on their return to GPE .

Also on DATE , ORG , following O. ’s request , issued a new court order in which it ordered the bailiff to execute ORG order of DATE , taking into account the decision of DATE . It vested the court bailiff with the right to search PERSON premises and , if necessary , request aid from the police . The competent ORG was also held to assist the execution proceedings .

Article CARDINAL

“ The objects of the present Convention are :

( a ) to secure the prompt return of children wrongfully removed to or retained in any ORG ; and

( b ) to ensure that rights of custody and of access under the law of CARDINAL ORG are effectively respected in GPE . ”

Article CARDINAL

“ Contracting States shall take all appropriate measures to secure within their territories the implementation of the objects of the Convention . For this purpose they shall use the most expeditious procedures available . ”

Article CARDINAL

“ The removal or the retention of a child is to be considered wrongful where :

( a ) it is in breach of rights of custody attributed to a person , an institution or any other body , either jointly or alone , under the law of the ORG in which the child was habitually resident immediately before the removal or retention ; and

( b ) at the time of removal or retention those rights were actually exercised , either jointly or alone , or would have been so exercised but for the removal or retention . ”

The rights of custody mentioned in sub - paragraph ( a ) above may arise in particular by operation of law or by reason of a judicial or administrative decision , or by reason of an agreement having legal effect under the law of that ORG . ”

Article CARDINAL

“ For the purposes of this Convention -

( a ) “ rights of custody’ shall include rights relating to the care of the person of the child and , in particular , the right to determine the child ’s place of residence ;

( b ) “ rights of access ” shall include the right to take a child for a limited period of time to a place other than the child ’s habitual residence . ”

Article CARDINAL

“ Where a child has been wrongfully removed or retained in terms of LAW and , at the date of the commencement of the proceedings before the judicial or administrative authority of ORG where the child is , a period of DATE has elapsed from the date of the wrongful removal or retention , the authority concerned shall order the return of the child forthwith .

The judicial or administrative authority , even where the proceedings have been commenced after the expiration of DATE referred to in the preceding paragraph , shall also order the return of the child , unless it is demonstrated that the child is now settled in its new environment .

Where the judicial or administrative authority in the requested ORG has reason to believe that the child has been taken to another ORG , it may stay the proceedings or dismiss the application for the return of the child . ”


ELLIS AND SIMMS v. THE UNITED KINGDOM AND MARTIN v. THE UNITED KINGDOM

David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva

The applicants , Mr PERSON , Mr PERSON and Mr PERSON , are NORP nationals who were born in DATE , DATE and DATE respectively . Mr PERSON and Mr PERSON are currently detained at FAC , DATE , and PERSON is currently detained at ORG Prison Full GPE , GPE . PERSON and PERSON were represented before ORG , a firm of solicitors based in GPE , and Mr PERSON was represented by PERSON , a firm of solicitors also based in GPE .

On DATE PERSON was shot dead in a car in GPE . It appears that he was a member of , or had links with , a gang based in GPE called the ORG gang . Those responsible for his shooting were believed to have been members of ORG , a rival gang in GPE .

Shortly after TIME on DATE , CARDINAL young women were shot dead outside a party at ORG , a hairdressing salon in GPE . CARDINAL other young women were injured . The shots were fired from a red ORG Mondeo car , which drove off following the shooting . The red Mondeo was later abandoned and set on fire .

There was no dispute that the killings of the young women were gang - related . It was the prosecution case that the shootings were perpetrated by members of the ORG gang and were intended to target members of ORG , in revenge for the shooting of PERSON . The victims were not members of either gang and had been caught in the crossfire .

The applicants were charged , together with CARDINAL other men , B and PERSON , with CARDINAL counts of murder and CARDINAL counts of attempted murder in respect of the shootings of the CARDINAL young women . The prosecution case was that the defendants were all members of the ORG gang and had participated in a joint enterprise to kill using firearms . They alleged that the red Mondeo had been purchased in ORG on DATE by PERSON and Mr PERSON for criminal purposes and had been driven to GPE . On TIME , a member of ORG had been boasting about his gang ’s superiority in a club called PERSON ’s when PERSON was present . An announcement was made in the club that there would be an “ after party ” at Uniseven . The prosecution claimed that the defendants had decided to take the opportunity to exact their revenge and arranged the drive - by shooting intended to target members of ORG . They alleged that PERSON had been the front seat passenger of the red Mondeo , that Mr PERSON had been a rear passenger of the car and that PERSON had been at the party at ORG , had acted as a “ spotter ” in informing the car ’s occupants of events at the party and had guided in the Mondeo .

Although a number of people had witnessed the shooting , few were prepared to make statements because of a fear of retaliation against them and their families by gang members . CARDINAL witnesses came forward but were unwilling to have their identities disclosed . CARDINAL of the CARDINAL purported to be able to identify the occupants of the red Mondeo . They were given the pseudonyms “ PERSON ” and “ PERSON ” . A third witness , “ PERSON ” , claimed to have seen Mr PERSON at ORG ’s TIME . The remaining CARDINAL witnesses had been present during the shooting at Uniseven .

Information concerning the evidence and the backgrounds of the CARDINAL anonymous witnesses was disclosed to the defence .

PERSON evidence was encapsulated in his witness statement of DATE . In that statement , he said he was outside Uniseven and saw a red car driving down the road . He could see that there were CARDINAL men in the car and he knew all of them . He identified the front seat passenger of the car from which the shots were fired as Mr Ellis . He said he saw a gun in Mr Ellis’ hand . The man sitting behind Mr PERSON was , he said , Mr PERSON . He saw Mr PERSON lean over and take the gun from Mr PERSON . He identified the driver as “ PERSON ” and the other passenger as B. He then heard the sound of gunshots . He said that the men in the car were not wearing masks .

He said that he had known Mr PERSON for DATE and that he had been involved in an incident before the New Year shootings where PERSON and his cousin were shot at . PERSON stated that he had a grudge against CARDINAL of the people in the car , which was related to the shooting incident . He also said that he had known Mr PERSON for DATE , that he had seen him numerous times and that they did not get on because Mr PERSON had previously dated a niece of one of his cousins .

A number of disclosures regarding PERSON previous comments to the police and in prison , his background and his criminal antecedents were made by the prosecution to the defendants . These disclosures were taken from prison and police records . In particular , it was disclosed that PERSON had links to ORG , the younger arm of ORG . He had stated that he was wanted by the ORG gang , that there had been an attack planned on him for New Year ’s Eve CARDINAL and that he had been shot at CARDINAL times . Finally , it was disclosed that PERSON had made CARDINAL court appearances in respect of robberies .

