CASE OF P.G. AND J.H. v. THE UNITED KINGDOM

Violation of Art. 8 in respect of use of listening device at flat;No violation of Art. 8 in respect of obtaining information about use of phone;Violation of Art. 8 in respect of use of listening device at police station;No violation of Art. 6-1 in respect of non-disclosure of material;No violation of Art. 6-1 in respect of use at trial of evidence obtained through listening devices;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award

On DATE Detective Inspector PERSON ( PERSON ) , received information that an armed robbery of a ORG cash - collection van was going to be committed on or DATE by the first applicant and PERSON at one of several possible locations . The police knew where PERSON lived and began visual surveillance of those same LOC DATE . PERSON learnt that PERSON was suspected of being a drug dealer and that surveillance operations mounted against B. in the past had proved unsuccessful because they had been compromised . It was therefore concluded that PERSON was “ surveillance - conscious ” . PERSON was suspected of being responsible for the shooting of a police officer with a shotgun in the course of a robbery . This was something that all the officers , and particularly the Chief Constable , were aware of when the police operation was being planned .

No robbery took place on DATE . By DATE , however , the police had received further information that the robbery was to take place “ somewhere ” on DATE . Further information as to the location or target of the proposed robbery could not be obtained on DATE . In order to obtain further details about the proposed robbery , PERSON prepared a report for the Chief Constable in support of an application for authorisation to install a covert listening device in PERSON ’s flat . Some of the contents of this report were the subject of a successful application for non - disclosure by the ORG on the ground that serious damage would be caused to the public interest were they to be made public .

The use of covert listening devices was governed by the “ Guidelines on the Use of Equipment in Police Surveillance Operations ” issued by ORG in DATE ( “ the LAW ) . On DATE the Chief Constable decided that the use of such a device was justified under the Guidelines but would not authorise its use until he was satisfied that its installation was feasible . Reconnaissance during TIME established that it was feasible .

On DATE the Chief Constable gave oral authorisation to proceed with its use . However , he did not provide written confirmation as required by the Guidelines because he was on DATE leave , so he gave the authority by telephone from home . The Chief Constable stated that the use of the device was to be reviewed on a DATE basis . He said that he had asked the Deputy Chief Constable to look after the written formalities and to ensure , inter alia , that there was written confirmation of the message that the installation of the device was feasible . He did not receive this confirmation until DATE . On DATE the Deputy Chief Constable gave “ retrospective ” written authorisation for use of the listening device .

On DATE a covert listening device was therefore installed in a sofa in B. ’s flat before the Deputy Chief Constable had confirmed the authorisation in writing . Conversations between B. and others in B. ’s living room were monitored and recorded until DATE .

On DATE the police made a request to ORG ) for itemised billing in relation to the telephone number of B. at his flat for the period from DATE to the date of the request . The data - protection form was countersigned by a police superintendent in line with ORG ’s requirements , stating that the information was necessary to assist in the identification of members of a team of suspected armed robbers . While the request was originally made in an effort to identify the unknown third person in the conspiracy ( now known to have been the second applicant ) , the data was also used later in court to corroborate the times and dates recorded by the officers in respect of the covert listening device in the flat .

On DATE B. and others who were with him in his home discovered the listening device and abandoned the premises . The robbery did not take place . The police had been continuing their visual surveillance of the premises , taking photographs and video footage whilst the audio surveillance was in progress . The applicants were identified by various officers going in and out of the flat and observed on some occasions to be carrying various hold - alls . The police had also been keeping watch on a cache in a rural location and observed the first applicant collecting an item from this location on TIME DATE . An officer had earlier inspected the hidden item , which he stated he could tell through the plastic bag was a revolver . It appeared that the vehicle which the first applicant used for transport that TIME was a stolen vehicle in which he was subsequently arrested .

On DATE the applicants were arrested in the stolen ORG car . In the boot of the vehicle were found CARDINAL hold - alls containing , inter alia , CARDINAL black balaclavas , CARDINAL black plastic cable ties , CARDINAL pairs of leather gloves and CARDINAL army kitbags . Following legal advice , the applicants declined to comment during interview and refused to provide speech samples to the police . The police obtained a search warrant for the flat and searched it . Fingerprints of the applicants were found , as well as items such as a pair of overalls and a third balaclava . CARDINAL vehicles were recovered and examined . The items retained included balaclavas , hold - alls , overalls and a broken petrol cap .

As they wished to obtain speech samples to compare with the tapes , the police applied for authorisation to install covert listening devices in the cells being used by the applicants and to attach covert listening devices to the police officers who were to be present when the applicants were charged and when their antecedents were examined . Written authorisation was given by the Chief Constable in accordance with ORG . Samples of the applicants’ speech were recorded without their knowledge or permission . In the case of the second applicant , the conversations that were recorded included , on CARDINAL occasion , the second applicant taking advice from his solicitor . The Government state that , when the police officer realised what the conversation was about , it was not listened to . That recording was not adduced in evidence at trial .

The voice samples of the applicants were sent to an expert who compared them with the voices on the taped recordings of conversations held in PERSON ’s home DATE . The expert concluded that it was “ likely ” that the first applicant ’s voice featured on the taped recordings and that it was “ very likely ” that the second applicant ’s voice featured on them .

B. and the applicants were charged with conspiracy to ORG of monies . PERSON pleaded guilty in view of ORG decision in PERSON [ DATE ] CARDINAL ORG ) . ORG held in that case that relevant evidence was admissible notwithstanding that it had been obtained by unlawful means ( for example , trespass ) . The applicants , however , challenged the admissibility of the evidence derived from the use of the covert listening devices at B. ’s home on CARDINAL grounds .

( a ) The Chief Constable should not have authorised the use of a covert listening device at B. ’s premises because other forms of investigation had not been tried and failed as required by paragraph CARDINAL ( b ) of the LAW , with the result that it would be unfair to admit evidence which ought never to have been obtained .

( b ) The covert listening device had been installed and used before written confirmation of the Chief Constable ’s authorisation had been received and there was no specific permission for the recordings obtained from the device to be used in evidence .

Before the jury was sworn in at the trial , Judge PERSON heard evidence by means of a voir dire ( submissions on a point of law in the absence of the jury ) on matters relating to the admissibility of the challenged evidence . The prosecution conceded that the relevant evidence had been obtained by unlawful means , namely trespass . During this procedure the prosecution claimed that the public interest was likely to be damaged if certain disclosures were made and certain evidence given , in other words claiming public interest immunity . The prosecution argued that the test of admissibility was relevance . The defence argued that the judge had the discretion to exclude the evidence under section CARDINAL of ORG PACE ) , and that he should do so because the Chief Constable had failed to abide by LAW .

Judge PERSON decided that some documents , including PERSON report , which led to the Chief Constable ’s decision to authorise the use and installation of a covert listening device in PERSON ’s flat , were to be withheld from the applicants and their lawyers . The judge kept under review the non - disclosure during the proceedings and at CARDINAL point some disclosure was made , although not PERSON report in its entirety . PERSON also declined to answer questions put to him in cross - examination by defence counsel on the ground that it might reveal sensitive material . Judge PERSON asked defence counsel whether they wanted him to put the unanswered questions to PERSON under oath , in chambers , and they agreed . The judge proceeded to put the questions to PERSON in private in the absence of the applicants and their lawyers . He heard evidence from PERSON concerning the ability of the police to “ control ” B. in order to install the device in the flat , which the defence asserted indicated that normal methods of surveillance would have been possible . He also heard PERSON concerning the arrangements made and put into effect for this period . The answers to those questions were not divulged , the judge indicating in open court that the benefit to the defence from the answers given was slight , if any at all , while the damage to the public interest if the answers were made public would be great . Accordingly , he held that PERSON was entitled on public immunity grounds to refuse to answer those questions .

