33.  The applicant also complained that the trial court should not have convicted him on the basis of his pre-trial statements; the trial judge had arbitrarily rejected the testimonies by the defence witnesses, including the applicant's wife and Mr P and thus had failed to examine them under the  <mask> as the prosecution witnesses, who merely attested the fact of the car inspection. He also contended that both the trial and appeal courts had wrongly refused to verify and to take into consideration other exculpatory evidence, including an invoice for the purchase of diesel.


65.  The applicant alleged that he had not been afforded effective legal representation and an opportunity to confer privately with counsel, his ability to actively participate in and follow the proceedings in the courtroom had been impaired by technical disruptions in the video transmission. He had sought to disprove before the appeal court the evidence of certain witnesses at his original trial, and had thereby raised the issue of his own credibility, so his personal appearance was particularly crucial in such circumstances. Finally, he had not had an opportunity to present his case under the  <mask> as the prosecution: the prosecutor had been present in the courtroom, whereas the applicant had participated via a video link.


22.  The applicant argued that the refusal of the Court of Appeal to hear G. as a witness had deprived him of his right to obtain the attendance and examination of witnesses on his behalf under the  <mask> as witnesses against him. G. had been of crucial importance to his case as the documents allegedly drawn up by him had been decisive in leading the Court of Appeal to conclude that there had been an intentional plan or conspiracy to commit the offences. G. had managed all the companies which had allegedly transferred assets abroad illegally and could have provided crucial information. G. had not even been heard in the pre-trial investigations, which had made it impossible to verify the content of the documents allegedly drawn up by him.


57.  The applicant maintained that his conviction had been unfair since the domestic courts had refused to examine his cellmates as witnesses on his behalf under the  <mask> as those for the prosecution, that is to say the prison officers who had conducted the search. He submitted that he had explained to the domestic courts why it had been important to have his cellmates’ evidence heard. By rejecting his procedural application in decisions which had contained very superficial reasoning, the trial and the appellate courts had breached both domestic legislation (Article 18 and 232 of the Code of Criminal Procedure) and the requirement contained in Article 6 § 3 (d) of the Convention. Lastly, he also stressed that apart from the statements of the prison officers on the purported discovery of the knife in his bed, there had been no other direct and decisive piece of evidence to conclude that he had been guilty.


27.  The applicant complained that the criminal proceedings against him had been unfair on account of his having been deprived of the opportunity to effectively present his defence. In particular, he contended that he had not been able to obtain the attendance of witnesses on his behalf under the  <mask> as witnesses against him, and that the domestic courts had refused his requests to commission additional expert reports. He relied on Article 6 §§ 1 and 3 (d) of the Convention, which reads as follows:


58.  The Government contended that the applicant had been assisted by one or more chosen legal representatives during the proceedings. He had denied having committed the offence from the beginning of the investigation and had had the opportunity to examine witnesses and to obtain the attendance and examination of witnesses on his behalf under the  <mask> of witnesses against him.


25.  The Government argued that, in the assessment of the relationship between the right to a fair trial guaranteed by Article 6 of the Convention and the obligation to withhold information pertaining to ongoing police operations from the parties to court proceedings, a difference should be made between the withholding of facts not affecting nor relating to the case and the withholding of facts affecting or relating to the case. The right of everyone “to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the  <mask> as witnesses against him” under Article 6 § 3 (d) cannot be considered to extend to the examination of witnesses in respect of facts which do not affect or relate to the case.


27.  The applicant made several complaints under Article 6 §§ 1 and 3 of the Convention that the proceedings against her were unfair. In particular, she submitted that (1) the principle of equality of arms was violated, because she was in an unequal position in comparison to the prosecution; (2) the court was biased; (3) it heard primarily witness testimonies which supported the police's version of events; (4) it failed to give adequate reasoning in its judgment and did not perform a thorough analysis of the presented evidence; (5) she was not informed promptly and in detail of the nature and cause of the accusation against her; (6) she did not have adequate time and facilities for the preparation of her defence as a result of the proceedings having been organised very quickly and in view of the fact that after her arrest she had been held in isolation at the police station; (7) she was not provided the opportunity to retain an attorney of her own choosing; and, (8) she was denied the right to obtain the attendance and examination of witnesses on her behalf under the  <mask> as witnesses against her even though she indicted she could do this on several occasions during the court hearing of 8 September 1999.


81.  The applicant further complained that he had not received a fair hearing in the determination of the charges against him. In particular, he claimed that the administrative proceedings had fallen short of equality of arms: they had not been public, and the applicant had been unable to participate in them effectively or to obtain the attendance of witnesses on his behalf under the  <mask> as the witnesses against him. He relied on Article 6 §§ 1 and 3 (d) of the Convention, which provide, in so far as relevant, as follows:


34.  The applicant complained that the criminal proceedings against him had been unfair because he had been deprived of an opportunity to prove his defence and had not been able to obtain the attendance of witnesses on his behalf under the  <mask> as witnesses against him, as provided in Article 6 §§ 1 and 3 (d) of the Convention, which reads as follows:


111.  The Government added that the DPS also could not claim to have been the victim of a violation of its right to stand in elections, since it had taken part in the election under the  <mask> as all the other parties and coalitions. By actively participating in the country’s political life and the elections, the party had implicitly agreed to obey the rules on the apportionment of seats and not to take advantage of any irregularities occurring during the voting procedure. The impugned judgment of the Constitutional Court had noted and remedied just such irregularities, and that decision had led to the annulment of the election of candidates from other political parties. Thus the impugned measure had not been aimed exclusively at the DPS and had not been implemented disproportionately and tendentiously.


28.  The applicant complained that the criminal proceedings against him had been unfair because he had been deprived of an opportunity to prove his defence and had not been able to obtain the attendance of witnesses on his behalf under the  <mask> as witnesses against him, as provided in Article 6 §§ 1 and 3 (d) of the Convention, which reads as follows:


39.  The Government submitted that the applicant had never applied to any Russian authority (whether prison authorities, prosecutor, ombudsman or courts) with complaints regarding the conditions of his detention in penal institution LIU-19 of the Republic of Mordoviya and had therefore not afforded them an opportunity to examine his complaints and, if appropriate, to offer redress. They therefore considered that he had failed to exhaust the domestic remedies and that his complaint should accordingly be rejected under Article 35 §§ 1 and 4 of the Convention. They furthermore submitted that HIV-positive inmates served their sentences in penal institution LIU-19 under the  <mask> as other prisoners. The inmates working at the LIU-19 sewing workshop, including HIV-positive inmates, were each allotted a personal sewing machine. In order to prevent the risk of the spread of HIV infection, all the premises of LIU-19 were wiped daily with disinfectants, as well as treated with quartz lamps twice a day for one hour. Regular counselling was given to detainees by the administration of the facility regarding risky behaviour, modes of HIV transmission and personal hygiene. All HIV-negative inmates (including the applicant during his stay there) underwent laboratory tests for HIV twice a year. There had been no instances of HIV being contracted in LIU-19. The applicant himself had not contracted HIV during his detention at LIU-19 either. The Government concluded that the complaint was manifestly ill-founded.


25. The applicant stated that she had attended only one session of the Court of Appeal while the public prosecutor had attended all four sessions. By allowing only the public prosecutor to attend the session at the final stage of the proceedings, the Court of Appeal had deprived her of the opportunity to present the case under the  <mask> as those afforded to the public prosecutor.


195.  The applicant complained that the presiding judge had acted arbitrarily in deciding on the issues of admissibility of evidence and examination of witnesses, in breach of the principle of equality of arms, the guarantee to examine defence witnesses under the  <mask> as prosecution witnesses, and, more generally, the right to a fair hearing guaranteed by Article 6 §§ 1 and 3 (d) of the Convention, which, in so far as relevant, provides:


27.  The applicant also complained under Article 6 § 3(d) that he was refused the attendance and examination of witnesses on his behalf under the  <mask> as witnesses against him, that the Court of Appeal refused him an oral hearing and subsequently the right to supplement his appeal after he had been denied a hearing and that the Court of Appeal ignored his written evidence.


32.  The Government averred that the proceedings had been fair. The applicant had been granted access to court as his case had been examined by both the Administrative Court and the Constitutional Court, which were both independent and impartial courts established by law. The Administrative Court had conducted the proceedings within a reasonable time and in accordance with the relevant procedural law. That court had addressed all the arguments presented by both the applicant and the Government of Croatia, and rendered a reasoned judgment based on the legislation in force. In particular, the Government argued that the principle of equality of arms had also been respected in the applicant’s case and that he had had the opportunity to present his arguments to the Administrative Court under the  <mask> as the opposing party.


38.  The applicant submitted that as he had not had the benefit of legal advice during his detention he had not been aware of any appeal procedure against conditions of detention, since bringing such complaints was not general practice. In any event, this was an ineffective remedy since any complaint was likely only to result in him being moved to a different cell with the  <mask>. Furthermore, the existence of an appeal procedure in law did not absolve the authorities from their obligation to ensure adequate conditions of detention.


20.  The Government stressed that in delivering the decision in the applicant company’s case the Supreme Court, therefore, having applied the provisions of the Convention and the rule of law principle, had filled a formal gap in the legislation. It had acted as a  <mask> whose task was to decide a dispute. Accordingly, that competence which the Supreme Court, as the highest judicial body, applied in this case could not be called specific as the Court called it in the case of Sokurenko and Strygun v. Ukraine (cited above, § 26) since by acting in this very way the Supreme Court in corpore had ensured the right to a tribunal that was lawfully established, competent in this kind of case and had decided the dispute.