It was also disclosed that PERSON refused to participate in an identification procedure to identify those he claimed were in the red Mondeo .

Jones’ evidence was set out in his witness statement of DATE . In his statement , he indicated that before the fatal shootings he had been at a public house and had seen Mr PERSON , Mr PERSON and PERSON standing by a red Mondeo talking . He later went to the party at the hairdresser ’s salon where he saw PERSON walk by . He claimed that TIME he saw PERSON sitting in the back of the red car , in the middle seat . It was driving slowly , and PERSON was in the front passenger seat , and Mr PERSON and Mr PERSON were in the back with PERSON . TIME the car drove by again , but the occupants had changed positions . Mr B. was leaning out of the back passenger window firing a gun . The other occupants had changed seats but PERSON was unsure who was where .

It was also disclosed that PERSON was an experienced and serious criminal who moved in the same circles as the defendants . His criminality was wider than that revealed by his antecedent history and the trial judge considered that he was plainly very knowledgeable about firearms , their availability and their price .

PERSON claimed to have seen Mr PERSON at ORG ’s at TIME on DATE . She was of good character .

Disclosures were also made about the evidence of the remaining CARDINAL anonymous witnesses and their backgrounds .

The prosecution relied on telephone call pattern evidence to show that a number of phone calls took place between the defendants at critical times in the lead up to and aftermath of the shootings . There was evidence of calls between the mobile phone of Mr PERSON and the mobile phone associated with PERSON , and between the mobile phones of Mr PERSON and PERSON PERSON , on DATE , when the Mondeo was purchased and driven to GPE . There was evidence of various calls made around QUANTITY a.m. on DATE between PERSON and the mobile phone associated with PERSON

There was also evidence of a car which was registered in the name of Mr PERSON being driven from GPE to PERSON on DATE , where the CARDINAL occupants purchased a red Mondeo . ORG footage showed the Mondeo being driven from PERSON to GPE in convoy with Mr PERSON ’s vehicle . Mr PERSON subsequently accepted that he participated in the purchase of the red Mondeo , allegedly for a friend .

The prosecution also relied on cell site evidence , which provided information on the locations from which mobile telephone calls were placed and was consistent with PERSON , PERSON , PERSON and PERSON being in the area of the killing at the material time and making the movements alleged by the prosecution . It was also consistent with PERSON and PERSON being in the area where the car was subsequently burnt out . The cell site evidence was also consistent with the prosecution allegation that PERSON Ellis’ alibi was false .

NORP The prosecution further relied on evidence of firearms residue found on Mr Ellis’ jacket .

Finally , the prosecution sought to call the CARDINAL anonymous witnesses , including PERSON and PERSON , to give oral evidence of what they saw on TIME of the shootings .

On DATE , the trial judge handed down his ruling on the requests for anonymity at a preparatory hearing . He noted at the outset that it was not disputed that the witnesses reasonably feared retribution both personally and for their families if their identities were made known . He further observed that although a number of people must have witnessed the events , PERSON and PERSON were the only CARDINAL witnesses who directly implicated some of the defendants .

The judge considered the possible support for PERSON evidence . He noted that the prosecution relied on other evidence , including mobile phone records , evidence linking some of the defendants to the purchase of the red ORG and evidence of firearms residue that had been found on a piece of clothing recovered from Mr PERSON ( see paragraphs CARDINAL above ) . He then turned to consider what had been disclosed about the anonymous witnesses , summarising the disclosures about the statements they had made and their backgrounds ( see paragraphs QUANTITY above ) . He observed that a number of public interest immunity hearings had been held and that a substantial amount of disclosure had taken place .

The judge examined the case - law of this ORG and the domestic courts on the issue of anonymous witnesses . He summarised the parties’ submissions and set out his conclusions as regards the general position in respect of anonymous witnesses .

First , he referred to the “ very real problems now encountered in persuading witnesses to come forward and go into the witness box ” . He noted that intimidation of witnesses was , or was perceived by witnesses , to be rife . He considered it self - evident that society had an interest in encouraging witnesses to come forward and protecting them if they did .

He indicated that the question whether a witness could give evidence anonymously was a matter for the exercise of the trial judge ’s discretion . The decisive feature in the exercise of that discretion was whether the ensuing trial could be fair . He noted that whether any given trial was fair was a matter of balancing the different interests involved , which he identified as the interests of society and the victims in allegations of serious crime being tried and the guilty punished , the protection of the witness and the interests of the accused in being able properly to defend himself . The trial judge considered that the defendants had a right to “ a fair administration of justice ” . However , that right was not absolute and the fact that a defendant would suffer some prejudice did not mean that a fair trial could not take place .

The trial judge further considered that a witness whose creditworthiness was in issue could give evidence anonymously , provided that proper caution was exercised , that there had been investigation of the creditworthiness of the witness and that full disclosure had been given .

As to the case - law of this ORG , the judge was of the view that the observations in PERSON v. the GPE , § DATE , DATE , Reports of Judgments and Decisions CARDINAL , to the effect that a conviction based solely or decisively on anonymous evidence could not be fair , had to be considered in the context of the NORP procedure which the ORG was then considering . In the present case , the witness would be cross - examined in front of the jury on the basis of very substantial information which had been disclosed and which enabled his account to be questioned . He observed that it was part of any assessment of the fairness of the trial to consider the trial process , and more particularly how anonymous evidence was to be given and what the jury would be told . He considered that the trial process could minimise any prejudice to the defendant because , among other things , the jury could be told to take account of the problems that the defence faced when such a witness gave evidence and that they should not hold against the defendant the giving of such evidence .

The trial judge concluded that PERSON could give evidence anonymously and that the trial would not be unfair as a result . He based his decision on the following considerations :

“ CARDINAL . First , he is a witness reasonably in fear . Objectively , if identified , his life or that of his family or friends may be in danger .

Second , he has evidence to give which is of the very greatest importance in resolving these serious criminal allegations .

Third , if not permitted to give evidence anonymously , it is likely that the prosecution will be unable to adduce his evidence .

