Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Free legal assistance);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

A number of serious incidents between rival groups in Glasgow in the early 1980’s culminated in a fire-raising attack on industrial premises, followed by a petrol-bomb attack on an apartment resulting in the death of six members of the same family.

Mr Granger, who is a British citizen born in 1960 and resident in Glasgow, was interviewed by the police during their investigations; on 23 and 25 May 1984, in signed statements, he gave details of how the crimes had been committed and named the persons responsible, that is Thomas Lafferty and six others. This evidence was considered by the Crown to be important and was a major basis for the decision to prosecute those persons. Steps were taken to secure the applicant’s safety until the trial.

The trial of Thomas Lafferty and the six others on charges relating, inter alia, to the fire-raising and the murders took place before the High Court of Justiciary in Glasgow in September 1984. Mr Granger appeared as a principal witness for the Crown. However, once in the witness-box, he denied all knowledge of any matters relevant to the crimes. He also denied that he had given the above-mentioned statements, claiming instead that they had been made up by the police, who had pressurised him into signing them.

Shortly afterwards, the applicant was arrested and prosecuted on indictment in the High Court of Justiciary for perjury. He was held in custody pending and during his trial. In summary, the charges against him were that, while giving evidence at the Lafferty trial, he had untruthfully:

(a) stated that marks on a plan which he had drawn had been placed there by him on the instructions of the police rather than on his own initiative;

(b) denied making a detailed statement to the police on 23 May 1984 about the fire-raising;

(c) denied making a detailed statement to the police on 25 May 1984 about the murders;

(d) claimed to have been pressurised and assaulted by the police and forced to sign statements previously prepared by them;

(e) pretended that he had told his solicitor that he had been assaulted by police officers and forced to sign a statement against his will.

The applicant received legal aid for the preparation of his defence by his solicitor and for representation at his trial by both senior and junior counsel.

The Crown was represented by the Solicitor General for Scotland (see paragraph 29 below), since the gravity of the charges was considered to warrant the presence of a senior prosecutor and since the most senior Advocate Depute, who had appeared for the prosecution at the Lafferty trial, was to be a witness at the applicant’s trial.

After a four-week trial before the High Court of Justiciary in Glasgow in February 1985, Mr Granger was found guilty of the first, second and fourth charges against him and not guilty of the fifth; the third was found not proven. He was sentenced to five years’ imprisonment.

The trial judge certified, for the purposes of determining the fees payable under the legal-aid scheme, that the case had been one of exceptional length, complexity and difficulty.

The applicant’s solicitor subsequently lodged an intimation of intention to appeal against conviction (see paragraph 27 below). The legal aid granted for the perjury trial covered this work, as well as the solicitor’s advising on the prospects of an appeal, obtaining counsel’s opinion on the same point, having counsel frame a note of appeal setting out the grounds of appeal (ibid.), lodging the note of appeal and making an application for legal aid to pay for representation at the hearing of the appeal itself.

Such an application was submitted on behalf of Mr Granger, who had insufficient means to pay for legal assistance, to the Supreme Court Legal Aid Committee of the Law Society of Scotland (see paragraph 30 below) on 6 June 1985. It was accompanied by a memorandum, a copy note of appeal (with a supplementary statement of the grounds) and the judge’s summing-up to the jury at the applicant’s trial; later a copy of the indictment and a note of previous convictions were also lodged.

The Committee considered the material before it to be insufficient and asked the applicant’s solicitor to furnish counsel’s opinion on the prospects of the appeal. This he did on 4 July 1985.

The solicitor had, in fact, already obtained such an opinion, on 14 May 1985, from the senior and junior counsel who had represented Mr Granger at his trial; the senior counsel, in particular, had considerable experience in presenting appeals before the High Court of Justiciary. The authors of the opinion concluded that they could not advise that the appeal should proceed: in their view, neither of the two possible stateable grounds of appeal was of sufficient substance as to have reasonable prospects of success and, in any event, there was no real prospect of satisfying the court that there had been a miscarriage of justice (see paragraph 26 below).

The solicitor also provided the Committee with a copy of his letter of 23 May 1985 to his Edinburgh agents, indicating that he disagreed with counsel’s opinion. Although he had obtained on 5 February 1985, for the purposes of the applicant’s trial, a psychiatric report which stated that the applicant was of modest intelligence but with a poor command of English and poor comprehension of written material, he did not communicate this to the Committee. Neither did he refer, in any material he placed before it, to any intellectual or linguistic limitations of his client.

By decision of 11 July 1985, which was stated to be final, the Committee refused the application, since it was not satisfied that Mr Granger had substantial grounds for his appeal (see paragraph 31 below).

The applicant nevertheless continued to receive advice and assistance from his solicitor and decided to proceed with the appeal. The grounds were the same as those considered by counsel in the opinion of May 1985 (see paragraph 15 above). The applicant maintained that there had been a miscarriage of justice (see paragraph 26 below), in that (in summary):

(a) during the cross-examination of a police officer, the trial judge had intervened with the comment - alleged to be tantamount to a premature direction in law to the jury and incorrect - that the line being followed by the defence was incompetent and irrelevant;

(b) the judge had erred in admitting in evidence a statement made by the applicant on 23 May 1984, notwithstanding a defence objection that it was inadmissible as being in the nature of a precognition, that is a statement made by a potential witness at an advanced stage of an investigation outlining the evidence he is likely to give at a forthcoming trial;

(c) the judge had erred in repelling a further objection to the admissibility of the same statement, namely that it was evidence of crimes not charged against the applicant and would lead to prejudice;

(d) the judge had erred in directing the jury that it would not be unfair for a police officer - if he genuinely believed that his superiors intended to use the applicant only as a witness - to have told the applicant, prior to obtaining the aforesaid statement and certain sketch plans, that he would not be charged with any offence;

(e) the judge had erred in rejecting a defence submission that the evidence given by the applicant at the Lafferty trial had not been "material" and accordingly could not form the basis of a charge of perjury.

The hearing of the appeal opened before the High Court of Justiciary, sitting in Edinburgh as an appellate court of three judges, on 27 September 1985. The Crown was again represented by the Solicitor General for Scotland, accompanied by junior counsel and a member of the staff of the Crown Office (see paragraph 29 below).

Since the refusal of legal aid precluded the instruction of counsel and since solicitors do not have rights of audience in the High Court of Justiciary, Mr Granger presented his appeal himself. He read out a statement, prepared by his solicitor, which elaborated on the written grounds of appeal. The Solicitor General replied, addressing the court for about ninety minutes.

The principal point discussed at the hearing was whether the court could determine ground (b) of the appeal (see paragraph 17 above) without considering a transcript of the relevant parts of the evidence given at the applicant’s trial. Notwithstanding the Solicitor General’s arguments to the contrary, the court decided that it could not. It therefore ordered that a transcript be prepared and adjourned the hearing to 6 March 1986. The applicant’s solicitor subsequently assisted in the preparation of the transcript.

Following this adjournment, Mr Granger did not renew, or request reconsideration of, his legal-aid application, nor did he advise the Legal Aid Committee of the court’s order.

At the resumed hearing the applicant had again been provided by his solicitor with a written speech, which dealt with all the grounds of appeal. Although the court pointed out that it wished to hear submissions on ground (b) only, it allowed the applicant, who was unable to comprehend the legal niceties, to read out the speech in full.

The High Court of Justiciary unanimously refused the appeal on all grounds. In his written judgment the Lord Justice-Clerk, who presided, gave full consideration to each of the grounds, but was satisfied that none of them had substance and that there had been no miscarriage of justice (see paragraph 26 below). He described the appellant’s submissions as "well prepared and clearly expressed".

Mr Granger was released from prison on 16 July 1988 after serving two-thirds of his sentence, the remainder having been remitted.

On 26 September 1985 - the day before the first hearing in the applicant’s appeal - the Lord Advocate referred, under section 263A of the Criminal Procedure (Scotland) Act 1975 (see paragraphs 32-33 below), for the opinion of the High Court of Justiciary two questions of law that arose from the judge’s directions to the jury, at the perjury trial, concerning the charge which had been found not proven (see paragraph 12 above). The questions were:

(a) whether, in a trial for perjury where the accused was not an accused in the previous trial, it is of any relevance that a statement made by him and falsely denied under oath was allegedly obtained by means described as unfair; and

(b) whether, in a trial for perjury, the "materiality" of the false evidence to the issue in the earlier trial is (i) a prerequisite to conviction and in any event (ii) a matter of fact to be left to the jury.

On 13 June 1986 the High Court heard submissions on the reference. Mr Granger exercised his statutory right to be represented at the hearing, the fees of senior counsel instructed for this purpose being paid by the Lord Advocate (see paragraph 32 below). In its opinion of 26 June the court held that the trial judge’s directions - which had been favourable to the applicant - had not been an accurate statement of the law. This opinion did not affect the applicant’s acquittal (see paragraph 33 below).

Every person convicted of a criminal charge in Scotland has an automatic right of appeal - there being no requirement of prior leave - against conviction or sentence or both. In cases, such as the applicant’s, tried on indictment, the right is conferred by section 228 of the Criminal Procedure (Scotland) Act 1975, as amended by the Criminal Justice (Scotland) Act 1980 ("the 1975 Act").

