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

The applicant , ORG , is a NORP national who was born in DATE and lives in GPE . He was represented before the ORG by Mr Tyge Trier , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON , of ORG .

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

The applicant was employed as an abattoir worker .

On DATE he sustained an injury while transporting slaughtered pigs to a cooling room on devices called “ DATE trees ” . The transportation took place by pushing the devices along a rail system in the ceiling . While pushing , suddenly the applicant suffered intense back pains . He went to see a doctor on DATE and went on sick leave from DATE .

On DATE his employer notified ORG ( Arbejdstilsynet ) .

On DATE the applicant ’s insurance company filed a claim about the incident with ORG ) and on DATE , the applicant submitted a form , in which he provided a summary of the accident . He specified that while pushing the devices along the rail system , he had reached for a switch and accordingly had to give an extra push , whereby he strained his back and fell to his knees due to sharp pains . He replied in the negative to a question on the form as to whether he slipped , fell or stumbled .

On DATE the applicant ’s request for compensation was refused by ORG on the grounds that the injury could not be recognised as an industrial injury under section CARDINAL , subsection CARDINAL(i ) and ( ii ) of ORG against LAW Arbejdsskadeforsikringsloven ) then applicable .

In DATE and DATE the applicant appealed against the decision to ORG ( PERSON ) .

In addition , on DATE he requested that ORG reopen the case . Later , during the proceedings he submitted a statement of CARDINAL DATE by a medical expert , to whom the applicant had explained that , on DATE of the accident , he slipped on the greasy floor , lost his balance , and fell on his knees . In that connection he suddenly felt the sharp pain in his back . The applicant ’s request was refused on DATE .

On DATE the applicant appealed against that decision to ORG , which on DATE upheld the parts of the decisions of ORG of CARDINAL DATE and CARDINAL DATE concerning LAW against LAW then applicable . At the same time , ORG remitted the part of the case that related to section CARDINAL , subsection CARDINAL(ii ) of GPE against LAW then applicable to ORG , requesting the ORG to obtain further information with a view to determining whether the incident could be recognised as having caused a short - term injury .

On DATE ORG decided that the incident of CARDINAL DATE could not be recognised as having caused a short - term injury under LAW , subsection CARDINAL(ii ) of the said LAW .

On DATE the applicant appealed against this decision to ORG , which upheld it on DATE .

On DATE the applicant brought the case before ORG of Eastern GPE ( PERSON ) .

The pre - trial proceedings lasted from DATE until DATE . During this period the applicant requested CARDINAL times , and was granted , an extension of a time limit set by ORG . The case was brought before ORG ( Retslægerådet ) , which delivered an opinion and a supplementary opinion . On DATE ORG closed the pretrial proceedings and offered to schedule the trial in DATE or DATE . This was refused by the applicant , and the trial was then initially scheduled for DATE . Due to rescheduling , however , the trial was ultimately conducted on DATE . The applicant and CARDINAL witnesses were heard and substantial documentary material was submitted .

A judgment was passed in favour of ORG on DATE . The applicant was ordered to pay costs to the opponent party amounting to a total of MONEY ( DKK ) ( MONEY ( ORG ) ) .

On DATE the applicant appealed against the judgment to ORG ( Højesteret ) . He stated that he wanted further witness testimony and reserved the right to put supplementary questions to ORG .

Before ORG the pre - trial proceedings lasted from DATE until DATE . The trial was held on the latter date . During this period , the applicant requested CARDINAL times , and was granted , an extension of a time limit set by ORG and CARDINAL times the applicant and ORG jointly were granted an extension of a time limit . The case was brought before ORG ( PERSON ) and once again before ORG .

The trial took place as scheduled on DATE and by judgment of DATE ORG upheld ORG judgment . The applicant was ordered to pay costs to the opponent party amounting to DKK MONEY ( approximately EUR CARDINAL ) .

With regard to civil proceedings ORG reads in as far as relevant :

( CARDINAL ) The losing party shall compensate the opponent for the expenses inflicted on the opponent by the proceedings , unless otherwise agreed by the parties .

( CARDINAL ) The court may decide that the losing party shall not or shall only partially compensate the opponent for the expenses inflicted if particular reasons make it appropriate .

( CARDINAL ) ...

Thus , although NORP law does not refer to a remedy specifically designed or developed to provide redress in respect of complaints about an excessive length of civil proceedings , accordingly to domestic case - law , in civil proceedings initiated by an individual against or involving ORG , if the courts , having examined a length of proceedings complaint , finds a violation , they may grant redress therefore by , for example , exempting the individual from paying legal costs or by deciding that expenses and fees shall be covered by the ORG ( see , inter alia , PERSON v. GPE ( dec . ) , no . CARDINAL/CARDINAL , DATE ) .

To illustrate that section CARDINAL , subsection CARDINAL of ORG is an effective remedy for providing adequate redress for a violation of LAW in civil lawsuits of this nature , the Government referred to the decision of ORG of DATE published in ORG ( ORG ) DATE , page CARDINAL ( U CARDINAL.CARDINAL H ) . In that case ORG upheld a ORG judgment in a case filed by a child and its parents against ORG . Even though the plaintiffs lost the case , ORG , taking into account the extraordinary length of the legal proceedings , invoked section CARDINAL , subsection CARDINAL and exempted the plaintiffs from compensating ORG for its legal costs . When doing so ORG explicitly referred to LAW .


Violation of Article 3 - Prohibition of torture (Substantive aspect)

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall

The applicant was born in DATE and lives in GPE .

On DATE the prosecutor attached to ORG issued an arrest warrant against the applicant , who was accused of tax evasion .

The applicant was apprehended on DATE and was placed in police custody for a period of DATE . ORG , to which the applicant was first brought on DATE , repeatedly extended his pre - trial detention , until the end of the proceedings before it .

ORG gave judgment on DATE . On the basis of the depositions made by the applicant , CARDINAL co - defendants and twenty - one witnesses , the court convicted the applicant under several heads of tax evasion and forgery , and sentenced him to DATE and six months’ imprisonment with an obligation , under LAW , to undergo medical treatment for his mental disorder as identified by the medical reports adduced in the case . The court ordered that the medical treatment be administered through the prison hospitals , while the applicant was in detention , and continue after his release until his complete recovery . It also upheld the order for the applicant ’s detention .

In a decision of DATE , ORG allowed appeals against the judgment and , based on the evidence in the case and the GPE depositions , reduced the applicant ’s sentence to DATE and CARDINAL months’ imprisonment . It upheld the remainder of ORG judgment .

NORP This decision was confirmed , upon an appeal on points of law by the defendants , in a final decision of DATE of ORG .

On DATE the applicant ’s lawyer filed a request with the prosecutor for the applicant ’s psychiatric evaluation . ORG examined the applicant and concluded , on CARDINAL DATE , that he had been mentally competent for legal purposes both when the alleged offences had been committed and at the date of the evaluation .

The applicant contested the conclusion of the report .

On DATE the “ PERSON ” ORG in GPE confirmed ORG report , after having examined the applicant . It also recommended that , pursuant to LAW , the applicant be required to undergo medical treatment for his mental disorder both during the detention and after his release .

On DATE the applicant underwent a full medical examination at ORG . The medical commission concluded that the applicant ’s mental disorder did not render him unfit for detention .

According to the detailed medical record from the period of pre - trial detention , submitted by the ORG , the applicant was hospitalised CARDINAL times in prison hospitals . He was mainly diagnosed with thrombophlebitis , venous insufficiency and a mental disorder . Each time he was discharged , the doctors recommended treatment for his various illnesses , periodical re - evaluations and medical check - ups when needed .

During this interval he was seen CARDINAL times by the prison doctors , on CARDINAL and DATE , DATE , DATE and DATE , DATE and DATE , DATE , DATE , CARDINAL , DATE , DATE , DATE and DATE , CARDINAL , DATE , DATE , DATE and DATE , CARDINAL , DATE , DATE , DATE and DATE , and CARDINAL , DATE and DATE .

Records indicate that medicine was systematically administered for his venous insufficiency and until DATE for his mental disorder . The latter treatment was interrupted until DATE and after this date was given sporadically .

During his detention , several disciplinary measures were taken against the applicant . Accordingly , his visit and parcel rights were withdrawn on DATE , DATE , DATE and CARDINAL DATE , for possession of forbidden objects . From CARDINAL to DATE he was kept in solitary confinement .

Lastly , on DATE the penitentiary authorities placed the applicant in restrictive confinement ( “ regim restrictiv ” ) , for DATE due to his recalcitrant behaviour and repetitive infringements of the prison regulations . However , on DATE he was reintegrated into the normal detention regime , for good behaviour .

The applicant claimed that while subject to the restrictive detention regime he had been kept in a cold cell wearing worn clothes that had been inadequate for the temperature , sometimes handcuffed with his hands above his head , and that for DATE he had not been seen by a doctor and that correspondence to and from his family had been tampered with .

NORP In DATE , after the adoption of the final decision in the case , the applicant was transferred to Iaşi high - security Prison and placed in the section designated for extremely dangerous prisoners .

The applicant claimed that , despite his repeated requests to be seen by a specialist doctor and administered adequate medical treatment , during DATE of detention he had only been examined by the prison doctor , who had consistently informed him that there had been no funds for continuing his treatment . The prison doctor had told him : “ there is no problem if you die , we have a priest and there is wood in the store house ” ( “ nu e nici o problemă dacă mori , avem preot şi scânduri la magazie ” ) .

