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

The applicant, Mr Vitaliy Andreyevich Serdyuk, is a Ukrainian national who was born in 1939 and lives in Chernigiv.

In 1986 the applicant, at that time a military officer, was engaged in emergency relief operations at the site of the Chernobyl nuclear plant disaster, within the “Chernobyl alienation zone” (тридцятикілометрова зона або зона відчудження).

On 25 August 1992 the Cabinet of Ministers adopted Resolution no. 501 on the Procedure for the Issuance of Certificates (“Chernobyl identity cards”) to Victims of the Chernobyl Nuclear Plant Disaster (посвідчення учасника ліквідації наслідків аварії на Чорнобильській АEC).

On 31 March 1993 the Plenary Supreme Court (Пленум Верховного Суду України) adopted Resolution no. 5 “On Judicial Practice on the Establishment of Facts that are of Legal Consequence”. According to this resolution, certificates acknowledging a person’s status as a Chernobyl relief worker could be issued on the basis of a court judgment establishing participation of the person concerned in any kind of Chernobyl relief work.

In 1993 the applicant applied to the Desniansky District Court of Chernigiv (Деснянський районний суд м. Чернігова, hereafter “the Desniansky Court”) seeking a declaratory judgment, acknowledging the fact that he had been involved in the Chernobyl relief works.

In its ruling of 2 December 1993 the Desniansky Court acknowledged the fact that in 1986 the applicant had been engaged for several hours in operations near the Chernobyl nuclear power plant. This decision was mainly based on witness evidence.

On 27 December 1993 and on the basis of this ruling, a Chernobyl identity card acknowledging his status as a Chernobyl relief worker was issued to the applicant. It entitled him to special State benefits and social payments.

On 8 June 1995 the Cabinet of Ministers amended Resolution no. 501 of 25 August 1992 by adopting Resolution no. 404. By virtue of these amendments, court decisions establishing direct participation in any Chernobyl relief work were removed from the list of grounds upon which a Chernobyl identity card could be issued. In Resolution no. 404, the Cabinet of Ministers further ordered the commissions on disputed issues regarding the determination of the status of persons who assisted in dealing with the consequences of the nuclear power plant disaster (Комісія з спірних питань визначення статусу осіб, які брали участь у ліквідації наслідків аварії на Чорнобильській АЕС, hereafter “the Chernobyl disputes commissions”) of the Ministry for Protection of the Population from the Consequences of the Chernobyl Disaster (Міністерство у справах захисту населення від наслідків аварії на Чорнобильській АЕС, hereafter “the Ministry for Emergencies”) to undertake a case-by-case review of Chernobyl identity cards granted previously on the basis of a judicial ruling.

On 10 June 1997, in the context of this review process, the Chernobyl disputes commission annulled the applicant’s Chernobyl identity card, finding that the period during which he had been involved in emergency relief operations (two hours and thirty minutes of work in the alienation zone) was insufficient for the Chernobyl relief worker status. This decision was amenable to an appeal to a court of general jurisdiction.

On 25 May 1998 the Plenary Supreme Court amended its Resolution of 31 March 1993 to the effect that courts were no longer competent to establish facts related to entitlement to a Chernobyl identity card.

On 15 July 1999 the applicant unsuccessfully challenged the decision to annul his Chernobyl identity card before the Radiansky District Court of Kyiv (Радянський районний суд м. Києва) who found the impugned decision lawful and reasonable. The applicant’s subsequent appeal to the Kyiv City Court (Київський міський суд) was dismissed on 17 November 1999.

On 19 January 2001 the applicant filed a request for review of its decision of 2 December 1993 with the Desniansky Court on the ground of new circumstances. He stated that he had learned in November 2000 that his work in 1986 in three villages situated not far from Chernobyl also counted for the calculation of the overall period of relief works.

On 18 April 2001 the Desniansky Court granted the applicant’s request, quashed the judgment of 2 December 1993 and reopened the proceedings. The hearing was scheduled for 28 May 2001. By judgment of 6 July 2001 the Desniansky Court established the fact that the applicant had participated in relief works in the alienation zone and had thus been involved in relief works for a period sufficient for eligibility for the Chernobyl relief worker status. As no appeal was brought, this ruling became enforceable on 7 August 2001, whilst it remained possible for a period of one month as from the latter date to file an appeal in cassation with the Supreme Court.

On 10 August 2001 and on the basis of the judgment of 6 July 2001, the applicant filed a further request for a Chernobyl identity card with the Desniansky District Council, which informed him on 20 August 2001 that his request had been transmitted to the Department for the Protection of the Population from the Consequences of the Chernobyl Disaster of the Chernigiv Regional State Administration (Управління у справах захисту населення від наслідків Чорнобильської катастрофи Чернігівської обласної державної адміністрації; hereafter “the Department”).

On 30 August 2001 the Department refused to issue a Chernobyl identity card to the applicant as, pursuant to the applicable Resolution of the Cabinet of Ministers, a court ruling could not serve as a ground for issuing a card. By letter of 26 September 2001, it further informed the applicant that, if he wished to file a fresh application for a Chernobyl identity card, he should substantiate the period of time during which he had allegedly been involved in relief work in the alienation zone by submitting either a mission order to the alienation zone or a salary slip showing extra payments for having worked in this zone. Although the applicant could have filed an appeal with the civil court against the decision of 30 August 2001, he did not do so.

On 18 April 2002 the Supreme Court, acting on a cassation appeal lodged by the Department, quashed the judgment of 6 July 2001 and remitted the case for a fresh consideration, indicating that courts were not competent to establish facts for the purposes of obtaining the status of a Chernobyl relief worker.

On 17 June 2002 the Desniansky Court, in the parties’ presence, gave a ruling in which it refused to entertain the applicant’s request to establish the legal fact of his participation in the Chernobyl relief works, holding that it lacked competence in the matter. It pointed out that, for this purpose, a special procedure had been established and that any claim should be substantiated by specific prescribed documents. It further referred to the Resolution of the Plenary Supreme Court. The applicant appealed.

On 10 September 2002 the Chernigiv Regional Court of Appeal (Апеляційний суд Чернігівської області), in the applicant’s presence, upheld this decision. It stated, in particular, that specific administrative bodies had been designated by law to determine whether or not a person was entitled to a Chernobyl identity card, and that the courts were not competent to determine such issues. It further pointed out that decisions taken by such an administrative body could be appealed before the courts under the terms of Article 124 of the Constitution. Although this ruling was immediately enforceable, an appeal in cassation lay with the Supreme Court within a one-month time-limit. The applicant did not avail himself of this remedy.

Article 124 of the Constitution of Ukraine provides that justice is administered exclusively by the courts. The delegation of the functions of the courts, and also the appropriation of these functions by other bodies or officials is not permitted. The jurisdiction of the courts extends to all legal relations that arise in the State.

In accordance with Article 47 of the Law on the Judicial System of 7 February 2002, the Supreme Court is the highest judicial body within the system of courts of general jurisdiction in Ukraine. As prescribed by law, it examines in cassation proceedings decisions taken by lower general jurisdiction courts. Under Article 55 of this law, the Plenary Supreme Court is composed of the President of the Supreme Court, all judges of the Supreme Court, the Presidents of the higher specialised courts and their first deputies. The Plenary Supreme Court provides, inter alia, the courts of general jurisdiction with recommendations and practice directions and supervises the correctness of any recommendation or practice direction issued by higher specialised courts.

The Cabinet of Ministers Resolutions nos. 501 and 404, and the text of the Resolution of 31 March 1993 of the Plenary Supreme Court are set out in the Court’s judgment of 9 November 2004 in the case of Svetlana Naumenko v. Ukraine (no. 41984/98, §§ 68, 70 and 71).

According to the Plenary Supreme Court’s Resolution no. 15 of 25 May 1998, which amended its previous Resolution no. 5 of 31 March 1995, decisions of special administrative bodies competent to establish legal facts in relation to entitlement to the status of Chernobyl relief worker can be appealed before the first instance civil court and, subsequently, the civil court of cassation. At the material time, these courts had full jurisdiction both as regards the facts and the law.


