4.  The applicant was born in 1939 and lives in Geneva. 5.  On 14 July 1939, before the applicant’s birth, the State-appointed guardian brought an action against A.H., the applicant’s putative biological father, seeking a declaration of paternity and payment of a contribution towards his maintenance. A.H. admitted that he had had sexual relations with the applicant’s mother but denied paternity. 6.  On 26 July 1939, after the applicant’s birth, his mother declared on registering the birth that the father was A.H., with whom she had had sexual relations during the period of conception. 7.  On 30 January 1948 the Geneva Court of First Instance dismissed the action for a declaration of paternity. In the absence of an appeal, the judgment became final. 8.  In 1958 the applicant, who had been placed with a foster family, met his mother, who informed him that his father was A.H. According to the applicant, he had regular contact with his father and received presents from him and a monthly payment of 10 Swiss francs ((CHF) – 6.40 euros (EUR)) until he reached the age of majority. A.H. and his family denied those allegations. Only A.H.’s legitimate son admitted that he had received a telephone call from the applicant after A.H.’s death. 9.  Furthermore, A.H. always refused to undergo tests to establish his paternity. In 1976, shortly after his death, a blood-type analysis carried out at the applicant’s request did not rule out his being the latter’s father. 10.  In 1997 the applicant contacted the Geneva University Institute of Forensic Medicine to have a private paternity test carried out, but his request was refused. 11.  On 3 December 1997 the applicant successfully applied to renew the lease for A.H.’s tomb until 2016 for the sum of CHF 2,600 (EUR 1,657). 12.  On 6 May 1999 the applicant applied to the Canton of Geneva Court of First Instance for revision of the judgment of 30 January 1948. In the course of the proceedings he also requested a DNA test on the mortal remains of A.H. 13.  On 25 June 1999 the Court of First Instance refused the request for a DNA test. 14.  On 2 September 1999 the Canton of Geneva Court of Justice rejected the applicant’s application on the ground that it was impossible to obtain a declaration of paternity without also amending the register of births, deaths and marriages. 15.  The Court of Justice argued that the applicant was not entitled to such an amendment of the register as a result of the 1976 revision of the Civil Code abolishing the exceptio plurium constupratorum, a defence which the putative biological father could use in a paternity suit. However, in his application to the Court of First Instance the applicant had sought revision of the 1948 judgment, in which the exceptio plurium had been relied on to the benefit of A.H. 16.  The Court of Justice noted that before 1978 (when the revised Civil Code had come into force), an illegitimate child who was under ten years of age on 1 January 1978 had had the option of converting a maintenance claim into a civil action (paternity suit) where the exceptio plurium had been raised. However, this was no longer permitted under the revised Civil Code. 17.  The Court of Justice accordingly held that, even supposing that the applicant had been awarded maintenance in 1948, he was no longer entitled to have the register of births, deaths and marriages amended, firstly because the law had changed, and secondly because he had been born more than ten years before the end of the transition period between the old and new laws. 18.  His request for evidence to be taken by means of a DNA test was therefore refused. 19.  On 22 December 1999 the Federal Court adopted a judgment, served on 18 May 2000, in which it rejected the applicant’s application on the following grounds:
“The right to know one’s parentage cannot be absolute in scope but must be weighed against the interests relating to protection of the personal freedom of others – in the instant case, the right of the deceased, deriving from human dignity, to protect his remains from interferences contrary to morality and custom, and the right of the close relatives to respect for the deceased and the inviolability of his corpse. ...
The right to know one’s parents is generally linked to the right to be raised by them. The applicant, who is 60 years old, has been able to develop his personality and pursue a large portion of his existence without suffering any medically attested damage to his physical or mental health as a result of his uncertainty as to his parentage, despite the vicissitudes of his childhood and adolescence. On the other hand, while the reasons of family devotion opposing the exhumation of the mortal remains of the late [A.H.] are understandable, the respondents have not advanced any religious or philosophical grounds in support of their position; in particular, they have not argued that they would have renewed the lease on their relative’s tomb had the applicant not done so.
However, in weighing up the conflicting interests, the refusal of the application for an expert examination may be upheld since, in the absence of any consequences of a civil-law nature, the applicant has not established that he has suffered sufficiently serious damage to his psychological well-being, as protected by the right to personal freedom, to justify the evidentiary measure requested. The measure appears excessive in view of the principle of proportionality, having regard to the applicant’s particular circumstances, from which it cannot be concluded that his personality or mental stability might be seriously threatened by the uncertainty that may still persist as regards his parentage, in spite of all the information in his possession suggesting that [A.H.] very probably is his father. The Court of Justice was therefore entitled to restrict the applicant’s personal freedom by taking into consideration that of the respondents, in view of the lack of public interest in having this parental tie established and the disproportionate nature of the steps required to establish it.” 20.  Lastly, the Federal Court observed that there were no consequences of a civil-law nature that could justify implementing the measure sought.