On an unspecified date , upon repeated requests by his family to the prison authorities , the applicant was transferred to a different dormitory .

According to the Government , the applicant was placed in shared dormitories , the first measuring QUANTITY m and the latter CARDINAL sq . m , which he shared respectively with CARDINAL and CARDINAL other prisoners . The dormitories had windows . Hygiene facilities were permanently accessible to prisoners in a separate room . Warm water was available once a week . The applicant had daily TIME walks , frequently received visits from members of his family and participated in the social programme of the penitentiary . His medical treatment continued .

On DATE , the Iaşi prison authorities informed the applicant ’s counsel that the applicant was not receiving any medical treatment at that moment , but that such treatment would be administered if necessary .

From DATE to DATE , the execution of the sentence was suspended for medical reasons . On DATE the applicant was released on probation .

Article CARDINAL of LAW ( “ CC ” ) and the relevant provisions of Law no . CARDINAL on the execution of sentences are described at DATE and CARDINAL of the PERSON judgment ( see ORG v. GPE , no . MONEY , CARDINAL DATE ) .

Law CARDINAL was replaced by Emergency Ordinance no . CARDINAL ( “ LAW ” ) on the rights of prisoners , adopted by the Government on DATE and ratified by ORG on DATE . This Ordinance constituted a general measure taken by the ORG in the execution of the judgment adopted by ORG in the case ORG v. GPE ( judgment of DATE , Reports of Judgments and Decisions CARDINALVII ; see ORG ) . The relevant parts of the Ordinance read as follows :

“ ( CARDINAL ) Prisoners may complain against the measures taken by prison authorities ( ... ) .

( CARDINAL ) In examining a complaint , the court takes CARDINAL of the following decisions :

( a ) allows the action and orders the annulment , revocation or change of the measure taken by the penitentiary authority ;

( b ) dismisses the action if it is ill - founded . ”

That GPE was replaced by LAW no . CARDINAL/CARDINAL on the execution of sentences , which in its LAW provides for a similar appeal lodged with the judge responsible for the execution of sentences , who has the powers described in LAW and whose decision can be appealed against before a court .

The legislation on the organisation of the military ORG offices and military tribunals is summarised in paragraph CARDINAL of the Barbu Anghelescu judgment ( see PERSON v. GPE , no . MONEY , CARDINAL October CARDINAL ) and in paragraph CARDINAL of the PERSON judgment ( see PERSON v. GPE , no . ORG , DATE ) .

Until DATE when PERSON no . CARDINAL entered into force , the penitentiary commanders were active military officers ( see Articles CARDINAL and CARDINAL of Law no . ORG and LAW no . MONEY ) .

The findings of ORG for the Prevention of Torture ( “ the ORG ” ) following visits to NORP prisons , as well as the ORG ’s general findings , are summarised at paragraphs CARDINAL of the ORG judgment ( see GPE v. GPE , no . CARDINAL , DATE ) .


Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Respondent State to take measures of a general character (Article 46-2 - Changes of regulations;Legislative amendments);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

André Potocki;Angelika Nußberger;Dean Spielmann;Ganna Yudkivska;Karel Jungwiert;Mark Villiger

The applicant was born in DATE . He is currently serving a prison sentence in PERSON , LOC .

On DATE a police officer was killed and another police officer was severely wounded by a group of people using fire arms . On DATE the police stopped a car , whose driver stated that he had dropped off CARDINAL people , who had allegedly committed the above crime , in a field QUANTITY away . Thereupon QUANTITY police officers went to search for the suspects . They saw CARDINAL people , including the applicant , crossing the field . The police officers fired several shots into the air and ordered the people to lie down on the ground .

According to the applicant , they all obeyed the orders of the police . The officers then approached them and started beating the applicant and the CARDINAL others . The applicant was hit and kicked in the head , chest , kidney and groin area , as a result of which he lost consciousness . The applicant stated that the officers had pierced his cheek with a needle and had used a cigarette lighter to burn his right hand and suggested that they had done so in order to make him regain consciousness .

According to the written statements of the police officers submitted by the ORG , while the applicant and the other suspects threw aside their guns they refused to obey the orders of the police and “ offered physical resistance to the arrest ” . Because of this , the police officers employed “ unarmed combat techniques ” , forced the suspects to the ground and handcuffed them .

TIME the applicant was taken to the medical wing of the investigative detention unit ( слідчий ізолятор – “ the GPE ” ) in GPE where he regained consciousness .

He was examined by a doctor who noted a number of lesions and bruises on the applicant ’s head and body , including a wound and a haematoma on his forehead , and haematomas on his left shoulder , chest and right thigh . The medical report , written by that doctor , also stated that the applicant had several blisters on his fingers which , according to the applicant , were the result of burns . The doctor stitched the wound on the applicant ’s forehead , prescribed a pain killer and suggested that the applicant see a neurologist . According to the report , an X - ray examination of the applicant ’s chest did not reveal fractures of his ribs .

According to the applicant , the doctor did not note down all of his injuries . For instance , fractures of the applicant ’s ribs and CARDINAL fingers on his right hand were not revealed as no X - ray examination was carried out .

DATE a medical expert examined the applicant and noted that his injuries were minor .

In the course of the criminal investigations against him , the applicant complained of ill - treatment by the police to various public authorities , including the prosecutors .

By decisions of CARDINAL DATE and DATE , the prosecutors refused to bring criminal proceedings against the police officers , finding that they had acted lawfully during the arrest . The finding was based on the statements of the police officers and the applicant ’s medical documents ( see paragraphs CARDINAL , DATE and DATE above ) . The applicant did not challenge the ORG decisions before the courts .

He again raised complaints of ill - treatment in the course of his trial before ORG ( “ the ORG ” ) and ORG , which rejected them as unsubstantiated ( see paragraphs CARDINAL and CARDINAL below ) .

On DATE the investigator came to see the applicant in the GPE . The investigator wished to question the applicant . He informed the applicant that he was suspected of aggravated robbery and murder committed on DATE and explained to the applicant his basic procedural rights and guarantees , including the right to legal assistance and to remain silent . The relevant records were signed by the applicant , the investigator and a lawyer , PERSON , who , according to the Government , was also present during the applicant ’s questioning . The lawyer was appointed by the investigator to represent the applicant in the proceedings .

The records also contain a statement by the applicant expressing the wish to be represented by another lawyer , PERSON , but that if that lawyer refused to take part in the case he would agree to be represented by PERSON In the records the applicant also noted that the statement was made in the presence of PERSON Accordingly , the applicant refused to be questioned on DATE . During his subsequent questioning , including at the trial stage , the applicant denied his responsibility for the crimes of which he was suspected .

In his application to the ORG , the applicant stated that PERSON had taken part in the proceedings at the request of the applicant ’s wife , who had paid the lawyer ’s fees . The applicant also contended that the lawyer had not been present at the GPE on DATE and that he had signed the records at DATE . The applicant submitted letters issued by the PERSON administration on DATE , according to which during the pre - trial investigations lawyers had not visited the applicant in the GPE and the applicant had left the GPE DATE to undergo a psychiatric examination on DATE .

On DATE the prosecutors invited Mr T. to defend the applicant . As that lawyer refused to take part in the proceedings , PERSON continued to represent the applicant throughout the proceedings .

According to the records submitted by the Government , PERSON took part in the investigative actions , including the applicant ’s questioning which took place in the GPE on DATE and DATE , studied the materials of the case , attended the court hearings , made written and oral pleadings , and prepared an appeal in cassation contesting the applicant ’s conviction . The court hearings which the lawyer did not attend were adjourned .

NORP The applicant argued that during the entire period of the investigations he had not communicated with PERSON and had not been allowed to correspond with anyone outside the GPE . The investigators allegedly told him that it was not possible to see the lawyer before the trial . The applicant met the lawyer for the first time when the trial commenced .

On DATE the applicant was charged with several counts of aggravated robbery , murder and inflicting bodily injuries .

In DATE the investigations were completed . The applicant and PERSON were invited to familiarise themselves with the case file . The applicant expressed the wish to study it without the lawyer , allegedly at the request of the investigator , who promised the applicant that he would be allowed to meet with his brother .

NORP In DATE the applicant finished studying the case file and in DATE ORG started examining the case as a court of first instance .

In the course of the court proceedings the applicant submitted several requests for the withdrawal of PERSON , stating that he did not need a lawyer at all . While the trial court made several requests to the local bar association inviting it to suggest another lawyer for the applicant , no replacement was found . The court also invited the applicant to hire a new lawyer himself , which the applicant did not do . By a letter dated DATE , the President of ORG informed the Deputy Minister of ORG that the applicant ’s and his co - defendants’ refusal to be legally represented had resulted in a delay of DATE to the court proceedings , which could not be pursued without the participation of a lawyer given the gravity of the charges . It was also noted that the defendants had submitted numerous procedural requests , including requests for their representation by the Minister of ORG and relinquishment of jurisdiction in favour of ORG , which evidenced that they were in fact trying to protract the proceedings .

Before the trial court the applicant contested the charges against him and alleged that the testimony of his co - defendants confirming his and their involvement in the impugned criminal acts had been obtained under physical and psychological pressure from the police . The applicant also lodged a request with the court for a video or audio - recording to be made of the proceedings , but this was rejected by the court .

The applicant ’s co - defendants raised similar complaints before the court and denied their submissions made in the course of the pre - trial investigations .