In an appeal against conviction, the appellant may bring under review any alleged miscarriage of justice in the earlier proceedings. "Miscarriage of justice" is not defined by statute, but covers such matters as misdirections by the trial judge to the jury or wrong decisions on the admissibility of evidence, as well as breaches of natural justice.

An appellate court which holds that there has been a miscarriage of justice retains a discretion not to allow the appeal if it determines that the miscarriage is not such as to warrant the quashing of the conviction (section 254 of the 1975 Act).

Anyone wishing to appeal against conviction must lodge an intimation of his intention to do so within two weeks of the final determination of the proceedings against him (section 231 of the 1975 Act). He then has six weeks in which he may file a note of appeal containing a full statement of the grounds; he may not, in general, found any aspect of his appeal on a ground not set out therein (section 233 of the 1975 Act).

At the hearing submissions will first be made by or on behalf of the appellant; whilst unusual, this may be done in writing (section 234 of the 1975 Act). Counsel for the Crown will then address the court.

Counsel for the Crown has a duty to act with complete fairness and to assist the court by providing impartial information and, if need be, argument so that the appellant’s case can be evaluated in the best possible light. This is especially important where the appellant is not represented by counsel. Such cases are common, firstly because the unrestricted right of appeal (see paragraph 25 above) results in the filing of many appeals which are without merit and, hence, do not qualify for legal aid (see paragraph 31 below). Secondly, and irrespective of the availability of legal aid, counsel must, according to the Guide to the Professional Conduct of Advocates, refuse to act further in a criminal appeal if he has formed the opinion that there are no grounds which he is prepared to state to the court.

Whether the appellant is represented or not, the court will undertake a thorough examination of the appeal and will be scrupulous in examining the points which might be favourable to him.

At the hearing of appeals in the High Court of Justiciary the Crown will always be represented, either by the Lord Advocate or the Solicitor General (who are the Law Officers of the Crown) or by one of the Advocate Deputes. In an appeal against conviction following a long trial, the Crown will usually be represented by the counsel who appeared for it below, on account of his familiarity with the case.

As Ministers of the Crown, the Law Officers are liable to be called away from court at short notice to carry out other duties. They will therefore normally be accompanied by another counsel, but he will play no active part unless the Law Officer has to leave. Counsel for the Crown will also invariably be accompanied by the member of the Crown Office staff who prepared the day’s papers for the court; his function is entirely clerical and administrative and he will not participate in the discussion of the appeal.

Legal aid granted for a trial on indictment covers certain work done in contemplation of an appeal, as listed in paragraph 13 above. If it is thereafter intended to proceed with the appeal, legal aid may be sought for that purpose. Its availability was, at the relevant time, governed by the Legal Aid (Scotland) Act 1967, as amended ("the 1967 Act"). Applications therefor were then determined by the Supreme Court Legal Aid Committee of the Law Society of Scotland, whose members were independent advocates and solicitors with substantial current experience of court practice.

The whole system for the administration of legal aid was reformed by the Legal Aid (Scotland) Act 1986, which repealed and replaced the 1967 Act with effect from 1 April 1987. In particular, the former functions of the Legal Aid Committee were transferred to another body.

Section 1(7) of the 1967 Act provided:

"In criminal proceedings, a person shall not be given legal aid in connection with -

(a) ...

It would have been extremely unusual for the Committee to decide that it was not reasonable to grant legal aid to a person appearing to have substantial grounds for appealing. It normally determined applications on the basis of the documents before it, which would have included the note of appeal setting out the grounds and the judge’s summing-up to the jury, and in the light of the views of the counsel or solicitor who acted for the appellant at the trial.

According to Article 21 of the Legal Aid (Scotland) (Criminal Proceedings) Scheme 1975, the Committee’s decision on the merits of an application for legal aid for a criminal appeal was final.

Under section 263A of the 1975 Act, where a person tried on indictment is acquitted on a charge, the Lord Advocate may refer a point of law which has arisen in relation to that charge to the High Court for an opinion. The person concerned may elect to appear personally or to be represented by counsel at the hearing. If he does not desire to be so represented, the court will appoint counsel to act as amicus curiae, in order to ensure that the issues are fully argued. In either case, counsel’s fees will be paid by the Lord Advocate.

This procedure was introduced into Scots law because previously the prosecution had, in all cases tried on indictment, no right of appeal. There was accordingly a risk that an erroneous decision by the trial judge might be treated as authoritative in later cases.

The sole purpose of a reference by the Lord Advocate is to clarify the law for the future, section 263A expressly providing that the opinion of the High Court "shall not affect the acquittal" of the person concerned. Fresh proceedings on the charge in question cannot be instituted against him, even if the opinion is favourable to the prosecution.


Violation of Art. 6-1;No violation of P4-2;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

The applicants were born in 1961 and 1962 respectively and live in the village of Kormilovka, Omsk Region.

The applicants, a married couple, used to live in Kargasok of the Tomsk Region where they worked as veterinarians. The first applicant held the position of Head Veterinarian of the Kargasok District.

On 26 September 1996 criminal proceedings for fraud were instituted against the first applicant and an obligation not to leave the place of his residence without permission was imposed on him as a preventive measure. On 22 October 1996 by an order of the investigator the first applicant was suspended from his employment.

In February 1998 criminal proceedings for fraud were instituted against the second applicant and an obligation not to leave the place of her residence without permission was imposed on her as a preventive measure.

The criminal proceedings against both applicants were joined on 17 August 1998. The applicants were accused of submitting false reports on business trips in order to obtain cash from the veterinary practice where the first applicant worked unlawfully.

On 17 July 2000 the applicants asked for the obligation not to leave their place of residence without permission to be cancelled. It appears that the application was not considered.

Over the course of six years the criminal case was several times remitted by the courts for additional investigation: in May 1997 and on 5 February 1998, 21 September 1999, 31 May 2000 and 31 October 2000.

In 2001 the applicants' minor son was invited to attend an interview for a place at the Omsk State Agrarian University. The applicants submitted that he did not attend the interview since neither of them was allowed to accompany him in the journey to Omsk. On an unspecified date the acting prosecutor of the Kargasok District provided the second applicant with the following letter:

“[The letter] is given to Ms Bevia Andreyevna Fedorova ... in order to confirm that on 10-11 July 2001 she was summoned to the Prosecutor's Office of the Kargasok District, as a result of which she could not leave for Omsk together with her son and be present at ... the interview on 12 July.

[The letter] is to be presented to the examination panel of the Institute of Veterinary Medicine at the Omsk State Agrarian University.”

The applicants' son, having passed general entry exams, was later admitted to the University.

On 13 August 2002 the Parabelskiy District Court of the Tomsk Region acquitted the applicants and cancelled the obligation not to leave their place of residence without permission. On appeal, on 16 December 2002 the Tomsk Regional Court quashed the judgment and remitted the case for a fresh examination by a different composition of judges.

On 8 May 2003 the Parabelskiy District Court of the Tomsk Region terminated the criminal proceedings against the applicants for lack of indication that a crime had been committed. The ruling was quashed on appeal on 30 June 2003 by the Tomsk Regional Court, which remitted the case for a fresh examination to the Molchanovskiy District Court of the Tomsk Region.

The Molchanovskiy District Court convicted the first applicant of misappropriation of property held in trust and sentenced him to one year's imprisonment on 31 December 2003. He was not required to serve the sentence on account of the statutory time-bar. The second applicant was fully acquitted. The court also lifted the obligation not to leave the place of residence without permission in respect of both applicants, although it had already been cancelled by the Parabelskiy District Court of the Tomsk Region on 13 August 2002.

On appeal, on 15 April 2004 the Tomsk Regional Court reversed the judgment in the part relating to the conviction of the first applicant and remitted the case for a fresh examination. The court decided not to apply any measures of restraint in respect of the applicant.

The case was subsequently transmitted to the Sovetskiy District Court of the Tomsk Region. On 28 February 2005 the Sovetskiy District Court of the Tomsk Region convicted the first applicant of misappropriation of property held in trust and sentenced him conditionally to one year's imprisonment. The court, however, released the applicant from the punishment because of the expiry of the statutory time-limit.

On 25 April 2005 the Tomsk Regional Court reversed the judgment on appeal. It held that the first instance court should not have first convicted the applicant of the offence and then released him from the punishment, but should have terminated the criminal proceedings. Accordingly, the appeal court discontinued the criminal proceedings against the applicant on account of expiry of the statutory time-limit.

“When there are sufficient grounds for believing that an accused person may evade an inquiry, preliminary investigation or trial or will obstruct the establishment of the truth in a criminal case or will engage in criminal activity, or in order to secure the execution of a sentence, the inquirer, investigator, prosecutor or court may apply one of the following measures of restraint in respect of the accused: a written undertaking not to leave a specified place, a personal guarantee or a guarantee by a public organisation, or taking into custody. [...]”

