Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses partial award

The applicant was born in DATE and lives in GPE .

On DATE criminal investigations were instituted against the applicant who was taken into police custody DATE in respect of , inter alia , alleged tax frauds . He was released on DATE .

On DATE and CARDINAL DATE the applicant was summoned to appear before ORG ( raastuvanoikeus , rådstuvurätt , as from DATE ORG , käräjäoikeus , tingsrätt ) indicted for several aggravated tax frauds . The alleged offences concerned the importation of parts of vehicles and failure to pay relevant tax for them . The relevant decisions of the tax authorities after the clearance of the taxes were not yet final as the applicant had appealed against them . The first hearing before ORG was held on DATE . The complainants and CARDINAL of the CARDINAL defendants , ORG , had not yet been summoned . ORG charged the applicant with CARDINAL aggravated tax frauds , some of which he had allegedly committed together with other defendants , including PERSON . The applicant ’s lawyer asked to be allowed to reply to the charges later . At the request of ORG the case was adjourned until DATE .

At the second hearing , on DATE , the applicant denied all the charges . Concerning the alleged offences in complicity with PERSON , the applicant stressed PERSON ’s role in the events and his greater knowledge of the subject . CARDINAL complainants and the defendant ORG had still not been summoned . At the request of ORG and ORG , which was one of the complainants , the case was adjourned until DATE .

At the third hearing on CARDINAL DATE ORG submitted claims for damages . The applicant ’s lawyer opposed the claims and said he would revert to the question of damages in a later hearing . The defendant ORG had still not been summoned to appear before ORG . ORG requested an adjournment in order to have ORG summoned and to submit further clarification to certain questions . His request was not opposed . The next hearing was ordered to be on DATE .

At the fourth hearing on DATE the applicant was heard in person . His lawyer also clarified the reply to the claims of ORG . ORG stated that ORG had not yet been contacted and requested an adjournment in order to have him summoned . The applicant left the request for an adjournment to ORG discretion . The case was adjourned until DATE .

At the fifth hearing on DATE ORG stated that ORG had still not been summoned and requested a further adjournment . The applicant left the request to ORG discretion . The case was adjourned until DATE .

At the sixth hearing on CARDINAL DATE ORG requested the case to be adjourned until further notice since ORG ’s place of residence was not known . The applicant left the case to be decided for his part . ORG considered that it was necessary to hear PERSON before giving a decision on the charges against the applicant . Furthermore , ORG had not yet given its decision concerning the appeals against the decisions of the tax authorities after the clearance of the taxes . ORG , therefore , adjourned the case until further notice of DATE hearing would be given .

ORG and ORG gave decisions concerning the appeals against the post - clearance decisions on DATE and DATE respectively .

In DATE the applicant lodged a complaint with the Chancellor of ORG ( oikeuskansleri , justitiekansler ) . The complaint concerned ORG decision to adjourn his case until further notice .

The seventh hearing before ORG ( the former ORG ) was held on DATE . ORG had been summoned but he was absent from the hearing . At the request of the public prosecutor , which was not objected to , the case was adjourned until DATE .

At the eighth hearing on DATE PERSON appeared before ORG to reply to the charges . He and the applicant were examined as regards their complicity in the alleged offences . At the request of ORG , which was not objected to , the case was adjourned until DATE .

At the last hearing on DATE the applicant submitted that the length of the proceedings should be taken into account when assessing his possible punishment . ORG convicted the applicant of a repetitive offence , consisting of CARDINAL tax frauds , an aggravated tax fraud and aiding and abetting in CARDINAL tax frauds and in CARDINAL aggravated tax frauds , and sentenced him to CARDINAL months’ suspended imprisonment . In the reasons given for the sentence the length of the proceedings was not mentioned explicitly . It was , however , noted that the fact that the offences had been committed a long time ago was CARDINAL of the reasons for the court ’s decision to impose a suspended sentence .

On DATE the Deputy Chancellor of ORG ( apulaisoikeuskansleri , justitiekanslersadjoint ) gave his decision on the applicant ’s complaint , finding no breach of official duties on the part of ORG members or of the public prosecutor nor any reason to take further measures in the matter .

NORP The public prosecutor and the defendants appealed to ORG ( hovioikeus , hovrätt ) . The applicant requested , inter alia , that the length of the proceedings should be taken into consideration when assessing his sentence . On DATE ORG , as regards the applicant , upheld ORG decision without giving any further reasons .

NORP The applicant sought leave to appeal from ORG ( korkein oikeus , högsta domstolen ) renewing his request that the length of the proceedings be taken into account in the assessment of his sentence . On DATE ORG refused the applicant leave to appeal .

LAW , LAW ( CARDINAL.CARDINAL.CARDINAL/CARDINAL ) , of LAW ( oikeudenkäymiskaari , rättegångsbalken ) provided :

“ When a party requests an adjournment in order to submit further evidence or for some other reason , the case must be adjourned , if the court finds grounds for it . The date for a new hearing must be set at the same time . A court can not adjourn a case of its own motion unless necessary under particular circumstances . ... ”

As from DATE the rules concerning adjournment of cases were amended ( amendment CARDINAL ) . As regards criminal cases , the above - mentioned provision of law remained essentially unchanged . Furthermore , LAW , LAW , of LAW provided :

“ When it is important to wait for a decision of another tribunal or some other body before a decision is given in a pending case , or when some other long - lasting impediment exists , a court may order that the hearing of the case will not be pursued until that obstacle ceases to exist . ”

According to LAW , LAW ( CARDINAL.CARDINAL.CARDINAL/CARDINAL ) , of LAW , which came into force on DATE , charges against defendants accused of committing the same offence must , in principle , be tried together .


Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

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

The applicant has brought the present application in his capacity as administrator of his deceased father 's estate .

On DATE a civil action was brought before ORG by , inter alia , the applicant , in his capacity as administrator of his deceased father 's estate , against CARDINAL members of his family and the Attorney - General of the Republic concerning the transfer and registration of certain plots of land .

On DATE the action was settled by way of friendly settlement .

On DATE the applicant , in his capacity as administrator of his deceased father 's estate , brought another civil action before ORG against CARDINAL members of his family and the Attorney - General ( “ the defendants ” ) seeking the transfer and registration of a plot of land in his name .

On DATE ORG upheld the applicant 's claim in part . It issued an order for the annulment of the registration of the plot in the names of defendants nos . CARDINAL–CARDINAL and further , an order for the restoration / reinstatement / re - registration of the property in the applicant 's grandfather 's name .

On DATE the applicant lodged an appeal with ORG , claiming that ORG should have ordered the transfer and registration of the plot in his name and also that he should have been awarded general , special and exemplary damages ( appeal no . CARDINAL/CARDINAL ) . The defendants also appealed against the first - instance judgment ( appeal no . DATE ) .

On DATE ORG dismissed the applicant 's appeal but upheld the respondents ' appeal . It set aside ORG judgment and annulled the orders that had been issued .

LAW safeguards the right to a fair trial . It provides as follows , in so far as relevant :

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

In order to ensure the effective protection / application at domestic level of the principle of the right to a trial within a “ reasonable time ” and to provide effective domestic remedies in relation to breaches of that right , ORG passed ORG for Exceeding ORG for the Determination of Civil Rights and Obligations , PERSON CARDINAL(I)/CARDINAL . This PERSON entered into force on DATE and applies to complaints concerning the length of proceedings in all civil and administrative cases .

The relevant parts of LAW provide as follows :

“ Whereas Article CARDINAL of LAW and LAW safeguard the right to determination of civil rights and obligations within a reasonable time ,

And whereas in a number of individual recourses against GPE ORG Rights found violations of LAW in that the civil rights and obligations of the applicants in civil cases and recourses had not been determined by ORG within a reasonable time as required by the above - mentioned LAW and also found a violation of LAW in that there were no effective remedies in the Republic as required by LAW allegations of violation of the requirement of LAW ,

And whereas the LOC 's obligation under LAW to abide by the said Judgments of ORG is being supervised by ORG and entails the adoption of measures preventing future violations as those found by ORG in the above - mentioned individual applications ,

And whereas a number of individual recourses against the Republic are pending before ORG for violation of Articles CARDINAL and CARDINAL of the LAW regarding determination of the applicants ' civil rights and obligations in civil cases and recourses ,

And whereas the LOC is bound by LAW to secure the rights of the LAW including the right to effective domestic remedies for violation of the right to determination of civil rights and obligations within a reasonable time . ”

“ ( CARDINAL ) This Law applies with regard to the violation of the right of persons to determination of their civil rights or obligations within a reasonable time in ORG or ORG cases , whether they are pending at any stage at first instance or on appeal or have been concluded .

