CASE OF POWELL AND RAYNER v. THE UNITED KINGDOM

ORG The first applicant , PERSON , is a director of a mining concern and lives with his family at GPE , GPE , in a house which he bought in DATE . The property is situated QUANTITY from FAC , GPE . Since DATE it has lain under a flight departure route from FAC in operation for CARDINAL of the year , usually during DATE . Following objections to the level of noise disturbance , the route was divided into CARDINAL sections in DATE . At least until DATE Mr PERSON ’s home fell just within the CARDINAL Noise and Number Index ( ORG ) contour , which is considered to be a low noise - annoyance rating ( see paragraph CARDINAL below ) . CARDINAL other people live within this contour area . Since DATE the house has been within a lower ORG contour .

ORG The second applicant , PERSON , farms together with other members of his family lands situated in PERSON , GPE , which have been in his family for some generations . He lives in a bungalow at ORG acquired by his family as part of its land - holding in DATE . The applicant took up residence there in DATE on the occasion of his marriage . The bungalow is situated CARDINAL and a third QUANTITY west of , and in a direct line with , FAC ’s northern runway . It is regularly overflown during DATE and to a limited extent at TIME . It falls within a CARDINAL ORG contour , which is regarded as an area of high noise - annoyance for residents . According to the statistics supplied by the Government , the average height of arriving aircraft over Mr PERSON ’s property is QUANTITY and the average height of departing aircraft varies between CARDINAL and QUANTITY according to aircraft type . CARDINAL people around FAC experience a noise exposure equal to or greater than that suffered by Mr PERSON and his family .

ORG The ORG is a long - term average measure of noise exposure which is used in GPE to assess the disturbance from aircraft noise to communities near airports . It takes account of CARDINAL features of the noise , namely the average noisiness and the number of aircraft heard during DATE . The flights which determine the ORG at any point on the ground are those which take place TIME Greenwich Mean Time during DATE to DATE and which make a peak noise level exceeding CARDINAL perceived noise decibels ( ORG ) at that point . The purpose of the ORG is to represent community reaction to the level of aircraft noise so as to guide planning , development and noise control . Thus , the ORG is amongst the criteria applied in planning controls , so that land within the CARDINAL to CARDINAL NNI contours may be used for residential development , planning permission not being refused on noise grounds alone . However , land within DATE ORG contours ( moderate noise - annoyance zone ) will not be given over to development , except for the infilling of existing built - up areas on condition that appropriate sound insulation is used . No development whatsoever is permitted within the CARDINAL ORG and over contours ( high noise - annoyance zone ) . It is to be noted that the ORG calculation reflects a logarithmic element in the ORG scale , which has the result that every increase of CARDINAL in that scale represents approximately a doubling of the loudness .

FAC was formally opened in DATE . In DATE the first scheduled air services using jet airliners were inaugurated . CARDINAL terminals were opened in DATE , DATE and DATE . After a public inquiry which lasted for DATE and heard CARDINAL witnesses , a fourth terminal was opened in DATE . As regards future expansion , the ORG ’s policy , as stated in the DATE " Airports Policy " White Paper , is that they are " not prepared to make any commitments at this stage on the question of a fifth terminal at FAC but will keep the matter under review " ( Command Paper , ORG , paragraph CARDINAL ) .

ORG FAC is CARDINAL of the busiest international airports in the world . The FAC handled CARDINAL passengers in DATE , CARDINAL passengers during DATE , CARDINAL passengers on international routes and CARDINAL passengers on domestic routes in DATE , and CARDINAL passengers on international routes and CARDINAL passengers on domestic routes in DATE . There has been a corresponding increase in aircraft movements over DATE . PERCENT of passengers use the airport as an interchange point . It is currently used by CARDINAL airlines and serves CARDINAL destinations worldwide . It is GPE leading port in terms of visible trade and in DATE handled cargo valued at MONEY . FAC contributes MONEY to GPE balance of payments , provides direct employment for CARDINAL persons , in addition to the substantial number of workers employed locally in servicing the industry , and pays MONEY in local rates and rents .

Compensation for the loss of value of houses and land as a result of airport noise is provided for by LAW DATE . However , such compensation is payable only in respect of new or altered public works first brought into use after DATE . Intensification of an existing use is , for reasons of principle and practice , not compensatable . PERSON and PERSON would have no entitlement to compensation under this LAW , there being no relevant new or altered development in the case of FAC .

ORG , being a public statutory body , did not have power to acquire property near an airport unless it could show that the acquisition of the property was necessary for the proper performance of its function . In DATE , after the completion of the fourth terminal ( see paragraph CARDINAL above ) and privatisation of the ORG , the successor company to the ORG announced a scheme for the purchase of noise - blighted properties close to FAC . This scheme provided for purchase by the company of property severely affected by aircraft noise at FAC ( within the CARDINAL ORG contour ) where the owner had acquired the property before DATE and wished to sell but could not do so except at a deflated price . Claims had to be made DATE and DATE . By virtue of the contour limitation the applicants’ properties were excluded from the scheme .

ORG An action will lie at common law for nuisance in respect of an activity which unreasonably interferes with the use and enjoyment of land , for example an activity causing annoyance through noise . If liability is established , damages may be awarded or , in certain circumstances , an injunction granted . However , LAW DATE specifically exempts aircraft noise from its protection . The liability of aircraft operators is further limited by LAW ) of LAW DATE , which reads :

Section CARDINAL(CARDINAL ) of LAW in turn provides for strict liability - that is , liability without proof of intention or negligence - where material loss or damage to any person or property on land or water is caused by , inter alia , an aircraft in flight or an object falling from an aircraft . Provisions equivalent to section DATE existed in earlier civil aviation legislation ( for example , section CARDINAL of LAW and section CARDINAL of LAW DATE ) .

Section CARDINAL is comparable to LAW Damage Caused by ORG Parties on the Surface , which reads :

" Any person who suffers damage on the surface shall , upon proof only that the damage was caused by an aircraft in flight or by any person or thing falling therefrom , be entitled to compensation as provided by this Convention . Nevertheless there shall be no right to compensation if the damage is not a direct consequence of the incident giving rise thereto , or if the damage results from the mere fact of passage of the aircraft through the airspace in conformity with existing air traffic regulations . " ( LAW , DATE , vol . CARDINAL , no . DATE , p. CARDINAL )

As at DATE , this Convention had been ratified by LAW , including CARDINAL members of ORG , namely GPE , GPE , GPE and GPE but not GPE .

Section CARDINAL(CARDINAL ) of LAW does not exclude all liability on the part of aircraft operators for trespass and nuisance caused by aircraft in flight . In the first place , the exemption applies only in respect of aircraft flying at a reasonable height above the ground . What is reasonable is a question of fact depending on all relevant circumstances . Secondly , for the exemption to apply there must be compliance with the statutory provisions referred to in section CARDINAL(CARDINAL ) . In practice this means LAW DATE as amended , ORG ( General ) Regulations DATE as amended , LAW DATE as amended and , of especial importance in this connection , ORG DATE ( and the corresponding provisions of earlier orders and regulations applicable from time to time ) . Thus , if , for example , an aircraft flies in a manner which is not in accordance with the applicable regulations or takes off or lands in contravention of ORG , its operator will not be entitled to rely upon section DATE as a defence to any action for trespass or nuisance .

ORG The main forum for international co - operation seeking to make aircraft quieter is ORG ( ICAO ) . The broad thrust of ORG ’s work has been towards the development of a series of standards , leading to the phasing out of aircraft unable to meet them . These standards are not operative within the ORG member GPE unless and until they are given effect in national legislation . In the GPE effect is given to them by means of an ORG .

Orders of DATE and DATE reflected the first ORG standards developed concerning subsonic jet aircraft . A DATE Order gave effect to new ICAO standards and to regulations based upon recommendations of ORG . In doing so , the DATE Order also implemented the requirements of ORG of DATE on " Limitation of Noise Emission from ORG " . It was , however , more stringent in its application inasmuch as non - compliant subsonic jets were banned from the domestic register DATE than required by the DATE Directive . Orders of DATE and DATE introduced further ICAO standards .

ORG In structuring its landing charges , ORG has taken account of ICAO noise certification standards to encourage the use of quieter aircraft .

ORG Since DATE restrictions have been placed on night movements of jets , with the aim of phasing out night flights of noisier aircraft . These measures have been adopted in the light of research into the relationship between aircraft noise and sleep disturbance and after consultation of all interested parties , including ORG to which the applicants belong .

Monitoring of aircraft noise on take - off from FAC was first carried out in DATE . Since DATE automatic equipment , consisting of CARDINAL noise monitoring terminals linked to a central processing and control unit , has been used . The positioning of these terminals is designed to protect the first built - up area reached after take - off from noise levels in excess of the statutory limits of CARDINAL ORG DATE ( TIME local time ) and CARDINAL ORG by TIME ( TIME local time ) . In the event of an infringement of the noise limit , the FAC informs the airline by letter and sends a copy to ORG . According to the Government , the effect of recent bans on non - noise - certificated aircraft has been to keep the rate of compliance to PERCENT by DATE and PERCENT by TIME . The Secretary of ORG is empowered by section CARDINAL of LAW to deny FAC ’s facilities to operators who fail to comply with noise abatement measures , but to date it has not been found necessary to invoke this provision . On the other hand , night flight quotas have been reduced for infringing operators .

