Violation of Art. 3 (possible);No violation of Art. 6-3-c (possible);No violation of Art. 13;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings

C. Russo;J.A. Carrillo Salcedo;N. Valticos

ORG The applicant , Mr PERSON , was born on DATE and is a NORP national . He is currently detained in prison in GPE pending extradition to GPE to face charges of murder in the GPE of GPE .

ORG The homicides in question were committed in GPE , GPE , in DATE . The victims , PERSON ( aged DATE ) and PERSON ( aged DATE ) , were the parents of the applicant ’s girlfriend , PERSON , who is a NORP national . Death in each case was the result of multiple and massive stab and slash wounds to the neck , throat and body . At the time the applicant and PERSON , aged DATE and CARDINAL respectively , were students at ORG . They disappeared together from GPE in DATE , but were arrested in GPE in DATE in connection with cheque fraud .

ORG The applicant was interviewed in GPE DATE by a police investigator from ORG of GPE . In a sworn affidavit dated DATE the investigator recorded the applicant as having admitted the killings in his presence and in that of CARDINAL GPE police officers . The applicant had stated that he was in love with Miss PERSON but that her parents were opposed to the relationship . He and Miss PERSON had therefore planned to kill them . They rented a car in GPE and travelled to GPE where they set up an alibi . The applicant then went to the GPE house , discussed the relationship with them and , when they told him that they would do anything to prevent it , a row developed during which he killed them with a knife .

On DATE a grand jury of ORG of GPE indicted him on charges of murdering the ORG parents . The charges alleged capital murder of both of them and the separate non - capital murders of each .

ORG On DATE the Government of GPE requested the applicant ’s and Miss PERSON ’s extradition under the terms of LAW of DATE between GPE and GPE ( see paragraph CARDINAL below ) . On DATE a Magistrate at FAC was required by the Secretary of ORG to issue a warrant for the applicant ’s arrest under the provisions of section CARDINAL of LAW ( see paragraph CARDINAL below ) . The applicant was subsequently arrested on DATE at FAC after serving a prison sentence for cheque fraud .

ORG On DATE ORG in GPE addressed a request to GPE authorities in the following terms :

" Because the death penalty has been abolished in GPE , the ORG has been instructed to seek an assurance , in accordance with the terms of ... LAW , that , in the event of Mr PERSON being surrendered and being convicted of the crimes for which he has been indicted ... , the death penalty , if imposed , will not be carried out .

Should it not be possible on constitutional grounds for ORG to give such an assurance , GPE authorities ask that ORG undertake to recommend to the appropriate authorities that the death penalty should not be imposed or , if imposed , should not be executed . "

ORG On DATE the applicant was interviewed in prison by a NORP prosecutor ( PERSON ) from GPE . In a sworn witness statement the prosecutor recorded the applicant as having said , inter alia , that " he had never had the intention of killing PERSON and PERSON and ... he could only remember having inflicted wounds at the neck on PERSON and PERSON which must have had something to do with their dying later " ; and that in DATE " there had been no talk whatsoever [ between him and PERSON ] about killing PERSON ’s parents " . The prosecutor also referred to documents which had been put at his disposal , for example the statements made by the applicant to the NORP police investigator , the autopsy reports and CARDINAL psychiatric reports on the applicant ( see paragraph CARDINAL below ) .

On DATE the local court in GPE issued a warrant for the applicant ’s arrest in respect of the alleged murders . On DATE the Government of GPE requested his extradition to GPE under LAW of DATE between GPE and GPE ( see paragraph CARDINAL below ) . The Secretary of ORG was then advised by ORG that , although the NORP request contained proof that NORP courts had jurisdiction to try the applicant , the evidence submitted , since it consisted solely of the admissions made by the applicant to the GPE prosecutor in the absence of a caution , did not amount to a prima facie case against him and that a magistrate would not be able under LAW ( see paragraph CARDINAL below ) to commit him to await extradition to GPE on the strength of admissions obtained in such circumstances .

ORG In a letter dated DATE to the Director of ORG , ORG , ORG , the Attorney for GPE , GPE ( Mr PERSON ) stated that , on the assumption that the applicant could not be tried in GPE on the basis of admissions alone , there was no means of compelling witnesses from GPE to appear in a criminal court in GPE . On DATE GPE , by diplomatic note , requested the applicant ’s extradition to GPE in preference to GPE .

ORG On CARDINAL DATE PERSON was surrendered for extradition to GPE . After pleading guilty on DATE as an accessory to the murder of her parents , she was sentenced on DATE to DATE imprisonment ( DATE on each count of murder ) .

ORG On DATE the ORG informed GPE that GPE had earlier " submitted a request , supported by prima facie evidence , for the extradition of PERSON . ORG notified ORG request " . They further indicated that they had sought an assurance from GPE authorities on the question of the death penalty and that " in the event that the court commits PERSON , his surrender to GPE authorities would be subject to the receipt of satisfactory assurances on this matter " .

ORG On DATE Mr PERSON swore an affidavit in his capacity as Attorney for GPE , in which he certified as follows :

" I hereby certify that should PERSON be convicted of the offence of capital murder as charged in GPE , GPE ... a representation will be made in the name of GPE to the judge at the time of sentencing that it is the wish of GPE that the death penalty should not be imposed or carried out . "

This assurance was transmitted to ORG under cover of a diplomatic note on DATE . It was repeated in the same terms in a further affidavit from Mr PERSON sworn on DATE and forwarded to GPE by diplomatic note on CARDINAL DATE . In the same note ORG of GPE undertook to ensure that the commitment of the appropriate authorities of the GPE of GPE to make representations on behalf of GPE would be honoured .

During the course of the present proceedings the GPE authorities informed ORG that Mr PERSON was not planning to provide any further assurances and intended to seek the death penalty in Mr PERSON ’s case because the evidence , in his determination , supported such action .

ORG On DATE at the ORG committal proceedings took place before the Chief PERSON .

The Government of GPE adduced evidence that on TIME the applicant killed PERSON and PERSON at their home in GPE , GPE . In particular , evidence was given of the applicant ’s own admissions as recorded in the affidavit of the GPE police investigator ( see paragraph CARDINAL above ) .

On behalf of the applicant psychiatric evidence was adduced from a consultant forensic psychiatrist ( report dated DATE by Dr PERSON ) that he was immature and inexperienced and had lost his personal identity in a symbiotic relationship with his girlfriend - a powerful , persuasive and disturbed young woman . The psychiatric report concluded :

" There existed between Miss PERSON and PERSON a ‘ folie à deux’ , in which the most disturbed partner was PERSON . ...

At the time of the offence , it is my opinion that PERSON was suffering from [ such ] an abnormality of mind due to inherent causes as substantially impaired his mental responsibility for his acts . The psychiatric syndrome referred to as ‘ folie à FAC is a well - recognised state of mind where CARDINAL partner is suggestible to the extent that he or she believes in the psychotic delusions of the other . The degree of disturbance of Miss Haysom borders on the psychotic and , over the course of DATE , she was able to persuade PERSON that he might have to kill her parents for she and him to survive as a couple . ... PERSON had a stupefying and mesmeric effect on PERSON which led to an abnormal psychological state in which he became unable to think rationally or question the absurdities in Miss PERSON ’s view of her life and the influence of her parents . ...

In conclusion , it is my opinion that , at the time of the offences , PERSON was suffering from an abnormality of mind which , in this country , would constitute a defence of ‘ not guilty to murder but guilty of ORG . "

PERSON conclusions were substantially the same as those contained in an earlier psychiatric report ( dated DATE by Dr PERSON , Medical Director of ORG ) , which was not however put before ORG .

The Chief Magistrate found that the evidence of PERSON was not relevant to any issue that he had to decide and committed the applicant to await the Secretary of ORG ’s order for his return to GPE .

ORG On DATE Mr PERSON applied to ORG for a writ of habeas corpus in respect of his committal and for leave to apply for judicial review . On DATE both applications were refused by ORG ( Lord Justice Lloyd and Mr Justice PERSON ) .

In support of his application for leave to apply for judicial review , Mr PERSON had submitted that the assurance received from GPE authorities was so worthless that no reasonable Secretary of ORG could regard it as satisfactory under LAW between GPE and GPE ( see paragraph CARDINAL below ) . In his judgment Lord Justice Lloyd agreed that " the assurance leaves something to be desired " :

" LAW contemplates an assurance that the death penalty will not be carried out . That must presumably mean an assurance by or on behalf of ORG , which in this case would be the Governor of the GPE of GPE . The certificate sworn by PERSON , far from being an assurance on behalf of the Executive , is nothing more than an undertaking to make representations on behalf of GPE to the judge . I can not believe that this is what was intended when LAW was signed . But I can understand that there may well be difficulties in obtaining more by way of assurance in view of the federal nature of GPE . "

Leave to apply for judicial review was refused because the claim was premature . Lord Justice PERSON stated :

" The Secretary of ORG has not yet decided whether to accept the assurance as satisfactory and he has certainly not yet decided whether or not to issue a warrant for PERSON ’s surrender . Other factors may well intervene between now and then . This court will never allow itself to be put in the position of reviewing an administrative decision before the decision has been made . "

As a supplementary reason , he added :

" Secondly , even if a decision to regard the assurance as satisfactory had already been made by the Secretary of ORG , then on the evidence currently before us I am far from being persuaded that such a decision would have been irrational in the ORG sense . " ( As to " irrationality " in the ORG sense , see paragraph CARDINAL below . )

ORG On DATE ORG rejected the applicant ’s petition for leave to appeal against the decision of ORG .