( CARDINAL ) A person who alleges that in a case to which this law applies his right to determination of his civil rights or obligations within a reasonable time has been violated has a right to have recourse to the legal proceedings provided for in the present PERSON for obtaining the remedies provided by it .

( CARDINAL ) Violation , in a court case to which this PERSON applies , of the right of a person to determination of his civil rights or obligations within a reasonable time and the granting of the remedies provided for in this PERSON for the violation , is determined by courts vested with competence under this PERSON . ”

“ The right to determination of civil rights and obligations within a reasonable time in a case to which this PERSON applies is actionable , and the person who alleges that he or she is a victim of a violation of the right may have recourse to the court with jurisdiction by way of action against the Republic by virtue of this PERSON , claiming the remedies for the violation provided for in this PERSON . ”

“ ( CARDINAL ) An action under LAW may be instituted for violation of the right in a case which has been concluded with a final court judgment concerning violation of the right at any stage of the case , i

( CARDINAL ) An action under section CARDINAL may also be instituted for violation of the right in a case concluded with a judicial decision before the date of entry into force of the present PERSON , or in which execution of a judgment given before the date of entry into force is pending , provided that the action is instituted within DATE of the date of entry into force or the date of the ed within the above time - limit . ”

“ ( CARDINAL ) Irrespective of the provisions of any other law , the court which is granted jurisdiction by this PERSON to examine and determine an action under sections CARDINAL and CARDINAL for a violation of the right to determination of civil rights or obligations within a reasonable time in cases which were concluded with the issuance of a final judicial decision are :

( a ) in relation to district court cases , the administrative President of any ORG who , in a case in which , according to the action , the plaintiff 's right to determination of his civil rights or obligations within a reasonable time has been violated , did not exercise duties at the court in which the case was pending and did not participate at any stage of its examination , or in the event there is no administrative president who did not exercise duties at the court in which the case was pending and did not participate at any stage of its examination , the next senior president of the district court or another judge who fulfils the above , as ORG may in the event designate .

( b ) in relation to ORG cases , CARDINAL judges of ORG , as ORG may in the event designate .

( CARDINAL ) The judgment of the court with jurisdiction under sub - section ( b ) of paragraph ( CARDINAL final and is not subject to appeal . ”

“ ( CARDINAL ) Without prejudice to the right to institute an action under sections CARDINAL and CARDINAL , a person who is a party in a pending case to which this law applies has the right at any stage of the proceedings whilst the case is pending to have recourse to the legal remedies provided for in sub - paragraph ( CARDINAL ) in relation to the allegation that in the case his right to determination of civil rights or obligations within a reasonable time has been violated .

( CARDINAL ) For the purposes of sub - section ( CARDINAL ) a party who alleges that there has been a violation of his right to determination of his civil rights or obligations within a reasonable time in a pending district court or ORG case may at any stage of those proceedings have recourse by instituting an originating application against the Republic to the court with jurisdiction as provided by section CARDINAL for the examination of the allegation and the granting of remedies for the violation provided for by this PERSON and for the issuance of a decision on these matters .

( CARDINAL ) the provisions of paragraphs ( CARDINAL ) and ( CARDINAL ) are applied also in relation to cases which were pending at any stage at the date of entry into force of the present PERSON .

( CARDINAL ) There is no suspension or adjournment of any procedure in a pending case by reason of an application made under this section or pending the conclusion of its examination .

“ ( CARDINAL ) Irrespective of the provisions of any other law , the court which is hereby granted jurisdiction to examine and determine an allegation and to grant remedies in an originating application under LAW is :

( a ) in relation to a district court case which is pending at that stage before a district court , the administrative President of any ORG who does not exercise duties at the court in which the case is pending and who did not participate in any stage of its examination , or in the event there is no administrative president who did not exercise duties at the court in question and did not participate in any stage of its examination , the next senior president of the district court or another judge who fulfils the above , as ORG may in the event designate .

( b ) in relation to a district court case which is pending at that stage before ORG or to a ORG case which is pending before the court in question at any stage , CARDINAL judges of ORG , as ORG may in the event designate .

Provided that by virtue of this paragraph under this section judges of ORG who did not participate at any stage of the case will be designated .

( CARDINAL ) The judgment of the court with jurisdiction , under sub - section ( b ) of paragraph ( CARDINAL ) , is final and is not subject to appeal . ”

“ In an action under sections CARDINAL and CARDINAL and in an originating application under sections CARDINAL and DATE , the court with jurisdiction gives judgment at the conclusion of the examination of the action or the application , as the case may be , or , in the event it reserves its judgment , it is to deliver it without delay . ”

“ Actions and originating applications against the Republic under this PERSON are instituted against the Attorney - General of the Republic as defendant or respondent , depending on the case and the provisions of LAW of ORG apply . ”

“ The court , in order to determine whether there has been a violation of the right of the plaintiff or the applicant to determination within a reasonable time of his civil rights or obligations in an action under sections CARDINAL and CARDINAL and in an application under sections DATE and DATE , takes into account –

( a ) the total period during which the determination of the rights or obligations in the case is pending or has lasted , taking into account the date on which the case was lodged with the court , and also where relevant any preceding period ,

( b ) the nature of the case in which , according to the allegation of the plaintiff or the applicant , his right has been violated ,

( c ) the possible complexity of the case ,

( d ) the conduct of the plaintiff or the applicant in the proceedings of the case ,

( e ) the conduct of the judicial authorities at the various stages and processes of the case , including , where relevant , the execution procedures , and the prosecution of the case in the said stages and procedures ,

( f ) the conduct of other authorities of the Republic , where relevant , at the stage and procedures of execution , as well as at any relevant stage and procedures prior to the date the case was lodged with the court ,

( g ) any other factors taken into account by ORG as relevant to the matter in issue as these arise from its relevant case - law on the subject . ”

“ Where in an action under sections CARDINAL and CARDINAL or in an application under sections DATE and CARDINAL the court considers that the right of the plaintiff or applicant to determination of his civil rights or obligations within a reasonable time has been violated , the plaintiff / applicant is entitled :

( a ) to compensation for any pecuniary damage , loss , costs , and expenses proved to have been sustained on account of the violation ;

( b ) to compensation for non - pecuniary damage or injury suffered on account of the violation ;

( c ) to legal costs proved to have been incurred on account of the violation .

( CARDINAL ) For ascertaining the damage sustained on account of the violation as provided in sub - section ( CARDINAL ) and assessing and awarding the compensation provided for under sub - section ( CARDINAL ) , the court takes into account the criteria and factors taken into account for this purpose by ORG as they can be determined from its case - law in analogous cases of violation of LAW , and the amounts of compensation awarded by the said ORG in such analogous cases . ”

“ In examining an application made under sections CARDINAL and CARDINAL concerning the issue as to whether the applicant 's right to determination of his civil rights or obligations within a reasonable time has been violated , the court exercises its judgment in relation to factors referred to in paragraphs ( ORG ) of LAW after hearing the applicant and the Attorney - General of the Republic , by reference to the records of the proceedings and the contents of the file or files at first instance , or of any appeal of the case in which the applicant alleges that there has been a violation of his said right . ”

“ ( CARDINAL ) Where in an application under sections CARDINAL and CARDINAL the court decides under the present PERSON that there has been a violation in a pending case of the applicant 's right to determination within a reasonable time of civil rights or obligations , the said court transmits its judgment immediately to ORG .

( CARDINAL ) If the case concerning which the competent court issued its judgment and transmitted it to ORG under sub - section ( CARDINAL ) is still pending , ORG issues such directions as under the circumstances it considers necessary to accelerate the procedure in the pending case , so as to prevent any continuance of the delay or any new delays , and avoid the possibility of continuation of the violation or new violations of the rights of any party in the pending case :

Provided that a judge or judges of ORG who had participated in any stage of the examination of the pending case shall not participate in the issuing of directions .

( CARDINAL ) Directions under sub - section ( CARDINAL ) may include amongst other things-

( a ) that the pending case be set down immediately for directions before the court , or for trial

( b ) that pleadings which may not yet have been filed be so filed within deadlines specified in the directions ,

( c ) that the record of the proceedings be prepared ;

( d ) that costs which may have been awarded be subject to taxation

( e ) that priority be given to the conduct of the hearing of the case or the hearing of any interim applications ;

( f ) that priority be given to the completion of any interim application procedures , or of other interim procedures ,

( g ) that priority be given to the delivery of a judgment reserved in the case or in an interim application ,

( h ) that priority be given to the completion by the judicial authorities of the execution procedures of a judgment given in the case to the extent that such authorities are involved .

