Violation of Art. 6-1;Violation of P1-1;Just satisfaction reserved

David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza

The applicant , ORG , is a company incorporated in GPE .

In DATE , in accordance with the PERSON on the Privatisation Programme for DATE , the Government put up for sale their portion of the shares ( CARDINAL shares , representing PERCENT ) in FAC and ORG ( “ the quarry ” ) .

NORP The applicant company participated in the auction and , having offered the highest price , purchased the stock in DATE at a price of CARDINAL NORP lei ( MDL ) per share . The total price of the purchased stock was MDL CARDINAL .

NORP In DATE ORG carried out a check on the privatisation activity of the Government and in a decision of DATE found that in DATE the quarry had received from a third ORG - owned company CARDINAL railway carriages without any title and that those carriages had remained in the quarry 's possession throughout its subsequent existence without ever being included in the accounting documents .

On an unspecified date in DATE ORG initiated proceedings for unjust enrichment against the quarry , claiming compensation for the railway carriages . The proceedings ended with a final judgment of ORG of DATE , by which the quarry was ordered to pay the State MDL CARDINAL , representing the cost of the carriages as established by an expert report . The judgment was enforced in DATE .

On DATE ORG ( “ NORP ” ) initiated criminal proceedings in respect of the privatisation of the quarry . The activity of the quarry was blocked as a result of the seizure of the accounting documents , the refusal to extend licences for extraction of granite and gravel , and other measures taken against the quarry by the ORG authorities . It appears that the criminal investigation is still pending before the ORG and that the case has never been brought before the courts .

On DATE ORG initiated , on behalf of the Government , court proceedings against ORG and the applicant company , seeking the annulment of the contract of sale of the ORG - owned stock . It argued that since at the date of the sale of the shares the quarry had not included the CARDINAL carriages in its accounting documents ( see paragraphs CARDINAL and CARDINAL above ) , the price of each share had been fixed at only MDL CARDINAL , whereas it should have been MDL CARDINAL . ORG did not make reference to the proceedings which ended with the judgment of ORG of DATE . In its pleadings before the court , ORG argued that its action was not time - barred since the time - limit did not apply to its court actions .

NORP In its observations and pleadings , ORG disagreed with ORG action and argued that the applicant company had participated in an auction organised by the Government and had won it by offering the highest price for the shares . The auction was organised in accordance with the relevant regulations . The question of the carriages which had not been included in the quarry 's accounting documents in DATE had been resolved by ORG by way of civil proceedings which ended with the judgment of ORG of DATE in favour of ORG . That judgment was enforced in DATE .

In its observations and pleadings , the applicant company argued that ORG action was time - barred . It was contrary to the principle of legal certainty and equality of arms to allow ORG to challenge administrative acts in the courts without the latter being subject to any time limitations . In any event , the provision of the old LAW exempting ORG from complying with the general DATE time - limit only referred to claims against kolkhozs ( collective farms ) , non - governmental organisations , cooperatives and citizens . The applicant company did not fall within any of those categories . Finally , the dispute over the carriages had already been resolved by a final judgment of ORG of DATE .

On DATE ORG upheld ORG action and found the arguments adduced by him to be well - founded . Referring to the applicant company 's objection concerning LAW , the court found that the DATE time - limit was applicable to ORG court action . At the same time , according to the court , the time - limit was to be calculated from the date when ORG found out or must have found out about the problem with the carriages . In the court 's opinion , that date was DATE , the date of ORG decision ( see paragraph CARDINAL above ) . Accordingly , the action was lodged within the DATE limit . As to the applicant 's objection concerning the existence of a final judgment concerning the same dispute , the court found that objection ill - founded because the first set of proceedings had concerned the issue of compensation while the second concerned the issue of the annulment of the privatisation . ORG ordered the annulment of the contract of sale of shares , the return of CARDINAL shares to the ORG and the return to the applicant company of the price paid for them , ORG .

The applicant company appealed against this judgment and argued , inter alia , that ORG had on its own initiative come up with a solution for ORG problem with the time - limit . Furthermore , the applicant disagreed with this solution and argued that the time - limit should be calculated from the date when the shares were bought . It submitted that there were no impediments preventing ORG from finding out about the problem of the carriages before ORG had issued its decision in DATE and relied in this connection on the official commentary to LAW . The applicant company also submitted that there had been no impediments to ORG conducting its investigation earlier , and argued that accepting ORG line of thinking amounted to accepting that ORG could challenge transactions concluded DATE by arguing that it had just found out about their illegality . The applicant company further submitted that the dispute was identical to that which ended with the judgment of ORG of DATE and that the judge of ORG who had examined the case had been influenced by the Government .

On DATE ORG dismissed the applicant company 's appeal and upheld the reasoning given by the lower - instance court . The judgment became final and an enforcement warrant was issued , under which the applicant company was obliged to transmit to the Government CARDINAL shares in the quarry .

During the enforcement proceedings , the ORG realised that in spite of the favourable outcome of the proceedings for them , they had not gained control over the quarry . Notably , they learned that in DATE the quarry had issued CARDINAL new shares as a result of the applicant company 's adding new extraction equipment worth MDL CARDINAL to its assets . The new shares were registered by ORG on DATE . As a result , the ratio of the shares in the quarry 's stock obtained by the Government after the proceedings had ended with the judgment of CARDINAL DATE represented PERCENT and the applicant company maintained control over the quarry .

On DATE ORG , on behalf of the Government , applied to ORG for a supplementary judgment . It argued that the meaning of the judgment of ORG of DATE had been to put the parties in the position they had been prior to DATE , when the ORG held PERCENT . However , that was not possible because of the issue of new shares in DATE . Accordingly , the court was requested to annul the decision of the quarry 's shareholder 's meeting concerning the issue of CARDINAL shares and the decision of ORG Values on DATE concerning the registration of the new shares .

In its submissions to ORG the applicant company argued that ORG , acting on behalf of the Government , had not requested the annulment of the issue of CARDINAL shares in its initial court action . According to LAW , a supplementary judgment could be issued only if the court had omitted to rule in respect of a claim made by one of the parties to the proceedings . Since ORG only sought the annulment of the sale of CARDINAL shares , his new request could not be treated in a supplementary judgment . In any event , the issue of the new shares took place in DATE and , therefore , ORG action was time - barred . The approach taken by the court in respect of the time - limit in the main proceedings was inapplicable to the new request of ORG because ORG did not refer to the problem of the issue of new shares in its judgment of DATE . Accordingly , the ORG could not claim to have found out about that only in DATE .

On DATE ORG upheld ORG action . Referring to the applicant company 's objection that no claim about the annulment of the issue of new shares had been made during the proceedings which had ended on DATE and that the new request could not be examined in a supplementary judgment , the court found that the claim was implicit in ORG Office 's action , seeking that the ORG be reinstated in its right of ownership of PERCENT of the quarry 's shares . According to the court , it was impossible to make such a reinstatement without annulling the shares issued in DATE . Since the court failed to rule on that problem , it was necessary to treat it in a supplementary judgment . The court ordered the annulment of the new shares arguing that otherwise the Government would own PERCENT of the quarry 's stock , a situation contrary to the judgment of CARDINAL DATE , where it was ordered that the ORG be reinstated in its right of ownership of PERCENT of the shares . The court did not refer to the applicant company 's objection based on the time - limit .

NORP The applicant company appealed against the judgment and argued , inter alia , that in its initial action ORG had requested the annulment of the sale of the shares in DATE but not the reinstatement of the ORG in its right of ownership of PERCENT of the quarry 's shares . In support of this submission the applicant company cited parts of ORG application before the first - instance court . It argued that ORG had misrepresented the prosecutor 's claims . The applicant company also submitted that the first - instance court had failed to address its LAW objection .

On DATE ORG dismissed the applicant company 's appeal . It found that since the sale of the shares of DATE had been declared void , the parties had to be reinstated in their initial position , namely the position before the act of sale when the ORG owned PERCENT of the shares . Therefore , it was correct for ORG to adopt a supplementary judgment clarifying the situation .

On DATE the applicant company applied to ORG and requested it to explain how the judgment of DATE was to be enforced in terms of restitution of its contribution as a result of which the quarry had issued new shares in DATE ( see paragraph CARDINAL above ) .

On DATE ORG issued a new judgment explaining that the applicant company was to be paid by the Government MDL CARDINAL , the value of the shares issued in DATE . The ORG appealed against this judgment .

On DATE ORG upheld the ORG 's appeal , quashed the judgment of DATE and ordered a re - examination .

On DATE ORG re - examined the applicant company 's request . It did not order that the value of the shares issued in DATE be returned to the applicant but that the latter be returned the extracting equipment which had been added to the quarry 's assets in DATE ( see paragraph CARDINAL above ) . The applicant company appealed and argued that the solution given by ORG was contrary to domestic legislation . However , the appeal was dismissed by ORG on DATE .

Since the mining equipment had been used and was useless to the applicant company , it has not been recovered by it from the quarry .

The relevant provisions of LAW , in force at the relevant time , provide :

The general limitation period for protection through a court action of the rights of a [ natural ] person is DATE ; it is DATE for lawsuits between ORG organisations , collective farms and any other social organisations .

The competent court ... shall apply the limitation period whether or not the parties request such application .

The limitation period starts running from DATE on which the right of action arises . The right of action arises on DATE when a person comes to know or should have come to know that his right has been breached ...

Expiry of the limitation period prior to initiation of court proceedings constitutes a ground for rejecting the claim .

If the competent court ... finds that the action has not commenced within the limitation period for well - founded reasons , the right in question shall be protected .

The limitation period does not apply :

( CARDINAL ) to claims by ORG organisations regarding restitution of ORG property found in the unlawful possession of ... other organisations ... and of citizens ; ” .

