Violation of P4-2;Violation of P7-1;Non-pecuniary damage - financial award

The applicant was born in 1974 and lives in Kapaklı, Turkey.

From 1998 to 2003 the applicant, an ethnic Kabardinian, lived in the Kabardino-Balkarian Republic of the Russian Federation on the basis of a long-term residence permit (vid na zhitelstvo).

In early 2000 the applicant's residence permit was lost or stolen. On 22 February 2000 he asked the Passports and Visas Department of the Ministry of the Interior of the Kabardino-Balkarian Republic (passportno-vizovaya sluzhba MVD KBR) to replace the permit and to extend it until 5 August 2003.

After a few months' delay the applicant was issued with a new residence permit valid until 9 July 2000. The shortened term of validity was explained by reference to a recommendation of the Federal Security Service of the Russian Federation, which considered a longer extension “inappropriate” because the circumstances surrounding the loss of the first permit had not been clear enough.

The applicant complained to a court. On 1 June 2000 the Nalchik Town Court allowed the applicant's complaint and ordered the Passports and Visas Department to extend his residence permit until 4 August 2003.

On 7 June 2002 the applicant was fined for having breached the residence regulations. He did not contest the fine before a court.

After 5 December 2002 the applicant's registered place of residence was a flat on Kulieva avenue in Nalchik. His residence registration at that address was valid until 4 August 2003. Department of the Interior No. 1 of Nalchik (Pervyi otdel vnutrennikh del g. Nalchika) placed a stamp to that effect in the applicant's residence permit.

On 11 December 2002 the applicant was at a friend's flat in Furmanova street in Nalchik where he had stayed overnight. At 9 a.m. a man and a woman entered the flat. The woman introduced herself as a police inspector of Department of the Interior No. 2 of Nalchik; the man did not identify himself. The man and woman claimed that they were conducting a “check-up of identity documents”. The applicant's friend, Mr Kh., refused them entry to the flat, but they entered nevertheless. They proceeded to the room where the applicant was and asked him to produce identity documents. On seeing a different address in his residence permit, the woman asked the applicant why he did not live at home. The woman invited the applicant to come with them to the police station, which the applicant did. The applicant stayed at the station while a report was being drawn up.

On the same day Inspector A. drew up a report of an administrative offence and issued a decision to fine the applicant RUR 500 (approximately EUR 20) for “residing in Furmanova street without registering his place of stay” which was an offence under Article 18.8 of the Administrative Offences Code. Inspector A. asked the applicant to pay the fine on the spot. The applicant refused and complained to a court.

On 24 December 2002 the Nalchik Town Court heard the applicant's complaint. The court reiterated that the Russian Constitution guaranteed to anyone who lawfully resided in its territory the freedom to move freely and choose his or her place of residence and stay and that that provision also applied to foreign nationals. The court took statements from the applicant, his friend Mr Kh. and another person who had been in the flat in Furmanova street on 11 December 2002; they all maintained that the applicant had paid a visit to his friend and had not been living in Mr Kh.'s flat. Furthermore, Ms Sh., the owner of the flat on Kulieva avenue, confirmed that she had made her flat available to the applicant for residential purposes and that he had been duly registered at her address. The Town Court came to the conclusion that no administrative offence had been committed and annulled the decision of 11 December 2002. The police lodged an appeal.

On 20 January 2003 the Supreme Court of the Kabardino-Balkarian Republic quashed the judgment of 24 December 2002 on procedural grounds and remitted the case for examination by a different formation.

On 26 February 2003 the Nalchik Town Court dismissed the applicant's complaint, finding as follows:

“The administrative proceedings against [the applicant] were initiated, and a fine in the amount of 500 roubles was imposed on him, not only on the basis of the obvious fact, established by Inspector A., that [the applicant] had been outside his place of residence but also on the basis of the report drawn up by O. and Sh., district police officers of Department of the Interior No. 3 of Nalchik, on [the applicant's] residence in the Furmanova street flat from 20 November to 11 December 2002... [These police officers] gave statements as witnesses and stated that they had learnt from operational sources that a foreigner, named Bolat Haci-Bayram, was secretly living in Kh.'s flat...

At the same time the complainant and the witnesses Mr Kh. and Ms Sh. failed to satisfy the court that [the applicant] had only stayed overnight at Kh.'s on the night of 10-11 December 2002 because of heavy frost outside and the need to avoid returning to a remote district of the town. In particular, Ms Sh. did not inform the court on what date she had visited [the applicant] on Kulieva avenue and how many days before the administrative offence report was drawn up he might have been staying at Mr Kh.'s... Besides, the court takes into account that the witnesses examined on behalf of the complainant are his relatives or friends and might have an interest in the outcome of the case. Additionally, the court has examined a report by [the police officer Kha.] which stated that during checks he could not verify the applicant's residence either at the old or at the new address.”

The applicant appealed against the judgment. In the grounds of appeal the applicant's lawyer alleged, in particular, that the fine had been imposed in the applicant's absence by a police officer who had not been competent to do so, that the report of an administrative offence had not been corroborated by any evidence and that the sanction had not been imposed in accordance with law. The lawyer also submitted that the first-instance court had erred in its assessment of statements by the police officers O. and Sh. who had denied that they had known the applicant, and that the court had admitted in evidence a report by the officer Kha. who had not been examined before or at the hearing.

On 19 March 2003 the Supreme Court of the Kabardino-Balkarian Republic upheld the judgment of 26 February 2003. It rejected the applicant's arguments that he had been unlawfully fined, on the ground that he had allegedly failed to raise these issues before the Town Court. The Supreme Court did not address the applicant's inability to question the officer Kha. Instead, it found that “on 30 November 2002 Mr Af., district inspector of the first department of the interior of Nalchik, reported to his superior that the flat on Kulieva avenue was empty”. The remainder of the Supreme Court's reasoning was similar to that of the Town Court.

On 31 March 2003 the applicant and his lawyer asked the Presidium of the Supreme Court of Kabardino-Balkaria to lodge an application for supervisory review. On 6 June 2003 the request was refused.

On 4 February 2003 the applicant applied by mail for an extension of his residence permit to 30 July 2007. On 6 March 2003 the Passports and Visas Department informed him that he had to apply for an extension in person. The applicant responded in writing that there was no such requirement in the domestic law.

On 29 May 2003 the town prosecutor of Nalchik sent a request to remedy a violation of Russian laws (predstavlenie ob ustranenii narushenii zakonov RF) to the head of the Passports and Visas Department. The prosecutor requested that the applicant's residence permit be annulled and that he be expelled because he had been found guilty of two administrative offences in the previous year.

On 30 May 2003 Inspector Sh. of the Passports and Visas Department annulled the applicant's residence permit on the ground of repeated violations of residence regulations in the Russian Federation. The order was approved by the Minister of the Interior of Kabardino-Balkaria. The applicant was ordered to leave Russia within fifteen days.

On 9 June 2003 the Nalchik Town Court stayed the execution of the order of 30 May 2003 pending the Supreme Court's decision on a request by the applicant for supervisory review.

On 7 August 2003 at about 10 a.m. several officers of the Ministry of the Interior and the Federal Security Service entered the applicant's flat on the Kulieva prospect. Some of them wore face masks. They did not identify themselves and they did not present any search or deportation warrant. The applicant was handcuffed and taken by car to Nalchik Airport where he was placed on a flight to Istanbul, Turkey.

On 8 October 2003 the Supreme Court of Kabardino-Balkaria, giving a ruling in the supervisory-review procedure, quashed the decision on an administrative offence of 11 December 2002 and the judgment of the Nalchik Town Court of 26 February 2003, finding that there had been no admissible evidence showing that the applicant had lived outside the place of his residence registration. It noted that the reports by police officers O. and Sh. had been based on hearsay and that officer Kha.'s report had not confirmed the applicant's residence in Furmanova street either. Furthermore, it pointed out that the Town Court's requirement of proof that the applicant had only been a guest in Furmanova street ran contrary to the presumption of innocence enunciated in Article 1.5 of the Administrative Offences Code. Finally, it noted that the administrative charge against the applicant had been examined by an officer of the police station having no territorial jurisdiction over Furmanova street and that this fact alone had rendered the sanction unlawful. The Supreme Court discontinued the administrative proceedings against the applicant.

On 28 October 2003 the Nalchik Town Court heard the applicant's complaint against the order of 30 May 2003 annulling his residence permit. The court noted that a residence permit could only be annulled in case of repeated violations of residence regulations, but that this provision was no longer applicable as the administrative proceedings against the applicant had been terminated by the decision of 8 October 2003. The court declared the order of 30 May 2003 void and ordered that the Passports and Visas Department extend the applicant's residence permit for five years, starting from 4 August 2003. The judgment was not appealed against and became enforceable on 10 November 2003.

