Violation of Art. 10;Not necessary to examine Art. 18 (second applicant);Preliminary objections rejected (non-exhaustion of domestic remedies, estoppel);Violation of Art. 6-1;Pecuniary damage - financial award (first applicant);Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

John Freeland;Luzius Wildhaber;Paul Mahoney

At the material time , the first applicant , Mr PERSON was the major shareholder in ORG ve PERSON , a NORP company which owns a DATE review entitled Haberde Yorumda Gerçek ( ORG and Comments ) , published in GPE . The second applicant , Mr PERSON was the editor - in - chief of the review .

In the CARDINAL DATE and DATE issues of the review , an interview with a leader of ORG ( “ the NORP ” ) , an illegal organisation , was published in CARDINAL parts . In the edition of CARDINAL DATE a joint declaration by CARDINAL socialist organisations was published .

The relevant parts of these publications read as follows ( translation ) :

“ Q : What do you mean when you say [ the elections present ] dangers ?

A : NORP The GPE say : ‘ The NORP are oppressed . PERSON is slaughtering them . We are protecting the NORP against PERSON ’s massacres . Their survival is in our safekeeping.’ But it is quite obvious that this is a big swindle . If they were really protecting the NORP against massacre as they claim , they ought to be protecting them against ORG , too . Since the massacre which ORG is carrying out against our people in the GPE is as horrible as that of PERSON . In fact , there are practices which are much more extreme than those of PERSON . So the GPE ought to be doing the same thing against GPE . The double standard is clear for all to see . The GPE take action against PERSON , but support GPE ’s massacres against the NORP people in both the LOC and the LOC . There have been many signs of this and our people are aware of it . They want to make the NORP an instrument for gaining their own ends . Their aim in the elections is both to contain the positive developments in the LOC through the organisations they want to promote and to block the fight for independence and freedom which is developing in GPE in general . They want to bring all the NORP movements under the control of those CARDINAL organisations already controlled by them [ the GPE ] . So that is why they all present a danger for the NORP people .

Q : Laws will be enacted once a parliament has been established in LOC . Treaties will be signed , on the one hand with neighbours , i.e. GPE and GPE , and , on the other hand , with the GPE . GPE can have only one demand from these countries , that the ORG be excluded . If NORP parties take part in such an environment , what would be the ORG ’s attitude ?

A : It is a well - known fact that GPE and/or imperialism wants to divert our people from its national identity and struggle . But we want to achieve our identity as a nation and have a fatherland . That is what we are fighting for . They want to uproot us and drive us out of our territory ; they want to annihilate us or force us to change . But we fight to live in freedom in our own territory . If either the GPE or GPE or any other power which claims to be acting in the name of NORP identity attempts to force us out of any part of our country , we will fight in order to stay where we are . That is what we are fighting for right now . ORG wants to oust us from our territory . It is driving people out of their villages . It wants GPE to become a totally uninhabited area . But we are resisting . No one can tell us or ask us to get out . We are not on anyone else ’s territory ; we are on our own territory . No one can tell us to leave our own territory . We make no distinction between the LOC and the LOC ; we are in GPE . We are amongst our own people . If they want us to leave our territory , they must know that we will never agree to it . We are a people who have lost everything we had and who are fighting to regain what we have lost . That is the purpose of our action . We have nothing to lose . We shrink from nobody and are afraid of no one . All we can lose is our slavery . That is why we act without fear .

Q : It is said that broadcasting programmes in NORP on NORP State television would be interpreted as making a concession to the ORG . Could that be true ? It is also rumoured that the ORG is going to set up a TV station . Is that right ?

A : It is not true that the ORG is going to broadcast on television . We have no such facilities . Television broadcasting either by satellite or through any other channel is not an issue for the ORG . It was PERSON who brought up the issue of NORP TV in GPE when he went to the GPE . That is what is being debated . A very small fraction of people say that GPE was right , but a very large proportion are against it . Those who are suggesting NORP TV are doing so deliberately . The aim is supposedly to influence and win over the masses and thus to isolate the ORG . That is what the idea is . But even if NORP TV became a reality , it would do them no service . That is why they are against it . The purpose of those who want to create NORP TV is to isolate the ORG . For there is no mention of any argument such as ‘ Here is a people who have their own language and we must broadcast in their language . There is need for respect for that people . It is wrong to ban a people ’s language , that also harms ORG Far from it . The debate has revealed the real intentions : ‘ How can we wipe out the influence of the ORG ? How can we isolate the ORG ? How can we pull the wool over the NORP people ’s eyes?’ It is a tactical approach . It is a trick . But no matter what steps they take , they will be working to the advantage of the ORG . ORG has now lost GPE . That is a fact . Any move the ORG makes in GPE after this will turn out to the advantage of the ORG and to the disadvantage of ORG ... .The NORP press has no principles . We consider that there is no longer any point in communicating with that unethical press . We shall not be satisfied with abstaining from any contact with the press ; we shall endeavour to stop the press from entering GPE .

Q : A different tactic was applied in the Uludere attack . Previously , attacks were always carried out at TIME . But this time , the attack was carried out during DATE and the clashes continued throughout DATE . It is said that this entails more risk for the guerrillas . What was the reason for it ?

A : What they say is right . Our combat has reached a certain level . Tactics have to be developed which match that level , because it is a mistake to wage war with less developed tactics . Progress can be achieved in the war by using tactics in keeping with the level of warfare which has now been reached . That is why an action of that nature was planned . The idea was to attack in TIME and hold our ground , continuing the clashes throughout DATE and it was successful in the end . It was an experiment . From our point of view there are conclusions to be drawn from it . We are studying the matter . We shall benefit from that in the actions we carry out in the future . ”

“ Q : What do you think about the assassinations by unknown perpetrators in GPE and the actions ascribed to the ‘ LOC ?

A : It is true that there is an organisation known as ORG . But it is a weak organisation . It is not that organisation which is carrying out the massacres , contrary to what is being said . Since the organisation is weak , GPE has captured its members in many places . Many massacres are carried out in the name of that organisation , but it is actually ORG itself which is doing the killings . We say this to the members of ORG : ‘ If you are really NORP , [ you should know that ] the NORP faith is against repression and injustice and advocates what is right and PERSON It is a well - known fact that ORG is repressive and carries out massacres and inhuman actions . They [ the ORG ] must respect those who oppose these acts . If they want to wage war , they must join forces with them . That is what we are asking of them . We warn them as friends that they must throw out the contra - guerrillas who infiltrate their ranks . For unless they do that , they will come to grief . We have not , as yet , reacted more seriously , we have just warned them . We say that that phenomenon has served ORG and we have received a favourable response from DATE . They have said that ORG people or NORP have not in fact been involved in that sort of action and that the acts have not been carried out by ORG people . That is favourable as far as we are concerned . But it [ the ORG ] is still carrying out massacres in some places in ORG ’s name ...

Q : On what lines will the struggle be carried out from now on ?

