Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens

The applicant was born in DATE . He is currently serving a prison term in GPE .

In DATE , in the context of criminal proceedings for large - scale money laundering conducted against the applicant before GPE for GPE ( “ the GPE District Court ” ) , the NORP courts were requested under letters rogatory to seize assets which had been found in CARDINAL safes in GPE rented by the applicant . On DATE the GPE ORG ordered the seizure and put the assets , mostly cash and bearer bonds , at the disposal of the GPE Island District Court as evidence in the criminal proceedings against the applicant , on the condition that the assets were to be returned upon termination of the proceedings .

The parties disagree as to whether or not the applicant was the owner of the assets at issue . The applicant claims that the assets stemmed from lawful business activities carried out until DATE , while the Government claim that they stemmed from the money laundering in DATE and DATE of which he was convicted ( see below ) and that he was holding them as a trustee for the drug cartel for which he had worked .

In DATE the GPE District Court convicted the applicant of money laundering and related charges , finding that he had headed an organisation which had laundered CARDINAL million United States dollars ( ORG ) in DATE and DATE , and sentenced him to CARDINAL years’ imprisonment . Subsequently , on DATE , the court issued a preliminary forfeiture order .

On DATE ORG , ORG , dismissed an appeal by the applicant against his conviction and against the forfeiture order . The reasons , in so far as relevant in the context of the present case , were as follows . As to the applicant ’s claim that he was represented at his trial by counsel ( H. ) who had a conflict of interest , the court noted that the applicant had been informed of his rights but had insisted on being represented by counsel PERSON Finally , he had executed a written waiver retaining ORG as counsel and confirming that he had been fully advised and had considered the possible adverse consequences for his defence . Since counsel PERSON had only informed the court in vague terms that he feared being charged or called as a witness in the applicant ’s case , ORG was justified in accepting the waiver . In any event , the applicant was represented by a second , conflict - free counsel , NORP As to the applicant ’s complaint that he had had no hearing in the forfeiture proceedings , the appellate court noted that the applicant , represented by counsel , had waived his right to a jury hearing in the separate forfeiture proceedings on the ground that they purely concerned matters of legal argument . The case had been heard on DATE in the presence of the applicant ’s counsel . The applicant had not been present since he had to appear before another court . Counsel had requested that the applicant be heard but had refused the court ’s offer to have a further hearing in the presence of the applicant before the delivery of the judgment .

On DATE ORG rejected an appeal on points of law by the applicant .

On DATE the Rhode Island District Court issued a final forfeiture order relating to a total amount of MONEY , including MONEY in respect of the applicant , “ being the proceeds of narcotics money laundering for which the following property has been partially substituted ” . There followed an enumeration of cash amounts in GPE , GPE dollars and NORP schillings seized in GPE in DATE and a list of bearer bonds issued by NORP banks and , finally a bank account in GPE .

On DATE the Rhode ORG issued letters rogatory which , so far as relevant , read as follows :

“ ... GPE for GPE requests enforcement in GPE of the enclosed Final LAW against said cash , bonds and other financial instruments . To the extent possible under NORP law and consistent with any sharing agreement between GPE and GPE , please convert the cash and the proceeds of the bonds and other instruments into GPE dollars and transfer those funds by wire into the above referenced ORG . ... ”

ORG transmitted this request to the NORP authorities on DATE . On DATE ORG requested ORG to open “ exequatur ” proceedings to enforce the foreign court ’s decision .

On DATE ORG ( PERSON für PERSON ) , as an interim measure , ordered the confiscation of the applicant ’s assets , of a total value of CARDINAL NORP schillings ( ORG – CARDINAL ) , in cash , bearer bonds and a bank account , for the purpose of securing the enforcement of the final forfeiture order of DATE . It referred to the above request and noted that enforcement proceedings under LAW ( Auslieferungs- und Rechtshilfegesetz – “ the ELAA ” ) were pending .

The applicant appealed on DATE , submitting in particular that ORG decision amounted to an unlawful interference with his right to property , as it lacked a legal basis . Moreover , an enforcement of the forfeiture order for the benefit of GPE was not admissible in GPE as section CARDINAL(CARDINAL ) of the ELAA provided that any fines or forfeited assets obtained by executing a foreign decision fell to GPE .

Further , the applicant claimed that the final forfeiture order also included “ substitute assets ” , i.e. assets not connected to or derived from criminal activity . Thus the measure requested did not correspond in any way to forfeiture ( ORG ) or withdrawal of enrichment ( GPE der GPE ) within the meaning of LAW ) . In any event these penalties could not be applied in his case , as the relevant provisions had not been in force at the time he committed the offences . Furthermore , he had been convicted of money laundering in GPE , an offence which had not been punishable under NORP law at the time of its commission .

Relying on section CARDINAL ) of the PERSON , the applicant also argued that the forfeiture proceedings had failed to comply with the requirements of LAW , since the proceedings had not been public and he had not been heard . Moreover , his defence rights had been violated in the underlying criminal proceedings , his defence lawyer having been caught in a conflict of interests .

Lastly , the applicant claimed that there was a lack of reciprocity as decisions of NORP courts were not enforceable in GPE .

Meanwhile , on DATE , ORG had made a formal request to GPE authorities to hear the applicant in connection with the request for execution of the final forfeiture order . On DATE ORG transmitted the applicant ’s submissions to ORG .

On CARDINAL DATE ORG addressed a note to ORG concerning reciprocity in providing legal assistance in forfeiture proceedings . The applicant denies that this note contains assurances of reciprocity .

On DATE the LAW between the Government of GPE and the Government of GPE on ORG ( “ the DATE LAW ) entered into force .

On DATE ORG ( Oberlandesgericht ) dismissed the applicant ’s appeal against ORG decision of CARDINAL DATE .

ORG found that ORG decision was based on Article CARDINALa of LAW ( GPE ) . In this connection , the court noted that pursuant to section CARDINAL(CARDINAL ) of the LAW , the provisions of LAW had to be applied mutatis mutandis unless explicitly provided otherwise .

As to the applicant ’s assertion that a forfeiture for the benefit of GPE would be contrary to LAW , the court observed that the letters rogatory requested first and foremost that any measures required under NORP law for the execution of the final forfeiture order be taken . Only as an additional point did they ask for the transfer of the assets , provided that this was admissible under NORP law or any bilateral treaty . In this connection it referred to Article CARDINAL ) of LAW .

As regards the applicant ’s assertion that the final forfeiture order covered substitute assets which could not be subject to forfeiture under NORP law , the court observed that it followed from the judgment concerning the applicant ’s conviction that he had led an organisation which had laundered large sums of money derived from drug dealing and had usually received a PERCENT commission for each amount laundered . DATE and DATE he had transferred MONEY of drug - related money from the account of a sham company to various foreign bank accounts . Thus , there were good reasons to assume that the applicant ’s NORP assets were monies received for or derived from the commission of a crime and subject to withdrawal of enrichment under LAW , or monies directly obtained through drug dealing , subject to forfeiture under LAW , in the version in force since its DATE amendment . The final forfeiture order made a clear link between the offence of money laundering of which the applicant had been convicted and the forfeiture of all monies obtained thereby .

Articles CARDINAL and CARDINALb in the version in force since the DATE amendment of LAW were not regarded as penalties under NORP law , but as measures sui generis . The fact that they had not been in force at the time of the commission of the offences was therefore not material .

Even if CARDINAL applied the law in force at the time of the commission of the offences , the requirements for withdrawal of enrichment were met . Article CARDINALa(CARDINAL ) of LAW , in the version in force at that time , provided that an offender who had unjustly enriched himself could be ordered to pay an amount equivalent to the enrichment if the latter exceeded ORG CARDINAL . Although there had been no offence of money laundering under NORP law at the time , the facts constituted the offence of receiving stolen property ( GPE ) under LAW , which made it an offence to assist the perpetrator of an offence ( here , the drug dealers ) in concealing assets derived from or received for the commission of the offence or to acquire such assets .

As to the applicant ’s allegation that both the criminal proceedings against him and the proceedings resulting in the final forfeiture order had failed to comply with LAW , the court referred to the documents of those proceedings contained in its file and noted the following . In the criminal proceedings , the applicant had been present and had been represented by CARDINAL counsel . It noted that it was the applicant who had insisted on being represented by counsel PERSON although the latter had voiced concerns , albeit without substantiating them , that he might himself be charged . In any case , the applicant had been represented by a second counsel , who was free from any potential conflict of interests . In the forfeiture proceedings he waived his right to a public hearing before a jury since they only concerned questions of law . On DATE the judge had heard the case in the presence of the applicant ’s counsel but without the applicant being present . The applicant ’s lawyer had requested that the applicant be heard but had refused the court ’s offer to hold a further hearing in the presence of the applicant before the delivery of the judgment . In sum , ORG found no indication that the proceedings before GPE courts had failed to comply with LAW .