ORG On DATE the applicant petitioned the Secretary of ORG , requesting him to exercise his discretion not to make an order for the applicant ’s surrender under LAW of LAW ( see paragraph DATE below ) .

This request was rejected , and on DATE the Secretary of ORG signed a warrant ordering the applicant ’s surrender to GPE authorities . However , the applicant has not been transferred to GPE by virtue of the interim measures indicated in the present proceedings firstly by ORG and then by ORG ( see paragraphs CARDINAL above and CARDINAL below ) .

ORG On DATE the applicant was transferred to a prison hospital where he remained until DATE under the special regime applied to suicide - risk prisoners .

According to psychiatric evidence adduced on behalf of the applicant ( report dated DATE by PERSON ) , the applicant ’s dread of extreme physical violence and homosexual abuse from other inmates in death row in GPE is in particular having a profound psychological effect on him . The psychiatrist ’s report records a mounting desperation in the applicant , together with objective fears that he may seek to take his own life .

ORG By a declaration dated DATE submitted to ORG , the applicant stated that should the ORG require that he be deported to GPE he would consent to such requirement and would present no factual or legal opposition against the making or execution of an order to that effect .

ORG In GPE murder is defined as the unlawful killing of a human being with malice aforethought . The penalty is life imprisonment . The death penalty can not be imposed for murder ( Murder ( Abolition of the Death Penalty ) Act DATE , section CARDINAL ) . LAW DATE provides that where a person kills another , he shall not be convicted of murder if he was suffering from such abnormality of mind ( whether arising from a condition of arrested development of mind or any inherent causes or induced by disease or injury ) as substantially impaired his mental responsibility for his acts in doing the killing . A person who but for the section would be liable to be convicted of murder shall be liable to be convicted of manslaughter .

ORG LANGUAGE courts do not exercise criminal jurisdiction in respect of acts of foreigners abroad except in certain cases immaterial to the present proceedings . Consequently , neither the applicant , as a NORP citizen , nor PERSON , a NORP citizen , was or is amenable to criminal trial in GPE .

ORG The relevant general law on extradition is contained in LAW .

ORG The extradition arrangements between GPE and GPE are governed by LAW signed by ORG on DATE , LAW signed on DATE , and an Exchange of Notes dated DATE and DATE amending LAW . These arrangements have been incorporated into the law of GPE by ORG ( GPE ( Extradition ) Order DATE , GPE DATE and GPE ( Extradition ) ( LAW DATE , NORP CARDINAL/CARDINAL ) .

By virtue of LAW , " each ORG undertakes to extradite to the other , in the circumstances and subject to the conditions specified in this LAW , any person found in its territory who has been accused or convicted of any offence [ specified in the LAW and including murder ] , committed within the jurisdiction of the other ORG " .

ORG Extradition between GPE and GPE is governed by LAW DATE between GPE and GPE for ORG , as reapplied with amendments by an Agreement signed at GPE on DATE and as further amended by an Exchange of Notes dated DATE and DATE . These agreements have been incorporated into the law of GPE by ORG ( GPE DATE , NORP CARDINAL/CARDINAL and GPE ( LAW ) Order DATE , NORP DATE ) .

ORG After receipt of an extradition request , the Secretary of ORG may , by order , require a magistrate to issue a warrant for the arrest of the fugitive criminal ( LAW , sections CARDINAL and CARDINAL) .

Extradition proceedings in the GPE consist in an extradition hearing before a magistrate . LAW provides that if " such evidence is produced as ( subject to the provisions of LAW ) would , according to the law of GPE , justify the committal for trial of the prisoner if the crime of which he is accused had been committed in GPE ... the ... magistrate shall commit him to prison but otherwise he shall order him to be discharged " . A magistrate must be satisfied that there is sufficient evidence to put the accused on trial ; before committing him a prima facie case must be made out against him . " The test is whether , if the evidence before the magistrate stood alone at the trial , a reasonable jury properly directed could accept it and find a verdict of guilty " ( ORG of GPE [ DATE ] Appeal Cases CARDINAL ) .

ORG LAW of LAW provides that decisions taken in committal proceedings may be challenged by way of application for habeas corpus . In practice , such application is made to a ORG and , with leave , to ORG . Habeas corpus proceedings are primarily concerned with checking that the magistrate had jurisdiction to hear the case ; that there was evidence before him which could justify the committal ; that the offence is an extradition crime which is not of a political character ; and that there is no bar on other grounds to surrender . LAW provides for the release of a prisoner , if not surrendered , at the conclusion of such proceedings or within DATE of committal unless sufficient cause is shown to the contrary .

ORG Furthermore , under LAW of LAW the Secretary of ORG enjoys a discretion not to sign the surrender warrant ( GPE v. GPE [ DATE ] Appeal Cases CARDINAL ) . This discretion may override a decision of the courts that a fugitive should be surrendered , and it is open to every prisoner who has exhausted his remedies by way of application for habeas corpus to petition the Secretary of ORG for that purpose . In considering whether to order the fugitive ’s surrender , the Secretary of ORG is bound to take account of fresh evidence which was not before the magistrate ( ORG of GPE , loc . cit . ) .

ORG In addition , it is open to the prisoner to challenge both the decision of the Secretary of ORG rejecting his petition and the decision to sign the warrant in judicial review proceedings . In such proceedings the court may review the exercise of the Secretary of ORG ’s discretion on the basis that it is tainted with illegality , irrationality or procedural impropriety ( ORG Unions and Others v. Minister for ORG [ DATE ] CARDINAL All England Law Reports CARDINAL ) .

Irrationality is determined on the basis of the administrative - law principles set out in ORG v. ORG [ DATE ] CARDINAL ORG Bench Reports CARDINAL ( the so - called " ORG principles " of reasonableness ) . The test in an extradition case would be that no reasonable Secretary of ORG could have made an order for return in the circumstances . As the judgment of Lord Justice Lloyd in ORG in the present case shows ( see paragraph CARDINAL above ) , the reliance placed by the Secretary of ORG on any assurance given by the requesting ORG may be tested to determine whether such reliance is within the confines of " reasonableness " .

In R v. Home Secretary , ex parte PERSON [ DATE ] CARDINAL All England Law Reports CARDINAL at CARDINAL , a ORG case concerning a refusal to grant asylum , FAC , while acknowledging the limitations of the ORG principles , explained that the courts will apply them extremely strictly against the Secretary of ORG in a case in which the life of the applicant is at risk :

" Within those limitations the court must , I think , be entitled to subject an administrative decision to the most rigorous examination , to ensure that it is in no way flawed , according to the gravity of the issue which the decision determines . The most fundamental of all human rights is the individual ’s right to life and , when an administrative decision under challenge is said to be one which may put the applicant ’s life at risk , the basis of the decision must surely call for the most anxious scrutiny . "

Lord PERSON added ( at page CARDINAL ) :

" In my opinion where the result of a flawed decision may imperil life or liberty a special responsibility lies on the court in the examination of the decision - making process . "

However , the courts will not review any decision of the Secretary of ORG by reason of the fact only that he failed to consider whether or not there was a breach of ORG ( NORP v. Secretary of ORG , ex parte ORG [ DATE ] CARDINAL Weekly Law Reports CARDINAL ) .

In addition , the courts have no jurisdiction to issue interim injunctions against the ORG in judicial review proceedings ( ORG , ibid . , and R v. Secretary of ORG , ex parte PERSON and Others , The ORG , CARDINAL DATE ) .

ORG There is no provision in the Extradition Acts relating to the death penalty , but LAW provides :

" If the offence for which extradition is requested is punishable by death under the relevant law of the requesting ORG , but the relevant law of the requested ORG does not provide for the death penalty in a similar case , extradition may be refused unless the requesting ORG gives assurances satisfactory to the requested ORG that the death penalty will not be carried out . "

ORG In the case of a fugitive requested by GPE who faces a charge carrying the death penalty , it is the Secretary of ORG ’s practice , pursuant to LAW , to accept an assurance from the prosecuting authorities of the relevant ORG that a representation will be made to the judge at the time of sentencing that it is the wish of GPE that the death penalty should be neither imposed no carried out . This practice has been described by PERSON , then Minister of State at ORG , in the following terms :

" The written undertakings about the death penalty that the Secretary of ORG obtains from the Federal authorities amount to an undertaking that the views of GPE will be represented to the judge . At the time of sentencing he will be informed that GPE does not wish the death penalty to be imposed or carried out . That means that GPE authorities render up a fugitive or are prepared to send a citizen to face an NORP court on the clear understanding that the death penalty will not be carried out - it has never been carried out in such cases . It would be a fundamental blow to the extradition arrangements between our CARDINAL countries if the death penalty were carried out on an individual who had been returned under those circumstances . " ( ORG , CARDINAL DATE , col . CARDINAL )

There has , however , never been a case in which the effectiveness of such an undertaking has been tested .

ORG Concurrent requests for extradition in respect of the same crime from CARDINAL different States are not a common occurrence . If both requests are received at the same time , the Secretary of ORG decides which request is to be proceeded with , having regard to all the facts of the case , including the nationality of the fugitive and the place of commission of the offence .