Judge PERSON rejected the applicants’ challenge to the admissibility of the evidence derived from the covert listening devices in B ’s flat . In reaching his decision , Judge PERSON stated :

“ CARDINAL . It follows that I must apply the test set out in section CARDINAL on the basis that this was a properly authorised decision to install the device and that the police were justified in continuing to use it up to the moment when it was discovered . At most there were CARDINAL or possibly CARDINAL breaches of procedure , but neither , in my judgment , could be described as either significant or substantial . It is conceded by the ORG that the installation of the device amounted to a civil trespass . In addition it was a serious invasion of privacy in circumstances in which those concerned would have expected their conversations to be private .

I was invited to take into account , and I do , that the installation of the device may well amount to an invasion of the general right to privacy under LAW [ of the LAW ] . It is not for me to determine whether there has , in fact , been a breach of LAW , but in weighing this point I must bear in mind that it is at least arguable that the interference in the present case could be justified on one or more of the grounds set out in LAW . In those circumstances I can not see any reason for concluding that the possible breach of LAW was either substantial or significant .

I was also invited to consider whether the admission of this evidence and the difficulties faced by the Defence in seeking to test the validity of the Chief Constable ’s decision breached LAW I am satisfied beyond reasonable doubt that to the extent that there has been a breach of LAW it has not in fact deprived these Defendants of the right to a fair trial . ”

The applicants also challenged the admissibility of evidence derived from the use of covert listening devices attached to the officers charging them and dealing with their antecedents . Judge PERSON stated :

“ CARDINAL . ... it does not seem to me to be right to attach great weight to the unfair way in which the control tapes were obtained . The fact that they provide relevant evidence , in the sense that they are a reliable sample of speech , which can be clearly attributed to each of these Defendants , weighs more heavily in my judgment . On balance therefore I am satisfied that the admission of the control tapes would not have such an adverse effect on the fairness of the proceedings that I ought to exclude them . ”

The police submitted statements from those officers who had conducted the audio and visual surveillance of the flat , and the searches of the flat and the recovered vehicles . There was also evidence from officers who had been keeping watch on a cache . CARDINAL officer stated that the item hidden under a tree was in fact a revolver . The first applicant was seen collecting this item on TIME DATE .

On DATE the applicants were convicted of conspiracy to commit armed robbery and were sentenced to CARDINAL years’ imprisonment . They applied to ORG for leave to appeal on grounds relating to the judge ’s rulings to admit taped evidence . They did not challenge the judge ’s decisions with respect to non - disclosure of certain evidence on public interest immunity grounds . Their applications were refused on DATE , a single judge finding that the judge ’s exercise of his discretion to admit evidence did not give rise to an arguable ground of appeal . Notification of the refusal was sent to them on CARDINAL and DATE respectively . It does not appear that the applicants made any complaints to ORG in respect of the covert listening devices .

At the relevant time , guidelines on the use of equipment in police surveillance operations ( ORG of DATE ) provided that only chief constables or assistant chief constables were entitled to give authority for the use of such devices . The Guidelines were available in the library of ORG and were disclosed by ORG on application . They provided , inter alia :

“ CARDINAL . In each case , the authorising officer should satisfy himself that the following criteria are met :

( a ) the investigation concerns serious crime ;

( b ) normal methods of investigation must have been tried and failed , or must from the nature of things , be unlikely to succeed if tried ;

( c ) there must be good reason to think that use of the equipment would be likely to lead to an arrest and a conviction , or where appropriate , to the prevention of acts of terrorism ;

( d ) use of equipment must be operationally feasible .

In judging how far the seriousness of the crime under investigation justifies the use of a particular surveillance technique , authorising officers should satisfy themselves that the degree of intrusion into the privacy of those affected is commensurate with the seriousness of the offence . ”

The Guidelines also stated that there might be circumstances in which material so obtained could appropriately be used in evidence at subsequent court proceedings .

ORG was created by CARDINAL of ORG . It is an independent body empowered to receive complaints as to the conduct of police officers . It has powers to refer charges of criminal offences to ORG and itself to bring disciplinary charges .

Section CARDINAL(CARDINAL ) of this LAW provides as follows :

“ In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that , having regard to all the circumstances , including the circumstances in which the evidence was obtained , the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it . ”

The CARDINAL Act provides for a statutory basis for the authorisation of police surveillance operations involving interference with property or wireless telegraphy . The relevant sections relating to the authorisation of surveillance operations , including the procedures to be adopted in the authorisation process , entered into force on DATE .

NORP Since DATE , these controls have been augmented by Part II of ORG ( RIPA ) . In particular , covert surveillance in a police cell is now governed by sections CARDINAL ) and CARDINAL ) of RIPA . ORG also establishes a statutory Investigatory Powers Tribunal to deal with complaints about intrusive surveillance and the use of informants by the police .

At common law , the prosecution has a duty to disclose any earlier written or oral statement of a prosecution witness which is inconsistent with evidence given by that witness at the trial . The duty also extends to statements of any witnesses potentially favourable to the defence .

The case of NORP v. Ward ( [ DATE ] CARDINAL Weekly Law Reports CARDINAL ) dealt with the question of what duties the prosecution has to disclose evidence to the defence . It laid down the proper procedure to be followed when the prosecution claims that certain material is the subject of public interest immunity . ORG held that it was the court , and not the prosecution , who would undertake the balancing exercise between the interests of public interest immunity and fairness to the party claiming disclosure :

“ In our judgment the exclusion of the evidence without an opportunity of testing its relevance and importance amounted to a material irregularity . When public interest immunity is claimed for a document , it is for the court to rule whether the claim should be upheld or not . To do that involves a balancing exercise . The exercise can only be performed by the judge himself examining or viewing the evidence , so as to have the facts of what it contains in mind . Only then can he be in a position to balance the competing interests of public interest immunity and fairness to the party claiming disclosure . ”

This judgment also clarified that , where an accused appeals to ORG on the grounds that material has been wrongly withheld , ORG will itself view the material ex parte .

Section CARDINAL of the Telecommunications Act CARDINAL prohibits the disclosure by a person engaged in a telecommunications system of any information concerning the use made of the telecommunications services provided for any other person by means of that system .

NORP However , pursuant to section CARDINAL(CARDINAL ) of LAW DATE :

“ Personal data are exempt from non - disclosure provisions in any case in which –

( a ) the disclosure is for any of the purposes mentioned in subsection CARDINAL above ; and

( b ) the application of those provisions in relation to the disclosure would be likely to prejudice any of the matters mentioned in that subsection . ”

Subsection CARDINAL refers to data held for the purpose of :

“ ( a ) the prevention or detection of crime ;

( b ) the apprehension or prosecution of offenders ; or

( c ) the assessment or collection of any tax or duty . ”


Violation of P1-1;Pecuniary and non-pecuniary damage - award (global)

Giovanni Bonello;Ján Šikuta;Josep Casadevall;Kristaq Traja;Nicolas Bratza;Päivi Hirvelä;Stanislav Pavlovschi

The applicant was born in DATE and lives in PERSON .