In a separate set of proceedings, the applicant's representative attempted to bring criminal charges against the officials who had deported the applicant by force. On 25 August 2003 he complained to the Nalchik town prosecutor's office about the allegedly unlawful search at the applicant's home and his deportation to Turkey. On 30 August 2003 his complaint was rejected because no evidence of a criminal offence had been adduced. On 20 November 2003 the head of the investigations department of the Kabardino-Balkaria prosecutor's office annulled the decision of 30 August and remitted the complaint for additional investigation. On 3 December 2003 the Nalchik town prosecutor's office again refused to prefer criminal charges on the ground that no evidence of a criminal offence had been adduced. This decision was subsequently quashed, but on 11 December 2003 and 1 February 2004 further orders discontinuing criminal proceedings were issued.

On 9 April 2004 the Passports and Visas Department informed the applicant that it would extend his residence permit in implementation of the Town Court's judgment of 28 October 2003. The Department invited the applicant to appear in person in order to collect the permit.

On 6 July 2004 the applicant's representative, Mr Kuchukov, received the documents for extension of the applicant's residence permit and forwarded them to the applicant in Turkey.

At 6.30 p.m. on 23 August 2004 the applicant arrived in Nalchik on board a flight from Istanbul. On arrival he was detained by officers of the Border Control and the Federal Security Service and locked in an isolated room in the Nalchik airport building. The applicant was not allowed to consult his lawyer, Mr Kuchukov.

On 23 and 24 August 2004 Mr Kuchukov sent complaints about the applicant's unlawful detention to prosecutor's offices of various levels, to the Border Control, to the Federal Security Service and to the Representative of the Russian Federation at the European Court of Human Rights.

At 10 a.m. on 25 August 2004 Mr Kuchukov asked Major D., the head of the Border Control, to see the applicant. His request was refused by reference to an order of the Federal Security Service. Major D. then called Captain G. from the Kabardino-Balkaria Department of the Federal Security Service who confirmed that the applicant's contacts with lawyers had indeed been banned.

At 1.10 p.m. on 25 August 2004 the applicant was put on a scheduled flight to Turkey. It can be seen from the “deportation record” of the same date, drawn up on the letterhead of the Nalchik airport border control point of the Federal Security Service, that the applicant was deported for having been in breach of section 27 § 1 of the Law on the Procedure for Entering and Leaving the Russian Federation.

According to the Government, the ban on the applicant's re-entry into Russia was imposed by the Federal Security Service some time in December 2002 on the basis of Section 25.10 of the Law on the Procedure for Entering and Leaving the Russian Federation. The Government claimed that they could not produce a copy of that decision because it contained “State secrets”. They submitted, however, that the Prosecutor-General's Office had found no reason to challenge that decision before a court as it had been issued in accordance with the requirements of the above law.

In response to the applicant's lawyer's complaints, on 26 August 2004 a senior investigator with the military prosecutor's office of the Border Control of the Federal Security Service refused to initiate a criminal investigation into the applicant's deprivation of liberty at Nalchik Airport. He found that the ban had been imposed by Directorate “I” of the Federal Security Service and that the applicant had awaited the next flight to Turkey in the international zone of Nalchik Airport under the surveillance of the Border Control officers. The room had been equipped with a toilet, ventilation, lighting, a TV set, a bench and a chair. As the Border Control officials had acted in accordance with the applicable regulations, the applicant's stay in the transit area could not be interpreted as a “deprivation of liberty”.

The Government indicated that the Federal Security Service was examining the issue of annulment of the applicant's residence permit in accordance with section 9 (1) of the Foreign Nationals Law.

Everyone lawfully within the territory of the Russian Federation shall have the right to move freely and choose his or her place of stay or residence (Article 27 of the Russian Constitution). Foreign nationals in the Russian Federation shall have the same rights and obligations as Russian nationals subject to exceptions set out in a federal law or an international treaty to which Russia is a party (Article 62 § 3).

A foreign national must register his or her residence within three days of his or her arrival in Russia (section 20 § 1 of the Law on Legal Status of Foreign Nationals in the Russian Federation, no. 115-FZ of 25 July 2002 – “the Foreign Nationals Law”). Foreign nationals must obtain residence registration at the address where they stay in the Russian Federation. Should their address change, such change is to be re-registered with the police within three days (section 21 § 3).

A foreign national who violates the residence regulations of the Russian Federation, including by non-compliance with the established procedure for residence registration or choice of a place of residence, shall be liable to an administrative fine of RUR 500 to 1000 and possible expulsion from Russia (Article 18.8 of the Administrative Offences Code). A report of the offence described in Article 18.8 may be drawn up by officials of the State migration authorities (Article 28.3 § 2 (15)). This report must be forwarded within one day to a judge or an officer competent to adjudicate administrative matters (Article 28.8). The determination of an administrative charge that may result in expulsion from Russia shall be made by a judge of a court of general jurisdiction (Article 23.1 § 3). A right of appeal against a decision on an administrative offence lies to a court or to a higher court (Article 30.1 § 1).

A residence permit may be annulled if a foreign national has been charged two or more times within the last year with violations of residence regulations (section 9 (7) of the Foreign Nationals Law).

A foreign national's residence permit shall be issued for five years. Upon expiry it may be extended for a further five years at the holder's request. The number of extensions is not limited (section 8 (3) of the Foreign Nationals Law).

A residence permit may be annulled, particularly if the foreign national advocates a violent change of the constitutional foundations of the Russian Federation or otherwise creates a threat to security of the Russian Federation or its citizens (section 9 (1) of the Foreign Nationals Law).

Administrative expulsion of a foreign national from the Russian Federation must be ordered by a judge (Articles 3.10 § 2 and 23.1 § 3 of the Administrative Offences Code).

A foreign national may be refused entry into the Russian Federation if such refusal is necessary for the purpose of ensuring the defensive capacity or security of the State, or for the protection of public order or public health (section 27 § 1(1) of the Law on the Procedure for Entering and Leaving the Russian Federation, no. 114-FZ of 15 August 1996).

On 10 January 2003 the Law on the Procedure for Entering and Leaving the Russian Federation was amended. In particular, a new section 25.10 was added. It provided that a competent authority, such as the Ministry of Foreign Affairs or the Federal Security Service, could issue a decision that a foreign national's presence on Russian territory was undesirable, even if his or her presence was lawful, if it created a real threat to the defensive capacity or security of the State, to public order or health, etc. If such a decision was made, the foreign national had to leave Russia or else be deported. That decision also formed the legal basis for subsequent refusal of re-entry into Russia.

Resolution 1277 (2002) on honouring of obligations and commitments by the Russian Federation, adopted by the Parliamentary Assembly of the Council of Europe on 23 April 2002, noted in the relevant part as follows:

“8. However, the Assembly is concerned about a number of obligations and major commitments with which progress remains insufficient, and the honouring of which requires further action by the Russian authorities:

xii. whilst noting that the Russian federal authorities have achieved notable progress in abolishing the remains of the old propiska (internal registration) system, the Assembly regrets that restrictive registration requirements continue to be enforced, often in a discriminatory manner, against ethnic minorities. Therefore, the Assembly reiterates its call made in Recommendation 1544 (2001), in which it urged member states concerned 'to undertake a thorough review of national laws and policies with a view to eliminating any provisions which might impede the right to freedom of movement and choice of place of residence within internal borders'...”

The Explanatory Report defines the scope of application of Article 1 of Protocol No. 7 in the following manner:

“9. The word 'resident' is intended to exclude from the application of the article any alien who has arrived at a port or other point of entry but has not yet passed through the immigration control or who has been admitted to the territory for the purpose only of transit or for a limited period for a non-residential purpose...

The word lawfully refers to the domestic law of the State concerned. It is therefore for domestic law to determine the conditions which must be fulfilled for a person's presence in the territory to be considered 'lawful'.

[A]n alien whose admission and stay were subject to certain conditions, for example a fixed period, and who no longer complies with these conditions cannot be regarded as being still 'lawfully' present.”

The Report further cites definitions of the notion of “lawful residence” contained in other international instruments:

“a. Residence by an alien in the territory of any of the Contracting Parties shall be considered lawful within the meaning of this Convention so long as there is in force in his case a permit or such other permission as is required by the laws and regulations of the country concerned to reside therein...

b. Lawful residence shall become unlawful from the date of any deportation order made out against the person concerned, unless a stay of execution is granted.”

“a. Regulations governing the admission, residence and movement of aliens and also their right to engage in gainful occupations shall be unaffected by this Convention insofar as they are not inconsistent with it;

b. Nationals of a Contracting Party shall be considered as lawfully residing in the territory of another Party if they have conformed to the said regulations.”

The Report clarifies the notion of “expulsion” as follows:

“10. The concept of expulsion is used in a generic sense as meaning any measure compelling the departure of an alien from the territory but does not include extradition. Expulsion in this sense is an autonomous concept which is independent of any definition contained in domestic legislation. Nevertheless, for the reasons explained in paragraph 9 above, it does not apply to the refoulement of aliens who have entered the territory unlawfully, unless their position has been subsequently regularised.