A : NORP The climate does affect a war , although the effects are not decisive . The DATE was very hard and that affected our movements , the capacity for combat and caused several difficulties DATE both for us and for ORG . But they have the advantage of using technology and they used that advantage to the full . To no avail , however . They intended to deal us murderous blows DATE . They thought they would have overthrown us and ousted us by DATE . But they did not achieve what they wanted . Our capacity for movement was reduced by the hard DATE conditions and , as a result , steps could only be taken late as compared to DATE . The DATE is gradually becoming more suitable , however . There is still snow on the ground in many places , but it is presenting less and less of an obstacle . DATE will be more different compared to other DATE , but we never say : ‘ Let us improve our armed combat , let us expand it further.’ If we continue the war , we do so because we have to . Because there is no possibility of achieving a different life and developing . All roads have been blocked for us . We are waging war because we are forced to . Any further expansion of the war will depend on the attitude of ORG . The ORG is intensifying the war . So we have to extend the war to that degree . The war will escalate . Before the ORG , there was a CARDINAL - sided war being waged in GPE . In DATE that war has begun to be a CARDINAL - sided war . In DATE , ORG used to achieve whatever ends it intended to achieve in the war it was waging , and the NORP people was being rapidly wiped out as a result . But the NORP people have begun to say ‘ Stop!’ . They began to resist in order to avoid annihilation . It was the ORG which started the war and the ending of the war will also depend on ORG . We did not start the war . We developed a defensive war against the war of annihilation that was being waged on us . This war will continue as long as ORG refuses to accept the will of the people of GPE : there will be not CARDINAL single step backwards . The war will go on until there is CARDINAL single individual left on our side . …

The ORG colonialist authority has completely disappeared in some places … As the government of war we want the people ’s will , which makes itself increasingly known , to be able to express itself officially . We shall make our way towards that objective CARDINAL step at a time . We shall reach it by destroying or weakening the sovereignty of the ORG different ways and in various forms , by setting up a popular regime in certain places and favouring a dualistic regime in others . That is what we call the power of the people , the government of war . …

The ORG encounters all kinds of problems and resolves them . No questions are put to ORG . No one speaks to it . Everyone speaks to ORG or the local ERNK official . The ORG is considered competent . For the moment , we are in the process of electing the representatives of the people . ”

“ ORG of GPE ( TDKP ) , ORG of GPE ( TKEP ) , ORG for the Liberation of Northern Kurdistan ( TKKKÖ ) and ORG of GPE ( TKP / ML Hareketi ) have called on all revolutionaries and NORP to unite forces .

‘ Let us unite against ORG terrorism , against the repression and oppression of the NORP people , against the massacres , the street killings , the dismissals and unemployment ; let us unite and step up our efforts for freedom , democracy and socialism!’ Such is the heading of the appeal in which it is stated that the only means of action for the ruling classes is that of force and violence . And the ‘ democratisation’ initiatives of the ORG and ORG government are described as a manoeuvre , purely a means of concealing their attacks . ”

The appeal goes on to state the following views :

“ Workers , labourers and young people of the NORP and NORP nation !

It is possible and perfectly feasible for us to drive back the attacks levelled on us by imperialism and the collaborating ruling classes and to obtain our economic and political rights and freedoms . To do so we must rally our forces around our common demands and join battle . Aware of its historic revolutionary role , the working class must take action , must lead that action , must call the bluff of the trade union bosses of every camp and smash the barriers they have put up to curb our movement and must develop the fight and action .

- The NORP army must withdraw from GPE . Action must be taken to put an end to the double standards in the legal system and all NORP prisoners must be released .

- The NORP parliament must end its authority over GPE . NORP people must be free to determine their own destiny , including the establishment of a separate ORG .

- The ORG terrorism and street executions , carried out by ORG [ ORG ] agents , contra - guerrillas and special squads , must stop immediately and they must be called upon to account for the massacres and murders .

- The servicing of external debts to imperialists must be stopped , and those resources must be used for the benefit of the proletariat .

- Dismissals must be stopped and sacked workers must be given their jobs back . All the obstacles which have been placed in the way of trade union organisation must be removed and the right to organise without restriction must be granted .

- Measures must be taken to prevent ORG , which are the resources of the country and of the people , from being sold for a song to imperialists . Labour sub - contracting , which is a means of eliminating trade union coverage , must be stopped immediately .

- The strike bans must be lifted and lockout must be prohibited . The right to hold general strikes , political strikes , strikes to obtain rights and sympathy strikes must be recognised . And all the bans on freedom of assembly , freedom to demonstrate , freedom of opinion and of the press must be ended .

- Act no . CARDINAL pertaining to civil servants must be repealed and all working people must be granted the right to join a trade union with the right to strike and to conclude collective agreements .

- All working people must have insurance coverage ; all workers must be granted unemployment insurance and the facilities must be provided for free health services and health care for everyone .

- The discrimination based on sex which prevails in working and social life and the pressure exerted on working women must be ended .

- The NORP [ High Council for Education ] must be done away with and young people in higher education must be allowed to have a say and to participate in decision - making in university administration . All the obstacles that have been placed on youth organisations must be removed and education and training must be free of charge at every level .

- ORG boards must be given full autonomy ; textbooks must meet contemporary requirements and must be re - written with democratic contents .

- All debts owed to the ORG by the peasantry must be cancelled and the rural population must be allowed to set the minimum prices of products . ”

On DATE ORG ( PERSON ) ordered the seizure of all copies of the CARDINAL DATE issue of the review , since it allegedly contained a declaration by terrorist organisations and disseminated separatist propaganda .

NORP In an indictment dated DATE ORG at ORG charged the applicants with having disseminated propaganda against the indivisibility of the ORG by publishing an interview with a ORG leader and a declaration made by CARDINAL terrorist organisations . The charges were brought under sections CARDINAL and CARDINAL of the Prevention of Terrorism Act DATE ( hereinafter “ the DATE LAW : see paragraph CARDINAL below ) .

In another indictment dated DATE , the applicants were further charged on account of having published the second part of the interview in the issue of DATE with disseminating propaganda against the indivisibility of the ORG . The charges were brought under section LAW .

On DATE the criminal proceedings were joined in view of the fact that the incriminated articles were considered to constitute a single interview published in CARDINAL parts .

In the proceedings before ORG , the applicants denied the charges . They pleaded that the interview had been published with the aim of providing the public with information within the scope of journalism and the freedom of the press . As regards his freedom of expression , the first applicant referred to the LAW and the case - law of the ORG and the ORG . He stated that pluralism of opinion was essential in a NORP society including opinions which shock or offend . He argued that the provisions of sections CARDINAL and CARDINAL of the CARDINAL Act restricted freedom of expression in contravention of LAW and the criteria laid down in the case - law of the Commission and the ORG .

In a judgment dated DATE ORG found the applicants guilty of offences under sections CARDINAL and CARDINAL of the DATE Act . The first applicant was sentenced under section CARDINAL to a fine of MONEY and under section CARDINAL to a further fine of MONEY . The second applicant was sentenced under section CARDINAL to a fine of MONEY and under section CARDINAL to CARDINAL months’ imprisonment and a further fine of MONEY .

In its reasoning , the court held that the interview with the ORG leader was published in the form of a news commentary . It further held that the interviewee had referred to a certain part of NORP territory as “ GPE ” , had asserted that certain NORP citizens who are of NORP origin form a separate society and that GPE expels NORP people from their villages and massacres them . The court further considered that the interviewee had praised NORP terrorist activities and had claimed that the NORP should form a separate ORG . On these grounds , the court found that the interview , as a whole , disseminated propaganda against the indivisibility of the ORG . The court further held that another page of the review contained a declaration by terrorist organisations and its publication constituted a separate offence under section CARDINAL of the CARDINAL Act .

The applicants appealed against their conviction . In addition to the defence which they invoked before ORG , their legal representative emphasised that in a democratic society opinions must be freely expressed and debated . Noting that there had been no prosecutions for the publication of other interviews with the leaders of the ORG in other newspapers or magazines , the ORG representative asserted that the applicants had not been convicted for having published the incriminated interview , but for publishing a NORP review .

On DATE ORG dismissed the appeal . It upheld ORG assessment of the evidence and its reasons for rejecting the applicants’ defence .

Following the amendments made by PERSON no . CARDINAL of DATE to the DATE LAW see paragraph CARDINAL below ) ORG ex officio re - examined the applicants’ cases . The court confirmed the sentences imposed on them .

NORP The relevant provisions of LAW read as follows :

“ Where the legislative provisions in force at the time when a crime is committed are different from those of a later law , the provisions most favourable to the offender shall be applied . ”

“ The term ‘ heavy fine’ shall mean payment to the ORG of from CARDINAL to MONEY , as the judge shall decide ... ”

“ In the event of conviction , the court shall order the seizure and confiscation of any object which has been used for the commission or preparation of the crime or offence … ”

“ Harmful propaganda

A person who by any means whatsoever spreads propaganda with a view to establishing the domination of CARDINAL social class over the others , annihilating a social class , overturning the fundamental social or economic order established in GPE or the political or legal order of the ORG shall , on conviction , be liable to a term of imprisonment of from DATE .