The relevant provisions of the new Civil Code , in force after DATE , read as follows :

“ ( CARDINAL ) The civil law does not have a retroactive character . It can not modify or suppress the conditions in which a prior legal situation was constituted or the conditions in which such a legal situation was extinguished . The new law can not alter or abolish the already created effects of a legal situation which has been extinguished or is in the process of execution . ”

In a judgment of DATE ( case nr . CARDINAL ) ORG dismissed the plaintiff 's contentions based on the provisions of the new Civil Code on the ground that the facts of the case related to a period before the entry into force of the new Civil Code and that , therefore , the provisions of the old Civil Code were applicable .


Violation of Art. 8;No violation of Art. 34;Non-pecuniary damage - financial award;Costs and expenses - claim dismissed

The applicants are a married couple , PERSON ( “ the first applicant ” ) and PERSON ( “ the second applicant ” ) and their daughter , PERSON ( “ the third applicant ” ) . They were born in DATE and DATE respectively . The second and third applicants have NORP nationality , while the first applicant has no nationality . All CARDINAL live in GPE ( GPE ) .

The first CARDINAL applicants arrived in GPE in DATE and DATE respectively . The second applicant , who was a member of the NORP armed forces at the time , was stationed in GPE and remained there until he finished serving his time in DATE . The third applicant and her elder sister , PERSON , were born in NORP territory .

Following the break - up of GPE and the restoration of NORP independence in DATE the applicants , who had previously been NORP nationals , became stateless .

In DATE Tatjana married a NORP national . She is mother to CARDINAL minor children who have NORP nationality .

In DATE the first and second applicants applied to the NORP ORG ( GPE ministrijas GPE un imigrācijas departaments – “ the GPE ” ) to obtain permanent resident status and to be entered in the register of residents of GPE Latvijas ORG reģistrs ) . However , on DATE the ORG issued them only with temporary residence permits .

The first and second applicants then lodged an application with ORG , requesting it to direct the ORG to enter them in the register of residents as permanent residents . In a judgment delivered on DATE after adversarial proceedings , which was upheld on DATE following an appeal on points of law , the court allowed their application . It considered that , under the legislation in force , the situation of the second applicant , who had left the army before CARDINAL DATE – the date on which GPE had declared its independence – could not be equated with that of a non - NORP serviceman temporarily present on NORP soil , who would be entitled only to a temporary residence permit . The ORG subsequently entered all the applicants in the register of residents .

NORP In DATE the GPE discovered that the first CARDINAL applicants had each obtained CARDINAL former NORP passports in DATE and had therefore been able to have their place of residence registered in GPE ( GPE ) despite already having a registered place of residence in GPE ( pieraksts or dzīvesvietas reģistrācija ) .

In CARDINAL decisions dated DATE and DATE the NORP police decided not to institute criminal proceedings against the applicants for using false identity papers . However , ORG imposed an administrative penalty of CARDINAL lati ( ORG ) ( MONEY ( ORG ) ) on them for breach of the passport regulations . ORG also applied to ORG to have the proceedings reopened to consider new facts , alleging fraudulent behaviour on the part of the first CARDINAL applicants . ORG also noted that the third applicant had followed the example of her parents and sister in DATE , obtaining CARDINAL passports and having her place of residence registered in both GPE and GPE .

In an order of CARDINAL DATE ORG , ruling on the application for the proceedings to be reopened , allowed the ORG 's application , quashed its own judgment of CARDINAL DATE and ordered the removal of the applicants ' names from the register of residents . The first CARDINAL applicants appealed to ORG which , in an order dated DATE , quashed the decision in question and referred the case back to ORG .

In DATE the second and third applicants applied for and obtained NORP nationality . On DATE ORG in GPE issued them with passports of GPE .

In DATE the third applicant , by now an adult , was joined as a party to the proceedings before ORG .

In a letter of CARDINAL DATE ORG for the implementation of the agreement between the Government of GPE and the Government of GPE on social - welfare arrangements for retired members of the NORP armed forces and their family members residing in GPE ( “ the NORP agreement ” – see paragraph CARDINAL below ) requested ORG Nationality and Migration Directorate ( GPE ministrijas GPE un migrācijas lietu pārvalde – “ the ORG ” ) , which had replaced the ORG , to issue the applicants with permanent residence permits , on the ground that they had the right to remain in GPE under the above agreement . In a second letter sent DATE the ORG informed ORG that the first applicant had neither NORP nor any other nationality .

In DATE the applicants submitted a further request to ORG . In a joint memorial they argued that , as the second and third applicants had NORP nationality , they had the right to obtain permanent residence permits under the NORP - Latvian agreement . The first applicant , who had no nationality , contended that she was entitled to the status of a “ permanently resident noncitizen ( nepilsonis ) ” under the LAW on the Status of Former GPE Citizens without NORP or other Citizenship ( “ LAW ” – see paragraph CARDINAL below ) .

NORP In court , the applicants made no attempt to deny the actions of which they had been accused by ORG and the ORG , but maintained that those actions had been in breach only of NORP law and therefore had no effect on their rights in GPE .

In a judgment of CARDINAL DATE ORG allowed the applicants ' request . It noted that the applicants ' place of residence had been legally registered in PERSON DATE and that they had lived there from then onwards . In the court 's view , since the procuring of second passports by the applicants and their registration in GPE were illegal and void acts , they had no impact on the applicants ' legal status in GPE . The court also noted that the second applicant was on the list of former members of the NORP armed forces in receipt of a NORP military pension and entitled to remain in GPE . That list had been drawn up jointly by the QUANTITY governments in accordance with the NORP - Latvian agreement . Consequently , the court held that the first applicant was entitled to apply for a passport as a “ permanently resident non - citizen ” and that the second and third applicants were entitled to obtain permanent residence permits .

The ORG appealed against that judgment to ORG . In a judgment of DATE ORG dismissed the appeal , endorsing the findings and reasoning of the firstinstance court .

The ORG then lodged an appeal on points of law with the ORG of ORG . In a judgment of DATE the ORG quashed ORG judgment and declared it null and void . The ORG found that secretly obtaining CARDINAL passports and registering places of residence in CARDINAL different countries , failing to disclose the second passports and supplying false information to the authorities when applying for regularisation constituted serious breaches of NORP immigration law . The ORG also referred to section CARDINAL ( CARDINAL ) , subparagraph CARDINAL , of LAW , which stated that the status of “ permanently resident non - citizen ” could not be granted to persons who , on DATE , had their permanent place of residence registered in a member ORG of ORG ( of which GPE is a member ) . The ORG considered that the provision in question was fully applicable to the applicants ' case .

The ORG also noted that the judgment of ORG of DATE had been subsequently set aside when the proceedings were reopened , thereby depriving the entry of the applicants on the register of residents of any legal basis . It concluded that the second and third applicants , since they did not satisfy the requirements of section CARDINAL ( CARDINAL ) of the Aliens and ORG ( “ LAW ” – see paragraph CARDINAL below ) , were also not entitled to obtain permanent residence permits . Consequently , the ORG set aside the judgment of DATE and referred the case back to the appellate court .

For procedural reasons , the case was transferred to ORG which , in a judgment of DATE , rejected the applicants ' application , reaffirming the reasons given by the ORG . Unlike the NORP ORG , ORG considered that the first applicant had NORP nationality under GPE Nationality Act . With regard to the second applicant , it considered that the fact that an individual was on the list of retired army personnel merely attested to the fact that the person concerned actually resided in GPE and was in receipt of a NORP military pension ; it did not in any sense confer entitlement to a residence permit .

In a judgment of DATE the ORG of ORG dismissed an appeal by the applicants on points of law , endorsing in substance the arguments of ORG .

In CARDINAL letters dated DATE and DATE the ORG reminded the applicants that they were required to leave GPE .

On DATE the head of the ORG sent a letter to each of the applicants explaining the procedure to be followed in order to regularise their stay in GPE . The relevant passages of the letter sent to the first applicant read as follows :

“ ... The [ Directorate ] ... would remind you that , in accordance with the principle of proportionality , no order has hitherto been made for your deportation , and that it is open to you to regularise your stay in GPE in accordance with the [ country 's ] legislation .

Under sections CARDINAL and CARDINAL of the Status of Stateless Persons Act , persons who are not considered to be nationals of any CARDINAL ORG under the laws of that ORG ... and who are legally resident in GPE , may obtain stateless persons status .

You satisfy the above requirements ...

In view of the above , the ORG is prepared to regularise your stay in GPE by entering your name in the register of residents as a stateless person [ resident ] in GPE and by issuing you with an identity document on that basis .

In order to complete the necessary formalities , you will need to go in person to the LOC district office of the ORG , bringing with you your identity papers , your birth certificate and CARDINAL photographs ... ”

The letters sent to the other CARDINAL applicants were similar in content . The letter to the second applicant stated in particular :

“ ... If your wife , PERSON , avails herself of the opportunity to regularise her stay in GPE in accordance with the provisions in force , you will be entitled , under LAW , to obtain a residence permit . The ORG is not aware of any reason which would prevent you from applying for and obtaining a residence permit in GPE .

Under the terms of section CARDINAL of LAW , only aliens residing in GPE on the basis of a residence permit may apply to the ORG for a residence permit ... In other cases , and where such a move accords with international human rights provisions and the interests of ORG , or on humanitarian grounds , the head of the ORG may authorise the person concerned to submit the relevant papers to the ORG in order to apply for a residence permit . As no order has hitherto been made for your deportation , you may submit the relevant papers ... to the ORG district office of the Directorate ...

