Violation of Art. 6-1;Pecuniary damage - claim dismissed;Costs and expenses partial award

On DATE the applicant , who was born in DATE , applied for disability benefits under LAW ( NORP om allmän försäkring , CARDINAL:CARDINAL ; hereinafter “ the DATE Act ” ) . He claimed that he was in need of assistance and had additional costs due to a speech impediment caused by a laryngectomy operation in DATE .

By a decision of CARDINAL DATE ORG ( försäkringskassan ; hereinafter “ the Office ” ) of GPE rejected the application , finding that the applicant ’s needs or costs were not such as to make him eligible for disability benefits .

On DATE the applicant requested the ORG to review its decision under LAW , section CARDINAL a of LAW . He claimed that he had failed to fully state his need of assistance and his additional costs in the original application . On DATE he asked the ORG , alternatively , to consider his request as a new application and to grant him benefits as from DATE .

On DATE the ORG found that there was no basis for a review of its earlier decision . Further , in regard to the applicant ’s alternative claim , the ORG noted that the applicant had reached DATE and that information relating to the time that followed could not be taken into account under the relevant rules . Consequently , the applicant ’s alternative claim was rejected .

NORP The applicant appealed to ORG ( länsrätten ) of GPE . On CARDINAL DATE the court gave judgment in his favour . It considered that the ORG ’s first decision had been based on insufficient information and that the ORG should therefore have reviewed that decision at the applicant ’s request . It noted that , according to the CARDINAL medical certificates in the case , the applicant had considerable additional costs due to his handicap . Consequently , he was entitled to disability benefits as long as his need of assistance and his additional costs , taken together , attained the level required under LAW . Accepting the information submitted by the applicant in this regard , the court found that that level had been attained and granted him a disability allowance as from DATE . The court did not hold an oral hearing nor , apparently , did the applicant request one .

ORG ( Riksförsäkringsverket ; hereinafter “ the Board ” ) appealed against ORG judgment to ORG ( kammarrätten ) in GPE , requesting that the ORG ’s decision of CARDINAL DATE be confirmed . ORG claimed that the information in the case showed that , before DATE , the applicant had not suffered a functional impairment to such an extent that his need of assistance and extra expenses on account thereof had made him eligible for a disability allowance . Thus , the ORG ’s first decision could not be considered to have been incorrect due to it being based on incorrect or incomplete material . Consequently , there were no grounds for a review under LAW . ORG further requested the appellate court to stay the enforcement of the appealed judgment . The latter request was granted by a decision of DATE .

The applicant made submissions in response to the ORG ’s appeal . On DATE he requested ORG to hold an oral hearing in the case during which the person in charge of the case at the ORG should give evidence relating to the meaning of its decision and the information on which it had been based . The applicant also asked the court to obtain the opinion of a medical expert .

On DATE ORG rejected both requests . In regard to the request for an oral hearing , the court , after having restated section CARDINAL of ORG ( ORG , ORG ; hereinafter “ the DATE LAW ; see further paragraph CARDINAL below ) , gave the following reasons :

“ Having regard to the subject - matter at issue and the information that has come to hand in the case , [ the court ] finds that an oral hearing is unnecessary and rejects the request to that effect .

[ The applicant ] is invited to state the further circumstances he wishes to invoke and submit his final written observations in the case within DATE after having been notified of this decision .

The case can be determined notwithstanding a failure to submit such written observations . ”

The applicant and ORG made further submissions . The applicant maintained that ORG had failed to adequately explain the reasons for its appeal and posed several questions to ORG . He requested that the court order the ORG to clarify its position in the case . The court did not do so , however . The applicant ’s submissions were , however , forwarded to the ORG which replied that it maintained its position in the case . On account of the court ’s refusal to order the ORG to clarify its position and to hold a hearing , the applicant called into question the impartiality of the proceedings . By letters of CARDINAL DATE and CARDINAL DATE he reiterated his request for an oral hearing , stating that a hearing would give him the opportunity to ask questions to ORG and to present judgments in similar cases in support of his application for disability benefits . Furthermore , in assessing his condition , the court would benefit from having met him in person .

On DATE ORG rejected the applicant ’s renewed requests for an oral hearing and gave judgment in favour of ORG . Thus , by CARDINAL votes to CARDINAL , it quashed ORG judgment and confirmed the ORG ’s decision of CARDINAL DATE . Without giving any further reasons , it considered that there had been no basis for a review of the ORG ’s first decision . The dissenting judges considered that the applicant was entitled to the disability allowance granted to him by ORG and that , for this reason , there were exceptional reasons to change the ORG ’s decision .

The applicant appealed to ORG ( Regeringsrätten ) . He requested that the case be referred back to ORG for re - examination or , alternatively , that ORG confirm ORG judgment . He complained about the lack of an oral hearing in ORG and also requested ORG to hold an oral hearing . On DATE ORG refused the applicant leave to appeal .

On DATE the applicant made a renewed request for a disability allowance . By a decision of CARDINAL DATE the ORG found that he had special needs and costs due to his handicap which made him eligible for disability benefits under LAW . As an allowance could be given retroactively only for DATE preceding the application , the applicant was granted an allowance as from DATE .

According to chapter CARDINAL , section CARDINAL of LAW , a person who is ill or handicapped is entitled to disability benefits , provided that , before reaching DATE , he or she has become functionally impaired for a considerable time and to such a degree that he or she needs time - consuming assistance from another person in everyday life or continuing assistance in order to be gainfully employed or otherwise has considerable extra expenses . The total need of support and assistance determines the eligibility for disability benefits and the amount of compensation . It is thus necessary to look at the whole situation of the person in question and to add together the need for different types of assistance and the extra expenses . According to the ORG ’s guidelines , the total cost of all extra needs due to the disability should come to PERCENT of a basic amount geared to the price index ( basbelopp ) in order to make the individual eligible for an allowance . In DATE and DATE , when the applicant made his applications to the ORG , this corresponded to CARDINAL and MONEY ( SEK ) , respectively .

A decision by ORG under LAW may be appealed against to ORG and from there on to ORG and ORG . Appeals may be made against the ORG ’s ordinary decision or a decision upon review DATE , section CARDINAL a of LAW .

The latter provision enables the ORG to change a decision it has previously taken in order to rectify certain obvious defects of that decision , provided that it has not already been reviewed by a court . Thus , the ORG must change its earlier decision if it contains a writing error , miscalculation or similar mistake or if it is incorrect due to it being based on obviously incorrect or incomplete information or an obviously incorrect application of the law or other similar reason . The question of changing a decision under LAW a should , in principle , be raised within DATE from DATE the decision was taken . However , it may nevertheless be changed if it appears only after the elapse of this DATE period that it was based on obviously incorrect or incomplete material or if there are other exceptional reasons . A decision is to be changed under this provision even if a request to that effect has not been made by the individual concerned .

The procedure in the administrative courts is governed by the provisions of LAW . Section CARDINAL provides :

“ The proceedings are in writing .

An oral hearing may be held in regard to a certain issue , when there is reason to assume that that would be to the benefit of the proceedings or the speedy determination of the case .

In ORG and ORG an oral hearing shall be held if requested by an individual party to the proceedings , unless it is unnecessary or there are particular reasons against holding a hearing . ”

The possibility for an individual party to obtain an oral hearing on request under those circumstances is not available in the proceedings before ORG .

According to the preparatory documents to LAW , an oral hearing can be a valuable complement to the written proceedings and may benefit the examination of a case in CARDINAL situations in particular : firstly , when it is necessary to hear a witness , an expert or a party or when it is difficult for a party to present the case in writing and , secondly , when different positions in the case need to be sorted out in order to eliminate unnecessary or pointless issues of dispute . In the latter case , the oral hearing takes on a preparatory character . It was stressed , however , that an oral hearing should not to be seen as an alternative to the written procedure but as a complement to it ( see Government PERSON , p. CARDINAL ) .

It was further stated , in respect of the third paragraph of section CARDINAL , that a party ’s request for an oral hearing should be given great consideration . However , such a request should not have a decisive influence on the matter , as the question whether an oral hearing is necessary is to be determined primarily on the basis of the available information in the case . Still , other circumstances may be of relevance , for instance the importance for the party of the matter at stake or the possibility that an oral hearing could enhance the party ’s understanding of a future decision in the case . Nevertheless , if the case is of a trivial character or the costs of an oral hearing would be disproportionate to the values at stake in the case , there could be reason not to hold an oral hearing ( p. CARDINAL ) .


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

, may be summarised as follows .

The applicant , a dentist , is the father of a daughter born out of wedlock in DATE . As the applicant and the mother with whom the child lives did not give a declaration on joint custody ( gemeinsame PERSON ) , the mother obtained sole custody ( alleinige PERSON ) pursuant to section CARDINALa § CARDINAL of GPE ( Bürgerliches Gesetzbuch , see relevant domestic law ) .

The applicant initially had access to the child on a regular basis . The child occasionally stayed with him . The applicant or his parents would also care for the child on DATE before the mother returned from work . DATE , the applicant had access to the child for DATE and during certain holidays . In DATE , ORG ordered that the applicant had the right of access to the child every other DATE and during holidays .

At GPE DATE the mother informed the applicant that she was planning to move with the child to GPE in GPE in order stay with her partner from DATE . The applicant subsequently instituted civil proceedings in order to obtain the sole right to custody or , alternatively , to prevent the mother from leaving GPE with the child .

