Violation of Article 2 - Right to life (Substantive aspect);Violation of Article 2 - Right to life (Procedural aspect);Violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 3 - Prohibition of torture (Procedural aspect);Violation of Article 5 - Right to liberty and security

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens

The applicant was born in DATE and lives in the village of GPE in GPE in GPE .

The applicant is the mother of Mr PERSON , born in DATE . At the material time the applicant , Mr PERSON , his wife and their CARDINAL children lived at CARDINAL FAC , GPE .

The account below is based on eyewitness statements of the applicant and her daughter , PERSON .

According to the applicant , the village of PERSON was under the federal forces’ control from DATE . The road leading to and from the village was blocked by federal checkpoints .

On DATE at TIME a khaki UAZ vehicle , a grey ORG off - road vehicle ( « таблетка ORG ) and a grey bus with a blue stripe arrived at the Dzhabrailovs’ house . CARDINAL armed men in masks and camouflage uniforms got out of the vehicles ; the applicant believed that they belonged to the NORP military because they spoke unaccented NORP and could move freely around the village during the curfew .

Around CARDINAL servicemen entered the house , woke the Dzhabrailovs and , threatening them with their machine guns , forced them to the floor . Then they seized Mr PERSON badge of an employee of a local human rights NGO , grabbed the young man and dragged him to the door . When the applicant and her daughter - in - law asked them where they intended to take Mr PERSON , the servicemen gave no clear answer but shouted at the women , using mostly swear words . They then blindfolded Mr PERSON and took him away .

PERSON followed the servicemen and saw them put Mr PERSON into the bus and leave in the direction of ORG .

According to the Government , on DATE at TIME a group of CARDINAL unidentified persons in masks and camouflage uniforms armed with automatic firearms entered the house at FAC in GPE , abducted Mr PERSON and took him away to an unknown destination .

On DATE the applicant complained in writing about her son ’s abduction to the military commander ’s office of ORG .

On DATE the prosecutor ’s office of ORG ( “ the district prosecutor ’s office ” ) instituted an investigation into Mr PERSON disappearance under LAW of LAW ( aggravated kidnapping ) . The case file was given DATE .

On DATE the prosecutor ’s office of GPE ( “ the NORP prosecutor ’s office ” ) forwarded the applicant ’s complaint about her son ’s disappearance to the district prosecutor ’s office .

On DATE the district prosecutor ’s office stayed the investigation for failure to identify those responsible .

On DATE the military commander ’s office of GPE informed the applicant in reply to her complaint of CARDINAL DATE ( see paragraph CARDINAL above ) that they had carried out an internal inquiry which had not established Mr PERSON whereabouts or the identities of those who had abducted him . They also assured the applicant that they would continue searching for her son .

On DATE the district prosecutor ’s office informed the applicant that they had stayed the investigation in case no . CARDINAL on DATE and advised her that she had the opportunity to appeal against that decision .

On DATE the department of the interior of Urus - Martan District informed the applicant that since DATE they had been carrying out search activities in relation to the kidnapping of Mr PERSON .

On DATE the NORP prosecutor ’s office forwarded the applicant ’s complaint about her son ’s kidnapping to the district prosecutor ’s office and ordered them to update her on the outcome of the investigation . On DATE the district prosecutor ’s office replied , without specifying the date , that the investigation into Mr PERSON kidnapping had been stayed .

On DATE the district prosecutor ’s office informed the applicant that the investigation in case no . CARDINAL had been suspended and invited her to provide the investigators with any new pieces of relevant information that she might obtain .

On DATE the NORP prosecutor ’s office informed the applicant that investigative measures were being taken to resolve Mr PERSON kidnapping .

In a letter of CARDINAL DATE the district prosecutor ’s office informed the applicant ’s daughter , PERSON , that operational and search activity was under way in criminal case no . DATE and that she would be notified if any important information emerged .

On DATE the NORP prosecutor ’s office forwarded PERSON complaint to the district prosecutor ’s office with a request for more activity in the investigation , for all necessary measures to be taken to establish the whereabouts of the missing person and for Ms NORP PERSON to be informed of the results of the examination of her complaint .

In a letter of DATE the district prosecutor ’s office informed the applicant ’s daughter that operational and search activity was under way in criminal case no . PERSON opened on DATE , that during the preliminary investigation the authorities had taken the steps it was possible to take in the absence of the culprits , and that she would be notified if any important information emerged .

In a letter of DATE the investigator in charge informed Mr PERSON that the investigation in case no . DATE had been stayed on DATE and that it was open to him to challenge this decision in accordance with ORG CARDINAL and CARDINAL of LAW . The letter did not specify the ground on which the investigation had been suspended .

According to the applicant , at some point she and her daughter spoke to an official of the district prosecutor ’s office , who had allegedly said to them that Mr PERSON had confessed that he had been a participant in illegal armed groups . In the ORG ’s submission , in the criminal investigation file there was a police report , rather than Mr PERSON confession , stating that the applicant ’s son had been a member of illegal armed groups and participated in operations under command of PERSON , CARDINAL of the NORP field commanders . According to the Government , however , this information had not been confirmed during the investigation .

In the applicant ’s submission , since DATE the investigating authorities had visited her house on CARDINAL occasions and questioned QUANTITY witnesses , all of whom had confirmed that Mr PERSON had been a law - abiding person and had had no enemies .

According to the ORG , the investigation was repeatedly suspended owing to failure to establish those responsible and then reopened pursuant to supervising ORG orders , but had been unable to date to identify the alleged perpetrators .

In the ORG ’s submission , in course of the investigation the investigating authorities questioned the applicant as well as Mr L. GPE and PERSON , who confirmed the circumstances of the incident of DATE . In particular , the applicant had stated , as alleged by the Government , that on the date in question CARDINAL unidentified armed people in masks and camouflage uniforms had arrived at the Dzhabrailovs’ address in a grey UAZ off - road vehicle , a UAZ vehicle and a PERSON minibus , put Mr PERSON in the ORG off - road vehicle and taken him away . According to the applicant , the other witnesses gave similar oral evidence .

According to the Government , the status of victim was granted to Ms Ya . ORG – Mr PERSON wife DATE on CARDINAL DATE , and then to PERSON on DATE . It does not appear that the applicant has ever been declared a victim in the case .

The Government also submitted that the investigating authorities sent enquiries to law - enforcement bodies in GPE and further in LOC . According to the replies received by the investigators , no criminal proceedings had ever been brought against Mr PERSON , he had not been arrested by any of those lawenforcement agencies , nor kept in any detention centres , there was no information as to whether he had participated in illegal armed groups , he had not been found among unidentified corpses and had never applied for assistance to any medical institutions . The replies also stated that the federal forces had not conducted any special operation in GPE on DATE , and that Mr PERSON whereabouts could not be established despite steps taken to find him .

In the ORG ’s submission , at present investigative actions are being taken aiming at resolving the crime and punishing those responsible .

On DATE the applicant complained to ORG that the investigators were taking no action in case no . DATE . She also requested that she be admitted to the proceedings as a victim and a civil party and be allowed access to the investigation file . It is unclear whether ORG replied to that complaint .

On DATE the applicant complained to ORG that the investigation was ineffective and requested that she be admitted to the proceedings as a victim and a civil party and be allowed access to the investigation file .

On DATE ORG of GPE forwarded the applicant ’s complaint to the prosecutor ’s office of GPE to be examined in compliance with the subject matter jurisdiction rules .

It is unclear whether the applicant ’s complaints have been examined by domestic courts .

NORP In DATE , when the application was communicated to them , the Government were invited to produce a copy of the investigation file in criminal case no . DATE opened in connection with the abduction of the applicant ’s son . The ORG refused to submit any documents from the file , stating that under LAW disclosure of the documents was contrary to the interests of the investigation and could entail a breach of the rights of the participants in the criminal proceedings . They also submitted that they had taken into account the possibility of requesting confidentiality under LAW of ORG , but noted that the ORG provided no guarantees that once in receipt of the investigation file the applicant or her representatives would not disclose these materials to the public . According to the Government , in the absence of any sanctions in respect of the applicant for the disclosure of confidential information and materials , there were no guarantees concerning compliance by the applicant with the Convention and the Rules of Court .

In DATE the ORG reiterated its request . In reply , the ORG again refused to produce any documents from the file for the aforementioned reasons . At the same time , they suggested that a ORG delegation could be given access to the file in GPE , with the exception of those documents containing military and ORG secrets , and without the right to make copies of the case file .

For a summary of the relevant domestic law see ORG v. GPE , no . CARDINAL/CARDINAL , § § DATE , DATE .


The applicants , whose names appear in the appendix , are NORP nationals . They are represented before the ORG by Mr PERSON and Mr PERSON , lawyers practising in GPE .

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

Until DATE the applicants lived in GPE , Şahverdi , PERSON , PERSON , GPE , GPE , ORG , GPE and GPE villages , in the districts of GPE and Hozat , in GPE , where they own property .