In this respect LAW between GPE and GPE provides as follows :

" If the extradition of a person is requested concurrently by CARDINAL of the Contracting Parties and by GPE , either for the same offence or for different offences , the requested ORG shall make its decision , in so far as its law allows , having regard to all the circumstances , including the provisions in this regard in any Agreements in force between the requested ORG and the requesting GPE , the relative seriousness and place of commission of the offences , the respective dates of the requests , the nationality of the person sought and the possibility of subsequent extradition to another ORG . "

ORG The relevant definition and classification of murder and sentencing for murder are governed by LAW , as amended , and the decided cases in the ORG and Federal courts .

ORG Section DATE of LAW provides that eight types of homicide constitute capital murder , punishable as a Class CARDINAL felony , including " the wilful , deliberate and premeditated killing of CARDINAL person as a part of the same act or transaction " ( sub - section ( g ) ) . The punishment for a Class CARDINAL felony is " death or imprisonment for life " ( MONEY , section DATE ) ) . Except in the case of murder for hire , only the " triggerman " , that is the actual perpetrator of the killing , may be charged with capital murder ( PERSON v. Commonwealth , CARDINAL ORG ( GPE ) CARDINAL , CARDINAL NORP Reporter , Second Series ( S.E.CARDINALd ) CARDINAL ( DATE ) ) .

Murder other than capital murder is classified as murder in the first degree or murder in the second degree and is punishable by varying terms of imprisonment ( LAW , sections CARDINAL - CARDINAL(b ) , ( c ) and CARDINAL - CARDINAL ) .

ORG In most felony trials , including trials for capital murder , the defendant is guaranteed trial by jury . The defendant may waive this right but does not often do so .

ORG The sentencing procedure in a capital murder case in GPE is a separate proceeding from the determination of guilt . Following a determination of guilt of capital murder , the same jury , or judge sitting without a jury , will forthwith proceed to hear evidence regarding punishment . All relevant evidence concerning the offence and the defendant is admissible . Evidence in mitigation is subject to almost no limitation , while evidence of aggravation is restricted by statute ( LAW , section CARDINAL ) .

ORG Unless the prosecution proves beyond a reasonable doubt the existence of CARDINAL of CARDINAL statutory aggravating circumstances - future dangerousness or vileness - the sentencer may not return a death sentence .

" Future dangerousness " exists where there is a probability that the defendant would commit " criminal acts of violence " in the future such as would constitute a " continuing serious threat to society " ( LAW , section CARDINAL ) .

" Vileness " exists when the crime was " outrageously or wantonly vile , horrible or inhuman in that it involved torture , depravity of mind or an aggravated battery to the victim " ( Virginia Code , ibid . ) . The words " depravity of mind " mean " a degree of moral turpitude and psychical debasement surpassing that inherent in the definition of ordinary legal malice and premeditation " . The words " aggravated battery " mean a battery which , " qualitatively and quantitatively , is more culpable than the minimum necessary to accomplish an act of murder " ( ORG , CARDINAL GPE CARDINAL , CARDINAL S.E.CARDINALd CARDINAL ( DATE ) , certiorari denied , CARDINAL ORG ( GPE ) CARDINAL ( DATE ) ) . Proof of multiple wounds sustained by the victim , particularly a neck wound , which even considered alone , constituted an aggravated battery in the light of the savage , methodical manner in which it was inflicted , leaving the victim to suffer an interval of agony awaiting death , has been held to satisfy the test of " vileness " under this section ( PERSON v. Commonwealth , CARDINAL GPE CARDINAL , CARDINAL S.E.CARDINALd CARDINAL , certiorari denied , CARDINAL ORG Reporter ( GPE . ) CARDINAL , CARDINAL ORG , Lawyers’ Edition , Second Series ( ORG ) CARDINAL ( DATE ) ) .

ORG The imposition of the death penalty on a young person who has reached the age of majority - which is DATE ( FAC , section CARDINAL.CARDINAL.CARDINAL ) - is not precluded under GPE law . Age is a fact to be weighed by the jury ( GPE , CARDINAL Va. CARDINAL , CARDINAL S.E.CARDINALd CARDINAL , certiorari denied , CARDINAL GPE CARDINAL , ORG . CARDINAL , CARDINAL ORG CARDINAL ( DATE ) ) .

ORG Facts in mitigation are specified by statute as including but not being limited to the following :

" ( i ) the defendant has no significant history of prior criminal activity , or ( ii ) the capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance , or ( iii ) the victim was a participant in the defendant ’s conduct or consented to the act , or ( iv ) at the time of the commission of the capital felony , the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was significantly impaired , or ( v ) the age of the defendant at the time of the commission of the capital offence " ( LAW , section CARDINAL - CARDINAL.CARDINALB ) .

ORG In a case of trial by jury , the jury in a capital murder case has the duty to consider all evidence relevant to sentencing , both favourable and unfavourable , before fixing punishment . In particular , a jury may sentence a defendant to death only after having considered the evidence in mitigation of the offence ( PERSON v. Commonwealth , CARDINAL GPE CARDINAL , CARDINAL S.E.CARDINALd CARDINAL ( DATE ) , certiorari denied , CARDINAL GPE CARDINAL , CARDINAL S.Ct . DATE , CARDINAL ORG CARDINAL ( DATE ) ) . Furthermore , unless the jury is unanimous the sentence can not be death but must be life imprisonment ( LAW , section CARDINAL ) . Even if CARDINAL or more of the statutory aggravating circumstances are shown , the sentencer still remains at liberty to fix a life sentence instead of death in the light of the mitigating circumstances and even for no reason other than mercy ( ORG , loc . cit . ) .

ORG Following a sentence of death , the trial judge must order the preparation of an investigative report detailing the defendant ’s history and " any and all other relevant facts , to the end that the court may be fully advised as to whether the penalty of death is appropriate and just " ; after consideration of the report , and upon good cause shown , the judge may set aside the sentence of death and impose a life sentence ( MONEY , section CARDINAL - CARDINAL.CARDINAL ) .

ORG Following a moratorium consequent upon a decision of ORG ( ORG v. GPE , CARDINAL ORG . CARDINAL ( DATE ) ) , imposition of the death penalty was resumed in GPE in DATE , since which date CARDINAL persons have been executed . The means of execution used is electrocution .

The GPE death penalty statutory scheme , including the provision on mandatory review of sentence ( see paragraph CARDINAL below ) , has been judicially determined to be constitutional . It was considered to prevent the arbitrary or capricious imposition of the death penalty and narrowly to channel the sentencer ’s discretion ( ORG , loc . cit . ; PERSON v. PERSON , CARDINAL ORG , Second Series ( F.CARDINALd ) CARDINAL ( ORG , DATE ) ; PERSON v. PERSON , CARDINAL F.CARDINALd CARDINAL ( CARDINALth Circuit , DATE ) ) . The death penalty under the GPE capital murder statute has also been held not to constitute cruel and unusual punishment or to deny a defendant due process or equal protection ( ORG , CARDINAL Va. CARDINAL , CARDINAL S.E.CARDINALd CARDINAL ( DATE ) , certiorari denied , CARDINAL GPE CARDINAL , CARDINAL ORG . DATE , CARDINAL L.Ed.CARDINALd CARDINAL ( DATE ) ) . ORG of GPE rejected the submission that death by electrocution would cause " the needless imposition of pain before death and emotional suffering while awaiting execution of sentence " ( ibid . ) .

ORG The law of GPE generally does not recognise a defence of diminished capacity ( ORG , CARDINAL GPE CARDINAL , CARDINAL S.E.CARDINALd CARDINAL ( DATE ) ) .

ORG A plea of insanity at the time of the offence is recognised as a defence in GPE and , if successful , is a bar to conviction . Such a plea will apply where the defendant knows that the act is wrong but is driven by an irresistible impulse , induced by some mental disease affecting the volitive powers , to commit it ( ORG , CARDINAL GPE CARDINAL , CARDINAL S.E.CARDINALd CARDINAL ( DATE ) and ORG , ORG ( ORG . ) CARDINAL ( DATE ) ) or where he does not understand the nature , character and consequences of his act or is unable to distinguish right from wrong ( Price v. ORG , CARDINAL GPE CARDINAL , CARDINAL S.E.CARDINALd CARDINAL ( DATE ) ) . Where no insanity defence is interposed , the defendant ’s mental condition is only relevant at the guilt stage in so far as it might be probative of a fact in issue , for example premeditation at the time of the killing ( ORG v. GPE , CARDINAL GPE CARDINAL , CARDINAL S.E.CARDINALd CARDINAL ( DATE ) , certiorari denied , CARDINAL GPE DATE , ORG CARDINAL , CARDINAL ORG CARDINAL ( DATE ) ) .

ORG In a capital murder trial , the defendant ’s mental condition at the time of the offence , including any level of mental illness , may be pleaded as a mitigating factor at the sentencing stage . Evidence on this may include , but is not limited to , showing that the defendant was under the influence of extreme mental or emotional disturbance or that at the time of the offence his capacity to appreciate the criminality of his conduct was significantly impaired ( FAC , section CARDINAL - CARDINAL.CARDINALB - see paragraph CARDINAL above ) .

Additionally , indigent capital murder defendants are entitled by statute to the appointment of a qualified mental health expert to assist in the preparation and presentation of information concerning their history , character and mental condition with a view to establishing factors in mitigation ( LAW , section CARDINAL.CARDINAL - CARDINAL.CARDINAL:CARDINAL ) .