Aircraft taking off from FAC are statutorily required to remain on a small number of specified routes , known as noise preferential routes . These routes are designed to avoid as far as possible the major built - up areas .

Approach procedures said to result in lower noise levels in comparison with traditional approach procedures are now standard practice . Furthermore , minimum height requirements on approach to land as well as on take - off are laid down in the regulations . In addition , since DATE a system of regularly alternating the landing runway has been implemented at FAC during westerly operations , the main objective being to achieve a fair sharing of periods of relative quiet among the communities of LOC affected by noise from landing aircraft .

ORG A helicopter link between FAC and FAC was introduced in DATE . However , after public inquiries in DATE and DATE , the Secretary of ORG gave directions in DATE for the operator ’s licence to be revoked for environmental reasons .

ORG Following earlier schemes in DATE , DATE , and DATE , a scheme for sound insulation of dwellings was introduced for FAC in DATE . Under this scheme , which cost ORG MONEY , over CARDINAL house owners or occupiers applied for grants . The scheme concentrated on those localities that would still be experiencing comparatively high noise levels in the mid DATE ’s and on localities where there is the greatest degree of disturbance due to aircraft noise at TIME . Within this area the amount of grant provided was intended to cover PERCENT of the reasonable costs incurred . The boundary was based on the forecast CARDINAL ORG contour for DATE and the composite of the CARDINAL ORG noise footprint for quieter aircraft . CARDINAL ORG is the exterior noise level below which current evidence suggests that the average person in an uninsulated room is unlikely to be awakened . After consultation and in line with a commitment by the Government to review the boundaries once the actual noise climate was known , an extension scheme to include additional areas was brought into operation in DATE at an estimated cost of MONEY .

In common with other persons living within the CARDINAL ORG contour , Mr PERSON qualifies for a full noise - insulation grant .


The first applicant is a NORP and the second applicant a NORP national . They were born in DATE and DATE respectively and are currently living in GPE , GPE .

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

The applicants and their son PERSON ( born in DATE ) first lived in GPE until DATE , when they moved to his grandmother in GPE ) after a public care order had been issued in GPE . In both countries ORG underwent intelligence and other tests on account of certain behavioural problems ( indications of slight retardation and autism , increasing isolation and aggression ) . The NORP authorities considered his symptoms to be of a psychological nature . The applicants considered them neurological but this contention could not be supported by any of the expert findings . Nonetheless , the applicants did not accept that ORG be admitted for further examinations at a child psychiatric clinic .

In DATE the applicant father was detained for DATE with a view to assessing whether he was in need of compulsory mental care on account of possible paranoia . On DATE , after the municipality had excluded ORG from his regular school class due to his behavioural disturbances , the family returned to GPE .

On DATE ORG ( sosiaalilautakunta , socialnämnden ) of PERSON placed NORP in public care under LAW ( lastensuojelulaki , barnskyddslag CARDINAL/CARDINAL ) . According to the applicants , they were not heard prior to the making of the order . Their appeal was dismissed by ORG ( lääninoikeus , länsrätten ) of ORG . On DATE ORG ( korkein hallinto - oikeus , högsta förvaltningsdomstolen ) dismissed their further appeal . They had contended , inter alia , that the reports given by the authorities had contained incorrect information and that ORG ’s referral to the child psychiatric clinic , which had been signed by the doctor of the health care centre , had not been made available to them . Having considered the evidence adduced , the court found no indication that the information given by the authorities had been incorrect . The court concluded , in light of the evidence adduced , that the referral report had not been at the disposal of ORG either .

In DATE , when consulting the case - file at ORG , the applicants allegedly discovered a number of false and misleading documents which had not been communicated to them in the proceedings concerning the initial care order . Their request to have the proceedings re - opened on this ground was dismissed by ORG on DATE . The court found no procedural error which could have had a significant effect on its earlier decision .

On DATE NORP police fetched NORP and transferred him to the NORP authorities pursuant to a NORP treaty on the enforcement of care orders . His public care was initially implemented in a clinic for severely physically and mentally retarded children at PERSON , where he underwent various intelligence and other ability tests . The conditions were allegedly harsh .

On DATE ORG maintained ORG public care , dismissing the ORG request to the contrary . Their appeal was dismissed on DATE after an oral hearing before ORG . Meanwhile , in DATE I. had been admitted to a child psychiatric clinic for further examinations . In DATE he was placed in a foster family at GPE , where the applicants allegedly had difficulties in gaining access to him . On DATE ORG declined to examine their appeal in so far as concerning ORG ’s placement at GPE , that having been a temporary placement against which no appeal avenue had been open . The court likewise declined to examine their appeal against the access restriction as under domestic law this had been finally determined by ORG . The court dismissed the other aspects of their appeal .

Meanwhile , on DATE ORG decided to place NORP in a children ’s home in GPE . In DATE he was placed in another foster family in GPE in order to attend another school . ORG granted the ORG request to fly ORG to the GPE to be examined by specialists . The applicants’ appeals in the other respects were dismissed by ORG on DATE . On DATE ORG dismissed their further appeals concerning ORG ’s transfer to the children ’s home and declined to examine the other aspects .

For financial reasons , the applicants had to postpone their trip with I. to the GPE until DATE . On DATE , however , ORG withdrew its permission for ORG to go on the trip after experts had considered that a trip at that moment would not be in his best interests . On DATE the ORG restricted the meetings between ORG and the applicants to one per month and dismissed their new request to take NORP on a trip to the GPE . Their appeal was dismissed on DATE . On DATE ORG declined to examine their further appeal , as no right to a further appeal existed .

A restriction on visits has allegedly been in force throughout ORG ’s public care , and was prolonged by ORG , most recently , in DATE . Currently CARDINAL DATE visit is allowed in the children ’s home . In DATE ORG again refused the applicants permission to take NORP on a trip to the GPE .

The ORG appeal against the recent access restriction and the refusal to allow NORP to travel to the GPE was dismissed by ORG ( hallinto - oikeus , förvaltningsdomstolen ) on DATE .

According to the Government , the facts of the case are as follows .

By a letter of CARDINAL DATE , ORG of Luopionen had informed the applicants that , on DATE , it was going to consider a proposal to place NORP in public care . ORG had recalled , inter alia :

“ The problems relating to the growth and development of your son [ ... ] have been discussed at several meetings which you have also attended . However , because you have not consented to the examinations and rehabilitation needed for the purpose of helping your son , public care [ has been ] found appropriate . ”

In the same letter the ORG had invited the applicants to comment on the proposed care order , either orally in the social welfare office on DATE or in writing by DATE . Furthermore , they had been told that they would be able to consult the ORG ’s case - file during their possible visit on DATE . Receipt of the letter had been acknowledged by the applicants on DATE in GPE , where they had lived since DATE .

The applicants had not taken any contact with ORG which had issued the proposed care order and referred the matter for approval by ORG . After the applicants had appealed the court had invited them to comment on ORG rejoinder with annexes ( i.e. a decision of ORG ( kammarrätten ) of GPE of DATE and a summary of the measures taken by the NORP authorities from DATE onwards ) . The applicants had submitted their comments on DATE and in subsequent letters .

After the applicants had appealed against ORG decision of CARDINAL DATE ORG had afforded them an opportunity to comment in writing on ORG rejoinder . ORG had noted , inter alia , that its decision had been based on several reports and opinions , beginning with the documents relating to the public care order issued in GPE in DATE . The court ’s letter had been received by the applicants on DATE and the second applicant had submitted written comments .

In their comments in reply to the factual information provided by the Government the applicants contend that CARDINAL specific reports considered by ORG on DATE ( and listed in its decision ) had not been made available to them until DATE , i.e. after the initial care proceedings had ended . The further report of the NORP social welfare authorities dated DATE had been made available to them only in the Convention proceedings . In that document the official had recounted the NORP social authorities’ suspicion in DATE that ORG had been sexually abused in the family , which the applicants deny .

The relevant legislation is outlined in the ORG ’s judgment in PERSON and GPE ( [ ORG ] , no . CARDINAL/CARDINAL , § § CARDINAL , ECHR DATE ) .


Javier Borrego Borrego;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova

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

In DATE police officers searched the applicant ’s premises in order to seize evidence relating to an offence of unlawful assumption of authority allegedly committed by the applicant in DATE .

In DATE ORG preferred an indictment against the applicant with ORG ( Amtsgericht ) .

In DATE police officers once again searched the applicant ’s premises in order to seize evidence relating to CARDINAL counts of falsification of documents allegedly committed by the applicant in DATE , DATE and DATE .

In DATE ORG preferred an indictment against the applicant with ORG .

On DATE the GPE ORG , having joined to the proceedings CARDINAL further indictments relating to criminal offences allegedly committed by the applicant in DATE , DATE and DATE , DATE and DATE , held a hearing during which the applicant was represented by the court - appointed counsel P.