“In exceptional instances, a preventive measure may be applied to a suspect who has not been charged. In such a case, charges must be brought against the suspect within ten days after a preventive measure is applied. If no charges are brought within the period specified, the preventive measure shall be cancelled.”

“When the need for application of a preventive measure is being considered and the type of measure chosen... the circumstances to be taken into account shall include... the gravity of the charges brought and the personality of the suspect or the accused, occupation, age, health, family status and other circumstances.”

“A preventive measure shall be applied under an order made by an inquirer, an investigator, or a prosecutor, or a reasoned decision given by a court, which shall specify the offence of which the person is suspected or accused and the grounds for application of the preventive measure. The person concerned shall be informed of the order or decision and at the same time the person shall be provided with explanations concerning the procedure for appealing against the preventive measure applied.

A copy of the order or the decision on the application of the preventive measure shall be immediately handed to the person concerned.”

“A written undertaking not to leave a specified place consists in obtaining from the suspect or the accused an obligation not to leave the place of residence or of temporary stay without the permission of a person conducting an inquiry, an investigator, a prosecutor, or a court. In the event of breach by the suspect or the accused of the written undertaking given by him, a stricter preventive measure may be applied about which he should be informed when the obligation is withdrawn.”

“A written undertaking not to leave a specified place consists in obtaining from the suspect or the accused an obligation:

(1) not to leave the place of residence or of temporary stay without the permission of a person conducting an inquiry, an investigator, a prosecutor or a court;

(2) to appear before a person conducting an inquiry, an investigator, a prosecutor or a court at appointed terms;

(3) not to impede the criminal proceedings in any other way.”


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

The applicant, Mr Timo Lahr, is a German national who was born in 1977 and lives in Welzheim. He was represented before the Court by Ms G. Pahl, a lawyer practising in Hamburg.

The applicant is an electrical engineering technician and a member of the National Democratic Party of Germany (Nationaldemokratische Partei Deutschlands, hereafter, “the NPD”). In 1998 he was a local chairperson of that party. The NPD was considered right-wing extremist and populist and was under scrutiny by the Federal Office for the Protection of the Constitution and those of various German States (Länder). The NPD has not been declared unconstitutional by the Federal Constitutional Court in accordance with Article 21 § 2 of the Basic Law.

On 1 March 1998 the applicant commenced his compulsory military service, which was to end on 31 December 1998. To serve one’s compulsory military service is an obligation imposed by the Basic Law without conferring a right to the conscript to be enlisted. A conscript receives approximately EUR 300 net allowance a month. On 21 April 1998 the applicant’s superior notified the Military Counter-Intelligence Service of his membership of and functions in the NPD. On 1 June 1998 he was appointed as a Private First Class. The applicant performed his duties within the army conscientiously and without any disciplinary reprimand. He did not carry out any political activities within the army.

On 27 August 1998 the applicant’s military service was terminated with effect from 31 August 1998. His presence in the army was found to endanger its integrity and order within the meaning of section 29 § 1 No. 6 of the Compulsory Military Service Act (Wehrpflichtgesetz) on account of his membership of and functions in the NPD, a party considered to be right-wing extremist and populist. Moreover, the toleration of an NPD functionary within the army would harm its reputation.

On 1 October 1998 the objection he filed was rejected on the ground that his membership of and functions in the NPD were in breach of a soldier’s special duty of loyalty to the Constitution. His membership of and functions in the NPD, a party that pursued unconstitutional aims, manifested his lack of readiness to defend the free democratic order within the meaning of the Basic Law, which posed a danger to military order.

On 12 November 2002 the Augsburg Administrative Court rejected a claim lodged by the applicant, finding that the order of 27 August 1998 gave sufficient reasons to consider that his continuing military service would pose a serious danger to military order. Section 29 § 1 No. 6 of the Compulsory Military Service Act gave the authorities no discretion where conduct posing a serious danger to military order was established. Military order within the meaning of that provision embraced the readiness to defence which was guaranteed, inter alia, by the army’s bond to the constitutional order of which it was a guarantor. Relying on the 1998 annual reports on the protection of the Constitution of the Federal Ministry of the Interior and the Bavarian State Ministry of the Interior the court established that at the relevant time the NPD aimed at the – if need be violent – subversion of the democratic order. It referred to several statements by the party leader who pursued the political aim to “install the NPD in absolute power”. Moreover it referred to the speech given by a convicted neo-Nazi at the party congress, who appealed for a “revolution which could not be achieved without blood and victims”. The court found that the above statements by party functionaries had to be attributed to the applicant in his function as a local chairperson at the relevant time. Therefore, his further presence in the German army posed in itself a danger to military order even though his behaviour within the army did not give rise to any complaints. The court clarified that his dismissal did not result in the loss of his rank.

On 7 July 2004 the Federal Administrative Court rejected an appeal lodged by the applicant. It endorsed the reasons given by the lower instances and observed that the applicant’s holding of functions in the NPD during his military service was in breach of a soldier’s special duty of loyalty to the Constitution, which was manifested in section 8 of the Soldiers’ Act and was a requisite for the functioning of the army. The NPD’s anti-constitutional attitude, which was expressed by the party leader, had to be attributed to the applicant, who held functions in the party and failed to dissociate himself from those statements. The court referred to the Federal Constitutional Court’s settled case-law that it was not contrary to Article 21 of the Basic Law that the German army drew consequences from the applicant’s membership of a party which had not been declared unconstitutional, as that provision merely protected the political activity of the party members.

On 21 January 2005 the Federal Constitutional Court refused to admit a constitutional complaint by the applicant. It found the arguments given by the lower instances sufficient to justify the termination of his military service, which was therefore in line with the German Constitution and particularly with the prohibition of discrimination.

“2. Parties which, through their aims or the conduct of their members, seek to damage or to overthrow the free democratic constitutional system or to endanger the existence of the Federal Republic of Germany shall be held to be anti-constitutional. The Federal Constitutional Court shall determine the question of anti-constitutionality.”

§1 [...] Furthermore [military service] shall be terminated, if [...]

No.5. based on his previous conduct [the conscript’s] continued presence in the army would pose a serious danger to military order or to the security of the troops, [...]

“A soldier must recognise the free democratic order within the meaning of the Basic Law and must act at all times in such a way as to uphold it.”


The applicant, the late Sigvard Bernadotte, was a Swedish national, born in 1907 and was living in Stockholm. Following his death on 5 February 2002, his widow, Marianne, declared that she wished to pursue the application on his behalf. He is represented before the Court by Mrs Muhlenbock, a lawyer practising in Stockholm. The Government are represented by Mrs Eva Jagander of the Ministry for Foreign Affairs, as Agent.

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

The applicant was son of the late Swedish King Gustav VI Adolf. By descent he was born a prince. On 8 March 1934 the applicant, without the consent of the King, entered into marriage with a woman who was not of royal descent. For this reason, on 9 March 1934, the applicant’s father, the then Crown Prince Regent Gustav Adolf, decided on the King’s behalf:

“By entering into marriage without the King’s consent and with the daughter of a foreign private person, His Majesty, The Duke of Uppland, in accordance with Article 44 of the Instrument of Government and Article 5 of the Order of Succession, has forfeited his own, his children’s and his successors’ right of succession to the throne. Moreover, he has forfeited the titles and the privileges, which until now he has enjoyed in his capacity as a hereditary prince”.

The members of the Government cabinet expressed their agreement with the above decision and agreed with the King’s decision that “Sigvard Oscar Fredrik for the future may use the family name Bernadotte”. It has ever since been the understanding of the Swedish Kings that the applicant thereby lost his right to the title of prince and he has been treated accordingly in the Official Yearbooks of State Officials and Nobility respectively.

Since 1976 the applicant, in several petitions to the present King of Sweden, King Carl XVI Gustav, requested that his hereditary prince title be reaffirmed by the King. The applicant supplied some information about exchanges from 1997 and 1998 between his lawyer at the time and the Marshall of the Realm (riksmarskalken). This included an extract from a letter of 15 May 1997 from the Marshall stating that “the King had not found grounds for revising the interpretations and application of his predecessor’s decision in the matter. Thus, the Royal Court considers that it had finalised its examination of the case”.

The most recent petition to the King, dated 1 December 2000, was rejected on 19 December 2000. The Marshall of the Realm referred to earlier exchanges in the course of which it had been stated that the King was not prepared to carry out a revision or amendment to his predecessor’s decision in the matter. In so far as the King and the Royal Court were concerned, no changes would be made in respect of applicable titles.

Under Swedish law, these refusals cannot form the subject of an appeal.

According to the applicant, he suffered various inconveniences as a result of the removal of his prince title and the subsequent refusals to restore his title.

At the material time (1934), Article 44 of the 1809 Instrument of Government read as follows.

"No prince of the Royal House, be he crown prince, hereditary prince or prince, may marry without the King’s knowledge and consent. In the event that this should occur, he has forfeited his hereditary right to the realm for his own part, that of his children and descendants."

A similar provision was contained in section 5 of the 1810 Act of Succession, which provided that the same applied if a prince, with or without the knowledge and consent of the King, married a commoner (“a private man’s daughter”) of Swedish or foreign origin.