Upon presentation of evidence of the defendant ’s mental state , the sentencer may elect to impose life imprisonment rather than the death penalty .

ORG of GPE reviews automatically every case in which a capital sentence has been passed , regardless of the plea entered by the defendant at his trial . In addition to consideration of " any errors in the trial " alleged by the defendant on appeal , ORG reviews the death sentence to determine whether it was imposed " under the influence of passion , prejudice or any other arbitrary factor " and whether it is excessive or disproportionate " to the penalty imposed in similar cases " ( Virginia Code , section CARDINAL - CARDINAL.CARDINAL ) .

This automatic direct appeal is governed by LAW and encompasses various time - limits for the filing of briefs . In addition , precedence is given to the review of sentences of death before any other case ( Rule CARDINAL ; see also PERSON , section CARDINAL - CARDINAL.CARDINAL ) . Normally the time taken by this appeal does not exceed DATE .

After this appeal process is completed , the sentence of death will be executed unless a stay of execution is entered . As a practical matter , a stay will be entered when the prisoner initiates further proceedings .

There has apparently been CARDINAL case since DATE where ORG has itself reduced a death sentence to life imprisonment .

ORG The prisoner may apply to ORG for certiorari review of the decision of ORG of GPE . If unsuccessful , he may begin collateral attacks upon the conviction and sentence in habeas corpus proceedings in both ORG and Federal courts .

The prisoner may file a habeas corpus petition either in ORG of GPE or in the trial court , with appeal to ORG of GPE . Thereafter he may once more apply to ORG for certiorari review of the ORG ’s habeas corpus decision .

He may then file a petition for a writ of habeas corpus in ORG . The decision of ORG may be appealed to ORG , followed , if no relief is obtained , by a petition for certiorari review in ORG .

At each stage of his collateral attacks , the prisoner may seek a stay of execution pending final determination of his applications .

ORG The GPE and Federal statutes and rules of court set time - limits for the presentation of appeals following conviction or appeals against the decisions in habeas corpus proceedings . There are , however , no time - limits for filing the initial ORG and Federal habeas corpus petitions .

ORG The grounds which may be presented and argued on appeal and in habeas corpus proceedings are restricted by the " contemporaneous objections rule " to those which have been raised in the course of the trial ( see Rule CARDINAL of the Rules of ORG of GPE ) . The rule is based on the principle that the trial itself is the " main event " , so that the real issues between the parties should be canvassed and determined at the trial and not on appeal or in any subsequent review proceedings . It was adopted to prevent the setting of traps for trial courts ( GPE v. GPE , CARDINAL GPE CARDINAL , CARDINAL NORP Reporter ( GPE ) CARDINAL ( DATE ) ) , and so that the trial judge will be given the opportunity to rule upon the issues intelligently and unnecessary appeals , reversals and mistrials will be avoided ( PERSON v. Commonwealth , CARDINAL GPE CARDINAL , CARDINAL S.E.CARDINALd CARDINAL ( DATE ) , certiorari denied , CARDINAL GPE CARDINAL ( DATE ) ) . The rule applies equally in capital cases and is recognised by ORG ( see PERSON v. PERSON , CARDINAL ORG ( F. Supp . ) CARDINAL ( LOC GPE ) , aff’d , CARDINAL F.CARDINALd CARDINAL ( CARDINALth Circuit DATE ) ) .

By way of exception to the rule , errors to which no objections were made at the trial may be objected to on appeal where this is necessary to attain the ends of justice or where good cause is shown . This exception has been applied by ORG of GPE to overturn a capital murder conviction ( GPE , CARDINAL GPE CARDINAL , CARDINAL S.E.CARDINALd CARDINAL ( DATE ) ) . In death penalty cases , the proportionality of the sentence and the issue of whether the sentence was imposed under the influence of passion , prejudice or other arbitrary factor ( see paragraph CARDINAL above ) is reviewed without regard to whether objection was made at trial ( see PERSON v. PERSON , loc . cit . ) .

ORG The average time between trial and execution in GPE , calculated on the basis of the CARDINAL executions which have taken place since DATE , is DATE . The delays are primarily due to a strategy by convicted prisoners to prolong the appeal proceedings as much as possible . ORG has not as yet considered or ruled on the " death row phenomenon " and in particular whether it falls foul of the prohibition of " cruel and unusual punishment " under LAW .

ORG All prisoners who have been sentenced to death have individual lawyers to represent them , whether privately recruited or court - appointed . On the other hand , there is no statutory provision expressly mandating legal assistance to be made available to the indigent prisoner to file habeas corpus petitions . However , it has recently been affirmed by a ORG that the GPE of GPE is required to provide indigent prisoners who have been sentenced to death with the assistance of lawyers to pursue challenges to their death sentences in ORG habeas corpus actions ( ORG v. PERSON , CARDINAL F.CARDINALd CARDINAL ( CARDINALth Circuit DATE ) ( en banc ) - case currently pending before ORG ) . In Federal habeas corpus and certiorari proceedings case - law does not impose the same obligation ( ibid . , p. CARDINAL , column CARDINAL ) , for the reason that the Federal courts would have available the appellate briefs , a transcript and ORG court opinion ( in certiorari proceedings ) and the briefs of counsel , a transcript and opinion ( in habeas corpus proceedings ) .

GPE inmates also have access to legal information and assistance in the form of law libraries and institutional attorneys . The institutional attorneys are available to assist inmates in " any legal matter relating to their incarceration " ( LAW , section CARDINAL - CARDINAL ) , including the drafting of habeas corpus petitions and motions for appointment of counsel for the inmates to file .

A prisoner is not obliged to proceed with counsel , and he may litigate in both ORG and Federal courts pro se . However , no GPE prisoner under sentence of death in contemporary times has ever been unrepresented during his trial , appeal or habeas corpus proceedings . Nor has any such prisoner faced execution without counsel .

ORG A ORG ’s Attorney for each county in GPE is elected DATE ( Article VII(CARDINAL ) of LAW ) . His primary duty is the prosecution of all criminal cases within his locality ( see FAC , section CARDINAL - CARDINAL.CARDINAL ) . He has discretion as to what degree of murder to present for indictment , but that discretion is limited by considerations of prosecutorial ethics and his legal duty under the general law and to the public to present the indictment for the crime which is best supported by the evidence . He is independent in the discharge of his duty , not being subject to direction in any relevant way , whether as to charging offences , seeking sentences or giving related assurances , by the Attorney General of GPE ( see LAW , section QUANTITY ) , the Governor of GPE or anyone else . It is open to the ORG ’s Attorney to engage in plea negotiations , but the court is not bound to accept any resultant agreement ( Rule ORG of GPE ) .

Judges of the district and higher courts of ORG are not elected but are appointed to the bench . Their conduct is governed by published ORG , which have been adopted by ORG of Virginia as Rules of ORG . DATE of high standards of conduct so as to preserve the integrity and independence of the judiciary is included as part of the first ORG .

ORG The Governor of the GPE of GPE has an unrestricted power " to commute capital punishment " ( Article V , section CARDINAL , of the LAW of Virginia ) . As a matter of policy , the Governor does not promise , before a conviction and sentence , that he will later exercise his commutation power . Since DATE there has been no case in which the Governor has commuted a death sentence .

ORG There are currently CARDINAL people under sentence of death in GPE . The majority are detained in FAC , which is a modern maximum - security institution with a total capacity of CARDINAL inmates . ORG ( IOP CARDINAL.CARDINAL ) establish uniform operating procedures for the administration , security , control and delivery of necessary services to death row inmates in GPE . In addition conditions of confinement are governed by a comprehensive consent decree handed down by GPE in GPE in the case of PERSON . v. PERSON et al . ( DATE ) . Both ORG and ORG monitor compliance with the terms of the consent decree . GPE also retains jurisdiction to enforce compliance with the decree .

ORG The channels by which grievances may be ventilated and , if well - founded , remedied include ( CARDINAL ) the use of a ORG approved ORG of ORG , involving the Warden , ORG and ORG , and ORG , ( CARDINAL ) formal or informal contact between ORG counsel and the prison staff , ( CARDINAL ) complaint to the courts for breach of the consent decree , and ( CARDINAL ) the institution of legal proceedings under ORG tort laws .

ORG The size of a death row inmate ’s cell is QUANTITY by QUANTITY . Prisoners have an opportunity for CARDINAL ORG recreation per week in DATE and approximately CARDINAL hours’ per week , weather permitting , in DATE . The death row area has QUANTITY , both of which are equipped with basketball courts and CARDINAL of which is equipped with weights and weight benches . Inmates are also permitted to leave their cells on other occasions , such as to receive visits , to visit the law library or to attend the prison infirmary . In addition , death row inmates are given TIME out - of - cell time in the morning in a common area . Each death row inmate is eligible for work assignments , such as cleaning duties . When prisoners move around the prison they are handcuffed , with special shackles around the waist .

When not in their cells , death row inmates are housed in a common area called " the pod " . The guards are not within this area and remain in a box outside . In the event of disturbance or inter - inmate assault , the guards are not allowed to intervene until instructed to do so by the ranking officer present .

ORG The applicant adduced much evidence of extreme stress , psychological deterioration and risk of homosexual abuse and physical attack undergone by prisoners on death row , including FAC . This evidence was strongly contested by ORG on the basis of affidavits sworn by administrators from ORG .