Following the hearing , the GPE ORG convicted the applicant of CARDINAL counts of falsification of documents , CARDINAL count of unlawful assumption of authority in conjunction with attempted coercion , falsification of documents , bodily injury and falsely casting suspicion on an innocent person and CARDINAL counts of insult and sentenced him to DATE and CARDINAL months’ imprisonment , suspended on probation . ORG considered as mitigating factors that the applicant had made a confession and that some of the offences had been committed DATE .

Parallel to these proceedings , public prosecution instituted separate proceedings against the applicant before ORG for falsification of documents allegedly committed by the applicant in DATE .

On DATE ORG appointed the lawyer PERSON to represent the applicant during the proceedings before that court . As PERSON was unable to attend the hearing scheduled for DATE , ORG , on that same date , absolved her from her duties .

On DATE ORG convicted the applicant , who was not represented by counsel , of falsification of documents and sentenced him to a fine of MONEY .

On DATE the Aachen ORG ( Landgericht ) , in joint proceedings , rejected the applicant ’s appeal against the judgments of CARDINAL and DATE as inadmissible on the ground that the applicant had failed to attend the court hearing held on CARDINAL DATE .

On DATE the applicant applied for the reinstatement of the proceedings . He alleged that he had been unable to attend the court hearing as he had been admitted to intensive care from DATE due to an emergency . In support of his allegations , he named his brother as a witness .

On DATE ORG rejected the applicant ’s request . It noted that the applicant had failed to submit sufficient information as to the nature of his illness , the name of the treating practitioner or the hospital he had been admitted to , nor had he submitted sufficient evidence supporting his allegations .

On DATE the applicant lodged an appeal . In support of his allegations , he submitted a letter by the ORG hospital dated CARDINAL DATE . According to the content of that letter , the applicant had been admitted to intensive surveillance after having complained about having suffered an electric shock while blow - drying his hair . The medical examination did not disclose any abnormalities .

On DATE ORG rejected the applicant ’s appeal . That court considered that the applicant had failed to establish that he had been hindered to attend the court hearing through no fault of his own . ORG considered that the hospital letter submitted by the applicant was exclusively based on the applicant ’s own statement on the alleged electric shock incident and that the medical examination had not disclosed any abnormalities .

On DATE the applicant lodged an appeal on points of law against ORG judgment of CARDINAL DATE .

On DATE ORG ( Oberlandesgericht ) rejected the applicant ’s appeal as inadmissible on the ground that the applicant had failed to submit the grounds for his appeal within the statutory time - limit of DATE . This decision was served on the applicant on DATE .

On DATE the applicant requested to be reinstated in the proceedings . He alleged that the court appointed counsel PERSON had promised him during a telephone conversation that he would submit the reasons for the appeal on points of law in due time . As means of evidence , the applicant submitted an affidavit given by his brother .

The applicant further requested the court to withdraw the court - appointed counsel PERSON and to appoint new counsel to submit the reasons for his appeal on points of law .

On DATE ORG informed the applicant that the case - file had been transferred to ORG to rule on his request to appoint fresh counsel .

On DATE the ORG rejected the applicant ’s request to appoint fresh counsel on the ground that the applicant ’s appeal on points of law lacked prospect of success .

On DATE the applicant , represented by counsel PERSON , requested ORG to grant him a fair hearing and to re - open the appeal proceedings .

On DATE ORG rejected the applicant ’s request to have the proceedings reinstated as being inadmissible . Having regard to the differing submissions made by counsel PERSON , ORG considered that the applicant had failed sufficiently to establish that P. had promised him that he would submit reasons for his appeal .

In any event , the applicant ’s request was inadmissible as the applicant had failed to submit the grounds for his appeal , either through counsel or personally at the court ’s registry , within the time - limit of DATE set down in section CARDINAL of the Code of Criminal Procedure ( see relevant domestic law , below ) .

ORG further rejected the applicant ’s request to re - open the proceedings on the ground that the applicant ’s right to a fair hearing had not been violated .

On DATE the applicant lodged a constitutional complaint in which he complained about the conduct and the length of the proceedings before the criminal courts . On DATE ORG , sitting as a panel of CARDINAL judges , refused to accept his complaint for adjudication .

LAW of LAW in conjunction with the principle of LAW guarantees the right to expeditious proceedings . According to the settled case - law of ORG , the courts and the prosecuting authorities are called upon to draw the consequences of the length of proceedings at any stage of the proceedings . Their possibilities include inter alia the discontinuation of the proceedings pursuant to sections CARDINAL and CARDINALa of the Code of Criminal Procedure , the limitation of the proceedings according to sections CARDINAL and CARDINALa of LAW or a reduction of the sentence ( see , among others , the decision of DATE ( no . CARDINAL BvR CARDINAL/CARDINAL ) ; the decision of DATE ( no . CARDINAL BvR CARDINAL/CARDINAL ) ; the decision of CARDINAL DATE , no . CARDINAL BvR CARDINAL/CARDINAL , Reports of ORG ( BVerfGK ) no . CARDINAL , pp . CARDINAL et seq . ; the decision of DATE , nos . CARDINAL BvR CARDINAL/CARDINAL , DATE and DATE ) .

Section CARDINAL [ form and time limit ]

“ CARDINAL . The appeal on points of law shall be filed with the court whose judgment is being contested either orally to be recorded by the registry or in writing within DATE after pronouncement of judgment .

If pronouncement of judgment did not take place in the defendant ’s presence , the time limit in respect of the defendant shall begin to run upon service of the judgment . ”

Section CARDINAL [ time limit for stating grounds ]

“ CARDINAL . The motions together with the grounds therefor shall be submitted to the court whose judgment is being contested DATE after expiry of the time limit for seeking the appellate remedy . If the judgment has not been served by then , the time limit shall commence upon service thereof .

The defendant may only do this in the form of a notice signed by defence counsel , or orally to be recorded by the court registry . ”

Section CARDINAL [ request for reinstatement of the proceedings ]

“ CARDINAL . The request for reinstatement of the proceedings shall be filed ... within DATE after cessation of the impediment ( ... ) .

The facts justifying the request shall be substantiated at the time the request is filed or during the proceedings on the request . The omitted act shall be undertaken within the time limit for filing the request ( ... ) . ”


Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Respondent State to take individual measures (Article 46-2 - Individual measures);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)

Gaukur Jörundsson;Luzius Wildhaber;Nicolas Bratza;Paul Mahoney

The applicant was born in GPE in DATE . He is currently in custody in GPE , the capital of GPE in GPE .

NORP The applicant was formerly the mayor of GPE , the capital of GPE , and a member of ORG . He was arrested on DATE on suspicion of illegal financial dealings in ORG , a private company , and the unlawful possession and handling of firearms . He was convicted on DATE and given an immediate custodial sentence of DATE ; orders were made for the confiscation of his assets and requiring him to make good the pecuniary losses sustained by the company . On DATE ORG of GPE , in a judgment on an appeal on points of law , upheld the applicant 's conviction of DATE for illegal financial dealings but quashed his other convictions . Instead of being transferred to prison to serve his sentence , the applicant remained in custody in the short - term remand prison of ORG of GPE .

By Decree no . CARDINAL of DATE , the NORP President granted the applicant a pardon suspending the remaining DATE of his sentence .

The relevant provisions of the decree read as follows :

“ ... that [ the following ] shall be granted a pardon :

Tengiz PERSON , born in DATE , who was tried for offences under Articles CARDINAL § CARDINAL , CARDINAL and CARDINAL of LAW and sentenced on DATE imprisonment by ORG of GPE ; DATE of his prison sentence shall be suspended and replaced by release on licence for DATE ...

N.V.G. , born in DATE ...

NORP M.A.M. , born in DATE ... ”

Despite the presidential pardon , the applicant remained in custody in the short - term remand prison of ORG .

ORG immediately challenged Presidential Decree no . CARDINAL of DATE in ORG of GPE ( “ the PERSON High Court ” ) on the ground that it had been granted unlawfully . Execution of the pardon was therefore stayed in accordance with LAW .

On DATE the Ajarian High Court declared the pardon null and void on the ground that the statutory procedure that should have been followed before the President of GPE could exercise his right of pardon had not been complied with .

That judgment was quashed on DATE by ORG of GPE , which , in accordance with LAW which was then in force , remitted the case to ORG of ORG .

In its submissions to that court , ORG again contended that the pardon contravened LAW of CARDINAL DATE establishing the rules governing the exercise by the President of GPE of his right of pardon , added to which the applicant had yet to make good the pecuniary damage the company had suffered .

In the meantime , the applicant was charged with further criminal offences on DATE ( see paragraphs CARDINAL et seq . below ) .

In a decision of DATE , ORG dismissed ORG complaints as unfounded . It ruled that the procedural defects pleaded ( the failure to obtain the opinion of ORG and the applicant 's lack of remorse ) did not render the President 's order unlawful , as the right of pardon was an absolute constitutional right vested in the President of GPE . It said that , since the pardon granted to the applicant did not extend to the ancillary award of compensation for pecuniary damage , the company could bring further legal proceedings to enforce that award ; as to the remaining points , the company had no grounds for contesting the appropriateness of the pardon or the legality of the President 's order . ORG also noted that the company was not entitled in law to call for the reopening of the criminal proceedings against the applicant . It stated that it considered the applicant 's detention to be in violation of LAW of LAW .

