Remainder inadmissible;Violation of Article 5 - Right to liberty and security (Article 5-4 - Order release);Non-pecuniary damage - award

André Potocki;Angelika Nußberger;Dean Spielmann;Karel Jungwiert;Mark Villiger;Paul Lemmens

The applicant , Mr PERSON , is a NORP national who was born in DATE and is currently an asylum seeker in GPE .

On DATE the applicant was transferred to GPE from the GPE under EU Regulation no . PERSON ( LAW ) and applied for asylum . He was held at the reception centre for asylum seekers at GPE airport . On his arrival he handed the staff of the reception centre medical records issued in GPE and the GPE , showing that he was suffering from hepatitis C and had been treated at a hospital neurology department .

On DATE ORG ( “ the Ministry ” ) refused the applicant entry to the territory of GPE : that is , it refused to allow him to leave the reception centre . The applicant had not been interviewed before the decision was taken . He applied for judicial review , seeking to have the refusal quashed , arguing in particular that his medical condition was incompatible with his being in the reception centre .

On DATE ORG ( městský soud ) quashed the refusal , on the grounds that the ORG had first to consider whether the applicant was a vulnerable person under section CARDINAL(CARDINAL ) of LAW , in view of his medical condition , and thus whether he was to be allowed to enter the country . It added that the applicant must be heard in person .

On DATE the Ministry again refused the applicant entry to the country . It held that he was suffering from an ordinary illness , which did not require any specialist treatment , and that he was receiving appropriate treatment at the reception centre .

On CARDINAL DATE ORG rejected the applicant ’s request for judicial review of the second refusal , stating that his state of health did not require him to be hospitalised . Moreover , as his medical treatment had not yet started , his transfer to a medical facility was not necessary . If the situation changed a fresh assessment might be required .

On DATE and CARDINAL DATE the applicant once again requested leave to enter the country . ORG did not decide on his requests , relying on section CARDINAL(CARDINAL ) of LAW , which stipulated that a foreigner was not entitled to lodge a new request for leave to enter the country until DATE had passed since the rejection of a previous one . It added , though , that it was proprio motu continuing to review the existence of the reasons for the applicant ’s detention .

On DATE the ORG granted the applicant entry to enable him to have medical treatment . It took into account his latest medical reports ; the impossibility for him to have treatment at the reception centre and the impossibility for him to have treatment at ORG because of lack of facilities .

On DATE ORG ( GPE správní soud ) quashed the CARDINAL DATE judgment and remitted the case to ORG , holding that it was insufficiently reasoned .

On DATE ORG again rejected the applicant ’s request for judicial review . The applicant did not lodge an appeal on points of law , as by then he was no longer detained .

The asylum proceedings seem to be still pending .

On DATE the applicant was examined by a specialist at ORG , who concluded that he was suffering from hepatitis C and that the requisite medical treatment should begin as soon as possible following further examinations .

On DATE a doctor at the reception centre , noting the results of the applicant ’s examination at ORG , informed the applicant ’s lawyer in writing that the reception centre was unable to provide adequate treatment for his client . He added that it was not appropriate for the applicant to be held at the reception centre , because of the psychological stress caused by the medical treatment he required , and that he should be transferred to an open asylum facility .

During DATE several other medical reports confirmed that the applicant ’s condition required urgent specialist treatment , which was not available at the reception centre .

In a letter of CARDINAL DATE the reception centre doctor informed ORG that the applicant ’s state of health had been stabilised , that an appropriate diet was being provided , and that he was being provided with medication to enhance his liver function . He further stated that the medical care was adequate and that the applicant was under the permanent supervision of medical personnel . The doctor admitted that his previous assessment had been based on the assumption that a sudden deterioration of the condition was possible ; however , this had not been confirmed later . He concluded that the recent care was fully comparable to the care provided to ordinary citizens , and was appropriate to the applicant ’s actual state of health .

The relevant domestic law and practice are set out in the ORG ’s judgment , PERSON GPE , no . CARDINAL , DATE .

With effect from DATE a new paragraph CARDINAL was introduced into section CARDINAL of LAW ( no . CARDINAL ) setting a time - limit of CARDINAL working days for a court to decide on a request for judicial review of a decision of the ORG refusing entry to GPE to an asylum seeker who was being held at an airport reception centre . If the judicial review quashes the decision , the Ministry must issue a new decision within DATE or grant the asylum seeker entry .

Under section CARDINAL(CARDINAL ) of LAW the Ministry shall allow asylum seekers to enter the territory if they are unaccompanied minors , a family including minors , people with serious health problems , pregnant women , or people who have been tortured or subjected to other forms of psychological , physical or sexual violence .

Article CARDINAL § CARDINAL of LAW ( “ the ORG ” ) provides a similar guarantee as LAW :

Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court , in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful .

ORG , which is empowered to interpret the ORG , has on numerous occasions expressed the opinion that the court mentioned in LAW ORG must have the power to order release if the detention is unlawful ( see , for example , PERSON GPE , no . DATE , § CARDINAL , DATE , and PERSON v. GPE , no . DATE , § CARDINAL , DATE ) .


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

On DATE the applicant was arrested and taken into custody by the Bursa police in connection with an investigation into the activities of the ORG ( Partiya PERSON – Workers’ ORG ) . He was transferred immediately to the premises of the GPE security police , the authority in charge of the investigation . He was questioned until DATE , when he signed a statement and admitted carrying out activities within the organisation in question .

On DATE the applicant was interviewed by the GPE public prosecutor and subsequently by a magistrate , partly confirming on both occasions the statements he had made to the police . The magistrate made an order for the applicant ’s pre - trial detention . He was accordingly transferred to Nazilli E - type Prison in the ORG district .

On DATE the public prosecutor attached to ORG ( “ the public prosecutor ” , “ the ORG ” ) charged the applicant and CARDINAL others with being a member of and assisting the ORG . He sought the application of LAW and CARDINAL of LAW and LAW no . ORG ) .

On DATE the trial began in ORG in the case , registered as no . CARDINAL . The first hearing was devoted to purely procedural matters .

The second hearing was held on DATE in the absence of the defendants – including the applicant – who had informed the court in writing that they would not be appearing in protest against the arrest of Mr A. ORG , the ORG leader . However , the applicant ’s counsel , Mr GPE , submitted that his client had acted against his will out of solidarity with his fellow detainees . The trial judges confined themselves to reading out the indictment and checking that the lawyers present had been duly authorised .

At a hearing on DATE in case no . CARDINAL the applicant and his counsel lodged defence pleadings which were read out and added to the file . The judges then asked the defendants to comment on the various statements taken during the preliminary investigation . The applicant said that he confirmed only the statements he had made in the context of his defence pleadings .

Having regard to all these considerations , the judges decided to join the case in question to case no . CARDINAL/CARDINAL , which was pending before the same bench .

DATE ORG resumed its examination of the joined case no . CARDINAL/CARDINAL . The applicant again appeared with his counsel .

At that hearing , in which a military judge took part , ORG took note of the joinder of case no . CARDINAL and of the contents of the file in that case . The judges subsequently informed the new defendants of all the procedural steps taken previously and read out the documents in the file to the parties , including earlier statements by some of the applicant ’s fellow defendants implicating him .

The applicant and his counsel challenged all the prosecution evidence in case no . DATE , including the statements in question , and , as to the merits , submitted their written pleadings , requesting the judges to endorse them . The pleadings were added to the file . No other decisive steps were taken DATE .

On DATE Article CARDINAL of the LAW was amended with the effect that military judges were barred from sitting as members of national security courts . Further to the consequent amendments made to ORG on DATE , the military judge on the bench of ORG was replaced by a civilian judge .

The first hearing in which the new judge took part was held on DATE and was attended by the applicant and his counsel . It began with the reading out of all the records of the previous hearings . As Mr GPE stated that he had nothing to add at that stage of the proceedings , no steps were taken in respect of the applicant . The next hearing was scheduled for DATE .

On DATE ORG found the applicant guilty of being a member of the ORG and sentenced him to DATE and CARDINAL months’ imprisonment . It held that although he had retracted all the statements which the police and the public prosecutor had taken from him , the confessions resulting from his pleadings filed on DATE were sufficient to establish that he had indeed been a member of the ORG .

The applicant appealed on points of law . In a judgment of CARDINAL DATE ORG upheld the impugned judgment .

Before DATE section CARDINAL of Law no . CARDINAL provided that CARDINAL of the CARDINAL judges sitting in national security courts had to be a military judge ( for the legislation in force at the time , see GPE v. GPE , judgment of DATE , Reports of Judgments and Decisions CARDINAL-IV , pp . CARDINAL , § § CARDINAL ) .

Following the entry into force of Law no . CARDINAL on the above - mentioned date , military judges were no longer allowed to sit in the national security courts , which were eventually abolished by PERSON no . CARDINAL of DATE .


Preliminary objection joined to merits (non-exhaustion of domestic remedies);Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1

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

The applicant was born in DATE and lives in GPE .