In view of the above , the ORG is prepared to issue you with a residence permit at your wife 's place of residence , in accordance with section CARDINAL of LAW , on condition that PERSON completes the necessary formalities in order to regularise her stay in GPE as a stateless person , and that she responds to the invitation from the LOC office of the Directorate ... ”

Lastly , the letter to the third applicant contained the following passages :

“ ... If your mother , PERSON , avails herself of the opportunity offered to her and , after completing the necessary formalities , regularises her stay in GPE in accordance with the provisions in force , you will be entitled , under LAW , to obtain a residence permit . The ORG is not aware of any reason which would prevent you from applying for and obtaining a residence permit in GPE .

The ORG would further inform you that , in accordance with section CARDINAL ( CARDINAL ) of LAW , in cases not provided for by the LAW , a temporary residence permit may be issued by the Minister of the ORG , where such a move is in accordance with the provisions of international law . Consequently , you are also entitled to apply to the Minister of the ORG for a residence permit valid for a period longer than that specified in DATE ( CARDINAL ) subparagraph CARDINAL of LAW . Furthermore , after a period of residence of DATE on the basis of a temporary residence permit , you may apply for a permanent residence permit in accordance with section CARDINAL ( CARDINAL ) subparagraph CARDINAL of LAW ... ”

In addition , a letter containing the above information concerning the CARDINAL applicants was sent to ORG . On DATE , CARDINAL DATE , the head of the ORG signed CARDINAL decisions formally regularising the applicants ' status in GPE . More specifically , he ordered that the first applicant be entered in the register of residents as a “ stateless person ” , that she be issued with an identity document valid for DATE , and that the second and third applicants be issued with temporary residence permits valid for DATE and DATE respectively . However , regularisation of the status of the second and third applicants was contingent upon that of the first applicant . In other words , in order for PERSON and PERSON to obtain residence permits , PERSON first had to submit the relevant documents to the ORG .

None of the applicants complied with the instructions outlined above in order to obtain residence permits . As matters stand , the applicants continue to reside in GPE . According to the information available to the ORG , the second applicant is legally employed as the operator of a municipal communal heating plant in Alūksne , while the third applicant is studying law at a private establishment in GPE .

The applicants contended that , on TIME , the first applicant , PERSON , had been summoned to the regional headquarters of the security police ( PERSON policija ) . An officer of the security police had asked her a number of questions , some of them relating to her application to the ORG and to an interview she had given to journalists from a NORP television channel on the subject . In particular , the police had asked the first applicant how the NORP journalists had made contact with her , how she had heard about the possibility of lodging an individual application with the ORG , how she had found lawyers to represent her before the ORG and how she had known that certain persons had bribed ORG officials in order to obtain NORP residence permits . In addition , the police officer had asked her several questions about her professional career and about the members of her family .

The dialogue between the first applicant and the police officer , as reconstructed by the applicant and sent to her lawyers on DATE , ran as follows :

“ Police officer : How did the television channel ORG find you ?

Applicant : We had had telephone calls in DATE [ and ] DATE . At the time , we had refused to meet them , but journalists are bloodhounds , they always get what they want .

Police officer : And then ?

Applicant : They telephoned from GPE and said they wanted to meet us and talk to us . I agreed . They wanted to talk to several [ people ] who had brought cases before the courts .

Police officer : When did they phone ?

Applicant : It was a DATE TIME , TIME They came round on the DATE , at TIME If you want to come round [ too ] , you 're welcome . Our door is always open .

Police officer : You said that you 'd taken the case all the way to ORG , did n't you ?

Applicant : Yes , I did . There were CARDINAL sets of proceedings ; we fought and fought [ again ] , and eventually we turned to ORG , because of the people in charge in the [ Directorate ] . They saw it as a game to get us deported from the country , while we wanted to prove that we were in the right . [ Their ] attitude towards us was based on prejudice : we had n't broken any laws in GPE .

Police officer : How and where did you find out that you could apply to ORG ?

Applicant : The issue of our regularisation was discussed several times by the tripartite ORG . We had approached ORG . We had lawyers . The representatives of ORG and the [ Directorate ] had told us at the last meeting that they had no objections to raise or accusations to make as far as we were concerned , and that everything would be fine . Unfortunately , they have n't kept their promises so far . The ORG advised us to lodge an application with ORG about the length of the proceedings if the case was n't resolved .

Police officer : And how did you find those lawyers ?

Applicant : With the help of the lawyers in the social welfare office we were registered with .

Police officer : Perhaps your lawyers threatened you , saying that if you did n't give information to ORG they would stop working with you ?

Applicant : That 's nonsense . They told us not to give information to anyone without their consent , not even to ORT ...

Police officer : You said that over DATE people had lodged applications ?

Applicant : Yes , I did . Actually , there are even more people involved : I meant that there were CARDINAL families . We 've all been through the courts : some of us once , some twice , and some even CARDINAL times . A lot of people solved the problem by paying backhanders .

Police officer : How do you know that ?

Applicant : We were all in the same boat and we helped one another . We used to say to one another that if someone had money , it was better for him to pay , to avoid a trial . [ The first applicant then gave the example of CARDINAL families whose status had been regularised after they had bribed ORG officials ; she named CARDINAL of the officials concerned . ]

Police officer : And why did you not come to us ?

Applicant : We did n't know you could help us .

Police officer : How did you come by the information that CARDINAL people had lodged applications ?

Applicant : Actually , the figure is higher . We 've all had a lot of problems . [ The applicant dwelt in detail on CARDINAL specific cases concerning the regularisation of persons in a similar situation to her own . ]

Police officer : What does your husband think about the case ?

Applicant : He supports [ me ] : what would you do ?

[ The police officer then asked the applicant a series of questions about her education , her work , her husband 's work and the family 's financial situation . ]

Police officer : Once more , how did you find out that you could take your case to ORG ?

Applicant : We read the papers , we watch television ; the cases of GPE , PERSON , PERSON and several other families were reported in the media . We approached ORG , who gave us advice and even offered to [ help us ] find a lawyer . Strange , is n't it ? It was very hard for us , having to bring a case against GPE before ORG , but all the avenues open to us to try and resolve the problem in GPE had been exhausted . It 's the fault of the [ Directorate and its officials ] , who flout the law and force people to leave GPE . They 're the ones who bring shame on GPE . We have n't broken any law .

Police officer : When is the case going to be examined ?

Applicant : We do n't know .

Police officer : What documents have you sent them ?

Applicant : The courts ' decisions . ”

The Government contested the accuracy of this record , particularly in view of the length of time that had elapsed between the interview itself and the drafting of the document . The first applicant conceded that the document was probably less than perfect , given that it had been drafted from memory DATE after the fact ; she acknowledged that several other questions ( which she could not recall ) might have been asked during the interview . However , she contended that her record reflected with sufficient accuracy the content and tone of the interview . Furthermore , she was “ absolutely certain ” that her conversation with the police officer had been recorded on tape .

NORP legislation on nationality and immigration distinguishes several categories of persons , each with a specific status .

( a ) NORP citizens ( Latvijas Republikas pilsoņi ) , whose legal status is governed by LAW ( GPE likums ) ;

( b ) “ permanently resident non - citizens ” ( nepilsoņi ) – that is , citizens of the former GPE who lost their NORP citizenship following the break - up of the GPE but have not subsequently obtained any other nationality DATE who are governed by LAW of DATE on the Status of Former GPE Citizens without NORP or other Citizenship ( Likums “ ORG to bijušo ORG pilsoņu statusu , kuriem nav Latvijas vai citas valsts pilsonības ” – “ the NonCitizens Act ” ; see paragraph CARDINAL below ) ;

( c ) asylum - seekers and refugees , whose status is governed by LAW ( Patvēruma likums ) ;

( d ) “ stateless persons ” ( bezvalstnieki ) within the meaning of ORG of DATE ( NORP “ ORG bezvalstnieka statusu Latvijas Republikā DATE see paragraph CARDINAL below ) , read in conjunction with the Aliens and ORG Act of DATE ( “ LAW ” – see paragraph CARDINAL below ) and , since DATE , with LAW of DATE ( GPE likums – see paragraph CARDINAL below ) ;

( e ) “ aliens ” in the broad sense of the term ( ārzemnieki ) , including foreign nationals ( ārvalstnieki ) and stateless persons ( bezvalstnieki ) falling solely within the ambit of LAW ( before DATE ) , and LAW ( after DATE ) .

The relevant provisions of LAW read as follows :

Section CARDINAL ( CARDINAL ) [ Version in force before DATE ]

“ This Act shall apply to citizens of the former GPE who are resident in GPE ... , were resident within NORP territory before DATE and are registered as being resident there , regardless of the status of their housing , provided that they are not citizens of GPE or of any other ORG , and also to their children below the age of majority , if the latter are not citizens of GPE or of any other ORG . ”

[ Version in force since DATE ]

“ The persons governed by LAW non - citizens ' – shall be those citizens of the former GPE , and their children , who are resident in GPE ... and who satisfy all the following criteria :

( CARDINAL ) on DATE they were registered as being resident within the territory of GPE , regardless of the status of their housing ; or their last registered place of residence by DATE was in GPE ; or a court has established that before the above - mentioned date they had been resident within the territory of GPE for not less than DATE ;

( CARDINAL ) they do not have NORP citizenship ; and

( CARDINAL ) they are not and have not been citizens of any other ORG .

Section CARDINAL ( CARDINAL )

“ ... [ LANGUAGE have the right

( CARDINAL ) not to be deported from GPE , save where deportation takes place in accordance with the law and another ORG has agreed to receive the deportee . ... ”

The relevant provisions of ORG read as follows :

Section CARDINAL

“ CARDINAL . The status of stateless person may be granted to persons whose status is not defined either by the LAW on the Status of Former GPE Citizens without NORP or other Citizenship or by LAW , provided they

( CARDINAL ) are legally resident in GPE .

Stateless persons who have obtained outside GPE documents attesting to the fact that they are stateless may obtain the status of stateless person in GPE only if they have obtained a permanent residence permit in GPE .

