No violation of Article 6 - Right to a fair trial

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Sverre Erik Jebens;Takis Eliades

The applicant was born in DATE and lives in GPE . He is currently employed on a temporary basis at ORG .

On DATE and CARDINAL DATE he made CARDINAL applications for appointment in different sections of the civil service . On DATE and DATE both of his applications were refused by ORG on the ground that he had not performed his military service or been legally exempted from it .

On DATE the applicant lodged a judicial review application before ORG challenging the relevant decisions of ORG . He contended , inter alia , that he had refused to perform his military service with ORG as he was a homosexual and that for the determination of his sexual orientation he would have been subjected to degrading treatment contrary to LAW .

In its interim decision of CARDINAL DATE the court rejected an application for amendment of the applicant ’s pleadings . It noted that whether or not the applicant was entitled to be exempted from military service was not a contested issue in the pending proceedings and , as such , could not be examined . The issue under dispute in the proceedings before the court was the lawfulness of the decision by ORG dismissing the applicant ’s application for lack of fulfilment of the requirement of completion of military service .

On DATE ORG rejected the judicial review application and made an order for costs against the applicant . It justified the rejection by referring to the reasons set out in its previous interim decision and , in particular , that the applicant did not meet one of the basic requirements for appointment to ORG .

On DATE , the applicant lodged an appeal before ORG against its first - instance judgment . The grounds of appeal had been drafted by the applicant ’s representative . On DATE the applicant filed his skeleton argument which had also been prepared by his representative . The appeal was set for a hearing on DATE .

NORP Until that stage of the proceedings , the applicant was being represented by a lawyer of his choice , but due to his inability to settle outstanding legal fees he had to stop receiving legal assistance from his lawyer .

On DATE he filed an application for legal aid claiming that the proceedings concerned the protection of his human rights and thus fell within the scope of proceedings for which the grant of legal aid was envisaged by LAW ( I ) of DATE .

On DATE , his application for legal aid was rejected by ORG , acting in a panel of CARDINAL judges , which referred to the relevant provisions of LAW and explained that legal aid could only be provided in criminal proceedings , civil proceedings that concern determination of a litigant ’s human rights and proceedings lodged before the family courts . The proceedings introduced by the applicant , who sought judicial review under LAW of a decision refusing to appoint him in the civil service , did not constitute civil proceedings and , as such , his legal aid application had to be refused .

On DATE ORG dismissed the applicant ’s appeal . The court referred to the arguments developed by the applicant ’s lawyer in the proceedings . It found that the issue of unconstitutionality had not been raised by the applicant ’s lawyer in accordance with the requirements set out in the relevant procedural provisions and case - law given that it had only been set out in a vague and imprecise manner in the application seeking judicial review . The court further took into account the points raised by the applicant ’s lawyer in his written address to the ORG . It found that the vague suggestions made concerning unconstitutionality had no legal foundation and were irrelevant to the subject - matter of the judicial review application . No other ground for annulment of the relevant decision had been raised or shown .

Article CARDINAL of the LAW of GPE provides as follows :

“ CARDINAL . ORG shall have exclusive jurisdiction to adjudicate finally on a recourse made to it on a complaint that a decision , an act or omission of any organ , authority or person , exercising any executive or administrative authority is contrary to any of the provisions of this LAW or of any law or is made in excess or in abuse of powers vested in such organ or authority or person .

Such a recourse may be made by a person whose any existing legitimate interest , which he has either as a person or by virtue of being a member of a ORG , is adversely and directly affected by such decision or act or omission .

Such a recourse shall be made within DATE of the date when the decision or act was published or , if not published and in the case of an omission , when it came to the knowledge of the person making the recourse .

Upon such a recourse the ORG may , by its decision-

( a ) confirm , either in whole or in part , such decision or act or omission ; or

( b ) declare , either in whole or in part , such decision or act to be null and void and of no effect whatsoever , or

( c ) declare that such omission , either in whole or in part , ought not to have been made and that whatever has been omitted should have been performed .

Any decision given under paragraph CARDINAL of this Article shall be binding on all courts and all organs or authorities in the Republic and shall be given effect to and acted upon by the organ or authority or person concerned .

Any person aggrieved by any decision or act declared to be void under paragraph CARDINAL of this LAW or by any omission declared there under that it ought not to have been made shall be entitled , if his claim is not met to his satisfaction by the organ , authority or person concerned , to institute legal proceedings in a court for the recovery of damages or for being granted other remedy and to recover just and equitable damages to be assessed by the court or to be granted such other just and equitable remedy as such court is empowered to grant . ”

Law CARDINAL ( I ) of DATE on ORG provides , in so far as relevant , as follows :

“ CARDINAL . Legal aid shall be granted free of charge in the proceedings provided for in DATE , CARDINAL and CARDINAL below , to the extent and under the conditions laid down therein .

CARDINAL ( CARDINAL ) This section applies-

( a ) In criminal proceedings before a court , against any person , for an offence that he may have committed in violation of any legislative provision , for which an imprisonment sentence exceeding DATE is provided for and includes preliminary interrogation and every other stage of interrogation or other procedure taking place before the commencement of subsequent criminal proceedings that relate to it ;

( b ) Except for the criminal proceedings provided for in paragraph ( b ) of subsection ( CARDINAL ) of LAW below , in any other proceedings before a court exercising its criminal jurisdiction .

( CARDINAL ) For the purposes of the application of this section , the term “ court ” means ORG , ORG , ORG and includes ORG , when examining any issue raised in criminal proceedings , in exercising its first- or second - instance jurisdiction .

( CARDINAL ) In the proceedings provided for in subsection ( CARDINAL ) above , legal aid will be granted free of charge , and will include advice , assistance and representation .

( CARDINAL ) For the purposes of the application of this section , the term “ proceedings for determined violations of human rights ” means any :

( a ) Civil proceedings before a court , at any stage , lodged against the Republic for damages sustained by a person due to determined violations of human rights ; or

( b ) Criminal proceedings lodged by any person where the offence in examination concerns determined violations of human rights .

( CARDINAL ) Legal aid will be granted , free of charge , to proceedings concerning determined violations of human rights .

( CARDINAL ) Legal aid granted by virtue of this section :

( a ) In the case of civil proceedings lodged in the LOC or criminal proceedings , will include advice , assistance and representation ; and

( b ) In civil proceedings lodged outside the Republic , will include only advice .

( CARDINAL ) ORG may , by an order published in ORG , amend the Table .

( CARDINAL ) For the purposes of this section , the term “ proceedings before a family court ” means :

( a ) Proceedings raised in respect of family relations on the basis of provision of bilateral or multilateral treaties to which the Republic has acceded ; or

( b ) Proceedings concerning parental care , alimony , recognition of a child , adoption , proprietary relations of spouses and any other marital or family dispute .

( CARDINAL ) Free legal aid is provided for in proceedings before a family court , and includes advice , assistance and representation . ”


QUARK FISHING LTD. v. THE UNITED KINGDOM

The applicant , a GPE registered company ( PERCENT owned by island residents and PERCENT owned by NORP interests ) , was represented by PERSON PERSON , a solicitor practising in GPE .

GPE and LOC ( “ LOC ) were acquired by the Crown by settlement . There were no indigenous peoples . DATE until DATE it was a British Dependent Territory and a Dependency of GPE . After DATE , PERSON ceased to be a dependency of GPE and became a British Overseas Territory as defined in GPE CARDINAL . GPE is responsible for its international relations . The government of the LAW comprises officials from GPE who are posted to and operate from GPE . There is no democratic mechanism . No one lives on the LAW apart from a transient group of scientists working for ORG .

The applicant owns a fishing vessel – MV Jacqueline – which operated under a GPE flag and was specially equipped with long lines to fish the NORP toothfish , found in the waters of the LOC . Fishing in LOC waters is regulated pursuant to ORG ( “ CCAMLR ” ) to which GPE is a party . DATE total allowable catches are set by ORG to particular designated blocks of ocean . The coastal ORG countries enforce those limits . In the case of the LAW , the relevant coastal ORG is GPE . From DATE it operated a licensing system which limited the amount of fish caught by each licensed vessel .