On DATE ORG rejected the applicant ’s claim . The court heard the applicant , the mother and the child and considered a report from ORG . The child declared that it wanted to be both with the mother and the applicant . ORG considered the applicant as generally suitable for having the custody of his child and that the decision was therefore not a negative assessment of his suitability . However , ORG stressed that , in order to transfer custody to the applicant , it was necessary to withdraw it from the mother who had sole custody pursuant to section CARDINALa § CARDINAL of LAW . The only possibility under the NORP legislation to withdraw the mother ’s custody was therefore pursuant to sections DATE and CARDINAL of LAW , according to which the family court may order appropriate measures in case of an abuse of custody and a resulting threat for the child ’s physical , psychological or mental well - being . ORG found that the requirements of these provisions had not been met . The court held that , if the child accompanied her mother to GPE , neither her well - being nor her property was endangered in such a way that the only appropriate measure was the withdrawal of the mother ’s custody . Admittedly , the child would be taken away from her familiar environment , but this was generally the case when parents moved with their children . It was therefore decisive that the child was able to maintain contacts with familiar persons . Moreover , the child would be able to become familiar with a different culture and a new language . As far as the applicant complained that the mother of the child was not suitable for the exercise of custody , ORG considered the applicant ’s submissions as unfounded . Furthermore , the mother ’s decision to move to GPE to live with her new partner could not be challenged under LAW of LAW as the mother ’s reasons for moving were cogent . She had offered the applicant every possible access to his child once she had moved to GPE , and the applicant had the financial means for regular visits so that his right to access was not frustrated .

Shortly after the GPE ORG decision , the mother and the child moved to GPE .

On DATE ORG rejected the applicant ’s appeal against ORG decision . ORG heard the child which declared that she preferred to stay in GPE where her friends and her father , whom she loved , were . The court however found that the child ’s opposition of her new home in GPE would not last once the child grew up and developped further . Measures in accordance with section DATE of LAW would require more than a mere abstract danger for the well - being of the child . Because of the short time the child had spent in GPE , it was impossible for her to form relationships similar to the ones she had in GPE . The obviously painful separation from the applicant who had cared for the child to a remarkably large extent could be compensated by the fact that the applicant had the right of access to the child every other DATE and during holidays per court order of ORG of DATE . The exercise of his right to access was made more difficult due to the territorial distance but not reduced to an unjustifiable extent . ORG also took into account that the mother had cogent reasons to move to GPE in order to live with her new partner .

On DATE ORG refused to admit the applicant ’s constitutional complaint .

The statutory provisions on custody and access are to be found in the NORP Civil Code . According to section CARDINAL LAW , the father and the mother have the right and the duty to exercise parental authority ( elterliche PERSON ) over a minor child . The parental authority includes the custody and the care of property ( Vermögenssorge ) of the child .

Originally , the custody of children born out of wedlock was , according to section CARDINAL of LAW , automatically obtained by the mother . That provision was however declared unconstitutional by ORG in DATE . On DATE , the amended LAW DATE ( Reform zum Kindschaftsrecht , ORG , p. CARDINAL ) , entered into force to implement ORG judgment of DATE . The relevant law in LAW was changed as follows : pursuant to section DATE § CARDINAL , the parents of a minor child born out of wedlock jointly exercise custody if they make a declaration to that effect ( declaration on joint custody ) or if they marry . Otherwise section CARDINAL § CARDINAL provides that the mother obtains sole custody .

Pursuant to section DATE of LAW , the family court may order the necessary measures if the child ’s physical , psychological or mental well - being is threatened by malpractice of custody if the parents are unwilling to take those measures . Measures which cause a separation of the child from the parent are only admissible if the danger for the child can not be averted otherwise ( section CARDINALa of LAW ) .

According to section DATE of LAW , a child is entitled to have access to both parents ; each parent is obliged to have contact with , and entitled to have access to , the child . Moreover , the parents must not do anything that would harm the child ’s relationship with the other parent or seriously interfere with the child ’s upbringing .

On DATE , ORG found that section CARDINALa of LAW was unconstitutional because it lacked a provisional period for unmarried couples with children who had lived together in DATE but separated before the amended LAW entered into force on DATE ( i.e. they could have had the opportunity to obtain joint custody if the legislation at the time would have been constitutional ) . In order to settle the above constitutional flaws , the NORP legislator introduced on DATE section CARDINAL ( CARDINAL ) ( a ) of LAW to LAW ( Einführungsgesetz in ORG ) , according to which a court can substitute the mother ’s consent to joint custody if an unmarried couple has a child born out of wedlock , has lived together with the child and has separated before DATE , provided that joint custody would serve the child ’s interest ( PERSON ) .

In its judgment of DATE , ORG however also held that section CARDINALa § CARDINAL of LAW , apart from the lack of a provisional period , did not violate the right to respect for their family life of fathers whose children were born out of wedlock . Parents who were married had obliged themselves upon marriage to take responsibility for themselves and their children . In contrast to this , the legislator could not assume that parents of children born out of wedlock lived together or wanted to take responsibility for each other . Moreover , there was not sufficient actual evidence that a father of a child born out of wedlock wanted to bear joint responsibility as a general rule . The child ’s well - being therefore demanded that the child had a person upon birth which can act for the child in a legally binding way . In view of the very different life conditions into which those children were born into , it was justified to generally grant sole custody to the mother , and not to the father or to both parents . This legislation could also not be objected from a constitutional point of view because the legislator had given parents of children born out of wedlock the possibility to both obtain custody through a joint declaration .


Remainder inadmissible;Violation of Art. 6-1;No violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient

Anatoly Kovler;Elisabeth Steiner;George Nicolaou;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska

The applicant was born in DATE and lives in GPE .

On DATE ORG , ( Hrvatski Sabor – Odbor za Ustav , PERSON i politički sustav – “ the ORG ” ) published in ORG ( no . CARDINAL of DATE ) a Call for Applications for the Election of CARDINAL Judges to ORG , inviting prospective candidates to submit their applications .

On DATE the applicant , a judge of ORG , submitted her application for the post of judge of ORG . Another CARDINAL candidates also submitted applications .

The Parliamentary Committee eventually compiled a shortlist of CARDINAL candidates , namely , PERSON PERSON , PERSON , PERSON and the applicant , and submitted it to ORG for a vote .

After a secret ballot in which the applicant received CARDINAL of the required CARDINAL votes , on DATE ORG adopted a decision electing PERSON PERSON , PERSON and PERSON , who each received CARDINAL votes , as judges of ORG .

On DATE the applicant , relying on CARDINAL of LAW ( see paragraph CARDINAL below ) , lodged a request for the protection of a constitutionally guaranteed right ( zahtjev za zaštitu ustavom zajamčenog prava ) with ORG ( Upravni sud PERSON ) contesting ORG ’s decision of CARDINAL DATE . She argued that PERSON had not proved that she had DATE of professional experience and thus did not demonstrate that she satisfied all the statutory criteria for election as a ORG judge set forth in section CARDINAL ) of LAW ( see paragraph CARDINAL below ) . Therefore , in the applicant ’s view , by electing PERSON instead of her , ORG had breached her right to equality before the law , the right to equality before the ORG and other public authorities , the right to equal access to public service and the right to equal access to employment guaranteed in GPE ) , CARDINAL , DATE and CARDINAL(CARDINAL ) of the LAW ( see paragraph CARDINAL below ) , respectively .

On DATE ORG invited PERSON and PERSON to submit their observations as third ( interested ) parties ( zainteresirane osobe ) . On DATE , respectively , they replied that they considered the applicant ’s request unfounded and that the election of ORG judges had been in accordance with the law . They also stated that they did not consider themselves third ( interested ) parties to the proceedings because the applicant had not challenged their election .

On DATE ORG delivered a judgment whereby it allowed the applicant ’s request and quashed ORG ’s decision of CARDINAL DATE in its part concerning PERSON court held that the applicant was entitled to lodge her request even though that court ’s judgment did not alter her legal status as unelected candidate . It also held that from the evidence submitted by PERSON to ORG it could not be discerned whether she had the required professional experience and that therefore the applicant ’s right to equal access to public service and her right to equal access to employment , guaranteed by ORG CARDINAL and CARDINAL(CARDINAL ) of the LAW , had been breached by the contested decision .

On DATE lodged a constitutional complaint with ORG ( Ustavni sud PERSON ) against ORG judgment . At the same time she asked ORG to order an interim measure that would postpone the effects of the contested judgment until that court had decided on her constitutional complaint . PERSON argued in her constitutional complaint that the impugned judgment of ORG had breached her right to equality before the law , the right to work and the right to equal access to employment guaranteed in GPE CARDINAL(CARDINAL ) and CARDINAL ) and ( CARDINAL ) of the LAW ( see paragraph CARDINAL below ) , respectively . She also argued that the election of the Constitutional Court judges was a political rather than a legal issue . Therefore , ORG ’s decision of CARDINAL DATE constituted a so - called act of ORG ( akt vladanja ) in respect of which the scope of constitutional review was limited to compliance with procedural rules ( that is , to formal constitutionality ) and was thus very narrow . In particular , she argued that ORG had not been authorised to assess whether the evidence she had submitted had been sufficient to prove that she had the required professional experience and to question ORG findings in this respect .

On DATE , ORG , sitting in a plenary session composed of CARDINAL judges ( including judges PERSON and GPE ) , ordered an interim measure postponing the effects of ORG judgment of DATE . In so doing it held , inter alia , that :

“ ... the contested judgment [ of ORG ] requires detailed examination of the limits and scope of judicial review of decisions on appointment of ORG officials , ... , and in that sense , has a wider importance that goes beyond the limits of an individual case . ”

The decision on the interim measure was published in ORG no . DATE but has never been served on the applicant .

On DATE ORG served the constitutional complaint together with the request for an interim measure on the applicant .

On DATE and DATE S.B. supplemented her constitutional complaint , alleging a violation of her right to a fair hearing guaranteed by Article CARDINAL(CARDINAL ) of the LAW . On DATE and DATE , respectively , ORG served the CARDINAL supplements on the applicant .