Paragraph 1 of this article provides first that the person concerned may be expelled only 'in pursuance of a decision reached in accordance with law'. No exceptions may be made to this rule. However, again, 'law' refers to the domestic law of the State concerned. The decision must therefore be taken by the competent authority in accordance with the provisions of substantive law and with the relevant procedural rules.”


Violation of Art. 5-3;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses partial award - Convention proceedings

The applicant was born in 1961 and is currently detained in Corradino Prison (Malta).

In November 1995 the applicant was arrested and charged with trafficking in dangerous drugs. On 15 May 1996, while he was in pre-trial detention, a fresh charge of complicity in attempted wilful homicide was brought against him. The applicant was accused of having tried, by means of an instruction issued to third parties, to kill Mr Richard Cachia Caruana, the personal assistant to the Prime Minister, on account of Mr Caruana's role in the separate proceedings on the charge of trafficking in dangerous drugs. The events in issue allegedly occurred before and on 18 December 1994. Expert forensic reports were submitted in January and February 1995.

The applicant was subsequently placed in detention on remand in connection with this new criminal charge also.

From the date of the applicant's arraignment (15 May 1996) until 13 August 1996, twenty-three hearings took place before the Court of Magistrates, acting as a court of criminal inquiry. A number of police officers, experts and witnesses, including Mr Joseph Fenech, an accomplice who had made a confession and had been granted a pardon, were cross examined by the parties. A number of objections were raised by the prosecution and the defence about the questions put by the other party. The court issued a ban on the publication of reports and articles about the proceedings before it.

On 13 August 1996 the Court of Magistrates appointed a graphologist and concluded that there were sufficient grounds for the filing of a bill of indictment against the applicant.

However, on 16 September 1996 the Attorney General asked the Court of Magistrates to re-open the proceedings in order to hear four witnesses, namely two other accomplices of the applicant, a doctor who had been on duty on the day the victim was admitted to hospital, and the graphologist appointed on 13 August 1996. On 30 September 1996 the court heard the first three witnesses. The two accomplices refused to give evidence in order not to incriminate themselves. The court revoked the appointment of the expert and asked the registrar to provide it with a new list of experts.

On 1 November 1996 the Attorney General again asked the court to reopen the proceedings and to explain the reasons for revoking the appointment of the expert; to identify handwriting experts, including foreign ones; and to hear all the evidence the police could adduce.

On 13 November 1996 the Court of Magistrates appointed a new graphologist, Mr Manfred Hecker.

On 12 December 1996 the Attorney General requested once again that the inquiry be re-opened. He asked that Mr Hecker and Mr Fenech be heard, the latter being requested to give explanations about the record of his interrogation by the police. Moreover, he asked that some documents previously exhibited be listed in detail, while other documents not already exhibited should be produced by the registrar. A hearing, during which Mr Fenech was examined, took place on 8 January 1997.

On 28 February 1997 the Attorney General requested that the inquiry be re-opened for the following matters: to correct a mistake in the records; to hear Mr Hecker; to produce various newspapers; to complete the appointment of another expert and have him produce some photographs; and to hear two new witnesses.

On 11 March 1997, after the examination of five witnesses, the hearing was adjourned as Mr Hecker was not in Malta. He gave evidence on 24 March 1997.

On 25 March 1997 the registrar informed the court that the evidence produced on 11 March 1997 had not been properly recorded and that the witnesses heard during that sitting should be summoned again.

On 30 April 1997 the Attorney General requested the re-opening of the inquiry in order to hear Mr Hecker and other witnesses, as well as the witnesses examined on 11 March 1997. With the exception of Mrs Lilian Zahra, who was abroad, the witnesses concerned were examined by the prosecution on 21 May 1997. Counsel for the defence, who was attending another trial, was not present and reserved his right to crossexamine the witnesses. At the Attorney General's request, on 30 July 1997 Mrs Zahra was examined. At the end of the sitting, the court returned the documents relating to the proceedings to the Attorney General.

The bill of indictment against the applicant for the charge of complicity in attempted wilful homicide was filed on 6 August 1997.

On 7 August 1997 the applicant was provisionally released on bail in relation to the charge of trafficking in dangerous drugs. However, the applicant could not leave the prison as he was still required to remain in pretrial detention on the charge of complicity in attempted murder.

In two separate notes of 1 September 1997 the applicant filed several preliminary pleas, challenging the validity of the bill of indictment and the admissibility of a number of documents and prosecution witnesses. The applicant also requested that 146 witnesses be heard on his behalf.

On 5 September 1997 the Attorney General contested the admissibility of certain documents and witnesses referred to by the defence.

A number of hearings on the preliminary pleas took place before the Criminal Court. In particular, the applicant's case was discussed on 22 and 27 October 1997. On 30 October 1997, the case was adjourned until the following day because counsel for the applicant failed to appear. The case was further discussed on 31 October and 1 December 1997, then postponed until 15 December 1997, on which date the applicant informed the court that his counsel had fallen ill. The case was adjourned first until 7 January, then until 6 February 1998. On that date and on 13 February 1998 the Criminal Court heard oral submissions from the parties.

The following hearing, initially scheduled for 2 March 1998, was postponed until 30 April 1998 on the ground that the court needed more time to deliberate. On 30 April 1998 the Criminal Court delivered its judgment on all the preliminary pleas. Both the defence and the prosecution declared that they intended to appeal. The case was adjourned pending the decision on the parties' appeals.

On 6 May 1998 the applicant appealed against the Criminal Court's judgment of 30 April 1998. The prosecution did not appeal.

On 9 August 1999 the Court of Criminal Appeal set the appeal down for hearing on 7 October 1999. The hearing was then adjourned until 25 October 1999 on the ground that one of the sitting judges was ill. On 25 October 1999 the parties made their oral submissions. The next hearing, initially scheduled for 4 November 1999, was postponed first until 9 November 1999, then until 25 November, and finally until 11 January 2000 at the request of the defence, on the ground that the accused had appeared in court unassisted. The Court of Criminal Appeal heard further oral submissions by the parties on 11 January and 7, 9 and 20 March 2000.

On 3 May 2000 the Court of Criminal Appeal partly quashed the Criminal Court's judgment of 30 April 1998.

The case concerning the charge of complicity in attempted wilful homicide was resumed before the Criminal Court. A hearing was scheduled for 26 May 2000 in order to agree on a date for the trial. However, the proceedings were adjourned at the defence's request.

On 2 June 2000 one of the applicant's counsel withdrew from the defence team. The Criminal Court observed that all that needed to be done was to appoint a date for the trial by jury. However, the applicant's remaining lawyer requested an adjournment in order to check his other professional commitments and to consult with his client. On 4 and 28 July 2000 the proceedings were postponed on the ground that the applicant's counsel was ill.

On 31 July 2000 the defence challenged the President of the Criminal Court – Mr Justice Vincent Degaetano – on the ground that he had participated in the trial of Mr Ian Farrugia, one of the applicant's coaccused. The parties made oral submissions on this plea, and the court ordered the applicant to submit, before 31 August 2000, a note indicating the legal provisions on which he was relying and the decisions taken by the judge in question during the trial of Mr Farrugia. The court proposed to adjourn the case until 11 September 2000, on which date a decision on the challenge should have been taken. However, the applicant's counsel objected that he would be away from Malta during the whole month of September. The proceedings were therefore postponed until 2 October 2000, on which date the Criminal Court rejected the challenge.

The applicant declared his intention to appeal. Observing that there was no right to appeal against its ruling, the Criminal Court provisionally fixed the date of the trial by jury for 2 May 2001. The applicant's counsel observed that in view of the declaration made by the defence, the date of the trial should not have been fixed and the proceedings should rather have been adjourned sine die.

On 5 October 2000 the applicant appealed against the decision of 2 October 2000.

The hearing, initially scheduled for 11 January 2001, was held on 27 December 2000, on which date the Court of Criminal Appeal adjourned the proceedings until 23 January 2001 in view of the absence of the applicant's counsel. The latter subsequently informed the court that he had not been notified of the new date of the hearing. The Court of Criminal Appeal also observed that the Attorney General had not submitted a reply in writing to the applicant's appeal. The Government, with whom the applicant disagreed, emphasised that submissions were normally made orally and that the Attorney General was in no way obliged to file a written reply.

On 23 January 2001 the accused, who had fallen ill, did not appear. In the presence of his legal counsel, the court heard evidence from a doctor as to the applicant's state of health. A medical certificate was exhibited.

By decision of 25 January 2001 the Court of Criminal Appeal dismissed the applicant's appeal. It observed that the accused's allegations were based only on suppositions and unproven gratuitous assertions which were devoid of legal value.