Following a reform in 1937, section 5 was amended to require the King to hear the Government cabinet before consenting to the marriage of a prince. At the same time, the reference to a commoner of foreign origin was abolished, while that to a commoner of Swedish origin was retained. According to the respondent Government, the reason was that, after the First World War, the number of ruling sovereigns and royal houses and other families of equal status had been reduced.

According to information supplied by the Government, the main features of the domestic law pertaining to the acquisition and loss of a name remained unchanged throughout the relevant period. In 1963 the legal provisions concerning names were brought together in one statute, the 1963 Names Act (namnlagen), later replaced by the 1982 Names Act. Under these rules, surnames were acquired at birth and could be lost only in limited circumstances, for example if it were established in paternity proceedings that a certain man was not the father of a person carrying his surname or where the person concerned was not entitled to acquire the surname in the first place or had acquired a surname that caused inconvenience to another person on account of a risk of confusion. The right to carry a first name that had been registered or approved could not be revoked.

Although there was no definition of the concept of name under Swedish law, it was considered that designations other than names fell outside that concept, as they were not deemed to constitute means of personal identification. This was the case of terms that indicated a profession - for example teacher, lawyer or military, or occupational position - such as professor, judge or commander, and likewise indications of rank or title, such as assistant professor, district court judge or captain. Such designations were not afforded the legal protection applicable to names. There was no domestic legal provision regulating the use of the titles of prince and princess nor any legal protection of those titles.


The applicant is a British citizen born in 1924 and living in Wokingham, Berkshire.

The applicant’s grand-daughter, H, was born in July 1985.

In August 1993, H’s mother (the applicant’s daughter, P), who lived in Tyneside, north-east England, contacted the local authorities because she was suffering from mental health problems and could not, at that time, care for H. In September 1993, H was placed with foster parents in Tyneside on a temporary basis. In July 1994, at a meeting of the local authority permanency panel attended by P, the decision was taken that, since P was still unable to care for H, a permanent placement should be found for her. In September 1994, H’s name was added to the Child Protection Register under the category “emotional abuse”. In October 1994, H moved to the south of England to live with her maternal aunt and uncle, who had applied to have H placed permanently with them. P initially opposed this plan but eventually, to avoid a care order, she agreed and, on 1 December 1994, a residence order was made in favour of P’s sister. However, this arrangement broke down and in February 1995 H went to live with the applicant and his wife on a temporary basis. In April 1995, H was placed with short-term foster parents in Berkshire. This was either her fifth or her seventh change of home in three years. She had contact with the applicant and his wife fortnightly, and staying contact with P in Tyneside.

In June 1995 H visited P, who was getting married. The day after the wedding, H and P had a disagreement about H’s sleeping arrangements. H wanted to stay with P, but P had arranged for H to stay with a friend. In the course of this argument, P telephoned the police and social services and asked that an emergency placement be found for H. The following day H returned to her foster parents. P declined to have contact with H until November 1995, when they had supervised contact, repeated in December 1995.

The local authority commenced care proceedings and on 20 July 1995 an interim care order was made. In her statement dated 22 September 1995, P did not oppose the local authority’s plan to find a long-term permanent placement for H in the south of England, although she did oppose adoption. The applicant and his wife did not support the idea of a long-term placement, and initially decided to apply for H to live with them. When they were refused legal aid to apply for a residence order, they decided to apply instead for a contact order. In January 1996 the local authority advanced a care plan in which it was proposed, for the first time, that H be placed with Mr and Mrs X, with a view to adoption. Mr and Mrs X indicated that they would be willing to allow post-adoption contact between H and her biological family.

The case came before His Honour Judge Kenny on 6 February 1996. At the hearing, counsel informed the judge that the parties had agreed to the making of the care order and an order for specified contact in favour of the applicant and his wife. No agreement was reached in respect of contact between H and her mother, since it was not certain whether it would be possible for P to have contact with H in the area where H would be living or at the applicant and his wife’s home.

However, since March or April 1996 the applicant and his wife have had no contact with H, or news as to her well-being, with the exception of what was said in court on 6 June 1997 (see below). The local authority applied to vary the order of 16 February 1996, since H was extremely reluctant to have contact with her mother or grandparents. There was a further hearing before Judge Kenny in October 1996. He ordered that there should be no contact until further order of the court and referred the matter to the High Court.

On 6 June 1997, the High Court considered a number of applications by the parties. P, who was represented by counsel, applied for the discharge of the order of 16 February 1996 and for a residence order in her favour or, in the alternative, a defined contact order. The applicant and his wife, acting in person, applied in support of P’s application or, in the alternative, if the court were unwilling to commit H to her mother’s care, for a residence order in their favour and, if H were not to live with them, for a defined contact order. The prospective adopters, Mr and Mrs X, applied to adopt H and opposed the attachment of any condition to the adoption order.

In giving judgment, the judge, who had spoken privately to H, stated:

“The principle of the paramountcy of H’s welfare must be applied ... . H is nearly 12 years old and her wishes, which I accept have been accurately and genuinely stated by her, do deserve to be given great weight, even if they are not, of course, conclusive. She has suffered significant harm in the past and in my judgment there is a risk, indeed the virtual certainty, of a traumatically adverse effect upon her if she is moved from her present home, where she has settled so well. ...

... I am satisfied that [H] wants very much indeed to be adopted so as to complete the process of integration into Mr and Mrs X’s family. For her, an explanation that she is to remain in their care in their capacity as long-term foster parents is to stop short of cementing the bond between her and them and of providing the total security which understandably, in the light of the past history, she craves.

She has a strong conviction that her natural family does not approve of her present placement, and she is right: the [applicant and his wife] are vehemently opposed to it ... .

In this case an order for direct contact is not viable at all. The child is resolute in her opposition to contact and the making of an order ... . [H] perceives any sort of nexus between herself and her natural family at this point of time to be threatening to the stability of her placement and she even fears that in some way the provision of a report might enable the natural family to discover her location or in some other way (as she puts it) hassle her. ...”

He therefore granted Mr and Mrs X’s application for an unconditional adoption order.

On 17 October 1997, after hearing the applicant and his wife in person, the Court of Appeal refused P and the applicant leave to appeal against the adoption order, and on 23 January 1998 the Court of Appeal refused leave to appeal to the House of Lords.

Relevant domestic law

The Children Act 1989 states, in section 1 (as relevant):

“(1) When a court determines any question with respect to –

(a) the upbringing of a child; ...

the child’s welfare shall be the court’s paramount consideration. ...

(3) In the circumstances mentioned in subsection (4), a court shall have regard in particular to –

(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);

(b) his physical, emotional and educational needs;

(c) the likely effect on him of any change in his circumstances;

(d) his age, sex, background and any characteristics of his which the court considers relevant;

(e) any harm which he has suffered or is at risk of suffering;

(f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;

(g) the range of powers available under this Act in the proceedings in question.

(4) The circumstances are that - ...

(a) the court is considering whether to make, vary or discharge [a care and supervision order].”

The Adoption Act 1976 provides, in section 16 (as relevant):

“(1) an adoption order shall not be made unless - ...

(b) in the case of each parent or guardian of the child the court is satisfied that – ...

(ii) his agreement to the making of the adoption order should be dispensed with on a ground specified in subsection (2)

(2) The grounds mentioned in subsection (1)(b)(ii) are that the parent or guardian - ...

(b) is withholding his consent unreasonably ... .”


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

The applicant was born in 1951 and lives in Budapest.

On 28 October 1991 the applicant brought an action in the Budapest Regional Court seeking the annulment of a contract and the ownership of a real-estate. Between 13 February 1992 and 31 May 1994 the court held eight hearings and obtained the opinion of an expert.

On 10 November 1994 the proceedings were interrupted on account of the death of one of the respondents. The successors were not identified until 24 February 1999. The court informed the parties of this fact on 9 November 1999, and the proceedings resumed on 4 January 2000.

Four further hearings took place between 30 May 2000 and 9 March 2001.

On 8 June 2001 the Regional Court dismissed the applicant's action.

On 21 June 2001 the applicant appealed. Following repeated warnings from the appellate court, his appeal was only lodged in due and proper form on 3 December 2001.

On 11 December 2002 the Supreme Court, sitting as a second-instance court, dismissed the applicant's appeal.

On 7 October 2003 the Supreme Court rejected as inadmissible the applicant's petition for review, without an examination of the merits.


The applicant, Mr Zoltán Lakatos, is a Hungarian national, born in 1958 and living in Budapest. At present he serves a prison sentence in Budapest Prison. Before the Court he is represented by Mr I. Horváth, a lawyer practising in Budapest. The respondent Government are represented by Mr L. Höltzl, Deputy State-Secretary, of the Ministry of Justice.

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

On 25 October 1995 the Budapest Public Prosecutor’s Office preferred a bill of indictment against the applicant. He was charged with having inflicted lethal injuries on his common-law wife. In these and the ensuing proceedings the applicant was assisted by a defence counsel.

