No violation of Art. 2;No violation of Art. 8;No violation of Art. 14+8;Indication under Rule 39 continued until judgment becomes final or until further order

The applicant was born in DATE and lives in GPE . The facts , as found by Mr Justice PERSON ( “ Wall J ” ) , who heard the parties’ oral evidence ( see paragraph CARDINAL below ) , are as follows .

On DATE the applicant and her partner , J , commenced treatment at ORG ( “ the clinic ” ) . The applicant had been married and had been referred for fertility treatment at the clinic with her husband in DATE , but had not pursued it because of the breakdown of her marriage .

On DATE the applicant and J were informed , during an appointment at the clinic , that preliminary tests had revealed that the applicant had serious pre - cancerous tumours in both ovaries , and that her ovaries would have to be removed . They were told that because the tumours were growing slowly , it would be possible first to extract some eggs for in vitro fertilisation ( “ ORG ” ) , but that this would have to be done quickly .

The consultation of DATE lasted TIME in total . A nurse explained that the applicant and J would each have to sign a form consenting to the ORG treatment and that , in accordance with the provisions of ORG “ the DATE LAW ) , it would be possible for either of them to withdraw his or her consent at any time before the embryos were implanted in the applicant ’s uterus ( see paragraphs CARDINAL below ) . The applicant asked the nurse whether it would be possible to freeze her unfertilised eggs , but was informed that this procedure , which had a much lower chance of success , was not performed at the clinic . At that point J reassured the applicant that they were not going to split up , that she did not need to consider the freezing of her eggs , that she should not be negative and that he wanted to be the father of her child . Wall J found that J gave these assurances in good faith , because at that time he loved the applicant , genuinely wanted a child with her and wanted to support her during a very difficult period ( see also paragraph CARDINAL below ) .

Thereafter , the couple entered into the necessary consents , by signing the forms required by LAW ( see paragraph CARDINAL below ) .

Immediately beneath the title to the form appeared the following words :

“ NB – do not sign this form unless you have received information about these matters and have been offered counselling . You may vary the terms of this consent at any time except in relation to sperm or embryos which have already been used . Please insert numbers or tick boxes as appropriate . ”

J ticked the boxes which recorded his consent to use his sperm to fertilise the applicant ’s eggs in vitro and the use of the embryos thus created for the treatment of himself and the applicant together . He further ticked the box headed “ Storage ” , opting for the storage of embryos developed in vitro from his sperm for the maximum period of DATE and also opted for sperm and embryos to continue in storage should he die or become mentally incapacitated within that period . The applicant signed a form which , while referring to eggs rather than sperm , essentially replicated that signed by J. Like J , she ticked the boxes providing for the treatment of herself and for the treatment “ of myself with a named partner . ”

On DATE the couple attended the clinic and CARDINAL eggs were harvested and fertilised . CARDINAL embryos were created and consigned to storage . On DATE the applicant underwent an operation to remove her ovaries . She was told that she should wait DATE before attempting to implant any of the embryos in her uterus .

NORP In DATE the relationship broke up . The future of the embryos was discussed between the parties . On DATE J wrote to the clinic to notify it of the separation and to state that the stock of embryos should be destroyed .

The clinic notified the applicant of ORG ’s withdrawal of consent to further use of the embryos and informing her that it was now under a legal obligation to destroy them , pursuant to section CARDINAL(CARDINAL ) of Schedule DATE CARDINAL Act ( see paragraph CARDINAL below ) . The applicant commenced proceedings in ORG , seeking an injunction requiring J to restore his consent to the use and storage of the embryos and a declaration , inter alia , that he had not varied and could not vary his consent of DATE . Additionally she sought a declaration of incompatibility under LAW DATE to the effect that section CARDINAL of , and Schedule CARDINAL to , LAW breached her rights under LAW , CARDINAL and DATE . She also pleaded that the embryos were entitled to protection under LAW and DATE . Interim orders were made requiring the clinic to preserve the embryos until the end of the proceedings .

The trial judge , Wall J , heard the case over DATE and took evidence from , among others , the applicant and J. On DATE , in a CARDINAL page judgment ( PERSON v. ORG and others , [ DATE ] EWHC CARDINAL ( Fam ) ) , he dismissed the applicant ’s claims .

He concluded that J had not given consent to the continuing treatment of the applicant on her own and that there had been no consent on his part to the use of the embryos irrespective of any change of circumstance . He rejected the applicant ’s submission that J was estopped from withdrawing his consent , finding that both the applicant and J had embarked on the treatment in good faith on the basis that their relationship would continue . It did not , however , and in the changed circumstances of separation , it would be inequitable not to allow either party to change his or her mind and to withdraw consent to the treatment .

As to the applicant ’s Convention claims , Wall J held in summary that an embryo was not a person with rights protected under the Convention , and that the applicant ’s right to respect for family life was not engaged . He did , however , accept that the relevant provisions of LAW did interfere with the private life of both parties , but held that it was proportionate in its effect , the foundation for the legislation being a treatment regime based on the twin pillars of consent and the interests of the unborn child ( see further paragraphs CARDINAL - CARDINAL below ) . He considered it entirely appropriate that the law required couples embarking on ORG treatment to be in agreement about the treatment , and permitted either party to withdraw from it at any time before the embryo was transferred into the woman .

Wall J emphasised that the provisions of Schedule QUANTITY ( see paragraph CARDINAL below ) applied equally to all patients undergoing ORG treatment , irrespective of their sex , and concluded with an illustration of how the requirement for joint consent could similarly affect an infertile man :

“ If a man has testicular cancer and his sperm , preserved prior to radical surgery which renders him permanently infertile , is used to create embryos with his partner ; and if the couple have separated before the embryos are transferred into the woman , nobody would suggest that she could not withdraw her consent to treatment and refuse to have the embryos transferred into her . The statutory provisions , like Convention rights , apply to men and women equally . ”

The applicant ’s appeal to ORG was dismissed in a judgment delivered on DATE ( PERSON v. ORG , [ DATE ] EWCA Civ CARDINAL ) .

The court held that the clear policy of LAW was to ensure the continuing consent of both parties from the commencement of treatment to the point of implantation of the embryo , and that “ the court should be extremely slow to recognise or to create a principle of waiver that would conflict with the parliamentary scheme ” . J was thus entitled to withdraw his consent as and when he did and such withdrawal prevented both the use and continued storage of the embryos . The court rejected the applicant ’s argument that J had concealed his ambivalence , thereby inducing her to go forward with him into couple treatment , holding this to be an unjustified challenge to the finding of the trial judge who had had the obvious advantage of appraising the oral evidence of the applicant , J , and the other witnesses ( see paragraphs CARDINAL above ) . ORG was also informed by ORG ’s counsel that ORG clear position in withdrawing his consent was CARDINAL of fundamental rather than purely financial objection .

While there was an interference with the private lives of the parties , Lord Justices PERSON and PERSON found it to be justified and proportionate , for the following reasons :

“ The less drastic means contended for here is a rule of law making the withdrawal of [ J ’s ] consent non - conclusive . This would enable [ the applicant ] to seek a continuance of treatment because of her inability to conceive by any other means . But unless it also gave weight to [ J ’s ] firm wish not to be father of a child borne by [ the applicant ] , such a rule would diminish the respect owed to his private life in proportion as it enhanced the respect accorded to hers . Further , in order to give it weight the legislation would have to require ORG or the clinic or both to make a judgment based on a mixture of ethics , social policy and human sympathy . It would also require a balance to be struck between CARDINAL entirely incommensurable things . ...

