ITEMID: 001-58007
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: GRANDCHAMBER
DATE: 1996
DOCNAME: CASE OF LOIZIDOU v. TURKEY
IMPORTANCE: 2
CONCLUSION: Preliminary objection rejected (ratione temporis);Violation of P1-1;No violation of Art. 8;Just satisfaction reserved
JUDGES: Claudio Zanghi;R. Pekkanen
TEXT: 11. The applicant, a Cypriot national, grew up in Kyrenia in northern Cyprus. In 1972 she married and moved with her husband to Nicosia.
12. She claims to be the owner of plots of land nos. 4609, 4610, 4618, 4619, 4748, 4884, 5002, 5004, 5386 and 5390 in Kyrenia in northern Cyprus and she alleges that prior to the Turkish occupation of northern Cyprus on 20 July 1974, work had commenced on plot no. 5390 for the construction of flats, one of which was intended as a home for her family. Her ownership of the properties is attested by certificates of registration issued by the Cypriot Lands and Surveys Department at the moment of acquisition.
She states that she has been prevented in the past, and is still prevented, by Turkish forces from returning to Kyrenia and "peacefully enjoying" her property.
13. On 19 March 1989 the applicant participated in a march organised by a women’s group ("Women Walk Home" movement) in the village of Lymbia near the Turkish village of Akincilar in the occupied area of northern Cyprus. The aim of the march was to assert the right of Greek Cypriot refugees to return to their homes.
Leading a group of fifty marchers she advanced up a hill towards the Church of the Holy Cross in the Turkish-occupied part of Cyprus passing the United Nations’ guard post on the way. When they reached the churchyard they were surrounded by Turkish soldiers and prevented from moving any further.
14. She was eventually detained by members of the Turkish Cypriot police force and brought by ambulance to Nicosia. She was released around midnight, having been detained for more than ten hours.
15. In his report of 31 May 1989 (Security Council document S/20663) on the United Nations Operation in Cyprus (for the period 1 December 1988 - 31 May 1989) the Secretary-General of the United Nations described the demonstration of 19 March 1989 as follows (at paragraph 11):
"In March 1989, considerable tension occurred over the well-publicized plans of a Greek Cypriot women’s group to organize a large demonstration with the announced intention of crossing the Turkish forces cease-fire line. In this connection it is relevant to recall that, following violent demonstrations in the United Nations buffer-zone in November 1988, the Government of Cyprus had given assurances that it would in future do whatever was necessary to ensure respect for the buffer-zone ... Accordingly, UNFICYP asked the Government to take effective action to prevent any demonstrators from entering the buffer-zone, bearing in mind that such entry would lead to a situation that might be difficult to control. The demonstration took place on 19 March 1989. An estimated 2,000 women crossed the buffer-zone at Lymbia and some managed to cross the Turkish forces’ line. A smaller group crossed that line at Akhna. At Lymbia, a large number of Turkish Cypriot women arrived shortly after the Greek Cypriots and mounted a counter demonstration, remaining however on their side of the line. Unarmed Turkish soldiers opposed the demonstrators and, thanks largely to the manner in which they and the Turkish Cypriot police dealt with the situation, the demonstration passed without serious incident. Altogether, 54 demonstrators were arrested by Turkish Cypriot police in the two locations; they were released to UNFICYP later the same day."
16. Turkish armed forces of more than 30,000 personnel are stationed throughout the whole of the occupied area of northern Cyprus, which is constantly patrolled and has checkpoints on all main lines of communication. The army’s headquarters are in Kyrenia. The 28th Infantry Division is based in Asha (Assia) with its sector covering Famagusta to the Mia Milia suburb of Nicosia and with about 14,500 personnel. The 39th Infantry Division, with about 15,500 personnel, is based at Myrtou village, and its sector ranges from Yerolakkos village to Lefka. TOURDYK (Turkish Forces in Cyprus under the Treaty of Guarantee) is stationed at Orta Keuy village near Nicosia, with a sector running from Nicosia International Airport to the Pedhieos River. A Turkish naval command and outpost are based at Famagusta and Kyrenia respectively. Turkish airforce personnel are based at Lefkoniko, Krini and other airfields. The Turkish airforce is stationed on the Turkish mainland at Adana.
17. The Turkish forces and all civilians entering military areas are subject to Turkish military courts, as stipulated so far as concerns "TRNC citizens" by the Prohibited Military Areas Decree of 1979 (section 9) and Article 156 of the Constitution of the "TRNC".
18. Article 159 (1) (b) of the 7 May 1985 Constitution of the "Turkish Republic of Northern Cyprus" (the "TRNC") provides, where relevant, as follows:
"All immovable properties, buildings and installations which were found abandoned on 13 February 1975 when the Turkish Federated State of Cyprus was proclaimed or which were considered by law as abandoned or ownerless after the above-mentioned date, or which should have been in the possession or control of the public even though their ownership had not yet been determined ... and ... situated within the boundaries of the TRNC on 15 November 1983, shall be the property of the TRNC notwithstanding the fact that they are not so registered in the books of the Land Registry Office; and the Land Registry Office shall be amended accordingly."
19. On 18 November 1983, in response to the proclamation of the establishment of the "TRNC", the United Nations Security Council adopted Resolution 541 (1983) which provides, where relevant, as follows:
"The Security Council ...
1. Deplores the declaration of the Turkish Cypriot authorities of the purported secession of part of the Republic of Cyprus;
2. Considers the declaration ... as legally invalid and calls for its withdrawal ...
6. Calls upon all States to respect the sovereignty, independence, territorial integrity and non-alignment of the Republic of Cyprus;
7. Calls upon all States not to recognise any Cypriot State other than the Republic of Cyprus ..."
20. Resolution 550 (1984), adopted on 11 May 1984 in response to the exchange of "ambassadors" between Turkey and the "TRNC" stated, inter alia:
"The Security Council ...
1. Reaffirms its Resolution 541 (1983) and calls for its urgent and effective implementation;
2. Condemns all secessionist actions, including the purported exchange of ambassadors between Turkey and the Turkish Cypriot leadership, declares them illegal and invalid and calls for their immediate withdrawal;
3. Reiterates the call upon all States not to recognise the purported State of the "Turkish Republic of Northern Cyprus" set up by secessionist acts and calls upon them not to facilitate or in any way assist the aforesaid secessionist entity;
4. Calls upon all States to respect the sovereignty, independence, territorial integrity, unity and non-alignment of the Republic of Cyprus ..."
21. In November 1983, the Committee of Ministers of the Council of Europe decided that it continued to regard the Government of the Republic of Cyprus as the sole legitimate Government of Cyprus and called for the respect of the sovereignty, independence, territorial integrity and unity of the Republic of Cyprus.
22. On 16 November 1983 the European Communities issued the following statement:
"The ten Member States of the European Community are deeply concerned by the declaration purporting to establish a ‘Turkish Republic of Northern Cyprus’ as an independent State. They reject this declaration, which is in disregard of successive resolutions of the United Nations. The Ten reiterate their unconditional support for the independence, sovereignty, territorial integrity and unity of the Republic of Cyprus. They continue to regard the Government of President Kyprianou as the sole legitimate Government of the Republic of Cyprus. They call upon all interested parties not to recognize this act, which creates a very serious situation in the area."
23. The Commonwealth Heads of Government, meeting in New Delhi from 23 to 29 November 1983, issued a press communiqué stating, inter alia, as follows:
"[The] Heads of Government condemned the declaration by the Turkish Cypriot authorities issued on 15 November 1983 to create a secessionist state in northern Cyprus, in the area under foreign occupation. Fully endorsing Security Council Resolution 541, they denounced the declaration as legally invalid and reiterated the call for its non-recognition and immediate withdrawal. They further called upon all States not to facilitate or in any way assist the illegal secessionist entity. They regarded this illegal act as a challenge to the international community and demanded the implementation of the relevant UN Resolutions on Cyprus."
24. On 22 January 1990, the Turkish Minister for Foreign Affairs deposited the following declaration with the Secretary General of the Council of Europe pursuant to Article 46 of the Convention (art. 46):
"On behalf of the Government of the Republic of Turkey and acting in accordance with Article 46 (art. 46) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, I hereby declare as follows:
The Government of the Republic of Turkey acting in accordance with Article 46 (art. 46) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, hereby recognises as compulsory ipso facto and without special agreement the jurisdiction of the European Court of Human Rights in all matters concerning the interpretation and application of the Convention which relate to the exercise of jurisdiction within the meaning of Article 1 of the Convention (art. 1), performed within the boundaries of the national territory of the Republic of Turkey, and provided further that such matters have previously been examined by the Commission within the power conferred upon it by Turkey.
This Declaration is made on condition of reciprocity, including reciprocity of obligations assumed under the Convention. It is valid for a period of 3 years as from the date of its deposit and extends to matters raised in respect of facts, including judgments which are based on such facts which have occurred subsequent to the date of deposit of the present Declaration."
25. The above declaration was renewed for a period of three years as from 22 January 1993 in substantially the same terms.
NON_VIOLATED_ARTICLES: 8


ITEMID: 001-93103
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF NOVIKOV v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection dismissed (non-exhaustion of domestic remedies);Preliminary objection dismissed (victim);Violation of P1-1;Remainder inadmissible;Pecuniary damage - award;Non-pecuniary damage - finding of a violation sufficient
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: 4. The applicant was born in 1963 and lives in the town of Blagoveshchensk, Amur Region.