Fourth ... there has been very extensive disclosure in his case . It permits the defendants very extensive and detailed cross - examination . The limits placed on that cross - examination and on the conduct of defence can be made clear to the jury . While it may be that disclosure of his identity ... might lead to further material for crossexamination going to credit , the present disclosure is in my view sufficient to permit the defence properly to be advanced and a fair trial to take place . Indeed , it may be argued that the defence will be in a particularly strong position without knowing the ORG identity . They have ample material for cross - examination . In addition , they have the point to make to the jury concerning the difficulties they are under .

Fifth , in addition to any attack on the NORP credibility , the defence have in any event an argument on the difficulty of any identification in the circumstances spoken to by the witness . It may well be ... I shall be obliged to give a ‘ GPE . If so , the jury will be warned of the dangers in the identification evidence and its weaknesses enumerated .

Sixth , ... I am entitled in considering this witness’ creditworthiness , to take into account such support as there apparently is for his account . ”

In respect of PERSON , the judge considered that there were questions raised in respect of his creditworthiness that put him into a different category from PERSON . He noted that there was not the extent of apparent support for his evidence which existed in the case of PERSON and , despite the fact that the disclosure given would permit a great deal of cross - examination , he concluded that it would not be safe to permit him to give evidence anonymously .

The remaining CARDINAL witnesses were also permitted to give anonymous evidence . In respect of CARDINAL of them , no objection had been made .

Finally , the judge indicated that the question of anonymity was something to be kept continually under review .

On DATE , the judge handed down a further ruling following a submission by the defendants that in the absence of a proper identification procedure by PERSON , no fair trial could take place . The defendants argued that his evidence of recognition could only be admitted if there were a proper identification procedure or if PERSON identity were disclosed .

The judge was of the view that even if the submission amounted to an attack on his previous ruling on anonymity , it was nonetheless something he had to consider . He continued :

“ CARDINAL . ... In any criminal trial fairness requires that rulings such as these , which are far from straightforward , are continually kept under review . That includes taking account of fresh submissions which may have a bearing on the trial ’s fairness . In short , if I conclude that a fair trial required disclosure of PERSON ’s identity I would review my earlier ruling . ”

He noted PERSON explanation for why he did not agree to participate in an identification procedure , namely that he wanted to do it but was afraid of the impact of picking or not picking suspects and his identity becoming known to them if he did not pick them . He analysed PERSON identification evidence , noting that he set out the basis upon which he knew the defendants , at times in considerable detail . The judge concluded :

“ In the course of my ruling on anonymity , I referred to the extensive crossexamination available to the defence in the light of the disclosure . It would still be available . Moreover , it seems to me that while cross - examination will , as is inevitable , be to some extent constrained , much can be asked . Whether he may be a fantasist can be investigated . Further , as I have indicated , what PERSON says as to the history of his relationships with the defendants can be amplified before he gives evidence ... As I indicated in my previous ruling , it does not end there . There would be a PERSON direction . The jury would know the limitations under which the defence was acting . ORG did not accept the offer of an identification procedure would be plain . My reading of the material in which he refused such a procedure may provide powerful material for cross - examination . ”

He therefore ruled PERSON evidence of recognition to be admissible , subject to the exclusion of hearsay , and considered it unnecessary to reconsider his ruling on anonymity , noting that PERSON evidence as a whole and his purported recognitions could be questioned , that there was ample cross - examination possible and that the presence of counterbalancing factors depended on each case . He reiterated the need to keep the matter under review .

A number of the defendants , including PERSON and PERSON , appealed the judge ’s ruling on anonymity . ORG handed down its judgment on DATE . It considered that the trial judge had applied his mind impeccably to the law , both in GPE and under LAW . The appeals were accordingly dismissed .

Subsequently , a number of further disclosures about PERSON were made . It was disclosed that he owed money to both gangs and that the police had made certain payments to him . The handwritten police log was disclosed as were the prison notes from institutions where PERSON had been detained , which revealed that PERSON was awaiting sentence when the police first made contact with him . As a result of the further disclosures , the defence asked the judge to review his ruling on anonymity . It was alleged that the newly - disclosed material undermined PERSON credibility and creditworthiness and suggested that his information about the shooting may have been hearsay .

On DATE the trial judge handed down a further ruling . He accepted that further disclosure had revealed more about PERSON than had been known at the time of the previous ruling . However , even at that time , PERSON gang background and his motive for lying were clear . The judge concluded that the order for anonymity should remain . He considered that PERSON credibility was not so affected that he could only give evidence if his identity were disclosed . He further noted that on the basis of what had now been disclosed the defence could mount a formidable attack on PERSON credibility . Specifically as to the concerns regarding hearsay evidence , the judge indicated that if PERSON was making any assertions on the basis of hearsay , this would become clear in cross - examination whether he was anonymous or not . He reiterated the need for careful directions to the jury in due course .

Before PERSON took the witness stand , the judge gave the jury certain directions . In particular , he advised them that the fact that PERSON was giving evidence anonymously had significant implications for the defence and restricted them in the conduct of their cases . They were not permitted to ask questions which could lead to his identification . Because they did not know who he was they could not put to him any personal reason he might have had for implicating them . Nor could they put to him any general matters going to his credibility . The jury were told that the limitations on the defence were considerable and that the jury had to make allowances for this in its assessment of PERSON evidence .

The judge , the jury , counsel and solicitors could all see and hear PERSON give evidence . They was no voice distortion as far as they were concerned , although he was “ lightly disguised ” in order to boost his confidence . Neither the defendants nor the public were able to see him and his voice was distorted for them .

Examination - in - chief of PERSON by the prosecution began on DATE . He gave evidence regarding the events of DATE . He indicated that he had seen PERSON speaking on a mobile telephone outside PERSON , that he had seen a red car arrive with CARDINAL occupants , and that CARDINAL of those occupants were Mr Ellis , Mr PERSON and PERSON was subsequently cross - examined by defence counsel , who sought to undermine his credibility and account of events .

Following the conclusion of the prosecution case , all defendants except Mr PERSON submitted to the judge that there was insufficient evidence for the jury to convict them . On DATE the trial judge handed down his ruling on the defence submission .