On DATE the applicant was arrested in PERSON in GPE . On DATE the Lübeck ORG ( ORG ) issued a warrant for the applicant 's arrest on suspicion of trafficking in and importing narcotic substances . He was subsequently remanded in custody .

Following negotiations with the applicant 's legal representatives , ORG gave the applicant an assurance that the prosecution service would institute proceedings under LAW on ORG ( NORP Treaty Series no . CARDINAL , “ the Transfer Convention ” ) if the applicant confessed to the alleged crimes . Furthermore , they would refrain from requesting a sentence exceeding DATE imprisonment .

On DATE the applicant confessed in writing to having committed the crimes specified in the arrest warrant .

On DATE ORG issued an indictment against the applicant .

Prior to the oral hearing , the applicant 's counsel informed the trial court of the agreement reached between the applicant 's defence lawyers and the public prosecution service .

During the oral hearing before LOC ( Landgericht ) , which took place on DATE , the applicant gave a full confession . ORG requested a sentence of DATE imprisonment . According to the transcript of the hearing , ORG moreover declared as follows :

“ .... ORG does not see any reason not to proceed in accordance with LAW ORG . ”

NORP On DATE the Lübeck ORG , on the basis of the applicant 's confession , convicted him of unlawful trafficking in and importing narcotic substances and sentenced him to DATE imprisonment . The court accepted the applicant 's confession as a mitigating factor . The applicant having waived his right to appeal , the judgment became final on DATE .

On DATE the applicant applied to the GPE - Holstein Ministry of ORG to institute transfer proceedings under LAW . In his pleadings , the applicant 's counsel relied upon the agreement between the defence , the criminal chamber at LOC and ORG at ORG .

On DATE ORG acknowledged receipt of the applicant 's request and informed him that the Head of ORG ( Leitender Oberstaatsanwalt ) in PERSON had been invited to submit comments on it .

On DATE the Head of the Chief Public Prosecutors stated that he would only endorse a transfer under LAW on condition that the NORP authorities gave an assurance of continued enforcement and did not release him before CARDINAL of the sentence had been served .

By a letter of CARDINAL DATE the applicant reminded ORG that , during the oral hearing held on DATE , ORG had given an assurance that he would support the applicant 's request to be transferred under LAW .

On DATE ORG sent the applicant 's submissions to the Head of ORG for comment . They pointed out that it was no longer standard practice in GPE to institute transfer proceedings under LAW .

On DATE the Head of the Chief Public Prosecutors submitted a report containing a statement given by ORG at the hearing . The latter stated that , when giving the assurance , he had not known the difference between Articles CARDINAL and CARDINAL of LAW and had expected the applicant to be transferred to the GPE to serve the sentence imposed by the NORP courts . It had been important to him to express his view that the applicant should be allowed to serve his sentence in his home country .

Based on this statement , ORG considered that the applicant could not be under the impression that he had been promised a transfer under LAW with binding effect on ORG . Subsequently , the Head of the Chief Public Prosecutors refused to endorse a transfer under LAW and suggested a transfer under LAW .

On DATE the applicant asked the ORG ( GPE ) for a judicial determination under LAW of LAW to LAW ( Einführungsgesetz zum Gerichtsverfassungsgesetz , ORG , see Relevant Domestic Law , below ) with regard to ORG decision to pursue the applicant 's transfer under LAW and not , as he had previously been assured , LAW . He submitted that he had only confessed in the light of ORG assurance that the prosecution service would support his transfer under LAW , and that ORG decision to pursue the transfer under LAW violated his right to a fair trial under LAW .

On DATE ORG rejected the applicant 's request as inadmissible . Referring to ORG submissions , ORG considered that ORG comment on the applicant 's transfer request did not constitute a judicial decision within the meaning of section CARDINAL of LAW , as it did not concern the domestic administration of criminal justice , but related to a diplomatic relationship with a foreign State . Furthermore , the Convention on ORG did not confer any individual rights on the applicant .

On DATE the applicant requested ORG to reconsider its decision , having regard to the principle of fair trial .

On DATE ORG informed the applicant of its intention to pursue proceedings under LAW , having regard to ORG practice in relation to the GPE .

On DATE the applicant gave his consent to his transfer under LAW . On DATE the NORP ORG gave its consent to the applicant 's transfer under LAW .

On DATE the applicant was handed over to the NORP authorities and subsequently served the remainder of his sentence in a NORP prison .

On DATE the applicant lodged a constitutional complaint against the ORG 's decision of DATE .

On DATE ORG , sitting as a panel of CARDINAL judges , declined to consider the applicant 's constitutional complaint . According to ORG , the applicant had failed to exhaust domestic remedies . With regard to domestic remedies , ORG found as follows :

“ The applicant has no right to a judicial review of the exercise of discretion in so far as the decision is based on general , in particular foreign policy , considerations ... , the evaluation of which belongs to the core area of Government . However , the judicial review of discretionary powers in respect of law enforcement remains unaffected thereby , in particular with regard to the statement made on DATE of the trial by ORG ... It can not be denied that uncertainties may remain for the person seeking justice in this connection in view of the previously disputed contestability of decisions by the authorising authority , as well as in regard to the possible legal remedies . Sufficient account is taken of the possible uncertainties in regard to the legal remedy on account of the possibility of a binding referral under section CARDINALa LAW . It is reasonable to expect the applicant to have recourse to a disputed legal remedy . ”

According to ORG , it was for the lower courts to decide which court was competent in the applicant 's case . These courts had further to consider whether the impugned act interfered with the applicant 's right to a fair trial or with the principle of protection of legitimate confidence . Notwithstanding the possibility of lodging a fresh request , the fact that the relevant time - limits for lodging appeals might in the meantime have expired did not lead to the constitutional complaint being admissible .

NORP This decision was served on the applicant 's counsel on CARDINAL DATE .

On DATE the applicant unsuccessfully lodged a fresh request with ORG that execution of his sentence be taken over under LAW .

On DATE the applicant was released from prison , having served CARDINAL of his sentence .

Section CARDINALa § CARDINAL of LAW ( Gerichtsverfassungsgesetz ) reads as follows :

“ If the invoked court is not competent to adjudicate the case , the court shall decide thus of its own motion after hearing the parties and shall , at the same time , refer the legal dispute to the competent court ... The decision shall be binding ... on the court to which the legal dispute is referred . ”

Section CARDINAL of LAW to LAW , in so far as relevant , provides as follows :

“ ( CARDINAL ) Upon request , the ordinary courts shall decide on the lawfulness of directives , orders or other measures taken by the judicial authorities to regulate individual issues in the sphere of the civil law ... and the criminal law .

( CARDINAL ) By means of a request for judicial determination an order requiring a judicial or executive authority to take a decision it has omitted or refused to take may also be sought . ”

In accordance with section CARDINAL of the same LAW , the request has to be lodged within DATE of communication of the impugned administrative act . If a party has been prevented from complying with this time - limit through no fault of their own , they can lodge a request to restore the previous time - limit . However , such a request is inadmissible if it has been lodged DATE after expiry of the time - limit , with the exception of cases of force majeure ( section CARDINAL ) ) .

The German Act on International Mutual Assistance in Criminal Matters does not explicitly define the role of the enforcement authority in the transfer proceedings . The LAW merely provides that the authorising authority , which is ORG – which can delegate its competence to ORG DATE must send a transfer request to the administering State . If the decision is taken by ORG , that Ministry , after consulting the public prosecutor 's office , exercises discretion with regard both to foreign policy considerations and law - enforcement issues .

The aim of the Convention on ORG ( “ LAW ” LAW no . CARDINAL ) is to develop international cooperation in the field of criminal law and to further the ends of justice and the social rehabilitation of sentenced persons . According to the LAW , foreigners who are deprived of their liberty as a result of their commission of a criminal offence should be given the opportunity to serve their sentence within their own society .

Article CARDINAL ( “ Effect of transfer for administering ORG ” ) reads as follows :

“ CARDINAL . The competent authorities of the administering State shall :

( a ) NORP continue the enforcement of the sentence immediately , or through a court or administrative order , under the conditions set out in LAW , or

( b ) convert the sentence , through a judicial or administrative procedure , into a decision of that ORG , thereby substituting for the sanction imposed in the sentencing ORG a sanction prescribed by the law of the administering ORG for the same offence , under the conditions set out in LAW .

The administering ORG , if requested , shall inform the sentencing ORG before the transfer of the sentenced person as to which of these procedures it will follow .

The enforcement of the sentence shall be governed by the law of the administering ORG and that ORG alone shall be competent to take all appropriate decisions .

Article CARDINAL ( “ Continued enforcement ” ) provides :

“ CARDINAL . In the case of continued enforcement , the administering State shall be bound by the legal nature and duration of the sentence as determined by the sentencing ORG .