134.  The applicant alleged a breach of Article 6 of the Convention on behalf of her son on the ground that he had not had a trial before an independent and impartial  <mask>, in the event that the Government were to claim that the arrest and detention of her son were lawful and that he was guilty of an offence under domestic law. The relevant parts of Article 6 of the Convention provide as follows:


86.  The Government stated that the Supreme Court had acknowledged, with reference to its judgments of 19 December 2017, that there had been flaws in the procedure in the appointment of A.E. However, the essence of the Supreme Court’s reasoning had been that, in spite of these irregularities, A.E. had been appointed as a judge of the Court of Appeal and was invested with the judicial competences just as any other appointed judge of the Court of Appeal. This meant that under domestic law, as interpreted and applied by the Supreme Court, the irregularities established by the court’s judgment of 19 December 2017 had not meant that A.E. had not been legally appointed as a judge. The applicant had therefore enjoyed a fair trial before a  <mask> within the meaning of Article 6 § 1 of the Convention. The Government argued that reasonable grounds existed for the Supreme Court’s findings and its conclusion had not amounted to a flagrant breach of national law.


30.  The applicant complained under Article 6 § 1 of the Convention that the judgment of 16 October 2000 had not been issued by a  <mask> because the lay judges had not been drawn by lot and had acted in that capacity outside the time-limit set in the domestic law. The relevant parts of Article 6 § 1 read as follows:


37.  The applicant maintained that she had been deprived of access to court to challenge her dismissal from the judiciary since the courts did not examine the lawfulness of the President’s decree concerning her dismissal relying on Article 160 § 1 of the CCP which the Constitutional Court later found to be unconstitutional. The applicant argued that the Council of Justice with its composition at the material time could not be considered as an independent and impartial  <mask> which would satisfy the criteria under Article 6 § 1 of the Convention. In particular, before the major judicial reforms following the Constitutional amendments of 2005, the Council of Justice was presided over by the President of Armenia, the Prosecutor General and the Minister of Justice and was therefore fully dependent on the executive.


27.  The applicant alleged that the length of his detention pending the trial before the Ankara Martial law Court had violated his rights protected by Articles 5 § 3 and 6 § 2 of the Convention. He maintained that the Martial Law Court was not an independent and impartial  <mask>. He also alleged that his right to a fair trial had been breached since the Martial Law Court had convicted him on the basis of the statements he had made to the police under duress.


91.  The Government further indicated that in accordance with Section 9 of the Lay Judges Act lay judges Ms D. and Mr S. had served in the City Court until the applicant’s conviction on 30 April 2004. The Government noted that after 1 January 2004 the examination of the applicant’s case continued with the participation of the above lay judges in accordance with Article 242 of the Code of Criminal Procedure of Russia which provided for the principle of invariance of the court’s composition throughout the trial. Besides, by 1 January 2004 almost all the witnesses in the applicant’s case had been questioned, and the applicant had remained in custody for four years. Therefore, the interests of justice and the interests of the applicant himself called for the continuation of the proceedings by the same court. Otherwise a differently composed court would have been obliged to restart the trial from the very beginning. The Government concluded, therefore, that there had been no interference with the applicant’s right under Article 6 § 1 of the Convention to have the criminal charge against him determined by a  <mask>.


35.  The applicant argued that the proceedings had been conducted by a court administrator who had not been authorised by law to conduct that type of very complex proceedings. Moreover, the value of the claim had been above the statutory threshold of HRK 50,000, above which the court administrator was not allowed to conduct proceedings, even if the court administrator at issue had been consulting a competent judge. The court administrator in the applicant’s case had led the proceedings herself, regardless of the fact that the records of the hearings had been signed by a judge. Therefore, the applicant’s case had not been heard by a  <mask>.


17.  The applicant company complained that the judgment of 11 August 2005 had not been delivered by a  <mask> since the rules concerning the formations of judges examining such applications had not been observed. It further complained that both this judgment and the supplementary judgment of the Supreme Court of Justice of 30 March 2006 had breached the principle of legal certainty as guaranteed by Article 6 § 1 of the Convention, which reads as follows:


111.  The Government submitted (paragraph 86 above) that the essence of the Supreme Court’s reasoning had been that, in spite of these irregularities, A.E. had been legally appointed a judge of the Court of Appeal and was invested with the judicial competences just as any other appointed judge of the appellate tribunal. This meant that under domestic law, as interpreted and applied by the Supreme Court, these irregularities, established in the court’s judgments of 19 December 2017, had not resulted in A.E. not being legally appointed as a judge. The applicant had therefore enjoyed a fair trial before a  <mask> within the meaning of Article 6 § 1 of the Convention. The Government argued that reasonable grounds existed for the Supreme Court’s findings and its conclusion had not amounted to a flagrant breach of national law.


29.  The Government maintained that there was no violation of the applicant's right to a fair trial in that his claims were considered in a public hearing by a competent  <mask>. The reversal of the May 2001 judgment gave the City Court a power to review the case in its totality, including the assessment of evidence and determination of the amount of the award. The domestic court considered the case properly and gave a reasoned judgment.


59.  The applicant complained of the fact that the Tax Authority's decisions concerning additional taxes and tax surcharges had been enforced prior to a court determination of the disputes. In particular, he maintained that the tax assessment proceedings had not been determined within a reasonable time and that he had been unable to obtain a fair hearing in those pending proceedings. Moreover, he had been deprived of his right to be presumed innocent until  <mask>. He relied on Article 6 of the Convention, which, in so far as is relevant to the complaint, provides:


70.  The applicants complained of the fact that the Tax Authority's decisions concerning additional taxes and tax surcharges had been enforced prior to a court determination of the disputes. In particular, they maintained that the tax assessment proceedings had not been determined within a reasonable time and they had been unable to obtain a fair hearing in those proceedings. Moreover, they had been deprived of their right to be presumed innocent until  <mask>. They relied on Article 6 of the Convention, which, in so far as is relevant to the complaint, provides:


54.  The Government argued that, having regard to the overall context of that decision, the Regional Court had referred to the existence of evidence pointing to a likelihood that the applicant had committed one of the offences in issue, and not to the question of his guilt or innocence. However, the Court emphasises that there is a fundamental distinction to be made between a statement that someone is merely suspected of having committed a crime and a clear judicial declaration, in the absence of a final conviction, that the individual has committed the crime in question (see Garycki, cited above, § 71 and Nešták v. Slovakia, no. 65559/01, 89, 27 February 2007). Having regard to the explicit and unqualified character of the impugned statement, the Court finds that it amounted to a pronouncement on the applicant’s guilt as regards one of the offences with which he had been charged before he was  <mask>. The Court underlines that there can be no justification for a court of law to make a premature pronouncement of this kind.


84.  The applicant further complained that in the judicial decisions relating to his detention on remand and, in particular, in the Regional Court’s decisions of 16 August and 11 October 2000 it had been taken as established that he had committed the offence imputed to him, that he had had a tendency to commit offences and that his motive had been the need to obtain money to settle his debt. As these conclusions had been reached before he had been  <mask>, the applicant alleged a violation of his right to be presumed innocent. He relied on Article 6 § 2 of the Convention which reads as follows:


227.  The Government did not accept that Article 5 could be relied in an  <mask> case (the Court had doubted that it could be in Tomic v. the United Kingdom (dec.), 17837/03, 14 October 2003). Even if it could, no issue arose in the present case because the applicant would not be detained for a lengthy period before being brought before a court. SIAC had found that it was likely he would be brought before a “judicial authority” within 48 hours, even if this were only a prosecutor with judicial status. The report of Mr Al-Khalili and Mr Najdawi confirmed that the Public Prosecutor was a judicial officer; they had also reported that the 48 hour period in which the police had to notify the legal authorities of any arrest had been reduced to 24 hours (see paragraphs 95 and 96 above). SIAC had also found that extensions of detention up to fifty days were unlikely to be sought (see paragraph 41 above). Both of SIAC’s findings had been upheld by the Court of Appeal and the House of Lords. In the House of Lords, Lord Phillips had also found that 50 days’ detention fell far short of a flagrant breach of Article 5 (see paragraph 58 above) and, although they did not accept that detention for fifty days was likely, the Government relied upon his conclusion.


15.  The applicant complained under Article 6 § 1 of the Convention that he had been denied a fair hearing by an independent and impartial tribunal as the Supreme Military Administrative Court had been composed of military judges and officers. He maintained under Article 6 § 3 (a) and (d) of the Convention that this court had refused to hear his witnesses and under Article 6 § 2 that it had failed to postpone the proceedings pending the outcome of the criminal case filed against him. Lastly, he claimed that his  <mask> from the armed forces on account of his debts violated Article 1 of Protocol No. 4.


11.  The applicants complained under Article 6 § 1 of the Convention that their lack of access to the documents submitted by the Ministry of Defence to the Supreme Military Administrative Court had infringed their right to adversarial proceedings, together with the principle of equality of arms. The second applicant, Mr Yıldırım (application no. 46287/07), also complained that his  <mask> from the military school on the basis of a secret security investigation, the results of which had not been disclosed to him, had been unfair.