The PERSON was granted a licence for DATE . In DATE the applicant sought a licence as usual but was refused by the SGSSI authorities . It was unaware of the reasons .

The applicant applied for judicial review of the refusal before ORG of GPE . Evidence was submitted indicating that ORG ( ORG ) had intervened in order to reduce the number of GPE flagged vessels receiving licences in favour of vessels from other coastal GPE to avoid adverse diplomatic repercussions in a sensitive area and had indicated that licences should be given to GPE vessels with the best conservation - compliance record , which in their view excluded the applicant . But for this intervention , the DATE ORG would have given a licence to the applicant . By an order of DATE , the Chief Justice declared that the DATE decision , taken on advice from the ORG and not pursuant to an instruction within the meaning of the SGSSI Order DATE ( SI CARDINAL , which forms the constitution of the territory ) , was not properly based on relevant matters to be taken into account and accordingly was unlawful . He ordered that the application be remitted for fresh consideration .

On DATE the Secretary of ORG for ORG in GPE formally instructed the NORP Commissioner to instruct the SGSSI Director of Fisheries to allocate licences to any GPE flagged vessel , other than to CARDINAL vessels named in the instruction ( which did not include the applicant ’s ) .

The applicant challenged the lawfulness of the instruction in ORG in GPE .

On DATE the High Court judge found , noting the flawed basis on which the ORG had taken the view that the applicant had not complied with conservation measures , that the criteria on which the licences were granted had not been made clear or transparent and there had been manifest unfairness in the way in which the ORG had issued its instructions to exclude the applicant . The instruction was accordingly unlawful and quashed .

On DATE ORG upheld the lower court ’s decision , making adverse comment on the way the authorities had acted . The applicant had sought damages for the losses from DATE and this claim , stayed during the earlier proceedings , was revived , relying on LAW No . CARDINAL .

On DATE Mr Justice PERSON struck out the claim for damages , accepting the argument of the Secretary of ORG that Protocol No . CARDINAL had not been extended to the LAW .

On DATE ORG rejected the applicant ’s appeal finding that the applicant was unable to bring a claim for damages based on LAW No . CARDINAL because the latter provision had not been extended to the LAW by GPE . It held that the issue of control over territory DATE which had founded the extraterritorial reach of ORG in other circumstances – was not relevant to a case such as that before it , where a declaration had to be made for the provision in question to apply .

On DATE ORG dismissed the applicant ’s appeal , also finding that LAW No . CARDINAL did not apply to the LAW .


Violation of Article 2 - Right to life (Substantive aspect);Violation of Article 2 - Right to life (Procedural aspect);No violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 5 - Right to liberty and security;Violation of Article 13 - Right to an effective remedy

Anatoly Kovler;Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

The applicants are :

CARDINAL ) PERSON , who was born in DATE ;

CARDINAL ) Mr PERSON , who was born in DATE .

On DATE the federal armed forces carried out a large - scale “ sweeping ” operation ( “ zachistka ” ) in the village of ORG in GPE . According to the Government , interior troops of ORG participated in the operation .

The applicants submitted numerous NGO and press reports on these events as well as statements by other villagers about the general circumstances of the sweeping operation and the detention of their relatives .

According to the applicants , a similar operation took place in the nearby village of ORG on DATE , where CARDINAL persons were detained .

The first applicant is the mother of PERSON , who was born in DATE . The second applicant is the first applicant 's daughter and PERSON sister . They live at DATE FAC in GPE . According to the applicants , at the material time PERSON was planning to enrol in a law faculty in GPE .

According to the first applicant , at TIME on DATE an armoured personnel carrier ( “ ORG ” ) pulled up in front of their house . The first applicant noted that the ORG identification number was GPE . Several armed men in camouflage uniforms rushed into the courtyard , where the applicant 's son PERSON and his cousin PERSON , who lived in the same house , had been waiting for them with their passports in hand . The first applicant submitted that the documents were in order . Nevertheless , the soldiers had collected the passports without looking at them , pulled the PERSON cousins ' shirts over their heads and forced them into the ORG . In reply to the first applicant 's question about the reasons for their arrest , the servicemen stated that they had orders to detain every man aged DATE .

NORP The soldiers then searched the house and , according to the first applicant , took some money and household items .

PERSON later recalled that the ORG into which they were put had stopped in a neighbouring street and they had been ordered to get out and to climb into a military truck . He had noticed a serviceman with CARDINAL or CARDINAL passports in his hand nearby . There were several people inside the truck , both detainees and servicemen . CARDINAL of the servicemen had ordered PERSON to climb into the far corner of the truck and to cover himself with a piece of canvas attached to the side . Apti had obeyed .

The detainees had then been taken to a passport checkpoint situated in a field near the village , where the basement of an unfinished building stood . PERSON and other detainees had been ordered out of the truck . Apti was ordered to stay in the vehicle but got out and sat on the ground with the rest of them . He was frightened and PERSON had tried to calm him down , even though the detainees were not allowed to talk . TIME a man in camouflage uniform had arrived , had looked through a passport he had been holding and had ordered PERSON to climb back into the truck .

The first applicant referred to the statements of other witnesses she had managed to collect which stated that PERSON had then been brought to the ORG no . ChCARDINAL and had spent some time inside . Several witnesses among those detained DATE stated that they had seen Apti in the ORG in TIME DATE , TIME after his apprehension . CARDINAL of those witnesses was PERSON . who had been taken to the passport checkpoint at TIME and had seen PERSON inside the ORG .

The third applicant is the mother of PERSON , who was born in DATE . The fourth applicant is PERSON wife and the fifth applicant their son . PERSON and his family used to live in Grozny , but after the resumption of hostilities moved to ORG to his mother 's home because he thought they would be safer there .

The third and fourth applicants did not witness PERSON detention but referred to eye - witness statements submitted by them to the ORG . According to those statements , at TIME on DATE PERSON was detained in GPE in PERSON . The applicants submitted several statements of villagers who had witnessed LOC 's detention in the street . Several witnesses , including PERSON . ( see above ) , stated that they had seen PERSON in ORG no . ChCARDINAL in TIME DATE .

The first , third and fourth applicants , along with other relatives of those detained during the “ sweeping ” operation , walked to the edge of the field where the men had been detained and remained there until TIME . The guards did not allow them to approach any nearer .

According to the applicants , at TIME an officer with the rank of major came out and reassured them that all the detainees would be released TIME . He also told them that he shared their indignation and that he had already talked to his superiors about the events . TIME he came out once again and repeated his comments .

At TIME the women saw some of the detainees being put into CARDINAL buses . When the buses drove off , the women tried to block them , but the soldiers started to shoot at the ground in front of the crowd and dispersed them .

The men from ORG remained detained at the passport checkpoint in the field until TIME of DATE . At QUANTITY the military started to release them in small groups , and by TIME there was no one left in the field . TIME men were not released , however , and their relatives were eventually told that they had been taken to ORG ( “ ORG ” ) . PERSON and PERSON were not released that night , and the applicants have had no news of them since .

Early in the morning on DATE the fourth applicant went to the military camp in an attempt to obtain information about her husband from the major who had talked to them TIME , but the military were already leaving and she was unable to speak to anyone .

Later in the morning on DATE the first , third and fourth applicants , along with other relatives who had not seen their detained family members since DATE , went to ORG . There they were shown a list of CARDINAL names of persons from ORG , including PERSON and PERSON , who had been brought to ORG . According to the applicants , during DATE detainees were gradually released from ORG , but they told the applicants that they had not seen their relatives inside . In TIME of DATE the head of the ORG village administration joined the applicants at ORG . In reply to their enquiries the officials there denied that the CARDINAL men had ever been brought there , contrary to what they had said in TIME .