A person who by any means whatsoever spreads propaganda in favour of the ORG ’s being governed by a single person or social group to the detriment of the underlying principles of the LOC and democracy shall , on conviction , be liable to a term of imprisonment of from DATE .

A person who , prompted by racial considerations , by any means whatsoever spreads propaganda aimed at abolishing in whole or in part public - law rights guaranteed by the LAW or undermining or destroying patriotic sentiment shall , on conviction , be liable to a term of imprisonment of from DATE .

“ Public incitement to commit an offence

Where incitement to commit an offence is done by means of mass communication , of whatever type – whether by tape recordings , gramophone records , newspapers , press publications or other published material DATE by the circulation or distribution of printed papers or by the placing of placards or posters in public places , the terms of imprisonment to which convicted persons are liable shall be doubled … ”

“ Non - public incitement to commit an offence

A person who expressly praises or condones an act punishable by law as an offence or incites the population to break the law shall , on conviction , be liable to between six months’ and CARDINAL years’ imprisonment and a heavy fine of from CARDINAL MONEY .

A person who incites the people to hatred or hostility on the basis of a distinction between social classes , races , religions , denominations or regions , shall , on conviction , be liable to CARDINAL years’ imprisonment and a fine of from CARDINAL to MONEY . If this incitement endangers public safety , the sentence shall be increased by DATE .

The penalties to be imposed on those who have committed the offences defined in the previous paragraph shall be doubled when they have done so by the means listed in LAW . ”

The relevant provisions of the Press Act DATE read as follows :

“ For the purposes of the present PERSON , the term ‘ periodicals’ shall mean newspapers , press agency dispatches and any other printed matter published at regular intervals .

‘ Publication’ shall mean the exposure , display , distribution , emission , sale or offer for sale of printed matter on LOC to which the public have access where anyone may see it .

An offence shall not be deemed to have been committed through the medium of the press unless publication has taken place , except where the material in itself is unlawful . ”

“ Where distribution of the printed matter whose distribution constitutes the offence is prevented … by a court injunction or , in an emergency , by order of the principal public prosecutor … the penalty imposed shall be reduced to CARDINAL of that laid down by law for the offence concerned . ”

The relevant provisions of LAW DATE read as follows :

“ It shall be an offence , punishable by a fine of from CARDINAL to MONEY , to announce , orally or in the form of a publication , that terrorist organisations will commit an offence against a specific person , whether or not that person ’s ... identity is divulged provided that it is done in such a manner that he or she may be identified , or to reveal the identity of civil servants who have participated in anti - terrorist operations or to designate any person as a target .

It shall be an offence , punishable by a fine of from CARDINAL to MONEY , to print or publish declarations or leaflets emanating from terrorist organisations .

Where the offences contemplated in the above paragraphs are committed through the medium of periodicals within the meaning of section CARDINAL of LAW ( Law no . CARDINAL ) , the publisher shall also be liable to a fine equal to MONEY of the income from the average sales for DATE if the periodical appears more frequently than DATE , or from the sales of the previous issue if the periodical appears DATE or less frequently , or from the average sales for DATE of the DATE newspaper with the largest circulation if the offence involves printed matter other than periodicals or if the periodical has just been launched . However , the fine may not be MONEY . The editor of the periodical shall be ordered to pay a sum equal to CARDINAL the fine imposed on the publisher . ”

“ Written and spoken propaganda , meetings , assemblies and demonstrations aimed at undermining the territorial integrity of GPE or the indivisible unity of the nation are prohibited , irrespective of the methods used and the intention . Any person who engages in such an activity shall be sentenced to not CARDINAL and not more than five years’ imprisonment and a fine of from CARDINAL to MONEY .

Where the crime of propaganda contemplated in the above paragraph is committed through the medium of periodicals within the meaning of section CARDINAL of LAW ( Law no . CARDINAL ) , the publisher shall also be liable to a fine equal to MONEY of the income from the average sales for DATE if the periodical appears more frequently than DATE , or from the average sales for DATE of the DATE newspaper with the largest circulation if the offence involves printed matter other than periodicals or if the periodical has just been launchedCARDINAL . However the fine may not be MONEY . The editor of the periodical concerned shall be ordered to pay a sum equal to CARDINAL the fine imposed on the publisher and sentenced to not less than six months’ and not more than CARDINAL years’ imprisonment . ”

“ Written and spoken propaganda , meetings , assemblies and demonstrations aimed at undermining the territorial integrity of GPE or the indivisible unity of the nation are prohibited . Any person who engages in such an activity shall be sentenced to not CARDINAL and not more than three years’ imprisonment and a fine of from CARDINAL MONEY . The penalty imposed on a re - offender may not be commuted to a fine .

Where the crime of propaganda contemplated in the first paragraph is committed through the medium of periodicals within the meaning of section CARDINAL of LAW ( Law no . CARDINAL ) , the publisher shall also be liable to a fine equal to MONEY of the income from the average sales for DATE if the periodical appears more frequently than DATE . However , the fine may not be MONEY . The editor of the periodical concerned shall be ordered to pay a sum equal to CARDINAL the fine imposed on the publisher and sentenced to not less than six months’ and not more than CARDINAL years’ imprisonment .

Where the crime of propaganda contemplated in the first paragraph is committed through the medium of printed matter or by means of mass communication other than periodicals within the meaning of the second paragraph , those responsible and the owners of the means of mass communication shall be sentenced to not CARDINAL six months’ and not more than two years’ imprisonment and a fine of from CARDINAL MONEY …

“ The penalties for the offences contemplated in the present law may not be commuted to a fine or any other measure , nor may they be accompanied by a reprieve . ”

“ The penalties for the offences contemplated in the present PERSON may not be commuted to a fine or any other measure , nor may they be accompanied by a reprieve .

However , the provisions of this section shall not apply to convictions pursuant to section CARDINAL . ”

“ Persons convicted of the offences contemplated in the present law who ... have been punished with a custodial sentence shall be granted automatic parole when they have served DATE of their sentence , provided they have been of good conduct .

The first and second paragraphs of section CARDINAL … of LAW ( Law no . CARDINAL ) shall not apply to the convicted persons mentioned above . ”

The following amendments were made to LAW DATE following the enactment of PERSON no . CARDINAL of DATE :

“ In DATE following the entry into force of the present PERSON , the court which has given judgment shall re - examine the case of a person convicted pursuant to LAW CARDINAL of the Prevention of Terrorism Act ( Law no . CARDINAL ) and , in accordance with the amendment … to section CARDINAL of PERSON no . ORG , shall reconsider the term of imprisonment imposed on that person and decide whether he should be allowed the benefit of sections CARDINAL and CARDINAL of Law no . CARDINAL of DATE . ”

The following provisions are relevant to sentences in respect of offences under LAW :

“ The execution of sentences passed on those who were convicted under Press Law no . CARDINAL or other laws as editors for offences committed before DATE shall be deferred .

The provision in the first paragraph shall also apply to editors who are already serving their sentences .

The institution of criminal proceedings or delivery of final judgments shall be deferred where no proceedings against the editor have not yet been brought , or where a preliminary investigation has been commenced but criminal proceedings have not been instituted , or where the final judicial investigation has been commenced but judgment has not yet been delivered , or where the judgment has still not become final . ”

“ If an editor who has benefited under the provisions of the first paragraph of section CARDINAL is convicted as an editor for committing an intentional offence within DATE of the date of deferment , he must serve the entirety of the suspended sentence .

The part of the postponed conviction which was served by the responsible editor until the date on which this PERSON enters into force shall be deducted from the sentence to be served as indicated in LAW . The provisions concerning conditional release are reserved .

Where there has been a deferment , criminal proceedings shall be instituted or judgment delivered if an editor is convicted as such for committing an intentional offence within DATE of the date of deferment .