39.  The applicant maintained that his wrongful conviction had given rise to his subsequent  <mask> from Finland and to interference with his family life. The process as a whole had inflicted damage upon him. As to pecuniary damage, he claimed EUR 20,000 for unlawful deprivation of liberty, EUR 22,000 for loss of employment and EUR 1,500 for travel expenses from Gambia to Finland. As to non-pecuniary damage, he requested a formal acknowledgement from the State that he had been wrongfully convicted, imprisoned and expelled; immigration clearance for himself and his new family and dependants; suitable housing; language courses; and defrayment of the costs of any professional help that he may require in order to repair relations with his son in Finland.


66.  The applicant further complained that she had not received compensation from the Foundation under the second compensation scheme in respect of the fact that she had been expelled from her parents' house by the German occupying administration. As a result of the  <mask> she and her family had suffered serious hardship, lost their home and property and had been exposed to physical and psychological suffering. They had experienced difficulties in finding accommodation afterwards and had been exposed to a long period of uncertainty and poverty. The expulsion had lacked any legal basis and had been carried out for the purposes of settling German nationals in the farms of their lawful Polish owners. She should have received compensation for that, but the Foundation had refused. Moreover, the Foundation's decision could not be reviewed by any other body.


151.  The Government further submit that the applicant's  <mask> from Latvia did not limit his access to court as he could rectify the deficiency of his complaint and continue the proceedings before the Central District Court of the City of Riga through his lawyer. In case the applicant's presence was considered mandatory by the court, it would have summoned him, according to Article 2395 of the Civil Procedure Code. The court's summons would have been a valid basis for issuing a visa to the applicant.


73.  The Government further claimed that the use by the French authorities of specific flights to transport a number of aliens to their countries of origin was based on practical considerations and could not be analysed as a practice of collective  <mask> within the meaning of that provision. The introduction of such flights had been made necessary by the difficulty, and even impossibility, of obtaining seats on scheduled flights towards certain destinations, especially to countries to which there were few scheduled services from French airports.


20.  The applicant claimed TRY 10,000 (approximately EUR 5,700) in respect of pecuniary damage on account of the educational expenses his father was asked to reimburse following his  <mask> from the military academy. He also requested that the payment order of the İzmir Civil Court in the judgment of 14 April 2008 be lifted. He further claimed EUR 10,000 in respect of non-pecuniary damage. The Government contested these claims.


68.  The applicants alleged a breached of Article 3 of the Convention on account of their forced  <mask> from their village. They had mentally suffered as a result of the actions of the members of security forces, who had burned their family houses. Under Article 8 of the Convention, they complained about the destruction of their property. Furthermore, under Article 1 of Protocol No. 1, they maintained that the destruction of their houses and their forced eviction from the village had violated their right to the peaceful enjoyment of their possessions. The provisions of Articles 3 and 8 of the Convention are set out above at paragraph 59, and Article 1 of Protocol No. 1 provides, insofar as relevant, as follows:


25.  The applicant claimed 148,848.86 Turkish liras (TRY)[1] in respect of pecuniary damage: TRY 72,000[2] for the salaries to which he would have been entitled as a military officer, as well as TRY 76,848.86[3] for his educational expenses, including the expenses he was asked to reimburse following his  <mask> from the naval academy. He also claimed TRY 50,000[4] for non‑pecuniary damage and TRY 4,500[5] for the costs and expenses incurred before the domestic courts. The applicant only submitted two fee agreements signed with the lawyers representing him during the domestic proceedings in support of his claims.


163.  The Government reiterate that the applicant came to Latvia on the basis of a visa, which was valid until 17 November 1997. After the expiry of the visa, the applicant did not try to obtain a residence permit but stayed in Latvia illegally until he was apprehended on 19 February 1998. As a result, upon his release on 19 August 2002, the applicant resided in Latvia illegally and the CMA, according to the Government, issued the  <mask> order, pursuant to Article 38 of the Law on Entry and Residence in the Republic of Latvia of Foreign Citizens and Stateless Persons. Thus, according to the Government, the criterion of 'prescribed by law' was satisfied. Further, the law was officially published, easily accessible and its provisions were formulated sufficiently clearly and precisely.


16.  The applicant complained under Article 6 § 1 of the Convention that he had been denied a fair trial by an independent and impartial tribunal on account of the composition of the Supreme Military Administrative Court. He maintained that the failure of the Ministry of Defence to inform him of the charges against him amounted to a breach of Article 5 § 2 of the Convention and that the terms and conditions of his  <mask> from the military academy violated his rights under Article 6 § 2. He lastly complained under Article 13 of the Convention that the Supreme Military Administrative Court failed to state explicitly what means of redress against its decision were available.


19.  The applicant claimed 30,000 euros (EUR) as pecuniary damage for the loss of income he had been deprived of during the time he spent at the military academy and subsequent to his  <mask> while he was looking for a job. He also claimed EUR 20,000 for non‑pecuniary damage and EUR 3,000 for costs and expenses. The applicant did not submit any justification in support of his claims, all of which the Government contested.


28.  The applicant submitted that he had raised the issue of his risk of being subjected to ill-treatment if returned to Uzbekistan in the extradition,  <mask> and refugee-status proceedings, advancing a number of specific arguments, such as an increased risk of ill-treatment of persons who were, as was the applicant, accused of participation in a banned religious activity. The Russian courts failed to analyse the nature of the charges against the applicant, disregarded the link between the charges and the risk of ill-treatment and did not examine the information from various international organisation and from the Court’s judgments. The applicant rejected the Government’s argument that the decision on his administrative removal did not necessarily mean that he would be expelled to Uzbekistan. No other possibility had ever been discussed in the course of the administrative proceedings and, furthermore, there was no reason to believe that any other country would be willing to accept him. His placement in the detention facility foreclosed the possibility of his voluntary and independent departure from Russia and prevented him from choosing the country of destination.


27.  The Government submitted that the applicant’s allegations that he risked ill-treatment in the event of his extradition to Uzbekistan had been considered by the national authorities and dismissed on sufficient grounds. Referring to the decisions of the prosecution and immigration authorities and the domestic courts in the course of the extradition and  <mask> proceedings, the Government asserted that his claims had been duly reviewed and found to be devoid of substance. In their opinion, the assurances presented to the Russian authorities by the Uzbekistani authorities were sufficient and compatible with the countries’ international obligations and domestic legal developments. As regards the expulsion proceedings, the expulsion order did not specify that the applicant was to be taken to Uzbekistan, but merely stated that he was to be removed from the territory of the Russian Federation. The Government concluded that a risk of the applicant’s treatment contrary to Article 3 of the Convention had not been convincingly established.


18.  The applicant complained under Articles 6 § 1 and 13 of the Convention that he had been denied a fair hearing by an independent and impartial tribunal as the Supreme Military Administrative Court had been composed of military judges and that it had acted as a first and only instance court, which had also infringed his right to an effective remedy. He further maintained under Article 6 § 1 that he had been denied a public hearing due to the lack of reference to the principal public prosecutor’s name in the court decisions. The applicant contended that his  <mask> from the military academy had amounted to a punishment without a law, in violation of Article 7 of the Convention. Lastly, he maintained under Article 14 of the Convention that he had been expelled from the military academy by reason of his father’s affiliations with a certain trade union, which amounted to discrimination.


23.  The applicant claimed 204,000 euros (EUR) in respect of pecuniary damage: EUR 200,000 for the salaries and pension rights he would have been entitled to as a non-commissioned officer, as well as EUR 4,000 for the educational expenses his father was asked to reimburse following his  <mask> from the military academy. He also claimed EUR 10,000 for non‑pecuniary damage. The Government contested these claims.


74.  The Government emphasised the legislative guarantees and the supervision exercised by the administrative courts over decisions to expel illegal immigrants, which were always examined on the basis of detailed individual circumstances, and particularly in the light of the alleged risks of a violation of Article 3 in the event of return to the country of origin. Thus, the administrative courts would have no choice but to set aside  <mask> orders based on nationality or ethnic origin.


148.  The Government first of all suggest distinguishing two separate procedures – the  <mask> as a result of conviction and the expulsion as a result of the breach of the administrative provisions regarding the entrance and stay of foreigners in Latvia. The Government state that in the present case the applicant was expelled as a result of the breach of the afore-mentioned administrative provisions.


161.  The Government is of the opinion that the order on the applicant's  <mask> from Latvia has been issued “in accordance with law”. Moreover, the Government underline that whether the judgment of the Riga Regional Court had or had not come into force was of no legal relevance since the applicant was not expelled on the basis of the judgment.


51.  The Government submitted that Article 2 of the Convention did not apply in the circumstances of the present case. They maintained that the applicants were no longer victims of a violation of the aforementioned provision following the redress provided by the authorities, within the meaning of Article 34 of the Convention. They further noted that in the case of D. v. the United Kingdom (application no. 30240/96, 2 May 1997, Reports of Judgments and Decisions 1997‑III), which concerned the attempted  <mask> of an AIDS sufferer to St. Kitts where he would have been deprived of the medical treatment he was receiving in the United Kingdom, the Court had examined the complaints of the applicant under Article 3 of the Convention rather than Article 2.


107.  The applicant further argued that in examining his case the Russian authorities had disregarded his specific submissions concerning his religious and political persecution and relevant reports by independent NGOs, and had relied solely on “official sources of information”. The courts' conclusion that the applicant had voluntarily left Tajikistan was at variance with his consistent submissions that he had fled because of his persecution on religious grounds and the ill-treatment sustained in custody. Referring to other cases against Russia concerning  <mask> and extradition and pending before the Court, the applicant insisted that the Russian courts consistently adopted the same formalistic approach in dealing with such complaints, which showed that the remedies suggested by the Government were ineffective in practice.


