Violation of Art 6-1;Violation of P1-1;Not necessary to examine Art 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

The applicant was born in 1936 and resides in the town of Novogrodivka, Donetsk region, Ukraine.

The applicant instituted proceedings in the Novogrodivskyy Town Court of Donetsk Region against the Novogrodivska Mining Company No. 1/3 (Шахта 1/3 «Новогродівська») - a State-owned enterprise - to recover salary arrears and other payments due to her late husband.

On 28 May 2001 the Novogrodivskyy Town Court found in favour of the applicant (Рішення Новогродівського міського суду Донецької області) and awarded her 23,741.84 Ukrainian hryvnias (“UAH”). The judgment was sent for enforcement to the Novogrodivskyy Town Bailiffs' Service (Відділ Державної виконавчої служби Новогродівського міського управління юстиції).

Subsequently, the applicant instituted proceedings in the Novogrodivskyy Town Court of the Donetsk Region against the Novogrodivskyy Town Bailiffs' Service for failure to enforce the judgment in her favour. On 20 December 2001 the Town Court rejected the applicant's claim, finding no fault had been committed by the Bailiffs' Service. The court stated that the Bailiffs' Service had acted properly in enforcing the judgment of 28 May 2001. However, by a number of decisions of the Commercial Court of the Donetsk Region, the Bailiffs' Service had been prohibited from selling the property of the Mining Company, due to the bankruptcy proceedings which had been initiated against the company. On 14 March 2002 the Supreme Court of Ukraine rejected the applicant's appeal in cassation.

In August 2002, the applicant instituted another set of proceedings in the Novogrodivskyy Town Court of the Donetsk Region against the Novogrodivskyy Town Bailiffs' Service for failure to enforce the judgment in her favour. On 10 October 2002 the Town Court rejected the applicant's claim, for the same reasons as before. On 16 December 2002 the Donetsk Regional Court of Appeal upheld the decision of the first instance court of 10 October 2002. On 22 October 2003 the Supreme Court of Ukraine rejected the applicant's appeal in cassation.

In February 2003 the Novogrodivska Mining Company was reorganised and became a structural subdivision of the Selidovugol Mining Company. As the latter thereby became the debtor, in February 2004 the enforcement proceedings were transferred to the Selidivskyy Town Bailiffs' Service (Відділ Державної виконавчої служби Селидівського міського управління юстиції).

The judgment in the applicant's favour was enforced by instalments, the last amount being paid on 31 August 2004.

The applicant instituted proceedings in the Selidivskyy Town Court of the Donetsk region against the Selidivskyy Town Bailiffs' Service claiming compensation for material and moral damage caused to her by the delay in the enforcement of the judgment in her favour. On 24 November 2004 the court found against the applicant. On 21 July 2005 the Donetsk Regional Court of Appeal upheld this judgment. The applicant appealed in cassation and the proceedings are still pending.

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


Violation of Article 6 - Right to a fair trial

Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Stanislav Shevchuk;Zdravka Kalaydjieva

The applicant was born in 1954 and lives in the Rivne Region.

On 13 March 1996 the applicant instituted proceedings in the Sarny Court against a private company, Vysotskyy, for non-fulfilment of its contractual obligations, under which it should have provided the applicant with agricultural products.

On 1 July 1997 the Sarny Court left the applicant’s complaint without consideration, holding that it fell within the jurisdiction of the commercial courts.

On 28 July 1997 the Rivne Regional Court quashed that ruling and remitted the case for a fresh consideration.

On 22 December 1997 the Sarny Court rejected the applicant’s claims as unsubstantiated.

On 26 January 1998 the Rivne Court quashed that decision and remitted the case for a fresh consideration.

On 19 May 1998 the Sarny Court found in part for the applicant.

On 13 July 1998 the Rivne Court upheld that decision.

On 23 December 1998 the Presidium of the Rivne Court, following an objection (протест) lodged by its President, quashed the decisions of the lower courts and remitted the case to the Sarny Court for a fresh consideration.

On an unspecified date the Vysotskyy company lodged a counterclaim with that court seeking the annulment of the contract.

After December 1998 the case was reconsidered by the courts at three levels of jurisdiction on four occasions because the courts of first instance and appeal had committed factual and legal errors in their decisions.

On 3 March 2003 the Dubrovytsya Town Court allowed the applicant’s claim in part and ordered the successor of the Vysotskyy company, Zlagoda, to transfer thirty-three tons of potatoes, worth 15,196 Ukrainian hryvnas (UAH), and eight tons of wheat, worth UAH 2,598, to the applicant. It also ordered the applicant to return 3,855 kg of meat, worth UAH 11,133, to Zlagoda.

On 27 June 2003 the Rivne Regional Court of Appeal upheld that judgment. On 4 February 2005 the Supreme Court rejected the applicant’s appeal in cassation.

In the course of the proceedings twenty-seven hearings were adjourned, two of which were adjourned due to the applicant’s failure to attend and the remaining twenty-five due to the need to call witnesses or due to their or their respondent’s failure to attend.

On an unspecified date the Bailiffs started enforcement proceedings in respect of the judgment of 3 March 2003.

On 11 January 2007 the Rivne Court modified the procedure of enforcement, ordering the Zlagoda company to pay the applicant UAH 17,794 for the products due to him under the judgment of 3 March 2003.

On 7 February 2007 the Dubrovytsya Court, following a request by the Zlagoda company to modify the procedure of enforcement of the judgment of 3 March 2003, ordered cross-cancellation of the debts under that judgment in the amount of UAH 11,133 and ruled that Zlagoda was to pay the applicant UAH 6,661. The ruling of 7 February 2007 was not appealed against and became final.

On 21 February 2007 the judgment of 3 March 2003 was enforced in full.

In March 2007 the applicant instituted proceedings against the Zlagoda company, seeking compensation for the difference between the award paid and the in market prices of the products due to him under the judgment of 3 March 2003.

On 5 June 2007 the Dubrovytsya Court rejected the applicant’s claims as unsubstantiated.

On 18 July 2007 the Rivne Court quashed that decision and discontinued the proceedings in the case, holding that the issue had been settled by the final judgment of 3 March 2003.

On 27 August 2008 the Supreme Court quashed the decision of 18 July 2007 and remitted the case for a fresh consideration to the Rivne Court, before which it is still pending.


Violation of Art. 10;Non-pecuniary damage - award;Pecuniary damage - claim dismissed

András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria

The applicants were born in 1966 and 1972 respectively and live in Istanbul. Mr Saygılı (“the first applicant”) is the owner of a daily newspaper, Günlük Evrensel, and Mr Bilgiç (“the second applicant”) is its editor-in-chief. Until 22 July 2001 the first applicant owned another daily newspaper named Yeni Evrensel.

On 23 November 2000 the First Chamber of the Istanbul State Security Court convicted Mr Bülent Falakaoğlu, the editor-in-chief of Yeni Evrensel, of the offence defined in Article 312 § 2 of the Penal Code for certain articles published therein. The conviction entailed certain measures being taken against Yeni Evrensel. Pursuant to Additional Article 2 § 1 of the Press Act (law no. 5680) then in force, the court ordered the newspaper to cease publication for a period of one month.

On 18 June 2001, while the closure order was yet to be executed, the applicants notified the office of the Istanbul Governor of their intention to publish a new newspaper, named Günlük Evrensel.

On 22 July 2001 Mr Saygılı ceased Yeni Evrensel's publication. The following day he launched Günlük Evrensel with a new editor-in-chief, Mr Bilgiç, and a new team of columnists.

On 8 September 2001 a number of police officers came to the applicants' printing headquarters to execute the closure order. They found that the applicants had discontinued Yeni Evrensel and started to publish Günlük Evrensel. The officers informed the public prosecutor in Zeytinburnu who, in return, concluded that Günlük Evrensel was Yeni Evrensel's successor.

On 13 September 2001 the public prosecutor applied to the Zeytinburnu Magistrates' Court (Sulh Ceza Mahkemesi) for a seizure warrant. The court issued the warrant authorising the seizure of Günlük Evrensel's two recent issues.

The same day the applicants filed an objection with the higher criminal court, the Zeytinburnu Criminal Court of First Instance (Asliye Ceza Mahkemesi), asserting that Günlük Evrensel was not Yeni Evrensel's successor. Unconvinced by the applicants' assertions, the court rejected the application without giving any reasons, other than stating that “it was established that Günlük Evrensel was Yeni Evrensel's successor”.

For the following 29 days the same sequence of events took place; the prosecutor requested a seizure warrant for the latest issue, the Magistrates' Court granted it and the applicants unsuccessfully lodged a number of objections against those decisions with the Zeytinburnu Court, which repeated its above conclusion in each of its decisions. In their objections the applicants drew the Zeytinburnu Court's attention to the fact that as Günlük Evrensel had first been published on 23 July 2001 and Yeni Evrensel was not officially closed down until 8 September 2001, it could not possibly be Yeni Evrensel's successor. Moreover, Günlük Evrensel had a different editorial team than that of Yeni Evrensel. The applicants also argued that the seizure of Günlük Evrensel was in breach of Articles 6 and 10 of the Convention because, inter alia, the seizure decisions were not adequately reasoned.

On 25 September 2001 the applicants wrote to the Ministry of Justice and requested that a written order be issued against the seizure orders. They repeated their arguments under Articles 6 and 10 of the Convention.