On 4 April 2001 the applicant was convicted and sentenced to fifteen years' imprisonment and to a fine of 30,000 Maltese liras (approximately 72 273 Euros) in respect of the charge of trafficking in dangerous drugs. He then started to serve his sentence for that offence. The earliest date of the applicant's release was fixed at 19 November 2006. This calculation was made by deducting from the final sentence the period that the accused had spent in pre-trail detention.

After having heard in camera the views of the defence and the prosecution, on 16 April 2001 the Criminal Court decided to adjourn the trial by jury on the charge of complicity in attempted murder until 5 November 2001. It considered, in particular, that it was not wise to commence the new trial at a date too close to the termination of the other proceedings against the same accused. The witnesses to be heard on behalf of the prosecution were summoned to appear on 5 November 2001.

However, on 22 October 2001 the applicant instituted proceedings before the First Hall of the Civil Court exercising its constitutional jurisdiction, relying on a violation of Article 6 of the Convention and Article 39 of the Constitution of Malta. He submitted, in particular, that he could not be judged by the same magistrate – Mr Justice Degaetano – who had participated in his previous trial for trafficking in dangerous drugs and in the trial of two persons accused of complicity in the offence with which he was charged. He also complained about the extensive media coverage of his trial and about the negative opinions expressed about him and his innocence by the Prime Minister, by the Attorney General and by certain police officers.

On 25 October 2001 the applicant requested the Criminal Court to stay the proceedings pending the decision on his constitutional application. The Attorney General replied that that request should be rejected as constituting an abuse of process.

In an order of 1 November 2001 the Criminal Court noted that the date of the jury trial had been known to the applicant by 16 April 2001. However, it was only two weeks before the trial was scheduled to commence that the accused had filed his constitutional application. The Criminal Court noted, moreover, that the fact that the constitutional application was pending did not stricto jure oblige it to adjourn the trial. However, if the trial were to be continued, the Civil Court and, in the event of an appeal, the Constitutional Court might have felt in some way pressed to give a ruling on the applicant's complaint in an unreasonably short time (that is, before the end of the trial). Such a situation should, if possible, be avoided and it would have been unnecessarily costly to have the trial by jury held more than once. The Criminal Court therefore decided to adjourn the hearing until 11 February 2002. Further sittings were held before the Criminal Court on 10 June and 4 November 2002 and on 7 January and 1 April 2003; they were all adjourned pending the outcome of the applicant's constitutional application. The next hearing was fixed for 7 July 2003.

The date of the first hearing before the First Hall of the Civil Court was fixed for 30 October 2001, on which date the applicant produced several documents. The proceedings were adjourned in order to examine those documents. In a note of 21 November 2001 the applicant stated that one of his counsels had been required to go abroad on a university assignment and would not be present at the hearing on 23 November 2001. The Civil Court reserved its decision on this matter.

On 23 November 2001 the applicant appeared, assisted by his other counsel. He declared that he needed to produce in evidence copies of articles which had appeared in local newspapers. The case was adjourned until 9 January 2002, on which date the court requested further information from the applicant. The hearing of 1 February 2002 was postponed at the Attorney General's request. On 15 February 2002 the court adjourned the case in order that the applicant could conduct inquiries to verify the facts concerning a video recording exhibited by him.

In a note of 1 March 2002 the applicant pointed out that the recording in issue did not concern a political debate, as he had initially stated, but a press conference. On 15 March 2002 he exhibited an audio recording of the political debate in question and declared that he had no further evidence to produce. The Attorney General requested the authentication of the document exhibited.

On 26 April 2002 a witness on behalf of the applicant appeared in order to authenticate the relevant documents. The case was adjourned first until 31 May 2002, then until 5 July 2002 for final oral submissions by the parties. The hearings of 11 October, 15 November, 6 and 16 December 2002 and 10 January 2003 were adjourned as the court required more time for deliberation.

On 20 January 2003 the First Hall of the Civil Court dismissed the applicant's application.

On 29 January 2003 the applicant appealed against that judgment to the Constitutional Court.

On 12 February 2003, the date of the first hearing, Mr Justice Degaetano, who presided over the Constitutional Court, withdrew from the case. A substitute judge was appointed and the case was adjourned until 12 March 2003 for oral submissions by the parties.

On 18 June 2003 the Constitutional Court dismissed the applicant's appeal.

On 7 July 2003 the Criminal Court set 5 January 2004 as the date for the trial on the merits of the charge of complicity in attempted murder. The applicant declared that he intended to bring before the European Court of Human Rights the issues raised in his constitutional complaint.

On 1 February 2004, the jury delivered a verdict of not guilty with respect to the charge of complicity in attempted murder.

In the course of the proceedings against him, the applicant applied for provisional release on bail on several occasions (3 October 1997, 3 February, 18 June and 27 October 1998, 27 August 1999, 14 and 15 December 2000). His requests were rejected by the Criminal Court and by the Court of Criminal Appeal on 24 October 1997, 16 February, 14 July and 11 November 1998, 27 September 1999 and 21 December 2000, after having held hearings at which the parties were able to make their oral submissions.

The Criminal Court was not persuaded that there was no danger that, once released, the applicant would not try to interfere with evidence or in any other way try to obstruct the course of justice with regard to his case. It referred, in particular, to the extraordinary gravity of the charges, which showed the manifest social danger posed by the applicant, who might commit further offences against the person, including offences of bodily harm. In this connection, it was observed that the identity of the witnesses had become known to the applicant. There was, moreover, a danger that the latter might try to abscond, making use of the contacts he had abroad, in order to avoid the heavy punishment which was likely to be inflicted on him in the event of his conviction.

The Court of Criminal Appeal considered that the applicant's situation had not significantly changed and that no new element justifying a departure from the previous findings had been submitted. In particular, it considered that the time that had elapsed since the beginning of the applicant's detention was not substantial enough to conclude that the length of the deprivation of liberty in issue was unreasonable.

In the meantime, on 30 March 1999, the applicant, alleging that his lengthy detention and the continued refusal of bail had infringed his rights under Articles 5 and 6 of the Convention, introduced a constitutional complaint before the First Hall of the Civil Court. He observed, in particular, that his deprivation of liberty was based, inter alia, on the risk of his tampering with evidence, a risk which, in the Attorney General's submission, had become even more serious because his accomplices were free and the identity and nature of the prosecution evidence and witnesses had become known to the accused. In the applicant's opinion, however, those fears were unfounded and the danger referred to by the authorities could in any case have been avoided by adopting the necessary precautionary measures, such as adequate surveillance by the police, with the possibility of house arrest. Moreover, the evidence of the prosecution had become known to the applicant by right in order to enable him to prepare his defence; that fact could therefore not be used against him to justify a violation of his other fundamental rights.

The Attorney General and the Commissioner of Police filed a memorandum in which they applied for the applicant's complaints to be dismissed. They pointed out that the offence attributed to the applicant was punishable by up to twenty years' imprisonment, and that this element created an incentive for the accused to try to tamper with evidence and also to abscond, possibly making use of the foreign contacts which he manifestly had. Moreover, the nature of the offence showed that the applicant was a danger to society and that there was a risk that he might commit other offences. Finally, the danger of his interfering with evidence was real, as was shown by the fact that after he had given evidence, a witness in his case had been attacked by two unknown persons.

Four hearings took place before the First Hall of the Civil Court on 9 and 14 April and 3 and 12 May 1999. On the last-mentioned date, the Civil Court authorised the applicant to file submissions concerning a non exhaustion plea raised by the respondents. This note was filed on 27 May 1999.

On 22 June 1999 the First Hall of the Civil Court dismissed the applicant's application. With reference to the case-law of the European Court of Human Rights, the Civil Court noted that the prolonged detention of a person who was presumed innocent but was suspected of having committed an offence should be justified in the public interest and that an accused deprived of his liberty had the right to have the investigations and trial conducted within a reasonable time. In the applicant's case, the Court of Criminal Appeal had taken into account the period of time spent by the applicant in detention in view of all the relevant circumstances, notably the nature and gravity of the charges, the danger of his tampering with evidence and the risk of his absconding. Moreover, the applicant's case was particularly complex, regard being had to the number of witnesses and experts involved in the investigations and to the pleas submitted by the parties, and it could not be said that the prosecution had failed to show diligence in the conduct of the investigations. The time that had elapsed from the beginning of the investigations could not, therefore, be considered unreasonable. Finally, the fact that the applicant had been denied bail was not prejudicial to the presumption of innocence, as the decisions in this regard did not reflect an opinion as to his guilt.

On 2 July 1999 the applicant appealed against the judgment of 22 June 1999 before the Constitutional Court.