As regards the alleged lack of reciprocity , the court noted that when the request for enforcement of the final forfeiture order had been made , there had been no bilateral treaty between GPE and GPE . Thus , only the provisions of the PERSON had to be applied , section CARDINAL(CARDINAL ) of which required reciprocity . ORG had duly investigated the issue in that it had required ORG to submit information as to the possibilities of enforcing an NORP forfeiture order in GPE . Meanwhile , however , LAW had entered into force . Under LAW ) of LAW , it applied irrespective of whether the underlying offences were committed before or after its entry into force . LAW provided for mutual legal assistance in forfeiture proceedings .

On DATE the GPE central authority , relying on the CARDINAL Treaty , made a new request for enforcement of the final forfeiture order of DATE . According to the applicant , this second request for legal assistance was not served on him .

The applicant made submissions on DATE , on DATE and on DATE .

On DATE ORG , without holding a hearing , decided to take over the enforcement of the final forfeiture order of DATE and ordered the forfeiture of the applicant ’s NORP assets for the benefit of GPE .

Having regard to LAW , the requirement of reciprocity was fulfilled . The submissions by the applicant which disputed this were no longer relevant as they referred to the legal position before the entry into force of LAW . As to the question of the beneficiary of the forfeiture , it noted that Article CARDINAL ) of the DATE Treaty provided optionally that each State party could hand over forfeited assets to the other party .

Referring to ORG decision of CARDINAL DATE , it noted that the applicant ’s conduct had been punishable under NORP law . Thus , the forfeiture was not contrary to LAW . Finally , the court noted that the applicant had been given an opportunity to comment on the request for legal assistance .

The applicant appealed on DATE . He asserted that the DATE LAW provided for legal assistance in pending criminal proceedings , but did not contain a legal basis for mutual execution of final decisions . Even assuming that LAW applied in the present case , the enforcement of the final forfeiture order would violate LAW as the said LAW had not been in force in DATE when the forfeiture order was issued . Moreover , money laundering had not been punishable under NORP law at the time of the commission of the offences . Consequently , his assets could not be subject to forfeiture or withdrawal of enrichment under NORP law .

Furthermore , the applicant repeated his argument that his NORP assets were substitute assets and claimed that , at the time of the commission of the offences , such assets had not been subject to forfeiture or withdrawal of enrichment under NORP law .

Relying on expert opinions submitted by him , the applicant maintained that the condition of reciprocity required by section CARDINAL(CARDINAL ) of the PERSON was not fulfilled , as GPE constitutional law did not permit the enforcement of decisions given by foreign criminal courts . He further submitted that the DATE limitation period for enforcement had started running on DATE , when the preliminary forfeiture order was issued ( as it was , despite its name , a final and enforceable decision ) , and not only on DATE , when the final forfeiture order was issued .

In addition the applicant alleged that the criminal proceedings and the forfeiture proceedings before GPE courts had not complied with the requirements of LAW . He submitted the same arguments as in the proceedings relating to the preliminary confiscation of his assets . Moreover , he referred in general terms to the fact that GPE still applied the death penalty .

NORP The applicant also complained about a number of procedural shortcomings as regards the proceedings in GPE . He alleged in particular that ORG had refused to take into account the aforesaid expert opinions submitted by him , which showed that GPE constitutional law excluded any enforcement of decisions of foreign criminal courts . Moreover , he had not been given sufficient opportunity to advance his arguments as , in his view , that would have required his personal presence in court . Finally , he complained that ORG had failed to hold a public oral hearing and requested that such a hearing be held by the appellate court .

ORG also appealed . Its appeal was served on the applicant for comments , which he submitted on DATE .

On DATE ORG , sitting in camera , dismissed the applicant ’s appeal . Upon the public prosecutor ’s appeal , it amended ORG decision and ordered the forfeiture to the benefit of GPE .

The court noted at the outset that , pursuant to its LAW ) , LAW applied irrespective of whether the underlying offences were committed before or after its entry into force . It dismissed the applicant ’s argument that the said LAW did not provide a basis for the mutual enforcement of decisions . LAW , paragraphs ( CARDINAL ) and ( CARDINAL ) of the LAW , in conjunction with LAW , governed legal assistance in forfeiture proceedings . As to the alleged lack of reciprocity , it was sufficient to refer to those provisions . It was therefore not necessary to examine questions of GPE constitutional law .

Moreover , referring to its decision of CARDINAL DATE , the court reiterated that the facts underlying the applicant ’s conviction for money laundering would have been punishable as receiving stolen property under LAW at the time of the commission of the offences . Further , it reiterated that withdrawal of enrichment pursuant to LAW and forfeiture pursuant to LAW , both in the version in force since DATE , were not regarded as penalties , but served the purpose of neutralising proceeds of criminal activities . These measures covered any proceeds of an offence , irrespective of whether they were directly derived from the offence or given for its commission or whether they had already been converted into other assets .

With regard to the applicant ’s complaint that the proceedings in GPE had not complied with the requirements of LAW , the court referred to the reasons given in its previous decision of CARDINAL DATE .

The court dismissed the applicant ’s plea that the enforcement of the final forfeiture order was time - barred , noting that ORG , on DATE , had refused leave to appeal against the provisional forfeiture order , whereupon the final forfeiture order had been issued on DATE . Consequently , the DATE limitation period pursuant to section QUANTITY of LAW had not expired .

As to the applicant ’s procedural rights , the court noted that he had been represented by counsel throughout the proceedings and had had the opportunity to submit extensive written pleadings .

Finally , the court considered that the public prosecutor ’s appeal was well - founded in that section CARDINAL(CARDINAL ) of the ELAA provided that forfeited assets fell to GPE . Thus , forfeiture to the benefit of GPE under Article CARDINAL ) of LAW was not admissible .

The decision was served on the applicant on DATE .

Section CARDINAL of the Extradition and Legal Assistance Act ( Auslieferungs- und Rechtshilfegesetz , ORG no . CARDINAL ) provides that the LAW applies where international or bilateral agreements do not provide otherwise .

Section CARDINAL carries the heading “ reciprocity ” and , so far as relevant , provides as follows :

“ ( CARDINAL ) ORG requests may be granted only if it is ensured that the requesting State would also grant an equivalent NORP request .

( CARDINAL ) If there are doubts regarding compliance with reciprocity , information shall be obtained from the Federal Minister of ORG . ”

Section CARDINAL is situated in the chapter on the enforcement of decisions by foreign criminal courts . It regulates the conditions for taking over the enforcement of such decisions .

“ ( CARDINAL ) Enforcement or further enforcement of a decision by a foreign court with final and legal effect , in the form of a monetary fine or prison sentence , a preventive measure or a pecuniary measure ( vermögensrechtliche Anordnung ) , is admissible at the request of another ORG if :

NORP the decision of the foreign court was taken in the course of proceedings in compliance with the principles of LAW no . CARDINAL/CARDINAL ) ;

NORP the decision was taken in relation to an act that is punished by a court sentence under NORP law ;

NORP the decision was not taken in relation to one of the offences listed in sections CARDINAL and CARDINAL ;

no time - limit has expired under NORP law regarding enforceability ;

NORP the person concerned by the decision of the foreign court regarding this offence is not being prosecuted in GPE , has been finally and effectively convicted or acquitted in this matter or has otherwise been released from prosecution .

( CARDINAL ) Enforcement of a decision by a foreign court which results in pecuniary measures is admissible only to the extent that the requirements under NORP law for a monetary fine , a withdrawal of enrichment or forfeiture apply , and that no corresponding NORP measure has yet been taken .

( CARDINAL ) Fines , forfeited assets or enrichment withdrawn shall fall to GPE . ”

The procedure to be followed in cases concerning the enforcement of foreign decisions is laid down in CARDINAL of the ELAA . It does not make any provision for the holding of hearings .

The LAW was signed on DATE and , following ratification , entered into force on CARDINAL DATE ( ORG III , no . DATE ) .

“ ( CARDINAL ) The Contracting Parties shall provide mutual assistance , in accordance with the provisions of LAW , in connection with the investigation and prosecution of offences , the punishment of which at the time of the request for assistance would fall within the jurisdiction of the judicial authorities of ORG , and in related forfeiture proceedings .

( CARDINAL ) ORG shall include :

( h ) assisting in proceedings related to forfeiture and restitution ; ... ”

“ ( CARDINAL ) If ORG of one ORG becomes aware of fruits or instrumentalities of offences which are located in the territory of the other ORG and may be forfeitable or otherwise subject to seizure under the laws of that ORG , it may so inform ORG of the other ORG . If the other ORG has jurisdiction in this regard , it may present this information to its authorities for a determination as to whether any action is appropriate . These authorities shall issue their decision and shall , through their ORG , report to the other ORG on the action taken .

( CARDINAL ) The Contracting Parties shall assist each other to the extent permitted by their respective laws in proceedings relating to the forfeiture of the fruits and instrumentalities of offences , restitution to the victims of crime , and the collection of fines imposed as sentences in criminal prosecutions .