On DATE ORG of GPE dismissed an appeal on points of law by ORG as unfounded . It noted that the impugned decision to pardon the applicant had left intact both the applicant 's main sentence and the obligation to make good the pecuniary damage caused to the company . This was because DATE of the sentence had been unconditionally suspended , the sentence being commuted to CARDINAL of release on licence for the same period . ORG of GPE said that the sole effect of the presidential pardon had accordingly been to secure the applicant 's immediate release , while leaving intact the main and ancillary sentences . As to the President of GPE 's failure to follow the Rules on the Exercise of the Right of Pardon , ORG found that the decree of CARDINAL DATE contained the working rules and regulations of ORG and that failure to observe them could under no circumstances prevent the NORP President exercising his constitutional right of pardon .

Even after DATE the local authorities in GPE continued to hold the applicant in the short - term remand prison of ORG in GPE .

The question of the legality of the applicant 's pardon was referred by ORG on DATE to the investigation committee of ORG responsible for supervising the lawfulness of civil servants ' activities , which delivered its report on DATE ( see paragraphs CARDINAL et seq . below ) .

On DATE the President of GPE issued a decree amending the presidential decree of CARDINAL DATE establishing the Rules on the Exercise of the Right of Pardon . A new LAW vested the President of GPE with the power to pardon convicted persons , as defined by LAW , sub - paragraph DATE , of the LAW , without complying with the additional requirements set out in the decree beforehand .

On DATE Mr PERSON , a close relative of the applicant who had been sentenced to DATE imprisonment by ORG of GPE on DATE , gave an interview on a television channel broadcasting in GPE in which he affirmed that the applicant had been CARDINAL of his accomplices .

Following that interview the applicant , who had remained in custody after being pardoned by the President on DATE , was charged on DATE with being a member of a criminal association in DATE and with the attempted kidnapping of ORG , the head of the regional department of ORG ) .

On DATE ORG remanded the applicant in custody pending the investigation of the new charges . According to the applicant , the pre - trial investigation into the case ended on DATE and a CARDINAL - volume case file was compiled .

In a decision of DATE , ORG decided to take no further action , finding that the applicant 's prosecution was not based on an arguable case and that all the circumstances and evidence relating to ORG 's murder had been examined by ORG of GPE in its unfettered discretion at Mr PERSON 's criminal trial in DATE . ORG took the view that , since the exhaustive examination of the file relating to ORG 's kidnapping and murder had not thrown up any evidence whatsoever that the applicant had been a member of the criminal association led by Mr PERSON , there were no grounds for charging him in connection with the same case DATE after the event .

On DATE that decision was set aside by ORG on an appeal by the civil party . Consequently , on DATE ORG of GPE ordered the criminal proceedings against the applicant to be reopened . It brought the pre - trial investigation to an end by an order dated DATE .

The applicant was committed to stand trial in GPE , where he denied all guilt . He maintained that this second prosecution was the result of a conspiracy to frame him . He denied ever having had any links with Mr PERSON or his associates , who prior to their arrest had been living as outlaws in the PERSON forests . The applicant also said that he had at no stage hired them to kidnap PERSON , who had been killed by PERSON PERSON gang , and , contrary to what had been affirmed by the CARDINAL prosecution witnesses , kidnapping a ORG official would not have helped the applicant to consolidate his power as mayor of GPE . He asked the judges to find him innocent .

The Ajarian High Court found that , even though the applicant had denied helping to organise the kidnapping that had resulted in the victim 's murder , his guilt was established by the depositions of CARDINAL prosecution witnesses : Mr PERSON , the leader of the criminal gang , and CARDINAL gang members , Mr PERSON and Mr PERSON . On DATE all CARDINAL had been convicted with Mr PERSON , the applicant 's brother , of , inter alia , ORG 's murder .

At the applicant 's trial , a confrontation was arranged between Mr PERSON and the applicant , at which the former affirmed that the applicant had supplied him with funds and CARDINAL machine guns to carry out the kidnapping .

Mr PERSON said that he did not know the applicant and had never met him . He explained that he had merely caught a glimpse of the applicant when accompanying Mr PERSON to a meeting with him and had heard him instruct Mr PERSON to kidnap V.G.

It appears from the judgment that Mr PERSON , the third witness , was unable to appear in court owing to illness and was heard by the judges in the office of the governor of the short - term remand prison of ORG . He stated that he did not know the applicant and had only seen him on television . It was through Mr PERSON that he had learnt that the applicant 's brother , Mr PERSON , had instructed their group to kill PERSON did not want to be involved in murder and had been to see the applicant , whom he was convinced was behind the plot . It was at that meeting that the applicant had told Mr PERSON that there was no need to eliminate V.G. , only to kidnap him . On DATE the CARDINAL members of the group had waylaid the victim in a street in GPE and , on attempting to abduct him in accordance with the applicant 's instructions , had killed him by accident .

The Ajarian High Court said that it was not just the CARDINAL witnesses ' depositions which confirmed the applicant 's guilt , but also the fact that they had been convicted by ORG of GPE on DATE . Without elaborating further on that point , ORG said in conclusion that , even if there was a close relation between the applicant 's case and that of Mr PERSON and his co - defendants , it constituted an independent criminal act involving participation in the activities of the criminal gang led by Mr PERSON and the organisation of ORG 's kidnapping . In its view , the applicant was directly accountable under the criminal law for his part in those events .

Consequently , on DATE the applicant was convicted and sentenced to DATE imprisonment to be served in a strict - regime prison .

The Ajarian High Court noted that since his arrest on DATE the applicant had remained in custody at all times and had not been released after being granted a presidential pardon on DATE . Accordingly , he was deemed to have begun his sentence on DATE .

The applicant appealed on points of law to ORG of GPE . The central authorities made various attempts to secure his transfer from GPE to GPE for DATE of the hearing . The NORP Minister of ORG requested the PERSON authorities through the intermediary of the NORP Minister of ORG and ORG ( PERSON ) to arrange for the applicant 's transfer to the capital , but in vain .

On DATE ORG of ORG of GPE heard the appeal in the applicant 's absence ; it quashed the judgment of DATE and acquitted the applicant .

It said , inter alia :

“ The preliminary investigation and judicial investigation in the present case were conducted in flagrant breach of the statutory rules . The criminal file does not contain incontrovertible evidence capable of supporting a guilty verdict ; the judgment is , moreover , self - contradictory and based on inconsistent conjecture and depositions from persons interested in the outcome of the proceedings that were obtained in breach of the procedural rules .

The convicted person , PERSON , did not admit the offences of which he was accused either during the preliminary investigation or at trial . He said that he had been charged as a result of a conspiracy against him by persons with an interest in his obtaining an unfavourable outcome to the proceedings .

ORG notes that there is no evidence in the file to refute his arguments . It has been established that Mr PERSON and Mr Tamaz PERSON [ the applicant 's brother ] were convicted on DATE and that Mr PERSON , who repeatedly said that his accomplice was Mr PERSON , had at no stage implicated Mr PERSON at the material time . It was only on DATE and DATE after the events – that , in an interview given to PERSON television , Mr PERSON accused Mr PERSON of having been his accomplice . In that interview , Mr PERSON also expressed indignation and outrage at Mr PERSON 's receipt of a presidential pardon and sought to denounce the authorities ' attempts to portray him as an ' innocent lamb ' . ”

ORG found that the investigating bodies and the court that tried the case at first instance had not sought to establish why Mr PERSON had waited for so long before implicating the applicant and had not done so at his own trial . Instead , they had merely affirmed : “ Relations between Mr PERSON and Mr PERSON were healthy and it is inconceivable that Mr PERSON 's belated allegations were made out of self - interest . ” In ORG view , however , the evidence in the case file suggested the contrary and “ preclude[d ] finding that Mr PERSON [ had ] no interest in making his allegations against the applicant or that they [ were ] founded and true ” . It noted that the applicant had said that relations between him and Mr PERSON had become strained as a result of a dispute over the sharing of a family tomb where their fathers were buried . Mr PERSON had not denied the existence of that dispute at a hearing on DATE . ORG accordingly found that Mr PERSON 's assertion that there was no ill - feeling between them in private did not reflect the truth .

It held that the applicant could not be found guilty on the sole basis of affirmations made by Mr PERSON DATE after the events in issue .

ORG went on to note that , in addition to Mr PERSON , Mr PERSON and Mr PERSON had also belatedly accused the applicant of participating in the activities of the criminal gang led by PERSON PERSON . They too had only implicated the applicant DATE after their trials . However , both men had said that they did not know the applicant and had only learnt of his involvement in the kidnapping through Mr PERSON himself . ORG ruled that in such circumstances Mr PERSON 's and Mr PERSON 's statements could not constitute true and incontrovertible evidence .

It was also noted that their assertions that the applicant had provided the gang with money and CARDINAL machine guns to kidnap PERSON were not corroborated .