The judge summarised the prosecution case that there was a joint enterprise to kill using firearms . He noted that the prosecution relied both on circumstantial evidence and on the evidence of PERSON . He reviewed in detail the evidence given by PERSON . He considered it plain that Mr PERSON had lied about many matters but , in the final analysis , concluded that PERSON credibility was a matter for the jury . He observed that a substantial amount of disclosure had taken place , and that this had formed the basis of sustained and effective cross - examination . He noted :

“ ... in all PERSON was cross - examined most effectively for , as I recall , something like DATE . His credibility was severely dented ; he told many lies ; had his identity been known it is , of course , possible that further damage might have been done . But , be that as it may , sufficient damage was done to his credibility to found what was not a frivolous submission that his credibility had been destroyed to the extent that I should direct the Jury accordingly , anonymity apart . It has resulted in a document which the Jury has which effectively sets out his lies as I have indicated . ”

The judge explained that there would be a further direction to the jury in due course regarding their approach to PERSON evidence , essentially to the effect that they could not rely on that evidence alone . He continued :

“ Having regard to the features I have set out above , it seems to me , circumscribed as they would be by my directions , the Jury could place reliance upon what PERSON says . While any conviction would not then be based solely upon his evidence , I accept that one can not exclude the possibility that his evidence was decisive . However , given the other contemplated safeguards in the trial process so far , that would not seem to me contrary to LAW

He indicated that it therefore followed that unless the jury could conclude that there was independent evidence supporting PERSON and implicating a particular defendant , there could not be a case left to the jury regarding him . The judge explained that , in the circumstances , such evidence would need to be cogent ; tenuous evidence would not be enough . He considered that such evidence existed in the cases of Mr PERSON , Mr PERSON and PERSON and summarised in some detail what could be inferred by the jury from what they had heard during the evidence led at trial , including the background to the shootings , the association among Mr PERSON , Mr PERSON , PERSON and PERSON at the material time as shown by telephone records , and the involvement of Mr PERSON , PERSON and PERSON in the purchase of the vehicle used in the shootings . He further noted that firearms residue had been found on PERSON Ellis’ clothing . He concluded :

“ Putting together the different pieces of evidence I have summarised ... it does seem to me there is circumstantial evidence in the cases of PERSON , who ... does not dispute it , [ PERSON ] , PERSON and PERSON , in respect of their participation in this joint enterprise to kill . It would also be sufficient evidence of participation to enable the jury then to consider what PERSON had to say ... ”

However , the judge did not consider there to be cogent independent evidence in respect of PERSON , and accordingly directed the jury to acquit him .

In the course of the trial judge ’s summing up , he gave the jury a warning about identification evidence , highlighting the weak aspects of PERSON purported identification evidence .

He also gave the jury a number of warnings about PERSON . He directed them , first :

“ ... if you are to rely on anything said by PERSON , you must be sure he is a credible witness , someone capable of belief . If you ’re not sure of that , no amount of other evidence which is said to be consistent with his account can help . If you think he may not be someone upon whom you can place any reliance , you must ignore his evidence .

If they were satisfied that he was credible , he directed them to approach his evidence in the following way :

“ ... You must consider whether in respect of the defendant whose case you are considering there is some other evidence of that defendant ’s participation in this joint enterprise ... apart from what PERSON says . So put PERSON to CARDINAL side and consider if there is some other evidence of that defendant ’s participation . If you ’re not sure that there is such other evidence , then you must acquit that defendant . If you conclude that there is such other evidence , then you may take PERSON evidence into account in deciding whether or not you are sure of guilt , bearing in mind the first warning which I just gave you .

In other words , first you consider the circumstantial evidence . If you are sure it implicates the defendant in question in this joint enterprise , then but only then may you consider what PERSON says . Of course , if you think you can not rely on PERSON at all , then you decide guilt or innocence solely on the basis of the other evidence . You will remember that I told you that the prosecution submit that the other evidence called by them as part of their case proves the defendants Mr PERSON , [ PERSON ] and PERSON are guilty ...

The prosecution accept – again , I ’ve told you DATE that the evidence called by them would not be enough to place Mr PERSON in the Mondeo . To do that , some reliance would have to be placed on PERSON . However , the prosecution say that if you are sure that ... the alibi witness called on behalf of Mr PERSON was lying , then , taking into account that false alibi plus the other pieces of the circumstantial evidence called by the prosecution , that would be enough for you to be sure that Mr PERSON was in the Mondeo , PERSON apart . ... [ D]efence counsel disagreed with that effectively with some force .

In the case of [ B. ] , whom you acquitted on my direction , there was nothing capable of amounting to such other evidence and that ’s why I directed an acquittal . It underlines ... the importance of these directions when considering your approach to PERSON . ”

In concluding his summing up , the judge reminded the jury of how to approach PERSON evidence regarding the identities of those in the Mondeo . He emphasised that they had first to consider him a credible witness and also be satisfied that there was other evidence of the applicants’ participation in the joint enterprise before they could rely on his evidence .

On DATE Mr Ellis , Mr PERSON , PERSON and PERSON were convicted of CARDINAL counts of murder and CARDINAL counts of attempted murder in respect of the shootings of the CARDINAL young women . They were sentenced to life imprisonment in respect of the murder convictions .

The applicants appealed to ORG . Their case was heard together with an appeal in the case of NORP v. PERSON .

On DATE ORG dismissed the appeals . It began by noting that in the context of witness anonymity , CARDINAL rights protected by the Convention were engaged : DATE were closely related to the rights , among others , of witnesses ; and LAW was concerned with the protection of the defendant ’s right to a fair trial . It then went on to review the case - law of this Court on the question of anonymous witnesses , as well as decisions of the domestic court . As to the possibility of permitting the evidence of anonymous witnesses at trial , the court found :

“ CARDINAL . ... In our judgment the discretion to permit evidence to be given by witnesses whose identity may not be known to the defendant is now beyond question . The potential disadvantages to the defendant require the court to examine the application for witness anonymity with scrupulous care , to ensure that it is necessary and that the witness is indeed in genuine and justified fear of serious consequences if his true identity became known to the defendant or the defendant ’s associates . It is in any event elementary that the court should be alert to potential or actual disadvantages faced by the defendant in consequence of any anonymity ruling , and ensure that necessary and appropriate precautions are taken to ensure that the trial itself will be fair . Provided that appropriate safeguards are applied , and the judge is satisfied that a fair trial can take place , it may proceed . If not , he should not permit anonymity . If he does so , and there is a conviction , it is not to be regarded as unsafe simply because the evidence of anonymous witnesses may have been decisive . ”

As to the safeguards available in the applicants’ case , the court referred first to the discretion enjoyed by the trial judge to allow some or all witnesses to give their evidence anonymously . It observed that if the only evidence against the defendants consisted of wholly unsupported anonymous witnesses , whose evidence was demonstrably suspect , it was open to the judge to decide that the prosecution should not adduce it . Further , if the decisive evidence came from an unidentified witness who could not be cross - examined ( an anonymous absent witness ) , the judge could decide that the evidence should not be admitted . Moreover , at the end of the prosecution case the judge could decide that it would be unsafe for the evidence of the anonymous witnesses to be considered further by the jury , or indeed , that the case as a whole should be withdrawn from their consideration . Finally , the judge was obliged to give appropriate directions in his summing up , sufficient to identify the particular disadvantages under which the defence might have been labouring , and would probably suggest that the jury should consider whether there was any independent , supporting evidence , tending to confirm the credibility of the anonymous witnesses , and the incriminating evidence they had given .

