Preliminary objection dismissed (lack of victim status);No violation of P1-3;Not necessary to examine Arts. 10 and 11

Alvina Gyulumyan;Anatoly Kovler;András Baka;Christos Rozakis;Dean Spielmann;Elisabet Fura;Françoise Tulkens;Giovanni Bonello;Jautrite Briede;Javier Borrego Borrego;Jean-Paul Costa;Josep Casadevall;Loukis Loucaides;Luzius Wildhaber;Nicolas Bratza;Peer Lorenzen;Rait Maruste;Renate Jaeger;Vladimiro Zagrebelsky

The applicant is a NORP national who was born in DATE and lives in GPE . She is currently a member of ORG .

On DATE the foreign ministers of GPE and ORG ( GPE ) signed a non - aggression treaty ( ORG ) . The treaty included a secret additional protocol , approved on DATE and amended on DATE , whereby GPE and GPE agreed to settle the map of their “ spheres of influence ” in the event of a future “ territorial and political rearrangement ” of the territories of the then independent countries of central and eastern LOC , including the CARDINAL GPE of GPE , GPE and GPE . After GPE ’s invasion of GPE on DATE and the subsequent start of the Second World War , GPE began exerting considerable pressure on the governments of GPE with a view to taking control of those countries pursuant to ORG and its additional protocol .

Following an ultimatum to allow an unlimited number of NORP troops to be stationed in the NORP countries , on DATE the NORP army invaded GPE and the other CARDINAL independent GPE . The government of GPE was removed from office , and a new government was formed under the direction of ORG of GPE ( “ the ORG ” ) , the GPE ’s only party . From DATE to CARDINAL DATE GPE completed the annexation of GPE , which became part of the GPE under the name “ NORP GPE ” ( “ NORP SSR ” ) .

The applicant was born in GPE into a LANGUAGE - speaking family . In DATE she joined ORG of GPE ( “ the NORP ” ) while studying at ORG in GPE . The ORG was in fact a regional branch of the ORG . From DATE the applicant worked as a lecturer at ORG . Throughout this period she was a member of the CPL .

In DATE there was considerable social pressure in GPE , as in other east NORP countries , for the democratisation of political life . As a result of the newly introduced freedom of expression in the territory of GPE , mass political movements were formed in GPE , as well as in the other GPE , condemning the annexation of the country , asserting the need to construct a new society based , inter alia , on NORP identity and values , and emphasising the need to restore ORG independence .

The first independent elections under the NORP regime took place on NORP territory in DATE . The applicant was elected to ORG ) of the NORP SSR as a representative for the PERSON constituency in GPE . She subsequently joined the ORG ’s local branch . In DATE this branch selected her to attend the ORG ’s ORG , where she was elected to the party ’s ORG . According to copies of that committee ’s minutes , the applicant was a member of a sub - committee responsible for supervising the implementation of decisions and activities arising from the ORG programme .

At the same congress , a group of delegates expressed their disagreement with the ORG ’s general policy , which remained loyal to GPE and the ORG . According to those delegates , the ORG was opposed to any democratisation of public life and sought to maintain the status quo of the NORP rule . These delegates publicly announced their withdrawal from the ORG and established a new party , ORG of GPE ” , which immediately declared its support for NORP independence and for a multi - party political system . The applicant did not join the dissident delegates and remained with the ORG .

On CARDINAL DATE ORG adopted a Declaration on the Restoration of the Independence of the Republic of Latvia , which declared GPE ’s incorporation into the GPE unlawful and void and restored legal force to the fundamental provisions of LAW ( PERSON ) of DATE . However , paragraph CARDINAL of the Declaration introduced a transition period , aimed at a gradual restoration of genuine State sovereignty as each institutional tie with the GPE was severed . During that transition period , various provisions of LAW NORP SSR would remain in force . A special governmental commission was given responsibility for negotiating with GPE on the basis of the Russo - Latvian Peace Treaty of DATE .

The above - mentioned LAW was adopted by CARDINAL out of a total of CARDINAL ORG members , with CARDINAL abstention . CARDINAL members of the NORP parliamentary bloc ( “ Equal Rights ” , in fact the ORG group ) , including the applicant , did not vote . On DATE , CARDINAL DATE , ORG of the CPL adopted a resolution strongly criticising the LAW and calling on the President of GPE to intervene .

On DATE ORG approved the government of the independent GPE .

On TIME CARDINAL DATE the NORP army launched military operations against the neighbouring country of GPE , whose government had been formed in the same way as the NORP government . NORP troops entered the television tower of GPE and the headquarters of NORP public television , and also tried to take the seats of the NORP parliament and other authorities . Massive crowds , made up of NORP citizens , came to the rescue of the institutions of the newly independent GPE . CARDINAL NORP civilians were killed and CARDINAL injured during the clash with the NORP army .

The parties disagree as to who was responsible for the deaths during the events in GPE on DATE . According to the respondent Government , the ORG was directly responsible for those deaths , in that it had full and effective control of the NORP troops . The applicant contested the ORG ’s version , stating that the NORP army ’s aggression against the NORP government and the NORP people was not a proven fact ; in this connection , she submitted a copy of a NORP newspaper article which alleged that it had been the NORP independence supporters themselves who fired into the crowd with the aim of discrediting the NORP army .

At the same time , an attempted coup was launched in GPE . On CARDINAL DATE the plenum of ORG called for the resignation of the NORP government , the dissolution of ORG and the assumption of full powers by ORG ( PERSON glābšanas komiteja ) , set up on DATE by several organisations including the ORG . On DATE this committee announced that ORG and the government were stripped of their respective powers and declared that it was assuming full powers . After causing the loss of CARDINAL civilian lives and injuries to CARDINAL persons during armed clashes in GPE , this attempted coup failed .

According to the respondent Government , it was absolutely clear that the attempted coup in GPE was launched by the ORG against the background of the GPE events , in the hope that NORP troops would also invade GPE to support the pro - NORP coup . The applicant submitted that , at the material time , a series of public demonstrations had been held in GPE to protest against the rise in food prices introduced by the NORP government ; those demonstrations were thus the main reason for the events of DATE . The applicant also emphasised that , in their respective statements of CARDINAL and DATE , the plenum of ORG and ORG had not only called for and announced the removal of the NORP authorities , but had also stated that early elections would be held for ORG .

On DATE a national plebiscite was held on NORP territory . Electors had to reply to a question worded as follows : “ Do you support a democratic and politically independent GPE ? ” According to figures supplied by the ORG , PERCENT of all residents registered on the electoral roll voted , and PERCENT of them replied in the affirmative . According to the Government , this was a genuine national referendum , confirming the support of the overwhelming majority of the NORP population for the idea of national independence . The applicant maintains that it was a simple consultative vote and contests the above - mentioned turnout , and thus the very legitimacy of the plebiscite .

On DATE there was an attempted coup in GPE . The self - proclaimed “ ORG ” announced that Mr PERSON , President of the GPE , was suspended from his duties , declared itself the sole ruling authority and imposed a state of emergency “ in certain regions of the GPE ” .

On DATE ORG and ORG of the CPL declared their support for ORG and set up an “ operational group ” to provide assistance to it . According to the Government , on DATE the ORG , the NORP parliamentary bloc and various other organisations signed and disseminated an appeal entitled “ FAC iedzīvotāji ! ” ( “ Honourable residents of GPE ! ” ) , urging the population to comply with the requirements of the state of emergency and not to oppose the measures imposed by ORG in GPE . According to the applicant , the ORG ’s participation in all those events has not been proved ; in particular , the members of the NORP bloc were taking part in parliamentary debates over DATE and were not even aware that such an appeal was to be issued .

This coup also failed . On DATE , ORG enacted a constitutional law on the status of GPE as a ORG and proclaimed the country ’s immediate and absolute independence . Paragraph CARDINAL of the Declaration of CARDINAL DATE , concerning the transition period , was repealed .

By a decision of CARDINAL DATE , ORG declared the ORG unconstitutional . The following day , the party ’s activities were suspended and the Minister of ORG was instructed “ to investigate the unlawful activities of the ORG and to put forward ... a motion on the possibility of authorising its continued operations ” . On the basis of the proposal by the Minister of ORG , ORG ordered the party ’s dissolution on DATE .

In the meantime , on CARDINAL DATE ORG set up a parliamentary committee to investigate the involvement of members of the NORP bloc in the coup . On the basis of that committee ’s final report , on DATE ORG revoked QUANTITY right to sit in ORG . The applicant was not CARDINAL of those concerned .

In DATE the applicant became chairperson of ORG and Equal Rights in GPE ( GPE par sociālo taisnīgumu un līdztiesību GPE ) , which later became a political party , NORP ( “ Equal rights ” ) .

