Violation of Art. 8;Remainder inadmissible;Non-pecuniary damage - award

The applicant is a Maltese national who was born in Damascus, Syria, in 1967, and lives in Sliema, Malta.

In 1993 the applicant acquired Maltese citizenship by registration in consequence of his marriage to a Maltese national. Subsequently, on 22 March 2002 the marriage was annulled by court order as it had been found to be a marriage of convenience. However, the applicant retained Maltese nationality according to the law in force at the time.

On 30 July 2003 the applicant married a Russian national in Moscow.

In the days following 30 June 2004 the applicant applied to the Public Registry Office to have his marriage registered in Malta.

On several occasions, notwithstanding the presentation of his Maltese identity card and a Maltese passport, the Public Registry required “as a matter of policy” that the applicant submit a letter from the Department of Citizenship declaring that he was a citizen of Malta.

According to the Government the authorities also noted that the requisite translation of the Russian marriage certificate presented by the applicant had not been apostilled by the Ministry of Foreign Affairs of Moscow.

Despite his contention that the request for a letter from the Department of Citizenship did not have a legal basis in domestic law, the applicant requested the Department to issue the letter. The Head of Department refused to issue such a letter, allegedly replying that he was not bound to issue it then, if at all.

Following the applicant's request, by a decision of the Court of Revision of Notarial Acts dated 31 May 2005, the Director of the Public Registry was directed to register the marriage, upon the applicant submitting his original act of marriage in Russian together with an English translation authenticated by his lawyer.

The applicant's request remained unsatisfied notwithstanding this decision.

On 5 April 2006 the decision of 31 May 2005 was revoked by the Court of Appeal. The latter, while expressing doubts as to whether the applicant could apply to the Court of Revision of Notarial Acts, held that a Maltese passport was not conclusive evidence of citizenship. Furthermore, the Director was vested with discretion to demand documents which he considered reasonable to prove the authenticity of what was submitted to him. The court therefore agreed that the Russian certificate of marriage produced by the applicant was not sufficiently authenticated evidence satisfying the Director of the Public Registry, having regard to Article 244 (1) of the Civil Code (see relevant domestic law, below).

On 20 June 2005 the applicant instituted proceedings before the Civil Court (First Hall) in its constitutional jurisdiction. He complained that the refusal to register his marriage was in violation of his Article 8 rights alone and in conjunction with Article 14.

It appeared from the evidence given by an official employed at the Marriage Registry that there were two reasons for the refusal to register the marriage. Firstly, the documents presented by the applicant had not been authenticated by the Ministry of Foreign Affairs of Moscow, which is the competent authority to attach apostilles to such public documents, and, secondly, that every person who applied for registration was asked to produce a letter of citizenship.

According to the evidence of the relevant Minister, the request for such a certificate did not result from a law or legal notice but from an internal regulation. While in the course of the present proceedings a circular, applicable to all Government departments, was issued stating that Maltese passports could be accepted as proof of citizenship, the Minister stated that a letter of citizenship was the best evidence to prove citizenship at any precise moment.

On 2 May 2006, during these proceedings, the Head of the Nationality Department also confirmed that the applicant was a Maltese citizen.

On 13 June 2006 the applicant withdrew his complaint in relation to Article 14 taken in conjunction with Article 8.

On 10 October 2006, the court rejected the application, with legal costs to be paid by the applicant. It held that Article 8 had not been breached, since the Director of the Public Registry had not categorically refused to register the marriage, but had merely requested appropriate documentation. Moreover, Article 8 did not extend to a general obligation on the part of a Contracting State to respect the choice by married couples of the country of their matrimonial residence and to accept the non-national spouse for settlement in that country.

On 11 October 2006, the applicant appealed to the Constitutional Court.

On 6 November 2006 the court invited the Director of the Public Registry to indicate the law on which the Registry based its insistence on the “letter of nationality”. The Director stated that it was a matter of policy. The case was then adjourned to 13 November 2006 for the Head of the Nationality department to testify.

Meanwhile, on 9 November 2006, the applicant was called upon by the Registry to register the marriage. He was asked to submit the original or an authenticated copy of his marriage certificate. No further documents were requested.

On 13 November 2006 the marriage was registered on the basis of the documents originally submitted by the applicant.

On the same day, before the Constitutional Court, the appeal was maintained as the Director of the Public Registry did not accept that the first judgment should be revoked and the costs refunded to the applicant.

On 9 March 2007, the Constitutional Court found that there had not been a violation of Article 8 of the Convention. It held that the request for a “letter of citizenship” was in accordance with law, namely Article 244(1) of the Civil Code according to which the Director of the Public Registry had to be satisfied that at least one of the parties to the marriage was a Maltese citizen. Although an identity card and a passport were prima facie evidence of nationality they were not conclusive, especially when citizenship had been obtained through registration (as in the case of the applicant) or naturalisation, both being subject to revocation according to section 14 of the Maltese Citizenship Act (see relevant domestic law). The Minister's deposition in respect of the recently issued circular was irrelevant, since responsibility for ascertaining the compliance with the requirements of Article 244(1) was for the Director of the Public Registry. Thus, the requirement of a letter of nationality was in accordance with the law, pursued a legitimate aim and was proportionate. However, the Constitutional Court noted that from the witness testimony at the hearing of 2 May 2006, it was clear that the applicant was a Maltese citizen; however, interdepartmental lethargy had meant that the Director of the Public Registry only called upon the applicant to register the marriage on 9 November 2006. Thus, the Court revoked the first-instance judgment in part by ordering the costs to be shared between the parties. It further noted that the applicant had withdrawn his Article 14 complaint and consequently no appeal lay against it.

Regarding marriages in foreign countries, Article 244 of the Maltese Civil Code, Chapter 16 of the Laws of Malta, in so far as relevant, reads as follows:

(1) Any act of birth, marriage or death of a citizen of Malta drawn up or registered in a foreign country by a competent authority in that country, ... may, at the request of any person interested and upon the Director of the Public Registry being satisfied of the authenticity of such act, be registered in these Islands in the same manner as if it were an act drawn up by any of the persons mentioned in this Title.

(2) The person making the request shall, for the purposes of registration, deliver to the Director the act in respect of which such request is made.

In this respect, Article 242 of the Civil Code reads as follows:

(1) The Director shall not accept any act which is not written in clear and legible characters, or which contains abbreviations, or which may appear to him to be otherwise defective or irregular.

(2) In any such case, the act shall be presented by the Director to one of the Visitors of notarial acts, who, after hearing, if necessary, the person by whom the act has been made, shall determine the manner in which, according to law, the act is to be drawn up.

(3) The Director may not refuse to accept any act which is countersigned by one of the said Visitors.

In respect of registration and the validity of marriages, sections 12 and 18 of the Marriage Act, Chapter 255 of the Laws of Malta, provide as follows:

Section 12

(1) Registration is not essential to the validity of marriage.

(2) Registration shall not operate to validate a marriage which, independently of such registration, is null.

(3) A marriage shall not have effect for any purpose of law unless and until the appropriate act of marriage is completed and delivered for registration in accordance with the provisions of articles 293 and 294 of the Civil Code.

Section 18

A marriage, whether celebrated in Malta or abroad, shall be valid for all purposes of law in Malta if -

(a) as regards the formalities thereof, the formalities required for its validity by the law of the country where the marriage is celebrated are observed; and

(b) as regards the capacity of the parties, each of the persons to be married is, by the law of the country of his or her respective domicile, capable of contracting marriage.

Article 627 of the Code of Organisation and Civil Procedure (“COCP”) provides a list of documents requiring no proof of authenticity other than that which they bear on the face of them. Sub-article (f) refers to the certificates issued from the Public Registry Office.

According to a notice published on the Government website by the Department for Citizenship and Expatriate affairs, dated February 2007, regarding registration of foreign certificates concerning citizens of Malta at the Public Registry, the documents required for registration of a marriage abroad by a citizen of Malta are as follows: 1) marriage certificate, 2) birth certificate 3) father's birth certificate 4) parents' marriage certificate 5) Maltese passport.

According to section 14 of the Maltese Citizenship Act, Chapter 188 of the Laws of Malta, as in force since 1975, the Minister may by order deprive of his Maltese citizenship any citizen of Malta who is such by registration or naturalisation if he is satisfied that the registration or certificate of naturalisation was obtained by means of fraud, false representation or the concealment of any material fact or on any other of an exhaustive list of grounds.

According to The Hague Convention, apostilles may only be issued by a Competent Authority designated by the State on whose territory the public document has been executed. Its Article 6 lists the competent authorities, which in so far as relevant in respect of Russia, reads as follows:

The Ministry of Justice of the Russian Federation;

The General Prosecutor's Office of the Russian Federation;

The Ministry of the Interior of the Russian Federation;

The Register Offices of the executive bodies in subjects of the Russian Federation;

The Federal Archives Agency and the authorised bodies for archives of the executive power in subjects of the Russian Federation;

The Federal Supervision Service for Education and Science;

The Ministry of Defence of the Russian Federation on official archive documents on military service (employment) in the Armed Forces of the Russian Federation, the Armed Forces of the USSR and the Joint Armed Forces of the Commonwealth of Independent States (CIS), issued in the Russian Federation.


Violation of Art. 6-1 with regard to the length of the proceedings;Inadmissible under Art. 6-1 with regard to the fairness of the proceedings;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

The applicant was born in 1925 and lives in Praszka.

On 28 March 1991 the applicant lodged a motion with the Oleśno District Court, claiming a division of inheritance and dissolution of co-ownership of a certain property.

The court held hearings on: 15 May 1991, 28 August 1991, 29 January 1992, 10 April 1992, 18 May 1992, 24 August 1992, 30 September 1992, 23 February 1993, 7 June 1993 and 28 March 1994.