Meanwhile, the Zeytinburnu prosecutor filed a number of criminal charges against the applicants on the ground that they had breached the shutdown order by issuing a successor newspaper. The charges were joined and examined by the Zeytinburnu Criminal Court of First Instance. On 26 December 2001 the court acquitted the applicants as it found that the two newspapers in question were unrelated. The court also revoked the seizure warrants, which had already been executed by then.

Additional Article 2 of the Press Act:

“Where offences [prescribed in Article 312 § 2 of the Penal Code] ... and those threatening national security and general morals are committed via the press, the relevant publication may be ordered to be shut down by the competent court for a period of three days to one month.

Any publication which manifestly succeeds a previous publication that was so ordered ... shall be seized by a warrant to be issued by a magistrates' court.”


Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza;Vincent A. De Gaetano

The applicant was born in 1974 and lives with his father and grandmother in a semi-detached house in Wrocław. He suffers from paranoid schizophrenia.

On 16 August 2003, after an argument with his father, the applicant barricaded himself in his room and threatened his father with a knife and an axe. At about 8 p.m. the father called the police. He informed the police that his son had thrown him out of the house and had locked himself inside with a number of different sorts of weapons including an air rifle, axe and knives. When the police arrived the applicant had an axe in his hand. He told the police officers to leave the property while threatening them with an air rifle. The police officers decided not to continue the intervention. When the applicant's father informed them that the applicant was under psychiatric care and recently refused to take the prescribed medications, they called a psychologist, negotiators and a doctor. Following two-hour negotiations, which failed – the applicant fired several shots at the negotiators who were approaching the house with shields - the police called the antiterrorist brigade. Considering that the situation posed a threat to the applicant's family members and those who arrived on the spot, at about midnight a brigade of eight policemen commenced their intervention, which consisted in forcing the entrance door to the apartment, deafening the applicant with a grenade and immobilising him. The applicant was aggressive; he was armed with an axe, knives and an air rifle and he fired at the policemen. According to the applicant, the policemen were also aggressive: they shouted, swore and kicked him and one of them shot him in the left leg. The applicant, even when hurt on his leg, still threw the earlier prepared bayonets at the police officers. According to the police, the shot at the applicant's leg was preceded by one warning shot. However, the applicant submitted that over twenty bullets still remain lodged in the walls of the house.

Subsequently, the applicant was immobilised and handcuffed. There was an ambulance in front of the house during the whole intervention, so the applicant's wound was dressed immediately and the applicant was taken to a hospital. On the way he was resuscitated three times.

The doctor who admitted the applicant to the hospital found that he had been in a state of post-traumatic haemorrhagic shock (pourazowy wstrząs krwotoczny) which constituted a real danger to his life. On 16 August 2003 the applicant underwent an operation on his leg. The wound from the bullet resulted in necrosis and on 29 August 2003 the applicant's left leg had to be amputated. On 9 September 2003 the applicant left the hospital.

On 12 December 2003 the applicant's grandmother applied to the Wrocław District Prosecutor requesting the prosecution (wniosek o ściganie) of the police officers who had participated in the intervention and wounded the applicant.

On 15 April 2004 the Wrocław District Prosecutor discontinued the investigation, finding that the policemen's actions had not constituted an offence of abuse of power. In the course of the proceedings before the Prosecutor, twenty two witnesses were heard and documentation containing a hundred and eighty five pages gathered. The Prosecutor obtained an expert report of a doctor of forensic medicine, who had examined the injuries sustained by the applicant. She further heard the applicant's grandmother, who said she knew from her grandson that he had been kicked by the policemen when he was lying hurt on the floor. All the members of the antiterrorist brigade denied having kicked the applicant. The prosecutor also heard the applicant and his father as well as outside witnesses. She further examined the medical report issued by the doctor who had admitted the applicant to the hospital and referred to the medical expert report according to which:

“...the applicant had been admitted to the hospital on 16 August 2003. He had been shot in the left leg with the bullet's entry probably above the kneecap and exit in the calf. His artery and under-knee vein were damaged, with an open comminuted fracture of his left thigh bone. As a result of the above wounds the complication developed into necrosis and the applicant's left leg had to be amputated.”

As regards the course of the events, the Prosecutor established that:

“After the unsuccessful intervention of the two policemen who had initially arrived at the scene, negotiators and a psychologist were sent to the applicant in order to urge him to leave the house. The negotiations lasted about two hours but they did not lead to the expected result. The applicant did not react and his only reaction was to fire an air rifle in the direction of the negotiators, who had to protect themselves with shields while approaching the applicant's windows”.

When the negotiations failed, the anti-terrorist brigade was called. Before their intervention “another attempt to establish contact with the applicant was made, and when this failed the brigade began their intervention”.

In conclusion, the Prosecutor found that the anti-terrorist brigade had used means proportionate to the danger posed by the applicant not only to the policemen and the applicant's family, but also to third persons. It was also established in the course of the investigation that the policeman who fired at the applicant had first appealed to the applicant to calm down and to put the axe down, and had then fired a warning shot.

On 24 May 2004 the applicant's grandmother and father lodged an appeal against the decision of 15 April 2004. They complained that the prosecutor had not thoroughly examined the circumstances of the case and that the policemen had abused their powers. In particular, they alleged that the applicant had been shot in such a way that the gun was first pointed at the applicant's leg and a shot was then fired. They submitted further that not just one warning shot had been fired and that eighteen bullets of live ammunition, seventeen plastic bullets and six deafening grenades remained lodged in the walls of their house. They also demanded that an expert be appointed to examine the way the wounds had been inflicted; in particular the gunshot wound, but also a broken tooth, wounds to the applicant's head and a partly torn-off ear.

On 26 May 2004 the Wrocław District Prosecutor refused to examine the appeal, finding that it had been lodged by persons who were not parties to the proceedings. This decision was challenged by the applicant himself as well as by his father and grandmother.

On 6 July 2004 the Wrocław Regional Prosecutor granted the applicant's appeal and quashed the challenged decision of 26 May 2004, so allowing the applicant's appeal against the decision to discontinue the investigation to be examined by a court.

On 30 September 2004 the applicant requested the Wrocław District Court (Sąd Rejonowy) to appoint an expert witness to examine the clothes he had been wearing at the time of the intervention in order to find possible traces of gunpowder.

On 28 October 2004 the Wrocław District Court dismissed the appeal against the prosecutor's decision of 15 April 2004. The court found that in the course of the investigation which had been carried out properly, all relevant factors had been established and all necessary evidence had been taken in order to give a decision on the merits. It further found, essentially summarising the reasoning of the Wrocław District Prosecutor's decision of 15 April 2004, that the police's reaction had been proportionate. As regards the allegations concerning the shot fired at the applicant's leg, the court found that “the applicant, when heard, did not confirm those circumstances”. The court did not refer to the applicant's further reservations regarding the alleged shortcomings of the investigation, especially as regards the number of bullets allegedly remaining in the walls of the applicant's house. Neither did it refer to the applicant's request to appoint an expert who would examine his clothes.

On an unspecified date the applicant's father complained to the Ombudsman.

The Ombudsman requested the Supervisory Division of the Wrocław Prosecutor of Appeal (Wydział Nadzoru) for information on the respective proceedings. Having obtained the information requested, on 17 May 2005, the Ombudsman did not find grounds for intervention. He had examined the case-file, reconstructed again the course of events which was consistent with the version as established by the prosecutor and court. The Ombudsman confirmed, inter alia, that when the anti-terrorist brigade forced the door, the applicant behaved aggressively, fired with an air rifle towards the policemen, threw an axe in their direction and, subsequently began to throw knives towards them. Then one of the police officers, B.N. fired “warning shots” and, seeing no reaction on the part of the applicant, fired a shot towards his leg from a distance of 1.5 metres. The Ombudsman also found that the applicant had already thrown his father out of their house about two months earlier, and that then he had threatened him with a bayonet. Finally, the Ombudsman pointed to the fact that the request for institution of investigation into the alleged abuse of power by the police officers had been lodged about six months after the events in question.

On 18 August 2003 the Wroclaw District Prosecutor opened an investigation against the applicant, who had been charged with an active assault on the police officers (czynna napaść na policję) and with causing a bodily injury or an impairment of health for a period exceeding seven days. In the course of the inquiry the Prosecutor ordered expert reports from a psychologist and two psychiatrists, obtained evidence including photographic material and heard fourteen witnesses including the applicant and members of his family, as well as all policemen who had participated in the intervention.

On 30 June 2004 the Wroclaw District Prosecutor gave a decision and found that during the intervention two policemen had been hurt; one had a wound on his cheek and the other had been shot in the right arm. It was also found however that, at the time of the intervention, because of his mental illness the applicant had been incapable of understanding the significance of his behaviour. For that reason the Prosecutor discontinued the investigation.