Any conviction as an editor for an offence committed before DATE shall be deemed a nullity if the aforesaid period of DATE without any further conviction for an intentional offence . Similarly , if no criminal proceedings have been instituted , it shall no longer be possible to bring any , and , if any have been instituted , they shall be discontinued . ”

The Execution of Sentences Act provides inter alia :

“ The term ‘ fine’ shall mean payment to the ORG of a sum fixed within the statutory limits .

If , after service of the order to pay , the convicted person does not pay the fine within the time - limit , he shall be committed to prison for a term of DATE for every MONEY owed , by a decision of the public prosecutor .

The sentence of imprisonment thus substituted for the fine may not exceed DATE … ”

“ … persons who ... have been ordered to serve a custodial sentence shall be granted automatic parole when they have served CARDINAL of their sentence , provided they have been of good conduct ... ”

The Code of Criminal Procedure contains the following provisions :

“ An appeal on points of law may not concern any issue other than the lawfulness of the impugned judgment .

Non - application or erroneous application of a legal rule shall constitute unlawfulness . ”

“ Unlawfulness is deemed to be manifest in the following cases :

CARDINAL- where the court is not established in accordance with the law ;

CARDINAL- where one of the judges who have taken the decision was barred by statute from participating ;

The Government supplied copies of several decisions given by the prosecutor attached to ORG withdrawing charges against persons suspected of inciting people to hatred or hostility , especially on religious grounds ( LAW ) , or of disseminating separatist propaganda against the indivisible unity of the ORG ( section CARDINAL of PERSON no . PERSON – see paragraph CARDINAL above ) . In the majority of cases where offences had been committed by means of publications the reasons given for the prosecutor ’s decision included such considerations as the fact that the proceedings were time - barred , that some of the constituent elements of the offence could not be made out or that there was insufficient evidence . Other grounds included the fact that the publications in issue had not been distributed , that there had been no unlawful intent , that no offence had been committed or that those responsible could not be identified .

Furthermore , the ORG submitted a number of decisions of ORG as examples of cases in which defendants accused of the above - mentioned offences had been found not guilty . These were the following judgments : DATE ( no . CARDINAL ) and DATE ( no . CARDINAL ) ; DATE ( no . CARDINAL/CARDINAL ) , DATE ( no . CARDINAL ) , DATE ( no . PERSON ) , CARDINAL DATE ( no . CARDINAL/CARDINAL ) and DATE ( no . CARDINAL ) ; CARDINAL DATE ( no . GPE ) , DATE ( no . CARDINAL ) , DATE ( no . GPE ) , DATE ( no . CARDINAL/CARDINAL ) and DATE ( no . CARDINAL ) .

As regards more particularly proceedings against authors of works dealing with the NORP problem , ORG in these cases have reached their decisions on the basis of the absence of the element of “ propaganda ” , an element of the offence , or on account of the objective nature of the incriminated parts .

The constitutional provisions governing judicial organisation of ORG are worded as follows :

“ In the performance of their duties , judges shall be independent ; they shall give judgment , according to their personal conviction , in accordance with the LAW , statute and the law .

No organ , authority , ... or ... person may give orders or instructions to courts or judges in the exercise of their judicial powers , or send them circulars or make recommendations or suggestions to them . ”

“ Judges … shall not be removed from office or compelled to retire without their consent before the age prescribed by LAW … ”

“ ORG shall be established to try offences against the Republic , whose constituent qualities are enunciated in the LAW , against the territorial integrity of the ORG or the indivisible unity of the nation or against the free democratic system of government , and offences which directly affect the ORG ’s internal or external security .

ORG shall be composed of a president , CARDINAL other regular members , CARDINAL substitute members , a prosecutor and a sufficient number of assistant prosecutors .

The president , CARDINAL of the regular members , CARDINAL of the substitutes and the prosecutor , shall be appointed from among judges and public prosecutors of the first rank , according to procedures laid down in special legislation ; CARDINAL regular member and CARDINAL substitute shall be appointed from among military judges of the first rank and the assistant prosecutors from among public prosecutors and military judges .

Presidents , regular members and substitute members ... of ORG shall be appointed for a renewable period of DATE .

Appeal against decisions of ORG shall lie to ORG .

“ Military legal proceedings

The personal rights and obligations of military judges … shall be regulated by law in accordance with the principles of the independence of the courts , the safeguards enjoyed by the judiciary and the requirements of military service . Relations between military judges and the commanders under whom they serve in the performance of their non - judicial duties shall also be regulated by law ... ”

Based on LAW , the relevant provisions of LAW no . CARDINAL on ORG provide as follows :

“ In the capitals of the provinces of … ORG shall be established to try persons accused of offences against the Republic , whose constituent qualities are enunciated in the LAW , against the territorial integrity of the ORG or the indivisible unity of the nation or against the free , democratic system of government and offences directly affecting the ORG ’s internal or external security . ”

“ The ORG shall be composed of a president , CARDINAL other regular members and CARDINAL substitute members . ”

“ The president of a ORG , CARDINAL of the [ CARDINAL ] regular members and CARDINAL of the [ CARDINAL ] substitutes ... shall be civilian … judges , the other members , whether regular or substitute , military judges of the first rank … ”

“ The appointment of military judges to sit as regular members and substitutes shall be carried out according to the procedure laid down for that purpose in ORG .

Except as provided in the present PERSON or other legislation , the president and the regular or substitute members of ORG … may not be appointed to another post or place , without their consent , within DATE …

If , after an investigation concerning the president or a regular or substitute member of a ORG conducted according to the legislation concerning them , competent committees or authorities decide to change the duty station of the person concerned , the duty station of that judge or the duties themselves … may be changed in accordance with the procedure laid down in that legislation . ”

“ ORG shall have jurisdiction to try persons charged with

( a ) the offences contemplated in LAW ,

( d ) NORP offences having a connection with the events which made it necessary to declare a state of emergency , in regions where a state of emergency has been declared in accordance with LAW ,

( e ) NORP offences committed against the Republic , whose constituent qualities are enunciated in the LAW , against the indivisible unity of the State – meaning both the national territory and its people DATE or against the free , democratic system of government and offences directly affecting the ORG ’s internal or external security .

“ ORG shall hear appeals against the judgments of ORG . ”

“ The rules governing the rights and obligations of … military judges appointed to ORG and their supervision … , the institution of disciplinary proceedings against them , the imposition of disciplinary penalties on them and the investigation and prosecution of any offences they may commit in the performance of their duties ... shall be as laid down in the relevant provisions of the laws governing their profession …

The observations of ORG on military judges , the assessment reports on them drawn up by ORG assessors … and the files on any investigations conducted in respect of them … shall be transmitted to ORG . ”

“ A ORG may be transformed into a ORG , under the conditions set forth below , where a state of emergency has been declared in all or part of the territory in respect of which ORG concerned has jurisdiction , provided that within that territory there is CARDINAL ORG … ”

The relevant provisions of ORG provide as follows :

“ The aptitude of military judges … appointed as regular or substitute members of ORG that is required for promotion or advancement in salary step , rank or seniority shall be determined on the basis of assessment reports drawn up according to the procedure laid down below , subject to the provisions of the present PERSON and ORG ( Law no . CARDINAL ) .

( a ) The first superior competent to carry out assessment and draw up assessment reports for military judges , whether regular or substitute members … shall be the Minister of State in ORG , followed by PERSON .

“ Members … of ORG belonging to ORG … shall be appointed by a committee composed of the personnel director and the legal adviser of ORG , the personnel director and the legal adviser attached to the staff of the arm in which the person concerned is serving and ORG at ORG … ”

“ Military judges … shall be appointed by a decree issued jointly by the Minister of Defence and the Prime Minister and submitted to the President of the Republic for approval , in accordance with the provisions on the appointment and transfer of members of the armed forces …

The procedure for appointment as a military judge shall take into account the opinion of ORG , the reports by ORG assessors and the assessment reports drawn up by the superiors … ”

“ The rules governing the salary scales , salary increases and various personal rights of military judges … shall be as laid down in the provisions relating to officers . ”

“ The Minister of Defence may apply to military judges , after considering their defence submissions , the following disciplinary sanctions :

A. A warning , which consists in giving the person concerned notice in writing that he must exercise more care in the performance of his duties .

