Violations of Art. 3;Violation of Art. 5-3;Violation of Art. 5-4;Violations of Art. 6-1;Violation of Art. 6-3-b and 6-3-c;No Violation of Art. 7;Violations of Art. 8;Non-pecuniary damage - award;Pecuniary damage - claim dismissed

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens

The applicant was born in DATE and lives in GPE .

On DATE Mr C. , a NORP diplomatic officer , was apprehended by ORG of GPE ( “ the ORG ” ) while receiving certain materials from the applicant who was then deputy head of ORG in ORG of GPE . On DATE Mr C. was declared persona non grata and left GPE .

On DATE at TIME a group of CARDINAL armed ORG officers entered and searched the applicant ’s flat . They apprehended the applicant and escorted him to the FAC remand prison .

On DATE ORG dismissed the applicant for serious breaches of the NORP legislation on the civil service .

On DATE investigators from ORG interrogated the applicant as a suspect in a high treason case .

On DATE a deputy Prosecutor General remanded the applicant in custody . The applicant ’s detention was subsequently extended on several occasions .

On DATE the applicant was charged with high treason in the presence of his legal - aid counsel , PERSON . He was accused of having disclosed classified information to a NORP intelligence agent .

On DATE the applicant retained Mr PERSON as his defence counsel .

On DATE , DATE and CARDINAL DATE the investigator ordered seizure of the applicant ’s car and garage , MONEY and a computer from his home , as security in respect of possible forfeiture of the applicant ’s property following a conviction .

On DATE , DATE and CARDINAL DATE the applicant attempted to challenge the orders authorising his continued detention on remand .

On DATE and DATE ORG examined the applicant ’s complaints and rejected them as unsubstantiated . The court found that the investigator had correctly imposed the preventive measure , having regard to the gravity of the charge and the applicant ’s potential to abscond or interfere with the investigation .

On DATE the pre - trial investigation was completed and the applicant was granted access to the case file .

On DATE the bill of indictment was served on the applicant . The applicant was refused permission to take a copy of the indictment to his cell because the document contained classified information . The applicant could examine the indictment at the special department ( спецчасть ) in the remand centre .

On DATE ORG found the applicant guilty as charged , sentenced him to CARDINAL years’ imprisonment and ordered confiscation of his property .

On DATE and other dates the applicant and his lawyers appealed against the conviction .

On DATE ORG of GPE quashed the conviction and remitted the case to the trial court for a fresh examination . It found as follows :

“ In finding [ the applicant ] guilty of the offence under LAW , the [ first - instance ] court noted that ... DATE and DATE [ the applicant ] had ... communicated information and documents containing ORG secrets to the NORP intelligence service . The [ first - instance ] court gave only a general list of information and documents ... , without specifying which information and documents and when [ the applicant ] had communicated . As the offences imputed to [ the applicant ] were continuous in time and spanned the period from DATE to DATE , during which period NORP legislation evolved , the determination of these issues is of crucial importance for the case .

Pursuant to LAW ... the list of information constituting ORG secrets was to be defined in a federal law . Such a list was first established in the federal law ‘ On the introduction of changes and amendments to the State Secrets Act’ of DATE . Hence , until that date there was no list of information constituting ORG secrets that met the requirements of the LAW . As there is no indication in the judgment about when exactly [ the applicant ] transmitted information and documents , it is impossible to reach the correct conclusion as to which of the offences imputed to the applicant were committed during the period when the federal law containing a list of ORG secrets and compatible with the requirements of the LAW was in force .

The case file shows that ... experts from ORG prepared their report [ on the classified nature of the information transmitted by the applicant ] on the basis of LAW of DATE , the President ’s decree of CARDINAL DATE and ORG resolution of DATE , and the expert from ORG of ORG of ORG worked on the basis of LAW of DATE , LAW of DATE and the President ’s decree of CARDINAL DATE .

However , it has to be taken into account that LAW of DATE on which the above experts relied contained no list of information constituting ORG secrets . LAW ( text of DATE ) referred only to the information that could be classified as ORG secrets . The conclusions of these reports ... have to be re - assessed with regard to the above considerations .

Taking into account that the actus reus of the offence under LAW only comprises acts involving ORG secrets , the [ first - instance ] court should have determined which information and documents listed in the indictment and communicated by [ the applicant ] could have been considered as ORG secrets in accordance with the requirements of the laws in force at the material time . ”

On DATE ORG began hearing the applicant ’s case . Presiding Judge PERSON and CARDINAL lay judges sat on the bench .

The applicant applied to the court for release pending trial . On DATE the court rejected the application . It held that detention on remand could be imposed on a person charged with high treason on the sole ground of the dangerousness of the offence and that there were therefore no grounds to release the applicant .

On DATE the applicant requested the court to change the measure of restraint applied to him . On DATE the court dismissed the request , finding that the dangerousness of the offence alone was a sufficient ground to remand him in custody . On DATE the applicant appealed against that decision to ORG . The appeal was not examined . According to the applicant , by a letter of DATE , Judge PERSON of ORG informed Judge PERSON , President of ORG , that “ there had been no grounds to lodge an appeal against that decision of the court ” . A copy of the letter was not made available to the ORG , but the Government did not dispute the applicant ’s rendition of the letter ’s content .

On DATE one of the lay judges was replaced by the substitute lay judge .

On DATE or DATE the acting President of ORG ordered a change in the court ’s composition , referring to Judge PERSON ’s prolonged sick leave . He assigned Judge PERSON and CARDINAL new lay judges to sit in the case .

On DATE the applicant challenged the new composition of the bench as unlawful and asked for copies of the decision officialising the change and of documents confirming the lawfulness of the appointment of new lay judges , as no reasons for replacement of the lay judges had been given . On DATE Judge PERSON dismissed the complaint , finding that the case had been reassigned by order of the acting President of ORG and that no procedural decision on that matter was required .

The applicant appealed to ORG . On DATE ORG dismissed the appeal . It found that Judge PERSON had been on sick leave from DATE to CARDINAL DATE and then from DATE to DATE , and that the decision on her replacement had therefore been lawful and justified . ORG did not mention the appointment of new lay judges .

On DATE the applicant again applied for release , claiming his innocence . ORG dismissed the application , finding that the measure of restraint had been imposed in accordance with the law and there was no reason to change it . The applicant appealed to ORG . The appeal was not examined .

On DATE the proceedings were adjourned until DATE , pending translation of various documents from NORP into NORP . The applicant challenged the decision on the adjournment of the proceedings , which had the effect of extending his detention ; ORG dismissed the challenge . On DATE ORG dismissed the appeal concerning the adjournment of the proceedings as unsubstantiated .

On DATE the entire bench was replaced and the case was assigned to Judge PERSON and CARDINAL new lay judges . No reasons for the replacement were given .

The applicant unsuccessfully challenged the substitution of the bench .

On DATE the applicant appealed against the rejection of his challenge to ORG , which dismissed the appeal as unsubstantiated on DATE .

On DATE the President of ORG instructed Judge PERSON to accept the case . Judge PERSON and both lay judges were replaced by Judge PERSON and CARDINAL new lay judges , PERSON and N.A. No reasons were indicated .

The applicant challenged the new bench ; his challenge was dismissed on DATE . His request to have the substitute lay judge appointed in accordance with LAW was also refused .

An appeal to ORG was examined and rejected in a summary fashion on DATE .

On DATE lay judge PERSON stepped down for family reasons and was replaced by lay judge A.M.

The applicant unsuccessfully challenged the replacement . His appeal was dismissed in a summary fashion by ORG on DATE .

On DATE , DATE and DATE the applicant lodged CARDINAL further applications for release . Those were rejected by ORG on DATE . Each time the court determined that the measure of restraint had been imposed lawfully and there were no grounds to change or revoke it .

On DATE and DATE and in DATE the applicant filed appeals against these decisions with ORG .

On DATE ORG examined all CARDINAL appeals and upheld the decisions of ORG .

On DATE ORG convicted the applicant of high treason committed in the form of espionage , an offence under LAW of GPE .

