Violation of P4-2;Violation of P7-1;Non-pecuniary damage - financial award

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

DATE the applicant , an ethnic PERSON , lived in the Kabardino - Balkarian Republic of GPE on the basis of a long - term residence permit ( vid na zhitelstvo ) .

NORP In DATE the applicant 's residence permit was lost or stolen . On DATE he asked ORG of ORG of the Kabardino - Balkarian Republic ( passportno - vizovaya sluzhba ORG ) to replace the permit and to extend it until DATE .

After DATE delay the applicant was issued with a new residence permit valid until DATE . The shortened term of validity was explained by reference to a recommendation of ORG of GPE , which considered a longer extension “ inappropriate ” because the circumstances surrounding the loss of the first permit had not been clear enough .

The applicant complained to a court . On DATE the ORG allowed the applicant 's complaint and ordered ORG to extend his residence permit until DATE .

On DATE the applicant was fined for having breached the residence regulations . He did not contest the fine before a court .

After DATE the applicant 's registered place of residence was a flat on ORG avenue in GPE . His residence registration at that address was valid until DATE . Department of the Interior No . CARDINAL of Nalchik ( ORG otdel vnutrennikh del PERSON ) placed a stamp to that effect in the applicant 's residence permit .

On DATE the applicant was at a friend 's flat in NORP street in GPE where he had stayed TIME . At TIME a man and a woman entered the flat . The woman introduced herself as a police inspector of ORG . CARDINAL of Nalchik ; the man did not identify himself . The man and woman claimed that they were conducting a “ check - up of identity documents ” . The applicant 's friend , Mr Kh . , refused them entry to the flat , but they entered nevertheless . They proceeded to the room where the applicant was and asked him to produce identity documents . On seeing a different address in his residence permit , the woman asked the applicant why he did not live at home . The woman invited the applicant to come with them to the police station , which the applicant did . The applicant stayed at the station while a report was being drawn up .

On DATE drew up a report of an administrative offence and issued a decision to fine the applicant RUR CARDINAL ( approximately EUR CARDINAL ) for “ residing in GPE street without registering his place of stay ” which was an offence under LAW . Inspector A. asked the applicant to pay the fine on the spot . The applicant refused and complained to a court .

On DATE the ORG heard the applicant 's complaint . The court reiterated that LAW guaranteed to anyone who lawfully resided in its territory the freedom to move freely and choose his or her place of residence and stay and that that provision also applied to foreign nationals . The court took statements from the applicant , his friend PERSON . and another person who had been in the flat in LOC street on DATE ; they all maintained that the applicant had paid a visit to his friend and had not been living in Mr Kh . 's flat . Furthermore , PERSON . , the owner of the flat on ORG avenue , confirmed that she had made her flat available to the applicant for residential purposes and that he had been duly registered at her address . ORG came to the conclusion that no administrative offence had been committed and annulled the decision of DATE . The police lodged an appeal .

On DATE ORG of the Kabardino - Balkarian Republic quashed the judgment of DATE on procedural grounds and remitted the case for examination by a different formation .

On DATE the ORG dismissed the applicant 's complaint , finding as follows :

“ The administrative proceedings against [ the applicant ] were initiated , and a fine in the amount of MONEY was imposed on him , not only on the basis of the obvious fact , established by PERSON , that [ the applicant ] had been outside his place of residence but also on the basis of the report drawn up by ORG and PERSON . , district police officers of ORG . CARDINAL of GPE , on [ the applicant 's ] residence in the LOC street flat from DATE to DATE ... [ These police officers ] gave statements as witnesses and stated that they had learnt from operational sources that a foreigner , named PERSON , was secretly living in PERSON . 's flat ...

At the same time the complainant and the witnesses PERSON . and PERSON . failed to satisfy the court that [ the applicant ] had only stayed TIME at Kh . 's on TIME DATE because of heavy frost outside and the need to avoid returning to a remote district of the town . In particular , PERSON . did not inform the court on what date she had visited [ the applicant ] on ORG avenue and how many days before the administrative offence report was drawn up he might have been staying at PERSON . 's ... Besides , the court takes into account that the witnesses examined on behalf of the complainant are his relatives or friends and might have an interest in the outcome of the case . Additionally , the court has examined a report by [ the police officer PERSON . ] which stated that during checks he could not verify the applicant 's residence either at the old or at the new address . ”

NORP The applicant appealed against the judgment . In the grounds of appeal the applicant 's lawyer alleged , in particular , that the fine had been imposed in the applicant 's absence by a police officer who had not been competent to do so , that the report of an administrative offence had not been corroborated by any evidence and that the sanction had not been imposed in accordance with law . The lawyer also submitted that the first - instance court had erred in its assessment of statements by the police officers NORP and PERSON . who had denied that they had known the applicant , and that the court had admitted in evidence a report by the officer PERSON . who had not been examined before or at the hearing .

On DATE ORG of the Kabardino - Balkarian Republic upheld the judgment of DATE . It rejected the applicant 's arguments that he had been unlawfully fined , on the ground that he had allegedly failed to raise these issues before ORG . ORG did not address the applicant 's inability to question the officer PERSON . Instead , it found that “ on DATE Mr CARDINAL . , district inspector of the first department of the interior of GPE , reported to his superior that the flat on GPE avenue was empty ” . The remainder of ORG reasoning was similar to that of ORG .

On DATE the applicant and his lawyer asked the ORG of ORG to lodge an application for supervisory review . On DATE the request was refused .

On DATE the applicant applied by mail for an extension of his residence permit to CARDINAL DATE . On DATE the Passports and ORG informed him that he had to apply for an extension in person . The applicant responded in writing that there was no such requirement in the domestic law .

On DATE the town prosecutor of GPE sent a request to remedy a violation of NORP laws ( predstavlenie ob ustranenii narushenii zakonov ORG ) to the head of ORG . The prosecutor requested that the applicant 's residence permit be annulled and that he be expelled because he had been found guilty of CARDINAL administrative offences in DATE .

On DATE Inspector PERSON . of ORG annulled the applicant 's residence permit on the ground of repeated violations of residence regulations in GPE . The order was approved by the Minister of ORG . The applicant was ordered to leave GPE within DATE .

On DATE the ORG stayed the execution of the order of CARDINAL DATE pending ORG decision on a request by the applicant for supervisory review .

On DATE at TIME several officers of ORG and ORG entered the applicant 's flat on the ORG prospect . Some of them wore face masks . They did not identify themselves and they did not present any search or deportation warrant . The applicant was handcuffed and taken by car to FAC where he was placed on a flight to GPE , GPE .

On DATE ORG , giving a ruling in the supervisory - review procedure , quashed the decision on an administrative offence of DATE and the judgment of the NORP Town Court of DATE , finding that there had been no admissible evidence showing that the applicant had lived outside the place of his residence registration . It noted that the reports by police officers NORP and PERSON . had been based on hearsay and that officer PERSON . 's report had not confirmed the applicant 's residence in GPE street either . Furthermore , it pointed out that ORG requirement of proof that the applicant had only been a guest in PERSON street ran contrary to the presumption of innocence enunciated in LAW . Finally , it noted that the administrative charge against the applicant had been examined by an officer of the police station having no territorial jurisdiction over LOC street and that this fact alone had rendered the sanction unlawful . ORG discontinued the administrative proceedings against the applicant .

On DATE the ORG heard the applicant 's complaint against the order of CARDINAL DATE annulling his residence permit . The court noted that a residence permit could only be annulled in case of repeated violations of residence regulations , but that this provision was no longer applicable as the administrative proceedings against the applicant had been terminated by the decision of DATE . The court declared the order of CARDINAL DATE void and ordered that ORG extend the applicant 's residence permit for DATE , starting from DATE . The judgment was not appealed against and became enforceable on DATE .

In a separate set of proceedings , the applicant 's representative attempted to bring criminal charges against the officials who had deported the applicant by force . On DATE he complained to the NORP town prosecutor 's office about the allegedly unlawful search at the applicant 's home and his deportation to GPE . On DATE his complaint was rejected because no evidence of a criminal offence had been adduced . On DATE the head of the investigations department of the Kabardino - Balkaria prosecutor 's office annulled the decision of CARDINAL DATE and remitted the complaint for additional investigation . On DATE the GPE town prosecutor 's office again refused to prefer criminal charges on the ground that no evidence of a criminal offence had been adduced . This decision was subsequently quashed , but on DATE and DATE further orders discontinuing criminal proceedings were issued .

On DATE the Passports and ORG informed the applicant that it would extend his residence permit in implementation of ORG judgment of DATE . ORG invited the applicant to appear in person in order to collect the permit .

On DATE the applicant 's representative , Mr GPE , received the documents for extension of the applicant 's residence permit and forwarded them to the applicant in GPE .

At TIME on DATE the applicant arrived in GPE on board a flight from GPE . On arrival he was detained by officers of ORG and ORG and locked in an isolated room in the GPE airport building . The applicant was not allowed to consult his lawyer , Mr GPE .