( CARDINAL ) A Requested ORG in control of forfeited proceeds or instrumentalities shall dispose of them in accordance with its law . To the extent permitted by its laws and upon such terms as it deems appropriate , either ORG may transfer forfeited assets or the proceeds of their sale to the other ORG . ”

“ ( CARDINAL ) This Treaty shall apply to requests whether or not the relevant offences occurred prior to the entry into force of LAW . ”


Preliminary objections dismissed (victim, non-exhaustion of domestic remedies);No violation of Art. 14+P1-1

Anatoly Kovler;András Baka;Corneliu Bîrsan;Egbert Myjer;Elisabeth Steiner;Françoise Tulkens;Giovanni Bonello;Ineta Ziemele;Isabelle Berro-Lefèvre;Javier Borrego Borrego;Jean-Paul Costa;Josep Casadevall;Kristaq Traja;Lech Garlicki;Margarita Tsatsa-Nikolovska;Mindia Ugrekhelidze;Nicolas Bratza;Stanislav Pavlovschi

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

The applicants are unmarried sisters , born on CARDINAL DATE and DATE respectively . They have lived together , in a stable , committed and mutually supportive relationship , all their lives ; for DATE in a house built on land inherited from their parents in GPE .

The house is owned by the applicants in their joint names . According to an expert valuation dated DATE , the property was worth MONEY ( GBP ) , or GBP CARDINAL if sold together with the adjoining land . The sisters also jointly own CARDINAL other properties , worth GBP CARDINAL in total . In addition , each sister owns in her sole name shares and other investments worth MONEY . Each has made a will leaving all her property to the other .

The applicants submitted that the value of their jointly owned property had increased to the point that each sister ’s CARDINAL share was worth significantly more than the current exemption threshold for inheritance tax ( see paragraph CARDINAL below ) .

By DATE , CARDINAL and CARDINAL of LAW DATE , inheritance tax is charged at PERCENT on the value of a person ’s property , including his or her share of anything owned jointly , passing on his or her death , and on lifetime transfers made within DATE of death . The charge is subject to a nil rate threshold of GBP CARDINAL for transfers DATE and DATE ( section CARDINAL of LAW DATE ) .

Interest is charged , currently at PERCENT , on any tax not paid within DATE after DATE in which the death occurred , no matter what caused the delay in payment . Any inheritance tax payable by a person to whom land is transferred on death may be paid , at the taxpayer ’s election , in CARDINAL equal DATE instalments , unless the property is sold , in which case outstanding tax and interest must be paid immediately ( section CARDINAL(CARDINAL)-(CARDINAL ) ) .

Section CARDINAL ) of LAW provides that property passing from the deceased to his or her spouse is exempt from charge . With effect from DATE this exemption was extended to a deceased ’s “ civil partner ” ( see paragraphs CARDINAL below ) .

The purpose of LAW was to provide same - sex couples with a formal mechanism for recognising and giving legal effect to their relationships , and to confer on them , as far as possible , the same rights and obligations as entailed by marriage .

A couple is eligible to form a civil partnership if they are ( i ) of the same sex ; ( ii ) not already married or in a civil partnership ; ( iii ) over the age of DATE ; and ( iv ) not within the prohibited degrees of relationship .

A civil partnership is , like marriage , indeterminate in nature and can end only on death , dissolution or annulment . LAW created a comprehensive range of amendments to existing legislation , covering , inter alia , pensions , tax , social security , inheritance and immigration , intended to create parity between civil partnership and marriage for all purposes except in the very few cases where there was an objective justification for not doing so . The courts have similar powers to control the ownership and use of the civil ORG property upon dissolution of a civil partnership as upon dissolution of a marriage .

When LAW was passing through ORG , an amendment to it was adopted in ORG by CARDINAL votes to CARDINAL , which would have had the effect of extending the availability of civil partnership , and the associated inheritance - tax concession , to family members within the “ prohibited degrees of relationship ” , if ( i ) they were DATE ; ( ii ) they had cohabited for DATE ; and ( iii ) they were not already married or in a civil partnership with some other person . The amendment was reversed when the PERSON returned to ORG .

During the course of the debate in ORG , Lord PERSON , a ORG peer , stated :

“ I have great sympathy with the noble ORG , Lady O’Caithlin [ the NORP peer who proposed the amendment ] , when she talks about siblings who share a home or a carer who looks after a disabled relative . Indeed , she will readily acknowledge that I have put the case several times DATE at Second Reading and in ORG –and I have pushed the government very hard to look at this issue . There is an injustice here and it needs to be dealt with , but this is not the PERSON in which to do it . This PERSON is about same - sex couples whose relationships are completely different from those of siblings . ”

During the same debate , Lord PERSON , a NORP peer , stated :

“ There is a strongly arguable case for some kind of relief from inheritance tax for family members who have been carers to enable them to continue living in the house where they have carried out their caring duties . But that is a different argument and this is not the place or the time for that argument . This PERSON is inappropriate for dealing with that issue . ”

During the course of the debate in ORG , PERSON , Member of ORG , Deputy Minister for Women and Equality , stated :

“ As I suggested on Second Reading , we received a clear endorsement of the purpose of the Bill – granting legal recognition to same - sex couples , ensuring that CARDINAL of couples living together in long - term committed relationships will be able to ensure that those relationships are no longer invisible in the eyes of the law , with all the difficulties that that invisibility brings .

We heard a widespread agreement from Members across almost all parties that LAW is not the place to deal with the concerns of relatives , not because those concerns are not important , but because the PERSON is not the appropriate legislative base on which to deal with them . ”

LAW DATE entered into force on DATE . Section CARDINAL ) provides :

“ So far as it is possible to do so , primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights . ”

Section CARDINAL of the CARDINAL Act provides ( so far as relevant ) :

“ ( CARDINAL ) Subsection ( CARDINAL ) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right .

( CARDINAL ) NORP If the court is satisfied that the provision is incompatible with a Convention right , it may make a declaration of that incompatibility . ...

( CARDINAL ) A declaration under this section ...

( a ) does not affect the validity , continuing operation or enforcement of the provision in respect of which it was given ; and

( b ) is not binding on the parties to the proceedings in which it is made . ”

Section CARDINAL provides :

“ ( CARDINAL ) It is unlawful for a public authority to act in a way which is incompatible with a Convention right .

( CARDINAL ) Subsection ( CARDINAL ) does not apply to an act if

( a ) as a result of CARDINAL or more provisions of primary legislation , the authority could not have acted any differently ; or

( b ) in the case of CARDINAL or more provisions of ... primary legislation which can not be read or given effect in a way which is compatible with the Convention rights , the authority was acting so as to give effect to or enforce those provisions . ... ”

Section CARDINAL provides :

“ ( CARDINAL ) This section applies if

( a ) a provision of legislation has been declared under LAW to be incompatible with a LAW right and , if an appeal lies –

( i ) all persons who may appeal have stated in writing that they do not intend to do so ; or

( ii ) the time for bringing an appeal has expired and no appeal has been brought within that time ; or

( iii ) an appeal brought within that time has been determined or abandoned ; or

( b ) it appears to a Minister of the ORG or Her Majesty in ORG that , having regard to a finding of ORG made after the coming into force of this section in proceedings against GPE , a provision of legislation is incompatible with an obligation of GPE arising from the Convention .

( CARDINAL ) NORP If a Minister of the Crown considers that there are compelling reasons for proceeding under this section , he may by order make such amendments to the legislation as he considers necessary to remove the incompatibility . ”

The Government submitted that the objective of giving the national courts the power under section CARDINAL had been to provide a formal means for notifying the government and ORG about a situation in which legislation was found not to comply with the LAW , and to provide a mechanism for speedily correcting the defect . Once a declaration had been made ( or once ORG had found a violation based on a provision of domestic law ) , there were CARDINAL alternative avenues for putting right the problem : either primary legislation could be introduced in ORG , or the minister concerned could exercise his summary power of amendment under LAW DATE .

When LAW passed through ORG on DATE , the Lord Chancellor explained that :

“ [ W]e expect that the government and ORG will in all cases almost certainly be prompted to change the law following a declaration of incompatibility . ”

CARDINAL of the ministers with responsibility for LAW explained to ORG on DATE that :

“ Our proposals [ for remedial orders ] safeguard parliamentary procedures and sovereignty , ensure proper supervision of our laws and ensure that we can begin to get the ability both to enforce human rights law and to create a human rights culture . They also ensure that we can do it in the context of not having to worry that if something is decided by ORG or by our courts that creates an incompatibility , we do not have a mechanism to deal with it in the quick and efficient way that may be necessary . ”

According to statistics provided by the ORG and last updated on DATE , since LAW came into force on DATE there had been CARDINAL declarations of incompatibility . Of these , CARDINAL had been overturned on appeal and CARDINAL remained subject to appeal in whole or in part . Of the CARDINAL declarations which had become final , CARDINAL related to provisions that had already been remedied by primary legislation at the time of the declaration ; CARDINAL had been remedied by subsequent primary legislation ; CARDINAL had been remedied by a remedial order under LAW ; CARDINAL was being remedied by primary legislation in the course of being implemented ; one was the subject of public consultation ; and CARDINAL ( relating to the same issue ) would be the subject of remedial measures which the government intended to lay before ORG in the DATE . In CARDINAL case , A v. Secretary of ORG for ORG [ DATE ] CARDINAL AC DATE , ORG made a declaration of incompatibility concerning section CARDINAL of the Anti - Terrorism , Crime and Security Act DATE , which gave the Secretary of ORG power to detain suspected international terrorists in certain circumstances . The government responded immediately by repealing the offending provision by LAW DATE .