On DATE the applicant submitted her reply to PERSON ’s constitutional complaint and DATE to its supplements of CARDINAL DATE and DATE . She argued that because the election of the ORG judges was regulated by law , it was not a political but primarily a legal issue . Consequently , ORG ’s decision of CARDINAL DATE was not an “ act of ORG ” and was therefore justiciable , that is , capable of being challenged in legal proceedings . In any event , section CARDINAL of LAW entitled ORG to review any individual decision capable of violating constitutional rights , regardless of its nature or of whether it emanated from the legislative or the executive branch of government . As regards PERSON ’s request for an interim measure , the applicant , after having remarked that ORG had granted it on DATE the request had been made , argued that under section ORG ) LAW such a measure could not postpone “ the effects of a contested decision ” but only its “ enforcement ” ( see paragraph CARDINAL below ) . Lastly , the applicant asked ORG to “ hold a public session ( hearing ) ” and invite her to attend it ( “ održi javnu sjednicu ( raspravu ) na PERSON me se pozove ” ) .

During the proceedings , ORG requested and obtained observations from ORG , expert opinions from CARDINAL law - faculty professors and CARDINAL former judges of that court as well as opinions and information from ORG , ORG , ORG , ORG , ORG and a private bank GPE banka d.d .. The remaining CARDINAL law faculty professors from whom ORG also requested expert opinions did not submit them . The attempt to obtain information from ORG failed because the NGO in question could not be found at the address indicated in the relevant register .

On DATE the applicant wrote to ORG asking it to serve her with “ the expert opinions requested ( from individuals and institutions ) ” , which she had found out about from the media .

On DATE ORG , sitting in a plenary formation of CARDINAL judges ( including judges PERSON and GPE ) , held a session to which the applicant was not invited , and adopted a decision whereby it quashed ORG judgment of DATE . It held that the election of ORG judges was a hybrid ( political and legal ) issue and that , even though ORG ’s decision of CARDINAL DATE was “ an act of ORG ” , ORG could have reviewed not only whether the prescribed procedure had been followed but also whether the candidates had satisfied the required statutory conditions . Nevertheless , ORG had overstepped the bounds of its jurisdiction when it had ( re)assessed the evidentiary value of the documents LAW had furnished as proof that she had possessed the required professional experience . By so doing ORG had not only encroached on matters within the exclusive jurisdiction of ORG , but had also breached ORG right to work and her right to equal access to employment guaranteed by LAW and ( CARDINAL ) of the LAW , as well as her right to equality before the law guaranteed by LAW .

On DATE , the President of ORG and her Deputy held a press conference at which they announced that ORG judgment of DATE had been quashed , that PERSON remained a judge of ORG and that the case would not be remitted to ORG in order to “ stop this agony ” .

On DATE ORG served its decision , together with the opinions and information obtained during the proceedings , on the applicant . On DATE the decision of ORG was published in ORG ( no . CARDINAL/CARDINAL ) .

The relevant provisions of LAW ORG , ORG nos . CARDINAL , CARDINAL , CARDINAL/CARDINAL ( consolidated text ) , CARDINAL , DATE ( consolidated text ) , CARDINAL and DATE ( consolidated text ) , PERSON ( corrigendum ) and CARDINAL ) read as follows :

“ Everyone in GPE shall enjoy rights and freedoms regardless of their race , colour , sex , language , religion , political or other beliefs , national or social origin , property , birth , education , social status or other characteristics .

All shall be equal before the law . ”

“ All nationals of GPE and foreigners shall be equal before the courts and other ORG or public authorities . ”

“ In the determination of his rights and obligations or of any criminal charge against him , everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law . ”

“ Every national of GPE shall have the right , under equal conditions , to take part in the conduct of public affairs , and to be admitted to public service . ”

“ Everyone shall have the right to work and enjoy freedom of work .

Everyone shall be free to choose his or her vocation and occupation , and every job or duty shall be accessible to everyone under equal conditions . ”

“ ORG shall consist of CARDINAL judges elected among eminent lawyers , especially judges , ORG attorneys , advocates and university professors of law , by ORG for a term of DATE .

ORG on the LAW shall conduct proceedings related to candidatures for election to ORG and propose candidates to ORG .

ORG shall elect its President for a term of DATE . ”

NORP In its judgment no . Zpa-CARDINAL/CARDINAL - CARDINAL of DATE , following a request for the protection of a constitutionally guaranteed right ( see paragraph CARDINAL below ) ORG quashed the decision of ORG on the appointment of a ORG judge . It held that every candidate satisfying the statutory requirements had the right to equal participation in a competition for public office . Therefore , by appointing a candidate who did not satisfy the statutory requirements to be a judge of ORG , ORG had violated the other candidate ’s constitutional right to equal access to public service guaranteed by LAW ( see the preceding paragraph ) .

The relevant part of LAW on LAW ( PERSON o PERSON , ORG no . CARDINAL of DATE – “ the LAW ” ) , as amended by DATE Amendments ( PERSON o izmjenama i dopunama PERSON zakona o PERSON sudu PERSON , ORG no . CARDINAL of DATE ) , which entered into force on DATE , reads as follows :

Section CARDINAL

“ ( CARDINAL ) A NORP national who is a bachelor of laws with DATE of experience in the legal profession , and who has become eminent in that profession by virtue of his or her academic or professional work or his or her public activities , may be elected as a judge of ORG .

( CARDINAL ) A person who has obtained a doctoral degree in legal science and satisfies the other conditions referred to in paragraph CARDINAL of this section may be elected as a judge of ORG if he or she has DATE of experience in the legal profession . ”

“ ( CARDINAL ) ORG on LAW ( hereinafter : ‘ the competent GPE ) shall institute the procedure for electing judges of ORG by publishing a call in the ORG inviting judicial institutions , law faculties , ORG , ORG associations , political parties and other legal entities and individuals to nominate candidates for the election of CARDINAL or more judges of ORG ( hereinafter : ‘ the NORP ) . An individual may also put himself or herself forward as a candidate .

( CARDINAL ) The call shall set down the conditions for electing a judge of ORG set forth in the LAW and LAW , the time - limit for submission of a candidate ’s nomination to the competent committee , and the enclosures to be delivered with the nomination .

( CARDINAL ) After the time - limit referred to in paragraph CARDINAL of this section expires , the competent committee shall examine whether the candidates satisfy the conditions for being elected as judges of ORG set forth in the LAW and LAW , and shall reject invalid candidatures .

( CARDINAL ) The competent committee shall hold a public interview with each candidate who satisfies the conditions for being elected as a judge of ORG and shall , on the basis of information collected and the results of the interviews , compile a shortlist of candidates for judges of ORG . The shortlist shall , as a rule , comprise more candidates than the number of judges ... who are to be elected .

( CARDINAL ) The competent committee shall submit to ORG , together with its proposal , the list of all candidates who satisfy the conditions for being elected as judges of ORG . The proposal of the competent committee shall contain reasons showing why the committee gave a particular candidate priority over other candidates .

( CARDINAL ) Representatives in the NORP ORG shall vote individually for each proposed candidate .

( CARDINAL ) A candidate proposed for election to the Constitutional Court shall be considered to have been elected as a judge of ORG if a majority of the total number of representatives in ORG have voted for him . ”

“ A judge of ORG may not abstain from voting , unless he has participated in the enactment of a statute or subordinate legislation or the adoption of a decision upon which ORG is required to rule . ”

“ Unless provided otherwise by LAW , in the proceedings before it the ORG shall apply mutatis mutandis the provisions of the relevant procedural laws of GPE as subsidiary rules . ”

“ ( CARDINAL ) ORG may , in a [ plenary ] session , conclude to decide the merits [ of a case ] on the basis of a public hearing .

( CARDINAL ) A public hearing shall be scheduled by the President of ORG .

( CARDINAL ) The participants in the proceedings and the representatives of ORG authorities , local government and associations , as well as [ other ] persons whose participation at the public hearing is required , shall be summoned to the public hearing .

( CARDINAL ) The failure of the summoned participants ... and other summoned persons to attend [ the hearing ] shall not prevent ORG from continuing the proceedings and reaching a decision , if it considers that the conditions for doing so exist .

( CARDINAL ) In justified cases , ORG may postpone the public hearing and schedule a new CARDINAL . ”

“ ( CARDINAL ) Anyone may lodge a constitutional complaint with ORG if he or she deems that the decision of a ORG authority , local or regional government , or a legal person vested with public authority , on his or her rights or obligations , or as regards suspicion or accusation of a criminal offence , has violated his or her human rights or fundamental freedoms , or the right to local or regional government , guaranteed by LAW ( ‘ constitutional rights’ ) ...

( CARDINAL ) If another legal remedy is available in respect of the violation of the constitutional rights [ complained of ] , the constitutional complaint may be lodged only after this remedy has been exhausted .

( CARDINAL ) In matters in which an administrative action or , in civil and non - contentious proceedings , an appeal on points of law [ revizija ] is available , remedies shall be considered exhausted only after a decision on these legal remedies has been given . ”

“ ( CARDINAL ) The constitutional complaint , as a rule , does not prevent the application of the contested decision .

( CARDINAL ) ORG may , at the request of the complainant , postpone the enforcement [ of the contested decision ] until it decided on the constitutional complaint , if the enforcement would cause the complainant a harm that would be difficult to repair , and the postponement is not contrary to the public interest nor would cause greater harm to anyone . ”

“ ( CARDINAL ) ORG panel composed of CARDINAL judges shall decide on a constitutional complaint .

( CARDINAL ) ...

( CARDINAL ) The panel may only decide unanimously and with all its members present .