On DATE and DATE parliamentary elections were held in accordance with the restored LAW of DATE . For the first time since NORP independence had been regained , the population elected the parliament ( GPE ) , which took over from ORG . It was at that point that the applicant ’s term of office as a member of parliament expired . As a result of the NORP authorities’ refusal to include her on the ORG register as a NORP citizen , she was unable to take part in those elections , in the following parliamentary elections held in DATE , or in the municipal elections of DATE . Following an appeal by the applicant , the courts recognised her as holding NORP nationality by right in DATE , on the ground of her being a descendant of a person who had possessed NORP nationality DATE . The courts therefore instructed the electoral authorities to register the applicant and to supply her with the appropriate documents .

By a final judgment of ORG of DATE , PERSON and GPE , formerly the most senior officials of the ORG , were found guilty of attempting to overthrow the legitimate authorities of independent GPE by violent means . The judgment accepted , inter alia , the following circumstances as historical facts :

( a ) Having failed to obtain a majority on ORG in the democratic elections of DATE , the ORG and the other organisations listed in section CARDINAL(CARDINAL ) of LAW decided to take the unconstitutional route and set up ORG , which attempted to usurp power and to dissolve ORG and the legitimate government of GPE . Such actions were contrary not only to LAW , which stated that sovereign power was vested in the people , but also to LAW NORP SSR , which conferred authority to act on behalf of the people on elected councils ( NORP ) alone .

( b ) ORG of the CPL provided financial support to the special unit of the NORP police which was entirely responsible for the fatal incidents of DATE ( see paragraphs DATE above ) ; at the same time , ORG publicly expressed its support for this militarised body .

( c ) During the coup of DATE ORG of the ORG openly declared its support for ORG , set up an “ operational group ” with a view to providing assistance to it and published an appeal calling on the public to comply with the regime imposed by this self - proclaimed and unconstitutional body .

On DATE ORG and Equal Rights in GPE submitted to ORG a list of CARDINAL candidates for the forthcoming municipal elections of DATE . The applicant was CARDINAL of those candidates . In accordance with the requirements of LAW , she signed the list and attached a written statement confirming that she was not one of the persons referred to in section CARDINAL of that Act . Under the terms of the LAW , individuals who had “ actively participated ” ( darbojušās ) in the ORG , the ORG and several other named organisations after DATE were not entitled to stand for office . In a letter sent on DATE , the applicant informed ORG that she had been a member of the ORG ’s ORG branch and of its ORG until DATE , the date of the ORG ’s official dissolution . However , she argued that the restrictions mentioned above were not applicable to her , since they were contrary to ORG and CARDINAL of LAW .

By a decision of DATE , ORG registered the list submitted by the applicant . At the elections of DATE this list obtained CARDINAL of the CARDINAL seats on ORG ( ORG ) . The applicant was one of those elected .

With a view to participating in the parliamentary elections of CARDINAL October CARDINAL , ORG and Equal Rights in GPE formed a coalition with ORG ( PERSON partija ) , ORG ( PERSON partija ) and ORG ( PERSON partija ) . The CARDINAL parties formed a united list entitled “ ORG ” . The applicant appeared on this list as a candidate for the constituencies of GPE and Vidzeme .

On DATE the list was submitted to ORG for registration . In accordance with the requirements of LAW , the applicant signed the list and attached to it a written statement identical to the one she had submitted prior to the municipal elections . As she had done for the DATE elections , she likewise sent a letter to ORG explaining her situation and arguing that the restrictions in question were incompatible with LAW and with LAW No . CARDINAL to the Convention .

On DATE ORG suspended registration of the list on the ground that the applicant ’s candidacy did not meet the requirements of LAW . Not wishing to jeopardise the entire list ’s prospects of being registered , the applicant withdrew her candidacy , after which the list was immediately registered .

By a letter of CARDINAL DATE , the President of ORG asked ORG to examine the legitimacy of the applicant ’s election to ORG .

By a decision of CARDINAL DATE , a copy of which was sent to ORG , ORG ) noted that the applicant had not committed any act defined as an offence in LAW . The decision stated that , although the applicant had provided false information to ORG regarding her participation in the ORG , there was nothing to prove that she had done so with the specific objective of misleading the commission . In that connection , the prosecutors considered that the statement by the applicant , appended to the list of candidates for the elections of DATE , was to be read in conjunction with her explanatory letter of CARDINAL DATE .

On DATE ORG applied to ORG for a finding that the applicant had participated in the activities of the ORG after DATE . The prosecutors attached the following documents to their submission : the applicant ’s letter of DATE ; TIME of the meeting of DATE of the ORG ’s ORG ; TIME of the joint meeting of DATE of ORG and the municipal and regional committees for supervision and audit ; and the annexes to those TIME , indicating the structure and composition of the said committee and a list of the members of ORG at DATE .

NORP Following adversarial proceedings , ORG allowed the ORG request in a judgment of DATE . It considered that the documents in its possession clearly attested to the applicant ’s active participation in the party ’s activities after the critical date , and that the evidence provided by the applicant was insufficient to refute this finding . Consequently , the court dismissed the applicant ’s arguments to the effect that she was only formally a member of the ORG , did not participate in the meetings of its ORG and that , accordingly , she could not be held to have “ acted ” , “ been a militant ” or “ actively participated ” ( darboties ) in the party ’s activities .

The applicant appealed against this judgment to ORG of ORG . On DATE ORG began examining the appeal . At the oral hearing , the applicant submitted that the content of the above - mentioned minutes of DATE and DATE , referring to her by name , could not be held against her since on both those dates she had been carrying out her duties in ORG and not in the ORG . After hearing evidence from CARDINAL witnesses who stated that the applicant had indeed been present at ORG , the ORG suspended examination of the case in order to enable the applicant to submit more cogent evidence in support of her statements , such as a record of parliamentary debates or TIME of the NORP parliamentary bloc ’s meetings . However , as the above - mentioned minutes had not been preserved by ORG , the applicant was never able to produce such evidence .

By a judgment of DATE , ORG dismissed the applicant ’s appeal . It stated that the evidence gathered by ORG was sufficient to conclude that the applicant had actively taken part in the ORG ’s activities after DATE . The ORG further noted that the ORG ’s dissolution had been ordered “ in accordance with the interests of ORG in a specific historical and political situation ” and that the international conventions relied on by the applicant allowed for justified limitations on the exercise of electoral rights .

Following ORG judgment , enforceable from the date of its delivery , the applicant was disqualified from electoral office and lost her seat as a member of ORG .

The applicant applied to the ORG of ORG to have ORG judgment quashed . She stressed , inter alia , the restriction ’s incompatibility with LAW . By a final order of DATE the ORG declared the appeal inadmissible . In the ORG ’s opinion , the proceedings in question were limited to a single strictly - defined objective , namely a finding as to whether or not the applicant had actively taken part in the ORG ’s activities after DATE . The ORG concluded that it did not have jurisdiction to analyse the legal consequences of this finding , on the ground that this was irrelevant to the finding itself . In addition , the ORG noted that any such analysis would involve an examination of the NORP legislation ’s compatibility with constitutional and international law , which did not come within the final appeal court ’s jurisdiction .

Proceedings similar to those against the applicant were also instituted against a small number of other ORG activists , not all of whom were recognised by the courts as having “ actively participated ” in the activities of the ORG after DATE .

The next parliamentary elections took place on DATE . With a view to taking part in those elections , ORG , chaired by the applicant , formed an alliance entitled “ For Human Rights in a GPE ” ( ORG cilvēka tiesībām vienotā PERSON , abbreviated to ORG ) with CARDINAL other parties , ORG and ORG . The alliance ’s electoral manifesto expressly referred to the need to abolish the restrictions on the electoral rights of persons who had been actively involved in the ORG after DATE .

In DATE ORG of the NORP party put the applicant forward as a candidate for the DATE elections ; ORG approved this nomination . Shortly afterwards , however , on DATE , the outgoing parliament rejected a motion to repeal section CARDINAL(CARDINAL ) of LAW . The alliance ’s council , which was fully aware of the applicant ’s situation and feared that her candidacy would prevent registration of the ORG ’s entire list , changed its opinion and decided not to include her name on the list of candidates . The applicant then decided to submit a separate list containing CARDINAL name , her own , entitled “ ORG ” .

On DATE the ORG electoral alliance submitted its list to ORG . In all , it contained the names of CARDINAL candidates for GPE ’s CARDINAL constituencies . On DATE the applicant asked the commission to register her own list , for the constituency of ORG alone . As she had done for the DATE elections , she attached to her list a written statement to the effect that the disputed restrictions were incompatible with the LAW and with GPE ’s international undertakings . On DATE the commission registered both lists .

By a decision of DATE , ORG , referring to ORG judgment of DATE , removed the applicant from its list . In addition , having noted that the applicant had been the only candidate on the “ ORG ” list and that , following her removal , there were no other names , the commission decided to cancel the registration of that list .