B. A reprimand , which consists in giving the person concerned notice in writing that a particular act or a particular attitude has been found to be blameworthy .

The said sanctions shall be final , mentioned in the assessment record of the person concerned and entered in his personal file … ”

“ When military judges … sit in court they shall wear the special dress of their civilian counterparts … ”

Article CARDINAL of the Military Code of CARDINAL DATE provides :

“ It shall be an offence , punishable by DATE imprisonment , to abuse one ’s authority as a civil servant in order to influence the military courts . ”

Under LAW , ORG of ORG has jurisdiction to hear applications for judicial review and claims for damages based on disputes relating to the personal status of officers , particularly those concerning their professional advancement .


Preliminary objection rejected (victim);Violation of Art. 8;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention and domestic proceedings

The applicant is a NORP national who was born in GPE in DATE and lives in GPE ( GPE ) .

NORP In DATE , at DATE , the applicant settled in NORP territory for work - related reasons . DATE , DATE of her divorce , she was married to a man resident in GPE . In DATE she gave birth to a son , PERSON , who has lived with her until DATE .

In DATE , having lost the NORP passport issued to her in DATE , the applicant obtained a new passport . In DATE she found the lost passport , but did not return it to the relevant authorities .

In DATE GPE regained full independence . In DATE GPE , the State of which the applicant had hitherto been a national , broke up . The applicant therefore became stateless . In DATE her name was entered in the register of residents ( ORG reģistrs ) as a permanent resident . Her son was subsequently granted the status of “ permanently resident non - citizen ” of GPE .

NORP In DATE a NORP bridgebuilding firm offered the applicant a job as a crane operator in ORG and ORG , regions of the GPE bordering on GPE and belonging to GPE . In view of the difficulties caused by tighter supervision in these regions by the NORP authorities on account of the troubles in GPE , the firm advised her to obtain NORP nationality and a formal registration of residence in GPE before signing the employment contract . In DATE the applicant consulted a broker who put a false stamp in her first NORP passport , the CARDINAL which had been found but not disclosed to the authorities , stating that the registration of her residence in GPE had been cancelled ( pieraksts , or dzīvesvietas reģistrācija in NORP ) .

NORP In DATE the applicant was registered as being resident in GPE in the Kursk region of GPE , at her brother ’s address . In DATE she obtained NORP nationality . In DATE and DATE she travelled to GPE , working there for CARDINAL periods of DATE respectively .

In DATE the applicant applied to ORG Nationality and Migration Directorate ( GPE ministrijas GPE un migrācijas lietu pārvalde – “ the ORG ” ) for a passport based on the status of “ permanently resident non - citizen ” . In accordance with the regulations in force , she submitted alongside the application the second NORP passport issued to her in DATE . On examining the file , the ORG discovered that she had registered a second residence in GPE and had completed certain formalities on the basis of the old passport which had been mislaid and found again . Accordingly , by decision of DATE , the ORG removed the applicant ’s name from the register of residents . On DATE the head of the ORG issued an order for the applicant ’s deportation ( izbraukšanas rīkojums ) , requesting her to leave GPE for GPE by DATE . The deportation order was accompanied by a prohibition on re - entering GPE for DATE . It was served on the applicant on DATE .

After appealing unsuccessfully against the deportation order to the head of the ORG , the applicant lodged an application with FAC seeking to have the order set aside . In her memorial she submitted that , as the false stamp in her passport had been put there without her knowledge and she had therefore been unaware of it , she should not have to bear the consequences . In addition , since the registration of her residence in GPE had been merely temporary , it could not affect her existing registration in GPE . She further argued that there were no legislative or regulatory provisions in force prohibiting her from having addresses in CARDINAL different countries . Accordingly , the applicant requested the court to set aside the order for her deportation and to instruct the ORG to issue her with a permanent residence permit .

In a judgment delivered on DATE following adversarial proceedings , the court rejected the request , finding that the deportation order had been lawful and well founded . As to the applicant ’s request that she be issued with a residence permit , the court declared that part of the application inadmissible on the ground that she had not applied for a permit to the relevant authorities , nor had she lodged an administrative appeal before applying to the courts , as required by LAW ( Entry and Residence ) Act ( “ LAW ” ) .

On DATE the NORP authorities cancelled the applicant ’s residence registration in GPE , at her request .

The applicant lodged an appeal with ORG against the judgment of DATE . In a judgment delivered on CARDINAL DATE following adversarial proceedings , ORG dismissed the appeal on the ground that , as the applicant had been illegally resident in GPE since her return from GPE , her deportation was in accordance with LAW . ORG also upheld ORG findings as to the inadmissibility of the request for a residence permit .

In a judgment of DATE the ORG of ORG dismissed an appeal by the applicant on points of law , finding that the interference complained of had been lawful and proportionate . In particular , the ORG observed that , in the instant case , the applicant ’s right to have CARDINAL addresses or places of residence in CARDINAL different countries had not been in dispute ; the order for her deportation had been based solely on the fact that she had been resident in GPE without a residence permit .

With the delivery of the ORG ’s judgment the order for the applicant ’s deportation became enforceable .

In CARDINAL letters sent on DATE and DATE , the applicant and her son requested the head of the ORG to rescind the deportation order and to issue the applicant with a permanent residence permit . In support of their request , they argued that they did not have family ties in any country other than GPE and that the expulsion of the applicant from NORP territory , where they had lived together for DATE , would constitute a serious infringement of their right to respect for their family life . They made explicit reference in that regard to LAW and to similar provisions of LAW .

NORP By letters dated DATE and DATE respectively , the head of the ORG refused this request and reminded the applicant that she was required to leave GPE immediately or be forcibly expelled .

After attempting without success to challenge this refusal by means of an administrative appeal to the Interior Minister , PERSON and her son lodged a fresh application with GPE to have the deportation order set aside . By order of DATE the court declared the application inadmissible . On CARDINAL DATE ORG upheld the order . An appeal on points of law by the applicant and her son was dismissed by an order of the ORG of ORG dated DATE .

On DATE the applicant was arrested by the immigration police ( GPE policija ) and placed in a detention centre for illegal immigrants . On DATE officials of the ORG served a forcible expulsion decision on her ( lēmums par piespiedu izraidīšanu no valsts ) .

On DATE the applicant was admitted to hospital with acute hypertension . Consequently , on DATE , the head of the ORG stayed execution of the forcible expulsion decision and requested the immigration police to formally order the applicant ’s release from the detention centre . The deportation order of CARDINAL DATE was also suspended at the same time .

As execution of the forcible expulsion decision had been stayed indefinitely , the applicant continued to reside illegally in GPE .

On DATE the head of the ORG wrote a letter to ORG in the following terms :

“ ... [ T]he ... Directorate ... has received your letter concerning the application lodged by PERSON with ORG ... and requesting [ us ] to consider the possibility of issuing her with a permanent residence permit ... under section CARDINAL(CARDINAL ) of LAW . The reason you cite for your request is the existence of a real risk that a violation of LAW might be found in this case . However , if PERSON were to be granted a sufficiently secure legal status in GPE , ORG would be justified in requesting ORG to dismiss the application .

I would like first of all to draw your attention to the fact that section CARDINAL(CARDINAL ) of LAW does not apply to the circumstances of the PERSON case . The ORG has therefore explored other possible solutions .

Regard being had ... to the relevant circumstances of the PERSON case , and in particular the fact that PERSON has lived and worked within NORP territory for DATE a fact which undoubtedly testifies to the existence of sufficiently strong private and social ties ... – the ORG is prepared , once it has obtained the necessary documentation from PERSON ... , to address an opinion to the Minister of the ORG proposing that she be issued with a temporary residence permit valid for DATE , in accordance with section CARDINAL ) of LAW ...