29.  The applicant further submitted that there existed the administrative practice of substituting  <mask> for extradition which was based on an unpublished order of the Moscow Region prosecutor, no. 86/81 of 3 July 2009, which provided that in every case of release of a detained individual because his extradition was impossible, it was mandatory to decide on his administrative expulsion from Russia. The applicant therefore maintained that his expulsion had been ordered to secure his rendition to the Uzbekistani authorities, that is to prevent him from being released and to secure either expulsion or extradition, as the case might be, and that his allegations of the risk of ill-treatment had not been thoroughly examined in the administrative expulsion proceedings.


93.  The Government submitted that the applicant’s statement had been given voluntarily and upon his request it had been audio recorded. He had not been coerced or threatened and he had been cautioned in accordance with the law. According to the Government, the applicant, a fifty‑five year old man who was not vulnerable, had understood the implication of the circumstances he found himself in as it had not been the first time he had been  <mask> - he had previously been convicted on two separate occasions - yet he had chosen to make and sign the statements.


35.  The applicant submitted that, while not being formally  <mask> in the compensation proceedings, he was nevertheless in effect subjected to an assumption of guilt by the courts in their consideration of his compensation claim. In this respect the facts of his case could not be distinguished from those at issue in the Sekanina v. Austria judgment of 25 August 1993 (Series A no. 266-A) and the Asan Rushiti v. Austria judgment (no. 28389/95, 21.3.2000).


31.  The Government further submitted that the presumption of innocence did not apply to the instant proceedings, as the applicant had not been  <mask> and the proceedings were not aimed at establishing the applicant’s guilt. In deciding whether to suspend a sentence on probation in accordance with Article 57a § 1 of the Criminal Code, the execution of sentence chamber had to make its own prognosis on the danger posed by the convicted person.


121.  The applicant’s primary argument in connection with the present complaint is that the attachment order was unlawful because, at the material time, he had not been formally charged with any of the criminal offences which served as a ground for the attachment. The Court notes that, in the context of the present case, it is not called upon to decide in general whether attachment of a person’s property for criminal proceedings prior to that person being formally  <mask> could, in itself, be considered compatible with Article 1 of Protocol No. 1 of the Convention. What is necessary to determine is whether, in this specific case, such interference was permitted, and thus “lawful” under the Azerbaijani law in force at the material time.


73.  The applicant complained of the breach of his right to respect for his family life and correspondence in that his minor sons had not been allowed to visit him in the remand centre after his arrest and that the correspondence between him and the children had been withheld, the authorities relying on the need to ensure the effective conduct of the proceedings. He submitted that under the applicable provisions of Polish law it was for the parent or legal guardian to decide whether their minor child could testify in court. In the applicant’s case he had never been given an opportunity to give his opinion on that matter. It had simply been assumed that his sons should be interviewed by the prosecuting authorities, despite the fact that the applicant had had full parental powers. The law did not provide for any mechanism by which the interests of a parent  <mask> could be reconciled with the need to conduct criminal proceedings against him by interviewing his children as witnesses. The applicant concluded that the restrictions on his contacts with his sons had therefore been unlawful and unjustified.


32.  The Government referred to the Constitutional Court’s case-law, whereby even though the only valid evidence on which courts can rely to convict a person  <mask> is, in principle, that produced in his presence at a public hearing with a view to adversarial argument, exceptions to that principle are possible in exceptional circumstances, for instance if it proves materially impossible for a witness to make a statement during the hearing owing to his or her mental state. In those cases, courts are allowed to rely on witnesses’ statements made at earlier stages of the proceedings, provided, inter alia, that they are read out in court and the defendant is given an adequate opportunity to challenge them, as had happened in the present case. The Government further indicated that this exception was not applicable to cases of physical illnesses of witnesses, since the Constitutional Court had found in the criminal legislation more appropriate solutions for this situation, such as at-home interrogations or statements via video-conference.


33.  The Government considered that the provision was not applicable. They noted that the finding of responsibility in the civil proceedings at issue did not concern a criminal charge under domestic law. Moreover, the outcome of the criminal proceedings was not decisive for the civil claim. The civil claim depended on a separate legal assessment based on criteria and evidentiary standards which differed from those applicable to criminal liability. In their view, the mere fact that an act may give rise to a civil claim which was also covered by the objective constitutive elements of a criminal offence did not provide a sufficient ground for regarding the proceedings as ones in which the applicant was being  <mask>.


30.  The applicant emphasised that the time taken in particular by the police and the Prosecutor exceeded what was reasonable, as the charges against the applicant were brought in 1994, even though, according to his knowledge, the main part of the investigation reports had already been completed by the spring of 1991. By the time when he was finally  <mask> he was already under the impression that the police investigation would not result in any criminal proceedings against him. Therefore he had not found it necessary to request the police or the prosecutor to speed up their decision-making. However, during the court proceedings he repeatedly requested the courts to make their decisions without undue delay or, alternatively, to dismiss the charges in the event that they found it difficult to continue on the basis of the allegations submitted by the prosecutor.


27.  The applicant submitted that, while not being formally  <mask> in the compensation proceedings, he had nevertheless in effect been subjected to an assumption of guilt by the courts in their consideration of his compensation claim. In this respect the facts of his case could not be distinguished from those in issue in Sekanina v. Austria (judgment of 25 August 1993, Series A no. 266-A) and Rushiti v. Austria (no. 28389/95, 21 March 2000).


30.  The applicant submitted that following the introduction of the present application with the Court, her family became the target of an intimidation campaign led by the Government. According to her, her husband was illegally  <mask> and taken to a psychiatric hospital for a medical examination. She was allegedly contacted by Government representatives who demanded the withdrawal of her application from the Court.


74.  The applicant argued that his right to a fair trial had been infringed in that he had not been informed of the accusations against him. He submitted that the defence conducted by his officially appointed lawyer could not be regarded as effective and adequate in view of the fact that, among the defendants whom the lawyer had represented, those who had been present had been acquitted and those who had not had been convicted. Furthermore, the applicant had not known that he was being represented by that lawyer. He had therefore had no reason to contact him or the Italian authorities. If he had known that he had been  <mask>, he could have made a fully informed choice as to his legal counsel.


62.  The Government noted that, according to Article 138 of the Military Court Organisation and Proceedings Law, hearings before military courts were public. However, the military court could hold hearings in camera if public morality and safety so required. In the instant case, since the applicant had been tried on charges of military espionage,  <mask> was necessary for the purposes of national security.


39.  The Government contended that there existed no causal link between the pecuniary damages claimed by the applicant and the alleged breach of Article 6 § 1 of the Convention. With reference to paragraph 71 of the Malhous v. the Czech Re <mask> cited above the Government further maintained that a possible finding of a violation of Article 6 § 1 of the Convention would in itself constitute a sufficient just satisfaction in respect of any non-pecuniary damage which the applicant may have suffered.


183.  The Government argued that the procedure before the IPT offered as fair a procedure as could be achieved in the context of secret surveillance powers. In particular, a complainant did not have to overcome any evidential burden to apply to the IPT and any legal issues could be determined in a  <mask> after an inter partes hearing. Further, the IPT had full powers to obtain any material it considered necessary from relevant bodies and could call upon the assistance of the Commissioner. It could appoint an advocate to assist it at closed hearings. Finally, in the event that the complainant was successful, a reasoned decision would be provided. The Government accordingly disputed that the very essence of the applicant's right to a fair trial had been impaired.


19.  The Government acknowledged that the authorities’ failure to examine the applicant’s request for the assistance of counsel in the appeal proceedings had not been justified. They also pointed out that Russian law and judicial practice did not and do not determine the matter of free legal representation on the basis of any means test (“ <mask> to pay for legal assistance”) or “the interests of justice”. The only condition for such representation was the absence of a waiver by the defendant of legal representation. They further explained that at the relevant time most Russian courts considered that representation in appeal proceedings was not required under Russian law. Lastly, they indicated that the authorities had acted with due diligence because despite the applicant’s refusal he had been provided with counsel during the preliminary investigation and at the trial.


29.  The Government’s response in Strasbourg was ingenious. They insisted before the Court on the need to admit under the Convention not only the unlimited retrospective preventive detention of offenders with “mental disorder” (psychische Störung), but even the pre-crime detention of allegedly dangerous people for preventive purposes. The tactic paid off. Just two years after Schwabe and M. G.,[104] the Court backtracked, in Ostendorf,[105] from its previous position, conceding that the obligation to keep the peace by not committing a  <mask> can be considered as sufficiently “specific and concrete” for the purposes of Article 5 § 1 (b) of the Convention “if the place and time of the imminent commission of the offence and its potential victim(s) have been sufficiently specified”[106]. In that same year, the Court delivered judgment in Bergmann,[107] reviewing M. The present judgment confirms the Court’s conceding stance.


198.  The Government were of the view that this conclusion by the Court was erroneous. Firstly, it was not true that confiscation was necessarily connected to a  <mask> as, pursuant to Article 30 § 8 of the Construction Code, it could be ordered by an administrative authority before a conviction became final, and it could also be imposed on a company, which could not be prosecuted for a criminal offence by virtue of the societas delinquere non potest principle.