The Government produced a detailed report of the intervention prepared by the police following the internal explanatory proceedings. The report confirms the applicant's aggressive behaviour and explains the circumstances in which the shot was given at the applicant. The report, in its relevant part, reads as follows:

“the police officers breached the entrance door. The officer B.N. entered the corridor through the hole in the door and saw a man with an axe in his hand. The man swung his arm towards B.N. who jumped back and shouted: “Police! Drop it!” The man swung his arm again and B.N. fired a warning shot at the ground and then, at the next attack with the axe very close to B.N., B.N., facing a direct threat to his life, directed a shot at the applicant's leg. The man dropped the axe, cowered, and, limping, went further back into the house”

The regulations on permissible use of direct coercive measures by the police are laid down in section 16 of the Police Act, which provides that in situations in which the order of a police officer is not obeyed, such measures can be resorted to only in so far as they correspond to the requirements of a particular situation and in so far as they are necessary to obtain compliance with that order.

Article 5 § 1 of the Ordinance of 17 September 1990 on the use of coercive measures by the police provides that direct physical force can be used to overpower a person, to counter an attack or to ensure compliance with an order. When such force is being used it is forbidden to strike the person against whom the action is being carried out, except in self-defence, or to counter an attack against another person's life, health or property.


Violation of Art. 6-1;Violation of Art. 13;Remainder inadmissible;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings

The applicant was born in 1968 and lives in Geretsberg.

On 24 June 1999 the Braunau District Administrative Authority (Bezirkshauptmannschaft) charged the applicant with drunken driving. The applicant, represented by counsel, submitted observations on 13 July and 8 September 1999.

On 21 September 1999 the District Administrative Authority issued a penal order (Straferkenntnis) finding the applicant guilty of drunken driving contrary to Sections 5 § 1 and 99 § 1 (a) of the Road Traffic Act (Strassenverkehrsordnung). As to the alcohol level the authority had regard to the results of a breathalyser test and to the corroborating results of a blood alcohol analysis carried out the following day. It imposed a fine of 16,000 Austrian schillings (approximately 1,160 euros) on him with 14 days' imprisonment in default.

The applicant appealed on 12 October 1999.

On 9 December 1999 the Upper Austria Independent Administrative Panel (Unabhängiger Verwaltungssenat) held a hearing at which it questioned the applicant and the two police officers who had carried out the breathalyser tests and a further witness.

By decision of 21 December 1999 the Independent Administrative Panel, having held a hearing, dismissed the applicant's appeal. It found that the applicant had driven his car on 15 June 1999 at 8 p.m. having a proportion of alcohol in his breath exceeding the statutory level. He admitted to having consumed alcohol in the afternoon. Having run out of petrol, the applicant had left the car and had gone to the next petrol station. Upon his return, he had been requested by two police officers to undergo breathalyser tests. The tests, carried out at 8.52 and 8.54 p.m. respectively, had yielded results of 0.84 and 0.86 mg alcohol/litres. The Independent Administrative Panel dismissed the applicant's request to take an expert opinion in order to show that the difference in these results was due to his having consumed one and a half litres of beer when he went to fetch petrol and that he had, before that, not been driving his car in a state of drunkenness. Having regard to the instructions for use of the breathalyser at issue, the Independent Administrative Panel noted that the difference in the two test results was not significant.

In any case, it found that the applicant's defence was not credible as he had stated at his first interrogation to have parked his car at 8 p.m. and had explicitly answered the police officers' question whether he had consumed alcohol after that in the negative. It was only in his written submissions of 13 July that he had claimed to have consumed more beer after 8 p.m. The bill submitted by the applicant did not support his defence as the innkeeper had stated that he had given the applicant this bill two weeks after the incident on his explicit request. He had not remembered the applicant and could not confirm whether he had actually consumed beer at his inn at the relevant time.

The applicant lodged a complaint with the Administrative Court (Verwaltungsgerichtshof) on 3 February 2000. He complained in particular about the refusal of his request to take an expert opinion. On 3 April 2000 the Independent Administrative Panel submitted observations in reply. The applicant made further submissions on 3 May and 21 June 2000.

On 7 August 2003 the Administrative Court, having deliberated on 4 July 2003, dismissed the applicant's complaint as being unfounded. It found in particular that the Independent Administrative Panel's assessment of evidence did not suffer from any defects and that it had given detailed and convincing reasons for its refusal to take the expert opinion requested by the applicant.

The decision was served on the applicant's counsel on 1 September 2003.


No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition)

Anatoly Kovler;Antonella Mularoni;Christos Rozakis;Corneliu Bîrsan;Elisabet Fura;Elisabeth Steiner;Françoise Tulkens;Ireneu Cabral Barreto;Jautrite Briede;Jean-Paul Costa;Karel Jungwiert;Lucius Caflisch;Luzius Wildhaber;Matti Pellonpää;Mindia Ugrekhelidze;Nicolas Bratza;Renate Jaeger;Vladimiro Zagrebelsky;Volodymyr Butkevych

The applicants are a married couple, Svetlana Sisojeva (“the first applicant”) and Arkady Sisojev (“the second applicant”), and their daughter, Aksana Sisojeva (“the third applicant”). They were born in 1949, 1946 and 1978 respectively. The second and third applicants have Russian nationality, while the first applicant has no nationality. All three live in Alūksne (Latvia).

The first two applicants entered Latvian territory in 1969 and 1968 respectively, when the territory formed part of the Soviet Union. The second applicant, who was a member of the Soviet armed forces at the time, was stationed in Latvia and remained there until he finished his military service in November 1989. The third applicant and her elder sister, Mrs Tatjana Vizule, were born in Latvian territory.

Following the break-up of the Soviet Union and the restoration of Latvian independence in 1991, the applicants, who had previously been Soviet nationals, became stateless.

In August 1993 Tatjana married a Latvian national. She is mother to two minor children who have Latvian nationality.

In 1993 the first and second applicants applied to the Latvian Ministry of the Interior’s Nationality and Immigration Department (Iekšlietu ministrijas Pilsonības un imigrācijas departaments – “the Department”) to obtain permanent-resident status and to be entered in the register of residents of the Republic of Latvia (Latvijas Republikas Iedzīvotāju reģistrs). However, on 19 June 1993 the Department issued them with temporary residence permits only.

The first and second applicants then lodged an application with the Alūksne District Court of First Instance, requesting it to direct the Department to enter them in the register of residents as permanent residents. In a judgment delivered on 28 October 2003, which was upheld on 8 December 1993 following an appeal on points of law, the court allowed their application. It considered that under the legislation in force the situation of the second applicant, who had left the army before 4 May 1990 – the date on which Latvia had declared its independence – could not be equated with that of a non-Latvian serviceman temporarily present on Latvian soil, who would be entitled to a temporary residence permit only. The Department subsequently entered all the applicants in the register of residents.

In the meantime, in January 1992, the first two applicants had each obtained two former Soviet passports and had therefore been able to have their place of residence registered in Izhevsk (Russia) despite already having a registered place of residence in Latvia (pieraksts or dzīvesvietas reģistrācija). The Department only discovered this fact in 1995.

In two decisions dated 3 November and 1 December 1995, the Alūksne police decided not to institute criminal proceedings against the applicants for using false identity papers. However, the Department imposed an administrative penalty of 25 lati (LVL) (approximately 40 euros (EUR)) on them for breach of the passport regulations. The Department also applied to the Alūksne District Court of First Instance to have the proceedings reopened to consider new facts, alleging fraudulent behaviour on the part of the first two applicants. The Department also noted that the third applicant had followed the example of her parents and sister in 1995, obtaining two passports and having her place of residence registered in both Russia and Latvia.

By an order of 28 May 1996, the Alūksne District Court of First Instance, ruling on the application for the proceedings to be reopened, allowed the Department’s application, quashed its own judgment of 28 October 1993 and ordered the removal of the applicants’ names from the register of residents. The first two applicants appealed to the Vidzeme Regional Court which, by an order of 3 June 1997, quashed the decision in question and referred the case back to the Alūksne Court of First Instance.

In 1996 the second and third applicants applied for and obtained Russian nationality. On 8 August 1996 the Russian embassy in Latvia issued them with Russian Federation passports.

In March 1998 the third applicant, by now an adult, was joined as a party to the proceedings before the Alūksne Court of First Instance.

By a letter of 15 May 1998, the Tripartite Joint Committee for the implementation of the agreement between the governments of Latvia and the Russian Federation on the social welfare of retired military personnel of the Russian Federation and their family members residing on the territory of the Republic of Latvia (“the Russian-Latvian agreement” – see paragraph 53 below) requested the Ministry of the Interior’s Nationality and Migration Directorate (Iekšlietu ministrijas Pilsonības un migrācijas lietu pārvalde – “the Directorate”), which had replaced the Department, to issue the applicants with permanent residence permits, on the ground that they had the right to remain in Latvia under the above agreement. In a second letter sent the same day, the Committee informed the Alūksne Court of First Instance that the first applicant had neither Russian nor any other nationality.

In July 1998 the applicants submitted a further request to the Court of First Instance. In a joint memorial they argued that, as the second and third applicants had Russian nationality, they had the right to obtain permanent residence permits under the Russian-Latvian agreement. The first applicant, who had no nationality, contended that she was entitled to the status of a “permanently resident noncitizen (nepilsonis)” under the Law on the status of former USSR citizens without Latvian or other citizenship (“the Non-Citizens Act” – see paragraph 47 below).

In court, the applicants made no attempt to deny the actions of which they had been accused by the Department and the Directorate, but maintained that those actions had been in breach only of Russian law and therefore had no effect on their rights in Latvia.