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

In DATE the applicant published the photograph ' Soroca Castle ' in the album PERSON . He received author 's fees for that photograph .

In DATE the Government adopted a decision regarding national identity cards using , inter alia , the photograph taken by the applicant as a background for the identity cards issued by ORG GPE ( “ the Ministry ” ) . The applicant was not consulted and did not agree to such a use of the photograph .

In DATE he requested the ORG to compensate him for the infringement of his rights caused by the unlawful use of the photograph he had taken , as well as to conclude a contract with him for the future use of the photograph .

When his request was rejected , the applicant initiated court proceedings against ORG on DATE . On DATE the ORG partly allowed his claims and found that he had been the author of the photograph which had been used without his agreement . The court awarded him CARDINAL NORP lei ( MDL ) , equivalent to MONEY ( USD ) . The court also obliged the Ministry to publish an apology but rejected the applicant 's request that the Ministry be ordered to conclude a contract with him for the future use of the photograph .

The applicant appealed . He submitted , inter alia , that the reason why he had not asked for the withdrawal of the identity cards already issued in infringement of his rights and for new identity cards using the photograph taken by him not to be issued in the future was that this would have incurred unreasonably high costs for ORG and would have caused unnecessary problems for identity card holders . He had therefore requested the conclusion of a contract with ORG .

On DATE ORG quashed the lower court 's judgment and rejected the applicant 's requests .

On DATE ORG quashed ORG judgment and upheld the judgment of ORG as regards the award to the applicant , while rejecting his request for an apology to be published . The court also ordered a re - examination of the case as regards the conclusion of a contract with the applicant for the future use of the photograph since , in its opinion , he had such a right .

From CARDINAL DATE the Ministry ceased using the photograph taken by the applicant as a background for identity cards .

In a new set of proceedings the applicant requested compensation for the financial loss caused by the continued unlawful use of his photograph between the date of the judgment , DATE , and CARDINAL DATE . Since CARDINAL identity cards had been issued during the relevant period , he claimed PERCENT of the amount paid by the identity cards ' owners to the ORG ( MDL CARDINAL ) . He also claimed compensation for infringement of his moral rights ( MDL CARDINAL ) .

On DATE the ORG awarded the applicant MDL CARDINAL in compensation for pecuniary damage and MDL CARDINAL for non - pecuniary damage , while rejecting his request to oblige the ORG to conclude a contract with him .

On DATE ORG quashed that judgment and rejected the applicant 's claims . The court found that , while the applicant 's authorship of the relevant photograph had been clearly established , he had been compensated by the judgment of DATE . Since the court had not prohibited the use of the photograph in future and since the applicant himself had not requested such a prohibition , the identity cards already issued or any cards issued in the future were no longer covered by ORG “ the DATE LAW ) ( no.CARDINAL-XII ) ( see paragraph DATE below ) . Accordingly , the applicant could not allege an infringement of his rights .

On DATE ORG essentially repeated the reasons given in the judgment of ORG and rejected an appeal by the applicant on points of law . While confirming the applicant 's intellectual property rights in respect of the photograph he had taken , it added that an identity card was an official document which could not be subject to copyright .

The relevant provisions of ORG ( no . CARDINAL ) of DATE read as follows :

“ Section CARDINAL

( CARDINAL ) The author 's rights do not depend on the property right over the material object in which the relevant protected work is embodied . Purchasing the object does not imply the transfer to the purchaser of any copyright set out in the present Act .

Section CARDINAL

( CARDINAL ) The author 's rights cover literary , artistic and scientific protected works in the form of :

i ) ... photographic works ... ;

Section CARDINAL

( CARDINAL ) The following shall not constitute objects of copyright :

( a ) official documents ...

Section CARDINAL

( CARDINAL ) The personal ( moral ) rights of the author can not be assigned and continue to be protected if the copyright is assigned .

Section CARDINAL

The use of the author 's protected work by third persons ... is permitted on the basis of a contract concluded with the author or with his or her successors , except for the cases mentioned in sections DATE .

Section CARDINAL

( CARDINAL ) The copyright ... may be transferred by the authors or other copyright owners through authorship contracts .

Section CARDINAL

( CARDINAL ) The use of ... artistic works in breach of the copyright of their authors is unlawful .

Section CARDINAL

( CARDINAL ) The owner of the copyright can request from the person who has infringed this right :

( a ) the recognition of this right ;

( b ) the re - establishment of the situation pertaining before the infringement of the right and the cessation of the actions infringing the author 's rights or which may lead to such an infringement ;

( c ) compensation for losses or lost revenue ;

( d ) transfer of the revenues obtained through the unlawful use of the protected work , in lieu of compensation for the losses or lost revenue ;

( e ) compensation of CARDINAL times the minimum wage in lieu of compensation for losses or the transfer of the revenues obtained through the unlawful use of the protected work ;

( CARDINAL ) The sanctions mentioned under paragraph ( CARDINAL ) ( c)-(e ) above are applied in accordance with the choice of the holder of the copyright ” .

The relevant provisions of LAW ( no . CARDINAL ) of DATE read as follows :

“ Section CARDINAL

The following can not be challenged before administrative courts :

( c ) laws , Presidential Decrees with a normative character , Government orders and decisions with a normative character , ... ”


Remainder inadmissible;Violation of Article 6+6-3-b - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-b - Adequate facilities;Adequate time);No violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6-3-d - Examination of witnesses;Article 6 - Right to a fair trial);No violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6-3-d - Obtain attendance of witnesses;Article 6 - Right to a fair trial);Just satisfaction dismissed (out of time) (Article 41 - Just satisfaction)

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

The applicant was born in DATE and lives in Čepin .

On DATE the Osijek Municipal State Attorney ’s Office ( Općinsko državno odvjetništvo u GPE ) indicted the applicant in ORG ( PERSON ) on charges of fraud and business fraud , claiming that , acting as a director of companies ORG and PERSON , he had defrauded companies A. and NORP by using fraudulent payment instruments in exchange for goods which his companies received from NORP and NORP in the period between CARDINAL DATE and DATE and on DATE .

On DATE the trial court commissioned a report from an accounting expert , GPE

On DATE submitted his report to ORG . He found that PERSON ’s bank account had been frozen at the time when it had engaged in business transactions with company A. He also found that ORG ’s bank account had not been frozen at the time of its business transactions with company ORG , but that its account had been frozen at the time of its business transactions with company NORP

At a hearing held on DATE D.D. gave oral evidence . He confirmed all his findings in the report . The parties made no objections to the report , nor did they put any questions to GPE The applicant ’s lawyer asked that the prosecution submit all documents they had seized from the applicant so that they could be examined by GPE The trial court requested further documents from the police and CARDINAL commercial banks .

At a hearing held on DATE asked for an additional period to examine the documents submitted by the CARDINAL banks .

At a hearing on DATE the applicant ’s lawyer reiterated his request that the police be ordered to submit all business documentation they had seized from the applicant concerning companies ORG and PERSON The trial court accepted the request .