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

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

The applicant was born in 1946 and lives in Moscow.

On 3 July 1998 Mr C., a South Korean diplomatic officer, was apprehended by the Federal Security Service of the Russian Federation (“the FSB”) while receiving certain materials from the applicant who was then deputy head of the First Asian Department in the Ministry of Foreign Affairs of the Russian Federation. On the following day Mr C. was declared persona non grata and left Russia.

On 3 July 1998 at 11.30 p.m. a group of eight armed FSB officers entered and searched the applicant’s flat. They apprehended the applicant and escorted him to the Lefortovo remand prison.

On 3 August 1998 the Ministry of Foreign Affairs dismissed the applicant for serious breaches of the Russian legislation on the civil service.

On 4 July 1998 investigators from the FSB Investigations Department interrogated the applicant as a suspect in a high treason case.

On 6 July 1998 a deputy Prosecutor General remanded the applicant in custody. The applicant’s detention was subsequently extended on several occasions.

On 13 July 1998 the applicant was charged with high treason in the presence of his legal-aid counsel, Mr Konoval. He was accused of having disclosed classified information to a South Korean intelligence agent.

On 15 July 1998 the applicant retained Mr Gervis as his defence counsel.

On 22 and 23 July, 16 September and 12 November 1998 the investigator ordered seizure of the applicant’s car and garage, 5,447 US dollars and a computer from his home, as security in respect of possible forfeiture of the applicant’s property following a conviction.

On 14 January, 12 March and 20 May 1999 the applicant attempted to challenge the orders authorising his continued detention on remand.

On 1 February and 4 June 1999 the Moscow City Court examined the applicant’s complaints and rejected them as unsubstantiated. The court found that the investigator had correctly imposed the preventive measure, having regard to the gravity of the charge and the applicant’s potential to abscond or interfere with the investigation.

On 10 June 1999 the pre-trial investigation was completed and the applicant was granted access to the case file.

On 25 August 1999 the bill of indictment was served on the applicant. The applicant was refused permission to take a copy of the indictment to his cell because the document contained classified information. The applicant could examine the indictment at the special department (спецчасть) in the remand centre.

On 16 December 1999 the Moscow City Court found the applicant guilty as charged, sentenced him to twelve years’ imprisonment and ordered confiscation of his property.

On 15 June 2000 and other dates the applicant and his lawyers appealed against the conviction.

On 25 July 2000 the Supreme Court of the Russian Federation quashed the conviction and remitted the case to the trial court for a fresh examination. It found as follows:

“In finding [the applicant] guilty of the offence under Article 275 of the Criminal Code, the [first-instance] court noted that... between early 1994 and 3 July 1998 [the applicant] had... communicated information and documents containing State secrets to the South Korean intelligence service. The [first-instance] court gave only a general list of information and documents..., without specifying which information and documents and when [the applicant] had communicated. As the offences imputed to [the applicant] were continuous in time and spanned the period from 1992-1993 to July 1998, during which period Russian legislation evolved, the determination of these issues is of crucial importance for the case.

Pursuant to Article 29 § 4 of the Constitution... the list of information constituting State secrets was to be defined in a federal law. Such a list was first established in the federal law ‘On the introduction of changes and amendments to the State Secrets Act’ of 6 October 1997. Hence, until that date there was no list of information constituting State secrets that met the requirements of the Constitution. As there is no indication in the judgment about when exactly [the applicant] transmitted information and documents, it is impossible to reach the correct conclusion as to which of the offences imputed to the applicant were committed during the period when the federal law containing a list of State secrets and compatible with the requirements of the Constitution was in force.

The case file shows that... experts from the Ministry of Foreign Affairs prepared their report [on the classified nature of the information transmitted by the applicant] on the basis of the State Secrets Act of 21 July 1993, the President’s decree of 30 November 1995 and the Government resolution of 18 September 1992, and the expert from the Main Intelligence Department of the General Headquarters of the Russian Army worked on the basis of the Security Act of 5 March 1992, the State Secrets Act of 21 July 1993 and the President’s decree of 30 November 1995.

However, it has to be taken into account that the State Secrets Act of 21 July 1993 on which the above experts relied contained no list of information constituting State secrets. Section 5 of the Act (text of 21 July 1993) referred only to the information that could be classified as State secrets. The conclusions of these reports... have to be re-assessed with regard to the above considerations.

Taking into account that the actus reus of the offence under Article 275 of the Criminal Code only comprises acts involving State secrets, the [first-instance] court should have determined which information and documents listed in the indictment and communicated by [the applicant] could have been considered as State secrets in accordance with the requirements of the laws in force at the material time.”

On 5 September 2000 the Moscow City Court began hearing the applicant’s case. Presiding Judge Gubanova and two lay judges sat on the bench.

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

On 11 September 2000 the applicant requested the court to change the measure of restraint applied to him. On the same day the court dismissed the request, finding that the dangerousness of the offence alone was a sufficient ground to remand him in custody. On 15 September 2000 the applicant appealed against that decision to the Supreme Court. The appeal was not examined. According to the applicant, by a letter of 14 March 2001, Judge Galiullin of the Supreme Court informed Judge Yegorova, President of the Moscow City Court, that “there had been no grounds to lodge an appeal against that decision of the court”. A copy of the letter was not made available to the Court, but the Government did not dispute the applicant’s rendition of the letter’s content.

On 12 September 2000 one of the lay judges was replaced by the substitute lay judge.

On 24 or 29 November 2000 the acting President of the City Court ordered a change in the court’s composition, referring to Judge Gubanova’s prolonged sick leave. He assigned Judge Koval and two new lay judges to sit in the case.

On the same day the applicant challenged the new composition of the bench as unlawful and asked for copies of the decision officialising the change and of documents confirming the lawfulness of the appointment of new lay judges, as no reasons for replacement of the lay judges had been given. On 1 December 2000 Judge Koval dismissed the complaint, finding that the case had been reassigned by order of the acting President of the City Court and that no procedural decision on that matter was required.

The applicant appealed to the Supreme Court. On 14 March 2001 the Supreme Court dismissed the appeal. It found that Judge Gubanova had been on sick leave from 15 November to 13 December 2000 and then from 18 December 2000 to 18 January 2001, and that the decision on her replacement had therefore been lawful and justified. The Supreme Court did not mention the appointment of new lay judges.

On 1 December 2000 the applicant again applied for release, claiming his innocence. The City Court dismissed the application, finding that the measure of restraint had been imposed in accordance with the law and there was no reason to change it. The applicant appealed to the Supreme Court. The appeal was not examined.

On 10 April 2001 the proceedings were adjourned until 13 June 2001, pending translation of various documents from Korean into Russian. The applicant challenged the decision on the adjournment of the proceedings, which had the effect of extending his detention; the City Court dismissed the challenge. On 6 June 2001 the Supreme Court dismissed the appeal concerning the adjournment of the proceedings as unsubstantiated.

On 10 July 2001 the entire bench was replaced and the case was assigned to Judge Medvedev and two new lay judges. No reasons for the replacement were given.

The applicant unsuccessfully challenged the substitution of the bench.

On 16 July 2001 the applicant appealed against the rejection of his challenge to the Supreme Court, which dismissed the appeal as unsubstantiated on 26 September 2001.

On 20 July 2001 the President of the City Court instructed Judge Komarova to accept the case. Judge Medvedev and both lay judges were replaced by Judge Komarova and two new lay judges, A.A. and N.A. No reasons were indicated.

The applicant challenged the new bench; his challenge was dismissed on the same day. His request to have the substitute lay judge appointed in accordance with Article 242 of the RSFSR Code of Criminal Procedure was also refused.

An appeal to the Supreme Court was examined and rejected in a summary fashion on 26 September 2001.

On 31 July 2001 lay judge A.A. stepped down for family reasons and was replaced by lay judge A.M.

The applicant unsuccessfully challenged the replacement. His appeal was dismissed in a summary fashion by the Supreme Court on 26 September 2001.