As regards the actus reus of the offence , the court found that during his long - term diplomatic mission in GPE in DATE the applicant had consented to informal co - operation with GPE ORG ( “ the KCIA ” ) in return for regular payment . In fulfilment of the ORG ’s instructions , DATE and DATE the applicant had arranged CARDINAL meetings with the ORG ’s agent , Mr C. , and communicated to the ORG the following documents collected at the ORG ’s request :

“ -secret information constituting ORG secrets , on GPE ’s position and approach to the friendly relationship , friendship and co - operation with ORG ( the ORG ) , set out in CARDINAL draft treaties on the basis of friendly relationships between the CARDINAL states : in DATE the draft treaty on the basis of a friendly relationship between GPE and ORG ; in DATE – the draft treaty on friendship and co - operation between GPE and the ORG ,

- in DATE , secret information constituting ORG secrets that was contained in the updated report of ORG of the ORG on military co - operation between GPE and GPE ... which he had copied and kept in his office at the ORG until communication ;

- secret information constituting ORG secrets in the field of military co - operation :

in DATE on the beginning of implementation of the inter - governmental treaty , contained in the letter addressed to the NORP Ambassador in the ORG , dated DATE ;

in DATE on the NORP proposal to initiate closed negotiations in the field of military co - operation ;

in DATE on the position of ORG ...

on DATE – information in the area of politically sensitive relationships between NORP and ORG , contained in CARDINAL documents of DATE ...

on DATE – on termination of the NORP - NORP treaty on military intelligence , received by the ORG from ORG to the ORG on DATE ;

- other information which did not contain State secrets , by communicating copies of internal documents :

in DATE : copies of documents on negotiations between deputy foreign ministers of GPE and the ORG ... list of diplomats of ORG , report on certain developments in the political life of the ORG ... ;

in DATE : copies of ... a report by ORG in GPE on the political situation in the ORG in DATE , report on the situation in the ORG following the death of PERSON , list of diplomats of ORG in GPE ... list of NORP citizens working in the ORG ;

in DATE : copies of the DATE directory of the ORG management cadres ... a draft press - release following a visit by a ORG delegation to GPE and the list of the delegation members ...

in DATE : copies of the DATE directory of the ORG management cadres ... contract between the NORP ORG concern and the foreign relations committee of the ORG ...

in DATE : copies of the DATE directory of the ORG management cadres ... updated report on the situation in ORG ... report by ORG on the situation in the ORG , information on the members of a delegation accompanying the Vice - Prime Minister of GPE on a forthcoming visit to GPE ...

In addition , DATE and DATE Mr PERSON orally communicated to the NORP intelligence no fewer than CARDINAL pieces of information on various aspects of inter - State relationship that did not contain State secrets .

Having received from PERSON in DATE the list of information that was of interest for the KCIA , PERSON copied and communicated to the NORP intelligence service certain internal documents , such as protocols and co - operation treaties between GPE and the ORG in various areas . ”

The court established that the ORG had paid the applicant CARDINAL MONEY in remuneration .

The court founded its findings on , in particular , the applicant ’s own statements , obtained in DATE immediately following his arrest , and statements by several witnesses . Most witnesses were identified in the judgment only by their CARDINAL initials , i.e. the first letters of their first , father ’s ( patronymic ) and last names . For some witnesses , only the first letter of their last name was given .

Witness “ K.G.B. ” stated in his pre - trial deposition that virtually all documents concerning GPE ’s bilateral relationships with other countries and appraisal of the political and economic situation in these countries , which had been prepared within ORG , had contained sensitive information and their disclosure or communication to other states had been highly undesirable . The court noted that on DATE the applicant , when taking up his duties at ORG , had signed an undertaking not to disclose ORG or work - related secrets . In their pre - trial depositions witnesses “ ORG ” and “ I.A.T. ” confirmed that the applicant had had access to sensitive documents which had been of interest to NORP and that PERSON affiliation with the intelligence service had been common knowledge among experts in NORP issues . Their depositions were read out in court and witness “ T.G.D. ” also made oral submissions to the same effect . Both “ ORG ” and “ T.G.D. ” testified that NORP had had good knowledge of issues which they were not supposed to have been aware of .

The court further noted that , according to information from ORG of GPE ( СВР PERSON ) and ORG of ORG ( ORG ВС ORG ) , during his work in GPE DATE and DATE the applicant had had contacts with employees of the NORP intelligence services and had negligently discussed sensitive matters in unprotected areas . In DATE it was discovered that the NORP intelligence service regularly received confidential information to which the applicant had access and that the applicant maintained private contacts with PERSON in return for remuneration . Witness “ PERSON , an employee of ORG , testified to the court that in DATE he had contacted the applicant and advised him of PERSON official mission as a representative of the LAW in GPE . The applicant had acknowledged that he had been aware of this fact .

Referring to a letter from the Counter - intelligence ORG of ORG of GPE ( ORG PERSON ) of CARDINAL DATE , the court established that in DATE ORG had provided ORG with copies of a “ draft order on the organisation of the work of ORG agents , resident in GPE in DATE ” and the applicant ’s “ personal residence file ” , from which it followed that the applicant had been recruited by the ORG during his stay in GPE and enlisted as a functioning agent of that service .

The court relied on the experts’ findings in establishing that the information communicated by the applicant had contained ORG secrets . It found as follows :

“ The court agrees with the experts’ conclusions because the [ study ] was performed by competent persons in compliance with the rules of criminal procedure and [ has been ] scientifically proven . According to the experts , the information [ disclosed ] reveals the substance of GPE ’s foreign policy and co - ordination agreements with foreign states in the field of military co - operation and intelligence and also contains politically sensitive data .

The arguments put forward by the defendant and his lawyer about a lack of competence on the part of the experts can not be considered substantiated , because the expert study was carried out by a panel that included experts designated by [ the applicant ] and his defence ; at their request the experts who had been on the expert panel at the pre - trial investigation stage took part in the court hearing and supplied [ the court ] with their written conclusions and clarifications ... ”

Finally , the court dismissed in the following terms the applicant ’s argument that he could not be held liable for disclosure of ORG secrets because there had been no list of classified information prior to the amendment of LAW of DATE :

“ Pursuant to section CARDINAL of LAW of DATE , the list of information constituting ORG secrets is the aggregate of categories of information which can be classified as ORG secrets ... This definition was included in the terminology part [ of the law ] in order to bring its original wording into compliance with LAW . Since the information constituting ORG secrets can not be explicitly enumerated in the law , the approach chosen was that the list was to be understood as an aggregate of the relatively generic categories of information described in section CARDINAL of the new law [ i.e. that of DATE ] .

Hence , there is merely an unimportant semantical difference between section CARDINAL of LAW in its DATE wording and that of DATE . By no means does it imply that there were no legal instruments countering encroachments upon the fundamentals of the constitutional structure and the security of GPE until DATE ...

Nor are the arguments to the effect that the actus reus of the offence under LAW of LAW only comprises acts involving ORG secrets based on the law . The object of espionage may include information constituting ORG secrets , as well as other information that is being collected and transmitted at the request of a foreign intelligence service for use detrimental to the external security of GPE ... ”

Having regard to the applicant ’s clean criminal record , age , state of health , lengthy detention in custody , positive work references and the absence of aggravating circumstances , the court invoked the “ special - circumstances ” clause of LAW and sentenced him to a shorter term than that provided in the relevant sanction , specifically to DATE and CARDINAL months’ imprisonment in a strict - security correctional colony , with account for the time served from DATE , and confiscation of his property .

On DATE and other dates the applicant and his CARDINAL lawyers appealed to ORG against the conviction . They alleged violations of the applicant ’s rights as guaranteed by LAW and various LAW provisions . The points of appeal touched on substantially the same issues as those raised before this ORG .

On DATE ORG upheld the conviction . The court rejected the arguments by the defence and found that the first - instance court and the investigators had fully complied with both national and international law throughout the proceedings . There had been no violations of law capable of rendering the judgment unfounded or unlawful . ORG reproduced verbatim the city court ’s reasoning concerning liability for disclosure of ORG secrets .

From DATE to CARDINAL DATE the applicant was held in the FAC remand prison , run by ORG .

According to the ORG , the applicant was held in a CARDINAL - person cell measuring QUANTITY m. The cell was equipped with heating , mandatory ventilation , a window that could be opened , furniture , a fridge , a TV set , a sink and a lavatory . The applicant had an individual sleeping place and bedding . He received food CARDINAL times a day in accordance with standard norms . The applicant was given cutlery and personal hygiene items , as well as books and magazines from the library . He could exercise outside for TIME a day .

In the applicant ’s submission , the cell of QUANTITY was designed for CARDINAL inmates and contained CARDINAL bunk beds fixed to the concrete floor and walls . He shared the cell with CARDINAL other detainees in DATE and then from DATE to DATE . The furniture consisted of CARDINAL small tables and an open shelf , which the detainees mockingly referred to as “ a TV set ” because all the items on the shelf were on display . Contrary to the ORG ’s assertion , there was no fridge or TV set .

The lavatory in the corner of the cell had no flush system and inmates filled a pail with water from the sink to eliminate waste . The toilet was not separated from the living area ; the applicant had to use the toilet and apply his treatment for haemorrhoids in front of his cellmates and the wardens who observed them through a peephole in the door . Detainees cleaned the cell themselves . No broom , dustbin or detergent was given to them . Once in a while they received CARDINAL g of sodium hydrate to disinfect the lavatory . The applicant had access to the showers DATE and received CARDINAL g of laundry soap for washing .

The cell was dimly lit by CARDINAL QUANTITY bulbs , fixed in the ceiling and covered with metal bars and opaque glass . The artificial light was never switched off . The window pane also had frosted glass . The exercise courts were located on the roof of the facility and measured QUANTITY m. The external walls were QUANTITY high and the opening to the sky was protected with metal bars and netting .

On DATE the applicant lodged a complaint with ORG of GPE about the general conditions of his detention , inadequate medical assistance , meagre food provisions and lack of privacy in the cell . On DATE the applicant was visited by the head of the remand prison and senior medical officer and asked about the reasons for lodging the above complaint . The head of the prison had a printed copy of the applicant ’s complaint , originally hand - written , which had never been addressed to the prison administration .