5. On 30 November 1998 the Amur regional police stopped a car. During an inspection of the car, the police discovered a large quantity of aviation fuel. As the driver was unable to produce a certificate for the fuel he was transporting, the police (officer S) seized 22,622 litres of fuel. The police entrusted it for safe keeping to a Belogorsk technical college and later to military unit no. 62266.
6. As the fuel allegedly belonged to a private company OPIUMIK (the “company”), officer S required the company director, Mr P, to produce a document confirming that the fuel had been acquired lawfully. Mr P submitted an invoice dated 1 August 1998. Criminal proceedings were, however, instituted against Mr P on suspicion of forgery of this invoice. The Belogorsk town prosecutor subsequently discontinued the proceedings on the ground that only the forgery of official documents was punishable under the Criminal Code. No decision was taken regarding the fate of the fuel.
7. As can be seen from the domestic courts’ findings (see paragraph 15 below), in the meantime, officer S decided not to institute any criminal proceedings in relation to the seized fuel. However, on 2 February 1999 the Belogorsk deputy prosecutor set aside this decision and ordered an additional inquiry. There is no indication that this inquiry led to any prosecution or that any decision was taken in relation to the seized fuel.
8. The company thus attempted to regain possession of its fuel. By a letter of 17 May 1999 the Belogorsk deputy prosecutor informed the company that the fuel had not been attached to the criminal case file against Mr P as evidence and thus no decision had to be taken. He invited Mr P to collect the fuel through the police department. On an unspecified date, however, the company learnt from the Amur police department that the fuel had been stolen when it had been stored in the military unit.
9. Meanwhile, the national authorities endeavoured to identify the officials responsible for the loss of the fuel. Criminal proceedings were instituted against officer S for abuse of power, as well as against the commander of the military unit and officer St, who had allegedly misappropriated the fuel in the military unit. On 18 December 1999 the Belogorsk town military prosecutor discontinued the proceedings against officer St and the head of the military unit because there was no indication of a criminal offence. On 8 April 2000 the proceedings against officer S were discontinued because his participation in the disappearance of the fuel had not been proven.
10. It does not appear that any criminal or other investigation continued thereafter in relation to the seized but missing fuel. No further claim was lodged in respect of it by the company or any other person or legal entity. Nor does it appear that the company made any attempts to obtain compensation after 17 May 1999 (cf. paragraph 8 above). Instead, the company chose to assign the related claims to the applicant (see below).
11. On 26 October 2001 the company transferred title to the seized fuel to the applicant. On 25 November 2001 the parties amended the assignment agreement, indicating that the assignment included a claim in respect of any damage or loss caused by the authorities on account of the seizure of the fuel, as well as a claim for compensation in respect of unjustified enrichment on the same account and a claim for return of the fuel. The amended agreement also stated that the signing of that agreement “annulled the company’s debt of 50,000 Russian roubles under a contract dated 20 October 2000”.
12. The company informed the regional police department of the transfer of title. Since 27 October 2001 the applicant has unsuccessfully requested the police department to return the fuel.
13. In November 2001 the applicant sued the Amur Regional Treasury, claiming compensation for the damage incurred as a result of the seizure and loss of the fuel. The Commercial Court of the Amur Region designated the Ministry of the Interior as the proper respondent, with the applicant’s consent. The court also gave the regional police department, the military unit and the company leave to intervene as third parties in the proceedings.
14. By judgment of 14 March 2002 the Commercial Court of the Amur Region dismissed the applicant’s action. The court held as follows:
“Under an assignment agreement of 26 October 2001 the OPIUMIK company transferred all its rights to the fuel to [the applicant]...The assignment did not contravene Articles 158, 388 and 389 of the Civil Code... The fuel had been seized in relation to the accusation of forgery against Mr P...
[T]he criminal prosecution against officer S was discontinued ...The fuel was misappropriated by officer St, against whom proceedings were discontinued on 18 December 1999...
[T]he responsibility of an officer of the Ministry of the Interior for unlawful seizure of the company’s fuel must be established by a final judgment in a criminal case. The commercial court, under Article 22 of the Code of Arbitration Procedure, does not have the right to assess the lawfulness or unlawfulness of the actions (failure to act) of the investigating authorities and the prosecutor’s office.
The plaintiff did not submit any evidence showing that the seizure of the fuel by the officer of the Amur regional police department had been declared unlawful by a court and that [the officer] was responsible for the loss of the fuel.
The action must be dismissed because there was no fault on the part of the person who allegedly caused the damage.”
15. The applicant appealed contending that the absence of a criminal conviction in respect of the officer had been irrelevant and that the respondent and the military unit had entered into a contract for storage of the fuel seized from the company. On 15 April 2002 the Appellate Division of the Commercial Court of the Amur Region upheld the judgment of 14 March 2002. The court stated inter alia as follows:
“Officer S acted lawfully when he inspected and seized the fuel...Having verified whether the fuel had been lawfully acquired, officer S decided not to bring criminal proceedings; on 2 February 1999 the Belogorsk deputy prosecutor set aside this decision and ordered an additional inquiry...
Officer S’s failure to observe the procedure for inspection and transfer of the fuel for safe-keeping purposes has no direct causal link with the loss of the fuel...”
Lastly, the appeal court made the following observations in relation to the military unit:
“Military unit no. 62266 received the seized fuel for storage ... in accordance with Article 84 § 2 of the RSFSR Code of Criminal Procedure. Under Article 906 of the Civil Code of the Russian Federation the military unit became civilly liable vis-à-vis the plaintiff for the safe keeping of the fuel. Under Article 902 § 1 of the Civil Code of the Russian Federation, in the event of the loss of the fuel [the military unit] had to compensate the plaintiff for the resulting damage, unless otherwise provided by the law.”
The appeal judgment became final on the same date.
16. On 11 June 2002 the Commercial Court of the Far Eastern Circuit, sitting as a cassation-instance court, upheld the judgments of 14 March and 15 April 2002. The court noted that the seizure of the fuel had been due to the absence, at the time, of any document confirming the company’s title to it. The court held that the plaintiff had not proved that the investigator had been responsible for the damage caused.
17. In the meantime, on 29 April 2002 the applicant brought proceedings in the Blagoveshchensk Town Court of the Amur Region against, inter alia, the military unit. He claimed that the authorities’ failure to return the fuel or to pay compensation be declared unlawful.
18. By a judgment of 12 November 2003 the Town Court rejected the applicant’s claim. The court held that the fuel seizure had been carried out by officer S before any criminal proceedings had been initiated because of the need to conduct urgent investigative measures, namely a crime-scene inspection, in compliance with the RSFSR Code of Criminal Procedure (see paragraph 26 below). The Town Court also held as follows:
“As established in the judgment of the commercial court, during the seizure of the fuel the OPIUMIK company had not supplied any document to confirm the lawfulness of its acquisition. Later Mr P submitted a forged invoice, which gave rise to criminal proceedings against him. An agreement dated 2 November 1998 between the OPIUMIK company and a Mr G for the purchase of 22,622 litres of fuel was produced before this court. It cannot be accepted as a proof of the lawfulness of the fuel acquisition because the content of that agreement does not correspond to the materials in the criminal case which had been discontinued. Nor does it correspond to Mr P’s deposition in the criminal proceedings, to the invoice or the expert report no. 141-k of 17 February 1999 which stated that the handwritten inscriptions in invoice no. 983 of 1 August 1998 had been done by Mr P. The Court rejects as unfounded Mr P’s allegation that the documents in the criminal file and his deposition had been obtained under duress. Besides, the Court considers that Mr P’s and [the applicant’s] arguments are intended to challenge the circumstances already determined by the final judgment of the commercial court, in particular as regards the lawfulness of the fuel acquisition by the company...The Court concludes that no evidence has been adduced to confirm [it]. The Court does not accept [the applicant’s] argument that the commercial court had confirmed the lawfulness of the fuel acquisition; such matter had not been contested before the commercial court...
The grounds for compensation in respect of damage caused by the investigating authorities, including a claim for restitution of the fuel, are regulated by Articles 1069 and 1070 of the Civil Code. Those grounds were also examined by the commercial courts and cannot be subject to a re-examination in the present case. No legal relationship (обязательственные отношения) was established between [the applicant] on the one hand and the military unit, the Ministry of Defence or the Ministry of the Interior on the other. Hence, his claims ... should be rejected.”
Lastly, the court found that the applicant had missed the statutory time-limit under Article 256 of the Code of Civil Procedure for bringing the matter before the courts of general jurisdiction.
19. On 9 January 2004 the Amur Regional Court upheld the judgment. The court considered that the commercial court’s judgment of 14 March 2002 had dismissed the applicant’s claims, inter alia, due to his failure to produce evidence confirming the lawfulness of the fuel acquisition. Neither was the civil court provided with any proof that the company had had title to the fuel.
20. A commercial court issued a private company with an enforcement order for a sum of money against a State-owned enterprise. The company did not submit the writ within the statutory time-limit and bailiffs refused to enforce the judgment. The company assigned the claim to the applicant, who then requested the commercial court to designate him as creditor in respect of the above judicial award and to restore the time-limit for lodging the enforcement order. In 2002 the commercial court rejected both requests. The applicant did not appeal.
21. The applicant also requested a court of general jurisdiction to designate him as creditor in respect of the assigned award and to award him compensation for the damage sustained. On 26 February 2003 the Primorye Regional Court, at final instance, disallowed the first claim because it had already been determined on 24 October 2002 by the final decision of the commercial court. On 12 March 2003 the Regional Court, at final instance, dismissed the claim for damages on the ground that the applicant’s title had never been confirmed by a court.