On DATE the applicants went to the village of ORG , in which a similar “ sweeping ” operation was being carried out . They saw the ORG with the identification number GPE there and the same truck in which their CARDINAL relatives had been taken away from ORG DATE , a LOC with identification no . O CARDINAL CARDINAL KSh .

On DATE the applicants also talked to PERSON . , who had attended the same school as PERSON and knew him quite well . He stated that on DATE he had seen PERSON and PERSON in a military LOC truck in ORG . PERSON . said that he had heard someone asking for water from inside the truck saying that “ we have not had any water since DATE ” and when CARDINAL of the military lifted the canvas to give him some water , the witness had seen CARDINAL men , CARDINAL of whom he had immediately recognised as PERSON . Both men had traces of beatings on their faces , and LOC 's hand was hurt , probably broken . PERSON . 's written statement was submitted to the ORG .

DATE the applicants waited near the passport checkpoint in the field near GPE until TIME hoping that their relatives would be released together with the detainees from that village , but in vain .

They and their other relatives continued to search for the CARDINAL missing men . On numerous occasions , both in person and in writing , they applied to prosecutors at various levels , to ORG , to the administrative authorities in GPE , to the Special Envoy of the NORP President for Rights and Freedoms in GPE , to the media and to public figures . In their letters to the authorities the applicants gave details of the detention of PERSON and PERSON and asked for assistance and information about the investigation , but were given hardly anything of substance . On several occasions they and other relatives received copies of letters forwarding their requests to various prosecution services .

On DATE and DATE the applicants and their relatives applied in person to ORG of ORG and submitted a written complaint . They also applied in person to ORG . They asked for assistance in searching for the CARDINAL missing men , but the officials denied that they had ever been detained by the district authorities .

On DATE ORG of ORG forwarded the applicants ' complaints to ORG . The latter replied to the first applicant in a letter of DATE that PERSON had not been detained by the PERSON and that the local office of the ORG had no information about his whereabouts .

On DATE the third applicant wrote to the head of the administration of LOC and asked for assistance in finding PERSON and PERSON . She referred to witness statements and submitted the known details of the CARDINAL men 's apprehension , including the identification numbers of the military vehicles and call - signs of the military involved .

On DATE PERSON , who , as noted above , was PERSON cousin and a witness to his detention , wrote to the head of ORG of the ORG and on DATE to ORG of GPE . He described in detail the events of DATE and requested that his cousin be found .

On DATE the Prosecutor 's Office of ORG informed the third applicant that her son had not been detained by personnel of the district department of the ORG and had not been brought to ORG .

On DATE the second and fourth applicants wrote to ORG of GPE to complain that they had not been granted victim status in the criminal proceedings concerning the disappearance of their brother and husband respectively . On DATE fourth applicant requested ORG of GPE to institute criminal proceedings in respect of her husband 's abduction .

The applicants reiterated their requests for assistance in searching for their relatives and information on the progress of the investigation to ORG on DATE and DATE , ORG of GPE on DATE , CARDINAL and DATE and the Minister of Defence on DATE .

On DATE ORG of ORG instituted criminal proceedings in connection with numerous complaints of the residents of ORG of abuse of authority by federal servicemen during a special operation of DATE . The case file was assigned number CARDINAL .

On DATE ORG of GPE informed the third applicant of the decision of DATE , stating that the disappearance of PERSON and PERSON was being investigated in the context of those proceedings . On DATE ORG of GPE informed the applicants that the proceedings in criminal case no . DATE were pending and that they would be informed of the outcome .

On DATE ORG replied to the applicants that their complaint had been forwarded to ORG of the ORG and that the search for their relatives would remain under the control of ORG .

On DATE ORG informed the applicants that a number of steps aiming at locating their relatives ' whereabouts had been taken . In particular , ORG had opened “ search files ” ( розыскные дела ) and the CARDINAL men had been included in the federal search database as well as in the system of identification of unidentified bodies . However , those efforts had not brought any results thus far . The letter assured the applicants that they would be informed of any results of the search .

On DATE the third applicant requested ORG of GPE to update her on the results of the investigation .

NORP In similar letters dated DATE the latter replied to each of the applicants that on DATE ORG of ORG had opened criminal investigation no . DATE in connection with the allegations of abuse of authority , unlawful use of violence and detention , theft and destruction of property during the special operation in ORG on DATE and that the investigation was being conducted by ORG of GPE . It had established that at TIME and TIME respectively on DATE , PERSON and PERSON had been detained and that their whereabouts had remained unknown since . APC no . GPE belonged to military unit no . DATE , which had participated in the operation . During questioning , the ORG crew had stated that they had taken a number of people to the location of ORG detachments which had been carrying out identity checks on the detainees . The investigating authorities had also questioned a number of servicemen from ORG who had stated that pursuant to an order of Lieutenant - Colonel PERSON , the deputy commander of the operation , they had put CARDINAL “ NORP ” into a separate vehicle . On DATE , also upon the deputy commander 's orders , the CARDINAL men had been taken to the military base in GPE ( the main NORP military base in GPE ) where they had been handed over to servicemen from ORG . However , given that no record concerning their apprehension or detention had been drawn up , it had been impossible to establish their identities . The letters did not specify whether Lieutenant - Colonel PERSON had been questioned as a witness . It was further stated that the investigating authorities had been unable either to identify those responsible or to establish the whereabouts of PERSON and PERSON . The search had also involved verification of unidentified bodies in GPE and the neighbouring regions . The relatives of those missing had been granted victim status in the criminal proceedings . The letters concluded that on DATE the investigation had been suspended owing to the failure to identify the alleged perpetrators .

According to the applicants , DATE and DATE CARDINAL investigators of ORG of GPE had been appointed in turn to deal with the case . The missing men 's personal details , such as their height , shoe size and photographs , had only been collected from the applicants in DATE . The applicants also submitted that the investigators had complained to them that they had had no answers or assistance from the military authorities of the GPE base in establishing the whereabouts of PERSON and PERSON .

On DATE ORG of GPE , in reply to a query from the first applicant , confirmed that her son was being searched for by the law - enforcement bodies and that the investigation in criminal case no . DATE had been suspended on DATE , as it had been impossible to identify those responsible .

On DATE similar information was sent to PERSON father .

In a letter of CARDINAL DATE ORG of GPE informed the fourth applicant that the criminal proceedings in case no . DATE had been resumed on DATE .

In a letter of DATE the PERSON , on behalf of the first and third applicants , requested ORG of GPE to inform them of the developments in the investigation and to grant them victim status in the proceedings . On DATE the ORG sent a copy of its previous letter to ORG of GPE , as it had not received any reply . On DATE the applicants forwarded a similar letter to ORG .

On DATE the investigation was suspended on account of the failure to identify the culprits .

On DATE ORG of GPE replied to the PERSON 's request lodged on the applicants ' behalf that criminal case no . DATE had been forwarded to ORG of ORG for examination .

According to the Government , “ having obtained reliable information that PERSON and PERSON had disappeared during the special operation ” , on DATE ORG of GPE decided that a case in respect of the disappearance of the applicants ' CARDINAL relatives under LAW ) of LAW ( aggravated kidnapping ) should be opened and severed from criminal case no . DATE . It appears that the new case was first assigned number DATE which was then changed to number DATE . It was sent for investigation to the military prosecutor 's office of military unit no . CARDINAL in GPE in order to check the possible involvement of military personnel in the alleged offence .

In his decision of DATE to open criminal case no . DATE , the deputy prosecutor of GPE , “ having examined the information on a criminal offence committed on DATE during the special operation of the federal forces in ORG , which had been submitted by an investigator of ORG of GPE on DATE ” , established that :

“ On DATE , during a special operation in the village of ORG of LOC of GPE , PERSON and GPE PERSON were detained and taken away in ORG no . ChCARDINAL by detachments of the federal forces . However , they were not delivered to the passport checkpoint situated on the outskirts of ORG . Their whereabouts remain unknown to date . The investigation has established that the ORG belonged to [ a detachment ] of ORG which , during the operation , was under the command of the commander of military unit no . DATE , Major [ M. ] . The crew of ORG no . PERSON was under the command of Senior Lieutenant [ PERSON ] . ”

The decision then made orders for a criminal case to be opened under LAW and criminal proceedings to be brought against PERSON and PERSON on suspicion of the abduction of the applicants ' CARDINAL relatives .