On DATE ORG invited the applicant to identify the authority against which he was complaining and to pay the court fee by DATE . The applicant received this decision only on DATE . On DATE the court disallowed the applicant ’s complaint because the instructions of DATE had not been fulfilled ; the copy of that decision was served on the applicant on DATE and on DATE his conviction became final .

The applicant was transported from the remand centre to the courthouse and back CARDINAL times .

NORP The prison vans in which the applicant was transported had a passenger cabin which was QUANTITY long , QUANTITY wide , and QUANTITY high . The cabin was divided into CARDINAL multi - occupancy cubicles , designed for CARDINAL inmates each , and CARDINAL single - occupancy cubicle . The cubicles were equipped with hard benches . In addition to the detainees’ cubicles , the cabin contained a CARDINAL wide lobby for QUANTITY police officers . According to the Government , the applicant was placed in a single - occupancy cubicle on the basis of a written request by the prison administration , in order to prevent him from communicating with other detainees ( a copy of that request has not been provided to ORG ) . The applicant submitted that he was usually placed in a multi - occupancy cubicle with CARDINAL other detainees , who had stood or sat on one another ’s laps . Even when he was confined to the tiny solitary cubicle , he had had to share it with another person and they had taken turns sitting on each other ’s laps . He was never transported alone and he could not be isolated from others because the van was so overcrowded .

The Government submitted that the prison - van heaters and interior lights had been powered by the van engine . The vans were naturally ventilated through the emergency hatch and additional hatches with controlled airflow . The passenger cabin was cleaned and disinfected on a DATE basis . The applicant insisted that the natural flow of air through the hatches was insufficient and that it was stiflingly hot in DATE . Moreover , as the hatches were located in the wardens’ lobby , the latter opened and closed the hatches on whim . In DATE there was no heating when the engine was not running , and detainees were locked for TIME inside the extremely cold van at assembly points . The floor of the cabin was extremely dirty and covered with cigarette butts , food crumbs and packaging , plastic bottles and bags with urine ; no access to the toilet was possible during the transport .

According to the Government , the travel time from FAC to ORG and back did not exceed TIME . The applicant pointed out that for attendance at court hearings he had usually been taken out of the detention centre TIME but was never brought back until TIME . The road from ORG to the FAC facility took much TIME because the van called en route at either the PERSON or GPE remand prison , both of which served as assembly points for detainees . As a result , the travel time was DATE . By way of example , the applicant gave the following figures : on DATE the travel time from the court to the FAC prison was QUANTITY ; DATE ; CARDINAL DATE CARDINAL min ; CARDINAL DATE CARDINAL min ; DATE CARDINAL min ( to the court ) and QUANTITY ( from the court ) ; DATE CARDINAL min ; CARDINAL DATE CARDINAL min ; CARDINAL DATE CARDINAL min ( until TIME on DATE ) .

The applicant gave the following account of the conditions of his transport in a complaint of DATE addressed to ORG ( resent on DATE ) :

“ On DATE [ we ] left the premises of ORG around TIME , and I was brought back to the ORG ( Lefortovo ) remand prison at TIME on TIME , that is , TIME . During the entire period I was kept in an unheated van [ used ] for the transport of detainees , although the outside temperature was approximately -CARDINALo C , without anything to eat or drink and without access to a toilet . Each cubicle of the van contained CARDINAL persons : they had to stand or to sit on each other ’s laps . Following this ‘ trip’ I had the symptoms of flu , I had an acute attack of gastroduodenitis , [ suffered from ] a headache and other symptoms resulting from a lengthy period of sitting on cold benches in the frost . This situation was in no way exceptional : on DATE ] , for example , we started from the courthouse of ORG at TIME , although the court hearing ended at TIME We arrived at the detention centre at CARDINAL p.m .... Similar incidents also occurred thereafter : instead of TIME normally required for a ride , [ the journey ] to the remand centre takes , as a rule , TIME . ”

On DATE the commander of the police convoy regiment replied to the applicant that an unidentified regiment officer who had violated the applicable regulations had been disciplined .

On DATE the applicant unsuccessfully attempted to complain about the conditions of transportation to the administration of the remand prison . A similar complaint lodged with the Prosecutor General ’s office on CARDINAL DATE evoked the following response from ORG of the ORG on DATE :

“ The delays in transportation were due to objective factors . Measures have been undertaken to avoid similar delays in the future ” .

DATE . In DATE the applicant complained of degrading and inhuman conditions of transport to the trial judge . His statements were entered in the trial record and the judge promised to get in touch with the relevant authorities to find a way to improve the situation .

The applicant also mentioned the appalling conditions of his transport to and from the remand centre in his complaint of DATE to ORG ( see paragraph CARDINAL above ) .

On DATE of court hearings the applicant was held in the convoy cells of ORG . On CARDINAL occasions – on DATE , CARDINAL , DATE , DATE and DATE , DATE and DATE , CARDINAL and DATE , DATE , CARDINAL and DATE – the applicant was brought to the courthouse but no hearings were held , and he remained in the convoy cell for DATE .

According to the Government , the convoy cells had standard dimensions of QUANTITY ( width ) by QUANTITY ( depth ) by QUANTITY ( height ) and the applicant was held there alone to prevent him from communicating with other detainees . The applicant submitted that the convoy cell measured QUANTITY and was nicknamed a “ stone tube ” ( « каменный стакан ORG ) because the floor and walls were covered with an abrasive concrete lining and the height was almost twice the width or depth . He was never alone in the convoy cell and occasionally he had to share it with a consumptive inmate .

The Government indicated that convoy cells were equipped with a bench fixed to the floor , mandatory ventilation , heating , lighting and a metal door with a peephole . In cold seasons the average internal temperature was DATE C. Cells were cleaned daily and disinfected DATE . The convoy LOC had a toilet room , to which detainees had access at their discretion .

The applicant submitted that the bench fixed to the floor could barely accommodate CARDINAL persons ; the third detainee had to remain standing . The cell was lit by a small bulb behind metal bars that provided insufficient light to read by . The floor and the bench were dirty and covered with cigarette butts , food waste and torn paper . The cell had no windows and the only opening was the peephole in the door . Heating and the mandatory ventilation were not available ; the air was heavy with cigarette smoke from prisoners smoking in the cell and police officers smoking outside . A visit to the toilet was possible CARDINAL times a day at the warden ’s order ; from within the cell it was impossible to call the warden . The applicant never received any food ( hot meal or a dry ration ) in the convoy cell .

The applicant had no family visits from DATE to DATE .

On DATE the applicant ’s wife asked the investigator for permission to see her husband . Her request was refused on DATE with reference to the nature of the applicant ’s case and the gravity of the charge against him . The investigator considered a visit “ inopportune ” .

On DATE the applicant asked the investigator to allow his wife to visit him . DATE his request was refused , as the visit was deemed to be “ inopportune at that moment ” .

DATE . On DATE the applicant ’s wife complained about the investigator ’s decision to the Prosecutor General ’s office . By a letter of DATE , the Chief Military Prosecutor ’s office responded that by law the investigator had full discretion in the matter of family visits and that he had acted within his competence .

On DATE the applicant wrote a complaint to the Chief Military Prosecutor ’s office . He indicated , in particular , that he had not seen his family for DATE and that the investigator had offered to permit him a family visit in exchange for withdrawal of a judicial complaint concerning the unlawfulness of his detention . On DATE the prosecutor ’s office responded that ORG had been asked “ to settle the issue ” of family visits .

On DATE the applicant applied for permission for his wife and daughter to visit him . Permission was granted to his daughter only and on DATE she paid him a visit .

On DATE the applicant asked for permission to see his wife . On DATE his wife was allowed to see him .

In the subsequent period the applicant ’s family was allowed to visit him no more often than twice a month , each visit lasting up to TIME . During the visits the applicant was separated from his relatives by a glass partition and talked to them through an interphone . A warden was present .

The applicant had no family visits from DATE to CARDINAL DATE .

On DATE the applicant ’s daughter asked to see her father . She was refused because on DATE she had already come to see him with her mother , which counted as CARDINAL visits , whilst the law only provided for CARDINAL visits by relatives DATE .

On DATE the applicant ’s wife complained about the refusal to ORG and ORG office alleging , inter alia , a violation of LAW . DATE she was granted permission to visit the applicant .

DATE and DATE no permits for family visits were issued .

NORP Throughout the proceedings the applicant ’s lawyers were permitted to visit him on the basis of permits that were valid for CARDINAL visit only . Such permits were issued by investigators from ORG at the pre - trial investigation stage or by a judge during the trial .

On DATE and CARDINAL May CARDINAL PERSON , CARDINAL of the applicant ’s lawyers , applied to ORG of GPE for an unrestricted permit to visit the applicant . In both cases the registry clerk gave her a printed permit valid for “ [ one ] visit ” . However , yielding to PERSON demands , on both occasions the clerk made handwritten corrections , changing the singular to the plural .