5.  The applicant association, the Svyato-Mykhaylivska Parafiya (“the Parish”) of the Ukrainian Orthodox Church of the Kyiv Patriarchate “Church of 1,000 years of Baptisms in the Kyivan Rus” in the Darnytsky District of Kyiv, is a religious group. On 6 October 2000 it had 29 members, a figure which had increased to 30 by 2005 according to information provided by its representative on 9 February 2005. All the members sit on the Parishioners' Assembly. The head of the applicant association is Mr Volodymyr Makarchykov. 6.  On 5 April 1989 a group of 25 people, including the head of the Parish, decided to form a religious association under the auspices of the Russian Orthodox Church. On the same date they decided to build a church and name it the “Svyato-Mykhaylivska Church of 1,000 years of Baptisms in the Kyivan Rus'”. The group lodged a request to register the association with the Religious Affairs Council at the Cabinet of Ministers (Рада з питань релігій при Кабінеті Міністрів) and the State Executive Committee. 7.  On 22 February 1990 the Religious Affairs Council registered the group as a religious association of the Russian Orthodox Church in the Darnytsky District of Kyiv (the “religious association”). 8.  On 26 February 1990 the Kyiv City Council informed Mr Makarchykov that the religious association had been granted permission to build a church for the use of its members. 9.  On 4 March 1990 the religious association approved its statute and elected its governing bodies (the Parishioners' Assembly, Parishioners' Council and the Supervisory Board). It decided to admit twelve new members to the Parishioners' Assembly and to elect six of its members to the Parishioners' Council and the Supervisory Board. Mr Makarchykov was elected as a member of the Parishioners' Council and became its chairman. 10.  On 29 March 1990 the Religious Affairs Council registered changes to the governing bodies of the religious association. Mr Makarchykov was registered as its chairman, F.L.E. as deputy chairman and O.L.V. as a treasurer of the religious association. The Council also registered the changes to the composition of the Supervisory Board. 11.  From the date of its creation in April 1989 to December 1999 the Parishioners' Assembly membership varied from about 20 to 27 members. In the course of this period the Parishioners' Assembly was actively involved in making important decisions as to the management and administration of the religious association (appointment of Chairman, treasurer, supervisory board, approval of appointment of a priest, approval of the statutes of affiliates, missions and brotherhoods of the church, important financial and logistical matters and issues related to construction of a new church, etc.). Throughout this period My Makarchykov acted as a Chairman of the religious association and frequently as a secretary during the meetings of the Parishioners' Assembly. 12.  On 22 March 1992 the Parishioners' Assembly passed resolutions for the religious association to change denomination, as it was dissatisfied with the leadership of Archbishop Filaret, the head of the newly registered Ukrainian Orthodox Church of Kyiv Patriarchate, and for it to become independent in its organisational, religious and commercial activities. It was also decided that it should act under the religious guidance of the Archbishop of the Finnish Orthodox Church in canonical issues. 13.  On 19 November 1992 the Parishioners' Assembly adopted a new statute seeking its registration as a legal entity. The Assembly requested Archbishop Volodymyr of the Ukrainian Orthodox Church (Moscow Patriarchate) to approve the statute. The name of the association was changed to “Svyato-Mykhaylivska Parafiya of the Ukrainian Orthodox Church of the Kyiv Eparchy Church of 1,000 years of Baptisms in the Kyivan Rus'” (the “Parish”; Свято-Михайлівська парафія Української православної церкви Київської єпархії «Храму на честь 1000-ліття хрещення Київської Русі»). 14.  On 8 February 1993 the representative of the President of Ukraine in Kyiv made a formal decision to register the statute of the Parish (статут релігійної організації). From that date onwards the Parish, as a registered legal entity, belonged to the Ukrainian Orthodox Church (Moscow Patriarchate). The new statute stated:
“(...) 1.1.  Svyato-Mykhaylivska Parafiya (a religious group) is a religious association of the Ukrainian Orthodox Church of the Kyiv Patriarchate “Church of 1,000-years of Baptisms in the Kyivan Rus” (hereinafter the 'Parish') and is created for the purposes of mutual affiliation and the spreading of Orthodox religion and faith. It is composed of secular priests, ministers and laymen and is a part of the Ukrainian Orthodox Church of the Kyiv Eparchy (Київської єпархії Української Православної Церкви).
(...) 2.1.  The highest governing body of the Parish is the Parishioners' Assembly, which is eligible in presence of not less than 2/3 of members of the Parishioners' Assembly. Resolutions of the Parishioners' Assembly shall be adopted by a simple majority. 2.2.  In its religious activities, the Parish shall be guided by the priest – prior, who shall be elected by the Parishioners' Assembly. In its administrative-financial activities, it shall be subordinate to the Parishioners' Assembly.
(...) 2.12.  The Parishioners' Assembly shall accept new members from clergymen and laymen at their request, provided they are at least 18 years of age, attend religious services and confession, follow the canonical guidance of the prior and have not been excommunicated by the church or are being judged by the religious court.
(...) 2.5.  All official Parish documents shall be signed by the prior and the chair of the Parishioners' Council; banking and other financial documents shall be signed by the chair of the Parishioners' Council and the treasurer.