Having regard to the lack of progress in the proceedings, and apparently aiming at obtaining possession of the property by other legal means, on 13 April 1993 the applicant lodged a motion with the Oleśno District Court, claiming acquisitive prescription of half of the property in question. By a decision of 11 May 1994 the Oleśno District Court dismissed her motion. By a decision of 27 September 1994 the Częstochowa Regional Court dismissed her further appeal and upheld the contested decision.

Further hearings in the dissolution case were held on 3 June 1998, 30 December 1999, 29 March 2000 and 23 May 2000.

The court ordered a number of expert opinions. They were submitted to the court on: 22 December 1991, 3 July 1992, 8 September 1997, 12 May 1998, 16 June 1998, 9 December 1998, 9 February 1999, 16 April 1999, 11 May 1999, 8 October 1999 and 27 November 2000.

By a decision of 10 January 2001 the Oleśno District Court stayed the proceedings due to the fact that one of the parties to the proceedings had died. By virtue of the same decision the court resumed the proceedings, having regard to his heirs' request that the proceedings be resumed.

On 3 June 2003 the Oleśno District Court gave a judgment on the merits.

On 16 December 2003 the Opole Regional Court dismissed the applicant's appeal.

By a decision of 28 June 2004 the Supreme Court declined to examine the cassation appeal, considering that it had not been shown that arguable public interest grounds existed which would justify the examination of the appeal.


Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä

The applicant, Mr Robin Wood, is a British national who was born in 1948 and lives in Cheshire. He was represented before the Court by Pierce Glynn, solicitors in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.

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

The applicant’s wife died on 19 August 1999, leaving one child born in 1970. In April or May 2000 the applicant applied for widows’ benefits. On 4 May 2000 the applicant was informed that his claim had been disallowed as he was not a woman. By a letter of 12 June 2000 the benefits’ agency confirmed their decision and the lack of his right to an appeal. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under United Kingdom law.

The applicant was not in receipt of child benefit at the time of his claim.

The domestic law relevant to this application is set out in Willis v. the United Kingdom, no. 36042/97, §§ 1426, ECHR 2002-IV and Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.


The applicant, Ms Katarzyna Widawska is a Polish national who was born in 1980 and lives in Warsaw. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.

The proceedings initiated upon the applicant’s motion

On 27 July 1999 the applicant lodged an action against her father with the Warsaw District Court. She sought an increase of the amount of maintenance to be paid by her father, who was partially incapacitated.

On 18 August 1999 the first hearing was held.

On an unknown date the court requested the case file of the proceedings for annulment of the marriage of the applicant’s parents.

On 25 August 1999 the applicant supplemented her action by seeking maintenance also from her grandfather.

On 25 October 1999 the court was informed by the Warsaw Court of Appeal that in the proceedings for annulment of the applicant’s parents’ marriage the court had not ruled on the issue of the applicant’s maintenance.

On 20 July 2000 the applicant amended her claim as she no longer wished to claim maintenance from her grandfather and changed the amount of maintenance claimed from her father.

On 29 September 2000 the Warsaw District Court gave a judgment. The applicant’s father was ordered to pay the applicant monthly maintenance in the amount of 200 PLN in place of the previous amount of 80 PLN per month. The court made the judgment immediately enforceable.

On 10 October 2000 the applicant’s father lodged an appeal.

On 13 October 2000 the court requested the guardian of the applicant’s father to confirm his appeal as the applicant’s father was partially incapacitated.

In a letter of 22 October 2000 the legal representative of the applicant’s father stated that he did not support the appeal.

On 22 January 2001 the Warsaw Regional Court rejected the applicant’s father’s appeal of 10 October 2000 on formal grounds.

The proceedings initiated upon the applicant’s father’s motion

On 23 January 2001 the applicant’s father lodged a motion for exemption from court fees, which was subsequently granted by the Warsaw District Court.

On 20 April, 24 May and 25 June 2001 the District Court held hearings in the case.

By a judgment of 18 July 2001 the Warsaw District Court reduced the amount of maintenance from 200 PLN to 120 PLN. The court-appointed guardian lodged an appeal on behalf of the applicant’s father. It was rejected on 6 September 2001 by the Warsaw Regional Court for non-compliance with the prescribed time-limit.

On 3 December 2001 the Warsaw Regional Court dismissed the applicant’s appeal against the judgment of 18 July 2001. The applicant was served with the decision on 11 February 2002.

At a hearing held on 2 April 2002 the applicant’s father withdrew his motion for annulment of the alimony decision.


No violations of Art. 3 (substantive aspect);Violation of Art. 3 (substantive aspect);Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - award;Pecuniary damage - claim dismissed

Ganna Yudkivska;Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Pavlina Panova;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant was born in 1964 and is currently serving a life term in Sofia Prison.

On 5 August 1996 the applicant was arrested on suspicion of having abducted a person. On 14 August 1996 he was charged with that offence. In September 1996 he was charged with murdering three police officers, and on 4 June 1997 with at least ten other offences.

On an unspecified date in 1998 the prosecuting authorities submitted an indictment against the applicant to the Sofia City Court. However, on 18 September 1998 the judge rapporteur referred the case back to them, citing irregularities in the manner in which some of the charges and evidence had been presented to the applicant.

On 12 October 1998 the prosecuting authorities submitted to the Sofia City Court an indictment against the applicant and three others. The charges included the murder of three police officers, several attempted murders, robberies, thefts, unlawful deprivation of liberty, and unlawful possession of firearms. On 29 December 1998 the judge rapporteur set the case down for trial over several days in May 1999.

The Sofia City Court held at least seven hearings between May 1999 and 8 March 2000, and on the latter date convicted the applicant of aggravated murder, hooliganism, attempted armed robbery, deprivation of liberty and unlawful possession of firearms, and acquitted him of the other charges. It sentenced him to life imprisonment without commutation and ordered that he should begin serving his sentence under the strictest prison regime (the so-called “special regime” – see paragraph 21 below).

On appeal, the Sofia Court of Appeal held at least five hearings, the last of which took place on 14 January 2002. On 10 February 2003 it partly quashed the lower court's judgment, acquitting the applicant of one of the charges of attempted armed robbery and of the charges of unlawful possession of firearms, and re-qualifying one of the other charges. It upheld the remainder of the judgment, including the applicant's sentence.

On 27 February 2004 the Supreme Court of Cassation partly quashed the Sofia Court of Appeal's judgment and remitted the case to that court for reconsideration of the charges of attempted robbery. It upheld the remainder of the judgment, including the applicant's sentence.

On remittal, the Sofia Court of Appeal held at least two hearings. On 31 August 2004, it upheld the Sofia City Court's judgment, acquitting the applicant of the charges of attempted armed robbery. No appeal was lodged, and the judgment became final on 6 October 2004.

On 7 February 1997 the applicant was moved to the detention centre of the National Investigation Service. On 2 December 1997 he was transferred to Sofia Prison. Between 1997 and 2004, he was held there as a detainee awaiting the final determination of the criminal charges against him. Since 17 November 2004, his stay in the prison has been continued on the basis of his final sentence of life imprisonment.

On 4 December 1997 the prison's governor, relying on the relevant regulations (see paragraphs 17 and 18 below) and having regard to a note in which the investigating authorities had described the charges against the applicant, his character, and their assessment of the risk that he could pose to prison staff, ordered that he be placed within an isolated group of prisoners subjected to stringent security measures and be deprived of the right to take part in communal activities. In a follow-up decision of 14 May 1999 the governor ordered that the applicant be handcuffed each time he was separated from that group. According to the Government, the applicant was being handcuffed only when taken out of the premises occupied by the group – for outdoor activities, visits to the prison doctor, dentist or library, or receiving visitors or lawyers. He was allowed to exercise in a special secluded yard. The applicant contended that he was being handcuffed each time when taken out of his cell.

The applicant alleged that he was held alone in a locked cell measuring 1.9 by 4.05 metres. He could leave the cell only for his daily onehour walk. During the first eight or nine months in prison he took his walk alone. After that, he was allowed to join one or two other life prisoners, but was prohibited from talking to them. Since October 2001, he was again taking his daily walks alone, in a concrete enclosure covered with a wire-net and measuring 6.7 by 11 metres. The only other times when the applicant was allowed out of his cell were the scheduled visits to the sanitary facilities, for five to ten minutes twice a day. According to him, those were the only occasions when he could stock up on drinking water. Later, he was allowed to spend more time using the sanitary facilities. The applicant further alleged that during the first six months of his stay in prison he was being deprived of one of his daily meals once every four days, and for an initial period of about a year and a half he was not allowed to use his own bed sheets and pillows.

The Government disputed those allegations, saying that the applicant had not been subjected to serious isolation inside his prison group. They pointed out that, save for a limited number of restrictions flowing from the “special regime” to which the applicant was subjected, he enjoyed the opportunities available to all other inmates, such as the possibility to work, access to free health and dental care, access to the prison library and temple, receiving visitors, parcels, telephone calls and correspondence, etc. They cited a note drawn up by the prison's governor, which said the following:

“[The applicant] is even now extremely hostile towards the legal order of the Republic of Bulgaria. He does not accept his conviction and sentence, and considers the criminal proceedings against him to be unfair and biased. He shows complete disregard to others, and acts rudely and arrogantly when approached. Extremely mistrustful, suspicious and hostile towards all prison staff. His irascibility, undisguised cruelty and spitefulness, and constant nervous tension make him especially dangerous and unpredictable. His attitude towards the other inmates in his group does not differ markedly from the one described above. He refuses to socialise with others, hates everything and everyone. He enters into sporadic contacts with the group's hygienist when necessary. Refuses to take part in communal activities. On several occasions he was offered work, which he pointedly turned down. When taken out for visits and in the presence of larger groups of people, he often loudly makes negative remarks about the courts and the prison administration. He often rehearses his 'defence speech' naked in his cell.”