NORP If , however , this sentence is by its nature or duration incompatible with the law of the administering State , or its law so requires , that ORG may , by a court or administrative order , adapt the sanction to the punishment or measure prescribed by its own law for a similar offence . As to its nature , the punishment or measure shall , as far as possible , correspond with that imposed by the sentence to be enforced . It shall not aggravate , by its nature or duration , the sanction imposed in the sentencing ORG , nor exceed the maximum prescribed by the law of the administering ORG . ”

LAW Conversion of sentence ” ) reads as follows :

“ CARDINAL . In the case of conversion of sentence , the procedures provided for by the law of the administering ORG apply . When converting the sentence , the competent authority :

( a ) shall be bound by the findings as to the facts in so far as they appear explicitly or implicitly from the judgment imposed in the sentencing ORG ;

( b ) may not convert a sanction involving deprivation of liberty to a pecuniary sanction ;

( c ) shall deduct the full period of deprivation of liberty served by the sentenced person ; and

( d ) shall not aggravate the penal position of the sentenced person , and shall not be bound by any minimum which the law of the administering ORG may provide for the offence or offences committed .

NORP If the conversion procedure takes place after the transfer of the sentenced person , the administering State shall keep that person in custody or otherwise ensure his presence in the administering State pending the outcome of that procedure . ”


The applicant , Mr PERSON , is a NORP national . He was born in DATE and lives in PERSON do PERSON ( GPE ) . He presented his own case to the ORG . He is an auditor and lawyer . His name was temporarily removed from ORG roll by a decision of ORG of DATE , published in ORG on DATE , which considered the exercise of the profession of lawyer to be incompatible with that of auditor .

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

On DATE the applicant was committed to stand trial at FAC for insulting a judge . The investigating judge officially assigned a lawyer to represent the applicant , contrary to the wishes of the latter , who stated , relying on LAW ( c ) of the LAW , that he wanted to defend himself .

The applicant therefore appealed against the committal order ( despacho de pronúncia ) to ORG ( Tribunal PERSON ) . The investigating judge declared the appeal inadmissible , however , on the ground that it had not been lodged by a lawyer and the applicant could not defend himself in person . The applicant lodged a complaint with the President of ORG , which was dismissed for the same reason .

The applicant then lodged a constitutional appeal with ORG ) . In an order of CARDINAL DATE the President of ORG stated that the issue raised by the applicant , namely the impossibility of defending himself , should be determined by ORG and , accordingly , ordered the appeal to be transmitted to that court .

On DATE the judge rapporteur at ORG , after noting that the applicant ’s name had been temporarily removed from ORG roll , asked him to instruct a lawyer pursuant to LAW . On DATE the applicant alleged that the relevant provision of that LAW was contrary to the LAW and asked for his appeal to be examined . In an order of CARDINAL DATE the judge rapporteur considered that the provision in question was not contrary to the LAW and again asked the applicant to instruct a lawyer , failing which ORG would refuse to examine his appeal . On DATE the applicant requested the matter to be submitted to a committee ( conferência ) of judges .

In a judgment of CARDINAL DATE the committee upheld the order complained of and pointed out that neither the relevant provision of LAW nor the similar provisions of LAW were contrary to LAW . ORG accordingly requested the applicant to instruct a lawyer .

In the meantime the ORG had fixed a hearing for DATE . The applicant maintained that at the start of the hearing he had requested leave to defend himself , which the court had refused . He had then been assigned a lawyer by the court .

In a judgment of DATE the court convicted the applicant and sentenced him to CARDINAL day - fines . The applicant was also ordered to pay CARDINAL NORP escudos ( PTE ) in damages to the assistente ( the judge he had insulted ) .

The applicant appealed against that judgment , but the judge , considering that his appeal was merely a statement within the meaning of LAW , decided not to transmit it to ORG . A complaint submitted by the applicant was treated in the same way in an order of CARDINAL DATE .

On DATE the judge of ORG , considering that the ORG Law no . CARDINAL of CARDINAL DATE should be applied in the present case , declared that the sentence imposed on the applicant ( and not yet enforced ) was void . However , on DATE the applicant learned that the prosecution had instituted enforcement proceedings for the sum payable to the assistente in damages .

Following a request by the applicant in that regard , the judge rapporteur at ORG also declared , on DATE , that the proceedings still pending before that court had terminated .

Under Articles CARDINAL , DATE and CARDINAL of LAW , defence counsel exercises the accused ’s statutory rights . In certain cases , particularly as regards presence at hearings and the lodging of applications , it is compulsory to instruct counsel . If the accused does not appoint a lawyer , the judge must officially assign CARDINAL .

According to the established case - law of ORG , a defendant in criminal proceedings can not represent himself in person even if he is a lawyer or judge . ORG considers that the statutory provisions authorising judges and lawyers to act in person before the courts are inapplicable in criminal cases ( judgment of DATE , Boletim do PERSON no . CARDINAL , p. CARDINAL ) .


Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Stanislav Shevchuk

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

On DATE the applicant instituted civil proceedings in the Dzerzhynsky District Court of ORG against a ORG company , Kharkivsadvinprom , challenging her dismissal on the grounds of redundancy from the position of dispatcher and seeking reinstatement and compensation for wrongful dismissal . She alleged , inter alia , that at the material time the position of senior financial controller ( ведучий економіст-ревізор ) was vacant , and the defendant was obliged under the applicable law to offer it to the applicant .

DATE the court listed CARDINAL hearings . CARDINAL hearings were adjourned since the applicant failed to appear , CARDINAL hearing was adjourned since the both parties failed to appear .

On DATE the court left the applicant ’s claims without consideration . In DATE the applicant lodged an appeal against this ruling .

On DATE the ORG quashed the ruling of CARDINAL DATE and remitted the case to the first instance court .

DATE and DATE the first instance court listed some CARDINAL hearings . QUANTITY hearings were adjourned since the applicant failed to appear . CARDINAL hearing was adjourned since the judge was involved in other proceedings .

On DATE the court ruled against the applicant , finding her dismissal lawful . The court observed , in particular , that the applicant ’s qualifications were insufficient to fill the position of senior financial controller . The applicant appealed in cassation .

On DATE the ORG allowed the applicant ’s cassation appeal and remitted the case for fresh consideration . The court found that the first - instance court had not sufficiently investigated the applicant ’s eligibility for the vacant position . The proceedings were transferred to ORG .

DATE and DATE the first instance court listed CARDINAL hearings . CARDINAL hearing was adjourned since the applicant was ill , CARDINAL due to the applicant ’s request for adjournment . CARDINAL hearing was adjourned since the defendant ’s representative failed to appear .

On DATE ORG of ORG reinstated the applicant and partly allowed her compensation claims , having found that the applicant was sufficiently qualified to fill the vacant position of senior financial controller and that the defendant had wrongly failed to offer her this option . The defendant appealed in cassation .

On DATE the ORG quashed the judgment of CARDINAL DATE and remitted the case for fresh consideration , having found that the first - instance court had insufficiently investigated whether the applicant ’s qualifications made her eligible for the vacant position .

DATE , CARDINAL hearings were listed by the first instance court . CARDINAL hearings were adjourned due to the applicant ’s failure to appear , CARDINAL due to the applicant ’s request for adjournment , CARDINAL due to the absence of the applicant ’s representative appointed ex officio . These adjournments caused a delay of DATE .

CARDINAL hearings were adjourned because the judge was involved in other proceedings , CARDINAL because of the judge ’s illness , CARDINAL because the judge was on leave , and one because he was travelling on official business . CARDINAL hearings were adjourned due to the defendant representative ’s failure to appear . These adjournments caused a delay of DATE . Most of the hearings in the applicant ’s case were scheduled by the first instance court at intervals from DATE .

On DATE the amendments to LAW entered into force . They provided a right to lodge a cassation appeal within DATE period with ORG of GPE against court decisions adopted before DATE and which had entered into force before that date . Accordingly , in DATE , while the proceedings before the first instance court were still pending , the applicant lodged an application with ORG of GPE seeking annulment of the ruling of ORG of DATE . On DATE ORG rejected the applicant ’s appeal in cassation .

On DATE the ORG of Kharkiv dismissed the applicant ’s claims . On DATE the ORG upheld this judgment . The applicant appealed in cassation before ORG .

On DATE ORG rejected the applicant ’s request for leave to appeal in cassation .

In DATE the applicant requested ORG of Kharkiv to quash the judgment of DATE in the light of newly discovered circumstances . On DATE the court refused to grant the applicant ’s request . On DATE and DATE ORG and ORG , respectively , upheld this ruling .

The applicant complained under LAW that the length of proceedings in her case was excessive . She further complained that the proceedings were unfair , notably because free legal aid had not been made available to her and the merits of her claims had been dismissed .


Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Pecuniary damage - award (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)

The applicant was born in DATE and was living in GPE . Following his death on DATE , his wife and children expressed their intention to pursue the application .

On DATE ORG expropriated CARDINAL plots of land belonging to the applicant , for the construction of a dam . A committee of experts assessed the value of the land and the relevant amount was paid to the applicant .

On DATE , following the applicant ’s request of CARDINAL DATE for increased compensation , ORG awarded him MONEY ( TRL ) of additional compensation , plus interest at the statutory rate , as of DATE .