On DATE and DATE Mr GPE sent complaints about the applicant 's unlawful detention to prosecutor 's offices of various levels , to ORG , to ORG and to ORG at ORG .

At TIME on DATE Mr GPE asked Major NORP , the head of ORG , to see the applicant . His request was refused by reference to an order of ORG . Major NORP then called Captain G. from ORG of ORG who confirmed that the applicant 's contacts with lawyers had indeed been banned .

At TIME on DATE the applicant was put on a scheduled flight to GPE . It can be seen from the “ deportation record ” of the same date , drawn up on the letterhead of the GPE airport border control point of ORG , that the applicant was deported for having been in breach of section CARDINAL § CARDINAL of the PERSON on the Procedure for Entering and Leaving GPE .

According to the Government , the ban on the applicant 's re - entry into GPE was imposed by ORG some time in DATE on the basis of Section CARDINAL of the PERSON on the Procedure for Entering and Leaving GPE . The Government claimed that they could not produce a copy of that decision because it contained “ State secrets ” . They submitted , however , that ORG had found no reason to challenge that decision before a court as it had been issued in accordance with the requirements of the above law .

In response to the applicant 's lawyer 's complaints , on CARDINAL DATE a senior investigator with the military prosecutor 's office of ORG refused to initiate a criminal investigation into the applicant 's deprivation of liberty at FAC . He found that the ban had been imposed by Directorate “ I ” of ORG and that the applicant had awaited the next flight to GPE in the international zone of FAC under the surveillance of FAC officers . The room had been equipped with a toilet , ventilation , lighting , a TV set , a bench and a chair . As ORG officials had acted in accordance with the applicable regulations , the applicant 's stay in the transit area could not be interpreted as a “ deprivation of liberty ” .

The Government indicated that ORG was examining the issue of annulment of the applicant 's residence permit in accordance with section CARDINAL ( CARDINAL ) of LAW .

Everyone lawfully within the territory of the GPE shall have the right to move freely and choose his or her place of stay or residence ( Article CARDINAL of LAW ) . Foreign nationals in GPE shall have the same rights and obligations as NORP nationals subject to exceptions set out in a federal law or an international treaty to which GPE is a party ( LAW ) .

A foreign national must register his or her residence within DATE of his or her arrival in GPE ( section QUANTITY of ORG in GPE , no . CARDINAL-FZ of DATE – “ the Foreign Nationals Law ” ) . Foreign nationals must obtain residence registration at the address where they stay in GPE . Should their address change , such change is to be re - registered with the police within DATE ( section QUANTITY ) .

A foreign national who violates the residence regulations of GPE , including by non - compliance with the established procedure for residence registration or choice of a place of residence , shall be liable to an administrative fine of ORG CARDINAL and possible expulsion from GPE ( LAW ) . A report of the offence described in LAW may be drawn up by officials of the ORG migration authorities ( Article CARDINAL § CARDINAL ( CARDINAL ) ) . This report must be forwarded within DATE to a judge or an officer competent to adjudicate administrative matters ( Article CARDINAL.CARDINAL ) . The determination of an administrative charge that may result in expulsion from GPE shall be made by a judge of a court of general jurisdiction ( Article CARDINAL § CARDINAL ) . A right of appeal against a decision on an administrative offence lies to a court or to a higher court ( Article CARDINAL § CARDINAL ) .

A residence permit may be annulled if a foreign national has been charged CARDINAL or more times within DATE with violations of residence regulations ( section CARDINAL ( CARDINAL ) of the Foreign Nationals Law ) .

A foreign national 's residence permit shall be issued for DATE . Upon expiry it may be extended for a further DATE at the holder 's request . The number of extensions is not limited ( section CARDINAL ( CARDINAL ) of LAW ) .

A residence permit may be annulled , particularly if the foreign national advocates a violent change of the constitutional foundations of GPE or otherwise creates a threat to security of GPE or its citizens ( section CARDINAL ( CARDINAL ) of LAW ) .

Administrative expulsion of a foreign national from GPE must be ordered by a judge ( Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL of LAW ) .

A foreign national may be refused entry into GPE if such refusal is necessary for the purpose of ensuring the defensive capacity or security of the ORG , or for the protection of public order or public health ( section CARDINAL § CARDINAL(CARDINAL ) of the PERSON on the Procedure for Entering and Leaving GPE , no . CARDINAL-FZ of DATE ) .

DATE . On DATE the PERSON on the Procedure for Entering and Leaving GPE was amended . In particular , a new section CARDINAL was added . It provided that a competent authority , such as ORG or ORG , could issue a decision that a foreign national 's presence on NORP territory was undesirable , even if his or her presence was lawful , if it created a real threat to the defensive capacity or security of the ORG , to public order or health , etc . If such a decision was made , the foreign national had to leave GPE or else be deported . That decision also formed the legal basis for subsequent refusal of re - entry into GPE .

Resolution CARDINAL ( DATE ) on honouring of obligations and commitments by GPE , adopted by ORG of ORG on DATE , noted in the relevant part as follows :

“ CARDINAL . However , the ORG is concerned about a number of obligations and major commitments with which progress remains insufficient , and the honouring of which requires further action by the NORP authorities :

xii . whilst noting that the NORP federal authorities have achieved notable progress in abolishing the remains of the old propiska ( internal registration ) system , the ORG regrets that restrictive registration requirements continue to be enforced , often in a discriminatory manner , against ethnic minorities . Therefore , the ORG reiterates its call made in Recommendation DATE ) , in which it urged member states concerned ' to undertake a thorough review of national laws and policies with a view to eliminating any provisions which might impede the right to freedom of movement and choice of place of residence within internal borders ' ... ”

The Explanatory Report defines the scope of application of LAW No . CARDINAL in the following manner :

“ CARDINAL . The word ' resident ' is intended to exclude from the application of the article any alien who has arrived at a port or other point of entry but has not yet passed through the immigration control or who has been admitted to the territory for the purpose only of transit or for a limited period for a non - residential purpose ...

The word lawfully refers to the domestic law of the ORG concerned . It is therefore for domestic law to determine the conditions which must be fulfilled for a person 's presence in the territory to be considered ' lawful ' .

[ A]n alien whose admission and stay were subject to certain conditions , for example a fixed period , and who no longer complies with these conditions can not be regarded as being still ' lawfully ' present . ”

The ORG further cites definitions of the notion of “ lawful residence ” contained in other international instruments :

“ a. Residence by an alien in the territory of any of the Contracting Parties shall be considered lawful within the meaning of this Convention so long as there is in force in his case a permit or such other permission as is required by the laws and regulations of the country concerned to reside therein ...

b. Lawful residence shall become unlawful from the date of any deportation order made out against the person concerned , unless a stay of execution is granted . ”

“ a. Regulations governing the admission , residence and movement of aliens and also their right to engage in gainful occupations shall be unaffected by this Convention insofar as they are not inconsistent with it ;

b. Nationals of a Contracting Party shall be considered as lawfully residing in the territory of another ORG if they have conformed to the said regulations . ”

The ORG clarifies the notion of “ expulsion ” as follows :

“ CARDINAL . The concept of expulsion is used in a generic sense as meaning any measure compelling the departure of an alien from the territory but does not include extradition . Expulsion in this sense is an autonomous concept which is independent of any definition contained in domestic legislation . Nevertheless , for the reasons explained in paragraph CARDINAL above , it does not apply to the refoulement of aliens who have entered the territory unlawfully , unless their position has been subsequently regularised .

Paragraph CARDINAL of this article provides first that the person concerned may be expelled only ' in pursuance of a decision reached in accordance with law ' . No exceptions may be made to this rule . However , again , ' law ' refers to the domestic law of the ORG concerned . The decision must therefore be taken by the competent authority in accordance with the provisions of substantive law and with the relevant procedural rules . ”


Violation of Art. 5-3;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and is currently detained in FAC ( GPE ) .

NORP In DATE the applicant was arrested and charged with trafficking in dangerous drugs . On DATE , while he was in pre - trial detention , a fresh charge of complicity in attempted wilful homicide was brought against him . The applicant was accused of having tried , by means of an instruction issued to third parties , to kill PERSON PERSON , the personal assistant to the Prime Minister , on account of Mr PERSON 's role in the separate proceedings on the charge of trafficking in dangerous drugs . The events in issue allegedly occurred before and on DATE . Expert forensic reports were submitted in DATE and DATE .

The applicant was subsequently placed in detention on remand in connection with this new criminal charge also .

From the date of the applicant 's arraignment ( DATE ) until CARDINAL DATE , CARDINAL hearings took place before ORG , acting as a court of criminal inquiry . A number of police officers , experts and witnesses , including Mr PERSON , an accomplice who had made a confession and had been granted a pardon , were cross NORP examined by the parties . A number of objections were raised by the prosecution and the defence about the questions put by the other party . The court issued a ban on the publication of reports and articles about the proceedings before it .