The applicant disputed those allegations and pointed out that the governor did not cite any specific facts to support them.

At the material time the regime of pre-trial detainees kept in prisons was governed by regulations issued in 1993 (Наредба № 12 от 15 април 1993 г. за положението на обвиняемите и подсъдимите в местата за лишаване от свобода). In May 1999 those were superseded by similar regulations (Наредба № 2 от 19 април 1999 г. за положението на обвиняемите и подсъдимите с мярка за неотклонение задържане под стража), which remained in force until September 2006.

Regulation 15(1)(3) of the 1993 regulations, superseded by regulation 14(3) of the 1999 Regulations, provided that detainees could be placed in a locked cell and be deprived of the right to take part in communal activities if considered a security risk. That measure could be imposed by the prison's governor, who had to have regard to the detainee's personal characteristics and psychological state, and to the dangerousness of the offence in relation with which he or she had been detained. Regulation 15(3) in fine of the 1993 regulations, superseded by regulation 15 of the 1999 regulations, provided that detainees subjected to such measures had to be kept isolated from the general prison population each time they were taken out of their cells, for court transfers, medical treatment, receiving visitors, outdoor activities, etc.

Until June 2009 the regime of prisoners serving a life sentence was governed by the Execution of Punishments Act (1969) (Закон за изпълнение на наказанията) and the regulations for its implementation. In June 2009 and February 2010 these were superseded by, respectively, the Execution of Punishments and Pre-Trial Detention Act (Закон за изпълнение на наказанията и задържането под стража) and the regulations for its implementation.

The regime of life prisoners was governed by sections 127a-127e of the 1969 Act, added in 1995. Section 127b(1) provided that when imposing a life sentence the court had to order the prisoner's placement under the strictest regime, called “special regime”. Individuals placed under that regime were to be kept in locked single cells and subjected to heightened security and supervision (regulation 56(1) of the implementing regulations). Those provisions were maintained in 2009 Act (sections 61(1), 71(2) and 198(1)) and the 2010 regulations (regulation 213). Regulation 213 additionally provides that life prisoners can take part in communal activities only with prisoners of the same category. Under regulation 214, they have to be kept isolated from the general prison population even when taken out of their cells for transfers, medical treatment, visits, outdoor activities, etc.

Section 127b(2) of the 1969 Act, superseded by section 198(1) of the 2009 Act, provided that, if they had good conduct, after five years life prisoners could be placed under a lighter regime. The time spent in pre-trial detention does not form part of that period (regulation 167(2) of the implementing regulations of the 1969 Act, superseded by regulation 218 of the implementing regulations of the 2009 Act). The decision to place a life prisoner under a lighter regime is taken by a commission consisting of prison staff and various other officials (section 17 of the 1969 Act, superseded by sections 73 and 74 of the 2009 Act). Under section 58 of the 1969 Act, the commission's decisions could be challenged by the Minister of Justice. Under section 74(2) of the 2009 Act, only the decisions to place a prisoner under a stricter regime can be challenged, by way of judicial review. Once under a lighter regime, life prisoners can, under certain conditions, be placed together with the general prison population (section 127b(4) of the 1969, superseded by section 198(2) of the 2009 Act).

The CPT has visited Bulgaria seven times. Sofia Prison was visited in 2006 and 2008.

The report on the 2006 visit (CPT/Inf (2008) 11) says:

“101. There were 15 lifers at Sofia Prison at the time of the visit; two were being accommodated in the mainstream prison population, while the rest were held in a separate unit in the section used for disciplinary isolation ... Lifers in the separate unit were accommodated in single cells measuring 7.5 m²; the cells had a small barred window, set too high in the wall to afford a view out. There was integral sanitation which reduced the limited space in the cell; however, the cells would provide adequate sleeping accommodation for one person provided these prisoners were offered a varied programme of out-of-cell activities during the daytime.

However, in contrast to the situation observed in [two other prisons], life-sentenced prisoners in Sofia Prison lacked communal activities. They were locked up in their cells except for periods of outdoor exercise (1.5 hours like the rest of the inmates at Sofia Prison), which all but four lifers took together. The lack of group activities is not justifiable in security terms, given that life-sentenced prisoners already exercise together. The delegation was told of plans to set up a group room for association and other activities for lifers, which would be opened in the near future. In-cell activities included watching TV and reading books from the library and a daily newspaper; further, nine lifers worked in their cells (making gift bags). One prisoner interviewed by the delegation complained that he had been refused permission to have a personal computer in his cell to do a computer literacy course.

The four lifers who did not join the others for communal exercise were segregated under orders reviewed every 6 months. Whenever they were outside the cell, they were handcuffed, including for exercise which they took alone in a secure yard. In the CPT's opinion, there can be no justification for handcuffing a prisoner exercising alone in a secure yard, provided there is proper staff supervision. The Committee recommends that the Bulgarian authorities review their current policy as regards the handcuffing of the above-mentioned life-sentenced prisoners, in the light of these remarks.”

The report on the 2008 visit (CPT/Inf (2010) 29) says:

“74. [A]t the time of the visit, there were 18 life-sentenced prisoners at Sofia Prison. Three of [them] had been integrated into the mainstream prisoner population, while the remainder were being held in a separate unit (Group 1).

Material conditions of detention in the lifer unit had remained basically unchanged since the 2006 visit ... The installation of integral sanitation in the cells, with a shower head over the toilet and access to hot water all day, was a positive feature; however, as a result, prisoners had less occasions to leave their cells and interact with staff.

Some of the lifers had their own television sets and play-stations in their cells. At the time of the 2006 visit, lifers had had hot plates in their cells, to cook food, which increased their sense of independence and helped to pass the time. The hot plates had reportedly been withdrawn a few weeks before the visit for safety reasons, and lifers had immersion coils for heating water.

As regards activities, one notable change since the 2006 visit was the entry into operation of a social room (“club”) in the lifer unit. This good facility was decorated in pleasant light colours and furnished with bookcases, a chess table with two chairs, a larger table with five chairs, a cupboard with games including a backgammon board, a television set with DVD player and a sink. Lifers were divided into three subgroups on the basis of common interests (playing cards, chess, discussing legal matters, etc.) and each group was allowed to use the social room for one hour each weekday. At weekends, there were only the two officers present, which made it difficult to organise activities.

Lifers who were willing to work (12 of the 15 in the lifers unit) worked in their cells on the same kinds of piece work as was observed on the 2006 visit (e.g. putting strings on boutique bags).

Further, outdoor exercise for one and a half hours per day was offered to all lifers. The delegation noted that a shelter had been provided at one end of the exercise yard.

Despite the above-mentioned welcome introduction of a social room, which increased the amount of time spent out of the cells and in association with other prisoners, the daily regime in the lifer unit remained monotonous. The CPT recommends that the Bulgarian authorities strive to enhance the programme of activities provided to life-sentenced prisoners at Sofia Prison, if necessary, by increasing staffing.

Staff on the lifer unit indicated that two of the inmates were in their first 5 years of a life sentence and were therefore subject to particular security restrictions. The two lifers were escorted in handcuffs and were not allowed television. It was up to the Director to review the use of handcuffs, but there was no time limit on their use and no regular review period.

As already stated in the report on the 2006 visit, the CPT considers that there can be no justification for routinely handcuffing a prisoner within a secure environment, provided there is proper staff supervision. The Committee recommends that the Bulgarian authorities review the policy of handcuffing life-sentenced prisoners when outside their cells.

The CPT has in the past expressed its serious misgivings about the current legal provisions whereby lifers are systematically subjected to a strict and segregated regime for an initial period ordered by the sentencing court (i.e. 5 years). This approach runs counter to the generally accepted principle that offenders are sent to prison as a punishment, not to receive punishment.

The Committee does not question that it may be necessary for some prisoners to be subject, for a certain period of time, to a special security regime. However, the decision whether or not to impose such a measure should lie with the prison authorities, be based on an individual risk assessment and be applied only for the shortest period of time. A special security regime should be seen as a tool of prison management, and not be made part of the catalogue of criminal sanctions to be imposed by courts.

In many countries, lifers are not viewed as necessarily more dangerous than other prisoners; many of them have a long-term interest in a stable and conflict free environment. Therefore, the approach to the lifer management should proceed from individual risk and needs assessment to allow decisions concerning security, including the degree of contact with others, to be made on a case-by-case basis.

Whereas lifers should not be systematically segregated from other prisoners, special provision should be made to assist lifers and other long-term prisoners to deal with the prospect of many years in prison. In this respect, reference should be made to Rule 103.8 of the European Prison Rules which states that “particular attention shall be paid to providing appropriate sentence plans and regimes for life-sentenced prisoners”, taking into consideration the principles and norms laid down in the Council of Europe Recommendation on the “management by prison administrations of life-sentence and other long term prisoners”.

Pursuant to Bulgarian law, after the initial 5 years of their sentence, lifers are eligible for allocation within the mainstream prisoner population if they have behaved well and have had no disciplinary punishments. However, in practice, only a minority of lifers (3 out of 18 at Sofia Prison) had found their way into the mainstream, some after many years served in the lifer unit. The CPT invites the Bulgarian authorities to build on the success of the “experiment” of integrating some life-sentenced prisoners into the mainstream prison population, which should be considered as an appropriate part of the management of this category of prisoner and reinforced by legislative measures.

More generally, the CPT recommends that the Bulgarian authorities review the legal provisions and practice concerning the treatment of life-sentenced prisoners, in the light of the above remarks.”


Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger

The applicant was born in 1957 and lives in Pavlograd.

In June 2003 the applicant instituted proceedings for damages against Oranta State Insurance Company in the Babushkinskyy District Court of Dnipropetrovsk (“the Babushkinskyy Court”).

On 18 April 2005 the court dismissed the claim as unsubstantiated.

On 1 September 2005 and 18 May 2006 the judgment was upheld by the Dnipropetrovsk Regional Court of Appeal and the Supreme Court of Ukraine, respectively.

In June 2003 the applicant also instituted proceedings against her former employer, the local police department, seeking recovery of some retirement-related and other payments.

On 10 May 2005 the Babushkinskyy Court found against her.

On 17 November 2005 the Dnipropetrovsk Regional Court of Appeal upheld the judgment. It stated in the operative part that the applicant had the right to challenge the decision before the Higher Administrative Court within one month.

The applicant appealed in cassation.

On 3 February 2006 the Higher Administrative Court declined jurisdiction to consider her appeal in cassation on the ground that the case was of a “civil” rather than an “administrative” nature and therefore the Supreme Court was the correct court of cassation.

The applicant resubmitted her appeal in cassation to the Supreme Court. On 5 June 2006 the latter, referring to Article 210 of the Code of Administrative Justice, declined jurisdiction asserting that, in fact, the Higher Administrative Court was the appropriate forum for the case.

The relevant domestic law and documents of the Council of Europe are quoted in the judgment in Bulanov and Kupchik v. Ukraine (nos. 7714/06 and 23654/08, §§ 20-25, 9 December 2010).


Costs and expenses - claim dismissed;Non-pecuniary damage - financial award;Pecuniary damage - claim dismissed

The Airey case was referred to the Court by the European Commission of Human Rights ("the Commission") in May 1978. The case originated in an application against Ireland lodged with the Commission in 1973 by Mrs. Johanna Airey.

The only outstanding matter to be settled is the question of the application of Article 50 (art. 50) in the present case. Accordingly, as regards the facts, the Court will confine itself here to giving the pertinent details; for further particulars, reference should be made to paragraphs 8 to 12 of the Court’s judgment of 9 October 1979 (Series A no. 32, pp. 6-8).

By that judgment, the Court held, inter alia, that there had been breach of Articles 6 par. 1 and 8 (art. 6-1, art. 8) of the Convention by reason of the fact that the applicant did not enjoy an effective right of access to the Irish High Court for the purpose of petitioning for a decree of judicial separation (points 4 and 6 of the operative provisions and paragraphs 20-28 and 31-33 of the reasons, ibid., pp. 19, 11-16 and 17).

At the hearing of 22 February 1979, the applicant’s counsel had informed the Court that, should it find a breach of the Convention, her client would seek just satisfaction under Article 50 (art. 50) under three headings: effective access to a remedy for breakdown of marriage; monetary compensation for her pain, suffering and mental anguish; and monetary compensation for costs incurred, mainly ancillary expenses, fees for lawyers and other special fees.

In its aforesaid judgment, the Court reserved the whole of the question of the application of Article 50 (art. 50). The Commission was invited to submit to the Court, within two months from the delivery of the judgment, the Commission’s observations on that question, including notification of any settlement at which the Government of Ireland ("the Government") and the applicant might have arrived (point 8 of the operative provisions and paragraphs 36-37 of the reasons, ibid., pp. 18-19).

The above-mentioned time-limit was extended by the President several times, on the last occasion until 30 July 1980.

On 17 July 1980, the Secretary to the Commission, acting on the Delegates’ instructions, transmitted to the registry copies of correspondence setting out in detail the course of negotiations between the Government and the applicant and revealing that the applicant had rejected a "without prejudice" offer by the Government to pay to her 3,140 Irish pounds in full and final satisfaction of her claims. At the same time, the Secretary stated that the Delegates were of opinion that there was no useful basis on which efforts to reach a settlement could be pursued and that they submitted to the Court that an award under Article 50 (art. 50) should be made "on the basis of the above offer".

By letter of 21 August 1980, the Agent of the Government informed the Deputy Registrar, inter alia, that the Government consented to an award of £ 3,140. On 8 October, the Secretary to the Commission transmitted to the Registrar a telex received from the applicant’s legal representative indicating that the applicant did not consider this amount to be fair and reasonable and requested an award in line with her earlier submissions (see paragraph 5 below). On 10 November, the Agent wrote to the Registrar to advise him that, although her Government disputed the applicability of Article 50 (art. 50) to the present case and although they considered a sum of £ 2,140 - which they had initially offered by way of settlement - to be an adequate award, they remained willing to consent to an award of £ 3,140.

During the course of the negotiations, proposals for a settlement had been put forward on the applicant’s behalf which may be summarised as follows:

a) Mrs. Airey sought an undertaking from the Government to indemnify her against any future legal costs and expenses reasonably incurred in pursuing before the Irish courts the remedy of judicial separation ("the domestic costs").

b) Compensation was requested in respect of:

- travelling and miscellaneous expenses: £ 140;

- loss on re-housing: £ 1,500;

- legal costs and expenses referable to the proceedings before the Convention institutions ("the Strasbourg costs"): £ 9,984.41.

c) It was alleged that Mrs. Airey had suffered severe mental anxiety and that her own and her children’s health had been adversely affected; further, her inability for financial reasons to obtain a maintenance or garnishee order in the High Court was said to have caused her constant financial difficulties, to have obliged her to take unsuitable employment and to have resulted in her children’s being denied normal educational facilities and opportunities. The applicant’s solicitors suggested a figure of £ 2,000 in respect of this item.

On 9 September 1980, Mrs. Airey applied, under the Scheme of Civil Legal Aid and Advice introduced in Ireland on 15 August 1980, for legal aid in order to petition for judicial separation. However, the competent office informed her on 8 October that she appeared to be ineligible on the basis of the means test.

On 10 November, the Secretary to the Commission informed the Registrar that, should the applicant not be granted legal aid, the Delegates would regard it as an important element in any award under Article 50 (art. 50) that her legal costs for a separation action be underwritten by the Government. The Secretary also transmitted to the registry a copy of a letter received from the applicant’s solicitors, Messrs. Walsh O’Connor and Company, in which they requested that, if she were denied legal aid, she should be awarded an additional sum to enable her to instruct solicitor and counsel to represent her in separation proceedings.

On 21 November, the Agent of the Government wrote to the Registrar in the following terms.

In the light of the information provided by Walsh, O’Connor and Company indicating that Mrs. Airey, whose financial position appears to have improved since the events which gave rise to the Court’s judgment in her case, may not be granted legal aid under the Scheme and in view of the course of the proceedings in this particular case, my Government has decided to underwrite her reasonable costs of retaining Solicitor and Counsel for the purpose of taking proceedings for a legal separation, such costs to be taxed as between solicitor and client (i.e. independently assessed by the Courts) in default of agreement thereon between Mrs. Airey and the Government.

The Secretary to the Commission transmitted to the Registrar on 17 December a copy of a letter of 11 December from Messrs. Walsh O’Connor and Company, which read:

"... We quote from our client’s letter of instructions to us ‘I accept the Government’s offer of costs for my legal separation but reject their offer of £ 3,140 compensation’ etc., from which you will see that we will be instituting proceedings against Mr. Airey on behalf of Mrs. Airey claiming a legal separation and relying on the Government’s undertaking to underwrite our client’s costs in the matter.

In accordance with a request by the President of the Chamber, the Secretary to the Commission filed certain documents with the registry on 20 November.

Having consulted, through the Registrar, the Agent of the Government and the Delegates of the Commission, the Court decided on 24 November 1980 that there was no call to hold oral hearings.

Mr. O’Donoghue, the elected judge of Irish nationality who had taken part in the adoption of the judgment of 9 October 1979 and whose term of office expired on 20 January 1980, was in principle called upon to continue to sit in this case (Article 40 par. 6 of the Convention and Rule 2 par. 3 of the Rules of Court) (art. 40-6). However, on account of his inability to attend, his place was taken by his successor, Mr. Walsh.


Elisabeth Palm;Gaukur Jörundsson;Nicolas Bratza

The applicant is a British citizen born in 1956 and residing in Meopham, Kent, England.

A.

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

The applicant was appointed an executor and beneficiary under the will of the deceased B, a freemason, who died in November 1992. This professionally drawn will, dated 5 June 1991, left a large part of the estate to the applicant subject to a life interest in the residuary estate to B’s brother, P. The applicant states that B told him that P was also a freemason. The Government have provided a letter from the United Grand Lodge of England stating that they had no trace of P as a member.

On 6 August 1991, B made a manuscript codicil endorsed on the back of a photocopy of the will by which he purported to revoke the will without making any other will in its place. It was purportedly witnessed by two persons present at the time. The applicant complained to the police about the codicil after B’s death but the police did not find any evidence of criminal conduct.

P applied to the High Court for a declaration that the will had been validly revoked. The applicant states that he wished to produce in evidence tape recordings of a phone conversation between, amongst others, B and a friend. Although the tapes were not produced, a transcript of one tape appears in one of the police statements which was before the judge. Two of P’s witnesses were freemasons. The evidence before the court made reference to B’s involvement in freemasonry. In his application, the applicant alleged that P’s counsel and solicitor were also freemasons. The Government have provided letters from both in which they stated that they were not, and never had been, freemasons.

On 12 December 1994, the deputy High Court judge, Mr Roger Kaye, declared that the will had been validly revoked by the codicil, ordered that letters of administration be granted to P and ordered the applicant to pay P’s costs. The result of this order was that B died intestate and the entirety of his estate passed to P. The applicant had been legally represented until shortly before the trial when he dispensed with legal assistance and conducted his case in person before the judge.