( CARDINAL ) If the panel does not reach a unanimous decision , or if the panel considers that the issue [ raised in ] the constitutional complaint is of wider importance , the constitutional complaint shall be decided by the [ plenary ] session of ORG . ”

“ The judge rapporteur shall :

- serve , if need be , a copy of the constitutional complaint to interested persons and invite them to respond to it ,

Section DATE provides that , if a constitutional complaint is successful , ORG must quash the impugned decision and remit the case to the competent authority .

On DATE ORG for the first time in its history held a public hearing in the proceedings following an individual constitutional complaint . The complainant Mr. PERSON , who had taught a denominational ( NORP ) religious education course in a public school , had been dismissed from his job because ORG had revoked his canonical mandate of catechist after he had remarried . The President of ORG explained a decision to hold a public hearing by saying that ORG decision in that case “ [ went ] beyond the limits of a particular case ” and “ [ would ] mark future relations with religious communities ” .

The relevant provision of the Rules of the Constitutional Court ( PERSON , ORG nos . CARDINAL and CARDINAL DATE “ the Constitutional Court Rules ” ) reads as follows :

“ ( CARDINAL ) In the proceedings before ORG ... a judge rapporteur is authorised to :

DATE . seek expert opinions on particular cases from jurisconsults of ORG ,

The Administrative Disputes Act ( Zakon o upravnim sporovima , ORG of ORG no . CARDINAL/CARDINAL , and ORG nos . CARDINAL/CARDINAL , CARDINAL/CARDINAL and DATE ) in its relevant part provides as follows :

Section CARDINAL reads as follows :

“ The [ ORG ] decides administrative disputes in closed session .

The [ ORG ] may decide to hold an oral hearing on account of the complexity of the dispute or if it otherwise finds it useful for better clarification of the matter at issue .

For the same reasons a party may ask that an oral hearing be held . ”

Section CARDINAL provides that if LAW does not contain specific provisions on the procedure before ORG , the provisions of LAW should apply mutatis mutandis .

Section CARDINAL reads as follows :

“ A request for the protection of a constitutionally guaranteed right or freedom ... if such a right or freedom has been violated by a final individual act [ that is , decision ] , and no other judicial protection is secured , shall be decided by the [ ORG ] , by applying mutatis mutandis the provisions of this LAW . ”

The relevant part of LAW ( Zakon o parničnom postupku , ORG of ORG nos . CARDINAL , CARDINAL/CARDINAL ( corrigendum ) , CARDINAL , CARDINAL/CARDINAL , CARDINAL/CARDINAL , DATE , DATE , DATE , CARDINAL/CARDINAL and CARDINAL/CARDINAL , and ORG nos . CARDINAL , GPE , CARDINAL , CARDINAL , CARDINAL/CARDINAL , CARDINAL , CARDINAL , CARDINAL/CARDINAL , CARDINAL and GPE ) provides as follows :

“ A judge ... shall be disqualified from exercising his functions :

if he or she himself or herself is a party ... ;

if , in the same case , he or she participated in the proceedings before a lower court or some other authority ;

if other circumstances exist which cast doubt on his or her impartiality . ”

The grounds enumerated in section CARDINAL subparagraphs DATE are considered absolute grounds for withdrawal , in that the judge concerned is automatically disqualified from sitting .

Section CARDINAL(CARDINAL ) provides that , from the moment he or she becomes aware of an absolute ground disqualifying him from sitting , the judge must take no further part in the case and bring the circumstances which disqualify him or her from sitting to the immediate attention of the president of the court of which he or she is a member , whereupon the president designates another judge to hear the case .

Section CARDINAL(CARDINAL ) provides that the party has to make a request for withdrawal of a judge as soon as he or she learns of a reason for withdrawal and at the latest before the conclusion of the trial before the first - instance court , or , if there was no trial , before the decision is rendered .

Section CARDINAL(CARDINAL ) provides that the withdrawal of a judge of a higher court may be requested by the party in the legal remedy or in the reply to the legal remedy .

Section CARDINAL(CARDINAL ) reads as follows :

Section CARDINAL reads as follows :

“ When a single judge , the president of the panel , a member of the panel or the president of the court learns that his or her withdrawal has been requested , he shall immediately stop all work on the case , and , if the withdrawal was requested on the ground provided in section CARDINAL(CARDINAL ) , subparagraph CARDINAL of this Act , he or she may , until a the request is decided , undertake only those actions which entail the risk of a delay . ”


Violation of Art. 8;Violation of P1-1;Violation of Art. 13

The applicant was born in DATE and lives in GPE . The applicant is a lawyer ; at the material time he was a member of GPE ( PERSON объединенная коллегия адвокатов ) .

On DATE GPE opened criminal case no . DATE against PERSON . , PERSON and DATE other persons who were suspected of forming and participating in an organised criminal enterprise and of other serious offences .

On DATE Mr NORP , an investigator with ORG in the prosecutor 's office , issued a search warrant which read in its entirety as follows :

“ Taking into account that at the [ applicant 's ] place of residence at the address [ the applicant 's home address ] there might be objects and documents that are of interest for the investigation of criminal case [ no . DATE ] , I order a search of the LOC at the address [ the applicant 's home address ] where [ the applicant ] permanently resides and the seizure of objects and documents found during the search . ”

On DATE a GPE deputy prosecutor approved the search and countersigned the warrant .

The Government claimed that the applicant had not been a party to criminal case no . DATE and had not represented anyone involved . The applicant maintained that he had been a representative of :

( a ) Mr S. , who had been first a suspect and later a witness in criminal case no . DATE . On DATE the applicant had represented Mr S. before ORG of GPE in proceedings concerning a complaint about a decision by the investigator NORP The applicant had also been S. 's representative in unrelated civil proceedings on the basis of an authority form of CARDINAL DATE ;

( b ) PERSON . , who had been a defendant in criminal case no . DATE and whom the applicant had represented from DATE to DATE ;

( c ) Mr B. , who had been the victim in a criminal case concerning the murder of his son . Subsequently that case had been joined to criminal case no . DATE . The applicant had represented PERSON from DATE ;

( d ) Mr Sh . , who had been a defendant in criminal case no . DATE and whom the applicant had represented before ORG ( application no . CARDINAL ) .

On DATE the investigator NORP , in the presence of the applicant , assisted by police officers from ORG ( ORG ) and CARDINAL attesting witnesses ( понятые ) , searched the applicant 's flat . According to the record of the search , the applicant was invited to “ voluntarily hand over ... documents relating to the public company ORG and the federal industrial group NORP ” . The applicant responded that he had no such documents and countersigned under that statement .

NORP The investigator found and seized over CARDINAL documents which the applicant declared to be his own and the central unit of the applicant 's computer . According to the record of the search , the applicant had no complaints about the way the search was carried out , yet he objected to the seizure of the central unit because it contained CARDINAL hard disks and was worth MONEY . The seized documents included , in particular , PERSON power of attorney of CARDINAL DATE and extracts of a memorandum in PERSON case .

On DATE the investigator NORP held a formal interview with the applicant in connection with criminal case no . DATE .

On DATE the investigator L. issued an order for the attachment of the documents seized at the applicant 's flat and the central unit of his computer as “ physical evidence ” in criminal case no . DATE .

The applicant complained to a court . He sought to have the search and seizure of the documents declared unlawful . He claimed , in particular , that the central unit of the computer , his personal notebook and his clients ' files and records were not related to the criminal case and could not be attached as evidence because the seizure had impaired his clients ' defence rights .

On DATE ORG of GPE heard the applicant 's complaint . The court found that the search had been approved and carried out in accordance with the applicable provisions of the domestic law and had therefore been lawful . As to the attachment of the computer , the court ruled as follows :

“ ... the purpose of the search was to find objects and documents in connection with a criminal case . During the search a number of documents and a computer central unit were seized ; they were thoroughly examined by the investigator , as is evident from the record of the examination of the seized items and printouts of the files contained in the central unit .

Accordingly , the above shows that the aim of the search has been achieved ; however , the order to attach the seized objects and documents as evidence in the criminal case amounts to the forfeiture of the [ applicant 's ] property which was taken from him and never returned , whereas [ the applicant ] was neither a suspect nor a defendant in the criminal case and was interviewed as a witness .

Under such circumstances , the constitutional rights of the applicant , who was deprived of his property , were violated . Having achieved the purpose of the search and recorded the results received , the investigator , without any valid and lawful grounds , declared [ the applicant 's property ] to be physical evidence ... ”

ORG ordered that the applicant 's documents , his notebook and the central unit be returned to him .

On DATE GPE quashed the judgment of DATE and remitted the case for a fresh examination by a differently composed court . ORG pointed out that the first - instance court had erroneously considered that the order for the attachment of objects as evidence amounted to the forfeiture of the applicant 's property .

On DATE the investigator returned the notebook and certain documents , but not the computer , to the applicant .

On DATE the applicant brought a civil action against GPE and ORG , seeking compensation for the non - pecuniary damage incurred as a result of the seizure of his belongings .

On DATE ORG of GPE held a new hearing on the applicant 's complaint . The court ruled that the search of the applicant 's flat had been justified and lawful and that the remainder of the applicant 's complaints were not amenable to judicial review .

On DATE GPE quashed the judgment of CARDINAL DATE and remitted the case for a fresh examination by a differently composed court . ORG found that the first - instance court had failed to examine , in a sufficiently thorough manner , whether the investigator had had sufficient grounds to search the flat of a person who had not been charged with any criminal offence .