On DATE ORG appointed a graphologist and concluded that there were sufficient grounds for the filing of a bill of indictment against the applicant .

NORP However , on DATE the Attorney General asked ORG to re - open the proceedings in order to hear CARDINAL witnesses , namely CARDINAL other accomplices of the applicant , a doctor who had been on duty on DATE the victim was admitted to hospital , and the graphologist appointed on DATE . On DATE the court heard the first CARDINAL witnesses . The CARDINAL accomplices refused to give evidence in order not to incriminate themselves . The court revoked the appointment of the expert and asked the registrar to provide it with a new list of experts .

On DATE the Attorney General again asked the court to reopen the proceedings and to explain the reasons for revoking the appointment of the expert ; to identify handwriting experts , including foreign ones ; and to hear all the evidence the police could adduce .

On DATE ORG appointed a new graphologist , Mr PERSON .

On DATE the Attorney General requested once again that the inquiry be re - opened . He asked that Mr PERSON and PERSON be heard , the latter being requested to give explanations about the record of his interrogation by the police . Moreover , he asked that some documents previously exhibited be listed in detail , while other documents not already exhibited should be produced by the registrar . A hearing , during which PERSON PERSON was examined , took place on DATE .

On DATE the Attorney General requested that the inquiry be re - opened for the following matters : to correct a mistake in the records ; to hear PERSON ; to produce various newspapers ; to complete the appointment of another expert and have him produce some photographs ; and to hear CARDINAL new witnesses .

On DATE , after the examination of CARDINAL witnesses , the hearing was adjourned as PERSON was not in GPE . He gave evidence on DATE .

On DATE the registrar informed the court that the evidence produced on DATE had not been properly recorded and that the witnesses heard during that sitting should be summoned again .

On DATE the Attorney General requested the re - opening of the inquiry in order to hear PERSON and other witnesses , as well as the witnesses examined on DATE . With the exception of PERSON PERSON , who was abroad , the witnesses concerned were examined by the prosecution on DATE . Counsel for the defence , who was attending another trial , was not present and reserved his right to crossexamine the witnesses . At the Attorney General 's request , on DATE PERSON was examined . At the end of the sitting , the court returned the documents relating to the proceedings to the Attorney General .

The bill of indictment against the applicant for the charge of complicity in attempted wilful homicide was filed on DATE .

On DATE the applicant was provisionally released on bail in relation to the charge of trafficking in dangerous drugs . However , the applicant could not leave the prison as he was still required to remain in pretrial detention on the charge of complicity in attempted murder .

In CARDINAL separate notes of DATE the applicant filed several preliminary pleas , challenging the validity of the bill of indictment and the admissibility of a number of documents and prosecution witnesses . The applicant also requested that CARDINAL witnesses be heard on his behalf .

On DATE the Attorney General contested the admissibility of certain documents and witnesses referred to by the defence .

A number of hearings on the preliminary pleas took place before ORG . In particular , the applicant 's case was discussed on CARDINAL and DATE . On DATE , the case was adjourned until DATE because counsel for the applicant failed to appear . The case was further discussed on DATE and DATE , then postponed until DATE , on which date the applicant informed the court that his counsel had fallen ill . The case was adjourned first until DATE , then until DATE . On DATE and on CARDINAL DATE ORG heard oral submissions from the parties .

The following hearing , initially scheduled for DATE , was postponed until DATE on the ground that the court needed more time to deliberate . On DATE ORG delivered its judgment on all the preliminary pleas . Both the defence and the prosecution declared that they intended to appeal . The case was adjourned pending the decision on the parties ' appeals .

On DATE the applicant appealed against ORG judgment of DATE . The prosecution did not appeal .

On DATE ORG set the appeal down for hearing on DATE . The hearing was then adjourned until DATE on the ground that one of the sitting judges was ill . On DATE the parties made their oral submissions . The next hearing , initially scheduled for DATE , was postponed first until DATE , then until DATE , and finally until DATE at the request of the defence , on the ground that the accused had appeared in court unassisted . ORG heard further oral submissions by the parties on DATE and CARDINAL , DATE and DATE .

On DATE ORG partly quashed ORG judgment of DATE .

The case concerning the charge of complicity in attempted wilful homicide was resumed before ORG . A hearing was scheduled for CARDINAL DATE in order to agree on a date for the trial . However , the proceedings were adjourned at the defence 's request .

On DATE CARDINAL of the applicant 's counsel withdrew from the defence team . ORG observed that all that needed to be done was to appoint a date for the trial by jury . However , the applicant 's remaining lawyer requested an adjournment in order to check his other professional commitments and to consult with his client . On CARDINAL and CARDINAL July CARDINAL the proceedings were postponed on the ground that the applicant 's counsel was ill .

On DATE the defence challenged the President of ORG – Mr Justice PERSON – on the ground that he had participated in the trial of PERSON , one of the applicant 's coaccused . The parties made oral submissions on this plea , and the court ordered the applicant to submit , before DATE , a note indicating the legal provisions on which he was relying and the decisions taken by the judge in question during the trial of Mr GPE . The court proposed to adjourn the case until DATE , on which date a decision on the challenge should have been taken . However , the applicant 's counsel objected that he would be away from GPE during DATE . The proceedings were therefore postponed until DATE , on which date ORG rejected the challenge .

The applicant declared his intention to appeal . Observing that there was no right to appeal against its ruling , ORG provisionally fixed the date of the trial by jury for DATE . The applicant 's counsel observed that in view of the declaration made by the defence , the date of the trial should not have been fixed and the proceedings should rather have been adjourned sine die .

On DATE the applicant appealed against the decision of CARDINAL October CARDINAL .

The hearing , initially scheduled for DATE , was held on DATE , on which date ORG adjourned the proceedings until DATE in view of the absence of the applicant 's counsel . The latter subsequently informed the court that he had not been notified of the new date of the hearing . ORG also observed that the Attorney General had not submitted a reply in writing to the applicant 's appeal . The Government , with whom the applicant disagreed , emphasised that submissions were normally made orally and that the Attorney General was in no way obliged to file a written reply .

On DATE the accused , who had fallen ill , did not appear . In the presence of his legal counsel , the court heard evidence from a doctor as to the applicant 's state of health . A medical certificate was exhibited .

By decision of DATE ORG dismissed the applicant 's appeal . It observed that the accused 's allegations were based only on suppositions and unproven gratuitous assertions which were devoid of legal value .

On DATE the applicant was convicted and sentenced to DATE imprisonment and to a fine of MONEY ( MONEY ) in respect of the charge of trafficking in dangerous drugs . He then started to serve his sentence for that offence . The earliest date of the applicant 's release was fixed at DATE . This calculation was made by deducting from the final sentence the period that the accused had spent in pre - trail detention .

After having heard in camera the views of the defence and the prosecution , on DATE ORG decided to adjourn the trial by jury on the charge of complicity in attempted murder until DATE . It considered , in particular , that it was not wise to commence the new trial at a date too close to the termination of the other proceedings against the same accused . The witnesses to be heard on behalf of the prosecution were summoned to appear on DATE .

However , on DATE the applicant instituted proceedings before ORG exercising its constitutional jurisdiction , relying on a violation of LAW CARDINAL of LAW . He submitted , in particular , that he could not be judged by the same magistrate – Mr Justice Degaetano – who had participated in his previous trial for trafficking in dangerous drugs and in the trial of CARDINAL persons accused of complicity in the offence with which he was charged . He also complained about the extensive media coverage of his trial and about the negative opinions expressed about him and his innocence by the Prime Minister , by the Attorney General and by certain police officers .

On DATE the applicant requested ORG to stay the proceedings pending the decision on his constitutional application . The Attorney General replied that that request should be rejected as constituting an abuse of process .

In an order of CARDINAL DATE ORG noted that DATE of the jury trial had been known to the applicant by DATE . However , it was DATE before the trial was scheduled to commence that the accused had filed his constitutional application . ORG noted , moreover , that the fact that the constitutional application was pending did not stricto jure oblige it to adjourn the trial . However , if the trial were to be continued , ORG and , in the event of an appeal , ORG might have felt in some way pressed to give a ruling on the applicant 's complaint in an unreasonably short time ( that is , before the end of the trial ) . Such a situation should , if possible , be avoided and it would have been unnecessarily costly to have the trial by jury held more than once . ORG therefore decided to adjourn the hearing until DATE . Further sittings were held before ORG on DATE and DATE and on DATE and CARDINAL DATE ; they were all adjourned pending the outcome of the applicant 's constitutional application . The next hearing was fixed for DATE .

The date of the first hearing before FAC was fixed for DATE , on which date the applicant produced several documents . The proceedings were adjourned in order to examine those documents . In a note of CARDINAL DATE the applicant stated that CARDINAL of his counsels had been required to go abroad on a university assignment and would not be present at the hearing on DATE . ORG reserved its decision on this matter .