The first hearing took place on 16 July 1999. On 29 July 1999 the applicant challenged two of the three sitting judges. A judgment on this issue was given on 4 August 1999. The two judges in question withdrew from hearing the case, which was adjourned until 2 September 1999, on which date the parties made oral submissions. On 15 October 1999 the applicant requested leave to produce a decision given by the Court of Criminal Appeal on his application for bail. This request was subsequently served on the respondents, who on 19 October 1999 declared that they did not oppose bail. The hearings of 20 October and 22 November 1999 and of 12 January and 14 February 2000 were adjourned because the Constitutional Court needed more time for deliberation. On 22 February 2000 the court observed that the members of the family of one of the sitting judges had fallen seriously ill and that this fact prevented it from taking a decision immediately; however, the case had been given the priority that it deserved.

On 8 March 2000, at the Constitutional Court's request, the parties made submissions on the point as to whether a decision on the issue under Article 5 of the Convention was required.

On 29 March 2000 the Constitutional Court upheld the decision of the First Hall of the Civil Court in so far as it concerned the length of the criminal proceedings against the applicant (Article 6 § 1 of the Convention). However, the Constitutional Court pointed out that the applicant had also complained under Article 5 of the Convention, alleging that the grounds for his detention had weakened with the passing of time. Even if the accused had not explicitly quoted this latter Article in his final submissions, thus misleading the first-instance court, his complaint constituted a separate grievance on which the Civil Court should have made a specific ruling. Therefore, the Constitutional Court remitted the facts of the case to the Civil Court, instructing the latter to examine this complaint.

Proceedings were resumed before the First Hall of the Civil Court, and a hearing was scheduled for 17 April 2000. On 3 May 2000 five witnesses appeared on behalf of the respondents. They testified about incidents experienced by a witness who had testified against the applicant in the pretrial investigation proceedings and by the daughter of that witness.

On 5 May 2000 the President of the Civil Court withdrew from the case. A substitute judge was appointed on 16 May 2000, but he also had to withdraw as he was one of the judges who had denied one of the applicant's applications for bail. Another substitute judge was appointed on 25 May 2000, and a new hearing was set down for 14 June 2000. Other witnesses were heard on 3 and 24 July 2000. On 24 August 2000 the applicant waived the right to cross-examine those witnesses, but requested leave to file written observations. The latter were filed on 3 October 2000, seven days after the expiry of the time allowed by the Civil Court. The respondents filed their written reply at the hearing of 31 October 2000. On 8 November 2000 the case was adjourned for judgment.

On 14 December 2000 the First Hall of the Civil Court declared that the overall duration of the applicant's pre-trial detention had infringed Article 5 § 3 of the Convention and that the applicant was entitled provisionally to be released under conditions guaranteeing his appearance at the trial. The determination of these conditions was left to the discretion of the Criminal Court.

The Civil Court first underlined that a period of time held to be reasonable under Article 6 § 1 of the Convention could be considered excessive under Article 5 § 3, as the criteria laid down in the latter provision, which concerned personal liberty, were more rigorous. Moreover, it was clear that the passing of time could not but aggravate the prejudicial effects that the pre-trial detention had had on the applicant's situation.

The Civil Court further noted that the proceedings had not been conducted in a vacuum. In fact, the inquiry had been closed, the bill of indictment had been issued and the preliminary pleas had been decided. On the other hand, it should be kept in mind that the applicant had a right to institute all the proceedings and to lodge all the complaints he deemed necessary for the defence of his interests, even if this might prolong the criminal proceedings.

As to the grounds justifying the applicant's continuing detention, the Civil Court observed that the risk of his tampering with evidence appeared to subsist regardless of whether or not he remained under arrest. In fact, the Attorney General himself had mentioned that certain witnesses had already started to alter the evidence which they had given during the inquiry. Moreover, all the evidence against the applicant had already been gathered and heard on various occasions by the national courts, and the danger of interference with the course of justice was likely to be reduced as the investigations progressed.

As to the risk of committing new offences, the Civil Court noted that the prosecution had not proved that the applicant was responsible for certain incidents in which a witness and his relatives had been involved. Furthermore, as the crimes of which the applicant was accused had been allegedly committed on the basis of instructions, it could be argued that the applicant constituted a threat to society even if he remained in prison. In any case, it appeared that the prosecution was inferring the applicant's dangerousness more from the gravity of the case than from any other evidence.

Finally, it was true that the applicant risked a heavy sentence and that he had been abroad several times in 1994 and 1995. However, it had not been proved that the applicant had tangible connections outside Malta which might facilitate his escape. He had, on the contrary, strong family ties in Malta. Keeping in mind that the applicant had already spent four and a half years in detention, and that this period would in any case have been deducted from his final sentence, the Civil Court concluded that the risk of his absconding could be counterbalanced by adequate guarantees ensuring the appearance of the accused at the trial.

On 18 December 2000 the Attorney General of Malta and the Commissioner of Police appealed to the Constitutional Court against the judgment of 14 December 2000.

The first hearing took place on 27 December 2000. On that date all three judges composing the court withdrew from the case on account of their involvement in prior proceedings concerning the question of the applicant's release on bail. On the following day three new judges were appointed. The applicant then requested that the next hearing, scheduled for 12 January 2001, be fixed for an earlier date. A hearing was scheduled for 9 January 2001, on which date the parties made their oral submissions on the appeal.

On 23 January 2001 the Constitutional Court quashed the impugned judgment. It observed that the applicant's prolonged detention had been based on four grounds, notably the risk of contamination of evidence, the danger of his committing a new offence, the fact that he was a threat to society, and the danger that he might abscond or hide. In the Constitutional Court's view, each of these reasons was serious enough potentially to create an obstacle to the applicant's release.

The Constitutional Court noted that the prosecution had produced evidence demonstrating that the applicant had put pressure on individuals for the purpose of committing homicide on the basis of instructions. The risk of tampering with evidence was therefore a concrete one, especially at a stage where the applicant was aware of the content of the evidence and of the names of the witnesses. As to the risk of committing a new offence, the prosecution relied mainly on two incidents concerning a witness and his daughter. However, there was nothing to show that the applicant was responsible for those acts. On the other hand, evidence had been produced against the applicant in a separate set of criminal proceedings concerning a serious accusation of drug trafficking.

As to the possibility that the applicant might abscond, it was true that the longer his detention lasted, the more remote this possibility was. The fact that the applicant's family lived in Malta equally militated against the danger of flight. However, the seriousness of the charges brought against the applicant and the fact that he was about to face a trial by jury on charges of drug trafficking militated in the opposite direction.

It remained to be considered whether the time that had elapsed since the date of the arrest could neutralise all the other relevant factors justifying the applicant's deprivation of liberty. In this connection, it was noted that far from trying to speed up the proceedings, the applicant had caused a number of delays. For instance, when the Criminal Court had been ready to fix the date of the trial by jury, the applicant had challenged the judge, and from 13 September 1999 until 23 January 2001 his lawyers had demanded at least ten adjournments of the hearings, thus unnecessarily lengthening the proceedings. In particular, on 2 October 2000 the Criminal Court had provisionally scheduled the date of the trial by jury for 2 May 2001. Instead of objecting to this lengthy delay, counsel for the defence had asked why the Criminal Court was setting a provisional date for the trial instead of adjourning it sine die. In the Constitutional Court's opinion, this behaviour was difficult to reconcile with the applicant's declared wish to have his case heard within a reasonable time.

Even if it was preoccupied about the length of time that the applicant'Constitutional Court underlined that an accused person had every right to choose the best line of defence, but he did not have the right to lengthen the proceedings, under one pretext or another, or to employ such grounds in favour of his provisional release pending trial.

In the light of the above, the Constitutional Court found that the period of time spent by the applicant in pre-trial detention had not yet violated Article 5 § 3 of the Convention. It considered, however, that the applicant's application for bail should be allowed if a definitive date for the hearing of the trial was not fixed in due time after the Court of Criminal Appeal had ruled on the challenge to the judge presiding over the Criminal Court.


Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Pecuniary damage - claim dismissed

Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković

The applicant was born in 1946 and lives in Khabarovsk.

On 19 May 1997 the applicant lent the Khabarovsk Office of the Trade Counsellor of the Embassy of the Democratic People’s Republic of Korea (“the DPRK Trade Counsellor”) 1,500 United States dollars (USD). The money was to be repaid by 29 May 1997. A receipt of 19 May 1997 on the letterhead of the DPRK Trade Counsellor signed by Mr Chkhe Gym Cher reads as follows:

“[This] receipt is given to the President of the private company Lord BV Oleynikov to the effect that the Khabarovsk Office of the Trade Counsellor of the DPRK Embassy has borrowed 1,500 (one thousand five hundred) US dollars converted into roubles.

We undertake to repay the debt not later than 29 May [and] we pledge the Toyota Camry car, registration plate no. KhBB 1799 (ХББ 1799), engine no. 0073653, chassis no. 0062459, [together] with a complete set of documents for the car. In case of a failure to repay [the debt] within the indicated term, we shall pay 1% for each day of the delay.”