It is to be noted that the title deeds to the property that some of the applicants used in aforementioned villages bear their ORG name . Furthermore , PERSON and PERSON did not submit any certificate to the ORG attesting their ownership of the property .

In DATE , security forces forcibly evacuated ORG , GPE , PERSON , PERSON , GPE , GPE , ORG , GPE and GPE on account of disturbances in the region . They also destroyed the applicants’ property . The applicants and their families then moved to GPE , ORG , NORP , NORP , GPE , GPE , GPE , ORG , PERSON and PERSON where they currently live .

On CARDINAL , DATE and DATE the representatives of the applicants filed petitions , on behalf of the applicants , with the offices of the NORP Governor , GPE and GPE ORG requesting permission to return to their villages and compensation for the damage they had suffered .

On DATE ORG of the Governor ’s office in GPE sent the following reply to the ORG representatives :

ORG , Şahverdi , PERSON , PERSON , GPE , GPE , ORG , GPE and GPE villages are being considered under the ‘ Return to GPE Project’ . Thus , the residents of those villages can reside in GPE , Arslandoğmuş , GPE , GPE , ORG , GPE , ORG , GPE , PERSON , Cevizlidere , ORG , GPE , PERSON , NORP and NORP villages in GPE district or GPE , ORG , Tavuklar , PERSON , ORG , ORG , ORG , FAC , PERSON and PERSON villages in GPE district .

Your petition containing requests of permission to return to village will be considered under the ‘ Return to Village and Rehabilitation Project’ . ”

On DATE the representative of the applicants lodged a petition with ORG office in GPE complaining about the dereliction of duty by the NORP Governor and the GPE and GPE District Governors(görevi ihmal ) .

On DATE ORG issued a decision of non - jurisdiction and sent the case - file to ORG office at ORG .

On DATE ORG office at ORG decided not to start the proceedings into the allegation of dereliction of duty against the NORP Governor ( dilekçenin işleme konulmaması ) .

On DATE ORG decided not to conduct an investigation into the applicants’ allegations of dereliction of duty against the Hozat and GPE ORG .

On DATE the representatives filed an objection with ORG against the decision of ORG .

On DATE ORG rejected the objection .

On DATE ORG decided not to conduct investigation into the applicants’ allegations against the Hozat and GPE ORG .

On DATE the representative of the applicants filed an objection with ORG against the decision of ORG .

On DATE ORG rejected the objection .

The investigation carried out by the authorities indicated that the applicants had left their villages of their own will . The security forces had not forced the applicants to leave their village .

The official records indicated that there was no obstacle preventing villagers from returning to their homes and possessions in their villages . Persons who had left their villages as a result of terrorism had already started returning and regaining their activities in their villages .

On DATE the Law on Compensation for Losses resulting from Terrorism and the Fight against Terrorism was passed by ORG and entered into force on DATE ( “ Compensation Law ” ) . That PERSON provided for a sufficient remedy capable of redressing the LAW grievances of persons who were denied access to their possessions in their villages .

In that connection Damage Assessment and Compensation Commissions were set up in QUANTITY provinces . Persons who had suffered damage as a result of terrorism or of measures taken by the authorities to combat terrorism could lodge an application with the relevant compensation commission claiming compensation .

The number of persons applying to these commissions had already attained CARDINAL . CARDINAL persons , whose applications were pending before the ORG , had also applied to the compensation commissions . Many villagers had already been awarded compensation for the damage they had sustained .

A description of the relevant domestic law can be found in the ORG ’s decision of PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) and in its judgment of ORG and Others v. GPE ( nos . CARDINAL/CARDINAL , CARDINAL/CARDINAL and CARDINAL - CARDINAL/CARDINAL , § § DATE , ORG CARDINAL-VI ) .


Preliminary objection rejected (non-exhaustion of domestic remedies);No violation of Art. 5-1;Violation of Art. 5-3;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings

Mr PERSON is a NORP citizen born in DATE . He is currently detained in Her FAC , GPE .

On DATE a NORP national , PERSON , made a statement to the police in GPE , GPE , GPE , in which she alleged that the applicant had raped her TIME . According to PERSON , the applicant had threatened and beaten her , forcing her to undress and to have sexual intercourse with him . PERSON underwent a medical examination and on DATE flew back to GPE .

In TIME of CARDINAL DATE , on the strength of PERSON description , the applicant was located by the police ; he attempted to flee but was finally arrested . He had a false passport and was suffering from serious alcoholic intoxication requiring medical attention . On DATE , assisted by a lawyer and an interpreter , he made a statement to the police in which he denied the rape allegations . When the records were consulted , it was found that the applicant had escaped from FAC , GPE , on DATE and that an international warrant for his arrest for the murder of his father had been issued against him on DATE by a judge at ORG . In TIME CARDINAL DATE the applicant was brought before the investigating judge ( juez de instrucción ) .

On DATE , again assisted by a lawyer and an interpreter , the applicant denied the rape allegations before investigating judge no . CARDINAL in GPE . In a decision ( auto de prisión ) of the same date the judge held , on the basis of ORG CARDINAL and CARDINAL of the Code of Criminal Procedure ( ORG - see paragraphs CARDINAL and CARDINAL below ) , that there was sufficient reason to believe that the applicant was involved in the commission of an offence that would attract a substantial prison sentence ( see paragraph CARDINAL below ) . cott ’s detention pending trial .

On DATE the relevant judicial authority in extradition matters , central investigating judge ( juez central de instrucción ) no . CARDINAL of FAC , GPE , also ordered the applicant ’s detention on the basis of the international arrest warrant and of an undertaking by GPE authorities to file a request for extradition ( section CARDINAL of LAW - see paragraph CARDINAL below ) . In so doing , the central investigating judge referred to Articles CARDINAL and CARDINAL of the Code of Criminal Procedure ( see paragraphs CARDINAL and CARDINAL below ) and took into account the seriousness of the offence and the prison sentence it would attract under NORP law ( see paragraph CARDINAL below ) . A formal request for extradition was filed on DATE . It was accompanied by extensive evidence incriminating the applicant .

On DATE an international letter of request for judicial cooperation was sent to the relevant authority in GPE with a view to obtaining a further statement from the alleged victim of the rape and additional medical evidence .

On DATE the public prosecutor ( Ministerio Fiscal ) recommended the applicant ’s extradition . Guarantees were requested from the GPE authorities to the effect that , should the extradition be granted and the applicant be convicted in GPE , the final sentence would not exceed DATE imprisonment ( the maximum term of imprisonment under NORP legislation ) . On DATE ORG in GPE wrote to ORG that in the applicant ’s case the sentence actually served upon conviction for murder was not likely to be DATE . A hearing was subsequently held in FAC , in the course of which the applicant denied the murder allegations and resisted extradition .

By a decision ( auto ) of CARDINAL DATE a section of ORG the Audiencia Nacional accepted the guarantees given by the GPE authorities and ordered that the applicant should be extradited to stand trial for the murder of his father . This extradition order was only to be executed after the applicant had served any outstanding time of the sentence that might eventually be imposed on him in GPE for the rape offence ( see paragraph CARDINAL below ) . Furthermore , the time spent by the applicant in prison pending extradition was to be deducted from the sentence that would eventually be passed on him by the NORP courts in the murder case ( see paragraph CARDINAL below ) .

The applicant lodged an appeal ( recurso de súplica ) with the full court of ORG . In a decision of CARDINAL DATE the appeal was dismissed . On DATE the ORG ( PERSON ) decided not to exercise its discretion not to execute the extradition order .

In the meantime , on DATE , the investigating judge in GPE had decided to extend the applicant ’s detention pending trial in the rape case under LAW ( see paragraph CARDINAL below ) . In so doing , the investigating judge also took into account the fact that the applicant ’s extradition was pending .

In DATE Mr PERSON wrote to ORG that he was willing to be extradited in order to get medical treatment in GPE , although it would appear that he later abandoned this idea . On DATE the public prosecutor recommended that the applicant be kept in detention pending his trial for rape unless he could be temporarily handed over to the GPE authorities .

On DATE ORG in GPE wrote to the Audiencia Nacional indicating that , in the event of the applicant ’s being temporarily handed over to GPE , his re - extradition to GPE could not be guaranteed .

On DATE , that is to say DATE after the applicant had first been detained ( see paragraph CARDINAL above ) , the investigating judge in GPE ordered the applicant ’s provisional release ( libertad provisional ) in connection with the rape case , as required by LAW ( see paragraph CARDINAL below ) . He was , however , kept in detention under orders made in the extradition proceedings .

On DATE the Audiencia Nacional , taking DATE as the date of the beginning of the applicant ’s detention for the extradition proceedings ( see paragraph CARDINAL above ) , decided to extend his detention under LAW and section CARDINAL ( CARDINAL ) of LAW ( see paragraphs CARDINAL , DATE and DATE below ) for a period not exceeding two years , that is until DATE . The Audiencia Nacional had previously heard the public prosecutor and the applicant , the former having submitted that , given the impossibility of temporarily handing the applicant over to the GPE authorities , his extradition should not take place " before he ha[d ] discharged his criminal liabilities in GPE " , with reference to the rape case .