On DATE ORG found the applicant guilty of several counts of aggravated robbery , inflicting grievous bodily injuries and murder . It sentenced the applicant to life imprisonment . The court based its judgment on the testimony of TIME witnesses and victims of the crimes , partly on the statements of the applicant ’s co - defendants in the course of the investigations , and also on the conclusions of several forensic , ballistic and other expert examinations . The court further took into account the fact that in the course of the searches at the GPE places of residence the police had found a large number of objects belonging to the victims of the crimes .

The court also dealt with the GPE allegations that they had been tortured by the police in the course of the pre - trial investigations in order to obtain their confessions . It questioned the investigators and the police officers concerned and concluded that those allegations were unsubstantiated . The court also noted that the defendants , excluding the applicant , had made their statements to the investigators in the presence of their lawyers . The applicant ’s co - defendants had not complained of illtreatment to the law - enforcement authorities . The court therefore found no ground which could prevent it from relying on these statements in its judgment .

As to the applicant , the court observed that he had not admitted his guilt at any stage of the proceedings , and there was no evidence that he had been forced to do so . Having questioned the police officers who had arrested the applicant on DATE and CARDINAL of the officers from GPE , the court noted that the applicant had been injured during the arrest but that there was no evidence that he had been ill - treated during his subsequent detention .

On DATE and DATE respectively the applicant and PERSON lodged separate cassation appeals , contesting the factual findings of the first - instance court . The applicant also complained that the trial court had failed to give due consideration to the GPE arguments that “ they had been denied the opportunity to have and meet with a lawyer before their first questioning ” and that the trial court had not allowed the GPE lawyers to visit them in detention . The applicant further made reference to his ill - treatment on DATE and alleged that the statements of his codefendants had been obtained under physical and psychological pressure from the police .

Meanwhile , on DATE the applicant and CARDINAL of his codefendants concluded an agreement with PERSON . , pursuant to which Mr Br . undertook to defend them in the proceedings .

On DATE the applicant asked ORG to allow Mr Br . to participate in the proceedings as his defence counsel .

On DATE ORG informed the applicant that it had no jurisdiction to decide on the matter .

On DATE Mr Br . complained to the President of ORG about ORG refusal to allow him to act as the applicant ’s and his co - defendant ’s counsel . PERSON . also requested access to the criminal case file so that he could prepare a cassation appeal on behalf of the applicant and his co - defendant and to be granted leave to visit them in the GPE . No reply was given by ORG to PERSON . ’s requests .

On DATE the applicant sent an amended cassation appeal to ORG in which he complained about ORG refusal to allow PERSON . to act as his defence counsel .

By a letter of DATE , GPE submitted that the applicant had been there .

The court also noted that PERSON . did not have an advocate ’s licence and that he had not proved that , under domestic law , he could participate as defence counsel in criminal proceedings . The court further reiterated that Mr Br . should have asked ORG to grant him leave to participate in the cassation proceedings , since the first - instance court , which had already delivered a judgment in the case , was not competent to decide on that matter .

On DATE ORG held a hearing on the cassation appeals . According to the applicant , PERSON . was allowed to take part in the hearing on the applicant ’s behalf . The applicant , his co - defendants and their lawyers were also present . ORG rejected the cassation appeals submitted by the applicant and PERSON Supreme Court further upheld the conclusions of ORG concerning the GPE allegations of their ill - treatment at the pre - trial stage of the investigation .

According to the applicant , PERSON . was not given an opportunity to study the case file or to meet with the applicant prior to ORG hearing .

On DATE the applicant lodged his present application with the ORG .

On DATE the applicant asked ORG to provide him with copies of the medical reports drawn up after his examination in the GPE and of the procedural decision concerning his request for a video or audio - recording of the proceedings before that court , which he intended to submit to the ORG in substantiation of his application .

By a letter of CARDINAL May CARDINAL , the Deputy President of ORG informed the applicant that his request had been refused , as it was not the function of that court to copy documents for the applicant . The court also noted that there were no funds in the court ’s budget allocated for such purposes .

On DATE the applicant lodged a complaint with ORG ( the “ ORG ” ) against the Deputy President of ORG for failure to provide him with copies of the documents from his case file . In his complaint , the applicant stated that he needed copies of these documents in order to submit them to the ORG . He also sought compensation for the damage allegedly caused by the refusal to provide him with the documents .

On DATE ORG declined jurisdiction to consider the applicant ’s complaint . The court held that under NORP law judges acting in their official capacity enjoyed immunity from court proceedings against them .

On DATE the applicant appealed against the decision of DATE .

On DATE the same court granted the applicant time to rectify certain shortcomings in his appeal . The court held that the applicant ’s appeal should have been typewritten and should have contained information concerning the parties to the proceedings , in particular , their names and addresses .

On DATE the applicant submitted a new version of his appeal . The applicant also attached a note , issued by the administration of the GPE , stating that , in accordance with the law , detainees were not provided with the opportunity to type their documents .

DATE . On DATE ORG refused to accept the applicant ’s appeal for failure to comply with the decision of DATE . According to the applicant , he appealed against the decision of CARDINAL DATE . There is no information concerning the outcome of his appeal .

By a letter of DATE , the ORG asked the applicant to submit copies of his appeal in cassation against the judgment of DATE and of his requests for legal assistance .

On DATE the applicant asked the President of ORG to provide him with a copy of his appeal in cassation as well as with copies of the documents which he had already requested in his letter of CARDINAL DATE . The applicant referred to the ORG ’s letter , but did not enclose a copy .

On DATE the acting president of ORG rejected the applicant ’s request on the same grounds as in the letter of CARDINAL DATE . The acting president of the court also stated that , if necessary , the ORG could ask the ORG authorities to provide it with copies of these documents .

The applicant ’s further requests for copies of the documents from his case file were also rejected by ORG .

In DATE the ORG submitted , at the ORG ’s request , copies of various documents from the applicant ’s criminal case , including his appeal in cassation and documents concerning legal assistance in the course of the domestic proceedings .

In DATE and DATE the ORG received several letters sent from the applicant ’s brother ’s address . In these letters the applicant alleged that the Government had blocked his correspondence with the ORG . In particular , the applicant stated that on CARDINAL , DATE , DATE and DATE , and on CARDINAL and DATE he had submitted his observations on the admissibility and merits of the application , claims for just satisfaction , a friendly settlement proposal , and some additional information to the staff of the ORG , to which the applicant had been transferred from the GPE in DATE , for them to send to the ORG . The applicant provided a copy of the document dated DATE in which the authorities confirmed that they had dispatched the applicant ’s correspondence addressed to the ORG on the above dates . However , the ORG never received the applicant ’s submissions .

According to the ORG , the impugned letters were sent promptly to the ORG . The staff of the ORG was not responsible for the fact that they did not reach the ORG .

In DATE the applicant complained to ORG and ORG alleging interference with his correspondence . The complaints were dealt with by the prosecutors and the postal service . The prosecutors replied to the applicant that his letters had been duly dispatched by the staff of ORG . The prosecutors also noted that it was not possible to check whether the postal service had received and dispatched the applicant ’s letters , which were unregistered mail . That was confirmed by the postal service .

By a letter dated DATE , the Vice - President of ORG rejected another request from the applicant for copies of documents from his case file . In the letter it was also noted that the applicant had the right to hire a lawyer , pursuant to paragraph CARDINAL of LAW on LAW , or to appoint a representative among CARDINAL of his close relatives . The applicant was informed that such a representative would be given an opportunity to study the case file and to make notes .

The relevant provisions of domestic legislation and the relevant provisions of the Recommendation Rec(CARDINAL)CARDINAL of the Committee of Ministers to member GPE on ORG were summarised and quoted in the judgment in the case of NORP v. GPE ( no . CARDINAL , § § DATE and CARDINAL - CARDINAL , DATE ) , which mainly concerned the failure of the authorities to provide the applicant with the opportunity to obtain copies of documents needed for his application before the ORG .

In the context of the execution of the ORG ’s judgment in ORG , in DATE ORG submitted to ORG an action plan on measures to comply with that judgment . An extract from the action plan concerning general measures reads as follows :

“ CARDINAL . Publication and dissemination of the judgment

The summary of the judgment was published in the ORG ’s ORG [ PERSON ] , no . CARDINAL of CARDINAL [ DATE .

By letters of CARDINAL DATE , explanatory notes on the conclusions of ORG in the above - mentioned judgment were sent to ORG , ORG of GPE for civil and criminal cases , ORG , ORG and ORG .

Moreover , the ORG ’s conclusions in the above judgment were included in the submission to ORG of GPE concerning the execution of ORG judgments ( as of DATE ) . ORG of GPE instructed the relevant authorities to take measures to remedy the violation found , to avoid similar violations and bring their practices in accordance with the requirements of the Convention .

Legislative measures

In order to determine whether any legislative amendments are required the authorities are currently holding multilateral discussions . As soon as this issue is determined at the national [ level ] ORG will be informed thereof . ”

At its CARDINALth meeting on CARDINAL - CARDINAL DATE ORG took note of the action plan and invited GPE to keep it informed of the progress made in its implementation . So far , ORG has not yet concluded the supervision of the execution of the judgment under LAW .


Preliminary objection joined to merits (non-exhaustion of domestic remedies);Violation of Art. 5-4;Damage - finding of violation sufficient;Costs and expenses - claim dismissed

Mr PERSON , a NORP national , had no fixed abode in GPE when he was convicted . He now lives in GPE .

He was arrested in GPE and remanded in custody on DATE in connection with a heroin - trafficking operation involving CARDINAL other people . He was charged with illegally importing controlled substances ( QUANTITY of heroin ) and of conspiring with a co - accused to import drugs and of being his accomplice .