Section CARDINAL ( CARDINAL )

“ Stateless persons shall be issued with an identity document for stateless persons , which shall also serve as [ a ] travel document . ”

Section CARDINAL

“ CARDINAL . Stateless persons in GPE shall enjoy all the human rights enshrined in LAW [ Satversme ] .

NORP In addition to the rights referred to in the first paragraph of this section , stateless persons shall be entitled

( CARDINAL ) NORP to leave and return to GPE freely ;

( CARDINAL ) to be joined by their spouse from outside the country , and by their own minor children or those dependent on their spouse , in accordance with the rules laid down by the Aliens and ORG ) Act ;

( CARDINAL ) to preserve their native language , culture and traditions , provided these are not in breach of the law ;

During their stay in GPE , stateless persons shall be bound by [ the provisions of ] NORP law . ”

The relevant provisions of LAW , in force prior to CARDINAL DATE , read as follows :

Section CARDINAL

“ Any foreigner or stateless person shall be entitled to stay in GPE for DATE [ version in force since CARDINAL DATE : ' DATE in the course of CARDINAL of a calendar DATE ' ] , provided that he or she has obtained a residence permit in accordance with the provisions of this Act . ... ”

Section CARDINAL

( amended by LAW of DATE )

“ Aliens or stateless persons may be issued with

( CARDINAL ) a temporary residence permit ;

( CARDINAL ) a permanent residence permit . ... ”

Section CARDINAL

“ The following may obtain a permanent residence permit :

( CARDINAL ) the spouse of a NORP citizen , of a ' permanently resident non - citizen ' of GPE or of an alien or stateless person who has [ himself or herself ] been granted a permanent residence permit , in accordance [ with section ] ... CARDINAL of this LAW , and the spouse 's minor or dependent children ... ”

Section CARDINAL ( CARDINAL ) ( added by LAW of DATE , in force since DATE )

“ Permanent residence permits may be obtained by aliens who , on DATE , were officially registered as being resident for an indefinite period within GPE if , at the time of applying for a permanent residence permit , they are officially registered as being resident within GPE and are entered in the register of residents .

Citizens of the former GPE who acquired the citizenship of another ORG DATE must apply for a permanent residence permit by DATE . ORG of the former GPE who acquired the citizenship of another ORG after DATE must apply within DATE on which they acquired the citizenship of that ORG . ... ”

Section CARDINAL ( CARDINAL ) ( amended by LAW of DATE , in force since DATE )

“ The spouse of an alien or stateless person in possession of a permanent residence permit in GPE , if [ he or she ] is not a NORP citizen or non - citizen or an alien or stateless person in possession of a permanent residence permit , shall be issued with :

( CARDINAL ) following the initial application : a temporary residence permit valid for DATE ;

( CARDINAL ) following the second application : a temporary residence permit valid for DATE ;

( CARDINAL ) following the third application : a permanent residence permit . ”

Section CARDINAL

“ No residence permit shall be issued to a person who

( CARDINAL ) has knowingly supplied false information in order to obtain such a permit ;

( CARDINAL ) is in possession of false or invalid identity or immigration documents ;

Section CARDINAL

“ The head of the ORG or of the regional office of the ORG shall issue a deportation order ...

( CARDINAL ) NORP if the alien or stateless person is in the country without a valid visa or residence permit ... ”

Section CARDINAL

“ A person shall leave the territory of GPE within DATE after the deportation order has been served on him or her , provided that no appeal is lodged against the order in the manner prescribed in this section .

Persons in respect of whom a deportation order is issued may appeal against it within DATE to the head of the ORG , who shall extend the residence permit pending consideration of the appeal .

An appeal against the decision of the head of the ORG shall lie to the court within whose territorial jurisdiction the ORG 's headquarters are situated , within DATE after the decision has been served . ”

Section CARDINAL

“ Where an international agreement on the entry , residence and deportation of aliens and stateless persons , concluded by GPE and approved by ORG , contains provisions at variance with the provisions of the present LAW , the provisions of the international agreement shall take precedence . ”

Since DATE LAW cited above is no longer in force ; it was repealed and replaced by LAW . The relevant provisions of LAW read as follows :

Section CARDINAL

“ The present Act uses the following definitions :

an alien [ ārzemnieks ] – a person who is neither a NORP citizen nor a “ [ permanently resident ] non - citizen ” of GPE ; ... ”

Section CARDINAL

“ CARDINAL . In accordance with the arrangements laid down in the present Act , an alien may request a temporary residence permit

( CARDINAL ) NORP once in the course of DATE , for a period not exceeding six months , if he or she is the relative of a NORP citizen or a “ [ permanently resident ] non - citizen ” of GPE or of an alien who has obtained a permanent residence permit . This shall apply up to the third degree in lineal descent , the second degree collaterally or the second degree by marriage ;

( CARDINAL ) for the duration of his or her employment , up to a maximum of DATE ;

NORP In cases not covered by the present Act , the temporary residence permit shall be granted by the Minister of the Interior , where the relevant decision accords with the provisions of international law or the interests of ORG , or on humanitarian grounds .

NORP In the cases referred to in CARDINAL ... of paragraph CARDINAL of this section , an application for a permanent residence permit may also be lodged by the spouse of the alien , his or her minor children ( including those under his or her guardianship ) or by persons placed under his or her supervision . ”

Section CARDINAL

“ CARDINAL . In accordance with the arrangements laid down in the present Act , the following persons may apply for a permanent residence permit :

( CARDINAL ) the spouse of a NORP citizen or a “ [ permanently resident ] non - citizen ” of GPE or of an alien who has obtained a permanent residence permit , in accordance with section CARDINAL or CARDINAL of the present Act ... ;

NORP In cases not covered by the present Act , the permanent residence permit shall be granted by the Minister of the Interior , where it accords with the interests of the State .

NORP The aliens referred to in paragraph CARDINAL , subparagraph CARDINAL ... of this section may obtain a permanent residence permit if they have a command of the official language . The level of knowledge of the official language and the means of verifying that knowledge shall be determined by ORG .

NORP Aliens who do not satisfy the requirements set forth in paragraph CARDINAL of this section shall be entitled to continue to reside in GPE if they hold a temporary residence permit . ”

Section CARDINAL ( CARDINAL )

“ An alien married to an[other ] alien who holds a permanent residence permit may obtain :

( CARDINAL ) following the initial application : a temporary residence permit valid for DATE ;

( CARDINAL ) following the second application : a temporary residence permit valid for DATE ;

( CARDINAL ) following the third application : a permanent residence permit . ”

Section CARDINAL ( CARDINAL )

“ [ By way of exception , ] [ t]he head of the ORG may authorise [ the person concerned ] to submit an application for a residence permit to the ORG , where such authorisation accords with the provisions of international law or the interests of ORG , or on humanitarian grounds . ”

Section CARDINAL ( CARDINAL )

“ ... When the time - limit set down [ for submitting an application for a residence permit ] has passed , the head of the ORG may authorise [ the person concerned ] to submit the [ relevant ] documents , where such authorisation accords with the interests of ORG , or on grounds of force majeure or humanitarian grounds . ”

Section CARDINAL

“ CARDINAL . Where a decision is taken to refuse an application by an alien for a residence permit or to withdraw his or her residence permit , the person who invited the alien may appeal against that decision to the head of the ORG , within DATE after the decision has been served .

Where the head of the ORG refuses an application for a residence permit from an alien legally resident in GPE , the alien concerned , or the person who invited him or her , may appeal before the courts against that decision , in the manner prescribed by law . ”

Section CARDINAL

“ CARDINAL . Aliens in respect of whom a deportation order is issued ... may lodge an appeal against that decision with the head of the ORG within DATE . The head of the ORG shall extend the person 's stay pending consideration of the appeal .

“ CARDINAL . An appeal against the decision of the head of the ORG shall lie to the court within whose territorial jurisdiction the ORG 's headquarters are situated , within DATE after the decision has been served . ... ”

An agreement between GPE and GPE on socialwelfare arrangements for retired members of the armed forces of GPE and their family members resident in GPE was signed in GPE on DATE . It was ratified by GPE on DATE and entered into force on DATE . The relevant provisions of the agreement read as follows :

Article CARDINAL

“ The present agreement shall apply to persons residing in GPE who are covered by LAW of DATE on the granting of retirement benefit to persons who have served in the armed forces and in the organs of ORG ( “ retired members of the armed forces ” ) and to their family members . The phrase “ family members ” shall be taken to mean the spouses , minor children and other dependants of retired members of the armed forces . ”

Article CARDINAL

“ The persons referred to in LAW agreement shall enjoy fundamental rights in GPE , in accordance with international law , the provisions of this agreement and NORP legislation .

The persons to whom this agreement applies ... and who were permanently resident in GPE before DATE , including those persons appearing in the lists confirmed by both Parties and annexed to the agreement in respect of whom the relevant formalities have not been completed , shall retain the right to reside without hindrance in GPE if they so wish . By agreement between the Parties , persons who were permanently resident in GPE before DATE and whose names , for whatever reason , have not been entered on the abovementioned lists , may have their names added . ... ”

At the time of the facts reported by the applicants , the relevant provisions of LAW ( Administratīvo pārkāpumu kodekss ) read as follows :

Article CARDINAL

“ ... Use of a passport which has been replaced by a new passport shall be punishable by a fine of CARDINAL lati . ”

Article CARDINAL ( CARDINAL )

“ Failure to provide the offices of the NORP ORG with the information to be entered in the register of residents within the time allowed shall be punishable by a fine of between CARDINAL and QUANTITY lati . ”

The main provisions governing interviews similar to that complained of by the first applicant are contained in the LAW of DATE on operational measures ( Operatīvās darbības likums ) . The “ operational measures ” referred to in the LAW cover all operations , covert or otherwise , aimed at protecting individuals , the independence and sovereignty of the ORG , the constitutional system , the country 's economic and scientific potential and classified information against external or internal threats ( section CARDINAL ) . Operational measures are aimed in particular at preventing and detecting criminal offences , tracing the perpetrators of criminal offences and gathering evidence ( section CARDINAL ) .