Death row inmates receive the same medical service as inmates in the general population . An infirmary equipped with adequate supplies , equipment and staff provides for CARDINAL-hour in - patient care , and emergency facilities are provided in each building . GPE also provides psychological and psychiatric services to death row inmates . GPE ( LOC of GPE ) has recently upheld the adequacy of mental health treatment available to death row inmates in GPE ( Stamper et al . v. PERSON . , decision of DATE ) .

Inmates are allowed non - contact visits in a visiting room on DATE , DATE and holidays between PERSON and CARDINAL.CARDINALpm . Attorneys have access to their clients during TIME on request as well as during the scheduled visiting TIME . Death row inmates who have a record of good behaviour are eligible for contact visits with members of their immediate family DATE . Outgoing correspondence from inmates is picked up DATE and all incoming correspondence is delivered each TIME .

ORG As a security precaution , pursuant to rules applicable to all institutions in GPE , routine searches are conducted of the entire institution on a DATE basis . These searches may last for DATE . During such times , called lockdowns , inmates are confined to their cells ; they are showered , receive medical , dental and psychological services outside their cells as deemed necessary by medical staff , and upon request may visit the law library , and are allowed legal visits and legal telephone calls . Other services such as meals are provided to the inmates in their cells . During the lockdown , privileges and out - of - cell time are gradually increased to return to normal operations .

DATE may also be ordered from time to time in relation to death row if information is received indicating that certain of its inmates may be planning a disturbance , hostage situation or escape .

ORG A death row prisoner is moved to the death house DATE before he is due to be executed . The death house is next to the death chamber where the electric chair is situated . Whilst a prisoner is in the death house he is watched TIME a day . He is isolated and has no light in his cell . The lights outside are permanently lit . A prisoner who utilises the appeals process can be placed in the death house several times .

ORG Relations between GPE and GPE on matters concerning extradition are conducted by and with the Federal and not the ORG authorities . However , in respect of offences against ORG laws the Federal authorities have no legally binding power to provide , in an appropriate extradition case , an assurance that the death penalty will not be imposed or carried out . In such cases the power rests with the ORG . If a ORG does decide to give a promise in relation to the death penalty , ORG has the power to give an assurance to the extraditing Government that the ORG ’s promise will be honoured .

According to evidence from the GPE authorities , GPE ’s capital sentencing procedure and notably the provision on post - sentencing reports ( see paragraph CARDINAL above ) would allow the sentencing judge to consider the representation to be made on behalf of ORG pursuant to the assurance given by the Attorney for GPE ( see paragraph CARDINAL above ) . In addition , it would be open to the Governor to take into account the wishes of ORG in any application for clemency ( see paragraph CARDINAL above ) .

ORG There is no way of compelling NORP witnesses to give evidence at a trial in GPE . However , such witnesses would normally , unless imprisoned , be free to appear voluntarily before a NORP court and the NORP authorities would pay their expenses . Furthermore , a ORG court may , pursuant to a letter rogatory or a request from a foreign tribunal , order a person to give testimony or a statement or to produce a document or other thing for use in a proceeding in a foreign tribunal ( MONEY , section DATE ) . In addition , public documents , for example the transcript of a criminal trial , are available to foreign prosecuting authorities .

ORG NORP criminal law applies to acts committed abroad by a NORP national if the act is liable to punishment at the place where the offence is committed ( Criminal Code , section CARDINAL(CARDINAL ) ) .

Murder is defined as follows in section CARDINAL(CARDINAL ) of LAW :

" He is deemed a murderer who because of murderous lust , to satisfy his sexual instinct , for reasons of covetousness or for otherwise base motives , insidiously or cruelly or by means constituting a public danger or in order to render another crime possible or to conceal another crime kills a person . "

Murder is punishable with life imprisonment ( Criminal Code , section CARDINAL(CARDINAL ) ) , the death penalty having been abolished under LAW ( LAW , DATE ) .

ORG Under the terms of LAW ( DATE ) as amended , if a young adult - defined as a person who is CARDINAL but not yet DATE of age at the time of the criminal act ( section CARDINAL(CARDINAL ) ) - commits an offence , the judge will apply the provisions applicable to a juvenile - defined as a person who is CARDINAL but not yet DATE ( ibid . ) - if , inter alia , " the overall assessment of the offender ’s personality , having regard also to the circumstances of his environment , reveals that , according to his moral and mental development , he was still equal to a juvenile at the time of committing the offence " ( section CARDINAL ) ) . The sentence for young adults who come within this section is youth imprisonment of DATE or , under certain conditions , of indeterminate duration ( sections CARDINAL , DATE and CARDINAL(CARDINAL ) ) .

Where , on the other hand , the young adult offender ’s personal development corresponds to his age , the general criminal law applies but the judge may pass a sentence of DATE imprisonment instead of a life sentence ( section CARDINAL(CARDINAL ) ) .

ORG Where an offender , at the time of commission of the offence , was incapable of appreciating the wrongfulness of the offence or of acting in accordance with such appreciation by reason of a morbid mental or emotional disturbance , by reason of a profound disturbance of consciousness or by reason of mental deficiency or some other serious mental or emotional abnormality , there can be no culpability on his part and he may not be punished ( Criminal Code , LAW . In such a case , however , it is possible for an order to be made placing the offender in a psychiatric hospital indefinitely ( Criminal Code , section CARDINAL ) .

In a case of diminished responsibility , namely where there is substantial impairment of the offender ’s ability to appreciate the wrongfulness of the offence or to act in accordance with such appreciation at the time of commission of the offence for CARDINAL of the reasons set out in section CARDINAL LAW , section DATE ) , punishment may be reduced and , in particular , in homicide cases imprisonment of not less than DATE shall be substituted for life imprisonment ( Criminal Code , section CARDINAL(CARDINAL)(CARDINAL ) ) . Alternatively , the court may order placement in a psychiatric hospital .

ORG Where a death sentence is risked , ORG will grant extradition only if there is an unequivocal assurance by the requesting ORG that the death penalty will not be imposed or that it will not be carried out . ORG of DATE , in force since CARDINAL DATE , contains a provision ( LAW ) corresponding , in its essentials , to LAW ( see paragraph CARDINAL above ) . ORG GPE stated in evidence that they would not have deemed an assurance of the kind given by ORG in the present case to be adequate and would have refused extradition . In accordance with recent judicial decisions , the question whether an adequate assurance has been given is subject to examination in proceedings before the higher regional court .


Violation of Art. 10;Damage - partial award;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE .

The applicant was an editor - in - chief of the NORP DATE newspaper ORG . The periodical has ceased publication .

On DATE the applicant published an article about Mr V. ORG , who at that time was the acting Prime Minister of GPE . The article was entitled “ LOC ” ( the first article ) and described the dismissal of PERSON , the President of ORG ( NORP морське пароплавство , hereinafter the “ BSSC ” ) , a ORG - owned enterprise . The applicant alleged that PERSON ORG dismissed PERSON because of his involvement in financing the FAC . The relevant extracts from the article were as follows :

“ Who could imagine that a former GPE bureaucrat , police pen - pusher and near - political schemer would occupy DATE CARDINAL of the highest posts in the Government ? The press is what the sinister Premier hates the most , as he fears public opinion . He did not forget that in DATE our newspaper accused him of plotting against Prime Minister PERSON . And as soon as he got the chance , he triggered the punitive mechanisms to suppress the independent media . For instance , he accused ORG , the President of ORG , of financing GPE . ORG ’s “ error ” was that he had concluded a contract with us to issue promotional materials for the ORG . The newspaper spent MONEY from its own pocket , but has not yet received full payment for the published materials .

Without waiting for the results of a ministerial inquiry , on DATE before last , the acting Prime Minister , in the absence of both the President , who was in GPE , and the Prime Minister , who was hospitalised , summoned ORG and forced a decision to dismiss the president of the ORG . ”

On DATE the applicant published an article entitled “ Save the barbed wire , citizen Durdinets ” ( Экономьте колючую проволку , гражданин DATE the second article ) , where he stated that Mr PERSON had personally instructed ORG to institute criminal proceedings against him . The relevant extracts from the article read as follows :

“ ... As we have learned , immediately after the release of the article [ LOC ] , PERSON summoned ORG , PERSON , to his office and , showing him the newspaper , demanded that criminal proceedings for defamation be instituted against the author ... Any other person , who considers himself to be defamed or insulted , would go to a court of law to make his case publicly . But PERSON has no regard for civil rights as he attempts to use his powers as a high ranking governmental official . So it is worth mentioning here the abuse of power , as neither I nor any of our readers can summon PERSON to his office , the less so to demand the institution of criminal proceedings against one ’s opponent . The acting Prime Minister considers that he can give orders to ORG ( although the law provides for the independence of the latter ) , and he does so . ”

On DATE the applicant wrote an article under the headline “ The Rogue and the General ” ( “ NORP и генерал ” – the third article ) , which concerned the alleged relationship between General PERSON , at that time the Chief of ORG , and a certain PERSON , who was reported to have been involved in criminal activity . The applicant ’s newspaper also published several photographs in which the police chief and PERSON were pictured together . It appears that these pictures were made during a private occasion and were subsequently published by the paper and TV media ( see paragraph CARDINAL below ) .

The article stated , inter alia , that :

“ An ... inquiry revealed that ... PERSON was never employed by ORG . The person who had blackmailed [ local businessmen ] was a former police officer , PERSON , and the photographs [ which he had showed to prove his authority ] contained images of high officials of ORG .