The applicant lodged an appeal ( recurso de súplica ) against this decision but on DATE a full court of ORG dismissed the appeal on the ground that he had been detained in the extradition case on DATE , independently of his earlier detention for a different matter , and that the risk of his absconding was considerable . In his submissions the public prosecutor had again referred to the case pending in GPE .

Another application for release by the applicant on DATE was rejected in similar terms by the Audiencia Nacional on DATE . Although the application had been addressed to ORG , the applicant made ample reference to the proceedings before FAC investigating judge .

On DATE , following a further application by PERSON , the Audiencia Nacional requested the investigating judge in GPE to supply information as to whether the applicant could be extradited . The ORG ’s case file does not contain any reply .

The applicant lodged an amparo appeal with ORG ( see paragraph CARDINAL below ) against the Audiencia Nacional ’s decisions of CARDINAL DATE and DATE on his detention pending extradition . The appeal was rejected after summary proceedings in a decision ( auto ) of CARDINAL DATE . On the merits ORG stated that the applicant had been detained in the extradition proceedings on DATE , so that the Audiencia Nacional ’s decision of CARDINAL DATE to extend detention for DATE as of that date was legally correct as the earlier period spent in prison by the applicant was unrelated to the new detention .

Meanwhile , in a decision ( auto de procesamiento ) of DATE , the investigating judge in GPE had formally charged the applicant with , inter alia , rape and forgery of documents .

On DATE the investigating judge renewed his request to have a further statement by the complainant through the channels of international judicial cooperation ( see paragraph CARDINAL above ) . The requested statement and CARDINAL medical certificates , all in NORP , were received in GPE on DATE . A NORP translation did not become available until DATE . The statement - which was taken at a court hearing in GPE , GPE , on DATE PERSON original allegations ( see paragraph CARDINAL above ) . The medical certificates showed that PERSON had received prolonged psychiatric treatment after her return from GPE .

On DATE the applicant ’s detention was again ordered in the rape case . The applicant was subsequently committed for trial .

On DATE the public prosecutor made his pre - trial submissions ( conclusiones provisionales ) . On the basis of the medical evidence available , he sought a prison sentence of DATE in respect of the rape offence and a further prison sentence of DATE and a fine of MONEY for the offence of forgery of documents .

A hearing was held during which PERSON and court - appointed medical experts gave evidence .

In a judgment of DATE the Audiencia Provincial of GPE acquitted the applicant on the rape charge on the ground that the only evidence incriminating him was PERSON statements , which contained many inconsistencies . ORG accepted the opinion of the experts present at the hearing that the medical evidence did not sustain the allegation of forcible sexual intercourse .

With respect to the forgery offence the applicant was convicted and sentenced as charged .

On DATE , as the applicant ’s detention was approaching the statutory maximum of DATE ( see paragraph CARDINAL below ) , ORG had issued an order releasing the applicant from detention in the extradition proceedings . However , on learning of the applicant ’s acquittal in the rape trial and of his imminent release , the Audiencia Nacional immediately ordered the applicant ’s continued detention pending extradition .

On DATE the applicant was handed over to the GPE authorities , pursuant to the international arrest warrant and the Audiencia Nacional ’s decision of CARDINAL DATE allowing extradition ( see paragraph CARDINAL above ) .

The applicant had spent a total of DATE , DATE and DATE under the different orders for detention pending trial on the rape charge and DATE in connection with the extradition proceedings .

On DATE , following a trial at ORG , Mr PERSON was convicted of the murder of his father . He was sentenced to life imprisonment . The trial judge recommended a " tariff period " ( see paragraph CARDINAL below ) of DATE .

LAW guarantees the right to liberty and security of person and sets out the conditions under which a person ’s liberty may be restricted . By paragraph CARDINAL of this provision , a habeas corpus procedure shall be provided for in a statute which shall also determine the maximum duration of detention pending trial .

Regarded as fundamental , LAW rights may be the subject of an individual appeal to ORG ( recurso de amparo ) .

Under LAW in force at the material time , rape was punishable with a term of imprisonment ranging from DATE and DATE to DATE ( reclusión menor ) .

Under LAW , killing one ’s father or mother ( parricidio ) was punishable with a term of imprisonment ranging from DATE and DATE to DATE ( reclusión mayor ) .

Under LAW ,

" The following conditions must be satisfied before pre - trial detention can be ordered :

It must have been established that an act which may constitute an offence [ delito ] has been committed .

The offence must be punishable by DATE imprisonment [ prisión menor ] or , if the term of imprisonment is shorter , the judge must consider it necessary to remand the accused in custody in the light of his criminal record , the circumstances of the offence , the prejudice to public order it has caused or the frequency with which similar acts have been committed ...

There must be sufficient reasons for considering the person to be remanded in custody criminally responsible for the offence . "

By LAW , detention pending trial shall not exceed DATE where an offence is punishable with a term of imprisonment ranging from DATE and DATE to DATE ( prisión menor ) and shall not exceed DATE if the applicable sentence is heavier .

If , however , the case can not be tried within that period and there is a risk that the accused may evade justice , LAW provides that detention pending trial may be prolonged up to DATE respectively . A reasoned decision ( auto ) to this effect may only be issued after the competent court has heard the accused and the public prosecutor .

Under LAW para . CARDINAL of the Code of Criminal Procedure , detention pending trial may last for only as long as the original reasons remain valid .

Extradition proceedings come within the jurisdiction of the Audiencia Nacional in GPE irrespective of where the requested person has been detained ( section CARDINAL ( CARDINAL ) of the Judicature Act - Ley Orgánica del Poder Judicial ) . In such cases preliminary proceedings fall to the relevant central investigating judge ( juez central de instrucción ) attached to FAC , likewise in GPE ( section CARDINAL of LAW and section CARDINAL ( CARDINAL ) of LAW DATE ) .

Under LAW , the detention of a person with a view to his or her extradition may in certain circumstances be sought by a ORG even before a formal request for extradition is lodged where the requesting ORG undertakes that the said request will be made within DATE . The detainee must be brought before the relevant central investigating judge within TIME of his or her arrest .

Under section CARDINAL ( CARDINAL ) of LAW , " while extradition proceedings are pending , the maximum term of detention of the requested person and his or her rights as a detainee shall be determined , where not laid down in this LAW , according to the relevant provisions of LAW " .

By section CARDINAL ( CARDINAL ) of LAW , " if the requested person is under investigation or has been convicted by a NORP court ... his or her delivery may be deferred until his or her criminal liabilities in GPE have been discharged or he or she can be handed over temporarily or finally in accordance with such conditions as may be agreed with the requesting ORG " .

LAW between GPE and GPE of DATE contains a similar provision . The LAW came into force on DATE .

LAW ( CARDINAL ) ( CARDINAL ) of LAW requires , inter alia , that extradition be made subject to the time spent in detention pending extradition by the requested person being deducted from the sentence that would eventually be passed on him or her by the requesting State .

Under LANGUAGE law murder carries a mandatory sentence of life imprisonment ( Murder ( Abolition of Death Penalty ) Act DATE ) . A person convicted of manslaughter may be sentenced to life imprisonment at the discretion of the trial judge . In both cases release on licence can only be granted after a minimum period deemed necessary to satisfy the requirements of retribution and deterrence ( " the tariff period " ) has been served .


Violation of Art. 6-1;Pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

The applicant , a NORP national born in DATE , is a retired ski instructor and mountain guide living in GPE , GPE .

NORP In DATE ORG ( ORG ) consulted the case file of the financial manager , P. It was noted that DATE the applicant had made investments with P. and his companies . However , these amounts had not been declared in the taxation periods between PERSON and DATE .

In view of this , on CARDINAL DATE ORG ( Bezirkssteuerkommission ) instituted tax - evasion proceedings ( PERSON ) in respect of the applicant ’s federal taxes . He was requested to submit all the documents which he had concerning these companies .

On DATE the applicant admitted that he had “ in fact made investments with P. and his companies from DATE and that he had not properly declared the income in his personal tax return ” . However , the applicant did not submit the requested documents .

On DATE the applicant was again asked to declare the source of the income , amounting to MONEY ( CHF ) , which he had invested with P. The applicant did not reply .

On DATE ORG decided to issue an assessment to supplementary tax ( ORG ) on the interest derived from the income which the applicant had invested with P. in DATE . In letters dated DATE and DATE , the applicant was informed of the assessment of his taxes ( NORP ) and of the supplementary tax due .

Following an intervention of ORG , the President of ORG withdrew the supplementary tax decision in CARDINAL letters dated DATE and DATE . At the same time the President again requested the applicant to explain the source of the invested income . A further such request was served on the applicant on DATE .