After examining other evidence relied on by the court of first instance in the applicant 's case and comparing it with Mr PERSON 's depositions at his trial in DATE , ORG found :

“ Both [ the applicant 's ] indictment and conviction rely solely on the depositions of persons who have a direct interest in the outcome of the proceedings against him and there is no other evidence of his guilt in the case file . The ORG must therefore find that Mr PERSON has not committed an offence under the criminal law . ”

In addition , ORG found serious procedural defects in the criminal proceedings against the applicant . Among other matters , it noted that on DATE the investigating officer in charge of the case had rejected a request by the applicant for a confrontation with Mr PERSON regarding the kidnapping charge on the ground that it was unconnected with Mr PERSON 's case and intended only to delay the proceedings unnecessarily . In ORG view , the investigating bodies had failed to carry out a thorough investigation into the allegation that the applicant was implicated in the case .

ORG noted : “ According to the impugned judgment , despite its connection with the case of Mr PERSON and his co - defendants , the present case concerned an independent criminal act . However , it is stated elsewhere in the same judgment that , in addition to other evidence against him , Mr PERSON guilt was confirmed by the convictions of Mr PERSON and his co - defendants , which have become final . ” ORG added that , in making that affirmation , the trial court “ [ had ] not PERSON ] any explanation as to how Mr PERSON 's and his co - defendants ' convictions confirmed Mr PERSON guilt , since they [ had been ] convicted of the murder of an official , whereas Mr PERSON was accused of having organised his kidnapping ” . Thus , in ORG view , the trial court had not in fact decided whether the applicant 's case should be treated as part of Mr PERSON case or as an independent criminal act .

ORG therefore found the applicant 's conviction unlawful on other grounds , pertaining to the classification in law of the acts concerned .

Consequently , it held :

“ Mr PERSON conviction on DATE by ORG of GPE is quashed and the criminal proceedings against him discontinued , as his acts do not disclose any evidence of an offence .

Mr PERSON shall be immediately released .

This judgment is final and no appeal shall lie against it .

Mr PERSON shall be informed that he has the right to bring proceedings for compensation for the damage caused by the illegal and unjustified acts of the bodies involved in his criminal case . ”

On DATE the President of ORG forwarded the short version of the judgment acquitting the applicant to the Minister of ORG , the director of the department responsible for the execution of sentences at ORG and the governor of the short - term remand prison of ORG for execution . He informed them that they would receive the reasoned version of the judgment subsequently .

On DATE the President of the ORG sent them the reasoned version of the judgment acquitting the applicant for execution .

That judgment was never executed and the applicant remains in custody in the short - term remand prison of ORG .

The applicant 's unlawful detention was denounced on a number of occasions by ORG of Georgia , ORG , ORG and ORG of ORG . They contacted the local authorities concerned in GPE , seeking his immediate release .

In letters of DATE and CARDINAL DATE , ORG Office of GPE informed the applicant 's wife as follows :

“ ... [ I]n response to your letter , I wish to inform you that ORG Office of GPE is making every effort to secure compliance with the judgment of ORG of GPE dated DATE and to bring PERSON PERSON unlawful detention to an end . ”

In a letter of DATE , the Vice - President of ORG of GPE informed the applicant 's wife that the operative provisions of the judgment of DATE acquitting her husband had been sent by facsimile transmission that day for execution to the NORP Minister of ORG , the director of the department responsible for the execution of sentences at ORG , the governor of the short - term remand prison of ORG and the governor of the long - term remand prison of ORG . He added that the reasoned judgment had been sent to them under cover of a letter of CARDINAL DATE . The Vice - President also said in his letter that on DATE ORG of GPE had received an acknowledgment of receipt slip signed by the governor of the short - term remand prison of ORG .

On DATE ORG wrote directly to Mr PERSON , the Head of GPE :

“ ... Your authorities have not yet responded to my recommendation of DATE , even though Mr PERSON remains in ORG prison in flagrant breach of the law . ... Under LAW , it is both an administrative and a criminal offence not to comply with ORG recommendations if ORG is thereby obstructed in the course of his or her duties . ... I would therefore ask you to comply with my lawful demands as Public Defender and to hold both the governor of the short - term remand prison of ORG and the Minister himself accountable . ”

On DATE the President of ORG of ORG wrote to ORG of GPE in the following terms :

“ ... In a decision of DATE , ORG of GPE acquitted PERSON PERSON . However , he continues to serve his sentence in a cell at the short - term remand prison of ORG of GPE . ... This constitutes a serious violation of ... LAW . ... I would therefore ask you to take the necessary measures to prosecute those responsible for failing to comply with the aforementioned judicial decision . ”

In a letter of DATE , the director of the department responsible for the execution of sentences at ORG advised the applicant 's wife that her husband was fully entitled to lodge an application against ORG with ORG . He stated in his letter : “ We consider that the authorities of GPE are acting in flagrant breach of the law and of human rights . ”

NORP The central authority 's efforts to secure the applicant 's release were unsuccessful .

According to the Government , on DATE the NORP courts martial prosecuting authority ordered certain officials from ORG suspected of failing to execute the judgment of DATE acquitting the applicant to be charged with offences , in accordance with LAW . The police are trying to trace those concerned .

DATE . In a letter of DATE , the applicant 's son informed the ORG that his father 's health had deteriorated . According to a medical certificate dated DATE , the applicant was suffering from gastritis , cardiac insufficiency and gastro - oesophageal reflux . As this was causing him severe dietary problems , he required appropriate medical attention as a matter of urgency .

On DATE the Government produced to the ORG a letter of DATE from Mr PERSON to Mr PERSON , Head of GPE , in which he stated :

“ You are a man with the ORG 's interests at heart and I believe that I can count on your understanding in this situation . ... As you are aware , the ORG [ in GPE ] is very shortly due to decide whether to hold a hearing on the merits in the PERSON case . The family is seeking MONEY in compensation . It is almost self - evident that GPE will lose this case and that our ORG will be heavily condemned . There is a solution to this problem . Were PERSON to be released , his family would agree to withdraw the application .

I am sure that you will play a part in taking the only decision that is just , that which is in GPE 's interests . ”

On DATE the President of the Ajarian High Court sent a reply to the NORP President . He began by accusing the Head of ORG of harbouring persons of PERSON extraction who had fled PERSON to take refuge in GPE after attempting to organise terrorist attacks on the Head of GPE . He then drew the President 's attention to the parliamentary committee 's report ( see paragraphs CARDINAL et seq . below ) , which highlighted numerous irregularities in the proceedings that had led to the applicant 's pardon and acquittal . Relying on the parliamentary committee 's findings and LAW No . CARDINAL to LAW , the President of the Ajarian High Court suggested to the President of GPE that the applicant 's trial should be reopened so that his case could be reconsidered in the light of the matters set out in the report .

He also said in his letter that the applicant 's application to ORG constituted an abuse of his right of application within the meaning of LAW of the LAW and that he had been aided in that task by ORG of GPE , ORG , ORG of GPE and ORG . He added that , as the parliamentary committee was a national authority within the meaning of LAW , the applicant could not be regarded as having exhausted domestic remedies before DATE , the date of the committee 's report . Drawing the NORP President 's attention to this point , he said that ORG had misled ORG in its observations .

In a letter of DATE , the Government informed the ORG that on DATE the investigation committee of ORG responsible for supervising the lawfulness of civil servants ' activities had been requested by ORG to launch an inquiry into the circumstances in which a presidential pardon had been granted in the PERSON case . The committee , which was composed of members of parliament assisted by university lecturers and practising lawyers , produced its report on DATE .

Although its terms of reference were confined to issues relating to the presidential pardon , the committee also decided to examine the circumstances in which the applicant had been prosecuted and acquitted in the second set of proceedings . In the introduction to its report , the committee explained its reasons for so extending its terms of reference . In particular , it stated : “ [ T]he presidential pardon did not constitute an isolated act or separate procedure ; in the present case , there was a close relation between all the proceedings and , in order to provide an overall view of the issues , it was considered appropriate to examine the chronology of the various sets of criminal proceedings brought against the applicant , the conduct of those proceedings and the merits of the decisions that were taken . ” There were thus CARDINAL separate parts to the report : CARDINAL on the legality of the presidential pardon and the other on the decisions of the domestic courts in the criminal proceedings against the applicant .

On DATE ORG examined the question of measures that needed implementing in the prison system . On a proposal by the NORP President , it was decided that he would exercise his right of pardon . The prison authorities were asked to study the cases of convicted prisoners in their custody and to submit to the President any requests for a pardon , together with the files and assessments of the prisoners concerned . Requests for a pardon had to be made in these terms :

“ Dear President , I repent of the crime I have committed and ask you to remit the remainder of my sentence . ”

Requests made in the prescribed terms were examined and the President exercised his right of pardon in a number of cases .

NORP The parliamentary committee established that on DATE the applicant had sent a letter to the NORP President asking for the remainder of his sentence to be remitted . Since he had not made his request in the terms referred to above , the committee considered that his pardon did not satisfy the regulatory requirements in force and was therefore invalid . It also noted a number of other failings : “ the [ applicant 's ] file ” had not been submitted to ORG appointed by the NORP President , the applicant 's name was not on the combined list of convicted persons seeking a pardon that was submitted to the President by the PERSON authorities concerned and no appraisal of the applicant had been furnished by the PERSON prison authorities in support of his request .