22. The Civil Code of the Russian Federation, in force from 1 January 1995, provided as follows:
“Damage caused to an individual or a legal entity as a result of the unlawful actions (failure to act) of State agencies, agencies of local self-government or officials of these agencies, including as a result of the issuance of an act of a State agency or agency of local self-government which is contrary to a law or any other legal act, shall be subject to compensation. The damage shall be compensated for at the expense, respectively, of the Treasury of the Russian Federation, the treasury of the region of the Russian Federation, or the treasury of the municipal authority.”
“1. Damage caused to an individual as a result of his or her wrongful conviction or unlawful criminal prosecution, or the unlawful application, as a preventive measure, of remand in custody or of a written undertaking not to leave a specified place, or the unlawful imposition of an administrative penalty in the form of arrest or corrective labour, shall be compensated for in full at the expense of the Treasury of the Russian Federation and in certain cases, stipulated by law, at the expense of the treasury of the subject of the Russian Federation or of the municipal authority, irrespective of any fault by the officials of the agencies of inquiry or preliminary investigation, prosecutor’s offices or courts, in accordance with the procedure established by law.
2. Damage caused to an individual or a legal entity as a result of the unlawful activity of agencies of inquiry or preliminary investigation or prosecutor’s offices, which has not entailed the consequences specified in paragraph 1 of this Article, shall be compensated for on the grounds and according to the procedure provided for by Article 1069 of this Code...”
23. Article 385 of the Code required the person or entity making an assignment to supply the new creditor with the documents certifying the assignor’s claims. On 30 October 2007 the Supreme Commercial Court of Russia issued an information note summarising the existing case-law on various aspects of the interpretation and application of the provisions of the Civil Code on the assignment of claims and liabilities. In particular, it noted that the invalidity or invalidation of the claim assigned did not imply the invalidity of the assignment agreement. At the same time, it noted that the former gave the assignee the right to sue the assignor under Article 390 of the Civil Code. Nor did the Civil Code prevent the assignment of a future claim or one that was still non-existent when an assignment agreement was signed. The Supreme Court also noted that the assignor’s failure to provide the assignee with documents certifying the former’s entitlement or claim did not mean that the entitlement or claim had not been conferred on the assignee.
24. Under the Civil Code, an obligation to keep or store items arises under a contract (Article 886) or if provided for by law (Article 906).
25. The RSFSR Code of Criminal Procedure of 1961, in force at the material time, provided as follows:
“... Material exhibits must be stored in a criminal case. If items of evidence, owing to their size or for any other reason, cannot be stored in the criminal case file, their picture must be taken; if possible, [they] must be sealed and stored in a place specified by the investigator, prosecutor, court...”
“Material exhibits shall be stored until the trial judgment becomes final or until expiry of the time-limit for lodging an appeal against a decision by which proceedings are discontinued...
Material exhibits which can be damaged easily and whose return to their owner is impossible should be given to appropriate entities for use in accordance with [the exhibits’] purpose. If necessary, items of the same type and quality shall be returned to the owner as compensation, or the owner shall be paid a sum equivalent to their value.”
26. Article 178 of the Code provides that an investigator may inspect the crime scene or other locations, premises or items for the purpose of detecting physical evidence of the crime or clarifying the circumstances. In urgent situations, the inspection may be carried out before criminal proceedings are instituted. In such situations, the proceedings should be instituted immediately after the inspection.


ITEMID: 001-118393
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF VYERENTSOV v. UKRAINE
IMPORTANCE: 2
CONCLUSION: Remainder inadmissible;Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Violation of Article 7 - No punishment without law (Article 7-1 - Nulla poena sine lege;Nullum crimen sine lege);Violation of Article 6+6-3-b - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Fair hearing;Article 6-3-b - Adequate facilities;Adequate time) (Article 6-3-b - Adequate facilities;Adequate time;Article 6 - Right to a fair trial);Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Fair hearing;Article 6-3-c - Defence through legal assistance) (Article 6-3-c - Defence through legal assistance;Article 6 - Right to a fair trial);Violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Fair hearing;Article 6-3-d - Examination of witnesses) (Article 6-3-d - Examination of witnesses;Article 6 - Right to a fair trial);Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Fair hearing);Respondent State to take measures of a general character (Article 46-2 - Legislative amendments);Non-pecuniary damage - award
JUDGES: Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Paul Lemmens
TEXT: 5. The applicant was born in 1973 and lives in Lviv.
6. On 17 August 2010 the applicant notified the Lviv City Mayor on behalf of a local human-rights NGO, “Vartovi zakonu”, of its intention to hold a demonstration every Tuesday from 10.30 a.m. to 1 p.m. near the building of the Lviv Regional Prosecutor’s Office during the period between 17 August 2010 and 1 January 2011. The aim of the demonstration was to draw attention to the issue of corruption in the prosecution service. The number of possible participants was declared as up to fifty persons. There is no information as to whether any such demonstration was held prior to 12 October 2010 (see below).
7. On 5 October 2010 the Executive Committee of the Lviv City Council lodged a claim with the Lviv Administrative Court seeking to restrict the demonstration announced by the applicant. On 6 October 2010 the court left the above claim without consideration as being submitted too late. The Executive Committee resubmitted its claim on 11 October with a request for renewal of the time-limit for lodging the claim. The same day the court allowed the request and accepted the claim for examination.
8. On Tuesday 12 October 2010, further to his previous announcement of 17 August 2010, the applicant informed the City Council about the demonstration to be held on that particular day. He thus organised a peaceful demonstration near the Lviv Regional Prosecutor’s Office later that day between 11.30 a.m. and 12.40 a.m. About twenty-five persons took part. They were standing on the pavement in front of the building of the Prosecutor’s Office when the police told them that they should remain at a distance of five metres from the building. That would have forced the demonstrators to stand in the road and obstruct the traffic. After some discussion with the police, they crossed the road and stood on a lawn on the opposite side. The police, however, told the demonstrators that they could not stand on the lawn and should move away, which meant standing in the road again and obstructing the traffic, causing temporary traffic-jams.
9. Immediately afterwards, the applicant was called aside by two police officers. They grabbed his arms and took him in the direction of the nearby police station. Some of the demonstrators requested the officers to show them their identification and started filming the incident; the officers then let the applicant go.
10. On 13 October 2010 the Lviv Regional Administrative Court granted a request by the Executive Committee of the Lviv City Council to prohibit the holding of the pre-announced demonstrations by the applicant’s NGO as from 19 October 2010. The decision was appealed against.
11. According to the applicant, on the same day he was invited to the police station on the pretext that he had failed to appear at a court hearing to which he had been summoned. Upon his arrival at the Galytskyy District Police Station at about 5 p.m., the police accused the applicant of having committed the administrative offences of malicious disobedience to a lawful order by the police and of breaching the procedure for organising and holding a demonstration on 12 October. Between 10 p.m. and 11 p.m. the police drew up reports on those administrative offences. The applicant telephoned his lawyer, but the latter was not allowed onto the premises of the police station. At 11 p.m. the applicant was placed in a cell, where he remained without food until 3 p.m. on the next day, 14 October 2010.
12. On 14 October 2010, before taking him to the court, the police drew up anew the reports on the administrative offences of malicious disobedience to a lawful order by the police and of breaching the procedure for organising and holding a demonstration. In their reports they referred to provisions of the Code on Administrative Offences and to the procedure for organising and holding meetings, rallies, street marches and demonstrations in the city of Lviv (see paragraphs 21 and 28 to 30 below). The reports were signed by the applicant.
13. At 3 p.m. the applicant was taken to the Galytskyy District Court. He had no opportunity to study the case-file materials before the court hearing. During the hearing, the court rejected the applicant’s request to be represented by the lawyer of his choosing on the ground that the applicant was a human-rights defender and could defend himself. The applicant’s request to summon and question witnesses and examine a video made during the events of 12 October 2010 was also rejected by the court.
14. By a decision of the same day, the court found the applicant guilty of committing the administrative offences of malicious disobedience to a lawful order by the police, and of breaching the procedure for organising and holding a demonstration. The court noted that the applicant had held a street march without the permission of the Lviv City Council and had ignored the lawful demands of the police to stop breaching the peace. He also refused to follow the police to their station but instead called the participants in the demonstration, who shouted and threatened the officers. The applicant denied all accusations. Having heard the applicant and examined the case-file materials, the court concluded that the applicant’s testimony was refuted by the written reports of the police officers and the traffic police officers. The court noted that the said reports had been drawn up correctly and therefore had to be taken into account. It sentenced the applicant to three days of administrative detention starting from 6 p.m. on 14 October 2010 with reference to the relevant provisions of the Code on Administrative Offences.
15. At around 6 p.m. on 17 October 2010 the applicant was released.
16. On 18 October 2010 the applicant appealed against the court’s decision of 14 October 2010. In his appeal, he complained that he had been found guilty even though he had not committed the alleged offences. He noted that under Article 39 of the Constitution a demonstration could be held subject to notifying the authorities and any restrictions on holding one could be imposed only by a court; no permission had therefore been required. He also noted that he had notified the City Council twice about the gathering in question and at the time it was held there had been no court decision prohibiting it. Therefore, he considered that he had organised the gathering of 12 October 2010 lawfully and the conclusions of the first-instance court that he had “held a meeting without permission of the City Council” had not been based on law as no such permission was required by domestic law. He further challenged the conclusion of the police that he had notified the authorities about the event only a few hours in advance, claiming that he had already done so on 17 August 2010. Furthermore, in his opinion, even the requirement of notification two days in advance, which had been established by the procedure for organising and holding meetings, rallies, street marches and demonstrations in the city of Lviv and to which the police referred in their reports on administrative offences, was not based on law, as the Constitutional Court in its decision of 19 April 2001 had decided that the procedure for such notification had to be a matter for legislative regulation.