On DATE the applicant appeared , assisted by his other counsel . He declared that he needed to produce in evidence copies of articles which had appeared in local newspapers . The case was adjourned until DATE , on which date the court requested further information from the applicant . The hearing of DATE was postponed at the Attorney General 's request . On DATE the court adjourned the case in order that the applicant could conduct inquiries to verify the facts concerning a video recording exhibited by him .

In a note of DATE the applicant pointed out that the recording in issue did not concern a political debate , as he had initially stated , but a press conference . On DATE he exhibited an audio recording of the political debate in question and declared that he had no further evidence to produce . The Attorney General requested the authentication of the document exhibited .

On DATE a witness on behalf of the applicant appeared in order to authenticate the relevant documents . The case was adjourned first until DATE , then until DATE for final oral submissions by the parties . The hearings of DATE , DATE , DATE and DATE and DATE were adjourned as the court required more time for deliberation .

On DATE the First Hall of ORG dismissed the applicant 's application .

On DATE the applicant appealed against that judgment to ORG .

On DATE , the date of the first hearing , Mr Justice Degaetano , who presided over ORG , withdrew from the case . A substitute judge was appointed and the case was adjourned until DATE for oral submissions by the parties .

DATE . On DATE ORG dismissed the applicant 's appeal .

On DATE ORG set DATE as the date for the trial on the merits of the charge of complicity in attempted murder . The applicant declared that he intended to bring before ORG the issues raised in his constitutional complaint .

On DATE , the jury delivered a verdict of not guilty with respect to the charge of complicity in attempted murder .

In the course of the proceedings against him , the applicant applied for provisional release on bail on several occasions ( DATE , CARDINAL DATE , DATE and DATE , CARDINAL DATE , DATE and DATE ) . His requests were rejected by ORG and by ORG on DATE , CARDINAL DATE , DATE and CARDINAL DATE , DATE and DATE , after having held hearings at which the parties were able to make their oral submissions .

ORG was not persuaded that there was no danger that , once released , the applicant would not try to interfere with evidence or in any other way try to obstruct the course of justice with regard to his case . It referred , in particular , to the extraordinary gravity of the charges , which showed the manifest social danger posed by the applicant , who might commit further offences against the person , including offences of bodily harm . In this connection , it was observed that the identity of the witnesses had become known to the applicant . There was , moreover , a danger that the latter might try to abscond , making use of the contacts he had abroad , in order to avoid the heavy punishment which was likely to be inflicted on him in the event of his conviction .

ORG considered that the applicant 's situation had not significantly changed and that no new element justifying a departure from the previous findings had been submitted . In particular , it considered that the time that had elapsed since the beginning of the applicant 's detention was not substantial enough to conclude that the length of the deprivation of liberty in issue was unreasonable .

In the meantime , on DATE , the applicant , alleging that his lengthy detention and the continued refusal of bail had infringed his rights under Articles CARDINAL and CARDINAL of the LAW , introduced a constitutional complaint before ORG . He observed , in particular , that his deprivation of liberty was based , inter alia , on the risk of his tampering with evidence , a risk which , in the Attorney General 's submission , had become even more serious because his accomplices were free and the identity and nature of the prosecution evidence and witnesses had become known to the accused . In the applicant 's opinion , however , those fears were unfounded and the danger referred to by the authorities could in any case have been avoided by adopting the necessary precautionary measures , such as adequate surveillance by the police , with the possibility of house arrest . Moreover , the evidence of the prosecution had become known to the applicant by right in order to enable him to prepare his defence ; that fact could therefore not be used against him to justify a violation of his other fundamental rights .

The Attorney General and the Commissioner of Police filed a memorandum in which they applied for the applicant 's complaints to be dismissed . They pointed out that the offence attributed to the applicant was punishable by DATE imprisonment , and that this element created an incentive for the accused to try to tamper with evidence and also to abscond , possibly making use of the foreign contacts which he manifestly had . Moreover , the nature of the offence showed that the applicant was a danger to society and that there was a risk that he might commit other offences . Finally , the danger of his interfering with evidence was real , as was shown by the fact that after he had given evidence , a witness in his case had been attacked by CARDINAL unknown persons .

Four hearings took place before FAC on CARDINAL and DATE and CARDINAL and CARDINAL DATE . On the last - mentioned date , ORG authorised the applicant to file submissions concerning a non NORP exhaustion plea raised by the respondents . This note was filed on CARDINAL DATE .

On DATE the First Hall of ORG dismissed the applicant 's application . With reference to the case - law of ORG , ORG noted that the prolonged detention of a person who was presumed innocent but was suspected of having committed an offence should be justified in the public interest and that an accused deprived of his liberty had the right to have the investigations and trial conducted within a reasonable time . In the applicant 's case , ORG had taken into account the period of time spent by the applicant in detention in view of all the relevant circumstances , notably the nature and gravity of the charges , the danger of his tampering with evidence and the risk of his absconding . Moreover , the applicant 's case was particularly complex , regard being had to the number of witnesses and experts involved in the investigations and to the pleas submitted by the parties , and it could not be said that the prosecution had failed to show diligence in the conduct of the investigations . The time that had elapsed from the beginning of the investigations could not , therefore , be considered unreasonable . Finally , the fact that the applicant had been denied bail was not prejudicial to the presumption of innocence , as the decisions in this regard did not reflect an opinion as to his guilt .

On DATE the applicant appealed against the judgment of CARDINAL June DATE before ORG .

The first hearing took place on DATE . On DATE the applicant challenged CARDINAL of the QUANTITY sitting judges . A judgment on this issue was given on DATE . The CARDINAL judges in question withdrew from hearing the case , which was adjourned until DATE , on which date the parties made oral submissions . On DATE the applicant requested leave to produce a decision given by ORG on his application for bail . This request was subsequently served on the respondents , who on DATE declared that they did not oppose bail . The hearings of DATE and CARDINAL DATE and of DATE and DATE were adjourned because ORG needed more time for deliberation . On DATE the court observed that the members of the family of CARDINAL of the sitting judges had fallen seriously ill and that this fact prevented it from taking a decision immediately ; however , the case had been given the priority that it deserved .

On DATE , at ORG request , the parties made submissions on the point as to whether a decision on the issue under LAW was required .

On DATE ORG upheld the decision of FAC in so far as it concerned the length of the criminal proceedings against the applicant ( LAW ) . However , ORG pointed out that the applicant had also complained under LAW , alleging that the grounds for his detention had weakened with the passing of time . Even if the accused had not explicitly quoted this latter Article in his final submissions , thus misleading the first - instance court , his complaint constituted a separate grievance on which ORG should have made a specific ruling . Therefore , ORG remitted the facts of the case to ORG , instructing the latter to examine this complaint .

Proceedings were resumed before FAC , and a hearing was scheduled for DATE . On DATE CARDINAL witnesses appeared on behalf of the respondents . They testified about incidents experienced by a witness who had testified against the applicant in the pretrial investigation proceedings and by the daughter of that witness .

On DATE the President of ORG withdrew from the case . A substitute judge was appointed on DATE , but he also had to withdraw as he was one of the judges who had denied CARDINAL of the applicant 's applications for bail . Another substitute judge was appointed on CARDINAL DATE , and a new hearing was set down for DATE . Other witnesses were heard on CARDINAL and DATE . On DATE the applicant waived the right to cross - examine those witnesses , but requested leave to file written observations . The latter were filed on DATE , DATE after the expiry of the time allowed by ORG . The respondents filed their written reply at the hearing of DATE . On DATE the case was adjourned for judgment .

On DATE the First Hall of ORG declared that the overall duration of the applicant 's pre - trial detention had infringed LAW and that the applicant was entitled provisionally to be released under conditions guaranteeing his appearance at the trial . The determination of these conditions was left to the discretion of ORG .

ORG first underlined that a period of time held to be reasonable under LAW could be considered excessive under LAW , as the criteria laid down in the latter provision , which concerned personal liberty , were more rigorous . Moreover , it was clear that the passing of time could not but aggravate the prejudicial effects that the pre - trial detention had had on the applicant 's situation .

ORG further noted that the proceedings had not been conducted in a vacuum . In fact , the inquiry had been closed , the bill of indictment had been issued and the preliminary pleas had been decided . On the other hand , it should be kept in mind that the applicant had a right to institute all the proceedings and to lodge all the complaints he deemed necessary for the defence of his interests , even if this might prolong the criminal proceedings .

DATE . As to the grounds justifying the applicant 's continuing detention , ORG observed that the risk of his tampering with evidence appeared to subsist regardless of whether or not he remained under arrest . In fact , the Attorney General himself had mentioned that certain witnesses had already started to alter the evidence which they had given during the inquiry . Moreover , all the evidence against the applicant had already been gathered and heard on various occasions by the national courts , and the danger of interference with the course of justice was likely to be reduced as the investigations progressed .