On DATE D.D. submitted an additional report . He reiterated his previous findings and also explained the manner and nature of the business transactions in issue .

At a hearing held on DATE CARDINAL ORG gave further oral evidence . The applicant ’s lawyer and the applicant put no questions to GPE and made no objection to his report .

On DATE the applicant ’s lawyer submitted written observations before ORG . He commented on the reports drawn up by PERSON in setting out the defence ’s arguments . His observations were forwarded to GPE

On DATE D.D. submitted written observations in which he expressly reiterated all his previous findings and highlighted certain sentences from his reports . He also disagreed with the conclusions drawn from his reports by the defence .

At a hearing held on DATE the judge conducting the proceedings presented ORG written observations of CARDINAL DATE to the parties and read them out . CARDINAL large envelopes containing documents submitted by the police were also presented to the parties and read out in court .

The applicant ’s lawyer asked the trial court to request information from the NORP authorities about the applicant ’s detention in that country or to examine witnesses PERSON . PERSON and GPE PERSON , who he stated could confirm that the applicant had been in detention in GPE DATE and that he had therefore been unable to conduct business affairs in the relevant period . He also suggested that these witnesses could confirm that all goods that the applicant ’s companies had received from companies A. and NORP had been stolen during the applicant ’s absence . The applicant ’s lawyer made further observations in respect of GPE ’s written observations of CARDINAL DATE and asked that he be recalled . In respect of the documents provided by the police , he asked that the trial be adjourned for DATE so that they could prepare the defence and also in order that the documentation might be forwarded to ORG , he asked that another additional witness be heard . ORG dismissed all of the defence ’s requests on the grounds that all the relevant facts had been sufficiently established .

On DATE ORG found the applicant guilty on CARDINAL counts of business fraud and CARDINAL count of fraud . It also revoked the suspension of a sentence given to the applicant in previous criminal proceedings and sentenced him to CARDINAL years’ imprisonment .

In its judgment the court noted :

“ The parties had no objections in respect of the evidence taken and read out , nor did they make any further requests , and the authenticity of the documents [ in the case file ] has not been brought into doubt . ”

On DATE the applicant lodged an appeal against conviction . He complained that the defence had not had sufficient time to examine ORG written observations of CARDINAL DATE and that they had had no opportunity to examine the documentation provided by the police . He further complained that ORG had not been recalled and that the witnesses PERSON . PERSON and PERSON had also not been heard , although the trial court had not provided any reasons for not hearing these witnesses . He also complained that the suspension of his previous sentence had been revoked , although he had had no opportunity to present arguments in that respect .

On DATE ORG ( Županijski sud u GPE ) upheld the applicant ’s conviction but decreased his sentence to CARDINAL years’ imprisonment . It found that ORG had analysed witness statements and other documents in detail and had provided sufficient reasons for the applicant ’s conviction . In respect of the complaint about GPE , ORG judgment reads :

“ Under LAW paragraph CARDINAL of the C[ode ] [ of ] C[riminal ] P[rocedure ] , in respect of crimes punishable by [ up to ] CARDINAL years’ imprisonment , when an expert witness has already been heard before the president of a [ trial ] panel [ and there has been no change in president ] , the expert ’s report can be read out without the agreement of the parties . It is to be noted that the accounting expert submitted his report on CARDINAL DATE , which [ report ] was forwarded to the parties . On DATE the defence lawyer submitted observations before the court asking that the expert respond to certain questions . The expert then responded to these questions . He therefore had not provided a new report . In his findings he had not amended anything relevant but had only responded to the defence lawyer ’s observations . ... ”

ORG also found that the suspension of the applicant ’s previous sentence had been correctly and lawfully revoked pursuant to LAW paragraph CARDINAL of LAW . It made no observations in respect of ORG refusal to hear witnesses PERSON . PERSON and GPE PERSON and also made no comment on the applicant ’s complaint that he had had no opportunity to examine the documentation submitted by the police .

On DATE the applicant lodged a request for extraordinary review ( zahtjev za izvanredno preispitivanje pravomoćne presude ) of ORG judgment with ORG ( PERSON ) , complaining that the defence had not had sufficient time to examine ORG written observations and had had no opportunity to examine the documentation provided by the police , and that the witnesses proposed by the defence had not been heard or PERSON recalled without the trial court providing sufficient reasons . Finally , he complained that the suspension of his previous sentence had been revoked , although he had had no opportunity to present arguments in that respect .

On DATE the applicant lodged a constitutional complaint with ORG ( Ustavni sud PERSON ) against the judgments of ORG and ORG , reiterating the arguments he had adduced before ORG .

On DATE ORG dismissed the applicant ’s request for extraordinary review of ORG judgment on the grounds that there had been no violation of any defence rights in the proceedings before the lower courts .

On DATE the applicant lodged a constitutional complaint before ORG against the judgment of ORG by which his request for extraordinary review of ORG judgment had been dismissed . He argued that ORG had failed to examine all his complaints and that it had failed to remedy the violation of defence rights that had occurred during the proceedings before the lower courts .

On DATE ORG dismissed the applicant ’s constitutional complaint of DATE against the judgments of ORG and ORG . ORG found that the criminal proceedings against the applicant had been fair and that the judgments of the lower courts had been sufficiently reasoned and did not disclose any arbitrariness . As to the trial court ’s refusal to take the applicant ’s further evidence , ORG noted that it had been for the trial court to decide which evidence to take and that the applicant had not objected to the evidence that had been read out during the trial .

On DATE the Constitutional Court declared the applicant ’s constitutional complaint of CARDINAL DATE against the judgment of ORG of DATE inadmissible on the grounds that it had not been an act by which the applicant ’s civil rights or obligations or any criminal charge against him had been determined .

The relevant part of section CARDINAL of LAW ( Official Gazette no . CARDINAL/CARDINAL , of CARDINAL DATE , PERSON o PERSON ) reads as follows :

“ CARDINAL . Anyone may lodge a constitutional complaint with ORG if he or she deems that the individual act of a state body , a body of local and regional self - government , or a legal person with public authority , concerning his or her rights and obligations , or about a suspicion or an accusation of a criminal act , has violated his or her human rights or fundamental freedoms or his or her right to local and regional self - government guaranteed by LAW ( hereinafter : a constitutional right ) ...

The relevant provisions of LAW in force at the time ( Zakon o kaznenom postupku , ORG nos . CARDINAL/CARDINAL , DATE , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL and DATE ) provided :

“ ( CARDINAL ) A defendant who has been finally sentenced to a prison term ... may lodge a request for the extraordinary review of a final judgment on account of infringements of this LAW .