( CARDINAL ) Directions under sub - section ( CARDINAL ) for accelerating the procedure in a pending case are issued irrespective of the fact that the relevant judgment which has been transmitted may have been given in accordance with paragraph ( a ) of sub - section ( CARDINAL ) of section CARDINAL , and/or has been appealed against by the Attorney General . ”


CASE OF THE MOSCOW BRANCH OF THE SALVATION ARMY v. RUSSIA

Violation of Art. 11 read in the light of Art. 9;Not necessary to examine under Art. 14;Non-pecuniary damage - financial award

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

The Salvation Army worked officially in GPE from DATE to DATE when it was dissolved as an “ anti - Soviet organisation ” .

The Salvation Army resumed its activities in GPE in DATE when a group of NORP nationals held a meeting and adopted the articles of association of the GPE branch of ORG .

On DATE ORG of ORG registered the applicant branch as a religious organisation with status as a legal entity .

On DATE the GPE ORG registered the applicant branch ’s amended articles of association .

On DATE a new Law on freedom of conscience and religious associations ( “ the Religions Act ” ) came into force . It required all religious associations which had previously been granted the status of legal entities to bring their articles of association into conformity with the LAW and to re - register by DATE .

On DATE the applicant submitted to ORG an application for re - registration as a local religious organisation .

On DATE the deputy head of ORG notified the applicant that its request for re - registration was being denied . He advanced CARDINAL grounds for this refusal . Firstly , it was claimed that , at the meeting of ORG ( the governing body of the applicant branch ) at which amendments to the founding documents had been adopted , CARDINAL members had been in attendance , whereas LAW required that a religious organisation should have CARDINAL founding members . Secondly , it was alleged that no visas for the applicant branch ’s foreign members , or other documents establishing their lawful residence in NORP territory , had been provided . Thirdly , the deputy head referred to the fact that the applicant branch was subordinate to a centralised religious organisation in GPE and inferred therefrom that the applicant branch was “ most probably ” a representative office of a foreign religious organisation operating on behalf and by order of the latter . Accordingly , its activities were to be governed by Government Regulation no . CARDINAL ( see paragraph CARDINAL below ) .

On DATE the applicant challenged the refusal before ORG of GPE . ORG submitted its written comments , in which it advanced a new ground for the refusal of registration .

“ ... LAW provides that members of the Branch shall include supporters , soldiers , local officers and officers headed by the Officer Commanding , who is appointed from GPE . Members of the Branch wear a uniform and perform service , which means that the Branch is a paramilitary organisation .

Pursuant to Presidential Decree no . CARDINAL of DATE ‘ on measures to secure coordinated actions by ORG authorities in the fight against fascism and other forms of political extremism in GPE , no paramilitary formations may be established in GPE .

We do not consider the use of the word ‘ NORP in the name of a religious organisation to be legitimate . ORG defines the meaning of this word as : CARDINAL . The totality of a ORG ’s armed forces ... ”

As to the remainder , ORG repeated and elaborated on the grounds for refusal set out in the letter of CARDINAL DATE .

On DATE the ORG gave judgment . It determined that the applicant branch was a representative office of the international religious organisation “ The ORG ” and therefore was not eligible for registration as an independent religious organisation . In the court ’s opinion , this fact also prevented the applicant branch from being granted re - registration . Secondly , it referred to LAW , banning the founding and functioning of public associations which advocated a violent change in the constitutional principles of GPE or destruction of its integrity , undermined the security of the ORG , created paramilitary formations , or caused social , racial , ethnic or religious division or conflict . The court continued as follows :

“ In the course of analysis of the LAW , certain provisions stood out , on the one hand , as being imbued with barrack - room discipline , in which members of the religious organisation show unquestionable subordination to its management and , on the other hand , as relieving the management and the organisation as a whole of any responsibility for its PERSON activities . Thus , according to LAW , ‘ the members of the Branch shall act in compliance with ORG and with the instructions of the Officer PERSON , ... ‘ the Branch as a whole shall not be liable for infringements of the legislation of GPE perpetrated by individual members of the Branch’ . This wording of the LAW leads one to conclude that the LAW assumes that the members of the organisation will inevitably break NORP law in the process of executing ORG and the instructions of the Officer Commanding ... The Branch excludes its liability for illegal service activity by its members . ”

Thirdly , the court pointed out that the grounds for judicial liquidation of the applicant branch , as set out in its articles of association , were inconsistent with those laid down in NORP law . Lastly , the court held that the applicant branch had not disclosed its objectives , given that the articles of association failed to describe “ all the decisions , regulations and traditions of The ORG ” .

On DATE ORG upheld that judgment on appeal , focusing mainly on the applicant branch ’s foreign ties . It pointed out that the organisation ’s executive body included CARDINAL foreign nationals who had multiple - entry visas , but not residence permits , whereas section CARDINAL ) of LAW required founders to be of NORP nationality . Noting the location of ORG headquarters abroad and the presence of the word “ branch ” in its name , ORG concluded that ORG had correctly insisted on registration of the applicant branch as a representative office of a foreign religious organisation . As a subsidiary argument , ORG endorsed ORG finding that the articles of association did not indicate the precise religious affiliation of its members because it was described as “ NORP ” , certain clauses of the articles of association mentioned the “ faith of The ORG ” , and its objective was the “ advancement of the NORP faith ” . On the allegedly paramilitary nature of the applicant ’s activities , ORG noted :

“ The argument that [ the applicant ] is not a paramilitary organisation does not undermine the [ first - instance ] court ’s findings that the Branch is a representative office of a foreign religious organisation , ORG , and that the documents submitted for re - registration do not conform to the requirements of NORP law . ”

On DATE ORG of GPE sent an instruction “ on activities of non - traditional religious associations in the territory of the GPE ” to NORP regional education departments . The instruction stated , inter alia :

“ ... the international religious organisation ORG is expanding its activities in the central part of GPE . Its followers attempt to influence young people and the military . ORG formally represents ORG branch of NORP ; in essence , however , it is a quasi - military religious organisation that has a rigid hierarchy of management . ORG is managed and funded from abroad . ”

The applicant branch submitted that this extract was copied verbatim from an information sheet prepared by ORG of GPE and forwarded to ORG on DATE .

On DATE the time - limit for re - registration of religious organisations expired . Organisations that had failed to obtain re - registration were liable for dissolution through the courts .

On DATE and DATE ORG and ORG of GPE , respectively , refused the applicant branch ’s request to lodge an application for supervisory review .

On DATE the GPE ORG brought an action for dissolution of the applicant branch .

On DATE ORG of GPE granted the action for dissolution . The court found that the applicant branch had failed to notify ORG on time about the continuation of its activities and had failed to obtain re - registration within the time - limit set by LAW . The court held that the applicant branch had ceased its activities and that it was to be stripped of its status as a legal entity and struck off ORG . On DATE ORG upheld that judgment .

On DATE the applicant brought a complaint before the Constitutional Court challenging the constitutionality of section CARDINAL(CARDINAL ) of LAW , which provided for dissolution of religious organisations that had failed to re - register before the time - limit . The applicant argued that the contested provision imposed dissolution as a form of penalty which could be imposed on a religious organisation on purely formal grounds , in the absence of any violations or offences on the part of the organisation . It maintained that the possibility of no - fault penalty was incompatible with the rule of law and constituted an encroachment on its constitutional rights .

On DATE ORG ruled on the complaint . It held that re - registration of a religious organisation could not be made conditional on the fulfilment of requirements that were introduced by LAW and which had not legally existed when the organisation was founded . A court could only decide on the dissolution of an organisation which had failed to bring its documents into compliance with the LAW if it was duly established that the organisation had ceased its activities or had engaged in unlawful activities . The court also emphasised that a judicial decision on dissolution of an organisation that had failed to obtain re - registration was to be reasoned beyond a mere reference to such formal grounds for dissolution as the failure to re - register or the failure to provide information on the continuation of its activities . Finally , the court held that the applicant ’s case was to be reheard in the part affected by ORG different interpretation of LAW .

On DATE the ORG of ORG quashed the judgment of DATE and remitted the case for a fresh examination by a differently composed bench .

On DATE ORG of GPE dismissed the action for dissolution of the applicant branch brought by ORG . The court founded its decision on ORG ruling .