On DATE ORG upheld the decision of the first instance court . On DATE TRL CARDINAL was paid to the applicant .

On DATE the execution office informed ORG that they still had to pay the applicant the remaining GPE CARDINAL,CARDINAL,CARDINAL .

On DATE the administration filed an objection against the remaining amount of debt , before ORG .

On DATE the court partially upheld the objection of the administration and concluded that GPE CARDINAL,CARDINAL,CARDINAL had to be paid to the applicant . The administration ’s request to appeal was dismissed by the court on DATE .

On DATE ORG of ORG paid ORG CARDINAL to the applicant .


CASE OF CHURCH OF SCIENTOLOGY MOSCOW v. RUSSIA

Preliminary objection dismissed (victim);Violation of Art. 11+9;Not necessary to examine Art. 14;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention and domestic proceedings

On DATE the applicant was officially registered as a religious association having legal - entity status under LAW of DATE .

On DATE a new LAW ( “ LAW ” ) entered into force . It required all religious associations that had previously been granted legal - entity status to bring their articles of association into conformity with the LAW and obtain re - registration from the competent ORG .

On DATE the applicant submitted to ORG an application for re - registration , together with the documents required by law .

On DATE the GPE ORG refused re - registration of the applicant on the ground that its purpose and activities contradicted the requirements of LAW and violated LAW as there was an on - going criminal investigation against the then president of the applicant . The applicant indicated that the investigation had been subsequently closed in the absence of indications of a criminal offence .

On DATE the applicant submitted a second application for re - registration .

On DATE the deputy head of ORG informed the applicant that the second application had been refused . He wrote that the applicant had adopted a “ new version of the Charter ” , rather than “ amendments to the Charter ” , and had indicated that by the charter , the applicant “ may have ” , instead of “ shall be entitled to have ” , attached representative offices of foreign religious organisations . He also claimed that there had been other ( unspecified ) violations of NORP laws .

On DATE the then president of the applicant sent a letter to the GPE ORG inviting them to indicate specific violations . He relied on the requirement in section CARDINAL of LAW , pursuant to which the grounds for a refusal were to be set out explicitly .

By a letter of DATE , the deputy head responded to the applicant that ORG was under no obligation to clarify or review charters or other documents and that it could only carry out legal evaluation of the submitted documents and give a decision either to grant or to refuse reregistration .

On DATE , having taken further steps to remedy any supposed defects in the documents , the applicant submitted its third application for registration .

On DATE the deputy head informed the applicant that the application could not be processed because it had submitted an incomplete set of documents . Following a written inquiry of the applicant of CARDINAL DATE as to what documents were missing , the deputy head informed the applicant on DATE that his ORG was not competent to indicate what information was missing and what additional documents were to be submitted .

On DATE the applicant submitted to ORG a fourth , more detailed application for re - registration .

On DATE ORG informed the applicant that the application would not be processed because it had allegedly submitted an incomplete set of documents . The missing documents were not specified .

On DATE the applicant submitted a fifth , still more detailed application .

On DATE ORG repeated that the applicant had submitted an incomplete set of documents and the application would not be processed .

On DATE the time - limit for re - registration of religious organisations expired .

NORP The president and co - founder of the applicant brought a complaint before ORG of GPE against ORG refusal to re - register the applicant .

On DATE the Nikulinskiy ORG of GPE gave judgment , finding that ORG decision of DATE had not had any basis in law . It established that the wordings used in the applicant 's charter were in fact identical to those contained in LAW and held that religious associations should not “ be required to reproduce the text of the law verbatim in their charter ” . The court stressed that ORG could have suggested an editorial revision of the charter without refusing the application as a whole .

ORG further held that the decision of DATE had not been lawful , either . It established that all the documents required by LAW had been appended to the application with the exception of a document confirming the existence of the religious group in the given territory for DATE . However , that document was not necessary because , in accordance with the ruling of ORG , religious organisations established before the adoption of LAW were not required to confirm their DATE existence .

ORG concluded that ORG had been “ in essence , using subterfuges to avoid re - registration [ of the applicant ] ” . It pointed out that such avoidance or refusals had violated the rights of the plaintiffs and their fellow believers guaranteed by LAW and CARDINAL of LAW because the parishioners whose association had no legal - entity status would not be able to rent LOC for religious ceremonies and worship , to receive and disseminate religious literature , to have bank accounts , etc . ORG also held that the refusal had been inconsistent with international standards of law , Articles CARDINAL and CARDINAL of the Convention and Article CARDINAL of LAW . ORG also referred to LAW and held that “ the refusal to grant legal - entity status to a religious entity imposes a practical restriction on the right of each person to profess his / her religion in community with others ” . ORG concluded as follows :

“ Hence , the justice authorities ' avoidance of re - registration of ORG under far - fetched pretexts contradicts the above mentioned laws of GPE and the international law . ”

ORG ordered ORG to re - register the applicant .

ORG did not appeal against the judgment and it became binding and enforceable on DATE . However , ORG refused to comply with it .

On DATE the president of the applicant obtained a writ of execution .

On DATE the applicant submitted its sixth application along with the writ of execution mandating re - registration .

On DATE ORG refused to process the application , repeating that an incomplete set of documents had been submitted . No clarification as to the nature of the allegedly missing document(s ) was given .

On an unspecified date the GPE ORG asked the GPE prosecutor to lodge an application for supervisory review which he did . The prosecutor 's application was granted by the ORG of ORG . On DATE the ORG quashed the judgment of DATE by way of supervisory review . In doing so , it relied on the following grounds . Concerning the lawfulness of the decision of DATE , the ORG criticised ORG for the failure to verify the compliance of the amendments to the charter submitted for re - registration on DATE with the law . As to the refusal of DATE , the ORG opined that the book Scientology : The Theology and Practice of a Contemporary Religion ( NORP edition ) did not provide sufficient information on “ the basic tenets of creed and practices of the religion ” as required by section CARDINAL of LAW and that the set of documents was therefore incomplete . The ORG remitted the matter for a new examination by ORG .

On DATE the Nikulinskiy ORG gave a new judgment . ORG ruled in favour of ORG and dismissed the complaint about the refusal to re - register the applicant . It found that the applicant had not complied with CARDINAL of LAW in that ( i ) the application for re - registration only included copies , rather than originals , of the charter and registration certificate ; ( ii ) the book submitted by the applicant did not qualify to be the “ information on the basic tenets of creed and practices of the religion ” , and ( iii ) the document indicating the legal address of the applicant was missing .

Before the court the plaintiffs unsuccessfully argued that ORG had had in its possession the original charter and registration certificate , as well as the applicant 's legal address , as these documents had been included in the first application for re - registration and ORG had never returned them . ORG concluded , nevertheless , that “ the fact that some documents were [ physically ] in the building of the ORG did not relieve the applicant of the obligation to submit a complete set of documents for registration ” . It affirmed that “ all required documents were to be submitted simultaneously ” .

On DATE ORG upheld the judgment on appeal , endorsing ORG reasoning .

On DATE the applicant submitted a seventh application for re - registration . In observance with the domestic courts ' judgments the application included ( i ) the original charter and registration certificate ; ( ii ) “ information about the basic tenets of creed and practices ” in the form of a CARDINAL - page document instead of a book ; and ( iii ) a new document confirming the legal address .

On DATE a new deputy head of ORG refused to process the application on the ground that the time - limit for re - registration of religious organisation had expired and that a civil action for the applicant 's dissolution ( see below ) was pending .

On DATE the Nikulinskiy ORG refused ORG civil action for dissolution of the applicant , referring to ORG decision of DATE in the case of ORG of ORG , according to which a religious organisation could only be dissolved by a judicial decision if it was duly established that it had ceased its activity or had engaged in unlawful activities ( for a detailed description of the decision , see ORG of The ORG v. GPE , no . CARDINAL/CARDINAL , § § DATE , ECHR DATE ... ) . Since the applicant had on - going financial and economic activities , maintained balance sheets and staged events in municipal districts of GPE , and had not commited any wrongful acts , the action for its dissolution was dismissed . On DATE ORG upheld that judgment on appeal .

On DATE the system for State registration of legal entities was reformed . A new ORG was established and the competence to make entries was delegated to ORG ) . However , in respect of religious organisations a special procedure was retained , under which the regional departments of ORG would still make the decision of whether to register a religious organisation , whilst formal processing of the approved application would pass to ORG . All existing legal entities were required to provide to local tax authorities certain updated information about themselves by DATE .

On DATE the applicant submitted its eighth application for re - registration to ORG , under the new procedure .

On DATE ORG refused to process the application , repeating that re - registration was no longer possible due to the expiry of the time - limit .

On DATE , after ORG upheld the judgment refusing dissolution of the applicant , the applicant submitted a ninth application for re - registration . On DATE it also submitted the updated information required under the new procedure , to the local registering tax authority , ORG no . DATE .