The applicant not having reacted to any of these requests , ORG kantonale PERSON die direkte PERSON ) imposed on the applicant on CARDINAL DATE a disciplinary fine ( GPE ) of CHF MONEY . It relied on Article CARDINAL § CARDINAL of the decree of ORG on the imposition of a direct federal tax ( Bundesratsbeschluss über die Erhebung einer direkten PERSON ) . The applicant duly paid the fine .

On DATE and on DATE , DATE and CARDINAL DATE ORG again admonished the applicant as he still had not submitted the required information .

On DATE and CARDINAL DATE the applicant replied that , in his view , the decision to impose supplementary taxes on him had acquired legal force ( Rechtskraft ) on DATE and DATE , so that he was not obliged to provide further information .

Thereupon , on CARDINAL DATE ORG imposed a second disciplinary fine , of CHF MONEY , on the applicant in respect of federal taxes , based on Article CARDINAL § CARDINAL of the decree of ORG .

On DATE and CARDINAL DATE ORG imposed a third disciplinary fine , of CHF MONEY , in respect of cantonal taxes .

The applicant ’s appeal against the second disciplinary fine , imposed on DATE , was dismissed by ORG ( Steuerrekurskommission ) of the GPE of GPE on DATE .

NORP In its decision , ORG found that the applicant had intentionally not complied with the order of the tax authorities to provide information . However , according to LAW , persons liable to pay taxes were obliged to cooperate with the tax authorities , in particular to submit accounts , documents and other receipts in their possession which could be of relevance when determining the taxes . Moreover , the decision to impose supplementary taxes on the applicant had not acquired legal force as it had been withdrawn on CARDINAL and DATE by the President of ORG .

The applicant filed an administrative - law appeal with ORG in which he complained , inter alia , LAW that as an accused he should not be obliged to incriminate himself .

Meanwhile , the applicant also filed an objection against the third disciplinary fine , imposed on DATE and CARDINAL DATE , although the proceedings before the competent district court ( LOC ) were suspended pending the outcome of the proceedings before ORG .

On DATE ORG dismissed the applicant ’s administrative - law appeal , the decision being served on the applicant on DATE .

In its decision , ORG considered it undisputed that the applicant had made investments with ORG and his companies which he , the applicant , had not declared . The tax authorities had not been in a position to assume that the means invested stemmed from income and assets which had already been taxed . They had therefore quite correctly asked the applicant to demonstrate the source of these moneys .

ORG then recapitulated the relevant case - law . Tax - evasion proceedings constituted true criminal proceedings in respect of which the procedural guarantees , including those of LAW , applied . Thus , the offence of tax evasion led to a fine which had to be paid in addition to the taxes evaded . The fine constituted a sanction which had both preventive and repressive functions ; its amount was CARDINAL times the amount of the taxes evaded and it had the same effect for the person concerned as a criminal conviction .

On the other hand , in ORG opinion the obligation to pay a supplementary tax did not amount to a criminal sanction . The supplementary tax was not separate in nature from the original tax debt ; rather , it was an additional tax resulting from an examination of the tax assessment of the person concerned and serving to bring in outstanding taxes . As such , it had no punitive function . The judgment continued :

“ even though the supplementary tax is not a criminal sanction within the meaning of LAW , the tax will be determined in tax - evasion proceedings in respect of which the guarantees of criminal procedure will apply . The question thus arises whether the person who has to pay taxes may be obliged , in the tax - evasion proceedings and with a view to the determination of the supplementary tax , to supply information on his financial circumstances . ”

ORG then reiterated the principle of tax proceedings , according to which the burden of proof fell on the tax authorities to demonstrate that a person had not declared certain taxable income . It could not be said that the person concerned was obliged to incriminate himself . Rather , the person had merely to provide information as to the source of untaxed income which the tax authorities already knew existed . If in such a situation the person concerned had the right to remain silent , the entire tax system would be called into question . The regular tax - assessment proceedings would then have to be conducted according to the principles of criminal proceedings . The right to remain silent would complicate control , or even render it impossible . This could not be the purpose of LAW .

According to ORG , there were a number of provisions in criminal law obliging a person to act in a particular way so as to enable the authorities to obtain his conviction . Reference was made in particular to lorries which had to be equipped with a tachograph recording speed and driving TIME . If there was an accident , the lorry driver was obliged to hand over the device . Similarly , a motorist might be obliged to submit to a blood or a urine test , and he would be punished if he refused to do so .

ORG noted an essential difference from PERSON v. GPE ( judgment of DATE , Series A no . CARDINAL-A ) , namely , that in that case the tax authorities believed that certain documents existed although they were not certain of the fact . In the present case , the authorities were aware of the income which the applicant had invested . The purpose of their intervention was to ascertain whether this income itself stemmed from income or assets which had been duly taxed . All the applicant had to do was to explain the source of this income . In fact , he should have done so during the regular tax - assessment proceedings .

Finally , ORG referred to ORG v. GPE , according to which presumptions of fact and law were compatible with LAW as long as they were confined within reasonable limits and the rights of the defence were maintained ( judgment of DATE , Series A no . TIME , pp . CARDINAL , § CARDINAL ) .

ORG concluded that there was no breach of the applicant ’s right to the presumption of innocence or of his right not to incriminate himself .

On DATE the cantonal authorities imposed a fourth fine , of CHF MONEY , on the applicant , although this fine never acquired legal force .

Following ORG decision of DATE , an agreement was reached between the applicant and the cantonal tax authorities on CARDINAL DATE which closed all tax and criminal tax proceedings for DATE until DATE . On the one hand , the agreement fixed the amount to be paid by the applicant , namely a total sum of CHF CARDINAL,CARDINAL.CARDINAL , including a fine amounting , after reduction by CARDINAL , to CHF CARDINAL,CARDINAL.CARDINAL . On the other hand , it was agreed that all pending proceedings were cancelled , including the proceedings concerning disciplinary fines ; and that the fine already paid was to be deducted from the total amount of taxes and criminal penalties . Finally , the agreement stated :

“ ... the proceedings which are already pending before the GPE organs of ORG against the decision of ORG on account of a disciplinary fine will not be affected by this agreement . ”

Supplementary - tax proceedings ( Nachsteuerverfahren ) serve the purpose of imposing a supplementary tax ( ORG ) where certain taxes have not been duly paid . Tax - evasion proceedings ( PERSON ) may lead , in addition to the supplementary tax , to a fine the amount of which will depend on the amount of the tax evaded .

ORG decree of DATE on the imposition of a direct federal tax in force at the relevant time referred in its Part CARDINAL to “ contraventions ” ( Widerhandlungen ) .

Articles CARDINAL and CARDINAL in Part CARDINAL concerned “ tax evasion ” and provided for liability to a fine . For instance , Article CARDINAL § CARDINAL concerned persons who evaded taxes by not filling in the tax return correctly . Article CARDINAL bis concerned “ tax and inventory fraud ” ( Steuer- und Inventarbetrug ) and provided for liability to a fine or to imprisonment .

Article CARDINAL § CARDINAL of the decree stated :

“ A person ... liable to pay taxes or to give information who contravenes , intentionally or negligently , the official decisions and orders made pursuant to this Decree , in particular as to :

– handing in a tax return ;

– submitting or presenting accounts , preparing or submitting vouchers and other receipts ;

– complying with a summons or a prohibition to act ;

– giving information ; or

– making payments and furnishing securities ;

will be fined MONEY . The same punishment will be incurred if the obligation under LAW , DATE and DATE to provide information is not complied with . ”

Article QUANTITY , CARDINAL and DATE of the federal decree concerned the obligation , inter alia , of third parties to provide information . LAW stated that the taxpayer should provide truthful information and that he could be requested to submit documents etc . which might be relevant for the assessment of taxes . LAW the procedure in case of tax evasion and provided that the cantonal tax administration would undertake any necessary investigations .


The applicant is a NORP national , born in DATE and living in GPE , GPE . He is represented by Mr PERSON , a lawyer working with PERSON , a firm of solicitors based in GPE .

A.

The applicant has been involved in the manufacture and distribution of erotic films since DATE . On DATE the applicant was convicted of murdering CARDINAL of his employees and sentenced to life imprisonment .

The applicant was released on licence on DATE .

In DATE the applicant was convicted on charges of conspiracy to publish obscene articles , procuring women to become prostitutes , procuring acts of gross indecency between men in public and possession of cannabis . He received a prison sentence . The Secretary of ORG , on the recommendation of ORG , revoked the applicant ’s licence with effect from DATE .

In DATE the applicant was bound over for DATE following an altercation with another man in a GPE bookshop .

In DATE the applicant was charged with theft , possessing an offensive weapon , threatening behaviour and possession of cannabis . The first CARDINAL charges were dropped . On DATE the applicant was cautioned for disturbing the peace and on CARDINAL DATE it was alleged that he had been seen standing on a mound overlooking a police office in a GPE park making provocative gestures while a woman filmed the scene from behind bushes .