On DATE ORG sentenced Mr PERSON to DATE imprisonment and made an order permanently excluding him from NORP territory . It also ordered confiscation of the drugs that had been seized and imposed a fine of MONEY ( ORG ) jointly on the applicant and the other convicted defendants in lieu of confiscation and ordered them , pursuant to LAW ( “ CC ” ) , to pay a like amount , equal to the value of the unlawfully imported substances , to the customs authorities . The applicant ’s joint liability was limited to ORG CARDINAL,CARDINAL,CARDINAL . Lastly , the court ordered Mr PERSON ’s continued detention pursuant to LAW ( see paragraph CARDINAL below ) , for a period not exceeding the maximum period for imprisonment in default DATE which , under LAW ( “ ORG ” – see paragraph CARDINAL below ) was DATE , until the ORG penalties had been paid .

On DATE , on an appeal by Mr PERSON and a cross - appeal by the prosecution , ORG upheld both the applicant 's conviction and sentence and the orders made in favour of the customs authorities . The applicant 's appeal to ORG was dismissed on DATE .

On DATE the applicant applied to ORG to be transferred to GPE under PERSON on ORG . On DATE the ORG rejected the application on the ground that the customs fine had not been paid . It added that the application could be reconsidered if all or part of the sum was paid , and that to that end the applicant could , if he so wished , contact the customs authorities with a view to a settlement .

On several occasions Mr PERSON , who was held in LOC detention centre , sought a “ settlement with the customs authorities ” . On DATE he applied for the order for imprisonment in default to be discharged offering to pay ORG CARDINAL . Further applications , in which he offered to pay ORG CARDINAL,CARDINAL and then ORG CARDINAL,CARDINAL , were unsuccessful as the Director of ORG had fixed the sum required for discharge of the order at FRF CARDINAL,CARDINAL .

NORP In a letter of CARDINAL DATE , Mr PERSON renewed his offer of ORG CARDINAL while at the same time asking the customs authorities to advise him urgently what they would consider a “ reasonable offer ” as his prison sentence for the criminal offences was due to end on DATE .

On DATE the customs authorities replied that his offers were too low compared with the penalties imposed , that his tax return showing a nil liability to income tax could not be taken into account as profits derived from drug trafficking were necessarily undeclared and , lastly , that the order for his imprisonment in default would not be discharged until the sum of FRF CARDINAL , which had previously been indicated , had been paid . That decision would be reviewed once he had served CARDINAL months’ imprisonment in default . Having regard to the position taken by the customs authorities , ORG also rejected further requests by the applicant to be transferred to GPE .

In the meantime the applicant had , on DATE , lodged an application with the President of the PERSON tribunal de grande instance to have the order for his imprisonment in default discharged as he was insolvent , insolvency being a ground for not enforcing such orders ( Article CARDINAL of LAW “ ORG ” – see paragraph CARDINAL below ) . The President rejected that application on DATE on the ground that it was devoid of purpose , since the applicant was still detained by virtue of the criminal conviction and sentence , “ a sentence unconnected with imprisonment in default ” .

On DATE Mr PERSON renewed his application to the President of the PERSON tribunal de grande instance and enclosed the letter from the customs authorities ( see paragraph CARDINAL above ) and a certificate attesting that he had no income - tax liability . The President was asked to hear the application in his capacity as urgent applications judge , under LAW ( see paragraph CARDINAL below ) .

In an order made in that capacity on DATE the President asked the public prosecutor ’s office , pursuant to the first paragraph of LAW and to LAW ( see paragraph CARDINAL below ) , to refer the difficulty to ORG , which had sentenced the applicant . The order read as follows :

Mr PERSON asserted that he was insolvent and produced a certificate attesting that he has no liability for ORG ( income tax on individuals ) for DATE .

The urgent applications judge has jurisdiction to order a stay of execution of an order for imprisonment in default if the committal warrant is not prima facie valid .

The prima facie validity of a warrant is not in issue if it was issued by a court in a decision that is final ...

Mr PERSON produced a certificate attesting that he has no liability for ORG . That document does not by itself suffice to show that he is insolvent or justify discharging the order for imprisonment in default .

In these circumstances it is appropriate to ask the public prosecutor ’s office to refer the difficulty to ORG , which passed the sentence . ”

At a hearing on DATE ORG heard the applicant , the lawyer officially assigned to represent him and the customs authorities ; the latter submitted that ORG CARDINAL and CARDINAL ORG were not applicable in the case . On DATE ORG dismissed the application for discharge , holding that :

“ ORG considers that ORG decision to prolong the applicant 's detention under LAW is not covered by the ordinary criminal - law procedure laid down in Articles CARDINAL et seq . of LAW giving jurisdiction to the urgent applications judge ( Court of Cassation , CARDINALnd ORG , DATE ) .

Consequently , ORG holds that PERSON ’s application for the order for his imprisonment in default to be discharged is admissible , as it concerns an interlocutory issue over the execution of a sentence , but is unfounded in law . ”

The applicant was released on DATE after paying the sum of FRF CARDINAL to the customs authorities .

Imprisonment in default is an invention of NORP law originally designed to guarantee execution of a court order to pay a sum of money either to the ORG or to a private individual . It consists in detaining the recalcitrant debtor in a short - stay prison , where he is not obliged to work . It is not an alternative to payment , as the person against whom the order is made remains liable to pay the sum due ( LAW see paragraph CARDINAL below ) , but it may not be imposed a second time for the same debt . Its scope has gradually been whittled away since DATE , when it was seen as a real means of punishment available to creditors , who could apply to have insolvent civil debtors committed to prison . It was permanently abolished in civil and commercial proceedings by the PERSON of DATE , surviving in respect of debts to the ORG only ( LAW CCP – see paragraph CARDINAL below ) , and the rules governing its enforcement have become more lenient ( exempting insolvent individuals from imprisonment in default was the most important feature of a reform introduced on DATE by PERSON no . DATE , LAW see paragraph CARDINAL below ) .

Imprisonment in default now serves to guarantee recovery of debts to the ORG , such as pecuniary penalties DATE with the exception of those imposed for political or press offences – or any other payment to the ORG not in the nature of civil damages .

It is governed in many respects by the same principles as those governing execution of sentence : it can not be executed once the time - limit for enforcing sentence has expired . In extradition cases ( PERSON of DATE ) and for the purposes of rehabilitation ( ORG CARDINAL and CARDINAL ORG ) its execution is deemed the equivalent of payment . The criminal - law principles that sentences must be adapted to the individual and that consecutive sentences must not be imposed apply .

In spite of these aspects , imprisonment in default is regarded not as a form of imprisonment in lieu of payment but as a guarantee of enforcement directed at the debtor 's person . On DATE , on an appeal on points of law by an offender sentenced to pay CARDINAL fines of ORG CARDINAL each for contravening a département health regulation on manure tipping , ORG pointed out : “ Imprisonment in default is not a penalty . It is a means of enforcement automatically attached to any pecuniary order made by a criminal court and satisfies the requirements of both LAW ] ( b ) of the LAW ... and LAW No . CARDINAL . ” After the judgment in the case of PERSON v. GPE of DATE ( Series A no . CARDINAL-B , p. CARDINAL , § CARDINAL ) , in which the ORG held that imprisonment in default was a “ penalty ” within the meaning of LAW , ORG of ORG held that in tax cases imprisonment in default is a “ punitive ” measure and may be ordered only if there has been a conviction for a criminal offence ( DATE , ORG . crim . ) no . CARDINAL ) .

When a criminal court orders imprisonment in default , it does not have power to vary its duration , which is laid down by law ( Articles CARDINAL and CARDINAL ORG – see paragraph CARDINAL below ) . In certain circumstances , as an exception to the ordinary law , the customs authorities can obtain enforcement of a warrant of committal for default before it becomes final ( Article CARDINAL ORG ) .

The Code of Criminal Procedure provides as follows :

“ Any interlocutory issue relating to the execution of a sentence shall be referred to the court which passed sentence , which may also rectify any purely clerical errors in its decisions . ”

“ Where such an issue is referred by the public prosecutor or the convicted person , the court shall rule in chambers after hearing submissions from the public prosecutor ’s office , counsel for the convicted person ( if counsel so requests ) and , where appropriate , the convicted person himself , subject to the provisions of Article CARDINAL . ”

“ Where an order to pay a fine or court costs or to pay the ORG any other sum not in the nature of civil damages is made in respect of an offence which is not political and does not attract a sentence of life imprisonment , the length of imprisonment in default applicable in the event of failure to comply shall be as laid down in LAW .