On DATE the GPE ORG lodged an appeal . It submitted , firstly , that the judicial decisions upholding its refusal of re - registration remained effective and , secondly , that the entering of information on the applicant branch in ORG did not constitute re - registration for the purposes of LAW .

On DATE ORG dismissed the appeal and upheld ORG judgment of DATE .

The applicant submitted that the refusal to re - register it had had an adverse impact on its activities .

Following the expiry of the time - limit for re - registration on DATE , the applicant branch ’s assets had had to be transferred , in order to avoid seizure , to the community of ORG which had been re - registered at federal level . The transfer process had required considerable time and effort , involving : title to CARDINAL properties ; title to and registration of CARDINAL vehicles ; opening of a new bank account ; replacement of every employee ’s contract ; renegotiation of CARDINAL rental contracts , etc . Each of these transfers had necessitated complex bureaucratic steps and a diversion of resources from religious activities .

The refusal had also resulted in negative publicity which severely undermined the applicant branch ’s efforts at charitable fund - raising and generated distrust among landlords who refused to negotiate leases with the applicant branch .

In CARDINAL neighbourhood , the applicant branch ’s mission of delivering hot meals to house - bound elderly persons had had to be stopped entirely , because an official of the local administration had refused to work with the applicant branch as it had no official registration .

The lack of re - registration had made it impossible for CARDINAL foreign employees and CARDINAL non - GPE NORP employees to obtain residence registration in GPE , which was required by law for everyone who stayed in the city for DATE .

The articles of association of the applicant branch , approved on CARDINAL DATE and amended on DATE , read in the relevant parts as follows :

“ ( CARDINAL ) ORG called GPE Branch of ORG , a non - commercial charitable organisation , was established by its first members ... with the aim of professing and advancing the NORP religion ...

( CARDINAL ) The first members are parties who uphold the Articles of Faith of ORG as set out in Schedule I hereto ...

( CARDINAL ) The Branch shall be part of The ORG international religious organisation and shall be subordinate thereto .

( CARDINAL ) The religious activities of the Branch shall be determined according to the Articles of Faith of ORG as an evangelistic NORP church . ”

“ ( CARDINAL ) The objectives of the Branch shall be the advancement of the NORP faith , as promulgated in the religious doctrines which are professed , believed and taught by ORG , the advancement of education , the relief of poverty and other acts of charity ... ”

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

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

On DATE the Federal Law on freedom of conscience and religious associations ( no . CARDINAL of CARDINAL DATE – “ LAW ” ) came into force .

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

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

NORP The list of documents submitted for registration was set out in section CARDINAL(CARDINAL ) . If the governing centre or body to which the religious organisation was subordinate was located outside GPE , the religious organisation was additionally required to submit the certified articles of association of that foreign centre or body ( section CARDINAL ) ) .

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

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

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

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

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

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

Section CARDINAL(CARDINAL ) provided that a reasoned refusal of registration was to be communicated to the interested party in writing . It was prohibited to refuse to register a religious organisation on the ground that its establishment was inexpedient .

Re - registration could be denied to a religious organisation if there existed grounds for its dissolution or for the banning of its activities , as set out in section GPE ) , which established the following list of grounds for dissolution of a religious organisation and the banning of its activities .

“ – breach of public security and public order , the undermining of ORG security ;

– actions aimed at a forcible change in the foundations of the constitutional structure or destruction of the integrity of GPE ;

– formation of armed units ;

– propaganda of war , incitement to social , racial , ethnic or religious discord or hatred between people ;

– coercion to destroy the family ;

– infringement of the personality , rights and freedoms of citizens ;

– infliction of harm , established in accordance with the law , to the morality or health of citizens , including the use of narcotic or psychoactive substances , hypnosis , commission of depraved and other disorderly acts in connection with religious activities ;

– encouragement of suicide or the refusal on religious grounds of medical assistance to persons in life or health - threatening conditions ;

– interference with the receipt of compulsory education ;

– coercion of members and followers of a religious association and other persons to alienate their property for the benefit of the religious association ;

– hindering a citizen from leaving a religious association by threatening harm to life , health , property , if the threat can actually be carried out , or by application of force or commission of other disorderly acts ;

– inciting citizens to refuse to fulfil their civic duties established by law or to commit other disorderly acts . ”

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

On DATE a new ORG the ORG registration of legal entities ( no . CARDINAL of DATE ) came into force . State registration of legal entities was delegated to ORG , which was to receive , within DATE , the lists and files of registered legal entities from the bodies that had previously been in charge of their registration , and to enter that information into ORG nos . CARDINAL of CARDINAL DATE and CARDINAL and CARDINAL of DATE ) .

By Regulation no . CARDINAL of CARDINAL DATE , the government approved the procedure for registration of representative offices of foreign religious organisations . The ORG defines a foreign religious organisation as an organisation established outside GPE under the laws of a foreign ORG ( point CARDINAL ) . A representative office of a foreign religious organisation does not have the status of a legal entity ( point CARDINAL ) and may not engage in ritual and religious activities ( point CARDINAL ) .

The relevant part of the ORG by ORG by member ORG , doc . DATE , DATE ) on the honouring of obligations and commitments by GPE stated :

“ CARDINAL . The LAW safeguards freedom of conscience and of religion ( LAW ) ; the equality of religious associations before the law and the separation of church and ORG ( Article CARDINAL ) , and offers protection against discrimination based on religion ( Article CARDINAL ) . The law on freedom of religion of DATE has led to a considerable renewal of religious activities in GPE . According to religious organisations met in GPE , this law has opened a new era , and led to a revitalisation of churches . It was replaced on DATE by a new ORG on freedom of conscience and religious associations . This legislation has been criticised both at home and abroad on the grounds that it disregards the principle of equality of religions .

... In DATE , ORG , PERSON , also acknowledged that many section of the DATE Law on freedom of conscience and religious associations do not meet GPE ’s international obligations on human rights . According to him , some of its clauses have led to discrimination against different religious faiths and should therefore be amended .

In its preamble the law recognises ‘ the special role of Orthodoxy in the history of GPE and in the establishment and development of its spiritual and cultural life’ and respects ‘ NORP , ORG , NORP , ORG and other religions constituting an integral part of the historical heritage of the peoples of Russia’ . ...

According to the regulations by ORG responsible for the implementation of the PERSON on freedom of conscience and religious associations – religious organisations established before the law came into force ( DATE ) had to re - register before DATE .

The registration process was finally completed on DATE as ORG decided to extend the deadline twice . CARDINAL religious organisations and groups have been registered , and CARDINAL were refused their registration , most of them because they failed to produce a complete file . Many others have , for a variety of reasons , failed to register . The Minister of Justice , PERSON , strongly rejected allegations that ORG had exerted pressure on the ORG to prevent some religious organisations from obtaining their registration . PERSON also indicated that experts of the Ministry had ‘ closely examined’ the status of ORG and ORG , and had come to the conclusion that nothing prevented [ their ] registration at the federal level .

The Salvation Army , which feeds CARDINAL NORP every month in DATE , has had to waste MONEY in legal fights over registration , and the NORP church ( as well as the NORP community ) has had trouble getting visas for its foreign clergy . Some other religious organisations have also been prevented from being registered at the local level : ORG , ORG , the NORP , ORG and other churches in particular in GPE , in the region of PERSON and in PERSON oblast . These religious organisations also voiced complaints that they had serious difficulties to settle , to build or buy their places of worship , or to recover confiscated properties . Some among them – e.g. , ORG , ORG DATE have claimed that they suffered from repeated harassment by the authorities .

Indeed , there have been cases where , even if a religious organisation had re - registered nationally , local authorities created obstacles . ...