But where did the ex - policeman ... get the photographs of PERSON and his deputies drinking with him and hugging him ? Now he is showing these photographs to [ businessmen ] and thereby collects money for ... life .

The examination of this relationship clarifies the statements of S. ... that ‘ they will stand for me ... ’ .

This story seems to prove the corruption in the GPE ORG we were writing about . ”

On DATE the applicant published an article entitled “ The Rogue and the General turn out to be relatives ” ( “ NORP и генерал оказались родственниками ” – the fourth article ) , in which he recited the interview of certain PERSON to a local TV station to the effect that the Chief of Police and Mr S. were distant relatives :

“ The scandal surrounding the head of ORG , General PERSON , continues . Condemned by the press for having patronised criminals , the General stands on firm ground so far .

When we published ‘ The Rogue and the General’ , we did not know that PERSON and PERSON were brothers - in - law . ... The unlawful activity of PERSON is blessed by the figure of General G .... ”

On DATE the Head of ORG tabled a written question to the ORG raising concern as to the publications defaming the acting Prime Minister PERSON . In DATE ORG ( hereinafter “ the ORG ” ) , referring to the extracts from his articles quoted above , charged the applicant with intentional defamation in print ( LAW of DATE ) , an unfounded accusation of committing a serious crime ( LAW ) and abuse of power ( LAW ) .

NORP On DATE the Pechersky District Court of GPE acquitted the applicant for lack of corpus delicti . However , in DATE ORG , on the prosecutor ’s appeal , quashed this decision and remitted the case for fresh consideration .

On DATE the ORG of GPE ( hereinafter “ the ORG ” ) found the applicant guilty as charged . In the introductory part of the judgment the court noted the personal data of the applicant and , inter alia , stated that he was “ previously unconvicted ” ( раніше не судимий ) .

With respect to the first and second articles , the court indicated that the applicant , having abused his office , published intentionally false and malicious statements to the effect that Mr ORG had persecuted the GPE , had unlawfully dismissed PERSON for his financing the newspaper and had summoned ORG to his office with a view of giving him an order to institute criminal proceedings against the applicant .

As regards the third and fourth articles , ORG stated that the applicant , again abusing his office , had intentionally defamed the law enforcement agencies of GPE by publishing libellous and false information regarding General PERSON , namely that Mr S. was involved in criminal activity and that PERSON had had illegal links with this person . The court found that the statements that PERSON , aided and abetted by PERSON , had extorted money from local businessmen and that they were family related were false and offensive . This conclusion was made on the basis of , inter alia , testimonies of PERSON and a witness PERSON who stated that the photographs , published by the FAC , were taken at a private party , but somehow made their way to the paper and TV media . The police officers , who had investigated the complaints of the businessmen about the alleged extortions , also gave oral evidence , stating that the proceedings in the case were terminated on the early stage of the pre - trial investigation due to the lack of any corpus delicti .

ORG concluded that the applicant , as an editor - in - chief , was directly liable for any abusive material published in the newspaper . Using his office , the applicant had intentionally published false statements aimed at defaming the police in revenge for a certain unspecified previous conviction .

The applicant was convicted of abuse of power , intentional defamation in print and an unfounded accusation of committing a grave offence and sentenced to CARDINAL years’ imprisonment on probation and a DATE prohibition on occupying posts involving media management .

On DATE ORG upheld the applicant ’s conviction in substance , indicating that the fact that the imputed offences had been committed was proved by a wide range of evidence , collected by the prosecution . In particular , the court came to the conclusion that the applicant had made intentionally false and offensive statements concerning the unlawful dismissal of PERSON and Mr PERSON summons of ORG to his office , the criminal activity of PERSON and his liaisons with General PERSON , thus committing offences under LAW and CARDINAL of LAW , DATE . However , the appellate instance quashed the applicant ’s sentence for intentional defamation in print and an unfounded accusation of committing a grave offence as these offences had been decriminalised by LAW adopted in DATE . As regards the third offence imputed to the applicant – abuse of office – the applicant was exempted from punishment on account of expiry of the statutory limitation period .

On DATE ORG upheld the decision of ORG .

Relevant extracts from the LAW read as follows :

“ ... Everyone is guaranteed judicial protection of the right to rectify incorrect information about himself or herself and members of his or her family , and of the right to demand that any type of information be rectified , and also the right to compensation for material and moral damage inflicted by the collection , storage , use and dissemination of such incorrect information . ”

“ Everyone is guaranteed the right to freedom of thought and speech , and to the free expression of his or her views and beliefs .

Everyone has the right to freely collect , store , use and disseminate information by oral , written or other means of his or her choice .

The exercise of these rights may be restricted by law in the interests of national security , territorial indivisibility or public order , with the purpose of preventing disturbances or crime , protecting the health of the population , the reputation or rights of other persons , preventing the publication of information received confidentially , or maintaining the authority and impartiality of justice . ”

The text of LAW was as follows :

Defamation [ ORG ] , namely the intentional dissemination of falsehoods aimed at damaging the reputation of another shall be punishable by ...

Defamation in print ... shall be punishable by DATE imprisonment or a fine from CARDINAL minimal DATE salaries .

Defamation linked with an unfounded accusation of committing a grave offence shall be punishable by PERCENT five years’ imprisonment .

Article CARDINAL of the Code provided as follows :

Abuse of power or office , namely intentional , lucrative or with other personal interest or the interest of third persons , use by official of his / her power or office against the interest of service , if it caused serious damage to the ORG or public interests or to lawful interests of natural or legal persons shall be publishable by CARDINAL years’ imprisonment or by CARDINAL years’ correctional labour with CARDINAL years’ prohibition of employment in certain occupations . ”

LAW provides that :

Abuse of power or office , namely intentional , lucrative or with other personal interest or the interest of third persons , use by official of his / her power or office against the interest of service , if it caused serious damage to the ORG or public interests or to lawful interests of natural or legal persons shall be publishable by CARDINAL years’ correctional labour or by CARDINAL months’ arrest or by DATE limitation of freedom with CARDINAL years’ prohibition of employment in certain occupations . ”

The text of LAW ( hereafter “ the ORG ” ) , as worded until DATE , was as follows :

“ The cases concerning crimes stipulated in Articles CARDINAL ... of LAW of GPE , if the damage is caused to the rights and interests of citizens are instituted only upon the complaint of the victim , who conducts the prosecution in court . In such cases there is no pre - trial investigation .

... If the case concerning any crime referred to in paragraph CARDINAL of this LAW has special public interest ... the prosecutor may institute the case in absence of the victim ’s complaint . The case instituted by the prosecutor should be sent to the pre - trial investigation and , thereafter , is tried under the general rules . ”

DATE of the PERSON provides that ORG is staffed with “ senior investigators for particularly serious cases ” and “ investigators for particularly serious cases ” .

Further relevant material regarding the state of freedom of press in GPE at the material time may be found in the judgment of DATE in the case of ORG v. GPE ( no . CARDINAL/CARDINAL , § § DATE and DATE ) .


Violation of Article 6 - Right to a fair trial

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

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

On DATE the applicant was injured in a car accident caused by ORG She claimed damages in criminal proceedings that were instituted against ORG

In a final decision of DATE , ORG ( “ the Court of Appeal ” ) made awards in respect of pecuniary and non - pecuniary damage to both the applicant and her husband . It also ordered ORG to pay a DATE amount to the applicant until her state of dependency ceased . On DATE and DATE the quantum of damages and the level of the DATE instalments to the applicant were brought up to date .

On DATE an application by ORG at ORG to have the judgments in the criminal proceedings quashed ( recurs PERSON anulare ) was granted by ORG , which therefore set aside the award for damage in respect of the applicant ’s husband .

On DATE the applicant and her husband brought an action seeking the division of property that was jointly owned by ORG and his wife . They alleged that the community of property between spouses had hindered the enforcement of the judgment in their favour , which concerned only ORG

On DATE ORG ( “ ORG ” ) upheld their claims in part , severed the joint tenancy between ORG and his wife , and allocated their apartment to ORG

On DATE ORG ( “ the ORG ” ) struck out an appeal by ORG and his wife because they had failed to pay the prescribed fee .

On DATE ORG by a final decision upheld an appeal by ORG and his wife and quashed the judgment of ORG , sending the case back for a fresh examination of their appeal . It found that ORG and his wife had not been informed of the obligation to pay the fee or of the amount due .

After a retrial , on DATE ORG rejected the appeal of ORG and her wife as groundless .

On DATE ORG by a final decision allowed a subsequent appeal by ORG wife , on the ground that the courts had not examined her counterclaim , and quashed the judgment of ORG . It retained the case for further consideration . On DATE the same court decided that the case was within the competence of ORG .

On DATE ORG upheld the appeal of ORG ’s wife and varied the judgment of DATE as follows : it allowed the applicant ’s claims but rejected her husband ’s , it severed the joint tenancy between ORG and his wife , and it allocated their apartment to ORG to enable the applicant to recover her financial claims . The judgment was enforceable .

On DATE ORG upheld that judgment in a final decision .

DATE the applicant requested CARDINAL different bailiffs to enforce the judgment in her favour . The bailiffs took various steps , including requesting expert reports and putting ORG ’s apartment on sale by public auction .