On DATE the head of ORG , responded to the applicant 's letter of DATE in the following terms :

“ ... a situation exits when , on one hand , the action of the [ GPE ORG ] seeking dissolution of your religious organisation has been refused , and , on the other hand , the very same court has upheld as lawful our decisions to leave the applications and documents for re - registration of this organisation unexamined , whereas the time - limit for re - registration established by law has expired . ”

On DATE ORG refused to process the ninth application , referring to the above letter from the department head and stating , as before , that the time - limit had passed .

On DATE ORG no . DATE entered the applicant on ORG and issued the registration certificate .

On DATE the applicant submitted a tenth application for re - registration , attaching the registration certificate .

On DATE ORG left the tenth application unexamined , repeating once again that the time - limit had expired .

On DATE the applicant lodged a complaint against ORG persistent refusal to re - register the applicant under LAW . It argued , in particular , that the actions of ORG constituted a breach of the rights to freedom of religion and association of the applicant and its members . It submitted a copy of the registration certificate of DATE and relied on ORG decision of DATE .

On DATE the Presnenskiy District Court of GPE dismissed the complaint , holding that LAW did not provide for a possibility to re - register religious organisations that had missed the time - limit for re - registration .

On DATE the ORG quashed the judgment of DATE and remitted the case . It held as follows :

“ ... failure to re - register within the established time - limit can not in itself serve as a basis ... for refusal to register amendments to the charter ... of a religious organisation upon expiry of the established time - limit ...

Refusal of registration of amendments to the founding documents of a religious organisation restricts the rights of the organisation , and , as a consequence , those of its members , to determine independently the legal conditions of its existence and functioning . ”

On DATE the Presnenskiy District Court granted the applicant 's complaint against ORG . It found that LAW could not be interpreted as restricting a religious organisation 's ability to amend its founding documents after the expiry of the time - limit set for re - registration . ORG decision not to process the application for registration of the amended charter was therefore unlawful . ORG ordered ORG to re - register the applicant by way of registering its charter as amended in DATE .

DATE . On DATE ORG upheld the interpretation of LAW given by ORG . However , it found that ORG was wrongly ordered to register the amended charter without reviewing its compliance with the law . ORG amended the operative part of the judgment and ordered ORG to examine the applicant 's application for registration in accordance with the established procedure .

On DATE the applicant re - submitted its application for registration to ORG , that is , the legal successor of ORG in matters of registration of religious organisations following a reform of the justice system .

On DATE ORG informed the applicant that its application would not be processed because it had not submitted a document confirming its presence in GPE for DATE .

On DATE ORG , ORG and ORG rejected the applicant 's application for registration of its newspaper LAW . The decision cited no legal grounds for the refusal and read , in its entirety , as follows :

“ We report , that after the court proceedings between [ the applicant ] and [ ORG ] have completed ( that is , after the judgment has entered into legal force ) , this organisation may apply again for registration of the newspaper LAW . ”

Article CARDINAL guarantees freedom of religion , including the right to profess either alone or in community with others any religion or to profess no religion at all , to freely choose , have and share religious and other beliefs and manifest them in practice .

DATE provides that everyone shall have the right to freedom of association .

On DATE LAW ( no . CARDINAL of CARDINAL DATE – “ LAW ” ) entered into force .

The founding documents of religious organisations that had been established before LAW were to be amended to conform to the LAW and submitted for re - registration . Until so amended , the founding documents remained operative in the part which did not contradict the terms of the LAW ( section CARDINAL § CARDINAL ) .

NORP By letter of DATE ( no . CARDINAL ) , ORG informed its departments that LAW did not establish a special procedure for re - registration of religious organisations . Since section QUANTITY required them to bring their founding documents into conformity with LAW , the applicable procedure was that for registration of amendments to the founding documents described in LAW . LAW provided that the procedure for registration of amendments was the same as that for registration of a religious organisation .

NORP The list of documents required for registration was set out in LAW § CARDINAL and ran as follows :

“ - application for registration ;

- list of founders of the religious organisation indicating their nationality , place of residence and dates of birth ;

- charter ( articles of association ) of the religious organisation ;

- minutes of the constituent assembly ;

- document showing the presence of the religious group in this territory for DATE ... ;

- information on the basic tenets of creed and religious practices , including information on the origin of the religion and this association , forms and methods of activities , views on family and marriage , on education , particular views on health held by the religion followers , restrictions on civil rights and obligations imposed on members and ministers of the organisation ;

- information on the address ( location ) of the permanent governing body of the religious organisation , at which contact with the religious organisation is to be maintained ; and

- document on payment of the ORG duty . ”

Section CARDINAL § CARDINAL stated that registration of a religious organisation could be refused if :

“ - aims and activities of a religious organisation contradict LAW or NORP laws – with reference to specific legal provisions ;

- the organisation has not been recognised as a religious one ;

- the articles of association or other submitted materials do not comply with NORP legislation or contain inaccurate information ;

- another religious organisation has already been registered under the same name ;

- the founder(s ) has ( have ) no capacity to act . ”

Section CARDINAL § CARDINAL in its original wording specified that the re - registration of religious organisations was to be completed by DATE . Subsequently the time - limit was extended until DATE . Following the expiry of the time - limit , religious organisations were liable for dissolution by a judicial decision issued on application of a registration authority .

Examining the compatibility with LAW of the requirement of the PERSON that all religious organisations established before its entry into force should confirm that they have existed for DATE , ORG found as follows ( decision no . CARDINAL of DATE in the case of ORG of Jehovah 's Witnesses in GPE and ORG ) :

“ CARDINAL . ... Pursuant to ... the RSFSR Law on freedom of religion ( as amended on DATE ) , all religious associations – both regional and centralised DATE had , on an equal basis , as legal entities , the rights that were subsequently incorporated in LAW on freedom of conscience and religious associations ...

Under such circumstances legislators could not deprive a certain segment of religious organisations that had been formed and maintained full legal capacity of the rights belonging to them , solely on the basis that they did not have confirmation that they had existed for DATE . In relation to religious organisations created earlier , that would be incompatible with the principle of equality enshrined in LAW , LAW and LAW and QUANTITY of the LAW of GPE , and would be an impermissible restriction on freedom of religion ( LAW ) and the freedom of [ voluntary ] associations to form and to carry out their activities ( LAW ) ... ”

The Constitutional Court subsequently confirmed this position in its decision no . CARDINAL of DATE in the case of GPE of the Society of PERSON , and decision no . CARDINAL of DATE in the case of ORG of ORG .

Resolution DATE ) on GPE 's law on religion , adopted by ORG of ORG on DATE , noted , in particular , the following :

“ CARDINAL . The new NORP law on religion entered into force on DATE , abrogating and replacing a DATE LANGUAGE law – generally considered very liberal DATE on the same subject . The new law caused some concern , both as regards its content and its implementation . Some of these concerns have been addressed , notably through the judgments of ORG of GPE of DATE , DATE and DATE , and the religious communities ' re - registration exercise at federal level successfully completed by ORG on DATE . However , other concerns remain . ...

Moreover , some regional and local departments of ORG have refused to ( re)register certain religious communities , despite their registration at federal level . The federal ORG does not seem to be in a position to control these regional and local departments in accordance with the requirements of the rule of law , preferring to force religious communities to fight these local departments over registration in the courts rather than taking remedial action within the ministry ...

Therefore , the ORG recommends to the NORP authorities that :

i. the law on religion be more uniformly applied throughout GPE , ending unjustified regional and local discrimination against certain religious communities and local officials ' preferential treatment of ORG , and in particular their insisting in certain districts that religious organisations obtain prior agreement for their activities from ORG ;

ii . the federal ORG become more proactive in resolving disputes between its local / regional officials and religious organisations before disputes are brought before the courts , by taking remedial action within the ministry in case of corruption and/or incorrect implementation of the law on religion , thus rendering it unnecessary to take such cases to the courts ... ”


Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Volodymyr Butkevych;Zdravka Kalaydjieva

The applicant , Mr Mykhaylo Volodymyrovych Kumok , is a NORP national who was born in DATE and lives in PERSON . He was represented before the Court by PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON , from ORG .

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

The applicant is the editor - in - chief of a DATE newspaper PERSON vedomosti . On DATE , a special issue of the newspaper was published in a local printing house . The issue was dedicated to the latest events in PERSON relating to the imminent parliamentary and local elections .

On DATE ORG applied to ORG , seeking prohibition of the distribution of this special issue of the newspaper PERSON vedomosti .

On DATE the court granted the application . The court stated that under LAW , election campaigning must cease at CARDINAL on DATE prior to the elections . The court found that CARDINAL articles by journalists R and S in the above issue of the newspaper contained campaigning materials and , therefore , banned this issue from distribution . The judgment became final and binding immediately after its adoption .


Violation of Art. 3 (in case of extradition to Uzbekistan);Violation of Art. 5-1;Violation of Art. 5-4;Remainder inadmissible;Non-pecuniary damage - award

Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

The applicant was born in GPE in DATE . In DATE he left GPE and moved to GPE .