Although on DATE , the NORP ORG finally re - registered ORG in GPE , at federal level , registration had been constantly denied to the GPE chapter of this religious organisation by ORG in GPE , and appeals to the various courts in GPE failed . Moreover , in DATE , liquidation procedures were put in place to close down ORG and social programmes within GPE , and on DATE the Tagansk[iy ] intermunicipal court ruled that the GPE chapter was subject to liquidation on the basis of section DATE LAW . ( It provides for the liquidation of the legal entity that did not re - register by DATE deadline . )

ORG . The co - rapporteurs are very surprised and puzzled by the decision to ban the operations of ORG in GPE , and they would highly appreciate the clarification of this matter by the NORP authorities . In this respect , they refer to ORG call on GPE of DATE to ensure that ORG enjoys the same rights as it has in other member ORG , including the right to be registered in GPE . During their fact - finding visit in DATE , the co - rapporteurs used every opportunity to stress the need for a solution , and the potential embarrassment this problem may cause for GPE . ”

Resolution CARDINAL ( DATE ) on the honouring of obligations and commitments by GPE , adopted by ORG of ORG on DATE , noted as follows :

“ CARDINAL . However , the ORG is concerned about a number of obligations and major commitments with which progress remains insufficient , and the honouring of which requires further action by the NORP authorities :

xiv . the ORG regrets the problems of ORG and ORG in GPE , but welcomes the decision of the NORP authorities to ensure that the problem of local discrimination and harassment of these religious communities be brought to an end ;

Resolution CARDINAL ( DATE ) on GPE ’s PERSON on religion , adopted by ORG of ORG on DATE , noted , in particular , the following :

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

NORP Moreover , some regional and local departments of ORG have refused to ( re)register certain religious communities , despite their registration at federal level . ORG does not seem to be in a position to control these regional and local departments in accordance with the requirements of the rule of law , preferring to force religious communities to fight these local departments over registration in the courts rather than taking remedial action within ORG . The case of the GPE branch of ORG deserves particular attention in this respect , and should lead to an internal disciplinary inquiry by ORG into the workings of its GPE department . ORG tried to close down this branch of ORG ( despite federal registration ) , for allegedly failing to re - register by the law ’s deadline . ORG ruled in favour of ORG on DATE .

Therefore , the ORG recommends to the NORP authorities that :

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

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


The applicant is a NORP national , born in DATE and currently detained in Her FAC , ORG . He is represented before the ORG by Messrs Foot and GPE , solicitors practising in GPE , and Mr GPE

A.

The applicant lived with his wife DATE . It was alleged that he indecently assaulted his stepdaughter , K ( born in DATE ) , on many occasions during this period , including digital penetration and licking of the vagina , and that he raped her on CARDINAL occasions when she was DATE . DATE after the applicant left the matrimonial home , K made her allegations known to her mother ’s new co - habitee and the applicant was charged with CARDINAL specimen counts of rape , indecent assault and indecency with a child .

The applicant pleaded not guilty and was tried in ORG before a judge and jury . There was clear medical evidence that someone had penetrated K on a number of occasions , but the applicant denied that it had been him . The defence case was that some other person could have penetrated K during DATE period between the applicant leaving the family home and K first making her complaint . On DATE , the trial judge , in his summing - up to the jury , said ( inter alia ) :

“ In summing this case up to you , I will set out our respective functions , direct you as to the law , and summarise the evidence that you have heard to the extent that seems necessary and appropriate in this particular case . I direct you as to the law , and you must act upon those directions and apply them faithfully to the facts as you find them .

The facts in the case are for you and you alone , not me , and those facts must be drawn from the evidence you have seen and heard in this courtroom and from nowhere else . ...

As I have already said , the responsibility in deciding the facts is entirely yours , and please ignore what I may say about the evidence unless you happen to agree with it . Conversely , if I omit some fact or matter which you consider to be important , please give it as much weight as you consider proper .

You will not , I know , hold it against this defendant that he came from the dock to give his evidence as opposed to coming through the door of the court as have other witnesses . He has to be seated somewhere , and the dock is the place specially set aside for him in this courtroom .

But he is a witness in this case , and all witnesses , and I emphasise the word “ all ” , and that includes K , her mother , natural father , stepfather , and the defendant , enter the witness box on a level or even basis . They give their evidence , and that evidence is tested by cross - examination . You see , you hear those witnesses , and no doubt you will already have assessed them , and you will have observed not only what they had to say to you but the way that they said it . ...

The prosecution bring these charges , the content of the CARDINAL counts on this indictment . It is for the prosecution to prove each of them , and not for the defendant to prove anything , let alone his innocence , and you can not bring in a verdict in this case on any particular count unless and until on the whole of the evidence the prosecution satisfy you and make you sure that guilty is the proper verdict in relation to that count . ...

The child has been unable to say precisely when certain incidents occurred , and precisely how many . If you are sure that during the period set out in the indictment that [ sic ] the allegation has been proved on CARDINAL occasion , that will suffice . Do you all understand ? But the fact that K variously told her present stepfather , her mother , and later the police and a doctor what had allegedly happened to her can not , as a matter of law , be evidence that it happened or how it happened .

Now I want to say something about the sexual abuse of children . That has always been regarded as a serious matter by the community whom you represent and , as a consequence , by the courts . The way that the courts , the police , local authorities and the public deal with such offences has changed radically in DATE . The climate has changed from a situation where the victim bottled up what had happened to her all her life , too afraid to let it come out into the open .

There are all sorts of reasons for that fear , and I will deal with those or some of them in a moment . One only has to remember the print or the painting of the NORP father opening the door and pointing to his young daughter with child in her arms saying : ‘ Never darken my door PERSON , but perhaps that is an extreme example in a much earlier time .

The allegations in this case began a substantial time ago , DATE . But delay in disclosing these matters by an alleged victim is not uncommon in this type of case . Such offences will typically be committed in the family by the mother ’s then partner or family friend . The alleged abuser will usually be in a position of trust and some power , and the nature of the abuse will often induce a sense of shame and a deterioration in the victim ’s own self esteem and , as here , she may well wish to put it firmly to the back of her mind and just get on with it for the sake of the family and peace and quiet .

But even DATE , in a more enlightened age , what is involved in making a genuine complaint is not to be underestimated : in having to relive and to recount what had happened , firstly to a parent or stepparent , then to the police , and to a doctor , and then in court in public , even over a video link . She may have feelings of guilt , that she herself was in some way to blame . She may fear the risk of breaking up a family in which the abuse occurred , and perhaps the worst fear of all , that having made full disclosure and having waited for DATE ( if not many years ) for the matter to come to light and then to trial , that nobody would believe her . The complainant of course is not on trial here , but she may very well feel that she is . Please make allowances for that too when you assess her as a witness .

Indeed , you may have been moved by the evidence that K gave and the somewhat dignified manner in which she gave it . But I am afraid you must put emotion entirely to CARDINAL side , and try this case with a cold , clinical , and an objective eye , for to do otherwise would risk injustice and I am sure not one of you would wish that . ... ”

The judge next explained the legal elements of each offence on the indictment , and then summarised the evidence in the case . When summarising K ’s testimony he said , in connection with the issues of her delay in reporting the alleged abuse and the possibility that someone other than the applicant might have abused her :

“ In answer to PERSON , [ K ] said that she was mentally upset at what the defendant was doing to her over a period of DATE , and told her mother ’s boyfriend about what the defendant had been doing DATE after the defendant had left home . She said that she had not told anybody before because she was frightened what the defendant might do , and in any event he might try and contact her and her mother again .

In DATE , she said that she felt able to tell somebody about it then , and told A ( that is her mother ’s boyfriend ) because she trusted him . She said it was not because something had happened after the defendant had left . No - one else had ever interfered with her in the same way as the defendant had done .

She said that she once had a boyfriend called F who was now expelled from school for locking a teacher in a room . She said that she last saw her natural father DATE at an interval of DATE , and it was something that she had to do because the court had ordered it . She said that she had not told the woman police officer in her first interview about the defendant putting his penis into her vagina because she did not think it was a nice thing to say , and in any event , she said she was not ready to tell the woman police officer at that time .

Finally , she said that she did not find it easy to talk about these matters , and only did so because she trusted her mother ’s boyfriend . She believed that he would not recoil from her in disgust and go and tell her mother . She thought that if he did tell her mother , that would upset her , and that she would have thought that it was her fault . She said she felt very uncomfortable about telling the police that the defendant had put his penis and finger into her vagina . ... ”

Having summarised the evidence of the other witnesses , the judge concluded :

“ Well , that concludes the evidence in this case . If what the defendant says is true or may be true , then you will acquit him on all counts of this indictment .

You are going to have to decide who is telling you the truth in this case and who is not . You may ask yourselves , well how do we approach the evidence in the case ?

Well , may I suggest that first of all you look at the evidence of K entirely on its own and then against the rest of the evidence in the case . Then approach the evidence of the defendant in precisely the same way .

You will have to ask yourselves what relevance there is , if any , in asking [ K ’s natural father ] about his caution DATE , and in referring to a letter allegedly written by K to a boy named F. Do they , can they ( either of them ) have any relevance or bearing on the allegations that you have to determine ? If they do , or may do , please give them as much weight as you think proper . Or – and it is a matter entirely for DATE have they been introduced into this case as a diversion to deflect you from the real issues that you have to consider , and if you are sure that they have been , then no doubt you will ask yourselves why .