17. The applicant further maintained in his appeal that, in the absence of any lawful restrictions on holding a demonstration, demands by the police to stop such an event could not be considered lawful and the law did not provide for liability for disobeying unlawful demands of police officers. He finally complained that the first-instance court had violated his right to defend himself as it had refused to allow his lawyer to appear in the case on the ground that the applicant was a human-rights defender and therefore able to defend his rights himself.
18. In a supplement to his appeal of 27 October 2010, the applicant complained that his punishment violated Article 11 of the Convention. Referring to provisions of Article 6 §§ 1 and 3 (b-d) of the Convention, he further complained that his right to defend himself had been violated, and that the first-instance court had refused to question the witnesses and to examine a video record of the peaceful demonstration.
19. On 27 October 2010 the Lviv Regional Court of Appeal examined the applicant’s appeal in the presence of the applicant and his lawyer and rejected it. It summarised the findings of the first-instance court and the arguments of the applicant’s appeal. The court noted that the findings of the first-instance court as to the applicant’’s opinion, were confirmed by the police reports and other explanations and evidence. In reply to the applicant’s arguments to the effect that there had been no corpus delicti in his actions, the Court of Appeal noted that they should be disregarded, because they were refuted by the body of evidence in the case, without elaborating further on that point. The court referred in its decision to the relevant provisions of the Code on Administrative Offences.
20. The relevant provisions of the Constitution read, in so far as relevant, as follows:
“Human and citizens’ rights and freedoms affirmed by this Constitution are not exhaustive.
Constitutional rights and freedoms are guaranteed and shall not be abolished.
The content and scope of existing rights and freedoms shall not be diminished by the enactment of new laws or the amendment of laws that are in force.”
“Citizens have the right to assemble peacefully without arms and to hold meetings, rallies, marches and demonstrations, after notifying the executive authorities and bodies of local self-government beforehand.
Restrictions on the exercise of this right may be established by a court in accordance with the law − in the interests of national security and public order only − for the purpose of preventing disturbances or crimes, protecting the health of the population, or protecting the rights and freedoms of other persons.
“The following are determined exclusively by the laws of Ukraine:
(1) human and citizens’ rights and freedoms; the guarantees of these rights and freedoms; the main duties of the citizen ...”
“1. Laws and other normative acts enacted prior to the entry into force of this Constitution shall apply in so far as they do not conflict with the Constitution of Ukraine...”
21. The relevant provisions of the Code read, in so far as relevant, as follows:
“Malicious disobedience to a lawful order or demand by a police officer who is carrying out his official duties ... shall be punishable by a fine of between eight and fifteen times the minimum monthly wage, or by correctional labour of between one and ’s character these measures are found to be insufficient, by administrative detention of up to fifteen days.”
“A breach of the procedure for organising and holding meetings, rallies, street marches and demonstrations shall be punishable by a reprimand or by a fine of between ten and twenty-five times the minimum monthly wage.
The same actions committed within a year of the application of administrative penalties or by the organiser of the meeting, rally, street procession or demonstration shall be punishable by a fine of between twenty and one hundred times the minimum monthly wage, or by correctional labour of one to two months, with a deduction of 20% of earnings; or by administrative detention of up to fifteen days.”
“The provision by officials of premises, transport, or technical means, or the creating of other conditions for the organisation and holding of meetings, rallies, street marches and demonstrations, in violation of the established procedure, shall be punishable by a fine of between twenty and one hundred times the minimum monthly wage.”
22. Paragraph 1 of Article 268 of the Code provides, inter alia, for the following rights in respect of a person whose administrative liability is engaged:
“A person whose administrative liability is engaged shall be entitled to study the case materials, to give explanations, to present evidence, to make requests, and to have the assistance of a lawyer ... during the examination of the case ...”
23. The right to a lawyer in administrative offence proceedings is further guaranteed by Article 271 of the Code.
24. According to Article 294 of the Code, a court resolution concerning an administrative offence could be appealed against. The relevant part of the Article provides as to the appellate court’s competence as follows:
“A court of appeal shall review the case within the scope of the appeal. The court of appeal is not limited to arguments of the appeal if incorrect application of substantive law or violation of procedural norms has been established during the hearing. The court of appeal can examine new pieces of evidence which have not been examined before, if it finds that the failure to present them to the local court was justified or that the local court rejected them without good reason.”
25. The Decree lays down the procedure for seeking and granting permission to organise and hold meetings, rallies, street marches and demonstrations. The Decree provides inter alia as follows:
“The Constitution of the USSR, according to the interests of the people and for the strengthening and development of the socialist system, guarantees to the citizens of the USSR the freedom to hold meetings, rallies, street marches and demonstrations. Exercise of these political freedoms shall be ensured to the working people and their organisations by providing them with public buildings, streets, squares and other places ...
1. An application to hold a meeting, rally, street procession or demonstration shall be submitted to the executive committee of the appropriate local Soviet of people’s deputies...
2. An application to hold a meeting, rally, street procession or demonstration shall be submitted in writing no later than ten days before the planned date of the event in question...
3. The executive committee of the Soviet of people’s deputies shall examine the application and notify the representatives (organisers) of its decision no later than five days prior to the date of the event mentioned in the application...
...
6. The executive committee of the Soviet of people’s deputies shall ban a meeting, rally, street procession or demonstration if the goal of the event in question is contrary to the Constitution of the USSR, the Constitutions of the Republics of the Union or of the autonomous republics or poses a threat to the public order and safety of citizens.”
26. By enacting this Law, the Supreme Soviet of the USSR approved a number of Decrees of the Presidium, including the above-mentioned Decree of 28 July 1988.
27. The Resolution provides in particular:
“ ... before the relevant legislation of Ukraine is enacted, the legislation of the USSR shall be applicable within the territory of the republic in respect of issues that have not been regulated by the legislation of Ukraine and in so far as they do not contravene the Constitution and legislation of Ukraine.”
28. This decision introduced the procedure for organising peaceful gatherings in the city of Lviv. According to that decision, the freedom of assembly was guaranteed, but could be restricted by a court for considerations of public health, prevention of crime and disorder and protection of the rights of others. To restrict such a gathering, the Executive Council could apply to a court. Item 7 of the procedure provided that notification about a planned gathering had to be given at least two working days prior to the date on which it was to be held.
29. Item 14 of the procedure specified that gatherings could not be held in the road (except street marches and demonstrations), on lawns and flower beds, or in front of the central entrance (not closer than seven metres) and other entrances of administrative buildings. Nor could they be held in case of non-compliance with sanitary norms. Item 16 of the procedure specified that holding a gathering in breach of any of the restrictions imposed by item 14 should be considered a breach of the peace and should engage liability under the law. Item 15 further provided that the organisers should be responsible for ensuring public order during a gathering. Item 20 further provided that the authorities could apply to a court for the purpose of establishing the liability of persons responsible for breaching the procedure.
30. On 1 June 2011 the Lviv City Council annulled the decision of 16 April 2004 of its Executive Committee and ordered a new procedure on the holding of such gatherings to be drawn up.
31. In its decision the Constitutional Court held inter alia:
“1. ... the Ministry of the Interior of Ukraine applied to the Constitutional Court of Ukraine for an official interpretation of the provisions of Article 39 of the Constitution of Ukraine regarding timely notification to executive authorities or bodies of local self-government of planned meetings, rallies, marches or demonstrations.
In this constitutional application it is noted that, under Article 39 of the Constitution of Ukraine, citizens have the right to assemble peacefully without arms and to hold meetings, rallies, marches or demonstrations following prior notification to the executive authorities or bodies of local self-government. However, it is stressed that the current legislation of Ukraine does not provide for a specific time-limit within which the executive authorities or bodies of local self-government are to be notified about such actions...
... the Constitutional Court holds as follows:
1. The provisions of the first part of Article 39 of the Constitution of Ukraine on the timely notification to the executive authorities or bodies of local self-government about planned meetings, rallies, marches or demonstrations relevant to this constitutional application shall be understood to mean that where the organisers of such peaceful gatherings are planning to hold such an event they must inform the above-mentioned authorities in advance, that is, within a reasonable time prior to the date of the planned event. These time-limits should not restrict the right of citizens under Article 39 of the Constitution of Ukraine, but should serve as a guarantee of this right and at the same time should provide the relevant executive authorities or bodies of local self-government with an opportunity to take measures to ensure that citizens may freely hold meetings, rallies, marches and demonstrations and to protect public order and the rights and freedoms of others.
Specifying the exact deadlines for timely notification with regard to the particularities of [different] forms of peaceful assembly, the number of participants, the venue, at what time the event is to be held, and so on, is a matter for legislative regulation ...”
32. In its review the Supreme Court noted inter alia as follows:
“... No legislation has been enacted in Ukraine establishing a mechanism for fulfilling the right to freedom of peaceful assembly. According to the Resolution of the Verkhovna Rada of Ukraine of 12 September 1991 no. 1545-XII on temporary application of certain legislative acts of the Soviet Union, the normative acts of the USSR remain in force, applying in order of legal rank, for example, the Decree of the Presidium of the Supreme Soviet of the USSR of 28 July 1988 on the procedure for organising and holding meetings, rallies, street marches and demonstrations in the USSR ...”