On DATE ORG of ORG charged the applicant in absentia with organisation of a criminal group , attempts to overthrow the ORG 's constitutional order and dissemination of the views of a radical extremist movement . The applicant 's name was put on the wanted list .

On DATE ORG authorised the applicant 's arrest .

On DATE ORG requested ORG to extradite the applicant to GPE for prosecution .

On DATE ORG decided to extradite the applicant to GPE . The extradition order stated , inter alia , the following :

“ ... ORG of ORG is investigating a criminal case against PERSON ...

The charges against PERSON state that DATE , in the FAC region of GPE , with the aim of overthrowing the ORG 's constitutional order , he organised a criminal group ... directed its units ... actively participated in the criminal activities of the supporters of an extremist religious movement ... publicly called for the overthrow of the constitutional order of GPE by carrying out “ jihad ” holy war and for the creation of an NORP state ...

... The actions of PERSON are punishable under NORP criminal law and correspond to part QUANTITY ( organisation of a criminal group ) , Article CARDINAL ( actions aimed at violent change of the constitutional order ) , part CARDINAL of Article CARDINAL ( public calls for extremist activities ) of MONEY ; the penalties envisaged under those ORG exceed DATE of deprivation of liberty . The limitation period for the above crimes under NORP and NORP law has not expired ... ”

On DATE the applicant was informed about the extradition order . According to him , he signed the documents certifying that he had been familiarised with the extradition order and refused to appeal against it without being aware of the contents of the document owing to his lack of NORP .

On DATE the applicant 's lawyer requested ORG to reinstate the statutory time - limits for the appeal procedure against the extradition order . On DATE ORG refused the request . The applicant appealed , and on DATE ORG granted his request and reinstated the time - limits .

On DATE ORG rejected the applicant 's complaint against the extradition order and upheld his extradition to GPE .

On DATE the applicant appealed against this decision to ORG of GPE .

On DATE ORG granted the applicant 's request for application of interim measures under LAW to suspend his extradition to GPE .

On DATE ORG upheld the GPE ORG decision and the extradition order became final . Referring to the applicant 's complaints that he risked ill - treatment and torture in GPE , the court stated :

“ ... the [ applicant 's ] references to human rights violations in GPE ... are of a general nature and there is no objective information in the case file indicating that these methods [ of ill - treatment ] would be applied to PERSON ...

... the initiator of the search provided certain guarantees in respect of N.N. Sultanov . Failure to comply with these guarantees would provide the authorities of GPE with grounds to refuse future extradition requests [ from GPE ] in respect of other persons ... ”

On DATE the applicant was detained at Perm-CARDINAL railway station .

On DATE the PERSON transport prosecutor 's office decided to arrest the applicant in accordance with the decision of ORG in GPE and placed him in pre - trial detention facility no . CARDINAL in PERSON ( SIZO-CARDINAL ) . The decision did not provide time - limits for the applicant 's detention .

On DATE the PERSON transport prosecutor 's office again issued a decision to place the applicant in custody pursuant to the extradition order de facto extending the applicant 's initial arrest of DATE . The decision did not provide time - limits for the applicant 's detention .

On DATE ORG decided to extradite the applicant to GPE .

On an unspecified date DATE the applicant was transferred from PERSON to detention facility no . IZ-CARDINAL/CARDINAL in GPE .

On DATE the applicant complained about his detention to ORG in GPE . The complaint was submitted to the administration of the detention facility for further transmission to the court on DATE and registered with the number ORG . However , on DATE ORG informed the applicant that they had not received this complaint .

On DATE the applicant complained to ORG in GPE that his detention pending extradition was unlawful . He stated firstly that he had been detained pending extradition for DATE without any legal extension of the detention , secondly that he had not had any opportunity to challenge the lawfulness of his detention , in violation of LAW , and thirdly that the provisions of NORP criminal procedure legislation concerning detention pending extradition did not meet the ' quality of law ' standard prescribed by LAW .

On DATE ORG rejected the applicant 's complaint , stating the following :

“ ... LAW of LAW [ concerning measures of restraint ] regulates the procedure for the extension of pre - trial detention only in respect of those suspects and the accused against whom the NORP authorities have initiated criminal proceedings ...

The procedure concerning the imposition of the measure of restraint in respect of the applicant is regulated by LAW , which does not provide for an extension of detention with a view to extradition .

At the same time it should be noted that the maximum term of detention of DATE , as prescribed by LAW ... has not been violated ...

Therefore , the court finds that the applicant 's complaint is unsubstantiated and should be rejected ... ”

The applicant appealed against this decision to ORG . On DATE the latter upheld the decision of CARDINAL DATE and left the applicant 's complaint that his detention was unlawful unexamined .

The applicant further appealed to ORG through the supervisory review procedure . On DATE his appeal was dismissed by ORG as unsubstantiated .

On DATE the applicant complained to ORG and ORG that his detention was unlawful and requested to be released . He stated that his detention had not been extended by domestic courts and that the application of the interim measures by ORG ( see paragraph CARDINAL above ) could not serve as the basis for his continued detention .

On DATE the applicant lodged a supervisory appeal with ORG concerning unlawfulness and excessive length of his detention . This appeal was dismissed on DATE .

On DATE the maximum DATE detention period laid down in LAW expired , but the applicant remained in detention .

On DATE ORG rejected the prosecutor 's request for the applicant 's house arrest .

On DATE the PERSON inter - district prosecutor 's office ordered the applicant 's release from detention . On DATE the prosecutor 's office ordered the applicant to sign an undertaking not to leave the area .

On DATE the applicant lodged a request with ORG of ORG ( the ORG ) for refugee status in GPE . On DATE he was interviewed in the detention facility by an officer of the ORG , in the presence of his lawyer .

On DATE the ORG refused the applicant 's request for refugee status , stating “ ... there are no substantiated concerns that he would become a victim of persecution in GPE ” . The applicant appealed against this refusal to ORG in GPE .

On DATE ORG upheld the refusal , stating that the applicant had failed to provide sufficient evidence that he risked ill - treatment if extradited to GPE , and that he had applied for refugee status only after his arrest , which demonstrated that he was trying to avoid lawful criminal prosecution in GPE .

The applicant appealed to ORG . On DATE ORG dismissed the appeal as unsubstantiated and upheld the decision of DATE .

On DATE the applicant lodged a request with the ORG for temporary asylum in GPE .

On DATE ORG of the ORG High Commissioner for Refugees informed the ORG that the applicant 's fear of politically motivated ill - treatment in GPE was well - founded and that he was eligible for international protection under their mandate .

On DATE the ORG refused the applicant 's request for temporary asylum and informed the applicant about it on DATE without providing a copy of this decision .

On DATE the applicant appealed against this refusal to the NORP ORG . The proceedings are pending .

The LAW guarantees the right to liberty ( LAW ) :

“ CARDINAL . Everyone has the right to liberty and personal integrity .

Arrest , placement in custody and detention are permitted only on the basis of a judicial decision . Prior to a judicial decision , an individual may not be detained for longer than TIME . ”

Article CARDINAL of LAW DATE ( ORG no . CARDINAL ) , to which GPE is a party , provides as follows :

“ CARDINAL . In case of urgency the competent authorities of the requesting ORG may request the provisional arrest of the person sought . The competent authorities of the requested ORG shall decide the matter in accordance with its law .

Provisional arrest may be terminated if , within DATE of arrest , the requested ORG has not received the request for extradition and the documents mentioned in LAW . It shall not , in any event , exceed DATE from DATE of that arrest . The possibility of provisional release at any time is not excluded , but the requested ORG shall take any measures which it considers necessary to prevent the escape of the person sought . ”

The CIS Convention on legal aid and legal relations in civil , family and criminal cases ( the DATE Minsk Convention ) , to which both GPE and GPE are parties , provides that a request for extradition must be accompanied by a detention order ( LAW ) .

A person whose extradition is sought may be arrested before receipt of a request for his or her extradition . In such cases a special request for arrest , containing a reference to the detention order and indicating that a request for extradition will follow , must be sent . A person may also be arrested in the absence of such a request if there are reasons to suspect that he or she has committed , in the territory of the other ORG , an offence entailing extradition . The other ORG must be immediately informed of the arrest ( Article CARDINAL ) .

A person arrested under LAW must be released if no request for extradition is received within DATE of the arrest ( LAW ) .

LAW of LAW ( “ Preventive measures ” ) governs the use of preventive measures ( меры пресечения ) , which include , in particular , placement in custody . Custody may be ordered by a court on an application by an investigator or a prosecutor if a person is charged with an offence carrying a sentence of DATE imprisonment , provided that a less restrictive preventive measure can not be used ( LAW ) . The period of detention pending investigation may not exceed DATE ( Article CARDINAL § CARDINAL ) . A judge may extend that DATE ( LAW ) . Further extensions to DATE , or in exceptional circumstances DATE , may be granted only if the person is charged with serious or particularly serious criminal offences ( LAW ) . No extension beyond DATE is permissible and the detainee must be released immediately ( LAW ) .