... The need , as perceived by ORG , is for bilateral consent to implantation , not simply to the taking and storage of genetic material , and that need can not be met if CARDINAL of the consent is no longer effective . To dilute this requirement in the interests of proportionality , in order to meet [ the applicant ’s ] otherwise intractable biological handicap , by making the withdrawal of the man ’s consent relevant but inconclusive , would create new and even more intractable difficulties of arbitrariness and inconsistency . The sympathy and concern which anyone must feel for [ the applicant ] is not enough to render the legislative scheme ... disproportionate . ”

Lady ORG stated , by way of introduction , that :

“ The DATE Act inevitably uses clinical language , such as gametes and embryos . But it is clear that LAW is concerned with the very emotional issue of infertility and the genetic material of CARDINAL individuals which , if implanted , can lead to the birth of a child . ... Infertility can cause the woman or man affected great personal distress . In the case of a woman , the ability to give birth to a child gives many women a supreme sense of fulfilment and purpose in life . It goes to their sense of identity and to their dignity . ”

ORG noted that neither ORG nor the Green Paper which had preceded the legislation had discussed what was to happen if the parties became estranged during treatment ( see paragraphs DATE below ) . However , she went on to find :

“ Like PERSON and PERSON , I consider that the imposition of an invariable and ongoing requirement for consent in LAW in the present type of situation satisfies LAW . ... As this is a sensitive area of ethical judgment , the balance to be struck between the parties must primarily be a matter for ORG ... . ORG has taken the view that no one should have the power to override the need for a genetic parent ’s consent . The wisdom of not having such a power is , in my judgment , illustrated by the facts of this case . The personal circumstances of the parties are different from what they were at the outset of treatment , and it would be difficult for a court to judge whether the effect of [ J ’s ] withdrawal of his consent on [ the applicant ] is greater than the effect that the invalidation of that withdrawal of consent would have on [ J ] . The court has no point of reference by which to make that sort of evaluation . The fact is that each person has a right to be protected against interference with their private life . That is an aspect of the principle of self - determination or personal autonomy . It can not be said that the interference with [ J ’s ] right is justified on the ground that interference is necessary is protect [ the applicant ’s ] right , because her right is likewise qualified in the same way by his right . They must have equivalent rights , even though the exact extent of their rights under LAW has not been identified .

The interference with [ the applicant ’s ] private life is also justified under LAW because , if [ the applicant ’s ] argument succeeded , it would amount to interference with the genetic father ’s right to decide not to become a parent . Motherhood could surely not be forced on [ the applicant ] and likewise fatherhood can not be forced on [ J ] , especially as in the present case it will probably involve financial responsibility in law for the child as well . ”

On the issue of discrimination , Lord Justices PERSON and PERSON considered that the true comparison was between women seeking ORG treatment whose partners had withdrawn consent and those whose partners had not done so ; Lady ORG considered that the real comparators were fertile and infertile women , since the genetic father had the possibility of withdrawing consent to ORG at a later stage than in ordinary sexual intercourse . The CARDINAL judges were nevertheless in agreement that , whatever comparators were chosen , the difference in treatment was justified and proportionate under LAW same reasons which underlay the finding of no violation of LAW . ORG further refused leave to appeal against ORG finding that the embryos were not entitled to protection under LAW , since under domestic law a foetus prior to the moment of birth , much less so an embryo , had no independent rights or interests .

On DATE ORG refused the applicant leave to appeal against ORG judgment .

The birth of the first child from ORG in DATE prompted much ethical and scientific debate in GPE , which in turn led to the appointment in DATE of ORG under the chairmanship of PERSON to “ consider recent and potential developments in medicine and science related to human fertilisation and embryology ; to consider what policies and safeguards should be applied , including consideration of the social , ethical and legal implications of these developments ; and to make recommendations . ” The Committee reported in DATE ( ORG ) and its recommendations , so far as they related to ORG treatment , were set out in a ORG issued for public consultation . After receipt of representations from interested parties , they were included in a ORG , ORG : ORG , published in DATE ( Cm CARDINAL ) . The White Paper noted “ the particular difficulties of framing legislation on these sensitive issues against a background of fast - moving medical and scientific development ” . Nonetheless , following further consultation , ORG and Embryology Bill DATE was published , and passed into law as ORG Embryology Act DATE .

NORP The solution recommended and embodied in LAW was to permit , subject to certain express prohibitions , the creation and subsequent use of live human embryos produced in vitro , subject to a number of conditions , restrictions and time limits .

Thus , by section CARDINAL(CARDINAL ) of the LAW , no person shall bring about the creation of an embryo , or keep or use an embryo except in pursuance of a licence . The storage or use of an embryo can only take place lawfully in accordance with the requirements of the licence in question . The contravention of section CARDINAL ( CARDINAL ) is an offence ( created by section CARDINAL(CARDINAL)(a ) of the LAW ) .

One of the policy objectives of LAW was to promote the welfare of the child . Thus , section CARDINAL(CARDINAL ) provides :

“ A woman shall not be provided with treatment services unless account has been taken of the welfare of any child who may be born as a result of the treatment ( including the need of that child for a father ) , and of any other child who may be affected by the birth . ”

The second important policy objective of the DATE Act was to ensure that both gamete providers ( i.e. the providers of the sperm and eggs ) continued to consent from the commencement of the treatment until the implantation of the embryos . The primacy of continuing bilateral consent had been central to ORG recommendations about the regulation of ORG treatment and although neither ORG nor the Green Paper had discussed what was to happen if the parties became estranged during treatment , the White Paper emphasised that donors of genetic material would have the right under the proposed legislation to vary or withdraw their consent at any time before the embryos were used .

By section CARDINAL(c ) of the LAW , it is a condition of every licence granted that the provisions of Schedule CARDINAL to the LAW , which deal with consent , shall be complied with .

Schedule CARDINAL provides :

“ Consents to use of gametes or embryos

Consent

A consent under this Schedule must be given in writing and , in this Schedule , ‘ effective ORG means a consent under this Schedule which has not been withdrawn .

— ( CARDINAL ) A consent to the use of any embryo must specify CARDINAL or more of the following purposes—

( a ) use in providing treatment services to the person giving consent , or that person and another specified person together ,

( b ) use in providing treatment services to persons not including the person giving consent , or

( c ) use for the purposes of any project of research ,

and may specify conditions subject to which the embryo may be so used .

( CARDINAL ) A consent to the storage of any gametes or any embryo must—

( a ) specify the maximum period of storage ( if less than the statutory storage period ) , and

( b ) NORP state what is to be done with the gametes or embryo if the person who gave the consent dies or is unable because of incapacity to vary the terms of the consent or to revoke it ,

and may specify conditions subject to which the gametes or embryo may remain in storage .

( CARDINAL ) A consent under this Schedule must provide for such other matters as the ORG may specify in directions .

( CARDINAL ) A consent under this Schedule may apply—

( a ) to the use or storage of a particular embryo , or

( b ) in the case of a person providing gametes , to the use or storage of any embryo whose creation may be brought about using those gametes ,

and in the paragraph ( b ) case the terms of the consent may be varied , or the consent may be withdrawn , in accordance with this Schedule either generally or in relation to a particular embryo or particular embryos .

Procedure for giving consent

CARDINAL ) Before a person gives consent under this Schedule—

( a ) he must be given a suitable opportunity to receive proper counselling about the implications of taking the proposed steps , and

( b ) he must be provided with such relevant information as is proper .

( CARDINAL ) Before a person gives consent under this Schedule he must be informed of the effect of paragraph CARDINAL below .

Variation and withdrawal of consent

CARDINAL.—(CARDINAL ) The terms of any consent under this Schedule may from time to time be varied , and the consent may be withdrawn , by notice given by the person who gave the consent to the person keeping the gametes or embryo to which the consent is relevant .

( CARDINAL ) The terms of any consent to the use of any embryo can not be varied , and such consent can not be withdrawn , once the embryo has been used—

( a ) in providing treatment services , or

( b ) for the purposes of any project of research .

Use of gametes for treatment of others

CARDINAL ) A person ’s gametes must not be used for the purposes of treatment services unless there is an effective consent by that person to their being so used and they are used in accordance with the terms of the consent .

( CARDINAL ) A person ’s gametes must not be received for use for those purposes unless there is an effective consent by that person to their being so used .

( CARDINAL ) This paragraph does not apply to the use of a person ’s gametes for the purpose of that person , or that person and another together , receiving treatment services .

In vitro fertilisation and subsequent use of embryo

CARDINAL.—(CARDINAL ) A person ’s gametes must not be used to bring about the creation of any embryo in vitro unless there is an effective consent by that person to any embryo the creation of which may be brought about with the use of those gametes being used for one or more of the purposes mentioned in paragraph CARDINAL(CARDINAL ) above .

( CARDINAL ) An embryo the creation of which was brought about in vitro must not be received by any person unless there is an effective consent by each person whose gametes were used to bring about the creation of the embryo to the use for CARDINAL or more of the purposes mentioned in paragraph CARDINAL(CARDINAL ) above of the embryo .