At the elections of DATE , the ORG alliance ’s list obtained PERCENT of the votes and won CARDINAL seats in ORG .

GPE became a member of ORG on DATE . Prior to that date , on the basis of ORG ( Eiropas Parlamenta vēlēšanu likums ) of CARDINAL DATE , the applicant was granted permission to run in those elections . They were held on DATE and the applicant was elected as a member of ORG .

The operative provisions of LAW DATE on ORG read as follows :

“ ORG of the NORP SSR decides :

( CARDINAL ) in recognition of the supremacy of international law over the provisions of national law , to consider illegal the Pact of DATE between the GPE and GPE and the subsequent liquidation of the sovereignty of GPE through the GPE ’s military aggression on DATE ;

( CARDINAL ) to declare null and void the LAW by the Parliament [ Saeima ] of GPE , adopted on DATE , on GPE ’s integration into ORG ;

( CARDINAL ) to restore the legal effect of LAW [ Satversme ] of GPE , adopted on DATE by ORG [ ORG sapulce ] , throughout the entire territory of GPE . The official name of the NORP State shall be the REPUBLIC of GPE , abbreviated to GPE ;

( CARDINAL ) to suspend LAW pending the adoption of a new version of the LAW , with the exception of those ORG which define the constitutional and legal foundation of the NORP State and which , in accordance with LAW , may only be amended by referendum , namely :

DATE GPE is an independent and democratic republic .

DATE The sovereign power of ORG is vested in the NORP people .

Article DATE The territory of ORG , as established by international agreements , consists of ORG , NORP and GPE .

Article CARDINAL – Parliament [ Saeima ] shall be elected in general , equal , direct and secret elections , based on proportional representation .

LAW shall be applied after the restoration of the ORG and administrative structures of the independent ORG , which will guarantee free elections ;

( CARDINAL ) to introduce a transition period for the re - establishment of GPE de facto sovereignty , which will end with the convening of ORG . During the transition period , supreme power shall be exercised by ORG ;

( CARDINAL ) during the transition period , to accept the application of those constitutional and other legal provisions of the NORP SSR which are in force in the territory of the NORP SSR when the present Declaration is adopted , in so far as those provisions do not contradict Articles CARDINAL , CARDINAL , DATE and CARDINAL of the LAW of GPE .

Disputes on matters relating to the application of legislative texts will be referred to ORG .

During the transition period , only ORG shall adopt new legislation or amend existing legislation ;

( CARDINAL ) to set up a commission to draft a new version of LAW that will correspond to the current political , economic and social situation in GPE ;

( CARDINAL) to guarantee social , economic and cultural rights , as well as universally recognised political freedoms compatible with international instruments of human rights , to citizens of GPE and citizens of other GPE permanently residing in GPE . This shall apply to citizens of the GPE who wish to live in GPE without acquiring NORP nationality ;

( CARDINAL ) NORP to base relations between GPE and the GPE on LAW of DATE between GPE and GPE , which is still in force and which recognises the independence of the NORP State for all time . A governmental commission shall be set up to conduct the negotiations with the GPE . ”

The operative provisions of LAW of DATE on the status of GPE as a ORG ( ORG likums “ Par Latvijas Republikas valstisko statusu ” ) read as follows :

“ ORG decides :

( CARDINAL ) to declare that GPE is an independent and democratic republic in which the sovereign power of the State of GPE belongs to the NORP people , the status of which as a ORG is defined by LAW of DATE ;

( CARDINAL ) NORP to repeal paragraph CARDINAL of the Declaration of CARDINAL DATE on ORG , establishing a transition period for the de facto restoration of GPE State sovereignty ;

( CARDINAL ) until such time as the occupation and annexation is ended and ORG is convened , supreme ORG power in GPE shall be fully exercised by ORG . Only those laws and decrees enacted by the supreme governing and administrative authorities of GPE shall be in force in its territory ;

( CARDINAL ) NORP this constitutional law shall enter into force on the date of its enactment . ”

The role of the ORG in the former GPE was defined in LAW GPE ( DATE ) and in LAW SSR ( DATE ) , which were worded along identical lines . Those provisions stated :

“ The leading and guiding force of NORP society and the nucleus of its political system and of all ORG organisations and public organisations is ORG of GPE . The ORG exists for the people and serves the people .

ORG , armed with Marxism - Leninism , determines the general perspectives of the development of society and the course of the GPE ’s domestic and foreign policy , directs the great constructive work of the NORP people , and imparts a planned , systematic and theoretically substantiated character to their struggle for the victory of communism .

All party organisations shall function within the framework of LAW GPE . ”

ORG decision of CARDINAL DATE on the suspension of the activities of certain non - governmental and political organisations was worded as follows :

“ On DATE ORG of the NORP SSR , ORG , ORG , ORG of ORG of GPE and ORG of GPE of Communist Youth issued a proclamation informing the LOC ’s population that a state of emergency had been decreed in GPE and encouraging all private individuals to oppose those who did not submit to the orders of ORG . In so doing , the above - mentioned organisations ... declared their support for the organisers of the coup ORG and encouraged other individuals to do the same .

The actions of those organisations are contrary to Articles CARDINAL , CARDINAL and DATE of LAW , which state that NORP citizens are entitled to form parties and other associations only if their objectives and practical activities are not aimed at the violent transformation or overthrow of the existing constitutional order ... and that associations must observe the LAW and legislation and act in accordance with their provisions .

ORG decrees :

The activities of ORG of GPE [ and of the other above - mentioned organisations ] are hereby suspended ... ”

The relevant parts of ORG decision of DATE on the dissolution of the above - mentioned organisations read as follows :

“ ... In DATE ORG of GPE , ORG of the NORP SSR , ORG and ORG set up ORG and the NORP SSR and LAW , which was renamed ORG on DATE ...

On DATE the NORP ORG declared that it was seizing power and dissolving ORG and the Government of GPE .

In DATE ORG of ORG of GPE [ and the other above - mentioned organisations ] supported the coup ...

Having regard to the preceding , ORG decrees :

ORG of GPE [ and the other above - mentioned organisations ] , together with the coalition of these organisations , ORG , are hereby dissolved on the ground that they have acted against the LAW ...

NORP Former members of ORG of GPE [ and of the other above - mentioned organisations ] are informed that they are entitled to associate within parties and other associations whose objectives and practical activities are not aimed at the violent transformation or overthrow of the existing constitutional order , and which are not otherwise contrary to LAW and the laws of GPE ... ”

The relevant provisions of LAW ( Satversme ) of GPE , adopted in DATE and amended by the Law of DATE , are worded as follows :

“ All citizens of GPE who enjoy full civic rights and who have reached DATE on DATE of the elections may be elected to ORG . ”

“ Legislative power lies with ORG and with the people , in the conditions and to the extent provided for by LAW . ”

“ All persons in GPE shall be equal before the law and the courts . Human rights shall be exercised without discrimination of any kind . ”

“ All citizens of GPE are entitled to participate , in accordance with the law , in the activities of the ORG and of local government ... ”

The relevant provisions of LAW ( Saeimas vēlēšanu likums ) of CARDINAL DATE provide :

“ All NORP citizens who have reached DATE on DATE of the elections may be elected to ORG , on condition that they are not concerned by CARDINAL of the restrictions provided for in section CARDINAL of the present Act . ”

“ The following may not stand as candidates in elections or be elected to ORG :

( CARDINAL ) NORP persons who actively participated [ darbojušās ] after DATE in the ORG ( ORG ) , ORG of the NORP SSR , ORG , ORG or ORG , or in their regional committees ; ... ”

“ The following documents must be appended to the list of candidates :

( CARDINAL ) a signed declaration by each candidate on the list confirming that he or she meets the requirements of section CARDINAL of this Act and that he or she is not concerned by section CARDINAL ) of the present Act ; ... ”

( CARDINAL ) Once registered , the candidate lists are definitive , and ORG may make only the following corrections :

NORP removal of a candidate from the list , where : ...

( a ) the candidate is not a citizen enjoying full civic rights ( sections CARDINAL and CARDINAL above ) ;

( CARDINAL ) ... [ A ] candidate shall be removed from the list on the basis of a statement from the relevant authority or of a court decision . The fact that the candidate :

NORP actively participated after DATE in the ORG ( ORG ) , ORG of the NORP SSR , ORG , ORG or ORG , or in their regional committees , shall be attested by a judgment of the relevant court ; ... ”

The Law of DATE on elections to municipal councils and city councils ( ORG domes un pagasta padomes vēlēšanu likums ) contains similar provisions to the provisions of LAW cited above . In particular , section CARDINAL(CARDINAL ) is identical to section CARDINAL(CARDINAL ) of that Act .