On DATE ORG of GPE delivered the final judgment on the applicant 's complaint . As regards the lawfulness of the search , the court found as follows :

“ The search warrant was issued because there were sufficient reasons [ to believe ] that [ at the applicant 's home address ] where [ the applicant ] lived there could be objects and documents that could be used as evidence in connection with CARDINAL of the counts in criminal case no . DATE . This fact was established by the court and confirmed by the materials in the case file , in particular , a statement by the investigator D[. ] of DATE , the decision to bring charges of CARDINAL DATE , the decision to lodge an application for an extension of detention on remand of DATE [ ? - unclear ] DATE , letter no . DATE of DATE and other materials ; therefore , the court comes to the conclusion that the search in [ the applicant 's ] flat was justified under LAW ... ”

The court further established that the search had been carried out in strict compliance with the laws on criminal procedure . As regards the remainder of the applicant 's claims , the court decided that it was not competent to examine them , but that it was open to the applicant to complain about the investigator 's decisions to a supervising prosecutor .

On DATE GPE dismissed an appeal by the applicant . It upheld ORG finding that the search at the applicant 's flat had been justified and procedurally correct and that the order to attach objects as evidence was not amenable to judicial review because such an avenue of appeal was not provided for in domestic law .

The applicant 's civil claim for damages has not been examined to date .

Article CARDINAL of the LAW establishes that the home is inviolable . No one may penetrate into the home against the wishes of those who live there unless otherwise provided for in a federal law or a judicial decision .

The RSFSR Code of Criminal Procedure , in force at the material time , provided in LAW for carrying out a search ” ) that an investigator could carry out a search to find objects and documents that were of relevance to the case , provided that he had sufficient grounds to believe that such objects and documents could be found in a specific place or on a specific person . The search could be carried out on the basis of a reasoned warrant issued by an investigator and approved by a prosecutor .

Searches and seizures were to be carried out in the presence of the person whose LOC were being searched or adult members of his family . CARDINAL attesting witnesses were to be present as well ( Article CARDINAL ) . Any person having no interest in the case could be an attesting witness . Attesting witnesses were required to certify the scope and results of the search , and could make comments which were to be entered into the search record ( Article CARDINAL ) .

A complaint against the actions of an investigator could be submitted either directly to a prosecutor or through the person against whom the complaint was lodged . In the latter case the person concerned was to forward the complaint to the prosecutor within TIME , together with his explanations ( LAW ) . The prosecutor was to examine the complaint within DATE and give a reasoned decision to the complainant ( Article CARDINAL ) .

On DATE , ORG determined that decisions and actions of investigators and prosecutors relating to searches , seizure of property , suspension of proceedings and extension of time - limits for preliminary investigations should be amenable to judicial review on an application by the person whose rights had been violated .

Article CARDINAL of LAW defined physical evidence as “ any objects that ... carried traces of a criminal offence ... and any other objects that could be instrumental for detecting a crime , establishing the factual circumstances of a case , identifying perpetrators or rebutting the charges or extenuating punishment ” .

Physical evidence was to be retained until the conviction had entered into force or the time - limit for appeal had expired . However , it could be returned to the owner before that if such return would not harm ongoing criminal proceedings ( LAW ) . The court was to order the return of physical evidence to its legal owner in the final decision closing the criminal proceedings ( LAW ) .

Recommendation ( DATE ) CARDINAL of ORG to member GPE on the freedom of exercise of the profession of lawyer provides , inter alia , as follows :

“ Principle I - General principles on the freedom of exercise of the profession of lawyer

... CARDINAL . All necessary measures should be taken to ensure the respect of the confidentiality of the lawyer - client relationship . Exceptions to this principle should be allowed only if compatible with the rule of law . ”


Remainder inadmissible;Violation of Art. 3;Violation of Art. 5-3;Non-pecuniary damage - award

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

The applicant was born in DATE and lived in GPE until his arrest .

NORP In DATE the applicant was elected to the position of mayor of GPE . In DATE he was re - elected .

In DATE CARDINAL co - owners of a private company complained to ORG of ORG ( “ the ORG ” ) that the applicant ’s relative , PERSON , had attempted to extort MONEY ( RUB ) from them by threatening to destroy their real estate and prevent them from rebuilding . According to the co - owners , following their refusal to pay , the applicant annulled the GPE mayor ’s decision of CARDINAL DATE by which their company had been provided with a plot of land and granted that plot of land to his relative , PERSON By a letter of DATE the applicant had also ordered the Head of ORG to demolish the company ’s property situated on that land . The Government provided the ORG with a copy of the co - ORG complaint registered by the ORG on DATE .

On DATE the office of ORG , acting on the complaint from the co - owners and the results of the preliminary investigative actions performed by the ORG , instituted criminal proceedings against the applicant , suspecting him of having abused his position and having aided and abetted aggravated extortion . On DATE the applicant was arrested and placed in the ORG temporary detention facility .

The applicant felt ill and was immediately transferred to ORG ( “ the Institute ” ) , where he was diagnosed with ischemic heart disease , unstable stenocardia , impaired cardiac function , chronic pancreatitis , chronic cholecystitis and bronchitis .

On DATE a commission of medical experts from the ORG issued a report finding the applicant fit to participate in the pre - trial investigation . The commission also concluded that the applicant could remain in custody on condition that urgent medical assistance was to be provided to him if necessary .

A senior investigator from the office of ORG asked ORG of Tomsk to authorise the applicant ’s detention .

On DATE ORG found that the prosecution had to submit additional evidence in support of their request , and granted a QUANTITY extension to keep the applicant in police custody . ORG noted that the applicant should remain under arrest until TIME on DATE . The relevant part of the decision read as follows :

“ At the hearing the acting head of the department ... of ORG , PERSON , applied for a QUANTITY extension to keep [ the applicant ] in custody pending the submission of additional evidence , namely the suspect ’s identification documents – a copy of the suspect ’s passport – in support of the request .

The suspect , [ the applicant ] , disagreed with the request and stated that there were no grounds for extending his detention .

The suspect ’s lawyers also disagreed with the request and explained that [ the applicant ] had no intention to abscond , he had a permanent place of residence and his arrest was unlawful , as there were no grounds for his arrest as required by LAW . In these circumstances they asked for the request to be dismissed .

Having heard the submissions of the parties to the proceedings and having examined the material in the criminal case file , the court grants the extension ...

By virtue of LAW , a court has the right to grant an extension on request . If the court considers that the arrest was lawful and justified , [ it ] may grant a QUANTITY extension from the moment when the court decision has been taken to allow a party to submit additional evidence in support of [ the claim ] that the application of a measure of restraint such as detention is justified or unjustified .

Having examined the material in the case file , the court finds that [ the applicant ’s ] arrest was lawful and justified .

By virtue of LAW , an investigating authority , an investigator or a prosecutor has the right to arrest a person suspected of having committed a criminal offence which is punishable by imprisonment , if one of the following conditions is satisfied :

( CARDINAL ) that person has been caught committing a crime or immediately after having committed a crime ;

( CARDINAL ) victims or eyewitnesses have identified that person as the perpetrator of a criminal offence ; or

( CARDINAL ) obvious traces or signs of a criminal offence have been discovered on that person or his clothes , or with him or in his house .

As follows from the record of [ the applicant ’s ] arrest , he was arrested on DATE on suspicion of having committed criminal offences under LAW ( CARDINAL ) of LAW of GPE because the victims had identified him as the perpetrator of the offences . There were no violations of criminal procedural law .

On DATE , at TIME , that is before the arrest , criminal proceedings were instituted against the identified person DATE [ the applicant ] – on suspicion of offences under LAW , LAW ( b ) and LAW of GPE .

Having regard to the foregoing , the court considers it lawful and justified to grant a TIME extension ... ”

TIME the prosecution provided ORG with additional evidence ( a copy of the applicant ’s passport , the report of the medical expert commission showing the state of the applicant ’s health , and documents confirming that he was the mayor of GPE ) in support of its request for authorisation of the applicant ’s detention .

Acting upon the additional information provided by the prosecution , ORG on DATE authorised the applicant ’s detention on the grounds that he was charged with serious criminal offences , he had several places of residence and he was liable to abscond and pervert the course of justice . ORG noted that the applicant was suspected of having abused his position as mayor and that consequently , if released , he could have influenced witnesses who worked in the mayor ’s office and could have destroyed evidence . It also relied on the report by the medical commission , which had concluded that the applicant was fit to participate in the criminal proceedings and to remain in custody .

On DATE ORG suspended the applicant from his position as mayor of GPE .

On DATE ORG upheld the decisions of DATE by which ORG had granted a TIME extension to keep the applicant in police custody and had authorised his detention . ORG endorsed the reasons given by ORG .

Later in DATE other CARDINAL criminal cases were launched against the applicant . On DATE he was additionally charged with aggravated abuse of position and illegal business activities . In particular , the prosecution suspected that in DATE , abusing his powers as the mayor of GPE , the applicant had unlawfully obtained PERCENT of the shares in a large wholesale company and PERCENT of the shares in another public company .

On DATE ORG asked ORG to extend the applicant ’s detention for DATE , arguing that the applicant was charged with serious criminal offences and that he was liable to influence witnesses , destroy evidence , pervert the course of justice and abscond . The prosecutor relied on information provided by ORG , according to which the applicant wanted to leave GPE and move to a member State of ORG , possibly GPE or GPE . A letter from a deputy head of ORG was enclosed . The relevant part of the letter read as follows :

“ Thus , according to the available information , [ the applicant ] has asked his daughter PERSON to resign from [ her position ] in the law - enforcement bodies and to sell quickly the immovable property she owns , including a house ... , and has advised her to leave GPE with her children as soon as possible .

At the same time , [ the applicant ] is taking steps to pervert the course of the investigation using his connections with the authorities in GPE and GPE . In particular , [ the applicant ] , with the help of his relatives and confidants , has influenced officials of the [ ORG who are acting as witnesses in criminal case no . CARDINAL/CARDINAL , including by making threats to use physical force against them and their family members . Moreover , he is actively using negative information damaging to the reputation of senior officials and employees of the GPE mayor ’s office , ORG and members of ORG .