DATE . The committee established that , in breach of the rules in force , the Vice - President of ORG , CARDINAL of the NORP President 's aides , had prepared and submitted to the President a recommendation for the applicant to be pardoned solely on the strength of the applicant 's letter of DATE . The committee said that that request should have been referred to a court under the rules of criminal procedure and not to the President of GPE as a request for a pardon .

According to the committee , even assuming that the NORP President had been entitled to grant the applicant a pardon without first complying with the statutory rule requiring requests for pardons to be examined by the competent board in the first instance , the decision had been taken shortly before the general election of DATE and was manifestly influenced by political considerations .

The committee considered that the reasons given by ORG and ORG of GPE in their judgments of DATE and DATE respectively did not comply with Articles DATE and CARDINAL of LAW , which provide an exhaustive list of the grounds on which administrative acts may be declared null and void . Indeed , their effect was to render LAW , which guaranteed everyone the right to apply to a court to protect his or her rights , meaningless .

It noted that under domestic law a presidential pardon was an administrative act for which judicial review lay in the administrative courts . As the applicant 's presidential pardon had been challenged in the courts , it had not become enforceable until DATE , the date of ORG decision .

NORP The committee criticised the reason advanced by ORG on DATE for dismissing ORG application for judicial review . In particular , it considered that ORG had ruled on matters beyond the scope of the application , as the company had not sought an order reopening the criminal proceedings against the applicant . ORG should not , therefore , have ruled on the lawfulness of the applicant 's continued detention . Since those CARDINAL issues were within the jurisdiction of the criminal courts , not the administrative courts , the committee considered that ORG should have restricted its review to the legality of the contested presidential act .

NORP The committee further noted that the presidential pardon concerned only the prison sentence and not the applicant 's duty to pay ORG compensation for the pecuniary damage caused . ORG should , therefore , also have examined the effects of the presidential pardon on that ancillary punishment .

According to the committee , the second set of proceedings in which the applicant was acquitted was , like the first , tainted by various procedural defects at both the investigation and trial stages . In addition , the trial courts 's view , those circumstances should have been “ treated as evidence by the courts and examined with a view to establishing the truth ” .

In order to illustrate this point , the committee conducted a detailed examination of various items of evidence and statements obtained in the criminal proceedings against Mr PERSON , Mr PERSON , Mr PERSON and CARDINAL co - defendants , who had been convicted , inter alia , of the murder of ORG official concerned ( see paragraphs CARDINAL et seq . above ) .

The committee thus established that at the trial in ORG of GPE in DATE Mr PERSON and Mr Shotadze had “ sought to identify ” the applicant as CARDINAL of the organisers of the attack on Mr PERSON , the Head of GPE . In its view , instead of “ ignoring Mr PERSON 's and Mr PERSON attempts to implicate the applicant in serious offences ” , the judges of ORG of GPE who heard the applicant 's appeal on points of law should have brought “ new criminal proceedings against [ the applicant ] in accordance with LAW in force at the material time ” , that is to say , in DATE .

The committee considered that , in order to clarify certain details vital to the truth , ORG of GPE should have heard evidence not only from the witnesses who were called , but also from Mr PERSON , who should have been questioned about his informal meeting with the judge who heard his case in DATE , and the judge himself . It should have sought to establish by whom and in what circumstances that meeting – at which Mr PERSON had accused the applicant off the record of taking part in his group 's activities – had been recorded , and why the judge concerned had not mentioned it in his judgment of DATE .

The committee criticised ORG for not hearing evidence from CARDINAL other people who had also been implicated by Mr PERSON , and the applicant 's son . It considered that ORG judges who heard the applicant 's case should have ordered expert evidence to be obtained to establish when , by whom and how the weapons , the military munitions and technical equipment seized in Mr PERSON 's case in DATE had been purchased . Nor had they sought to ascertain why the prosecutor in the applicant 's case had declined to make an order joining his case with Mr PERSON 's .

The committee found , lastly , that ORG of GPE had “ failed to remit the applicant 's case to the investigating bodies for further investigation ” and should not have taken “ a decision to acquit that was illegal , unfair and based on insufficiently investigated facts ” .

In the committee 's view , “ the new circumstances revealed in its examination of the case for the purposes of the parliamentary report warranted investigation and analysis ” . That proved that “ the statutory remedies designed to elicit the truth [ had ] not yet been exhausted ” . Referring to Articles CARDINAL § CARDINAL ( g ) and CARDINAL of the Code of Criminal Procedure , it suggested that the applicant 's trial should be reopened .

On DATE ORG of GPE refused a request by the civil party for the applicant 's case to be reopened and re - examined in the light of the parliamentary committee 's findings . It found , inter alia , that the findings did not constitute new circumstances that could warrant a reopening of the applicant 's case . In the absence of new circumstances , a judgment of ORG , which was final and could not be appealed against , could not be challenged under NORP law .

On DATE the President of ORG of GPE submitted to the NORP President his observations on the findings in the parliamentary committee 's report of DATE .

He described the report as “ tendentious ” , “ biased ” , “ unconstitutional ” and “ erroneous ” . He noted , firstly , that the parliamentary committee had acted far outside the scope of its terms of reference and , instead of examining the circumstances in which the applicant had received a presidential pardon , had decided to review a judgment of the highest court of the land . In so doing , the committee had , in his view , contravened the fundamental constitutional rule requiring the separation of powers . The report undermined the notions of democracy and the rule of law . The President of ORG said that under LAW no one had the right to demand an explanation from a judge about a case . Criticism by a parliamentary committee of a final judicial decision against which no appeal lay served only to hinder execution of the decision and to discredit the judiciary .

As regards the committee 's findings on the subject of the presidential pardon , the President of ORG of GPE noted , firstly , that the right conferred by LAW on the NORP President to grant a pardon was absolute and unconditional and could be exercised independently of the regulations laying down the principles on which requests for a pardon were to be examined by ORG . He further noted that in many countries there was no right of appeal against a pardon , which constituted the ultimate act of humanity . The fact that the applicant 's request for a pardon had not been examined beforehand by ORG could not render the pardon illegal , especially as , in the applicant 's case , obtaining his file and details from the PERSON prison authorities had been no easy task . The President of ORG of GPE also pointed out that , in the instant case , the grant of a pardon also represented an attempt at restoring justice to a convicted prisoner who had been held for DATE in an unlawful place of detention .

He added that the section of the report on ORG judgment of CARDINAL DATE declaring the presidential pardon null and void for procedural defects was entirely erroneous . He pointed out that on DATE LAW had yet to come into force and that , in accordance with LAW the statutory provision applicable to contested administrative cases at the time – ORG had exclusive territorial jurisdiction to hear applications for judicial review of presidential acts . The President of ORG of GPE said that it was regrettable that the committee had omitted to mention that the Ajarian High Court had on DATE , in breach of the law then in force , assumed jurisdiction to hear an application for judicial review of a pardon granted by the President of GPE .

In his observations , the President of ORG of GPE noted that , in describing the judgment acquitting the applicant as biased , incomplete and illegal , the parliamentary committee had at no point mentioned the question of the applicant 's interests or his unlawful detention . The President of ORG considered that the committee was thereby seeking to justify the applicant 's continued detention despite his acquittal .

The committee had chosen to review the judgment acquitting the applicant on its own initiative , but had not put forward a single plausible argument that pointed to the applicant 's guilt . Nor had it shown that ORG could have returned a guilty verdict on the evidence before it . On the contrary , the committee saw no difficulty in an acquitted defendant being held in custody until such time as the issue of his guilt or innocence had been re - examined in the light of new circumstances . That , said the President of ORG in conclusion , was “ totally unlawful ” .

NORP The President of ORG considered it unfortunate that the committee had failed to mention that the applicant had been held since his conviction in the Ajarian Ministry of Security prison , in breach of the law . He noted that Mr PERSON , whose televised remarks ought , in the committee 's eyes , to have prompted ORG of GPE to convict the applicant , was serving his DATE prison sentence in the same prison .

The passage in the report in which the committee found that the applicant would not have exhausted the statutory remedies until such time as his trial was reopened in the light of the new circumstances revealed by the parliamentary committee was described by the President of ORG as a “ masterpiece of legal invention ” . He recommended that the report be translated into various foreign languages so that international human rights organisations would also have access to it .

NORP The President of ORG regretted that the parliamentary committee had yielded to political pressure from certain groups , instead of helping justice to prevail , in accordance with the wish expressed at the end of its report .

In conclusion , the President of ORG of GPE said that he would leave the issue of the applicant 's continued detention following his acquittal to the discretion of the ORG in GPE .

In DATE PERSON , part of the GPE known as the “ GPE of the NORP ” , was laid to waste by NORP invaders from the LOC . In DATE it was invaded by GPE . The sanjaks ( districts ) of GPE and PERSON were formed there and the region was annexed to the vilayet ( province ) of PERSON ( GPE ) . Subsequently , at various times , the NORP and the adjoining NORP principalities fought over the region . Under the terms of LAW signed on DATE between tsarist GPE and GPE , PERSON was assigned to the latter .