P died on a date unspecified in 1995, leaving no surviving children or spouse.

The applicant appealed to the Court of Appeal, claiming inter alia that the evidence as to the attestation of the will was inconsistent, that the judge disallowed the admission of tapes in evidence, that P failed to disclose documents or did so at a late stage, that the judge did not explain why he made a costs order and that the judge erred in concluding that the codicil was validly executed, that B knew what he was signing and that he was not the victim of undue influence.

In its decision of 22 November 1995, the Court of Appeal (Lord Justice Rose, Lord Justice Millett and Lord Justice Thorpe) found that there were no flaws in the judge’s essential findings or conclusion. Further it was noted that the applicant had not made any formal application for the admission of the tapes in evidence but that in any event it appeared unlikely that this would have influenced the trial judge one way or the other. The Court of Appeal unanimously held that there was no substance to the appeal and made an order for costs against the applicant. On 18 December 1995, the Court of Appeal refused leave to the applicant to appeal to the House of Lords.

On 22 July 1997, the applicant petitioned the House of Lords for leave to appeal upon similar grounds. This was rejected by the House of Lords on 13 January 1998.

The applicant alleges that he subsequently learnt that the trial judge was a freemason, and received confirmation that one of the Court of Appeal judges Lord Justice Millett was also a freemason. At the time of the hearing the applicant states that there would have been no means of discovering this. A letter provided by the Government indicates that the applicant was aware of Lord Justice Millett’s membership by 2 December 1996 at the latest.

In his letter dated 18 May 1999, Lord Millett (now a Law Lord in the House of Lords) did not recall being aware that either the deceased or plaintiff was a freemason but even if it was mentioned in the papers it would have made no impression on him. He pointed out that there were 1,000 lodges in the United Kingdom and over 300,000 masons, the overwhelming majority of whom were complete strangers. As masons, they shared common interests, as did those who played golf or collected stamps. They owed each other no special obligations that they did not owe to others. They acknowledged the claims of charity but beyond this the notion that masons were obligated to support each other or protect each other’s property was a complete myth.

In his letter dated 24 May 1999, Roger Kaye Q.C. recalled that he was aware during the proceedings that B had been a freemason as it had received fleeting mention. He also recalled that there were references in the documents to one or two witnesses being freemasons. He was not aware that P was alleged to be a freemason. However, this aspect was never an issue of feature in the case. At no time did it appear to him to have such a bearing or connection with the case as to call for a declaration of interest.

B. Relevant domestic law and practice

Freemasonry in the United Kingdom

According to a Parliamentary Home Affairs Select Committee report (see below), freemasonry is a predominantly social organisation which plays a significant role in charitable activities, donating about £13 million per year to charitable causes. In their evidence to the Committee, the United Grand Lodge estimated their active lodge membership as 349,213.

Freemasons belong to a lodge, each lodge having on average 40 members. Lodge meetings typically consist of a social dinner and the acting out of a series of one-act plays by members. Members take an oath to abide by particular principles, including obedience to God and the law, the practice of morality and charity and basic principles of good citizenship. Members also take oaths of mutual support. In its written evidence to the Select Committee, the United Grand Lodge stated that a Freemason’s duty as a citizen must always prevail over any obligation to other Freemasons.

Although in the past, freemasons adopted an attitude of secrecy, since 1984 there has been a change. Freemasonry now publishes leaflets, its rule book and year book. Nor is there any obligation on a freemason to keep his membership of the organisation secret.

Freemasonry and the judiciary

In a Memorandum from the Lord Chancellor’s Department to the Home Affairs Committee entitled “Freemasonry in the Judiciary” dated December 1996 it was stated:

“2.1. Judges ... are bound by the judicial oath which they take on appointment ...

2.2. In honouring this oath, a judge can be expected to have full regard to the law on disqualification on grounds of interest or bias. Recent authority on this area of the law can be found in the judgment of the House of Lords case of R v. Gough [1993] AC 646.

2.3. The law as elucidated in R v. Gough disqualifies a person automatically from taking a judicial decision if she or he has any pecuniary or proprietary interest in the outcome of the proceedings. Where a judge has an interest other than a pecuniary or proprietary one, the law disqualifies him or her from adjudicating in any cases where circumstances point to a “real danger”... of bias in relation to a party or an issue involved in the case, each case falling to be considered on it own facts.

2.4. If a judge finds that he is acquainted with, or has any other sort of relationship with, a person involved in a case or with the subject matter of the case, then the judge must consider whether the nature of the relationship would ... be such as to create a real danger of bias. This would apply to an acquaintance or relationship resulting from membership of the freemasons just as it would to any other sort of relationship. If the judge sitting decides that the relationship would be regarded as creating a real danger of bias, then the judge should disqualify himself from adjudicating on the matter ...

2.8. The judicial oath overrides any commitment which might be made as part of a person’s membership of the freemasons, and the Lord Chancellor has no reason to believe that freemasons who take the judicial oath cannot be relied upon to honour it.”

In March 1997, the Parliamentary Home Affairs Select Committee published a report entitled “Freemasonry in the Police and the Judiciary” which concluded, inter alia:

“The Committee conclude that, when the oaths are read in context, there is nothing in them that would appear sinister; and nothing in the evidence we have heard that would show a conflict between the oath taken by a judge or policeman and that taken by a freemason.

We do not believe that there is anything sinister about freemasonry, properly observed, and are confident that freemasonry itself does not encourage malpractice.” (paragraph 32)

“It is obvious that there is a great deal of unjustified paranoia about freemasonry and we have no wish to add to it ...We believe however that nothing so much undermines public confidence in public institutions as the knowledge that some public servants are members of a secret society one of whose aims is mutual self-advancement - or a column of mutual support to use the masonic phrase ... The solution is disclosure. We recommend that police officers, magistrates, judges and crown prosecutors should be required to register membership of any secret society and that the record should be available publicly. However, it is our firm belief that the better solution lies in the hands of freemasonry itself. By openness and disclosure, all suspicion would be removed and we would welcome the taking of such steps by the United Grand Lodge.” (paragraph 56)

The Government responded to the Report by announcing on 17 February 1998 the setting up of a voluntary register. New recruits to the judiciary would be required to register their membership of the Freemasons. The Home Secretary stated that he would be requesting existing judges to join voluntary registers. The Government would address the need for legislation having regard to the extent of compliance with voluntary registers.

According to the Government’s provisional figures, 96% of the professional judiciary have responded to the invitation to declare whether they were freemasons or not. Of those that responded, 5% declared themselves to be freemasons.


Violation of P1-1;Violation of Art. 6-1;Pecuniary damage - financial award

The applicant was born in 1931 and lives in Milan.

The applicant is the owner of an apartment in Milan, which she had let to M.A.H. on 1 March 1987.

In a writ served on the tenant on 13 February 1991 the applicant informed the tenant that she intended to terminate the lease and summoned the tenant to appear before the Milan Magistrate.

By a decision of 15 March 1991, which was made enforceable on 19 March 1991, the Milan Magistrate upheld the validity of the notice to quit and ordered that the premises must be vacated by 30 September 1991.

On 10 July 1991, the applicant served notice on the tenant requiring him to vacate the premises.

On 18 November 1991 she served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 29 November 1991.

Between 29 November 1991 and 22 January 1999 the bailiff made twenty-four attempts to recover possession. Each attempt proved unsuccessful, as, under the statutory provisions providing for the staggering of evictions, the applicant was not entitled to police assistance in enforcing the order for possession.

On 22 November 1999, the applicant repossessed the premises with the assistance of the police.

The relevant domestic law is described in the Court’s judgment in the case of Immobiliare Saffi v. Italy [GC], no. 22774/93, 28.7.99, §§ 18-35, ECHR 1999-V.


CASE OF FOLDES AND FOLDESNE HAJLIK v. HUNGARY

Violation of P4-2-2 in respect of the first applicant;Remainder inadmissible;Non-pecuniary damage - financial award

András Baka;Antonella Mularoni;Elisabet Fura;Ireneu Cabral Barreto;Jean-Paul Costa

The applicants were born in 1957 and 1958 respectively and live in Miskolc.

On 10 December 1992 a company, E. Ltd., laid charges of fraudulent bankruptcy and other offences against the applicants, then a married couple. Subsequently, the Borsod County Police Department instituted criminal proceedings against the first applicant. On 17 November 1993 he was questioned as a suspect.

On 27 December 1993 the Borsod County Police Department prohibited the alienation of the applicants’ real property and their cars. On 22 February 1994 the Miskolc Public Prosecutor’s Office upheld this measure, observing that it was justified because it pursued the aim of guaranteeing the satisfaction of claims brought by the potential civil parties.

Meanwhile, on 6 January 1994 the proceedings were extended to include the second applicant as a defendant.

On 17 January 1994 the Passport Office of the Ministry of the Interior withdrew the first applicant’s passport until the termination of the criminal proceedings, under sections 2 and 13 of the Foreign Travel Act (Law no. 28 of 1989), in order to secure his availability for trial. That decision was confirmed by the Minister of the Interior on 25 March 1994.

On 26 October 1994 the Miskolc Public Prosecutor’s Office preferred a bill of indictment against the applicants, charging them with fraudulent bankruptcy and other offences.

Meanwhile, the first applicant requested the Budapest Regional Court to review the administrative decision ordering the withdrawal of his passport. On 9 May 1995 the Regional Court upheld that decision, which in its view had been delivered in accordance with the law.