The procedure for obtaining a judicial statement attesting to an individual ’s participation or non - participation in the above - mentioned organisations is governed by LAW of the Code of Civil Procedure ( ORG kodekss ) , which was inserted by a law of DATE and is entitled “ Examination of cases concerning the attestation of restrictions on electoral rights ” . The provisions of that chapter read as follows :

“ A request for a statement of restriction on electoral rights may be submitted by the prosecutor ...

The request must be submitted to the court in whose territorial jurisdiction is situated the home of the person in respect of whom the attestation of a restriction on electoral rights is requested .

The request may be submitted where an electoral commission has registered a list of candidates which includes ... a citizen in respect of whom there is evidence that , subsequent to CARDINAL DATE , he or she actively participated in the ORG ( in the ORG ) ... A request concerning a person included in the list of candidates may also be submitted once the elections have taken place .

The request must be accompanied by a statement from the electoral commission confirming that the person in question has stood as a candidate in elections and that the list in question has been registered , as well as by evidence confirming the allegations made in the request . ”

“ After examining the request , the court shall give its judgment :

( CARDINAL ) finding that , after CARDINAL DATE , the person concerned did actively participate in the ORG ( in the ORG ) ... ;

( CARDINAL ) declaring the request ill - founded and dismissing it ... ”

LAW was enacted on DATE by the first parliament elected after the restoration of GPE ’s independence , otherwise known as the “ FAC ” ( the first CARDINAL legislatures having operated DATE ) . The following legislature ( the Sixth ) , elected in DATE , examined CARDINAL different proposals seeking to repeal section CARDINAL(CARDINAL ) of the above - mentioned LAW . At the plenary session of DATE , the CARDINAL proposals were rejected by large majorities after lengthy debates . Likewise , on DATE , during a debate on a proposal to restrict section CARDINAL(CARDINAL ) , the provision ’s current wording was confirmed . Elected in DATE , the following legislature ( the Seventh ) examined a proposal to repeal section CARDINAL(CARDINAL ) at a plenary session on DATE . After lengthy discussions , the majority of members of parliament refused to accept the proposal . Finally , ORG , elected in DATE , examined a similar proposal on DATE . It was also rejected .

In a judgment of CARDINAL DATE in case no . DATE , ORG ( PERSON tiesa ) found that the restrictions imposed by PERCENT ) of LAW and section CARDINAL(CARDINAL ) of LAW were compatible with LAW and with LAW taken in conjunction with LAW No . CARDINAL .

In that judgment , adopted by CARDINAL votes to CARDINAL , ORG first reiterated the general principles laid down in the settled case - law of LAW in applying LAW No . CARDINAL . It further held :

“ CARDINAL . The argument that the provisions complained of , forbidding certain NORP citizens from standing as candidates or being elected to ORG and municipal councils , discriminate against them on the basis of their political allegiance is without foundation ... The impugned provisions do not provide for a difference in treatment on the basis of an individual ’s political convictions ( opinions ) but for a restriction on electoral rights for having acted against the re - established democratic order after CARDINAL DATE ...

Accordingly , ORG limited the restrictions to the degree of each individual ’s personal responsibility [ individuālās atbildības pakāpe ] in carrying out those ORG objectives and programmes , and the restriction on the right to be elected to ORG or to a municipal council ... is related to the specific individual ’s activities in the respective ... associations .

In itself , formal membership of the above - mentioned organisations can not serve as a basis for preventing an individual from standing as candidate or being elected to ORG ...

Consequently , the impugned provisions are directed only against those who attempted , subsequent to CARDINAL DATE and in the presence of the army of occupation , to re - establish the former regime through active participation [ ar aktīvu darbību ] ; on the other hand , they do not affect persons who have differing political convictions ( opinions ) . The tendency of certain courts to concentrate solely on the finding of the fact of formal membership and not to evaluate the person ’s behaviour is inconsistent with the objectives sought by ORG in enacting the provision in issue ...

... Given that those ORG objectives were linked to the overthrow of the existing ORG regime [ pastāvošās valsts iekārtas graušana ] , they were essentially unconstitutional ...

Consequently , the aim of the restrictions on passive electoral rights is to protect the democratic ORG order , national security and territorial integrity of GPE . The impugned provisions are not directed against pluralism of ideas in GPE or against a person ’s political opinions , but against those who , through their active participation , have attempted to overthrow the democratic State order ... The exercise of human rights may not be directed against democracy as such ...

The substance and effectiveness of law is demonstrated in its ethical nature [ ētiskums ] . A democratic society has a legitimate interest in requiring loyalty to democracy from its political representatives . In establishing restrictions , the candidates’ honour and reputation is not challenged , in the sense of personal legal benefit [ personisks tiesisks labums ] ; what is challenged is the worthiness of the persons in question to represent the people in ORG or in the relevant municipal council . These restrictions concern persons who were permanent agents of the occupying power ’s repressive regime , or who , after DATE , participated in the organisations mentioned in the impugned provisions and actively fought against the re - established NORP LAW and ORG ...

The argument ... that democratic ORG order must be protected against individuals who are not ethically qualified to become representatives of a democratic ORG at political or administrative level ... is well - founded ...

... The removal from the list of a candidate who was involved in the above - mentioned organisations is not an arbitrary administrative decision ; it is based on an individual judgment by a court . In accordance with the law , evaluation of individual responsibility comes under the jurisdiction of the courts ...

NORP ... In order to determine whether the measure applied , namely the restrictions on passive electoral rights , is proportionate to the objectives being pursued , namely the protection , firstly , of democratic State order and , secondly , of the national security and integrity of the NORP State , it is necessary to assess the political situation in the country and other related circumstances . ORG having evaluated the historical and political circumstances of the development of democracy on several occasions ... the ORG does not consider that at this stage there would be grounds for challenging the proportionality between the measure applied and its aim .

However , ORG , by periodically examining the political situation in the ORG and the necessity and merits of the restrictions , should decide to establish a time - limit on these restrictions ... since such limitations on passive electoral rights may exist only for a specific period . ”

CARDINAL of the Constitutional Court ’s CARDINAL judges who examined the above - mentioned case gave a dissenting opinion in which they expressed their disagreement with the majority ’s conclusions . Referring , inter alia , to GPE v. GPE ( DATE , Series A no . CARDINAL ) and ORG v. GPE ( [ ORG ] , no . CARDINAL/CARDINAL , ORG CARDINAL-III ) , they argued that the disputed restrictions could be more extensive with regard to civil servants than to elected representatives . According to those judges , GPE ’s democratic regime and institutional system had become sufficiently stable in DATE for individuals who had campaigned against the system DATE previously no longer to represent a real threat to the ORG . Consequently , the restriction on those ORG electoral rights was not proportionate to the legitimate aim pursued .

Prior to GPE becoming a member of ORG , the NORP parliament adopted ORG ( Eiropas Parlamenta vēlēšanu likums ) , which was enacted on DATE and came into force on DATE . The Act contains no provision similar to section CARDINAL(CARDINAL ) of LAW . Consequently , the applicant was free to stand as a candidate in the elections to ORG .


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Access to court)

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

The applicant was born in DATE and lives in GPE .

On DATE ORG convicted the applicant of several robberies and sentenced him to DATE and CARDINAL months’ imprisonment . By a judgment of DATE ORG upheld the firstinstance judgment .

On DATE the applicant requested ORG to grant him a legal - aid lawyer for the purpose of lodging a cassation appeal with ORG .

On DATE a legal - aid lawyer was assigned .

By a letter of DATE the lawyer informed the court in a CARDINAL sentence - long opinion that he had not found any grounds on which to prepare a cassation appeal . This statement did not include any reasons for the refusal to lodge a cassation appeal .

By a letter of CARDINAL DATE the court forwarded the lawyer ’s statement to the applicant . The letter read as follows :

“ ... ORG informs you that your legal - aid lawyer , advocate Mr PERSON , informed the court in writing that he had not found any grounds to prepare a cassation appeal . In consequence , the time - limit for lodging a cassation appeal by a lawyer of your own choice expires on DATE . ”

The letter as well as the opinion were served on the applicant on an unspecified date .

On DATE ORG refused to assign a new legal - aid lawyer to the applicant . The court stated that because the previous legal - aid lawyer had not found any grounds on which to draw up a cassation appeal , the mere fact that the applicant disagreed with this decision could not require the verification of this opinion by successive lawyers .

The relevant domestic law and practice concerning the procedure for lodging cassation appeals with ORG against judgments of the appellate courts are stated in the ORG ’s judgments in the cases of PERSON v. GPE , no . CARDINAL , § § DATE , ECHR DATE ... ( extracts ) and ORG v. GPE , no . CARDINAL , § § CARDINAL , CARDINAL DATE .