While in common law systems there has traditionally been freedom of testamentary devolution , in civil law systems the order of succession is generally established by statute or code , with some particularly privileged categories of heirs , normally the spouse and close relatives , being granted automatic rights to a portion of the estate ( the so - called reserved shares ) , which can not generally be modified by the decedent ’s will . The position of each heir depends therefore on the combined effect of family law and tax law .

From the information available to the ORG , it would appear that some form of civil partnership , with varying effects on matters of inheritance , are available in CARDINAL member GPE , namely GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , the GPE , GPE , GPE , GPE , GPE , GPE and GPE . Spouses and close relatives , including siblings , are granted statutory inheritance rights in virtually all member GPE . In a majority of member GPE , siblings are treated less favourably in terms of succession rights than the surviving spouse but more favourably than the surviving civil partner ; and only a few member GPE grant the surviving civil partner inheritance rights equal to those of the surviving spouse . Inheritance tax schemes usually follow the order of succession , although in certain countries , such as GPE and GPE , the surviving spouse is granted a more favourable tax exemption than any other category of heir .


Violation of P1-3;Not necessary to examine Art. 14;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

The applicant was born on DATE in the village of GPE , district of Vasylkiv , in the GPE region . He currently resides in GPE , where he has refugee status .

The applicant served in ORG of the President of GPE . He was responsible for guarding the office of the President . In the course of his work , he allegedly made tape recordings of the President ’s personal conversations with third persons relating to the President ’s possible involvement in the disappearance of the journalist PERSON .

Mr PERSON was a political journalist and editor - in - chief of the internet journal GPE Pravda . He was known for his criticism of those in power and for his active involvement in awareness - raising in GPE and abroad concerning issues of freedom of speech . He disappeared on DATE after complaining for DATE of being subjected to threats and surveillance . On DATE the decapitated body of an unknown person , later identified by forensic medical tests as Mr PERSON , was discovered in the vicinity of the town of PERSON , in the GPE region . His widow has lodged an application with the ORG ( application no . CARDINAL ) .

On DATE the applicant left GPE , as he was afraid of political persecution following the public disclosure of the aforementioned tapes .

On DATE the Chairman of ORG of GPE , Mr PERSON , publicly announced during a session of the NORP parliament , PERSON ( ORG ) , the existence of audio recordings secretly made in the office of the President and implicating the President and other high - level ORG officials in the disappearance of PERSON . According to a report by “ Reporters sans frontières ” published on DATE , the recorded conversations mentioned different ways of getting rid of PERSON . In CARDINAL of those conversations , allegedly between the President and the Minister of the ORG , the Minister said that he knew people capable of performing this task , people whom he called “ real eagles ” , ready to do whatever was required . ( The “ real eagles ” were purportedly an illegal squad of former or current members of the security forces . ) This disclosure led to a major political scandal .

DATE , on DATE , the ORG of GPE instituted criminal proceedings against Mr O. Moroz for defamation with regard to the tapes .

The applicant fled GPE . However , he still held an internal passport indicating his registered GPE address for administrative purposes ( the “ propiska ” , as it was called at DATE see paragraphs CARDINAL below ) .

The applicant applied for political asylum in GPE . On DATE ORG of ORG recognised the applicant as a refugee under LAW to LAW ( “ LAW ” ) . ORG issued him with a travel document and granted him the right to stay in GPE indefinitely .

On DATE the investigator at ORG ( “ the ORG ” ) decided to initiate criminal proceedings against the applicant concerning allegations of defamation of the President of GPE , PERSON , as well as PERSON and PERSON , who were at the material time Head of ORG of GPE and Minister of the ORG respectively . Proceedings were also initiated for forgery in respect of the official application the applicant had made for his passport , as he had failed to disclose the fact that he knew certain ORG secrets by virtue of his employment ( see paragraph CARDINAL below ) . On DATE the ORG investigator ordered a search for the applicant .

On DATE the ORG investigator initiated further criminal proceedings against the applicant for his alleged involvement in disclosing ORG secrets and an abuse of power . On DATE the applicant was to be formally charged with all CARDINAL offences , jointly . On DATE the indictment was reissued by the ORG in accordance with LAW . The defamation charge was dropped , as LAW had decriminalised libel . On DATE the ORG of GPE , in the applicant ’s absence , issued a warrant for his arrest and detention pending trial .

On DATE the CARDINALth ORG of GPE nominated the applicant as candidate no . CARDINAL on the ORG list for election to PERSON .

On DATE ORG submitted his application to ORG ( Центральна PERSON ) for his formal registration as a candidate . In the registration request the applicant gave his propiska address as his place of residence in GPE for DATE .

On DATE ORG adopted Resolution no . CARDINAL on the refusal to register candidates for the election on DATE of the people ’s members of PERSON .

This resolution was based on the verbatim record of a discussion on the applicant ’s request for registration and was adopted following a proposal by PERSON , a member of ORG , who claimed that registration should be refused for the following reasons :

“ ... It ensues from what has been specified above that the provision of subsection ( CARDINAL ) of section CARDINAL of the PERSON on the election of the people ’s members of the Verkhovna Rada of GPE , which concerns residence in accordance with the international treaties in force in GPE , does not extend to PERSON .

From a legal point of view , ORG stay in GPE prevents him being recognised as permanently resident in GPE , as prescribed by section CARDINAL of the Law ...

... PERSON remains abroad on other grounds ; those grounds are not covered by subsection ( CARDINAL ) of section CARDINAL of the Law ...

... any break in residence in GPE on grounds other than those for residence or stay listed in subsection ( CARDINAL ) of section CARDINAL of the PERSON ... rules out the possibility for that person to exercise his right to be elected as a people ’s member of the Verkhovna Rada of GPE , since [ a break in residence ] can not constitute residence in GPE ...

... On this account and due to the fact that PERSON has submitted inaccurate information about his habitual place of residence or stay for DATE , as established by ORG , we propose that the GPE refuse ORG registration as a candidate for the election of the people ’s members of the PERSON of GPE ... ”

ORG therefore adopted Ms I. Stavniychuk ’s proposal and refused the registration of CARDINAL potential candidates , including the applicant . In particular , it decided :

To refuse to register , as a candidate for election to PERSON of GPE in the multi - mandate all - State electoral constituency , ORG , enrolled CARDINAL on the list of candidates for the election of the people ’s members of the Verkhovna Rada of GPE on DATE , whose documents , as submitted to ORG , contain substantially inaccurate data about his place and period of residence for DATE . ”

During its meeting , ORG had distinguished the applicant ’s situation from that of a certain Mr PERSON , who had been allowed to stand as a parliamentary candidate in a previous election under different regulations despite having spent DATE abroad for medical treatment in GPE on a temporary basis . The applicant contended that Mr PERSON , who was prosecuted for abuse of power during his office as Acting Prime Minister of GPE , had fled to GPE during the suspension of his parliamentary immunity .

The other CARDINAL candidates were refused registration because they had not filled in the necessary registration documents properly .

On DATE ORG lodged an appeal with ORG of GPE against ORG ’s Resolution no . CARDINAL of DATE . It sought to have the resolution declared unlawful and annulled .

On DATE ORG dismissed the appeal for the following reasons :

“ ... the information about ORG habitual place of residence for DATE in GPE , referred to in the said documents , is contested by ORG and the ORG . This information is substantially lacking in truth in respect of a candidate for election as a member of the Verkhovna Rada of GPE , and therefore paragraph CARDINAL of ORG Resolution no . CARDINAL of DATE complies with the requirements of subsection ( CARDINAL ) of section CARDINAL and sections CARDINAL and CARDINAL of the PERSON on the election of the people ’s members of the Verkhovna Rada of GPE .

On the basis of the foregoing , ... the ORG

Holds :

that the complaint of ORG of GPE concerning paragraph CARDINAL of ORG Resolution no . CARDINAL of DATE on the refusal to register PERSON as a candidate for election to PERSON of GPE in the multi - mandate all - State electoral constituency should be dismissed . ”

On DATE the applicant informed the ORG that he resided in GPE , where he had refugee status . As his case had received much media attention , this was common knowledge in GPE .

DATE LAW , to which GPE is a party , guarantees the right to vote and to stand for public office for citizens of a country .

As regards the participation of refugees in elections in their country of origin , ORG in its General Comment DATE ) on LAW , while noting that LAW prohibited arbitrary discrimination between citizens , considered that a registration requirement , itself dependent on residence , would be justifiable . Thus , States do have a right to limit voting in general to those citizens habitually resident in their territory . This Comment also stated that :

“ CARDINAL . The effective implementation of the right and the opportunity to stand for elective office ensures that persons entitled to vote have a free choice of candidates . Any restrictions on the right to stand for election , such as minimum age , must be justifiable on objective and reasonable criteria . Persons who are otherwise eligible to stand for election should not be excluded by unreasonable or discriminatory requirements such as education , residence or descent , or by reason of political affiliation . No person should suffer discrimination or disadvantage of any kind because of that person ’s candidacy . GPE Parties should indicate and explain the legislative provisions which exclude any group or category of persons from elective office . ”

Relevant extracts from ORG read as follows ( footnotes omitted ) :

“ ... Thirdly , the right to vote and/or the right to stand for election may be subject to residence requirements , residence in this case meaning habitual residence . ... Conversely , quite a few States grant their nationals living abroad the right to vote , and even to be elected . ... Registration could take place where a voter has his or her secondary residence , if he or she resides there regularly and it appears , for example , on local tax payments ; the voter must not then of course be registered where he or she has his or her principal residence .