After sixteen hearings between 7 May 1996 and 4 February 2002, on 11 February 2002 the Miskolc District Court convicted the applicants and sentenced them to one year and eight months’ imprisonment and one year and six months’ imprisonment respectively, these sentences being suspended for three years. The court relied on the testimonies of witnesses, extensive documentary evidence and the opinion of three experts. In its reasoning, it appreciated, as a mitigating factor, the “very long time” which had elapsed since the commission of the offences, finding that this delay could not be imputed to the applicants.

On appeal, on 11 June 2002, the Borsod-Abaúj-Zemplén County Regional Court quashed the District Court’s judgment on account of a serious procedural shortcoming and remitted the case to the first-instance court.

In reply to a request by the applicants to have the case file photocopied, on 17 June 2002 the Regional Court invited them to specify which particular elements they wished to have copied. The court pointed out that the photocopying of the whole case file, which contained several thousand pages (and was in any event available for personal consultation in its entirety), was impossible and also unnecessary, given that many documents were of little relevance.

In the resumed proceedings, eighteen hearings were held between 21 October 2002 and 19 May 2005.

On 23 May 2005 the District Court convicted the applicants of the offences of breaching accountancy rules (punishable by up to two years’ imprisonment under Article 289 of the Criminal Code) and of fraudulent bankruptcy (punishable by up to five years’ imprisonment under Article 290 of the Criminal Code), and fined them each 270,000 Hungarian forints.

On 23 June 2005 the Borsod-Abaúj-Zemplén County Regional Court dismissed an appeal by the applicants. It ordered that the measures attaching the applicants’ assets be discontinued.

On 5 January 2006 the Supreme Court’s review bench quashed the second-instance judgment and remitted the case to the Regional Court.

In the resumed second-instance proceedings, on 8 June 2006 the Regional Court upheld in essence the applicants’ convictions and fines. It dismissed the civil party’s claims and lifted the prohibition on the alienation of the applicants’ assets. In its reasoning, it reiterated:

“[I]n the process of imposing ‘legal detriments’ [joghátrány], the courts fully recognised the extraordinarily protracted nature of the proceedings as an important mitigating factor, and appreciated this circumstance when determining the punishments.”

In reply to a complaint in the applicants’ appeal concerning the non-attendance of the experts at the court hearings, the court observed that their opinions had been added to the case file, since they had been extensively presented at the hearing on 10 February 2005. Despite an invitation by the court to do so, the applicants did not comment in writing on those opinions in the ensuing proceedings. Given that the opinions had at all times been available to the defence, copies had been dispatched to the parties, and the opinions had been explained at a hearing, the court was satisfied that the principle of “direct and oral proceedings” had not been infringed. In any event, it was convinced that, given the complexity of the case and the extensiveness of the opinions (amounting to several volumes), any meritorious criticism thereof would only have been possible in writing and the experts – whose views were otherwise essentially convergent – could likewise have reacted to such criticism in writing.

The judgment became final on the same day.


Violation of Art. 6-1 by reason of lack of fair hearing;Violation of Art. 6-1 by reason of refusal of right of access to court;Violation of P1-1;Just satisfaction reserved

L. Mihai;Luzius Wildhaber;Nicolas Bratza

In 1930 the applicant’s parents had a house built in Bucharest. From 1939 onwards they let the ground floor to the Mirescu brothers, the uncles of the third party intervening in the case, Mr Mircea Dan Mirescu.

In 1950 the State took possession of the applicant’s parents’ house in Bucharest, allegedly under Decree no. 92/1950 on nationalisation. The applicant’s parents were never informed of the grounds or legal basis for that deprivation of property. They were, however, allowed to continue to live in one of the flats in the house as tenants of the State.

In 1973, pursuant to Law no. 4/1973, the State sold the Mirescu brothers the flat which they had hitherto occupied as tenants. The intervener, Mr Mircea Dan Mirescu, and his sister, A.M.M., inherited the flat in 1988. After his sister’s death in 1997 the intervener was left as the sole successor in title to the flat.

In 1993 the applicant, as the beneficiary of his parents’ estate, brought an action in the Bucharest Court of First Instance (“the Court of First Instance”) seeking a declaration that the nationalisation was null and void on the ground that Decree no. 92/1950 provided that the property of employees could not be nationalised and his parents had been employed at the time of the nationalisation of their house. It is not clear from the documents before the Court whether the applicant informed the Court of First Instance of the sale by the State to the Mirescu brothers in 1973.

In a judgment of 9 December 1993 the Court of First Instance held that the nationalisation of the applicant’s parents’ house under Decree no. 92/1950 had been a mistake, as his parents had belonged to a category of persons whose property the decree exempted from nationalisation. The court went on to hold that the State had obtained possession by duress and so could not rely on prescription to establish title. It also ruled that the State could not have acquired title to the house under Decree no. 218/1960 or Decree no. 712/1966 since those instruments had been contrary to the Constitutions of 1952 and 1965 respectively. The court therefore ordered the administrative authorities – namely the mayor of Bucharest and a State-owned company, C., which managed State-owned housing – to return the house to the applicant.

No appeal was lodged and the judgment became final and irreversible since it could no longer be challenged by way of an ordinary appeal.

On 31 March 1994 the mayor of Bucharest ordered the house to be returned to the applicant and on 27 May 1994 the C. company complied.

As of that date the applicant ceased to pay rent on the flat he was occupying in the house.

The applicant began paying land tax on the house on 14 April 1994 and continued doing so until a date in 1996 (see paragraph 25 below).

On an unknown date the Procurator-General of Romania, acting at the instance of Mr Mircea Dan Mirescu, lodged an application (recurs în anulare) with the Supreme Court of Justice to have the judgment of 9 December 1993 quashed on the grounds that the Court of First Instance had exceeded its jurisdiction in examining the lawfulness of the application of Decree no. 92/1950.

The hearing before the Supreme Court of Justice was set down for 22 February 1995. Mr Mircea Dan Mirescu was not invited to take part in the proceedings. On the day of the hearing, the applicant requested an adjournment as his lawyer was absent through illness.

The Supreme Court of Justice refused that request and proceeded to hear oral argument, after which it reserved judgment until 1 March 1995, the applicant being ordered to file written submissions before that date.

In those submissions, the applicant requested the Supreme Court of Justice to dismiss the Procurator-General’s application. He argued, first, that Decree no. 92/1950 had been incompatible with the 1948 Constitution, both in that it had been published only in part and in that it had breached the principle that no expropriation should be effected save in the public interest and after payment of fair compensation. Secondly, he submitted that, since his parents had been employees at the time of the nationalisation, the decision to nationalise their house had contravened the terms of the decree, which provided that dwellings belonging to employees could not be nationalised. Lastly, the applicant relied on Article 21 of the Romanian Constitution of 1991, which guarantees unrestricted access to the courts.

On 1 March 1995 the Supreme Court of Justice quashed the judgment of 9 December 1993 and dismissed the applicant’s claim. It held that property could be acquired by way of legislation, noted that the State had taken the house on the very day on which Decree no. 92/1950 on nationalisation had come into force and reiterated that the manner in which that decree had been applied could not be reviewed by the courts. Accordingly, the Bucharest Court of First Instance could not have found that the applicant was the rightful owner of the house without distorting the provisions of the decree, thus exceeding its powers and encroaching on those of the legislature. The Supreme Court of Justice confirmed that former owners were entitled to bring actions for recovery of possession but held that the applicant in the case before it had not established his title, whereas the State had demonstrated title under the nationalisation decree. In any event, provision as to redress for any wrongful seizure of property by the State would have to be made in new legislation.

Thereupon, the tax authorities informed the applicant that the house would be reclassified as State property with effect from 2 April 1996.

On an unspecified date the applicant lodged an application for restitution with the administrative board established to deal with applications lodged in Bucharest pursuant to Law no. 112/1995 (“the Administrative Board”). He submitted that he had been dispossessed of his house in 1950 in breach of Decree no. 92/1950 on nationalisation; that the Bucharest Court of First Instance had held that that deprivation of property had been unlawful in a final judgment of 9 December 1993; and that he was therefore entitled to be reinstated as the owner of the whole house.

In a report drawn up in November 1997 the valuation board established under Law no. 112/1995 valued the applicant’s house at 274,621,286 Romanian lei (ROL), of which the flat occupied by the applicant accounted for ROL 98,221,701.

On 24 March 1998 the Administrative Board vested ownership of the flat rented by the applicant in him and awarded him financial compensation for the rest of the house. Having regard to section 12 of Law no. 112/1995, which put a ceiling on compensation, and to the ceiling applicable in November 1997 – ROL 225,718,800 – the Board awarded him ROL 147,497,099.

On 14 May 1998 the applicant challenged that decision in the Bucharest Court of First Instance, attacking the Board’s refusal to return the whole house to him and pointing out that no grounds for that refusal had been given. He argued that in his case, where there had been an unlawful deprivation of property, Law no. 112/1995 – which concerned lawful expropriations – did not apply. Accordingly, his only means of protecting his right of property was an action for recovery of possession. However, since he had already brought such an action, and since the Court of First Instance, in a final judgment of 9 December 1993, had held him to be the owner of the house, he believed himself to be debarred from bringing a fresh action for recovery of possession. Consequently, he sought a declaration that he was the owner of the whole house and stated that he was not seeking compensation under Law no. 112/1995.

That application was dismissed on 21 April 1999. The applicant appealed and the proceedings are currently pending in the Bucharest County Court.

Article 21 of the Romanian Constitution provides:

“Everyone shall be entitled to apply to the courts for protection of his rights, freedoms or legitimate interests.

The exercise of this right shall not be restricted by any statute.

The relevant provisions of this Act read:

“The Procurator-General may, of his own motion or on an application by the Minister of Justice, apply to the Supreme Court of Justice for any final judicial decision to be quashed on any of the following grounds:

that the court in question has exceeded its jurisdiction;

“An application for a judicial decision to be quashed may be made at any time.”