As to the risk of committing new offences , ORG noted that the prosecution had not proved that the applicant was responsible for certain incidents in which a witness and his relatives had been involved . Furthermore , as the crimes of which the applicant was accused had been allegedly committed on the basis of instructions , it could be argued that the applicant constituted a threat to society even if he remained in prison . In any case , it appeared that the prosecution was inferring the applicant 's dangerousness more from the gravity of the case than from any other evidence .

Finally , it was true that the applicant risked a heavy sentence and that he had been abroad several times in DATE . However , it had not been proved that the applicant had tangible connections outside GPE which might facilitate his escape . He had , on the contrary , strong family ties in GPE . Keeping in mind that the applicant had already spent DATE in detention , and that this period would in any case have been deducted from his final sentence , ORG concluded that the risk of his absconding could be counterbalanced by adequate guarantees ensuring the appearance of the accused at the trial .

On DATE the Attorney General of GPE and the Commissioner of Police appealed to ORG against the judgment of DATE .

The first hearing took place on DATE . On that date all CARDINAL judges composing the court withdrew from the case on account of their involvement in prior proceedings concerning the question of the applicant 's release on bail . On DATE new judges were appointed . The applicant then requested that the next hearing , scheduled for DATE , be fixed for an earlier date . A hearing was scheduled for DATE , on which date the parties made their oral submissions on the appeal .

On DATE the Constitutional Court quashed the impugned judgment . It observed that the applicant 's prolonged detention had been based on CARDINAL grounds , notably the risk of contamination of evidence , the danger of his committing a new offence , the fact that he was a threat to society , and the danger that he might abscond or hide . In ORG view , each of these reasons was serious enough potentially to create an obstacle to the applicant 's release .

ORG noted that the prosecution had produced evidence demonstrating that the applicant had put pressure on individuals for the purpose of committing homicide on the basis of instructions . The risk of tampering with evidence was therefore a concrete one , especially at a stage where the applicant was aware of the content of the evidence and of the names of the witnesses . As to the risk of committing a new offence , the prosecution relied mainly on CARDINAL incidents concerning a witness and his daughter . However , there was nothing to show that the applicant was responsible for those acts . On the other hand , evidence had been produced against the applicant in a separate set of criminal proceedings concerning a serious accusation of drug trafficking .

As to the possibility that the applicant might abscond , it was true that the longer his detention lasted , the more remote this possibility was . The fact that the applicant 's family lived in GPE equally militated against the danger of flight . However , the seriousness of the charges brought against the applicant and the fact that he was about to face a trial by jury on charges of drug trafficking militated in the opposite direction .

DATE . It remained to be considered whether the time that had elapsed since the date of the arrest could neutralise all the other relevant factors justifying the applicant 's deprivation of liberty . In this connection , it was noted that far from trying to speed up the proceedings , the applicant had caused a number of delays . For instance , when ORG had been ready to fix the date of the trial by jury , the applicant had challenged the judge , and from DATE until DATE his lawyers had demanded CARDINAL adjournments of the hearings , thus unnecessarily lengthening the proceedings . In particular , on DATE ORG had provisionally scheduled DATE of the trial by jury for DATE . Instead of objecting to this lengthy delay , counsel for the defence had asked why ORG was setting a provisional date for the trial instead of adjourning it sine die . In ORG opinion , this behaviour was difficult to reconcile with the applicant 's declared wish to have his case heard within a reasonable time .

Even if it was preoccupied about the length of time that the applicant'Constitutional Court underlined that an accused person had every right to choose the best line of defence , but he did not have the right to lengthen the proceedings , under CARDINAL pretext or another , or to employ such grounds in favour of his provisional release pending trial .

In the light of the above , ORG found that the period of time spent by the applicant in pre - trial detention had not yet violated LAW . It considered , however , that the applicant 's application for bail should be allowed if a definitive date for the hearing of the trial was not fixed in due time after ORG had ruled on the challenge to the judge presiding over ORG .


Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Pecuniary damage - claim dismissed

Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković

The applicant was born in DATE and lives in GPE .

On DATE the applicant lent ORG Democratic People ’s Republic of Korea ( “ the DPRK Trade Counsellor ” ) MONEY ( MONEY ) . The money was to be repaid by CARDINAL DATE . A receipt of CARDINAL DATE on the letterhead of ORG signed by PERSON reads as follows :

“ [ This ] receipt is given to the President of the private company Lord PERSON to the effect that ORG has borrowed CARDINAL ( CARDINAL ) GPE dollars converted into roubles .

We undertake to repay the debt not later than CARDINAL May [ and ] we pledge the ORG Camry car , registration plate no . KhBB DATE ( ORG DATE ) , engine no . CARDINAL , chassis no . CARDINAL , [ together ] with a complete set of documents for the car . In case of a failure to repay [ the debt ] within the indicated term , we shall pay PERCENT for DATE of the delay . ”

After the DPRK Trade Counsellor failed to repay the debt , in DATE the applicant sent several letters of claim which went unanswered . The applicant ’s counsel also sent a letter of claim to ORG on DATE and to ORG on DATE , which also went unanswered .

On DATE the applicant ’s counsel wrote to ORG asking for assistance in settling the matter .

On DATE ORG replied to the applicant that ORG was a constituent unit of ORG and , therefore , an organ of the ORG which acted on its behalf . ORG thus enjoyed immunity from suit and immunity from attachment or execution in accordance with LAW . ORG advised the applicant that , should he decide to lodge a claim with a court , he would have to obtain consent to the examination of the case from a competent NORP authority .

On DATE the applicant wrote to ORG and asked for its consent to the examination of his claim against ORG by the domestic courts . The letter was received by ORG on DATE . It appears that the applicant received no reply .

On an unspecified date the applicant lodged a claim with ORG . On DATE ORG returned the claim without examination on the grounds that it should have been lodged before a district court .

NORP On DATE the applicant lodged a claim against the ORG with ORG . He sought repayment of the debt with interest . He claimed , furthermore , that GPE was responsible for the actions of foreign diplomats within its territory .

On DATE ORG returned the claim without consideration on the grounds that under LAW a claim against a foreign ORG could only be brought upon the consent of its competent authorities . The applicant appealed .

On DATE ORG upheld the decision on appeal . The court held :

“ [ ORG ] is a subdivision of the trade representation of the ORG in GPE the legal status of which is governed by the FAC to LAW between the GPE and the ORG of CARDINAL DATE . According to LAW , the trade representation is an organ of ORG the ORG ) acting in its name . Therefore , taking into account the equality of GPE as a principle of international law , the trade representation as an organ of public authority of a sovereign ORG is entitled to judicial immunity as well as to immunity from measures of securing a suit and execution . The said immunities are based on ORG sovereignty , which does not allow a ORG to be subject to coercive measures of any kind . The principle of judicial immunity of a foreign state is enshrined in LAW , according to which lodging a claim in a court of GPE against a foreign ORG , the involvement thereof in court proceedings in the capacity of a defendant or of CARDINAL party , the seizure of property belonging to a foreign ORG and situated within the territory of GPE , taking other measures for securing of a suit , and levying execution upon such property by means of enforcement of judicial decisions , are allowed only upon the consent of the competent agencies of the ORG in question , unless otherwise provided by an international treaty of GPE or by a federal law .

Therefore , [ a ] person may only lodge a claim against a foreign ORG upon the prior consent of the ORG . If [ a ] claim against a foreign ORG is not supported by ... documents confirming its consent to the examination of the case in court , [ court ] proceedings will not be instituted . As [ Mr ] PERSON failed to furnish [ documents confirming ] the consent of the [ ORG ] to the examination of the dispute in court together with [ his claim ] , the judge could not accept the claim because of the bar to [ lodging such a claim before ] a court . As the said bar is [ not absolute ] , the judge returned the claim to [ Mr ] PERSON on valid grounds , having indicated how the circumstances that prevented the institution of the proceedings could be remedied .

[ Mr ] PERSON arguments that ORG does not wish to reply to his and his counsel ’s requests [ and ] is evading payment of the debt , on the basis of which [ he submits that ] it is for the court or the judge to request the ORG ’s consent to the examination of the case , may not be considered as grounds for setting aside the [ decision of ORG ] , as they contravene the provisions of the international treaty between the GPE and the ORG of CARDINAL DATE and LAW . ”

Article CARDINAL of the Civil Code refers to the Law on State Immunity , which has not been adopted to date . The question is thus resolved by the courts on the basis of the relevant Codes of Procedure , with reference to the provisions of various bilateral and multilateral treaties .