On 21 May 1997 the Budapest Regional Court convicted the applicant of lethal bodily assault and sentenced him to six and a half years’ imprisonment. The Regional Court relied on evidence given by numerous witnesses as well as the opinions of forensic pathologists and psychiatrists.

The applicant appealed for a mitigation, whereas the public prosecutor appealed for an aggravation of the sentence.

In its submissions to the appeal court, on 13 October 1997 the Attorney General’s Office maintained the public prosecution’s appeal and proposed that the sentence imposed on the applicant on account of the offence of lethal bodily assault be aggravated.

On 10 March 1998 the Supreme Court, acting as second instance, held a hearing and, on the same occasion, dismissed the applicant’s appeal. Simultaneously, it recharacterised the applicant’s offence and convicted him of bodily assault and, separately, of murder, both offences committed with special cruelty. A cumulative sentence of thirteen years’ imprisonment was imposed on the applicant. In the reasoning, the Supreme Court completed the first-instance court’s findings of fact with data from the victim’s autopsy record and the forensic pathologist’s opinion. Relying on these elements, the Supreme Court found that the atrocities committed by the applicant had in fact constituted two separate offences which warranted the recharacterisation as well as the aggravation of the sentence.

The applicant lodged a petition for review by the Supreme Court. He claimed that the second-instance court’s completion of the findings of fact in the case had been erroneous and that his first-instance conviction and sentence be restored. He argued that the recharacterisation of the offence had been unlawful, given that the public prosecution had not proposed such a departure from the first-instance judgment and he had had no opportunity to prepare his defence against the recharacterised charges.

On 8 March 1999 the Supreme Court’s review bench held an oral hearing. Having studied the lower instances’ case-files and submissions by the applicant and the prosecution it upheld the second-instance judgment. As regards the applicant’s procedural arguments, the review bench pointed out that, while courts were bound by the facts as contained in the bill of indictment, this did not hold true for the legal characterisation thereof from which the courts were free to depart. As to the merits of the case, the Supreme Court noted that, in respect of one of the incriminated events, the applicant had inflicted numerous such injuries on the victim as to imply that he had had the eventual intention to murder her. It held therefore that his additional conviction of the offence of murder was lawful.

Article 9 § 2 provides that proceedings before the criminal court may be initiated only upon lawful indictment. The court decides on the criminal responsibility of the indicted person exclusively by reference to facts contained in the bill of indictment.

Article 132 § 1 provides that where there is a strong suspicion, based on the available information, that a person has committed an offence, the authority must inform him of the substance of the suspicion against him and of the relevant laws.

Article 146 § 2 provides that the bill of indictment must contain a brief description of the facts on account of which the defendant is being prosecuted.

Article 203 § 1 requires that documents, the contents of which are regarded by the court as evidence, be read out at the hearing.

According to Article 239 § 1, the second-instance court must, when passing its decision, rely on the findings of fact reached by the first-instance court, unless the first-instance judgment lacks factual support.

Article 241 provides that a defendant acquitted at first instance may be convicted, or a convicted defendant’s sentence increased, only if an appeal has been lodged to his detriment. An appeal is to be regarded as being to the defendant’s detriment if aimed at having him convicted, or convicted of a more serious offence, or at increasing his sentence.

According to Article 258 § 1 (a), where the proper establishment of the facts of the case can be achieved on the basis of the case-file, the second-instance court completes or rectifies the establishment of the facts and thereafter examines the first-instance judgment on this new factual basis.

According to Article 260, where the first-instance court has applied the law erroneously but its judgment need not be quashed, the second-instance court amends the judgment and passes a decision in accordance with the law.

Article 284 § 1 provides that a final decision is subject to review if:

(a) the defendant’s acquittal or conviction, or the discontinuation of the proceedings, has taken place in breach of the provisions of substantive criminal law; or

(b) an unlawful punishment or measure has been imposed on the defendant as a consequence of an incorrect classification of the offence or of another breach of the rules of substantive criminal law.

According to paragraph 2, in the latter case no review may take place, if the actual punishment has been imposed within the limits provided for by the provisions corresponding to the classification which is correct in law.

According to Article 284/A § 1 (I), a petition for review in favour of the defendant may be filed, inter alios, by the defendant, the public prosecutor or the defence counsel.

Paragraph 2 provides a further ground for review where certain serious breaches of procedural criminal law have affected the passing of the decision in question.

Under Article 288 § 1, if a petition for review is not rejected on formal grounds, it must be sent to the Attorney General’s Office for comments.

Article 288/A § 1 grants the petitioner the right to submit comments in reply.

According to Article 289/A § 1, the Supreme Court examines, as a general rule, the petition for review at a session. The attendance of the defence counsel and the public prosecutor is required; the defendant must be notified of the session and, if detained, must be committed thereto.

Article 290 provides that, at the session, one of the judges sitting in the case must orally present the petition, the decision challenged and relevant details of the case-file. After this introduction, the public prosecutor, the defence counsel and the defendant, inter alios, address the court.

As a result of the review, the Supreme Court may, under Article 291 § 1, quash the decision reviewed and instruct the lower-instance court to resume its proceedings.

Under Article 291 § 3, where the second-instance decision has been taken in breach of the provisions of substantive criminal law within the meaning of Article 284 § 1, the Supreme Court may itself deliver a rectified decision, if, as a result, the defendant may be acquitted, the proceedings discontinued or a less severe punishment imposed.

Paragraph 7 provides that if the Supreme Court dismisses the petition, it must uphold the decision challenged.


Violation of Article 6 - Right to a fair trial

Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger

On various dates each of the applicants received one or more final decisions awarding payments from companies (see appendix for details) in which the State holds at least 25% of the share capital, and instituted enforcement proceedings to collect the payments.

Some of the applicants disagreed with the amounts awarded to them in the above decisions. Mr Ostroverkhov, for instance, appealed against the decision of 26 June 2000 in his favour but it appears that he failed to comply with the procedural requirements and his appeals were rejected. He did not appeal against the decision of 24 May 2002.

After the decisions in the applicants' favour had become final, insolvency or liquidation proceedings against the debtors were initiated. On that account, the State Bailiffs' Service terminated the enforcement proceedings against them and transferred the applicants' writs of enforcement to the relevant bankruptcy trustees or liquidation commissions for further processing. At the end, some of the debtors were liquidated.

The decisions in the applicants' favour remain unenforced.

The relevant domestic law is set out in the judgment of 26 April 2005 in the case of Sokur v. Ukraine (no. 29439/02, §§ 17-22).


Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria

The applicant, Mr Gatis Kovaļkovs, is a Latvian national who was born in 1970 and lives in Rīga. The Latvian Government (“the Government”) were represented by their Agent, Mrs I. Reine.

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

On 18 February 2002 the Jelgava Court convicted the applicant of attempted robbery. He was sentenced to six years’ imprisonment, suspended for two years. On 5 November 2003 the Dobele District Court established that during that two-year period the applicant had committed various infractions. For that reason it ordered the applicant to start serving his sentence pursuant to the Jelgava Court’s judgment of 18 February 2002, effective immediately.

On 13 November 2003 the applicant was transferred from the Central prison in Rīga to serve his sentence in Pārlielupe prison in Jelgava. According to the applicant, soon after his arrival at Pārlielupe prison he began to have disagreements with the administration of the prison and with his cellmates. It appears that the primary cause of conflict was the fact that almost all of the prisoners and staff at Pārlielupe prison spoke Russian. According to the applicant, their knowledge of Latvian – the official language of Latvia and the applicant’s native language – was limited or non-existent. The applicant made numerous requests to be transferred to a place of imprisonment where he could freely communicate in Latvian. However, all his requests to that effect were rejected.

It furthermore appears that at the relevant time the applicant frequently made dismissive and disparaging oral remarks concerning the Russian minority of Latvia. Similar statements were also included in the applicant’s correspondence with State authorities and in articles which he regularly published in an extreme right-wing magazine. As a result, other inmates became hostile towards the applicant.

On 18 August 2005 the applicant was transferred from Pārlielupe prison to Jēkabpils prison after the governor of Pārlielupe prison had written a report in which it was noted that the applicant “constantly provoke[d] conflicts with the administration of the prison by sending unsubstantiated complaints to various Latvian newspapers”.

On 7 October 2005 the applicant was transferred to Valmiera prison.

On 7 November 2005 the applicant was transferred to Matīsa prison in Rīga (in 2009 Matīsa prison merged with the adjacent Central prison). The report concerning the desirability of the applicant’s transfer noted that “all of the [applicant’s] conflicts and disagreements in prison [were] caused by himself, [he] provoke[d] the [prison] administration and incite[d] other prisoners to write complaints”. At the applicant’s request, one month after his arrival in Matīsa prison he was placed in an individual cell. The applicant remained in Matīsa prison until his release upon having served his sentence on 8 January 2009.

The applicant alleges that his cellmates and also the chaplain at Pārlielupe prison ridiculed him because of his religious beliefs. He furthermore alleges that he was prevented from adequately performing the fundamental rituals of Vaishnavism (the Hare Krishna movement).