In a letter of DATE , ORG of GPE informed the first and third applicants “ in reply to their numerous queries ” that on DATE criminal proceedings no . DATE had been instituted under LAW ) in connection with the abduction of their sons on DATE by participants of the special operation carried out by the federal forces in ORG . The letter stated that the applicants would be notified of any results of the investigation .

On DATE the Prosecutor 's Office of GPE transferred the criminal case to ORG of ORG ( ORG , GPE группировка войск ) . The decision , submitted by the Government , read as follows :

“ On DATE , during a special operation in the village of ORG of LOC of GPE conducted by federal forces , Ministry of the Interior troops detained [ PERSON , who was born in DATE , and [ GPE ] PERSON , who was born in DATE , whose whereabouts have yet to be established .

On DATE a special operation was conducted in the village of ORG in LOC of GPE in accordance with the LAW commander 's directive no . CARDINAL/CARDINAL of DATE and ORG order no . CARDINAL/CARDINAL of DATE . The ORG deputy commander in respect of special operations , Colonel [ B. ] , was the head of the operation . Detachments from ORG , ORG , ORG and ORG [ ВОГО и П МВД DATE временная объединенная группировка органов и подразделений ORG ] took part in its conduct .

Units CARDINAL DON , CARDINAL ORB [ ORG – отдельный разведывательный батальон ] , CARDINAL ORG [ ORG – отдельная бригада оперативного назначения ] , special task units nos . CARDINAL and CARDINAL under the command of Colonel [ V. ] took part in the operation on behalf of ORG troops .

A passport checkpoint was established on the outskirts of ORG in order to check the passports of those detained . This work was carried out by CARDINAL officials of ORG of ORG under the command of Major [ Vas . ] , who arrived in [ CARDINAL special vehicles for transporting the detainees ] and a bus , and by CARDINAL members of operations staff of ORG under the command of Major [ Mos . ] .

Pursuant to an order by Colonel [ B. ] , CARDINAL joint search groups were formed of servicemen from special task units nos . CARDINAL and CARDINAL , CARDINAL ORG , military unit no . DATE , CARDINAL ORG ... and policemen under the command of officers from ORG troops .

Cover for the groups was provided by armoured ORG units whose identifications numbers were concealed by mud on the orders of the operation commanders .

In TIME of DATE , , CARDINAL of the search groups under the command of the head of intelligence of CARDINAL ORG Lieutenant - Colonel [ M. ] detained [ R.S. ] ORG and [ PERSON at DATE FAC . They were both taken out of the house by subordinates of [ M. ] and put in APC-CARDINAL ( identification no . ChCARDINAL ) , which was under the command of a head of platoon from military unit no . DATE Senior Lieutenant [ PERSON ] .

In the course of the preliminary investigation it has been established that in TIME of DATE [ PERSON was held in ORG ( identification no . ChCARDINAL ) under the command of Senior Lieutenant [ PERSON ] and subsequently in a NORP military vehicle . In TIME [ A.A. ] PERSON returned to [ the ] ORG , where he was held together with [ GPE ] PERSON .

During the conduct of the special operation in ORG on DATE CARDINAL of the search groups detained ... [ GPE ] PERSON , who resided at CARDINAL NORP Street , Sernovodsk . During TIME DATE he was also held in ORG [ with the identification no . ] ChCARDINAL .

After their detention by ORG troops on DATE PERSON and GPE PERSON were not brought to the passport checkpoint or transferred to the police . Nor are they listed in the register of residents of ORG who were detained at the passport checkpoint .

PERSON , who was questioned as a witness , stated that some time after he and PERSON had been apprehended by the servicemen and placed in the ORG they were transferred to a LOC vehicle in which other residents of the village had already been placed . That vehicle had taken them to the passport checkpoint where everybody except for his cousin had got out . PERSON had then been taken to an unknown destination . During the night DATE PERSON had been allowed to go home and his passport had been returned to him .

On the basis of the records of questioning of officials from ORG of ORG it has been established that during the operation CARDINAL residents of ORG ethnic origin were held in [ the special vehicle used for transporting detainees ] without proper documents authorising their detention . The investigation has established that those persons were [ PERSON . ] , [ PERSON . ] and [ PERSON . ] , who on DATE were brought to the village of ORG and then transferred to ORG .

On DATE witnesses [ R.Kh . ] and [ V.Kh . ] , who resided [ in ] the village of ORG , saw PERSON in a military vehicle ZIL-CARDINAL in which they were also placed by ORG troops and taken to the passport checkpoint on the outskirts of ORG for an [ identity ] control .

[ V.Kh . ] identified Senior Lieutenant [ K. ] as the head of the group that had detained them on DATE and ordered them to be put in the military vehicle ZIL-CARDINAL where an acquaintance , PERSON from ORG , was already held . There was also another man in the vehicle , whom the witnesses had not been able to see clearly . Both men 's arms were tied .

However , neither PERSON nor GPE are mentioned in the records pertaining to the period from DATE in the register kept at the passport checkpoint in the village of ORG . Therefore , it is established that CARDINAL and DATE PERSON and GPE were neither held in [ the special vehicles used for transporting detainees ] by ORG of ORG nor brought to the [ premises of the ] Temporary United Alignment of Agencies and Units of ORG .

On DATE CARDINAL persons of NORP ethnic origin were brought to ORG in GPE . However , they were residents of the village of GPE ... and were released later at the request of [ the head of the village administration ] .

On DATE materials concerning the kidnapping of PERSON and GPE GPE on DATE by participants of the special operation were separated from criminal case no . DATE , and criminal case no . DATE was opened ...

In the course of the preliminary investigation it has been established that servicemen from military units nos . DATE under the command of Lieutenant Colonel [ M. ] and Senior Lieutenant [ PERSON ] were involved in the abduction of PERSON and GPE GPE . This has been confirmed by the records of questioning of witnesses [ NORP ] , [ PERSON ] and [ Gar . ] and by reports of identification by [ M. ] , [ PERSON ] , [ Gar . ] and [ NORP ] and by witnesses and victims .

PERSON , who was questioned as a witness , submitted that ORG troops had , in breach of orders of the head of the operation Colonel [ B. ] , independently carried out searches and apprehended persons on DATE in ORG . [ PERSON ] had informed Colonel [ V.]of this , but he had ignored the information .

Witness [ PERSON ] submitted that during DATE of DATE he had received by radio transmitter numerous orders[from M. ] to take his APC-CARDINAL [ with identification no . ] ChCARDINAL to specified addresses in ORG and to accept persons apprehended by intelligence units of ORG troops . [ Those arrested were ] subsequently to be delivered to the passport checkpoint and transferred to offices used by troops from the Alignment [ of GPE and Units ] of ORG without any documents [ authorising their detention ] . He also submitted that he had witnessed a quarrel between [ M. ] and a local resident which had taken place in TIME DATE relating to the order requiring the identification numbers of the armoured vehicles to be covered in mud . [ M. ] had ordered [ PERSON ] to cover the identification number ChCARDINAL of the ORG in mud as well .

Therefore , it is established that ORG troops were involved in the abduction of PERSON and GPE GPE . Furthermore , the investigation has refuted false statements by the heads of the special operation , Colonels [ B. ] and [ ORG ] [ who stated that ] the servicemen had not been involved in detentions during the special operation .

The lack of control by Colonel [ ORG ] and Colonel [ B. ] over the conduct of the operation and their failure to perform their duties properly led to the commission of this premeditated crime by servicemen . In breach of the established order concerning the conduct of the special operation , ORG troops independently carried out checks of private households and detained and searched people and took them to the passport checkpoint .