In a judgment of 28 July 1998, the Alūksne District Court of First Instance allowed the applicants’ request. It noted that the applicants’ place of residence had been legally registered in Alūksne since 1970 and that they had lived there from then onwards. In the court’s view, since the procuring of second passports by the applicants and their registration in Russia were illegal and void acts, they had no impact on the applicants’ legal status in Latvia. The court also noted that the second applicant was on the list of former members of the Russian armed forces in receipt of a Russian military pension and entitled to remain in Latvia. That list had been drawn up jointly by the two governments in accordance with the Russian-Latvian agreement. Consequently, the court held that the first applicant was entitled to apply for a passport as a “permanently resident non-citizen” and that the second and third applicants were entitled to obtain permanent residence permits.

The Directorate appealed against that judgment to the Vidzeme Regional Court. In a judgment of 15 June 1999, the Regional Court dismissed the appeal, endorsing the findings and reasoning of the firstinstance court.

The Directorate then lodged an appeal on points of law with the Senate of the Supreme Court. In a judgment of 15 September 1999, the Senate quashed the Regional Court’s judgment and declared it null and void. The Senate found that secretly obtaining two passports and registering places of residence in two different countries, failing to disclose the second passports, and supplying false information to the authorities when applying for regularisation constituted serious breaches of Latvian immigration law. The Senate also referred to section 1(3), sub-paragraph 5, of the NonCitizens Act, which stated that the status of “permanently resident noncitizen” could not be granted to persons who, on 1 July 1992, had their permanent place of residence registered in a member State of the Commonwealth of Independent States (of which Russia is a member). The Senate considered that the provision in question was fully applicable to the applicants’ case.

The Senate also noted that the judgment of the Alūksne Court of First Instance of 28 October 1993 had been subsequently set aside when the proceedings were reopened, thereby depriving the entry of the applicants in the register of residents of any legal basis. It concluded that the second and third applicants, since they did not satisfy the requirements of the Law on aliens and stateless persons (entry and residence) (“the Aliens Act” – see paragraph 50 below), were also not entitled to obtain permanent residence permits. Consequently, the Senate set aside the judgment of 15 June 1999 and referred the case back to the appellate court.

For procedural reasons, the case was transferred to the Latgale Regional Court which, in a judgment of 10 January 2000, rejected the applicants’ application, reaffirming the reasons given by the Senate. Unlike the Tripartite Joint Committee, the Regional Court considered that the first applicant had Russian nationality under the Russian Federation’s Nationality Act. With regard to the second applicant, it considered that the fact that an individual was on the list of retired army personnel merely attested to the fact that the person concerned actually resided in Latvia and was in receipt of a Russian military pension; it did not in any sense confer entitlement to a residence permit.

In a judgment of 12 April 2000, the Senate of the Supreme Court dismissed an appeal by the applicants on points of law, endorsing in substance the arguments of the Regional Court.

In two letters dated 17 May and 26 June 2000, the Directorate reminded the applicants that they were required to leave Latvia.

On the morning of 6 March 2002, the first applicant, Svetlana Sisojeva, was summoned to the regional headquarters of the security police (Drošības policija). An officer of the security police asked her a number of questions, some of them relating to her application to the Court and to an interview she had given to journalists from a Russian television channel on the subject. In particular, the police asked the first applicant how the Russian journalists had made contact with her, how she had heard about the possibility of lodging an individual application with the Court, how she had found lawyers to represent her before the Court, and how she had known that certain persons had bribed Directorate officials in order to obtain Latvian residence permits. In addition, the police officer asked her several questions about her professional career and about the members of her family.

The dialogue between the first applicant and the police officer, as reconstructed by the applicant and sent to her lawyers on 4 April 2002, ran as follows:

“Police officer: How did the television channel ORT find you?

Applicant: We had had telephone calls in November [and] December. At the time, we had refused to meet them, but journalists are bloodhounds, they always get what they want.

Police officer: And then?

Applicant: They telephoned from Riga and said they wanted to meet us and talk to us. I agreed. They wanted to talk to several [people] who had brought cases before the courts.

Police officer: When did they phone?

Applicant: It was a Saturday night, about 10 p.m. They came round on the Sunday, at about 3.30 p.m. If you want to come round [too], you’re welcome. Our door is always open.

Police officer: You said that you’d taken the case all the way to the European Court, didn’t you?

Applicant: Yes, I did. There were fourteen sets of proceedings; we fought and fought [again], and eventually we turned to the European Court, because of the people in charge in the [Directorate]. They saw it as a game to get us deported from the country, while we wanted to prove that we were in the right. [Their] attitude towards us was based on prejudice: we hadn’t broken any laws in Latvia.

Police officer: How and where did you find out that you could apply to the European Court?

Applicant: The issue of our regularisation was discussed several times by the Tripartite Joint Committee. We had approached the Human Rights Committee. We had lawyers. The representatives of the Ministry of the Interior and the [Directorate] had told us at the last meeting that they had no objections to raise or accusations to make as far as we were concerned, and that everything would be fine. Unfortunately, they haven’t kept their promises so far. The Committee advised us to lodge an application with the European Court about the length of the proceedings if the case wasn’t resolved.

Police officer: And how did you find those lawyers?

Applicant: With the help of the lawyers in the social welfare office we were registered with.

Police officer: Perhaps your lawyers threatened you, saying that if you didn’t give information to ORT they would stop working with you?

Applicant: That’s nonsense. They told us not to give information to anyone without their consent, not even to ORT...

Police officer: You said that over forty people had lodged applications?

Applicant: Yes, I did. Actually, there are even more people involved: I meant that there were forty families. We’ve all been through the courts: some of us once, some twice, and some even three times. A lot of people solved the problem by paying backhanders.

Police officer: How do you know that?

Applicant: We were all in the same boat and we helped one another. We used to say to one another that if someone had money, it was better for him to pay, to avoid a trial. [The first applicant then gave the example of two families whose status had been regularised after they had bribed Directorate officials; she named one of the officials concerned.]

Police officer: And why did you not come to us?

Applicant: We didn’t know you could help us.

Police officer: How did you come by the information that forty people had lodged applications?

Applicant: Actually, the figure is higher. We’ve all had a lot of problems. [The applicant dwelt in detail on five specific cases concerning the regularisation of persons in a similar situation to her own.]

Police officer: What does your husband think about the case?

Applicant: He supports [me]: what would you do?

[The police officer then asked the applicant a series of questions about her education, her work, her husband’s work and the family’s financial situation.]

Police officer: Once more, how did you find out that you could take your case to the European Court?

Applicant: We read the papers, we watch television; the cases of Podkolzina, Kulakova, Slivenko and several other families were reported in the media. We approached the Human Rights Committee, who gave us advice and even offered to [help us] find a lawyer. Strange, isn’t it? It was very hard for us, having to bring a case against Latvia before the European Court, but all the avenues open to us to try and resolve the problem in Latvia had been exhausted. It’s the fault of the [Directorate and its officials], who flout the law and force people to leave Latvia. They’re the ones who bring shame on Latvia. We haven’t broken any law.

Police officer: When is the case going to be examined?

Applicant: We don’t know.

Police officer: What documents have you sent them?

Applicant: The courts’ decisions.”

The Government contested the accuracy of this record, particularly in view of the length of time that had elapsed between the interview itself and the drafting of the document. The first applicant conceded that the document was probably less than perfect, given that it had been drafted from memory almost a month after the fact; she acknowledged that several other questions (which she could not recall) might have been asked during the interview. However, she contended that her record reflected with sufficient accuracy the content and tone of the interview.

On 11 November 2003 the Head of the Directorate sent a letter to each of the applicants explaining the procedure to be followed in order to regularise their stay in Latvia. The relevant passages of the letter sent to the first applicant (Svetlana Sisojeva) read as follows:

“... The [Directorate] ... would remind you that, in accordance with the principle of proportionality, no order has hitherto been made for your deportation, and that it is open to you to regularise your stay in the Republic of Latvia in accordance with the [country’s] legislation.

Under sections 1 and 2 of the Status of Stateless Persons Act, persons who are not considered to be nationals of any State under the laws of that State ... and who are legally resident in Latvia, may obtain stateless-person status.

You satisfy the above requirements ...

In view of the above, the Directorate is prepared to regularise your stay in Latvia by entering your name in the register of residents as a stateless person [resident] in Latvia and by issuing you with an identity document on that basis.

In order to complete the necessary formalities, you will need to go in person to the Alūksne district office of the Directorate, bringing with you your identity papers, your birth certificate and two photographs ...”

The letters sent to the other two applicants were similar in content. The letter to the second applicant (Arkady Sisojev) stated in particular:

“... If your wife, Mrs Svetlana Sisojeva, avails herself of the opportunity to regularise her stay in the Republic of Latvia in accordance with the provisions in force, you will be entitled, under the Immigration Act, to obtain a residence permit. The Directorate is not aware of any reason which would prevent you from applying for and obtaining a residence permit in Latvia.

Under the terms of section 32 of the Immigration Act, only aliens residing in Latvia on the basis of a residence permit may apply to the Directorate for a residence permit ... In other cases, and where such a move accords with international human rights provisions and the interests of the Latvian State, or on humanitarian grounds, the Head of the Directorate may authorise the person concerned to submit the relevant papers to the Directorate in order to apply for a residence permit. As no order has hitherto been made for your deportation, you may submit the relevant papers ... to the Alūksne district office of the Directorate ...