(...) 6.1.  Decisions as to changes and amendments to the statute shall be proposed by the Parishioners' Council and adopted by the Parishioners' Assembly... 6.2.  Changes and amendments to the statute shall be made in the same manner and within the same time-limits as those applicable to the registration of the statute.” 15.  On 9 April 1994 the Parishioners' Assembly, in accordance with a proposal by the new prior, refused to introduce changes and amendments to the statute until the construction of the new church building for the use of religious association was finalised. The proposed statute had to conform to the standard statutes of religious associations belonging to the Ukrainian Orthodox Church (Moscow Patriarchate). 16.  In 1994 and 1999 Mr Makarchykov signed a number of documents relating to the construction of the new church in his capacity as chairman of the Parishioners' Council. These documents, which included contracts and decisions of the architectural and State bodies, were accepted by him as the head of the Parishioners' Assembly and countersigned in a number of instances by various State officials. 17.  On 6 October 1999 the Parishioners' Assembly examined complaints about the management of the church that had been sent to Archbishop Volodymyr by new lay members. The Assembly also decided not to make the changes and amendments to the statute of the Parish necessary for its conformity with the standard statute used by the Ukrainian Orthodox Church (Moscow Patriarchate)”. 18.  On 14 October 1999, the Parishioners' Assembly examined the construction works at the site of the new church and decided not to make any changes to the statute until the works had been completed. It also heard complaints from Assembly members about Mr Makarchykov's alleged abuse of funds that had been raised for the construction of the church and against a prior of the Parish, who allegedly had no authority to act. 19.  On 4 November 1999 a commission set up by the Moscow Patriarchate condemned the economic activities of the Parish, as being badly managed and removed the books of account. 20.  On 10 November 1999 the Parishioners' Assembly resolved not to retain Father Tesliuk as prior and requested Archbishop Volodymyr of the Moscow Patriarchate to appoint a different prior. They also condemned the activities of the former prior, Father Nikolay, who had allegedly misused charitable aid from Italy and acted fraudulently. The Parishioners' Assembly also decided to proceed with criminal complaints it had lodged with the police against Father Tesliuk and Father Nikolay. 21.  On 1 December 1999 26 members of the Parishioners' Assembly allowed requests from two members of the Assembly not to participate in its activities owing to pressure from the Moscow Patriarchate on the Parish and the attempts of Father Nikolay to split the Parish. Six members of the Assembly were elected as honorary members, with a right of “advisory vote”. One new member was admitted to the Assembly. The Assembly condemned the report of 4 November 1999 and the decision to remove the Parish's accounting papers. Mr Makarchykov also informed the Assembly that Father Nikolay had unlawfully withheld charitable aid given to the Parish in the amount of 2,880,000 United States dollars (USD). The Assembly decided not to retain Father Nikolay and Father Tesliuk as their priors and requested their transfer away from the Parish. The Assembly was also informed by one of its members that Archbishop Volodymyr refused to discuss with him the internal conflict in the Parish. 22.  According to the applicant association, on 24 December 1999 the Parishioners' Assembly consisted of 27 individuals: Mr B.S., Ms B.I., Mr B.M., Mr G.S., Mr G.V., Mr D.S., Mr Ye.S., Ms Z.N., Mr K.A., Ms K.L., Mr K.V., Ms L.V., Mr V.I. Makarchykov (the Chairman of the Parishioners' Assembly), Ms M.S., Mr M.A., Ms N.M., Ms R.V., Mr R.V., Mr S.S., Mr T.L., Mr Ts.L., Ms Ch.V., Ms Ch.I., Mr Sh.Ye., Mr Sh.M., Mr Sch.D. and Ms Ya.V. 23.  On 24 December 1999 the Parishioners' Assembly, with 21 of its 27 members present, decided to withdraw from the jurisdiction and canonical guidance of the Moscow Patriarchate and to accept that of the Kyiv Patriarchate. The following 6 members of the Assembly were not present during the meeting and did not vote for a change of jurisdiction: Mr G.S., Mr G.V., Mr D.S., Mr K.V., Mr M.A. and Mr Sh.M. The Assembly gave authority to two members of the Assembly, Mr Makarchykov and Mr Sh.Ye., to lodge a request with the Head of the Kyiv City State Administration for the registration of the changes and amendments to the Parish's statute. The Assembly requested Archbishop Filaret of the Kyiv Patriarchate to approve the changes and amendments. 24.  On 25 December 1999 and 10 January 2000 Archbishop Filaret declared the Parish a part of the Kyiv Patriarchate. He also appointed Mr Pavlo Osnovyanenko as a prior and spiritual counsellor of the Parish. 25.  On 27 December 1999 Mr Makarchykov and Mr Ye.Sh. lodged an application with the Kyiv City State Administration to register the amendments to its statute as a result of the change of denomination. 26.  On 28 December 1999 Mr Makarchykov signed a contract on behalf of the Parish with a private contractor “Khades” to ensure the security of the church premises and the partly-constructed new church. 27.  The applicant association alleges that on 1 January 2000 the church premises were taken over by approximately 150-200 clerics and lay people supporting the Moscow Patriarchate, who had arrived at the church in the evening. All the members of the Parishioners' Assembly signed a statement condemning this intrusion into their internal affairs by the representatives of another denomination. The construction work on the new church was also disrupted. According to the private firm responsible for security at the church officials of the Darnytsky District Department of the Interior had warned them not to intervene in the conflict. 28.  On 2 January 2000 Archbishop Volodymyr of the Moscow Patriarchate authorised Archpriests Filaret (Lukyanchuk), V. Rusynka, M. Tereschuk and D. Grygorak and a lawyer of the Kyiv Metropolis, V.F. Volynets, to hold a meeting of the Parishioners' Assembly in the Svyato-Mykhaylivska Church. 29.  On the same day, 309 supporters of the Moscow Patriarchate, who the applicant association alleged were from different churches in the city (although, according to the Government, 295 were active members of the Parish), held a meeting at which they passed a vote of no confidence in Mr Makarchykov as chairman of the Parishioners' Assembly and elected new governing bodies for the church. In particular, they elected a new Parishioners' Assembly composed of 19 members (the “New Assembly”), a treasurer and a supervisory board.