90.  The Government were of the opinion that Article 161 of the Criminal Code defined the misuse of official position precisely and specifically. Although the description of offences related to official position was inevitably characterised by a certain degree of abstraction, there existed a body of settled case-law which was published and accessible and the applicant had been able to foresee that his acts would constitute a  <mask>. On the basis of the case-law it must have been clear to the applicant that Article 161 was also applicable in cases of moral damage, that the danger of causing damage was sufficient to constitute an element of the offence and that the knowledge of the authorities about the misuse of the official position would not rule out the liability of an official. The Government concluded that the law and the case-law relating to its application had been sufficiently accessible and foreseeable.


83.  The Government rejected that argument, observing that Article 7 of the Convention did no more than prohibit any retrospective application of criminal law in relation to “the time the  <mask> was committed”. They observed that the provisions of the Criminal Code which established penalties for the offences of which the applicant was convicted had not been amended after 2 September 1999, the date when they were committed. They noted in particular that the offences concerned were punishable by life imprisonment with daytime isolation and that the penalty imposed by the national courts had not exceeded that limit.


191.  The Government further explained that the specific criteria for classifying the applicant’s preventive detention as a penalty were no longer met after his transfer to the Straubing preventive detention centre. As regards the question whether the measure concerned was imposed following conviction for a  <mask>, the Government noted that, other than in the Bergmann case where that applicant’s preventive detention order had been made in the sentencing court’s judgment and been prolonged subsequently, the order for the applicant’s preventive detention in the present case had been made in 2012, many years after his conviction in 1999 – which had not entailed a preventive detention order – in separate proceedings. The connection between the applicant’s criminal conviction and his preventive detention was therefore not as close as in the Bergmann case.


46.  The applicant complained that a criminal penalty had been imposed on him even though he had not been convicted of any offence. He observed that under Italian law, criminal prosecutions could not be brought if the  <mask> in question was time-barred. In the present case, according to the applicant, the offence had been time-barred as far back as August 2001. However, the criminal proceedings had continued until 2008 for the sole purpose of imposing a penalty.


64.  The Government also referred to Constitutional Court decision no. 53/1993 in which it was stated that common Article 3 was part of customary international law, and that acts in breach thereof were to be regarded as crimes against humanity. Consequently, the offence of which the applicant had been convicted constituted a  <mask> under international law. The Constitutional Court had held that international law alone was a sufficient ground for the punishment of such acts, and its rules would be devoid of any effect if the punishability of war crimes and crimes against humanity were subject to incorporation into domestic law.


115.  The Government argued that in the latter case, it had been decisive that there was no substantial difference between the execution of a term of imprisonment and that of preventive detention and that there had been insufficient measures to prepare persons in preventive detention for a life without offences (ibid., §§ 127 and 129). These elements had also been addressed in the Federal Constitutional Court’s leading judgment of 4 May 2011. Further factors which had been relevant for the Court to classify preventive detention as a “penalty” for the purposes of Article 7 § 1, such as the fact that it was imposed by a criminal court following conviction for a  <mask> and the severity of the measure (ibid., §§ 128, 131-132), were less significant and did not justify considering preventive detention as a penalty.


54.  The applicant further maintained that the case-law of the Court was clear on the point that the concept of “victim” under Article 34 of the Convention should be interpreted broadly. The Government’s argument that he had not been sentenced to punishment was unfounded, as his conviction of a  <mask> had entailed various other legal consequences. Also, given the political nature of the proceedings, the severity of the sentence was not the key issue. Rather, the important elements were that the case had been brought against him and that he had been convicted for a punishable offence. In this respect, the applicant referred to the case of Lüdi v Switzerland (no. 12433/86, 15 June 1992).


57.  The applicant complained under Article 6 §§ 1 and 3 (a) of the Convention about the alleged failure to particularise the offence until judgment was given and to inform her promptly of the nature and cause of the contempt application. Under Article 7 she complained that she was found guilty of a  <mask> on account of an act which did not constitute a criminal offence at the time when it was committed.


3.  The applicant’s liquidator’s licence was revoked in 2011 as a consequence of his conviction in 2010 for criminal offences that had been committed in 2003 and 2004 (see paragraph 9 of the judgment). The revocation was based on sections 108 and 109 of the Financial Operations Act, which had entered into force on 1 October 2008, and in accordance with which the Minister of Justice “must revoke” a licence if the person “has been convicted ... of a publicly prosecutable  <mask> committed with intent” (see paragraph 29). It transpires from the transitory provisions that liquidator licences issued under the Bankruptcy Act were to be considered as equivalent to licences issued under the Financial Operations Act (see paragraph 32).


43.  The applicants argued that neither the provision in question, Chapter 27, section 3(a), of the Penal Code, nor the preparatory works had mentioned that the provision would apply to the publication of an accused or convicted person's name. On the contrary, the operative part of a judgment, the legal provisions applied and the name of the convicted person had always been public information according to Finnish law. Citing a convicted person's name in a newspaper had not traditionally been an offence in Finland until 2001 and 2002, when the Supreme Court had come to a different conclusion. However, it did not follow from either the provisions or the preparatory works that publication of a convicted person's name was a  <mask> and it had even been mentioned in the government bill (HE 184/1999) that the general nature of Chapter 27, section 3(a), of the Penal Code might be problematic from the point of view of the legality principle. In Finnish criminal law the use of a legal analogy to the detriment of an accused was prohibited. As the articles in question had been published in January and March 1997 the applicants could not have been able to foresee what the Appeal Court would decide more than six years later. Nor could they have anticipated that the Supreme Court would start assessing these cases differently in 2002.


18.  The Government further maintained that the applicant had voluntarily taken an obligation to re-export the impugned vehicle within a year, by signing a customs declaration. In the Government’s opinion the declaration signed by the applicant had a contractual nature as it determined the relevant obligation and the liability in case of non-execution of the obligation. They considered that this case concerned neither the violation of a universal principle of law, nor the punishment for its violation. This case raised the issue of the violation of a contractual obligation, and thus the application of a penalty stipulated in the contract. The aim of this penalty was not the punishment of the person who had breached the terms for the import of the goods and other items, but compensation for the amount of the non-paid customs duties for the goods imported into the territory of Ukraine. Thus, the Government maintained that the non-performance of the obligation voluntarily undertaken by the applicant could not be qualified as a  <mask> within the meaning of the Convention. Thus, Article 6 § 1 of the Convention in its criminal part was not applicable in this case.


41.  The applicant complained that the Criminal Code had been applied retroactively in his case, pointing out that he had been convicted of a continuous offence of abusing a person living under the same roof which, according to the courts, encompassed his conduct even before that offence had been introduced into the law. He also alleged that the courts had not duly examined whether his actions prior to that date would have amounted to a  <mask> under the old law. He relied in that regard on Article 7 of the Convention, which reads as follows:


126.  The applicant submitted that when he had been sentenced to mandatory life imprisonment on 10 March 1989 by the Limassol Assize Court, under the Prison Regulations applicable at the time, “life imprisonment” had been tantamount to imprisonment for a period of twenty years. As a result of the repeal of the Regulations, the amendment of the relevant legislative provisions and the retroactive application of the provisions thus amended, he had been subjected to an unforeseeable prolongation of his term of imprisonment from a definite twenty-year sentence to an indeterminate term for the remainder of his life, with no prospect of remission, and to a change in the conditions of his detention. Thus, a  <mask> had been imposed than that applicable at the time he had committed the offence of which he had been convicted, in breach of Article 7 of the Convention.


40.  The applicant further complained that the retrospective extension of his first preventive detention from a maximum period of ten years to an unlimited period of time due to the amendment in 1998 of Article 67d §§ 1 and 3 of the Criminal Code, read in conjunction with section 1a § 3 of the Introductory Act to the Criminal Code (see paragraphs 24-25), breached his right not to have a  <mask> imposed on him than the one applicable at the time of his offence. He relied on Article 7 § 1 of the Convention, which provides:


62.  The applicant argued that preventive detention had to be classified as a penalty. By the abolition of the maximum duration of ten years of his preventive detention, which was applicable at the time of his offence, a  <mask> had therefore been imposed on him retrospectively, in breach of Article 7 § 1 of the Convention. Moreover, the duration of preventive detention was insufficiently defined.


172.  The applicant further complained that his “retrospectively” ordered preventive detention, executed on the basis of the Regensburg Regional Court’s judgment of 3 August 2012 from 20 June 2013 onwards in the Straubing preventive detention centre, had also breached his right not to have a  <mask> imposed than the one applicable at the time of his offence in June 1997. He relied on Article 7 § 1 of the Convention, which reads as follows:


25.  The Government contested that argument. They argued that the applicant should have been able to foresee that he risked the annulment of his driving licence as the measure was clearly prescribed both in the old law and in the new law and there was no time-limit for the authorities to apply that measure. Therefore, they disagreed with the applicant’s claims that a  <mask> had been imposed on him because of the application of the new law.


49.  The Government therefore concluded that the requirement of a sufficiently clear and foreseeable legal basis had been satisfied, that the new criminal law had not been applied retroactively and that the applicant had not been given a  <mask> than under the old law. In this regard, they assumed that, had the concept of a continuous offence as understood by the Czech courts been abandoned and the applicant’s actions before and after 1 June 2004 been assessed separately, the applicant’s possible sentence would have been either the same or more severe than the one actually imposed. Indeed, in that event the applicant would have been tried for multiple offences punishable by a concurrent sentence which would have been defined on the basis of the provision concerning the most serious offence, that is to say, Article 215a of the Criminal Code. Moreover, the existence of multiple criminal offences and the duration of the conduct in question would have constituted aggravating circumstances.