( CARDINAL ) An embryo the creation of which was brought about in vitro must not be used for any purpose unless there is an effective consent by each person whose gametes were used to bring about the creation of the embryo to the use for that purpose of the embryo and the embryo is used in accordance with those consents .

( CARDINAL ) Any consent required by this paragraph is in addition to any consent that may be required by paragraph CARDINAL above .

Embryos obtained by lavage , etc .

Storage of gametes and embryos

CARDINAL ) A person ’s gametes must not be kept in storage unless there is an effective consent by that person to their storage and they are stored in accordance with the consent .

( CARDINAL ) An embryo the creation of which was brought about in vitro must not be kept in storage unless there is an effective consent , by each person whose gametes were used to bring about the creation of the embryo , to the storage of the embryo and the embryo is stored in accordance with those consents .

( CARDINAL ) An embryo taken from a woman must not be kept in storage unless there is an effective consent by her to its storage and it is stored in accordance with the consent . ”

The material effect of Schedule CARDINAL was summarised in the judgment of ORG Justices PERSON and PERSON as follows :

“ ( i ) Those contemplating the storage and/or use of embryos created from their gametes must first be offered counselling ; ( ii ) they must specifically be informed of the circumstances in which consent to the storage or use of an embryo may be varied or withdrawn ; ( iii ) consent given to the use of an embryo must specify whether the embryo is to be used to provide treatment services to the person giving consent , or to that person together with another , or to persons not including the person giving consent ; ( iv ) an embryo may only be stored while there is effective consent to its storage from both gamete providers , and in accordance with the terms of the consent ; ( v ) an embryo may only be used while there is an effective consent to its use from both gamete providers , and in accordance with the terms of that consent ; ( vi ) consent to the storage of an embryo can be varied or withdrawn by either party whose gametes were used to create the embryo at any time ; ( vii ) consent to the use of an embryo can not be varied or withdrawn once the embryo has been used in providing treatment services . ”

On the basis of the material available to the ORG , including the “ Medically Assisted Procreation and the Protection of the Human Embryo Study on the ORG in GPE ” ( ORG , DATE ) , the situation in the various Member ORG would appear to be as follows . In GPE , GPE , GPE and GPE , the right of either party freely to withdraw his or her consent at any stage up to the moment of implantation of the embryo in the woman is expressly provided for in legislation ; in the GPE , this rule is included in secondary legislation . In GPE , GPE and GPE clinical practice appears to conform to this model , and it further appears that , as a matter of law or practice , in GPE , GPE and GPE the male donor enjoys a similar power of veto to that afforded by GPE .

A number of countries have , however , regulated the consent issue differently . In GPE , for example , in recognition of the fact that medically - assisted reproduction represents a far heavier burden for the woman than for the man , and absent any prior written agreement to the contrary , the woman is entitled to proceed with the treatment notwithstanding the death of her partner or the divorce of the couple . In GPE , GPE and GPE the man ’s consent can be revoked only up to the point of fertilisation , beyond which it is the woman alone who decides if and when to proceed . In GPE , the man ’s right to revoke his consent is recognised only where he is married to and living with the woman .

The field of medically assisted reproduction is not regulated at federal level in GPE , and since few GPE have introduced laws concerning the subsequent withdrawal of consent by CARDINAL party , it has been left to the courts to determine how the conflict between the parties should be resolved . There is , therefore , a series of judgments by ORG regarding the disposal of embryos created through ORG .

In PERSON , ( CARDINAL S.W.CARDINALd CARDINAL , CARDINAL ; DATE ) , ORG held in DATE :

“ ... disputes involving the disposition of pre - embryos produced by in vitro fertilization should be resolved , first , by looking to the preferences of the progenitors . If their wishes can not be ascertained , or if there is dispute , then their prior agreement concerning disposition should be carried out . If no prior agreement exists , then the relative interests of the parties in using or not using the pre - embryos must be weighed . Ordinarily , the party wishing to avoid procreation should prevail , assuming that the other party has a reasonable possibility of achieving parenthood by means other than use of the pre - embryos in question . If no other reasonable alternatives exist , then the argument in favor of using the pre - embryos to achieve pregnancy should be considered . However , if the party seeking control of the pre - embryos intends merely to donate them to another couple , the objecting party obviously has the greater interest and should prevail . ”

In PERSON v. PERSON ( CARDINAL GPE . TIME ) , the couple had signed an agreement with the clinic which stipulated that , “ in the event that we ... are unable to make a decision regarding the disposition of our frozen pre - zygotes ” , the embryos could be used for research . When the couple separated , PERSON sought to overturn the agreement and proceed to implantation . Although she prevailed at first instance ( the court reasoning that just as a woman has exclusive control over her reproduction so should she have the final say in the area of ORG ) , ORG decided that the existing agreement was sufficiently clear and should be honoured .

In GPE v. LANGUAGE , ( DATE , CARDINAL ORG CARDINAL ; CARDINAL N.E. CARDINALd DATE ) there was again a previous written agreement , according to which , in the event of separation , the embryos were to be given to the wife , who now wished to continue with the treatment , contrary to the wishes of the husband . However , ORG considered that the arrangement should not be enforced because , inter alia , as a matter of public policy “ forced procreation is not an area amenable to judicial enforcement ” . Rather , “ freedom of personal choice in matters of marriage and family life ” should prevail .

This judgment was cited with approval by ORG , in PERSON ( DATE PERSON ) . Here , it was the wife who sought the destruction of the embryos while the husband wanted them preserved for use with a future partner . Although constitutional arguments were advanced on behalf of the wife , the court declined to approach the matter in this way , reasoning that it was in any event not sure that enforcing the alleged private contract would violate her rights . Instead , the court subscribed to the view taken in the PERSON case regarding public policy and ordered that the wife ’s wishes be observed .

In the final case in this series , Litowitz v. Litowitz , ( DATE , CARDINAL ) , ORG of GPE decided in DATE to adopt a contractual analysis and to honour the couple ’s agreement with the clinic not to store the embryos for DATE .

In GPE v. PERSON ( CARDINAL ) LAW ( Isr ) ) a childless NORP couple decided to undergo ORG and then to contract with a surrogate in GPE to bear their child because the wife would not be able to carry the foetus to term . The couple signed an agreement with the surrogate , but not with the ORG clinic regarding the disposal of the embryos in the event of their separation . The wife had her last CARDINAL eggs extracted and fertilised with her husband ’s sperm . The couple then separated , before the embryos could be implanted in the surrogate , and the husband , who had gone on to have children with another woman , opposed the use of the embryos .

ORG found in favour of the wife , holding that the husband could no more withdraw his agreement to have a child than a man who fertilises his wife ’s egg through sexual intercourse . A CARDINAL - judge panel of ORG reversed this decision , upholding the man ’s fundamental right not to be forced to be a parent . ORG reheard the case as a panel of CARDINAL judges and decided , CARDINAL , in favour of the wife . Each judge wrote a separate opinion . The judges in the majority found that the woman ’s interests and in particular her lack of alternatives to achieve genetic parenthood outweighed those of the man . CARDINAL of the minority judges , including the Chief Justice , reached the opposite conclusion , emphasising that the wife had known that her husband ’s consent would be required at every stage and that the agreement could not be enforced after the couple had become separated . The fourth of the dissenters held that the man ’s consent was required before the obligation of parenthood could be imposed on him .

The General Rule stated in LAW as follows :

“ An intervention in the health field may only be carried out after the person concerned has given free and informed consent to it .

This person shall beforehand be given appropriate information as to the purpose and nature of the intervention as well as on its consequences and risks .

The person concerned may freely withdraw consent at any time . ”

Principle CARDINAL of the principles adopted by the ad hoc committee of experts on progress in the biomedical sciences , the expert body within ORG which preceded the present ORG ( ORG , DATE ) , stated :

“ CARDINAL . The techniques of artificial procreation may be used only if the persons concerned have given their free , informed consent , explicitly and in writing , in accordance with national requirements ... ”

Finally , LAW provides :

“ DATE Consent

a ) Any preventive , diagnostic and therapeutic medical intervention is only to be carried out with the prior , free and informed consent of the person concerned , based on adequate information .