On 10, 20 and 31 July 2001 the applicant lodged three further applications for release. Those were rejected by the Moscow City Court on the same days. Each time the court determined that the measure of restraint had been imposed lawfully and there were no grounds to change or revoke it.

On 16 and 24 July and in early August 2001 the applicant filed appeals against these decisions with the Supreme Court.

On 26 September 2001 the Supreme Court examined all three appeals and upheld the decisions of the City Court.

On 14 August 2001 the Moscow City Court convicted the applicant of high treason committed in the form of espionage, an offence under Article 275 of the Criminal Code of the Russian Federation.

As regards the actus reus of the offence, the court found that during his long-term diplomatic mission in Seoul in 1992-1994 the applicant had consented to informal co-operation with South Korea’s Agency for National Security Planning (“the KCIA”) in return for regular payment. In fulfilment of the KCIA’s instructions, between early 1994 and 3 July 1998 the applicant had arranged no less than 80 meetings with the KCIA’s agent, Mr C., and communicated to the KCIA the following documents collected at the KCIA’s request:

“-secret information constituting State secrets, on Russia’s position and approach to the friendly relationship, friendship and co-operation with the Democratic People’s Republic of Korea (the DPRK), set out in two draft treaties on the basis of friendly relationships between the two states: in September 1995 – the draft treaty on the basis of a friendly relationship between Russia and DPRK; in September 1996 – the draft treaty on friendship and co-operation between Russia and the DPRK,

- in autumn 1997, secret information constituting State secrets that was contained in the updated report of the Korean Department of the MFA on military co-operation between Russia and DPRK... which he had copied and kept in his office at the MFA until communication;

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

in November 1994 – on the beginning of implementation of the inter-governmental treaty, contained in the letter addressed to the Russian Ambassador in the DPRK, dated 19 September 1994;

in August 1994 – on the Russian proposal to initiate closed negotiations in the field of military co-operation;

in May 1995 – on the position of the Russian Ministry of Defence...

on 18 March 1996 – information in the area of politically sensitive relationships between Russian and DPRK, contained in two documents of 14 March 1996...

on 20 June 1996 – on termination of the Russian-North Korean treaty on military intelligence, received by the MFA from the Russian Embassy to the DPRK on 11 June 1996;

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

in 1994: copies of documents on negotiations between deputy foreign ministers of Russia and the DPRK... list of diplomats of the DPRK Embassy, report on certain developments in the political life of the DPRK...;

in 1995: copies of... a report by the Russian Embassy in Pyongyang on the political situation in the DPRK in 1994, report on the situation in the DPRK following the death of Kim Il-sung, list of diplomats of the DPRK Embassy in Moscow... list of Russian citizens working in the DPRK;

in 1996: copies of the 1995 directory of the DPRK management cadres... a draft press-release following a visit by a State Duma delegation to Pyongyang and the list of the delegation members...

in 1997: copies of the 1996 directory of the DPRK management cadres... contract between the Russian Industria concern and the foreign relations committee of the DPRK...

in 1998: copies of the 1997 directory of the DPRK management cadres... updated report on the situation in DPRK... report by the Russian Embassy on the situation in the DPRK, information on the members of a delegation accompanying the Vice-Prime Minister of the Russian Federation on a forthcoming visit to the Republic of Korea...

In addition, between 5 January 1994 and 5 November 1996 Mr Moiseyev orally communicated to the South Korean intelligence no fewer than thirty-five pieces of information on various aspects of inter-State relationship that did not contain State secrets.

Having received from Mr C. in 1997 the list of information that was of interest for the KCIA, Mr Moiseyev copied and communicated to the South Korean intelligence service certain internal documents, such as protocols and co-operation treaties between Russia and the DPRK in various areas.”

The court established that the KCIA had paid the applicant no less than fourteen thousand US dollars in remuneration.

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

Witness “K.G.B.” stated in his pre-trial deposition that virtually all documents concerning Russia’s bilateral relationships with other countries and appraisal of the political and economic situation in these countries, which had been prepared within the Ministry of Foreign Affairs, had contained sensitive information and their disclosure or communication to other states had been highly undesirable. The court noted that on 12 September 1990 the applicant, when taking up his duties at the Ministry of Foreign Affairs, had signed an undertaking not to disclose State or work-related secrets. In their pre-trial depositions witnesses “M.A.I” and “I.A.T.” confirmed that the applicant had had access to sensitive documents which had been of interest to the South Koreans and that Mr C.’s affiliation with the intelligence service had been common knowledge among experts in Korean issues. Their depositions were read out in court and witness “T.G.D.” also made oral submissions to the same effect. Both “I.A.T” and “T.G.D.” testified that the South Koreans had had good knowledge of issues which they were not supposed to have been aware of.

The court further noted that, according to information from the External Intelligence Service of the Russian Federation (СВР РФ) and the Main Investigations Department of the Russian Army Headquarters (ГРУ ГШ ВС РФ), during his work in Seoul between June 1992 and February 1994 the applicant had had contacts with employees of the Korean intelligence services and had negligently discussed sensitive matters in unprotected areas. In 1996 it was discovered that the South Korean intelligence service regularly received confidential information to which the applicant had access and that the applicant maintained private contacts with Mr C. in return for remuneration. Witness “M.”, an employee of the Federal Security Service, testified to the court that in January 1996 he had contacted the applicant and advised him of Mr C.’s official mission as a representative of the KCIA in Moscow. The applicant had acknowledged that he had been aware of this fact.

Referring to a letter from the Counter-intelligence Operations Department of the Federal Security Service of the Russian Federation (УКРО ДКР ФСБ РФ) of 9 July 1998, the court established that in February 1997 the External Intelligence Service had provided the Federal Security Service with copies of a “draft order on the organisation of the work of KCIA agents, resident in Moscow in 1997” and the applicant’s “personal residence file”, from which it followed that the applicant had been recruited by the KCIA during his stay in South Korea and enlisted as a functioning agent of that service.

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

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

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

Finally, the court dismissed in the following terms the applicant’s argument that he could not be held liable for disclosure of State secrets because there had been no list of classified information prior to the amendment of the State Secrets Act of 6 October 1997:

“Pursuant to section 2 of the State Secrets Act of 6 October 1997, the list of information constituting State secrets is the aggregate of categories of information which can be classified as State secrets... This definition was included in the terminology part [of the law] in order to bring its original wording into compliance with the Russian Constitution. Since the information constituting State secrets cannot be explicitly enumerated in the law, the approach chosen was that the list was to be understood as an aggregate of the relatively generic categories of information described in section 5 of the new law [i.e. that of 6 October 1997].

Hence, there is merely an unimportant semantical difference between section 5 of the State Secrets Act in its 1993 wording and that of 1997. By no means does it imply that there were no legal instruments countering encroachments upon the fundamentals of the constitutional structure and the security of the Russian State until 6 October 1997...

Nor are the arguments to the effect that the actus reus of the offence under Article 275 of the Criminal Code only comprises acts involving State secrets based on the law. The object of espionage may include information constituting State secrets, as well as other information that is being collected and transmitted at the request of a foreign intelligence service for use detrimental to the external security of the Russian Federation...”

Having regard to the applicant’s clean criminal record, age, state of health, lengthy detention in custody, positive work references and the absence of aggravating circumstances, the court invoked the “special-circumstances” clause of Article 64 of the Code of Criminal Procedure and sentenced him to a shorter term than that provided in the relevant sanction, specifically to four years and six months’ imprisonment in a strict-security correctional colony, with account for the time served from 4 July 1998, and confiscation of his property.

On 26 December 2001 and other dates the applicant and his three lawyers appealed to the Supreme Court against the conviction. They alleged violations of the applicant’s rights as guaranteed by the Russian Constitution and various Convention provisions. The points of appeal touched on substantially the same issues as those raised before this Court.

On 9 January 2002 the Supreme Court upheld the conviction. The court rejected the arguments by the defence and found that the first-instance court and the investigators had fully complied with both national and international law throughout the proceedings. There had been no violations of law capable of rendering the judgment unfounded or unlawful. The Supreme Court reproduced verbatim the city court’s reasoning concerning liability for disclosure of State secrets.