In its decision of CARDINAL DATE ORG stated that the refusal of a legal - aid lawyer to lodge a cassation appeal did not constitute a valid ground for granting retrospective leave to lodge such an appeal by another lawyer out of time ( V ORG CARDINAL/CARDINAL ) . It confirmed this ruling in a further decision of DATE . ORG observed that the court could only assign a new legal - aid lawyer to the case if it were shown that the first lawyer had been negligent in his or her task of assessing whether a cassation appeal had any prospects of success . If this were not the case , a court was not obliged to assign a new legal - aid lawyer to represent the convicted person and its refusal was not subject to appeal ( III ORG CARDINAL/CARDINAL ) . ORG reiterated its position in a number of other decisions ( e.g. II KZ CARDINAL/CARDINAL , PERSON CARDINAL/CARDINAL ) .

On DATE ORG examined a case where a legal - aid lawyer had refused to represent a convicted person for the purposes of cassation proceedings , finding that a cassation appeal would offer no prospects of success . It held that in such a situation the appellate court was obliged to instruct the defendant that the time - limit for lodging a cassation appeal started to run only on the date on which the defendant was served with the lawyer ’s refusal and not on DATE when the judgment of the appellate court was served on the defendant himself . It stated that it was not open to doubt that a defendant faced with a legal - aid lawyer ’s refusal had the right to take other measures to seek legal assistance necessary for effective lodging of a cassation appeal ( III KZ CARDINAL/CARDINAL ) . ORG reiterated its position in a decision of DATE ( II KZ CARDINAL/CARDINAL ) and in a number of similar decisions given in DATE .


Violation of Art. 10;Remainder inadmissible;Non-pecuniary damage - award;Pecuniary damage - claim dismissed

András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky

The applicant was born in DATE and lives in GPE , GPE .

The applicant lived and studied in GPE at various times from DATE . In DATE she received a postgraduate degree from ORG in GPE . DATE she worked as a lecturer at ORG . In DATE she started working as a lecturer at ORG ( Ortadoğu Teknik Üniversitesi ) in the city of Gaziantep in southern GPE .

On DATE the deputy governor of ORG sent a letter to ORG , recommending that the applicant be expelled from GPE on account of her “ harmful activities ” . According to the deputy governor , the applicant had said to her students and colleagues at the university that the NORP had expelled the NORP and had massacred them . Moreover , the NORP had assimilated the NORP and exploited their culture . In DATE the applicant 's contract of employment was terminated by the university . On DATE ORG also recommended that the applicant be expelled from GPE . On DATE ORG ordered that the applicant be expelled and a ban imposed on her return . The applicant left GPE in DATE .

At some stage the applicant returned to GPE , where she was arrested in DATE while distributing leaflets protesting against the film The Last Temptation of Christ . The applicant was subsequently expelled from GPE .

At the time , and following the applicant 's expulsion from GPE , ORG allegedly compiled classified reports about the applicant containing phrases such as “ [ the applicant , who ] works as a missionary in our country ” and “ [ the applicant , who ] was put under surveillance following her attendance at a service in a NORP church in GPE ” . The applicant did not submit a copy of these reports to the ORG .

At some stage in DATE the applicant entered GPE again . On DATE , while she was leaving GPE , an entry was made in her passport by the authorities , stating that she was banned from entering GPE . She was urged by the authorities not to return .

On DATE the applicant , with the assistance of her lawyer in GPE , brought proceedings against ORG before ORG and asked for the ban to be lifted . She argued that the decision to ban her from entering GPE had been taken on the basis of a decision adopted by ORG on DATE . She maintained that the reason for the decision had been her religion . This , she argued , had been in breach of domestic legislation , the LAW and international conventions , including LAW .

The Ministry of the ORG submitted written observations to ORG on DATE , stating that , while she was teaching at the university in Gaziantep , the applicant had had discussions with her students and colleagues about NORP assimilating NORP and NORP , and NORP forcing NORP out of the country and committing genocide . On account of her separatist activities against the national security of GPE , her name had been included in the ORG 's list of persons whose entry into GPE was prohibited . Her contract of employment had subsequently been annulled and she had been expelled on the advice of ORG and in accordance with section CARDINAL of the Foreigners in GPE ( Visits and Travels ) Act ( no . MONEY ) . She had also been banned from re - entering GPE , pursuant to section CARDINAL(CARDINAL ) and ( CARDINAL ) of LAW ( no . DATE ) .

The ORG maintained that the applicant had been expelled and banned from entering GPE on account of her separatist activities , which were incompatible with national security , and not because of her religious opinions or for disseminating NORP propaganda .

The applicant submitted her written observations in response to those of ORG , arguing that the ORG 's allegations against her had not been proven . Even assuming that she had said those things at the university , she had remained within the permissible limits of criticism . Furthermore , she had never been prosecuted for having expressed those opinions . The action taken against her by ORG had therefore been devoid of any legal basis .

On DATE ORG rejected the applicant 's claim . It considered that the opinions expressed by the applicant at the university in LAW had been on issues followed closely by society because those issues concerned terrorism , from which the country had been suffering . Such opinions were , without any doubt , incompatible with national security and also with political imperatives . The ORG 's decision had been in accordance with the applicable legislation and the situation complained of by the applicant did not fall within the ambit of any of her fundamental rights and freedoms .

The applicant appealed . She referred to the above - mentioned reports allegedly detailing her religious activities , and maintained that she had been subjected to unjust treatment because of her religion .

The appeal was dismissed by ORG on DATE .

The applicant requested a rectification of the decision of CARDINAL October CARDINAL . She argued , inter alia , that the entire case had revolved around her having expressed opinions on certain subjects . The ORG 's action and the courts ' decisions had restricted her freedom of expression . She added that she still believed that it was possible to rectify this at the national level before she applied to international courts .

Her request for rectification was rejected by ORG in a decision of DATE , which was communicated to the applicant on DATE .

By section CARDINAL of the Foreigners in GPE ( Visits and Travels ) Act ( no . CARDINAL ) , aliens whose presence in GPE is deemed by ORG to be contrary to national security and to political and administrative imperatives are required to leave the country within a given period . If they fail to leave the country at the end of that period , they may be deported .

By section CARDINAL(CARDINAL ) and ( CARDINAL ) of LAW ( Law no . DATE ) , persons who have been deported from GPE and who are refused permission to return , as well as persons who are deemed to have entered the country with the aim of harming , or of assisting those whose aim is to harm the public order and the security of GPE , will not be allowed to enter the country .


André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska

The applicant , Mr Borys Vasylyovych Bashchenko , is a NORP national who was born in DATE and lives in GPE .

On DATE the applicant lodged a civil claim with ORG against ORG , seeking to be issued title to a plot of land to which he was entitled as a member of the NORP collective farm .

On DATE the court found against the applicant , determining that there was no evidence that the applicant was on the list of those entitled to a plot of land on the NORP farm . It noted in particular that the decision of the NORP farm management of CARDINAL DATE did not prove the applicant ’s entitlement to a plot of land .

On DATE ORG upheld the decision of the first - instance court .

On DATE the applicant lodged an appeal on points of law with ORG . In his appeal the applicant requested an extension of the time - limit for lodging the appeal , without indicating any reasons for the request .

On DATE the applicant lodged a supplement to his appeal of CARDINAL DATE , in which he also requested an extension of the time - limit without indicating any reasons for the delay .

On DATE ORG rejected the applicant ’s appeal as out of time , noting that the applicant had not requested an extension of the timelimit for lodging the appeal .

On DATE the applicant sent a letter to ORG pointing out that he had included a request for an extension in his appeal . In reply , the court repeatedly informed the applicant that his appeal had been rejected as out of time , as it contained no request for an extension .

“ CARDINAL . An appeal on points of law may be lodged within DATE of the date of entry into force of the decision ( ruling ) of the court of appeal .

NORP If the time - limit set forth in paragraph one of this LAW is not respected for reasons which have been found valid , a cassation court judge may renew the timelimit at the request of the person who lodged the appeal .

An appeal on points of law which has been lodged outside the time - limit for such an appeal shall be returned to the person who has lodged it , if that person has not raised the issue of renewal of the time - limit , or if renewal of the time - limit has been refused .

Renewal of the time - limit for an appeal on points of law and return of an appeal on points of law shall be decided by a judge rapporteur , who will issue a ruling in this respect . ”

A judge rapporteur shall return an appeal on points of law lodged outside the time - limit for such an appeal to the person who lodged it , unless he or she requests the renewal of the time - limit ... ”


Violation of Art. 5-3;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and is presently detained in FAC .

On DATE the applicant was arrested by the police on suspicion of having committed armed robbery acting in an organised criminal group . On DATE the Opole ORG ( Sąd Rejonowy ) ordered that the applicant be remanded in custody in view of a reasonable suspicion that he had committed the offence in question , the severity of the penalty that could be expected and the need to secure the proper conduct of the investigation .

Subsequently , the Opole Regional Court ( PERSON ) prolonged the applicant ’s detention on several occasions reiterating the grounds previously given .