Article CARDINAL of the DATE ORG in force until DATE , based on absolute immunity , provided , in so far as relevant :

“ [ F]iling a suit against a foreign ORG , securing of a suit or levying execution upon the property of a foreign State situated in the GPE may only be allowed upon the consent of the competent agencies of the respective ORG . ”

Article CARDINAL § DATE Code of Civil Procedure in force from DATE , reinstated absolute immunity of a foreign ORG . It reads as follows :

“ Filing a suit against a foreign ORG in a court of GPE , the involvement thereof in court proceedings in the capacity of a defendant or of a third party , the seizure of property belonging to a foreign ORG and situated within the territory of GPE , taking other property measures for securing of a suit , and levying execution upon such property by means of enforcement of judicial decisions , shall only be allowed upon the consent of the competent agencies of the ORG in question , unless otherwise provided by an international treaty of GPE or by a federal law . ”

Article CARDINAL(CARDINAL ) of the DATE Code of Commercial Procedure in force until DATE , provided for absolute immunity :

“ Filing a suit in a commercial court against a foreign ORG , the involvement thereof in court proceedings in the capacity of a third party , the seizure of property belonging to a foreign ORG and situated within the territory of GPE , and taking against it other measures for securing a suit , and levying execution upon such property by means of enforcement of a decision of a commercial court , shall only be permitted with the consent of the competent agencies of the respective ORG , unless otherwise provided by federal laws or by international treaties of GPE . ”

Article CARDINAL of the CARDINAL Code of Commercial Procedure in force from DATE , endorsed restrictive immunity . It reads as follows :

“ CARDINAL . A foreign ORG , acting in the capacity of a bearer of authority [ emphasis added ] , shall enjoy judicial immunity with respect to a suit filed against it with a commercial court in GPE , its involvement in court proceedings in the capacity of a third party , the seizure of property belonging to a foreign ORG and situated on the territory of GPE , and the taking against it by the court of other measures of securing a suit and property interests . Levying execution upon such property by means of enforcement of a judicial act of a commercial court shall only be permitted with the consent of competent agencies of the respective ORG , unless otherwise provided by international treaty of GPE or by a federal law .

NORP The judicial immunity of international organisations shall be determined by international treaty of GPE and by federal law .

A waiver of judicial immunity shall be effected according to the procedure provided for by the law of the foreign ORG or by the rules of the international organisation . In this instance , the commercial court shall consider the case according to the procedure established by the present Code ” .

Article CARDINAL of the LAW provides , insofar as relevant :

“ CARDINAL . The generally recognised principles and norms of international law and the international treaties of GPE shall be an integral part of its legal system . If an international treaty of GPE establishes other rules than those provided for by the law , the rules of the international treaty shall apply . ”

Article CARDINAL of the DATE ORG was examined by ORG in its ruling of DATE . The claimant , PERSON , a former employee of the information service of ORG in GPE , was dismissed under LAW section MONEY ) of the DATE LAW of GPE ( non - conformity of the employee with the post held due to insufficient qualification or state of health , preventing further fulfilment of the work ) . Following her dismissal she instituted court proceedings seeking reinstatement and damages . In a ruling of DATE the court of first instance rejected the claim , having applied LAW , as the claimant had failed to present any evidence of the United States’ consent to submit to the jurisdiction of the court . ORG upheld the ruling on appeal . In her complaint to ORG , PERSON argued that LAW had violated her constitutional right to judicial defence .

ORG noted that the right to engage in individual labour disputes was provided in LAW and the procedure for the examination of claims for reinstatement was governed by LAW , while application of the provisions of DATE was of subsidiary nature , intended to fill in gaps in the procedural rules of labour legislation . It further observed that the purpose of LAW ) was to ensure ORG immunity in accordance with generally recognised principles and norms of international law and international treaties of GPE .

The Constitutional Court found that “ when considering the case of [ Ms ] PERSON , the courts of general jurisdiction did not pay attention to the fact that the employer – ORG as an agency of the accrediting ORG – applied the legislation of GPE ... , and without requesting necessary documents refrained from investigating the issue of whether such an application could be regarded as the United States’ waiver of jurisdictional immunity in this particular case ” . On these grounds it reached the conclusion that : “ the formalistic application of Article CARDINAL(CARDINAL ) of LAW by the courts of general jurisdiction , which refused to accept the claim of [ Ms ] PERSON on the basis of this article , led to an inadmissible limitation of the claimant ’s rights with regard to an individual labour dispute ... and thus to a violation of the right to judicial defence provided for in LAW ” .

NORP However , ORG did not examine Ms PERSON ’s complaint on the merits . It found that her rights had not been violated by LAW , but rather by its application by the domestic courts , which fell outside its competence . At the same time , ORG stated that the LAW was to be applied henceforth “ taking into account the legal position set forth by ORG in the present ruling ” .

The application of the ORG immunity rule in commercial proceedings was addressed by the ORG of ORG in an Information Letter of DATE . By way of information letters ORG provides lower courts with instructions on the interpretation and application of domestic law .

The Information Letter firstly referred to a case where a NORP construction company had filed a claim against a foreign embassy for recovery of a debt arising under a contract concerning the construction of a hotel attached to the embassy in GPE . The commercial court had granted the claim . However , ORG had set aside the decision and remitted the case for fresh consideration . The commercial court was instructed to review the issue of ORG immunity , taking into account that construction of the hotel was for the public , and non - commercial , activity of the foreign ORG in GPE , and was therefore instructed to consider termination of the proceedings under LAW .

On the basis of its findings in the above case , the Presidium of ORG made the following general recommendation : “ A commercial court shall terminate proceedings in a case concerning an investment dispute , the defendant in which is a foreign ORG acting in the capacity of a sovereign ” .

The second case referred to in ORG also concerned a foreign embassy and a NORP construction company involved in a dispute arising out of a construction contract . However , in this case the proceedings had been initiated by the embassy and the construction company had filed a counter - claim . ORG had held that bringing a claim constituted an implied waiver of immunity and therefore that the embassy of a foreign ORG was not immune with respect to a counter - claim .

The recommendation of the Presidium of ORG based on the above case reads as follows : “ A commercial court shall accept a claim in a commercial dispute , the defendant in which is a person entitled to international immunity ” .

State immunity was touched upon in the Opinion on the Draft Federal Law on ORG by GPE , sent by the President of GPE , PERSON , to the Chairman of ORG , G N PERSON , and published in ORG on CARDINAL DATE ( “ the Opinion ” ) .

With regard to certain provisions relating to ORG immunity which were included in LAW under discussion , the ORG states that “ foreign ORG property enjoys functional immunity ” . The statement is further detailed as follows :

“ If a ORG uses its ownership for the purposes of ensuring its sovereignty or fulfilling ORG political functions , that is , as a subject of international law , for example , for the maintenance of diplomatic and consular representations , this property always enjoys immunity against the jurisdiction of the ORG of its location . However , if the ORG ( through specially empowered agencies ) takes part in property turnover or in commercial activity , then it is regarded as a foreign private person and its ORG ownership does not enjoy immunity . The turnover of such property is regulated by norms of international private law and by legislation of the country where the property is located , the foreign ORG with respect to the country of location of the property acting on the basis of equal rights with other participants of these relations – with foreign juridical and natural persons . This approach has been consolidated in LAW , CARDINAL DATE , which , in accordance with generally recognised international practice , GPE may regard as a codified digest of customary norms of international law . ”

State immunity was also referred to in letter no . Pr-CARDINAL of DATE sent by the President of GPE , PERSON , to the Chairman of ORG , E S Stroev ( “ the Letter ” ) . The Letter substantiates the rejection by the President of LAW ORG . Paragraph CARDINAL of the Letter states :

“ LAW of GPE ( Article CARDINAL ) provides that the specific responsibilities of GPE and the subjects of GPE in relations regulated by civil legislation with the participation of foreign juridical persons , citizens and GPE are to be determined by the PERSON on the Immunity of the ORG and of its Property .

Therefore , it is hardly legitimate to include LAW property located abroad in LAW . Moreover , it should be noted that the concept of absolute immunity of a foreign ORG and of its property was reflected in LAW .

This concept does not find recognition in either the legislation of GPE ( Article CARDINAL , CARDINAL Code of Commercial Procedure of GPE , Articles CARDINAL and DATE , ORG ) , or in international treaties of GPE ( treaties on the encouragement and mutual protection of capital investments ) .

It should be taken into consideration that in modern circumstances absolute immunity may not be realised in practice and its adoption in the legislation of GPE will only impede the development of civil law relations with ORG participation . ”

Following the establishment of the foreign trade monopoly in GPE by LAW of DATE , the ORG , through ORG and its predecessors , carried out and controlled foreign trade . It established the types of entities entitled to participate in foreign trade and set limits on their participation , such as the nature of transactions they could enter into , the goods they could trade and import and export volumes . Trade with foreign States was to be carried out by ORG , which constituted agencies of ORG .

In the exercise of the foreign trade monopoly , GPE entered into numerous treaties on the legal status of ORG in other GPE . Treaties concluded by the GPE with socialist GPE provided for the mutual establishment of ORG , such as the following treaty concluded with the ORG .

According to LAW between the GPE and the ORG of CARDINAL DATE , either party can open a trade representation in the capital of the other party . The legal status of the representation is governed by the ORG to the LAW .