Turning to the facts of the case , ORG examined the mobile phone record evidence presented at trial . It noted :

“ CARDINAL . This evidence about the use of mobile phones demonstrably belonging to the CARDINAL appellants at critical times all through the night leading up to and after the shooting , taken as a whole , and when linked with the remaining evidence , provided a formidable case against them . ”

The court also referred to the evidence of firearms residue found on PERSON Ellis’ clothing .

As regards the trial judge ’s ruling on anonymity ( see paragraphs CARDINAL above ) , the court observed that it had already been upheld by ORG in the context of an interlocutory appeal ( see paragraph CARDINAL above ) . It also noted that the judge kept his ruling under constant review and that there had been CARDINAL public interest immunity hearings during the trial itself .

In respect of the evidence given by PERSON , the court noted :

“ CARDINAL . ... He purported to identify some of those in the red Mondeo , but his evidence was not entirely consistent on the subject , and in any event , faced the major difficulty , that other witnesses had suggested identification was not practicable .

By the time PERSON gave evidence , there had been full disclosure of all the material available to the Crown . He was cross - examined for DATE , by CARDINAL leading counsel . His credibility was severely damaged . ”

The court considered that despite the various complaints made by the defendants , the cross - examination of PERSON illustrated that notwithstanding his anonymity the process could be and was extremely effective . It observed that so far as PERSON was concerned , PERSON evidence provided no more than a little confirmation of facts already independently demonstrated ; and PERSON in any event admitted that he had been at ORG TIME . It further observed that Mr PERSON had chosen not to give evidence and that Mr PERSON had given evidence and admitted his involvement in the purchase of the Mondeo and the correctness of the attribution of mobile phone numbers to him . The court continued :

“ CARDINAL . The case was summed up to the jury with meticulous care . The directions of law were accurate . Appropriate warnings were given . The evidence was closely analysed . The summing up was comprehensive , balanced and fair . ”

ORG concluded that there was no reason to doubt the integrity of the trial process or the safety of the convictions .

The court refused to certify a question on a point of law of general public importance in the applicants’ case which ought to be considered by ORG . However , it certified a question in the case of R v. PERSON and ORG handed down its judgment in that case on DATE ( see paragraphs CARDINAL below ) .

Following the ORG of Lords’ judgment in NORP v. PERSON quashing the conviction of that appellant , the applicants applied to ORG to have their convictions referred to ORG . Their applications were refused on DATE .

At the material time , the relevant factors for a trial judge considering whether to exercise his discretion to allow anonymous evidence were set out by ORG in NORP v. PERSON and PERSON ( DATE ) . First , there had to be real grounds for being fearful of the consequences if the evidence was given and the identity revealed . Second , the evidence had to be sufficiently relevant and important to make it unfair to the prosecution to compel them to proceed without it . Third , the prosecution had to satisfy the court that the creditworthiness of the witness had been fully investigated and that the results of that enquiry had been disclosed to the defence so far as was consistent with the anonymity sought . Fourth , the court had to be satisfied that no undue prejudice was caused to the defendant , “ undue ” being a necessary qualification because some prejudice was inevitable if the anonymity order was made . Finally , the court could balance the need for protection against the unfairness or appearance of unfairness in the particular case . This reasoning was largely endorsed by ORG in R ( LOC ) v. Governor of FAC ( [ DATE ] ORG CARDINAL ) .

As noted above , ORG handed down its judgment in the case of NORP v. PERSON ( [ DATE ] UKHL CARDINAL ) on DATE . The case concerned a fatal shooting at a party in GPE . PERSON admitted attending the party but claimed to have left before the shooting and denied being the gunman . CARDINAL witnesses identified Mr PERSON as the gunman but all claimed to be in fear for their lives if their identities became known . The judge allowed them to give anonymous evidence at trial . He ordered that they were to give evidence under pseudonyms , that their addresses and personal details were to be withheld from the defendant and his legal advisers , that no question could be asked of them which would permit their identification , that they were to give evidence behind a screen so that they could be seen by the judge and jury only and that their voices were to be distorted for all but the judge and jury .

ORG found that the ORG testimony was inconsistent with the long - established principle of the NORP common law that , subject to certain exceptions and statutory qualifications , the defendant in a criminal trial should be confronted by his accusers in order that he might cross - examine them and challenge their evidence . Although this ORG had not ruled that anonymous evidence was inadmissible in all circumstances , it had said that a conviction should not be based solely or to a decisive extent on anonymous statements . In any event , their Lordships considered that on the facts of the case before it , this ORG would have found a violation of LAW , as not only was the anonymous witness evidence the sole or decisive basis on which PERSON had been convicted but effective cross - examination had also been hampered .

Following the ORG of Lords’ judgment in NORP v. PERSON Anonymity ) Act DATE ( “ the CARDINAL Act ” ) was enacted as a matter of urgency to permit anonymous witness evidence at trial and to give guidance on the relevant factors to be taken into account , based on the ORG ’s case - law .

DATE . The CARDINAL Act was subsequently replaced by provisions of the Coroners and Justice Act DATE ( “ the DATE LAW ) , which now regulates the conditions under which witnesses can give evidence anonymously in criminal proceedings . Section CARDINAL(CARDINAL)-(CARDINAL ) lays down the conditions for the making of a witness anonymity order and LAW sets out a number of relevant considerations to which a court must have regard before permitting anonymous evidence , including whether evidence given by the witness might be the sole or decisive evidence implicating the defendant .


Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

Anatoly Kovler;Elisabeth Steiner;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska

The applicant was born in DATE and lives in GPE .