128.  The applicant observed that when Legislative Decree no. 341 came into force and when it was converted into statute law, he was in prison. He was therefore not aware of the possibility of withdrawing his request for adoption of the summary procedure, which related to the exercise of a personal right of the defendant. The possibility had not been mentioned in the prosecution's appeal on points of law. As he was not familiar with the finer points of judicial proceedings, he had not had the real possibility of reconsidering his procedural choices. The assertion in the Hermi v. Italy judgment ([GC], no. 18114/02, § 92, ECHR 2006-...), to the effect that the State could not be required to spell out in detail, at each step in the procedure, the defendant's rights and entitlements, were not relevant in the present case, which concerned the retrospective application of a  <mask>.


59.  The applicant further complained in both applications to the Court that the retrospective extension of his preventive detention from a maximum period of ten years to an unlimited period of time breached his right not to have a  <mask> imposed on him than the one applicable at the time of his offence. He relied on Article 7 § 1 of the Convention, which reads as follows:


50.  The applicant submitted that preventive detention was to be classified as a penalty. The retrospective extension of his first period of preventive detention from a maximum duration of ten years to an unlimited period of time owing to the amendment in 1998 of Article 67d §§ 1 and 3 of the Criminal Code, read in conjunction with section 1a § 3 of the Introductory Act to the Criminal Code (see paragraph 27 above), had therefore violated his right not to have a  <mask> imposed than the one applicable at the time of his offence guaranteed by Article 7 § 1 of the Convention.


95.  The applicant claims that his retrospectively ordered preventive detention, executed on the basis of the Regensburg Regional Court’s judgment of 3 August 2012 from 20 June 2013 onwards in the Straubing Prison preventive detention centre, breached and still breaches his right not to have a  <mask> imposed than the one applicable at the time of his offence in June 1997.


63.  The applicant submitted that under the legal provisions applicable at the time of his offence, ten years had been the maximum duration of the preventive detention, a penalty, ordered against him. The retrospective extension of his preventive detention beyond 27 March 2006, when he had served ten years, to an unlimited period of time therefore violated his right not to have a  <mask> imposed on him than the one applicable at the time of his offence.


86.  The applicant submitted that Article 7 of the Convention guaranteed not only the non-retrospectiveness of the criminal law but also the principle – set forth explicitly in Article 15 of the United Nations Covenant on Civil and Political Rights, by Article 49 of the European Union's Charter of Fundamental rights and by Article 9 of the American Convention on Human Rights (see paragraphs 35-37 above) – that, in the event of a difference between the law in force at the time of the commission of an offence and later laws, the law to be applied was the law more favourable to the accused. That meant that Article 7 was breached whenever courts imposed a  <mask> than the one prescribed by the law in force at any time between the commission of the offence and the delivery of judgment. The applicant referred on that point to the dissenting opinion of Judge Popović annexed to the Achour v. France judgment ([GC], no 67335/01, ECHR 2006-..).


106.  The applicant further complained that the retrospective extension of his preventive detention from a maximum period of ten years to an unlimited period of time violated his right not to have a  <mask> imposed on him than the one applicable at the time of his offence. He relied on Article 7 § 1 of the Convention, which reads:


65.  The Government submitted in reply that the institutional therapeutic measure had been ordered following a review of the judgment to the applicant’s detriment. In such circumstances, Article 65 § 2 of the Criminal Code referred to the rules applicable to the reopening of proceedings, namely – prior to the entry into force of the unified Code of Criminal Procedure on 1 January 2011 – the relevant provisions of the cantonal Codes of Criminal Procedure. They inferred from this that paragraph 2, sub-paragraph (1), of the transitional provisions of the 13 December 2002 amendment to the Criminal Code, in conjunction with Article 65 § 2 of the same Code, “thus provided for the retrospective application of a specific ground for reopening proceedings”. The case of a review to the convicted person’s detriment was governed by Article 189 § 1 (e) of the former Code of Criminal Procedure of the Canton of Basle Urban. In accordance with that provision, criminal proceedings that had been concluded by means of an “enforceable” judgment were to be reopened where, among other situations, circumstances or evidence unknown to the trial court appeared likely to result in an acquitted person’s conviction or to give rise to a more severe punishment for a convicted person. The Government further submitted that the substantive law in force at the time had provided for institutional therapeutic measures, in particular under Article 43 § 1, second sub-paragraph, of the former Criminal Code, and noted that that provision allowed the indefinite detention of a convicted person who, “on account of his mental state”, “pose[d] a severe threat to public safety”, on condition that “such a measure [was] necessary to prevent a danger to others”. Accordingly, by deciding to impose an institutional therapeutic measure, the Court of Appeal had not ordered a  <mask> than the one that would already have been possible and acceptable at the time of the criminal courts’ decisions. In conclusion, there had been no violation of Article 7 of the Convention, regardless of whether such a measure, like the indefinite detention provided for in Article 65 § 2 of the Criminal Code, constituted a “penalty” within the meaning of Article 7 of the Convention.


39.  The applicant argued that a  <mask> had been imposed on him retrospectively, contrary to the second sentence of Article 7 § 1 of the Convention, by virtue of the order made for his continued preventive detention. Relying, in particular, on the Court’s judgment in the case of M. v. Germany (cited above), he submitted that preventive detention in the manner in which it was executed in Schwalmstadt and Weiterstadt prisons constituted a “penalty” within the meaning of that provision.


187.  The Government took the view that, since the applicant’s transfer to the Straubing preventive detention centre on 20 June 2013, the preventive detention order of 3 August 2012 did not impose a  <mask> on him than the one which was applicable at the time of his offence and therefore complied with Article 7 § 1 of the Convention.


66.  The applicant further submitted that a  <mask> had been imposed on him than the one that was applicable at the time of his offence. When he had committed his offences and at the time of his conviction in 1987, a retrospective order of preventive detention had not been possible. Such orders had only been authorised subsequently, by the Retrospective Preventive Detention Act of 23 July 2004 by which Article 66b had been inserted into the Criminal Code. He was thus remanded in preventive detention for an indefinite duration retrospectively, on the basis of a legal provision which entered into force seventeen years after his conviction.


36.  The Government maintained that the applicant had interpreted the domestic law incorrectly. They noted that after the decision of the Constitutional Court of 29 December 1999 no new law had been created. They stated that the criminal law could only be changed by the Verkhovna Rada and that the provisions for aggravated murder had not lost their alternative character. They considered that the period after 29 December 1999 had been given to the Verkhovna Rada in order to bring the 1960 Criminal Code into line with the decision of 29 December 1999. They referred to the decision of the Constitutional Court of 26 January 2011 (cited above) in support of their argument. They maintained that the 1960 Criminal Code had only changed and become a new law after the introduction of amendments by the Verkhovna Rada which had come into force on 29 March 2000. The Government concluded that the fact that the domestic courts had sentenced the applicant to life imprisonment had not violated the principle of  <mask> of the more lenient version of the 1960 Criminal Code that pertained from 29 December 1999 to 29 March 2000 as no such version of the Criminal Code had existed.


62.  The Government maintained that the 2003 Criminal Code was more lenient to the applicants than the 1976 Criminal Code, given the absence of the death penalty (they referred to Karmo v. Bulgaria (dec.), no. 76965/01, 9 February 2006). That was indeed the opinion of the Constitutional Court of Bosnia and Herzegovina in the present case (see paragraph 15 above). They further argued that even if the 2003 Code was not more lenient to the applicants, it was still justified to apply it in this case, for the following reasons. First, the Government claimed that Article 7 § 2 of the Convention provided an exception to the rule of non- <mask> of crimes and punishments set out in Article 7 § 1 (they referred to Naletilić v. Croatia (dec.), no. 51891/99, ECHR 2000‑V). In other words, if an act was criminal at the time when it was committed both under “the general principles of law recognised by civilised nations” and under national law, then a penalty even heavier than that which was applicable under national law might be imposed. It was clear that the acts committed by the present applicants were criminal under “the general principles of law recognised by civilised nations”. As a result, the rule of non-retroactivity of punishments did not apply and, in the Government’s opinion, any penalty could have been imposed on the applicants. Secondly, the Government submitted that the interests of justice required that the principle of non-retroactivity be set aside in this case (they referred in this connection to S.W., cited above; Streletz, Kessler and Krenz, cited above; and a duty under international humanitarian law to punish war crimes adequately). The rigidity of the principle of non-retroactivity, it was argued, had to be softened in certain historical situations so that this principle would not be to the detriment of the principle of equity.


24.  The Government acknowledged that the judgment of 21 January 2010 could be regarded as an  <mask> with the applicant’s right to respect for his private life. However, the State had set up an adequate legal and procedural framework for the protection of the applicant’s right to respect for his reputation and it remained to be determined whether the courts had struck a fair balance between the applicant’s private interests and those of the general public.


21.  The applicant considered that she was justified in alleging a serious  <mask> with her maternal rights and obligations, given firstly that the decision against her had been based on discriminatory grounds, and secondly that the father's home had been named as the children's habitual residence despite his conduct. She emphasised that he had abandoned his family and that he had subsequently refused to return the children to their mother's home, in violation of a judgment by the family-affairs judge.