The applicant absconded to the GPE before his trial on the threatening behaviour and possession charges .

On DATE the applicant ’s licence was again revoked . The NORP authorities subsequently refused the request of the authorities of the respondent ORG that the applicant be returned to GPE , being of the opinion that the charges he faced in the NORP courts were not sufficiently serious to justify this .

On DATE the applicant was deported to GPE following a renewed request to the NORP authorities based on different grounds . On his arrival in GPE the applicant was informed that the charges brought against him in DATE had been dismissed .

The revocation of the applicant ’s life licence was confirmed by ORG on DATE . On DATE ORG refused to recommend that the applicant be released or moved to open conditions on the grounds , inter alia , that he had committed a particularly brutal murder and although released twice on licence he had shown a marked disregard of his licence obligations .

The applicant sought to challenge ORG decision by way of judicial review . The legal challenge was settled before a full hearing could take place on the judicial review application and in view of ORG undertaking to reconsider the applicant ’s case . Following the applicant ’s complaint to ORG about the delay in setting down a date for reconsideration of his application for release , ORG recommended on DATE the applicant ’s immediate release from prison without his having to spend a period of time in open conditions . In reaching its recommendation , ORG noted , inter alia , that reports on the applicant were positive and that it trusted that the applicant would remain firm in his resolution that “ he can be in the film business and stay within the law ... ”

On DATE the Secretary of ORG informed the applicant that he had decided to accept ORG recommendation . However , he considered that :

“ [ the applicant ] should spend DATE in open conditions before ... release where any outstanding work on [ his ] offending behaviour , including [ his ] attitude to pornography and drugs , can be carried out and , in light of [ his ] previous failure to comply with the conditions of [ his ] life licence , [ his ] future trustworthiness can be tested . ”

The applicant ’s solicitors made representations to the Secretary of ORG in respect of this decision . In a letter dated DATE , the Secretary of ORG replied to these representations stating that :

“ [ the applicant ’s ] behaviour in absconding to GPE in DATE demonstrates his untrustworthiness and raises serious concerns about the likelihood of his abiding by the conditions of his life licence and probation service in the future . This aspect , together with his attitude to drugs ( a feature of the index offence and the incident in GPE in DATE when he was charged with the possession of cannabis ) and pornography , need to be tested in the more relaxed conditions of an open prison . ”

For these reasons the Secretary of ORG affirmed that he was not prepared to alter his decision not to order the applicant ’s release until he had satisfactorily completed a DATE stay in open conditions .

The applicant challenged the Secretary of ORG ’s decisions of DATE and CARDINAL DATE by way of judicial review proceedings .

In a judgment handed down on DATE Mr Justice PERSON quashed the impugned decisions and ordered that the applicant ’s case be given urgent reconsideration by the Secretary of ORG . The judge held that :

“ The question remains , however , whether the reasons advanced in setting a period of DATE as CARDINAL in which the question of the applicant ’s ‘ trustworthiness’ could effectively be tested requires the most anxious scrutiny . The reasons are tenuous in nature and capable of producing the appearance that the applicant is to be sentenced again for his conduct in breaching the terms of his previous life sentences when he has already been punished for those breaches by the period which he has served in custody since DATE . Any such reason would have to be condemned as unfair if not irrational , as being incapable of supporting the decision . As a ‘ reason’ it may also fail , because it is quite unrealistic to suppose that the extra period of DATE could have made the difference between the applicant being considered trustworthy as opposed to his present , and supposed , state of not being ‘ ORG . It is trite law in the field of reasons that for such to be impervious to judicial interference they must be ‘ proper , sufficient and intelligible’ . In my judgment , the reasons advanced in support of the decision to require that the applicant , which must be regarded as a further DATE , as a minimum , fail the tests of propriety ( in the sense of fairness ) and intelligibility . They also fail to satisfy the test of particularity why the decision of ORG which was reached after a prolonged and careful investigation , was not accepted . ”

In correspondence following the judgment , the Secretary of ORG expressed his disagreement with the court ’s judgment but nevertheless put in place arrangements for the applicant to be released immediately . The applicant was released on DATE .

B. Relevant domestic law

Life sentences

Murder carries a mandatory sentence of life imprisonment under ORG DATE .

Release on licence of prisoners serving mandatory life sentences

Section CARDINAL of LAW DATE ( reproduced in section CARDINAL of ORG ) provides that the Secretary of ORG , if recommended to do so by ORG and after consultation with the Lord Chief Justice , together with the trial judge if available , release on licence a life prisoner who is not a discretionary life prisoner .

The power to release under section CARDINAL(CARDINAL ) of the DATE Act can not be exercised unless the Secretary of ORG has first referred the case to ORG for its advice ( section CARDINAL(CARDINAL ) ) . According to section CARDINAL(CARDINAL ) the Secretary of ORG may give ORG directions as to the matters to be taken into account in discharging its functions .

On DATE the ORG Secretary gave directions to ORG concerning the release of mandatory life sentence prisoners . In those directions the ORG Secretary stated that the final decision on the release of a mandatory life prisoner rests with him and that the decision may be taken on grounds that go beyond the risk posed by the prisoner .

On DATE the Secretary of ORG made a statement in ORG explaining his practice in relation to mandatory life prisoners . The statement emphasised that before any mandatory life prisoner is released on life licence , the Secretary of ORG :

“ will consider not only , ( a ) whether the period served by the prisoner is adequate to satisfy the requirements of retribution and deterrence and , ( b ) whether it is safe to release the prisoner , but also ( c ) the public acceptability of early release . This means that I will only exercise my discretion to release if I am satisfied that to do so will not threaten the maintenance of public confidence in the system of criminal justice . ”

On DATE the Secretary of ORG issued a statement in which he made clear that in the normal course of events a period in open conditions is vital in terms of testing the prisoner ’s suitability for release and in preparing him for a successful return to the community . He declared that it is therefore normally the practice to require a prisoner to spend a period in open conditions before release .


Alvina Gyulumyan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra

NORP The applicant , X. , is an NORP national who was born in DATE and lives in GPE . He was represented before the ORG by Mr PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their co - Agent , PERSON of ORG .

NORP In TIME CARDINAL DATE the applicant , who had stolen a car and driven it through a red traffic light , was involved in a collision with another vehicle in GPE . Prior to the collision the applicant had driven at considerable speed and had rammed QUANTITY police cars which had been involved in an attempt to stop the applicant . CARDINAL people were killed in the collision . PERSON , the driver of the other vehicle , a taxi , was killed instantly and one of the passengers in the stolen car driven by the applicant died TIME .

On DATE ( DATE ) the applicant was arrested and detained under LAW , DATE . He was released from custody but arrested again in order to be charged with an offence under LAW of LAW DATE , as amended . Y , the surviving passenger from the stolen car , was also so charged . On DATE the applicant and Y ( neither of whom had by then attained the age of majority ) appeared before ORG , sitting as ORG ( “ the Children Court ” ) . Restrictions are imposed upon reports of proceedings before ORG pursuant to the provisions of LAW DATE .

Considerable publicity was generated by the incident . ORG brought proceedings for contempt of court against certain newspapers that had identified ( by initials ) the applicant and Y and on DATE the High Court convicted the said newspapers of contempt of court in respect of the articles published after the applicant and Y. had been charged .

Meanwhile , in view of the nature of the offences with which he had been charged , the applicant ’s case had been transferred from ORG to ORG . On DATE the applicant pleaded guilty to manslaughter . On DATE he pleaded guilty to a further count of manslaughter and to a count of unlawful use of a mechanically propelled vehicle . On DATE ( DATE ) the applicant was sentenced to CARDINAL years’ detention . At that time , the applicant was DATE and DATE .

Following the sentencing , the trial judge directed that the name of the applicant could not be published in the media on the grounds that the applicant was a child within the meaning of LAW DATE ( “ the CARDINAL Act ” ) and that publication of his name was prohibited by the LAW . However , DATE , legal representatives from a number of media organisations brought an application , on notice to the applicant ’s lawyers , to lift the prohibition on publishing the applicant ’s name on the basis that LAW did not confer jurisdiction on ORG ( before which the applicant had been tried ) to make the Order . Having heard submissions from the parties on the matter , the said judge vacated his earlier order . Counsel for the applicant , having failed in opposing the application , then asked for a transcript of the ruling to be made available stating “ We have other remedies ” .

NORP That evening the applicant ’s name was broadcast on the television and the radio . His picture also appeared on the television . The newspapers later published his name and his picture .

Article NORP ) of LAW DATE provides :

“ Justice shall be administered in courts established by law by judges appointed in the manner provided by LAW , and , save in such special and limited cases as may be prescribed by law , shall be administered in public . ”

Article CARDINAL(CARDINAL ) reads , in so far as relevant , as follows :

“ CARDINAL . The ORG guarantees in its laws to respect , and , as far as practicable , by its laws to defend and vindicate the personal rights of the citizen .