The consent should , where appropriate , be express and may be withdrawn by the person concerned at any time and for any reason without disadvantage or prejudice . ”


Violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Free expression of opinion of people;Stand for election);Non-pecuniary damage - award

Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen

The applicant was born in DATE and lives in GPE .

The applicant stood for the elections to ORG as a candidate of the opposition bloc YeS ( FAC ) . He was registered as a candidate by ORG ( “ the ConEC ” ) for the single - member ORG no . DATE .

On DATE the ConEC decided to apply to ORG with a request to cancel the applicant ’s registration as a candidate owing to the reports of his alleged involvement in activities incompatible with the requirements of LAW . According to TIME of the PERSON meeting , CARDINAL members of the ConEC participated in the meeting . The applicant was not informed about this meeting in advance and was not invited to it . In support of its decision , the ConEC relied on CARDINAL grounds , summarised below .

Firstly , the PERSON noted that it had received written statements from CARDINAL voters claiming that the applicant had either promised or given them money in exchange for their promise to vote for him . CARDINAL of them claimed that they had each received CARDINAL old NORP manats ( at that time , a sum equivalent to MONEY ) in cash from the applicant and , as a proof of this claim , handed in this cash to the ConEC . None of these voters were heard in person by the ConEC . The ConEC considered that such actions by the applicant were contrary to LAW concerning the illegal means of gaining voter support .

Secondly , relying on unspecified reports , the PERSON noted that the applicant had made public statements “ against the constitutional foundations of the ORG ” by advocating for the return to power of the Chairman of ORG and former President PERSON GPE ( who had been in exile for DATE ) .

Thirdly , the PERSON noted that on DATE the applicant was planning to organise a demonstration in front of the ConEC building in order to protest against the cancellation of the registration of another candidate from the same constituency , which had taken place earlier .

On DATE ORG examined the case and cancelled the applicant ’s registration as a candidate , in accordance with Articles CARDINAL.CARDINAL and CARDINAL of LAW . During the hearing , the applicant denied all the accusations and argued that the case had been fabricated and that the allegations of bribery had not been proven . Having regard to the ConEC ’s submissions , the written statements of the CARDINAL voters , and several banknotes sealed in plastic bags ( as “ material evidence ” ) , ORG found that the applicant had offered money to voters in exchange for their votes in his favour , thus breaching LAW of LAW . It appears that the court considered that this was a sufficient ground for the cancellation of the applicant ’s registration and did not examine the other CARDINAL grounds mentioned in the ConEC ’s request .

According to the applicant , CARDINAL members of the ConEC ( CARDINAL of whom had allegedly participated in the meeting of DATE ) wrote affidavits , addressed to ORG , in which they claimed that the alleged ConEC meeting of DATE had actually not taken place and that the minutes of that meeting , submitted to ORG , constituted a false document . These affidavits were not accepted by ORG because they had not been notarised . Subsequently , CARDINAL of the above ConEC members wrote similar notarised affidavits addressed to ORG , while one of them retracted his earlier statement .

According to the Government , on DATE CARDINAL of the abovementioned ConEC members , ORG , wrote another affidavit in which he retracted his previous statement and maintained that he had been forced by the applicant and his representatives to write a statement that there had been no ConEC meeting .

The applicant lodged an appeal with ORG , arguing that the allegations against him had been fabricated and that the evidence used against him had been tenuous , uncorroborated and wrongly assessed . In support of his submissions he attached , inter alia , the above - mentioned affidavits by the ConEC members .

On DATE ORG dismissed the applicant ’s appeal and upheld ORG judgment of CARDINAL DATE . It refused to admit the documents submitted by the applicant , finding

Article CARDINAL of LAW of DATE provides as follows :

“ CARDINAL . Candidates ... are prohibited from gaining the support of voters in the following ways :

CARDINAL.CARDINAL.CARDINAL . giving money , gifts and other valuable items to voters ( except for badges , stickers , posters and other campaign materials having nominal value ) , except for the purposes of organisational work ;

CARDINAL.CARDINAL.CARDINAL . NORP giving or promising rewards based on the voting results to voters who were involved in organisational work ;

selling goods on privileged terms or providing goods free of charge ( except for printed material ) ;

CARDINAL.CARDINAL.CARDINAL . providing services free of charge or on privileged terms ;

CARDINAL.CARDINAL.CARDINAL . influencing the voters during the pre - election campaign by promising them securities , money or other material benefits , or providing services that are contrary to the law . ”

In accordance with Articles CARDINAL and CARDINAL of LAW , the relevant electoral commission may request a court to cancel the registration of a candidate who engages in activities prohibited by LAW of the LAW .

Complaints concerning decisions of electoral commissions must be examined by the courts within DATE ( unless the Electoral Code provides for a shorter period ) . The period for lodging an appeal against a court decision is also DATE ( Article MONEY ) .

LAW sets out rules for the examination of applications concerning the protection of electoral rights ( or the right to participate in a referendum ) . According to LAW , such applications must be submitted directly to the appellate courts in accordance with the procedure established by LAW .

Applications concerning the protection of electoral ( referendum ) rights must be examined within DATE of receipt of the application , except for applications submitted on DATE or the day after DATE , which must be examined immediately ( Article CARDINAL ) . The court must hear the case in the presence of the applicant , a representative of the relevant electoral commission and any other interested parties . Failure by any of these parties to attend the hearing after due notification does not preclude the court from examining and deciding the case ( Article CARDINAL ) .

The appellate court ’s decision can be appealed against to the higher court ( the court of cassation ) within DATE . This appeal must be examined within DATE , or immediately if submitted on DATE or DATE . The decision of the court of cassation is final ( Article CARDINAL ) .


Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in PERSON . He was represented before ORG by Ms J. PERSON , a lawyer practising in GPE . The respondent Government were represented by their Agent , Mr PERSON , from ORG .

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

On an unspecified date in DATE the applicant was charged with trafficking in women and corrupting the morals of youth .

On DATE the police notified his counsel that Ms T. , the key witness whom the applicant had allegedly taken to GPE to carry out prostitution in DATE , would be questioned by the investigator on DATE . Counsel informed them that she could not attend the questioning due to a concurrent hearing before a court .

PERSON testified as follows :

“ [ I ] was again advised by reading a printed form ‘ ORG and LAW ... I fully understood the contents of the notice , and ... I do not have any reason not to testify , I wish to and will testify ... I will tell the truth .

As to my trip to GPE ... with a view to prostitution ... [ in ] DATE , ... I travelled with a friend of PERSON , a certain PERSON , ... PERSON introduced us on DATE on which I received my passport , ... on DATE . ... [ On DATE ] PERSON picked me up ... at the GPE club in GPE ... and we travelled to GPE . He knew the purposes of our trip , [ that is , ] that he was taking me abroad with a view to prostitution . ... After having passed GPE , we met PERSON in a tavern ... He said that we would continue on to GPE to meet a certain PERSON . ... , on DATE we met PERSON at a petrol station where we had breakfast and afterwards we got into PERSON ’s car , PERSON leaving his car there . At TIME , we reached the town of [ S. ] in GPE ... I was handed over to the owner of a club called Joe ’s Sauna Club . PERSON noted the address of the club and , together with PERSON , left ... I have not seen PERSON since then . ”

PERSON was also shown photographs and identified the applicant as the person with whom she had travelled to GPE .

On DATE ORG ( okresní soud ) heard the applicant , who pleaded not guilty . The hearing was adjourned until DATE in order to summon other witnesses , including PERSON

DATE the court adjourned the hearing CARDINAL more times to summon PERSON However , despite the attempts of the police to find out her whereabouts and bring her to the court and the court ’s search in the central register of citizens in GPE and GPE , PERSON failed to appear before the court . Therefore , on DATE the court , by virtue of section GPE ) of LAW , read out her testimony from the preliminary proceedings . At the end of the trial , ORG convicted the applicant of trafficking in women and corrupting the morals of youth and sentenced him to DATE of imprisonment with CARDINAL years’ probation . The court held that :

“ ... [ The applicant is ] incriminated by the testimony of PERSON , which was read out at trial ... since the court did not succeed in assuring her presence at the main hearing ; she was no longer at the place of her permanent residence and was probably living at an unknown address in GPE . ...