The Assembly also adopted the model statute for churches belonging to the Ukrainian Orthodox Church (Moscow Patriarchate). It approved a proposal from Archpriest Filaret (Lukyanchuk) of the Moscow Patriarchate to elect Father Nikolay (Mykola) as the Chairman of the Parishioners' Assembly. The minutes of the meeting of the Assembly were approved by the secretary of the Moscow Patriarchate, Archpriest V. Kosovsky, on 3 January 2000. 30.  On 2 January 2000 the members of the original Parishioners' Assembly requested the Minister of the Interior, the Head of the Kyiv City State Administration, the General Prosecutor and other law-enforcement authorities to protect their church and property. 31.  On 3 January 2000 the Deputy President of the Darnytsky District Court of Kyiv informed Mr Makarchykov that he should address his complaints concerning the confiscation of church property to the courts in accordance with Articles 137 and 138 of the Code of Civil Procedure. The Deputy President also advised that any criminal complaints concerning alleged offences had to be lodged with the police or prosecutor with territorial jurisdiction. 32.  On 4 January 2000 Archbishop Filaret of the Kyiv Patriarchate publicly protested against the “seizure of the church” by representatives of the Moscow Patriarchate. In particular, he stated in letters to the Chairman of the Kyiv City State Administration, the Minister of the Interior, the General Prosecutor, the Head of the Kyiv Department of the Interior, the Human-Rights Ombudsman and the Chairman of the Parliament that the Parishioners' Assembly that had resolved to withdraw from the jurisdiction of the Moscow Patriarchate was the legitimate governing body of the Parish. 33.  On 8 January 2000, 21 members of the original Parishioners' Assembly composed of 27 members held a meeting to discuss the events of 1-3 January 2000. They elected a Parishioners' Council with the following composition: Mr Makarchykov, Chairman; Mr Burtovy, Treasurer; and Mr Krasnook, Assistant to the Chairman. Mr Pavlo Osnovyanko was approved as a prior of the Parish, upon a proposal from the Kyiv Patriarchate. The Assembly elected the Supervisory Board and asked Archbishop Filaret to approve their decisions. 34.  On the same date Archbishop Volodymyr of the Moscow Patriarchate informed the Kyiv City State Administration that the documents that had been submitted for registration of the change of denomination were forged as the majority of the Parish members and its prior opposed the change of denomination to the Kyiv Patriarchate. 35.  On 10 January 2000 Archbishop Filaret of the Kyiv Patriarchate issued a decree approving the composition of the original Parish governing bodies. He also confirmed that Mr Pavlo Osnovyanenko could serve as a prior of the Parish. 36.  On 10 and 14 January 2000 two private individuals, Ms A.M.I. and Mr Z., sought membership of the original Parishioners' Assembly following their decision of 24 December 1999 on the change of denomination. 37.  On 11 January 2000 the State Tax Inspectorate found a number of infringements of economic regulations by the former managers of the Parish. 38.  On 12 January 2000 a group of 9 members of the Ukrainian Parliament (Verkhovna Rada) lodged complaints with the President of Ukraine seeking his support in resolving the dispute between the Kyiv and Moscow Patriarchates over the church premises and the decision of its members to change denomination. 39.  On 16 January 2000 the Darnytsky District Police Department in Kyiv prohibited access to the church or other Parish property until a court had ruled on the change of denomination. Thereafter, the church premises and its property were guarded by the police. 40.  On 15 January 2000 the Registry of the Moscow Patriarchate informed the State Religions' Department that the denomination had been changed as a result of Mr Makarchykov's involvement in financial fraud. It also stated that the Parishioners' Assembly was illegitimate as it had been convened in violation of Article 2.1 of the statute. Moreover, membership of the Parish was not based on observance of the prior's canonical guidance, contrary to Article 2.12 of the statute, as Mr Makarchykov had influenced decisions not to accept new members who were not loyal to him. The Registry added that the change of denomination was contrary to the current statute of the Parish and the Moscow Patriarchate's internal regulations, including the recommended model statutes (типовий статут парафії Української православної церкви) for religious associations within the Moscow Patriarchate. 41.  Between 17 and 31 January 2000 the Parish members and the Archbishop of the Kyiv Patriarchate lodged a series of formal complaints with a member of parliament (V.P. Nechyporuk), the Committee on Organised Crime, the Minister of the Interior and the Prosecutor of Kyiv asking them to take action to prevent the police, who, they said, supported the Moscow Patriarchate, unlawfully interfering in Parish affairs. 42.  