After the DPRK Trade Counsellor failed to repay the debt, in 19992000 the applicant sent several letters of claim which went unanswered. The applicant’s counsel also sent a letter of claim to the DPRK Trade Counsellor on 13 April 2001 and to the DPRK Embassy on 27 April 2001, which also went unanswered.

On 11 September 2001 the applicant’s counsel wrote to the Russian Ministry of External Affairs asking for assistance in settling the matter.

On 29 January 2002 the Ministry of External Affairs replied to the applicant that the DPRK Trade Counsellor was a constituent unit of the DPRK Embassy and, therefore, an organ of the DPRK which acted on its behalf. The DPRK Trade Counsellor thus enjoyed immunity from suit and immunity from attachment or execution in accordance with Article 435 of the 1964 Code of Civil Procedure. The Ministry of External Affairs advised the applicant that, should he decide to lodge a claim with a court, he would have to obtain consent to the examination of the case from a competent North Korean authority.

On 8 July 2002 the applicant wrote to the DPRK Embassy and asked for its consent to the examination of his claim against the DPRK Trade Counsellor by the domestic courts. The letter was received by the Embassy on 19 July 2002. It appears that the applicant received no reply.

On an unspecified date the applicant lodged a claim with the Supreme Court of Russia. On 21 February 2003 the Supreme Court returned the claim without examination on the grounds that it should have been lodged before a district court.

On 9 February 2004 the applicant lodged a claim against the DPRK with the Khabarovsk Industrialniy District Court. He sought repayment of the debt with interest. He claimed, furthermore, that Russia was responsible for the actions of foreign diplomats within its territory.

On 12 February 2004 the District Court returned the claim without consideration on the grounds that under Article 401 of the 2002 Code of Civil Procedure a claim against a foreign State could only be brought upon the consent of its competent authorities. The applicant appealed.

On 16 March 2004 the Khabarovsk Regional Court upheld the decision on appeal. The court held:

“[The DPRK Trade Counsellor] is a subdivision of the trade representation of the DPRK in Russia the legal status of which is governed by the Annex to the Treaty on Trade and Navigation between the USSR and the DPRK of 22 June 1960. According to Article 2 of the Annex, the trade representation is an organ of the State (the DPRK) acting in its name. Therefore, taking into account the equality of States as a principle of international law, the trade representation as an organ of public authority of a sovereign State is entitled to judicial immunity as well as to immunity from measures of securing a suit and execution. The said immunities are based on State sovereignty, which does not allow a State to be subject to coercive measures of any kind. The principle of judicial immunity of a foreign state is enshrined in Article 401 § 1 of the Code of Civil Procedure, according to which lodging a claim in a court of the Russian Federation against a foreign State, the involvement thereof in court proceedings in the capacity of a defendant or of a third party, the seizure of property belonging to a foreign State and situated within the territory of the Russian Federation, taking other measures for securing of a suit, and levying execution upon such property by means of enforcement of judicial decisions, are allowed only upon the consent of the competent agencies of the State in question, unless otherwise provided by an international treaty of the Russian Federation or by a federal law.

Therefore, [a] person may only lodge a claim against a foreign State upon the prior consent of the State. If [a] claim against a foreign State is not supported by ... documents confirming its consent to the examination of the case in court, [court] proceedings will not be instituted. As [Mr] V.B. Oleynikov failed to furnish [documents confirming] the consent of the [DPRK] to the examination of the dispute in court together with [his claim], the judge could not accept the claim because of the bar to [lodging such a claim before] a court. As the said bar is [not absolute], the judge returned the claim to [Mr] V.B. Oleynikov on valid grounds, having indicated how the circumstances that prevented the institution of the proceedings could be remedied.

[Mr] V.B. Oleynikov’s arguments that the DPRK Embassy does not wish to reply to his and his counsel’s requests [and] is evading payment of the debt, on the basis of which [he submits that] it is for the court or the judge to request the DPRK’s consent to the examination of the case, may not be considered as grounds for setting aside the [decision of the District Court], as they contravene the provisions of the international treaty between the USSR and the DPRK of 22 June 1960 and Article 401 § 1 of the Code of Civil Procedure.”

Article 127 of the Civil Code refers to the Law on State Immunity, which has not been adopted to date. The question is thus resolved by the courts on the basis of the relevant Codes of Procedure, with reference to the provisions of various bilateral and multilateral treaties.

Article 435 of the 1964 Code of Civil Procedure in force until 1 February 2003, based on absolute immunity, provided, in so far as relevant:

“[F]iling a suit against a foreign State, securing of a suit or levying execution upon the property of a foreign State situated in the USSR may only be allowed upon the consent of the competent agencies of the respective State.”

Article 401 § 1 of the 2002 Code of Civil Procedure in force from 1 February 2003, reinstated absolute immunity of a foreign State. It reads as follows:

“Filing a suit against a foreign State in a court of the Russian Federation, the involvement thereof in court proceedings in the capacity of a defendant or of a third party, the seizure of property belonging to a foreign State and situated within the territory of the Russian Federation, taking other property measures for securing of a suit, and levying execution upon such property by means of enforcement of judicial decisions, shall only be allowed upon the consent of the competent agencies of the State in question, unless otherwise provided by an international treaty of the Russian Federation or by a federal law.”

Article 213(1) of the 1995 Code of Commercial Procedure in force until 1 September 2002, provided for absolute immunity:

“Filing a suit in a commercial court against a foreign State, the involvement thereof in court proceedings in the capacity of a third party, the seizure of property belonging to a foreign State and situated within the territory of the Russian Federation, and taking against it other measures for securing a suit, and levying execution upon such property by means of enforcement of a decision of a commercial court, shall only be permitted with the consent of the competent agencies of the respective State, unless otherwise provided by federal laws or by international treaties of the Russian Federation.”

Article 251 of the 2002 Code of Commercial Procedure in force from 1 September 2002, endorsed restrictive immunity. It reads as follows:

“1. A foreign State, acting in the capacity of a bearer of authority [emphasis added], shall enjoy judicial immunity with respect to a suit filed against it with a commercial court in the Russian Federation, its involvement in court proceedings in the capacity of a third party, the seizure of property belonging to a foreign State and situated on the territory of the Russian Federation, and the taking against it by the court of other measures of securing a suit and property interests. Levying execution upon such property by means of enforcement of a judicial act of a commercial court shall only be permitted with the consent of competent agencies of the respective State, unless otherwise provided by international treaty of the Russian Federation or by a federal law.

The judicial immunity of international organisations shall be determined by international treaty of the Russian Federation and by federal law.

A waiver of judicial immunity shall be effected according to the procedure provided for by the law of the foreign State or by the rules of the international organisation. In this instance, the commercial court shall consider the case according to the procedure established by the present Code”.

Article 15 of the Constitution provides, insofar as relevant:

“4. The generally recognised principles and norms of international law and the international treaties of the Russian Federation shall be an integral part of its legal system. If an international treaty of the Russian Federation establishes other rules than those provided for by the law, the rules of the international treaty shall apply.”

Article 435 of the 1964 Code of Civil Procedure was examined by the Constitutional Court in its ruling of 2 November 2000. The claimant, Ms Kalashnikova, a former employee of the information service of the United States Embassy in Russia, was dismissed under Article 33 section 1(2) of the 1971 Labour Code of the Russian Federation (non-conformity of the employee with the post held due to insufficient qualification or state of health, preventing further fulfilment of the work). Following her dismissal she instituted court proceedings seeking reinstatement and damages. In a ruling of 27 March 2000 the court of first instance rejected the claim, having applied Article 435(1) of the 1964 Code of Civil Procedure, as the claimant had failed to present any evidence of the United States’ consent to submit to the jurisdiction of the court. The Moscow City Court upheld the ruling on appeal. In her complaint to the Constitutional Court, Ms Kalashnikova argued that Article 435 of the 1964 Code of Civil Procedure had violated her constitutional right to judicial defence.

The Constitutional Court noted that the right to engage in individual labour disputes was provided in Article 37(4) of the Constitution and the procedure for the examination of claims for reinstatement was governed by Chapter XIV of the Labour Code, while application of the provisions of the 1964 Code of Civil Procedure was of subsidiary nature, intended to fill in gaps in the procedural rules of labour legislation. It further observed that the purpose of Article 435(1) was to ensure State immunity in accordance with generally recognised principles and norms of international law and international treaties of the Russian Federation.

The Constitutional Court found that “when considering the case of [Ms] Kalashnikova, the courts of general jurisdiction did not pay attention to the fact that the employer – the Embassy of the United States as an agency of the accrediting State – applied the legislation of the Russian Federation ..., and without requesting necessary documents refrained from investigating the issue of whether such an application could be regarded as the United States’ waiver of jurisdictional immunity in this particular case”. On these grounds it reached the conclusion that: “the formalistic application of Article 435(1) of the 1964 Code of Civil Procedure by the courts of general jurisdiction, which refused to accept the claim of [Ms] Kalashnikova on the basis of this article, led to an inadmissible limitation of the claimant’s rights with regard to an individual labour dispute ... and thus to a violation of the right to judicial defence provided for in Article 46(1) of the Constitution of the Russian Federation”.