From 4 July 1998 to 25 January 2002 the applicant was held in the Lefortovo remand prison, run by the Federal Security Service.

According to the Government, the applicant was held in a two-person cell measuring 8.2 sq. m. The cell was equipped with heating, mandatory ventilation, a window that could be opened, furniture, a fridge, a TV set, a sink and a lavatory. The applicant had an individual sleeping place and bedding. He received food three times a day in accordance with standard norms. The applicant was given cutlery and personal hygiene items, as well as books and magazines from the library. He could exercise outside for one hour a day.

In the applicant’s submission, the cell of 8.2 sq. m was designed for three inmates and contained three bunk beds fixed to the concrete floor and walls. He shared the cell with two other detainees in February and March 2000 and then from 19 September 2000 to 15 January 2001. The furniture consisted of two small tables and an open shelf, which the detainees mockingly referred to as “a TV set” because all the items on the shelf were on display. Contrary to the Government’s assertion, there was no fridge or TV set.

The lavatory in the corner of the cell had no flush system and inmates filled a pail with water from the sink to eliminate waste. The toilet was not separated from the living area; the applicant had to use the toilet and apply his treatment for haemorrhoids in front of his cellmates and the wardens who observed them through a peephole in the door. Detainees cleaned the cell themselves. No broom, dustbin or detergent was given to them. Once in a while they received 100 g of sodium hydrate to disinfect the lavatory. The applicant had access to the showers once a week and received 50 g of laundry soap for washing.

The cell was dimly lit by two 40-60-watt bulbs, fixed in the ceiling and covered with metal bars and opaque glass. The artificial light was never switched off. The window pane also had frosted glass. The exercise courts were located on the roof of the facility and measured about 10 sq. m. The external walls were three metres high and the opening to the sky was protected with metal bars and netting.

On 5 December 2001 the applicant lodged a complaint with the Lefortovskiy District Court of Moscow about the general conditions of his detention, inadequate medical assistance, meagre food provisions and lack of privacy in the cell. On the same day the applicant was visited by the head of the remand prison and senior medical officer and asked about the reasons for lodging the above complaint. The head of the prison had a printed copy of the applicant’s complaint, originally hand-written, which had never been addressed to the prison administration.

On 17 December 2001 the Lefortovskiy District Court invited the applicant to identify the authority against which he was complaining and to pay the court fee by 27 December 2001. The applicant received this decision only on 27 December 2001. On the same day the court disallowed the applicant’s complaint because the instructions of 17 December 2001 had not been fulfilled; the copy of that decision was served on the applicant on 8 January 2002 and on the following day his conviction became final.

The applicant was transported from the remand centre to the courthouse and back more than 150 times.

The prison vans in which the applicant was transported had a passenger cabin which was 3.8 m long, 2.35 m wide, and 1.6 m high. The cabin was divided into two multi-occupancy cubicles, designed for twelve inmates each, and one single-occupancy cubicle. The cubicles were equipped with hard benches. In addition to the detainees’ cubicles, the cabin contained a 1.5-m wide lobby for two police officers. According to the Government, the applicant was placed in a single-occupancy cubicle on the basis of a written request by the prison administration, in order to prevent him from communicating with other detainees (a copy of that request has not been provided to the Court). The applicant submitted that he was usually placed in a multi-occupancy cubicle with up to eighteen other detainees, who had stood or sat on one another’s laps. Even when he was confined to the tiny solitary cubicle, he had had to share it with another person and they had taken turns sitting on each other’s laps. He was never transported alone and he could not be isolated from others because the van was so overcrowded.

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

According to the Government, the travel time from the Lefortovo prison to the Moscow City Court and back did not exceed thirty minutes. The applicant pointed out that for attendance at court hearings he had usually been taken out of the detention centre early in the morning but was never brought back until ten to fifteen hours later. The road from the Moscow City Court to the Lefortovo facility took much longer than thirty minutes because the van called en route at either the Matrosskaya Tishina or Butyrka remand prison, both of which served as assembly points for detainees. As a result, the travel time was as long as three to eight hours. By way of example, the applicant gave the following figures: on 26 December 2000 the travel time from the court to the Lefortovo prison was 3 h 10 min; 11 January 2001 – 4 h 30 min; 17 January 2001 – 4 h 15 min; 5 February 2001 – 3 h 20 min; 27 July 2001 – 3 h 30 min (to the court) and 4 h 20 min (from the court); 30 July 2001 – 4 h 50 min; 3 August 2001 – 5 h 20 min; 9 August 2001 – 5 h 50 min (until 1.10 a.m. on the following day).

The applicant gave the following account of the conditions of his transport in a complaint of 25 December 2000 addressed to the Prosecutor General’s Office (resent on 25 January 2001):

“On 22 December 2000 [we] left the premises of the Moscow City Court around 5 p.m., and I was brought back to the FSB (Lefortovo) remand prison at 1.15 a.m. on the following morning, that is, 8 hours later. During the entire period I was kept in an unheated van [used] for the transport of detainees, although the outside temperature was approximately -10o C, without anything to eat or drink and without access to a toilet. Each cubicle of the van contained up to 18 persons: they had to stand or to sit on each other’s laps. Following this ‘trip’ I had the symptoms of flu, I had an acute attack of gastroduodenitis, [suffered from] a headache and other symptoms resulting from a lengthy period of sitting on cold benches in the frost. This situation was in no way exceptional: on 19 December [2000], for example, we started from the courthouse of the Moscow City Court at approximately at 9.30 p.m., although the court hearing ended at about 5 p.m. We arrived at the detention centre at about 11 p.m.... Similar incidents also occurred thereafter: instead of the 10-15 minutes normally required for a ride, [the journey] to the remand centre takes, as a rule, three to eight hours.”

On 28 April 2001 the commander of the police convoy regiment replied to the applicant that an unidentified regiment officer who had violated the applicable regulations had been disciplined.

On 13 February 2001 the applicant unsuccessfully attempted to complain about the conditions of transportation to the administration of the remand prison. A similar complaint lodged with the Prosecutor General’s office on 13 August 2001 evoked the following response from the Moscow City Department of the Interior on 23 November 2001:

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

In August 2001 the applicant complained of degrading and inhuman conditions of transport to the trial judge. His statements were entered in the trial record and the judge promised to get in touch with the relevant authorities to find a way to improve the situation.

The applicant also mentioned the appalling conditions of his transport to and from the remand centre in his complaint of 5 December 2001 to the Lefortovskiy District Court (see paragraph 59 above).

On the days of court hearings the applicant was held in the convoy cells of the Moscow City Court. On more than a dozen occasions – on 7 and 21 September, 1, 15, 20 and 23 November, 5 and 19 December 2000, 11 and 29 January, 1 February, 5 and 21 March 2001 – the applicant was brought to the courthouse but no hearings were held, and he remained in the convoy cell for the entire day.

According to the Government, the convoy cells had standard dimensions of 1.95 m (width) by 1 m (depth) by 3.1 m (height) and the applicant was held there alone to prevent him from communicating with other detainees. The applicant submitted that the convoy cell measured one metre square and was nicknamed a “stone tube” («каменный стакан») because the floor and walls were covered with an abrasive concrete lining and the height was almost twice the width or depth. He was never alone in the convoy cell and occasionally he had to share it with a consumptive inmate.

The Government indicated that convoy cells were equipped with a bench fixed to the floor, mandatory ventilation, heating, lighting and a metal door with a peephole. In cold seasons the average internal temperature was 22o C. Cells were cleaned daily and disinfected weekly. The convoy premises had a toilet room, to which detainees had access at their discretion.

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

The applicant had no family visits from 3 July 1998 to 9 April 1999.

On 25 January 1999 the applicant’s wife asked the investigator for permission to see her husband. Her request was refused on 10 February 1999 with reference to the nature of the applicant’s case and the gravity of the charge against him. The investigator considered a visit “inopportune”.

On 22 February 1999 the applicant asked the investigator to allow his wife to visit him. Four days later his request was refused, as the visit was deemed to be “inopportune at that moment”.