Furthermore , Colonels [ ORG ] and [ B. ] concealed from the ORG command the abduction of PERSON and GPE GPE by ORG troops under the command of Lieutenant - Colonel [ M. ] and Senior Lieutenant [ K. ] , who had participated in the special operation of DATE .

Since the preliminary investigation of this type of offence ... is carried out by the military prosecutor 's office ... criminal case no . DATE ... [ shall be ] transferred to ORG ... ”

On DATE the UGA Military Prosecutor 's Office said in reply to an enquiry from the fourth applicant that the case was being investigated by the military prosecutor 's office of military unit no . DATE .

On DATE the military prosecutor 's office of military unit no . CARDINAL extended the term of the preliminary investigation until DATE . The decision described the investigative acts that had been performed , which included : the questioning of CARDINAL residents of ORG ; the questioning of the first , third and fourth applicants and granting them victim status ; the questioning of servicemen PERSON , PERSON , ORG . , NORP “ and others ” who had taken part in the operation . It was further stated that additional steps were required to complete the investigation .

On DATE the military prosecutor 's office of military unit no . CARDINAL informed the SRJI that they were in the process of investigating criminal case no . DATE , which had been instituted under LAW by ORG of GPE on DATE . It stated that it had received the case file in DATE and victim status in the proceedings had been granted to the first , third and fourth applicants . In that connection , the military prosecutor 's office noted that copies of the decision granting victim status could only be served on the victims . In conclusion it was stated that the relatives of the missing men would be notified of the results of the investigation .

On DATE the military prosecutor 's office informed the applicants that the preliminary investigation had been suspended on DATE , in accordance with LAW of LAW and that they could challenge that decision before a superior prosecutor or in court .

On DATE the military prosecutor 's office resumed the proceedings and notified the fourth applicant accordingly .

On DATE it again suspended the investigation , on this occasion on account of the death of suspect PERSON and the fact that suspect PERSON had been transferred to a different region .

On DATE ORG of Grozny declared PERSON a missing person as from DATE .

On DATE ORG resumed the investigation .

On DATE it suspended the investigation . The first and third applicants were notified accordingly . The decision read as follows :

“ On DATE ORG of GPE instituted criminal proceedings under LAW against [ M. ] , [ PERSON ] and other persons .

On DATE , during a special operation in the village of ORG of LOC of GPE , PERSON and GPE PERSON were detained and taken away in ORG no . ChCARDINAL . Their whereabouts have not been established .

On DATE the Chief Military Prosecutor 's Office transferred the criminal case to ORG with instructions to take additional investigative and other steps . On DATE the investigation was resumed .

In the course of the investigation it was established that ORG no . ChCARDINAL belonged to ORG troops [ detachment ] CARDINAL ORG , which during the special operation had been under the command of [ K. ] , who was subordinate to [ M. ] .

On DATE [ K. ] was transferred ... to military unit no . CARDINAL in GPE .

However , according to the extract from order no . CARDINAL dated DATE of the commander of military unit no . DATE , [ PERSON ] was no longer on the list of staff of the military unit as he had [ retired ] .

On DATE [ M. ] died in [ a ORG hospital ] .

In view of the fact that all investigative measures possible in the absence of the suspects have been taken ... the preliminary investigation ... should be suspended until there is a real possibility of [ K. ] participating in it or until his recovery . ”

On DATE the military prosecutor 's office of military unit no . CARDINAL resumed the criminal proceedings .

By a decision of CARDINAL DATE it discontinued the criminal proceedings in case no . DATE . The first and the third applicants were informed accordingly . The decision stated that on DATE , during a special operation conducted by detachments of the federal armed forces and ORG in the village of ORG , a group of servicemen under the command of Major PERSON from military unit no . DATE had detained PERSON and PERSON and put them in ORG no . ChCARDINAL under the command of Senior PERSON from the same military unit . The CARDINAL detainees had then been delivered to the passport checkpoint and transferred to officers of ORG of ORG . On DATE PERSON and PERSON had been taken away from the passport checkpoint by unidentified persons in to an unknown destination and their location had remained unestablished since .

NORP The decision went on to say that in the above connection on DATE the Prosecutor 's Office of GPE had instituted criminal proceedings against PERSON , PERSON and others on suspicion of their involvement in a criminal offence under LAW ) ( aggravated kidnapping ) of LAW . According to the decision , a number of witnesses had been questioned during the investigation . In particular , suspect PERSON had stated that during the special operation of CARDINAL DATE in ORG he had been entrusted with the task of delivering those detained in the course of that operation to a passport checkpoint on the outskirts of ORG and that he had not taken them anywhere else . He had also stated that he had had no information concerning the fate of the applicants ' CARDINAL relatives . Witness PERSON and the driver of APC no . ChCARDINAL had given similar oral evidence . The latter had also stated that there were no detainees left in the vehicle after the termination of the operation .

According to the decision , the investigating authorities had also questioned Colonel PERSON , who was one of the senior officers in charge of the operation . He had stated that detachments from ORG , Ministry of the ORG troops , special police units from the city of GPE and LOC , a ORG mobile detachment in GPE , officers of ORG and personnel from ORG had taken part in the operation . Those detained during the operation had been delivered to a passport checkpoint on the outskirts of ORG . The identity check had been carried out by ORG personnel . Colonel PERSON had also referred to reports by his officers that during the operation unidentified persons , who were probably representatives of law - enforcement agencies , had disembarked from helicopters which had landed in the village . Some of these agents had been wearing masks , whilst the servicemen under his command had not worn masks DATE .

The decision further referred to the statements of CARDINAL residents of ORG , including PERSON cousin PERSON ( who had been detained on DATE ) , all of whom had stated that they had seen the applicants ' CARDINAL relatives delivered to the passport checkpoint on the outskirts of ORG . The first applicant and PERSON , who were questioned during the investigation , had stated that they had seen the names of PERSON and PERSON on the list of detainees at FAC on DATE . The decision also stated that on DATE Major PERSON had died and on DATE Senior PERSON had been discharged from service .

It then concluded that Major PERSON , Senior Lieutenant PERSON and servicemen of the federal armed forces who had participated in the special operation in ORG on DATE had not been involved in the abduction of PERSON and PERSON and that therefore the criminal proceedings against them should be discontinued “ in the absence of evidence of an offence ” .

DATE . On DATE the Prosecutor 's Office of GPE resumed the criminal proceedings before suspending them on DATE on account of the failure to identify the culprits .

On DATE ORG of GPE resumed the criminal proceedings . The third and the fourth applicants were informed accordingly .

NORP Despite specific requests by ORG on several occasions , the ORG refused to submit a copy of the entire investigation file opened into the disappearance of PERSON and PERSON on the ground that they were prohibited from doing so by LAW . After the application had been declared admissible they submitted an update on the progress of the investigation and materials from the case file running to CARDINAL pages . The materials contained information on the conduct of the special operation in ORG , the investigative measures taken and the interim findings of the investigation .

Until DATE criminal - law matters were governed by LAW RSFSR . On DATE the old Code was replaced by LAW ( the new ORG ) .

Article CARDINAL of the new ORG provides for the judicial review of decisions by investigators and prosecutors that might infringe the constitutional rights of participants in proceedings or prevent access to a court .

Article CARDINAL of the new ORG stipulates that evidence from the preliminary investigation may not be disclosed . Part CARDINAL of the same LAW provides that information from the investigation file may be divulged with the permission of a prosecutor or investigator , but only in so far as it does not infringe the rights and lawful interests of the participants in the criminal proceedings and does not prejudice the investigation . It is prohibited to divulge information about the private life of participants in criminal proceedings without their permission .

Article CARDINAL ( CARDINAL ) § CARDINAL lays down that the preliminary investigation must be suspended if the whereabouts of a suspect are known , but it is impossible to ensure his participation in criminal proceedings .