On 21 January 2000 the Kyiv City State Administration refused to register the amendments, according to the request of 24 December 1999 (see paragraph 23 above), on the grounds that they contravened Article 2.5 of the Parish statute, in that the documents submitted for registration had not been signed by the prior and the Chairman of the Parishioners' Assembly. 43.  On 29 January 2000 the Parishioners' Assembly, composed of 22 members, condemned the actions of the Moscow Patriarchate in relation to their Parish and its property. They decided to file complaints with the law-enforcement authorities to ensure protection from its unlawful interference with their activities. 44.  On 31 January 2000 the President of the original Parishioners' Assembly Mr Makarchykov complained to the Darnytsky District Prosecutor about the interference in the activities of the Parish. In particular, he alleged that the Moscow Patriarchate and the police had failed to comply with the resolution of 16 January 2000 prohibiting access to all the premises of the Parish until the case had been resolved by a court. 45.  On 31 January 2000 the prior of the Parish and the Chairman of the original Parishioners' Assembly lodged a second request for the registration of changes and amendments to the statute of the Parish with the Kyiv City State Administration. The Assembly again informed the Kyiv City State Administration that on 8 January 2000 it had decided that Mr Pavlo Osnovyanenko would be its prior and Mr Makarchykov its chairman and that both had power under the statute to sign documents on behalf of the Parish. No response was received to this request. 46.  On 3 February 2000 the Kyiv City Council established a committee composed of four of its members (deputies of the Council K.Y.G., D.D.G., O.P.K. and V.O.B.) and the Head of the Department of Religious Affairs of the Kyiv City Council to examine the conflict over the Svyato-Mykhaylivska Parish. 47.  On 8 February 2000 the Head of the Darnytsky District Police Department in Kyiv warned Mr Makarchykov that he would be prosecuted if he continued to incite laymen to occupy the church and to confront the supporters of the Moscow Patriarchate. 48.  On 9 February 2000 Mr Makarchykov lodged fresh complaints with the Darnytsky District Police Department asking them to institute criminal proceedings against unlawful occupiers of the church premises and those responsible for denying him access to the premises or to his personal belongings in the church. 49.  On 14 February 2000 the Kyiv Patriarchate certified that the Parish had been within the Patriarchate since 25 December 1999. 50.  On 17 February 2000 the applicant association instituted proceedings in the Kyiv City Court claiming that the Kyiv City State Administration's refusal of 21 January 2000 to register the amendments to the statute of the Svyato-Mykhaylivska Parafiya was unlawful. 51.  On 21 April 2000 the Kyiv City Court, composed of three judges, rejected the applicant association's claims, finding that the decision of 21 January 2000 was lawful (see paragraph 42 above). In particular it found that the Parishioners' Assembly composed of 27 members did not represent the entire religious community, that the documents submitted for registration had not been signed by the authorised persons (the prior and the chairman of the Parishioners' Assembly) and that the members of the Parishioners' Assembly of 24 December 1999 no longer belonged to the Moscow Patriarchate, as this minority group had chosen a different denomination. The court concluded that the applicant association was not able to prove that the decision of the Kyiv City State Administration was unlawful.
The Kyiv City Court held in particular:
“...the refusal of the Kyiv City State Administration to register the amendments to the statute was based on the fact that they had been adopted contrary to the statute and would infringe believers' rights.
The judicial division holds that the decision [of the Kyiv City State Administration] corresponds to the actual circumstances of the case, and reflects the rights of both religious communities, and the statute of the Parish ... and the Law 'on consciousness and religious organisations'.
... In accordance with Articles 6.1.and 6.2 of the statute ... decisions with regard to changes and amendments to the statute must be proposed by the Parishioners' Council and adopted by the Parishioners' Assembly ...
... As can be seen from the minutes of the meeting of the Parishioners' Assembly of 24 December 1999 the religious community of the Svyato-Mykhaylivska Parish adopted changes and amendments to the statute of the religious community belonging to the Ukrainian Orthodox Church [Moscow Patriarchate], but was already affiliated to the Ukrainian Orthodox Church of Kyiv Patriarchate.
... such a method of making changes and amendments to the statute contravenes the Law and Articles 6.1 and 6.2 of the statute and undoubtedly infringes the rights of the religious community belonging to the Ukrainian Orthodox Church [Moscow Patriarchate] which adopted this statute. Changes to the statute could only be adopted by the Parishioners' Assembly of this community.