On DATE the staff of the FAC remand centre treated ORG document as a single - use permit because it had been corrected by hand , whereas it originally referred to a single visit .

On DATE PERSON attempted to file a written request to the director of the FAC prison for an unrestricted permit to visit the applicant . The facility staff refused to accept the request and told her that she could not see the director .

Subsequently a deputy director of the FAC prison visited the acting director of legal services office no . CARDINAL , where PERSON worked , and told her that PERSON had forged the permit to visit the applicant ; he threatened PERSON with criminal prosecution . PERSON denied all those allegations .

On DATE ORG issued PERSON with a printed permit valid for “ [ several ] visits ” to the applicant . According to the Government , on DATE PERSON was refused permission to visit the applicant as she did not provide a mandate by her legal services office for the defence of his interests .

On DATE , DATE and DATE PERSON , one of the applicant ’s lawyers , unsuccessfully applied to the trial court for a multiple - use permit to visit the applicant .

On DATE ORG held that section QUANTITY of LAW , which allowed the authorities to require that a visit of a detainee by his advocate be authorised by the investigator or trial court , was incompatible with the constitutional right to legal assistance in criminal cases , in that it made the exercise of the right to defence conditional on a discretionary decision by the authority in charge of the case ( Ruling no . CARDINALP ) .

On DATE , after the conviction had become final , Ms GPE received an unrestricted permit to visit the applicant .

During the pre - trial investigation the bill of indictment was kept in the special department of the remand centre . The applicant could access it with the written consent of the administration . His lawyers obtained access to the bill of indictment after the beginning of the trial , at the special registry of ORG .

Any exchange of documents between the applicant and his lawyers was only possible through the remand centre administration and with its written consent . The administration perused the documents before passing them on .

During the trial the applicant could make notes only in special notebooks that were deposited with the indictment at the special registry of ORG . The same requirements applied to the applicant ’s lawyers , who were directed to keep all case - related files , notes and copies of complaints at the special registry .

According to the applicant , he was chained by his hand to a table or chair when studying the case file on the LOC of ORG after the court session on DATE was over . He had to assume an uncomfortable posture and after a while his chained hand went numb . Moreover , when he was chained by his right hand , he could not use a pen and make notes . The time afforded for studying the case file was granted at the discretion of wardens . The Government submitted that the applicant had only been handcuffed on his way to and from the hearing .

On DATE the applicant lodged a complaint about the inadequate conditions for preparation of the defence with ORG . The complaint remained unanswered .

LAW of the Russian NORP Federalist Socialist Republic of CARDINAL DATE ( in force until DATE ) provided as follows :

“ ( a ) Treason , being an intentional act of a GPE citizen undermining the sovereignty , territorial integrity , national security or defence of the GPE , in particular , desertion to the enemy , espionage , communication of a ORG or military secret to a foreign state , ... shall be punishable by DATE imprisonment and confiscation of property or by the death penalty and confiscation of property ... ”

“ Communication of State or military secrets , as well as their collection or storage with a view to communicating them to a foreign state , a foreign organisation or their agents , and also communication or collection of other information at the request of a foreign intelligence service for the purpose of using them to harm the interests of the GPE , committed by a foreign national or a stateless person , shall be punishable by DATE imprisonment and confiscation of property or by the death penalty and confiscation of property . ”

LAW of the Russian Federation of DATE ( in force from DATE ) provides as follows :

“ High treason , that is , espionage , disclosure of ORG secrets or assistance otherwise provided to a foreign state , a foreign organisation or their representatives for ... subversive activities undermining the external security of GPE , committed by a NORP national , shall be punishable by DATE imprisonment and confiscation of property ... ”

“ Communication of State secrets , as well as their collection , theft or storage with a view to communicating them to a foreign state , a foreign organisation or their representatives , and also communication or collection of other information at the request of a foreign intelligence service for the purpose of using them to harm the external security of GPE , committed by a foreign national or a stateless person , shall be punishable by DATE imprisonment . ”

The LAW of DATE provides :

“ CARDINAL . Laws must be officially published . Unpublished laws are not to be applied . No legal acts interfering with the rights , freedoms and obligations of a man and citizen may be applied unless they are officially published and publicly available ” .

“ CARDINAL . Everyone has the right to freely search , obtain , impart , generate and disseminate information by all lawful means . The list of information constituting ORG secrets shall be defined in a federal law . ”

On DATE the State Secrets Act ( Law no . DATE ) was enacted . Section CARDINAL provided as follows :

“ The following information may be classified as a ORG secret :

( CARDINAL ) information in the field of the economy , science and engineering ...

( CARDINAL ) information concerning foreign policy and trade :

[ information ] about the foreign policy ... of GPE in respect of which its premature disclosure may harm [ the ORG ’s ] interests ; ... ”

Section CARDINAL described the procedure for classification of information as ORG secrets . ORG to classify information was delegated to the heads of ORG agencies . The LAW did not contain a list of such officials , which was to be approved by the President . The President was also to approve a List of information classified as ORG secrets , which was to be officially published .

On DATE , CARDINAL and DATE ORG , noting that the absence of a list of classified information “ deprived the law - enforcement agencies of a legal basis for the performance of their duty to protect the security of the ORG , community and individuals ” , repeatedly petitioned the ORG to prepare for the President ’s approval a draft decree containing the list of classified information .

On DATE the President approved Decree no . CARDINAL “ On the list of information classified as ORG secrets ” . Paragraphs DATE of the list provided for classification of information concerning foreign policy and trade and designated ORG , ORG , ORG , ORG and other agencies as bodies authorised to classify such information .

On DATE ORG examined the compatibility of LAW with the LAW and found as follows :

“ CARDINAL ... The ORG may classify as ORG secrets information in the field of defence , economic and other activities , disclosure of which may undermine national defence and the security of the ORG . In this connection LAW of the LAW provides that the list of information constituting ORG secrets is to be adopted in the form of a federal law . The ORG may also determine forms and measures for the protection of ORG secrets , including by way of establishing criminal liability for its disclosure and communication to a foreign ORG .

However , by virtue of the above - mentioned constitutional provision , criminal liability for disclosure of ORG secrets to a foreign state is only justified on condition that the list of information constituting ORG secrets is established in an officially published and universally accessible federal law . Pursuant to LAW , no law - enforcement decision , including a conviction by a court , may be grounded on an unpublished legal act .

The requirements of LAW are fulfilled by LAW of DATE which defines the concept of ORG secrets and indicates the information classifiable as ORG secrets .

Accordingly , establishing criminal liability for disclosure of ORG or military secret to a foreign ORG is not incompatible with ORG CARDINAL § CARDINAL , CARDINAL § DATE and CARDINAL § CARDINAL of the LAW . ”

On DATE a federal law ( no . CARDINAL ) amending LAW was enacted . LAW was changed to read as follows :

“ State secrets shall include : ...

( CARDINAL ) information in the field of foreign policy and trade ... ”

The amended section CARDINAL listed categories of information constituting ORG secret .

On DATE ORG , having considered the prosecutor ’s appeal against the acquittal of PERSON on charges under ORG CARDINAL and CARDINAL § CARDINAL of LAW ( case no . MONEY ) , upheld the acquittal in the following terms :

“ Having acquitted PERSON for the lack of constituting elements of a criminal offence in his acts , the [ first - instance ] court proceeded from the premise that DATE and DATE there had been no legal definition of information constituting ORG secrets ...

Pursuant to LAW of LAW ... the list of information constituting ORG secrets was to be defined in a federal law . Such a list was first determined in the federal law ‘ On the introduction of changes and amendments to the State Secrets Act’ of DATE . Taking into account that during the period when PERSON committed his acts [ in DATE ] , there was no list of information constituting ORG secrets that met the requirements of the LAW , the information that he had collected ... and disclosed ... can not be said to have contained ORG secrets ... As the actus reus of offences under ORG CARDINAL and CARDINAL of LAW only refers to acts involving ORG secrets , the same acts involving other information can not be held to be high treason and disclosure of ORG secrets ...

LAW [ in its DATE version ] could not have been applied to Mr Nikitin as it did not contain a list of information constituting ORG secrets , since section CARDINAL of that Act only referred to information that could be classified as ORG secrets . However , LAW required that the said list be established in a federal law . As section CARDINAL of LAW and LAW refer to different subjects , the court can not agree with the argument of the appeal to the effect that the difference between these provisions is merely semantic ... ”

Section CARDINAL of LAW and LAW On additional safeguards for the social protection of judges and administrative staff of the courts of the GPE ” stipulate that judges with security clearance are eligible for additional financial benefits . The scale and amount of these benefits depend on the level of security clearance . ORG to set the specific amounts of such benefits is delegated to the ORG and other executive bodies , such as ORG .