The criminal activities of the accused ... are demonstrated by documentary evidence such as the lists ... of telecommunication operations of the accused and PERSON [ and another witness giving evidence against the applicant ’s co - accused ] and ... the transcriptions of the interceptions of their telephone conversations ... It follows clearly from the material in evidence that [ the applicant ’s co - accused ] in the first place but also [ the applicant ] knew that the girls , all of whom were not yet identified , were involved in prostitution , both in GPE and abroad , and it is clear that the accused together with other persons ... participated in managing the prostitution of these girls . ... ”

On DATE ORG ( krajský soud ) , further to an appeal by the applicant , upheld ORG judgment . It reiterated that the applicant had been incriminated by the testimony of Ms T. , who had been properly advised about her right not to give testimony and about whose questioning the applicant ’s counsel had been notified .

On DATE ORG ( PERSON ) declared the applicant ’s appeal on points of law ( dovolání ) inadmissible .

On DATE ORG ( PERSON ) dismissed as manifestly ill - founded a constitutional appeal by the applicant in which he maintained that the ordinary courts had based their findings on PERSON testimony , which had merely been read out at trial . He further submitted that the witness had not been duly advised prior to her interview and that her testimony had therefore been obtained contrary to the law . The court endorsed the conclusion of the ordinary courts that the witness had been duly advised and held that ORG had made a sufficient effort to summon PERSON

Article CARDINAL § CARDINAL ( a ) provides that the statement of a witness given in preliminary proceedings may be read out at the trial if the witness has died or has gone missing , is abroad and is thus unreachable , or has become ill and is therefore not in a position to be heard .


Remainder inadmissible;Violation of Art. 5-3;Violation of Art. 5-4

Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Rait Maruste;Renate Jaeger;Volodymyr Butkevych;Zdravka Kalaydjieva

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

On DATE the applicant was charged with attempted tax evasion under sections CARDINAL § CARDINAL , QUANTITY b ) and CARDINAL § § CARDINAL and CARDINAL c ) of LAW .

On DATE the applicant and CARDINAL other persons , inter alia PERSON , were officially indicted .

A main hearing before ORG ( okresní soud ) was scheduled DATE to be held in DATE . It took place on DATE and then on DATE . During the hearing of DATE the applicant declared that he refused to attend further hearings ; these then took place in his absence . The court requested a report from the prison doctor on the applicant ’s bizarre behaviour during the main hearing of DATE and with regard to the report on the applicant ’s injury that occurred on DATE in custody and to the report of DATE on the use of a coercive measure against the applicant in custody due to his aggressiveness . It his report the prison doctor noted that the applicant was not able to attend the main hearings . It became necessary to carry out a psychological and psychiatric examination of the applicant , and the prison doctor did not recommend that the applicant attend the new main hearing . On DATE the applicant ’s and PERSON ’s criminal case was severed for separate consideration and decision .

On DATE the applicant was moved to the prison hospital whence he was transported back to the custody prison on DATE .

On DATE ORG submitted the applicant ’s and PERSON ’s criminal case to ORG ( Vrchní soud ) for the purpose of a decision on the regional prosecutor ’s complaint that concerned , inter alia , PERSON ’s detention during judicial proceedings . ORG presiding judge asked ORG for the file in order to make a copy for the applicant ’s and PERSON ’s severed criminal case . According to the Government , the file was lent to ORG on DATE . Therefore , between CARDINAL DATE and CARDINAL DATE ORG did not have the relevant file at its disposal .

On DATE ORG ( krajský soud ) transferred the applicant ’s and PERSON ’s criminal case to ORG as a court with jurisdiction in rem and local jurisdiction .

On DATE ORG convicted the applicant of tax evasion and sentenced him to CARDINAL months’ imprisonment . On DATE , the applicant was released from custody .

On DATE ORG dismissed an appeal by the applicant against ORG judgment .

On DATE ORG approved the deduction of the applicant ’s pre - trial detention from his sentence .

On DATE ORG remanded the applicant in custody under LAW b ) of LAW ( “ the ORG ” ) , with backdated effect from DATE . The court held that there was a risk that the applicant would influence witnesses and his co - accused .

On DATE ORG upheld the detention order , stating that the applicant ’s detention was necessary , inter alia , in order to confront him with PERSON , to interview the witnesses and eventually to confront the witnesses with the co - accused . The court found , therefore , that in this stage of the proceedings , the applicant ’s detention was justified CARDINAL b ) of the ORG .

On DATE ORG rejected the applicant ’s first request for release , noting that the grounds for custody still persisted under LAW b ) of the ORG . The court noted that other persons would be examined , which was supported by the content of the confrontation carried out between the applicant and PERSON There continued to be concerns that the applicant would interfere with witnesses .

On DATE ORG rejected the applicant ’s complaint filed on DATE against this decision .

On DATE ORG decided to release the applicant on a request for release lodged by him on DATE . On DATE ORG , on an appeal by ORG , ( krajský prokurátor ) , quashed ORG decision . In the court ’s opinion , grounds for custody still existed under LAW b ) of the ORG , which consisted of the possibility of his interfering with witnesses who had not yet been examined , and there was also a risk of possible interference with the co - accused .

On DATE ORG requested an extension of the applicant ’s detention due to the fact that his custody would end on DATE and it would not be possible to conclude the case by then because of its scope .

On DATE ORG filed a complaint against ORG decision of CARDINAL DATE in which the court had rejected ORG motion . On DATE ORG granted this complaint , quashed ORG decision and extended the applicant ’s custody to DATE pursuant to LAW ORG .

On DATE ORG extended the applicant ’s detention until DATE , on a request by ORG DATE , concluding that a risk still persisted that the applicant would influence witnesses . On DATE ORG rejected a complaint filed by the applicant on DATE against ORG decision , referring , inter alia , to the complex character of the case .

On DATE ORG granted a request made by the applicant on DATE and decided to release him from custody . It found :

“ After examining the applicant ’s requests , the opinions of the prosecutor and the ... investigation file , the court drew the conclusion that the reasons for [ the applicant ’s ] detention ... ceased to exist . The accused ... is prosecuted for a single [ offence ] , ... necessary investigative acts were carried out and , on DATE , the investigation was closed ... In the course of the investigation , nothing was found which would prove or indicate that the accused ... attempted to influence the witnesses or his co - accused or that he tried to jeopardise the discovery of facts , which were essential for the criminal investigation . Thus , there are no longer the original grounds for concern , within the meaning of CARDINAL b ) of the [ ORG ] , and taking into account that there are no other reasons for the detention , [ the court ] decided to release the accused from custody ... ”

On DATE ORG , upon ORG appeal of DATE , quashed ORG decision and ordered the applicant ’s continued remand in custody , stating :

“ ORG filed a complaint against the decision of ORG ... maintaining that the reasons for the accused ’s detention under LAW b ) of the [ ORG ] continue to exist , having regard to the fact that there is still a risk that , if released , the accused would influence witnesses and/or the co - accused who have not yet been interviewed by the court , and , in addition , the residence of CARDINAL witness has not yet been established . ”

On DATE ORG dismissed a further request by the applicant for release from custody , filed on DATE . On CARDINAL DATE ORG rejected a complaint by the applicant of CARDINAL DATE against ORG decision .

On DATE ORG rejected a request by the applicant for release from custody of CARDINAL DATE . On DATE ORG rejected a subsequent complaint by the applicant of DATE against ORG decision .

While transferring the case to ORG ( see paragraph CARDINAL above ) , ORG dealt of its own motion under LAW of the ORG with the question whether grounds for remaining the applicant in custody continued to apply , and decided to keep him in detention . On DATE the applicant filed a complaint against this decision , which was rejected by ORG on DATE .

On DATE the applicant requested release , which ORG rejected on DATE . ORG dismissed a complaint by the applicant against this decision on DATE .

On DATE ORG rejected a request by ORG of DATE for an extension of the applicant ’s detention under LAW of the ORG by DATE , that is to CARDINAL DATE .

On DATE the applicant was released from custody at his request , made on DATE .

On DATE the applicant lodged a constitutional appeal ( ústavní stížnost ) with ORG ( GPE PERSON ) against ORG decision of DATE claiming , inter alia , that there had been no reason for keeping him in custody .