It can be seen that the complaint was lodged by Mr Makarchykov on behalf of the religious group belonging to the Ukrainian Orthodox Church [Moscow Patriarchate]. However this church did not authorise him to act on their behalf, in fact he represents the interests of the religious community belonging to the Ukrainian Orthodox Church of Kyiv Patriarchate, which was established on 24 December 1999 and has a right to exist in accordance with the Law “on freedom of consciousness and religious organisations” ...
Taking into account all of the above, the judicial division considers that the representative of the religious community of the Ukrainian Orthodox Church of Kyiv Patriarchate, Mr V.I. Makarchykov, failed to prove in court that the refusal of the Kyiv City Administration of 21 January 2000 ... was unlawful. Therefore the complaint must be rejected.” 52.  On 5 July 2000 a panel of the Supreme Court composed of three judges upheld the judgment of 21 April 2000. It rejected the applicant association's cassation appeal because the provisions of the Parish statute contravened the relevant legislation. It also held that the provisions of the statute concerning fixed membership were contrary to the legislation because they did not allow the majority of the religious group to manifest their religion by participating in the administration of church affairs.
In particular the Supreme Court held:
“... the statute (articles of association) of the religious group has to correspond to the legislation in force.
As long as the legislation in force does not provide for a mandatory or other form of fixed membership of the believers with the same religious beliefs, in a legal sense “parishioners' assembly” and the “general assembly of the religious group” are identical notions. The judicial division therefore considers that Articles 2.12, 2.13 of the statute ... do not fully correspond to the legislation. This led to the creation of factual obstacles for a majority of the religious community in deciding statutory issues and a violation of their right to manifest their religion...
The judicial division also finds unsubstantiated the submission that there were no defects in the documents concerning the changes and amendments to the statute of the parish filed on behalf of the religious community.” 53.  On 5 March 2001 fifteen members of the original Parishioners' Assembly lodged a petition with the General Prosecutor's Office requesting it to initiate supervisory-review proceedings in the Supreme Court. No supervisory-review proceedings were initiated, however. 54.  On 22 February 2000 the Head of the Darnytsky District Police Department in Kyiv informed Mr Makarchykov, in response to his complaints of 9 February 2000, that it had found no evidence of the offences alleged in his complaints. He was also informed that he was free to collect his personal belongings from the church to which he had allegedly been denied access. 55.  On 23 February 2000 the prior of the Parish and Chairman of the Assembly lodged new complaints with the Kyiv City Prosecutor and the State Religious Affairs Department requesting them to institute criminal proceedings against those involved in the unlawful seizure of the Parish's premises and property. They also complained of the refusal of the Kyiv City State Administration to register the changes to the statute of the Parish on the basis of the joint decision of its members to change denomination. 56.  On 25 February 2000 the Kyiv City State Administration's Department of Religious Affairs asked Mr Makarchykov to provide it with the minutes of the Parishioners' Assembly that had elected Mr Pavlo Osnovyanenko as its prior, confirmation that the Parish's prior belonged to the Moscow Patriarchate and confirmation that the prior's position had been vacant from December 1999 to 8 January 2000. 57.  On 6 March 2000 Mr T., Archbishop of the Kyiv Patriarchate, wrote to the head of the district electricity network asking it to cut off the electricity supply to the church as it had been unlawfully occupied by the Moscow Patriarchate and the Kyiv Patriarchate was unable to gain access. 58.  On 23 March 2000 the Kyiv Prosecutor's Office informed Mr Makarchykov and Mr Osnovyanenko that it had not found any wrongdoing on the part of the Moscow Patriarchate in relation to the church prosecutor's inquiries had revealed no unlawfulness whatsoever as alleged by the applicant. 59.  On 10 April 2000 a Committee of the Kyiv City Council prepared a draft opinion on the situation surrounding the Parish. The opinion was not adopted for examination by the Kyiv City Council as it was signed by only three of the five members of the Committee. 60.  On 5 June 2000 the Parishioners' Assembly composed of 30 members, 21 of whom were present, decided that Mr S.G. could not remain a member as he had joined a new religious group. The Parishioners' Assembly discussed the judgment in which the Kyiv City Court had found that the Parishioners' Assembly contained 309 members. However, it reiterated its view that as from 24 December 1999 it had been composed of only 27 members. Two of the members of the Assembly (K.V. and T.L.) reported that their witness statements had been taken incorrectly. The Assembly also re-elected the Parish's governing bodies (Mr Makarchykov was re-elected as Chairman). 61.  On 13 June 2000 Mr Makarchykov lodged a complaint with the Darnytsky District Prosecutor alleging that he had been attacked and injured on 2 April 2000 by an unknown person who had stolen a briefcase containing official documents belonging to the Parish. He also stated that he had already complained about attacks on him to the police, but that they had failed to act (the police issued two decisions on 8 April and 13 June 2000 refusing to initiate criminal proceedings following allegations by the applicant association). 62.  On 21 June 2000 the Parishioners' Assembly resolved that a car owned by the Parish should be used for the repayment of the Parish's debts. 63.  On 18 August 2000 Mr Makarchykov was arrested by police officers from the Darnytsky District Department of the Interior and “invited for a conversation” at the Department. He was informed that an inquiry was pending in relation to him. In the course of the “conversation” it is alleged that Mr Makarchykov started to curse and swear at the police officers. He was warned that he could be reprimanded, but did not stop. On 19 August 2000 the judge of the Darnytsky District Court of Kyiv reprimanded Mr Makarchykov for his behaviour; however, he did not impose any administrative or criminal sanctions on him. 64.  