On 10 March 1999 the applicant’s wife complained about the investigator’s decision to the Prosecutor General’s office. By a letter of 30 March 1999, the Chief Military Prosecutor’s office responded that by law the investigator had full discretion in the matter of family visits and that he had acted within his competence.

On 18 March 1999 the applicant wrote a complaint to the Chief Military Prosecutor’s office. He indicated, in particular, that he had not seen his family for more than eight months and that the investigator had offered to permit him a family visit in exchange for withdrawal of a judicial complaint concerning the unlawfulness of his detention. On 2 April 1999 the prosecutor’s office responded that the FSB Investigations Department had been asked “to settle the issue” of family visits.

On 5 April 1999 the applicant applied for permission for his wife and daughter to visit him. Permission was granted to his daughter only and on 9 April 1999 she paid him a visit.

On 11 May 1999 the applicant asked for permission to see his wife. On 24 May 1999 his wife was allowed to see him.

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

The applicant had no family visits from 3 March to 5 September 2000.

On 25 July 2001 the applicant’s daughter asked to see her father. She was refused because on 9 June 2001 she had already come to see him with her mother, which counted as two visits, whilst the law only provided for two visits by relatives a month.

On 26 July 2001 the applicant’s wife complained about the refusal to the Moscow City Court and the Prosecutor General’s office alleging, inter alia, a violation of Article 8 of the Convention. A week later she was granted permission to visit the applicant.

Between 7 December 2001 and 10 January 2002 no permits for family visits were issued.

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

On 26 April and 4 May 2000 Ms Moskalenko, one of the applicant’s lawyers, applied to the Supreme Court of the Russian Federation for an unrestricted permit to visit the applicant. In both cases the registry clerk gave her a printed permit valid for “[one] visit”. However, yielding to Ms Moskalenko’s demands, on both occasions the clerk made handwritten corrections, changing the singular to the plural.

On 26 April 2000 the staff of the Lefortovo remand centre treated the Supreme Court’s document as a single-use permit because it had been corrected by hand, whereas it originally referred to a single visit.

On 5 May 2000 Ms Moskalenko attempted to file a written request to the director of the Lefortovo prison for an unrestricted permit to visit the applicant. The facility staff refused to accept the request and told her that she could not see the director.

Subsequently a deputy director of the Lefortovo prison visited the acting director of legal services office no. 10, where Ms Moskalenko worked, and told her that Ms Moskalenko had forged the permit to visit the applicant; he threatened Ms Moskalenko with criminal prosecution. Ms Moskalenko denied all those allegations.

On 1 June 2000 the Supreme Court issued Ms Moskalenko with a printed permit valid for “[several] visits” to the applicant. According to the Government, on 23 May 2001 Ms Moskalenko was refused permission to visit the applicant as she did not provide a mandate by her legal services office for the defence of his interests.

On 21 August, 12 September and 17 October 2001 Ms Kostromina, one of the applicant’s lawyers, unsuccessfully applied to the trial court for a multiple-use permit to visit the applicant.

On 25 October 2001 the Constitutional Court held that section 16 § 15 of the Custody Act, which allowed the authorities to require that a visit of a detainee by his advocate be authorised by the investigator or trial court, was incompatible with the constitutional right to legal assistance in criminal cases, in that it made the exercise of the right to defence conditional on a discretionary decision by the authority in charge of the case (Ruling no. 14P).

On 10 January 2002, after the conviction had become final, Ms Kostromina received an unrestricted permit to visit the applicant.

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

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

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

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

On 29 October 2001 the applicant lodged a complaint about the inadequate conditions for preparation of the defence with the Moscow City Court. The complaint remained unanswered.

The Criminal Code of the Russian Soviet Federalist Socialist Republic of 27 October 1960 (in force until 31 December 1996) provided as follows:

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

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

The Criminal Code of the Russian Federation of 13 June 1996 (in force from 1 January 1997) provides as follows:

“High treason, that is, espionage, disclosure of State secrets or assistance otherwise provided to a foreign state, a foreign organisation or their representatives for ... subversive activities undermining the external security of the Russian Federation, committed by a Russian national, shall be punishable by twelve to twenty years’ imprisonment and confiscation of property...”

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

The Constitution of 12 December 1993 provides:

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

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

On 21 September 1993 the State Secrets Act (Law no. 5485-1) was enacted. Section 5 provided as follows:

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

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

(3) information concerning foreign policy and trade:

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

Section 9 described the procedure for classification of information as State secrets. Authority to classify information was delegated to the heads of State agencies. The Act did not contain a list of such officials, which was to be approved by the President. The President was also to approve a List of information classified as State secrets, which was to be officially published.

On 16 March, 26 and 27 October 1995 the State Duma, noting that the absence of a list of classified information “deprived the law-enforcement agencies of a legal basis for the performance of their duty to protect the security of the State, community and individuals”, repeatedly petitioned the Government to prepare for the President’s approval a draft decree containing the list of classified information.

On 30 November 1995 the President approved Decree no. 1203 “On the list of information classified as State secrets”. Paragraphs 23-30 of the list provided for classification of information concerning foreign policy and trade and designated the Ministry of Foreign Affairs, the Ministry of Defence, the Ministry for Foreign Economic Relations, the External Intelligence Service and other agencies as bodies authorised to classify such information.

On 20 December 1995 the Constitutional Court examined the compatibility of the State Secrets Act with the Constitution and found as follows:

“4... The State may classify as State secrets information in the field of defence, economic and other activities, disclosure of which may undermine national defence and the security of the State. In this connection Article 29 § 4 of the Constitution provides that the list of information constituting State secrets is to be adopted in the form of a federal law. The State may also determine forms and measures for the protection of State secrets, including by way of establishing criminal liability for its disclosure and communication to a foreign State.

However, by virtue of the above-mentioned constitutional provision, criminal liability for disclosure of State secrets to a foreign state is only justified on condition that the list of information constituting State secrets is established in an officially published and universally accessible federal law. Pursuant to Article 15 § 3 of the Constitution, no law-enforcement decision, including a conviction by a court, may be grounded on an unpublished legal act.

The requirements of Article 29 § 4 of the Constitution are fulfilled by the State Secrets Act of 21 July 1993 which defines the concept of State secrets and indicates the information classifiable as State secrets.

Accordingly, establishing criminal liability for disclosure of State or military secret to a foreign State is not incompatible with Articles 15 § 3, 29 § 4 and 55 § 3 of the Constitution.”

On 6 October 1997 a federal law (no. 131-FZ) amending the State Secrets Act was enacted. Section 5 of the State Secrets Act was changed to read as follows:

“State secrets shall include: ...

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

The amended section 5 listed categories of information constituting State secret.

On 17 April 2000 the Supreme Court, having considered the prosecutor’s appeal against the acquittal of Mr Nikitin on charges under Articles 275 and 283 § 1 of the Criminal Code (case no. 78-000-29), upheld the acquittal in the following terms:

“Having acquitted Mr Nikitin for the lack of constituting elements of a criminal offence in his acts, the [first-instance] court proceeded from the premise that between 12 December 1993 and 30 November 1995 there had been no legal definition of information constituting State secrets...

Pursuant to Article 29 § 4 of the Russian Constitution... the list of information constituting State secrets was to be defined in a federal law. Such a list was first determined in the federal law ‘On the introduction of changes and amendments to the State Secrets Act’ of 6 October 1997. Taking into account that during the period when Mr Nikitin committed his acts [in 1995], there was no list of information constituting State secrets that met the requirements of the Constitution, the information that he had collected... and disclosed... cannot be said to have contained State secrets... As the actus reus of offences under Articles 275 and 283 of the Criminal Code only refers to acts involving State secrets, the same acts involving other information cannot be held to be high treason and disclosure of State secrets...

The State Secrets Act [in its 1993 version] could not have been applied to Mr Nikitin as it did not contain a list of information constituting State secrets, since section 5 of that Act only referred to information that could be classified as State secrets. However, Article 29 § 4 of the Constitution required that the said list be established in a federal law. As section 5 of the State Secrets Act and Article 29 § 4 of the Constitution refer to different subjects, the court cannot agree with the argument of the appeal to the effect that the difference between these provisions is merely semantic...”