The RSFSR Code of Criminal Procedure provided :

“ Every case must be examined by CARDINAL and the same composition . If CARDINAL of the judges is no longer able ( лишен возможности ) to take part in the proceedings he must be replaced by another judge , and the court proceedings must restart from the beginning , except in cases described in Article CARDINAL . ”

“ If a case requires a long time for its examination , a substitute lay judge may be appointed . The substitute lay judge is present in the courtroom from the beginning of the proceedings and may step in in case of withdrawal of a lay judge . If the substitute lay judge who has stepped in does not ask for the proceedings to start anew , the proceedings may continue . ”

LAW ( RSFSR Law of DATE ) establishes that a court President may appoint judges as the presiding judges and distribute duties between judges ( sections CARDINAL ( CARDINAL ) and CARDINAL ( CARDINAL ) and ( CARDINAL ) ) . The LAW stipulates that lay judges have the same rights as professional judges in the administration of justice ( section CARDINAL ) .

The Status of Judges Act ( Law no . ORG of DATE ) provides :

“ CARDINAL . The court President , at the same time as exercising judicial powers in the respective court and the procedural powers conferred on court presidents by federal constitutional laws and federal laws , carries out the following functions :

( CARDINAL ) organises the court ’s work ;

( CARDINAL ) NORP distributes duties between the President ’s deputies and , in accordance with the procedure provided for by federal law , between the judges . ”

The LAW establishes that a judicial decision is required before a defendant can be detained or his or her detention extended ( Article CARDINAL ) . At the material time , a decision ordering pre - trial detention could be taken by a prosecutor or a court ( Articles CARDINAL , CARDINAL and CARDINAL of the RSFSR Code of Criminal Procedure , the “ CCrP ” ) .

NORP Before DATE , pre - trial detention was authorised if the accused was charged with a criminal offence carrying a sentence of DATE imprisonment ( LAW CCrP ) . The amendments of DATE repealed the provision that permitted defendants to be remanded in custody on the sole ground of the dangerous nature of the criminal offence they had committed .

After arrest a suspect could be placed in custody “ pending investigation ” for an initial DATE period ( LAW of the ORG ) . Further extensions could be granted by prosecutors at ascending levels of jurisdiction .

Once the investigation had been completed and the defendant had received the charge sheet and finished reading the case file , the file was submitted to a trial court . From DATE the defendant ’s detention was “ before the court ” ( or “ pending trial ” ) . Until DATE LAW set no time - limit for detention “ pending trial ” . On DATE a new LAW was inserted which established that the period of detention “ during trial ” could not normally exceed DATE from the date the court received the file .

LAW ( Federal Law on ORG and Defendants , no . CARDINAL of DATE ) provides as follows :

“ ORG , ORG , ORG , ORG shall adopt , upon approval of ORG , ORG , for the purpose of ensuring order in remand centres .

The Internal Rules establish the procedure for :

( CARDINAL ) receiving and dispatching telegrams , letters and money transfers by suspects and defendants ;

( CARDINAL ) organising meetings between suspects and defendants and the persons listed in section CARDINAL of the present Act ... ”

“ Suspects and defendants have the right :

( CARDINAL ) to meet with relatives and other persons listed in section CARDINAL ;

( CARDINAL ) to keep documents and records relating to the criminal case or to exercise of their rights and lawful interests ...

( CARDINAL) to maintain correspondence and to use writing utensils . ”

“ From the moment of arrest , suspects and defendants may be visited by their legal representative in privacy . Visits are not limited in frequency or duration . Visits may be granted : if the legal representative is an advocate – upon presentation of a mandate issued by the legal services office ( ордер юридической консультации ) ... and an identity document .

Subject to written consent from the official or authority in charge of the criminal case , a suspect or defendant may have up to CARDINAL meetings per month with relatives and other persons , each visit to last for TIME ... ”

“ Suspects and defendants may correspond with relatives and other persons , without any limitation on the number of incoming and outgoing letters or telegrams ...

Correspondence by suspects and defendants is to be carried out through the administration of the remand prison and is subject to censorship . Censorship is carried out by the administration of the remand prison and , if necessary , by the official or authority in charge of the criminal case ... ”


Violation of Article 5 - Right to liberty and security;Violation of Article 6 - Right to a fair trial

David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza

The applicant was born in DATE and lives in PERSON .

On DATE he was arrested by the police .

On DATE the ORG ( Sąd Rejonowy ) decided to place the applicant in pre - trial detention as there were reasonable grounds for suspecting that he had been dealing in drugs . The court also cited the risk that the applicant would go into hiding , in view of the likelihood of a heavy sentence .

On DATE and DATE the applicant ’s detention was extended . In addition to the CARDINAL grounds given previously , ORG cited the need to ensure the proper conduct of the investigation .

On DATE the applicant was indicted before ORG . His pre - trial detention was subsequently extended .

As the length of the applicant ’s detention had reached the statutory timelimit of DATE laid down in LAW of LAW ( Kodeks postępowania karnego ) , ORG made a series of applications to ORG ( Sąd Apelacyjny ) for the applicant ’s detention to be extended beyond that term . On DATE and CARDINAL DATE ORG granted the applications and extended his detention , citing the reasonable suspicion against the applicant and the length of the sentence that was likely to be imposed . The ORG also considered that ORG could not be held responsible for not having completed the trial as there had been objective procedural difficulties in hearing all the witnesses .

The first hearing was held on DATE . Subsequently , hearings were held at regular intervals .

NORP The applicant ’s applications for release from detention and his appeals against the decisions extending the preventive measure were dismissed .

On DATE the ORG extended the applicant ’s detention until DATE . It cited the reasonable suspicion against the applicant and found that detention was necessary to secure the proper conduct of the proceedings given the likelihood of a heavy sentence .

The applicant ’s detention on remand was not extended beyond that date and on DATE he was released .

On DATE the applicant lodged a complaint under section CARDINAL of the Law of DATE on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) ( “ the CARDINAL Act ” ) . On DATE the ORG dismissed the complaint , finding that the trial had been conducted speedily and with no periods of inactivity .

The proceedings are still pending before the trial court .

The relevant domestic law and practice concerning pre - trial detention ( aresztowanie tymczasowe ) , the grounds for its extension and release from detention , and the rules governing other “ preventive measures ” ( środki zapobiegawcze ) are set out in the ORG ’s judgments in the cases of ORG v. GPE ( no . CARDINAL , § § DATE , DATE ) , and PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , CARDINAL DATE ) .

The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings are stated in the ORG ’s decisions in the cases of ORG v. GPE ( no . CARDINAL/CARDINAL ( dec . ) , § § CARDINAL , ORG ) , and NORP v. GPE ( no . CARDINAL ( dec . ) , ORG CARDINALVIII ) and judgment in the case of ORG v. GPE ( no . CARDINAL , § § DATE , ECHR CARDINAL-V ) .


Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property;Violation of Article 13 - Right to an effective remedy

Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Khanlar Hajiyev;Sverre Erik Jebens

The applicant was born in DATE and lives in GPE , a town in LOC .

As a victim of GPE , the applicant is entitled to social benefits . Considering himself underpaid , he brought CARDINAL successful actions against local authorities responsible for welfare .

On DATE the ORG fixed a new amount of periodic benefits . This judgment became binding on DATE . According to the Government , this judgment was fully enforced by DATE . According to the applicant , this judgment has still not been enforced , because from DATE the periodic benefits were reduced again .

On DATE ORG awarded MONEY ( “ RUB ” ) as interest for delayed payment . This judgment became binding on DATE . On the welfare authority ’s request , on DATE the ORG of ORG quashed the judgment on supervisory review , on the ground of misapplication of material law .

On DATE the Justice of ORG of GPE awarded RUB CARDINAL as interest for delayed payment . This judgment became binding on DATE . On the welfare authority ’s request , on DATE the ORG of ORG quashed the judgment on supervisory review , on the ground of misapplication of material law .

On DATE ORG awarded arrears and fixed a new amount of periodic payments . This judgment became binding on DATE . According to the Government , this judgment was fully enforced by DATE . According to the applicant , this judgment has still not been enforced , because the periodic payments continue to be miscalculated .

On DATE ORG awarded compensation of inflationary loss caused by the delayed enforcement of an earlier judgment . This judgment became binding on DATE and was enforced on DATE .

On DATE ORG ordered the applicant to be provided in DATE with a decent flat of CARDINAL GPE . This judgment became final on DATE and was enforced on DATE .

NORP Under section CARDINAL of LAW of DATE , a bailiff must enforce a judgment within DATE . Under section QUANTITY of LAW of DATE , ORG must enforce a judgment within DATE .


Violation of Art. 6-1;No violation of Art. 6-1 (length);Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE .

On DATE the applicant , who was a taxi driver , hit a pedestrian with his car . The applicant brought the victim to the nearest hospital , where he died DATE despite the efforts of the medical doctors .

On DATE or DATE the applicant was charged with involuntary manslaughter .

On an unspecified date in DATE , after the completion of the investigation , an indictment was submitted to ORG . The relatives of the victim joined the proceedings as civil plaintiffs .

After a hearing , on DATE the court convicted the applicant and sentenced him to DATE imprisonment , suspended . The court also ordered the suspension of the applicant 's driving licence for DATE and ordered him to pay damages to the relatives of the victim .

Upon the applicant 's appeal , on DATE ORG quashed the lower court 's judgment and referred the case back for reexamination at the investigation stage , instructing the competent authorities to commission a new expert report in order to clarify certain additional facts .