33. The note mentioned, inter alia, as follows:
“...The legislation of Ukraine does not currently have a special law regulating public relations in the sphere of peaceful assembly. One of the urgent problems to be settled by such a law is the time-limits for notifying the authorities of a planned peaceful gathering in order to ensure that it is held in safe conditions. Article 39 of the Constitution of Ukraine, while providing that the executive authorities or bodies of local self-government must be notified in a timely manner that a peaceful gathering is to be held, does not establish specific deadlines for such notification. The uncertainty of this matter results in the relevant constitutional norm being applied inconsistently and thus requires legal regulation ...
... The judicial practice contains instances of cases restricting the right to peaceful assembly being decided on the basis of the procedure for organising and holding meetings, rallies, street marches and demonstrations laid down by the Decree of the Presidium of the Supreme Soviet of the USSR of 28 July 1988 No. 9306-XI on the procedure for organisation and holding of meetings, rallies, street marches and demonstrations in the USSR. This approach is incorrect.
Since the norms of this Decree establish the procedure for authorising (registering) peaceful assembly and empower the authorities and bodies of local self-governments to ban such events, whereas the norms of the Constitution of Ukraine provide for a procedure whereby the authorities are notified that a gathering is to be held and provides that only the courts have power to ban a peaceful gathering, the above-mentioned legal act should not be applied by courts when deciding such cases ...”
34. In the judgment of the Babushkinsky District Court of Dnipropetrovsk of 30 March 2007 in the case of S. v. the Executive Committee of the Dnipropetrovsk City Council concerning the adoption of regulations on holding mass events in the city of Dnipropetrovsk, the court held, inter alia, that the procedures for exercising the right to freedom of assembly and the procedures and grounds for restricting the right were not regulated by Ukrainian legislation and therefore the Council had no grounds for adopting the impugned regulation, which would interfere with the rights of citizens.
35. In another case the Kyiv Administrative Court, in a judgment of 29 November 2011, restricted the right of several NGOs and private persons to hold a demonstration on account, in particular, of their failure to notify the Kyiv City State Administration of their intention ten days in advance. The court referred to the 1988 Decree. The participants appealed against that judgment. On 16 May 2012 the Kyiv Administrative Court of Appeal quashed the judgment of the first-instance court. In its decision the Court of Appeal noted that the 1988 Decree conflicted with the Constitution as it required the organisers to seek permission to hold a demonstration and authorised the executive authorities to ban such an event, whereas Article 39 of the Constitution provided that the authorities should be notified that a demonstration was being planned, and empowered only the judicial authorities to place restrictions on the organisation thereof. It also noted that in its decision of 19 April 2001 (see paragraph 31 above) the Constitutional Court had not referred to the 1988 Decree as a normative act which should apply in Ukraine to the legal relations under consideration. The court also noted that the file contained no documents proving that notification about the demonstration less than 10 days in advance had not allowed the police to ensure public order during the demonstration and that the holding of such an event could create a real risk of riots or crimes or endanger the health of the population and imperil the rights and freedoms of others. It concluded that the judgment of the first-instance court was incompatible with Article 39 of the Constitution and Article 11 of the Convention.
36. In another case the Kyiv Administrative Court of Appeal, in a decision of 11 October 2012, quashed the judgment of the Kyiv Administrative Court, which had restricted the freedom of peaceful assembly in respect of a number of political and non-governmental organisations upon an application by the Kyiv City State Administration. In its decision the Administrative Court of Appeal noted that, in deciding the case, the first-instance court had had regard to the provisions of the 1988 Decree, whereas since 1996 the question of holding peaceful gatherings had been regulated by the Constitution. The court further stated that the 1988 Decree conflicted with the Constitution as it provided for a procedure for seeking permission to hold a demonstration and that the Decree concerned the holding of such events in a non-existent country (“the USSR”), regulated relations between the citizens of the USSR and the executive committees of the Soviets of People’s Deputies, and considered demonstrations on the basis of their compatibility with the Constitution of the USSR, the constitutions of the union and the autonomous republics, that is, non-existent constitutions of non-existent subjects. The court also noted that under the Ukrainian Constitution human rights and freedoms, and the relevant safeguards, could be defined only by the laws of Ukraine.
37. According to the Ukrainian Helsinki Human Rights Union in 2012 the Ukrainian authorities sought to restrict peaceful gatherings in 358 cases and in 90% of the cases they succeeded.
38. At the request of a Ukrainian MP, the Ministry of Justice sent an information letter to an NGO in Kyiv. The text of this letter can be found on the official website of the Ukrainian Parliament.
39. The relevant parts of the letter read as follows:
“... It should be noted that the current legislation on the organisation and holding of peaceful demonstrations is not perfect. For example, today the organisation and conduct of peaceful demonstrations is regulated by the Decree of the Presidium of the Supreme Soviet of the USSR of 28 July 1988 N 9306 on the organisation and holding of meetings, rallies, street marches and demonstrations in the USSR (hereinafter – “the Decree”) which, in accordance with paragraph 1 of Chapter XV - Transitional Provisions of the Constitution of Ukraine − is effective in so far as it does not contradict the Constitution of Ukraine. The above Decree defined, in particular, which persons were authorised to contact the executive bodies of village, settlement and town councils to notify them of proposed peaceful demonstrations; requirements for the content of such notifications; requirements for the executive bodies of village, settlement and town councils in ensuring conditions for the holding of a peaceful demonstration; etc.
Thus, the requirements as to the organisation and holding of peaceful demonstrations, the time-limit for notification to be given to executive or local government bodies, the documents to be attached to the application for holding the event, etc. are currently not regulated by law ...
... Given the inadequacy of the current state of the legal regulation of the procedure for the organisation and conduct of peaceful demonstrations, which results in problems in the application of law, since the legal norms are not formulated with sufficient clarity and are subject to ambiguous interpretation by those wishing to have recourse to them (including bodies of local government), only legislative regulation of the procedure for organising and holding such demonstrations will eliminate the negative practices that have arisen.
Because of the need for legislative support for the practical application of the aforesaid right defined by Article 39 of the Constitution of Ukraine - to assemble peacefully without arms and to hold meetings, rallies, demonstrations, pickets and marches - the Ministry of Justice has drafted the Law of Ukraine on the organisation and conduct of peaceful demonstrations, which was submitted by the Government of Ukraine to the Verkhovna Rada of Ukraine (registration N 2450 from 6 May 2008) and was approved by the Parliament on its first reading on 3 June 2009 ...”
40. The draft law mentioned in the letter is currently awaiting its second reading in Parliament.
41. The Guidelines provide in so far as relevant as follows:
“1. Advance notice. The legal provisions concerning advance notice should require a notice of intent rather than a request for permission. The notification process should not be onerous or bureaucratic. The period of notice should not be unnecessarily lengthy, but should still allow adequate time prior to the notified date of the assembly for the relevant state authorities to plan and prepare for the event, and for the completion of an expeditious appeal to a tribunal or court should the legality of any restrictions imposed be challenged. If the authorities do not promptly present any objections to a notification, the organizers of a public assembly should be able to proceed with the planned activity in accordance with the terms notified and without restriction.”
“ ...
The legal framework
7. Regulating freedom of assembly in domestic law. Freedom of peaceful assembly should be accorded constitutional protection that ought to contain, at a minimum, a positive statement of both the right and the obligation to safeguard it. There should also be a constitutional provision that guarantees fair procedures in the determination of the rights contained therein. Constitutional provisions, however, cannot provide for specific details or procedures. As such, general constitutional provisions can be abused and, of themselves, afford unduly wide discretion to the authorities.
...
9. Domestic laws regulating freedom of assembly must be consistent with the international instruments ratified by that state, and the legitimacy of domestic laws will be judged accordingly. Domestic laws must also be interpreted and implemented in conformity with the relevant international and regional jurisprudence.
“ ...
Legality
30. Any restrictions imposed must have a formal basis in primary law. The law itself must be sufficiently precise to enable an individual to assess whether or not his or her conduct would be in breach of the law, and to foresee what the consequences of such breaches would likely be. The incorporation of clear definitions in domestic legislation is vital to ensuring that the law remains easy to understand and to apply, and that regulation does not encroach upon activities that ought not to be regulated. Definitions should therefore be neither too elaborate nor too broad.”
“ ...
Advance notification
91. It is common for the regulatory authority to require advance written notice of public assemblies. Such a requirement is justified by the state’s positive duty to put in place any necessary arrangements to facilitate freedom of assembly and protect public order, public safety, and the rights and freedom of others. The UN Human Rights Committee has held that a requirement to give notice, while a de facto restriction on freedom of assembly, is compatible with the permitted limitations laid down in Article 21 of the ICCPR. Similarly, the European Commission on Human Rights, in Rassemblement Jurassien (1979), stated that: “Such a procedure is in keeping with the requirements of Article 11(1), if only in order that the authorities may be in a position to ensure the peaceful nature of the meeting, and accordingly does not as such constitute interference with the exercise of the right.”
92. The notification process should not be onerous or bureaucratic, as this would undermine the freedom of assembly by discouraging those who might wish to hold an assembly. Furthermore, individual demonstrators should not be required to provide advance notification to the authorities of their intention to demonstrate. Where a lone demonstrator is joined by another or others, then the event should be treated as a spontaneous assembly...