Under the terms of ORG [ of ORG ] Directive CARDINAL/CARDINAL/EC concerning the status of third - country nationals who are long - term residents , Member PERSON are required to grant long - term resident status to third - country nationals who have resided legally and continuously within their territory for DATE immediately prior to submission of the relevant application . Accordingly , on expiry of the period of validity of her temporary residence permit , PERSON would be entitled to apply for and obtain the status of permanent resident and to be issued with an ORG residence permit . Remedying PERSON situation in this way would be sufficient to put an end to any possible violation of her rights under LAW .

With this aim in mind , the ORG has already drawn up a letter inviting PERSON to submit to it the documents required in order to apply for a residence permit . This letter will be sent to her in DATE . It should be pointed out that , in accordance with section CARDINAL of Regulation no . CARDINAL ... on residence permits , [ the person concerned ] in such cases must submit a letter from a legal entity attesting to the necessity ... of his or her remaining in GPE . The ORG notes in that connection that PERSON will in all likelihood be unable to produce such a document . In any event , a positive ... outcome to the case can be achieved only if PERSON herself displays an interest in such a solution .

Should PERSON herself fail to take steps towards implementing the solution proposed by ORG , [ it should be borne in mind that ] ORG has already acknowledged that , where applicants knowingly decline to take the appropriate measures suggested by the authorities ... , they can not claim to be victims of a violation of their right to respect for their private and family life ... The reference to LAW ... , made in PERSON request , would therefore be without foundation . ”

By Decree no . CARDINAL of DATE , ORG instructed the Minister of the ORG to issue the applicant with a permanent residence permit “ once the documents required to make such an application have been received ” ( LAW ) .

NORP By letter of CARDINAL DATE the ORG explained to the applicant how she could regularise her stay by obtaining a permanent residence permit , and invited her to submit the documents required for that purpose under the relevant regulations . It is clear from the case file , however , that the applicant has to date not taken the steps indicated by the ORG .

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

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

( b ) “ permanently resident non - citizens ” ( nepilsoņi ) – that is , citizens of the former GPE who lost their NORP citizenship following the break - up of the GPE in DATE , but have not subsequently obtained any other nationality DATE who are governed by LAW ( see paragraph CARDINAL below ) ;

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

( d ) “ stateless persons ” ( bezvalstnieki ) in the narrow and specific sense of the term . Prior to DATE their status was governed by ORG , read in conjunction with LAW ( see paragraph CARDINAL below ) and , after DATE , with LAW ( see paragraph CARDINAL below ) . Since DATE their status has been governed by the new LAW , also read in conjunction with LAW ;

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

Section CARDINAL(CARDINAL ) of the LAW on the Status of Former GPE Citizens without NORP or other Citizenship ( ( NORP “ PERSON to bijušo ORG pilsoņu statusu , kuriem nav Latvijas vai citas valsts pilsonības ) reads as follows :

[ Version in force before DATE ] : “ This Act governs citizens of the former GPE resident in GPE ... , who were resident within NORP territory prior to DATE and whose place of residence is registered there , regardless of the status of their housing , and who are not citizens of GPE or any other ORG ; it also governs the minor children of such persons who are not citizens of GPE or any other ORG . ”

[ Version in force since DATE ] : “ The persons governed by this LAW ‘ non - ORG – shall be those citizens of the former GPE , and their children , who are resident in GPE ... and who satisfy all the following criteria :

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

( CARDINAL ) they do not have NORP citizenship ;

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

The relevant provisions of the Aliens and ORG ( NORP “ ORG ārvalstnieku un bezvalstnieku ieceļošanu un uzturēšanos GPE ) , in force prior to CARDINAL DATE , read as follows :

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

“ Aliens or stateless persons may be issued with ...

( CARDINAL ) a temporary residence permit ;

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

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

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

“ The person concerned may , within DATE of notification of the decision to refuse a residence permit , appeal against the decision to the head of the ORG , who shall examine the appeal within DATE .

The Minister of the ORG may , by decree , set aside an unlawful decision by the ORG or the head of the ORG ordering a residence permit to be issued or refused .

An appeal may be lodged with the courts against the above - mentioned decision or decree by

( CARDINAL ) ORG the person concerned if he or she is legally resident within the territory of GPE ;

( CARDINAL ) ORG the person resident in GPE who invited the alien ... whose application for a residence permit has been refused , where the invitation was in connection with family reunification . ... ”

“ No residence permit shall be issued to a person who

( CARDINAL ) was deported from GPE during DATE preceding the application ;

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

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

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

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

“ The individual concerned shall leave the territory of GPE within DATE after the deportation order has been served on him or her , provided that no appeal is lodged against the order in accordance with this section .

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

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

At the material time the practical arrangements concerning registration of residence were governed by Regulation no . CARDINAL of CARDINAL DATE on registration of residence for residents of GPE and cancellation thereof ( ORG pierakstīšanas un izrakstīšanas noteikumi Latvijas PERSON ) . Section CARDINAL required any existing registration of residence to be cancelled in order to obtain a new registration in GPE .

Since DATE LAW cited above is no longer in force ; it was repealed and replaced by LAW ( GPE likums ) of DATE . The relevant provisions of the new Act read as follows :

“ The present Act uses the following definitions :

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

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

“ In cases not covered by LAW , the permanent residence permit shall be granted by the Minister of the Interior , where it accords with the interests of the ORG . ”

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

“ CARDINAL . Within DATE of establishment of the facts detailed in the first and second subparagraphs of the present paragraph , the [ relevant ] official of the ORG shall take a forcible expulsion decision ... , where :

( CARDINAL ) the alien has not left GPE within DATE of receiving the deportation order ... , and has not appealed against the order to the head of the Directorate ... , or the head of the ORG has dismissed the appeal ;

NORP In the cases referred to in the first subparagraph of paragraph CARDINAL of this section , no appeal shall lie against the forcible expulsion decision ...

In the event of a change of circumstances , the head of the ORG may set aside a forcible expulsion decision . ”

Section CARDINAL(CARDINAL ) of LAW ( NORP procesa likums ) , in force since DATE , provides :

“ An administrative act may not be enforced if DATE have elapsed since it became enforceable . In calculating the limitation period , any period during which implementation of the administrative act was suspended shall be deducted . ”

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

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

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


The applicant is an NORP citizen , born in DATE . He is currently detained in ORG ( GPE ) with a view to his extradition to GPE . He is represented before the ORG by PERSON , a lawyer practising in PERSON - en - GPE .

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

On DATE the applicant was arrested at GPE airport under a warrant for his arrest , dated DATE , on charges of inter alia obtaining property by deception . The arrest warrant had been issued by ORG at the request of ORG .

On DATE the applicant was extradited to GPE and was remanded in custody in FAC , GPE .

The criminal charges brought against the applicant concerned events which occurred at DATE resulting in a loss of MONEY to ORG at GPE . The applicant , who was highly experienced in shipping , banking and international trade , was suspected of having purported , with the assistance of others , to be able to supply a large confinement of sugar to a NORP Company . There was no sugar , but the applicant by selecting a vessel about to sail from GPE to GPE with a cargo of sugar and , with reference to that vessel and its cargo , forged the documentation which ORG required to support the letter of credit before it would advance the money . Because the bank ’s payment was made before the due date , it was made before the absence of a sugar cargo could become apparent .

In DATE , a NORP national , PERSON , who according to the prosecution was the applicant 's agent , pleaded guilty to obtaining from ORG a bill of exchange by deception , and to procuring the execution of a valuable security by deception . He received a DATE prison sentence .