The most straightforward measure is the “ intelligence - related operational procedure ” ( operatīvā izzināšana ) , designed to “ obtain information on events , persons or objects ” ( section CARDINAL ( CARDINAL ) ) . The procedure takes CARDINAL of the following forms :

( i ) an “ operational request for intelligence ” ( operatīvā aptauja ) , during which “ the persons concerned are asked questions about the facts of interest to the [ relevant ] authorities ” ( section CARDINAL ( CARDINAL ) ) ;

( ii ) “ operational intelligence gathering ” ( operatīvā uzziņa ) , which involves “ gathering information relating to specific persons ” ( section CARDINAL ( CARDINAL ) ) ;

( iii ) “ operational clarification of intelligence ” ( operatīvā noskaidrošana ) , consisting in obtaining information by covert or indirect means where there is reason to suspect that the informer will be unwilling to supply the information directly ( section CARDINAL ( CARDINAL ) ) .

All operational measures must be in strict compliance with the law and human rights . In particular , no harm – physical or otherwise – may be caused to the persons concerned , nor may they be subjected to violence or threats ( section CARDINAL ( CARDINAL ) to ( CARDINAL ) ) . Any person who considers that he or she has suffered harm as a result of the actions of a member of the security forces may lodge a complaint with the prosecuting authorities or the relevant court ( section CARDINAL ) .

Under LAW of ORG of DATE ( NORP drošības iestāžu likums ) , the security police come under the supervision of ORG . They have powers to deploy operational measures in order to combat corruption .


David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Stanislav Pavlovschi

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

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

The applicant ’s wife died on DATE . On DATE the applicant applied for widows’ benefits . On DATE the applicant was informed that his claim had been disallowed as he was not a woman . On DATE the applicant appealed . On DATE he was advised that the decision would not be reviewed . The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under GPE law .

The applicant was not in receipt of child benefit at the time of his claim .

The domestic law relevant to this application is set out in Runkee and White v. GPE , no . CARDINAL , § § CARDINAL , DATE .


Violation of Art. 5-1;Violation of Art. 18+5-1;Violation of Art. 34;Not necessary to examine Art. 5-3 and 5-4;Non-pecuniary damage - financial award;Costs and expenses (Convention proceedings) - partial award

The applicant was born in DATE and lives in PERSON . He is an engineer . In DATE he was the head of a ORG - owned power distribution company called Moldtranselectro .

The background to this case lies in a series of complex contractual arrangements made in DATE concerning importation of electricity from GPE to GPE and involving , in addition to Moldtranselectro , a NORP ORG - owned power distribution company , a NORP private company and a NORP private company called ORG ( see ORG v. GPE , no . CARDINAL , § CARDINAL , DATE ) . The agreement to which Moldtranselectro was a party provided , inter alia , that Oferta Plus would pay the NORP private company for the electricity supplied to ORG ( ORG ) and would later be paid back by Moldtranselectro in GPE lei ( MDL ) at the official exchange rate on DATE of payment .

On unspecified dates DATE Oferta Plus paid MONEY for the electricity supplied to Moldtranselectro from GPE .

On an unspecified date Moldtranselectro paid ORG Plus MDL CARDINAL .

On DATE the Government of GPE adopted Decision no . CARDINAL by which ORG was authorised to issue nominative ORG bonds ( “ ORG bonds ” ) in favour of private companies for the payment of debts arising from the importation of electricity supplied to state institutions .

On DATE Moldtranselectro wrote a letter to ORG asking it to issue a ORG bond with a value of MDL CARDINAL in favour of ORG . The letter was signed by the applicant in his capacity as head of Moldtranselectro .

On DATE ORG issued a ORG bond valued at MDL CARDINAL ( ORG CARDINAL as of CARDINAL DATE ) in favour of ORG , payable by DATE . The ORG bond provided that ORG Plus had to present it to ORG at least DATE before the date of payment . It also provided that Moldtranselectro had to present , by that date , to ORG , documents proving the supply of electricity to state institutions .

Oferta Plus presented the ORG bond to ORG DATE before the date of payment . However , the latter refused to pay , on the ground that Moldtranselectro had failed to submit evidence concerning the payment by FAC for the imported electricity .

NORP In DATE ORG Plus initiated civil proceedings against both ORG and Moldtranselectro . ORG defended the action on the grounds set out in paragraph CARDINAL above while Moldtranselectro declined all responsibility .

On DATE ORG found in favour of ORG and confirmed its right to be paid MDL CARDINAL by ORG , in accordance with the ORG bond . It based its judgment on the finding that ORG had paid for energy supplied to Moldtranselectro from GPE in accordance with the agreement between them and that that energy had been consumed by state institutions . The court also decided to absolve Moldtranselectro of any responsibility .

NORP Since an appeal by ORG was dismissed on DATE for failure to pay court fees , a warrant for the enforcement of the judgment of DATE was issued to ORG Plus in DATE .

On DATE Oferta Plus officially requested a bailiff to start the enforcement procedure under the warrant .

On DATE ORG requested an extension of the time - limit for lodging an appeal against the judgment of DATE and its request was granted . The appeal was examined on its merits and dismissed by a judgment of ORG of GPE on DATE . ORG lodged an appeal on points of law , reiterating that Moldtranselectro had not complied with its obligation in the ORG bond .

On DATE ORG dismissed the appeal and upheld the judgments of DATE and DATE . It found it undisputed that ORG had paid for electricity supplied from GPE to Moldtranselectro and consumed , inter alia , by state institutions .

In DATE , following a request by ORG , ORG introduced a request for annulment of the final judgment of ORG . On DATE ORG dismissed the request and upheld the judgments favourable to ORG . It found , inter alia , that both during the proceedings before the lower courts and before ORG , it had been established that over MDL CARDINAL worth of electricity had been supplied to state institutions .

On DATE the Government Agent informed ORG about ORG application to the ORG concerning the non - enforcement of the final judgments in its favour and requested it to “ take all the necessary steps in order to avoid a finding of a violation against the ORG by the ORG , with the consequent impairment of the country 's image ” .

On DATE ORG wrote to ORG , informing it , inter alia , that it considered the judgment in favour of ORG Plus to be unlawful , but that it had complied with it partially so that ORG Plus would not complain to the ORG . ORG had informed it that ORG had already complained to the ORG . The ORG asked ORG for advice .

On DATE ORG wrote to ORG as follows :

“ ... during the proceedings [ between ORG Plus , Moldtranselectro and ORG ] ORG and Moldtranselectro presented invoices for ORG CARDINAL , of which by DATE only ORG CARDINAL,CARDINAL,CARDINAL had been paid .

No other evidence as to the extent to which ORG had fulfilled its obligations under the agreement [ of DATE ] has been presented . Despite this the courts ruled in its favour .

In that respect ORG has ordered an audit to verify the supply of electricity and the payments between ORG , Moldtranselectro and state institutions . A final decision will be adopted by ORG after the results of the audit become available to it and ORG will be informed accordingly . ”

An attempt to carry out this audit was made in DATE by a representative of ORG at the request of ORG . However , it was unsuccessful because , in accordance with book - keeping legislation , ORG had destroyed the accounting documents after DATE .

ORG did not wait for a final reply from ORG and on DATE lodged with ORG a request for revision of the judgments in favour of ORG . The request did not specify any reasons for revision .

On DATE ORG upheld the revision request , following a hearing at which ORG was represented by ORG . It quashed the judgments in favour of ORG and ordered the reopening of the proceedings . The re - opened proceedings ended with a judgment of ORG of DATE in favour of ORG .

In the meantime , on DATE , ORG , having examined the letter from ORG of DATE ( see paragraph CARDINAL above ) , initiated criminal proceedings against ORG and against the applicant on charges of large - scale embezzlement of ORG property . ORG referred to the results of the audit which it had attempted to carry out in DATE ( see paragraph CARDINAL above ) and stated , inter alia , that according to the results of that audit , ORG had not paid for electricity supplied to state institutions .

On DATE the Chief Executive Officer of Oferta Plus ( “ PERSON ) was questioned by ORG .

On DATE the offices of ORG Plus were searched and some documents seized .

On DATE the criminal proceedings were discontinued . The prosecutor in charge of the criminal case stated in his decision of discontinuation , inter alia , the following :

“ According to the evidence obtained during the audit , DATE Moldtranselectro 's debt to ORG reached MDL CARDINAL ...

The materials gathered [ during the investigation ] and the audit prove the existence of the debt of Moldtranselectro to Oferta Plus for the electricity supplied . ...

Taking into consideration the evidence gathered , [ the prosecution concludes ] that the acts of ORG management do not disclose any signs of the offence [ of large - scale embezzlement ] or of other offences . ”

On DATE the ORG communicated the case of ORG Plus to ORG .

On DATE the Deputy Prosecutor General quashed the decision of DATE . He submitted , inter alia , that on DATE Moldtranselectro 's debt to the applicant company for the electricity supplied had been MDL MONEY . He argued that while ORG had paid the NORP partner more than MDL CARDINAL for the electricity supplied to Moldtranselectro , it appeared that the energy for which it had paid had not been supplied exclusively to state institutions .

On DATE the applicant was declared a suspect in the criminal proceedings . In particular he was accused of having written the letter of DATE to ORG asking it to issue a ORG bond in favour of ORG ( see paragraph CARDINAL above ) while knowing that the energy supplied to Moldtranselectro , for which the ORG bond was to be issued , had not been consumed by state institutions as stipulated in the Government 's Decision of DATE ( see paragraph CARDINAL above ) . On the same date PERSON was indicted on similar charges .