On 30 August 2000 the Darnytsky District Department of the Interior discontinued criminal proceedings against the applicant association that had been instituted on the basis of a complaint lodged by Mr B. Shtym the newly appointed prior of the Svyato-Mykhaylivska Parish (Moscow Patriarchate), as it had found no evidence of an offence on Mr Makarchykov's part. 65.  On 8 September 2000 the Darnytsky District Prosecutor refused to institute criminal proceedings into allegations of abuse of power by the police. 66.  On 29 September 2000 Mr B. Shtym requested the Kyiv City State Administration to register further amendments to the statute of the Parish. A request was signed by 10 members of the new Assembly, only one of whom (G.S.) was a member of the original Parishioners' Assembly. 67.  On 6 October 2000 the Parishioners' Assembly, composed of 29 members, of whom 22 were present, condemned the ruling of the Supreme Court of 21 April 2000 and decided that the Parish would apply to the European Court of Human Rights for the protection of their rights. The Assembly gave authority to Mr Makarchykov to represent it in the proceedings before the European Court. It also discussed pressure that had been imposed on Ts.O., K.A., Mr Makarchykov and S.S. by the domestic law-enforcement authorities and private individuals. 68.  On 5 December 2000 the Deputy Minister of the Interior and the Head of the City Department of the Interior reviewed Mr Makarchykov's complaints and found them unsubstantiated. They further stated that criminal proceedings against Mr Makarchykov on allegations of theft of property from the church had been discontinued and that the investigator in the case had incurred administrative liability. Similar, complaints were rejected by the Kyiv Prosecutor's Office on 15 December 2000. 69.  On 25 December 2000 the Kyiv City State Administration decided to register the changes to the statute of the Svyato-Mykhaylivska Parish pursuant to Mr Shtym's request of 29 September 2000. 70.  On 20 May 2001 22 members of the Parishioners' Assembly held a meeting at which they discussed various pressures that had been exerted on them by the law-enforcement authorities. They decided to seek protection and assistance from the Administration of the President of Ukraine and the General Prosecutor's Office to resolve the dispute surrounding the Parish. They also accepted a request from Ye.S., who had been a member of the Parishioners' Assembly since 25 July 1991, to resign her membership owing to pressure that had been put on her brother, a priest of the Moscow Patriarchate. 71.  On 21 February 2003 the Dniprovsky (the successor to the Darnytsky) Prosecutor's Office reviewed complaints lodged by Mr Makarchykov's sister of attacks on her and her son and her allegedly unlawful dismissal from the Parish. It advised her to take her complaint of unlawful dismissal to the domestic courts. 72.  In 2003-2004 Mr Makarchykov's sister requested asylum in Norway on the grounds of alleged persecution in Ukraine. She stayed in Norway while her request for political asylum was being reviewed. 73.  The Government informed the Court that on 7 August 2003 and 30 September 2004 the prior of the Parish, B. Shtym, informed them that Mr Makarchykov had never been given authority to apply to the European Court on behalf of the Parish, as he had ceased acting as the Chairman of the Parishioners' Assembly on 2 January 2000. Mr Shtym also informed the Government that seven of the original members (G.S., G.V., D.S. Ye.O., R.V., Ya.V and M.A.) had decided to remain members. Three of these (Ye.O, R.V. and Ya.V.) had withdrawn their signatures from the minutes no. 5 of 24 December 1999, by which the Parishioners' Assembly had resolved to change its denomination to the Kyiv Patriarchate. 74.  On 25 February 2004 the Religious Affairs Department of the Kyiv City State Administration informed the applicant association's representative that their religious group had separated from the remainder of the Parish and become a religious group within the Kyiv Patriarchate. It noted that they had not registered as a group with the Kyiv City State Administration. 75.  On 8 February 2005 the Kyiv Patriarchate informed the Court that the Parish, consisting of 30 members, was unable to satisfy their religious needs, as they were unable to use their property or premises. It stated that this was due to the refusal of the Kyiv City Administration to register the changes and amendments to the statute of the Parish that had been made in January 2000. 76.  In a letter of March 2005, K.A., Sh.Ye., N.M., Ch.L., R.V., T.L., Z.N., Z.V., A.M., Ch.A., Ch.V., L.V., Ryb.V., K.V., S.S. and B.M., all confirmed the complaints made by Mr Makarchykov to the European Court and stated that they were unable to use the church premises or to practise their religion in the church, which they had previously used for a long period as a religious association. 77.  On 31 January 2002 Mr Makarchykov and B.M. (a member of the applicant association) instituted proceedings against the Svyato-Mykhaylivska Parish (Moscow Patriarchate) seeking the return of their personal property that had allegedly been confiscated by the new Assembly in January 2000. They also sought compensation for damage. 78.  On 25 February 2004 the Dniprovsky District Court of Kyiv rejected Mr Makarchykov's and B.M's claims as unsubstantiated. 79.  It appears from the documents in the case-file that this judgment was upheld by the Court of Appeal on 18 August 2004 (the parties have not provided a copy of the ruling). It also appears from the case-file that this ruling was not appealed against. 80.  In November 2002 K.S. instituted proceedings against the Darnytsky District Department of the Interior for the return of the car that had been transferred into his ownership for the repayment of Parish's debts before being unlawfully seized by the police. The outcome of these proceedings is unknown. 81.  The applicant association also provided the Court with a number of documents confirming that Mr Makarchykov had acted on behalf of the Parishioners' Assembly from 1991 to 1999 representing its interests in dealings with third parties.