93. The period of notice should not be unnecessarily lengthy (normally no more than a few days), but should still allow adequate time prior to the notified date of the assembly for the relevant state authorities to plan and prepare for the event (deploy police officers, equipment, etc.), for the regulatory body to give a prompt official response to the initial notification, and for the completion of an expeditious appeal to a tribunal or court should the legality of any restrictions imposed be challenged.
94. The official receiving the notice should issue a receipt explicitly confirming that the organizers of the assembly are in compliance with the applicable notice requirements. The notice should also be communicated immediately to all state organs involved in the regulatory process, including the relevant police authorities.
Notification, not authorization
95. Legal provisions concerning advance notice should require a notice of intent rather than a request for permission. Although lawful in several jurisdictions, a permit requirement accords insufficient value to both the fundamental freedom to assemble and to the corresponding principle that everything not regulated by law should be presumed to be lawful. Those countries where a permit is required are encouraged to amend domestic legislation so as to require notification only. It is significant that, in a number of jurisdictions, permit procedures have been declared unconstitutional. Any permit system must clearly prescribe in law the criteria for issuance of a permit. In addition, the criteria should be confined to considerations of time, place, and manner, and should not provide a basis for content-based regulation.
96. If the authorities do not respond promptly to a notification, the organizers of a public assembly may proceed with the activities according to the terms notified without restriction. Even in countries where authorization rather than notification is still required, authorization should be presumed granted if a response is not given within a reasonable time.”
42. At its 64th plenary session (21-22 October 2005) the European Commission for Democracy through Law (the Venice Commission) adopted an opinion interpreting the OSCE/ODIHR guidelines on drafting laws on freedom of assembly with regard to the regulation of public meetings, including the requirement of advance notice of demonstrations in public places:
“29. Establishing a regime of prior notification of peaceful assemblies does not necessarily extend to an infringement of the right. In fact, in several European countries such regimes do exist. The need for advance notice generally arises in respect of certain meetings or assemblies – for instance, when a procession is planned to take place on the highway, or a static assembly is planned to take place on a public square – which require the police and other authorities to enable it to occur and not to use powers that they may validly have (for instance, of regulating traffic) to obstruct the event.”
43. The Venice Commission also emphasised that the regime of prior notification must not be such as to frustrate the intention of the organisers to hold a peaceful demonstration, and thus indirectly restrict their rights.
VIOLATED_ARTICLES: 11
6
7
VIOLATED_PARAGRAPHS: 11-1
6-1
6-3
7-1
VIOLATED_BULLETPOINTS: 6-3-b
6-3-c
6-3-d


ITEMID: 001-23549
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: SANDOR and OTHERS v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Matti Pellonpää
TEXT: The applicants, whose particulars appear in the appendix, are represented before the Court by Mr M. Kaščák, a lawyer practising in Vranov nad Topľou and by Mr P. Korvín, a lawyer practising in Bratislava. The respondent Government were represented by their Agent, Mr P. Vršanský to whom Mr P. Kresák succeeded on 1 April 2003.
The application of Mr M. Šándor was lodged on 2 November 1999. The remaining applicants introduced their applications on 10 February 2000.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 18 August 1995 private limited companies ILaS Vranov, s.r.o. and Slovenka Vranov, s.r.o. concluded a contract under which the former undertook to sell real property to the latter.
The circumstances under which the contract was concluded are contested between the parties.
The Government submit that the applicants had personal links to the above companies and that they had pecuniary interests in them. In particular, both companies were subsidiaries of the company Topex and were controlled by Mr I. Ilčišin. The Government express the view that the contract was actually drafted at a later date than indicated in it.
The applicants refute the Government’s allegation that the date of the contract had been forged.
On 16 October 1995 the tax administration authority issued a pledge in respect of the above real property with a view to securing a tax debt which the company ILaS Vranov, s.r.o. possibly had. The representatives of the company attempted to have the decision lifted arguing that the company owed no taxes. On 9 May 1996 the tax authority quashed its decision of 16 October 1995. On the same day, it issued an interim measure preventing the company from alienating the property on the ground that tax control was being carried out in the company. Subsequently the competent authorities found that the company had no tax debt.
As a result of the interference of the tax authority, the company ILaS Vranov, s.r.o. was not in a position to comply with the above contract and owed a considerable contractual penalty to its partner. Its representatives filed a claim for damages, under the State Liability Act of 1969, against the State, represented by the Ministry of Finance.
On 13 January 1997 the Vranov nad Topľou District Court granted the claim and ordered the defendant to pay 57.687.455 Slovakian korunas (SKK) to the plaintiff. The court established that the tax authority had proceeded erroneously and had thus caused damage to the plaintiff.
On 25 September 1997 the Prešov Regional Court upheld the District Court’s conclusion considering that the tax authority had proceeded contrary to the law. The appellate court reduced the sum granted to the plaintiff to SKK 43.265.591 plus default interest. The decision became final on 20 November 1997 and enforceable on 14 November 1997. The defendant filed an appeal on points of law. The Supreme Court rejected it as being inadmissible on 4 March 1998.
As the Ministry of Finance failed to comply with the judgment, ILaS Vranov, s.r.o. sought its enforcement.
On 28 November 1997 a judge of the Vranov nad Topľou District Court authorised an execution officer to enforce the sum in question.
On 1 December 1997 the enforcement officer notified the Ministry of Finance of the enforcement and invited it to pay the debt within fourteen days. The Ministry of Finance filed objections to the enforcement. They were dismissed by the Vranov nad Topľou District Court on 15 June 1998.
On 13 June 1998 ILaS spol.s.r.o transferred the title to the above sum to the company C.S.I.-C.D., a.s. The Vranov nad Topľou District Court approved of this transfer by a decision of 3 August 1998.
On 24 September 1998 the Vranov nad Topľou District Court granted the execution officer’s request and authorised her to avail herself of securities in possession of the State with a view to enforcing the sum in question. Reference was made to Sections 132 and 133 of the Execution Order of 1995. The decision stated, with reference to the relevant provisions of the Securities Act, that the execution officer enjoyed all rights relating to the securities.
The General Prosecutor filed an extraordinary appeal on points of law against this decision. The Supreme Court dismissed it on 28 February 2001. In the Supreme Court’s view, the execution officer had been authorised to enforce the sum due by having the securities sold. The decision further stated that even if the decision challenged by the General Prosecutor was quashed, it would not affect the execution procedure as such. The Supreme Court did not, therefore, examine in detail the arguments adduced by the General Prosecutor.
In the meantime, the execution officer concluded a contract with a private company specialised in trading in securities with a view to having the securities specified in the execution order sold. On the basis of this contract and the judicial authorisation to carry out the enforcement, a representative of the company commissioned by the execution officer arranged, at the Securities Centre (Stredisko cenných papierov SR Bratislava, a.s.), for the sale to the applicants of shares of Transpetrol, a.s., a joint stock company in which the sole shareholder was the Ministry of Economy. The operation was carried out on 9 October 1998.
On 9 October 1998 company C.S.I.-C.D., a.s. concluded contracts of pledge in respect of the securities with Brilant, a.s., C.D., a.s., C.S.I.-Fest, a.s., Tradeunion, s.r.o., Mr M. Kozubaľ and Mr T. Kolesár.
On 29 October 1998 the execution officer returned the authorisation to carry out the execution to the Vranov nad Topľou District Court with the explanation that the sum due had been enforced.
The representatives of Transpetrol, a.s. and of the Ministry of Economy challenged the transfer of the shares on the ground that it had been carried out without the approval of the issuer of the securities. On 21 October 1998 the Securities Centre therefore ordered that trading with the securities of Transpetrol, a.s. be suspended. On 10 November 1998, after the relevant documents had been checked, the Securities Centre lifted the order.
On 9 December 1998 the Ministry of Finance ordered the Securities Centre, with reference to Section 82 of the Securities Act of 1992, to transfer the shares which the applicants had acquired back to the Ministry of Economy within three days. The decision stated that the Securities Centre had acted erroneously. In particular, the Securities Centre had transferred the securities without prior consent of the owner, and there was a contradiction between the operative part of the court’s decision authorising the execution officer to carry out the enforcement and the reasons for that decision. Furthermore, the relevant documents indicated that the enforcement should have concerned the Ministry of Finance and not the Ministry of Economy, and that under the relevant law the securities in question could only be owned by the State. Lastly, the decision stated that it could be challenged by means of a remedy (rozklad) to be lodged with the Ministry of Finance within fifteen days after its service. It was not served on the applicants and became final on 28 December 1998.
On 10 December 1998 the Securities Centre informed the applicants that it had complied with the order of the Ministry of Finance and that, as a result, they no longer owned the shares of Transpetrol, a.s.
On 10 December 1998 Transpetrol, a.s. modified the form of its securities. As a result, the shares ceased to be registered at the Securities Centre.
The Ministry of Finance refused to give an explanation to the applicants on the ground that they were not parties to the administrative proceedings leading to the decision of 9 December 1998.
On 8 March 1999 the General Prosecutor’s Office informed the applicants that public prosecutors had no power to review the way in which the Ministry of Finance had proceeded.