Where appropriate , the length shall be determined according to the total amount of debt outstanding . ”

“ The length of imprisonment in default shall be :

( CARDINAL ) DATE , where the fine and the sums whose payment has been ordered amount to MONEY , but do not exceed MONEY ;

( CARDINAL ) DATE , where they amount to MONEY , but not MONEY ;

( CARDINAL ) DATE , where they exceed MONEY . ”

“ Imprisonment in default may not be enforced in respect of convicted persons who prove that they are insolvent by producing :

( CARDINAL ) a certificate from their local tax - collector , stating that they are not liable to income tax ; or

( CARDINAL ) a certificate from their local mayor or police superintendent . The fact that the convicted person is in fact solvent may be proved by evidence in any form . ”

“ If , when in prison , the debtor wishes to lodge an urgent application concerning his imprisonment in default , he shall immediately be brought before the President of the tribunal de grande instance for the place where he was arrested , who shall rule on the application as a matter of urgency , or , if appropriate , refer the case back to the court which shall rule on the application in accordance with the procedure and subject to the conditions laid down in ORG and CARDINAL . ”

“ A convicted person who has been imprisoned in default of payment shall not thereby be released from the payment obligation . ”

Article L. CARDINAL - CARDINAL , second paragraph , of ORG provides :

“ As an exception to the provisions of LAW , the length of imprisonment in default shall be DATE where the fine and any other pecuniary penalties imposed for an offence mentioned in the above paragraph [ breaches of provisions of statutory instruments concerning poisonous substances or plants classified as dangerous drugs ] or for related customs offences exceed F CARDINAL,CARDINAL . ”

Article L. CARDINAL - CARDINAL was repealed by Law no . CARDINAL of DATE , known as “ the transitional law ” , on the entry into force of the new Criminal Code and the amendment of certain provisions of criminal law and criminal procedure made necessary by its commencement . It was replaced by Article CARDINAL - CARDINAL ORG , which came into force on DATE and was amended by PERSON no . CARDINAL of DATE . Article CARDINAL - CARDINAL provides :

“ Prosecution for the serious crimes ( crimes ) defined in Article CARDINAL - CARDINAL shall be subject to limitation after DATE . Sentences passed on conviction for CARDINAL of these offences shall lapse by limitation after DATE from the date on which the conviction became final .

Prosecution for the other major offences ( délits ) defined in Article CARDINAL - CARDINAL shall be subject to limitation after DATE . Sentences passed on conviction for any of these offences shall lapse by limitation after DATE from the date on which the conviction became final .

As an exception to the provisions of LAW , the length of imprisonment in default shall be DATE where fines and any other pecuniary penalties imposed for any of the offences mentioned in the preceding paragraph or for the related customs offences exceed F CARDINAL,CARDINAL . ”

The following provisions of LAW are relevant in the present case :

“ CARDINAL . Judgments and decisions in customs cases may be executed by any means provided for by law .

Judgments and decisions by which persons are convicted of offences against customs legislation shall also be enforceable by imprisonment in default ... ”

“ A person convicted of a customs offence or an offence relating to indirect taxation may , where the court makes an express order to that effect , be kept in detention , even if an ordinary appeal or an appeal on points of law has been lodged , until he has paid the fiscal penalties imposed on him ; save in the case of drug offences , any period of detention served on that account following conviction shall be deducted from the period of imprisonment in default ordered by the court and may not exceed the minimum period laid down in LAW for failure to comply with an order to pay a sum equal to the fiscal penalties imposed . ”

The remedy available to a person who seeks , inter alia on the ground of his insolvency , to challenge an order for his imprisonment in default , is

an application to the urgent applications judge under LAW . If there is an arguable issue over execution of the order , the urgent applications judge refers the case to the trial or appellate court which made the order ( see LAW , first paragraph , ORG ) .

NORP The issue of the applicability of LAW and , therefore , of the ordinary procedure to cases of imprisonment in default of payment to the customs authorities has given rise to conflicting case - law ( see paragraph CARDINAL below ) . In its decision of DATE in the instant case , ORG held that the ordinary courts have no jurisdiction to review orders for imprisonment in default in customs cases ( see , to the same effect , the judgment of the Fort - de - France Court of Appeal of DATE which was however set aside by ORG on DATE ; and the order of the urgent applications judge of the GPE tribunal de grande instance of DATE ) . In so doing , it referred to a judgment of ORG of ORG ( PERSON , DATE ) , in which it was held :

“ ... The trial court 's decision to prolong the applicant 's detention , made under LAW of LAW , is not covered by the ordinary criminal - law procedure provided for in Articles CARDINAL et seq . of LAW , which gives jurisdiction to the urgent applications judge . ”

ORG also came to the same conclusion in a judgment of CARDINAL DATE ( ORG . crim . no . CARDINAL , p. CARDINAL ) :

“ No appeal on points of law lies from a decision of the ORG of Appeal ruling on an appeal against an order of the urgent applications judge made pursuant to LAW ... ”

In an earlier decision of DATE ORG of ORG had held that ORG had jurisdiction to order a stay of execution of an order for imprisonment in default after it had found that the order for detention was not prima facie valid as the sentence imposed on the person concerned had been time - barred thus precluding the execution of the order made against him .

ORG of ORG initiated a change in the case - law by its judgments of DATE and DATE , in which it held :

“ ... ORG did not misdirect itself in law in holding that , by introducing a particular form of imprisonment in default , LAW did not preclude the application of ORG CARDINAL and CARDINAL of LAW . ” ( ORG , DATE , ORG . IV no . CARDINAL )

and

“ The urgent applications judge has the power to suspend the enforcement of an order for imprisonment in default in cases in which he considers that the order has become prima facie invalid in the light of new developments since it was made , in particular , where the debtor claims that he is insolvent . However , in such circumstances , the judge must refer the case to the trial or appellate court which made the order . ” ( ORG , DATE , D. DATE , ORG CARDINAL )

That line has also been followed by ORG in a decision of DATE , in which it said :

“ By introducing a particular form of imprisonment in default , LAW did not preclude the application of ORG , CARDINAL and CARDINAL of LAW . A judgment declaring inadmissible an application for relief from execution , on the ground of insolvency , of an order for imprisonment in default must be quashed . ” ( Bull . crim . no . CARDINAL )

NORP The issue of the extent of the powers of the urgent applications judge on applications for discharge of an order for imprisonment in default has also given rise to inconsistencies in the case - law . The question has been whether the urgent applications judge has jurisdiction only to determine the prima facie validity of the order or whether he also has jurisdiction to decide whether the debtor is insolvent .

Some urgent applications judges have held that their jurisdiction is limited to reviewing the prima facie validity of the order for imprisonment in default ( see GPE tribunal de grande instance , DATE , ORG , CARDINAL–CARDINAL DATE , p. CARDINAL , and GPE tribunal de grande instance , DATE ) . Others have referred the insolvency issue to the court that made the order ( see PERSON de grande instance , DATE , and LOC tribunal de grande instance , DATE ) , while still others have held that they were empowered to decide the insolvency issue and to discharge the order for imprisonment in default ( see GPE tribunal de grande instance , DATE , and GPE tribunal de grande instance , CARDINAL DATE ) .

ORG reversed and quashed a judgment of a court of appeal that had held that an urgent applications judge had jurisdiction to decide whether the debtor was insolvent ( see ORG decision of DATE cited above ) . The full court of ORG held on DATE that urgent applications judges do have such power . However , that decision concerned a debtor who was not in prison .


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

Anatoly Kovler;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Volodymyr Butkevych;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE .

In DATE the applicant was mistreated by the police . He brought CARDINAL civil actions against them .

On DATE and DATE ORG of GPE held for the applicant and awarded him compensation . It appears that both judgments became binding DATE after their pronouncement . The judgment of DATE was not enforced , because ORG had lost the writ of enforcement . The judgment of DATE was enforced on DATE .

Under 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 Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

Anatoly Kovler;Erik Møse;Linos-Alexandre Sicilianos

On DATE the applicant was arrested and criminal proceedings were brought against him for drug related offences .

After CARDINAL adjournments - CARDINAL on the court ’s initiative and CARDINAL on the request of the applicant - on DATE ORG convicted the applicant and sentenced him to life imprisonment and a fine of MONEY ( judgment no . CARDINAL ) .

On DATE the applicant lodged an appeal with ORG challenging the court ’s findings and its evaluation of the evidence , which was scheduled for hearing on DATE .

After several adjournments the hearing of the appeal took place on DATE and the applicant ’s sentence was reduced to DATE of imprisonment .

There is no indication in the case file whether an appeal on points of law was lodged challenging the appellate judgment .


Violation of Art. 8;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award

She was a teacher at a private school in GPE ( GPE ) . The school was owned by a limited liability company , PERSON , of which the applicant and CARDINAL other teachers were members and PERSON the manager .

NORP In DATE PERSON lodged a criminal complaint with ORG ( ORG ) about irregularities in the management of the school 's affairs . She stated that she was a de facto member of PERSON

NORP The GPE public prosecutor 's office opened an investigation in respect of the members and manager . On DATE the Revenue Police searched the company 's head office and the members ' homes . At that time the applicant received official notification that she was under investigation .

On an unspecified date the public prosecutor 's office ordered the applicant to be questioned and informed her that she and the other persons charged were suspected of committing extortion , fraud and forgery . On DATE the Revenue Police questioned the applicant .

On DATE the public prosecutor 's office asked the investigating judge to issue an arrest warrant against the applicant and certain other persons on charges of criminal association , tax evasion and forgery of official documents .

On DATE the investigating judge ordered PERSON and the other persons charged to be placed under house arrest .

On DATE the applicant was served with the judge 's decision . Like anyone placed under house arrest , she avoided being remanded in custody . However , ORG compiled a file on her ; photographs and fingerprints were included in it . On DATE the deputy public prosecutor responsible for the investigation and officers from the Revenue Police gave a press conference .

CARDINAL newspapers published articles about the investigation .