Section 21 of the State Secrets Act and section 2 of the Law “On additional safeguards for the social protection of judges and administrative staff of the courts of the Russian Federation” stipulate that judges with security clearance are eligible for additional financial benefits. The scale and amount of these benefits depend on the level of security clearance. Authority to set the specific amounts of such benefits is delegated to the Government and other executive bodies, such as the Ministry of Justice.

The RSFSR Code of Criminal Procedure provided:

“Every case must be examined by one and the same composition. If one of the judges is no longer able (лишен возможности) to take part in the proceedings he must be replaced by another judge, and the court proceedings must restart from the beginning, except in cases described in Article 242.”

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

The Courts Organisation Act (RSFSR Law of 8 July 1981) establishes that a court President may appoint judges as the presiding judges and distribute duties between judges (sections 26 (1) and 37 (4) and (11)). The Act stipulates that lay judges have the same rights as professional judges in the administration of justice (section 11).

The Status of Judges Act (Law no. 3132-I of 26 June 1992) provides:

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

(1) organises the court’s work;

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

The Constitution establishes that a judicial decision is required before a defendant can be detained or his or her detention extended (Article 22). At the material time, a decision ordering pre-trial detention could be taken by a prosecutor or a court (Articles 11, 89 and 96 of the RSFSR Code of Criminal Procedure, the “CCrP”).

Before 14 March 2001, pre-trial detention was authorised if the accused was charged with a criminal offence carrying a sentence of at least one year’s imprisonment (Article 96 of the CCrP). The amendments of 14 March 2001 repealed the provision that permitted defendants to be remanded in custody on the sole ground of the dangerous nature of the criminal offence they had committed.

After arrest a suspect could be placed in custody “pending investigation” for an initial two-month period (Article 97 of the CCrP). Further extensions could be granted by prosecutors at ascending levels of jurisdiction.

Once the investigation had been completed and the defendant had received the charge sheet and finished reading the case file, the file was submitted to a trial court. From that day the defendant’s detention was “before the court” (or “pending trial”). Until 14 March 2001 the Code of Criminal Procedure set no time-limit for detention “pending trial”. On 14 March 2001 a new Article 239-1 was inserted which established that the period of detention “during trial” could not normally exceed six months from the date the court received the file.

The Custody Act (Federal Law on the Detention of Suspects and Defendants, no. 103-FZ of 15 July 1995) provides as follows:

“The Ministry of Justice, the Ministry of the Interior, the Federal Security Service, the Ministry of Defence shall adopt, upon approval of the Prosecutor General, the Internal Rules for Remand Centres, for the purpose of ensuring order in remand centres.

The Internal Rules establish the procedure for:

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

(15) organising meetings between suspects and defendants and the persons listed in section 18 of the present Act...”

“Suspects and defendants have the right:

(5) to meet with relatives and other persons listed in section 18;

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

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

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

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

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

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


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

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

The applicant was born in 1972 and lives in Pruszcz Gdański.

On 8 June 2004 he was arrested by the police.

On 9 June 2004 the Gdańsk District Court (Sąd Rejonowy) decided to place the applicant in pre-trial detention as there were reasonable grounds for suspecting that he had been dealing in drugs. The court also cited the risk that the applicant would go into hiding, in view of the likelihood of a heavy sentence.

On 2 September and 4 November 2004 the applicant’s detention was extended. In addition to the two grounds given previously, the District Court cited the need to ensure the proper conduct of the investigation.

On 26 October 2004 the applicant was indicted before the Gdańsk District Court. His pre-trial detention was subsequently extended.

As the length of the applicant’s detention had reached the statutory timelimit of two years laid down in Article 263 § 3 of the Code of Criminal Procedure (Kodeks postępowania karnego), the District Court made a series of applications to the Gdańsk Court of Appeal (Sąd Apelacyjny) for the applicant’s detention to be extended beyond that term. On 18 May and 17 August 2006 the Gdańsk Court of Appeal granted the applications and extended his detention, citing the reasonable suspicion against the applicant and the length of the sentence that was likely to be imposed. The Court also considered that the District Court could not be held responsible for not having completed the trial as there had been objective procedural difficulties in hearing all the witnesses.

The first hearing was held on 21 January 2005. Subsequently, hearings were held at regular intervals.

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

On 17 October 2006 the Gdańsk Court of Appeal extended the applicant’s detention until 20 November 2006. It cited the reasonable suspicion against the applicant and found that detention was necessary to secure the proper conduct of the proceedings given the likelihood of a heavy sentence.

The applicant’s detention on remand was not extended beyond that date and on 20 November 2006 he was released.

On 4 August 2006 the applicant lodged a complaint under section 5 of the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”). On 3 November 2006 the Gdańsk Regional Court dismissed the complaint, finding that the trial had been conducted speedily and with no periods of inactivity.

The proceedings are still pending before the trial court.

The relevant domestic law and practice concerning pre-trial detention (aresztowanie tymczasowe), the grounds for its extension and release from detention, and the rules governing other “preventive measures” (środki zapobiegawcze) are set out in the Court’s judgments in the cases of Gołek v. Poland (no. 31330/02, §§ 27-33, 25 April 2006), and Celejewski v. Poland (no. 17584/04, §§ 22-23, 4 August 2006).

The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings are stated in the Court’s decisions in the cases of Charzyński v. Poland (no. 15212/03 (dec.), §§ 1223, ECHR 2005-V), and Ratajczyk v. Poland (no. 11215/02 (dec.), ECHR 2005VIII) and judgment in the case of Krasuski v. Poland (no. 61444/00, §§ 34-46, ECHR 2005-V).


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

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

The applicant was born in 1952 and lives in Pskov, a town in the Pskov Region.

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

On 13 August 2002 the Pskov Town Court fixed a new amount of periodic benefits. This judgment became binding on 24 September 2002. According to the Government, this judgment was fully enforced by 31 December 2006. According to the applicant, this judgment has still not been enforced, because from 1 January 2007 the periodic benefits were reduced again.

On 11 June 2003 the Town Court awarded 15,000 Russian roubles (“RUB”) as interest for delayed payment. This judgment became binding on 15 July 2003. On the welfare authority’s request, on 20 February 2004 the Presidium of the Pskov Regional Court quashed the judgment on supervisory review, on the ground of misapplication of material law.

On 21 July 2003 the Justice of the Peace of Court District 31 of Pskov awarded RUB 3,000 as interest for delayed payment. This judgment became binding on 9 October 2003. On the welfare authority’s request, on 14 May 2004 the Presidium of the Pskov Regional Court quashed the judgment on supervisory review, on the ground of misapplication of material law.

On 28 October 2003 the Town Court awarded arrears and fixed a new amount of periodic payments. This judgment became binding on 10 November 2003. According to the Government, this judgment was fully enforced by 31 December 2005. According to the applicant, this judgment has still not been enforced, because the periodic payments continue to be miscalculated.

On 29 December 2003 the Town Court awarded compensation of inflationary loss caused by the delayed enforcement of an earlier judgment. This judgment became binding on 9 January 2004 and was enforced on 8 July 2005.

On 1 June 2005 the Town Court ordered the applicant to be provided in 2005 with a decent flat of at least 65 m². This judgment became final on 15 June 2005 and was enforced on 29 December 2006.

Under section 9 of the Federal Law on Enforcement Proceedings of 21 July 1997, a bailiff must enforce a judgment within two months. Under section 242.2.6 of the Budget Code of 31 July 1998, the Ministry of Finance must enforce a judgment within three months.


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

The applicant was born in 1958 and lives in Plovdiv.

On 27 July 1993 the applicant, who was a taxi driver, hit a pedestrian with his car. The applicant brought the victim to the nearest hospital, where he died several days later despite the efforts of the medical doctors.

On 4 August 1993 or 20 October 1993 the applicant was charged with involuntary manslaughter.