In view of the above, the Directorate is prepared to issue you with a residence permit at your wife’s place of residence, in accordance with section 26 of the Immigration Act, on condition that S. Sisojeva completes the necessary formalities in order to regularise her stay in Latvia as a stateless person, and that she responds to the invitation from the Alūksne office of the Directorate ...”

Lastly, the letter to the third applicant (Aksana Sisojeva) contained the following passages:

“ ... If your mother, Mrs Svetlana Sisojeva, avails herself of the opportunity offered to her and, after completing the necessary formalities, regularises her stay in the Republic of Latvia in accordance with the provisions in force, you will be entitled, under the Immigration Act, to obtain a residence permit. The Directorate is not aware of any reason which would prevent you from applying for and obtaining a residence permit in Latvia.

The Directorate would further inform you that, in accordance with section 23(3) of the Immigration Act, in cases not provided for by the Act, a temporary residence permit may be issued by the Minister of the Interior, where such a move is in accordance with the provisions of international law. Consequently, you are also entitled to apply to the Minister of the Interior for a residence permit valid for a period longer than that specified in section 23(1), sub-paragraph 1, of the Immigration Act. Furthermore, after a period of residence of ten years on the basis of a temporary residence permit, you may apply for a permanent residence permit in accordance with section 24(1), sub-paragraph 7, of the Immigration Act ...”

In addition, a letter containing the above information concerning the three applicants was sent to the Government’s Agent. On the same date, 11 November 2003, the Head of the Directorate signed three decisions formally regularising the applicants’ status in Latvia. More specifically, he ordered that the first applicant be entered in the register of residents as a “stateless person”, that she be issued with an identity document valid for two years, and that the second and third applicants be issued with temporary residence permits valid for one year and six months respectively. However, regularisation of the status of the second and third applicants was contingent upon that of the first applicant. In other words, in order for Arkady Sisojev and Aksana Sisojeva to obtain residence permits, Svetlana Sisojeva first had to submit the relevant documents to the Directorate.

None of the applicants complied with the instructions outlined above in order to obtain residence permits.

By Decree no. 15 of 22 March 2005, the Cabinet of Ministers (Ministru kabinets) instructed the Minister of the Interior to issue Arkady Sisojev and Aksana Sisojeva with five-year temporary residence permits, “in accordance with section 23(3) of the Immigration Act”. In a letter sent on the same day, the Government informed the Court of the measure, pointing out that, after the five years had elapsed, the two applicants in question could obtain permanent residence permits

On 15 November 2005 the applicants applied to the Directorate to have their stay regularised on the basis they had requested initially, that is, for the first applicant to be granted the status of “permanently resident noncitizen” and for the other two applicants to be issued with permanent residence permits. The Directorate replied on the following day, 16 November 2005. After outlining the background to the case before the domestic courts and in Strasbourg, the Directorate went on:

“ ... On 11 December 2003 you stated that you would not consider the Directorate’s proposals until after the European Court of Human Rights had delivered its judgment.

In accordance with ... the Status of Stateless Persons Act ... in force at the time, an order was given for Svetlana Sisojeva to be issued with an identity document for stateless persons, and she was told that the authorities were willing to grant her stateless-person status. It was [therefore] open to Mrs Sisojeva to take advantage of that option, but she failed to do so. However, in accordance with the principle of respect for personal rights and the principle of legitimate expectation, the Directorate has not set aside its decision of 11 November 2003 in respect of Svetlana Sisojeva. Consequently, it remains open to her to regularise her stay in Latvia under section 6(1) of the Stateless Persons Act and paragraph 2 of its transitional provisions. Since Svetlana Sisojeva’s entitlement to stateless-person status ... was recognised before the entry into force of that Act, were she to obtain an identity document for stateless persons she would also be issued with a permanent residence permit ... As for Arkady Sisojev and Aksana Sisojeva, they would be entitled, on the same basis, to obtain temporary residence permits.

The Directorate would further point out that, on 22 March 2005, the Cabinet of Ministers ... instructed the Minister of the Interior to issue Arkady Sisojev and Aksana Sisojeva with five-year temporary residence permits, under section 23(3) of the Immigration Act.

In view of the above, the Directorate would remind you of the possibility of regularising your stay in the Republic of Latvia, on the following basis: Svetlana Sisojeva may obtain stateless-person status and be issued with a permanent residence permit; Arkady Sisojev and Aksana Sisojeva, meanwhile, may apply for and obtain temporary residence permits, in accordance with section 23(3) of the Immigration Act. ...”

The remainder of the letter explained in detail to each of the applicants the procedure to be followed and the documents to be submitted in order to have their stay regularised, and the tax rates which applied for that purpose. The applicants did not take the steps indicated by the Directorate.

On 2 and 3 November 2005, the relevant official of the border police questioned the applicants, asking them why they had not regularised their stay. Following that conversation, the Commander of the border police requested details from the Head of the Directorate concerning the applicants’ precise status in Latvia. By a letter of 22 November 2005, the latter explained that, since 2000, there had been sufficient legal basis for issuing orders for the applicants’ deportation, but that no such orders had been issued on the grounds of proportionality and in view of the proceedings pending before the European Court of Human Rights.

By a letter of 16 December 2005, the Directorate reminded the applicants once more that they had the possibility of regularising their stay. No reply was forthcoming.

As matters stand, the applicants are resident in Latvia without valid residence permits. According to the information supplied by the applicants, which has not been disputed by the Government, Svetlana Sisojeva has been unemployed since 1992. Arkady Sisojev works as a technician in a municipal communal heating plant in Alūksne; despite being cautioned repeatedly by the authorities, his employer has consistently refused to dismiss him on the sole ground that he is illegally resident in Latvia. Aksana Sisojeva, meanwhile, obtained a law degree from the Baltic Russian Institute (Baltijas Krievu institūts) in July 2004. The applicants contend that, owing to her irregular status, she has to date been unable to find work.

Latvian legislation on nationality and immigration distinguishes several categories of persons, each with a specific status:

(a) Latvian citizens (Latvijas Republikas pilsoņi), whose legal status is governed by the Citizenship Act (Pilsonības likums);

(b) “permanently resident non-citizens” (nepilsoņi) – that is, citizens of the former USSR who lost their Soviet citizenship following the break-up of the USSR but have not subsequently obtained any other nationality – who are governed by the Law of 12 April 1995 on the status of former USSR citizens without Latvian or other citizenship (Likums “Par to bijušo PSRS pilsoņu statusu, kuriem nav Latvijas vai citas valsts pilsonības” – “the NonCitizens Act”);

(c) asylum-seekers and refugees, whose status is governed by the Asylum Act of 7 March 2002 (Patvēruma likums);

(d) “stateless persons” (bezvalstnieki) within the meaning of the 18 February 1999 Status of Stateless Persons Act (Likums “Par bezvalstnieka statusu Latvijas Republikā”), read in conjunction with the Law of 9 June 1992 on aliens and stateless persons (entry and residence) (“the Aliens Act”) and, since 1 May 2003, with the Immigration Act of 31 October 2002 (Imigrācijas likums). On 2 March 2004 the Status of Stateless Persons Act was replaced by a new Stateless Persons Act;

(e) “aliens” in the broad sense of the term (ārzemnieki), including foreign nationals (ārvalstnieki) and stateless persons (bezvalstnieki) falling solely within the ambit of the Aliens Act (before 1 May 2003), and the Immigration Act (after that date).

Section 1 of the Non-Citizens Act formally set forth detailed criteria for obtaining the status of “permanently resident non-citizen”. In the version in force since 25 September 1998, the first paragraph of section 1 reads as follows:

“The persons governed by this Act – ‘non-citizens’ – shall be those citizens of the former USSR, and their children, who are resident in Latvia ... and who satisfy all the following criteria:

on 1 July 1992 they were registered as being resident within the territory of Latvia, regardless of the status of their housing; or their last registered place of residence by 1 July 1992 was in the Republic of Latvia; or a court has established that before the above-mentioned date they had been resident within Latvian territory for not less than ten years;

they do not have Latvian citizenship; and

they are not and have not been citizens of any other State.”

The relevant provisions of the former Status of Stateless Persons Act read as follows.

Section 2

“(1) The status of stateless person may be granted to persons whose status is not defined either by the Law on the status of former USSR citizens without Latvian or other citizenship or by the Asylum Act, provided they

are legally resident in Latvia.

(2) Stateless persons who have obtained outside Latvia documents attesting to the fact that they are stateless may obtain the status of stateless person in Latvia only if they have obtained a permanent residence permit in Latvia.

Section 3(1)

“Stateless persons shall be issued with an identity document for stateless persons, which shall also serve as [a] travel document.”

Section 4

“(1) Stateless persons in Latvia shall enjoy all the human rights enshrined in the Latvian Constitution [Satversme].

(2) In addition to the rights referred to in the first paragraph of this section, stateless persons shall be entitled

to leave and return to Latvia freely;

to be joined by their spouse from outside the country, and by their own minor children or those dependent on their spouse, in accordance with the rules laid down by the Aliens and Stateless Persons (Entry and Residence) Act;

to preserve their native language, culture and traditions, provided these are not in breach of the law;

(3) During their stay in Latvia, stateless persons shall be bound by [the provisions of] Latvian law.”