43.  The Government dismissed the applicants’ allegations, taking the view that the impugned  <mask> was necessary and proportionate. In this connection, they indicated that the applicants were members of the terrorist organisation PKK and that they had previously spoken Turkish with their relatives on the telephone, but later on had requested to conduct their conversations in Kurdish. The Government explained that the Kurdish language had different dialects and that, at the time of the applicants’ requests, there were no Kurdish speaking personnel in the prison. The prison authorities had asked the applicants, in accordance with Rule 88/2 (p) of the Rules then in force, for the names and addresses of the individuals with whom they wished to speak in order to seek information on them. In the Government’s submission, those prisoners who had good intentions would give such information and, once the investigation had been carried out, permission to use Kurdish was granted for those who did not speak Turkish. However, some prisoners with bad intentions had requested permission to use Kurdish without giving the requisite information. The Government argued that those prisoners had thus made it impossible to obtain any information about their relatives. Moreover, the relatives of some prisoners could not be traced at the addresses given. Accordingly, the prisoners in question had not fulfilled their obligations in order to conduct their telephone conversations in a language other than Turkish. Furthermore, the applicants had not been subjected to any discrimination, as the legislation applied to them was applicable to all prisoners .


55.  The applicants contended that this  <mask> was not in accordance with the law within the meaning of Article 8 of the Convention. They submitted that the provision of Article 45 of the Ministry of Interior Act on the ground of which they were dismissed left unlimited discretionary power to the Ministry to terminate the employment of police officers solely on the basis of the initiation of criminal proceedings. The applicants also claimed that this discretionary power was not consistently applied. They further maintained that the law in question had no provision regulating the renewal of employment upon acquittal in criminal proceedings. They essentially argued that the law was not foreseeable enough and that, for these reasons, it did not satisfy the requirement of lawfulness from Article 8 of the Convention. The applicants further argued that the definitive termination of their employment solely on the basis of the initiation of criminal proceedings was not proportionate to the legitimate aim pursued.


163.  The applicant contended that there had been  <mask> with his private life as a result of his dismissal from the post of judge of the Supreme Court. That interference had not been lawful, as the grounds for liability for “breach of oath” had been drafted too vaguely; domestic law had not provided for any limitation periods that were applicable to the dismissal proceedings and had thus not provided adequate safeguards against abuse and arbitrariness; moreover, it had not set out an appropriate scale of sanctions for disciplinary liability ensuring its application on a proportionate basis. For those reasons, it had not been compatible with the requirements of the “quality of law”. The applicant further asserted that the interference in question had not been necessary in the circumstances of the case.


40.  The Government acknowledged that those who used the telephone had an expectation of privacy in respect of the numbers which they dialled and that obtaining detailed billing information concerning that telephone constituted an  <mask> with the applicants’ rights under Article 8. The obtaining of the information was, however, necessary in a democratic society in the interests of public safety, for the prevention of crime and/or the protection of the rights of others, as the investigation concerned a very serious crime, the applicants had guns for use in the intended robbery and, as B. was surveillance-conscious, conventional surveillance would not suffice. The only use of the information was to corroborate the times recorded by police officers in respect of the covert listening device in the flat.


90.  The Government firstly maintained that the institution of the proceedings in issue could not be seen as an  <mask> with the applicant’s right to respect for her private life. The legal consequences of divesting a person of his or her legal capacity came into play only after the decision to that effect became final. In the proceedings in issue a complete psychiatric assessment of the applicant’s mental health would be carried out. In these proceedings the applicant was represented by a guardian ad litem whose competences were prescribed by law.


40.  The Government claimed that Article 1 of Protocol No. 1 to the Convention was not applicable to the present case. They referred to the Court’s case-law, which stated that that Article did not concern the regulation of civil-law rights between parties under private law. The domestic courts’ decisions according to the rules of private law cannot be seen as an unjustified State  <mask> with the property rights of one of the parties. They relied on the judgment Zhukovskiye v. Russia (no. 23166/04, 13 January 2011) and two cases cited therein, Kuchař and Štis v. Czech Republic ((dec.), no. 37527/97, 21 October 1998), and S.Ö., A.K., Ar.K. and Y.S.P.E.H.V. v. Turkey ((dec.) 31138/96, 14 September 1999)) and claimed that the subject matter of the present case was precisely a private-law dispute because it related to the contract between the applicant and V. They alleged that the State had not been involved in the sale and purchase contract and had not compelled the parties to conclude it. It was therefore up to the parties to bear the consequences of the transaction. The Government therefore requested that the Court dismiss this complaint as inadmissible ratione materiae.


90.  The Government submitted that any  <mask> resulting from the retention of the applicants’ fingerprints, cellular samples and DNA profiles was justified under Article 8 § 2. It was in accordance with the law as expressly provided for, and governed by section 64 of PACE, which set out detailed powers and restrictions on the taking of fingerprints and samples and clearly stated that they would be retained by the authorities regardless of the outcome of the proceedings in respect of which they were taken. The exercise of the discretion to retain fingerprints and samples was also, in any event, subject to the normal principles of law regulating discretionary power and to judicial review.


92.  The Government admitted that certain letters from the applicant to the Secretariat of the European Commission of Human Rights and to the Registry of the Court had been intercepted and forwarded from the detention centre to the prosecutor's office competent to deal with the applicant's case. The envelopes of these letters were stamped “subject to censorship” (“ocenzurowano”). However, no  <mask> with the contents of the letters by the prison guards or by the prosecutor had been established. Under domestic law in fore at the relevant time the correspondence of detained persons had automatically been subjected to screening by the authorities conducting criminal proceedings. The prosecutor had had a margin of discretion in deciding whether to intercept, open and read the correspondence of the detainee. The Government maintained that in the present case the stamp on the envelope of the letters to the Convention organs could not be regarded as sufficient proof that these letters had been so intercepted, opened and read.


38.  The applicant maintained that there had been an  <mask> with his right to respect for his private life and his correspondence. He did not dispute the existence of a statutory basis for the interference, but referred to section 7(4) of the Law on Operational Activities, according to which a judge’s authorisation could be issued for a period of only three months. He was not aware of any extensions of that authorisation, and an interception which had continued for more than one year had therefore been in breach of domestic law.


64.  The applicants argued that the  <mask> with their property rights could not be justified under Article 1 of Protocol No. 1. The policies of the “TRNC” could not furnish a legitimate aim since the establishment of the “TRNC” had been an illegitimate act condemned by the UN Security Council. For the same reason, the interference could not be found to be in accordance with the law and the general principles of international law. Nor had it been proportionate. The need to rehouse displaced Turkish Cypriots could not justify the complete negation of the applicants' property rights. This conclusion was reinforced by the existence of evidence that much of the property taken from Greek Cypriots had been used to house settlers from mainland Turkey. In particular, the applicants' properties had not been used to house displaced Turkish Cypriots from the south, as since 1974 Famagusta had become a ghost town.


74.  The Government pointed out that, while Article 8 did in principle apply to cases concerning aliens, an alien’s family life had to be reconciled with the State’s prerogatives in immigration cases. The Court had consistently affirmed in its case-law the principle that the State Parties to the Convention were entitled to control the entry of non-nationals into their territory and that that prerogative, which could result in  <mask> with the alien’s family life, had to be exercised in conformity with the second paragraph of Article 8. In the Government’s submission, keeping an alien in detention after he or she had attempted to enter the national territory without complying with the relevant conditions and had asked to be given refugee status while the application for asylum was considered could not in itself be considered to constitute a violation of his or her family life. Detention enabled the State to issue a deportation order that would be enforceable in practice in the event of the request for asylum being turned down. The Government accepted that it was legitimate to enquire whether these principles ought to be moderated when the immigrant concerned was a young child. However, they nevertheless considered that in the instant case there had been no infringement of the second applicant’s family life for several reasons:


81.  The Government disagreed. They accepted that the first applicant’s psychiatric examination constituted  <mask> with his private life within the meaning of Article 8 of the Convention. They argued, however, that this interference was justified under paragraph 2 of the provision at issue. In particular, the assessment had been carried out based on Mrs L.’s complaints about the first applicant’s deviant behaviour, which had posed a threat to her own safety and the safety of others. These complaints had not been unsubstantiated; in particular, in June 2000 the first applicant had injured Mrs L. Other villagers had also complained to various authorities about the first applicant’s provocative conduct. The Government submitted in this regard copies of complaints concerning the first applicant’s conduct signed by various individuals and dated 2000 – 2003. In the light of this, the first applicant’s psychiatric examination had pursued a legitimate aim – namely, protection of the rights of others. It had been necessary in a democratic society and was conducted in accordance with the law. In particular, the relevant provision was section 11 of the Law of Ukraine “On Psychiatric Assistance”, authorising forcible psychiatric assessments of persons manifesting real intention to commit acts putting others in danger. Lastly, the Government submitted that the lawfulness of the application of that provision in the first applicant’s case had been confirmed by judicial authorities of two levels in the course of the contested proceedings.


121.  The applicant maintained that the respondent State had failed to comply with its obligation under the procedural limb of Article 3 to carry out an effective investigation into her sterilisation. A criminal investigation into the case should have been started at the initiative of the authorities after they had been informed about the  <mask>. The general investigation into the sterilisation of Roma women which the Government had initiated could not be considered effective in respect of the applicant’s own case. Similarly, the civil proceedings brought by the applicant had not complied with the requirements of Article 3. In particular, the applicant had been placed in a difficult position as the courts had been bound to examine the case only in the light of the parties’ submissions, and the burden of proof had lain on the latter. Those proceedings had not led to the identification and punishment of those responsible.