On an unspecified date in the beginning of 1994, after the completion of the investigation, an indictment was submitted to the Plovdiv Regional Court. The relatives of the victim joined the proceedings as civil plaintiffs.

After a hearing, on 18 March 1994 the court convicted the applicant and sentenced him to one year's imprisonment, suspended. The court also ordered the suspension of the applicant's driving licence for two years and ordered him to pay damages to the relatives of the victim.

Upon the applicant's appeal, on 10 June 1994 the Supreme Court quashed the lower court's judgment and referred the case back for reexamination at the investigation stage, instructing the competent authorities to commission a new expert report in order to clarify certain additional facts.

The renewed investigation lasted until 5 December 1995 when a fresh indictment was submitted to the Plovdiv Regional Court.

By judgment of 3 June 1997 the Regional Court convicted the applicant and sentenced him to one year's imprisonment, suspended. The court also ordered the suspension of the applicant's driving licence for one year.

On 10 June 1997 the applicant appealed to the Supreme Court of Cassation.

On 14 November 1997 the Supreme Court of Cassation, acting as a court of appeal in a chamber of three judges, dismissed the appeal.

On 6 May 1998 the applicant filed with the Plovdiv Regional Court a petition for review (cassation), which would have fallen to be examined by a five-member chamber of the Supreme Court of Cassation in the transitional period following the 1998 legislative amendments (see paragraph 20 below).

On an unspecified date the Plovdiv Regional Court transmitted the petition and the case file to the Supreme Court of Cassation.

On 24 March 1999 a judge of the Supreme Court of Cassation dismissed as time-barred the petition for review (cassation) and ordered the return of the case file back to the Regional Court. The order was made on a standard form which stated that the petition for review had been dismissed as time-barred, without mentioning any dates. The name of the judge who issued the order was not indicated.

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

By amendment of the Code of Criminal Procedure published on 20 February 1998 and in force as of 1 April 1998, the system of appeals against convictions and sentences was reformed. In accordance with section 37 § 2 of the transitory provisions to the Act amending the Code of Criminal Procedure, the timelimit for submission of a petition for review (cassation) against judgments delivered prior to the amendment's entry into force was six months from the date on which the judgment had become enforceable. Under Article 371 § 1 of the Code of Criminal Procedure, as in force at the relevant time, appellate judgments upholding the first instance judgment became enforceable on the date of delivery.


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

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

The first applicant is Roy H.W. Johnston, who was born in 1930 and is a scientific research and development manager. He resides at Rathmines, Dublin, with the second applicant, Janice Williams-Johnston, who was born in 1938; she is a school-teacher by profession and used to work as director of a play-group in Dublin, but has been unemployed since 1985. The third applicant is their daughter, Nessa Doreen Williams-Johnston, who was born in 1978.

The first applicant married a Miss M in 1952 in a Church of Ireland ceremony. Three children were born of this marriage, in 1956, 1959 and 1965.

In 1965, it became clear to both parties that the marriage had irretrievably broken down and they decided to live separately at different levels in the family house. Several years later both of them, with the other’s knowledge and consent, formed relationships and began to live with third parties. By mutual agreement, the two couples resided in self-contained flats in the house until 1976, when Roy Johnston’s wife moved elsewhere.

In 1978, the second applicant, with whom Roy Johnston had been living since 1971, gave birth to Nessa. He consented to his name being included in the Register of Births as the father (see paragraph 26 below).

Under the Constitution of Ireland (see paragraphs 16-17 below), the first applicant is unable to obtain, in Ireland, a dissolution of his marriage to enable him to marry the second applicant. He has taken the following steps to regularise his relationship with her and with his wife and to make proper provision for his dependents.

(a) With his wife’s consent, he has consulted solicitors in Dublin and in London as to the possibility of obtaining a dissolution of the marriage outside Ireland. His London solicitors advised that, in the absence of residence within the jurisdiction of the English courts, he would not be able to do so in England, and the matter has therefore not been pursued (see also paragraphs 19-21 below).

(b) On 19 September 1982, he concluded a formal separation agreement with his wife, recording an agreement implemented some years earlier. She received a lump-sum of IR£8,800 and provision was made for maintenance of the remaining dependent child of the marriage. The parties also mutually renounced their succession rights over each other’s estates.

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

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

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

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

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

The second applicant, who is largely dependent on the first applicant for her support and maintenance, is concerned at the lack of security provided by her present legal status, in particular the absence of any legal right to be maintained by him and of any potential rights of succession in the event of intestacy (see also paragraph 23 below). As is permitted by law, she has adopted the first applicant’s surname, which she uses amongst friends and neighbours, but for business purposes continues to use the name Williams. According to her, she has felt inhibited about telling employers of her domestic circumstances and although she would like to become an Irish citizen by naturalisation, she has been reluctant to make an application, not wishing to put those circumstances in issue.

The third applicant has, under Irish law, the legal situation of an illegitimate child and her parents are concerned at the lack of any means by which she can, even with their consent, be recognised as their child with full rights of support and succession in relation to them (see paragraphs 30-32 below). They are also concerned about the possibility of a stigma attaching to her by virtue of her legal situation, especially when she is attending school.

The first and second applicants state that although they have not practised any formal religion for some time, they have recently joined the Religious Society of Friends (the Quakers) in Dublin. This decision was influenced in part by their concern that the third applicant receives a Christian upbringing.

The Constitution of Ireland, which came into force in 1937, includes the following provisions:

"40.3.1o The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.

40.3.2o The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.

41.1.1o The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.

41.1.2o The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.

41.3.1o The State pledges itself to guard with special care the institution of Marriage, on which the family is founded, and to protect it against attack.

41.3.2o No law shall be enacted providing for the grant of a dissolution of marriage.

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

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

As a result of Article 41.3.2o of the Constitution, divorce in the sense of dissolution of a marriage (divorce a vinculo matrimonii) is not available in Ireland. However, spouses may be relieved of the duty of cohabiting either by a legally binding deed of separation concluded between them or by a court decree of judicial separation (also known as a divorce a mensa et thoro); such a decree, which is obtainable only on proof of commission of adultery, cruelty or unnatural offences, does not dissolve the marriage. In the remainder of the present judgment, the word "divorce" denotes a divorce a vinculo matrimonii.

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

The Irish courts have consistently held that the "Family" that is afforded protection by Article 41 of the Constitution is the family based on marriage. Thus, in The State (Nicolaou) v. An Bord Uchtála The Adoption Board 1966 Irish Reports 567, the Supreme Court said:

"It is quite clear from the provisions of Article 41, and in particular section 3 thereof, that the family referred to in this Article is the family which is founded on the institution of marriage and, in the context of the Article, marriage means valid marriage under the law for the time being in force in the State. While it is quite true that unmarried persons cohabiting together and the children of their union may often be referred to as a family and have many, if not all, of the outward appearances of a family, and may indeed for the purposes of a particular law be regarded as such, nevertheless as far as Article 41 is concerned the guarantees therein contained are confined to families based upon marriage."

The Supreme Court has, however, held that an illegitimate child has unenumerated natural rights (as distinct from rights conferred by law) which will be protected under Article 40.3 of the Constitution, such as the right to be fed and to live, to be reared and educated, to have the opportunity of working and of realising his or her full personality and dignity as a human being, as well as the same natural rights under the Constitution as a legitimate child to "religious and moral, intellectual, physical and social education" (G v. An Bord Uchtála 1980 Irish Reports 32).

Article 41.3.3o of the Constitution provides:

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

A series of judicial decisions has established that the foregoing provision does not prevent the recognition by Irish courts, under the general Irish rules of private international law, of certain decrees of divorce obtained, even by Irish nationals, in another State. Such recognition used to be granted only if the parties to the marriage were domiciled within the jurisdiction of the foreign court at the time of the relevant proceedings (Re Caffin Deceased: Bank of Ireland v. Caffin 1971 Irish Reports 123; Gaffney v. Gaffney 1975 Irish Reports 133; however, since 2 October 1986 a divorce will be recognised if granted in the country where either spouse is domiciled (Domicile and Recognition of Foreign Divorces Act 1986). To be regarded as domiciled in a foreign State, a person must not only be resident there but also have the intention of remaining there permanently and have lost the animus revertendi. Moreover, the foreign divorce will not be recognised if domicile has been fraudulently invoked before the foreign court for the purpose of obtaining the decree.