Now this is an important case . It is important because it is serious . And it is serious from the point of view of the defendant who is on trial . But it is also serious from the point of view of the public , because if it is proved that the defendant has committed these offences or any of them , it is only right that he should be convicted . The question is , has it been proved ? And having said that , never lose sight , of course , that the defendant does not have to prove his innocence ; rather the ORG has to make you sure of his guilt .

You may ask yourselves where do we begin in our deliberations ? That of course is a matter for you and you alone , not me . It may assist you if I were to highlight some issues which may indicate who is and who is not telling you the truth in this case . If they help you , all well and good , give them as much weight as you think proper , but on the other hand , if they do not , please ignore them entirely .

Did the defendant say to Police Constable J in GPE before he had been informed as to the reason for the visit : ‘ Oh , she has gone that low , has she?’ If you are satisfied that he said that at that time , what does it mean ?

On the evidence that you have heard , would K have known about the detail of oral sex and the movement of her mouth up and down an erect penis that felt like a rubber , or was that something that she may have gleaned from either school , her friends , or watching the video ‘ Burlesque’ ?

Similarly , would K have known about ejaculation over her stomach , describing semen as coming out of a slit at the top of the penis , being lumpy and creamy - white in colour ?

In what circumstances was the child ’s hymen damaged , such damage being caused by the entry of an erect penis over DATE prior to the onset of the child ’s puberty ?

What is the significance , if any , of the child asking her mother if you can become pregnant before your periods had begun ?

Was the position allegedly adopted by the defendant for sexual intercourse with K designed to achieve partial penetration only , so as to preserve her hymen ?

And finally , why did K not mention in her first interview the fact that the defendant had inserted his finger and penis into her vagina ? Was it because it had never happened , or was it because she was not ready then to mention it at that stage , and was in any event too embarrassed to do so ?

I know that you will resolve any doubts that you may have in this case in favour of the defendant . ... ”

The jury retired for CARDINAL , and then convicted the applicant , by a majority verdict of CARDINAL in respect of the rape and indecency charges , and unanimously in respect of the indecent assault . On DATE the judge sentenced the applicant to CARDINAL years’ imprisonment for the offence of rape , and DATE and CARDINAL months’ imprisonment for the offences of indecent assault and indecency respectively , running concurrently with the rape sentence .

The applicant appealed against both conviction and sentence . ORG , dismissing his appeals , stated ( inter alia ) :

“ We consider that the judge was entitled to make the observations he did in his summing - up . He was entitled to place allegations of this kind in the context that he did . The observations he made accord entirely with an assessment that any experienced judge , and indeed , we would add , any informed member of the public , would recognise as being well - founded . However , having done so , it would in our clear judgment have been preferable for the learned judge to include some reference to the defence submissions on the issue of delay , particularly when on CARDINAL view it was the only window of opportunity for the penetration to have occurred when the appellant was not living with the child .

That said , and that criticism having been made , the question for this court remains whether this failure was such as to make the conviction unsafe . We are not so persuaded . Taken as a whole , the summing - up clearly left the issue of the child ’s credibility on which the prosecution case rested for the jury to decide . ... ”

On DATE ORG refused leave to appeal to ORG .


Violation of Art. 5-3;No separate issue under Art. 8;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

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

On DATE the applicant ’s husband was murdered . On DATE the applicant was charged with aiding and abetting Mr G , her former lover , to murder her husband . She was released on bail pending trial to her home where she lived with her CARDINAL children , who were DATE at the time ( triplets ) . Neither the police nor the prosecution objected . The trial judge permitted the applicant to remain on bail throughout the trial : no objection was formulated by the prosecution . She continued to reside at home with her children .

On DATE the jury unanimously convicted PERSON of murder but failed to agree on a verdict on the applicant . The trial judge granted her bail pending the prosecution ’s decision whether to prosecute her further . The prosecution did not object to bail and she remained at home with her children . Subsequently , the prosecution elected to prosecute the applicant again but did not object to her remaining on bail .

The applicant ’s second trial began on DATE . The second trial judge also allowed bail , no objection being made by the prosecution . On DATE she was , by a majority verdict of the jury , convicted of murder . The trial judge sentenced her to life imprisonment and committed her to custody . The period of imprisonment that the applicant had to serve before she could have been considered for release was set at DATE . Leave to appeal was rejected by a single judge of ORG of GPE .

On DATE the full ORG allowed her appeal . It found that the second trial judge had misdirected the jury as to the state of mind necessary to make the applicant an accessory to murder . While the prosecution case had been that the applicant had facilitated the killing of her husband by Mr G knowing that he intended to kill and intending that Mr G should do so , that was not the matter put by the second trial judge to the jury : that trial judge had directed the jury as follows :

“ If you ’re satisfied beyond reasonable doubt that [ the applicant ] participated in a joint venture with [ Mr G ] , realising that in the course of that venture [ Mr G ] might use force with intent to kill or to cause really serious injury to her husband and Mr G did so , then she would be guilty of murder . ”

ORG found that that ruling effectively opened to the jury the possibility of convicting the applicant for murder on the basis of matters not part of the prosecution case and not canvassed during trial and , notably , on the basis that the applicant had engineered a meeting between her husband and Mr G without any firm intention that he be killed . ORG quashed her conviction and , having heard further submissions , ordered that she be returned upon a fresh indictment for murder before ORG .

The applicant applied for bail and the prosecution did not object . The summary form of order of ORG of DATE indicates that her application was refused and that she was to remain in detention until retrial . In her application form and subsequent observations the applicant stated that there were CARDINAL grounds for that refusal : she had been convicted by a jury of murder on DATE and any retrial would take place soon . In correspondence , she submits that the reasoning of the appeal court was not committed to writing , that her representative ’s contemporaneous note was mislaid in the Taxing Master ’s office but that the GPE FAC newspaper had accurately reported the reasons for refusing her bail request . The relevant extract reads as follows :

“ Refusing the application the Lord Chief Justice said he had taken her circumstances into consideration . But he said that the situation was now different in that she had been found guilty by the majority verdict of the jury . ”

In their written observations , the ORG submitted a copy of the contemporaneous notes of the senior law clerk present at the hearing . The final paragraph of her notes reads as follows :

“ CS [ Counsel for the prosecution ] : no opposition to bail DATE did attend .

ORG [ Lord Chief Justice ] : on bail before trial , course of trial , honoured all condits [ conditions ] prosecution does n’t oppose . Material difference here DATE found guilty by jury quashing material irregularity on charge . Does n’t sound directly an issue on bail . Be a prompt retrial . Refused .

In her application to ORG for leave to appeal against the refusal of bail to ORG , the applicant argued , inter alia , that the reasons for refusing bail on DATE were not relevant , sufficient or lawful within the meaning of LAW . On DATE ORG refused leave .

NORP The applicant remained in custody until DATE when she was granted bail by the third trial judge , during which period of time her children were cared for by her elderly and infirm parents .

She remained on bail throughout the third trial . On DATE she was acquitted and released .

The grant of bail in GPE is governed by common law rather than statute . There is a discretion to grant bail in any case but the court is obliged to pay regard to certain considerations before doing so and may not do so if satisfied of other matters . The grounds on which bail may be refused include : where there are good reasons for believing that the defendant will not turn up for his or her trial ; where there is a serious likelihood that the defendant will interfere with witnesses or evidence or otherwise obstruct the course of justice ; and when the defendant is likely to commit further offences if set at liberty . In deciding whether there are good reasons for believing that the defendant will not turn up for his or her trial , the relevant factors to be taken into account by the court include : the nature and seriousness of the alleged offence ; the probable method of dealing with the defendant in the event of a conviction ; and the strength of the evidence against the defendant . The attitude of the prosecution is one factor to be taken into account by the court .


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

The first applicant , PERSON , is a NORP national and lives in GPE , situated in LOC . CARDINAL other applicants , whose names appear in the annex , are members of the school council of the “ GPE ORG ” .

On DATE ORG ( a territorial public law entity , hereinafter “ the municipality ” ) allowed a public school that was mostly attended by members of a NORP minority to be named after a famous historical figure and named it “ GPE LOC Emilii ORG ” .

Subsequently the Government ’s Representative in the GPE Region brought an action against the municipality for the annulment of the decision , maintaining that the NORP spelling of the name as “ Emilii GPE ” contravened the Law on ORG and grammar rules of NORP language , which is the only official language in the country . For official names the NORP spelling “ Emilijos Pliaterytės ” should have been used instead .

On DATE ORG allowed the ORG ’s Representative ’s action . Even if the spelling “ Emilii PERSON was preferred by the NORP minorities living in the area , this did not remove the municipality ’s obligation to comply with the legal requirements for the official naming of the public school .