LAW ( “ Complaints about acts and decisions by courts and officials involved in criminal proceedings ” ) provides for the judicial review of decisions and acts or failures to act by an investigator or a prosecutor that are capable of adversely affecting the constitutional rights or freedoms of parties to criminal proceedings ( LAW ) . The court must examine the complaint within DATE of its receipt .

LAW ( “ Extradition of a person for criminal prosecution or execution of sentence ” ) regulates extradition procedures . On receipt of a request for extradition not accompanied by an arrest warrant issued by a foreign court , a prosecutor must decide on the preventive measure to be applied to the person whose extradition is sought . The measure must be applied in accordance with the established procedure ( LAW ) . A person who has been granted asylum in GPE because of possible political persecution in the ORG seeking his extradition may not be extradited to that ORG ( LAW ( CARDINAL ) ) .

An extradition decision made by ORG may be challenged before a court . Issues of guilt or innocence are not within the scope of judicial review , which is limited to an assessment of whether the extradition order was made in accordance with the procedure set out in the relevant international and domestic law ( LAW and CARDINAL ) .

A person may apply for judicial review of decisions and acts or failures to act by a ORG body or a ORG official that are capable of violating his or her rights or freedoms , hindering the exercise of his or her rights and freedoms , or imposing an obligation or liability unlawfully ( Articles CARDINAL § CARDINAL and CARDINAL ) . If the court finds the application well - founded , it must order the ORG body or ORG official concerned to remedy the violation or remove the obstacle to the exercise of the rights and freedoms in question ( LAW ) .

“ LAW provides that the [ trial court ] may ... once DATE has passed since the case was sent to it , extend a defendant 's detention for successive periods of DATE . It does not contain , however , any provisions permitting the courts to take a decision extending a defendant 's detention once the previously authorised timelimit has expired , in which event the person is detained for a period without a judicial decision . Nor do other rules of criminal procedure provide for such a possibility . Moreover , Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL of LAW expressly require the court , prosecutor , investigator ... to immediately release anyone who is unlawfully held in custody beyond the time - limit established in the LAW . Such is also the requirement of LAW and CARDINAL of LAW ... which is an integral part of the legal system of GPE , pursuant to LAW ... ”

Verifying the compatibility of LAW ORG with LAW , ORG reiterated its established case - law to the effect that excessive or arbitrary detention , unlimited in time and without appropriate review , was incompatible with LAW in all cases , including extradition proceedings .

In ORG view , the guarantees of the right to liberty and personal integrity set out in DATE and LAW , as well as the legal norms laid down in LAW of the ORG on preventive measures , were fully applicable to detention with a view to extradition . Accordingly , LAW ORG did not allow the authorities to apply a custodial measure without abiding by the procedure established in the ORG , or in excess of the time - limits fixed therein .

The Prosecutor General asked ORG for an official clarification of its decision no . CARDINAL-O of DATE ( see above ) , for the purpose , in particular , of elucidating the procedure for extending a person 's detention with the aim of extradition .

ORG dismissed the request on the ground that it was not competent to indicate specific criminal - law provisions governing the procedure and time - limits on the keeping of a person in custody with the aim of extradition . That was a matter for the courts of general jurisdiction .

In this decision ORG reiterated that LAW ORG did not imply that detention of a person on the basis of an extradition request did not have to comply with the terms and time - limits provided for in the legislation on criminal procedure .

NORP In this ruling ORG reiterated that the arrest and detention of a person with the aim of extraditing him or her under LAW of the ORG should comply with the requirements of LAW ORG , and that detention pending extradition could be extended only in compliance with the requirements of LAW ORG .

UN General Assembly resolution CARDINAL/CARDINAL of DATE ( “ Torture and other cruel , inhuman or degrading treatment or punishment ” ( ORG Doc.:A / RES/CARDINAL/CARDINAL ) ) reads as follows :

“ ORG ...

Urges GPE not to expel , return ( refouler ) , extradite or in any other way transfer a person to another State where there are substantial grounds for believing that the person would be in danger of being subjected to torture , and recognizes that diplomatic assurances , where used , do not release LAW from their obligations under international human rights , humanitarian and refugee law , in particular the principle of non - refoulement ... ”

In his interim report submitted in accordance with ORG resolution CARDINAL/CARDINAL ( ORG . : ORG , DATE ) , the Special Rapporteur of ORG on torture and other cruel , inhuman or degrading treatment or punishment , PERSON , reached the following conclusions :

“ CARDINAL . It is the view of the Special Rapporteur that diplomatic assurances are unreliable and ineffective in the protection against torture and ill - treatment : such assurances are sought usually from GPE where the practice of torture is systematic ; post - return monitoring mechanisms have proven to be no guarantee against torture ; diplomatic assurances are not legally binding , therefore they carry no legal effect and no accountability if breached ; and the person whom the assurances aim to protect has no recourse if the assurances are violated . The Special Rapporteur is therefore of the opinion that GPE can not resort to diplomatic assurances as a safeguard against torture and ill - treatment where there are substantial grounds for believing that a person would be in danger of being subjected to torture or illtreatment upon return .

The Special Rapporteur calls on Governments to observe the principle of nonrefoulement scrupulously and not expel any person to frontiers or territories where they might run the risk of human rights violations , regardless of whether they have officially been recognised as refugees . ”

Specifically referring to the situation regarding torture in GPE and returns to torture effected in reliance upon diplomatic assurances from the NORP authorities , the UN Special Rapporteur on Torture stated to the CARDINALnd Session of the UN Human Rights Council on DATE :

“ The practice of torture in GPE is systematic , as indicated in the report of my predecessor PERSON visit to the country in DATE . Lending support to this finding , my mandate continues to receive serious allegations of torture by NORP law enforcement officials ... Moreover , with respect to the events in DATE in GPE , the ORG High Commissioner for Human Rights reported that there is strong , consistent and credible testimony to the effect that NORP military and security forces committed grave human rights violations there . The fact that the Government has rejected an international inquiry into the LOC events , independent scrutiny of the related proceedings , and that there is no internationally accepted account of the events , is deeply worrying . Against such significant , serious and credible evidence of systematic torture by law enforcement officials in GPE , I continue to find myself appealing to ORG to refrain from transferring persons to GPE . The prohibition of torture is absolute , and GPE risk violating this prohibition - their obligations under international law - by transferring persons to countries where they may be at risk of torture . I reiterate that diplomatic assurances are not legally binding , undermine existing obligations of GPE to prohibit torture , are ineffective and unreliable in ensuring the protection of returned persons , and therefore shall not be resorted to by GPE . ”

Further referring to the situation regarding torture in GPE , the UN Special Rapporteur on Torture stated to the CARDINALrd Session of ORG on DATE :

“ CARDINAL . The Special Rapporteur ... stressed that he continued to receive serious allegations of torture by NORP law enforcement officials ...

Moreover , with respect to the events in DATE in GPE , the ORG High Commissioner for Human Rights reported that there is strong , consistent and credible testimony to the effect that NORP military and security forces committed grave human rights violations there . The fact that the Government has rejected an international inquiry into the LOC events , and any independent scrutiny of the related proceedings , and that there is no internationally accepted account of the events , is deeply worrying . Even more so , given that no independent monitoring of human rights is currently being conducted .

In light of the foregoing , there is little evidence available , including from the ORG that would dispel or otherwise persuade the Special Rapporteur that the practice of torture has significantly improved since the visit which took place in DATE ... ”

The ORG High Commissioner for Refugees ' Note on ORG and ORG published on DATE reads as follows :

In general , assessing the suitability of diplomatic assurances is relatively straightforward where they are intended to ensure that the individual concerned will not be subjected to capital punishment or certain violations of fair trial rights as a consequence of extradition . In such cases , the wanted person is transferred to a formal process , and the requesting ORG 's compliance with the assurances can be monitored . While there is no effective remedy for the requested ORG or the surrendered person if the assurances are not observed , non - compliance can be readily identified and would need to be taken into account when evaluating the reliability of such assurances in any future cases .

The situation is different where the individual concerned risks being subjected to torture or other cruel , inhuman or degrading treatment in the receiving ORG upon removal . It has been noted that ' unlike assurances on the use of the death penalty or trial by a military court , which are readily verifiable , assurances against torture and other abuse require constant vigilance by competent and independent personnel ' . ORG addressed the issue in its decision in PERSON GPE ( Minister of ORG ) , contrasting assurances in cases of a risk of torture with those given where the person extradited may face the death penalty , and signalling

' ... the difficulty in relying too heavily on assurances by a state that it will refrain from torture in the future when it has engaged in illegal torture or allowed others to do so on its territory in the past . This difficulty becomes acute in cases where torture is inflicted not only with the collusion but through the impotence of the state in controlling the behaviour of its officials . Hence the need to distinguish between assurances regarding the death penalty and assurances regarding torture . The former are easier to monitor and generally more reliable than the latter . '

NORP In his report to ORG of DATE , the special Rapporteur of ORG Human Rights on torture and other cruel , inhuman or degrading treatment or punishment examined the question of diplomatic assurances in light of the non - refoulement obligations inherent in the absolute and non - derogable prohibition of torture and other forms of ill - treatment . Noting that in determining whether there are substantial grounds for believing that a person would be in danger of being subjected to torture , all relevant considerations must be taken into account , the Special Rapporteur expressed the view that :

' in circumstances where there is a consistent pattern of gross , flagrant or mass violations of human rights , or of systematic practice of torture , the principle of nonrefoulement must be strictly observed and diplomatic assurances should not be resorted to . ' ”

United States Department of State , DATE Country Reports on Human Rights Practices – GPE , DATE .