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

Persons who, like the first and second applicants, are living together in a stable relationship after the breakdown of the marriage of one of them are unable, during the lifetime of the other party to that marriage, to marry each other in Ireland and are not recognised there as a family for the purposes of Article 41 of the Constitution (see paragraphs 17 and 18 above).

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

In general, the married member of the couple remains, at least in theory, under a continuing legal obligation to maintain his or her spouse. In addition, testamentary dispositions by that member may be subject to the rights of his or her spouse or legitimate children under the Succession Act 1965.

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

(a) have no access, in the event of difficulties arising between them, to the system of barring orders instituted to provide remedies in respect of violence within the family (Family Law (Maintenance of Spouses and Children) Act 1976, as amended by the Family Law (Protection of Spouses and Children) Act 1981); they can, however, obtain analogous relief by seeking a court injunction or declaration;

(b) do not enjoy any of the rights conferred by the Family Home Protection Act 1976 in relation to the family home and its contents, notably the prohibition on sale by one spouse without the other’s consent and the exemption from stamp duty and Land Registry fees in the event of transfer of title between them;

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

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

(e) are unable jointly to adopt a child (see also paragraph 29 below).

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

The Illegitimate Children (Affiliation Orders) Act 1930, as amended by the Family Law (Maintenance of Spouses and Children) Act 1976 and the Courts Act 1983, provides procedures whereby the District Court or the Circuit Court may make an "affiliation order" against the putative father of a child directing him to make periodic payments in respect of the latter’s maintenance and also whereby the court may approve a lump-sum maintenance agreement between a person who admits he is the father of an illegitimate child and the latter’s mother. Neither of these procedures establishes the child’s paternal affiliation for all purposes, any finding of parentage being effective solely for the purposes of the proceedings in question and binding only on the parties.

Under the Registration of Births and Deaths (Ireland) Act 1863, as amended by the Births and Deaths Registration (Ireland) Act 1880, the Registrar may enter in the register the name of a person as the father of an illegitimate child if he is so requested jointly by that person and the mother. The act of registration does not, however, establish paternal affiliation.

The mother of an illegitimate child is his sole guardian as from the moment of his birth (section 6(4) of the Guardianship of Infants Act 1964) and has the same rights of guardianship as are jointly enjoyed by the parents of a legitimate child. The natural father can apply to the court under section 11(4) of the same Act regarding the child’s custody and the right of access thereto by either parent; however, he cannot seek the court’s directions on other matters affecting the child’s welfare nor is there any means whereby he can be established as guardian of the child jointly with the mother, even if she consents.

An illegitimate child may be legitimated by the subsequent marriage of his parents, provided that, unlike the first and second applicants, they could have been lawfully married to one another at the time of the child’s birth or at some time during the preceding ten months (section 1(1) and (2) of the Legitimacy Act 1931).

Under the Adoption Act 1952, as amended, an adoption order can only be made in favour of a married couple living together, a widow, a widower, or the mother or natural father or a relative of the child.

The effect of the Illegitimate Children (Affiliation Orders) Act 1930, as amended by the Family Law (Maintenance of Spouses and Children) Act 1976, is to impose on each of the parents of an illegitimate child an equal obligation to maintain him. This obligation cannot be enforced against the father until an "affiliation order" has been made against him (see paragraph 25 above).

The devolution of estates on intestacy is governed by the Succession Act 1965 which provides, basically, that the estate is to be distributed in specified proportions between any spouse or "issue" who may survive the deceased. In O’B v. S 1984 Irish Reports 316, the Supreme Court held that the word "issue" did not include children who were not the issue of a lawful marriage and that accordingly an illegitimate child had, under the Act, no right to inheritance on the intestacy of his natural father. Whilst also holding that the resultant discrimination in favour of legitimate children was justifiable by reason of sections 1 and 3 of Article 41 of the Constitution (see paragraph 16 above), the Supreme Court stated that the decision to change the existing rules of intestate succession and the extent to which they were to be changed were primarily matters for the legislature. The relevant rules in the Act formed part of a statute designed to strengthen the protection of the family in accordance with Article 41, an Article which created not merely a State interest but a State obligation to safeguard the family; accordingly, the said discrimination was not necessarily unjust, unreasonable or arbitrary and the said rules were not invalid having regard to the provisions of the Constitution.

An illegitimate child may, on the other hand, in certain circumstances have a right to inheritance on the intestacy of his mother. A special rule (section 9(1) of the Legitimacy Act 1931) lays down that where the mother of an illegitimate child dies intestate leaving no legitimate issue, the child is entitled to take any interest in his mother’s estate to which he would have been entitled if he had been born legitimate.

As regards testate succession, section 117 of the Succession Act 1965 empowers a court to make provision for a child for whom it considers that the testator has failed in his moral duty to make proper provision. An illegitimate child has no claim against his father’s estate under this section, but may be able to claim against his mother’s estate provided that she leaves no legitimate issue.

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

In 1983, a Joint Committee of the Dáil (Chamber of Deputies) and the Seanad (Senate) was established, inter alia, to examine the problems which follow the breakdown of marriage. In its report of 1985, it referred to figures suggesting that approximately 6 per cent of marriages in Ireland had broken down to date, but noted the absence of accurate statistics. The Committee considered that the parties to stable relationships formed after marriage breakdown and the children of such relationships currently lacked adequate legal status and protection; however, it expressed no view on whether divorce legislation was at present necessary or desirable.

In a national referendum held on 26 June 1986, a majority voted against an amendment of the Constitution, which would have permitted legislation providing for divorce.

In September 1982, the Irish Law Reform Commission published a Report on Illegitimacy. Its basic recommendation was that legislation should remove the concept of illegitimacy from the law and equalise the rights of children born outside marriage with those of children born within marriage.

After considering the report, the Government announced in October 1983 that they had decided that the law should be reformed, and that reform should be concentrated on the elimination of discrimination against persons born outside marriage and on the rights and obligations of their fathers. However, the Government decided not to accept a proposal by the Law Reform Commission that the father be given automatic rights of guardianship in relation to a child so born.

In May 1985, the Minister of Justice laid before both Houses of Parliament a Memorandum entitled "The Status of Children", indicating the scope and nature of the main changes proposed by the Government. On 9 May 1986, the Status of Children Bill 1986, a draft of which had been annexed to the aforesaid Memorandum, was introduced into the Seanad. If enacted in its present form, the Bill - which has the stated purpose of removing as far as possible provisions in existing law which discriminate against children born outside marriage - would have, inter alia, the following effects.

(a) Where the name of a person was entered on the register of births as the father of a child born outside marriage, he would be presumed to be the father unless the contrary was shown (cf. paragraph 26 above).

(b) The father of a child born outside marriage would be able to seek a court order making him guardian of the child jointly with the mother (cf. paragraph 27 above). In that event, they would jointly have all the parental rights and responsibilities that are enjoyed and borne by married parents.

(c) The proviso qualifying the possibility of legitimation by subsequent marriage would be removed by the repeal of section 1(2) of the Legitimacy Act 1931 (see paragraph 28 above).

(d) The legal provisions governing the obligation of both of the parents of a child born outside marriage to maintain him would be similar to those governing the corresponding obligation of married parents (see paragraph 30 above).

(e) For succession purposes, no distinction would be made between persons based on whether or not their parents were married to each other. Thus, a child born outside marriage would be entitled to share on the intestacy of either parent and would have the same rights in relation to the estate of a parent who died leaving a will as would a child of a family based on marriage (cf. paragraphs 31 and 32 above).

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

Work is also in progress on legislation reforming the law of adoption, following the publication in July 1984 of the Report of the Review Committee on Adoption Services. That Committee recommended that, as at present (see paragraph 29 above), unmarried couples should not be eligible to adopt jointly even their own natural children.