Article 3301 was amended as follows:

“Article 3302: An application under Article 330 § 1 for a judicial decision to be quashed may be made within six months of the date on which the judicial decision in question becomes final ...”

The relevant provisions of this decree read:

“... in order to ensure the proper management of dwellings which wealthy capitalists and exploiters who possess a large number of properties have allowed to fall into dilapidation as a means of sabotage; [and]

In order to deprive exploiters of an important means of exploitation;

The immovable property appearing in the schedules ... annexed to and forming part of this decree shall be nationalised. The listed property comprises:

immovable property belonging to former industrialists, owners of large estates, bankers, owners of large trading enterprises and other representatives of the wealthy capitalist class;

immovable property belonging to real-estate exploiters ...”

“The immovable property of workers, civil servants, small artisans, persons working in intellectual professions and retired persons shall be excluded from the scope of this decree and shall not be nationalised.”

“Subject to its obligation to apply the criteria laid down ... in Article II [of Decree no. 92/1950], the Cabinet may amend the annexes [containing the schedule of immovable property to be nationalised] to [that] decree.

The Cabinet may also decide not to apply the nationalisation provisions to any flat or [other] immovable property.”

In a number of cases the Civil Division of the Supreme Court of Justice upheld judgments of lower courts asserting their jurisdiction to deal with claims concerning immovable property that had been nationalised, including property nationalised under Decree no. 92/1950. In a judgment of 9 March 1993 (no. 518), for instance, it held, on the issue whether the courts had power to deal with cases concerning the application of Decree no. 92/1950:

“... in ruling on the applicant’s claim for recovery of possession, and in allowing it, the courts, which have general jurisdiction under the law to determine civil disputes, merely applied the terms of the decree. To be more precise, they applied those of its provisions that forbid the nationalisation of certain immovable property and those which require such property to be returned in the event of an erroneous or improper application of the decree.”

On 2 February 1995 the full Supreme Court of Justice decided by a majority of twenty-five to twenty to depart from the Civil Division’s previous decisions, holding:

“[T]he courts do not have jurisdiction to impugn Decree no. 92/1950 or to order that property nationalised under its provisions be returned ...; legislation alone can bring the nationalisations carried out under Decree no. 92/1950 into accord with the provisions of the present Constitution concerning the right of property ...”

On 28 September 1998 the full Supreme Court of Justice unanimously decided to depart from its ruling of 2 February 1995 that the courts did not have jurisdiction in matters concerning infringements of the right of property committed between 1944 and 1989. It held:

“[T]he courts have jurisdiction to entertain any action concerning an alleged infringement of the right of property or other rights in rem where such an infringement occurred between 1944 and 1989.”

On 19 July 1995 the Constitutional Court ruled on the constitutionality of a bill to regulate the legal status of residential property which had passed into State ownership. As to whether the owners of immovable property which the State had vested in itself improperly or without legal authority could sue for return of their property or obtain compensation, it held:

“... The situation is different in relation to dwellings which became State property through an unlawful administrative act or simply de facto – that is to say without any legal authority, the State’s ownership having no basis in law. In such cases the individual’s legal right to the property has never been extinguished, with the result that, since the State is not the owner, such property cannot be covered by a statute whose object is to regulate the legal status of dwellings which have passed into State ownership. In other words, ... the measures which the bill before us seeks to introduce are not applicable to dwellings not legally vested in the State.

If the bill were to treat the State as owning immovable property which it had taken without legal authority, it would be conferring ownership on the State retrospectively, or else introducing a mechanism not envisaged by the 1991 Constitution for transforming individual ownership into State ownership, and that cannot be accepted.

It follows that this Court must allow the objection that this part of the bill, in so far as it deals with immovable property taken without legal authority by the State or other artificial persons, is incompatible with the Constitution ...

It is for Parliament to decide, when amending the bill, whether to make provision for persons who have been deprived of their dwellings by the State without legal authority, or for the successors in title of such persons, to be able to benefit from the Act if they choose not to embark on the slow, uncertain and costly course of bringing an action for recovery of possession ...”

The relevant provisions of this Act read:

“Individuals who formerly owned residential property which passed lawfully into the ownership of the State or of another artificial person after 6 March 1945 and which was still in the possession of the State or another artificial person on 22 December 1989 shall be entitled to benefit, by way of reparation, from the measures in this Act.

The provisions of this Act shall apply equally to the successors in title of such former owners, subject to existing statutory provisions.”

“The persons referred to in section 1 shall be entitled to restitution in the form of the restoration to them of the ownership of flats in which they currently live as tenants or which are vacant. In respect of other flats, those persons shall receive compensation as provided in section 12 ...”

“The amount of compensation to be awarded to former owners or their successors in title in respect of flats which have not been returned to them, or the sale price of such flats, as the case may be, shall be determined in accordance with Decree no. 93/1977, legislative Decree no. 61/1990 and Law no. 85/1992. The value of the appurtenant land shall be determined according to the criteria (Document 2665 of 28 February 1992) for identifying and valuing land held by State-owned commercial companies ... The values so determined shall be converted to present-day levels by means of multipliers which may not be lower than the rate of increase in the national average salary over the relevant period.

Neither the total value of a flat which is returned nor the total amount of compensation due for a flat which is not returned and for the appurtenant land may exceed the cumulative total of the national average salary for each year over the period of twenty years expiring on the date on which the compensation is assessed.

Where a flat whose value, calculated according to the rules laid down in the first paragraph of this section, exceeds the total referred to in the second paragraph is returned, pursuant to section 2, to its former owner, his heirs or living relatives to the second degree of consanguinity, those persons cannot be obliged to pay the difference.

The amount of compensation due at present-day levels under the above provisions shall be calculated on the day of payment, on the basis of the national average salary for the last month of the previous quarter.

For the purpose of implementing this Act, an extrabudgetary fund shall be established, on which the Ministry of Finance may draw and into which shall be paid:

(a) the proceeds of the sale of non-returned flats, including payments in full, deposits, monthly instalments and interest (less commission of 1% of the value of each flat); and

(b) the proceeds of government bonds issued for the purpose of financing the fund, as provided in Law no. 91/1993 on public borrowing.

The above fund may be drawn on for the following purposes, in order of priority:

(a) to pay the compensation due under the provisions of this Act to owners or their successors in title;

(b) to redeem the bonds issued and cover the expenses entailed by their issue; and

(c) to build housing to be allocated in the first instance to tenants in the situation referred to in section 5(3).”

On 23 January 1996 the government adopted decision no. 20/1996 implementing Law no. 112/1995. The decision provided that immovable property which had passed into State ownership under a legislative provision was to be regarded as property legally vested in the State. It also specified that Law no. 112/1995 did not apply to immovable property held by the State where its title was not based on any legislative provision.

On 18 February 1997 the government adopted decision no. 11/1997 to supplement decision no. 20/1996. Section 1(3) of decision no. 11/1997 provided that, in order for property to be defined as having been acquired by the State under Decree no. 92/1950, it had to have been acquired in accordance with Articles I §§ 1-5 and II of the decree and the person referred to in the lists drawn up under the decree as the owner of the property had to have been the true owner at the date of the nationalisation.

Following government decision no. 11 of 18 February 1997, former owners who had succeeded in obtaining final court judgments ordering their property to be returned, only to see those judgments quashed by the Supreme Court of Justice on an extraordinary application by the ProcuratorGeneral, brought fresh actions for recovery of possession. The plea of res judicata raised in those new actions was not treated in the same way by all courts, as appears from the following.

“... the property sought to be recovered has already been the subject matter of proceedings between the same parties, resulting in judgment no. 212 of 12 January 1994 (now final and enforceable), in which this Court found for I.P. and declared him to be the owner of the property ...

The Procurator-General applied for that judgment to be quashed and on 28 September 1995 the Supreme Court of Justice did quash it and substituted its own judgment dismissing I.P.’s claim ...

... in accordance with Article 1201 of the Civil Code, which provides that ‘the principle of res judicata applies where a fresh action concerning the same subject matter, based on the same cause of action, is commenced between the same parties acting in the same capacities’, this Court finds that there have already been proceedings between these same parties in respect of the same property and that those proceedings have been determined by the Supreme Court of Justice ...

… that being so, this Court accepts the plea of res judicata and holds that it cannot entertain the plaintiff’s claim.”

“... this Court finds that Decree no. 92/1950 was unlawfully applied to the building owned by the plaintiff ..., orders that it be returned to her and dismisses the plea of res judicata ...”

The relevant provisions of this Act read:

“1. Property acquired by the State between 6 March 1945 and 22 December 1989, provided that it passed into State ownership lawfully, that is to say in a manner not contrary to the Constitution, to international treaties to which Romania was a party or to any legislation in force at the time at which it passed into State ownership, shall likewise form part of the public or private property of the State or other public authorities.

Save where it is governed by special reparation laws, property held by the State without valid legal authority, including property acquired by way of a transaction voidable for lack of true consent, may be claimed by former owners or their successors in title.

The courts have jurisdiction to determine whether or not the legal authority is valid.”


Remainder inadmissible;Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)

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

The applicant was born in 1938 and lives in Moscow. He is a lawyer and President of the Moscow City Bar.

On 25 October 2003 Mr Khodorkovskiy, a co-owner of the Yukos company, was charged with criminal offences and placed in custody. On 27 October 2003 he was transferred to special-purpose remand centre IZ99/1 in Moscow operating under the authority of the Ministry of Justice of the Russian Federation (hereinafter “the remand centre”).

On 30 October 2003 a lawyer, Ms A., accepted to represent Mr Khodorkovskiy in the criminal proceedings.