Alvina Gyulumyan;András Sajó;András Baka;Corneliu Bîrsan;Egbert Myjer;Françoise Tulkens;Giorgio Malinverni;Giovanni Bonello;Jean-Paul Costa;Josep Casadevall;Khanlar Hajiyev;Lech Garlicki;Mark Villiger;Mindia Ugrekhelidze;Nicolas Bratza;Nona Tsotsoria;Peer Lorenzen;Vladimiro Zagrebelsky

The applicant was born in DATE and lives in GPE .

In the parliamentary elections of DATE , as a member of ORG ( ORG ) , he was elected member of parliament ( MP ) for the GPE constituency to ORG of GPE ( “ the ORG ” ) .

Prior to his election he practised as a lawyer in GPE and , in the course of his professional activities , CARDINAL sets of criminal proceedings were brought against him , CARDINAL for insulting a lawyer and the other for insulting a public official .

Once elected as an MP he enjoyed parliamentary immunity .

On DATE the NORP public prosecutor applied to ORG to have the applicant ’s parliamentary immunity lifted for the purposes of the criminal proceedings against him for insulting a lawyer .

On DATE ORG transmitted the request to ORG .

On an unspecified date examination of the matter of the lifting of the applicant ’s parliamentary immunity in the proceedings concerning the insulting of a lawyer was referred to ORG joint committee ( “ the joint committee ” ) under LAW seq . of LAW . The joint committee decided to stay the proceedings until the dissolution of the CARDINALnd ORG .

The applicant challenged that decision . His file was then sent before ORG of ORG ( “ the plenary Assembly ” ) .

On DATE ORG ( “ the ORG ” ) adopted a decision suspending the criminal proceedings against the applicant for insulting a public official , by virtue of LAW .

On DATE ORG transmitted the case file to ORG with a view to having the applicant ’s parliamentary immunity lifted .

On DATE ORG of ORG referred the matter to the Prime Minister .

The Prime Minister ’s Office transmitted the case file to the joint committee .

On DATE , after noting that the applicant had requested the lifting of his immunity , the joint committee decided , in view of the nature of the charges , to stay the proceedings against him for insulting a public official until the end of his term of parliamentary office . It transmitted its decision to ORG .

When ORG met on DATE the joint committee ’s report was read and appended to the TIME of the meeting .

On DATE the applicant challenged the joint committee ’s decision . In his pleadings he made the point that parliamentary immunity had not been introduced to render MPs unaccountable or immune from punishment , but to allow them to discharge their duties in all freedom and independence and without fear . Unlike non - liability , he argued , inviolability was by nature a relative and temporary privilege . However , the scope of the inviolability , the procedure for lifting it and the shortcomings in its implementation had undermined due respect for ORG . The applicant added that it was unacceptable in a society governed by the rule of law that an arrangement originally intended to help MPs to discharge their duties should be transformed into a personal privilege .

On DATE the ORG of the Speaker ’s Office informed the applicant that the CARDINAL files concerning the lifting of his immunity had been placed on the agenda of ORG .

At the meeting of ORG on DATE the applicant once again asked to be allowed to avail himself of his right to be judged in a fair trial and requested that the obstacles to his exercise of that right be removed .

The applicant was re - elected as a FAC party MP for the GPE constituency in the parliamentary elections of CARDINAL DATE .

On DATE the Speaker of ORG sent him a letter informing him of progress with the procedures for lifting his parliamentary immunity .

The relevant passages read as follows :

“ ... during DATE ORG [ DATE ] CARDINAL files concerning immunity were forwarded to the joint committee . In CARDINAL cases the committee decided to stay the proceedings until the next dissolution . In CARDINAL cases that decision was challenged . The files corresponding to those cases were placed on the plenary ORG ’s agenda for examination . However , ORG did not examine them .

During the CARDINALnd ORG CARDINAL files concerned your immunity . The first , file no . CARDINAL , concerned the proceedings brought against you by the GPE - Ereğli public prosecutor for insulting a lawyer ; the second , file no . CARDINAL , concerned the proceedings before ORG for insulting a public official . In both cases the joint committee decided to stay the proceedings until the end of your term of office . Following your appeal , the files were placed on the plenary ORG ’s agenda but have not been examined .

In DATE ORG [ which started in DATE ] CARDINAL files concerning the lifting of immunity remain pending before the joint committee . CARDINAL of those files are in your name ; they were given the numbers CARDINAL and CARDINAL following your re - election on DATE . Since the beginning of this ORG all the files , including yours , have been sent before CARDINAL preparatory committees set up by the joint committee . These committees started work on DATE ... They are to announce their decisions within DATE . ”

On DATE and DATE the applicant filed CARDINAL defence memorials against the suspension of the CARDINAL sets of criminal proceedings against him . In them he repeated his wish to be allowed to exercise his right to a fair trial .

The reports of the joint committee recommending a stay of the criminal proceedings against the applicant until the end of his term as an MP were placed on ORG agenda of DATE , together with the applicant ’s objections to those findings .

The matter is still pending before the ORG .

Article CARDINAL of LAW , on the subject of parliamentary immunity , reads as follows :

“ Members of ORG shall not be liable for their votes and statements in the course of the ORG ’s work , for the views they express before the ORG or , unless the ORG decides otherwise on the proposal of the ORG for that sitting , for repeating or revealing these outside the ORG .

A member who is alleged to have committed an offence before or after election shall not be arrested , questioned , detained or tried unless the ORG decides otherwise . This provision shall not apply in cases where a member is caught in the act of committing a crime punishable by a heavy penalty and in cases subject to LAW if an investigation has been initiated before the election . However , in such situations the competent authority shall notify ORG immediately and directly .

The execution of a criminal sentence imposed on a member of ORG either before or after his election shall be suspended until he ceases to be a member ; the statute of limitations does not apply during the term of office .

Investigation and prosecution of a re - elected deputy shall be subject to whether or not the ORG lifts immunity in the case of the individual involved .

Political party groups in ORG shall not hold discussions or take decisions regarding parliamentary immunity . ”

Article CARDINAL of the LAW reads as follows :

“ If the parliamentary immunity of a deputy has been waived ... , the deputy in question or another deputy may , within DATE from DATE of the decision of ORG of GPE , appeal to ORG for the decision to be annulled on the grounds that it is contrary to LAW , law or the rules or procedure of ORG . The Constitutional Court shall decide on the appeal within DATE . ”

The Rules of Procedure of ORG of GPE provide , inter alia :

“ Immunity

Requests to lift immunity and the committee competent to examine them

Rule CARDINAL : requests for the lifting of a member ’s parliamentary immunity shall be transmitted by the Speaker ’s Office to the joint committee , composed of members of the constitutional and judicial committees . ...

The preparatory committee and its hearings

Rule CARDINAL : the Chair of the joint committee shall appoint a preparatory committee composed of CARDINAL sworn members to examine files concerning immunity . ...

This committee shall examine all the documents and , if necessary , hear the member concerned ; it shall not hear witnesses .

The preparatory committee shall submit its report within DATE of being convened .

The joint committee shall finalise the report within DATE .

The report of the joint committee

Rule CARDINAL : the joint committee shall examine the report and its appendices [ submitted by ] the preparatory committee .

The joint committee shall decide whether to lift the member ’s immunity or to stay the proceedings until the end of the term of parliamentary or ministerial office .

If the joint committee ’s report recommends lifting immunity or if an objection is received within the conditions set out in paragraph CARDINAL , the report shall be examined by ORG .

If the proceedings have been stayed and that decision is not overturned by ORG , no action may be taken against the member concerned until DATE or her term of parliamentary office , even if the legislature has been renewed .

The rights of the defence

Rule CARDINAL : When a request to lift a member ’s immunity has been received , the member concerned may , if he wishes , defend himself or be defended by another member before the preparatory committee , the joint committee and ORG .

The matter shall be decided on the evidence if a member who has asked to speak in his defence fails to answer the invitation to do so .

In any event , the defence shall have a say .