On DATE ORG and ORG were invited to submit their observations on the constitutional appeal . ORG observations were submitted on CARDINAL DATE and ORG observations on DATE .

NORP In subsequent period , ORG regularly requested the ordinary courts to lend it file materials . From ORG file it can be seen that requests to lend the file materials or furnish information as to the location of the file materials were made on DATE , DATE and DATE , DATE , DATE , DATE and DATE May , DATE , DATE , CARDINAL and DATE , DATE , DATE and DATE , and DATE , DATE and DATE .

On DATE ORG found that the reasons for the applicant ’s continued detention , as provided for in CARDINAL b ) of the ORG , were well - founded . It stated , however , that ORG had failed to reason its decision of DATE sufficiently and that the applicant ’s rights to a fair trial , guaranteed by LAW práv a svobod ) , and to liberty , LAW CARDINAL § CARDINAL of the Convention , had been violated . It therefore quashed ORG decision .

Under LAW b ) an accused person may be remanded in custody only if there exist specific grounds to believe that he or she will try to influence witnesses or co - accused who have not yet been heard by the court or otherwise frustrate the investigation into the facts which are of importance for the criminal proceedings , or will commit an offence which he or she was preparing or threatened to commit .

Pursuant to LAW , a person ’s detention may last as long as is necessary . If the detention lasted DATE at the pre - trial stage and the release of the accused person would have jeopardised or substantially complicated the achievement of the aim of the proceedings , a judge can extend the detention for DATE , or a chamber for DATE .

Under LAW a person ’s detention at the pre - trial stage and at trial should not exceed DATE . If , because of the complexity of the matter or for other serious reasons , it has not been possible to complete the criminal proceedings within this period , and if the release of the accused person would jeopardise or substantially complicate the achievement of the aim of the proceedings , ORG can extend the detention for the necessary period .


The applicant is a NORP national , born in DATE , and resides in PERSON .

On DATE , ORG ( ORG ) of PERSON ordered the applicant to remove a garden house and a QUANTITY high garden fence , which the applicant had built without a construction permit as required under LAW ) , or to reduce the height of the fence to QUANTITY . He was further informed that , in accordance with LAW ( PERSON ) , failure to comply with this order would entail a penalty of ORG . CARDINAL per week for the garden house and ORG . CARDINAL per week for the fence , not exceeding a total amount of ORG . CARDINAL .

The applicant ’s objection ( bezwaar ) against the decision of DATE was rejected by ORG on DATE . As regards the garden fence , ORG noted that , under LAW ( j ) of LAW , a construction permit is required for fences QUANTITY . Although the applicable rules did allow exemptions , no exemption could be granted in the applicant ’s case given the local urban development situation , the dominant character of the fence and the fact that , according to ORG ( GPE ) , the fence did not comply with the reasonable requirements of external appearances of buildings ( “ redelijke eisen van welstand ” ) . The applicant ’s subsequent appeal to ORG of ORG ( Arrondissementsrechtbank ) of GPE was rejected on DATE .

By letter of DATE , the applicant filed an appeal against the decision of CARDINAL DATE with ORG ( Afdeling Bestuursrechtspraak ) of ORG . In this letter the applicant informed ORG that , in the meantime , the garden house had been moved to a different - for the municipal authorities acceptable - place on his LOC . As regards the decision concerning the fence the applicant invoked , inter alia , LAW and in this context argued that this fence had been built on his property in order to protect the privacy of his family . He explained that the aim of the fence was to protect his pets , plants and bushes from footballs of soccer playing children landing in his garden , and to block the irritating lights from cars passing by and the strong light from the central hall of the nearby home for the elderly .

In its decision of DATE , ORG rejected the applicant ’s appeal . It noted that , according to LAW , no construction permit is required for a fence built outside the building line ( rooilijn ) if its height does not exceed QUANTITY . As the applicant ’s LOC lie on a corner of CARDINAL streets and as the fence , which was QUANTITY , had been built outside the front building line , ORG was competent to issue the order for removal . It further held that it had not been established that the fence qualified for legalisation .

ORG also rejected the applicant ’s argument under LAW , holding that the submitted aim of the fence , namely to prevent children ’s footballs from ending up on the applicant ’s premises , was insufficient for a finding that the applicant ’s right to respect for his private life or home came into play .


No violation of Art. 5-1-c;Violation of Art. 5-4;No violation of Art. 5-4;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient

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

The applicant was born in DATE and is a citizen of GPE .

On DATE , while the applicant was temporarily staying in GPE ( LOC , GPE ) , the NORP police initiated criminal proceedings concerning sexual assault of juveniles purportedly committed by him during his previous trip to GPE , in DATE .

On DATE the applicant was apprehended by the police and taken into custody on suspicion of having committed sexual assault of juveniles . According to the arrest report , the applicant had been identified by an eyewitness whose name was not indicated . The charges against the applicant were explained to him in LANGUAGE by an officer from ORG . The arrest report noted that the applicant had confirmed that he had understood the substance of the report but had refused to sign to that effect .

On DATE the applicant was brought before a judge of FAC , who decided to detain him on remand . The judge filled in a standard pre - typed form by writing her name , the date of the detention order and other details of the case . In substantiating the decision , the judge had simply to underline the pre - typed text of the standard form , choosing from the following list of grounds for detention : risk of absconding , risk of impeding the investigation , risk of committing crimes , severity of the crime the arrested person is suspected of , his or her personality , occupation , state of health , and “ other circumstances ” . The judge underlined all of the aforementioned grounds , except the “ risk of absconding ” , the “ state of health ” , the “ occupation ” , and the “ other circumstances ” . The applicant received the LANGUAGE translation of this order on DATE .

The applicant 's attorney appealed against the detention order to ORG on DATE . The attorney did not attend the hearings that had been scheduled for CARDINAL and DATE . By a final decision of CARDINAL DATE , taken after a hearing with the applicant 's lawyer 's participation , ORG dismissed the appeal , finding that the impugned order had been taken in accordance with the applicable law . No other reasons were given .

In the meantime , on DATE the applicant was officially charged with sexual assault .

On DATE , a judge of FAC , on the request of the public prosecutor in charge of investigation , extended the applicant 's detention on remand until DATE . This decision was not written on a standard form with a pre - typed text . According to that decision , the applicant 's detention was extended on the basis of the reasonableness of the suspicion against the applicant , the severity of the crime with which he was charged , the fact that he had no legal and/or fixed residence in GPE , the danger of his absconding and the possibility that he could impede the investigation . It also mentioned the risk that the applicant could put pressure on witnesses or endanger them .

NORP The applicant appealed against that decision to ORG . According to the requirements of the law , he submitted his appeal , written in LANGUAGE , to the court that had adopted the disputed order , in order for it to be transmitted to ORG . On DATE ORG sent the applicant 's appeal back to ORG , directing that it should be first translated into NORP . It also directed ORG to provide the applicant with an LANGUAGE translation of its decision , which was done on DATE . The competent judge of ORG sent the applicant 's appeal back to him , in order for him to make the translation .

The applicant complained again to ORG . By a decision of CARDINAL DATE ORG declared that , by compelling the applicant to translate his appeal himself rather than sending it for translation at the ORG 's expense , the first instance judge had “ grossly violated ” his fundamental procedural rights guaranteed by law . Consequently , ORG suspended the proceedings and ordered ORG to remedy the above - mentioned shortcomings . The case was also reported to ORG , competent in disciplinary matters involving the judiciary . The case was later assigned to another judge of ORG .

On DATE , a judge of the Rīga City Centre District Court , on the request of the public prosecutor in charge of investigation , again extended the applicant 's detention on remand , this time until DATE . The reasoning of this detention order was similar to the first CARDINAL orders . The applicant 's detention was extended on the basis of almost the same grounds : the reasonableness of the suspicion against the applicant , the severity of the crime with which he was charged , the danger of his absconding and the possibility that he could impede the investigation . Contrary to the earlier decisions on the applicant 's detention , this order in addition referred to the possibility that he could “ flee after having committed an offence ” and specifically mentioned the fact that he had no legal and/or fixed residence in GPE as well as no permanent residence permit there .