Furthermore , ... on orders from [ the applicant ] , his confidants and close relatives visited GPE and had several meetings with high - ranking officials , including those in ORG of GPE , and with intermediaries who have connections with corrupt officials in law - enforcement bodies who may discontinue the criminal proceedings against him in return for money . As a result of those meetings , presumably , [ the applicant ’s ] confidants reached an agreement concerning the provision of consultative , administrative and legal assistance in their efforts to secure [ the applicant ’s ] release .

The available information supports the conclusion that , if released , [ the applicant ] will have real opportunities to obstruct the course of justice . ”

At the same time the applicant ’s lawyers lodged an application with ORG for the applicant ’s release . They argued that the applicant had a permanent place of residence in GPE , that his family also lived in GPE , that he did not have any immovable property outside GPE and that he did not have a passport to travel . Furthermore , he had been registered as a candidate for the forthcoming parliamentary elections in GPE and had deposited RUB CARDINAL , MONEY ( ORG ) to be registered as a candidate . The lawyers insisted that the applicant did not intend to abscond , arguing that there was no evidence that his relatives had sold property or had bought foreign currency . They also pointed out that he was DATE and seriously ill and that he needed special medical treatment and a particular diet which could not be provided in a detention facility .

On DATE ORG accepted the prosecutor ’s request and extended the applicant ’s detention until DATE . The relevant part of the decision read as follows :

“ Thus , [ the applicant ] is currently suspended from his position as mayor of GPE ; however , by virtue of LAW , this measure is temporary and does not entail dismissal from the position or loss of social and employment status and personal authority over certain groups of individuals and officials who may be questioned as witnesses in the course of the criminal proceedings . In particular , [ the applicant ’s ] former subordinates may act as witnesses in the criminal investigation .

When on DATE the court chose a measure of restraint , [ it ] noted that there was evidence supporting the conclusion that the defendant might abscond ; that evidence did not cease to exist after the examination of the question of the application of the measure of restraint . Thus , [ the fact that the applicant has ] a permanent place of residence and the family ( wife , children , grandchildren ) in CARDINAL town , [ and that he does not have ] immovable property and bank accounts outside GPE can not serve as an independent ground excluding the possibility of the defendant ’s absconding or perverting the course of the investigation . [ The applicant ] can also participate in the election campaign while outside his electoral district .

There is no evidence that the state of [ the applicant ’s ] health has deteriorated since he has been in custody . According to the conclusions of the complex forensic medical examination no . CARDINAL-Uzh , [ the applicant ] has several chronic conditions , including ... ; however , taking into account those diseases , he may be detained on condition that urgent special medical assistance is provided . ”

On DATE ORG upheld the decision of CARDINAL DATE , endorsing the reasons given by ORG .

On DATE the applicant was charged with bribery and CARDINAL counts of aggravated abuse of position . In particular , the prosecution alleged that he had bought a municipal plot of land , paying CARDINAL of its value as had been estimated by ORG , and that he had received RUB CARDINAL as a bribe .

On DATE the applicant ’s counsel , PERSON , asked a senior investigator from the office of ORG to authorise a medical examination of the applicant by CARDINAL particular specialists in view of the fact that the authorised period of his detention was to expire on DATE and he was continuously complaining of severe back and stomach pain and the lack of adequate medical assistance .

DATE the senior investigator dismissed the request on the ground that the applicant had undergone treatment in a prison hospital from DATE to CARDINAL DATE and that he had on numerous occasions been examined by groups of prison doctors who had found him fit to participate in the investigation .

On CARDINAL DATE ORG extended the applicant ’s detention until DATE on the grounds that he was charged with serious criminal offences , that he could have influenced witnesses DATE his former subordinates – using his official powers and that he was liable to pervert the course of justice and abscond . ORG also found that the applicant ’s state of health was stable and he was fit to remain in detention . According to the Government , in its decision to extend the applicant ’s detention ORG had relied on information provided by ORG . The ORG officials alleged that the applicant ’s relatives “ were actively selling immovable and other property belonging to the mayor ’s family ” and “ were using proceeds to buy large sums of foreign currency for a subsequent move to foreign countries ” .

On DATE ORG upheld the decision of CARDINAL DATE , finding no grounds for the applicant ’s release .

In DATE and DATE criminal proceedings were instituted against the applicant pertaining to CARDINAL other counts of abuse of position , CARDINAL counts of aggravated bribery , possession of drugs and aiding and abetting fraud .

On DATE the applicant was served with a bill of indictment comprising accusations on all charges . DATE the pre - trial investigation was completed and the applicant and his lawyers began studying the case file .

On DATE ORG extended the applicant ’s detention until DATE . The relevant part of the decision read as follows :

“ As it follows from the case file materials , [ the applicant ] is charged with serious and particularly serious criminal offences and the case is very complex , which is confirmed by the substantial volume of the materials ( CARDINAL volumes ) and the necessity for the defendant and his lawyers to study the file ...

It also follows from the case file materials that the measure of restraint was chosen for [ the applicant ] correctly , in accordance with LAW , which is based on the particular seriousness of the charges , [ and ] the presence of the possibility for the defendant to use his official powers to prevent the establishment of the truth .

The grounds for the application of such [ a measure of restraint ] did not cease to exist ; [ they ] did not change and the new grounds , showing that it is necessary to apply another measure of restraint , did not emerge .

Taking into account the materials of the case file and having regard to the official and material status of the defendant , the court has grounds to consider that , if released , [ the applicant ] as the head of the municipality might apply pressure to the witnesses , and [ he ] might also escape from the investigating authorities , including by leaving GPE .

A temporary suspension from the office does not mean the dismissal from the position , the loss of social and official status , [ the loss ] of personal authority over particular groups of private individuals and officials who may be questioned as witnesses in the case during the pre - trial investigation or in a court .

The [ fact ] that [ the applicant ] does not have a travel passport or medical insurance for a foreign ORG can not serve as evidence that it is impossible for him to leave GPE .

[ The facts that the applicant ] has a permanent place of residence , [ and ] the family ( spouse , children and grandchildren ) living within the same town , [ that he ] does not have immovable property or bank accounts in foreign GPE can not on their own serve as an independent ground excluding a possibility of the defendant ’s absconding the investigation and trial or his liability to pervert the course of the investigation .

According to a medical certificate , [ the applicant ’s ] state of health allows his detention in a temporary detention facility .

While extending the detention , the court takes into account the absence of prior convictions , the defendant ’s state of health , the presence of the permanent places of residence and work , [ his ] age , however , taking into account the above stated , [ the court ] does not find any ground permitting a change of the measure of restraint applied to [ the applicant ] . ”

On DATE ORG upheld the decision of DATE , noting that ORG had not relied exclusively on the gravity of the charges against the applicant , and that it had taken into account other relevant information , such as the likelihood that applicant would abscond and pervert the course of justice by threatening witnesses and victims and prompting them to withdraw or change their statements .

On DATE ORG extended the applicant ’s detention for DATE , until DATE , to allow the defendants to finish studying the case file . ORG held that the grounds for the applicant ’s arrest , that is the gravity of the charges against him and his liability to abscond , pervert the course of justice and reoffend , were still applicable and that they warranted the exceptional duration of the detention for DATE , in spite of the arguments advanced by the defence and the personal surety offered on the applicant ’s behalf by the Archbishop of GPE . Furthermore , ORG noted that the case file contained information pertaining to the applicant ’s attempts to influence a victim , PERSON , and a witness , Mr B. , and his alleged attempts to pervert the course of the investigation .

The applicant and his lawyers appealed , arguing that ORG had failed to indicate any instance when the applicant had attempted to influence witnesses or victims . They insisted that the prosecution authorities had not presented any evidence of the applicant ’s alleged attempts to influence the course of the investigation or of his liability to abscond or reoffend .

On DATE ORG of GPE upheld the decision of DATE , noting that “ at the time of the arrest [ the applicant ] was the mayor of GPE and he was charged with serious criminal offences pertaining to his office . ” ORG also agreed with ORG that additional time was necessary for the parties to finish reading the CARDINAL volumes of the case file .

On DATE ORG extended the applicant ’s detention until DATE . The reasoning was identical to the CARDINAL given in the decision on DATE , save for CARDINAL detail : ORG mentioned that in DATE the applicant ’s relatives had bought large amounts of foreign currency . In addition , ORG noted the exceptional duration of the applicant ’s detention , holding as follows :

“ While extending [ the applicant ’s ] detention on the grounds prescribed by LAW , the court also notes that the suspect has been in custody for DATE .

However , the court , relying on LAW of LAW , considers that the particular complexity of the criminal case , the seriousness of the charges against [ the applicant ] , [ his ] social and official status , the presence of circumstances which allow to conclude that , if released , [ the applicant ] is liable to abscond and pervert the course of justice represent the exclusive grounds warranting the extension of [ the applicant ’s ] detention for DATE . ”

On DATE ORG of GPE upheld the decision of DATE , endorsing the reasons given by ORG .

On DATE ORG held a preliminary hearing in the case . It examined and granted a number of requests lodged by the applicant , his co - defendant and their lawyers , including a request for a jury trial and exclusion of certain items from evidence . By the same decision ORG extended the applicant ’s detention for DATE , until DATE , noting that the measure of restraint had been correctly chosen and that “ the grounds for detention had not changed ” . ORG also held that the applicant could influence witnesses who worked in the PERSON office and that he had several places of residence , thus being liable to abscond .

On DATE ORG of GPE upheld the decision , finding that ORG had correctly identified the grounds for the extension of the detention and had issued a reasoned decision .

It appears that the trial proceedings are still pending and the applicant remains in custody .