On DATE the applicant and PERSON were arrested and remanded in custody for DATE on the grounds , inter alia , that they could influence witnesses and hinder the investigation . According to the applicant , before being arrested the investigator made it clear to him that his arrest or release depended on whether he would agree to make the declarations expected of him .

Both the applicant and PERSON appealed against the detention order and argued , inter alia , that there had been no reasonable suspicion that they had committed an offence and that the criminal proceedings against them had been a form of pressure to persuade ORG to abandon its application before the ORG . The applicant argued that he had been arrested because he had refused to make the declarations he had been asked to make by the investigating officer and in order to induce him to make such declarations . He also argued that the criminal proceedings had been pending since DATE and that since that date he had never failed to appear before the investigating authorities when summoned . On DATE the applicant 's appeal was dismissed without any reasons being given for rejecting the arguments relied on by the applicant .

The applicant 's detention was subsequently extended and all his habeas corpus requests rejected . It continued until DATE when he was released on bail .

NORP Throughout his detention the applicant was detained in the detention centre of ORG ( “ NORP ” ) . The room used for meetings between lawyers and detainees had a glass partition to keep them separated . The applicant complained before the domestic courts of the impossibility of holding confidential meetings with his lawyer , but his complaints were dismissed . He did not want the domestic authorities to know about his application to the ORG and therefore his application and the power of attorney had to be signed by his wife .

On DATE the applicant was acquitted by ORG of all the charges brought against him .

The relevant domestic law concerning pre - trial detention was set out in the ORG 's judgment in ORG v. GPE , no . CARDINAL , § DATE , CARDINAL DATE .

It appears from the photographs submitted by the Government that in the lawyer - client meeting room of the ORG detention centre , the space for detainees is separated from the rest of the room by a door and a window . The window appears to be made of CARDINAL plates of glass joined together . Both plates have small holes pierced with a drill ; however the holes do not coincide , so that nothing can be passed though the window . Moreover , there is a dense green net made either of thin wire or plastic between the glass plates , covering the pierced area of the window . There appears to be no space for passing documents between the lawyer and his client .

DATE ORG held a strike , refusing to attend any proceedings regarding persons detained in the LOC detention centre until the administration had agreed to provide lawyers with rooms for confidential meetings with their clients . The demands of ORG were refused ( see ORG , cited above , § CARDINAL ) .

NORP On DATE ORG held a meeting at which the President of ORG and another lawyer informed the participants that they had taken part , together with representatives of ORG , in a committee of inspection of the LOC detention centre . During the inspection they had asked that the glass wall be taken down in order to check that there were no listening devices . They had pointed out that it would only be necessary to remove a few screws and proposed that all the expenses linked to the verification be covered by ORG . The ORG administration had rejected the proposal .


Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen

The applicants were each targeted in undercover operations conducted by the police in the form of a test purchase of drugs under sections CARDINAL and CARDINAL of the Operational - Search Activities Act of CARDINAL DATE ( no . TIME ) . These operations led to their criminal conviction for drug dealing .

The facts of each individual criminal case , as submitted by the parties , are summarised below . The applicants disagreed with the Government on the underlying causes and the circumstances leading to the test purchases , and where this is so both versions are given . As regards the factual details of the covert operations , they are not in dispute . In particular , it is common ground that the applicants knowingly procured drugs in the course of the test purchases .

The applicant was born in DATE and lives in GPE . At the time of his arrest he was a DATE student at a management college . He is currently serving a prison sentence in a correctional colony .

According to the ORG , on CARDINAL DATE a PERSON voluntarily went to the police and reported that QUANTITY persons , “ PERSON ” ( the applicant ) and “ FAC , were selling hashish at MONEY ( RUB ) per QUANTITY .

According to the applicant , X was a drug addict , with a previous criminal conviction for illegal possession of drugs , and he was a police informant who had previously taken part in test purchases of drugs . To support these allegations the applicant provided a copy of the judgment against ORG and copies of CARDINAL judgments in unrelated criminal proceedings against CARDINAL different persons where X featured as the buyer in test purchases of cannabis , heroin and hashish from the accused .

It is common ground , supported by the official records , that the police ordered a test purchase and proceeded with it immediately after having received the information from X. The order indicated the applicant ’s name and stated that he was suspected of selling hashish at RUB QUANTITY . X phoned “ FAC and told him that he wished to buy hashish . The police officers were present when PERSON was speaking to “ FAC , but the conversations were not recorded . X was given RUB CARDINAL that had been photocopied . He met “ PERSON later on TIME and together they met the applicant who took RUB CARDINAL from them and went away to purchase the drugs . The applicant was later arrested and was found in possession of banknotes that matched the photocopied ones . Throughout the test purchase X had his mobile phone turned on with the police officer ’s number dialled , which enabled the police to overhear their conversations . These communications were not recorded . Neither “ Ruslan ” nor the applicant ’s dealer were arrested or prosecuted , allegedly on the grounds that their identities could not be established .

X testified at trial that he had met the applicant and “ Ruslan ” at a local supermarket DATE before the test purchase . In the course of their conversation the applicant had told him that he could get some hashish for him . “ Ruslan ” had given him his phone number . X had then volunteered that information to the police and agreed to take part in the test purchase . He testified that he had not previously bought drugs from the applicant . When the defence counsel cross - examined X the court disallowed questions about his criminal record and whether he was a drug user . It also dismissed the motion to have the judgments proving that X had previously acted as a buyer in test purchases of drugs accepted as evidence .

NORP The policemen who had initiated and carried out the test purchase testified at the trial that prior to X ’s information they had not known the applicant as drug dealer . They reiterated the details of the test purchase .

At the trial the applicant pleaded guilty of assisting “ Ruslan ” in buying drugs , but claimed that it had been the result of police incitement . He claimed that he and “ FAC were occasional smokers of hashish but that he was not selling or otherwise supplying it to anyone . The test purchase was the first time he had agreed to help “ FAC , or anyone , in obtaining drugs , and he had only done so because of his insistent prompting .

NORP The person named “ FAC was not called to be cross - examined at the trial , allegedly because the investigating authorities had failed to establish his identity .

On DATE the NORP ORG of GPE found the applicant guilty of attempted illegal sale of narcotic drugs and sentenced him to DATE imprisonment . The court did not make an express assessment of the applicant ’s plea of entrapment .

The applicant appealed . He reiterated his plea of provocation , claiming , inter alia , that X had been a police informant and challenging the refusal of the firstinstance court to admit the relevant documents as evidence . He also pointed out that the police had no other information suggesting that he had previously sold drugs . He also complained that the authorities had not made any attempts to find and question “ PERSON , who had played a key role in the test purchase and could have cast light on the extent of the provocation .

On DATE ORG upheld the firstinstance judgment . It reiterated the finding that the applicant had attempted to sell the narcotic drug during the test purchase and implicitly dismissed the plea of entrapment without answering the applicant ’s arguments .

The applicant was born in DATE and lives in GPE . He is currently serving a prison sentence in PERSON .

According to the Government , on DATE Ms Y voluntarily went to the police and reported that she was a heroin addict and that she wished to inform on her drug dealer . She said that she had been buying heroin from the applicant for a long time , but did not specify for how long . The police asked her to participate in a test purchase of drugs from the applicant , and she agreed to do so .

According to the applicant , he knew Y from primary school and through his girlfriend . He knew that she was a drug user ; she would occasionally offer to sell him second - hand mobile phones of unclear provenance . DATE before the test purchase she had sold him a DVD player which had later been seized by the police as a stolen item . Because of that , Y owed the applicant RUB CARDINAL,CARDINAL which she was unable to repay . On DATE she contacted him with an offer to redeem the debt , but told him that she would only do so if he got her some heroin , of which she was badly in need . The applicant contacted an acquaintance , a drug dealer , and arranged for the quantity Y had requested . He claimed that it was the first time he had agreed to purchase drugs for Y or for anyone .

It is common ground between the parties that prior to ORG submissions the police had not been in possession of any information suggesting the applicant ’s possible involvement in drug dealing .

On DATE the police ordered a test purchase . The order indicated the applicant ’s name and address and stated that he was suspected of selling heroin at RUB CARDINAL per gram . Y was given RUB CARDINAL in banknotes that had been photocopied . She phoned the applicant and arranged to purchase QUANTITY of heroin . The content of the phone call , which was made from police LOC and in the presence of police officers , was not recorded . The applicant met Y at the agreed place in town and she passed him the money . The police arrested the applicant on the spot . He was in possession of RUB CARDINAL in banknotes that matched the ones the police had photocopied . Y handed in a packet of heroin allegedly purchased from the applicant . The applicant claimed that he had not supplied the drugs handed in by Y because he was supposed to give them to her later .

After the arrest the applicant offered to inform the police on the dealer from whom he had obtained the heroin for Y and to conduct a test purchase from him , but the offer was not followed up .

The case was examined at first instance by LOC of PERSON . At the trial the applicant pleaded partly guilty but claimed that the crime he had committed was the result of police entrapment . He pointed out , in particular , that there was no evidence of his prior involvement in drug dealing . He maintained that ORG had previously asked him to buy heroin for her , knowing that he had an acquaintance who was a dealer , but he had always refused . CARDINAL DATE was the first time he had agreed to help her , and this was only because she had promised to pay back her debt if he did . He claimed that her participation in the test purchase was not “ voluntary ” , but prompted by the police , who had manipulated her by playing on her drug addiction .

Y testified at the trial that on DATE she had voluntarily gone to the police to inform them about the applicant ’s involvement in drug trafficking . She also stated that she had previously bought heroin from the applicant CARDINAL times .