On 11 November 2003 Ms A. visited her client in the remand centre. On leaving the centre, she was stopped by a prison inspector, Mr B., who accused her of carrying unauthorised material that Mr Khodorkovskiy had given her.

It appears from a personal inspection report (протокол личного досмотра) of the same date that Mr B. “examined the belongings and clothing of the lawyer, Ms A.” and seized two documents: a printed document concerning the case against Mr Khodorkovskiy’s co-defendant, and a torn handwritten note. The report was signed by Mr B., Ms A. and two prison officers who were present during the search. The parties agreed that one of them had been a man (Mr F.); the identity and sex of the second officer was in dispute: the Government claimed that it had been a woman, “L-va”; the applicant insisted that it had been a man, “L-vich”.

The investigators claimed that the note had contained instructions about exercising influence on witnesses and interfering with the investigation. On 22 December 2003 the Ministry of Justice asked the Moscow City Bar to disbar Ms A. for acting in breach of the law and the lawyers’ code of ethics. The applicant, as President of the Moscow City Bar, publicly criticised the request by the Ministry of Justice.

On 25 December 2003 the NTV channel invited the applicant and Mr Buksman, the Director of the Moscow Department of the Ministry of Justice, to the talk show, “The Country and the World” («Страна и мир»), for a discussion of the incident involving Ms A. The debate was broadcast live at about 10 p.m.

In the first few minutes of the discussion the applicant asked Mr Buksman about his view on the events and the grounds for making the request for disbarment. Mr Buksman did not give specific answers, stating that the issue was not within his competence.

The presenter then asked the applicant about the relationship between the Moscow City Bar and the Ministry of Justice, implying that it was rather strained. The applicant denied that any tension existed and added:

“I have to say that we have now examined the matter of lawyer A. There was no attempt to pass any note from Mr Khodorkovskiy outside the remand centre. There were no grounds for carrying out a search (обыск) which, by the way, was performed by men who rummaged (шарили) about the body of the woman lawyer. Evidence obtained by criminal or unlawful means has no legal value. There is nothing, absolutely nothing, in Ms A.’s records that could warrant her disbarment.”

The presenter then gave the floor to Mr Buksman, who said that there existed a normal professional relationship between the Moscow City Bar and the Ministry of Justice. The show ended.

On 8 January 2004, remand prison IZ-99/1 and warders Mr B. and Mr F. lodged defamation claims against the applicant and the NTV television company with the Cheremushkinskiy District Court of Moscow. They claimed that the applicant had falsely stated that male officers had “rummaged” about Ms A.’s body and carried out a “search” on her, whereas they had merely “inspected” her documents. Since the domestic law made a distinction between a “search” (обыск) and an “inspection” (досмотр), the applicant’s statement amounted to an allegation of a breach of the Russian law that was false and damaging both to the professional reputation of the remand prison and to the honour and dignity of its officers. They sought a rectification and compensation in respect of non-pecuniary damage.

In the defamation proceedings the District Court heard many witnesses and, in particular, the warders of the remand prison who had taken part in the incident involving counsel A. One of them, Mr L-vich, testified as follows:

“I received a phone call and I was invited to take part in the drafting of a report. When I arrived, Ms A., Mr B. and Mr F. were in the office. B. was drafting the report. A. snatched a piece of paper and began tearing it apart. We removed the document [from her], I signed the report and left.”

Ms A. described the way in which the documents had been removed from her:

“I was subjected to a humiliating procedure, as a woman and as a lawyer. They took the materials of the defence away from me by force. How is it possible to take the materials, without touching me, while I was holding onto them? ... Could there be any contact, other than bodily contact, if I was clutching the materials to my chest and the prison employees were tearing them away from me? It was not just my hands that they touched. [They touched] the clothing that was covering my body.”

In the meantime, on 3 February 2004 the Council of the Moscow City Bar formally rejected the Ministry’s request for Ms A.’s disbarment. It found, in particular, that the inspection (досмотр) carried out on the person of Ms A. on 11 November 2003 and the seizure of her materials had been unlawful.

On 10 June 2004 the District Court gave judgment on the defamation claim, finding as follows:

“It was established at the court hearing that on 25 December 2003 a televised discussion between ... Mr Buksman and the lawyer Mr Reznik had been broadcast live on the NTV channel. The presenters did not edit the text of the interventions by Mr Buksman or Mr Reznik ... Mr Buksman was connected with the presenter via a direct link, the defendant Mr Reznik was present in the studio. It can be seen from a video recording which the court examined ... that Mr Buksman and the defendant made statements of a controversial nature. The participants put questions to each other and replied to questions from the presenters. ...

The court considers that the statements by the defendant [Mr Reznik] were simply an expression of his opinion on an event that had attracted public attention and was widely discussed at the time. During the show “The Country and the World” on 25 December 2003, a public official and a lawyer held a discussion in which they expressed different opinions on the same event. The statements by the defendant Mr Reznik were not offensive and did not damage the plaintiffs’ honour, dignity or professional reputation. The defendant, in his reply to the presenter’s question, did not mention either remand prison no. 1 or the plaintiffs F. and B. ...

The plaintiff – remand prison no. 1 – alleged a violation of the rights of individuals rather than those of prison no. 1. ... In the instant case, the statements by the defendant, Mr Reznik, did not contain allegations about the plaintiff, remand prison no. 1, nor did Mr Reznik’s statements damage its reputation. It follows that the claims by remand prison no. 1 are unlawful and unjustified because the plaintiff seeks the rectification of allegations concerning its employees.

The claims by the plaintiffs F. and B. are likewise unjustified because the statements by the defendant did not mention any names, still less the plaintiff’s names. Moreover, ... there was no mention of their place of work or place of residence, or of their appearance or characteristic features, their rank or their position; the discussion was not accompanied by any photographs or video footage of the plaintiffs; nor were their voices broadcast. It follows that the defendant’s statements did not contain any information damaging to the honour or dignity of Mr F. or Mr B.

[The court rejects as] unfounded the arguments by remand prison no. 1 to the effect that the discussion was preceded by footage showing a building with its postal address, which could have enabled television viewers to recognise Matrosskaya Tishina remand prison no. 1. Neither Mr Buksman nor Mr Reznik mentioned remand prison no. 1 in their replies. Moreover, it was the NTV channel that decided to broadcast the footage featuring the building with its address at the beginning of the show, but the plaintiffs have lodged no defamation claim against the channel ...

Having regard to the above-stated, the court finds that the claims are unjustified and must be rejected.”

The remand centre, Mr B., and Mr F., all lodged statements of appeal.

On 10 August 2004 the Moscow City Court quashed the District Court’s judgment and granted the defamation claims by all three plaintiffs, finding as follows:

“... the conclusion of the [district] court to the effect that the statements made by the defendant in a live television show did not damage the reputation [of the plaintiffs] is not correct. The statements did damage the honour and dignity of the prison officers F. and B. and the professional reputation of remand prison no. 1 because they actually contained an accusation that the male prison officers had searched the female lawyer in a degrading manner. ...

It can be seen from the statements by the witnesses Mr L-vich and Mr T., the personal inspection report, and the conclusions of the Qualifications Panel of the Moscow City Bar that the prison officers did not carry out a search on Ms A., contrary to what Mr Reznik alleged, but the [district] court did not take this fact into account ... The law distinguishes between the terms ‘inspection’ and ‘search’, and the defendant Mr Rezink, a professional lawyer, could not have been unaware of that distinction. Although he had at his disposal reliable information that the prison officers had carried out an inspection of Ms A.’s documents rather than searched her, he made untrue statements in a live television show ...

Further, the [city] court cannot agree with the [district] court’s conclusion that the defendant [Mr Reznik] did not identify any of the plaintiffs by name ... That conclusion contradicted the operative part of the judgment, in which the [district] court found that the incident ... had taken place on the premises of remand prison no. 1 and concerned the removal of a note from Ms A. ... The NTV channel showed the building at 18 Matrosskaya Tishina Street, and the defendant Mr Reznik later made the contested statements. In those circumstances, the professional reputation of remand prison no. 1 had been undermined and it had standing to seek judicial protection from defamation. The plaintiffs F. and B., who were employees of the remand prison and who had taken part in the inspection of [Ms A.’s] papers ... also had standing to sue in defamation.”

The City Court ordered the applicant to pay 20 Russian roubles (RUB) to each of Mr B. and Mr F. in respect of compensation for non-pecuniary damage. The NTV channel was ordered to broadcast a rectification.

Article 29 guarantees freedom of thought and expression, together with freedom of the mass media.

Article 152 provides that an individual may apply to a court with a request for the rectification of statements that are damaging to his or her honour, dignity or professional reputation if the person who disseminated such statements does not prove their truthfulness. The aggrieved person may also claim compensation for losses and non-pecuniary damage sustained as a result of the dissemination of such statements.

A personal inspection (личный досмотр) or an inspection of personal belongings may be carried out with a view to uncovering instruments or objects of an administrative offence (Article 27.7 § 1 of the Code of Administrative Offices). Personal inspections must be carried out by a person of the same sex, in the presence of two attesting witnesses (понятые) of the same sex (Article 27.7 § 3).

A suspect in a criminal case may be subjected to a body search (личный обыск) (Article 93 of the Code of Criminal Procedure). Body searches must be carried out by a person of the same sex, in the presence of attesting witnesses (понятые) or specialists of the same sex (Article 184 § 3).

The Pre-Trial Detention Act (Law no. 103-FZ of 15 July 1995) established that, if there were grounds to suspect visitors of passing prohibited objects, substances or food, prison officers were entitled to carry out an inspection of their clothes and belongings upon their entry or exit from the prison premises (part 6 of section 34).