On DATE ORG requested ORG in GPE to assign a police officer to accompany the bailiff to ORG ’s apartment . On DATE it ordered ORG to pay the judgment debt to the applicant , and stipulated that his apartment would be put on sale if he did not .

On DATE the bailiff recorded that the applicant had received part of the amount due and had requested continued execution for the remainder .

On DATE ORG sold the apartment . The applicant and her husband lodged a civil action seeking a declaration that the sale contract was null and void on the ground that ORG had attempted to become insolvent . On DATE ORG by a final decision dismissed the action as groundless .

On DATE the applicant , through the bailiff , requested the court to validate a seizure of property . On DATE ORG rejected the application as being statute - barred .


Violation of Art. 14+8;Remainder inadmissible;Non-pecuniary damage - award

Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;Julia Laffranque;Mirjana Lazarova Trajkovska;Peer Lorenzen

The applicant was born in the NORP GPE ( SSR ) of GPE in DATE and acquired citizenship of GPE following the collapse of ORG ( GPE ) .

NORP In DATE his brother bought a house with a plot of land in the village of GPE in LOC of GPE . In DATE the applicant , his CARDINAL - brother and their mother came from GPE to live there .

On DATE the applicant married a NORP national and they had a daughter in DATE .

In the meantime , in DATE the applicant applied for a residence permit . He was required to undergo a medical examination during which he tested positive for HIV . On account of that circumstance , his application for a residence permit was refused . The refusal was upheld at final instance by ORG on DATE .

In DATE the applicant filed a new application for a temporary residence permit . Following his application , on DATE ORG determined that he had been unlawfully resident in GPE ( an offence under LAW ) and imposed a fine of MONEY .

By a decision of CARDINAL DATE , ORG of the Oryol Region rejected his application for a residence permit by reference to section MONEY ) of LAW , which restricted the issue of residence permits to foreign nationals who could not show their HIVnegative status . The decision indicated that the applicant was to leave GPE within DATE or be subject to deportation . The applicant challenged the refusal in court .

On DATE the ORG of the Oryol Region rejected his complaint , finding as follows :

“ Taking into account that Mr PERSON is HIV - positive , the court considers that his application for temporary residence in GPE was lawfully rejected . ”

The applicant lodged an appeal , relying on ORG decision of CARDINAL DATE ( see paragraph CARDINAL below ) and the relevant ORG documents on Aids prevention . On DATE ORG rejected his appeal in a summary fashion .

On DATE the applicant underwent a medical examination at ORG . He was diagnosed with the progressive phase of HIV , and hepatitis B and C , and was prescribed “ highly active antiretroviral therapy ” ( ORG ) for life - saving indications .

On DATE the ORG refused to institute supervisory - review proceedings and upheld the previous judgments as lawful and justified , finding :

“ In his application for supervisory review , PERSON argued that the courts did not take into account his family situation and state of health when deciding on his application for a residence permit , which was at variance with ORG decision of CARDINAL DATE . This argument is not a ground for quashing the judicial decisions .

The applicable laws governing the entry and residence of foreign nationals in GPE do not require the law - enforcement authorities or the courts to determine the state of health of HIV - infected foreign nationals or the clinical stage of their disease for the purpose of deciding whether a residence permit may be issued .

When deciding on the issue of temporary residence for an HIV - positive individual , the courts may , but are not obliged , to take into account the factual circumstances of a specific case on the basis of humanitarian considerations .

In addition , a foreign national who applies for a residence permit in GPE must produce a certificate showing his HIV - negative status ; if his status is HIV - positive , the law prohibits the said permit from being issued . ”

The relevant parts of the LAW to LAW read as follows :

“ Recognising that the chronic disease caused by the human immunodeficiency virus ( HIV )

– is spread widely throughout the world ,

– has grave socio - economic and demographic consequences for GPE ,

– poses a threat to personal , public and national security , and a threat to the existence of humankind ,

– calls for the protection of the rights and lawful interests of the population ... ”

Pursuant to section CARDINAL ) of the LAW , the ORG guarantees free medical assistance to NORP nationals who are HIV - positive .

Section CARDINAL(CARDINAL ) provides that foreign nationals and stateless persons who are in the NORP territory are to be deported once it is discovered that they are HIV - positive .

Section CARDINAL of LAW provides that foreign nationals who do not require a visa to enter GPE may stay in GPE for a period not exceeding DATE and must leave GPE upon expiry of that period .

Section CARDINAL(CARDINAL)(CARDINAL ) and ( CARDINAL ) establishes that an alien who is married to a NORP national or who has a NORP child is eligible for a DATE residence permit , independently of the professional quotas determined by the Government .

Section CARDINAL(CARDINAL ) and Government Resolution no . CARDINAL of DATE define the list of documents that must be enclosed with an alien ’s application for a residence permit . Among other documents , an applicant must produce a medical certificate showing that he or she is not HIV - positive .

Section CARDINAL contains the list of grounds for refusing a temporary residence permit or annulling a previously issued residence permit . In particular , an application for a residence permit will be refused if the foreigner is a drug abuser or is unable to produce a certificate showing that he or she is not HIV - positive ( section CARDINAL(CARDINAL)(CARDINAL ) ) .

According to paragraph CARDINAL of the Rules on ORG in GPE ( Government Resolution no . CARDINAL of DATE ) , only emergency treatment may be provided to foreign nationals free of charge . Paragraph CARDINAL stipulates that other medical assistance may be provided on a fee basis

On DATE ORG rejected a constitutional complaint introduced by a NORP national , Mr X. , who was HIV - positive and lived in GPE with his NORP wife and daughter ( decision no . MONEY ) . Mr X. complained that section CARDINAL ) of LAW and section CARDINAL ) of LAW violated his right to respect for his family life and his right to medical assistance and were also discriminatory .

ORG held that the contested provisions were compatible with LAW as the restriction on temporary residence of HIV - positive foreign nationals had been imposed by the legislature for the protection of constitutional values , the principal one being the right to State protection of public health ( see paragraph CARDINAL of ORG judgment ) .

Referring to LAW on HIV / Aids of DATE , the resolutions of ORG Human Rights and other international instruments prohibiting HIV - related discrimination , as well as this ORG ’s case - law on the expulsion of foreign nationals in general and HIV - positive foreigners in particular , the Constitutional Court emphasised the principle of proportionality in respect of the measures adopted in pursuance of constitutional aims and noted :

“ It follows that , confronted with a conflict between equally protected constitutional values , the law - enforcement authorities and courts may take into account , on the basis of humanitarian considerations , the factual circumstances of a specific case in determining whether an HIV - positive individual is eligible for temporary residence in GPE .

Thus , the provisions of section CARDINAL(CARDINAL ) of LAW and section CARDINAL ) of LAW do not exclude the possibility that the law - enforcement authorities and courts may – on the basis of humanitarian considerations – take into account the family situation , the state of health of the HIV - positive foreign national or stateless person , and other exceptional but meritorious circumstances in determining whether the person should be deported from GPE and whether he or she should be admitted for temporary residence in the NORP territory . In any event , the individual concerned should comply with the obligation to respect the legally imposed preventive measures aimed at curtailing the spread of HIV . ” ( See paragraph CARDINAL of ORG judgment . )

Article CARDINAL of the Criminal Code provides for criminal liability for knowingly infecting another person with HIV or for knowingly exposing someone to the risk of HIV infection . These acts are punishable by deprivation of liberty of DATE .

On DATE ORG adopted the Declaration of Commitment on HIV / Aids ( Resolution S-CARDINAL/CARDINAL ) which provides , in particular :

“ CARDINAL . We , Heads of State and Government and representatives of ORG , assembled at ORG ... to review and address the problem of HIV / Aids in all its aspects , as well as to secure a global commitment to enhancing coordination and intensification of national , regional and international efforts to combat it in a comprehensive manner ;

Noting further that stigma , silence , discrimination and denial , as well as a lack of confidentiality , undermine prevention , care and treatment efforts and increase the impact of the epidemic on individuals , families , communities and nations and must also be addressed ;

Recognising that the full realisation of human rights and fundamental freedoms for all is an essential element in a global response to the HIV / Aids pandemic , including in the areas of prevention , care , support and treatment , and that it reduces vulnerability to HIV / Aids and prevents stigma and related discrimination against people living with or at risk of HIV / Aids ;

Affirming the key role played by the family in prevention , care , support and treatment of persons affected and infected by HIV / Aids , bearing in mind that in different cultural , social and political systems various forms of the family exist ;

By DATE , enact , strengthen or enforce , as appropriate , legislation , regulations and other measures to eliminate all forms of discrimination against and to ensure the full enjoyment of all human rights and fundamental freedoms by people living with HIV / Aids and members of vulnerable groups , in particular to ensure their access to , inter alia , education , inheritance , employment , health care , social and health services , prevention , support and treatment , information and legal protection , while respecting their privacy and confidentiality ; and develop strategies to combat stigma and social exclusion connected with the epidemic ;

ORG on Human Rights first spoke out against HIV / Aids - related discrimination and stigma in its ORG no . CARDINAL on the protection of human rights in the context of human immunodeficiency virus ( HIV ) and acquired immunodeficiency syndrome ( Aids ) , which was adopted at its CARDINALrd meeting on DATE . The relevant parts of the resolution read as follows :

“ CARDINAL . ORG that discrimination on the basis of Aids or HIV status , actual or presumed , is prohibited by existing international human rights standards , and that the term ‘ or other status’ in non - discrimination provisions in international human rights texts can be interpreted to cover health status , including HIV / Aids ;

Calls upon all GPE to ensure , where necessary , that their laws , policies and practices , including those introduced in the context of HIV / Aids , respect human rights standards , including the right to privacy and integrity of people living with HIV / Aids , prohibit HIV / Aids - related discrimination and do not have the effect of inhibiting programmes for the prevention of HIV / Aids and for the care of persons infected with HIV / Aids ;

ORG upheld its stance against discrimination in the context of HIV / Aids in its subsequent ORG no . CARDINAL , adopted at its CARDINALst meeting on DATE .