The ORG shall , in particular , by its laws protect as best it may from unjust attack and , in the case of injustice done , vindicate the life , person , good name , and property rights of every citizen . ”

The domestic courts recognise further unspecified personal rights protected by LAW either as rights ancillary or corollary to those expressly mentioned in LAW ) or as latent in the expression “ personal rights ” in LAW . Thus , the courts have recognised , inter alia , a right to privacy as one of the fundamental personal rights of the citizen which flow from the NORP and democratic nature of the ORG . In PERSON v. the Attorney General [ DATE ] ORG held that :

“ Whilst the ‘ personal rights’ [ in LAW ] are not described specifically , it is scarcely to be doubted that the right to privacy is universally recognised and accepted with possibly the rarest of exceptions . ”

In the case of PERSON and Others v. GPE and the Attorney General [ DATE ] ILRM CARDINAL , the plaintiffs were awarded £ MONEY in damages when the ORG found that an unjustifiable tapping of the GPE telephones breached their right to privacy as protected under LAW .

In The State ( Quinn ) v PERSON [ DATE ] ORG found that :

“ It was not the intention of the LAW in guaranteeing the fundamental rights of the citizen that these rights should be set at naught or circumvented . The intention was that rights of substance were being assured to the individual and that the ORG were the custodians of these rights . As a necessary corollary , it follows that no one can with impunity set these rights at naught or circumvent them , and that the NORP powers in this regard are as ample as the defence of the LAW requires . ”

Section CARDINAL(CARDINAL ) of the above LAW , where relevant , provides as follows :

“ ORG may be administered otherwise than in public in any of the following cases :

( a ) applications of an urgent nature for relief by way of habeas corpus , bail , prohibition or injunction ;

( b ) matrimonial causes and matters ;

( c ) lunacy and minor matters ... ”

Section CARDINAL(CARDINAL ) of the above Act expressly provides that the cases prescribed by section CARDINAL(CARDINAL ) :

“ . . .shall be in addition to any other cases prescribed by LAW of the LOC . ”

Pursuant to section GPE ) of LAW , the domestic courts have made Orders prohibiting the disclosure of the identities of parties , including minors , in a variety of cases including:- PERSON and PERSON [ DATE ] ORG ( which involved a custody dispute between parents and subsequently contempt of court proceedings against a journalist and newspaper editor who breached the order ) ; In ORG [ DATE ] ORG CARDINAL ( proceedings involving a company and CARDINAL of its directors ) ; JPD v DATE ] CARDINAL IR CARDINAL ( a paternity dispute ) ; Attorney General v. X [ DATE ] CARDINAL IR CARDINAL ( proceedings involving a young girl who sought an abortion ) ; In Re ORG , DATE ; ORG v. PERSON ( otherwise C ) Unreported , ORG , CARDINAL DATE , ( contempt of court proceedings were issued against a newspaper editor and journalist for breaching a section CARDINAL order ) ; and In Re A Ward of Court ( withholding of medical treatment ) ( No . CARDINAL ) [ DATE ] CARDINALIR CARDINAL .

Section CARDINAL of the DATE Act provides the following definitions :

“ ( CARDINAL ) In this LAW , unless the context otherwise requires ...

“ child ” means a person under DATE ;

“ Court ” , in Parts CARDINAL and CARDINAL , means ORG ; ”

Section CARDINAL of the CARDINAL Act ( which is in Part CARDINAL of the Act ) provides ( in so far as relevant ) :

“ ( CARDINAL)(a ) ORG , when hearing charges against children or when hearing applications for orders relating to a child at which the attendance of the child is required or when exercising any other jurisdiction conferred on ORG by or under this or any other Act ... shall be known as ORG and is referred to as “ the ORG ” in this Part and Part CARDINAL . ”

Section CARDINAL of the DATE LAW ( in so far as relevant ) :

“ ( PERSON ... the ORG may deal summarily with a child charged with any indictable offence , other than an offence which is required to be tried by ORG or manslaughter , unless the ORG is of the opinion that the offence does not constitute a minor offence fit to be tried summarily or , where the child wishes to plead guilty , to be dealt with summarily . ”

“ ( CARDINAL ) In relation to any proceedings before the ORG against a child or in relation to a child under Part CARDINAL-

( a ) no report shall be published or included in a broadcast which reveals the name , address or school of any child concerned in the proceedings or includes any particulars likely to lead to the identification of any child concerned in the proceedings , and

( b ) no picture shall be published or included in a broadcast as being or including a picture of any child concerned in the proceedings or which is likely to lead to his or her identification .

( CARDINAL ) This section shall not affect the provisions of any enactment concerning the anonymity of an accused or the law relating to contempt of court . ”


Violation of Art. 8;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings

On DATE the applicant was convicted of assault and murder at ORG , GPE , and was sentenced to life imprisonment . CARDINAL of the offences involved setting fire to the front door of a flat thereby killing CARDINAL of the CARDINAL members of CARDINAL family asleep there at the time . A recommendation was made by the trial judge that he should serve not less that twenty years’ imprisonment in view , inter alia , of the appalling nature of the crimes and his previous criminal record which indicated that he was " a ruthless man of violence " .

Mr PERSON was initially classified as a Category B prisoner , the minimum classification for any prisoner either sentenced to CARDINAL or more GPE imprisonment or convicted of a crime involving serious violence . Following an incident at FAC he was charged with a number of offences and was re - classified as a Category A prisoner , the classification pertaining to the group of inmates requiring the highest degree of security . These charges were later abandoned by the ORG but he remained a Category A prisoner from DATE until DATE . Since then he has been a Category B prisoner again .

He has been detained in , inter alia , GPE and ORG which are situated at a considerable distance from the offices of his solicitor in GPE . He is now serving his sentence in GPE in FAC , GPE .

Since his imprisonment the applicant had been advised by his solicitor in respect of :

an action for damages against the Secretary of ORG for GPE for injuries sustained following an assault by a prison officer in FAC on DATE ;

an action for damages against the Secretary of ORG for GPE in respect of an infestation of lice while in the hospital wing of FAC in DATE ;

a potential claim against the Secretary of ORG for GPE for damages in respect of an alleged assault by a prison officer during an incident in ORG on DATE ;

a possible prosecution for an alleged assault on a prison officer arising out of the same incident ;

a denial of communication with his solicitor following the said incident ;

the denial of the applicant ’s right to full and unrestricted correspondence between himself and his legal advisers on all of the above matters ;

an application ( application no . CARDINAL ) to ORG ( " the Commission " ) concerning inter alia his solitary confinement and access to his solicitor while in custody in hospital ; and

the application with which the present case is concerned .

On DATE , the applicant ’s solicitor wrote to the Governor of ORG , asking that all correspondence between him and his client should pass without interference . After having discussed the matter with the applicant , the Deputy Governor wrote on DATE to the applicant ’s solicitor indicating that outgoing mail from the applicant to his solicitor concerning his petition to the Commission , if properly marked so as to indicate that it concerned the ORG , would not be opened .

In a further letter dated DATE to the Governor of ORG his solicitor claimed that the letter of DATE had not been answered in its entirety as he had been given no assurance by the Deputy Governor that letters to PERSON would not be subject to interference . On DATE the Deputy Governor replied that incoming mail from solicitors concerning an application to the Commission , suitably identified by placing ( a ) the name of the solicitor ’s firm and ( b ) the initials ORG in a prominent position on the envelope , would be opened in the presence of the prisoner and handed to him unread ( see paragraph CARDINAL below ) . The Deputy Governor explained that this arrangement would not apply to solicitors’ correspondence about matters other than the application to the Commission .

On DATE the applicant ’s solicitor wrote to ORG ( " SHHD " ) , the Government department concerned with the administration of prisons in GPE , again requesting that all of his correspondence to the applicant should be allowed to pass to him without interference .

On DATE the applicant petitioned the Secretary of ORG for GPE complaining about censorship of his correspondence with his solicitor . In their reply of DATE to this and other petitions the PERSON advised the applicant that his solicitors had been informed by the Deputy Governor , PERSON , on DATE that correspondence " in respect of ORG procedures " should be clearly marked to ensure privacy but that any other correspondence between an inmate and his legal advisers was subject to scrutiny under standing instructions to prison establishments .

On DATE the PERSON wrote to the applicant ’s solicitor confirming the arrangements for solicitors’ correspondence concerning matters before the Commission but reaffirming that other correspondence was still subject to the normal rules which provided for the opening and reading of all letters to and from a prisoner ( see paragraphs CARDINAL below ) .

On DATE the applicant again complained that incoming mail from his solicitor was scrutinised . He repeated these complaints on DATE . In these petitions , the applicant also drew the attention of the authorities to the fact that correspondence to and from ORG was being opened . The reply from the PERSON , received by the applicant on DATE , referred to the existing arrangements as discussed in correspondence between his solicitor and management at FAC in DATE and DATE .