The applicants, with the exception of Tradeunion, s.r.o., requested the Supreme Court to review the lawfulness of the decision of the Ministry of Finance of 9 December 1998. By two decisions delivered on 17 and 27 September 1999 respectively the Supreme Court discontinued the proceedings in respect of the claims lodged by C.S.I. - Fest, a.s., Brilant, a.s., Mr M. Šándor and C.D., a.s. as the plaintiffs had not challenged the administrative decision complained of by means of a remedy (rozklad) before the Ministry of Finance. The Supreme Court considered irrelevant that the decision of 9 December 1998 had not been served on the plaintiffs as it was obvious from their submissions that they had been aware of it. Furthermore, the plaintiffs could have requested the administrative authority concerned to grant them the status of parties to the proceedings. Under the relevant provisions of the Administrative Proceedings Act, the administrative authority was obliged to decide on such a request and its decision could be challenged. The Supreme Court decided in camera without having summoned the plaintiffs.
By a decision delivered on 28 September 1999 a different chamber of the Supreme Court discontinued the proceedings in respect of the claim lodged by Mr M. Kozubaľ. The decision stated that the court lacked jurisdiction to deal with the case. The Supreme Court further held that the decision delivered by the Ministry of Finance on 9 December 1998 had not directly determined the plaintiff’s rights and that the latter had not been a party to the proceedings in the context of which the decision had been delivered. The Supreme Court therefore found no reason for proceeding pursuant to Secton 250b(2) of the Code of Civil Procedure.
On 16 April 1999 a different chamber of the Supreme Court discontinued the proceedings in respect of the claim lodged by Mr T. Kolesár on the ground that he had failed to pay the court fees before 29 March 1999 as requested by the court. The decision was served on 6 July 1999. In the meantime, on 27 April 1999, the plaintiff had paid the fees. He therefore requested the Supreme Court, on 16 July 1999, that the proceedings be resumed. The Supreme Court did not proceed with the case.
In September 1999 the applicants filed both an ordinary and an extraordinary remedy against the decision delivered by the Ministry of Finance on 9 December 1998. They claimed, in particular, that administrative authorities lacked jurisdiction to determine ownership rights in respect of securities. The applicants also requested that they should be granted the standing of parties to the proceedings in which the contested decision had been delivered.
By decisions of 19 and 24 November 1999 respectively the Minister of Finance rejected the applicants’ submissions. The decisions stated that the ordinary remedy was inadmissible as the applicants lacked standing in the administrative proceedings complained of. Furthermore, the contested decision of 9 December 1998 neither concerned the rights or legally protected interests of the applicants, nor did it directly affect them as the shares had been transferred back to the Ministry of Economy by the Securities Centre. As to the applicants’ request that they should be allowed to act as a party to the proceedings, the Minister’s decisions stated that the applicants should have filed it before the contested decision had become final on 28 December 1998.
In the meantime, on 31 August 1999, company C.S.I.-C.D., a.s. sued its above contractual partners, the Ministry of Economy, Transpetrol, a.s. and the Securities Centre for the securities pledged. The plaintiff submitted that Transpetrol, a.s. had modified the form of the securities without the creditor’s knowledge and that it was not known who possessed the securities pledged. On 27 September 2000 the Prešov Regional Court rejected the action to the extent that it concerned the Securities Centre. The proceedings on the claim of company C.S.I.-C.D., a.s. of 31 August 1999 in respect of the other defendants are pending.
On 4 December 2001 Tradeunion, s.r.o. filed an action with the Supreme Court seeking a judicial review of the above decision delivered by the Ministry of Finance on 9 December 1998. The plaintiff argued that the contested decision had not been served on its representatives and that the Ministry should have considered it as a party to the proceedings. The plaintiff further argued that decisions concerning the ownership of securities fell within the exclusive jurisdiction of ordinary courts.
On 28 May 2002 the Supreme Court quashed the decision of the Ministry of Finance of 9 December 1998 and sent the case back to the administrative authority for further proceedings. The decision stated that, despite several requests, the defendant Ministry had failed to comply with its statutory obligation to submit the administrative file concerning the case to the Supreme Court. Without having the file before it, the Supreme Court was not in a position to review the lawfulness of the decision complained of.
The Supreme Court noted that it was contested between the parties whether or not the plaintiff was a party to the administrative proceedings in question. It recalled that administrative authorities were obliged to examine, of their own initiative and throughout the administrative proceedings, whether a person has standing in the proceedings. When such was not the case, the administrative authority had to issue a formal decision to that effect. The Supreme Court concluded that the Ministry of Finance should have delivered a formal decision in case that it considered that the plaintiff was not a party to the proceedings in question. The delivery of such a decision would have allowed the plaintiff company to avail itself of its procedural rights with a view to protecting its interests.
On 22 May 2002 the General Prosecutor filed an extra-ordinary appeal on points of law against the Supreme Court’s judgment of 28 May 2002 on the ground that Tradeunion, s.r.o. lacked standing in the administrative proceedings complained of and that the Supreme Court had committed errors of law. On 11 June 2003 the Supreme Court asked the representative of Tradeunion, s.r.o. to submit comments on the submissions of the General Prosecutor’s Office.
On 11 June 2002 the applicants requested the Financial Market Office (Úrad pre finančný trh), which had taken over the role of supervisor of the financial market operations in the meantime, to order the Securities Centre to restore the securities in question to their accounts in accordance with the situation existing prior to 9 December 1998.
On 11 June 2002 the applicants also requested the Securities Centre to restore the securities to their accounts with reference to the Supreme Court’s decision of 28 May 2002. They were informed that the Securities Centre could not to take any action without a prior decision of the Financial Market Office.
On 11 June 2003 the applicants filed an action with the Supreme Court, under Article 250t(1) of the Code of Civil Procedure, claiming that the Financial Market Office had failed to decide on their request of 11 June 2002.
On 30 November 2001 a public prosecutor indicted the representative of Tradeunion a.s., two representatives of Brilant a.s., the Vranov nad Topľou District Court judge and the execution officer involved in the above execution as well as an employee of the Securities Centre and a broker for several offences before the Prešov Regional Court.
On 17 January 2002 the Supreme Court decided that the case was to be dealt with by the Žilina Regional Court.
On 14 February 2003 the Žilina Regional Court discontinued the proceedings against the Vranov nad Topľou District Court judge as there was no indication that she had committed an offence. According to the Government, the proceedings against the other accused are pending.
Pursuant to Article 126(1), owners have the right to protection against unjustified interference with their ownership rights by others. In particular, they are entitled to claim the restoration of the property from those who hold it without any valid legal ground.
In accordance with the established practice, a plaintiff claiming protection of ownership rights can only be successful, when it is proved that he or she is the owner of the property in question and that the defendant has held the property without any valid legal ground.
Article 80(c) provides that judicial proceedings can be brought with a view to having the existence of a right or of a legal relation determined provided that it is justified by a pressing legal interest.
Article 244 provides that in administrative judiciary courts review the lawfulness of administrative decisions which determine rights and obligations of individuals or legal persons. As from 1 January 2002, this provision has been amended in that courts are also entitled to review the way in which administrative authorities proceed including their failure to act.
Pursuant to Article 247(2), courts are entitled to decide on actions against decisions delivered by administrative authorities where such decisions have become final after the exhaustion of all ordinary remedies.
Article 250(2) provides that plaintiffs in proceedings concerning the review of an administrative decision can be individuals or legal persons who allege, as parties to the administrative proceedings, that their rights were infringed as a result of the administrative authority’s decision. Action for a judicial review of an administrative decision can also be lodged by individuals or legal persons whom the administrative authority did not consider to be parties to administrative proceedings where such persons should have been considered as parties.
Article 250b(2) provides that, where the action is lodged by a person alleging that the administrative decision has not been served on him or her despite the fact that he or she should have been considered as a party to administrative proceedings, the court shall verify such an allegation and, where justified, order the administrative authority to serve the decision on the person concerned. According to the circumstances, the court shall also order that the enforceability of such a decision be delayed. The decision of the court is binding on the administrative authority. After the service of the decision in question the administrative authority shall transmit the case file to the court which shall decide on the action.
Article 250b (3), enacted with effect from 1 January 2003, provides that courts shall not proceed in accordance with the procedure set out in Article 250b(2) where more than three years elapsed from the delivery of the administrative decision which was not served on a party.
Article 250t(1) and (3), as in force since 1 January 2003, provides that natural and legal persons who consider that an administrative authority failed to proceed with a case without any valid reason can request a court to order the administrative authority to proceed with the case and to deliver a decision. Where such a request is granted, the court shall set a time-limit, which should not exceed three months, within which the administrative authority is obliged to decide.
Under Article 250u, the court can repeatedly impose a fine up to SKK 100,000, at the request of a party to the proceedings, in case that the administrative authority remains inactive despite an earlier judicial order under Article 250t.
Section 14(1) of the Administrative Proceedings Act of 1967 (Zákon o správnom konaní) admits as parties to administrative proceedings persons whose rights, legally protected interests or obligations are either to be determined or may directly be affected as a result of the proceedings. Any person alleging that the decision may directly affect his or her rights, legally protected interests or obligations shall also be considered a party to administrative proceedings until the opposite is proved.
Section 19(1) provides that submissions in the context of administrative proceedings can be made either in writing or orally. Oral submissions are to be recorded.
Section 61 of the Execution Order of 1995 (Zákon o súdnych exekútorch a exekučnej činnosti) excludes the possibility of restitutio in integrum in execution proceedings.
Part 4 of the Execution Order provides for enforcement of a debt by selling securities.
Under Section 132, upon the authorisation of the court the execution officer shall take all necessary measures with a view to maintaining or carrying out the rights relating to securities.