On 19 May 2005 the applicant complained about the purported infringements of his religious freedoms to the Directorate of Religious Affairs (Reliģijas lietu pārvalde) of the Ministry of Justice. In particular he complained that the chaplain of Pārlielupe prison had described the Hare Krishna movement as a “satanic” religion. He also pointed out that he was not receiving the same level of spiritual support as the prisoners belonging to the Christian faith.

On 8 June 2005 the applicant submitted a request to the governor of Pārlielupe prison. He explained that in prison he worked as a cobbler. Part of his earnings he had to spend to buy food in the prison store, since his religion did not allow him to eat some of the food served by the prison canteen. He furthermore complained that in his cell he was unable to read religious writings because of his cellmates’ tendency to discuss their immoral lifestyles by using countless swear words. He invoked Articles 9 and 14 of the Convention and requested to be placed in a separate (individual) cell. It appears that he did not receive any written response.

In a letter from the Directorate of Religious Affairs of 20 June 2005 the applicant was informed that his religious rights were being respected “in so far as it was possible”. He was furthermore informed that a Christian education programme was operating in Pārlielupe prison.

On 27 June 2005 the applicant complained to the Prison Administration (Ieslodzījuma vietu pārvalde) of being mocked and humiliated by the prison staff and his fellow prisoners because of his religious beliefs. He invoked Articles 9 and 14 of the Convention and complained that the circumstances in his cell and the negative attitude of his cellmates prevented him from devoting himself to meditation and studies of Vaishnavism.

On 15 July 2005 the deputy governor of the Prison Administration replied to the applicant by explaining that it was not appropriate to perform religious rituals in a common cell, since it might disturb other prisoners. However, the applicant was informed that the administration of the prison would set aside a specific time for him to visit the prison chapel or another appropriate space so that he would be alone for praying, reading religious literature, and meditating. According to the applicant, that never happened.

On 16 November 2005 the deputy governor of the Prison Administration responded to an enquiry from the Ministry of Justice for information about the applicant. The letter referred to an unspecified prison where the applicant had been held and indicated, inter alia:

“[the applicant’s] religious activities create tense situations. [The applicant] in the presence of other convicted persons in the residential areas regularly and openly performs religious rituals – singing, meditation, massages with oils and so on – thus disturbing the other convicted persons. Despite the fact that the administration of the prison indicated [to the applicant] that residential areas are not meant for carrying out religious activities and offered the use of another room for this purpose, [the applicant] refused and stubbornly continued to perform religious rituals in the residential areas. ... With his actions [the applicant] offends the honour and dignity of other convicted persons and creates a negative attitude towards himself.”

During a search of the applicant’s belongings at Matīsa prison on 20 January 2006 a guard found and confiscated some incense sticks. According to the applicant, the incense was necessary for him to perform the religious rituals of Vaishnavism. The record of the search contains a space for any objections that the prisoner might have. The applicant signed the record but the space for objections was left blank.

On 13 June 2007 the Prison Administration wrote to the president of the Rīga Chapter of the International Society of Krishna Consciousness asking for an explanation of certain religious rituals that several prisoners had sought to perform in prisons. Namely, the Prison Administration wished to ascertain whether Vaishnavism required a twice-daily loud chanting of mantras for fifteen minutes. The president of the Rīga Chapter responded on 28 June 2007. He explained that there existed two methods for praying to Krishna. The first – japa – involves the repetition of a mantra in a soft voice by using prayer beads. The second – kirtan – is chanting of the Hare Krishna mantra at a regular volume. Typically kirtan is performed by a group of devotees as a form of a religious service. It appears that both forms of prayer are equally acceptable.

At the request of the Agent of the Government, on 2 November 2007 the Directorate of Religious Affairs provided certain information concerning the organisation of religious life in prisons, about the applicant’s complaints received by the Directorate, and concerning certain specific aspects of Vaishnavism. Concerning the latter, members of the Rīga congregation had explained to representatives of the Directorate that some of the basic rituals of Vaishnavism were the burning of incense sticks, a daily washing, a special diet, studies of religious writings, and meetings with other followers of Vaishnavism. The obligation to observe those rituals was, however, conditional. For instance, if circumstances did not permit it, the burning of incense sticks was not mandatory. According to the members of the congregation, in a prison environment it would recommendable for a follower of Vaishnavism to be placed in a single cell, since the observance of the religious rituals in a shared cell could incite a negative attitude among other prisoners. Concerning religious literature, the members of the congregation affirmed that upon request religious writings could and would be sent to inmates. Lastly, concerning the dietary requirements it was emphasised that the ban on eating meat products was particularly significant for followers of Vaishnavism.

On 1 September 2005 the applicant refused to stay in his wing of Jēkabpils prison. He submitted a written statement to the Prison Administration, in which he requested to be moved to Jelgava prison and explained that he was in danger in Jēkabpils prison. According to the applicant, he orally informed the representatives of the administration of Jēkabpils prison that on that day he had been beaten by other prisoners. He also complained that the smallest detention wing that had been offered to him held forty other prisoners.

On the same day the administration of Jēkabpils prison took a written statement from several prisoners saying that the applicant had not been subjected to physical or mental harassment and that he had not had any conflicts with any of the inmates. Two hours after the applicant had refused to return to his wing he was seen by a medical assistant (feldšere) who examined him and did not find any bruises on his body. The relevant excerpt from the applicant’s medical record reads as follows:

“At 15.40 brought for examination due to bodily injuries.

Does not have any complaints. According to the prisoner, there is no need for a medical examination.

Body examined in its entirety.

Concl[usion]: No bruises or subcutaneous haematomas have been observed.”

The applicant received a disciplinary penalty in the form of seven days’ detention in a punishment cell for the refusal to return to his wing.

On 5 September 2005 the applicant was moved to a different wing of Jēkabpils prison where the prisoners are placed in cells (as opposed to dormitories in the rest of the prison).

On 10 and 13 October 2005 the applicant submitted complaints to the Specialised Public Prosecutor’s Office (Specializētā vairāku nozaru prokuratūra). He stated that in Jēkabpils prison he had been beaten by “Russian speakers” who had been incited to do so by one of the wardens. The applicant asked to be moved to Matīsa prison because he felt threatened in all the other prisons in Latvia.

The applicant’s complaint was forwarded to the Prison Administration, which on 28 October 2005 refused to initiate criminal proceedings concerning the applicant’s alleged beating in Jēkabpils prison. An inspector of the Prison Administration took into account written reports that had been drawn up by the administration of Jēkabpils prison and written statements from the applicant’s cellmates. It was found that all the information in the file consistently pointed to the conclusion that the applicant had not been attacked by anyone.

On 14 November 2005 the applicant appealed to the Specialised Public Prosecutor’s Office for Organised Crime and Other Offences (Organizētās noziedzības un citu nozaru specializētā prokuratūra) against the Prison Administration’s refusal to initiate criminal proceedings. He named two prisoners who had allegedly beaten him and complained that the investigator of the Prison Administration had not questioned them. He furthermore pointed out that immediately after his arrival at Jēkabpils prison as well as on 31 August 2005 he had complained to representatives of the administration that he was threatened by other inmates, yet no action had been taken. The applicant noted that the prisoners who had been questioned by the investigator of the Prison Administration had been the ones friendly to him and that there had been no reason to question them in relation to his alleged beating. Concerning his medical examination on 1 September 2005 the applicant submitted that the medical assistant had observed him “while holding a cup of coffee in her hands”. She had declared that the applicant had a “red head” and had only noticed a scratch on his skin when the applicant himself had pointed it out. The medical assistant had refused to give any treatment for the scratch or for the applicant’s headache and had not even recorded his complaints.

On 28 November 2005 his appeal was rejected by a senior prosecutor of the Specialised Public Prosecutor’s Office. In reply to the applicant’s complaint that the investigator of the Prison Administration had not questioned the two inmates whom he had singled out as being responsible for his beating, the prosecutor explained that persons could be questioned only after criminal proceedings had been initiated. Considering that, in the absence of any recorded injuries, there was no reason to initiate criminal proceedings concerning the applicant’s alleged beating, the two prisoners named by the applicant could not be questioned.

On 1 December 2005 the applicant appealed against the reply of 28 November 2005. He essentially repeated the arguments that had been set out in his previous complaints, namely, that he had identified by name a prisoner who had threatened and then beaten him, yet that person had never been questioned and that his medical examination on 1 September 2005 had been very superficial.

In a final decision of 14 December 2005 another senior prosecutor of the Specialised Public Prosecutor’s Office for Organised Crime and Other Offences rejected the applicant’s complaint. The response was essentially identical to the previous ones given to the applicant but also added that the “lodging of complaints is to be seen as a counteraction against the administration of the prison and against prisoners negatively disposed towards [the applicant]”.

On 12 February 2004 the Criminal Law was amended. Among other things, the minimum prison term for robbery was reduced. The applicant wrote numerous letters to the Supreme Court and to prosecutors requesting that his sentence be reduced. He received an explanation that the transitional provisions concerning the entry into force of the amendments to the Criminal Law provided that the reduction in the minimum term of imprisonment was not applicable to persons sentenced prior to 1 January 2005, the date when the amendments to the law came into effect. The applicant’s subsequent attempts to appeal to the Constitutional Court remained unsuccessful.