The Annex on ORG in the ORG and ORG in the GPE contains CARDINAL Articles . DATE that ORG would contribute to the development of trade between GPE . According to LAW is a constituent part of ORG . The trade representative and his / her deputies enjoy full diplomatic immunities and the LOC of ORG enjoy extraterritoriality . ORG may open branches upon the parties’ agreement .

The ORG further provides :

“ ORG acts on behalf of its Government . The Government is only responsible for the foreign trade transactions concluded or guaranteed by ORG in the State of sojourn and signed by a competent person .

Names of persons competent to perform legal acts on behalf of ORG , as well as the scope of the competence of each such person , shall be published in an official organ of the State of sojourn . ”

“ The Trade Representation shall enjoy all immunities belonging to a sovereign ORG which relate to foreign trade , with the following exceptions agreed upon by the parties :

( a ) disputes arising out of foreign trade transactions concluded or guaranteed by ORG in accordance with LAW within the territory of the State of sojourn , in the absence of an arbitration agreement or an agreement [ to submit to ] a different jurisdiction , are subject to the jurisdiction of the courts of that ORG . At the same time , the courts can not apply preliminary attachment measures ;

( b ) enforcement of final judgments that have entered into force against ORG with regard to such disputes is only allowed in respect of goods and claims outstanding to the credit of ORG . ”

The LAW and the LOC remain in force for GPE .

The relevant provisions of the DATE LAW ( “ the Basle Convention ” ) read as follows :

“ CARDINAL . Subject to the provisions of LAW , a ORG can not claim immunity from the jurisdiction of the courts of ORG if the proceedings relate to an obligation of the ORG , which , by virtue of a contract , falls to be discharged in the territory of the ORG of the forum .

Paragraph CARDINAL shall not apply :

in the case of a contract concluded between GPE ;

if the parties to the contract have otherwise agreed in writing ;

if the ORG is party to a contract concluded on its territory and the obligation of the ORG is governed by its administrative law . ”

GPE is not a party to LAW .

In DATE ORG was given the task of codifying and gradually developing international law in matters of jurisdictional immunities of GPE and their property . In DATE ORG adopted the ORG on ORG and Their Property based on restrictive immunity , that is a distinction between acts of sovereign authority ( acte jure imperii ) and acts of a private law nature ( acte jure gestionis ) . ORG that were used as the basis for the text adopted in DATE dated back to DATE . The relevant part of the text then read as follows :

“ CARDINAL . ...

( c ) “ commercial transaction ” means :

( i ) any commercial contract or transaction for the sale of goods or supply of services ;

( ii ) any contract for a loan or other transaction of a financial nature , including any obligation of guarantee or of indemnity in respect of any such loan or transaction ;

( iii ) any other contract or transaction of a commercial , industrial , trading or professional nature , but not including a contract of employment of persons .

NORP In determining whether a contract or transaction is a “ commercial transaction ” under paragraph CARDINAL ( c ) , reference should be made primarily to the nature of the contract or transaction , but its purpose should also be taken into account if , in the practice of the ORG which is a party to it , that purpose is relevant to determining the non - commercial character of the contract or transaction . ... ”

“ CARDINAL . If a ORG engages in a commercial transaction with a foreign natural or juridical person and , by virtue of the applicable rules of private international law , differences relating to the commercial transaction fall within the jurisdiction of a court of another ORG , the ORG can not invoke immunity from that jurisdiction in a proceeding arising out of that commercial transaction .

Paragraph CARDINAL does not apply :

( a ) in the case of a commercial transaction between GPE ; or

( b ) if the parties to the commercial transaction have expressly agreed otherwise .

The immunity from jurisdiction enjoyed by a ORG shall not be affected with regard to a proceeding which relates to a commercial transaction engaged in by a ORG enterprise or other entity established by the ORG which has an independent legal personality and is capable of :

( a ) NORP suing or being sued ; and

( b ) acquiring , owning or possessing and disposing of property , including property which the ORG has authorized it to operate or manage . ”

In DATE ORG adopted LAW and their Property . It was opened for signature on DATE . The final versions of LAW ) and CARDINAL and Article CARDINAL , as set out in the Convention , read as follows :

“ CARDINAL . ...

NORP In determining whether a contract or transaction is a “ commercial transaction ” under paragraph CARDINAL ( c ) , reference should be made primarily to the nature of the contract or transaction , but its purpose should also be taken into account if the parties to the contract or transaction have so agreed , or if , in the practice of the State of the forum , that purpose is relevant to determining the non - commercial character of the contract or transaction . ”

Paragraph CARDINAL does not apply :

Where a ORG enterprise or other entity established by a ORG which has an independent legal personality and is capable of :

( a ) NORP suing or being sued ; and

( b ) acquiring , owning or possessing and disposing of property , including property which that ORG has authorized it to operate or manage , is involved in a proceeding which relates to a commercial transaction in which that entity is engaged , the immunity from jurisdiction enjoyed by that ORG shall not be affected . ”

GPE signed the Convention on DATE . However , it has not ratified it yet .


Violation of Art. 5-1;Not necessary to examine Art. 5-4;Non-pecuniary damage - financial award

The applicant was born in DATE and lived in PERSON . He did not have a family and lived alone .

NORP In DATE the applicant was found guilty of criticising the NORP authorities and of expressing the view that GPE had been occupied by GPE and that it should reunite with GPE . On the basis of a medical report ordered by the NORP courts , he was declared mentally unsound and sent for forced treatment in a psychiatric hospital in eastern GPE . He was held there for DATE , after which he was released and obliged to continue out - patient treatment in PERSON .

NORP In DATE the sentence against the applicant was quashed and he was acquitted .

On an unspecified date the applicant learned that he could obtain compensation for his illegal conviction and detention in a psychiatric hospital and that there was no time - limit for filing such an action .

In DATE he initiated civil proceedings against ORG , claiming compensation . He argued , inter alia , that after the forced medical treatment administered to him in DATE he had started to experience health problems , in particular he had lost his memory , had become emotionally frozen and unstable and therefore had been forced to live on a very small disability allowance .

During the proceedings ORG questioned his fitness to plead before courts in view of his medical background .

The applicant disagreed with the defendant , but fearing that his action would not be examined , agreed to submit to a medical examination in order to prove the contrary .

On an unspecified date the applicant underwent a medical examination by a specialised commission ; however , the commission could not reach a conclusion . In a document dated DATE it concluded that it would be impossible to reach a conclusion without a thorough examination of the applicant under conditions of hospitalisation .

On DATE Judge PERSON of ORG examined the possibility of committing the applicant for an in - patient examination . As the applicant agreed to be hospitalised , the court ordered on DATE an in - patient medical examination to be conducted by ORG , ORG .

On DATE the applicant went to the hospital , where , to his surprise , he was deprived of all his belongings and hospitalised together with persons of unsound mind with limited freedom of movement . According to him , the hospital was no longer heated in DATE , and since the clothes he was provided with were too thin for DATE , he caught a cold and developed acute bronchitis . DATE after his hospitalisation he asked to be released in order to go home , change clothes and buy medicines for his cold . However , the doctors did not authorise him to leave the ward in which he was hospitalised .

It appears from the applicant 's medical record that during his stay in the hospital he was not visited by anyone . According to him he could not complain to anyone about his detention and could not even make a telephone call or complain by other means to persons outside the hospital .

He was seen by doctors for TIME , during the routine TIME round . The rest of DATE he was at the mercy of the paramedical staff who usually forced patients to carry out public utility work around the hospital . He was not obliged to work because of his age and poor physical condition .

On DATE the applicant was released from the hospital . According to him , it took a long time to recover but he preferred not to complain immediately for fear of adverse consequences . He submitted that he feared being placed in detention again or that the results of the examination would be falsified .

On DATE the psychiatric hospital issued a report in which it concluded that the applicant was suffering from a mental condition , but that his reasoning was unaffected and that he was fit to plead before courts .

On DATE the applicant lodged a criminal complaint with ORG of LOC , asking it to prosecute the doctors who had held him in detention against his will . He described the conditions in which he had been detained and named CARDINAL doctors who had refused his requests to be allowed to leave the hospital . He argued that those doctors had committed an offence under Article CARDINAL of LAW – illegal deprivation of liberty DATE and asked for compensation .

On DATE ORG dismissed the applicant 's complaint . The applicant challenged the dismissal before ORG .

On DATE Judge PERSON of ORG upheld the applicant 's appeal and found , inter alia , that ORG had failed to clarify the conditions under which the in - patient medical examination was initially intended to be carried out , and also the conditions in which it had in fact been carried out . ORG had also failed to examine the applicant 's written request by which he had expressed his consent to be hospitalised and the manner of hospitalisation to which he had consented . Judge PERSON ordered a new investigation into the applicant 's complaint .

On DATE ORG dismissed the applicant 's complaint , again without giving any new arguments . It only stated that the instructions of ORG had been followed , but that this did not influence the initial decision not to institute criminal proceedings . The applicant again challenged the dismissal .