The mere fact that a member requests permission to waive his or her immunity shall not suffice . ”

On DATE ORG adopted a series of judgments in cases concerning the lifting of several MPs’ parliamentary immunity . Those cases gave ORG an opportunity to clarify the scope of parliamentary immunity . The relevant passages of the judgments read as follows :

“ ( a ) Meaning of non - liability and parliamentary immunity

All democratic countries have granted the members of their legislative assemblies certain privileges and immunities in order to allow them to perform their legislative tasks properly . Quite evidently , the aim of granting the members of legislative assemblies a different status from that enjoyed by other citizens is not to make them a privileged group who are above the law .

Parliamentary immunity is not an aim ; it is a means of enabling MPs to fulfil the nation ’s wishes in full by perfectly reflecting the wishes of the people within the ORG .

Even though LAW is entitled ‘ Parliamentary Immunity’ , it actually establishes CARDINAL institutions : parliamentary non - liability and parliamentary immunity . The first paragraph of the Article explains that the members of ORG of GPE are not liable for their votes and statements in the course of the ORG ’s work , for the views they express before the ORG or , unless the ORG decides otherwise on the proposal of the Speaker , for repeating or revealing these outside the ORG .

The second paragraph of the Article stipulates that a member who is alleged to have committed an offence before or after election may not be arrested , questioned , detained or tried unless the ORG decides otherwise . The only cases where this provision does not apply are those where a member is caught in the act of committing a crime punishable by a heavy penalty , provided that proceedings were initiated before the election , and cases subject to LAW .

LAW does not specify on what grounds immunity may be lifted , and LAW do not cover the subject . That does not mean that the legislature has a free hand in the matter . The rationale for immunity and the way in which it has developed over DATE show that ORG ’s powers concerning the lifting of immunity are not absolute but limited . Furthermore , the fact that immunity has a place in the LAW means that the rules and aims of immunity must be defined in the light of the rules and aims of LAW . There is no doubt that the intention , when immunity was provided for in LAW , was to allow those responsible for legislative duties to carry them out in the knowledge that they were safely sheltered , and rightly so , from all worry and pressure . In other words , the aim of parliamentary immunity is to ensure that MPs are not prevented , even temporarily , from fulfilling their functions by arbitrary criminal proceedings . So the powers of the legislature in the matter are limited by the purpose for which immunity was institutionalised in LAW .

Provision has been made for decisions of ORG of GPE concerning the lifting of immunity to be scrutinised by ORG with regard to their conformity not only with the LAW but also with LAW ...

When such decisions of ORG of GPE are scrutinised , attention must be paid to the seriousness of the accusation and whether or not it is politically motivated . In addition , the decision must be in conformity with the rationale behind immunity as a constitutional institution .

In criminal proceedings an MP whose parliamentary immunity has been lifted is like any other citizen . He enjoys all the guarantees set out in the LAW and laws of GPE . All the principles that apply to citizens likewise apply to him . He may , for example , be taken into police custody , questioned , detained and , to all intents and purposes , subjected like any other citizen to all the applicable procedural rules . ... ”

Under LAW enshrined in LAW no . CARDINAL of DATE :

“ If the opening of proceedings is subject to authorisation , adoption of a decision or the resolution of a problem pending before another body ... , the running of time for the purposes of limitation shall be suspended until such authorisation is obtained , such decision adopted or such problem resolved . ”

Law no . DATE on LAW was passed on DATE and published in ORG on DATE . LAW provides :

“ ( CARDINAL ) When the investigation or prosecution depend on authorisation , adoption of a decision or the necessary resolution of a problem pending before another body , the running of time for the purposes of limitation shall be suspended until such authorisation [ is granted ] , such decision adopted or such problem resolved ...

( CARDINAL ) Where an offence has been committed , the running of time shall be suspended from the time when :

( a ) the prosecutor questions or takes a statement from the suspect or the accused ;

( b ) a decision is taken to remand the suspect or the accused in custody ;

( c ) an indictment for the offence is issued ;

( d ) a conviction is pronounced , even if it concerns only some of the accused parties .

( CARDINAL ) A suspension of limitation causes time to begin to run again . Where there is CARDINAL ground for suspension of limitation , time begins to run again from the date of the last event triggering suspension ... ”

Under LAW of the old LAW enshrined in PERSON no . CARDINAL of DATE , when the criminal proceedings , and therefore the trial , are subject to a condition precedent and it is established that the condition has not been met , a decision to stay the trial is adopted until the condition has been met .

On DATE a new Code of Criminal Procedure was introduced .

On DATE the Secretariat of ORG took stock of the number of cases where parliamentary immunity had been lifted since DATE . It found that ORG had lifted the parliamentary immunity of CARDINAL MPs in the course of DATE Parliaments .

According to the lists and information provided by the parties , during the CARDINALnd Parliament CARDINAL files concerning the lifting of immunity were pending before parliamentary bodies , but no decisions to lift immunity were taken . Since DATE ORG , CARDINAL files concerning the lifting of immunity have apparently been pending before ORG .

DATE ( CARDINAL DATE ) provides :

“ a. ORG , representatives of members and the ORG shall enjoy in the territories of its members such privileges and immunities as are reasonably necessary for the fulfilment of their functions . These immunities shall include immunity for all representatives to the Consultative [ Parliamentary ] ORG from arrest and all legal proceedings in the territories of all members , in respect of words spoken and votes cast in the debates of the ORG or its committees or commissions . ”

The General Agreement on Privileges and Immunities of the Council of Europe ( DATE ) includes the following provisions :

“ Representatives to the Consultative [ Parliamentary ] ORG and their substitutes shall be immune from all official questioning and from arrest and all legal proceedings in respect of words spoken or votes cast by them in the exercise of their functions . ”

“ During the sessions of the Consultative [ Parliamentary ] ORG , the representatives to the ORG and their substitutes , whether they be members of parliament or not , shall enjoy :

a. on their national territory , the immunities accorded in those countries to members of parliament ;

b. on the territory of all other member GPE , exemption from arrest and prosecution .

This immunity also applies when they are travelling to and from the place of meeting of the Consultative [ Parliamentary ] Assembly . It does not , however , apply when representatives and their substitutes are found committing , attempting to commit , or just having committed an offence , nor in cases where the ORG has waived the immunity . ”

The LAW to LAW ( DATE ) provides :

“ The provisions of LAW shall apply to representatives to the [ Parliamentary ] ORG , and their substitutes , at any time when they are attending or travelling to and from meetings of committees and sub - committees of the Consultative [ Parliamentary ] ORG , whether or not the ORG is itself in session at such time . ”

“ Privileges , immunities and facilities are accorded to the representatives of members not for the personal benefit of the individuals concerned , but in order to safeguard the independent exercise of their functions in connection with ORG . Consequently , a member has not only the right but the duty to waive the immunity of its representative in any case where , in the opinion of the member , the immunity would impede the course of justice and it can be waived without prejudice to the purpose for which the immunity is accorded . ”

In its Resolution CARDINAL ( DATE ) on LAW CARDINAL.a of LAW , ORG of ORG stated :

“ CARDINAL . ORG refers to its LAW ( DATE ) and LAW ( DATE ) on immunities of members of ORG , which underlined that immunities are granted in order to preserve the integrity of the ORG and to safeguard the independence of its members in exercising their NORP office .

It resolves to interpret LAW as follows : regardless of the national regime of immunity , ORG representatives or substitutes shall be protected against prosecution and arrest in the exercise of their functions as ORG members or when travelling on ORG business , whether this is inside or outside of their national territory . If they are not active within this meaning or not travelling on ORG business , the national regime shall apply within their country .

The ORG also considers that it is appropriate for the relevant ORG organs , when examining requests for the waiver of immunity and for the defence of immunity of its members , to question whether the competent national authorities have respected LAW as interpreted by ORG and other relevant ORG legal instruments and texts which the respective countries have ratified or accepted . The ORG should express its concern when ORG norms have been obviously disregarded in respect of CARDINAL of its members .