In a petition dated DATE , the applicant again complained that all legal correspondence apart from letters relating to the Convention was being opened . The reply to this petition and others received by him on DATE stated , inter alia , that his correspondence was being dealt with in accordance with ORG . However , he was advised that the terms of the existing Standing Orders were under review in this respect .

In a further petition dated DATE he complained that a letter from a firm of solicitors was opened and photocopied before he received it .

In a letter dated DATE to the applicant ’s solicitor , the PERSON confirmed that the rules relating to ORG correspondence were under review in the light of the friendly settlement reached in the case of PERSON ( application no . PERSON , report of the ORG dated CARDINAL May CARDINAL - see paragraph CARDINAL below ) . The applicant ’s solicitor was advised that , pending the outcome of discussions between the PERSON and ORG , the current rules would continue to apply to correspondence between a prisoner and his legal adviser ; in particular , only correspondence concerning matters before the Commission would be allowed to pass unopened .

However , it is established that at least some of the correspondence from ORG had been opened . The applicant referred to letters dated DATE , CARDINAL DATE , CARDINAL DATE , CARDINAL DATE , DATE , CARDINAL DATE , DATE , CARDINAL DATE , CARDINAL DATE , CARDINAL DATE , PERCENT and CARDINAL DATE from ORG which allegedly show the prison censor ’s mark on the top right hand corner . The Government accepted that CARDINAL of these letters ( DATE , CARDINAL DATE , CARDINAL DATE , CARDINAL DATE and CARDINAL DATE ) were opened . They considered that CARDINAL other letters ( DATE , CARDINAL DATE and DATE ) may have been opened but that it was not possible to identify the markings . Of the remaining letters the ORG stated that there were no identifiable marks and thus no opinion could be expressed as to whether they had been opened or not .

The applicant ’s solicitor applied for legal aid to bring civil proceedings in respect of the interference with the applicant ’s correspondence . Legal aid was refused on DATE by ORG on the ground that the applicant had no probable cause of action . ORG also noted that the applicant was not being denied visits from his legal advisers and that he had not indicated that he was unable to give instructions verbally to his advisers . The applicant ’s appeal against this decision was refused on DATE by ORG of ORG .

At the relevant time the prison system in GPE was governed by ORG " LAW " ) , which has since been repealed . Similar provisions were re - enacted in the Prisons ( GPE ) Act DATE .

Sections CARDINAL and CARDINAL of the DATE Act vested general control and superintendence over prisons in GPE in the Secretary of ORG for GPE . He was empowered , by LAW ( CARDINAL ) , to " make [ by statutory instrument ] rules for the regulation and management of prisons ... and for the classification , treatment , employment , discipline and control of persons required to be detained therein " .

In exercise of his powers under LAW ( CARDINAL ) , the Secretary of ORG made the ORG ( GPE ) Rules DATE ( " the Prison Rules " ) , which have been amended from time to time and which are published . He also , in supplement of ORG and by virtue of his general jurisdiction over prisons and of various powers conferred by LAW themselves , issues instructions to the Governors of prisons in the form of ORG and administrative circulars . The Standing Orders relevant to correspondence are also published . Every prisoner , on his admission to prison , is given or given access to a booklet summarising the Rules and Standing Orders .

Communications between prisoners and their legal advisers and others are governed principally by Rule CARDINAL of the rules . Rule CARDINAL ( CARDINAL ) provides that - subject to CARDINAL exception which is not relevant in the present case - " every letter to or from a prisoner shall be read by the Governor or by an officer deputed by him for that purpose " .

The validity of Rule CARDINAL ( CARDINAL ) was judicially considered and upheld in the case of PERSON v. Secretary of ORG for GPE ( judgment of ORG of ORG of DATE ) which concerned the reading of a prisoner ’s correspondence with a legal adviser relating to potential legal proceedings . The ORG considered inter alia that LAW ( CARDINAL ) could not be described as irrational since " it can not be supposed that there are no sound grounds for requiring control over correspondence involving a prisoner even when it takes place between him and his legal adviser " .

In the case of remand prisoners , Rule CARDINAL ( CARDINAL ) provides that they shall be allowed to write to their legal advisers . Under Rule CARDINAL ( CARDINAL ) any confidential written communications prepared by such a prisoner as instructions for his legal adviser may be delivered to the legal adviser without being examined by any officer of the prison unless the Governor has reason to suppose that it contains matters not relating to such instructions . Under Rule CARDINAL this facility is also available to convicted prisoners who are the subject of further charges . Similar provisions apply under Rule CARDINAL ( CARDINAL ) to an appellant in connection with his appeal .

These rules are supplemented by Standing Order M , which deals in detail with communications between prisoners and others . Copies of this Standing Order are available to prisoners and the public . Standing Order MaCARDINAL ( a ) sets out the purpose of examination of the correspondence , namely to prevent its use to plan escapes or disturbances or otherwise jeopardise the security of the establishment and to satisfy other reasonable requirements of prison administration . Under Standing Order MaCARDINAL ( d ) , when correspondence is examined or read this is to be done as quickly as possible .

Most correspondence with legal advisers is governed by Standing Order MaCARDINAL ( e ) which concerns general correspondence . Under Standing Order MaCARDINAL such correspondence :

" may not contain the following :

( a ) Escape plans , or material which if allowed would jeopardise the security of a prison establishment .

( b ) Plans or material which would tend to assist or encourage the commission of any disciplinary offence or criminal offence ( including attempts to defeat the ends of justice by suggesting the concoction or suppression of evidence ) .

( c ) Material which could jeopardise national security .

( d ) Descriptions of the making of any weapon , explosive , poison or other destructive device .

( e ) Obscure or coded messages which are not readily intelligible or decipherable .

( f ) Threats of violence or of damage to property likely to induce fear in the recipient .

( g ) Blackmail or extortion .

( h ) Indecent or obscene material .

( i ) Information which would create a clear threat or present danger of violence or physical harm to any person .

( j ) Complaints about prison treatment which the inmate has not yet raised through the prescribed procedures ...

( k ) Material which is intended for publication or for use by radio or television ( or which , if sent , would be likely to be published or broadcast ) ...

( l ) Material constituting the conduct of business activity ...

( m ) In the case of an inmate against whom a deportation order is in force , material constituting or arranging any financial transaction ...

( n ) In the case of an inmate in respect of whom a receiving order has been made or who is an undischarged bankrupt , material constituting or arranging any financial transaction ... "

Following the friendly settlement of CARDINAL DATE in the case of PERSON v. the GPE ( application no . PERSON , report of ORG ) no . CARDINAL , pp . CARDINAL ) , new procedures dealing with correspondence between a prisoner and his legal adviser in respect of legal proceedings which have been instituted came into force on DATE , as set out in Standing Order MaCARDINAL :

" Correspondence with a legal adviser about legal proceedings to which an inmate is already a party or , about a forthcoming adjudication , may not be read or stopped unless the Governor has reason to suppose it contains other material . Such a letter may be examined for illicit enclosures , but should only be opened for that purpose in the presence of the inmate by whom it is sent or to whom it is addressed .

Other correspondence with a legal adviser may be read and may not contain anything specified in Standing Order MaCARDINAL ( a ) to ( i ) and ( k ) to ( n ) . Such correspondence may not be stopped on the grounds that it contains material prohibited by Standing Order MaCARDINAL ( j ) unless it is clear that the inmate is not seeking legal advice but is writing for some other purpose . "

The procedure to be followed in respect of such correspondence was described in a ORG issued to ORG on DATE . The solicitor is required to send such mail within a sealed envelope bearing the words " Legal Proceedings " and his signature . This envelope is placed within another envelope addressed to the Prison Governor . The inner envelope is passed unopened to the prisoner .

When a prisoner is not yet a party to legal proceedings , but is contemplating bringing them , all mail is liable to be opened and read . In practice , mail is not opened at low - security " open prisons " or at the very high - security " Special Units " . In other prisons the letters of prisoners in high - risk categories are those most frequently opened .

Standing Order M also contains specific provisions relating to correspondence with ORG or with a legal adviser in connection with a petition to the ORG or pending proceedings before the ORG or the ORG . Under Standing Order MaCARDINAL such correspondence may not contain material prohibited under Standing Order MaCARDINAL ( a ) to ( c ) or ( e ) ( see paragraph CARDINAL above ) .

Further general provisions relating to the Convention are to be found in Standing Orders MaCARDINAL ( b ) and PERSON . In particular , Standing Order MfCARDINAL expressly provides that correspondence between an inmate and his legal adviser about a petition to the ORG or proceedings resulting therefrom should not be read unless the Governor has reason to suppose that the correspondence contains other matters .

The Government state that , in practice , as regards correspondence between prisoners and the Commission , outgoing letters if sealed will normally go unopened . Incoming letters from the Commission are opened ; the contents are examined to confirm that they are what they purport to be but they are not read ; they are thereafter issued promptly to the prisoner .


Violation of Article 6 - Right to a fair trial

András Sajó;Françoise Tulkens;Kristina Pardalos;Nona Tsotsoria;Vladimiro Zagrebelsky

The applicants are CARDINAL NORP nationals and CARDINAL NORP companies ( see list in GPE ) .