On 29 January 2004 Parliament enacted a new Stateless Persons Act (Bezvalstnieku likums), which came into force on 2 March 2004 and replaced the former Status of Stateless Persons Act. The relevant provisions of the new Act read as follows.

“In the Republic of Latvia, an individual may be recognised as a stateless person if no other State has recognised him or her as a national in accordance with its own laws.”

“(1) In order to be recognised as a stateless person, the individual concerned must submit to the [Directorate]:

a [written] application;

an identity document;

a document issued by a competent body in the foreign State, to be determined by the Directorate, certifying that the person concerned is not a national of that State and is not guaranteed nationality of that State, or a document certifying the impossibility of obtaining such a document.

(2) Where, for reasons beyond his or her control, the individual concerned is unable to produce one of the documents referred to in points 2 or 3 of the first paragraph, an official instructed by the Head of the Directorate shall decide whether or not to grant him or her the status of stateless person. The decision shall be taken on the basis of information available to the Directorate supported by documentary evidence.”

“(1) The stateless person shall reside in the Republic of Latvia in accordance with the provisions of the Immigration Act.

(2) A stateless person legally resident in the Republic of Latvia may obtain a travel document in accordance with the statutory arrangements ...”

“A stateless person legally resident in the Republic of Latvia shall enjoy the rights guaranteed by ... the Convention of 28 September 1954 on the Status of Stateless Persons.”

The relevant provisions of the former Aliens Act, in force prior to 1 May 2003, read as follows.

“The Head of the Directorate or of the regional office of the Directorate shall issue a deportation order ...

(2) if the alien or stateless person is in the country without a valid visa or residence permit ...”

“The individual concerned shall leave the territory of Latvia within seven days after the deportation order has been served on him or her, provided that no appeal is lodged against the order in the manner prescribed in this section.

Persons in respect of whom a deportation order is issued may appeal against it within seven days to the Head of the Directorate, who shall extend the residence permit pending consideration of the appeal.

An appeal against the decision of the Head of the Directorate shall lie to the court within whose territorial jurisdiction the Directorate’s headquarters are situated, within seven days after the decision has been served.”

Since 1 May 2003 the Aliens Act cited above has no longer been in force; it has been repealed and replaced by the Immigration Act. The relevant provisions of the new Act read as follows.

“The present Act uses the following definitions:

(1) an alien [ārzemnieks] – a person who is neither a Latvian citizen nor a “[permanently resident] non-citizen” of Latvia;

“In cases not covered by the present Act, the temporary residence permit shall be granted by the Minister of the Interior, where the relevant decision accords with the provisions of international law or the interests of the Latvian State, or on humanitarian grounds.”

“(1) In accordance with the arrangements laid down in the present Act, the following persons may apply for a permanent residence permit:

an alien who has been resident without interruption in Latvia for at least five years immediately prior to submission of the application ...;

(2) In cases not covered by the present Act, the permanent residence permit shall be granted by the Minister of the Interior, where it accords with the interests of the State.

(5) The aliens referred to in paragraph 1, sub-paragraph ... 7, of this section may obtain a permanent residence permit if they have a command of the official language. The level of knowledge of the official language [and] the means of verifying that knowledge shall be determined by the Cabinet of Ministers.

(6) Aliens who do not satisfy the requirements set forth in paragraph 5 of this section shall nevertheless be entitled to continue to reside in Latvia on the basis of a temporary residence permit.”

“[By way of exception,] [t]he Head of the Directorate may authorise [the person concerned] to submit an application for a residence permit to the Directorate, where such authorisation accords with the provisions of international law or the interests of the Latvian State, or on humanitarian grounds.”

“... When the time-limit set down [for submitting an application for a residence permit] has passed, the Head of the Directorate may authorise [the person concerned] to submit the [relevant] documents, where such authorisation accords with the interests of the Latvian State, or on grounds of force majeure or humanitarian grounds.”

“(1) Where a decision is taken to refuse an application by an alien for a residence permit or to withdraw his or her residence permit, an appeal may be lodged against that decision ... with the Head of the Directorate, within thirty days of the entry into force of the decision.

(2) Where the Head of the Directorate refuses an application for a residence permit an appeal may be lodged ... with the courts against that decision, in the manner prescribed by law ...”

“(1) The [relevant] official of the Directorate shall issue a deportation order and determine the length of the ban on re-entering Latvian territory, requesting the alien concerned to leave the Republic of Latvia within seven days, where he or she has ... acted in breach of the rules on the entry and residence of aliens in the Republic of Latvia. ...

(2) The Head of the Directorate may set aside a deportation order ... or suspend execution thereof on humanitarian grounds.”

“(1) The alien concerned may appeal against the deportation order and the length of the ban on re-entering Latvian territory laid down therein to the Head of the Directorate, within seven days of the order’s entry into force. He or she shall have the right to remain in the Republic of Latvia while the appeal is being considered.

(2) The alien concerned may appeal before the courts against the decision of the Head of the Directorate concerning the deportation order and the length of the ban on reentering Latvian territory laid down therein, within seven days of the decision’s entry into force. The lodging of an appeal with the court shall not suspend execution of the decision.”

“(1) Within ten days of establishment of the facts detailed in the present paragraph, the [relevant] official of the Directorate shall take a forcible expulsion decision in respect of the alien and determine the length of the ban on re-entering Latvian territory ..., where:

the alien has not left the Republic of Latvia within seven days of receiving the deportation order, as required by section 41(1) of the present Act, and has not appealed against the order under section 42;

(2) In the cases referred to in the first sub-paragraph of paragraph 1 of this section, no appeal shall lie against the forcible expulsion decision ...

(4) The Head of the Directorate may set aside a forcible expulsion decision or stay its execution on humanitarian grounds.”

At the time of the facts reported by the applicants, the relevant provisions of the Regulatory Offences Code (Administratīvo pārkāpumu kodekss) read as follows.

Section 187

“... Use of a passport which has been replaced by a new passport shall be punishable by a fine of up to 100 lati.”

Section 190-3

“Failure to provide the offices of the Latvian Nationality and Immigration Department with the information to be entered in the register of residents within the time allowed shall be punishable by a fine of between 10 and 25 lati.”

An agreement between Russia and Latvia on the social welfare of retired military personnel of the Russian Federation and their family members residing on the territory of the Republic of Latvia was signed in Moscow on 30 April 1994. It was ratified by Latvia on 24 November 1994 and came into force on 27 February 1995. Under the terms of the second paragraph of Article 2 of the agreement, persons to whom the agreement applied and who were permanently resident in Latvian territory before 28 January 1992 retained the right to reside without hindrance in Latvia if they so wished.

Section 360(4) of the Administrative Procedure Act (Administratīvā procesa likums), in force since 1 February 2004, provides:

“An administrative act may not be executed if more than three years have elapsed since it became enforceable. In calculating the limitation period, any period during which implementation of the administrative act was suspended shall be deducted.”

The main provisions governing interviews similar to that complained of by the first applicant are contained in the Law of 16 December 1993 on operational measures (Operatīvās darbības likums). The “operational measures” referred to in the Law cover all operations, covert or otherwise, aimed at protecting individuals, the independence and sovereignty of the State, the constitutional system, the country’s economic and scientific potential, and classified information against external or internal threats (section 1). Operational measures are aimed in particular at preventing and detecting criminal offences, tracing the perpetrators of criminal offences and gathering evidence (section 2).

The most straightforward measure is the “intelligence-related operational procedure” (operatīvā izzināšana), designed to “obtain information on events, persons or objects” (section 9(1)). The procedure takes one of the following forms:

(i) an “operational request for intelligence” (operatīvā aptauja), during which “the persons concerned are asked questions about the facts of interest to the [relevant] authorities” (section 9(2));

(ii) “operational intelligence gathering” (operatīvā uzziņa), which involves “gathering information relating to specific persons” (section 9(3));

(iii) “operational clarification of intelligence” (operatīvā noskaidrošana), consisting in obtaining information by covert or indirect means where there is reason to suspect that the informer will be unwilling to supply the information directly (section 9(4)).

All operational measures must be implemented in strict compliance with the law and human rights. In particular, no harm – physical or otherwise – may be caused to the persons concerned, nor may they be subjected to violence or threats (section 4(1) to (3)). Any person who considers that he or she has suffered harm as a result of the actions of a member of the security forces may lodge a complaint with the prosecuting authorities or the relevant court (section 5).

Under section 15 of the 5 May 1994 National Security Establishments Act (Valsts drošības iestāžu likums), the security police come under the supervision of the Ministry of the Interior. They have powers to deploy operational measures in order to combat corruption.


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

The applicant was born in 1936 and lives in Preserje.

The Slovenian Government (“the Government”) were represented by their Agent, Mr L. Bembič, State Attorney-General.

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

On 18 November 1985 the applicant’s daughter S.F. made a contract of purchase with a company named Stanovanjska zadruga SCT (“SCT”) to buy a house which SCT was planning to build. S.F. later divorced and changed her name to S.B.

On 29 January 1988 the applicant and her husband instituted civil proceedings on behalf of their daughter (“the plaintiff”) in the Ljubljana Basic Court (Temeljno sodišče v Ljubljani) requesting that SCT comply with the contract and seeking damages for non-completion. They had legal representation in these proceedings.