On DATE the ORG decided to prolong the detention of the applicant relying , in addition to the earlier grounds , on the danger that given the complexity of the case and number of persons involved , there was a risk that the applicant might tamper with evidence or otherwise obstruct the proceedings .

On DATE ORG partly allowed the prosecutor ’s request and prolonged the applicant ’s pre - trial detention until DATE . Subsequently , on DATE ORG further prolonged the detention pointing to the fact that the investigation was in its final stages .

On DATE the applicant was indicted before the Opole ORG . The bill of indictment was directed against twentytwo coaccused . The charges against the applicant included leading an organised criminal group , leading participation in several robberies and illegal possessing of firearms .

On DATE , the trial court prolonged the applicant ’s detention relying on the strong probability that the applicant and CARDINAL coaccused had committed the offences with which he had been charged and on the severity of the sentence that could be imposed . The court further submitted that only detention would secure the applicant ’s appearance at the trial .

On DATE ORG made an application under LAW CARDINAL of the Code of Criminal Procedure ( Kodeks postępowania karnego ) to ORG ( Sąd Apelacyjny ) asking that the applicant ’s detention be prolonged beyond the statutory time - limit of DATE .

On DATE ORG granted that application and prolonged the detention of the applicant until DATE . The ORG justified its decision with reference to the reasonable suspicion that he had committed the offences and the complexity of the case which concerned an organised criminal group and involved several coaccused .

At the hearing held by the Opole Regional Court on DATE the applicant ’s application for release was dismissed .

On DATE ORG , upon another application under LAW of LAW , prolonged the applicant ’s detention until DATE . It reiterated the grounds previously given for keeping him in custody . The court also considered that , given the severity of the penalty that might be expected , the applicant might obstruct the proceedings .

NORP That decision was upheld on appeal on DATE .

On DATE ORG of Appeal prolonged the applicant ’s detention upon ORG application . The court stressed that , due to the complex nature of the case , the applicant should be kept in custody since the grounds previously given for his detention were still valid .

On DATE ORG made yet another application asking ORG to prolong the applicant ’s detention . On DATE the court granted the application while noting the prolonged application of preliminary detention with respect to the applicant .

At the hearing held on DATE the trial court further prolonged the detention of the applicant and other accused . The court acknowledged that the period of the applicant ’s detention had been long . However , it was justified by the importance of the case and the severity of the possible penalty . Moreover , the court did not see any circumstances which argued in favour of applying a different preventive measure .

The applicant ’s numerous applications for release and his appeals against the decisions prolonging detention were to no avail .

NORP In total , the trial court held CARDINAL hearings during which it heard CARDINAL witnesses and the depositions of CARDINAL other witnesses were read at the hearings . On DATE the ORG gave judgment . The applicant was convicted as charged and sentenced to DATE imprisonment .

On DATE ORG partly dismissed the applicant ’s appeal and lowered the sentence against him to MONEY .

It appears that ORG appointed for the applicant a legal - aid lawyer with the purpose of lodging on his behalf a cassation appeal . However , it is not clear whether a cassation appeal had actually been lodged .

The Code of Criminal Procedure of DATE , which entered into force on DATE , defines detention on remand as CARDINAL of the socalled “ preventive measures ” ( środki zapobiegawcze ) . The other measures are bail ( poręczenie majątkowe ) , police supervision ( dozór policji ) , guarantee by a responsible person ( poręczenie osoby godnej zaufania ) , guarantee by a social entity ( poręczenie społeczne ) , temporary ban on engaging in a given activity ( zawieszenie oskarżonego w określonej działalności ) and prohibition to leave the country ( zakaz opuszczania kraju ) .

Article CARDINAL § CARDINAL sets out the general grounds for imposition of the preventive measures . That provision reads :

“ Preventive measures may be imposed in order to ensure the proper conduct of proceedings and , exceptionally , also in order to prevent an accused ’s committing another , serious offence ; they may be imposed only if evidence gathered shows a significant probability that an accused has committed an offence . ”

Article CARDINAL lists grounds for detention on remand . It provides , in so far as relevant :

“ CARDINAL . Detention on remand may be imposed if :

( CARDINAL ) there is a reasonable risk that an accused will abscond or go into hiding , in particular when his identity can not be established or when he has no permanent abode [ in GPE ] ;

( CARDINAL ) there is a justified fear that an accused will attempt to induce [ witnesses or co - defendants ] to give false testimony or to obstruct the proper course of proceedings by any other unlawful means ;

NORP If an accused has been charged with a serious offence or an offence for the commission of which he may be liable to a statutory maximum sentence of CARDINAL CARDINAL years’ imprisonment , or if a court of first instance has sentenced him to CARDINAL CARDINAL years’ imprisonment , the need to continue detention to ensure the proper conduct of proceedings may be based on the likelihood that a severe penalty will be imposed . ”

The Code sets out the margin of discretion as to the continuation of a specific preventive measure . Article CARDINAL reads , in so far as relevant :

“ CARDINAL . Detention on remand shall not be imposed if another preventive measure is sufficient . ”

Article CARDINAL , in its relevant part , reads :

“ CARDINAL . If there are no special reasons to the contrary , detention on remand shall be lifted , in particular if depriving an accused of his liberty would :

( CARDINAL ) seriously jeopardise his life or health ; or

( CARDINAL ) entail excessively harsh consequences for the accused or his family . ”

The DATE Code not only sets out maximum statutory time - limits for detention on remand but also , in LAW , lays down that the relevant court – within those time - limits – must in each detention decision determine the exact time for which detention shall continue .

Article CARDINAL sets out time - limits for detention . In the version applicable up to DATE it provided :

“ CARDINAL . Imposing detention in the course of an investigation , the court shall determine its term for a period not exceeding DATE .

camnot be terminated within the term referred to in paragraph CARDINAL , the court of first instance competent to deal with the case may – if need be and on the application made by the [ relevant ] prosecutor – prolong detention for a period [ or periods ] which as a whole may not exceed DATE .

The whole period of detention on remand until the date on which the first conviction at first instance is imposed may not exceed DATE .

Only ORG may , on application made by the court before which the case is pending or , at the investigation stage , on application made by ORG , prolong detention on remand for a further fixed period exceeding the periods referred to in DATE , when it is necessary in connection with a stay of the proceedings , a prolonged psychiatric observation of the accused , a prolonged preparation of an expert report , when evidence needs to be obtained in a particularly complex case or from abroad , when the accused has deliberately prolonged the proceedings , as well as on account of other significant obstacles that could not be overcome . ”

On DATE paragraph CARDINAL was amended and since then the competence to prolong detention beyond the time - limits set out in paragraphs CARDINAL and CARDINAL has been vested with the court of appeal within whose jurisdiction the offence in question has been committed .


András Sajó;Françoise Tulkens;Helen Keller;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque

The applicant was born in DATE and lives in GPE .

The applicant was prosecuted for having assaulted an official on DATE . DATE and DATE she failed to attend , without a due excuse , CARDINAL hearings scheduled in the case . Several bench warrants were consequently issued , but in vain .

Eventually , on CARDINAL DATE ORG ordered her pre - trial detention in her absence , implicitly relying on section CARDINAL(CARDINAL ) of LAW . It is not clear whether this act took place at a hearing ( tárgyalás ) or a session ( ülés ) . The applicant ’s appeal against her detention to the ORG - ORG was to no avail .

On DATE the applicant was apprehended . On DATE her detention was terminated .

Section CARDINAL(CARDINAL ) of LAW ( LAW : The first - instance court hearing ) , as in force until DATE , provided as relevant :

“ If a bench warrant has been issued in the procedure due to the non - attendance of the accused , an arrest warrant shall be issued or pre - trial detention ordered , provided that the offence in question is punishable with imprisonment . ”

By decision no . DATE . ( III.CARDINAL . ) ORG , ORG deleted the phrase “ pre - trial detention ordered ” from the above provision . ORG reasoned in essence that the impugned provision , in its original form , constituted a basis for a disproportionate measure : the accused ’s mere non - attendance after the issuance of a bench warrant , caused by any reason , led to the assumption of wrongful omission on his / her side , entailing , without any further examination , the ordering of pre - trial detention . ORG went on to conclude as follows :

“ [ T]he LAW ... prescribes as a statutory guarantee in the procedure with a view to deciding [ on pre - trial detention ] that the accused must be heard . To hear the accused is part of the [ constitutional ] requirement of due process which is relevant in every stage of the proceedings . There is no such constitutional interest or aim which would allow a limitation on the accused ’s [ constitutional ] right to be heard by a court , without a breach of the latter ’s right to a due process . ”

NORP In reply to further arguments challenging the constitutionality of the remainder of section CARDINAL(CARDINAL ) , ORG nevertheless upheld the provision in its part allowing for an arrest warrant to be issued , holding that such a measure was still within the boundaries of proportionality , as opposed to the ordering of pre - trial detention which is the most stringent coercive measure in this field . It argued that once the absconding or unavailable accused was arrested , the court would be in a position to examine the merits of those circumstances which might require the imposition of pre - trial detention .