The renewed investigation lasted until DATE when a fresh indictment was submitted to ORG .

By judgment of DATE ORG convicted the applicant and sentenced him to DATE imprisonment , suspended . The court also ordered the suspension of the applicant 's driving licence for DATE .

On DATE the applicant appealed to ORG .

On DATE ORG , acting as a court of appeal in a chamber of CARDINAL judges , dismissed the appeal .

On DATE the applicant filed with ORG a petition for review ( cassation ) , which would have fallen to be examined by a CARDINAL - member chamber of ORG in the transitional period following the DATE legislative amendments ( see paragraph CARDINAL below ) .

On an unspecified date ORG transmitted the petition and the case file to ORG .

On DATE a judge of ORG dismissed as time - barred the petition for review ( cassation ) and ordered the return of the case file back to ORG . The order was made on a standard form which stated that the petition for review had been dismissed as time - barred , without mentioning any dates . The name of the judge who issued the order was not indicated .

In accordance with LAW and the practice , appeals are filed with the registry of the court whose decision is being appealed against . That court then transmits the appeal , together with the case - file , to the higher court in which the power to examine the appeal is vested .

By amendment of LAW published on DATE and in force as of DATE , the system of appeals against convictions and sentences was reformed . In accordance with section CARDINAL § CARDINAL of the transitory provisions to the LAW amending LAW , the timelimit for submission of a petition for review ( cassation ) against judgments delivered prior to the amendment 's entry into force was DATE from the date on which the judgment had become enforceable . Under LAW , as in force at the relevant time , appellate judgments upholding the first instance judgment became enforceable on the date of delivery .


Preliminary objection rejected (victim);Preliminary objection rejected (non-exhaustion of domestic remedies);No violation of Art. 8 and 12;No violation of Art. 14+8;Violation of Art. 8 regarding the legal situation of the third applicant under Irish law;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings

C. Russo;Gaukur Jörundsson;J.A. Carrillo Salcedo

ORG The first applicant is PERSON , who was born in DATE and is a scientific research and development manager . He resides at GPE , GPE , with the second applicant , PERSON , who was born in DATE ; she is a school - teacher by profession and used to work as director of a play - group in GPE , but has been unemployed since DATE . The third applicant is their daughter , PERSON , who was born in DATE .

ORG The first applicant married a Miss M in DATE in a NORP of Ireland ceremony . CARDINAL children were born of this marriage , in DATE , DATE and DATE .

In DATE , it became clear to both parties that the marriage had irretrievably broken down and they decided to live separately at different levels in the family house . DATE both of them , with the other ’s knowledge and consent , formed relationships and began to live with third parties . By mutual agreement , the CARDINAL couples resided in self - contained flats in the house until DATE , when PERSON wife moved elsewhere .

In DATE , the second applicant , with whom PERSON had been living since DATE , gave birth to PERSON . He consented to his name being included in ORG as the father ( see paragraph CARDINAL below ) .

ORG Under LAW ( see paragraphs DATE below ) , the first applicant is unable to obtain , in GPE , a dissolution of his marriage to enable him to marry the second applicant . He has taken the following steps to regularise his relationship with her and with his wife and to make proper provision for his dependents .

( a ) ORG With his wife ’s consent , he has consulted solicitors in GPE and in GPE as to the possibility of obtaining a dissolution of the marriage outside GPE . His GPE solicitors advised that , in the absence of residence within the jurisdiction of the NORP courts , he would not be able to do so in GPE , and the matter has therefore not been pursued ( see also paragraphs CARDINAL - CARDINAL below ) .

( b ) ORG On DATE , he concluded a formal separation agreement with his wife , recording an agreement implemented DATE . She received a lump - sum of IR£CARDINAL,CARDINAL and provision was made for maintenance of the remaining dependent child of the marriage . The parties also mutually renounced their succession rights over each other ’s estates .

( c ) ORG He has made a will leaving his house to the second applicant for life with remainder over to his CARDINAL children as tenants in common , CARDINAL of the residue of his estate to the second applicant , and the other CARDINAL to his CARDINAL children in equal shares .

( d ) ORG He has supported the third applicant throughout her life and has acted in all respects as a caring father .

( e ) ORG He contributed towards the maintenance of his wife until the conclusion of the aforementioned separation agreement and has supported the CARDINAL children of his marriage during their dependency .

( f ) ORG The second applicant has been nominated as beneficiary under the pension scheme attached to his employment .

( g ) ORG He has taken out health insurance in the names of the second and third applicants , as members of his family .

ORG The second applicant , who is largely dependent on the first applicant for her support and maintenance , is concerned at the lack of security provided by her present legal status , in particular the absence of any legal right to be maintained by him and of any potential rights of succession in the event of intestacy ( see also paragraph CARDINAL below ) . As is permitted by law , she has adopted the first applicant ’s surname , which she uses amongst friends and neighbours , but for business purposes continues to use the name PERSON . According to her , she has felt inhibited about telling employers of her domestic circumstances and although she would like to become an NORP citizen by naturalisation , she has been reluctant to make an application , not wishing to put those circumstances in issue .

ORG The third applicant has , under NORP law , the legal situation of an illegitimate child and her parents are concerned at the lack of any means by which she can , even with their consent , be recognised as their child with full rights of support and succession in relation to them ( see paragraphs CARDINAL - CARDINAL below ) . They are also concerned about the possibility of a stigma attaching to her by virtue of her legal situation , especially when she is attending school .

ORG The first and second applicants state that although they have not practised any formal religion for some time , they have recently joined ORG ( the NORP ) in GPE . This decision was influenced in part by their concern that the third applicant receives a NORP upbringing .

The LAW , which came into force in DATE , includes the following provisions :

" CARDINAL.CARDINAL.CARDINALo The ORG guarantees in its laws to respect , and , as far as practicable , by its laws to defend and vindicate the personal rights of the citizen .

CARDINAL The ORG shall , in particular , by its laws protect as best it may from unjust attack and , in the case of injustice done , vindicate the life , person , good name , and property rights of every citizen .

CARDINAL.CARDINAL.CARDINALo The ORG recognises the Family as the natural primary and fundamental unit group of ORG , and as a moral institution possessing inalienable and imprescriptible rights , antecedent and superior to all positive law .

CARDINAL The ORG , therefore , guarantees to protect the Family in its constitution and authority , as the necessary basis of social order and as indispensable to the welfare of the Nation and the ORG .

CARDINAL The ORG pledges itself to guard with special care the institution of Marriage , on which the family is founded , and to protect it against attack .

CARDINAL No law shall be enacted providing for the grant of a dissolution of marriage .

The ORG acknowledges that the primary and natural educator of the child is the Family and guarantees to respect the inalienable right and duty of parents to provide , according to their means , for the religious and moral , intellectual , physical and social education of their children .

In exceptional cases , where the parents for physical or moral reasons fail in their duty towards their children , the ORG as guardian of the common good , by appropriate means shall endeavour to supply the place of the parents , but always with due regard for the natural and imprescriptible rights of the child . "

ORG As a result of LAW , divorce in the sense of dissolution of a marriage ( divorce a vinculo matrimonii ) is not available in GPE . However , spouses may be relieved of the duty of cohabiting either by a legally binding deed of separation concluded between them or by a court decree of judicial separation ( also known as a divorce a mensa et thoro ) ; such a decree , which is obtainable only on proof of commission of adultery , cruelty or unnatural offences , does not dissolve the marriage . In the remainder of the present judgment , the word " divorce " denotes a divorce a vinculo matrimonii .

It is also possible to obtain on various grounds a decree of nullity , that is a declaration by ORG that a marriage was invalid and therefore null and void ab initio . A marriage may also be " annulled " by an ecclesiastical tribunal , but this does not affect the civil status of the parties .

ORG The NORP courts have consistently held that the " Family " that is afforded protection by LAW is the family based on marriage . Thus , in The State ( Nicolaou ) v. An ORG The Adoption Board DATE NORP Reports CARDINAL , ORG said :

" It is quite clear from the provisions of LAW , and in particular section CARDINAL thereof , that the family referred to in this Article is the family which is founded on the institution of marriage and , in the context of the Article , marriage means valid marriage under the law for the time being in force in the ORG . While it is quite true that unmarried persons cohabiting together and the children of their union may often be referred to as a family and have many , if not all , of the outward appearances of a family , and may indeed for the purposes of a particular law be regarded as such , nevertheless as far as LAW is concerned the guarantees therein contained are confined to families based upon marriage . "

ORG has , however , held that an illegitimate child has unenumerated natural rights ( as distinct from rights conferred by law ) which will be protected under LAW , such as the right to be fed and to live , to be reared and educated , to have the opportunity of working and of realising his or her full personality and dignity as a human being , as well as the same natural rights under LAW as a legitimate child to " religious and moral , intellectual , physical and social education " ( G v. An ORG Irish Reports CARDINAL ) .