The first DATE , ORG , published CARDINAL articles , on CARDINAL and DATE . In the first one it referred to “ alleged formal and substantive illegalities in the management of a private school ” . After stating that the applicant and CARDINAL others , who had been placed under house arrest , had been charged with very serious offences ( criminal association , extortion , forgery , fraud and tax evasion ) , the newspaper indicated that other persons charged “ were allegedly also ” victims of acts of extortion committed by the QUANTITY people who had been arrested . After outlining the measures taken by the investigators , the newspaper stated that the CARDINAL people who had been placed under house arrest “ were allegedly ” the de facto managers of the school . The newspaper went on to explain what the extortion had consisted of . It added that “ unofficial accounts had been found at the home of the CARDINAL people concerned ” and that “ the investigators had found that the pupils enrolled ” in CARDINAL classes “ were in fact the husbands and cousins of the women who had been arrested ” . The only passage reporting the investigators ' statements concerned someone other than the applicant .

The other DATE published on DATE together with a photograph of the CARDINAL arrested women – was similar in content to the first one .

On DATE the second DATE , ORG , published on the front page a photograph ( identity format ) of the CARDINAL people who had been placed under house arrest and stated that they “ had set up a bogus school ” . The contents of the article were comparable to those of the articles published in DATE .

The applicant 's photograph , together with that of the CARDINAL other women who had been arrested , was published CARDINAL times on CARDINAL and DATE . Each time it was an identity photograph that had been taken by ORG when the file was compiled , at the time of the applicant 's arrest , and released by them to the press .

On DATE the applicant challenged the order placing her under house arrest in the tribunale della libertà ( a court with jurisdiction to examine preventive measures ) of GPE .

On DATE the court ordered the applicant to be released on the ground that it was no longer necessary for the purposes of the investigation to keep her under house arrest .

On DATE the public prosecutor 's office requested the applicant to be committed for trial . The case was listed for hearing before the investigating judge on CARDINAL DATE . However , the applicant waived her right to that phase and asked to be tried by the court in accordance with a shortened form of procedure .

The case was therefore set down for hearing before ORG on DATE .

On DATE the case ended with the special procedure for imposition of the penalty agreed between the applicant and the prosecution ( Article CARDINAL of LAW “ the ORG ” ( applicazione della pena su richiesta delle parti ) ) , namely , DATE and DATE imprisonment and a fine of QUANTITY .

The parties did not provide the ORG with any indication as to possible legislation governing the photographing of persons charged or arrested and placed under house arrest without being imprisoned and the release of such photographs to the press .

Presidential Decree no . CARDINAL of DATE sets forth the implementing regulations in respect of PERSON no . CARDINAL of DATE on the administration of prisons .

With regard to persons charged who have been arrested and imprisoned , paragraphs CARDINAL and CARDINAL of Regulation CARDINAL of the implementing regulations provide as follows :

“ A personal file shall be compiled on anyone detained or confined as soon as he or she is imprisoned . The file shall follow the person concerned whenever he or she is transferred and shall be stored in the archives of the prison that releases him or her . The ministry shall be informed that the file is being stored .

The references of this personal file shall include civil - status particulars , fingerprints , photographs and any other item necessary for the exact identification of the person . ”

It is clear from paragraph CARDINAL of that regulation that the compilation of a personal file also concerns persons placed in pre - trial detention .

Law no . CARDINAL of DATE concerns the new rules relating to public safety . The relevant provisions of this PERSON read as follows :

Section CARDINAL – Coordination and direction of the police forces

“ With a view to implementing the guidelines issued by the Minister of the ORG on exercising the functions of coordination and unitary direction in respect of order and public safety , ORG shall carry out the following tasks :

( a ) classification , analysis and assessment of information and data that have to be provided by the police forces as well for the prevention of disorder and the protection of public safety and for the prevention and punishment of crime , and distribution to the operational services of the above - mentioned police forces ;

“ The information and data referred to in section CARDINAL , paragraph ( a ) , must relate to information taken either from documents which are stored in CARDINAL way or another by public authorities or departments or from judgments or decisions by a judicial authority or from documents relating to the criminal investigation and available in accordance with LAW or from police inquiries .

In all cases it is forbidden to gather information and data on a citizen solely on the ground of his or her race , religion , political opinions or adherence to the principles of a trade union , cooperative , charitable or cultural movement or on account of any lawful activity carried on by him or her as a member of an organisation lawfully engaged in CARDINAL of the above - mentioned spheres .


Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)

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

The applicant was born in DATE and lives in GPE .

The applicant was the president of a non - governmental organisation known as GPE ( Investors of GPE ) . In DATE he wrote an article entitled “ Shares for the NORP of GPE ” ( “ Акции для московского мавра ” ) . The article was about the acquisition of shares in ORG ( a local energyproducing company which was at the time a part of the State holding ORG ) by a group of GPE - based firms . In the article the applicant described the purchase as a crooked deal and alleged that a high - level official from GPE , CARDINAL of the leaders of the progovernment political party , was behind the transaction . The article reads as follows :

“ Shares for the Moor of GPE

Where are the MONEY [ obtained from ] the placement of shares in ORG ?

We meant well ...

Everything started with an advertisement in [ the official DATE ] ORG of DATE , in which ORG informed us about the next step in its exploration of market in the country – namely , about the official registration of the issue of CARDINAL simple non - documentary nominal shares . [ In that advertisement ORG ] described in great detail the conditions and procedure for the issue of the shares , including the distribution of the shares amongst prospective buyers in the first priority group and the second priority group , explained how to formulate a request for acquisition of shares , and , naturally , indicated the bank account into which payments for the shares should be made . The payments were supposed to go through a commercial bank situated in GPE [ a city in southern GPE ] . In other words , a reputable firm got involved , and , as a consequence , the business was put on a solid footing . At least , that was the appearance that the sponsors of the project wanted to create for those who they hoped would “ swallow the bait ” and , under the influence of the very promising advert – published , by the way , in all the mass media of LOC – would be prepared to play for high stakes .

At the local level the preparations had started long before the publication of the advert . First of all , the issuer ( the corporation issuing the securities ) took care to develop convincing arguments which would help to get support for their project from public officials . On DATE a consultation meeting took place in the office of the head of LOC [ of GPE ] , where the question of payment of the local taxes due by ORG was discussed . It was no accident that that question was on the agenda of the meeting : by that time the outstanding fiscal debt of the energy industry [ vis - a - vis the local authorities ] , including the carryovers from DATE , amounted to MONEY – a very significant amount for the District [ budget ] . As a result of the discussion an agreement was reached which provided , in particular , that ( direct quote ) “ the administration of LOC discharges ORG from the payment of MONEY in local taxes . In return , ORG transfers [ to the administration ] its shares worth MONEY , at the market rate applicable at the moment of the transfer ” . Both parties signed the minutes of the meeting containing that clause . Naturally , among the signatures were those of Mr F.I.T. , the head of the local administration , and Mr G.I.S. , the managing director of GPE . Some time later Mr. PERSON made a similar proposal – “ shares in exchange for taxes ” – to the financial department of the administration of LOC and to the mayor 's office of GPE .

The plot thickens . At DATE the Duma of LOC adopted the PERSON on investment in the construction of the Ust - Srednekanskaya HydroElectric Power Plant ( HEPP ) . Almost certainly , everyone has heard about the problems with the financing of that “ never - ending construction project ” , so the desire of the lawmakers to use every opportunity to get the extra funding is quite understandable . As a result , in the new law , driven by the best aspirations , they stipulated that “ ... in order to complete the construction of the ORG plant , which is CARDINAL of the most important elements in the fuel and energy system of LOC Kolymaenergo Plc may dispose of the fees as a registered member of the special economic zone , due for the period until DATE , which were earmarked for the special - purpose extra - budgetary fund for social development in LOC .

Those fees should be considered as a capital investment in the main capital of ORG , in particular to pay for the construction costs of ORG , on condition that a corresponding part of the shares is registered as the property of the FAC ” ( end of quote ) . That law was enacted on DATE .

... But it ended up the same as always

As the saying goes , “ everything looked smooth on paper , but they forgot that in reality it was full of cracks ” . The fourth additional issue of shares was registered on DATE , and distribution was supposed to start in DATE . On different dates , all within the period of open distribution of the shares , a number of potential investors concluded standard acquisition agreements with ORG . ORG [ the biggest ORG - controlled energy company at that time ] , for good reason , bought shares for MONEY , thus investing in the construction of the Ust - Srednekanskaya HEPP . However , the situation has since changed , for the worse as regards most of the investors . CARDINAL of the local companies , ORG , expressed an interest in purchasing shares for MONEY . When the director of ORG . Mr PERSON , learned about that offer , he requested that all previous offers and the book where they were registered be destroyed , and decided that henceforth he would take care of the distribution of the shares .

Very soon , instead of the bank account in ORG indicated in the original issue plan , a new bank account was opened , this time with the PERSON bank ( GPE ) , and , following that , the implementation of the whole scheme , as designed from the very beginning , started . In a very short time , CARDINAL commercial firms were incorporated in GPE : ORG , ORG and ORG Bakkar transferred MONEY to ORG 's account with the PERSON bank ; with that money the recipient [ ORG ] paid for the promissory notes issued by ORG . For those not familiar with of all the subtle details , I should explain that promissory notes , unlike shares , do not need to be secured by any property or financial resources of the company that issued them . That is why any limited company with a charter capital of CARDINAL or QUANTITY and nothing besides , not a bean , can issue promissory notes for MONEY , provided that a buyer comes forward .

In our case the buyer was ORG , which at that time had an outstanding debt of MONEY owed to its employees , the pension fund and the ORG budget at different levels . The value of the promissory notes was MONEY ; it 's no coincidence that the head of PERSON earlier transferred MONEY to the account with the PERSON bank ( see above ) . And then that amount was passed CARDINAL times through the corresponding bank accounts , with the use of the same photocopied bank payment order . As a result , PERSON purchased , almost for free , a huge number of shares which amount to MONEY of the overall charter capital of GPE .