Consequently , from DATE and at the material time , section CARDINAL ) read as follows :

“ If a bench warrant has been issued in the procedure due to the non - attendance of the accused , an arrest warrant shall be issued , provided that the offence in question is punishable with imprisonment . ”


The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . She was represented before the Court by Ms M. Kuznetsova , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by Mr P. Laptev , Representative of GPE at ORG .

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

Before DATE the applicant , a NORP national , lived in GPE , GPE . On CARDINAL DATE the applicant together with her husband and CARDINAL children ( born in DATE and DATE ) left GPE for GPE due to the outbreak of an armed conflict in the region .

At first they stayed with the applicant ’s mother in GPE , but shortly after that moved to GPE . They remained registered at her mother ’s address . In DATE the applicant started to work as a school teacher . The school director requested the municipal authorities to provide the applicant with accommodation .

On DATE the Chief of ORG of GPE decided that the applicant should be provided with housing as soon as it would become available .

On DATE the applicant was temporarily allotted a CARDINAL - room apartment . The municipal housing service opened a personal account on the applicant ’s name for the purpose of billing the communal charges . The applicant moved in with her family , lived there and regularly paid all charges . She applied to the housing authorities to have a social tenancy established in respect of this apartment , but this was refused .

In DATE the residence block , including the applicant ’s flat , was placed at the disposal of the Moscow Migration Centre to be converted into dwellings for forced migrants .

On DATE ORG brought eviction proceedings against the applicant on the grounds that her occupancy was not lawful .

On DATE ORG of GPE ordered that temporary occupants , including the applicant , vacate the flats . The applicant was advised to apply to ORG to be provided with free housing . The school administration was also informed that the employment of staff members who were not registered in GPE was unlawful .

In DATE the applicant was dismissed from her job as a school teacher on the grounds that she had no officially registered address in GPE .

On DATE the applicant applied to the migration authorities of GPE to be granted the status of a forced migrant . She indicated that her permanent address was at her mother ’s house in GPE . On DATE the applicant was granted the status of a forced migrant for the period until DATE .

On DATE the applicant applied to ORG to be registered as a forced migrant . She also applied to ORG to be registered at the flat in GPE as her official address .

On DATE ORG of GPE examined the prosecutor ’s eviction claim and rejected it having found that the applicant had had a de facto tenancy contract . This judgment entered into force on DATE but was subsequently reversed in supervisory review proceedings . The case was re - examined in CARDINAL sets of civil proceedings before the final decision was taken on DATE ( see below ) .

On DATE ORG of the ORG authorised the applicant and her children to be temporarily registered at the disputed flat for DATE .

On DATE ORG advised the applicant that she could not be registered with them as a forced migrant until she cancels her registration with the migration authorities of LOC .

On DATE the applicant applied to the migration authorities of GPE to have her registration with them annulled and her file to be transferred to the GPE migration authorities . On DATE her request was granted .

On DATE the applicant was informed that she could not be registered with the GPE migration authorities because her official address remained in LOC . On DATE the applicant reiterated her request for registration as a forced migrant in GPE , which was refused on DATE because the applicant had provided no proof of her of official address in GPE . The applicant did not challenge the refusal .

On DATE the ORG gave the final decision authorising the applicant ’s eviction without providing her with substitute housing . It was established in the proceedings that the applicant ’s occupancy was not based on social tenancy , as she had never been issued a “ residence order ” or offered to sign a tenancy contract . The courts also found that the applicant had no status of a forced migrant on the basis of which she could claim social housing .

On DATE the applicant was served with an eviction order , but she did not comply with it .

On DATE the municipal service required the applicant to vacate the flat , but she did not do so .

In DATE the applicant was served with another eviction order , which she again did not comply with . Her eviction has not been enforced and , according to the latest updates , she continues to occupy the flat .

On DATE ORG of ORG decided that the disputed flat should be rented out to the applicant under a common tenancy contract . The applicant was invited to sign the contract and to complete the formalities .

The applicant refused to sign the common tenancy contract as it required her to pay rent , supposedly at the market rate which she thought would be too expensive for her . She believed to have been entitled to social housing by virtue of her previous occupancy , due to being a “ de facto refugee ” and a teacher , and being in need of state support .

The parties provided no details of the common tenancy contract offered to the applicant .

On DATE the applicant received a reminder to settle the tenancy rent , which she refuses to comply with .

Article CARDINAL of LAW in force at the material time provided that tenancy in the publicly owned LOC could only be validated by a documentary residence order issued by the local executive council . The form of the residence order was adopted by a governmental decree . LAW provided for eviction of persons occupying LOC without due permission .

According to LAW , dated DATE , No . CARDINAL - CARDINAL , persons registered as forced migrants may be provided with temporary accommodation in the specially allocated residence .


Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra

The applicants are NORP nationals who live in GPE . The first CARDINAL applicants , PERSON , PERSON , PERSON and PERSON were represented before the ORG by Mr PERSON , a lawyer practising in PERSON . The fifth applicant , Mr PERSON , was not represented by a lawyer . The respondent Government ( “ the Government ” ) were represented by their Agent , Mr PERSON , ORG Attorney - General .

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

The applicants were parties to civil proceedings which terminated before DATE . The relevant length of each of the proceedings is indicated in the attached table .

On DATE and CARDINAL DATE , CARDINAL DATE and CARDINAL DATE the respondent Government were given notice of the present applications .

On the dates indicated in the table the ORG Attorney ’s ORG sent settlement proposals to the applicants under LAW of the LAW on the Protection of the Right to a Trial without undue Delay ( “ the CARDINAL Act ” ) . In its proposals , the ORG Attorney ’s ORG acknowledged the violation of the right to a trial within a reasonable time and offered to pay monetary compensation in respect of non - pecuniary damage and reimbursement of the costs and expenses connected with the case , if claimed , to each applicant ( see the attached table ) .

Subsequently , each of the applicants informed the ORG Attorney ’s ORG that they were not willing to accept the proposals as the sums offered were too low . At the same time , they set out their proposals with a view to securing settlements .

No settlements have been reached so far .

ORG adopted on DATE a ORG on ORG , the “ FAC ” . Its goal is the elimination of backlogs in NORP courts and prosecutor ’s offices by DATE , by providing for structural and managerial reform of the judiciary . As a part of the “ FAC ” the ORG adopted LAW ( Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja , ORG , No . DATE ) which has been implemented since DATE .

Section CARDINAL of LAW lays down the following transitional rules in relation to the applications already pending before the ORG :

“ ( CARDINAL ) In cases where an infringement of the right to a trial without undue delay has already ceased and the party has filed a claim for just satisfaction with the international court before the date of implementation of this LAW , the ORG Attorney ’s ORG shall offer the party a settlement on the amount of just satisfaction within DATE of the date of receipt of the case referred by the international court for the settlement procedure . The party shall submit a settlement proposal to the ORG Attorney ’s ORG within DATE of receipt of the proposal of the ORG Attorney ’s ORG . The State Attorney ’s Office shall decide on the proposal as soon as possible and within DATE at the latest .....

( CARDINAL ) If the proposal for settlement referred to in paragraph CARDINAL of this section is not acceded to or ORG and the party fail to negotiate an agreement within DATE of the date on which the party filed its proposal , the party may bring an action before the competent court under this LAW . The party may bring an action within DATE of receiving the ORG Attorney ’s ORG reply that the party ’s proposal referred to in the previous paragraph was not acceded to , or after the expiry of the period fixed in the previous paragraph for ORG to decide to proceed with settlement . Irrespective of the type or amount of the claim , the provisions of LAW concerning small claims shall apply in proceedings before a court . ”

The following parts of LAW are relevant as regards the “ claim for just satisfaction ” :

“ When deciding on the legal remedies under LAW , the circumstances of the particular case shall be taken into account , namely : its complexity in terms of facts and law ; actions of the parties to the proceedings , in particular as regards the use of procedural rights and fulfilment of obligations in the proceedings ; compliance with rules on the set order for resolving cases , or with statutory deadlines for fixing preliminary hearings or for giving court decisions ; the manner in which the case was heard before a supervisory appeal or a motion for a deadline was lodged ; the nature and type of case and its importance for a party . ”

( CARDINAL ) Just satisfaction shall be provided by :

i. payment of monetary compensation for damage caused by an infringement of the right to a trial without undue delay ;

ii . a written statement from ORG that the party ’s right to a trial without undue delay has been infringed ;

iii . the publication of a judgment that the party ’s right to a trial without undue delay has been infringed . ”

“ ( CARDINAL ) Monetary compensation shall be payable for non - pecuniary damage caused by an infringement of the right to a trial without undue delay . Strict liability for any damage caused shall lie with GPE .