The applicant holds a number of premium bonds issued in DATE ( “ the DATE GPE bonds ” , облигации Государственного внутреннего выигрышного займа DATE года ) . She deposited them in DATE with ORG ( “ the Savings Bank ” – Сбербанк России ) .

NORP In DATE the GPE was dissolved . In DATE the Government of GPE acknowledged that the DATE GPE bonds held by NORP nationals were a part of its internal debt . DATE ORG proposed a settlement to the holders of the DATE GPE bonds ( “ the redemption scheme ” ) . The redemption scheme provided for conversion of the DATE GPE bonds into NORP bonds issued in DATE or , alternatively , their buy - out by ORG at a price fixed by the Government . The applicant did not react to that offer , so , according to LAW no . CARDINAL of CARDINAL DATE describing the means of the redemption scheme , her bonds were automatically acquired by ORG . The bonds were extinguished and the redemption price of the DATE GPE bonds was credited to the applicant ’s bank account .

DATE , a series of NORP laws was adopted which provided for the conversion of NORP securities , including the DATE GPE bonds , into special NORP promissory notes . In particular , on DATE the Promissory Value Act introduced the “ promissory rouble ” as the currency of special promissory notes issued by GPE . On DATE FAC set out the general approach to be taken as regards the conversion of “ promissory roubles ” into NORP roubles . The Government were mandated to devise a more detailed procedure for the conversion . Although a regulation on the conversion process was adopted by the Government in DATE ( “ Resolution no . CARDINAL ” ) , the actual conversion did not start and application of the regulation has remained suspended , by a series of resolutions , to DATE . The application of FAC was suspended from DATE to CARDINAL DATE by successive federal laws .

In DATE the applicant brought proceedings against ORG of GPE and the Savings Bank seeking damages for the loss of value of her bonds . The first judgment on the merits was rendered in DATE . On DATE , following several rounds of court proceedings , ORG of GPE dismissed her claim . She appealed .

On DATE ORG , sitting as a court of appeal , satisfied her claim in part . In particular , ORG found that the compulsory redemption of the bonds in DATE had breached the applicant ’s rights . ORG ordered that the applicant should be restored to the same position as other bondholders , whose bonds had not been subjected to compulsory redemption and had later been converted into special promissory notes of GPE . ORG acknowledged the applicant ’s right to CARDINAL special promissory notes having a total nominal value of CARDINAL “ promissory roubles ” . The court also “ acknowledged the applicant ’s right to obtain redemption of the notes from the ORG , under the conditions established by the legislation in force for the holders of special promissory notes ” .

The applicant brought supervisory review proceedings , but to no avail . In the ruling of CARDINAL DATE a judge of ORG explained that in the absence of a specific law defining the terms and conditions of the redemption of the special promissory notes , the ORG had no obligation to pay the applicant any particular amount .

NORP On DATE the applicant obtained a writ of execution against ORG in pursuance of the judgment of CARDINAL DATE . The writ was valid for DATE . However , it was not enforced . The Government claimed that the applicant had not tried to enforce the writ by serving it on ORG .

In DATE the applicant initiated several sets of court proceedings against various ORG bodies and officials , seeking damages for the lengthy non - enforcement of the judgment of DATE , complaining of the failure of the Government and of the legislature to implement LAW , and so forth . It appears that all her claims were rejected , either for want of substantive jurisdiction over the dispute , or because the courts had found her claims unsubstantiated . In particular , the applicant sued ORG for its failure to redeem the promissory notes , claiming MONEY under the heads of pecuniary and non - pecuniary damage . On DATE ORG , acting as the court of final instance , rejected her claims against ORG on the grounds that similar claims has already been examined in DATE , and , furthermore , the applicant had failed to justify the amount sought from the defendant .

For the relevant domestic law on ORG premium bonds and promissory notes of ORG , see the case of PERSON v. GPE , no . CARDINAL/CARDINAL , § § CARDINAL et seq . , DATE .


Violation of Art. 6-1;(legal certainty);Not necessary to examine P1-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings

NORP In DATE the applicant took part in emergency operations at the GPE nuclear plant . As a result he suffered from extensive exposure to radioactive emissions . The applicant underwent medical examination which established the link between his poor health and his involvement in the GPE events . He was consequently granted status of a disabled person and awarded special DATE benefits from the ORG .

Until DATE the applicant received DATE benefits in the amount of MONEY ( RUR ) . However , as from DATE ORG decreased the amount of the benefits to ORG CARDINAL,CARDINAL and as from DATE to RUR CARDINAL.CARDINAL on the grounds that the amount previously paid had been miscalculated .

Considering the decrease of the DATE benefits unlawful , in DATE the applicant , together with CARDINAL other plaintiffs , instituted proceedings against ORG .

On DATE the ORG granted the claim and found the decrease of the DATE benefits unlawful . The court awarded the applicant arrears for the period DATE and the date of the judgment in the amount of PERSON ( approximately ORG CARDINAL,CARDINAL ) and ordered ORG to make DATE payments for his benefit in the amount of RUR CARDINAL ( approximately ORG CARDINAL ) . The judgment was not appealed against and became final .

The Prosecutor of GPE brought an application for supervisory review of the judgment . The application was dated DATE . The execution proceedings were stayed until the examination of the application . The order to stay the execution proceedings , which referred to the application for supervisory review lodged by the acting Prosecutor of GPE , was dated DATE .

On DATE the Presidium of ORG granted the application . The ORG quashed the judgment of DATE and remitted the case for a fresh examination on the grounds that the first instance court miscalculated the amount of the DATE benefits .

NORP On DATE the execution proceedings were terminated due to the quashing of the judgment .

On DATE , after the new examination of the case , ORG dismissed the applicant ’s claim .

On DATE ORG upheld the judgment on appeal .

On DATE , following the applicant ’s request of CARDINAL DATE , the Acting Chairman of ORG brought an application for supervisory review of the judgments of DATE and DATE .

On DATE the Presidium of ORG of GPE granted the application . The ORG quashed the judgments of CARDINAL DATE and DATE and remitted the case for a fresh examination on the grounds that the court ’s calculation of the amount of the DATE benefits was unlawful .

On DATE the ORG stayed the proceedings concerning the applicant ’s claim until ORG pronounced on the relevant issue .

On DATE the ORG renewed the proceedings . It appears that at a certain stage the proceedings concerning the applicant ’s claim were severed from the proceedings concerning the claims of the other CARDINAL plaintiffs .