( CARDINAL ) A request for the extraordinary review of a final judgment shall be lodged within DATE after the final judgment has been served on the defendant . ”

“ ORG shall decide requests for the extraordinary review of a final judgment . ”

“ A request for the extraordinary review of a final judgment may be lodged [ in respect of ] :

an infringement of the rights of the defence at the trial or of the procedural rules at the appellate stage , if it may have influenced the judgment . ”

The relevant provisions of LAW ( PERSON , ORG nos . TIME , CARDINAL/CARDINAL , CARDINAL DATE , CARDINAL/CARDINAL , DATE , DATE , CARDINAL , CARDINAL/CARDINAL , DATE , DATE , ORG , ORG ) provided :

“ ( CARDINAL ) The court shall revoke the suspension of a sentence and order the execution of the pronounced punishment if the convicted person , within the period of probation , commits CARDINAL or more criminal offences for which the court has imposed imprisonment of DATE or a more serious punishment . ”

“ ( CARDINAL ) Whoever , with the aim of obtaining unlawful pecuniary gain for himself or CARDINAL party , by false representation or concealment of facts , deceives another or continues the deception of another , thereby inducing him to do or to omit to do something to the detriment of his property or the property of another , shall be fined or punished by imprisonment for DATE . ”

“ ( CARDINAL ) A person responsible [ for the actions ] of a legal person who , with the aim of obtaining unlawful pecuniary gain for himself or the legal person , by using fraudulent instruments in security for payment or by deceiving another or continuing the deception of another in any other way , thereby inducing him to do or to omit to do something to the detriment of his property or the property of another , shall be punished with imprisonment from DATE .

( CARDINAL ) If the perpetration of the offence referred to in paragraph CARDINAL of this Article results in obtaining significant pecuniary gain or if it causes significant damage , and the perpetrator acted with intent to obtain such a pecuniary gain or to cause such damage , he shall be punished with imprisonment from DATE . ”


The applicant , Mr PERSON , is a GPE national who was born in DATE and lives in ‘ s - Hertogenbosch . He is represented before the ORG by Mr PERSON , a lawyer practising in GPE .

In its judgment of DATE , following criminal proceedings on appeal , ORG ( gerechtshof ) of ‘ s - Hertogenbosch quashed the impugned judgment of ORG ( arrondissementsrechtbank ) of ‘ s - Hertogenbosch of DATE , convicted the applicant of having transported DATE and DATE CARDINAL or more quantities of cocaine , of having held on DATE QUANTITY of cocaine , of having held on DATE in preparation of drug offences – QUANTITY of a substance [ mannitol ] destined to dilute cocaine , of having unlawfully held on DATE firearms and ammunition , and of social security fraud . It acquitted the applicant of the remaining charges , including trafficking cocaine . It sentenced the applicant to DATE and DATE imprisonment less the time spent in pre - trial detention . This judgment became final after an initially lodged appeal in cassation to ORG ( PERSON ) was withdrawn on DATE .

In the meantime , on DATE , the public prosecutor had summoned the applicant to appear before ORG of ‘ sHertogenbosch in order to be heard on the prosecutor ’s request for an order for the confiscation of illegally obtained advantage ( vordering tot ontneming van wederrechtelijk verkregen voordeel ) within the meaning of LAW ( Wetboek van Strafrecht ) , which had been assessed by the public prosecutor , on the basis of a criminal financial investigation ( strafrechtelijk financieel onderzoek ) carried out and closed on DATE , at a total amount of MONEY ( NLG ; corresponding to EUR CARDINAL,CARDINAL.CARDINAL ) .

At the hearing held on DATE before ORG on the prosecution ’s application for a confiscation order , the applicant argued that , although he had been convicted of CARDINAL offences for which a fifth - category fine could be imposed , namely CARDINAL offences under LAW ( PERSON ) and one offence under LAW ( FAC en GPE ) , he had not obtained any benefits by or through these offences . He had only traded in cars and gold , not in drugs . In so far as the request for a confiscation order was based on illegally obtained advantage by or through trafficking cocaine , the applicant argued that it could not be held that he had committed this offence as ORG had acquitted him of that charge and that , therefore , the imposition of a confiscation order on that basis would be in violation of his right to be presumed innocent under LAW .

In its ruling of DATE , ORG rejected the applicant ’s arguments and issued a confiscation order in the amount of NLG CARDINAL to be replaced , in case of lack of payment or impossibility of recovery , by DATE detention .

The applicant filed an appeal against this ruling with ORG of ‘ s - Hertogenbosch .

Hearings were held before ORG on DATE and DATE , in the course of which it noted the contents a number of documents , including CARDINAL financial reports drawn up on DATE and a further financial report drawn up on DATE by ORG of LOC , according to which the applicant had had considerable revenues from an untraceable / unknown source , in any event not from a traceable legal source . The applicant maintained that he had only traded in cars and gold , but not in cocaine . ORG further heard CARDINAL witnesses – including Mr PERSON whom the prosecution suspected of perjury ( meineed ) and in respect of whom the procedure concerning a suspicion of perjury by a witness as set out in LAW ) was applied – on the applicant ’s business activities .

In its decision of DATE , ORG quashed the ruling of DATE and imposed a confiscation order in the amount of ORG CARDINAL,CARDINAL.CARDINAL , to be replaced – in case of lack of payment or impossibility of recovery – by CARDINAL months’ detention . In so far as relevant , this decision reads as follows :

“ It has been argued on behalf of [ the applicant ] that there exist insufficient indications that [ he ] would have committed ( in brief ) cocaine trafficking .

The court rejects this defence . In its judgment of DATE having become final , this court has convicted [ the applicant ] of , inter alia , transport of cocaine in the period DATE , possession of QUANTITY of cocaine , and possession of the diluent mannitol . Cocaine trafficking must be regarded as an offence similar to the offences under LAW found proved .

The court is of the opinion , noting the quantity of cocaine held by [ the applicant ] , the proved transport of cocaine ... , the possession of a diluent , and the ORG ( Criminele Inlichtingen ORG ; ORG ) information in the case - file , that there exist sufficient indications that [ the applicant ] has committed the offence of cocaine trafficking .

The court considers wholly incredible the [ applicant ’s ] explanation for his frequent visits to the attic he had rented ... ( where the cocaine had been concealed ) that every time he would exchange there a QUANTITY . PERSON pistol for an easier to handle Beretta calibre CARDINAL .

In addition it appears from the property analysis ( vermogensvergelijking ) prepared by the police ( first and second financial reports of [ CARDINAL DATE of ] ORG of LOC ) that [ the applicant ] , in the period DATE and DATE , held a considerable capital consisting , inter alia , of jewellery and cars where [ the applicant ] , during that period , was in receipt of welfare benefits .

[ The applicant ] and his counsel have stated before the court in the [ present ] proceedings on appeal that the different cars , which according to the prosecution belonged to [ the applicant ] , would have been financed by the witness PERSON and would in fact belong to the latter , which statement was confirmed in full by the witness PERSON in the [ present ] proceedings on appeal .

However , the court is of the opinion that it has appeared from the [ present ] appeal proceedings and , in particular , from the different statements from the perjury procedure in respect of F. that the ... [ latter ’s ] statement must be regarded as wholly incredible . [ The applicant ’s ] version has , in the opinion of the court , not been established . Noting this , the ORG considers that no other conclusion can be reached than that [ the applicant ] has purchased these cars with own capital .

[ The applicant ] has tried during the [ present ] appeal proceedings to demonstrate that , to the extent that there would be any capital , this [ capital ] would have been obtained from the ( illegal ) trade in gold and cars .

However , in the court ’s opinion , it has not been demonstrated in the examination in court that [ the applicant ] would actually have been engaged in that trade and that it would have generated such profits that thereby [ the applicant ’s ] abovementioned capital could be explained . In this , the court takes into account that [ the applicant ’s ] allegation that there would be great differences in the price of gold in the GPE and GPE has , as appears from information provided by the police , turned out to be untrue . [ The applicant ’s ] statement will be put aside by the ORG as incredible .