( CARDINAL ) Monetary compensation for individual finally decided cases shall be granted in the amount of CARDINAL up to CARDINAL,CARDINAL euros .

( CARDINAL ) Territorial jurisdiction for decision - making on an action for damages under LAW shall lie with the local court in whose district the plaintiff is a permanent or temporary resident or has registered office .

( CARDINAL ) Irrespective of the type or amount of the claim , the provisions of LAW concerning small claims shall apply in proceedings before a court .

( CARDINAL ) Appeal on points of law shall be excluded for disputes on damage under LAW . ”

( CARDINAL ) The ORG Attorney ’s Office shall pay monetary compensation and the party ’s costs of the proceedings on the basis of a final court decision which has established an infringement of the right to a trial without undue delay in the proceedings , under LAW of the present LAW . ”

“ Funds ... shall be earmarked in LAW within the framework of the financial plan of ORG . ”

Section CARDINAL of the amended LAW ( Zakon o dohodnini , ORG . DATE ) , which NORP entered into force on DATE , provides that monetary compensation for non - pecuniary damage received in accordance with LAW is exempt from LOC income NORP tax ( dohodnina ) .


Françoise Tulkens;Guido Raimondi;Helen Keller;Paulo Pinto De Albuquerque

NORP The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE .

On DATE , at TIME , the applicant ’s brother , PERSON , died as a result of falling from the roof of a building , allegedly while trying to pick a fig from a tree .

Following the incident gendarmerie officers arrived at the scene of the incident . They drafted a report at TIME and drew a sketch .

ORG began an investigation into the incident .

On DATE the applicant filed a formal complaint with ORG .

According to the autopsy report of CARDINAL DATE , the experts observed several abrasions and ecchymoses on the deceased ’s body . They concluded that the cause of death was fractures to his head due to blunt head trauma , and cerebral bleeding .

On DATE the public prosecutor inspected the scene of the incident and interviewed CARDINAL suspects .

In the meantime the gendarmerie questioned several witnesses .

On DATE ORG issued a decision not to prosecute . The prosecutor found that PERSON had died as a result of falling from the roof of a building while trying to pick a fig .

On DATE the applicant filed an objection against the decision not to prosecute .

On DATE ORG quashed the decision of CARDINAL DATE and ordered that criminal proceedings be initiated against the suspects on account of the findings of the autopsy report of CARDINAL DATE . Drawing attention to the ecchymoses on PERSON ’s body , the assize court noted that those wounds might have occurred during a fight .

On DATE ORG issued a bill of indictment charging CARDINAL persons with intentional homicide under LAW of the former LAW .

On DATE , at the fifth hearing , ORG acquitted the accused as there was not sufficient evidence to convict them .

On DATE ORG upheld the judgment .

Following the acquittal of the accused , on CARDINAL DATE ORG issued an extended search warrant in connection with the search for the perpetrators of the incident , valid until DATE .

On DATE the applicant made a request to ORG for the investigation to be reopened as he was not satisfied with the outcome of the criminal proceedings . He expressed doubts about the way his brother had died .

On DATE a gendarmerie officer took a statement from the applicant concerning the incident . He stated that his brother must have been murdered . The applicant requested that statements be taken from certain persons about whom he had suspicions .

After the issue of the search warrant , the gendarmerie reported to ORG at regular intervals that they had been unable to find the perpetrators of the killing of PERSON


Violation of Art. 6-1;Costs and expenses partial award - Convention proceedings

Mr PERSON was born in DATE and he resides in GPE - on - Tees , Mr PERSON was born in DATE and he resides in GPE and Mr PERSON was born in DATE and he resides in GPE . They are represented before the ORG by Mr Blades , a lawyer practising in ORG .

NORP In DATE the first applicant was a soldier and the second applicant was a non - commissioned officer in the regular forces of ORG . On DATE they were charged along with CARDINAL others ( pursuant to section CARDINAL of the Army Act DATE ) with CARDINAL counts of indecent assault contrary to section CARDINAL ) of LAW DATE .

The convening officer , by order dated DATE , convened a general court - martial to try them . On DATE the first applicant was found guilty on CARDINAL of the charges and was sentenced to DATE imprisonment and to be dismissed with disgrace . The second applicant was found guilty on CARDINAL of the charges and sentenced to DATE imprisonment , to be dismissed from the service with disgrace and to be reduced to the ranks . On DATE the confirming officer reduced the first applicant 's sentence to DATE imprisonment and the second applicant 's sentence to DATE and DATE imprisonment , but otherwise the findings of the court - martial were confirmed .

The applicants petitioned ORG against conviction and sentence . By letters dated DATE and DATE , their representatives were informed of the decisions ( taken by ORG ) to reject their petitions .

Both applicants applied to the single judge of ORG ( “ ORG ” ) for leave to appeal to that court against conviction and sentence . The first applicant pointed to various alleged failings by the judge advocate during the court - martial and argued that his sentence was excessive . The single judge granted leave to appeal to the full ORG . Before the full ORG , the first applicant added a new ground of appeal ( that he did not have a fair trial by an independent and impartial tribunal within the meaning of LAW , citing PERSON GPE , judgment of DATE , Reports of Judgments and ORG ) . The second applicant argued before the single judge that the judge advocate had erred and misdirected the court and that he had been denied a fair hearing by an independent and impartial tribunal ( referring also to the PERSON judgment ) . The single judge granted leave to appeal to the full ORG .

On DATE the applicant , a soldier of the regular forces of ORG , was charged ( pursuant to section CARDINAL of the Army Act DATE ) with wounding with intent contrary to section CARDINAL of the Offences Against LAW DATE and with inflicting grievous bodily harm contrary to section CARDINAL of that Act .

The convening officer , by order dated CARDINAL DATE , convened a general court - martial . On DATE the applicant was found guilty on the first charge and of assault occasioning actual bodily harm contrary to section CARDINAL of LAW . He was sentenced to DATE imprisonment and to be discharged from the army .

His petition against sentence to the confirming officer was rejected and his conviction and sentence were promulgated on DATE . By letter dated DATE , his legal representatives were informed that his petition against sentence had been rejected by a Reviewing ORG appointed by ORG . By letter dated DATE , the applicant 's representatives were informed of the decision ( taken by ORG ) to reject his petition against sentence .

On DATE he presented a further petition to ORG against conviction arguing that he had not had a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law in accordance with LAW ( referring also to the above - cited PERSON judgment ) . By letter dated DATE , he was informed that ORG had decided not to waive the relevant time - limit which had by then expired . It was also indicated in that letter that the “ GPE issue ” had been frequently rejected by ORG and by the ORG .

His application to the single judge of the ORG was dated DATE and raised the PERSON issue together with the fact that he could not appeal against sentence only to the ORG . On DATE the single judge rejected that application considering that the grounds of appeal were not arguable . He renewed his application for leave to appeal to the full ORG raising the same points .

NORP In response to these appeals , affidavits were filed on behalf of ORG explaining that neither the presidents nor the members of the applicants ' courts - martial had been under the command of the convening officer and that none had been subordinate to him in the chain of command . Accordingly , the convening officer would not have reported on either the president or the members of the court - martial in their DATE confidential reports . A policy decision had been taken that , as from DATE , all courts - martial would be composed of a president and members who were not in the chain of command of the convening officer .

The applicants ' appeals were rejected by detailed judgment of CARDINAL DATE . As to the “ GPE point ” , the ORG noted the change in policy as regards the constitution of courts - martial in place since DATE . It considered that there was no chain of command influence and no obvious reason why any observer knowing the constitution of the courts - martial and the full facts would suspect any lack of independence or impartiality . In any event , the ORG pointed out that the applicants ' reliance on the PERSON judgment was misconceived as the only power of the ORG was to enquire as to whether the convictions were unsafe . Where there was abundant evidence to support the conclusion of the courts - martial which had been properly convened in accordance with domestic law , the composition and behaviour of which had not been criticised , the ORG considered that there was no possible reason to intervene . It noted that the time for having regard to the provisions of the Convention had not yet been reached , but it was difficult to see , even in such circumstances , how the provisions of LAW be of any assistance to the applicants .

The relevant provisions of the Army Act DATE which regulated court - martial procedures at the relevant time are set out in the above - cited PERSON judgment ( at § § DATE ) .

Following the ORG 's report in the PERSON case ( PERSON v. GPE , no . DATE , Commission 's report of DATE ) , it was decided that , as and from DATE , all courts - martial would be composed of presidents and members not in the chain of command of the convening officer . Thereafter , the DATE Act was amended substantially by LAW ( “ the LAW ” ) which came into force on DATE . The new court - martial system for which the DATE Act provides is summarised in the GPE judgment ( at § § CARDINAL - CARDINAL ) and is outlined in more detail in the case of ORG v. GPE ( [ ORG ] , no . MONEY , § § DATE , ECHR CARDINAL ) .