“ ... Torture and Other Cruel , Inhuman , or Degrading Treatment or Punishment

Although the constitution and law prohibit such practices , law enforcement and security officers routinely beat and otherwise mistreated detainees to obtain confessions or incriminating information . Torture and abuse were common in prisons , pretrial facilities , and local police and security service precincts . Prisoners were subjected to extreme temperatures . Observers reported several cases of medical abuse , and CARDINAL known person remained in forced psychiatric treatment .

Authorities reportedly gave harsher than normal treatment to individuals suspected of extreme NORP political sympathies , notably pretrial detainees who were alleged members of banned extremist political organizations PERSON ut - GPE ( ORG ) or PERSON . Local human rights workers reported that authorities often paid or otherwise induced common criminals to beat suspected extremists and others who opposed the government . CARDINAL human rights defenders who were arrested reported beatings in pretrial detention facilities .

There were reports of politically motivated medical abuse . Victims could request through legal counsel that their cases be reviewed by an expert medical board . In practice , however , such bodies generally supported the decisions of law enforcement authorities .

Prison and ORG

Prison conditions remained poor and in some cases life threatening . There continued to be reports of severe abuse , overcrowding , and shortages of food and medicine . Tuberculosis and hepatitis were endemic in the prisons , making even short periods of incarceration potentially life - threatening . Family members frequently reported that officials stole food and medicine that were intended for prisoners .

There were reports that authorities did not release prisoners , especially those convicted of religious extremism , at the end of their terms . Instead , prison authorities contrived to extend inmates ' terms by accusing them of additional crimes or claiming the prisoners represented a continuing danger to society . These accusations were not subject to judicial review . ”

ORG for the Prevention of Torture ( “ the CPT ” ) , in its CARDINALth ORG of DATE on its activities covering the period from DATE to DATE , expressed concern about reliance on diplomatic assurances in the light of the absolute prohibition on torture :

“ CARDINAL . Reference was made in the Preface to the potential tension between a ORG 's obligation to protect its citizens against terrorist acts and the need to uphold fundamental values . This is well illustrated by the current controversy over the use of ' diplomatic assurances ' in the context of deportation procedures . The prohibition of torture and inhuman or degrading treatment encompasses the obligation not to send a person to a country where there are substantial grounds for believing that he or she would run a real risk of being subjected to such methods . In order to avoid such a risk in given cases , certain ORG have chosen the route of seeking assurances from the country of destination that the person concerned will not be ill - treated . This practice is far from new , but has come under the spotlight in DATE as GPE have increasingly sought to remove from their territory persons deemed to endanger national security . Fears are growing that the use of diplomatic assurances is in fact circumventing the prohibition of torture and ill - treatment .

The seeking of diplomatic assurances from countries with a poor overall record in relation to torture and ill - treatment is giving rise to particular concern . It does not necessarily follow from such a record that someone whose deportation is envisaged personally runs a real risk of being ill - treated in the country concerned ; the specific circumstances of each case have to be taken into account when making that assessment . However , if in fact there would appear to be a risk of ill - treatment , can diplomatic assurances received from the authorities of a country where torture and ill - treatment is widely practised ever offer sufficient protection against that risk ? It has been advanced with some cogency that even assuming those authorities do exercise effective control over the agencies that might take the person concerned into their custody ( which may not always be the case ) , there can be no guarantee that assurances given will be respected in practice . If these countries fail to respect their obligations under international human rights treaties ratified by them , so the argument runs , why should CARDINAL be confident that they will respect assurances given on a bilateral basis in a particular case ?

NORP In response , it has been argued that mechanisms can be devised for the post - return monitoring of the treatment of a person deported , in the event of his / her being detained . While the ORG retains an open mind on this subject , it has yet to see convincing proposals for an effective and workable mechanism . To have any chance of being effective , such a mechanism would certainly need to incorporate some key guarantees , including the right of independent and suitably qualified persons to visit the individual concerned at any time , without prior notice , and to interview him / her in private in a place of their choosing . The mechanism would also have to offer means of ensuring that immediate remedial action is taken , in the event of it coming to light that assurances given were not being respected . ”


Anatoly Kovler;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen

The applicant , Mr Urmas Velleste , is an NORP national who was born in DATE and lives in NORP .

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

The applicant was suspected of a number of economic crimes ( fraud and embezzlement ) in respect of which several separate sets of criminal proceedings were initiated on and after DATE . Subsequently , the different criminal proceedings were joined on several occasions ( in DATE , DATE and DATE ) . During the preliminary investigation and trial the applicant was at liberty , except for the period from DATE to DATE , when he was kept in detention because he had failed to appear before the investigator when summoned .

On DATE the bill of indictment was signed by the public prosecutor and the criminal case was sent to ORG for trial .

On DATE the ORG convicted the applicant of some of the charges related to fraud and embezzlement , and acquitted him in respect of the remaining charges . He was sentenced to DATE and CARDINAL months’ imprisonment , of which he had to serve DATE in prison , the remaining part of the sentence being suspended . ORG rejected the applicant ’s argument about the length of the proceedings . It found that considering the volume and complexity of the case and the fact that the case had been in court since DATE , the length of the proceedings had not been excessive . It added that the “ factor of time , namely the time that had passed from the commission of the acts described in the charges until the delivery of the judgment , and the behaviour of the accused at that time , ... were taken into account by the court when determining the [ applicant ’s ] sentence ... ”

By a judgment of CARDINAL DATE ORG upheld ORG judgment in substance . In respect of the complaint about the lapse of reasonable time for the criminal proceedings , ORG noted that the case at hand was a complicated and voluminous one , the written evidence comprised CARDINAL volumes , and many witnesses had been heard . It concluded that a reasonable time for the proceedings had not been exceeded . In respect of the applicant ’s sentence , ORG found that the fact that he had committed DATE before did not serve as a ground for not applying “ shock incarceration ” to him .

On DATE ORG decided not to examine the public prosecutor ’s appeal .

On DATE ORG postponed the enforcement of the applicant ’s prison sentence until DATE on health grounds .

On DATE ORG dismissed the applicant ’s request for release from punishment on health grounds , or alternatively for postponement of the enforcement of his prison sentence . The applicant ’s appeal was dismissed by ORG on DATE . The courts relied on medical information presented by the applicant , according to which he had sustained a serious injury in DATE , had been receiving treatment for back pain since DATE and had been diagnosed with spinal stenosis . Electrotherapy , swimming or other physical exercise had been recommended for him . The courts found that rehabilitation therapy , other than swimming , could be continued in prison and in case of need in - patient treatment was also available .

Article CARDINAL § CARDINAL of LAW ( ORG seadustik ) provides that ORG decides whether to examine an appeal on points of law within DATE of receipt .

Article CARDINAL § CARDINAL of the Code stipulates that ORG hears a criminal case within DATE of agreeing to examine the appeal .

By a decision of DATE , in constitutional review proceedings ( case no . CARDINAL - CARDINAL - CARDINAL - CARDINAL - CARDINAL ) , ORG of ORG rejected a complaint concerning the length of criminal proceedings , noting that the complainant could raise the issue in criminal proceedings before the court hearing the criminal case . It held :

“ CARDINAL . If the court comes to the conclusion that [ the complainant ’s ] right to proceedings within a reasonable time has been violated , the court can , in the light of all the circumstances and on the basis of LAW , terminate criminal proceedings due to inappropriateness , render a judgment of acquittal or take the fact that reasonable time was exceeded into account when passing sentence . ”

The above decision of ORG is more extensively quoted in the case of PERSON v. GPE ( no . CARDINAL , § DATE , CARDINAL DATE ) .

By a judgment of DATE ORG found that the criminal proceedings in the case it was examining had not been conducted within a reasonable time and the defendant ’s sentence was reduced accordingly ( see PERSON , cited above , § CARDINAL ) .

ORG has also found in several judgments that excessive length of proceedings can serve as grounds for the termination of criminal proceedings , the defendant ’s acquittal or taking the length of proceedings into account in the sentence ( judgments of DATE ( case no . CARDINAL ) and DATE ( case no . CARDINAL ) ) .


The applicant is a NORP citizen and the mother of PERSON who was murdered on DATE . The applicant is represented before the ORG by Mr A. McCooey , a solicitor practising in GPE , GPE .

The facts of the case as they have been submitted by the parties may be summarised as follows .