However, the Constitutional Court did not examine Ms Kalashnikova’s complaint on the merits. It found that her rights had not been violated by Article 435(1) of the 1964 Code of Civil Procedure, but rather by its application by the domestic courts, which fell outside its competence. At the same time, the Constitutional Court stated that the Article was to be applied henceforth “taking into account the legal position set forth by the Constitutional Court in the present ruling”.

The application of the State immunity rule in commercial proceedings was addressed by the Presidium of the Supreme Commercial Court in an Information Letter of 18 January 2001. By way of information letters the Supreme Commercial Court provides lower courts with instructions on the interpretation and application of domestic law.

The Information Letter firstly referred to a case where a Russian construction company had filed a claim against a foreign embassy for recovery of a debt arising under a contract concerning the construction of a hotel attached to the embassy in Moscow. The commercial court had granted the claim. However, the Supreme Commercial Court had set aside the decision and remitted the case for fresh consideration. The commercial court was instructed to review the issue of State immunity, taking into account that construction of the hotel was for the public, and non-commercial, activity of the foreign State in Russia, and was therefore instructed to consider termination of the proceedings under Article 213(1) of the 1995 Code of Commercial Procedure.

On the basis of its findings in the above case, the Presidium of the Supreme Commercial Court made the following general recommendation: “A commercial court shall terminate proceedings in a case concerning an investment dispute, the defendant in which is a foreign State acting in the capacity of a sovereign”.

The second case referred to in the Information Letter also concerned a foreign embassy and a Russian construction company involved in a dispute arising out of a construction contract. However, in this case the proceedings had been initiated by the embassy and the construction company had filed a counter-claim. The Court of Cassation had held that bringing a claim constituted an implied waiver of immunity and therefore that the embassy of a foreign State was not immune with respect to a counter-claim.

The recommendation of the Presidium of the Supreme Commercial Court based on the above case reads as follows: “A commercial court shall accept a claim in a commercial dispute, the defendant in which is a person entitled to international immunity”.

State immunity was touched upon in the Opinion on the Draft Federal Law on the Administration of State Foreign Financial Assets Inherited by the Russian Federation, sent by the President of the Russian Federation, B N Yeltsin, to the Chairman of the State Duma, G N Seleznev, and published in the Rossiyskaya Gazeta on 13 May 1998 (“the Opinion”).

With regard to certain provisions relating to State immunity which were included in the Draft Federal Law under discussion, the Opinion states that “foreign State property enjoys functional immunity”. The statement is further detailed as follows:

“If a State uses its ownership for the purposes of ensuring its sovereignty or fulfilling State political functions, that is, as a subject of international law, for example, for the maintenance of diplomatic and consular representations, this property always enjoys immunity against the jurisdiction of the State of its location. However, if the State (through specially empowered agencies) takes part in property turnover or in commercial activity, then it is regarded as a foreign private person and its State ownership does not enjoy immunity. The turnover of such property is regulated by norms of international private law and by legislation of the country where the property is located, the foreign State with respect to the country of location of the property acting on the basis of equal rights with other participants of these relations – with foreign juridical and natural persons. This approach has been consolidated in the European Convention on State Immunity, 16 May 1972, which, in accordance with generally recognised international practice, the Russian Federation may regard as a codified digest of customary norms of international law.”

State immunity was also referred to in letter no. Pr-795 of 23 June 1999 sent by the President of the Russian Federation, B N Yeltsin, to the Chairman of the Federal Assembly, E S Stroev (“the Letter”). The Letter substantiates the rejection by the President of the Federal Law on the Administration of the Russian Federation’s Property Located Abroad. Paragraph 6 of the Letter states:

“The Civil Code of the Russian Federation (Article 127) provides that the specific responsibilities of the Russian Federation and the subjects of the Russian Federation in relations regulated by civil legislation with the participation of foreign juridical persons, citizens and States are to be determined by the Law on the Immunity of the State and of its Property.

Therefore, it is hardly legitimate to include Article 8 on the immunity of the Russian Federation’s property located abroad in the Federal Law. Moreover, it should be noted that the concept of absolute immunity of a foreign State and of its property was reflected in Article 8 of the Federal Law.

This concept does not find recognition in either the legislation of the Russian Federation (Article 213, 1995 Code of Commercial Procedure of the Russian Federation, Articles 22 and 23, Federal Law on Production Sharing Agreements), or in international treaties of the Russian Federation (treaties on the encouragement and mutual protection of capital investments).

It should be taken into consideration that in modern circumstances absolute immunity may not be realised in practice and its adoption in the legislation of the Russian Federation will only impede the development of civil law relations with State participation.”

Following the establishment of the foreign trade monopoly in the Soviet Union by the Decree on Nationalisation of Foreign Trade of 22 April 1918, the State, through the USSR Ministry of Foreign Trade and its predecessors, carried out and controlled foreign trade. It established the types of entities entitled to participate in foreign trade and set limits on their participation, such as the nature of transactions they could enter into, the goods they could trade and import and export volumes. Trade with foreign States was to be carried out by Trade Representations, which constituted agencies of the Ministry of Foreign Trade.

In the exercise of the foreign trade monopoly, the Soviet Union entered into numerous treaties on the legal status of Soviet Trade Representations in other States. Treaties concluded by the USSR with socialist States provided for the mutual establishment of Trade Representations, such as the following treaty concluded with the DPRK.

According to Article 13 of the Treaty on Trade and Navigation between the USSR and the DPRK of 22 June 1960, either party can open a trade representation in the capital of the other party. The legal status of the representation is governed by the Annex to the Treaty.

The Annex on the Legal Status of the USSR Trade Representation in the DPRK and the DPRK Trade Representation in the USSR contains four Articles. Article 1 provides that the Trade Representations would contribute to the development of trade between the two States. According to Article 2 the Trade Representation is a constituent part of the Embassy of its State. The trade representative and his/her deputies enjoy full diplomatic immunities and the premises of the Trade Representation enjoy extraterritoriality. The Trade Representation may open branches upon the parties’ agreement.

The Annex further provides:

“The Trade Representation acts on behalf of its Government. The Government is only responsible for the foreign trade transactions concluded or guaranteed by the Trade Representation in the State of sojourn and signed by a competent person.

Names of persons competent to perform legal acts on behalf of the Trade Representation, as well as the scope of the competence of each such person, shall be published in an official organ of the State of sojourn.”

“The Trade Representation shall enjoy all immunities belonging to a sovereign State which relate to foreign trade, with the following exceptions agreed upon by the parties:

(a) disputes arising out of foreign trade transactions concluded or guaranteed by the Trade Representation in accordance with Article 3 within the territory of the State of sojourn, in the absence of an arbitration agreement or an agreement [to submit to] a different jurisdiction, are subject to the jurisdiction of the courts of that State. At the same time, the courts cannot apply preliminary attachment measures;

(b) enforcement of final judgments that have entered into force against the Trade Representation with regard to such disputes is only allowed in respect of goods and claims outstanding to the credit of the Trade Representation.”

The Treaty and the Annex remain in force for the Russian Federation.

The relevant provisions of the 1972 European Convention on State Immunity (“the Basle Convention”) read as follows:

“1. Subject to the provisions of Article 5, a Contracting State cannot claim immunity from the jurisdiction of the courts of another Contracting State if the proceedings relate to an obligation of the State, which, by virtue of a contract, falls to be discharged in the territory of the State of the forum.

Paragraph 1 shall not apply:

in the case of a contract concluded between States;

if the parties to the contract have otherwise agreed in writing;

if the State is party to a contract concluded on its territory and the obligation of the State is governed by its administrative law.”

Russia is not a party to the Basle Convention.

In 1979 the United Nations International Law Commission was given the task of codifying and gradually developing international law in matters of jurisdictional immunities of States and their property. In 1991 the International Law Commission adopted the Draft Articles on Jurisdictional Immunities of States and Their Property based on restrictive immunity, that is a distinction between acts of sovereign authority (acte jure imperii) and acts of a private law nature (acte jure gestionis). The Draft Articles that were used as the basis for the text adopted in 2004 dated back to 1991. The relevant part of the text then read as follows:

“1. ...

(c) “commercial transaction” means:

(i) any commercial contract or transaction for the sale of goods or supply of services;

(ii) any contract for a loan or other transaction of a financial nature, including any obligation of guarantee or of indemnity in respect of any such loan or transaction;

(iii) any other contract or transaction of a commercial, industrial, trading or professional nature, but not including a contract of employment of persons.