On DATE the applicant , having had an initial diagnosis of ischemic heart disease and unstable stenocardia , was admitted to the hospital in the ORG temporary detention facility . The Government provided a detailed description of the treatment administered to the applicant , including the type and frequency of medical procedures , type and dose of medicine . They also furnished a copy of the applicant ’s medical record and medical certificates .

As it follows from the presented documents , on DATE of his admission to the prison hospital the applicant was submitted to CARDINAL electrocardiographic examinations . It was established that he was not suffering from an acute heart condition . On DATE the applicant was examined by a medical commission comprising CARDINAL specialists in various fields of medicine . The commission concluded that the applicant suffered from encephalopathy of DATE degree aggregated by cervicalgia and accompanied by a syndrome of moderate pain ; chronic pancreatitis and chronic cholecystitis in the state of remission . The treatment was prescribed . DATE the applicant was again examined by the commission with the participation of CARDINAL cardiologists from ORG . The diagnosis of ischemic heart disease was confirmed . The doctors concluded that the applicant ’s state of health was stable and that he did not need permanent medication . On DATE the applicant did not consent to an examination by a neurologist . On DATE he refused to have blood taken for a complete biochemical analysis . On DATE a group of CARDINAL doctors examined the applicant , finding that he could be discharged from the hospital because his health was satisfactory and he was able to take part in investigative actions , including those performed outside the detention facility . On DATE the applicant was examined by a medical commission comprising CARDINAL surgeons , a therapist , a neurologist and an expert in ultrasound examinations from ORG . They confirmed the applicant ’s diagnosis and set up a schedule for treatment . The applicant received etiotropic and pathogenic treatment in the facility medical department .

As it follows from the information provided by the ORG , the applicant remains under constant medical observation by a number of specialists in various fields of medicine , undergoing regular medical check - ups , including ultrasonic scanning , electrocardiographic examinations and blood tests . The applicant ’s state of health is considered “ stable [ and ] satisfactory ” .

The parties did not dispute the measurements of the cells and the number of inmates detained together with the applicant . As it follows from their submissions , on CARDINAL DATE the applicant was placed in cell no . CARDINAL which measured QUANTITY and had CARDINAL sleeping places . He was detained alone . From DATE to CARDINAL DATE the applicant was kept in cell no . CARDINAL which measured QUANTITY and was equipped with a CARDINAL - tier metal bunk . He shared the cell with another detainee . Since DATE the applicant has been detained in cell no . CARDINAL , measuring QUANTITY and having CARDINAL - tier metal bunks . From DATE the cell accommodated CARDINAL detainees . Since DATE the applicant has been sharing the cell with CARDINAL inmates .

It was likewise undisputed that each cell had a window measuring QUANTITY in width and QUANTITY in length . The windows were not covered with metal shutters , but there were CARDINAL layers of metal vertical and horizontal lattices on the outer and inner sides of each window . ORG between the metal bars , measuring QUANTITY between the external lattices and QUANTITY between the internal lattices , brought natural light in the cells . According to the applicant , the lighting was clearly insufficient , as the metal bars blocked access to natural light and fresh air . The applicant claimed that insufficient lighting had impaired his eyesight . His condition was further exacerbated by the fact that he suffered from myopathy and increased intraocular pressure possibly coupled with glaucoma . He experienced severe headaches and became extremely tired if he attempted to work or read . The Government submitted that the size , location and number of windows allowed inmates to read and work in natural lighting . The cells were constantly lit with electric incandescent lighting : CARDINAL bulbs during the daytime and QUANTITY at night . The Government stressed that the lighting was in accordance with sanitary norms .

According to the ORG , the detention facility was equipped with a central heating system . Each cell had a two- or CARDINAL - unit heating device . In a certificate issued on CARDINAL DATE , the facility director noted that the temperature in the cells during the heating DATE “ depended on the provision of the heat by the town heating system , according to the temperature chart ” . The ORG , relying on the information provided by the facility administration , further stated that the average temperature in the cells was QUANTITY in DATE and QUANTITY in DATE . The applicant averred that the Government did not indicate DATE for which the average temperature had been measured . He argued that it was extremely hot in DATE and cold in DATE and DATE .

The parties further submitted that the windows in the cells had a casement . Inmates could open the casement to bring in fresh air . Each cell had a ventilation system . According to the ORG , the applicant was also allowed to have a private fan . The latter fact was disputed by the applicant , who pointed out that an extract from a log , presented by the ORG and showing his personal belongings , did not bear his signature against the last line , where the private fan was mentioned , although he had confirmed receipt of all other items with a signature .

Each cell was equipped with a lavatory pan , a sink , a tap for running water and wooden desk . A smaller cell had a wooden bench . The lavatory pan was placed in the corner of the cell . The Government produced black and white photos of the cells where the applicant had been detained . The photos showed that the lavatory pan was separated from the living area by a tiled brick partition . As it follows from a certificate issued on CARDINAL DATE by the facility director , the height of the partitions varied from CARDINAL to QUANTITY . The applicant submitted that the partition afforded no privacy , as it had been only installed on the CARDINAL side of the lavatory pan . The pan could still be seen by inmates lying on the bunks and warders standing near the cell door . The applicant further pointed out that inmates were not provided with cleaning fluids for the sanitary equipment .

The applicant was allowed to take a shower once DATE for a minimum of TIME . The applicant asserted that it was difficult to maintain personal hygiene , particularly in DATE when it was extremely hot . He could also take a TIME walk in a small concrete facility courtyard . The applicant insisted that the courtyard was so small that he could not do any physical exercises although the prison doctor had prescribed him therapeutic exercises to alleviate back pain caused by osteochondrosis .

At all times the applicant had an individual sleeping place and he was provided with bedding . The applicant argued that the bedding , in particular a mattress , did not satisfy his needs . Relying on medical certificates and his medical record , the applicant submitted that he suffered from osteochondrosis of the vertebral column with the primary localisation in the lumbar spine . Prison doctors who had examined the applicant on CARDINAL occasions recommended that the applicant should be provided with a special board which could be placed under the mattress to provide support for his back . The recommendation was not fulfilled . As a result the applicant suffered from severe back pain . In particular , the pain was so severe that on QUANTITY occasions in DATE and DATE a prison doctor prescribed him painkillers . Furthermore , the applicant pointed out that the distance between the lower and upper tiers of the bunks was QUANTITY . The applicant was thus forced to bend when seated , experiencing additional back pain .

The Government , relying on the information provided by the director of the facility and copies of entries to facility logs , further stated that the applicant was given dietetic food “ in accordance with the norms established for detainees undergoing medical treatment ” . Medical personnel checked the quality of the food and made entries to that effect in logs . On a number of occasions the applicant refused to eat facility food . However , during the entire period of his detention he received CARDINAL food parcels from his relatives and on CARDINAL occasions he bought food from a facility shop . The applicant submitted that the chronic diseases , that is chronic cholecystitis and pancreatitis , from which he suffered required dietary management which could not be met by normal diet alone . The food prepared in the facility did not correspond to the distinctive nutritional needs and was not intended for the dietary management of those diseases . For example , during DATE of his detention he was served fried potatoes and boiled fat , which had been expressly prohibited for the applicant .

Section CARDINAL of ORG no . CARDINAL-FZ of DATE ) provides that detainees should be given free food sufficient to maintain them in good health according to standards established by ORG of GPE . Section CARDINAL provides that detainees should be kept in conditions which satisfy sanitary and hygienic requirements . They should be provided with an individual sleeping place and given bedding , tableware and toiletries . Each inmate should have QUANTITY of personal space in his or her cell .

Until DATE matters of criminal law were governed by LAW of DATE , “ the old CCrP ” ) . From DATE the old ORG was replaced by LAW ( Law no . CARDINAL of DATE , “ the new CCrP ” ) .

“ Preventive measures ” or “ measures of restraint ” include an undertaking not to leave a town or region , a personal guarantee , bail and remand in custody ( Article CARDINAL of the new CCrP ) .

LAW of DATE provides that a judicial decision is required before a defendant can be detained or his or her detention extended ( Article CARDINAL ) .

The new ORG requires a judicial decision by a district or town court on a reasoned request by a prosecutor , supported by appropriate evidence ( LAW CARDINAL , CARDINAL - CARDINAL ) .

When deciding whether to remand an accused in custody , the competent authority is required to consider whether there are “ sufficient grounds to believe ” that he or she would abscond during the investigation or trial or obstruct the establishment of the truth or reoffend ( LAW of the new ORG ) . It must also take into account the gravity of the charge , information on the accused ’s character , his or her profession , age , state of health , family status and other circumstances ( LAW ) . A defendant should not be remanded in custody if a less severe preventive measure is available .

The Code makes a distinction CARDINAL types of remand in custody : the first being “ during investigation ” , that is , while a competent agency – the police or a prosecutor ’s office – is investigating the case , and the second being “ before the court ” ( or “ during trial proceedings ” ) , at the judicial stage . Although there is no difference in practice between them ( the detainee is held in the same detention facility ) , the calculation of the time - limits is different .

After arrest the suspect is placed in custody “ during investigation ” . The maximum permitted period of detention “ during investigation ” is DATE but this can be extended for DATE in “ exceptional circumstances ” . Extensions are to be authorised by judicial decisions , taken by courts of ascending levels . No extension of detention “ during investigation ” beyond DATE is possible ( LAW of the new ORG ) .

The period of detention “ during investigation ” is calculated up to DATE when the prosecutor sends the case to the trial court ( Article CARDINAL § CARDINAL of the new CCrP ) .

Access to the materials in the file is to be granted DATE before the expiry of the authorised detention period ( LAW of the new ORG ) . If the defendant needs more time to study the case file , a judge , on a request by a prosecutor , may grant an extension of the detention until such time as the file has been read in full and the case sent for trial ( LAW ( CARDINAL ) of the new ORG ) .