By a decision of DATE ORG dismissed the applicant 's appeal against the detention order of CARDINAL DATE . Although the decision set out the applicant 's arguments in detail , the court 's reasoning consisted of repeating the reasons given by the court of first instance and declaring that the latter had acted in conformity with the law . ORG further noted that the appeal against the detention order of CARDINAL DATE was still pending .

On DATE ORG finally examined and dismissed the applicant 's appeal against the detention order of CARDINAL DATE , by which his detention had been extended until DATE . The court observed that there continued to be grounds for applying the exceptional measure – detention . Those grounds included the fact that the applicant had been charged with committing a serious crime , that he had no permanent residence permit in GPE and that he had no permanent place of residence there , as well as the grounds mentioned by the judge of the first instance court .

On DATE the applicant was examined by a board of psychiatrists which established that he had suffered from a mental disorder in the past and that he had undergone treatment in a psychiatric hospital in GPE . However , the board declared itself unable to reach a precise conclusion and recommended the applicant 's internment in a psychiatric hospital for further examination . On DATE experts of ORG , after having observed the applicant in a psychiatric hospital over DATE , found that he was of a sound mind .

On DATE , a judge of the Rīga City Centre District Court again extended the applicant 's detention on remand until DATE . The reasoning was practically identical to that in the decision of CARDINAL DATE . The applicant 's appeal , in which he inter alia complained that the decision to leave him in detention solely because his residence permit had expired was discriminatory , was dismissed by ORG on DATE , which used similar reasoning to the previous decisions .

On DATE , the competent judge of the Rīga City Centre District Court , on the request of the public prosecutor in charge of the investigation , extended the applicant 's detention on remand until DATE . Besides the usual grounds , the judge 's decision noted :

“ ... Having assessed the gravity of the offence allegedly committed , [ as well as ] the particularities of investigating a case where the victims are children , I consider that ... the length of the remand measure prohibiting PERSON from exercising his freedom of movement is consistent with the character of the socially dangerous act of which he has been accused ... ”

On DATE ORG upheld the aforementioned detention order , repeating in substance the reasons given by the first instance judge .

On DATE the prosecutor expanded the charges against the applicant , also accusing him of having molested young boys on the occasion of another trip to GPE , in DATE , DATE and DATE . Besides the existing charge of sexual assault , the applicant was accused of having committed aggravated forcible sexual assault , forcible sodomy , inducing or compelling a juvenile to engage in prostitution , and engaging a juvenile under DATE in production of pornography . On DATE the preliminary investigation was completed and the case - file was handed over to the defence , who finished acquainting themselves with the case on DATE .

On DATE the applicant and his lawyer were presented with the final bill of indictment and its LANGUAGE translation . On DATE the case was sent to ORG for trial .

On DATE a single judge of ORG adopted a decision to commit the applicant for trial and to keep him in detention . The decision to keep the applicant in detention was reasoned as follows : “ The preventive measure has been chosen in accordance with the accused person 's personality and the gravity of the charges brought [ against him ] , and there is no reason to alter [ that measure ] ” . There was no possibility to appeal against that decision ( see below paragraph CARDINAL ) .

After having adjourned hearings of CARDINAL and DATE , by a judgment of DATE ORG found the applicant guilty of all the crimes he had been accused of and sentenced him to DATE imprisonment . According to LAW , the court ordered his deportation from GPE after having served the sentence . The applicant appealed against this judgment .

On DATE FAC acquitted the applicant of the charges of producing child pornography and reduced the penalty to DATE imprisonment . The remainder of the appeal was dismissed .

The applicant then filed an appeal on points of law , by submitting himself a short handwritten letter that was translated into NORP by a court interpreter . On DATE the ORG of ORG by a decision of a preparatory meeting declared the appeal inadmissible for lack of arguable points of law . DATE , on DATE , the applicant 's lawyer tried to submit to the ORG a more elaborate memorial ; however , it was returned to him since the time - limit for appeal on points of law had elapsed and since the applicant 's own appeal had already been examined and rejected .

After the applicant had served CARDINAL of his sentence , he was released on parole on DATE and was expelled from GPE DATE .

The former Code of Criminal Procedure ( ORG ) , a legacy of the NORP era which was amended on numerous occasions , was applicable at the material time . It remained in force until DATE , when it was replaced by the new Criminal Procedure Law ( GPE likums ) .

Under the terms of LAW of the ORG , a preventive measure could be applied where plausible reasons existed to suspect that the accused would seek to evade investigation or hinder the determination of the truth in the case . CARDINAL types of preventive measure existed : an undertaking not to change one 's residence , personal guarantees , financial guarantees , police surveillance , house arrest , detention in prison and CARDINAL measures specifically applicable to minors and members of the armed forces .

Under LAW of the ORG , a preventive measure had to be chosen and implemented on the basis of the following criteria : the seriousness of the alleged offence ; the personality of the accused ; the likelihood that he or she would seek to evade investigation and hinder the determination of the truth in the case ; and the accused 's occupation , age , domestic circumstances and health and other relevant criteria . Any preventive measure had to be applied on the basis of an order giving sufficient reasons .

By virtue of LAW of ORG , a preventive measure had to be terminated if it had been applied unlawfully or it ceased to be necessary , or could be changed to ad . The termination or alteration of detention on remand applied by a judge or a court during the preliminary investigation had to be effected by a reasoned decision of a prosecutor , or it could be terminated by a court decision in the cases provided for in LAW .

Pursuant to Article CARDINAL , all decisions given by a judge at the pre - trial stage regarding the detention on remand and its extension could be appealed to a higher instance court by a suspected or accused person or his counsel or representative within DATE after they found out about that decision . The appeal had to be examined and a decision taken within DATE as of its receipt . The decision was final and not subject to further appeal .

After drawing up and signing the final indictment , the public prosecutor 's office had to forward the file to the trial court ( Articles CARDINAL of the ORG ) . Within DATE of receiving the file , a single judge of the trial court , without ruling on the accused 's guilt , had to decide whether the file provided a sufficient basis for committing the accused for trial and whether the preventive measure had been chosen correctly . If he had no objections , the single judge adopted a final decision to commit the accused for trial and leave the preventive measure unchanged ( lēmums par apsūdzētā nodošanu tiesai ) . Such a decision could not be appealed .

If the single judge disagreed with the conclusions of the bill of indictment or considered that a preventive measure had to be applied to the accused or that the preventive measure that had been applied previously had to be altered , he convened a preparatory meeting ( rīcības sēde ) . The preparatory meeting took a decision either to commit the accused for a trial or to terminate the proceedings or to refer the case back for additional investigation . It also had to decide the question about the preventive measure . The order given following a preparatory hearing was amenable to appeal before a higher court .

Article CARDINAL set time - limits for examination of a case and provided that the examination of a case before a court had to start no later than within DATE or , under exceptional circumstances , no later than within DATE , after the case was received by the court . However , this provision was very rarely complied with by the NORP courts ( see GPE v. GPE , no . CARDINAL/CARDINAL , § CARDINAL , ECHR CARDINAL ( extracts ) ) .


The applicants , Mr PERSON and Mr PERSON , are NORP nationals who were born in DATE and DATE respectively . They are presently serving prison sentences in GPE . They were represented before the ORG by PERSON , a lawyer practising in PERSON . ORG ( “ the Government ” ) were represented by their Agent , Ms A. PERSON , of ORG .

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

By a bill of indictment ( stämningsansökan ) of DATE , ORG in ORG charged the applicants with a number of criminal offences , including several counts of theft and handling of stolen goods , violations of the Inflammable and Explosive Products Act ( ORG om brandfarliga och explosiva varor , PERSON ) and LAW ( Vapenlagen , CARDINAL ) and , most importantly , attempted aggravated robbery and attempted murder . Describing the robbery offence , the prosecutor , inter alia , stated the following :

“ [ The applicants ] have ... on DATE ... attempted with threats and physical violence to steal from a money transport vehicle operated by the security company ORG on behalf of ORG . ... The robbery was not successful but there was a risk of the crime being completed . ...