It is easy to guess what the reaction of the would - be investors , who suffered both pecuniary and non - pecuniary damage , was . Numerous legal suits , petitions and complaints were addressed to ORG , ORG of LOC , PERSON and other senior authorities . On DATE an NGO called GPE was created by a group of persons , and it immediately joined in the process of uncovering the truth . The main goal of that ORG consisted in promoting the interests of the investors , shareholders and other interested persons , and protecting their investment in the energy industry of LOC before the courts , social policy institutions or any organisations competent to address their concerns in whatever manner . But they received silence in reply [ to their petitions ] . In particular , the board of directors of GPE kept ignoring them , although it had been Mr ORG , the head of the board , who had approved the [ share ] issue plan .

As we can read in a letter from CARDINAL of the shareholders of GPE to the head of the management board of GPE , PERSON ( with a copy to the head of the management board of ORG , PERSON . ) : “ In the internal audit report , under the heading of “ Profits and losses ” there is no information about any money received from the shares sold . MONEY were supposed to be transferred to the bank account of ORG . That money was sufficient to pay the outstanding debts of the company , to relaunch normal operations through the bank account of the company and not through [ non - monetary ] “ clearances ” in which the company was losing CARDINAL of what was due to it .

“ Furthermore , it became known that some of the shareholders , namely PERSON and NORP TEK , had paid CARDINAL of the price [ of the shares they had purchased ] , whereas according to the audit report on the issue of ORG had paid [ ORG ] the full price . Why has this been done ? ” [ end of quote ]

The arguments of the claimant were considered unpersuasive

That letter was sent as early as DATE ; in DATE a meeting of shareholders took place , but the author of the letter did not get a reply until now . The question formulated at the end of the quote is , most likely , a rhetorical one , because we are all grown - ups and we all understand why it has been done . We also understand that after that scam with the shares came to an end , all our hopes inspired by the promises of the sponsors of the [ share issue ] plan , the hope of getting salary arrears paid , of getting tax paid , of investing in the construction of the Ust - Srednekanskaya HEPP , etc . , all those hopes have vanished .

A striking example is provided by the situation with the company LOC , which brought proceedings before ORG of LOC , seeking damages from ORG for false advertising . That company [ FAC ] was prepared to buy CARDINAL shares . DATE , on DATE , it made the first payment , but on DATE the money was returned [ to GPE ] since the account indicated in the agreement did not exist and the recipient of the money was not [ amongst the clients of the bank ] ( now we know why DATE the account with the LOC bank was never opened ) . The LOC company immediately sent PERSON all signed documents and asked them to provide new banking details for the bank transfer . However , there was no reply . A new request in similar terms was made on DATE , but , again , to no avail . As a result , on CARDINAL DATE a tort claim was introduced before ORG of LOC , for an amount of MONEY .

The claimant 's arguments were very convincing . Let us take the manipulation with the bank accounts described above . Whereas most of the potential buyers of the shares of the fourth additional issue tried ( in vain ) to use the account indicated in the issue plan , i.e .. the account that in reality did not exist , those investors for whom PERSON created a most - favoured regime were able to pay for the shares through a secret account in the GPE - based Korvet bank . The decision of the court mentioned that fact ; however , it was interpreted in a peculiar way . Indeed , as the decision established , “ ... owing to the absence of the bank account and of a recipient in the bank the money in the amount of MONEY was returned ” . To all appearances , that fact is established . However , on the same page , a few paragraphs below , one can read CARDINAL of the arguments which the defendant put forward : “ ... in breach of the agreement on the acquisition of shares the claimant had made the payment before the conclusion of the agreement . ” On the next page we see the court 's conclusion , which was the central reason for dismissing the tort action : “ ... at the moment of conclusion of the agreement the claimant had been required to transfer to the defendant MONEY . The defendant , in accordance with section CARDINAL of the agreement , was to forward to the claimant the documents confirming the payment together with a signed copy of the agreement . However , in breach of the agreement , the claimant only transferred MONEY for the shares ” .

Too many inconsistencies , are there not ? In fact , contrary to what the court established , the payment had been made on DATE , i.e. , after the conclusion of the agreement , which had been signed on DATE . What does this mean ? First of all , it means that the materials in the case file were not duly studied by the court . Furthermore , what difference would it make if the claimant transferred MONEY and not CARDINAL ? Would the correct bank account appear in the issue plan ? Would it allow the company to become the lawful owner of the shares ? Unfortunately , miracles are impossible , especially when nobody wants to produce a miracle . And please pay attention to the phrases which are underlined [ in the quote above ] . It is hard to reconcile the argument of the defendant ( that the payment should have been made after conclusion of the agreement ) and the argument of the court ( that the buyer was under an obligation to send a signed copy of the agreement together with a document confirming payment ) . I will further note that the acquisition agreement required [ the buyer ] to pay MONEY of the overall sum of the transaction , but did not specify whether such payment had to be made in instalments or in one go .

And that is not the end . In the section “ Distribution of the shares amongst buyers in the second priority group ” of the issue plan one can read : “ Offers from prospective buyers in the second priority group will be accepted [ by ORG ] in chronological order of their receipt ” . That means that the dates of receipt of every offer should be registered in a special logbook . However , the requests by the claimant and by the court to produce such a logbook were to no avail . It was only possible to see the record of existing shareholders , in which , under no . CARDINAL , we can see the name of the very same GPE - based firm which obtained , for unclear reasons , preference in buying the shares . Still , it was impossible to get a clear answer to the question whether an offer from GPE to buy shares was registered , and , if so , on what date .

Ready or not , here I ( do n't ) come ?

Very shortly [ I will tell ] you about those who stood to gain in this whole obscure story . When the prosecution officials involved in the inquiry into the situation with the shares came to GPE , they were unable to find PERSON , ORG or ORG at the official addresses given , or those people who were mentioned in the documents of ORG . The Moor has done his work , and the LOC has left , without leaving an address or even saying “ Goodbye ” .

This is the true situation ; however , criminal investigation no . CARDINAL into the abuse of official position by the managers of ORG was finally closed for lack of the constitutive elements of a crime .

The decision of ORG of LOC was appealed against by ORG ; in its grounds of appeal all the breaches of the law in the sphere of the advertisement , selling and buying of shares were described in detail . However , ORG again just ignored the arguments of the claimant . None of the facts mentioned above , which clearly spoke against the defendant , were taken into account . As a result , the claimant , together with PERSON , lodged an appeal on points of law with ORG in GPE . As to the discontinuation of the criminal investigation , we will challenge the decision of the prosecution in this respect by all legitimate and civilised means .

When that dispute started , we informed PERSON . , the head of the management board of ORG , and ORG , of the situation . However , a principle of esprit de corps came into play , and they decided not to wash their own dirty linen in public . As it appears , they want to cover up the affair at all levels .

If we do not succeed , we will still continue fighting . On DATE our organisation sent to ORG a statement of claim against ORG and ORG and the then head of ORG of GPE , the leader of the “ GPE ” fraction in ORG , PERSON , the General Director of GPE Mr. PERSON , and the chief accountant PERSON What is our organisation asking for before the court ? First of all , that it declare the advertisement of the fourth issue of shares abusive , and the issue itself invalid . We think that ORG breached the provisions of the federal legislation , in particular , the Standards for the Issue of Shares , ORG of the Rights of Investors and ORG . The legal provisions on which we base our claims are indicated in the statement of claim .

So far the date of the hearing in this case has not been set ; it will take place in DATE or DATE , after the judge returns from her leave . By the way , the judge took DATE leave DATE after the case had been assigned to her . A similar handling of cases concerning machinations with shares has become almost systemic .

All this squabbling can not but be detrimental to the investment climate in the region , because ORG is a public limited company and its shares can be purchased by foreign investors as well . And now , when GPE is seeking recognition as a country with a market economy , events of this kind will not help it to acquire weight .

In the current situation the NGO Investory Kolymy will insist on an objective examination of its civil claims and of the criminal case , in order to protect the rights of investors .

PERSON ,

Head of ORG ”

On DATE the applicant submitted the article to a municipally owned newspaper , PERSON , for publication . He produced documents in support of the facts described in the article . Mr PERSON , the editor - in - chief of the newspaper , agreed to publish the article . It was included in issue no . CARDINAL of DATE . That issue , with the applicant 's article in it , had a print run of CARDINAL copies .

On TIME , CARDINAL copies of the issue containing the applicant 's article were sent to subscribers and to ORG libraries . CARDINAL copies were given to the distributing company Rospechat to be sold at street distribution points , kiosks and newsstands . However , shortly afterwards those copies were withdrawn from the newsstands and they were later destroyed . According to the Government , the withdrawal was requested by PERSON ( the editor - in - chief ) . They submitted a letter from the editor - in - chief to the head of Rospechat asking the latter to withdraw the copies . The letter is dated DATE ; however , according to the applicant it was backdated . Only the copies that had been sent to libraries and subscribers remained . The ORG submitted that a part of the print run had already been sold , with the result that CARDINAL copies had been withdrawn and destroyed .

On DATE the editor - in - chief wrote a letter to the mayor of GPE asking the latter to release him from the position of editorinchief because he “ was unable to perform his duties in a fully professional manner ” .