Consequently the ORG decides to :

add the following paragraph after paragraph CARDINAL in Rule CARDINAL of ORG :

‘ a. When dealing with requests for the waiver of ORG immunity , or with requests to defend that immunity of an ORG member , the competent ORG bodies shall interpret LAW as follows . ORG representatives or substitutes are immune from prosecution and arrest in the exercise of their functions as ORG members or when travelling on ORG business , whether this is inside or outside of their national territory . If they are not active within this meaning or not travelling on ORG business , the national regime shall apply within their country .

b. The terms ‘ in the exercise of their ORG include all official duties discharged by ORG representatives and substitutes in the member GPE on the basis of a decision by a competent ORG body and with the consent of the appropriate national authorities .

c. In case of doubt , ORG shall decide if ORG activities took place in the exercise of their functions.’ ”

Article CARDINAL of the LAW on Privileges and Immunities of ORG ( DATE ) provides :

“ During the sessions of the ORG , its members shall enjoy :

( a ) in the territory of their own ORG , the immunities accorded to members of their ORG ;

( b ) in the territory of any other member ORG , immunity from any measure of detention and from legal proceedings .

Immunity shall likewise apply to members while they are travelling to and from the place of meeting of the ORG .

Immunity can not be claimed when a member is found in the act of committing an offence and shall not prevent the ORG from exercising its right to waive the immunity of CARDINAL of its members . ”

Rule CARDINAL of the Rules of Procedure of ORG , concerning the waiver of parliamentary immunity , states :

“ CARDINAL . In the exercise of its powers in respect of privileges and immunities , ORG shall seek primarily to uphold its integrity as a democratic legislative assembly and to secure the independence of its members in performance of their duties .

Any request addressed to the President by a competent authority of a member ORG that the immunity of a member be waived shall be announced in ORG and referred to the committee responsible .

Any request addressed to the President by a member or a former member to defend privileges and immunities shall be announced in ORG and referred to the committee responsible .

The member or former member may be represented by another member . The request may not be made by another member without the agreement of the member concerned .

As a matter of urgency , in circumstances where a member is arrested or has his freedom of movement curtailed in apparent breach of his privileges and immunities , the President , after having consulted the chairman and rapporteur of the committee responsible , may take an initiative to assert the privileges and immunities of the member concerned . The President shall communicate his initiative to the committee and inform ORG . ”

Parliamentary immunity is not a homogeneous notion . Most NORP states recognise CARDINAL categories of immunity for parliamentarians : firstly , the “ non - liability ” of parliamentarians in respect of judicial proceedings for opinions expressed and votes cast in the discharge of their parliamentary duties ; secondly , their “ inviolability ” or “ immunity in the strict sense ” , shielding them from all arrest , detention or prosecution for offences unrelated to their parliamentary duties without the consent of the ORG to which they belong . This comparative law study focuses on the latter aspect of parliamentary immunity ( see ORG Report on the regime of parliamentary immunity , DATE ) .

The precise scope of the inviolability varies considerably from CARDINAL country to another . The very nature of this aspect of immunity results in a wide array of legal approaches to its implementation . In some GPE there is no such institution ( the GPE , GPE ) . In others its scope is very limited . For example , in the GPE inviolability covers civil matters only and MPs enjoy no particular protection in criminal matters and are treated like any other individual . In GPE and GPE parliamentary inviolability serves to prevent MPs from being arrested during sessions or on their way to or from ORG . It therefore affords them limited protection .

That said , most of GPE Parties to the PERSON grant their MPs immunity from criminal prosecution during their term as MPs that goes beyond the exercise of parliamentary functions ( GPE , GPE and GPE DATE if the act does not clearly fall outside the ambit of their political activities – and GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE ) and/or protection against imprisonment or deprivation of liberty ( arrest or detention in all those countries which provide for immunity from prosecution , as well as GPE , GPE , GPE , GPE and GPE ) . In certain cases MPs are protected from body searches , house searches and interception of their communications ( GPE , GPE , GPE , GPE and GPE ) . Such proceedings or measures may be executed only with the consent of the assembly to which the MP belongs , except in GPE , where such decisions lie with the courts .

In several GPE the scope of inviolability has been restricted , as witnessed by some recent constitutional reforms . In GPE , for example , since the constitutional reform of DATE , the ORG ’s authorisation is no longer necessary for criminal proceedings to be brought , but only for detention , arrest and other judicial supervision measures . A similar change came about in GPE when LAW no . CARDINAL of DATE did away with the need for the prior authorisation of ORG in order for criminal proceedings to be brought against an MP . In GPE , since the constitutional reform of DATE , senators may be placed under judicial investigation or criminal proceedings brought against them for acts not connected with votes cast or political opinions expressed in the course of their duties as senators .

In GPE ’s GPE the practice is generally for a new parliament to lift immunity from prosecution for all offences ( with the exception of defamation of a political character ) at the start of the parliamentary term . The aim of this is to protect the reputation of each MP , by ensuring that they attract less media attention if proceedings are brought against them .

As to the scope of parliamentary inviolability ratione materiae , that is to say the acts it covers , there is a general tendency in the GPE Parties to the LAW for cases of flagrante delicto to be excluded . In such cases the prior authorisation of the ORG concerned is not required , but even this does not necessarily prevent ORG from examining the matter and subsequently requesting the suspension of the proceedings or the custodial measures ( GPE and GPE , for example ) . In some countries the law excludes certain types of act from inviolability , or the criterion may be the severity of the penalty incurred ( LAW excludes , in certain circumstances , deliberate offences punishable with imprisonment for DATE ) .

The duration of parliamentary inviolability also varies from CARDINAL country to another . Some countries extend parliamentary immunity to criminal proceedings brought prior to the ORG ’s election ( GPE , GPE , GPE , GPE , GPE and GPE ) . In other countries , even if parliamentary authorisation is not required in order for proceedings initiated prior to the MP ’s election to be continued , ORG may , of its own motion or at the request of the interested party , request the suspension of the proceedings or the waiving of restrictive measures during the MP ’s term of office ( GPE , GPE and GPE ) .

Parliamentary immunity may be lifted in most countries . The procedure for lifting immunity is generally the same . It is usually provided for in ORG . It is set in motion by a proposal or a request for authorisation by the competent public authority ( in most cases ORG ) , the injured party or the parliamentarian concerned . The request is transmitted to the Speaker of the ORG , either directly or in certain cases through another authority ( the Minister of ORG , the Prime Minister ) , then examined by a special or ad hoc parliamentary committee , which gives an opinion after hearing the MP concerned . It is then for the full ORG to decide , with or without a debate , in private or in public , whether or not to lift immunity . The possibility of appealing against a decision of the ORG to lift immunity exists in very few countries ( GPE and GPE ) .

The possibility for MPs to waive their own parliamentary immunity is not widespread ( GPE and GPE ) and is sometimes limited to minor offences ( summary offences in GPE ) or to specific offences ( defamation in GPE and GPE ) . Under GPE ’s LAW MPs have the right to consent to criminal proceedings . In GPE LAW gives MPs the right to consent in writing to be prosecuted or arrested .

In most of ORG no provision is made for MPs to forgo their immunity of their own free will because immunity is a privilege granted not to MPs on an individual basis but to ORG , to guarantee its smooth operation . In GPE provisions governing immunity are traditionally a matter of public policy and MPs can not renounce it . Any act that violates parliamentary immunity is considered null and void . The question of immunity must be raised by a judge . A similar approach has been adopted in ORG , where renunciation of immunity has no legal effect .

This comparative presentation does not reveal any uniform pattern of existing parliamentary practice . It is worth noting , however , that a majority of NORP countries have recognised parliamentary immunity and incorporated it in their constitutional systems as an essential factor in the smooth functioning of the legislature .

There are nevertheless marked differences in the nature and scope of the protection inviolability offers MPs . They reflect the different political and historical experiences of the GPE , and often illustrate the needs that underlie inviolability . It would appear that the scope of this privilege , which is considered as an inextricable part of the separation of powers , the autonomy of ORG or the protection of the parliamentary opposition , is defined in each ORG in keeping with the degree of autonomy necessary for ORG to be able to fulfil its duties .