The second applicant has forced his way into the driver ’s seat of the money transport vehicle and driven it ... to a secluded place on a smaller road QUANTITY away from [ the place where it was halted ] . The first applicant has driven ORG to the same place . There the CARDINAL perpetrators ... have forced open the outer door to the place where the valuables were stored . Then they have tried ... to gain access to the strong room of the vehicle but have ended the attempt before succeeding to complete the crime , as they believed that another vehicle was approaching and that there was a risk that they would be discovered . ”

By a judgment of DATE , ORG ( tingsrätten ) of PERSON convicted the applicants on all charges except car theft and attempted murder . With respect to the latter charge , however , the second applicant was instead convicted of aggravated assault , having shot at the money transport vehicle and wounded CARDINAL of the security officers . The first applicant was sentenced to DATE in prison and the second applicant to CARDINAL years’ imprisonment . In regard to the charge of attempted aggravated robbery , the court reached the following conclusion :

“ To sum up , ORG finds that it must be considered to be beyond every reasonable doubt that [ the applicants ] on TIME DATE on ECARDINAL/ECARDINAL ... began an attempt to rob the ORG money transport vehicle ... . The attempt thereafter continued on a smaller road ... by means of the applicants taking various measures to get access to the strong room of the vehicle . They ended the attempt , apparently because they got alarmed by lights from CARDINAL or more cars , but there was a risk of the crime being completed . The crime is of an aggravated nature , mainly due to the fact that MONEY [ SEK ] were stored in the vehicle and that firearms were used . ... ”

Both the applicants and the public prosecutor appealed to ORG ( PERSON hovrätt ) .

ORG heard the case on CARDINAL and DATE and on CARDINAL , DATE , DATE , DATE , DATE , DATE and DATE . Several witnesses gave evidence . On DATE , when only the parties’ closing statements remained , the president of the court invited the parties to consider whether the robbery charge could not be regarded as encompassing a charge of completed aggravated robbery . As a consequence , the public prosecutor , in his closing statement , adjusted the charge in question to concern , in the first place , aggravated robbery and , in the second place , attempted aggravated robbery . The description of the offence then read :

“ [ The applicants ] have ... on DATE ... with threats and physical violence unlawfully taken , with the intention of appropriating it , a money transport vehicle containing in total SEK CARDINAL,CARDINAL,CARDINAL in cash . The transport was operated by ... ORG , on behalf of ORG . ”

Counsel for the applicants objected that the adjustment was not permissible , as it introduced a new charge of intentional appropriation of the vehicle in question . Counsel for the second applicant stated that the charge of aggravated robbery could be considered as covered by the original indictment . Nevertheless , having regard to the factual circumstances , the applicants’ actions could not be seen as constituting a completed aggravated robbery but only an attempt . Counsel for the first applicant maintained that the robbery offence had not been completed .

ORG did not take a separate decision as to whether the public prosecutor ’s adjustment should be allowed . In its judgment of DATE , it stated that the applicants had objected to the adjusted description of the offence because it introduced an additional charge of theft of the vehicle . Finding that no such additional charge had been made but , instead , that the prosecutor , following the adjustment , had claimed that the robbery had been completed through the appropriation of the vehicle , the court decided to allow the adjustment .

On DATE ORG upheld ORG judgment , except that it found the applicants guilty of aggravated robbery and acquitted the first applicant of CARDINAL charge of handling stolen goods and the second applicant of the charge of aggravated assault . In the latter respect , the court found that the use of violence was not a separate offence but had to be seen as an element of the robbery , leading to the latter being considered to be an aggravated offence . Finding that the robbery constituted a completed offence and not an attempt , the court stated the following :

“ Through the oral evidence combined with the telephone lists and other technical evidence , ORG finds that it has been shown beyond reasonable doubt that [ the applicants ] , in the manner claimed by the public prosecutor , have planned and prepared the robbery together and in mutual agreement , and that they have thereafter halted the money transport vehicle ... following which they have driven it to a secluded location QUANTITY away from the place where it was halted .

[ The applicants ] have not succeeded in getting access to the strong room of the vehicle and have therefore been forced to abandon the vehicle without getting hold of any part of its money contents . However , the very fact that [ the applicants ] have taken possession of the money transport vehicle with its money contents means that the robbery offence is completed , notwithstanding the fact that they thereafter have been unable to appropriate any of its load . ”

ORG sentenced both applicants to CARDINAL years’ imprisonment .

The applicants appealed to ORG ( ORG domstolen ) . The appeal included the same complaints as those made in the present application .

On DATE ORG refused leave to appeal .

Domestic provisions of relevance to the present case are found in LAW ( ORG ) and LAW ( PERSON ) .

A person who steals from another person by means of violence or by threat , implying or appearing to the threatened person to present an imminent danger , shall be sentenced for robbery to CARDINAL and CARDINAL six years’ imprisonment ( chapter DATE , section CARDINAL of LAW ) . In order to convict a person of robbery , he or she must have unlawfully taken somebody ’s property with the intent to appropriate it . If the violence used endangers life or is very brutal , the crime is to be regarded as aggravated robbery , with a range of punishment from DATE imprisonment ( chapter CARDINAL , section CARDINAL ) .

If the commission of a crime has begun but is not brought to completion , the perpetrator is sentenced for an attempt to commit the crime if there was a danger that the crime would be completed or such danger was precluded only because of fortuitous circumstances , and provided that the act of attempt is criminalised by a specific provision ( chapter DATE , section CARDINAL ) . An attempt requires the same subjective condition as a completed crime , while some factual requisite may be missing on account of , for example , interference by the police . An attempt to commit robbery or aggravated robbery is punishable with terms of imprisonment corresponding to those applicable to a completed crime ( chapter DATE , section CARDINAL and chapter CARDINAL , section CARDINAL ) .

A court ’s judgment may only relate to an act for which a prosecution has been properly instituted ( chapter CARDINAL , section CARDINAL of LAW ) . A charge of criminal responsibility is conducted by the public prosecutor , who files with the court a bill of indictment against the person or persons to be accused ( chapter DATE , section CARDINAL ) . The indictment must , inter alia , identify the criminal act and specify the time and place of its commission and the other circumstances required for its identification ( chapter DATE , section CARDINAL ) . These particulars of the offence provide the framework for the court ’s adjudication . The prosecutor should also state the applicable domestic law and the means of evidence invoked .

The particulars of the offence should include all the prerequisites of the act distinguishing it as criminal , that is , the actual facts as well as the subjective elements . The court must not judge on any other acts than those included in the particulars of the offence , or on any other extraneous elements . However , the court is not bound by the prosecutor ’s characterisation of the offence or reliance on a particular legal provision ( chapter CARDINAL , section CARDINAL ) . It is for the court to know the law and apply the relevant provision to the act , as charged .

As a rule , once a prosecution has been instituted , it should not be altered . If the prosecutor wishes to prosecute another act , a new prosecution must be brought . However , the prosecutor may extend the prosecution against the same defendant to encompass another act if the court finds it appropriate , having regard to the investigation and other circumstances . In addition , the prosecutor may , with respect to the same act , without altering the indictment , adjust it by narrowing the action , or invoke a new circumstance or another legal provision in support of the prosecution ( chapter DATE , section CARDINAL ) .

Whether the prosecution is extended or merely adjusted depends on whether the new element amounts to a new act . The possibility to adjust the prosecution is closely connected to the principles of legal force , or res judicata . The criminal liability for those prerequisites which have already been determined in a judgment may not be taken up again for adjudication ( chapter DATE , section CARDINAL ) . Consequently , prerequisites which could be embraced by the legal force of a judgment may freely be added to the prosecution case , while prerequisites that could be prosecuted separately , even after the judgment , may not usually be added . However , the prosecutor may present another subjective requisite without being considered to have introduced a new act .

The court examining a case shall make certain that it is investigated appropriately and ensure that irrelevant matters are not presented . Through questions and observations , the court shall also attempt to remedy any unclear and incomplete statements which have been made ( chapter DATE , section CARDINAL and chapter DATE , section CARDINAL ) . Further , as the court is not bound by the prosecutor ’s characterisation of the offence or the legal provision on which reliance is placed , procedural guidance might be necessary in order to draw the parties’ attention to any altered perceptions . In particular , a court of appeal must take into account that it should not alter the judgment of a district court without allowing the parties to comment on all the circumstances of importance for such alterations . Moreover , ORG has stated that the defendant must be able to answer to everything which is held against him or her , and that no unexpected elements may influence the outcome ( NJA DATE , p. CARDINAL ) .