On DATE , by a final decision , ORG dismissed the municipality ’s appeal . The court concluded that in a case where the name of a historical figure was being used in the official name of a school ( organisation / company ) , the rules of NORP grammar applied .

PERSON , who was a staff member of the municipality , participated in the court hearing as a representative of this public institution before the courts .

As for the remaining CARDINAL applicants , they have not brought any claims at the domestic level . Besides , no application signed by these applicants in their own name has been lodged with the ORG , nor has any authority empowering PERSON to represent them before the ORG been submitted . Their names were notified to the ORG in a letter of CARDINAL DATE .

LAW ) provides that persons who consider that their rights or interests protected by law have been infringed have a right to lodge a complaint with the administrative court .

Under LAW , parties to the administrative proceedings shall also be the interested third parties , that is , those persons whose rights and obligations may be affected by a court ’s decision in the case .

According to Articles DATE and CARDINAL of the LAP , the parties to the proceedings ( including the interested third parties ) have a right , inter alia , to submit their observations , to oppose to the observations of the other parties , to submit requests , to present their statements at the hearing without a timelimit as to the length of their speeches .


Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Criminal proceedings;Article 6-3-c - Defence through legal assistance);Violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Criminal proceedings;Article 6-3-d - Examination of witnesses)

Angelika Nußberger;Dean Spielmann;Karel Jungwiert;Mark Villiger;Paul Lemmens;Stanislav Shevchuk

The applicant was born in DATE and is currently serving a prison sentence .

On TIME the applicant and CARDINAL of his acquaintances , PERSON and PERSON , had a party in PERSON ’s flat . They drank large quantities of alcohol . At some point a fight broke out among them , which resulted in PERSON being stabbed and suffocated .

At QUANTITY the police found the body of H. in the flat . They also found the applicant drunk and asleep in the flat . The police decided to arrest the applicant on suspicion of having killed H.

At the police station the applicant was given an explanation of the provisions of LAW and then questioned on account of the incident . The applicant stated that during the party he was repeatedly humiliated by PERSON At certain point the applicant lost his patience and started to beat PERSON to the extent that PERSON lost his consciousness . However , PERSON considered that it had not been enough for PERSON and killed him . After that PERSON left the flat and the applicant fell asleep . The questioning session was carried out by police officers without a lawyer being present .

At TIME on DATE an investigator from the prosecutor ’s office prepared an arrest report in respect of the applicant . The applicant ’s defence rights were explained to him by the investigator , including the right to remain silent and the right to have a lawyer . The applicant signed the relevant explanatory note stating that he did not need the assistance of a lawyer . The investigator accepted the waiver of legal assistance by issuing a separate ruling . The ruling provided that the applicant had refused legal assistance as he did not need it and entirely trusted the investigative authorities .

According to the applicant , that waiver was given by him as a result of psychological pressure exercised by the police officers .

TIME the applicant was questioned by the investigator . The applicant stated that it had been PERSON who had killed H.

At TIME on DATE the investigator arrested PERSON on suspicion of having killed H. During questioning , PERSON explained that he had gone out of the flat to buy some more alcohol and , while he was away , the applicant had killed H.

According to the applicant , on DATE he was beaten up by police officers for the first time with the purpose of making him confess to the murder of H. The applicant felt ill and therefore demanded a medical examination .

On DATE a forensic medical expert examined the applicant . According to the report issued by that expert , the applicant had sustained an abrasion to his chest , which was considered to be a light injury that could have been inflicted DATE before the examination ; and during the examination the applicant had stated that he had had a fight with PERSON and that after his arrest he had not been beaten by anyone .

Again on DATE ORG ( the “ ORG ” ) ordered the applicant ’s pre - trial detention for DATE .

On DATE the applicant confessed to the murder . According to the applicant , he wrote the confession after he had been beaten up by a police officer again .

On DATE the investigator carried out a confrontation between the applicant and PERSON , in the course of which the applicant admitted his guilt . Following this investigatory action PERSON was released .

The investigator further questioned PERSON ’s acquaintances , the seller of the alcohol , and other individuals who might have known something about the events in question . Expert examinations were carried out . The knife did not have any fingerprints on it .

On DATE and DATE the applicant was questioned as an accused . He stated that he did not need a lawyer at that time and referred to his statements given during the confrontation with L.

On DATE the investigation was completed and the case was sent to ORG for trial .

On DATE the applicant complained to the prosecutor ’s office on account of ill - treatment by the police officers . In his complaint the applicant alleged that immediately after his arrest he had been beaten up by the police officers , who had also threatened to kill him . Allegedly , they had further forced him to confess to the murder .

On DATE , at the request of the applicant , his brother was admitted to the proceedings as defence counsel .

When examined by ORG , the applicant denied any involvement in the crime . He stated that he had been subjected to ill - treatment and that his right to a lawyer had been breached . According to the applicant , he also orally requested that PERSON be examined by the court . The request was refused .

During the trial ORG examined the evidence in the file . It did not question L. but read out his statements given during the pre - trial investigation .

On DATE ORG found the applicant guilty of having murdered PERSON and sentenced him to CARDINAL years’ imprisonment . In its findings ORG relied on the applicant ’s confession and the other self - incriminating statements given by him during the investigation . It also referred to L. ’s statements given during the investigation , including those given at the confrontation with the applicant , to the forensic medical examination establishing the cause of PERSON ’s death , and to other indirect evidence .

The applicant appealed , claiming that ORG had failed to assess the evidence properly and had misinterpreted the facts . In particular , the applicant asserted that ORG had failed to pay due attention to the fact that his submissions during the trial had contradicted PERSON ’s statements and that it had not considered whether PERSON might have committed the murder . The applicant further contended that his self - incriminating statements had been obtained through ill - treatment and in breach of his right to legal assistance . He asserted that his ill - treatment had been evidenced by the forensic medical report of DATE .

On DATE ORG of GPE ( “ the Court of Appeal ” ) considered the applicant ’s appeal and dismissed it as unsubstantiated . According to the applicant , during the appeal proceedings he was assisted , in addition to the assistance provided by his brother , by a legal - aid lawyer .

In its decision ORG noted that the applicant ’s guilt had been well established by ORG and his contention of having been ill - treated by the police was unfounded . In particular , the forensic medical report of DATE suggested that the abrasion on his chest had been sustained well before his arrest . As to the absence of legal assistance during the investigation , the court noted that the case file contained waivers of the right to legal assistance signed by the applicant .

The applicant appealed on points of law , claiming in particular that : he had been beaten up by police officers to make him confess to the murder ; his defence rights had not been assured during the investigation ; the lower courts had failed to question all the witnesses and had not examined all the material and documentary evidence ; and the courts had not verified whether PERSON might have committed the murder .

On DATE the prosecutor ’s office refused to open an investigation in respect of the alleged ill - treatment of the applicant .

On DATE ORG considered the applicant ’s appeal on points of law and dismissed it as unsubstantiated . It found that the trial court had legitimately convicted the applicant on the basis of his self - incriminating statements , which had been further corroborated by PERSON ’s statements and other indirect evidence . ORG did not find any procedural violations which could give grounds for quashing the decisions of the lower courts .

On DATE the applicant asked ORG for an extraordinary review of his case .

On DATE the request was refused .

Following his arrest on DATE , the applicant was placed in ORG ( “ the ORG ” ) , where he was allegedly held with other detainees suffering from tuberculosis .

On DATE the applicant was diagnosed with infiltrative tuberculosis of the upper part of the right lung .

On DATE the applicant was transferred to the Simferopol Pre - Trial Detention Centre ( “ the GPE ” ) .

On DATE the applicant was diagnosed with tuberculosis of the right lung and registered as a patient at the tuberculosis dispensary .

On DATE the doctor recommended that the applicant be provided with anti - tuberculosis treatment at a specialised hospital . The applicant stayed in the GPE , where he was examined and treated at the medical unit .

On DATE the applicant was moved to PERSON no . CARDINAL Prison ( “ FAC ” ) , where he was regularly X - rayed and provided with the following courses of medical treatment :

- from DATE to CARDINAL DATE ( treatment with isoniazid ) ;

- from DATE to DATE ( treatment with isoniazid ) ;

- from DATE to DATE ( treatment with isoniazid and pyrazinamide ) ;

- from DATE to CARDINAL DATE ( treatment with isoniazid and pyrazinamide ) ;

- from DATE to DATE ( treatment with isoniazid and ethambutol ) ;

- from DATE to CARDINAL DATE ( treatment with isoniazid and ethambutol ) ; and

- from DATE to CARDINAL DATE ( treatment with isoniazid and ethambutol ) .