In determining whether a contract or transaction is a “commercial transaction” under paragraph 1 (c), reference should be made primarily to the nature of the contract or transaction, but its purpose should also be taken into account if, in the practice of the State which is a party to it, that purpose is relevant to determining the non-commercial character of the contract or transaction. ...”

“1. If a State engages in a commercial transaction with a foreign natural or juridical person and, by virtue of the applicable rules of private international law, differences relating to the commercial transaction fall within the jurisdiction of a court of another State, the State cannot invoke immunity from that jurisdiction in a proceeding arising out of that commercial transaction.

Paragraph 1 does not apply:

(a) in the case of a commercial transaction between States; or

(b) if the parties to the commercial transaction have expressly agreed otherwise.

The immunity from jurisdiction enjoyed by a State shall not be affected with regard to a proceeding which relates to a commercial transaction engaged in by a State enterprise or other entity established by the State which has an independent legal personality and is capable of:

(a) suing or being sued; and

(b) acquiring, owning or possessing and disposing of property, including property which the State has authorized it to operate or manage.”

In December 2004 the United Nations General Assembly adopted the Convention on Jurisdictional Immunities of States and their Property. It was opened for signature on 17 January 2005. The final versions of Article 2 § 1(c) and 2 and Article 10, as set out in the Convention, read as follows:

“1. ...

(c) “commercial transaction” means:

In determining whether a contract or transaction is a “commercial transaction” under paragraph 1 (c), reference should be made primarily to the nature of the contract or transaction, but its purpose should also be taken into account if the parties to the contract or transaction have so agreed, or if, in the practice of the State of the forum, that purpose is relevant to determining the non-commercial character of the contract or transaction.”

Paragraph 1 does not apply:

Where a State enterprise or other entity established by a State which has an independent legal personality and is capable of:

(a) suing or being sued; and

(b) acquiring, owning or possessing and disposing of property, including property which that State has authorized it to operate or manage, is involved in a proceeding which relates to a commercial transaction in which that entity is engaged, the immunity from jurisdiction enjoyed by that State shall not be affected.”

Russia signed the Convention on 1 December 2006. However, it has not ratified it yet.


Violation of Art. 5-1;Not necessary to examine Art. 5-4;Non-pecuniary damage - financial award

The applicant was born in 1943 and lived in Chişinău. He did not have a family and lived alone.

In 1987 the applicant was found guilty of criticising the Soviet authorities and of expressing the view that Moldova had been occupied by the Soviet Union and that it should reunite with Romania. On the basis of a medical report ordered by the Soviet courts, he was declared mentally unsound and sent for forced treatment in a psychiatric hospital in eastern Ukraine. He was held there for one year, after which he was released and obliged to continue out-patient treatment in Chişinău.

In 1990 the sentence against the applicant was quashed and he was acquitted.

On an unspecified date the applicant learned that he could obtain compensation for his illegal conviction and detention in a psychiatric hospital and that there was no time-limit for filing such an action.

In September 2004 he initiated civil proceedings against the Ministry of Finance, claiming compensation. He argued, inter alia, that after the forced medical treatment administered to him in 1987-1988 he had started to experience health problems, in particular he had lost his memory, had become emotionally frozen and unstable and therefore had been forced to live on a very small disability allowance.

During the proceedings the Ministry of Finance questioned his fitness to plead before courts in view of his medical background.

The applicant disagreed with the defendant, but fearing that his action would not be examined, agreed to submit to a medical examination in order to prove the contrary.

On an unspecified date the applicant underwent a medical examination by a specialised commission; however, the commission could not reach a conclusion. In a document dated 25 February 2004 it concluded that it would be impossible to reach a conclusion without a thorough examination of the applicant under conditions of hospitalisation.

On 14 March 2005 Judge V.G. of the Râşcani District Court examined the possibility of committing the applicant for an in-patient examination. As the applicant agreed to be hospitalised, the court ordered on the same date an in-patient medical examination to be conducted by the Central Psychiatric Hospital, Department of Judicial Investigations.

On 4 April 2005 the applicant went to the hospital, where, to his surprise, he was deprived of all his belongings and hospitalised together with persons of unsound mind with limited freedom of movement. According to him, the hospital was no longer heated in April, and since the clothes he was provided with were too thin for the season, he caught a cold and developed acute bronchitis. Two days after his hospitalisation he asked to be released in order to go home, change clothes and buy medicines for his cold. However, the doctors did not authorise him to leave the ward in which he was hospitalised.

It appears from the applicant's medical record that during his stay in the hospital he was not visited by anyone. According to him he could not complain to anyone about his detention and could not even make a telephone call or complain by other means to persons outside the hospital.

He was seen by doctors for only several minutes per day, during the routine morning round. The rest of the day he was at the mercy of the paramedical staff who usually forced patients to carry out public utility work around the hospital. He was not obliged to work because of his age and poor physical condition.

On 29 April 2005 the applicant was released from the hospital. According to him, it took a long time to recover but he preferred not to complain immediately for fear of adverse consequences. He submitted that he feared being placed in detention again or that the results of the examination would be falsified.

On 16 May 2005 the psychiatric hospital issued a report in which it concluded that the applicant was suffering from a mental condition, but that his reasoning was unaffected and that he was fit to plead before courts.

On 9 June 2005 the applicant lodged a criminal complaint with the Prosecutor's Office of the Centru District, asking it to prosecute the doctors who had held him in detention against his will. He described the conditions in which he had been detained and named two doctors who had refused his requests to be allowed to leave the hospital. He argued that those doctors had committed an offence under Article 166 of the Criminal Code – illegal deprivation of liberty – and asked for compensation.

On 30 June 2005 the Prosecutor's Office dismissed the applicant's complaint. The applicant challenged the dismissal before the Centru District Court.

On 21 July 2005 Judge A.B. of the Centru District Court upheld the applicant's appeal and found, inter alia, that the Prosecutor's Office had failed to clarify the conditions under which the in-patient medical examination was initially intended to be carried out, and also the conditions in which it had in fact been carried out. The Prosecutor's Office had also failed to examine the applicant's written request by which he had expressed his consent to be hospitalised and the manner of hospitalisation to which he had consented. Judge A.B. ordered a new investigation into the applicant's complaint.

On 12 October 2005 the Prosecutor's Office dismissed the applicant's complaint, again without giving any new arguments. It only stated that the instructions of the Centru District Court had been followed, but that this did not influence the initial decision not to institute criminal proceedings. The applicant again challenged the dismissal.

On 9 November 2005 Judge A.B. of the Centru District Court dismissed the applicant's appeal, finding that his detention had been carried out in accordance with the court order of 14 March 2005.

The Code of Civil Procedure provides for only one possibility for a person to be submitted to a psychiatric examination against his or her will. Chapter 28 of the Code deals with the proceedings intended to limit the legal capacity of a person. According to Article 302 such proceedings can be initiated by the State, by a prosecutor or by the family of a person of unsound mind or who makes abusive use of alcohol or drugs. Article 305 provides that a judge examining an action to limit a person's legal capacity can order the person concerned to undergo a psychiatric medical examination. If the person does not comply with the order, the judge can decide, during a hearing at which a psychiatrist is present, to oblige the person to undergo a psychiatric examination despite his or her opposition.

Section 11 of the Law on Psychiatric Assistance provides that a person can be hospitalised in a psychiatric hospital for treatment against his or her will only in accordance with the provisions of the Criminal Code or in accordance with the provisions of section 28 of that law. In both cases, except for reasons of urgency, the hospitalisation must be ordered on the basis of a decision taken by a commission of psychiatrists.

Section 28 of the same law sets out the reasons which can be relied upon for hospitalising a person for treatment against his or her will. It provides that a person suffering from a mental disorder can be hospitalised against his or her will, before a court judgment for that purpose has been issued, when the mental disorder is particularly serious and constitutes a risk to himself or herself or to others, when the mental disorder is of such a nature that the person is incapable of meeting his or her vital needs alone, and if left untreated, the mental disorder could cause serious harm to the health of the individual concerned.

Pursuant to section 32 of the law the compulsory hospitalisation for treatment of a person in accordance with section 28 must be decided by a court. The hospital must apply to the court for permission, indicating in the application the reasons for which the hospitalisation is sought and attaching a copy of the decision of a commission of psychiatrists. Pursuant to section 33, the court examining the application must take a decision within three days from the date on which the application was lodged and the person concerned has the right to participate in the hearing. If the person's condition is serious and he or she cannot come to the court, the judge is obliged to hold the hearing at the hospital. The judgment issued at the end of the hearing constitutes the basis for compulsory hospitalisation.

Section 39 of the same law provides, inter alia, that a patient hospitalised in a psychiatric hospital with his consent can leave the hospital upon his or her request. On the other hand, a patient hospitalised against his or her will can leave the hospital only upon the decision of a commission of psychiatrists or on the basis of a court judgment.