On grounds of the above , the court finds that it can not be concluded otherwise than that there are sufficient indications that [ the applicant ] has been engaged , during the period from DATE to CARDINAL DATE , in violating the prohibition set out in LAW and that [ the applicant ] has derived benefit from this trafficking in cocaine to an amount to be determined below . ”

The applicant filed an appeal in cassation with ORG ( PERSON ) , complaining that the imposition of the confiscation order on the basis of an offence of which he had been acquitted violated his right to be presumed innocent as guaranteed by LAW .

In his advisory opinion , the Procurator General to ORG considered , referring to ORG case - law on this point , that the imposition of the confiscation order did not infringe the applicant ’s rights under LAW .

On DATE , ORG dismissed the applicant ’s complaint in cassation , holding :

“ The complaint does not provide grounds for overturning the ruling of ORG ( kan niet tot cassatie leiden ) . Having regard to LAW ( Wet op de rechterlijke organisatie ) , no further reasoning is called for , since the complaint does not give rise to a need for a determination of legal issues in the interest of legal unity or legal development . ”

However , on the basis of an ex officio examination of the impugned ruling , ORG decided to quash the impugned ruling in part , i.e. in so far as ORG had imposed alternative detention . It rejected the remainder of the appeal in cassation .

Article ORG of LAW ( PERSON ) provides :

Upon the application of ORG any person who has been convicted of a criminal offence may be ordered in a separate judicial decision to pay a sum of money to the state in order to deprive him of illegally obtained advantage .

Such an order may be imposed on a person as referred to in paragraph CARDINAL who has obtained advantage by means of or from the proceeds of the said criminal offence or similar offence or offences for which a fifth - category fine may be imposed , in connection with which there exist sufficient indications that they were committed by him .

Upon the application of ORG any person who has been found guilty of an indictable offence for which a fifth - category fine may be imposed and against whom , in connection with his being suspected of that offence , a criminal financial investigation has been instituted , may be ordered in a separate judicial decision to pay a sum of money to the state in order to deprive him of illegally obtained advantage if , having regard to that investigation , it is likely that other indictable offences led in any other way to the convicted person obtaining illegal advantage .

The judge shall determine the amount which the illegally obtained advantage is estimated to represent . Advantage shall be taken to include cost savings . The value of goods which the court deems to form part of the illegally obtained advantage may be estimated to be its market value at the time the decision is taken or may be estimated by reference to the yield to be obtained through public auction if the amount must be recovered . The court may order that the amount to be paid shall be less than the estimated advantage .

Goods shall be taken to mean all objects and property rights .

In determining the amount which the illegally obtained advantage is estimated to represent , legal claims from disadvantaged third parties awarded by a court shall be deducted .

In imposing the order account shall be taken of orders to pay a sum of money by way of deprivation of illegally obtained advantage imposed under previous decisions . ”

The possibility to deprive a person of proceeds of crime was introduced in DATE by LAW ( Wet Vermogenssancties ) . On DATE , the Act of DATE on the extension of the possibilities to apply the measure of illegally obtained advantage and other financial penalties ( PERSON van de mogelijkheden tot toepassing van de maatregel van ontneming van wederrechtelijk verkregen voordeel en andere vermogenssancties ) entered into force . CARDINAL of the changes brought about by this LAW was that the proceedings on the measure of deprivation of illegally obtained advantage were disconnected from the principal criminal proceedings , inter alia , in order to prevent situations in which issues concerning illegally obtained advantage would overshadow and affect the duration of the principal criminal proceedings .

It established a specific procedure – separate from the criminal proceedings taken against a suspect – for imposing a confiscation order under LAW . This specific procedure is set out in ORG CARDINALb - CARDINALi of LAW ( Wetboek van Strafvordering ) . The legislator ’s choice for this setting was to express that it concerned a continuation of the criminal prosecution of the convicted person , the purpose being to determine the sanction to be imposed ( GPE ( Parliamentary Documents ) II , DATE session , CARDINAL no . CARDINAL , p. CARDINAL ) . The confiscation order procedure is neither designed nor intended for the determination of a criminal charge , but for the detection of illegally obtained proceeds , to determine the pecuniary value thereof and , by way of a judicial confiscation order , to deprive the beneficiary of these proceeds . The aim pursued by the possibility of imposing confiscation orders is twofold ; in the first place to remedy an unlawful situation and , secondly , to bring about a general crimepreventive effect by rendering crime unattractive on account of an increased risk that proceeds of crime will be confiscated .

Pursuant to LAW , a request for a confiscation order under LAW must be filed by the public prosecutor with ORG as soon as possible and not later than a maximum of DATE after a convicting judgment handed down in the substantive criminal proceedings by the first instance trial court . It is not required that , when filing such a request , the conviction must have obtained the force of res iudicata .

Article CARDINAL § CARDINAL of LAW obliges the public prosecutor to indicate – in case this has not yet been done DATE when delivering the closing speech ( requisitoir ) before the first instance trial court in the substantive criminal proceedings whether the prosecution intends to seek a confiscation order in case of a conviction . The purpose of this obligation is to prevent a situation that a convicted person is confronted , at DATE after his conviction by a first instance court , with a request for a confiscation order , and to express that a confiscation order procedure does not constitute a fresh , second prosecution based on the same facts but is to be understood as a separate part of the earlier substantive criminal proceedings and that the prosecution does not stop after the end of the substantive criminal proceedings but is pursued in the confiscation order procedure .

The notion of “ similar offence or offences ” under LAW of LAW relates to offences of a similar nature as those having formed the object of the criminal proceedings against the accused , such as for instance drug offences , property offences and offences involving forgery and fraud .

The rules of evidence that apply in criminal proceedings , as set out in ORG CARDINAL - CARDINALa of the Code of Criminal Procedure , are not applicable to a confiscation order procedure . In that procedure it is for the public prosecutor to establish a prima facie case that there are sufficient indications that the person concerned has committed CARDINAL or more similar offences within the meaning of LAW of LAW having generated illegally obtained advantage . It is for the person concerned to rebut the prosecutor ’s case . The judge will decide the case on the basis of a balancing of probabilities , comparable to the standard of proof applicable to civil proceedings .

The fact that the rules of evidence applicable to criminal proceedings do not apply to the confiscation order procedure entails that – if in criminal proceedings an accused has been partly convicted and partly acquitted of the charges brought against him – in a subsequent confiscation order procedure the judge may impose a confiscation order against the person concerned which is not only based on the offence(s ) of which he has been convicted , but also on the similar offence(s ) of which he has been acquitted but in respect of which the judge is satisfied , on a balance of probabilities , that there exist sufficient indications that he has committed them .

Pursuant to LAW , the judge can derive the assessment of the actual amount of illegally obtained advantage under LAW only from the contents of “ legal means of evidence ” ( wettige bewijsmiddelen ) . LAW defines “ legal means of evidence " as the personal observations of the judge , statements of the accused , statements of a witness , statements of an expert , and written materials ( such as , for instance , judicial decisions , and formal minutes and records ) . However , unlike the requirement in criminal proceedings that a conviction can only be based on evidence that is corroborated by other evidence , the assessment of the amount of illegally obtained advantage in a confiscation order procedure can be based on CARDINAL evidentiary item , such as for instance a formal record containing the statement of the person concerned .