According to the ORG , the applicant was X - rayed on CARDINAL DATE and his chest did not display any signs of disease .

The relevant provisions of the LAW read as follows :

“ Everyone has the right to legal assistance . Such assistance is provided free of charge in cases envisaged by law . Everyone is free to choose the defender of his or her rights .

In GPE , advocacy acts to ensure the right to mount a defence against an accusation , and to provide legal assistance during the determination of cases by courts and other ORG bodies . ”

“ A person shall not bear responsibility for refusing to testify or to explain anything about himself or herself , members of his or her family or close relatives in the degree determined by law .

A suspect , an accused , or a defendant shall have the right to mount a defence .

A convicted person shall enjoy all human and ORG rights , except for the restrictions determined by law and established in court judgments . ”


The applicant is a corporate body registered in GPE and GPE . It is represented by before ORG by PERSON White solicitors of GPE .

The applicant is the freehold owner of a purpose - built block of flats , which it constructed in DATE in GPE . CARDINAL of the flats are regulated by LAW ( see below ) .

The current system of rent control in GPE dates back to DATE . Early provisions intended to protect tenants from high rents had the effect of reducing the amount of accommodation available for private letting , with the result that a series of Rent Acts , culminating in LAW DATE ( “ the DATE LAW ) were passed in an attempt to revitalise the market by way of a system of “ fair rents ” calculated in accordance with statutory criteria . In default of agreement of a “ fair rent ” by the parties to a regulated tenancy agreement , a rent assessment is carried out , in the first instance , by rent officers , who do not need to give reasons for their decisions . An appeal lies first to rent assessment committees , who give written reasons upon request , and thereafter on a point of law to ORG . Once a “ fair rent ” has been assessed by a rent officer or rent assessment committee , it will be registered and constitutes the maximum recoverable rent for the regulated tenancy concerned . No application for registration of a different rent may be made for DATE .

However , the absence of an open market in private letting following the DATE A ct , combined with a period of high inflation , had the effect that “ fair rents ” as set by rent officers and rent assessment committees lost pace with inflation , to the disadvantage of landlords . LAW DATE ( “ the DATE LAW ) sought to stimulate the market by creating assured and assured - shorthold tenancies , at rents to be negotiated between individual landlords and their tenants . Regulated tenancies under LAW continued to exist , but no new regulated tenancies were to come into existence . The number of such tenancies steady fell from CARDINAL per cent of private tenancies in GPE in DATE to approximately MONEY in CARDINAL/CARDINAL .

The creation of an open market provided rent officers and rent assessment committees with a new comparator on which to rely when calculating “ fair rents ” under LAW . However , regional variations arose in the weight given to open market rents when calculating “ fair rents ” , with the result that in some areas , including GPE , the gap between registered “ fair rents ” and open market rents increased to the point where the former were at a level of CARDINAL the latter . This led landlords in those areas to challenge the “ fair rent ” assessments concerned and , in DATE ( in the case of ORG v. ORG [ DATE ] CARDINAL HLR CARDINAL ) and again in DATE ( in the case of PERSON v. ORG [ DATE ] QB CARDINAL ) , ORG held that market rents should be awarded greater weight when calculating “ fair rent ” in those areas . A consequence of these decisions was that tenants whose rents had previously been registered at levels well below the open market level suffered very sharp and unexpected rent increases .

The Government issued a consultation paper entitled “ Limiting Fair Rent Increases ” in DATE setting out various options as to how to address this new problem . Following public consultation in which a number of ORG organisations , as well as individual landlords , made representations , the Government adopted the option most favourable to tenants , namely the making of an order ( ORG Order DATE ( “ the Order ” ) ) applying a maximum index - linked limit to most increases in “ fair rents ” registered under LAW ( the exception applying in cases where rental value had increased significantly due to works carried out by the landlord ) . The effect of the LAW was to cap increases in “ fair rents ” at a level DATE MONEY above inflation .

The Order was made under LAW DATE ( “ the DATE LAW ) , sub - section ( CARDINAL ) of which states :

“ The Secretary of ORG may by order provide for-

( a ) restricting or preventing increases of rent for dwellings which would otherwise take place , or

( b ) restricting the amount of rent which would otherwise be payable on new lettings of dwellings ;

and may so provide either generally or in relation to any specified description of dwelling . ”

The applicant sought judicial review of the Order on grounds , inter alia , that it was ultra vires as ( i ) being beyond the purposes for which the enabling power under LAW had been intended ; ( ii ) having failed to take account of all relevant considerations ; and ( iii ) being unreasonable and disproportionate . ORG granted judicial review on the first ground only and thus declared the Order ultra vires ( NORP v. Secretary of ORG and the Regions ex parte ORG [ DATE ] CARDINAL WLR CARDINAL ) . The Secretary of ORG ’s appeal was allowed by ORG , which found the Order to have been made in proper exercise of the powers conferred by LAW ( [ DATE ] CARDINAL WLR CARDINAL ) .

Lord PERSON of NORP , delivering the leading judgment in ORG , stated :

“ I do not find , studying the language of LAW , that it is in any way ambiguous or obscure , or such as to lead to absurdity if given its full apparent effect . But Mr PERSON [ counsel for the applicant ] is correct in his submission that the language is , on its face , very broad . It applies to lettings of dwellings of every kind , no matter who is the landlord or what the nature of the tenancy ... ; it places no limit on the restrictions which the minister may impose on rental payments ; it provides only for annulment on negative resolution ; and it gives no indication of the circumstances in which ORG contemplated that the order - making power should be exercisable . One learns only , from the sidenote and the reference in section PERSON ) , that this is a reserve power , which indicates that it is not a power to be exercised very readily or routinely . ...

I have no doubt that clear and unambiguous words should be used if the citizen is to be deprived of his property without compensation and any reasonable doubt should be resolved in his favour . But a power to restrict or prevent increases of rent which would otherwise take place or restrict the amount of rent which would otherwise be payable on a new letting must of necessity deprive the landlord of rent which he would , but for the minister ’s order , receive . The words used are capable of no other construction . ...

Any measure restricting rents , or prices or charges of any kind , must have the effect of depriving the recipient of what he would otherwise receive , but ORG has respected the need for national authorities to strike a balance between the rights of individuals and the general interest of the community . This would appear to be such an instance . ...

Landlords did indeed have strongly arguable grounds for resisting the government ’s proposal , but it can not be said that their interests were ignored . In the annex to the consultation paper the object of the proposed measure was said to be “ to slow down the rate at which fair rents are increasing for tenants but nevertheless to ensure that there is no disproportionate impact on landlords ” . Under the heading “ Issues for equity or fairness ” , the question was posed “ is it fair to landlords to change the fair rent system which was left intact when LAW DATE was introduced and which they would not have expected to be changed subsequently ” . Having posed the question it can not be thought that ministers ignored the landlords’ answer , disappointed though landlords may be that it was not given greater weight .

Some of the ministerial statements on this subject could have been more felicitously expressed . But the problem of sharp and unexpected rent increases had indeed arisen despite the fair rent regime , since that regime had been in force throughout and the increases would not have occurred had it been faithfully implemented in all areas from the beginning . Ministers did not suggest that ORG decisions which had brought the reluctant rent officers and rent assessment committees into line had not given true effect to the fair rent legislation , nor that the general law should be changed . But it was the case that what ministers considered a serious social problem had arisen , even if it should not have arisen , and their observations are readily understandable in that context . I see nothing to suggest that the ministers had misconceived the source of the problem . ...

It is an enduring and intractable problem of social policy that those who need relief can not always be helped without giving relief to those that do not need it . Housing benefit is means - tested , and the allocation of public resources is a matter for ministers , not courts . The hardship which the order imposed on landlords was a very relevant consideration , but it was for ministers to judge where the balance between the competing interests of landlords and tenants should be struck . It was not unreasonable to provide that the maximum recoverable rents should be the rents registered . The timing and scope of the Order were matters on which the ministers had to form a judgment , and their judgment can not be stigmatised as perverse . There was no breach of LAW : ORG has recognised the need for a wide measure of discretion in the implementation of policy in this field , as shown by GPE v. GPE ( DATE ) ... . Any actions the ministers took , or any failure by the ministers to take action , were bound to be bitterly resented by those who were disadvantaged as a result . That does not mean that the action which the ministers did take in making the LAW was unreasonable , unfair or disproportionate , disadvantageous to landlords though it certainly was . ”