Also in 2005 the applicant enquired with the State authorities about the possibility of changing his Russian-sounding surname (Kovaļkovs) to the surname which he had had until the age of five (Bite). He received a response stating that under the law he could not change his name before his criminal record was expunged.

In a letter of 7 March 2006 which was addressed to the Human Rights Bureau (Cilvēktiesību birojs) the director of the Prison Administration described the applicant’s personal situation and characterised the applicant in negative terms. The applicant subsequently sought in vain to initiate criminal proceedings for defamation against the director of the Prison Administration. In July 2006 the applicant requested State-granted legal aid in order to lodge a civil claim for damages against the director of the Prison Administration. On 9 July 2006 the Legal Aid Administration (Juridiskās palīdzības administrācija) rejected the applicant’s request for the reason that the law did not provide for legal aid for such claims. The claim which had been drafted by the applicant himself was not accepted by the Rīga City Latgale District Court for procedural reasons. The final decision in that regard was adopted on 14 September 2006.

On 1 November 2007 (after the case had been communicated to the Government) a psychiatrist issued a one-paragraph report on the applicant’s mental health, finding him to be a querulent personality with a tendency to misinterpret other people’s actions towards him as hostile or dismissive and to “aggressively exaggerate his rights by incessantly writing unsubstantiated complaints”.

Article 461 of the Sentence Enforcement Code (Sodu izpildes kodekss), as in force at the relevant time, provided for the existence of a chaplaincy service in prisons and indicated that the prisoners’ meetings with clerics and their participation in “moral development activities” were to be regulated by the Internal Rules of Order of an Institution of Deprivation of Liberty, which were contained in regulations of the Cabinet of Ministers.

As in force until 3 June 2006, Regulation of the Cabinet of Ministers no. 73 (2002) provided in paragraph 36 that the chaplains and other staff members of prisons were to organise “moral development activities”, such as lectures, educational talks and musical performances. The “moral development” also included religious events organised by chaplains, such as studies of religious literature, services, sacraments and other ceremonies. It was also noted that “convicted persons shall have the opportunity to educate themselves individually”. Paragraph 37 provided that with the permission of the prison governor or of the director of the Prison Administration “representatives of registered religious and public organisations” could be involved in the organisation of the educational activities for prisoners.

Paragraph 46 of the Regulation provided that convicts could only keep a limited selection of objects in their cells, which was exhaustively listed in amendment no. 3 to that Regulation. The list in the amendment did not include incense sticks.

On 3 June 2006 the previous Regulation was replaced by Regulation of the Cabinet of Ministers no. 423 (2006). Paragraph 35 of the new Regulation provides that the spiritual care of convicted persons is to be organised or performed by chaplains. Paragraph 39 provides that “[o]nly the religious organisations listed in the normative acts concerning the chaplaincy service shall be authorised to distribute religious literature in prisons”.

At the relevant time the chaplains’ work in prisons was regulated by Regulation of the Cabinet of Ministers no. 277 (2002), entitled “Regulations on the Chaplaincy Service” (Noteikumi par kapelānu dienestu). The second paragraph of the Regulation provided that chaplains were responsible for ensuring respect for freedom of religion in, among other institutions, prisons. Paragraph 3 provided that chaplains were nominated by the leaders of the Lutheran, Catholic, Orthodox, Old Believer, Methodist, Baptist, Seventh-day Adventist, Jewish, and Pentecostal denominations.

Paragraph 15 of Regulation no. 277 specified that chaplains were to ensure the spiritual care of prisoners, to lend them moral support and to give them consultations concerning questions of religion and ethics when necessary. According to the information furnished by the Directorate of Religious Affairs the chaplaincy service was ecumenical. Prison chaplains were obliged to provide spiritual support to all prisoners, irrespective of their faith, or, should that prove to be impossible, they could invite representatives of the respective religious movement to assist them in their work. Since 31 March 2006 those principles have been specifically laid down in an internal instruction of the Prison Administration entitled the Regulation on the Prison Chaplaincy Service (Ieslodzījuma vietu kapelānu dienesta reglaments).

In addition, Regulation no. 423 provided that convicted persons could only keep a limited selection of objects in their cells, which was exhaustively listed in amendment no. 1 to that Regulation. The list in the amendment did not include any objects of a religious character, although some of the objects, such as books, photographs and headwear could have religious significance.

In 2010 the constitutionality of amendment no. 1 to Regulation no. 423 was challenged in the Constitutional Court. In a judgment of 18 March 2011 in case no. 20105003 the Constitutional Court declared amendment no. 1, in so far as it did not allow the storage of religious objects, unconstitutional and void as of 1 October 2011.

On 11 January 2006 the Committee of Ministers of the Council of Europe adopted Recommendation Rec(2006)2 to member states on the European Prison Rules, which lay down the following guidelines:

“Freedom of thought, conscience and religion

29.1 Prisoners’ freedom of thought, conscience and religion shall be respected.

29.2 The prison regime shall be organised so far as is practicable to allow prisoners to practise their religion and follow their beliefs, to attend services or meetings led by approved representatives of such religion or beliefs, to receive visits in private from such representatives of their religion or beliefs and to have in their possession books or literature relating to their religion or beliefs.”


André Potocki;Angelika Nußberger;Ann Power-Forde;Helena Jäderblom;Johan Hirschfeldt;Mark Villiger;Paul Lemmens

The applicant, Mr Krzysztof Ruminski, is a Swedish national who was born in 1950 and lives in Jordbro. He was represented before the Court by Mr I. Vita, a lawyer practising in Stockholm. The Swedish Government (“the Government”) were represented by their Agent, Ms H. Lindquist, of the Ministry for Foreign Affairs

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

The applicant suffered for many years from, inter alia, pain in his back and legs and numbness in his right arm. He was granted a full disability pension in 2002, after the diagnosis of lumbago, sciatica and myositis.

In 2004 he applied for life annuity and alleged that his physical problems had been caused by his former employment as a driver (1973 to 1974), as a dairy worker (1974 to 1984) and as a food science technician (1984 to 1991). The Social Insurance Office (Försäkringskassan, hereinafter “the Office”) appointed an in-house specialist in orthopaedic surgery who, in a written statement, concluded that there was not a high degree of probability (hög grad av sannolikhet) that any harmful element in the applicant’s former employment had caused his problems.

On 17 May 2005, after having held an oral hearing, the Office rejected the application. Referring to, inter alia, the specialist statement by the insurance doctor, the Office held that the applicant had not been subject to any harmful influences which, with a high degree of probability, could have caused or worsened his problems.

The applicant appealed to the County Administrative Court (länsrätten) of Stockholm. On 19 April 2007 the court, after having held an oral hearing, upheld the Office’s decision in full.

Upon further appeal to the Administrative Court of Appeal (kammarrätten) of Stockholm, the applicant submitted, inter alia, a medical statement (epikris) issued in February 2008 by the Centre of Public Health, division of labour and environmental medicine (Centrum for folkhälsa, Arbets- och miljömedicin). According to the medical statement, there were reasons to believe that the applicant’s work had caused his problems. The applicant requested that an oral hearing be held by the Administrative Court of Appeal before it decided whether to grant leave to appeal as well as before it decided on the merits of the case. He also requested expert witnesses to be heard before the court.

In a written statement to the appellate court, the Office questioned the conclusions in the medical statement and, furthermore, referred to medical records from 1997, in which the applicant was held to be fully able-bodied and in which it was noted that no somatic evidence had been found in support of the applicant’s symptoms.

On 2 October 2007 the Administrative Court of Appeal decided not to hold an oral hearing prior to deciding on the question of leave to appeal. It referred to the circumstances of the case and the fact that the County Administrative Court had held an oral hearing. The applicant was given the opportunity to submit further observations. It is unclear whether he did so.

On 17 March 2008, the Administrative Court of Appeal granted leave to appeal. Subsequently, on 5 September 2008 it decided not to hold an oral hearing before deciding on the merits of the case. It referred to the nature of the case and to the fact that an oral hearing had been held before the County Administrative Court. The applicant was given the opportunity to submit further observations. It is again unclear whether he took advantage of this opportunity.

In a judgment on 27 October 2008, the Administrative Court of Appeal upheld the lower court’s judgment in full, giving the following reasons:

“The medical and other evidence in the case does not support that the applicant has been exposed to any such harmful influences in his work which could, with a high degree of probability, have caused his problems. His problems can thus – as has been found also by the Office and the County Administrative Court – not be defined as a work-related injury.”

The applicant appealed to the Supreme Administrative Court (Högsta förvaltningsdomstolen). He complained about the lack of reasoning in the Administrative Court of Appeal’s judgment and argued that that court’s refusal to hold an oral hearing had infringed his right to a fair trial within the meaning of Article 6 of the Convention. If the Supreme Administrative Court were to grant leave to appeal, he requested an oral hearing.

On 4 August 2009, the Supreme Administrative Court refused leave to appeal.