On DATE ORG quashed the judgment on appeal and remitted the case for a fresh examination .

On DATE the ORG partially granted the applicant ’s claim . The court awarded the applicant arrears in the amount of ORG ( approximately ORG CARDINAL ) and ordered ORG to make DATE payments for his benefit in the amount of RUR CARDINAL,CARDINAL.CARDINAL ( approximately ORG CARDINAL ) .

On DATE ORG varied the judgment of DATE . The court awarded the applicant arrears for the period DATE and DATE in the amount of ORG ( approximately ORG CARDINAL ) and ordered ORG to make DATE payments for his benefit in the amount of RUR CARDINAL,CARDINAL.CARDINAL ( approximately ORG MONEY ) . The court calculated the arrears for the whole period by index - linking the amount of the DATE payments to the pensioner ’s subsistence minimum set DATE by ORG of GPE .

On DATE the execution proceedings were instituted . They were closed on DATE due to full recovery of the judgment debt .

On an unspecified date the applicant applied for supervisory review of the judgments of DATE and DATE . On DATE ORG dismissed the application .

Section CARDINAL of LAW of DATE provides that a bailiff ’s order on the institution of enforcement proceedings must fix a time - limit for the defendant ’s voluntary compliance with a writ of execution . The time - limit may not exceed DATE . The bailiff must also warn the defendant that coercive action will follow , should the defendant fail to comply with the time - limit .

Under LAW of the LAW , the enforcement proceedings should be completed within DATE of the receipt of the writ of enforcement by the bailiff .

Under LAW Code of Civil Procedure , which was in force at the material time , judgments became final as follows :

“ Court judgments shall become legally binding on the expiration of the time - limit for lodging a cassation appeal if no such appeal has been lodged . If the judgment is not quashed following a cassation appeal , it shall become legally binding when the higher court delivers its decision ... ”

The only further means of recourse was the special supervisory - review procedure that enabled courts to reopen final judgments :

“ Final judgments , decisions and rulings of all NORP courts shall be amenable to supervisory review on an application lodged by the officials listed in LAW . ”

The power of officials to lodge an application ( protest ) depended on their rank and territorial jurisdiction :

“ Applications may be lodged by :

The Prosecutor General – against judgments , decisions and rulings of any court ;

The President of ORG – against rulings of the Presidium of ORG and judgments and decisions of ORG of ORG acting as a court of first instance ;

Deputy Prosecutors General DATE against judgments , decisions and rulings of any court other than rulings of the ORG of ORG ;

Vice - Presidents of ORG – against judgments and decisions of ORG of ORG acting as a court of first instance ;

ORG , Deputy Prosecutor General , the President and Vice - Presidents of ORG – against judgments , decisions and rulings of any court other than rulings of the Presidium of ORG ;

The President of ORG of an autonomous republic , regional court , city court , court of an autonomous region or court of an autonomous district , ORG of an autonomous republic , region , city , autonomous region or an autonomous district DATE against judgments and decisions of district ( city ) people ’s courts and against decisions of civil chambers of , respectively , ORG of an autonomous republic , regional court , city court , court of an autonomous region or court of an autonomous district that examined the case on appeal . ”

The power to lodge such applications was discretionary , that is to say it was solely for the official concerned to decide whether or not a particular case warranted supervisory review .

Under LAW officials listed in LAW who considered that a case deserved closer examination could , in certain circumstances , obtain the case file in order to establish whether good grounds for lodging an application existed .

Article CARDINAL of the Code empowered the relevant officials to stay the execution of the judgment , decision or ruling in question until the supervisory review proceedings had been completed .

Courts hearing applications for supervisory review had extensive jurisdiction in respect of final judgments :

“ The court that examines an application for supervisory review may :

Uphold the judgment , decision or ruling and dismiss the application ;

Quash all or part of the judgment , decision or ruling and order a fresh examination of the case at first or cassation instance ;

Quash all or part of the judgment , decision or ruling and terminate the proceedings or leave the claim undecided ;

Uphold any of the previous judgments , decisions or rulings in the case ;

Quash or vary the judgment of the court of first or cassation instance or of a court that has carried out supervisory review and deliver a new judgment without remitting the case for re - examination if substantive laws have been erroneously construed and applied . ”

The grounds for setting aside final judgments were as follows :

wrongful application or interpretation of substantive laws ;

significant breach of procedural rules which led to delivery of unlawful judgment , decision or ruling ... ”

There was no time - limit for lodging an application for supervisory review , and , in principle , such applications could be lodged at any time after a judgment had become final .


Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Volodymyr Butkevych

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . ORG ( “ the Government ” ) were represented by Mr. PERSON , their Agent .

On DATE the applicant instituted proceedings in ORG against the local welfare department challenging the refusal of the latter to increase his pension in accordance with the LAW and LAW .

On DATE ORG rejected the applicant 's claim as unsubstantiated , stating , inter alia , that the applicant 's pension had been determined correctly .

The applicant appealed against this decision , claiming that the first - instance court had failed to apply the relevant pension law and had disregarded LAW .

On DATE ORG upheld the judgment of the first - instance court . In reply to the applicant 's argument about the applicability of LAW of the LAW instead of relevant pension law the court of appeal noted that the local welfare department had acted in accordance with the applicable provisions of the pension legislation , while the question of compliance of such legal provisions with the LAW fell within the competence of ORG rather than the ordinary courts .

On DATE ORG rejected the applicant 's request for leave to appeal in cassation . The applicant did not ask any of the courts dealing with his case to suspend the proceedings in the case and take measures to bring the above issue of constitutionality before ORG .

The relevant domestic law and practice are set out in the ORG 's judgment in the case of PERSON v. GPE ( no . CARDINAL , DATE ) and the decision in the case of ORG v. GPE ( no . CARDINAL , decision of CARDINAL DATE ) .


Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6-2 - Presumption of innocence);Violation of Article 6 - Right to a fair trial (Article 6-1 - Fair hearing);Violation of Article 6 - Right to a fair trial (Article 6-3-c - Defence through legal assistance);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence)

André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Mykhaylo Buromenskiy

The applicant was born in DATE and is currently serving a life sentence in prison .

On DATE the applicant was arrested on suspicion of having committed a series of murders .

On DATE the investigation was completed and the applicant started to study the case file . During the pre - trial investigation and the examination of the case file the applicant was assisted by a legal - aid lawyer .