Soon after his arrival in GPE the applicant engaged and personally paid for the services of a large firm of primarily commercial law solicitors . He secured the payment of ORG CARDINAL,CARDINAL.CARDINAL into the solicitors’ client account between CARDINAL DATE and DATE . CARDINAL of this amount went on fees before DATE . A guarantor , PERSON , had also pledged the sum of GBP CARDINAL . PERSON subsequently agreed to increase the amount pledged to ORG and gave security for her guarantee in the form of a mortgage on a residence in GPE , GPE , where she lived together with the applicant . The applicant had provided the money for PERSON to purchase the property from her former husband . The value of the property was estimated to be GBP QUANTITY . It was not subject to a mortgage .

On DATE the applicant signed an application form for legal aid to cover the costs of his defence . The form submitted by the applicant contained no information as to income or assets . According to the applicant he could not realise any of his assets while in detention . Since the application form was incomplete the applicant ’s legal aid request could only be considered by ORG on DATE , DATE on which the trial was due to commence . The applicant ’s solicitor helped him to prepare a detailed Statement of Assets and Liabilities for submission to ORG .

Meanwhile , on DATE the applicant 's ORG ( “ FAC ) informed the trial judge , Judge PERSON , at a hearing in chambers in the presence of prosecution counsel , that a successful application for legal aid would necessarily be fraudulent . The applicant ’s counsel stated before the court :

“ I do not think in all conscience a legal aid application can be filled in with sufficient openness to satisfy the court . It certainly could not satisfy me and , if it were to be filled in and signed as a result of my enquiries , I would feel so squalidly unhappy as to be positively professionally embarrassed and have to say to the court that I would be disinclined to act on that legal aid basis . ”

The applicant ’s junior counsel agreed with this view .

Counsel for the prosecution observed at the hearing that the applicant needed to be formally asked about his intentions concerning his legal representation , because once his defence counsel had withdrawn , he would be entitled to have alternative counsel . Counsel for the prosecution further observed that it would be helpful if the court record mentioned the applicant ’s views about this since he would not like it to be said later that the applicant misunderstood the situation and felt that he was obliged to go on and defend himself and had therefore been put at a grave disadvantage when other possible options were open to him .

The Statement of Assets and ORG finally submitted to ORG disclosed that the applicant had the following assets :

- The applicant was the owner of a shoe factory in GPE which , according to him , was no longer profitable .

- The applicant had opened a bank account in GPE into which he had paid MONEY , the purpose of which was to invest in a shoe factory there . However , following his arrest in GPE , the money was not returned to him . He had instructed his lawyers in GPE to try to recover this money on his behalf .

- The applicant had an interest in CARDINAL football teams in GPE . He had received an offer for CARDINAL of the teams of CARDINAL . He was reimbursed MONEY ( ITL ) in DATE , after having made a deposit of ITL MONEY for a second football team , and he did not make any money from the third football team .

- The applicant owned a Mercedes Spider which , according to his estimation , was worth GBP CARDINAL .

- The applicant ’s ORG watch originally worth CARDINAL had been damaged and was therefore worthless . His PERSON watch was worth about GBP CARDINAL,CARDINAL . All of this jewellery was in GPE .

- A house in which the applicant lived in GPE , GPE , and which was worth MONEY was owned by PERSON , the woman with whom he lived and the above - mentioned guarantor . The applicant had personally paid MONEY for the house DATE .

- A large flat in the most expensive area of Genoa , where the applicant ’s ex - wife and daughter lived , was worth MONEY . It was owned by a company . His daughter was the holder of the shares and PERSON was the manager of the company . The applicant was unable to remove the bank charges on this property .

- The applicant had bought a country property worth MONEY . There was a mortgage on this property of CARDINAL of its value . The property was registered in the name of PERSON parents .

- In DATE the applicant made an investment in DATE of MONEY in a warehouse in GPE . Because he was detained it had not been possible to arrange for any reimbursements .

- The applicant ’s only income was the money he received from his activity as a consultant and amounted officially to MONEY per year ; unofficially it was CARDINAL as much .

- The total cost of university fees which he had to pay was MONEY CARDINAL per year . Maintenance to his ex - wife was about GBP DATE .

- Since his arrest the applicant had no income at all and large sums of arrears had built up . In the period from DATE to DATE , Ms. NORP and his business associates had paid a total of GBP CARDINAL to his NORP solicitor .

The Government drew attention to the fact that the Statement of Assets and Liabilities made no mention of the sum of GBP CARDINAL which remained in the applicant ’s solicitor ’s client account . Nor was any reference made to ORG guarantee to provide GBP CARDINAL towards the cost of the applicant ’s defence . The Government further stated that the Statement of Assets and Liabilities made mention of the applicant having in DATE ( date incorrectly stated by the Government , DATE ) MONEY in bank accounts outside GPE . The applicant replied that there is no evidence whatsoever of his having any such accounts at the time referred to by the Government .

The applicant claimed that by DATE what was left of his property was no longer at his disposal .

In a letter accompanying the submission to ORG , dated DATE , the applicant ’s solicitors stated , inter alia :

“ … We understand that if a defendant is assessed to have CARDINAL CARDINAL worth of capital that a court will order that he pay a contribution to any legal aid ; it would appear on the details that Mr Caresana supplied to us DATE that he has CARDINAL in capital in GPE .

We are unable to verify any of the valuations given by PERSON but would stress that PERSON does not share the optimistic view of PERSON as to the assets’ worth .

In the circumstances , it appears to us that if any legal aid certificate were granted by the court , due to the serious and complex nature of the case , it would involve a substantial contribution being ordered . From our own experience of the case , we are of the opinion that whilst PERSON remains in custody at FAC he would not be able to satisfy any such condition .

It is regrettable that in the circumstances my firm is not prepared to represent Mr ORG without private funding . Counsel can not represent Mr Caresana unless their fees are met . It would appear that he is unlikely to obtain a legal aid certificate and therefore in the circumstances the only way forward would appear to be for PERSON ORG to represent himself .

… Mr Caresana knows the case very well . He is an intelligent individual and whilst he has no knowledge of LANGUAGE legal procedure , he has an in - depth knowledge of the facts of the case . Given all assistance by the court , he should be able to conduct his own Defence . ”

At the hearing on the legal aid application before Judge PERSON in chambers on CARDINAL DATE , the applicant ’s solicitor described the difficulties which the applicant was experiencing in procuring funding for his defence either through the sale of his own assets or other means . The solicitor informed Judge PERSON that an unsuccessful attempt had been made to sell PERSON ’s flat in GPE , GPE . As to the possible sale of CARDINAL of the applicant ’s football clubs , the solicitor observed that the applicant was concerned as to whether the offer he received of GBP CARDINAL was genuine and that in any event the club was saddled with debts in excess of that sum . Judge PERSON referred the applicant ’s solicitor to LAW of ORG DATE according to which representation shall not be granted to a person for any purpose unless it appears that his financial resources are such that he requires assistance in meeting the costs of the defence . Judge PERSON asked the solicitor :

“ ... would you contend that [ the applicant ’s ] financial resources are such that he requires assistance in meeting the costs of his defence ; or would you recognise that really is straining to the limit the words of the regulation ? ”

The applicant ’s solicitor replied :

“ I would say we would be straining the regulation . I have no doubt about that ... ”

In deciding to reject the applicant ’s request for legal aid , Judge PERSON pointed out that he was very reluctant to embark upon a trial involving an unrepresented defendant and was “ positively straining to find a way to grant [ the applicant ] legal aid ” . However , in his opinion the applicant ’s Statement of Assets and Liabilities showed that he had substantial assets upon which he could call if necessary . In the judge ’s opinion , the applicant ’s solicitor was unable to provide any satisfactory answers about the applicant ’s assets and even the solicitor seemed to acknowledge that it was unlikely that legal aid would be granted .

Immediately before the trial opened Judge PERSON , in the absence of the jury , informed the applicant that if he needed his assistance in any way he should ask for it and that if he wanted to raise any points in the absence of the jury this facility could be granted to him .

DATE and DATE the applicant stood trial at ORG . The applicant represented himself . During the trial CARDINAL documents were submitted to the court and CARDINAL witnesses heard . The transcript of the summing up , which was spread over DATE , runs to CARDINAL pages .