In a judgment handed down on DATE and published in ORG ( PERSON ; “ GPE ” ) , ORG held , in so far as relevant :

“ CARDINAL . In its ruling of CARDINAL DATE , GPE DATE , no . CARDINAL , ORG considered the following :

- The provisions of LAW and [ Articles CARDINALb – CARDINALi ] of LAW concern the imposition of a measure on the person convicted of a punishable offence , namely the obligation to pay a sum of money to the ORG for the purposes of confiscating illegally obtained advantage . This does not constitute a penalty , but a measure aimed at the deprivation of illegally obtained advantage . The fact that the imposition of that measure has been given a place in a criminal procedure does not alter its special character .

- That special character is also expressed in the requirements set for imposing it . These requirements are less strict than those that must be met for imposing a [ criminal law ] penalty . The regulations on evidence that apply to criminal proceedings do not apply in their full extent . This entails that offences included in a criminal charge having resulted in an acquittal can still form the basis for the imposition of a ( confiscation ) measure . Also in such a case , the judge must determine either that there exist sufficient indications that a similar offence or similar offences , referred to in LAW for which a fine of the fifth category may be imposed , has / have been committed by the person concerned , or that it is plausible that the other similar offences , referred to in LAW of LAW , have in any way resulted in the illegal obtaining of advantage by the person concerned . Such a determination is preceded by the procedure regulated in ORG CARDINALb et seq . of LAW . This serves as a guarantee that the judge , who must determine a request for a confiscation order filed by the prosecution department , will only do so after he has examined whether , and has found that , the statutory conditions , inter alia whether there are indications within the meaning of the second paragraph [ of LAW ] or plausibility within the meaning of the third paragraph [ of LAW ] , have been met .

- The above entails that the circumstance that the suspect has been acquitted of specific offences does not automatically constitute an obstacle for considering those offences , in the framework of the confiscation procedure , as “ similar offences ” or “ offences for which a fifth - category fine may be imposed ” as referred to in LAW .

ORG adds that this is not incompatible with LAW as , in the procedure regulated by LAW seq . of LAW , the person concerned is provided with the opportunity to defend himself , including the possibility to argue that and why there exist insufficient indications that the similar offence or similar offences for which a fifth - category fine may be imposed , as meant in LAW , has / have been committed by [ him ] , or that it is not plausible that the other punishable offences , within the meaning of LAW of LAW , have resulted in the illegal obtaining of advantage by [ him ] . The fact that the procedure on a ... [ request for a confiscation order ] must be regarded as a separate part or a continuation of a same [ set of ] criminal prosecution [ proceedings ] that can lead to conviction and sentence ( see PERSON , DATE ; GPE DATE ; no . CARDINAL ) does not prompt a different finding .

Considering that it has neither been argued nor appeared that the opportunity , referred to in [ the above paragraph ] CARDINAL . , has not been provided in the instant case , the decision of ORG does not disclose an incorrect interpretation of the law . ”


Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

The applicant , Mr PERSON , is a NORP national , who was born in DATE and currently resides in GPE . He is a disabled pensioner and a veteran of the Second World War . He suffers from myasthenia .

In DATE the applicant instituted proceedings in LOC against ORG ( “ FAC ” ) and ORG No . CARDINAL ( the “ Hospital ” ) , seeking compensation for moral and material damage caused by their refusal DATE to provide him with the prescription drug Kalimin-CARDINAL . He alleged that the ORG authorities had failed to provide him with this drug free of charge , contrary to Resolution No . CARDINAL of the Cabinet of Ministers of CARDINAL DATE . He further complained that because this drug was not provided to him , he had to buy it in GPE , GPE and GPE . He requested reimbursement of the costs incurred .

On DATE the Babushkinsky ORG of Dnepropetrovsk ( the “ Babushkinsky Court ” ) rejected the applicant ’s claims as being unsubstantiated . It found that the ORG and the ORG could not be held responsible for the failure to provide a drug simply because it was not available in LOC .

On DATE the ORG allowed the applicant ’s appeal , quashed the decision of DATE and remitted the case for fresh consideration .

On DATE ORG rejected the applicant ’s claims as being unsubstantiated .

On DATE , following an appeal filed by the applicant , the ORG quashed the decision of DATE and again remitted the case for fresh consideration .

On DATE the applicant lodged an appeal with ORG under the new appeal procedure introduced by LAW on DATE . On DATE the ORG allowed the applicant ’s claims in part . The court ordered ORG to pay the applicant ORG CARDINAL.CARDINAL and UAH CARDINAL ( a total of ORG MONEY [ ORG CARDINAL ] ) in compensation for material and moral damage , respectively . It also ordered the Hospital to pay the applicant UAH CARDINAL.CARDINAL , UAH CARDINAL and UAH CARDINAL ( a total of ORG CARDINAL,CARDINAL.CARDINAL [ ORG CARDINAL.CARDINAL ] ) in compensation for material and moral damage , costs and expenses .

On DATE ORG of the Babushkinsky District Department of Justice ( the “ Bailiffs’ Service ” ) instituted enforcement proceedings in respect of the judgment of DATE .

On DATE ORG ordered that the funds awarded by the judgment of DATE be transferred to the applicant ’s bank account .

On DATE a panel of CARDINAL judges of ORG rejected the cassation appeal lodged by the Chief Doctor of the ORG against the judgment of DATE for want of substantiation . The institution of the cassation proceedings did not suspend the enforcement of the judgment of CARDINAL DATE .

On DATE the writ of execution and the payment request were returned to the applicant because of the Hospital ’s lack of funds .

On DATE ORG requested ORG to inform it about the possibility of obtaining funds from ORG in order to enforce the judgment .

On DATE ORG terminated the enforcement proceedings after ORG CARDINAL,CARDINAL.CARDINAL had been transferred to the applicant ’s bank account . The judgment was fully executed in so far as it concerned the ORG .

On DATE ORG requested the ORG to comply with the judgment of DATE and to transfer the amount due to the applicant to his bank account .

On DATE the ORG paid UAH CARDINAL [ EUR MONEY ] to the applicant .

On DATE ORG received the payment request and the writ of execution back from the ORG , with a statement that the judgment could not be fully enforced due to the ORG ’s lack of funds .

On DATE ORG requested the ORG to pay the applicant the remainder of the judgment debt .

On DATE the ORG transferred the remainder of the funds ( ORG CARDINAL [ ORG CARDINAL.CARDINAL ] ) to the applicant ’s account . ORG terminated the enforcement proceedings .

On DATE ORG rejected for lack of substantiation the applicant ’s claims against ORG of ORG for an award of compensation for the moral damage he had allegedly suffered due to the lengthy period of non - enforcement of the judgment of CARDINAL DATE . This judgment was not appealed and thus became final .

Article CARDINAL of the LAW provided as follows :

“ ... Judicial decisions are adopted by the courts in the name of GPE and are mandatory for execution throughout the entire territory of GPE . ”

Under LAW , the enforcement of judgments is entrusted to ORG . Under LAW , the creditor may file a complaint against actions or omissions of ORG with the head of the competent department for that ORG or with a local court . LAW entitles the creditor to institute court proceedings against a legal person , entrusted with the enforcement of a judgment , for inadequate enforcement or non - enforcement of a judgement , and to receive compensation .