ORG Article CARDINAL.CARDINAL.CARDINALo of the LAW provides :

" No person whose marriage has been dissolved under the civil law of any other ORG but is a subsisting valid marriage under the law for the time being in force within the jurisdiction of the ORG and ORG established by this LAW shall be capable of contracting a valid marriage within that jurisdiction during the lifetime of the other party to the marriage dissolved . "

ORG A series of judicial decisions has established that the foregoing provision does not prevent the recognition by NORP courts , under the general NORP rules of private international law , of certain decrees of divorce obtained , even by NORP nationals , in another ORG . Such recognition used to be granted only if the parties to the marriage were domiciled within the jurisdiction of the foreign court at the time of the relevant proceedings ( ORG Deceased : ORG Caffin DATE NORP Reports CARDINAL ; ORG v. ORG Reports CARDINAL ; however , since DATE a divorce will be recognised if granted in the country where either spouse is domiciled ( ORG ) . To be regarded as domiciled in a foreign ORG , a person must not only be resident there but also have the intention of remaining there permanently and have lost the animus revertendi . Moreover , the foreign divorce will not be recognised if domicile has been fraudulently invoked before the foreign court for the purpose of obtaining the decree .

ORG If notice is served for a civil marriage before a Registrar of Births , Marriages and Deaths in GPE and he is aware that either of the parties has been divorced abroad , he must , under the regulations in force , refer the matter to ORG . The latter will seek legal advice as to whether on the facts of the case the divorce would be recognised as effective to dissolve the marriage under NORP law and as to whether the intended marriage can consequently be permitted .

Persons who , like the first and second applicants , are living together in a stable relationship after the breakdown of the marriage of CARDINAL of them are unable , during the lifetime of the other party to that marriage , to marry each other in GPE and are not recognised there as a family for the purposes of LAW ( see paragraphs CARDINAL and CARDINAL above ) .

ORG Such persons , unlike a married couple , have no legal duty to support or maintain one another and no mutual statutory rights of succession . However , there is no impediment under NORP law preventing them from living together and supporting each other and , in particular , from making wills or dispositions inter vivos in each other ’s favour . They can also enter into mutual maintenance agreements , although the ORG and the applicants expressed different views as to whether these might be unenforceable as contrary to public policy .

In general , the married member of the couple remains , at least in theory , under a continuing legal obligation to maintain his or her spouse . In addition , testamentary dispositions by that member may be subject to the rights of his or her spouse or legitimate children under LAW DATE .

ORG As compared with married couples , persons in the situation of the first and second applicants :

( a ) have no access , in the event of difficulties arising between them , to the system of barring orders instituted to provide remedies in respect of violence within the family ( Family Law ( Maintenance of Spouses and Children ) Act DATE , as amended by LAW DATE ) ; they can , however , obtain analogous relief by seeking a court injunction or declaration ;

( b ) do not enjoy any of the rights conferred by LAW in relation to the family home and its contents , notably the prohibition on sale by CARDINAL spouse without the other ’s consent and the exemption from stamp duty and ORG fees in the event of transfer of title between them ;

( c ) as regards transfers of property between them , are less favourably treated for the purposes of capital acquisition tax ;

( d ) enjoy different rights under the social welfare code , notably the benefits available to deserted wives ;

( e ) are unable jointly to adopt a child ( see also paragraph CARDINAL below ) .

ORG In NORP law , the principle mater semper certa est applies : the maternal affiliation of an illegitimate child , such as the third applicant , is established by the fact of birth , without any requirement of voluntary or judicial recognition .

The Illegitimate Children ( Affiliation Orders ) Act DATE , as amended by LAW DATE and LAW DATE , provides procedures whereby ORG or ORG may make an " affiliation order " against the putative father of a child directing him to make periodic payments in respect of the latter ’s maintenance and also whereby the court may approve a lump - sum maintenance agreement between a person who admits he is the father of an illegitimate child and the latter ’s mother . Neither of these procedures establishes the child ’s paternal affiliation for all purposes , any finding of parentage being effective solely for the purposes of the proceedings in question and binding only on the parties .

ORG Under the Registration of Births and Deaths ( Ireland ) Act DATE , as amended by ORG , the Registrar may enter in the register the name of a person as the father of an illegitimate child if he is so requested jointly by that person and the mother . The act of registration does not , however , establish paternal affiliation .

ORG The mother of an illegitimate child is his sole guardian as from the moment of his birth ( section CARDINAL(CARDINAL ) of the Guardianship of Infants Act DATE ) and has the same rights of guardianship as are jointly enjoyed by the parents of a legitimate child . The natural father can apply to the court under section CARDINAL(CARDINAL ) of the same LAW regarding the child ’s custody and the right of access thereto by either parent ; however , he can not seek the court ’s directions on other matters affecting the child ’s welfare nor is there any means whereby he can be established as guardian of the child jointly with the mother , even if she consents .

ORG An illegitimate child may be legitimated by the subsequent marriage of his parents , provided that , unlike the first and second applicants , they could have been lawfully married to one another at the time of the child ’s birth or at some time during DATE ( section CARDINAL ) and ( CARDINAL ) of LAW ) .

ORG Under LAW , as amended , an adoption order can only be made in favour of a married couple living together , a widow , a widower , or the mother or natural father or a relative of the child .

ORG The effect of ORG , as amended by LAW DATE , is to impose on each of the parents of an illegitimate child an equal obligation to maintain him . This obligation can not be enforced against the father until an " affiliation order " has been made against him ( see paragraph CARDINAL above ) .

ORG The devolution of estates on intestacy is governed by LAW DATE which provides , basically , that the estate is to be distributed in specified proportions between any spouse or " issue " who may survive the deceased . In O’B v. S DATE NORP Reports CARDINAL , ORG held that the word " issue " did not include children who were not the issue of a lawful marriage and that accordingly an illegitimate child had , under LAW , no right to inheritance on the intestacy of his natural father . Whilst also holding that the resultant discrimination in favour of legitimate children was justifiable by reason of sections QUANTITY of Article CARDINAL of the LAW ( see paragraph CARDINAL above ) , ORG stated that the decision to change the existing rules of intestate succession and the extent to which they were to be changed were primarily matters for the legislature . The relevant rules in the LAW formed part of a statute designed to strengthen the protection of the family in accordance with LAW , an Article which created not merely a ORG interest but a ORG obligation to safeguard the family ; accordingly , the said discrimination was not necessarily unjust , unreasonable or arbitrary and the said rules were not invalid having regard to the provisions of the LAW .

An illegitimate child may , on the other hand , in certain circumstances have a right to inheritance on the intestacy of his mother . A special rule ( section CARDINAL(CARDINAL ) of LAW ) lays down that where the mother of an illegitimate child dies intestate leaving no legitimate issue , the child is entitled to take any interest in his mother ’s estate to which he would have been entitled if he had been born legitimate .

ORG As regards testate succession , LAW DATE empowers a court to make provision for a child for whom it considers that the testator has failed in his moral duty to make proper provision . An illegitimate child has no claim against his father ’s estate under this section , but may be able to claim against his mother ’s estate provided that she leaves no legitimate issue .

ORG An illegitimate child inheriting property from his parents is potentially liable to pay capital acquisition tax on a basis less favourable than a child born in wedlock .

ORG In DATE , a ORG of the Dáil ( Chamber of Deputies ) and the Seanad ( ORG ) was established , inter alia , to examine the problems which follow the breakdown of marriage . In its report of DATE , it referred to figures suggesting that MONEY of marriages in GPE had broken down to date , but noted the absence of accurate statistics . ORG considered that the parties to stable relationships formed after marriage breakdown and the children of such relationships currently lacked adequate legal status and protection ; however , it expressed no view on whether divorce legislation was at present necessary or desirable .

In a national referendum held on DATE , a majority voted against an amendment of the LAW , which would have permitted legislation providing for divorce .

ORG In DATE , ORG published a ORG on Illegitimacy . Its basic recommendation was that legislation should remove the concept of illegitimacy from the law and equalise the rights of children born outside marriage with those of children born within marriage .

After considering the report , the Government announced in DATE that they had decided that the law should be reformed , and that reform should be concentrated on the elimination of discrimination against persons born outside marriage and on the rights and obligations of their fathers . However , the Government decided not to accept a proposal by ORG that the father be given automatic rights of guardianship in relation to a child so born .

ORG In DATE , the Minister of ORG laid before both ORG a Memorandum entitled " The Status of Children " , indicating the scope and nature of the main changes proposed by the Government . On DATE , the Status of Children Bill DATE , a draft of which had been annexed to the aforesaid Memorandum , was introduced into the Seanad . If enacted in its present form , the PERSON - which has the stated purpose of removing as far as possible provisions in existing law which discriminate against children born outside marriage - would have , inter alia , the following effects .

( a ) Where the name of a person was entered on the register of births as the father of a child born outside marriage , he would be presumed to be the father unless the contrary was shown ( cf . paragraph CARDINAL above ) .

( b ) The father of a child born outside marriage would be able to seek a court order making him guardian of the child jointly with the mother ( cf . paragraph CARDINAL above ) . In that event , they would jointly have all the parental rights and responsibilities that are enjoyed and borne by married parents .