On DATE Judge PERSON of ORG dismissed the applicant 's appeal , finding that his detention had been carried out in accordance with the court order of DATE .

The Code of Civil Procedure provides for CARDINAL possibility for a person to be submitted to a psychiatric examination against his or her will . LAW of the Code deals with the proceedings intended to limit the legal capacity of a person . According to LAW such proceedings can be initiated by the ORG , by a prosecutor or by the family of a person of unsound mind or who makes abusive use of alcohol or drugs . Article CARDINAL provides that a judge examining an action to limit a person 's legal capacity can order the person concerned to undergo a psychiatric medical examination . If the person does not comply with the order , the judge can decide , during a hearing at which a psychiatrist is present , to oblige the person to undergo a psychiatric examination despite his or her opposition .

Section CARDINAL of the Law on Psychiatric Assistance provides that a person can be hospitalised in a psychiatric hospital for treatment against his or her will only in accordance with the provisions of LAW or in accordance with the provisions of LAW of that law . In both cases , except for reasons of urgency , the hospitalisation must be ordered on the basis of a decision taken by a commission of psychiatrists .

Section CARDINAL of the same law sets out the reasons which can be relied upon for hospitalising a person for treatment against his or her will . It provides that a person suffering from a mental disorder can be hospitalised against his or her will , before a court judgment for that purpose has been issued , when the mental disorder is particularly serious and constitutes a risk to himself or herself or to others , when the mental disorder is of such a nature that the person is incapable of meeting his or her vital needs alone , and if left untreated , the mental disorder could cause serious harm to the health of the individual concerned .

Pursuant to section CARDINAL of the law the compulsory hospitalisation for treatment of a person in accordance with CARDINAL must be decided by a court . The hospital must apply to the court for permission , indicating in the application the reasons for which the hospitalisation is sought and attaching a copy of the decision of a commission of psychiatrists . Pursuant to section CARDINAL , the court examining the application must take a decision within DATE from the date on which the application was lodged and the person concerned has the right to participate in the hearing . If the person 's condition is serious and he or she can not come to the court , the judge is obliged to hold the hearing at the hospital . The judgment issued at the end of the hearing constitutes the basis for compulsory hospitalisation .

Section CARDINAL of the same law provides , inter alia , that a patient hospitalised in a psychiatric hospital with his consent can leave the hospital upon his or her request . On the other hand , a patient hospitalised against his or her will can leave the hospital only upon the decision of a commission of psychiatrists or on the basis of a court judgment .


The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in the town of Kandalaksha in GPE . He was represented before the Court by PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by PERSON , Representative of GPE at ORG .

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

In DATE the applicant decided to purchase a car in GPE . According to the applicant , he applied to ORG GPE таможня , “ the ORG ” ) for information concerning the applicable customs regulations and fees and was informed that the customs border between the CARDINAL states had ceased to exist , customs restrictions had been abolished , and therefore the NORP customs authorities no longer collected duties in respect of motor vehicles imported from GPE into GPE .

On DATE the applicant purchased a second - hand NORP car in GPE .

On DATE he brought the vehicle into GPE and passed through customs control in ORG without being required to pay any duties . The inspector in charge stamped the invoice for the purchase of the car to indicate that the customs formalities had been accomplished and no customs clearance was needed .

On DATE ORG registered the applicant ’s vehicle .

On DATE ORG informed the applicant that he had failed to comply with clearance requirements when he imported his motor vehicle into GPE and had to present his car to ORG before DATE to obtain clearance .

By a letter of CARDINAL DATE ORG notified the applicant that he had failed to pay customs duties and other related taxes on his imported car totalling ORG ( approximately ORG CARDINAL ) in time . In the same letter it required the applicant to pay a DATE penalty ( пеня ) for the delay in the payment of the above sum starting from the date on which the vehicle had entered GPE . The penalty amounted to ORG ( approximately ORG CARDINAL ) and continued to accrue . The sums were payable before DATE .

The applicant refused to comply with these decisions and challenged the above order before the director of ORG .

By a letter of DATE CARDINAL of the deputy directors of ORG informed the applicant that an investigation had been started into the alleged failure of an unidentified person to make a proper declaration in respect of a motor vehicle that had been imported from GPE into GPE and registered by ORG on DATE . The investigation established that the car in question had been purchased by the applicant , who had then applied for its registration . The applicant had allegedly repeatedly been summoned as a witness but had failed to appear .

The letter further stated :

“ ... it is true that the papers on the car which you have imported contain checks by ORG – a stamp stating ‘ customs control accomplished ; customs clearance not required’ , signed by a customs officer and sealed with his personal stamp . Yet the vehicle is not registered at the customs registry [ and ] the customs control has not , in fact , been performed . According to the directive issued by ORG of GPE on DATE ... , a customs control can not be finalised unless there is proof of the transfer of customs duties and other taxes collected in GPE to the federal budget of GPE . The customs officer sent no such request to the NORP authorities and , accordingly , such proof is missing .

The customs officer , who checked and stamped your documents did , therefore mislead you ... and will take responsibility for this . However , this does not absolve you of the obligation to clear duly the motor vehicle through customs in the proper manner .

As you failed to produce the vehicle within the fixed time - limit and did not perform the customs clearance in ORG in compliance with [ our ] orders of DATE and DATE , administrative proceedings for breach of customs regulations have been brought against you ... ”

The applicant stated that he had never received the order of DATE and that he had attended ORG once , on receipt of the first summons .

The applicant challenged the decision of ORG concerning the imposition of the duties and a fine in court .

On DATE the ORG of GPE ( Кандалакшский городской суд Мурманской области ) gave a judgment in the applicant ’s favour .

It found that the applicant ’s vehicle pertained to a category of goods originating in a third country that had been duly released into free circulation on the territory of GPE . It then had regard to Decree no . CARDINAL issued by the President of GPE on DATE , the resolution of the Government of GPE no . CARDINAL of DATE , Directive no . CARDINAL - CARDINAL/CARDINAL issued by ORG on DATE and other relevant instruments ( see the “ Relevant domestic law ” ) and held that they had abolished customs control and customs clearance in respect of the said category of goods .

The court rejected the defendant ’s argument that the requirement to pay the customs duties in the present case was justified by the fact that the implementation of the customs union between the CARDINAL states was not yet complete . With respect to the defendant ’s argument that the applicant had failed to present the necessary documents when passing through customs control as prescribed by the directive of ORG of CARDINAL DATE , the court noted that the directive in question was unclear and ORG had misconstrued it .

The court concluded that the applicant was , therefore , exempt from the customs duties and other fees and that the customs authorities’ order was unlawful .

On DATE , on an appeal by ORG , ORG quashed the above judgment and substituted its own decision .

It agreed with the finding of the court below that the applicant ’s car had originated in a third country and been duly released in GPE , and the applicant had properly declared it and passed through customs control in GPE . However , ORG considered that ORG had erred in law in holding that the category of goods to which the applicant ’s car belonged was unconditionally exempt from customs clearance . It referred to the incomplete implementation of the customs union and the applicant ’s failure to produce the documents required by the aforementioned directive of ORG and ruled that the claims of ORG were well - founded . It accordingly dismissed the applicant ’s complaint .

On an unspecified date ORG brought a court action against the applicant for the recovery of the amounts due in respect of the customs duties and surcharges .

On DATE ORG granted its claims in part . It noted that the court decision of DATE was res judicata in the applicant ’s case and therefore the applicant was under an obligation to pay the customs duties amounting to ORG ( approximately LAW ) . However , it absolved the applicant of payment of the surcharges after noting that his failure to pay the customs duties in time had been due to the general uncertainty and ambiguity of the regulations governing the import of goods from GPE to GPE .

On DATE ORG upheld the first instance judgment on appeal .

According to the applicant , he had to pay the sum due by instalments because of its size . He discharged his obligation in full in DATE .

LAW provides , as follows :

“ Import customs duties , taxes and contributions of equivalent value on goods originating in a third country shall be levied in the budget of ORG which is the country where such goods are consigned . ”

Article CARDINAL § CARDINAL of the ORG provides , so far as relevant , as follows :

“ The Contracting Parties ... shall abolish customs control at the border between them ... provided that reliable customs control is exercised at their external borders ” .

In line with the Agreement , on CARDINAL DATE the President of GPE issued decree no . CARDINAL abolishing customs control at the border between GPE and GPE .

On DATE the Government of GPE adopted resolution no . CARDINAL implementing the above decree . In particular , it ordered that ORG to abolish customs control and customs clearance at the border between GPE and GPE in respect of , inter alia , goods originating from GPE or that had been released into free circulation in GPE .

On DATE ORG GPE issued directive no . CARDINAL - CARDINAL/CARDINAL exempting goods originating in a third country and duly released into free circulation in GPE from customs duties in GPE . In order to obtain the exemption a document had to be produced proving that the import duties paid to the NORP customs authorities had been transferred into the budget of GPE . Failure to provide such proof would result in the imported goods of the said category being subject to customs clearance in GPE .