Section 133 provides that the execution officer shall satisfy the creditor’s claim by measures which are appropriate to the nature of the securities in question.
Pursuant to Section 20 of the Securities Act of 1992 (Zákon o cenných papieroch, Act No. 600/1992), unless the law otherwise provides, the buyer becomes owner of a security even in cases when the vendor had no right to transfer such a security with the exception of cases where the buyer was aware of this fact at the time of the transfer.
Under Section 82, the Ministry of Finance carries out State supervision over, inter alia, the trading with securities and the Securities Centre.
When the Ministry of Finance finds that a person under its supervision failed to comply with the Securities Act or other legal rules, it is entitled, pursuant to Section 86(2), to order that measures be taken with a view to remedying the shortcomings found.
Section 135 of the Securities Act of 2001 (Zákon o cenných papieroch a investičných službách a o zmene a doplnení niektorých zákonov, Act No. 566/2001) provides that supervision of activities within the meaning of this Act comprises, among others, the activities of issuers, central depositors and dealers with securities. The supervision is carried out by an office established for that purpose.
Under Section 161, this Act governs legal relations established prior to its entry into force. However, the establishment of such relations and claims resulting therefrom which arose prior to the entry into force of the Act are to be assessed under the previously existing legal rules unless this Act otherwise provides.
Act No. 96/2002 on Supervision of the Financial Market and the Amendment of Several Acts provides in Section 2 for establishment of an office with legal personality. The office is entitled to carry out supervision under the relevant law.
Section 3(1)(a) provides that the office supervises the activities of, inter alia, dealers with securities, of the stock-exchange, of the securities central depository and, to the extent specified by law, of other persons active on the capital market. Such supervision comprises control of compliance with the relevant law, conduct of proceedings under the relevant law, delivery of authorisations and other decisions provided for by the law and control of compliance with the decisions delivered by the office.
Act No. 253/1999 amended the provisions of the Act on Transfer of State Owned Property to Other Persons. It entered into force on 12 October 1999.
Section 10(4) provides, inter alia, that the company Transpetrol, a.s. can be denationalised only to such an extent that the State remains the owner of at least 51 per cent of its shares.
Pursuant to Article 127 of the Constitution, as in force until 30 June 2001, the Constitutional Court decided on complaints concerning final decisions made by, inter alia, local government authorities and local self-governing bodies in cases concerning violations of the fundamental rights and freedoms of citizens, unless the protection of such rights fell under the jurisdiction of another court.
Pursuant to Article 130(3) of the Constitution, as in force until 30 June 2001, the Constitutional Court could commence proceedings upon a petition (“podnet”) presented by any individual or corporation claiming that their rights had been violated. According to its case-law under the former Article 130(3) of the Constitution, the Constitutional Court lacked jurisdiction to draw legal consequences from a violation of a petitioner’s rights. It could neither grant damages to the person concerned nor impose a sanction on the public authority liable for the violation found. In the Constitutional Court’s view, it was therefore for the authority concerned to provide redress to the person whose rights were violated.
With effect from 1 January 2002, the Constitution has been amended in that, inter alia, individuals and legal persons can complain about a violation of their fundamental rights and freedoms pursuant to Article 127 the relevant part of which reads as follows:
“1. The Constitutional Court shall decide on complaints lodged by natural or legal persons alleging a violation of their fundamental rights or freedoms or of human rights and fundamental freedoms enshrined in international treaties ratified by the Slovak Republic ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court.
2. When the Constitutional Court finds that a complaint is justified, it shall deliver a decision stating that a person’s rights or freedoms set out in paragraph 1 have been violated as a result of a final decision, by a particular measure or by means of any other interference. It shall quash such a decision, measure or other interference. When the violation found is the result of a failure to act, the Constitutional Court may order that [the authority] which violated such rights or freedoms shall take the necessary action. At the same time the Constitutional Court may return the case to the authority concerned for further proceedings, order that such an authority abstain from violating fundamental rights and freedoms ... or, where appropriate, order that those who violated the rights or freedoms set out in paragraph 1 restore the situation to that existing prior to the violation.
3. In its decision on a complaint the Constitutional Court may grant adequate financial satisfaction to the person whose rights under paragraph 1 have been violated.” ...
Section 1 (1) of Act No. 58/1969 on the liability of the State for damage caused by a State organ’s decision or by its erroneous official action (Zákon o zodpovednosti za škodu spôsobenú rozhodnutím orgánu štátu alebo jeho nesprávnym úradným postupom - “the State Liability Act”) provides that the State is liable for damage caused by unlawful decisions delivered by a public authority in the context of, inter alia, civil proceedings.
Section 18 (1) renders the State liable for damage caused in the context of carrying out functions vested in public authorities which results from erroneous official actions of persons entrusted with the exercise of these functions. A claim for compensation can be granted when the plaintiff shows that he or she suffered damage as a result of an erroneous action of a public authority, quantifies its amount, and shows that there is a causal link between the damage and the erroneous action in question.


ITEMID: 001-108239
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF MAKSIMENKO v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-3-c;Non-pecuniary damage - award
JUDGES: André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska
TEXT: 6. The applicant was born in 1972 and is serving a sentence of life imprisonment in Temnivka Prison no. 100.
7. On 3 December 2001 the dead body of a Mr L. was found, with a blood-stained axe lying next to it. A criminal investigation was initiated in respect of a suspected premeditated murder.
8. From 14 January to 13 March 2002 the applicant underwent medical treatment for an unspecified psychiatric condition in the medical centre V.
9. On 19 July 2002 he was arrested in the framework of an unrelated murder investigation.
10. In March 2006 the applicant, who was at the time serving a fixed-term prison sentence for several counts of premeditated murder, made a confession, first to the prison administration and later to the investigation authorities, that on 3 December 2001 he had twice hit Mr L. on the head with the back of an axe without having the intention of killing him.
11. Free legal counsel was appointed for, and represented, the applicant during the pre-trial investigation and the proceedings before the first-instance court.
12. During the pre-trial investigation the applicant unsuccessfully requested the investigator to arrange for the translation into Russian of some materials in the case file which were in Ukrainian.
13. On 7 November 2006 the Kyiv Regional Court of Appeal (“the Kyiv Court”), sitting as a court of first instance, found the applicant guilty of premeditated murder committed repeatedly and sentenced him to life imprisonment. It noted that although the applicant had alleged that he had had no intention to kill, the fact that he had hit the victim with an axe on a vital part of his body twice and with considerable force, indicated the opposite. While taking into account the applicant’s voluntary confession, the Kyiv Court noted that it was the fourth murder he had committed and considered life imprisonment to be the appropriate penalty. At the applicant’s request, the proceedings before the Kyiv Court were held in Russian.
14. The applicant, who was no longer represented, lodged a cassation appeal in which he mentioned, inter alia, that he had no means to pay for legal assistance.
15. On 22 February 2007 the Supreme Court, following a hearing in which the applicant participated, upheld his conviction.
16. Under Article 115 § 2 (13), premeditated murder committed repeatedly (with some exceptions not applicable to the circumstances of the instant case) is punishable by imprisonment for a term of ten to fifteen years, or life imprisonment.
17. Article 45 § 1 provides that legal representation during an inquiry, a pre-trial investigation and a trial before a court of first instance is obligatory if, inter alia, a life sentence is a possible penalty. Under Article 45 § 2, the legal representation envisaged by Article 45 § 1 is obligatory in the proceedings before the appellate court if the appeal could potentially worsen the situation of the convicted (or acquitted) person.
18. According to Article 383 § 1, verdicts of appellate courts delivered at first instance may be reviewed under the cassation appeal procedure.
19. Pursuant to Article 398 § 2, a verdict delivered by an appellate court as a court of first instance may be quashed or modified on the grounds of partiality or incompleteness of the inquiry, pre-trial investigation or trial, or because the court’s conclusions in its
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-3
VIOLATED_BULLETPOINTS: 6-3-c


ITEMID: 001-4504
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: ADAMSON v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is a British citizen born in 1941. He is represented before the Court by Mr D. Clarke, solicitor, of Clarke and Kiernan, Tonbridge, Kent.
In July 1995 the applicant was convicted of indecent assault and sentenced to five years' imprisonment. His expected release date was in October 1998.
On 1 September 1997 the Sex Offenders Act 1997 entered into force. As a result of the Act, the applicant will be required to register with the police for an indefinite period following his release from prison. The applicant considers that this requirement is “depersonalising”, robbing him of his “ability to reinvent [him]self and start a new life” and, in addition, he fears that it may put him and his family at risk. In this connection he refers to newspaper reports of vigilante attacks on paedophiles following their identification by the press and television.
Relevant domestic law
According to its preamble, the Sex Offenders Act 1997 (“the Act”) is “an Act to require the notification of information to the police by persons who have committed sexual offences ...”. The registration requirements apply to persons convicted of certain offences after the commencement of the Act and also, by virtue of Section 1 (3), to those “...serving a sentence of imprisonment ... in respect of a sexual offence to which this Part applies...”.
A person required to register must inform the police of his name, any other names he uses, his date of birth and his home address, and must inform the police of any change of name or home address within 14 days of any change. He must also tell the police his name and address on the date he was convicted of the offence at issue, and must tell the police of any address where he lives or stays for 14 days or longer.
For a person who has been sentenced to a term of imprisonment of 30 months or more, the registration requirements are indefinite.
Failure to comply with the registration requirements, or to give the police false information, is a criminal offence punishable with up to 6 months' imprisonment or a fine.