The free movement of citizens within the country is one of the fundamental rights necessary for truly democratic elections . However , if persons have been displaced against their will , they should , for a certain time , have the possibility of being considered as resident at their former place of residence . This possibility ought to be open for a minimum of DATE but for DATE to persons displaced within the national territory .

Lastly , provision may be made for clauses suspending political rights . Such clauses must , however , comply with the usual conditions under which fundamental rights may be restricted ; in other words , they must :

– be provided for by law ;

– observe the principle of proportionality ;

– be based on mental incapacity or a criminal conviction for a serious offence .

Furthermore , the withdrawal of political rights may only be imposed by express decision of a court of law . However , in the event of withdrawal on grounds of mental incapacity , such express decision may concern the incapacity and entail ipso jure deprivation of civic rights .

The conditions for depriving individuals of the right to stand for election may be less strict than for disenfranchising them , as the holding of a public office is in issue and it may be legitimate to debar persons whose activities in such an office violate a greater public interest . ”

There is no uniform ORG practice with regard to participation in elections by expatriate citizens . Although many GPE do not impose any residence requirement ( for example , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , the GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE ) , other GPE continue to impose such a requirement for presidential elections ( for example , GPE , GPE , “ the former GPE ” , GPE , GPE and GPE ) or parliamentary elections ( GPE and GPE – presidential systems ; GPE , GPE , GPE , GPE , GPE and GPE – non - presidential systems ) or for both types of election ( for example , GPE , GPE , GPE , GPE , GPE , GPE and GPE ) .

Relevant extracts from LAW read as follows :

The LAW of GPE has the highest legal force . ...

The norms of LAW have direct effect . ... ”

“ International treaties that are in force and are accepted as binding by the Verkhovna Rada of GPE are part of the national legislation of GPE .

Constitutional rights and freedoms are guaranteed and shall not be abolished .

There shall be no privileges or restrictions based on ... political ... and other beliefs ... , [ or ] place of residence ...

“ ORG have the right to participate in the administration of ORG affairs , in all NORP and local referenda , to elect freely and to be elected to bodies exercising ORG power as well as local self - government bodies .

ORG enjoy an equal right of access to the civil service and to service in local self - government bodies . ”

“ Constitutional human and ORG rights and freedoms shall not be restricted , except in cases envisaged by LAW .

In conditions of martial law or a state of emergency , specific restrictions on rights and freedoms may be authorised , with an indication of the period of effectiveness of these restrictions . The rights and freedoms envisaged in Articles CARDINAL , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE and CARDINAL of this LAW shall not be restricted . ”

A citizen of GPE who has attained DATE on the date of elections has the right to vote and , if that citizen has resided in the territory of GPE for DATE , may become a member of PERSON ...

A citizen who has a criminal record for having committed an intentional crime shall not be elected to the Verkhovna Rada of GPE if the record is not cancelled and erased by the procedure established by law .

The procedure for the election of the People ’s members of the Verkhovna Rada ... shall be governed by the law . ”

Relevant extracts from the PERSON on ORG of GPE of DATE read as follows :

“ ORG is a permanent State body which , in accordance with LAW , this and other laws of GPE , ensures the organisation , preparation and conduct of the elections of the President of GPE , the people ’s members of the PERSON of GPE and also all - NORP referenda . ”

“ ORG

( CARDINAL ) NORP registers in accordance with the laws of GPE the lists of candidates for election to PERSON from political parties or electoral groups of parties , and issues to political parties and electoral groups a copy of its decision on the registration of these lists ; it also issues formal proof of registration to the candidates . ”

“ The place of residence is generally the place where a citizen permanently or temporarily resides .

The PERSON on the procedure for leaving and entering GPE for NORP citizens contains a reference in its section CARDINAL to the PERSON on ORG secrets . Persons who hold ORG secrets are more strictly controlled should they apply for an external passport or permanent residence abroad . ORG makes a systematic check with ORG of all persons applying for such a passport .

Relevant extracts from the PERSON on elections read as follows :

“ ( CARDINAL ) A citizen of GPE who has attained DATE on DATE of the elections has the right to vote , and , [ if he or she ] has resided in the territory of GPE for DATE , may be elected as a member of parliament .

( CARDINAL ) Residence in GPE under this PERSON means residence in the territory within GPE ’s ORG borders or aboard vessels sailing under the NORP State Flag , and the stay of NORP citizens , in accordance with the procedure established by law , in NORP diplomatic and consular missions , international organisations and their bodies , and at GPE ’s polar stations , as well as the stay of NORP citizens beyond GPE ’s borders in accordance with the international treaties in force in respect of GPE . ”

( CARDINAL) the curricula vitae of persons on the electoral list of a party ( block ) , which must not exceed CARDINAL characters , shall include : the surname , name , patronymic name , DATE , DATE and place of birth , citizenship , information concerning education , labour activity , position ( occupation ) , place of work , public employment ( including dates of elected positions ) , party membership , family status , address of residence with an indication of the period of residence in GPE , [ and any ] criminal record ;

“ ORG shall refuse to register a person standing for election to parliament in the event of the :

( CARDINAL ) ... improper presentation of the documents specified in section CARDINAL ... of the present PERSON ;

( CARDINAL ) NORP emigration of the person nominated for election to another country for permanent residence ;

( CARDINAL) finding by the appropriate electoral commission that the information about the candidate submitted in accordance with the law was substantially inaccurate ;

Relevant extracts from LAW read as follows :

“ Complaints against decisions , actions or omissions by ORG shall be considered by ORG . ”

“ A complaint against a decision , act or omission by ORG , excluding those determined in Chapters CARDINAL-Б and PERSON of this LAW , shall be lodged with ORG of GPE within DATE from the date of adoption of the decision by ORG , or performance of the act or omission . Participants in the electoral process may lodge a complaint with ORG where they consider that their rights or legal interests have been violated by a decision , act or omission of ORG . ”

“ The court delivers a judgment after considering the complaint . If the complaint is substantiated the court declares the act or omission of ORG unlawful , quashes the decision , allows the applicant ’s claim and remedies the violation . If the impugned decision or act of ORG is found to be in conformity with the law , the court shall adopt a decision rejecting the complaint . The court ’s decision is final and is not subject to appeal . ... ”

The relevant part of this PERSON reads as follows :

“ The Verkhovna Rada of GPE resolves to accede to LAW on the Status of Refugees . ”

The instrument of ratification for the protocol was deposited on DATE with immediate effect . The instrument of ratification for the convention was deposited on DATE and came into force on DATE .

Relevant extracts from the ruling of ORG of DATE read as follows :

“ The PERSON on NORP citizenship establishes that a person ’s residence in the territory of GPE is deemed to be continuous if the time he or she has spent abroad on private matters has not exceeded DATE or a total of DATE throughout DATE . The requirement of continuous residence shall not be considered as not being satisfied where the person is on a business trip , studying abroad , receiving treatment on the recommendation of a medical institution or changes his or her place of residence within the territory of GPE ( section CARDINAL of the aforementioned PERSON ) ... ”

Relevant extracts from the judicial practice of ORG read as follows :

“ The substantial inaccuracy of the information about the candidate for election to parliament must be related to intentional acts aimed at concealing from ORG and the electorate true data that would exclude his or her election ... ”

“ A clerical error in the documents submitted for registration to ORG is not a ground for refusal to register a candidate for election to the parliament of GPE . ”

“ The substantial inaccuracy of the information ... may relate to ... the candidate ’s biography and financial status ... leading the electorate to form an untrue picture of the particular candidate ’s decency , qualifications , economic independence or lack of financial capacity . However , in each individual case , the ORG ’s conclusion concerning the substantial inaccuracy of such information shall be based on the results of an overall examination of all the information contained in the documents filed by the candidate and the circumstances that led to the provision of such false information . ”

“ ... the inaccurate information supplied by a candidate distorting facts that might exclude the possibility of his or her election as a people ’s member of parliament may concern his or her age , citizenship , period of residence in GPE or previous convictions for intentional crimes ... The ORG considers that the candidate ’s failure to include in the list of his property private , non - residential LOC that belonged to him ... was not as such substantially inaccurate information that could lead to the annulment of his registration as a candidate for election . ”

NORP The relevant extracts from the recommendation of DATE on the completion of property declarations by election candidates read as follows :

“ B. Recommendation on the method of completion ...