On 7 March 1989, after two hearings were held, the court issued an interim judgment upholding S.F.’s claim on the merits.

On 29 March 1989 SCT lodged an appeal with the Ljubljana Higher Court (Višje sodišče v Ljubljani).

On 25 October 1989 the court allowed the appeal and set aside the first-instance court’s judgment as it was premature.

In order to estimate the amount of damage incurred by the plaintiff, the first-instance court appointed two experts in construction engineering, one of whom was subsequently replaced by another expert.

Until 28 June 1994, the day the Convention took effect with respect to Slovenia, the court held three hearings.

On 1 January 1995 the reform of the Slovenian judicial system took effect and the case was transferred to the Ljubljana Local Court (Okrajno sodišče v Ljubljani).

On 13 December 1995 the plaintiff requested that a date be scheduled for a hearing.

On 5 November 1996 the court held a hearing.

On 8 January 1997 the court, upon the plaintiff’s request, appointed a new expert in construction engineering who delivered an expert opinion on 4 November 1997.

On 7 April 1998 the court held a hearing where the plaintiff increased her claim. As a result, SCT raised an objection to the amendment, arguing that the claim was barred by prescription (zastaranje). It also objected to the subject-matter jurisdiction of the court. The latter dismissed the objections in a separate decision issued that same day.

On 29 May 1998 SCT appealed against this decision to the Ljubljana Higher Court.

On 25 November 1998 the court allowed the appeal, set aside the contested decision and remitted the case to the first-instance court for fresh examination.

On 1 October 1999 the Ljubljana Local Court held a hearing and declared the case out of its jurisdiction. It transferred the case to the Ljubljana District Court (Okrožno sodišče v Ljubljani).

On 11 June 2001 the Ljubljana District Court held a hearing and heard one of the appointed experts.

On 22 June 2001 the court sought additional information from the appointed expert which he provided five days later.

On 5 July 2001 the court held a hearing. SCT informed the court that bankruptcy proceedings had been instituted against it. The court decided to issue a written judgment.

The judgment, upholding S.B.’s claim in part, was served on the plaintiff on 24 September 2001.

On 21 November 2001 the applicant’s lawyer also received a copy of the judgment.

On 30 October 2001 the judgment of 5 July 2001 became final.


Preliminary objection dismissed (ratione materiae);Violation of Art. 6-1;Violation of P1-1;Non-pecuniary damage - finding of violation sufficient;Pecuniary damage - Government to pay the judgment debt

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

The applicant is a privately owned commercial company, Regent Engineering International Limited, registered in Victoria (the Seychelles). The company’s actual address is in London (United Kingdom). It was represented before the Court by its director, Mr Yuriy Portnik, who resides in London.

In December 1998 COM s.r.o. (“COM”), a limited liability company registered in Prague (Czech Republic) instituted proceedings in the International Commercial Arbitration Court at the Chamber of Commerce and Industry of Ukraine (Міжнародний комерційний арбітражний суд при Торгівельно-Промисловій палаті України – “the Arbitration Tribunal”) against an open joint-stock company, Oriana, seeking an award for breach of contract. In particular, COM claimed that Oriana, a company registered in the city of Kalush (Ivano-Frankivsk Region), with 99.9% of its shares owned by the State, had failed to comply with its contractual obligations concerning the processing of raw materials.

On 23 December 1998 the Arbitration Tribunal made an arbitration award (case AC no. 142y/98) ordering the Oriana company to pay COM the amount of 2,466,906.47 United States dollars (USD) in compensation.

On 19 July 1999 COM lodged an application with the Ivano-Frankivsk Regional Arbitration Court (“the Regional Arbitration Court”) seeking a ruling that COM was a creditor in relation to the Oriana company, on the basis of the 23 December 1998 award.

On 2 August 1999 the Kalush State Bailiffs’ Service of the Ministry of Justice (“the Bailiffs’ Service”) instituted enforcement proceedings against Oriana in order to collect the debt from it as ordered by the Arbitration Tribunal. These enforcement proceedings were joined to the other enforcement proceedings that were pending against Oriana.

On 16 October 1999 the Regional Arbitration Court rejected the applicant company’s request to initiate bankruptcy proceedings against Oriana.

On 18 and 21 October 1999 the Bailiffs’ Service initiated the attachment of the property owned by Oriana. On 13 December 1999 the Bailiffs’ Service quashed the decision on the attachment of Oriana’s assets.

On 14 December 1999 the property owned by Oriana was attached again. On 16 December 1999 the Bailiffs’ Service decided to sell some of the property that had been attached (the Oriana company’s polymerisation workshop).

On 20 September 2000 COM again requested the Regional Arbitration Court to institute bankruptcy proceedings against Oriana. It also sought a ruling including it on the list of Oriana’s creditors.

Between 1999 and 2003 the Bailiffs’ Service took a number of measures to obtain payment of the debts accumulated by Oriana. In particular, it sent payment orders to the debtor’s bank, seized its assets, prohibited the unauthorised sale of property belonging to Oriana and attempted to sell some of the company’s property in order to pay its debts. It also attached the Oriana company’s bank accounts and its shares (including the shares which Oriana owned in the Lukor company).

At the same time, the enforcement proceedings were suspended several times because Oriana contested the bailiffs’ actions before the courts and because its numerous creditors filed applications with the court seeking an insolvency order in respect of the company.

On 18 September 2002 the Ivano-Frankivsk Regional Commercial Court (formerly the Ivano-Frankivsk Regional Arbitration Court) instituted bankruptcy proceedings against Oriana. These proceedings are still pending.

On 22 January 2003 COM requested the Ivano-Frankivsk Regional Commercial Court to include it on the list of creditors of the Oriana company.

On 10 February 2003 the applicant company concluded a contract with COM concerning the transfer of the latter’s right to claim the debt awarded by the Arbitration Tribunal on 23 December 1998.

On 8 June 2004 the applicant company and COM requested that the Arbitration Tribunal recognise the applicant company as the creditor in the arbitration proceedings against Oriana on the basis of the above-mentioned contract. On 21 June 2004 the President of the Arbitration Tribunal dismissed their request, stating that the Arbitration Tribunal had been dissolved after having made the award of 23 December 1998.

On 9 July 2004 the applicant company and COM requested that the Ivano-Frankivsk Regional Court of Appeal (“the Court of Appeal”) declare the applicant company to be legally entitled to the debt awarded to COM by the Arbitration Tribunal on 23 December 1998.

On 16 July 2004 the applicant company and COM requested the Bailiffs’ Service to change the creditor in the enforcement proceedings on the basis of the contract.

On 9 September 2004 the applicant company and COM requested the Court of Appeal to declare that the applicant company was the Oriana company’s creditor and to substitute the applicant company for COM as a party to the enforcement proceedings on the same grounds as mentioned above.

On 10 September 2004 the Court of Appeal allowed the applicant company’s request. It declared the applicant company to be Oriana’s creditor in respect of the debt of USD 2,466,906.47 resulting from the arbitration award of 23 December 1998.

On 18 November 2004 the applicant company and COM requested the Bailiffs’ Service to substitute the applicant company for COM in the enforcement proceedings against Oriana.

On 9 December 2004 the Bailiffs’ Service substituted the applicant company for the original creditor in the enforcement proceedings on the basis of the ruling of 10 September 2004.

On 29 December 2005 the Ivano-Frankivsk Regional Commercial Court (“the Regional Commercial Court”) ruled that the Bailiffs’ Service had to discontinue the enforcement proceedings.

On 30 December 2005 the Bailiffs’ Service discontinued the enforcement proceedings and transferred the writs of enforcement to Oriana’s property administrator (розпорядник майна).

On 23 January 2006 the applicant company requested the Regional Commercial Court to amend the list of Oriana’s creditors and to include it on this list on the basis of the contract of 10 February 2003 and the ruling of the Court of Appeal of 10 September 2004.

On 6 February 2006 the Regional Commercial Court allowed the applicant company’s request and ordered that the administrator of the Oriana company’s property make the relevant amendments to the list of creditors.

On 27 February 2006 the applicant company requested to be informed whether the Bailiffs’ Service had substituted it for COM in the list of creditors in the enforcement proceedings against Oriana.

The enforcement proceedings are still pending.

Under section 12 of the Law (Закон України “Про відновлення платоспроможності боржника або визнання його банкрутом”), a commercial court is entitled to order a moratorium on debt recovery from a company which is the subject of insolvency proceedings. The moratorium entails a prohibition on execution by the Bailiffs’ Service of judgments against the company concerned. The same section provides that a company protected by the moratorium is immune from any fines and other sanctions for non-fulfilment or improper fulfilment of its financial obligations during the moratorium.

The Law (Закон України “Про введення мораторiю на примусову реалiзацiю майна”) aims at protecting State interests with regard to the sale of assets belonging to undertakings in which the State holds at least 25% of the share capital. A moratorium on the enforcement of judgment debts has been introduced until the mechanism for the forced sale of the property of such undertakings is improved. No time-limit has been set.

Section 2 of the Law provides that the prohibition on the forced sale of assets includes the execution of writs by the State Bailiffs’ Service on the assets belonging to such companies. The Law therefore stays the execution of all writs by the State Bailiffs’ Service in respect of the assets of undertakings in which the State holds at least 25% of the share capital.