On DATE the head of the trade union at the GPE hydroelectric power plant wrote a letter to the editor - in - chief of ORG asking him to explain why issue no . DATE had been withdrawn from the newsstands .

On DATE the editor - in - chief replied to that letter explaining that he had not given the relevant order . He claimed that the decision had been taken by the head of the distributing company Rospechat . He , the editor - in - chief , had had to sign a backdated order for withdrawal of the copies , and from a private conversation he had understood that the copies had been withdrawn because of the applicant 's article , which had mentioned the names of certain politicians whom the editor - in - chief described as “ untouchable ” . After that incident he “ [ had taken ] the difficult decision to resign from the position of editor - in - chief of ORG ” , because , in his words , “ the newspaper was unable to enjoy freedom of speech and of the press , ” and he “ did not want to deceive readers ” . It appears that soon afterwards the editor - in - chief left PERSON and started working as a journalist on a private newspaper .

In DATE the applicant tried to publish the article in several regional and central newspapers , but to no avail .

On an unspecified date in DATE the applicant lodged a formal complaint with the regional prosecutor 's office concerning the withdrawal of the copies . In his submission , the withdrawal amounted to unlawful interference with freedom of the press , a criminal offence under LAW .

On DATE that complaint was transmitted to the GPE town prosecutor 's office . The case was assigned to an investigator , who questioned the head of Rospechat and the former editor - in - chief .

On DATE the head of Rospechat testified before the investigator that the decision to withdraw the copies had been taken by the former editor - in - chief . On DATE the investigator questioned Mr PERSON , the former editor - in - chief of the newspaper . Mr PERSON confirmed that he had asked Rospechat to withdraw the copies of the newspaper . He explained that he had agreed to publish the article because it concerned an interesting subject and because the applicant had shown him documents which supported the facts described in the article . The editorinchief had thought that the article would arouse public interest and had decided to publish it . However , after fresh consideration , when the newspaper had already been printed and sent out for distribution , he had decided to withdraw it . He had realised that the editorial staff “ would have problems ” if the article was published . As to his letter of DATE , it had not been accurate , because at the time he had been upset over his own decision to resign from the post .

On DATE , after a preliminary inquiry , the investigator decided not to open a criminal investigation . The investigator found that the decision to withdraw the copies had been taken by the editor - in - chief himself without any coercion . The investigator noted , however , that the decision of the editor - in - chief to withdraw the copies had been motivated by the need to avoid lawsuits and litigation which might have followed the publication of the article , and to protect the editorial staff . The investigator concluded that no interference with freedom of the press had occurred .

The applicant challenged that decision before the court . On DATE the ORG examined the materials in the case file and heard evidence from the applicant and the former editor - in - chief ; the latter testified that he had signed the order to withdraw the copies after they had already been withdrawn from sale . After examining the applicant 's complaint , ORG decided to quash the decision of DATE . The court noted that by law the withdrawal of a print run could be ordered only by the judicial authorities . ORG also ordered certain additional investigative measures to be carried out by the investigating authorities .

On DATE the GPE town prosecutor ordered an additional inquiry . The case was assigned to another investigator , who questioned the applicant , the former editor - in - chief , the head of Rospechat and a staff member of Rospechat . The applicant testified that when he had learned about the withdrawal of the copies he had called the editor - in - chief , who explained that they had been withdrawn by a decision of Rospechat , and that the head of Rospechat had persuaded him to sign a backdated order for withdrawal .

NORP The head of Rospechat testified that the copies had been withdrawn by order of the then editor - in - chief . He also denied putting any pressure on the editor - in - chief .

NORP The former editor - in - chief confirmed his previous testimony given to the investigator of the town prosecutor 's office . As to his testimony before ORG , it was his view that the copies had been withdrawn before the order had been signed . Indeed , he had discovered at CARDINAL of the street kiosks that all copies of issue no . CARDINAL had disappeared . However , he had no proof that they had disappeared because they had been withdrawn .

Finally , the staff member of Rospechat confirmed that on an unspecified date she had helped the then editor - in - chief of PERSON to withdraw the copies from the street kiosks . Altogether , they had managed to withdraw CARDINAL copies .

On DATE the investigator concluded that there was no case to investigate . His reasoning was similar to the reasoning of the previous investigator of DATE .

NORP The applicant challenged that decision before the courts . On DATE ORG upheld the decision of CARDINAL DATE . The court concluded that the prosecution inquiry had been carried out with due diligence and that the findings of the inquiry had been properly reasoned . The applicant appealed , but on DATE ORG upheld the judgment of DATE .

The applicant brought court proceedings seeking to have CARDINAL copies of issue no . CARDINAL containing his article reprinted and sold at street kiosks .

On DATE the ORG dismissed his action . The court stated that the newspaper , as the owner of the copies , could dispose of them of its own free will . The court also found that there had been no contract between the applicant and the newspaper obliging the latter to distribute the issue containing the article .

The applicant appealed . On DATE ORG upheld the lower court 's decision , repeating the latter 's reasoning .

According to the charter of the newspaper , PERSON was founded by the municipal property committee of the municipality of PERSON ( “ the municipality ” ) in the form of a “ municipal institution ” ( муниципальное учреждение ) , with a view to informing the population of GPE about social , political and cultural life in the town . The municipality retains the ownership rights in respect of the assets of the newspaper , while the newspaper exercises a right of “ operational management ” ( право оперативного управления ) in respect of those assets . The municipality approves the budget of the newspaper and payroll expenses . The newspaper receives its funding from the municipal budget ; it can also receive income from other sources such as advertising , subscription fees , and so on . In DATE , according to the Government , all the newspaper 's expenses ( MONEY ) had been paid from the municipal budget .

The municipality can “ define targets ” for the development of the newspaper . The newspaper has an “ editorial council ” ( редакционный совет ) , a “ coordinating and advisory body ” composed of the editor - in - chief and several representatives of the municipality .

The editorial policy of the newspaper is defined by the “ editorial board ” ( редакционная коллегия ) , composed of the editor - in - chief , his deputy , the secretary , and the heads of departments . The editorial board can propose materials for publication or recommend not publishing “ controversial material ” .

The editor - in - chief of the newspaper is appointed by the municipality . The editor - in - chief appoints the other staff members of the newspaper and acts on behalf of the newspaper vis - à - vis third parties . The municipality can not compel the newspaper to publish material if it has been rejected by the editorial board , unless the law provides otherwise or the material is of an official nature . The charter of the newspaper does not stipulate , however , who can decide to withdraw or destroy copies of the newspaper or the grounds for doing so .

LAW of DATE , with further amendments , prohibits censorship : State bodies and officials can not require a communication medium ( for instance a newspaper ) to obtain prior authorisation for the publication of material . The Act also prohibits banning the distribution of certain material ( section CARDINAL of the LAW ) .

Under section CARDINAL ) of the LAW the editor - in - chief heads the editorial board and “ takes final decisions as to the production and distribution of the medium ” .

A communication medium may be established by a ORG body . The owner ( founder ) of the medium may interfere with editorial policy only to the extent defined in the charter of that medium ( sections DATE of the Act ) .

Under LAW of the LAW , non - subscription sales of a newspaper ( for example , sales from newsstands on the streets ) may be limited only to the extent defined by the LAW .

Under LAW of the LAW confiscation or destruction of a print run ( тираж ) or part of it is possible only pursuant to a court decision [ to this end ] which has entered into legal force .

Under LAW of the LAW , unless otherwise provided by the law , nobody can compel the editorial board to publish material which has been rejected by that board .

Founders , editors , publishers , journalists and authors may be held liable for breaches of NORP legislation on the mass media ( section CARDINAL ) .


The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . He is represented before the Court by Mr F.Vaz , a lawyer practising in GPE .

The applicant arrived in GPE in DATE and was granted leave to enter as a visitor until DATE . He applied for an extension which was granted until DATE . On DATE , he applied for a further extension as the husband of S. , a NORP citizen whom he had married on DATE . Leave was granted for DATE , expiring on DATE .

S. had a daughter PERSON ( born in DATE ) , by a previous relationship , who had regular contact with her natural father .

Meanwhile in DATE , the applicant was arrested for drugs offences . Following a plea of guilty to CARDINAL counts of supplying crack cocaine and CARDINAL counts of offering to supply , the applicant was sentenced on DATE to DATE imprisonment . The judge did not make any recommendation for deportation .

On DATE , PERSON gave birth to the applicant 's son , NORP

On completion of CARDINAL of his sentence , the applicant was released on parole .

On DATE , the ORG Secretary gave notice of his decision to make a deportation order against the applicant , referring to his conviction in view of which he deemed it conducive to the public good to make such an order .

DATE , the applicant appealed .

Following a hearing , by a decision of DATE , the Adjudicator rejected his appeal . He gave weight to the applicant 's good record in prison and his family circumstances . He noted that PERSON had relatives , including her parents , in GPE and had visited there on holiday , although she had lived all her life in GPE . Having regard however to the fact that the wife had a house and job in GPE , that NORP had uncertain medical problems and PERSON had regular access with her natural father , he did not consider that it would be reasonable to expect the wife to emigrate to GPE , in particular as it would severe PERSON 's links with her natural father . Nonetheless , weighing these factors together with the seriousness of his offences , the short period in which the applicant had lived in GPE and the fact that the applicant and PERSON had married knowing that he was not a NORP citizen and did not have indefinite leave to remain , he found that the measure was not unjustified .

On DATE , ORG refused permission to appeal , finding no error in the Adjudicator 's balancing of the relative factors .

On DATE , ORG refused an application for statutory review .