On DATE the applicant and the lawyer finished examining the case file in full .

On DATE ORG , acting as a first - instance court ( “ the first - instance court ” ) , found the applicant guilty of CARDINAL murders and other less serious crimes committed by him DATE and sentenced him to life imprisonment with confiscation of property . During the trial the applicant was represented by the lawyer .

According to the applicant , following the judgment of DATE , he was not assisted by any lawyer despite his complaints to the first - instance court on this account .

On DATE the applicant lodged with ORG a cassation appeal against the judgment of DATE .

On DATE , in the course of preparation to the proceedings before ORG , the applicant requested the first - instance court to familiarise him with TIME of the hearings .

On DATE the applicant started to examine the minutes of the hearings held by the first - instance court .

On DATE the applicant submitted that he would continue examination of the minutes only after he had studied the case file CARDINAL more time . He therefore requested that the case file be provided to him for examination .

On DATE the first - instance court , having regard to the applicant ’s statements , set a DATE period for him to examine the minutes of the hearings . Despite the fact that the applicant was invited on several occasions to continue studying TIME of the hearings , he refused to do so , insisting that he needed to examine the case file first .

On DATE the first - instance court found that the applicant had refused to familiarise himself with TIME of the hearings for no valid reason and allowed no further time to do so . The applicant was then provided with the case file .

On DATE the first - instance court found that , despite having been provided with the case file on several occasions , the applicant had examined CARDINAL volumes of the file . As the file consisted of CARDINAL volumes , the court concluded that the applicant ’s actions suggested that he had deliberately sought to draw out the time allowed for examining the case file . It set therefore a QUANTITY time - limit for him to complete his examination of the case file .

During DATE the applicant was provided with the case file . He managed to examine CARDINAL volumes of the file .

On DATE the first - instance court decided to allow no further time for the applicant to study the case file , as the relevant time - limit had expired .

On DATE ORG held a hearing in the applicant ’s case . In his further submissions before ORG the applicant complained , inter alia , that there had been a lack of legal assistance and lack of time to study the case file .

DATE ORG , in the presence of the prosecutor and the applicant , who had not been represented by a lawyer , found that the applicant ’s guilt had been well founded and dismissed the applicant ’s appeal in cassation as unsubstantiated .

On DATE a local newspaper , Priazovskiy PERSON , reported that the police had arrested the applicant on suspicion of a number of murders . It read , in particular :

“ But the most sensational is the fact that the arrestee turned out to be former police lieutenant of the criminal investigation department , PERSON . ... ”

On DATE another newspaper , PERSON i ORG , reported on a press conference held by PERSON , the Head of ORG . According to the newspaper , with respect to the progress of the investigation of series of murders PERSON announced that the police had arrested “ a person who was reasonably suspected of having committed crimes with the use of a firearm ” and then emphasised that it would be inappropriate to divulge any other information about the investigation .

On DATE PERSON provided a summary of another press conference given by PERSON on the subject of the applicant ’s arrest . The journalist reporting on the press conference referred to the detainee by his real name and provided some extracts from PERSON ’s speech . In particular , when opining as to who might have been the next victims of the detainee , PERSON was quoted as noting as follows :

“ Those would be the police officers ... and others ... But in this respect we can only trust in the words of the criminal ... And I have doubts about many of his statements ... ”

On DATE the same journalist reported in GPE that the first hearing in the applicant ’s case was to commence on DATE . He noted that the police had always insisted that the applicant had acted without any accomplices , while in the latest press release PERSON , the Head of ORG , expressed a different opinion . The journalist reported as follows :

“ In DATE [ M. ] stated in the official press release that PERSON is just – quoting him word for word – ‘ CARDINAL member of a criminal group which committed a series of murders’ ... ” .

The criminal proceedings against the applicant were further extensively reported on by the same journalist in a number of his publications , some of which contained pictures of the applicant .

On DATE that journalist published an interview with the prosecutor , who commented on the procedural actions taken by the applicant after the judgment of the first - instance court .

In his submissions before ORG the applicant complained that his right to be presumed innocent had been affected by multiple newspaper articles reporting on the proceedings in his case , specifying further that in some of the articles ORG officials had clearly indicated that he had committed the murders , despite the fact that the proceedings were pending .

On DATE the first - instance court referred the case file to ORG , following which the applicant was refused permission by the officials of the detention facilities to send correspondence . The refusals were based on the fact that the written permit for the applicant ’s correspondence , issued by the first - instance court , was no longer valid , while a new one had not been issued by ORG , which had become responsible for his case . The authorities acted on the basis of CARDINAL of ORG ( see paragraph CARDINAL below ) .

On DATE and DATE the applicant lodged CARDINAL applications with ORG asking for such a permit to be issued , but to no avail . On DATE the applicant could still not dispatch any correspondence .

The relevant provisions of the ORG read as follows :

“ Participation of a defence lawyer in the inquiry , pre - trial investigations and trial by the first - instance court shall be compulsory :

... ( CARDINAL ) from the moment of the person ’s arrest or when he or she is charged with a criminal offence carrying a penalty of life imprisonment ...

The participation of a defence lawyer in the proceedings before the court of appeal shall be compulsory in cases as provided by the first paragraph of this Article if the appeal raises issues capable of worsening the position of the convicted or acquitted person . ”

“ A defence lawyer shall be selected by a suspect , an accused , a defendant or a convicted person ...

A defence lawyer shall be appointed [ by the authorities ] in the following cases :

( CARDINAL ) when , in accordance with LAW CARDINAL and CARDINAL , the participation of the defence lawyer is compulsory but the suspect , accused or defendant does not wish to or can not appoint a defence lawyer ;

( CARDINAL ) when a suspect , an accused or a defendant wishes to appoint a defence lawyer but can not do so for lack of means or other objective reason . ... ”

Article CARDINAL of the ORG provides , inter alia , that the court of cassation shall review whether the challenged court decision is lawful and substantiated based on the case file and additionally submitted material . The scope of the review shall be limited by the arguments of the cassation appeal(s ) . The court shall be empowered to review the case beyond the arguments of the cassation appeal(s ) provided that this does not worsen the position of the convicted or acquitted person .

Section CARDINAL of the LAW provides , inter alia , that a person held in custody may correspond with their relatives , other individuals and legal entities upon obtaining a written permit from the authority dealing with the criminal case against the detainee concerned .