Chapter 3 of the Tort Liability Act (Skadeståndslagen, 1972:207) deals with the civil liability of the State. According to section 2 of that chapter, acts or omissions by a public authority may give rise to an entitlement to compensation in the event of fault or negligence.

An individual who wants to claim compensation from the State may proceed in either of two ways: he or she may petition the Chancellor of Justice (Justitiekanslern) in accordance with Section 3 of the Ordinance on the Administration of Claims for Damages against the State (Förordningen om handläggning av skadeståndsanspråk mot staten, 1995:1301), or bring a civil action against the State before a district court, with the possibility to appeal to a court of appeal and later to the Supreme Court. No appeal lies against a decision of the Chancellor of Justice. However, if the claim is rejected, the claimant still has the possibility to institute civil proceedings before the courts. In such proceedings, the State is represented by the Chancellor of Justice (section 2 of the Ordinance with Instructions for the Chancellor of Justice [Förordning med instruktion för Justitiekanslern, 1975:1345]).

According to section 2 of the Limitations Act (Preskriptionslagen, 1981:130), the period of limitation in respect of claims against the State is ten years from the point in time when the claim arose, unless the period has been interrupted beforehand.

In a judgment of 9 June 2005 (NJA 2005 p. 462) the Supreme Court dealt with a claim for damages brought by an individual against the Swedish State, inter alia, on the basis of an alleged violation of Article 6 of the Convention. The case concerned the excessive length of criminal proceedings and the Supreme Court held that the plaintiff’s right under Article 6 of the Convention to have the criminal charges against him determined within a reasonable time had been violated. Based on this finding and with reference, inter alia, to Articles 6 and 13 of the Convention and the Court’s case-law under these provisions, in particular the case of Kudła v. Poland ([GC], no. 30210/96, ECHR 2000-XI), the Supreme Court concluded that the plaintiff was entitled to compensation under Swedish law for both pecuniary and non-pecuniary damage. With respect to the level of compensation for non-pecuniary damage, the Supreme Court took note of the criteria established in the Court’s case-law stating that the Court’s practice constituted a natural point of departure in this regard.

In a decision of 4 May 2007 (NJA 2007 p. 295), the Supreme Court held that the principle concerning a right to damages established in the abovementioned case of 9 June 2005 also applied with regard to the rights contained in Article 5 of the Convention. The Supreme Court stated that the plaintiff’s right to damages on account of a violation of Article 5 should be assessed in the first place under the Tort Liability Act and the Act on Compensation for Deprivation of Liberty and Other Coercive Measures (Lagen om ersättning vid frihetsberövanden och andra tvångsåtgärder, 1998:714). To the extent necessary, the relevant provisions of domestic law should be interpreted in accordance with the Convention. If Sweden’s obligations under Article 5 § 5 could not be met by such an interpretation, the domestic courts should award compensation without the support of specific legal provisions. As concerned the determination of the level of compensation, the Supreme Court repeated that the Court’s case-law was a natural point of departure but also noted that account must be taken of the fact that different national conditions may lead to variations from one country to another in what should be regarded as a reasonable level of compensation.

In a judgment of 21 September 2007 (NJA 2007 p. 584), the Supreme Court held that the plaintiffs’ right to respect for their private life under Article 8 had been violated on the basis that a police decision on a medical examination of some of them had not been “in accordance with the law”. Having found that compensation for the violation could not be awarded directly on the basis of the Tort Liability Act, the Supreme Court held that there was no reason to limit the scope of application of the principle established in the above-mentioned cases of 9 June 2005 and 21 September 2007 to violations of Articles 5 and 6 of the Convention. In view of this and with reference to, inter alia, Articles 8 and 13 of the Convention and the Court’s case-law under these Articles, the Supreme Court concluded that the plaintiffs should be awarded non-pecuniary damages for the violation of Article 8. With regard to the levels of compensation, the Supreme Court concluded that they should not be too far removed from the levels which applied when awarding damages under the Tort Liability Act. Generally speaking these levels should, however, be compatible with the case-law of the Court. In the same case, the Svea Court of Appeal had also concluded, in a judgment dated 12 January 2006, that there had been a violation of Article 8 and that an award for non-pecuniary damage should be made on the basis of the principle established in the case of 9 June 2005.

Another Supreme Court judgment of 28 November 2007 (NJA 2007 p. 891) concerned a claim for damages against the Swedish State on the basis of an alleged violation of Article 2 of the Convention relating to the suicide of the plaintiffs’ father while in detention. The Supreme Court concluded that the case revealed no violation of Article 2. However, in its reasoning leading to this conclusion, the Supreme Court noted, inter alia, that according to the Court’s case-law there was a right to an effective remedy under Article 13 connected to the State’s duty under the Convention to take measures to protect the lives of individuals in custody or who were otherwise deprived of their liberty which should, in principle, include a possibility of obtaining compensation for damage. The Supreme Court referred in particular to the judgment in Keenan v. the United Kingdom (no. 27229/95, § 130, ECHR 2001-III).

In a judgment of 3 December 2009 (NJA 2009 N 70), the Supreme Court confirmed its previous case-law in a case concerning claims for damages against the Swedish State on account of excessive length of tax proceedings. The court affirmed that it is now a general principle of law that, to the extent that Sweden has a duty to provide redress to victims of Convention violations through a right to compensation for damages, and that this duty cannot be fulfilled even by interpreting national tort law in accordance with the Convention (fördagskonform tolkning), compensation for damages may be ordered without direct support in law.

Furthermore, on 16 June 2010 (NJA 2010 p. 363), the Supreme Court ordered compensation for non-pecuniary damage to be paid to an applicant for proceedings which had complied neither with the “reasonable time” requirement in Article 6 § 1 nor with the right to an effective remedy in Article 13. The proceedings in question had concerned a claim for damages against the State.

In two judgments of 11 April 2012 (T 5858-10 and T 3470-10), the Supreme Court ordered compensation to be paid to an applicant for civil proceedings (first case) and administrative proceedings (second case) which had not complied with the “reasonable time” requirement in Article 6 § 1 of the Convention.

In a judgment of 21 December 2012 (B 1982-11), the Supreme Court reduced the sentence to be served by the defendant in a case where criminal proceedings had not complied with the “reasonable time” requirement in Article 6 § 1 of the Convention.

Lastly, in a judgment on the same day (T 5644-11), the Supreme Court ordered compensation for non-pecuniary damage to be paid to an applicant for criminal proceedings which had not complied with the “reasonable time” requirement in Article 6 § 1 of the Convention.

In May 2009 the Government decided to set up a working group on tort liability and the Convention to study the current legal situation. In December 2010 the working group submitted its report (Skadestånd och Europakonventionen, SOU 2010:87) to the Government. In the report it is proposed that the Tort Liability Act be amended in order to allow natural and legal persons to obtain damages from the State or a municipality for violations of the Convention. Such an action against public authorities would be examined by a general court which would need first to establish that a right provided by the Convention has been violated. The aim of the proposal is to provide a legal basis for granting non-pecuniary damages arising from disregard of the Convention and to fulfil, together with the other already existing legal remedies, Sweden’s obligations under Article 13 of the Convention.

In its comments of 7 July 2011 on the above report, the Office of the Chancellor of Justice stated that, since the autumn of 2007 following the Supreme Court’s case-law developments (as set out above), it had dealt with a large number of requests from individuals for compensation on the basis of violations of the Convention. It estimated that it had dealt with roughly 1000 cases over the previous three years. During this time the Chancellor of Justice had also represented the Swedish State in a number of cases before the civil courts concerning alleged violations of the Convention. A majority of the cases that the Office had dealt with had concerned non-pecuniary damages for excessive length of proceedings under Article 6 § 1 of the Convention. Since November 2009, it had received more than 400 such complaints and in more than half of them, the Chancellor of Justice had found a violation and granted compensation. The level of compensation for non-pecuniary damage had been determined with reference to the Court’s case-law and varied between SEK 10,000 and SEK 30,000 (approximately EUR 1,650 and EUR 3,500). Furthermore, the Chancellor of Justice had dealt with a substantial number of cases (around 160) concerning the registration of individuals in the Security Police register. These cases had concerned one or more of Articles 8, 10, 11 and 13 of the Convention.

There continue to be other individual cases relating to alleged violations of Articles 5, 7 and 13 of the Convention, among others. For example, in a decision of 8 February 2012 (dnr 2453-11-40), the Chancellor of Justice held that the reasoning in a District Court’s judgment failed to fulfil the requirements set by Article 6 of the Convention. Referring to the case-law of the Supreme Court, the Chancellor of Justice stated that the applicant therefore could be awarded compensation for the damage caused by the violation of the Convention. However, due to the particular circumstances of that case, the applicant was not granted compensation. Furthermore, in a decision of 27 November 2012 (dnr 4560-12-40), the Chancellor of Justice found that a County Administrative Court, in dismissing the applicant’s appeal against a decision by the Employment Service (Arbetsförmedlingen), had violated his right to access to court (the Chancellor referred to the case of Mendel v. Sweden, no. 28426/06, 7 April 2009). Consequently, the applicant was awarded damages.