CARDINAL.CARDINAL . This paragraph [ concerning the place of residence ] must be filled out on the basis of the propiska or temporary propiska ( registration ) contained in the [ ordinary citizen ’s ] passport . ”

The regulations governing applications for telephone services required citizens to provide the address of their permanent residence ( the propiska , that is , the passport address ) . Similar requirements may be found in the regulations governing unemployment benefits , census lists , the issue of passports , etc .

According to ORG PERSON ( ORG ) , an eminent legal institution , a passport was an official document certifying the identity of its owner , confirming NORP citizenship and registering his or her permanent place of residence . A person was deemed to have been resident in GPE for DATE if he or she held a passport containing a propiska for DATE . Neither the LAW nor the LAW on elections required information about actual residency , but only information about formal residency on the basis of the propiska in the passport . ORG of ORG followed this opinion in Case no . CARDINAL - CARDINALyCARDINAL ( decision of DATE ) :

“ ... Only documented data collected in a manner prescribed by law regarding the residence of a people ’s member of parliament , or of a candidate for such membership , or of another person in connection with elections , shall have validity , since this constitutes the essential data about a person ...

... a passport is a general document that certifies the identity of its owner , confirms NORP citizenship and registers the permanent place of residence of a citizen ( see section CARDINAL of the Law on NORP citizenship and ORG CARDINAL and CARDINAL of the Regulations on the passport of a citizen of GPE , DATE , no . CARDINAL-XII ) ...

A person is deemed to have been resident in GPE for DATE if he or she possesses a NORP citizen ’s passport that contains a propiska for DATE . The propiska constitutes the fact of registration of the permanent place of residence . ”


Violation of Art. 6-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic and Convention proceedings) - partial award

The applicant was born in DATE and lives in the town of PERSON , the GPE region , GPE .

In DATE the applicant instituted proceedings in the ORG against Mr S. ( a private person ) seeking recovery of a debt . On DATE the court found for the applicant and ordered Mr S. to pay him ORG CARDINAL ( around QUANTITY – “ EUR ” ) .

On DATE the ORG instituted enforcement proceedings in respect of the judgment of DATE .

According to the applicant , the judgment of DATE has been enforced in part and he was paid ORG CARDINAL ( around EUR CARDINAL ) .

In DATE the applicant lodged a complaint with ORG about ORG inactivity in respect of the enforcement of the judgment of DATE . On DATE the court found for the applicant , declared ORG inactivity unlawful and ordered the immediate seizure of the property of Mr. S.

In DATE the applicant instituted proceedings in the ORG against ORG seeking compensation for non - pecuniary damage allegedly caused by the failure of ORG to enforce the judgments of DATE and DATE .

On DATE the court found for the applicant and ordered ORG to pay the applicant ORG CARDINAL,CARDINAL ( ORG CARDINAL ) in compensation for non - pecuniary damage . The court held that due to the failure of ORG to immediately seize the property of Mr S. , as it had been ordered by the judgment of DATE , the latter had sold a substantial part of his property . The court further held that ORG had failed to sell the part of the debtor 's property , which had been seized .

On DATE the ORG instituted enforcement proceedings in respect of the judgment of CARDINAL DATE . On DATE ORG appointed ORG to be responsible for the enforcement of the aforementioned judgment .

On DATE the ORG informed the applicant that ORG was being funded from ORG and it did not have its own assets suitable for seizure .

On DATE the ORG applied to the ORG seeking the interpretation of the way in which the judgment of CARDINAL DATE should be enforced . On DATE the court refused this application , stating that the judgment needed no further interpretation or clarification .

On DATE the ORG discontinued the enforcement proceedings and returned the execution writ to the applicant on the grounds that ORG did not have its own assets and was financed by ORG .

The applicant did not challenge the decision of ORG of DATE before the domestic courts .

The judgment of CARDINAL DATE remains unenforced .

The relevant domestic law is summarised in the judgment of ORG v. GPE ( no . CARDINAL , § § DATE , DATE ) .


David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Vincent A. De Gaetano;Zdravka Kalaydjieva

NORP The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the ORG by Mr A. Hajdari , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their then Agents , PERSON and PERSON .

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

On DATE the applicant entered into a loan contract with a private company , ORG , through CARDINAL of its shareholders , ORG He agreed to lend the amount of MONEY from DATE to CARDINAL DATE , with an interest rate of MONEY per month . When the company defaulted , the applicant lodged an action with GPE to recover the debt under the loan contract .

On DATE the Vlora ORG ( “ the ORG ” ) ordered ORG , which was represented by PERSON to pay back the principal amount , including the interest accrued . In the absence of an appeal , ORG decision became final and enforceable .

A writ of execution was issued for the enforcement of the ORG decision on DATE , as a result of which ORG ’s property – a light bulb factory – was seized by ORG . There is no information regarding any developments in the proceedings following the seizure .

On an unspecified date in DATE the applicant fled the country and was granted political asylum in GPE . He did not return to GPE until DATE .

By a request of ORG shareholders which had reached the registry on DATE , ORG declared bankruptcy proceedings open in respect of PERSON on DATE . In the light of reports and inspections conducted by the general assembly of creditors , the court decided that no reorganisation plan could be considered viable as the company did not have the financial means by which to satisfy the requests of its creditors .

By a decision of CARDINAL DATE , ORG approved the list of creditors that had been drawn up by the assembly of creditors , including the outstanding amounts due . It would appear that ORG shareholders omitted the applicant ’s name from the list of creditors that they had submitted to the ORG pursuant to section CARDINAL of LAW DATE . Consequently , the applicant ’s name was not included in the list of creditors approved by ORG .

ORG further declared the company bankrupt and recognised the creditors as the shareholders of its assets . It assigned an administrator ( administrator ) , who , together with the creditors , was to proceed with the assessment of the company ’s assets .

In DATE the applicant returned to GPE for a visit and enquired about the enforcement of the ORG decision . He was informed that none of ORG ’s property had been seized on his behalf and that , consequently , the DATE decision had not been enforced . The applicant returned to GPE on an unspecified date without taking any action .

In DATE the applicant returned to GPE and on DATE lodged a request for the enforcement of the ORG decision .

On DATE the bailiff ordered the seizure of ORG property without specifying it .

On DATE PERSON ’s property , the light bulb factory , was seized .

On DATE the bailiff attempted to sell the light bulb factory at a public auction . It transpires that the bailiff ’s office was not aware of ORG decision of DATE regarding the bankruptcy of the company and the appointment of an administrator .

A letter of DATE was sent by a lawyer to the PERSON tax authorities enquiring about PERSON ’s registration as a commercial entity . A handwritten note in the bottom right - hand corner indicated that no such company was registered with the tax authorities .

On an unspecified date the administrator lodged a complaint with the ORG requesting leave to appeal out of time to enable him to challenge the ORG decision of CARDINAL DATE . The administrator maintained that he had not been aware of that court decision or of the fact that the applicant was CARDINAL of ORG ’s creditors , since the applicant ’s name did not appear on the list of creditors drawn up by ORG ’s shareholders .

By a decision of DATE ORG granted the administrator ’s action for leave to appeal out of time in accordance with section QUANTITY of LAW . After having initially summoned him to attend the proceedings , ORG proceeded in the applicant ’s absence pursuant to LAW ( “ ORG ” ) as he was not resident in GPE . The applicant became aware of the decision on an unspecified date in DATE and alleged that all time - limits for lodging an appeal had expired by that time .

On DATE the bailiff ’s office decided to discontinue enforcement of the writ of execution of DATE on the ground that the granting of leave to appeal out of time in the administrator ’s favour had stripped ORG DATE decision of its res judicata effect . The bailiff ’s office indicated that ORG DATE decision did not constitute an enforceable title under the ORG .

On DATE the administrator lodged an appeal with ORG ( “ the ORG ” ) , claiming that there had been serious procedural irregularities in the proceedings that had led to the DATE court decision .

Unable to locate the applicant in order to summon him to the hearing , on DATE ORG issued a public notice for the hearing of DATE pursuant to LAW ORG .

On DATE ORG decided to quash the ORG decision of DATE on account of serious procedural irregularities . It found that ORG had failed to notify and summon the other CARDINAL shareholders of the company . It finally remitted the case for fresh examination . The relevant parts of the decision read as follows .

“ By not properly determining the parties to the proceedings and by not notifying the parties of the time and date of the hearing , the examination of this case was in serious breach of procedural rules and violated the provisions of LAW ) and ( d ) of the ORG .

The first - instance court started the examination of the case without notifying the defendant [ that is , the company ] . It erred in the determination of the parties to the proceedings , because it failed to obtain important evidence such as the [ company ’s ] articles of association , its statute and the court decision , from which it could have found out who to summon to the hearing and the exact address of the company ’s seat . The court only summoned PERSON , who was CARDINAL of the shareholders . There is no evidence in the case file that he was authorised , or had any other prerogative , to represent the company or take actions in its name . ”

On DATE ORG issued a public notice stating the outcome of its decision .

Following CARDINAL unsuccessful attempts to summon the applicant to a hearing , on DATE ORG issued a public notice to notify the applicant of the hearing of DATE pursuant to LAW ORG .

On DATE ORG decided in the applicant ’s absence to terminate the proceedings in accordance with LAW ORG .