Article LVIII of LAW signed on DATE between the NORP and ORG provided :

“ The Sublime Porte cedes to GPE in LOC the territories of GPE , GPE , and PERSON together with the port of the latter . ”

Articles XI and ORG of LAW signed on DATE at GPE between GPE and her allies , and GPE provided :

“ ORG . ... Part of NORP - Caucasia has already been ordered to be evacuated by NORP troops , the remainder to be evacuated if required by the Allies after they have studied the situation there . ”

“ ORG . ... This clause to include ORG occupation of ORG ... ”

LAW signed at ORG on DATE between GPE , GPE - Hungary , GPE and GPE , and GPE provided :

“ IV . ... The districts of GPE , GPE , and PERSON will likewise and without delay be cleared of the NORP troops . GPE will not interfere in the reorganisation of the national and international relations of these districts , but leave it to the population of these districts to carry out this reorganisation in agreement with the neighbouring GPE , especially with GPE . ”

ORG . Article CARDINAL of the LAW of GPE , which was adopted on DATE , provided :

“ The inseparable parts of GPE , namely the district of GPE - Sokhoumi , NORP GPE ( district of GPE ) and the district of GPE , shall have the right of self - government for local affairs . ”

Article CARDINAL of the Moscow Accords dated DATE and signed by GPE and GPE provided :

“ GPE agrees to cede to GPE suzerainty of the port of GPE , together with the territory to the north of the border referred to in LAW that forms part of the district of GPE ... on condition that : ( a ) the populations of these territories enjoy a large degree of local administrative autonomy guaranteeing each community its cultural and religious rights and are permitted to introduce in the aforementioned places an agrarian regime in accordance with their wishes . ... ”

On DATE PERSON was granted the status of an autonomous NORP socialist republic forming part of GPE ( SSR ) of GPE .

Article CARDINAL of LAW signed on DATE between the government of GPE and the governments of the NORP GPE , GPE and GPE provided :

“ GPE agrees to cede to GPE suzerainty of the town and port of GPE , together with the territory to the north of the border referred to in LAW that was formerly part of the district of GPE ... on condition that :

( i ) The populations of the places specified in this LAW enjoy a large degree of local administrative autonomy guaranteeing each community its cultural and religious rights and are permitted to introduce in the aforementioned places an agrarian regime in accordance with their wishes .

( ii ) GPE is guaranteed free transit of goods and all materials to or from GPE through the port of GPE , free of customs , without hindrance , free of all duties and imposts and with the right for GPE to use the port of GPE without special costs . In order to implement this provision , ORG of Interested Parties shall be set up immediately after the signature of this LAW . ”

On DATE , DATE after the dissolution of the GPE , ORG adopted LAW , LAW of which provides :

“ The internal territorial arrangement of GPE shall be determined by constitutional law on the basis of the principle of division of power after the full restoration of the jurisdiction of GPE over all its territory . ”

On DATE the LAW was amended by a constitutional law which replaced the term “ LAW ” with “ GPE ” and added CARDINAL paragraph to LAW , which reads :

“ The status of GPE shall be determined by a constitutional law on the status of GPE . ”

On DATE ORG enacted a constitutional law containing similar amendments and additions with respect to GPE . It has not passed any similar legislation with respect to the PERSON region ( formerly , the “ LOC of South Ossetia ” ) .

The proposed constitutional law determining the status of GPE ( see LAW ) has not yet been passed .

Article CARDINAL § CARDINAL , sub - paragraph CARDINAL , of the LAW reads as follows :

“ The President of GPE : ... has the right to grant convicted persons a pardon ; ... ”

The relevant provisions of LAW no . CARDINAL of CARDINAL DATE on the exercise of the right of pardon provide :

“ The President of GPE may grant convicted persons a pardon in accordance with LAW , sub - paragraph DATE , of the LAW . In order to exercise this right , the President shall examine beforehand requests by convicted persons for a pardon that have been submitted by the NORP courts , ... , petitions for a pardon lodged by members of parliament , private individuals , groups of private individuals , organisations or public bodies , and requests for convicted persons to be released from an obligation to pay compensation for pecuniary damage under an order of the NORP courts made in favour of a public undertaking , institution or organisation .

A pardon may be granted at the request of a convicted person if he or she admits his or her guilt and repents . ”

“ Requests and petitions for a pardon shall be examined by ORG before being submitted to the President . The board ... shall be set up to carry out a prior examination of requests and petitions made to the President for a pardon and to make recommendations in that regard . The board 's recommendations shall be examined by the President , who shall take the final decision . ”

“ If granted a pardon , the convicted person shall be entitled to :

( a ) remission of all the main or any ancillary sentence , with or without deletion of his or her name from the criminal records ;

( b ) remission of part of the main or any ancillary sentence , in other words , to a reduction in the length of his or her sentence ;

( c ) have the remainder of his or her sentence commuted to a lesser sentence ;

( d ) remission of all or part of an order of the trial court to pay compensation for pecuniary damage . ”

“ A pardon may not be granted to convicted persons :

( a ) who have been tried for a serious crime and sentenced to a term of imprisonment of DATE and have not yet served CARDINAL of their sentence ;

( b ) who have been sentenced for the first time to a term of imprisonment of DATE and have not yet served CARDINAL of their sentence ;

( f ) who are of bad character according to the institution in which they are being held and have a reputation for unacceptable violations of the applicable prison regulations .

Requests by convicted persons falling within the provisions of this Article shall not be examined by ORG unless special circumstances so warrant . ”

“ Prior to its examination by ORG the request for a pardon shall be sent with the file documents produced by the penal institution concerned for opinion to ORG of GPE , ORG and ORG .

Prior to being examined by ORG the request for remission of an obligation to pay compensation for pecuniary damage shall be sent with the file documents to ORG of GPE , the territorial administrative authorities and self - governing authorities and any legal entity that is a civil party to the proceedings .

The aforementioned authorities ' opinions and legal entity 's observations shall be submitted to ORG within DATE . ”

By Presidential Decree no . CARDINAL of DATE , an Article CARDINAL was added to the aforementioned Decree no . CARDINAL . It provides :

“ The President of GPE shall have the right to grant a pardon to a convicted person in accordance with LAW , sub - paragraph DATE , of the LAW even if the additional conditions set out in this decree are not satisfied . ”

Article CARDINAL of Chapter XIX of the Code of Civil Procedure , which contained the rules of procedure in administrative - law disputes before LAW came into force on DATE provided :

“ The application must be lodged with the court of appeal with territorial jurisdiction for the area in which the body from which the contested act emanated is situated . ”

The relevant provisions of LAW provide :

“ The courts of appeal shall hear as courts of first instance applications concerning : ( a ) the legality of administrative acts of the President of GPE ; ... ”

“ An application for judicial review of an administrative act shall stay execution of that act . ”

NORP The relevant provisions of LAW are as follows :

“ ORG shall set up committees for the duration of its term to conduct preliminary studies of legislative issues , to implement decisions , and to supervise the activities of the ORG and the bodies accountable to ORG for their work .

In the circumstances set out in the LAW and LAW , or at the request of DATE of the members of parliament , committees of inquiry and other temporary committees shall be set up . The representation of the parliamentary majority on such committees shall not exceed CARDINAL of the total number of the committee members . ”

“ Everyone shall be entitled to seek judicial protection of his or her rights and freedoms . ”

Article CARDINAL of LAW , as amended on DATE , reads as follows :

“ CARDINAL . An administrative decision shall be declared null and void

( a ) if it emanates from an unauthorised body or person ;

( b ) if its execution could entail the commission of an offence ;

( c ) if its execution is impossible for objective factual reasons ;

( d ) if it is contrary to the law or if there has been a material breach of the statutory rules governing its preparation or adoption .

A breach of the law that results in a different decision from that which would have been taken had the law been complied with shall constitute a material breach of the statutory rules on the preparation and adoption of administrative decisions .

An administrative decision shall be declared null and void by either the body from which it originated or a higher administrative body on an internal appeal or an administrative court on an application for judicial review . ”

Article CARDINAL of the former Code of Criminal Procedure , which was in force until CARDINAL DATE , provided :

“ If , during the course of the judicial examination of a case , circumstances come to light that indicate that the offence was committed by a person who has not been charged , the court shall make an order for criminal proceedings to be brought against that person and forward the decision to the inquiry and investigative bodies for execution . ”

The relevant provisions of LAW , which came into force on DATE , are as follows :

“ A judgment or other judicial decision shall be ill - founded if : ( a ) a guilty verdict is returned that is not based on the evidence in the case ; ( b ) there are unresolved conflicts of evidence that call into question the validity of the court 's finding ; ( c ) the court failed to take material evidence into account when reaching its decision ; ( d ) the court reached its findings on the basis of evidence that was inadmissible or irrelevant ; ( e ) the court rejected certain evidence in favour of other conflicting evidence without explaining its reasons for so doing ; ( f ) the court did not afford the convicted person the benefit of the doubt . ”

“ CARDINAL . The judgment ... may be quashed in whole or in part if new factual or legal circumstances come to light .