107.  The applicant next contended that the  <mask> with his rights under Article 8 of the Convention and Article 1 of Protocol No. 1 as a result of the temporary occupation of his estate by the consolidated police units had not been justified. He argued that the Government's reference to “a situation of war or public emergency which threatens the life of the nation” was unconvincing as a state of emergency had never been declared either nationwide or within the area of the counter-terrorist operation and that in any event the Russian authorities had never availed themselves of their right under Article 15 of the Convention to derogate from their obligations under the Convention.


103.  The Government submitted that any  <mask> with the applicants’ rights under Article 8 of the Convention had been lawful and necessary. The refusals to allow them to use the experimental product had been reasoned, made by an independent authority, and based on legal provisions which were fully in line with European Union law. It could therefore be presumed that they were compliant with the Convention. Those provisions, which took into account the need to strike a balance between the public interest and personal autonomy, sought to protect the health and life of those concerned by preventing abuses and the risks accompanying the use of untested products. For that purpose they had laid down certain conditions, which in the applicants’ cases had not been met. That regulatory arrangement could not be described as a blanket prohibition on the “compassionate use” of unauthorised medicinal products.


102.  The applicant contended that his detention constituted an unjustifiable  <mask> with his private and family life, his physical and moral integrity and with his honour, good name and reputation. He referred to restrictions consequent on his detention and, in particular, to the lack of a lawful basis for his detention, to his being handcuffed for his court appearances during his detention and to his position as a minor (without charge or conviction) in a penal institution.


119.  The Government did not call into question the applicants' ownership of the property in issue, nor dispute the argument that the persons referred to had entered the house against the applicants' will. The Court is therefore satisfied that the actions of the aforementioned men constituted an  <mask> with the applicants' right to respect for their home secured by Article 8 of the Convention and their property rights under Article 1 of Protocol No. 1. The Court further notes the absence of any justification on the part of the State for its agents' actions in that regard. It accordingly finds that there has been a violation of the applicants' right to respect for their home under Article 8 of the Convention and their property rights under Article 1 of Protocol No. 1.


320.  The Government noted that the Ukrainian law in force at the material time allowed the authorities to review letters addressed to the European Court of Human Rights. Following changes introduced to Article 113 of the Code on the Enforcement of Sentences and Order no. 275 of the Prison Department (see paragraph 118 above), correspondence sent to the European Court of Human Rights can no longer be reviewed. Nevertheless, the Government stated that although the procedure was not in conformity with the Convention and its case-law, there was no evidence of the authorities'  <mask> with the applicants' correspondence.


63.  The applicants maintained that video surveillance of their cells at all times had constituted a severe  <mask> with their right to respect for their private life. They acknowledged that they had been notified by the administrations of their penal institutions about such practice. The first applicant confirmed that he had signed a written document to that effect, but argued that it had been a pure formality, as CCTV monitoring was used regardless of whether a detainee had signed such a document, or had refused to do so. The applicants also insisted that the fact that they had been aware of the permanent video surveillance and the fact that it had been carried out by female guards had exacerbated the humiliation and anxiety they had suffered on account of such an intrusive measure.


75.  The Government conceded that there had been an  <mask> with the applicant’s right to respect for his family life. However, they argued that the interference in the form of the domestic courts’ refusal to order the return of the applicant’s son to the United States had been in accordance with the law, had pursued a legitimate aim, and had been necessary in a democratic society. In particular, the decision had been based on Article 13 § 1 (b) of the Hague Convention and had sought to protect the rights of others, namely the applicant’s son.


181.  The applicant companies rely on the relative anonymity of the natural persons whose names and data featured in the newspaper and were accessible via the SMS service, as well as the sheer amount of data published, to downplay any  <mask> with their privacy rights, suggesting that the more they published the less they interfered with privacy given what they described as a “blending in” factor (see paragraph 103 above). However, even assuming that such a factor could operate to attenuate or diminish the degree of interference resulting from the impugned publication, it fails to take into account the personal nature of the data and the fact that it was provided to the competent tax authorities for one purpose but accessed by the applicant companies for another. It also ignores the fact that the manner and extent of the publication meant that, in one way or another, the resulting publication extended to the entire adult population, uncovered as beneficiaries of a certain income if included in the list but also of not being in receipt of such an income if excluded because of the threshold salaries involved (see also paragraph 157 above). It is the mass collection, processing and dissemination of data which data protection legislation such as that at issue before the domestic courts is intended to address.


73.  The applicants argued, in particular, that the  <mask> in question had not been lawful, as the domestic courts had failed to establish that the first applicant had posed any danger to the second applicant, that being a prerequisite for restricting parental authority under Article 73 § 2 of the Russian Family Code. The applicants submitted that the domestic courts had held instead that it would be “undesirable” to give custody of the girl to her father, which was not a legitimate ground for restriction under that Article.


24.  The applicant accepted that the judgments of the domestic courts had been based on the law in force at the material time. He stressed, however, that the Government had not advanced any reasons to show that the law in question had pursued a legitimate aim and that the  <mask> had been necessary in a democratic society. The applicant submitted that the interference had not been necessary and was not justified for the following reasons.


161.  The applicants did not dispute that the  <mask> was provided for by Articles 3 and 7 of the Order of 14 April 2010, as codified in Articles L. 232-5 and L. 232-15 of the Sports Code. However, they considered in general terms that decisions of the AFLD were not “laws” as they were taken by an institution that was not empowered to lay down accessible and precise rules.


119.  The applicants acknowledged that the  <mask> was provided for by the Order of 14 April 2010, which had the status of law within the meaning of the Court’s case-law, but disputed the assertion that decision no. 54 could be classified in this way. The purpose of their application was to challenge the constraints laid down by law and not those determined by the AFLD itself, which were liable to be changed simply by means of a decision. They cited as an example the daily time slot, which was laid down solely by a decision of the AFLD. Given the non-binding nature of the UNESCO Convention the Agency could, by means of a similar decision, require athletes to be available for a three-hour period.


53.  The Government observed that detention entailed inherent limitations on private and family life. They did not contest that the second applicant’s inability to receive an MP3 player from J.G. had interfered with his right to respect for private life under Article 8 of the Convention. However, the Government was of the view that that  <mask> had been in accordance with the law (see paragraphs 24 and 27 above) and had pursued the legitimate aim of motivating inmates to work, to communicate with their relatives and to enhance their social ties, as well as the aim of preventing the possession of items acquired by criminal means.


171.  The Government recalled that in March 2003 the Supreme Administrative Court had found that no family life within the meaning of Article 8 had existed between the applicant and E. Any  <mask> with such family life on account of the applicant’s expulsion order and the enforcement thereof was, and would be, grounded on the Aliens Act and further a legitimate aim within the meaning of Article 8 § 2.


76.  The Government pointed out in that regard that introducing automatic deletion or anonymisation of reports after a certain period of time would not solve the issue raised by the present applications. In their view, the answer to the question whether any given report should be made anonymous on grounds of the right to protection of personality depended on a number of concrete circumstances specific to each report and on the degree of  <mask> with the competing rights at stake. Such an examination could only be carried out by qualified persons who were competent to perform the necessary balancing exercise.


152.  The Government submitted that the applicant could not claim to be a victim of the alleged violation of Article 8 of the Convention and that there had been no  <mask> with his rights. He had not complained that his communications had been intercepted. The gist of his complaint before the domestic courts and the Court was that communications service providers had installed special equipment enabling the authorities to perform operational-search activities. In the Government’s opinion, the case of Orange Slovensko, a. s. v. Slovakia ((dec.), no. 43983/02, 24 October 2006) confirmed that installation of interception equipment, or even its financing, by private companies was not in itself contrary to the Convention.


31.  The Government submitted that the expulsion order was “in accordance with the law” and pursued the legitimate aim of preventing disorder and crime. As to the question of whether the  <mask> was “necessary in a democratic society”, the Government emphasised that the Danish courts had struck a fair balance between the opposing interests and carefully assessed the applicant’s personal circumstances in accordance with Article 8 and the Court’s case-law, including Maslov v. Austria, cited above. In making an overall assessment, they had attached significant weight to the two robberies committed, one in a private home and one a bank robbery, and to the circumstance that the applicant had prior convictions for robberies, including two convictions after he had attained the age of 18 (see also Boujlifa v. France, 21 October 1997, Reports of Judgments and Decisions 1997‑VI). Having regard to the subsidiarity principle, the Court should therefore be reluctant to disregard the outcome of the assessment made by the national courts.


133.  The Government argued that the restrictions in question were necessary and proportionate in order to tackle new doping methods. Some prohibited substances such as growth hormones and EPO had a very short life and became impossible to detect after a few days or even a few hours, and there were numerous means of avoiding detection. There was broad international consensus on the necessity of unannounced tests and how they should be conducted, as evidenced by the undertakings given by States in ratifying the UNESCO Convention and the fact that 660 bodies representing all the actors involved in anti-doping (with the exception of the professional sports leagues in the United States), as well as the AFLD, abided by the WADC (see paragraph 68 above). The Government concluded from this that States had a wide discretion with regard to the  <mask> complained of.