NORP In DATE the applicants brought an official liability action against the GPE . ORG held several hearings and obtained the opinions of experts . It stayed the procedure for altogether DATE and DATE pending the successions of CARDINAL plaintiffs who had died in the meantime .

On CARDINAL DATE ORG gave judgment . On DATE ORG quashed this decision and remitted the case .

In the resumed proceedings , several hearings took place and the opinion of an expert was obtained . According to the information in the case file , the case is still pending before the first - instance court .


Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra;Nona Tsotsoria

The applicants belong to the NORP minority living in GPE and they are currently NORP nationals . The applicant in application no . CARDINAL , Mr István Fehér ( “ the first applicant ” ) , was born in DATE and lives in GPE . The applicant in application no . CARDINAL/CARDINAL , ORG ( “ the second applicant ” ) , was born in DATE and lives in ORG . They were represented before the ORG by Mr PERSON , a lawyer practising in GPE .

On DATE the first applicant informed ORG that he had acquired NORP citizenship on DATE . Referring to LAW , he indicated that he did not wish to give up his NORP citizenship and wanted to continue living and working in GPE as a NORP citizen respecting the LAW and the laws of GPE .

On DATE ORG asked the first applicant to complete and return a notice confirming his loss of NORP citizenship .

On DATE he informed ORG that he was not willing to comply with the above request , as the relevant provisions of LAW DATE were contrary to LAW .

On DATE , in the absence of any reply , the first applicant reiterated his arguments . He also referred to the fact that he had not been formally notified of his loss of NORP citizenship .

On DATE ORG informed the first applicant that the relevant authorities had been notified that he had lost NORP citizenship on the basis of his letter indicating that he had acquired NORP citizenship . He was reminded that his NORP passport and identity card had become invalid and had to be returned to the authorities . In cases where persons had voluntarily opted for the citizenship of a different ORG , they lost their NORP citizenship ex lege . The NORP authorities were therefore not required to issue a formal certificate to that effect .

In a letter the first applicant asked his local authority , ORG , why he had not been notified along with the other electors of an upcoming parliamentary election scheduled for DATE .

In its response of CARDINAL DATE ORG informed him that the law obliged it to delete from the electoral register all persons who had lost NORP citizenship .

In a different letter of CARDINAL DATE ORG informed the first applicant that it had been notified by ORG on DATE that he had lost NORP citizenship . He was advised to address his request for a certificate of his permanent address to the relevant department of the police , who kept a register of foreigners permanently residing in GPE .

The first applicant ’s employer made his continued employment conditional upon his compliance with the statutory obligations imposed on foreigners residing in GPE and his adherence to the social security insurance scheme .

The first applicant experienced health problems owing to stress resulting from the above .

On DATE the second applicant informed ORG that she had sworn an oath of allegiance and obtained NORP citizenship on DATE . She further declared that she was not renouncing her NORP citizenship and that she wished to continue living in GPE and respecting its laws .

On DATE the second applicant asked ORG to issue her with a NORP citizenship certificate . She reiterated her intention to remain a NORP national and argued that under LAW , no one could be deprived of NORP citizenship against his or her will .

On DATE ORG advised the second applicant that under section CARDINAL(CARDINAL)(b ) of LAW DATE , persons who had voluntarily acquired a different ORG ’s citizenship automatically lost NORP citizenship . ORG therefore issued no certificates in that respect .

On DATE the second applicant asked her local authority , ORG , why she had not been notified along with the other electors of the upcoming parliamentary election .

On DATE ORG informed the second applicant that it had been notified by ORG that she had lost NORP citizenship . On that basis , and in accordance with the relevant law , ORG had deleted her from the electoral register . She was therefore disallowed from voting in the parliamentary election on DATE . Her complaint was dismissed as being totally devoid of merit , with reference to the fact that she had lost NORP citizenship .

On DATE the second applicant complained to ORG that she had received no official notification of her loss of NORP citizenship . She was thereby prevented from seeking redress from the NORP authorities .

On DATE ORG informed the second applicant that , following her letter of CARDINAL DATE , it had notified the relevant authorities , namely the local authority in which she lived , the police , the tax and customs offices , and the institutions in charge of social and public health insurance , that she had lost NORP citizenship . The law did not oblige ORG to issue a certificate confirming loss of citizenship , as it took effect ex lege .

The Levice District Police repeatedly informed the second applicant that , following her loss of NORP citizenship , she was required by law to return her national identity card . She replied that she had received no official notification of her loss of NORP citizenship and still considered herself to be a NORP national . She pointed out that a group of members of parliament had initiated proceedings to determine whether the relevant statutory provisions conformed to the guarantees of the LAW .

NORP The police also asked the second applicant to return her NORP passport , which had become invalid following her loss of NORP citizenship . Her failure to do so was susceptible of constituting a minor offence , for which a fine up to MONEY ( ORG ) might be imposed .

The second applicant replied that she considered herself to be a NORP citizen and therefore saw no reason for returning her identity card and passport .

Pursuant to LAW , the circumstances under which persons acquire and lose NORP citizenship are to be stipulated by law .

Article CARDINAL § CARDINAL provides than no person may be deprived of NORP citizenship against his or her will .

LAW DATE ( PERSON o štátnom občianstve PERSON republiky ) , as amended with effect from DATE , contains the following relevant provisions .

Section CARDINAL ) provides :

“ Citizenship of GPE may only be lost :

( a ) by means of release upon one ’s own request ;

( b ) upon acquiring a foreign ORG ’s citizenship by way of an explicit expression of intent . ”

Section CARDINAL(CARDINAL ) provides that a person loses NORP citizenship on DATE he or she voluntarily acquires the citizenship of a foreign ORG by way of an explicit expression of intent such as a request , declaration or any other action directed at acquiring the citizenship of a foreign ORG .

Subsections ( CARDINAL ) and ( CARDINAL ) of section CARDINAL provide exceptions to the above , namely where a person acquires foreign citizenship ( i ) by marriage to a foreign national , provided that the person acquires the foreign citizenship during the marriage , or ( ii ) by birth .

Pursuant to section CARDINAL(CARDINAL ) , persons who lose their NORP citizenship under section CARDINAL(CARDINAL ) are obliged to notify their local district office without delay .

Section CARDINAL(CARDINAL ) read in conjunction with section CARDINAL ) obliges the relevant district office to notify the following authorities of the person ’s loss of NORP citizenship under section CARDINAL(CARDINAL ) : the local authority in which the person resides , the police , the tax and customs offices , and the institutions in charge of social and public health insurance .

Section CARDINALb(CARDINAL)(d ) provides that a minor offence has been committed if a person fails to comply with the obligation under section CARDINAL(CARDINAL ) , namely to notify the district office about their loss of NORP citizenship without delay .

Section CARDINALb(CARDINAL ) renders such an offence punishable by a fine of up to ORG CARDINAL,CARDINAL .

On DATE members of parliament claimed before ORG that sections CARDINAL(CARDINAL)b , CARDINAL(CARDINAL ) , CARDINAL(CARDINAL ) , GPE ) and CARDINAL ) of LAW DATE were contrary to LAW , LAW , and LAW .

On DATE ORG at its plenary session declared the motion admissible .

The proceedings on the merits are pending .

LAW ( PERSON No . CARDINAL ) entered into force in respect of GPE on DATE . Its relevant provisions read as follows :

Each State shall determine under its own law who are its nationals .

NORP This law shall be accepted by other GPE in so far as it is consistent with applicable international conventions , customary international law and the principles of law generally recognised with regard to nationality .

The rules on nationality of each ORG shall be based on the following principles :

( a ) everyone has the right to a nationality ;

( b ) statelessness shall be avoided ;

( c ) no one shall be arbitrarily deprived of his or her nationality ; ...

The rules of a ORG on nationality shall not contain distinctions or include any practice which amount to discrimination on the grounds of sex , religion , race , colour or national or ethnic origin . ...

A State Party may not provide in its internal law for the loss of its nationality ex lege or at the initiative of ORG except in the following cases :

( a ) NORP voluntary acquisition of another nationality ; ...

ORG shall ensure that decisions relating to the acquisition , retention , loss , recovery or certification of its nationality contain reasons in writing .

ORG shall ensure that decisions relating to the acquisition , retention , loss , recovery or certification of its nationality be open to an administrative or judicial review in conformity with its internal law . ...

The provisions of this Convention shall not limit the right of a ORG to determine in its internal law whether :

( a ) its nationals who acquire or possess the nationality of another ORG retain its nationality or lose it ; ... ”

With effect from CARDINAL DATE LAW ( Law no . LV of DATE ) was amended . Its section CARDINAL ) provides for naturalisation , upon request and on preferential terms , of non - NORP nationals with an ascendant of NORP nationality or who can plausibly show their NORP origins and provide proof of their knowledge of the NORP language .