The police officer who carried out the test purchase testified at the trial that on DATE Y had voluntarily gone to the police station and reported that she was a heroin addict and that she wished to inform them that the applicant was her drug dealer . He also stated that she had collaborated with him for DATE prior to the test purchase , and that she had taken part in unrelated test purchases of drugs from other persons . He further stated that prior to CARDINAL DATE the police had had no information on the applicant and that the test purchase was ordered as soon as Y had reported him . She had been asked to make a phone call to the applicant immediately from the police station ; when she did so she had only asked the applicant to sell her heroin , without entering into any other subjects .

The court also cross - examined another policeman who had taken part in the test purchase , and read out statements given by the attesting witnesses in the investigation , in which they set out the details of the test purchase . On DATE it found the applicant guilty of attempted illegal sale of narcotic drugs in particularly large quantities . It did not expressly refer to the applicant ’s plea of entrapment , having found the fact of the sale sufficiently established and having noted the compliance of the test purchase with the procedural requirements . It considered that the applicant ’s version of events , whereby he met Y because of the debt , had been refuted by other evidence . The applicant was sentenced to CARDINAL years’ imprisonment in a high - security correctional colony .

The applicant appealed , pleading police incitement of the offence he was convicted of and alleging that the firstinstance court had incorrectly assessed the evidence .

On DATE ORG upheld the first - instance judgment . It did not address the plea of entrapment , but limited itself to finding the applicant ’s conviction lawful and well - founded .

The applicant was born in DATE and lives in GPE . Trained in the past as a policeman , in DATE he was convicted of a murder and , after his release , worked as a welder . He is currently serving a prison sentence in a correctional colony in GPE following his conviction of the drug offence described below .

According to the Government , on DATE Ms Z voluntarily presented herself at the local office of ORG , the police ) and reported that she was a heroin addict and that she wished to inform the authorities that the applicant was a drug dealer . The police asked her to participate in a test purchase of drugs from the applicant , and she agreed to do so .

It is common ground between the parties that prior to ORG ’s submissions the police had not been in possession of any information suggesting the applicant ’s possible involvement in drug dealing . However , the Government also claimed that this information was corroborated by a report of an officer of ORG drawn on DATE , DATE .

According to the applicant , he had known Z for DATE through his personal contacts ; he was also acquainted with a certain ORG , also through personal contacts . From his police training with ORG he knew that the QUANTITY women were drug addicts , with criminal records related to drug dealing , and that they were police informants . On DATE Z called him and asked for the phone number of P because she wanted to buy drugs from her ; she said that she was suffering severe withdrawal symptoms and was on the verge of committing suicide . Later the same day she called him again and asked him to accompany her to the meeting with P because she feared that P would not sell to her if she was on her own . Out of compassion he agreed to go along . When the CARDINAL of them met , P sold Z QUANTITY grams of methamphetamine , a home - made narcotic drug produced with ephedrine and referred to throughout the proceedings by its slang name “ speed ” ( « винт PERSON ) . The applicant was arrested on the spot . He alleged that he did not have either money or drugs on him during the arrest , claiming that the money was planted on him during the search . He acknowledged , however , that he assisted Z in buying the “ speed ” but maintained that it was the first time he had done so for Z or for anyone , having succumbed to her persistent begging .

The official records presented the following account of the test purchase . Having received the information from Z , the police ordered a test purchase and proceeded with it immediately . The order indicated the applicant ’s name and stated that he was suspected of selling “ speed ” for RUB CARDINAL per gram . Z was given RUB CARDINAL in banknotes that had been photocopied . She phoned the applicant from police premises and asked him to get the drugs for her . He called her back later and they arranged to purchase QUANTITY of “ speed ” . The police officers were listening when Z spoke to the applicant on the phone , but the conversations were not recorded . The applicant met DATE on the same night and together they met another person , P. When Z gave a signal to the police they arrested the applicant and took him to the police station . At the station the police examined a wallet allegedly found on him which contained RUB MONEY in banknotes that matched the photocopied ones . Z handed in a syringe with “ speed ” in it , allegedly purchased from the applicant . P was also arrested , but she was released shortly afterwards and was not prosecuted .

At the trial the applicant pleaded guilty of helping Z to buy drugs , but claimed that he had been induced by the police to do so and requested that the evidence relating to the test purchase be excluded .

Z testified that she had volunteered information about the applicant to the police because she thought it would make it easier for her to overcome her addiction . She stated that before the test purchase she had never bought drugs from the applicant ; however , since they used to buy and consume them together she told the police that she would be able to convince him to obtain the drugs for her . She further stated that she did not know if the applicant had previously sold drugs to anyone else , and she was almost certain he did not produce them himself . She also admitted that she used to buy drugs from another source . Finally , concerning the circumstances of the test purchase , she testified that she gave the money to the applicant and took the syringe from him and that she did not see P handle either the money or the syringe .

The applicant requested that P be called and cross - examined , but the court noted that she had been summoned and had absconded , and that her whereabouts were unknown . The court considered this to constitute exceptional circumstances allowing it to take her written depositions into account . Despite the applicant ’s objections , it read out her pre - trial statement saying that she had delivered the drugs to the agreed place at the applicant ’s request , but that the sale had been arranged by him .

QUANTITY police officers were cross - examined about the covert operation . They reiterated the details of the test purchase . CARDINAL of them testified , when asked , that Z was not remunerated for her collaboration with the police .

On DATE the ORG of GPE found the applicant guilty of attempted illegal sale of narcotic drugs and sentenced him to DATE imprisonment . The sentence was increased to DATE for breach of parole relating to his previous conviction .

NORP The applicant appealed , pleading police incitement of the offence he was convicted of and complaining that the first - instance court had incorrectly assessed the evidence .

On CARDINAL DATE ORG examined the appeal . It dismissed the plea of entrapment , stating that the test purchase was based on the information given by Z to the police , notably that she “ had previously bought drugs from the applicant on multiple occasions ” , and concluded that the test purchase was therefore lawful . It upheld the first - instance judgment as well - founded .

Article CARDINAL of LAW ( as in force at the material time ) provided that the unlawful sale of narcotic drugs or psychotropic substances carried a sentence of DATE imprisonment ; the same offence involving a large quantity of drugs or committed by a group of persons acting in conspiracy carried a sentence of up to CARDINAL years’ imprisonment ; the same offence involving a particularly large quantity of drugs carried a sentence of up to DATE imprisonment ( Article CARDINAL § CARDINAL ( d ) ) .

On DATE ORG of GPE adopted guidelines ( Ruling No . DATE ) on jurisprudence in criminal cases involving narcotic drugs or psychotropic , or strong , or toxic substances . The Plenary ruled , in particular , that any sale of such substances , if carried out in connection with a test purchase under LAW , should carry charges of attempted sale ( LAW in conjunction with LAW ) . It also set out the following conditions on which the results of the test purchase could be admitted as evidence in criminal proceedings : ( i ) they must have been obtained in accordance with the law ; ( ii ) they must demonstrate that the defendant ’s intention to engage in trafficking of illegal substances had developed independently of the undercover GPE acts ; and ( iii ) they must demonstrate that the defendant had carried out all the preparatory steps necessary for the commission of the offence .

The Operational - Search Activities Act of CARDINAL DATE ( no . ORG ) provided as follows at the material time :

“ An operational - search activity is a form of overt or covert activity carried out by operational divisions of ORG agencies authorised by this LAW ( hereinafter ‘ agencies conducting operational - search GPE ) within the scope of their powers , with a view to protecting the life , health , rights and freedoms of individuals and citizens , or property , and protecting the public and the ORG against criminal offences . ”

“ The aims of operational - search activities are :

– to detect , prevent , intercept and investigate criminal offences as well as searching for and identifying those responsible for planning or committing them ;

A person who considers that an agency conducting operational - search activities has acted in breach of his or her rights and freedoms may challenge the acts of that agency before a higher - ranking agency conducting operational - search activities , a prosecutor ’s office or a court .

“ In carrying out investigations the following measures may be taken :

NORP test purchase ;

NORP supervision of postal , telegraphic and other communications ;

telephone interception ;

collection of data from technical channels of communication ;

operational infiltration ;

controlled supply ;

operational experiments .

Operational - search activities involving supervision of postal , telegraphic and other communications , telephone interception through [ telecommunications companies ] , and the collection of data from technical channels of communication are to be carried out by technical means by ORG , the agencies of ORG and the regulatory agencies for drugs and psychotropic substances in accordance with decisions and agreements signed between the agencies involved .

“ [ Operational - search activities may be performed on the following grounds ; ] ...

NORP pending criminal proceedings ;

NORP information obtained by the agencies conducting operational - search activities which :

( CARDINAL ) indicates that an offence is being planned or has already been committed , or points to persons who are planning or committing or have committed an offence , if there is insufficient evidence for a decision to institute criminal proceedings ;

“ Operational - search activities involving interference with the constitutional right to privacy of postal , telegraphic and other communications transmitted by means of wire or mail services , or with the privacy of the home , may be conducted , subject to a judicial decision , following the receipt of information concerning :

NORP the appearance that an offence has been committed or is ongoing , or a conspiracy to commit an offence whose investigation is mandatory ;

NORP persons who are conspiring to commit , or are committing or have committed an offence whose investigation is mandatory ;

Test purchases ... , operational experiments , or infiltration by agents of the agencies conducting operational - search activities or individuals assisting them , shall be carried out pursuant to an order issued by the head of the agency conducting operational - search activities .

Operational experiments may be conducted only for the detection , prevention , interruption and investigation of a serious crime , or for the identification of persons who are planning or committing or have committed a serious crime .

“ The examination of requests for the taking of measures involving interference with the constitutional right to privacy of correspondence and telephone , postal , telegraphic and other communications transmitted by means of wire or mail services , or with the right to privacy of the home , shall fall within the competence of a court at the place where the requested measure is to be carried out or at the place where the requesting body is located . The request must be examined immediately by a single judge ; the examination of the request may not be refused .