Under Article 214 of the Civil Code, in the event of delay in the fulfilment of its financial obligations, a debtor must, upon a claim by the creditor, pay the amount of the debt, plus any interest payable at the officially established inflation rate during the default period.

Chapter 40 (“Compensation for damage”) of the Civil Code provides for compensation for damage and establishes the grounds for such compensation. Chapter VII (“Protection of property”) of the Ownership Act guarantees protection of property and allows for court action in such matters. Also, Articles 197-202 of Chapter 17 (“Reassignment of debts”) of the Civil Code provide for the conclusion of transfer contracts and the reassignment of rights to claim debt recovery.

Under section 2 of the Act (Закон України “Про виконавче провадження”), the enforcement of judgments is entrusted to the State Bailiffs’ Service. Under section 85 of the Act, the creditor may file a complaint against actions or omissions of the State Bailiffs’ Service with the head of the competent department of that service or with a local court. Section 86 of the Act entitles the creditor to institute court proceedings against a legal person entrusted with the enforcement of a judgment on account of the inadequate enforcement or non-enforcement of that judgment, and to receive compensation.

Under the Enforcement Proceedings Act, awards made by arbitration tribunals (третейські суди) are subject to enforcement by the State Bailiffs’ Service (section 3(1) of the Act) and are therefore treated as equivalent to judgments delivered by domestic courts.

Section 11 of the Act (Закон України “Про державну виконавчу службу”) provides for the liability of bailiffs for any inadequate performance of their duties, and for compensation for damage caused by a bailiff when enforcing a judgment. Under section 13 of the Act, acts and omissions of the bailiff can be challenged before a superior official or the courts.

There have been several resolutions of the Cabinet of Ministers in relation to the financial situation of the Oriana company:

(a) no. 1650 of 19 October 1998 (on measures aimed at preventing Oriana’s bankruptcy and on the transfer of the company’s management to the Shelton enterprise);

(b) no. 1280 of 16 July 1999, which quashed the previous resolution on Oriana (it also related to measures aimed at ensuring Oriana’s financial and economic well-being and the restructuring of its debts);

(c) resolution no. 800 of 10 May 1998 (on the approval of the list of enterprises exempt from land tax payment in 1999);

(d) no. 92-p of 19 February 2000 (on privatisation of the Oriana company);

(e) no. 314-p of 10 August 2000 (on payment of Oriana’s debts for the loans it received);

(f) no. 810-p of 28 October 2004 (suspending privatisation of Oriana, following the sale of 47.93% of shares in the Oriana company to CJSC Lukor, a closed joint-stock company founded by Oriana and Lukoil, a Russian company).

On 3 August 2000 the Cabinet of Ministers adopted a procedure for payment of Oriana’s debts from the State budget, amounting to USD 34,115,000.

On a number of occasions the Government included Oriana on the list of State-owned companies which had strategic importance for Ukraine’s economic well-being and security and were thus to be excluded from privatisation (see, for instance, resolutions nos. 1346 and 1734 of the Cabinet of Ministers of 29 August 2000 and 23 December 2004).

The Government also undertook to fund compensation for environmental damage caused by the Oriana company’s operations (resolution no. 593 of the Cabinet of Ministers of 18 July 2005).

In its resolution of 19 August 2002 the Cabinet of Ministers adopted an action plan providing for the elimination of environmental damage caused by the operation of Kaliyny Zavod, an enterprise belonging to the Oriana company. The action plan provided for the allocation of 33,800,000 Ukrainian hryvnas (UAH) from the State budget for necessary environmental work during the period from 2003 to 2012.

In decision no. 308-p of 3 August 2005 the Prime Minister ordered the Cabinet to examine Oriana’s financial problems and to take the necessary steps for its economic development.

Also, it ensues from the report of 15 December 2004 by the State Property Fund that the State, and in particular the State Property Fund, managed Oriana’s “corporate rights” (its corporate investments). In particular, on 26 May 2006 the State Property Fund appointed the State’s representative to Oriana’s supervisory board and ordered that the relevant structural department of the State Property Fund should issue a letter of authority for the representative enabling him to manage the State’s shares in the company.

In its judgment the Constitutional Court found that the Law of 29 November 2001 on the introduction of a moratorium on the forced sale of property complied with the Constitution of Ukraine. It also held that the Law at issue did not violate the constitutional principle of the binding nature of court judgments. Court judgments requiring the forced sale of the property of enterprises, given both prior to and after the Law was adopted, had not been set aside; they remained in force, and their enforcement was merely suspended until the mechanism for the forced sale of property was improved. That meant that the Law extended the term for enforcement of judgments during that period (“period of legislative improvement”).

The relevant provisions of Chapter VIII of the Act, concerning the recognition and enforcement of awards, read as follows:

“In matters governed by the present Act, no court shall intervene except where so provided in the present Act.”

“1. The functions referred to in sections 11(3), 11(4), 13(3) and 14 shall be performed by the President of the Ukrainian Chamber of Commerce and Industry.

The functions referred to in sections 16(3) and 34(2) shall be performed by the Appeal Court of the Autonomous Republic of Crimea, regional appeal courts or appeal courts of the cities of Kyiv and Sevastopol, depending on where the arbitration takes place.” (On 6 September 2005 the Verkhovna Rada amended this provision and allowed the local district courts of first instance to perform these functions.)

“1. An arbitration award, irrespective of the country in which it was made, shall be recognised as binding and, upon a written application to the competent court, shall be enforced subject to the provisions of this section and of section 36.

The party claiming an award or applying for its enforcement shall supply the duly authenticated original award or a duly certified copy thereof, and the original arbitration agreement referred to in section 7 or a duly certified copy thereof. If the award or agreement is made in a foreign language, the party shall supply a duly certified translation thereof into the Ukrainian or Russian language.”

“... 4. An award of the International Commercial Arbitration Court shall be carried out by the parties voluntarily within the time limit indicated by the Court. If the award does not indicate any time limit, it shall be carried out immediately. Awards not carried out within the applicable time limit shall be enforced in accordance with law and international treaties.”

The relevant extracts from the Rules of the International Commercial Arbitration Court (as approved by the decision of the Presidium of the Ukrainian Chamber of Commerce and Industry of 25 August 1994, Protocol no. 107(3), with amendments resulting from the decision of 26 September 2001 of the Presidium of the Ukrainian Chamber of Commerce and Industry) provide as follows:

“... 9.1. An arbitration award may be challenged in court only by means of an application for setting aside in accordance with paragraphs 2 and 3 of Rule 9 of the present Rules.

9.2. An arbitration award may be set aside in accordance with section 6(2) of the International Commercial Arbitration Act by the Shevchenkivsky District Court of Kyiv only if:

(1) the party making the application for setting aside furnishes proof that:

a party to the arbitration agreement referred to in Rule 1.2 above was subject to an incapacity; or the said agreement is not valid under the law to which the parties have subjected it or, in the absence of any indication thereof, under the law of Ukraine; or

a party was not given proper notice of the appointment of an arbitrator or of the arbitration proceedings or was otherwise unable to present its case; or

the award was made regarding a dispute not contemplated by or not falling within the terms of the submission to arbitration, or, where it contains decisions on matters beyond the scope of the submission to arbitration, provided that the decisions on the matters submitted to arbitration can be separated from those not so submitted, only that part of the award which contains decisions on matters not submitted to arbitration may be set aside; or

the composition of the Arbitration Tribunal or the arbitration proceedings were not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of the International Commercial Arbitration Act from which the parties cannot derogate, or, in the absence of such agreement, were not in accordance with this Act; or

(2) the court finds that:

the subject matter of the dispute is not capable of settlement by arbitration under the law of Ukraine; or

the award is in conflict with the public policy of Ukraine.

9.3. An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the award or, if the request had been made under Rules 8.16-8.18 above, from the date on which that request had been disposed of by the Arbitration Tribunal.”

“10.1. An award by the Arbitration Tribunal shall be final. It shall be executed by the parties voluntarily within the time-limit indicated by the Arbitration Tribunal.

If the award does not indicate any time-limit, it shall be executed immediately.

10.2. An arbitration award shall be recognised as binding and, in the event of refusal to execute it voluntarily, it shall be enforced depending on the respondent’s location.

If the debtor is in Ukraine, the award by the International Commercial Arbitration Court at the UCCI shall be enforced upon an application in writing to the competent court at the place of the debtor’s location in accordance with the International Commercial Arbitration Act and the rules of civil procedure in Ukraine.

If the debtor is abroad, the claimant’s application in writing shall be communicated to the competent court of the country where the debtor is located and in accordance with Article III of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) or an inter-State agreement, the relevant court of the Contracting State shall recognise and enforce awards of the International Commercial Arbitration Tribunal in accordance with the rules of procedure of the territory where the award is being relied upon.

10.3. To obtain the recognition and enforcement of the award, the party applying for recognition and enforcement shall, at the time of the application, supply to the competent State court the duly authenticated original award or a duly certified copy thereof, and also the original arbitration agreement referred to in Rule 1.2 above or a duly certified copy thereof. If the said application, award or agreement is not made in an official language of the country in which the award is being relied upon, the party applying for recognition and enforcement of the award shall produce a translation of these documents into such language in two copies. The translation shall be certified by an official or sworn translator or by a diplomatic or consular agency.”