On DATE the administrator requested the prosecutor ’s office to institute criminal proceedings against ORG for the criminal offence of drawing up false statements , having regard to the incorrect information he had submitted in the course of the bankruptcy proceedings ( see paragraph CARDINAL above ) .

On DATE the prosecutor ’s office declined the request on the strength of the statute of limitations and LAW .

By note verbale of DATE , which was registered at the ORG General on DATE , ORG , in accordance with LAW , informed the Secretary General of ORG intention to derogate from its obligations under the Convention . The relevant parts of the note verbale read as follows ( extracted from the original in LANGUAGE ) .

“ I. In compliance with LAW No CARDINAL , dated DATE , " On LAW " , on the proposal of the Government , ORG of GPE took the decision to declare a state of public emergency . Such a situation will be general , covering the entire territory of GPE . It started from DATE , TIME , and will continue up to the moment of the full reinstatement of constitutional and public order .

II . The imposition of the state of public emergency was forced because of the very extraordinary situation that was created in DATE in GPE . Some forces , making use of the protests and the despair of citizens who lost their money from the failure of financial pyramid schemes , organised groups of terrorists to perform violent actions . Without organising peaceful gatherings , these groups violated the law , the constitutional order , the life of the citizens , institutions and the territorial integrity of the country , creating thereby conditions to plunge GPE into a civil war . Being faced with these attacks of extreme violence , the police forces have preserved selfcontrol , by taking only defensive positions and making no use of firearms , which avoided the prospect of a conflict with unpredictable consequences . DATE , the situation had become extremely complicated , and reached a climax at the moment when the imposition of the state of emergency was being discussed .

Though the Government made a proposal , ORG , after a wide and public discussion , with the intervention of the President of the Republic , refused the proclamation of a public emergency and ordered the temporary placement of some army troops to help the police forces . With a view to having a dialogue and awaiting the response of the protestors , the ORG resigned .

On DATE , a communist armed rebellion broke out in PERSON and adjacent regions organised by the former NORP communists and the former NORP secret police , in collaboration with foreign secret services . Terrorist groups attacked the NORP cities to take power by force of arms . The target of their attacks were innocent people , municipalities , and the headquarters of the police ; jails were broken and ordinary criminals and killers were armed , CARDINAL of PERSON were robbed from the banks ; the houses of citizens and the shops of the businessmen were attacked . The clear aim was to terrorise the population , to paralyse and to take over power by force .

IV . According to ORG , dated CARDINAL ‘ For ORG in Case of Grave Infringement of the Constitutional and Public Order’ , in the event that the state of public emergency is announced , a regime of special measures is to be established . ORG lead all ORG activity to be aimed at dealing with the state of public emergency . Under that state of public emergency , GPE took several measures derogating from its international obligations . Those derogations are made to the extent strictly required by the exigency of the situation , not inconsistent with our constitutional law ‘ For FAC , nor with international treaties to which ORG is a party , in particular LAW Freedoms’ and LAW . They were made only for a restricted period of time . These derogations consist of restricting some human rights and fundamental freedoms of individuals . With regard to that issue , LAW . DATE , dated CARDINAL " For ORG " , provides that " The exercise of some specific rights may be temporarily restricted by law in a situation of national emergency or war , with the exclusion of the rights provided for in DATE ( right to life ) ... , CARDINAL ( abolition of torture ) , CARDINAL ( no enforcement to confess one ’s guilt ) , DATE ( freedom of conscience and religion ) , DATE ( equality before the law ) , DATE ( judicial restitution of the right ) , and CARDINAL ( guarantee of a fair trial ) " .

According to ORG , dated CARDINAL ‘ For ORG in Case of Grave Infringement of the Constitutional and Public Order’ , as well as the Law ‘ On Some Measures in the Context of ORG , the specific restrictions on human rights and fundamental freedoms , entailed by these derogations from our international legal obligations , are as follows :

All armed rebels must hand over arms , munitions and explosives by DATE , TIME . After this deadline , the armed rebels in the battlefield will be shot without warning ( Article CARDINAL ) .

All the gatherings in public places are forbidden ( LAW

All activities of political , sport , cultural or trade union nature are forbidden ( LAW .

The free movement of people is forbidden during defined TIME of the day ( DATE TIME ) ( Article CARDINAL ) .

Illegal gatherings in public places shall be dispersed . In the event that it is impossible to carry out such dispersal by other means , the police units are entitled to use tear - gas , as well as firearms , to the extent indispensable to carry out their own duty according to the law ( LAW .

Limits are imposed on the freedom of press and information . Publication and distribution in the press and broadcasts on the radio of reports which stir up and call for violent actions against national security , the constitutional law , public security and the life of the individual are prohibited . Daily press and media are obliged to publish the full text of the official reports which are directly related to the state of emergency . Press organs are obliged to obtain an approval , prior to sale , of the material intended to be published , from the local staff responsible for execution of the state of emergency . The local staff has the right to suspend any publication which violates this provision ( DATE ) .

By note verbale of DATE , which was registered at the ORG General on DATE , ORG informed the Secretary General of ORG that the Government were withdrawing their notice of derogation under LAW . The relevant parts of the note verbale read as follows .

“ ORG of GPE presents its compliments to the Secretary General of ORG and , referring to the content of Article CARDINAL of ORG , has the honour of informing him that ORG of GPE , when adopting the Law No . CARDINAL of DATE ‘ On the lifting of the state of public emergency in GPE , decided to put an end to the state of public emergency in the whole territory of the country . As from that date , all the measures taken in application of the state of public emergency have ceased to have effect . ”

The relevant parts of LAW read as follows .

State bodies shall comply with judicial decisions . ”

The relevant case - law of ORG concerning the breach of an appellant ’s right of access to court on account of the nonenforcement of a final court ruling has been described in detail in the case of GPE v. GPE , no . CARDINAL , § § CARDINAL–CARDINAL , CARDINAL DATE .

The relevant parts of the ORG read as follows .

“ In the event that the receiver [ of the summons ] does not have a living abode , residence or temporary home in GPE or has not provided an address or appointed a representative ... , he shall be notified of the [ hearing ] by way of posting a copy of the document at the tribunal of the location where the dispute shall be heard as well as on the notice board of the administrative entity where he used to reside and , when that is unknown , of that of his place of birth .

In the event that GPE has entered into bilateral or multilateral agreements , the above - cited provision shall apply only in so far as the notification is not possible in one of the ways envisaged in those agreements . ”

“ If the plaintiff or any of the parties do not attend either the preparatory meeting or the hearing after having been duly notified and without reasonable grounds , the court or the single judge shall decide to terminate the proceedings ( vendos pushimin e gjykimit ) .

“ Each party may summon to the trial of the case a person with whom he or she believes he or she has a shared interest in the case or from whom a guarantee or compensation may be requested if necessary for the completion of the case .

A third party can be summoned when he or she has a known place of abode within the borders of GPE and as long as the trial of the case is still pending at first instance . ”

“ A party which has forfeited the right to appeal on reasonable grounds may submit a request to the court which adopted the decision for leave to appeal out of time . ... ”

ORG may quash the decision of the first - instance court and remits the case for fresh examination in the event that :

ç ) the case was heard in the absence of parties to the proceedings , without having been informed of the date of hearing ;

d ) the parties to the proceedings were improperly identified and determined ;

“ Execution of a decision may only be enforced on the basis of an enforceable title . Enforceable titles include

( a ) civil court ’s decisions that have become final . ... ”

“ A valid title shall be executed at the request of the creditor . A writ of execution shall be issued for this purpose . It is issued

by the court which made the decision in the cases provided for in sub - sections ( a ) ... of the foregoing Article . ”

“ The writ of execution shall be enforced by the bailiff at the request of the creditor ... ”

“ A court decision or other valid title shall be enforced against the debtor ’s immovable property by seizure of the property .

The seizure shall be registered at ORG for the area where the writ of execution was issued . The entry in the register shall indicate the type , nature and [ a description of ] CARDINAL borders of the immovable property , its location and any mortgage or other property rights attached to it .

A copy of the writ of execution shall be communicated to the debtor . ”

“ Once the property has been seized , the bailiff ’s office shall inform the debtor that the property will be sold [ at auction ] , if he does not fulfil his obligation within DATE . .... ”

“ The announcement for the sale at auction shall be posted at the bailiff ’s office and at the site of the immovable property . ... ”

“ The parties may apply to the court executing the decision in order to challenge an act or failure to act by the bailiff ’s office , within DATE of the said act or omission where the parties were present or summoned when the act was committed and in other cases from the date when they were notified or received knowledge of the act or refusal to act . ”

“ The suspension of the enforcement , unless ordered by the court , as well as its discontinuation , shall be decided by the bailiff .

An appeal may be lodged against such decisions to the first - instance court ... ”

LAW DATE , as in force at the material time , provided that bankruptcy proceedings were to be conducted in court ( section CARDINAL ) . Were the proceedings to start on the strength of a legal action by the creditor , he would need to prove that the debtor had defaulted on payment . In any event , the debtor could also file a similar action ( section CARDINAL ) .