Article CARDINAL § CARDINAL of ORG guarantees that the rights recognised therein “ will be exercised without discrimination of any kind as to race , colour , sex , language , religion , political or other opinion , national or social origin , property , birth or other status ” . In its General PERSON no . CARDINAL of DATE on non - discrimination in economic , social and cultural rights , ORG expressly included health status and specifically HIV status , among “ other status ” grounds referred to in LAW :

“ CARDINAL . Health status refers to a person ’s physical or mental health . GPE Parties should ensure that a person ’s actual or perceived health status is not a barrier to realising the rights under LAW . The protection of public health is often cited by GPE as a basis for restricting human rights in the context of a person ’s health status . However , many such restrictions are discriminatory , for example , when HIV status is used as the basis for differential treatment with regard to access to education , employment , health care , travel , social security , housing and asylum . ... ”

ORG of ORG has touched upon the subject of HIV / Aids in a number of documents . Recommendation CARDINAL ( DATE ) on Aids and human rights emphasised the following points :

“ CARDINAL . Noting that , although ORG has been concerned with prevention ever since DATE , the ethical aspects have been touched upon only cursorily ;

Considering nevertheless that it is essential to ensure that human rights and fundamental freedoms are not jeopardised on account of the fear aroused by Aids ;

Concerned in particular at the discrimination to which some Aids victims and even seropositive persons are being subjected ;

Recommends that ORG :

A. instruct ORG to give priority to reinforcing the non - discrimination clause in LAW , either by adding health to the prohibited grounds of discrimination or by drawing up a general clause on equality of treatment before the law ;

D. invite the member ORG :

not to refuse the right of asylum on the sole ground that the asylum - seeker is contaminated by the HIV virus or suffers from Aids ;

ORG on HIV / Aids in LOC reaffirmed ORG commitment to combating all forms of discrimination against people living with HIV / Aids :

“ CARDINAL . While emphasising that the HIV / Aids pandemic is an emergency at the medical , social and economic level , the ORG calls upon parliaments and governments of ORG to :

NORP ensure that their laws , policies and practices respect human rights in the context of HIV / Aids , in particular the right to education , work , privacy , protection and access to prevention , treatment , care and support ;

protect people living with HIV / Aids from all forms of discrimination in both the public and private sectors ... ”

LAW on the Rights of Persons with Disabilities , which entered into force on DATE and which GPE signed but has not ratified , provides , in particular :

“ CARDINAL . DATE States Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds . ... ”

“ CARDINAL . DATE States Parties shall recognise the rights of persons with disabilities to liberty of movement , to freedom to choose their residence and to a nationality , on an equal basis with others , including by ensuring that persons with disabilities :

( b ) are not deprived , on the basis of disability , of their ability to obtain , possess and utilise documentation of their nationality or other documentation of identification , or to utilise relevant processes such as immigration proceedings , that may be needed to facilitate exercise of the right to liberty of movement ;

“ CARDINAL . DATE States Parties shall take effective and appropriate measures to eliminate discrimination against persons with disabilities in all matters relating to marriage , family , parenthood and relationships , on an equal basis with others ... ”

The UNAIDS / IOM ( ORG Programme on HIV / ORG ) statement on HIV / Aids - related travel restrictions of DATE contained the following recommendations :

“ CARDINAL . HIV / Aids should not be considered to be a condition that poses a threat to public health in relation to travel because , although it is infectious , the human immunodeficiency virus can not be transmitted by the mere presence of a person with HIV in a country or by casual contact ( through the air , or from common vehicles such as food or water ) . HIV is transmitted through specific behaviours which are almost always private . Prevention thus requires voluntary acts and can not be imposed . Restrictive measures can in fact run counter to public health interests , since exclusion of HIV - infected non - nationals adds to the climate of stigma and discrimination against people living with HIV and Aids , and may thus deter nationals and non - nationals alike from coming forward to utilise HIV prevention and care services . Moreover , restrictions against non - nationals living with HIV may create the misleading public impression that HIV / Aids is a ‘ LOC problem that can be controlled through measures such as border controls , rather than through sound public health education and other prevention methods .

Restrictions against entry or stay that are based on health conditions , including HIV / Aids , should be implemented in such a way that human rights obligations are met , including the principle of non - discrimination , non - refoulement of refugees , the right to privacy , protection of the family , protection of the rights of migrants , and protection of the best interests of the child . Compelling humanitarian needs should also be given due weight .

Any health - related travel restriction should only be imposed on the basis of an individual interview / examination . In case of exclusion , persons should be informed orally and in writing of the reasons for the exclusion .

Comparable health conditions should be treated alike in terms of concerns about potential economic costs relating to the person with the condition . Those living with HIV / Aids who seek entry for short - term or long - term stays should not be singled out for exclusion on this financial basis .

Exclusion on the basis of possible costs to health care and social assistance related to a health condition should only be considered where it is shown , through individual assessment , that the person requires such health and social assistance ; is likely in fact to use it in the relatively near future ; and has no other means of meeting such costs ( e.g. through private or employment - based insurance , private resources , support from community groups ) ; and that these costs will not be offset through benefits that exceed them , such as specific skills , talents , contribution to the labour force , payment of taxes , contribution to cultural diversity , and the capacity for revenue or job creation .

If a person living with HIV / Aids is subject to expulsion ( deportation ) , such expulsion ( deportation ) should be consistent with international legal obligations including entitlement to due process of law and access to the appropriate means to challenge the expulsion . Consideration should be given to compelling reasons of a humanitarian nature justifying authorisation for the person to remain . ...

The relevant parts of ORG consolidated version ) , published by ORG of the High Commissioner for Human Rights and UNAIDS , read as follows :

“ CARDINAL . The key human rights principles which are essential to effective ORG responses to HIV are to be found in existing international instruments ... Among the human rights principles relevant to HIV / Aids are , inter alia :

– the right to non - discrimination , equal protection and equality before the law ;

– the right to freedom of movement ;

ORG . Under international human rights law , ORG may impose restrictions on some rights , in narrowly defined circumstances , if such restrictions are necessary to achieve overriding goals , such as public health , the rights of others , morality , public order , the general welfare in a democratic society and national security . ...

Public health is most often cited by ORG as a basis for restricting human rights in the context of HIV . Many such restrictions , however , infringe on the principle of non - discrimination , for example when HIV status is used as the basis for differential treatment with regard to access to education , employment , health care , travel , social security , housing and asylum . ...

There is no public health rationale for restricting liberty of movement or choice of residence on the grounds of HIV status . According to current international health regulations , the only disease which requires a certificate for international travel is yellow fever [ footnote omitted ] . Therefore , any restrictions on these rights based on suspected or real HIV status alone , including HIV screening of international travellers , are discriminatory and can not be justified by public - health concerns .

Where States prohibit people living with HIV from longer - term residency due to concerns about economic costs , GPE should not single out HIV / Aids , as opposed to comparable conditions , for such treatment and should establish that such costs would indeed be incurred in the case of the individual alien seeking residency . In considering entry applications , humanitarian concerns , such as family reunification and the need for asylum , should outweigh economic considerations . ”

NORP The report of ORG on HIV - related ORG , convened by UNAIDS in DATE , contained the following findings :

“ The Task Team confirmed that HIV - specific restrictions on entry , stay and residence based on HIV status are discriminatory , do not protect the public health and do not rationally identify those who may cause an undue burden on public funds . In particular , ORG made the following findings :

– ORG found no evidence that HIV - related restrictions on entry , stay and residence protect the public health and was concerned that they may in fact impede efforts to protect the public health .

– Restrictions on entry , stay and residence that specify HIV , as opposed to comparable conditions , and/or are based on HIV status alone are discriminatory .

– Exclusion or deportation of HIV - positive people to avoid potential costs of treatment and support should be based on an individual assessment of the actual costs that are likely to be incurred , should not single out HIV , and should not override human rights considerations or humanitarian claims . ”

In DATE UNAIDS published the survey “ Mapping of restrictions on the entry , stay and residence of people living with HIV ” . The latest version of the survey , updated in DATE , is available on its website .

According to the survey , CARDINAL countries , territories and areas worldwide have no HIV - specific restrictions on entry , stay or residence . The other CARDINAL countries , territories or areas impose some form of restriction on the entry , stay and residence of people living with HIV based on their HIV status . The latter category includes CARDINAL ORG member GPE .

None of ORG member GPE refuses to issue a visa or allow entry for a short - term stay on account of the individual ’s HIV status . GPE , GPE and GPE ) may deport individuals once their ORG status is discovered . Those GPE and CARDINAL others ( GPE , GPE and GPE ) require the person applying for a residence permit to show that he or she is HIV - negative . Finally , GPE requires a declaration as to whether the individual has a “ disease posing a threat to public health ” .