On DATE the jury found the applicant guilty of all the charges , namely theft , obtaining property by deception , procuring execution of a valuable security by deception and using a false instrument with intent . The judge sentenced him to a total of DATE imprisonment .

The applicant appealed against his conviction and sentence to ORG .

In a letter dated DATE , the applicant ’s new solicitors , ORG , asked for legal aid in connection with the appeal .

By letter dated DATE a case lawyer in ORG forwarded a Statement of Means for completion by the applicant .

On DATE ORG was returned , signed and filled in by the applicant together with a handwritten memorandum which he had dictated to his solicitor . The applicant declared in ORG that he had no savings or articles of value . In the accompanying memorandum it was stated that PERSON had no assets apart from her home and that the applicant ’s Mercedes car could not be sold because the ownership documents were held by the NORP authorities .

In taking its decision on legal aid , ORG relied only on the documentation submitted by ORG The latter confirmed that they did not have sight of the applicant ’s earlier Statement of Assets and ORG ; nor did they provide ORG with the transcript of the hearing in ORG on DATE before Judge PERSON . The Government are unable to confirm whether the transcript and the applicant ’s Statement of Assets and ORG came into the possession of ORG before or after the decision to grant the applicant legal aid . The applicant maintains that ORG was fully aware that that he had been refused legal aid for the purposes of his trial . He observes that the officials in ORG had full access to his case file including his Statement of Assets and Liabilities .

On DATE , and on the sole basis of the applicant ’s new Statement of Means and the accompanying handwritten declaration , ORG granted the applicant legal aid for a conference with counsel and for the perfection of his grounds of appeal . Legal aid was later granted for the preparation and presentation of an application for leave to appeal and for the full hearing of the appeal once leave had been granted .

The applicant produced extensive grounds of appeal ( CARDINAL hand - written pages ) . With the assistance of his defence counsel the applicant 's grounds of appeal were amended and reduced to CARDINAL grounds of appeal . The applicant alleged in particular that he was put at an unfair disadvantage in conducting his defence because his mother tongue was NORP . He also complained that he had no legal representation at his trial and that the trial judge refused to adjourn the trial to enable the key defence witness NORP to give evidence . In the applicant ’s submission , this witness , a NORP lawyer who speaks NORP , would have been able to prove that CARDINAL witnesses had not told the truth at his trial .

The hearing before ORG took place on CARDINAL and DATE . The applicant was represented by counsel . On DATE ORG allowed his appeal against his conviction on the charge of theft but upheld the other convictions and the sentences imposed .

ORG found that there was no substance whatsoever in the applicant 's allegation that he was put at an unfair disadvantage because the trial was conducted in LANGUAGE . In particular , the cross - examination of a witness showed the applicant to be not only astute but also at ease in the language which he was using to formulate the questions . Furthermore , he had the services of an interpreter whom he chose not to use . The applicant ’s arguments had been set out in detail and developed at considerable length in oral submissions before ORG . The jury had been told more than once to make every allowance for the applicant ’s lack of legal representation as well as for the fact that LANGUAGE was not his native language .

As to the absence of legal representation and the refusal of legal aid , ORG observed , inter alia :

“ … prosecution counsel and the trial judge took elaborate steps to assist the [ applicant ] to present his case . He was given advanced warning of when witnesses were to be called and procedural matters were carefully explained to him , such as the effect of formal admissions of fact , the effect of evidence being read , the need to put his case in cross - examination , and so forth . DATE the court sat at TIME to deal with any problem which the applicant might be experiencing before the trial continued . In addition the applicant was allowed time as and when he required it . …

Originally the [ applicant ] had legal representation for which he paid . As the trial was about to start it became clear to the representatives that no more payment would be forthcoming . It is quite clear from the transcripts we have seen that if the [ applicant ’s ] legal representatives had been satisfied that the [ applicant ] could not pay they would have supported an application for ORG , but they were not so satisfied and that is what they told the judge . The [ applicant ] had in fact signed an application form for ORG on DATE , but it contained no information as to income or assets , and boldly asserted that the Appellant could not realise any assets because he was in custody in GPE . On DATE his solicitor assisted him to prepare a statement of assets and liabilities , and that document we have seen . Having seen it we can understand why the [ applicant ’s ] lawyers felt unable to support an application for ORG . In those circumstances it seems to us that the trial judge had really no alternative but to proceed as he did . In general , ORG can not be granted to anybody unless it appears to the body entitled to grant it that the financial resources of the applicant are such to make him eligible for it ( see section CARDINAL ( CARDINAL ) of LAW DATE ) . As was pointed out during the course of argument , were it otherwise a defendant of ample means facing serious charges could abuse the system with impunity . He could simply decline to pay for representation and fail to provide adequate information as to his resources confident in the knowledge that in order to facilitate the trial process ORG would be granted to him … . ”

As regards the witness NORP whom the applicant wanted to call , ORG pointed out that DATE proposed , namely DATE , was not the only date on which this witness could have given evidence . Subsequent enquiries revealed that in reality NORP was simply not prepared to attend . The suggestion that the court was not prepared to wait for him was unfounded . According to ORG , the evidence called on behalf of the applicant did not finish until DATE , and the court in fact adjourned for DATE in order to enable the applicant ’s final defence witness to attend .

On DATE the applicant was transferred from FAC to GPE in accordance with ORG . He served his sentence first in GPE , then in GPE . He was released from prison on CARDINAL DATE .

On DATE the applicant was arrested in GPE ( GPE ) and remanded in custody in PERSON with a view to his extradition to GPE following his final conviction and sentence in bankruptcy proceedings in GPE .


Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . ORG ( “ the Government ” ) are represented by their Agent , PERSON , former Representative of GPE at ORG .

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

On DATE ORG upheld the applicant ’s action against ORG and awarded him a lump sum of MONEY ( RUB ) in compensation for health damage and RUB MONEY in DATE payments starting from DATE . ORG also noted that DATE payments were to be adjusted to increases of the minimum statutory wage . The judgment was upheld on appeal and became final on DATE .

The lump sum was paid in DATE and DATE after the judgment became final . The DATE payments were made on time . However , the adjustment the authorities made was wrong and the applicant brought a civil action for damages .

On DATE ORG , in the final instance , dismissed the applicant ’s claims .

On DATE ORG of GPE granted the applicant ’s request for reopening of the proceedings due to newly discovered circumstances .

On DATE ORG upheld the applicant ’s action against ORG , made an adjustment of the DATE payments the applicant asked for and awarded him a lump sum of RUB CARDINAL,CARDINAL.CARDINAL representing arrears in DATE payments of compensation for damage for the period from DATE to CARDINAL DATE and RUB CARDINAL,CARDINAL.CARDINAL in DATE payments from DATE . ORG noted that DATE payments were to be adjusted to increases of the coefficient of the minimum subsistence level in GPE . The judgment was not appealed against and became final .

The lump sum was paid DATE and DATE after the judgment became final . The DATE payments were paid on time . The judgment was not enforced as regarded the adjustment and the applicant sued the authorities .

On DATE ORG found for the applicant and awarded him RUB CARDINAL,CARDINAL.CARDINAL representing arrears in DATE payments for the period from DATE to CARDINAL DATE and RUB CARDINAL in DATE payments to be increased accordingly . The judgment was not appealed against and became final on DATE .

The lump sum was paid DATE and DATE after the judgment became final . The DATE payments were paid on time , but the authorities again failed to adjust the DATE payments and the applicant brought another action against them .

On DATE ORG awarded the applicant RUB CARDINAL,CARDINAL.CARDINAL representing arrears in DATE payments for the period from DATE to DATE and RUB CARDINAL,CARDINAL.CARDINAL in DATE payments to be increased according to the requirements of law . The judgment was not appealed against and became final on DATE . The lump sum was paid DATE and DATE after the judgment became final . The DATE payments were paid on time .