During the proceedings , the court could question witnesses , summon experts and hear evidence from the debtor ( sections CARDINAL and CARDINAL ) , who was obliged to submit to the court , inter alia , an accurate list of all his assets and their corresponding value , a list of creditors with their names and addresses and the amount owed to each of them and a list of any debtors with the corresponding amounts they owed to him . The debtor assumed criminal responsibility for the veracity of the lists ( section CARDINAL ) .

The opening of bankruptcy proceedings took place on the strength of a court decision , which would , inter alia , fix a time - limit by which all creditors could submit their claims and the respective sums in NORP leks , state the grounds that gave rise to their participation in the bankruptcy proceedings as well as give their accord for the distribution of sums obtained from the bankruptcy proceedings ( section CARDINAL ) . The district court would also decide to place the debtor under compulsory administration by appointing an administrator .

By virtue of the opening of bankruptcy proceedings , the debtor lost the right to possess and administer all his present and future property . Any civil and arbitration proceedings in which the debtor was a party were suspended on the initiation of bankruptcy proceedings . ORG rulings given before the initiation of bankruptcy proceedings in respect of the enforcement of a court decision were no longer binding at the start of bankruptcy proceedings ( LAW ) .

In the course of the discharge of his duties , the administrator acted under the supervision of the court , which was empowered to replace him , stating reasons ( section DATE ) . In accordance with section CARDINAL , the administrator could lodge a civil claim against the debtor ’s legal actions in the event that the debtor had intentionally made the position of CARDINAL of the creditors worse and when this was known to the third party ; or if , in DATE the opening of the bankruptcy proceedings , the debtor had intentionally made [ the creditors’ ] position worse in favour of other persons , in so far as this can be proved and in so far as the administrator was unaware of the disadvantage suffered .

LAW DATE provided for the possibility of drafting a restructuring plan ( plani i riorganizimit ) , with a view to final liquidation of the debtor . Such a plan required the court ’s approval ( section CARDINAL - CARDINAL ) . The administrator then proceeded with the liquidation of the debtor and the distribution of the sums collected to the creditors in accordance with the table of outstanding dues that had been approved by the court ( section CARDINAL ) .

LAW DATE was repealed by PERSON no . DATE , dated DATE .


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)

Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Paul Lemmens

The applicant was born in DATE . When lodging his application , the applicant was serving a prison sentence in GPE no . CARDINAL Prison , in GPE .

On DATE the applicant was placed in a disciplinary cell as punishment for a disciplinary offence committed in the prison . Another prisoner was also placed in the same cell for a disciplinary offence .

According to the applicant , on DATE the first deputy governor of the prison took the applicant to a storage room and asked him for certain information about alleged unlawful activities on the part of other prisoners . When the applicant refused to give any information , the deputy governor cuffed the applicant ’s hands behind his back , pushed him onto a mattress and put a plastic bag over his head . When the applicant chewed a hole in the bag , the deputy governor threw several mattresses on top of him and , presumably , jumped on them . The applicant lost consciousness . When he regained consciousness , he noticed injuries on his forearms caused by the handcuffs .

On DATE , during a meeting with his lawyer , the applicant wrote a complaint of ill - treatment on DATE and described the circumstances as noted above .

On DATE the applicant ’s lawyer submitted the complaint to ORG . On the same date the applicant was examined by a doctor , who noted that the applicant had suffered injuries on his forearms . The applicant explained to the doctor that the injuries had been caused to him by the handcuffs used on him on DATE .

On DATE the applicant was examined by a medical expert , who had DATE of experience . During the medical examination , the applicant explained that he had caused the injuries himself using coarse yarn . The expert reported abrasions to both forearms and opined that the injuries could have been sustained at the time indicated by the applicant , namely on DATE , and could have been caused by either metal handcuffs or coarse yarn . The expert classified the injuries as light .

On DATE the applicant wrote a statement that he had inflicted the injuries himself with the use of coarse yarn which he had detached from a floor cloth . His cellmate stated that the applicant had inflicted the injuries himself using a rope he made out of a floor cloth . His cellmate also stated that the applicant had rubbed salt into the skin of his forearms to deepen the injuries . The first deputy governor of the prison asserted that no physical or psychological pressure had been applied to the applicant .

On DATE the applicant wrote a statement that the events he had described in his complaint of DATE were fictitious and that he himself had inflicted the injuries on his forearms with the purpose of framing the prison administration .

On DATE , following pre - investigation enquiries , the prosecutor ’s office responsible for supervising the lawfulness of the enforcement of sentences adopted a decision refusing to open an investigation into the applicant ’s allegations of ill - treatment , finding that there had been no corpus delicti . The prosecutor noted that the applicant had withdrawn his initial allegations of ill - treatment and had submitted that the injuries had been self - inflicted , and the applicant ’s cellmate had confirmed that the applicant had inflicted the injuries himself using yarn detached from a floor cloth ; the medical report had suggested that the injuries might have been inflicted by either metal handcuffs or coarse yarn , as was maintained by the applicant . The allegations of ill - treatment were therefore unsubstantiated .

On DATE the applicant explained in writing to his lawyer that the prison staff had exerted psychological pressure on him , as a result of which he had stated that his injuries had been self - inflicted .

The applicant ’s lawyer challenged the decision of DATE before ORG , arguing that the applicant had retracted his compliant involuntarily and that the evidence supporting the decision was unreliable .

NORP By letter of DATE ORG informed the applicant ’s lawyer that his complaint against the decision of DATE was rejected as unfounded .

On DATE the applicant ’s lawyer challenged the decision of DATE before ORG . The lawyer claimed that the prosecutor ’s office had failed to examine the reasons for the applicant ’s change in his statements and had not scrutinised whether that change had been voluntary . He noted in that regard that the applicant was under the control of the individual against whom he had made his initial complaint . The lawyer stated that following the impugned decision the applicant had confirmed his initial allegation of ill - treatment and referred in this regard to the applicant ’s statement of DATE . Furthermore , the applicant ’s cellmate had not been questioned in detail about the incident and the medical examination had not been comprehensive .

On DATE , in response to a request made by the applicant ’s lawyer , a medical expert , whose experience exceeded DATE , examined the medical documentation in respect of the applicant ’s injuries . The expert issued a report in which he concluded that the applicant ’s injuries could not have been inflicted by yarn or rope ; there was no indication that salt had been applied to the affected areas of skin ; and the applicant ’s initial statements that the injuries had been caused by metal handcuffs corresponded to the objective medical information .

On CARDINAL DATE the court upheld the decision of DATE as lawful and substantiated . It noted that : in the course of pre - investigation enquiries the applicant had denied his initial allegation of ill - treatment ; his statement that his injuries had been self - inflicted was consistent with the other evidence in the file which could not be disproved by the medical report of CARDINAL DATE ; and the applicant ’s explanation that he had had the aim of framing the prison administration by injuring himself refuted the arguments advanced by the lawyer . The claim that the applicant had been vulnerable during the pre - investigation enquiries was considered groundless , unsubstantiated and farfetched . The applicant ’s lawyer appealed .

On DATE the ORG of Appeal rejected the appeal as unfounded . It noted that the allegation of ill - treatment had been subsequently withdrawn by the applicant and had been refuted by the other evidence in the file . It concluded that the prosecutor ’s office had correctly refused to open an investigation and the first - instance court had taken a lawful and substantiated decision .

On DATE ORG rejected the applicant ’s lawyer ’s cassation appeal as unfounded .

The relevant provisions of LAW of DATE can be found in the judgment in the case of ORG and Others v. GPE ( nos . ORG and CARDINAL , § CARDINAL , DATE ) .


Violation of P1-1;Violation of Art. 6-1;Pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE .

The applicant is the owner of an apartment in GPE , which she had let to LOC

In a registered letter of CARDINAL DATE , the applicant informed the tenant that she intended to terminate the lease on expiry of the term on DATE and asked him to vacate the LOC by DATE .

In a writ served on the tenant on DATE the applicant reiterated her intention to terminate the lease and summoned the tenant to appear before the Florence Magistrate .

On DATE , the Florence Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by CARDINAL DATE . That decision was made enforceable on DATE .

On DATE , the applicant served notice on the tenant requiring him to vacate the premises .

On CARDINAL DATE , she served notice on the tenant informing him that the order for possession would be enforced by a bailiff on DATE .

DATE and DATE , the bailiff made CARDINAL attempts to recover possession .

Each attempt proved unsuccessful , as , under the statutory provisions providing for the suspension or the staggering of evictions , the applicant was not entitled to police assistance in enforcing the order for possession .

On DATE , the applicant made a statutory declaration that she urgently required the premises in order to sell them at a normal market price .

Each attempt proved unsuccessful , as the applicant was never granted the assistance of the police in enforcing the order for possession .

Following the entry into force of Law No . CARDINAL , the enforcement proceedings were suspended until DATE .

On DATE , the Florence Magistrate ordered that the premises be vacated by DATE .

The relevant domestic law is described in the ORG 's judgment in the case of ORG GPE [ ORG ] , no . CARDINAL , § § DATE , ORG CARDINAL-V.