LAW provides for the liability of bailiffs for any inadequate performance of their duties , as well as compensation for damage caused by a bailiff when enforcing a judgment . Under LAW , acts and omissions of the bailiff can be challenged before a superior official or the courts .

Under clause CARDINAL of the regulations , the forced recovery of funds must be executed from the same account as that of ordinary payments .


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

The applicant has been the leader of the public movement ORG ( Русский общенациональный союз – Russkiy obshchenatsionalniy soyuz ) since its inception in DATE .

On DATE ORG registered the movement as a public association .

On DATE , at the sixth general assembly of the movement , members decided to reorganise the movement into a political party bearing the same name . An application for the party ’s registration was lodged with ORG .

By a letter of DATE , ORG refused the application on a number of grounds . The first ground for the refusal was that the adjective “ NORP ” ( русский DATE russkiy ) in the name of the party referred to an ethnic group , whereas section GPE of LAW prohibited the establishment of political parties based on professional , racial , ethnic or religious affiliations . The applicant contested that particular ground for the refusal before a court of general jurisdiction .

By a judgment of DATE , ORG of GPE dismissed the applicant ’s complaint after hearing evidence from several experts called by the defence . The experts concurred that the meaning of the word russkiy was ambiguous , since it could be understood either as denoting anything related to GPE DATE and in this sense its meaning was closer to the word rossiyskiy ( российский ) DATE or as referring to CARDINAL particular ethnic group , the NORP . A representative of ORG submitted to the court that the word “ all - nation ” ( общенациональный – obshchenatsionalniy ) in the name of the applicant ’s party also had CARDINAL meanings , the first being “ an association of people belonging to different nations ” and the second “ an association of the people of CARDINAL nation ” . However , since it was preceded by the word russkiy , these CARDINAL adjectives had to be read together and understood as “ an association of the nation of [ ethnic ] NORP ” . ORG accepted that interpretation , which was not disputed by the applicant , and found that the applicant ’s party was founded on the basis of ethnic affiliation . This amounted to a breach of section CARDINAL(CARDINAL ) of LAW , even though the party ’s articles of association and programme did not indicate protection of the interests of NORP as its main objective .

On DATE ORG upheld the judgment on appeal , endorsing the reasoning of ORG .

The applicant challenged section CARDINAL(CARDINAL ) of LAW before ORG , alleging that it was incompatible with LAW . ORG joined his complaint with those of ORG of GPE and PERSON .

On DATE ORG issued Ruling no . CARDINAL-P. It noted at the outset the special role of political parties as the only form of public association vested with the right to nominate candidates in elections to ORG bodies . According to LAW , membership of political parties is individual and voluntary and may not be restricted on account of professional , social , racial , ethnic or religious affiliation , gender , social origin , property or place of residence . The court concluded that the right of individuals of any ethnicity or religion to become members of a party whose objectives and goals they shared could not be restricted . It further found as follows .

“ The principles of pluralist democracy , a multi - party system and a secular ORG that form the constitutional basis of GPE – in so far as they apply to legal regulation of the establishment and functioning of political parties , including conditions for their registration – may not be interpreted or implemented without regard to the particular features of GPE ’s historic development , the ethnic and religious structure of NORP society and the specific character of interaction between the ORG , political power , ethnic groups and religious denominations .

... The principle of a secular ORG can not be applied in GPE in the same way as in those countries that have a single - faith and single - nation social structure and boast a well - developed tradition of religious tolerance and pluralism . In particular , some of those countries have permitted the establishment of political parties based on NORP democratic ideology ; in these cases the term ‘ ORG has moved beyond denominational confines and designates affinity with the NORP system of values and culture .

In multinational and multi - denominational GPE , owing to the specific modus operandi of leading faiths ... , their influence on public life and their invocation in political rhetoric ( which has historically been linked to the ethnic question ) , public consciousness is more likely to identify the terms ‘ ORG , ‘ Orthodox’ , ‘ Muslim’ , ‘ Russian’ , ‘ Tartar’ , etc . with specific denominations or ethnic groups , rather than with a system of values common to the NORP [ rossiyskiy ] people in its entirety .

Furthermore , contemporary NORP society , including political parties and religious associations , has not yet acquired substantial experience of democratic coexistence . In these circumstances , parties based on ethnic or religious affiliation would inevitably strive to assert principally the rights of their respective ethnic and religious communities . Competition among parties based on ethnic or religious affiliation ... could lead to stratification of the multinational people of GPE instead of the consolidation of society , to the opposition of ethnic and religious values , exaltation of some and belittlement of others and , ultimately , to attributing predominant importance not to those values which are common to the entire nation but to those restricted to CARDINAL ethnic ideology or religion , a result which would be contrary to LAW ( Articles CARDINAL and CARDINAL ) .

The establishment of parties based on religious affiliation would open the door to the politicisation of religion and religious associations , political fundamentalism and the clericalisation of parties ... The establishment of parties based on ethnic affiliation could lead to a situation where representatives of parties advocating the interests of large ethnic groups DATE to the detriment of those of small ethnic groups DATE would predominate in elected governing bodies ; a situation which would violate the principle of equal rights irrespective of ethnic origin , established in GPE ( Articles CARDINAL § CARDINAL , CARDINAL § DATE and CARDINAL § CARDINAL ) .

Thus , the constitutional principle of a democratic and secular ORG , as applied in the particular social and historic context existing in GPE as a multinational and multi - denominational country , does not allow political parties to be established on the basis of ethnic or religious affiliation .

For those reasons , in the face of unrelenting inter - ethnic and interdenominational tension and the ever - growing political demands of DATE religious fundamentalism , when any religion - based distinction , once brought into the sphere of politics ( and therefore , into the struggle for power ) , may acquire an ethnic dimension and lead to a division of society along ethnic and religious lines ( a division , in particular , into NORP and PERSON elements ) , the introduction into LAW of a ban on the establishment of political parties based on ethnic or religious affiliation is compatible with the authentic meaning of LAW and CARDINAL of LAW read together with Articles QUANTITY and CARDINAL , DATE and CARDINAL ... ”

Finally , ORG noted that it was not competent to determine whether in a particular case a party had been established on the basis of national or religious affiliation and whether a party ’s name reflected its aims , namely the promotion of ethnic or religious interests , these matters coming within the jurisdiction of the ordinary courts .

The LAW guarantees plurality of ideologies and political parties and prohibits the activity of public associations which incite social , racial , ethnic or religious discord ( LAW . Article CARDINAL guarantees the secularity of GPE and equality of religions . Article CARDINAL establishes the principle of equality before the courts and the law . Article CARDINAL guarantees the right to freedom of conscience and religion . Article CARDINAL guarantees the right to freedom of thought and expression and prohibits the promotion of social , racial , ethnic , religious or linguistic superiority .

LAW ( Federal Law no . CARDINAL-FZ of DATE ) provides as follows :

“ ( CARDINAL ) The establishment of political parties based on professional , racial , ethnic or religious affiliation is not allowed .

The terms ‘ professional , racial , ethnic or religious affiliation’ shall be understood in the present LAW as inclusion in the articles of association and programme of the political party of the aims of protection of professional , racial , ethnic or religious interests , as well as reference to those aims in the name of the political party . ”