( c ) The proviso qualifying the possibility of legitimation by subsequent marriage would be removed by the repeal of LAW ( see paragraph CARDINAL above ) .

( d ) The legal provisions governing the obligation of both of the parents of a child born outside marriage to maintain him would be similar to those governing the corresponding obligation of married parents ( see paragraph CARDINAL above ) .

( e ) For succession purposes , no distinction would be made between persons based on whether or not their parents were married to each other . Thus , a child born outside marriage would be entitled to share on the intestacy of either parent and would have the same rights in relation to the estate of a parent who died leaving a will as would a child of a family based on marriage ( cf . DATE and CARDINAL above ) .

The Explanatory Memorandum to the PERSON states that any fiscal changes necessitated by the proposed new measures would be a matter for separate legislation promoted by the Minister for Finance .

Work is also in progress on legislation reforming the law of adoption , following the publication in DATE of the Report of ORG . That ORG recommended that , as at present ( see paragraph CARDINAL above ) , unmarried couples should not be eligible to adopt jointly even their own natural children .


CASE OF DOROZHKO AND POZHARSKIY v. ESTONIA

Violation of Art. 6-1;Non-pecuniary damage - award

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

Mr PERSON , the applicant in application no . CARDINAL ( “ the first applicant ” ) , was born in DATE . Mr PERSON , the applicant in application no . CARDINAL ( “ the second applicant ” ) , was born in DATE . Both of them are currently serving prison sentences .

The applicants were arrested TIME on TIME . They were initially suspected of having caused grievous bodily harm and of temporary unauthorised use of other ORG movable property ( cars ) . Subsequently , the applicants were also charged with robbery .

On DATE ORG ( linnakohus ) refused to extend the applicants’ detention . The second applicant was released . The first applicant , however , was not released by the police ; he was kept under arrest and declared under suspicion of an offence of threatening behaviour . On DATE ORG authorised his further detention .

In the meantime , on DATE , the police chief inspector PERSON ordered that a team of investigators be set up for the criminal case concerned . The team consisted of PERSON himself as the head of the team and CARDINAL other senior police inspectors : PERSON , PERSON and PERSON

In the submission of the Government , the further criminal investigation was practically solely carried out by police investigator PERSON , while only a few procedures were performed by investigators PERSON and PERSON The criminal case file did not contain any indication that PERSON personally performed any investigative actions or that he issued any instructions or guidelines to the members of the team .

Nevertheless , the first applicant was informed by FAC and ORG during the pre - trial investigation , in response to his complaints , that PERSON was a member of the team of investigators set up for the criminal case concerned and he had the powers to conduct all investigative activities .

On DATE ORG ( maakohus ) authorised the second applicant ’s detention until DATE in different criminal proceedings not related to the present case .

In the meantime , on DATE and again on DATE , after ORG had amended the charges , the applicants were committed for trial by ORG . The case was heard by a court composed of a professional judge , PERSON , and CARDINAL lay judges . The hearings before ORG took place on several dates .

At a ORG hearing on CARDINAL DATE the first applicant said in his closing statement that because he had refused to cooperate with the police investigators B. , PERSON and PERSON , the charges against him had been changed . He also said that although a judge had ordered his release , police investigators PERSON and PERSON had not released him from the police cell but had detained him again on suspicion of threatening behaviour .

On CARDINAL DATE ORG convicted the applicants of robbery and temporary unauthorised use of other ORG movable property . The first applicant was also convicted of an offence of threatening behaviour . The first applicant was sentenced to DATE and the second applicant to CARDINAL years’ imprisonment .

The applicants and the first applicant ’s lawyer appealed against the judgment . The applicants in their appeals challenged , inter alia , the impartiality of ORG judge PERSON , as her husband , PERSON , had headed the team of investigators which had been set up for the investigation of the criminal case concerned . The second applicant noted that this issue had been raised at a ORG hearing but judge PERSON had not withdrawn .

On DATE the first applicant ’s wife also lodged a complaint to ORG , arguing , inter alia , that judge PERSON should have withdrawn because her husband had been involved in the pre - trial investigation .

At the hearing before ORG on DATE the first applicant raised the issue of impartiality of ORG judge PERSON According to the record of the hearing , he stated as follows :

“ The presiding judge was PERSON . Her husband was the person who carried out the preliminary investigation . I only learned about it after the court hearing . This fact affected the impartiality of the judge . It could also be seen from the record [ of the court hearing ] because it is imprecise . ... It affected the judicial investigation . The judge did not grant my requests , everything happened very quickly . She [ ] wanted to have me imprisoned . I did not request the removal of the judge . I did not know at that time that her husband had been the head of the preliminary investigation . ”

According to the prosecutor the applicants had not been aware that PERSON and PERSON were married to each other when ORG began to hear the case . In her submission they had become aware of it later , by the time of the subsequent hearings . However , no requests for removal of the judge had been made .

At the end of ORG hearing the second applicant said that PERSON had interrogated him . He added : “ [ PERSON ] threatened me [ and said ] that if I confessed , I would not go to prison . ”

On DATE ORG ( ringkonnakohus ) acquitted the applicants in respect of the second count of temporary unauthorised use of other ORG movable property . It upheld ORG judgment in the remaining part .

Referring to LAW ( ORG koodeks ) , which concerned grounds for disqualification of a judge , ORG found that the ORG allegations did not warrant quashing ORG judgment and referring the case to the first - instance court for a new trial . Moreover , it was noted that none of the parties to the proceedings had requested judge PERSON disqualification during the proceedings in ORG ; neither had the impartiality of the judge nor that of the court been put into doubt in the appeals . The first applicant had submitted at ORG hearing that he had become aware of the fact that PERSON was the judge ’s husband during the court proceedings . ORG found , however , that the judge ’s possible relationship with an official participating in the preliminary investigation did not prove the judge ’s partiality . It noted that although PERSON had been the head of the team of police officers investigating the case , the investigation had in fact been carried out by another police investigator . None of the reports concerning various investigative activities ( uurimistoimingu protokoll ) in the case file had been drawn up by PERSON Moreover , besides judge PERSON , CARDINAL lay judges had taken part in deciding the case . ORG considered that the allegation concerned was artificial and had been submitted with a view to delaying the proceedings .

NORP In his appeal to ORG ( NORP ) , the first applicant argued that judge PERSON could not have been unaware of the fact that her husband had led the team of investigators and that the applicant had made several complaints during the preliminary investigation to ORG against the police investigators , including PERSON asserted that judge PERSON should have withdrawn from hearing the case . In his view the judicial investigation in ORG had not been impartial ; the lack of impartiality had particularly been reflected in the severity of the sentence . The applicant had not requested PERSON removal because he had found out too late and through informal sources that she was married to PERSON Nevertheless , he was of the opinion that his failure to request the judge ’s removal should not deprive him of the right to impartial adjudication of the charges against him .

The second applicant argued in his appeal to ORG that judge PERSON had had no right to administer justice in respect of him because she was the wife of the head of the team of police investigators .

On DATE ORG refused the applicants leave to appeal .

According to LAW ( ORG koodeks ) , as in force at the material time , a judge could not participate in criminal proceedings and had to be disqualified if he or she had a direct or indirect personal interest in the case or if other circumstances gave reasons to doubt his or her impartiality . Article CARDINAL provided that a person who was related to an official conducting a preliminary investigation or court proceedings in a criminal case could not participate in the proceedings as an expert , specialist , defence counsel or representative of a victim , plaintiff or defendant , or as an interpreter or translator .

Article CARDINAL § CARDINAL ( CARDINAL ) of the LAW stipulated that a person whose spouse had participated in the proceedings of a criminal case ( menetlusosaline kriminaalasjas ) could not act as a judge in that case . The same applied in respect of a person with regard to whom facts were presented which gave reason to doubt his or her impartiality ( LAW ( CARDINAL ) ) .

Article CARDINAL § CARDINAL of the Code provided that participants in the criminal proceedings ( kriminaalmenetluse osaline ; menetlusosaline ) were : suspect , accused , accused at trial and his or her defence counsel , prosecutor in court proceedings , and victim , plaintiff , defendant and their representative .

In LAW - CARDINAL § CARDINAL of the Code the rights and obligations of a head of the investigation ( uurimisjuht ) were enumerated . He or she could monitor the activities of a preliminary investigator and give him or her instructions ; form teams of investigators ( uurimisgrupp ) ; annul unlawful or unjustified orders of preliminary investigators ; participate in the actions of preliminary investigators or personally perform actions in a criminal matter .

Under LAW a head of the investigation could form a team of investigators by his or her order . The head of the team of investigators ( uurimisgrupi vanem ) had to be named in the order . The latter had to coordinate the activities of the team of investigators .

Article CARDINAL of the Code provided that after a judge had announced the panel of the court , he or she had to explain to the participants in the proceedings their right to request the judge ’s or lay judges’ disqualification .

Article CARDINAL of the Code stipulated that judges and lay judges had to withdraw from hearing of the case , and the participants in the proceedings had the right to request their disqualification , under the circumstances specified in Article CARDINAL or CARDINAL of the Code .