From the date the prosecutor refers the case to the trial court , the defendant ’s detention is classified as “ before the court ” ( or “ during judicial proceedings ” ) .

The new ORG provides that the term of detention “ during judicial proceedings ” is calculated from the date the court received the file up to the date on which the judgment is given . The period of detention “ during judicial proceedings ” may not normally exceed DATE , but if the case concerns serious or particularly serious criminal offences , the trial court may approve CARDINAL or more extensions of no longer than DATE each ( LAW and CARDINAL ) .

The new ORG empowers the judge , within DATE of receipt of the case file , ( CARDINAL ) to refer the case to a competent court ; ( CARDINAL ) to fix a date for a preliminary hearing ; or ( CARDINAL ) to fix a trial date ( Article CARDINAL ) . In the latter case , the trial proceedings must begin no later than DATE after the judge has fixed the trial date ( LAW ) . There are no restrictions on fixing the date of a preliminary hearing .

The duration of the entire trial proceedings is not limited in time .

The new ORG provides that the appeal court must start the examination of the appeal DATE after it is lodged ( Article CARDINAL ) .

DATE . ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( ORG ) visited GPE from DATE . The section of its ORG to ORG ( ORG ( DATE ) CARDINAL ) dealing with the conditions of detention in temporary holding facilities and remand establishments and the complaints procedure read as follows :

“ b. temporary holding facilities for criminal suspects ( ORG )

According to LAW establishing the internal rules of ORG temporary holding facilities for suspects and accused persons , the living space per person should be CARDINAL m² . It is also provided in these regulations that detained persons should be supplied with mattresses and bedding , soap , toilet paper , newspapers , games , food , etc . Further , the regulations make provision for outdoor exercise of TIME per day .

The actual conditions of detention in the ORG establishments visited in DATE varied considerably .

It should be stressed at the outset that the ORG was pleased to note the progress being made on an issue of great concern for the NORP penitentiary system : overcrowding .

When the ORG first visited GPE in DATE , overcrowding was identified as the most important and urgent challenge facing the prison system . At DATE visit , the delegation was informed that the remand prison population had decreased by CARDINAL since DATE . An example of that trend was GPE No CARDINAL in GPE , which had registered a PERCENT decrease in the remand prison population over DATE .

The ORG welcomes the measures taken in DATE by the NORP authorities to address the problem of overcrowding , including instructions issued by ORG , aimed at a more selective use of the preventive measure of remand in custody . Nevertheless , the information gathered by the ORG ’s delegation shows that much remains to be done . In particular , overcrowding is still rampant and regime activities are underdeveloped . In this respect , the ORG reiterates the recommendations made in its previous reports ( cf . paragraphs CARDINAL and CARDINAL of the report on the DATE visit , ORG ( CARDINAL ) CARDINAL ; paragraphs CARDINAL of the report on the DATE visit , ORG ( DATE ) CARDINAL ; paragraph CARDINAL of the report on the DATE visit , ORG ( DATE ) CARDINAL ) .

As during previous visits , many prisoners expressed scepticism about the operation of the complaints procedure . In particular , the view was expressed that it was not possible to complain in a confidential manner to an outside authority . In fact , all complaints , regardless of the addressee , were registered by staff in a special book which also contained references to the nature of the complaint . At Colony No CARDINAL , the supervising prosecutor indicated that , during his inspections , he was usually accompanied by senior staff members and prisoners would normally not request to meet him in private “ because they know that all complaints usually pass through the colony ’s administration ” .

In the light of the above , the ORG reiterates its recommendation that the NORP authorities review the application of complaints procedures , with a view to ensuring that they are operating effectively . If necessary , the existing arrangements should be modified in order to guarantee that prisoners can make complaints to outside bodies on a truly confidential basis . ”


CASE OF BEET AND OTHERS v. THE UNITED KINGDOM

Violation of Art. 5-1 with regard to one applicant;Violation of Art. 5-5 with regard to one applicant;Violation of Art. 6-1+6-3-c with regard to four applicants;Non-pecuniary damage - financial award (with regard to one applicant);Non-pecuniary damage - finding of violation sufficient (with regard to four applicants);Pecuniary damage - claim dismissed;Costs and expenses partial award

The details concerning the date of birth and place of residence of the CARDINAL applicants are contained in their application forms and are available in the respective case files .

Each applicant failed to pay sums due in respect of either local taxes ( community charge or council tax ) , or court - imposed fines . In respect of the failure to pay local taxes , the GPE court had in each case determined that the applicant was liable to pay ( issuing a “ liability order ” ) ; in fines cases , the GPE court had imposed the fine as the sentence following a criminal conviction .

Each applicant fell into arrears with the payments due from them . These cases involve the enforcement proceedings in respect of their arrears in the GPE court . Each applicant appeared before the court , following the issuing of an application for their committal to prison as a result of their failure to pay the sums due . At that hearing the magistrates found that the non - payment was due to the applicant ’s wilful refusal or culpable neglect . As a result each applicant was sentenced to a period of imprisonment , suspended on terms that the applicant make periodic payments towards the outstanding sum . The applicants failed to comply with the terms imposed . A further hearing was thereafter held in the GPE court at which the suspended term of imprisonment was activated . Each applicant spent a period of time in prison . Legal aid ( free legal representation where the applicant did not have sufficient means to pay for it ) was not available for these enforcement proceedings prior to DATE and none of the applicants was legally represented at the hearings in front of the magistrates .

Following their imprisonment , an application was made on behalf of each applicant , by way of either judicial review or case stated , which resulted in ORG quashing the orders made by the magistrates . The applicants were released from prison on bail at the time of making their applications to ORG . In CARDINAL cases the orders were quashed following ORG approval of a consent order agreed between the applicants and the magistrates who had sentenced them .

The ORG has set out the relevant facts pertaining to each applicant in the table which appears at the end of the decision on admissibility ( CARDINAL/CARDINAL , PERSON and Others v. GPE , decision of DATE ) . That table sets out the following information in respect of each applicant : their name and application number ; whether their case involved non - payment of community charge ( “ ORG ” ) , council tax ( “ GPE ” ) or fines ( “ F ” ) and DATE which they spent in prison ; whether their proceedings in the GPE court took place before or after legal aid became available on DATE ; and the grounds upon which ORG quashed the orders of the magistrates . A summary of the terms of the consent order whereby the orders of the magistrates were quashed is also set out in the table .

NORP Throughout the text of this decision , where there is a reference to a specific applicant , the ORG has set out the surname of the applicant followed by their application number in brackets . The words “ justices ” and “ magistrates ” are synonymous in domestic law .

The ORG sets out the facts of CARDINAL case more fully below .

The applicant ’s proceedings before the magistrates arose in respect of her arrears in payment of the community charge and took place after DATE . She spent a total of DATE in prison . The orders of the GPE court were quashed by ORG as a result of a consent order in which it was agreed that :

“ ( i ) The decision of the justices that the applicant had culpably neglected to pay her community charge without having conducted a proper inquiry into her circumstances as of the time that the liability became due was unlawful , see NORP v. GPE Justices ex parte GPE [ DATE ] RVR CARDINAL .

( ii ) The decision of the justices to issue a sentence of committal to prison and to make an order postponing the issue of the warrant that would have left the threat of imprisonment over her for DATE was unlawful having regard to the principles laid down in NORP v. PERSON and PERSON [ DATE ] CARDINAL ORG R(S ) CARDINAL and NORP v. PERSON Justices ex parte ORG [ DATE ] FAC and NORP v. GPE upon GPE Justices ex parte Devine [ DATE ] ORG .

( iii ) In view of the circumstances of the applicant and [ her ] detention , and the period of detention served , all parties agreed that the matter be remitted back to the magistrates and that the magistrates , upon reviewing the matter , agreed to remit the outstanding community charge arrears , see PERSON in NORP v. PERSON ex parte PERSON . ”

In respect of costs , it was further agreed that :

“ ... in view of the fact that the Hull Justices had acknowledged the same ground in quashing the committal in NORP v. Hull Justices ex parte PERSON ( PERSON ) costs be borne by the respondent justices see PERSON v. GPE upon GPE Justices ex parte Devine [ DATE ] ORG . ”

The relevant statutory provisions and domestic case - law are set out in ORG v. GPE , nos . CARDINAL and others , judgment of DATE , § § DATE ; hereinafter “ ORG ) . Of additional relevance in this case is the case - law set out below .

In NORP v. PERSON Justices ex parte ORG [ DATE ] FAC , ORG held that a committal order which had been suspended on the basis of the debtor paying QUANTITY ( GBP ) per week in discharge of the arrears of rates due was quashed since it would have taken over DATE for the debt to be discharged and the risk of committal removed . During the course of his judgment , Lord Justice PERSON stated as follows :

“ ... The criminal courts , when imposing fines upon convicted defendants of limited means , frequently provide for the fines to be paid by instalments over a period . There is no fixed limit to the period over which payment can be ordered . It has recently been indicated by ORG that in appropriate circumstances DATE might not be excessive . ...

... In my judgment it would be a very rare case indeed in which a defaulting rate - payer could properly be ordered , on pain of a sentence of imprisonment , to make payments in discharge of the arrears for a period anywhere near DATE . In my judgment , with great respect to the Justices , unless they were confident that she could pay it off more quickly they should not have made the order in those terms . ”

In the above - cited case of NORP v. GPE - upon - Tyne Justices ex parte PERSON , Mr Justice PERSON referred to the above - cited ex parte NORP case in stating that the magistrates should not have imposed a suspended committal order which would have lasted for DATE . He was of the opinion that such an order should not be suspended for DATE .