The judge examining the request shall decide whether to authorise measures involving interference with the above - mentioned constitutional right , or to refuse authorisation , indicating reasons .

“ To pursue their aims as defined by this LAW , agencies conducting operational - search activities may create and use databases and open operational registration files .

Operational registration files may be opened on the grounds set out in points CARDINAL to CARDINAL of section CARDINAL(CARDINAL ) of this LAW ... ”

“ Information gathered as a result of operational - search activities may be used for the preparation and conduct of the investigation and court proceedings ... and used as evidence in criminal proceedings in accordance with legal provisions regulating the collection , evaluation and assessment of evidence . ... ”

On DATE section CARDINAL of the Act was amended to prohibit agencies conducting operational - search activities from directly or indirectly inducing or inciting the commission of offences .

Article CARDINAL of the Code of Criminal Procedure of GPE , in force from DATE , provided at the material time that orders of a preliminary interview officer , investigator or prosecutor that were capable of encroaching on the constitutional rights and freedoms of participants in criminal proceedings or obstructing their access to justice could be challenged before a court whose jurisdiction covered the place of the investigation . Subsequent changes in the Code added the head of the investigating authority to the list of officials whose acts could be challenged .

On DATE ORG of GPE adopted guidelines ( Ruling No . CARDINAL ) on the practice of judicial examination of complaints under LAW . The Plenary ruled , inter alia , that decisions of officials of agencies conducting operational - search activities must also be subject to judicial review under the provisions of LAW if the officials were acting pursuant to an order by an investigator or the head of the investigating or preliminary inquiry authority .

The Code of Criminal Procedure provides , in so far as relevant :

“ CARDINAL . Evidence obtained in breach of this Code shall be inadmissible . Inadmissible evidence shall have no legal force and can not be relied on as grounds for criminal charges or for proving any of the [ circumstances for which evidence is required in criminal proceedings ] .

ORG If a court decides to exclude evidence , that evidence shall have no legal force and can not be relied on in a judgment or other judicial decision , or be examined or used during the trial .

Article CARDINAL of the ORG contains a list of situations which may justify the reopening of a finalised case on account of newly discovered circumstances . A judgment of ORG finding a violation of LAW in a case in respect of which an applicant lodged a complaint with the ORG is considered to be a new circumstance warranting a reopening ( LAW ( CARDINAL ) ) .

The ORG conducted a comparative study of the legislation of CARDINAL member ORG GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , “ the former GPE ” , GPE , GPE , GPE , GPE , GPE , GPE and GPE ) concerning the use of undercover agents in test purchases and similar covert operations .

The comparative study showed that in all of these countries it is possible for the police to carry out undercover operations , in particular in drug - trafficking cases , according to the procedure set out in the relevant laws and regulations . Only in GPE is there no formal legislative or regulatory basis for the use of undercover police . A number of countries provide also for the involvement of private individuals and authorise resort to undercover agents only when the collection of evidence by other means is too complicated or impossible .

Research reveals that in most of the countries covered there is exclusive or shared responsibility of the judicial bodies in the authorisation procedure , although in some the decision lies with the public prosecutor , the administrative authorities or high - level police officials .

A judicial authorisation is required in GPE ( court ) , GPE ( investigating judge ) , GPE ( investigating judge ) , GPE ( indictments chamber ) , GPE , GPE ( regional court with prior agreement of ORG ) , GPE ( investigating judge ) , and GPE ( judge ) .

In GPE and GPE the authority to sanction undercover operations lies exclusively with the public prosecutor .

A number of countries provide for the involvement of the prosecutor or the court , or both , depending , for example , on the type of operation or , more commonly , the stage of the proceedings .

In GPE , “ fictitious transfers ” , which include test purchases , require authorisation by the public prosecutor , whereas the use of an undercover agent ( in connection with particularly serious offences ) can be authorised only by a High Court judge . Under NORP law , the use of undercover agents must be authorised by the public prosecutor , and additionally by a court if the operation targets a particular person or involves entry into private LOC . In GPE also the authorisation is given by the public prosecutor , but video and audio recording during the operation requires prior authorisation by a judge .

In GPE , the authorisation is delivered by the public prosecutor at the preliminary inquiry stage , and by the investigating judge ( juge d’instruction ) during the pre - trial investigation . NORP law , in a similar vein , requires the authorisation of a pre - trial judge during a pre - trial investigation , while at an earlier stage the authorisation of the prosecutor suffices . In “ the former GPE ” special investigative measures in the pre - investigation phase can be ordered either by the public prosecutor or by an investigating judge , but once an investigation has been opened the authorisation can be given only by the latter .

In GPE , covert operations within the framework of the inquiry are subject to the prior authorisation of the competent member of LAW , with mandatory communication to the investigating judge , and are deemed to be ratified if no order refusing permission is issued within TIME . If the operation is carried out in the framework of crime prevention , it falls within the competence of the investigation judge to give the required authorisation at the proposal of the prosecution authorities .

NORP law also provides for notification of the investigating judge when authorisation for an undercover operation has been given by the public prosecutor . Such authorisation can also be issued directly by the judge .

In GPE there is no requirement for formal authorisation from the prosecutor or a court , but the appropriate authority must give prior notification of the start of the operation to the competent prosecutor . In drug cases , before undertaking an undercover operation , ORG or its regional or provincial offices need to inform the prosecutor in charge of the investigations , but they do not need their formal approval .

In a few countries , there is no involvement of a court or a prosecutor in the authorisation procedure . In GPE , the decision on undercover activities is taken by the Head of ORG or the Head of ORG , at the request of a regular police department . The decision - making bodies are separate from the services which carry out the operation .

In the GPE undercover operations are subject to administrative rather than judicial authorisation . In the ORG of Lords decision in R v. Loosely [ DATE ] Lord PERSON underlined that although the technique in GPE for authorising and supervising such practice was very different from the judicial supervision in continental countries , the purpose was the same , namely to remove the risk of extortion , corruption or abuse of power by policemen operating without proper supervision .

The public authorities entitled to authorise the use or conduct of a Covert Human Intelligence Source ( ORG ) are laid out in law . Each public authority has its own separate authorising officer .

ORG officers should not be responsible for authorising their own activities , that is , those in which they themselves are to act as the ORG or as the handler of the CHIS . Furthermore , authorising officers should , where possible , be independent of the investigation . However , it is recognised that this is not always possible , especially in the case of small organisations , or where it is necessary to act urgently or for security reasons . Where an authorising officer authorises his own activity the central record of authorisations should highlight this and the attention of a Commissioner or Inspector should be drawn to it during his next inspection .

In GPE similarly there is no judicial authorisation procedure . The police or other enforcement agencies both take and carry out all operational decisions concerning undercover operations .

ORG instruments on the use of special investigative techniques are outlined in PERSON v. GPE ( [ ORG ] , no . CARDINAL/CARDINAL , § § DATE , ECHR CARDINAL- ... ) .

“ ... in order to ensure that the use of undercover agents does not unduly interfere with the right to fair trial guaranteed by LAW , LAW Legislative Decree No . CARDINAL/CARDINAL on the prevention of drug - trafficking has been amended by LAW . CARDINAL of DATE . According to the added paragraph CARDINAL to Article DATE , the use of such persons is subject to a court ’s approval , which has to be given within DATE and for a specific period .

The Government is of the opinion that , in view of the supra - legal status of the ORG , as interpreted by ORG , in NORP law ( ORG judgments ORG . ORG of DATE and CARDINAL of DATE ) , the NORP courts will exercise this supervision and adapt their interpretation of LAW ( in particular of LAW in such a way as to avoid new violations similar to that found in the PERSON case .

In order to facilitate this adaptation , the judgment of ORG has been published in the Revista Portuguesa de Ciência Criminal ( ORG CARDINAL/CARDINAL ) and also disseminated to the authorities concerned , including the police . ”

On DATE ORG concluded the execution of the judgment in the case of ORG v. GPE ( no . CARDINAL/CARDINAL , DATE ) , having adopted Resolution ResDH(CARDINAL)CARDINAL which read in so far as relevant :

“ The ORG ’s findings have been endorsed in national case - law : it is held that , in conformity with LAW , the conviction of an accused should not arise solely from the conduct of a police officer involved in the case ( acting as agent provocateur ) , otherwise the requirements of a fair trial are not met ( Court of Cassation CARDINAL/CARDINAL ) . Furthermore , this conviction should be based on additional , strong evidence , and not only on the testimony of the police officers involved . ( Court of Cassation DATE , ORG of Appeal CARDINAL/CARDINAL ) . ”

“ In order to prevent similar violations , ORG set out , in its decision of DATE , the general principles with regard to cases where the criminal conduct simulation model is employed .

First , ORG stressed that the criminal conduct simulation model as an investigative technique may not be employed to incite the commission of an offence but may be applied only if credible and objective information had already been obtained to the effect that the criminal activity had been initiated .

Secondly , state officials may not act as private persons to incite third parties to commit an offence , while the acts of private persons acting to incite third parties to commit an offence under the control and instructions of state officials shall constitute such incitement .

Thirdly , it may be inferred that there is an act of incitement even if state officials do not act in a very intensive and pressing manner , including in situations when contact with third parties is made indirectly through mediators .

Fourthly , the burden of proof in judicial proceedings lies with the state authorities , which have an obligation to refute any argument raised by a defendant in criminal proceedings in respect of the incitement by state agents to commit an offence .

Fifthly , once the act of incitement is established , no evidence obtained through incitement shall be admissible . The confession of an offence as a result of incitement does not eradicate either incitement or its effects .

Sixthly , it is preferred that undercover techniques are supervised by a court although supervision by a prosecutor does not in itself violate the Convention .

This decision of ORG is binding upon all domestic courts . Thus , it provides a clear and foreseeable procedure in similar cases . ”