New factual circumstances shall entail a review of any court decision that is illegal or does not contain reasons . There shall be a review in particular when :

( a ) it is judicially established that the evidence of a witness or expert witness or of any other kind that constituted the basis for the impugned court decision was false ; ( b ) it is judicially established that the trial judge , the public prosecutor , the investigating officers or prosecuting authority contravened the law when dealing with the case;(c ) fresh evidence has come to light ... that may prove the innocence of a convicted person or the guilt of an acquitted person ... ; ( d ) fresh evidence has come to light that shows that ... the evidence on which the decision was based was inadmissible . ”

DATE Institutional Law on ORG of GPE of CARDINAL DATE sets out the jurisdiction of the various chambers of ORG , including ORG :

“ The chambers ... of ORG of GPE are courts of cassation which ... hear appeals on points of law against the decisions of the regional courts of appeal , ORG of GPE and PERSON and ORG of ORG . ”

The relevant provisions of LAW are as follows :

“ Criminal proceedings may not be brought and pending criminal proceedings shall be discontinued if the act or omission concerned is not an offence under LAW . ”

“ Judgments must be prepared for execution at the latest within DATE after the date on which they become enforceable . ”

“ CARDINAL . It is for the court which delivered the decision to send the judgment or order for execution . The order relating to execution of the judgment and a copy of the judgment shall be sent by the judge or the president of the court to the body responsible for its enforcement . ... CARDINAL . The body responsible for its enforcement shall immediately inform the court which delivered the judgment of its execution . ... ”

Section CARDINAL(CARDINAL ) and ( CARDINAL ) of LAW of DATE provides :

“ Sentences of imprisonment judicially imposed in a judgment shall be served in prison institutions supervised by ORG of GPE .

In the territory of GPE , these prison institutions shall be as follows :

( a ) ordinary - regime prisons ;

( b ) strict - regime prisons ;

( c ) isolation prisons . ”


The applicant is a NORP citizen , born in DATE and living in GPE , GPE . She is represented before the ORG by Mr PERSON , a lawyer practising in GPE .

The respondent Government are represented by PERSON , Representative of GPE at ORG .

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

On DATE the applicant was granted a general notary licence by ORG . On DATE she was appointed as a notary to the ORG notary firm by a decision of ORG ( ORG Архангельской области , hereinafter referred to as “ the Department of Justice ” ) .

On DATE ORG licensed the applicant to open her own private notary practice . Shortly after she had opened her notary office , she was informed by ORG ( Архангельская Нотариальная Палата , hereinafter referred to as “ the Notary Chamber ” ) that she had a statutory obligation to join it . On DATE she applied for such membership , pursuant to ORG and CARDINAL of LAW , which provide that every private practising notary must be a member of a notary chamber .

The applicant submits that she was informed by the president of ORG that she was required to pay a membership entry fee of CARDINAL times the minimum reference tariff ( минимальный размер оплаты труда ) , which at the time equalled MONEY ( RUR ) / ( CARDINAL FF ) . On DATE the applicant withdrew her application for membership since she was unable to pay this sum and because she disagreed with the manner in which the fee had been established . On DATE the ORG assembly of ORG struck the applicant out of its list .

On DATE , after the applicant had resigned from membership , she received a copy of the decision of the board of ORG , dated DATE , to admit her as a member . It fixed her membership entry fee at CARDINAL times the minimum reference tariff , equal to CARDINAL RUR ( CARDINAL ORG ) to be paid in CARDINAL instalments . However , she did not reapply for membership .

On DATE ORG brought an action before ORG of LOC ( ORG городской суд PERSON , hereinafter referred to as “ the ORG ” ) for the withdrawal of the applicant ’s right to practise as a private notary because she was no longer a member .

On DATE ORG issued an interim decision by which the applicant was forbidden to exercise the profession of private notary before her case had been decided on the merits . The applicant appealed to ORG ( ORG коллегия по гражданским делам Архангельского PERSON , hereinafter referred to as “ the Regional Court ” ) claiming that ORG was not entitled to bring the action and that the relevant national legislation breached her right under LAW not to be compelled to join or to remain in an association . She also maintained that there was no valid reason for the interim decision , since LAW provided that such a decision could only be taken if there was a risk that it would be otherwise impossible to execute the final court decision in the case .

On DATE ORG quashed the interim decision on the grounds that it was insufficiently motivated and unjustified , and referred the case back to ORG . On DATE ORG adjourned the proceedings in order to submit to ORG the question of the constitutionality of the provisions of LAW relating to the obligation for a private practising notary to be a member of a notary chamber . The applicant joined the application , alleging in addition a violation of LAW which guarantees equality before the law .

On DATE ORG judge reopened the proceedings despite the fact that ORG had not yet rendered its decision . On DATE ORG suspended the applicant ’s right to act as a private notary on the basis that she was not a member of ORG and thus practised her profession in violation of the legislation in force .

The applicant appealed . In DATE ORG adjourned the proceedings awaiting the decision of ORG .

On DATE ORG , after a hearing held on DATE , ruled that compulsory membership of a notary chamber is not contrary to Articles DATE and CARDINAL § CARDINAL of the LAW . It stated , inter alia , that notary chambers perform important public law functions , which include the supervision of the exercise of private notaries’ professional duties , and the right to address a court with a request to deprive a notary of the right to practise because of a violation of the law . Having regard to these public law functions and duties , ORG found that the principle of voluntary membership could not apply to notary chambers . As regards the status of notary chambers , ORG added that they were to be considered as non - governmental organisations taking part in ORG power . Further , it ruled that membership of a notary chamber should not be subjected to conditions other than those established by law , in particular membership fees which are not foreseen by the notary legislation .

On DATE , following the ORG decision , ORG held that ORG decision of DATE was in accordance with the law and should remain unchanged .

Subsequently , ORG requested ORG to order the applicant to pay its legal costs ( MONEY ) . On DATE ORG partly granted this claim and ordered the applicant to pay the MONEY . The applicant did not lodge an appeal against that decision .

Article CARDINAL provides that in performing notary acts , notaries have equal rights and duties , irrespective of whether they are employed by ORG notary offices or in private practice . Documents authenticated by notaries are of equal legal validity . It further states that a notary engaged in private practice must be a member of a notary chamber .

According to LAW , a notary chamber is a non - profit making organisation , which is a professional association based on the compulsory membership of private practising notaries . Persons who intend to obtain a license to conduct notary acts may also be members . Notary chambers shall be formed in each republic within GPE , in an autonomous region , autonomous areas , territories and regions , and in the cities of GPE and GPE . The notary chamber shall be a corporate body and shall organise its work on the principles of self - government . It shall conduct its activities in accordance with the legislation of GPE , the republics within GPE , and its statutes . It may engage in business activities insofar as this is necessary for the performance of its statutory tasks . Its property shall not be subject to company property tax . Its statutes shall be adopted by a meeting of its members and shall be registered in accordance with the procedures prescribed for registering the statutes of public organisations .

According to LAW , the membership fees and other payments by the members of the notary chamber are fixed by the general assembly of its members .

According to LAW , the implementation of professional duties by notaries employed at ORG notary offices shall be supervised by ORG justice bodies , and by notary chambers in the private sector .

LAW provides for the equality of all before the law and courts of law , and equality of rights and liberties .

LAW CARDINAL of the LAW provides that no one may be coerced into joining any association or into membership thereof .


Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE .

The applicant worked as a stoker at the FAC port . In DATE he was dismissed as new requirements he did not meet were introduced for his position .

On an unspecified date in DATE the applicant brought an action for unfair dismissal alleging that : CARDINAL ) the dismissal order had not been reasoned ; CARDINAL ) it had been indicated in it that it had been effective as of DATE when it had been issued ; and CARDINAL ) it had not been necessary to change the requirements for his position .

In a judgment of ORG of DATE , upheld by ORG on DATE , the applicant 's dismissal was found to be unlawful .

Upon appeal by the applicant 's former employer , in a judgment of CARDINAL DATE ORG quashed ORG judgment , finding that the latter had misapplied the law .

Following a fresh examination of the case , on DATE ORG delivered a new judgment whereby it dismissed the applicant 's claim .

On DATE the applicant appealed in cassation .

ORG held a hearing to examine the applicant 's appeal on DATE . In a final judgment of CARDINAL DATE it upheld ORG judgment and dismissed the applicant 's arguments in respect of the alleged unlawfulness of the dismissal order , finding that : CARDINAL ) the order indicated the legal ground for the applicant 's dismissal , namely that he did not meet the relevant requirements ; this represented sufficient reasoning in the case ; CARDINAL ) the order had entered into force on the date it had been served on him , any other date indicated in it as a date of entry into force was irrelevant ; and CARDINAL ) the applicant 's former employer had enjoyed discretion , which could not be subject to judicial review , to set the requirements for the applicant 's position .

NORP In DATE and DATE the applicant requested ORG , where the case file was to be archived , for copies of all court judgments in the case . According to him , ORG refused to provide him with a copy of the judgment of ORG of DATE ( see paragraph CARDINAL above ) . Nevertheless , the applicant has enclosed a copy of the said judgment with his application .

Article CARDINAL § CARDINAL of LAW of DATE provides that where an employee considers that he had been unfairly dismissed , he can bring an action to challenge the lawfulness of the dismissal . By LAW , such an action is to be filed with the respective district court , who must examine it within DATE . Where the district court 's decision has been appealed against , the respective regional court must examine the appeal within DATE of its lodging .