6.  The applicant was born in 1973 and lives in Moscow. 7.  From 14 March to 6 October 2005 the applicant was held in remand prison IZ-77/1 in Moscow. He was accommodated in Cell 243 which measured approximately 11 square metres. The cell had one window and the toilet was located inside the cell, separated with a brick partition approximately 1.2 metre in height. It disposed of four sleeping places. Detainees were allowed one hour of outdoor exercise per day. 8.  The parties disagreed on the number of inmates in Cell 243. 9.  According to the applicant, Cell 243 was constantly overcrowded. It was designed for two inmates but actually housed four persons. He referred to the Court’s findings in respect of the same cell in the case of Starokadomskiy v. Russia (no. 42239/02, §§ 23-24 and 42, 31 July 2008). 10.  The Government maintained that the number of detainees in Cell 243 had not exceeded two persons. In support of their position, they enclosed with their observations on the admissibility and merits of the case, a certificate issued by the prison governor on 5 April 2011 and selected pages from the prison population register covering the period between 16 March and 6 October 2005. 11.  On 16 January 2012, further to the Court’s request for more detailed factual information on the number of detainees in Cell 243, the Government submitted the following material:
– a certificate issued by the prison governor on 27 December 2011, according to which Cell 243 accommodated two persons during the entire period of the applicant’s detention;
– an undated certificate from the deputy head of the relevant department, according to which there were two detainees in Cell 243;
– every second page from the prison population register covering the period between 14 March and 30 September 2005. 12.  On 7 March 2012, in response to the Court’s request for clarifications about the origin of visible corrections of the number of detainees in Cell 243 in the prison population register, the Government submitted that, upon making the enquiries, it had been established that the procedure for filling out the prison population register had been breached which had resulted in “careless filling [out]”, corrections and erasures. The head of the department who was responsible for overseeing the compliance with the procedure could not be disciplined because he had retired in 2006. The Government pointed out that the corrections had not been made “with a purpose to misrepresent reliable information but because of carelessness and inattention of the officers of the pre-trial detention centre”.


5.  The applicant was born in 1954 and lives in Ohrid. 6.  The applicant is suffering from multiple sclerosis. 7.  On 1 April 1994 the Ministry of Health (“the Ministry”) issued a certificate allowing a bank, in which the applicant’s father had a foreign currency savings account, to transfer 20,000 United States dollars into the account of a hospital in the United States, in order to cover medical expenses related to treatment which the applicant was expected to undergo. It was given on the basis of a medical report (конзилијарно мислење) issued by the Skopje Neurology Clinic which stated, inter alia:
“... [the applicant] is suffering from multiple sclerosis, which requires further medical examination and treatment in a medical institution abroad, given the fact that all possibilities for her treatment in the State are exhausted ...” 8.  Between 17 May and 28 June 1994 the applicant underwent medical treatment in the hospital H.H.I. in the United States. 9.  On 12 July 1994 the Skopje Neurology Clinic issued another medical report (конзилијарно мислење, “the report of 12 July 1994”), the relevant part of which reads as follows:
“It is impossible to treat the disease in the State due to the critical state of [the applicant’s] health and the Clinic’s calendar of events. [The applicant] should leave immediately or by the middle of the month at the latest ...” 10.  The report was signed by three doctors, who confirmed that it was impossible to treat the disease in the respondent State. As stated in the report, it was expected that the treatment abroad would prevent the progressive deterioration of the applicant’s health. 11.  On 29 November 1994 the applicant requested that the Health Insurance Fund (“the Fund”) issue ex post facto a decision referring her to be treated in hospital H.H.I. (решение за упатување на лекување во странство). This request did not contain a claim for reimbursement of the expenses for the treatment that she had undergone. 12.  On 8 December 1994 the Fund dismissed the applicant’s request after an expert commission set up within the Fund (“the Fund’s commission”) had provided an opinion that the applicant could have been treated in the respondent State. 13.  On 21 March 1995 the applicant appealed against the Fund’s decision to the Ministry, arguing that the Fund’s expert commission had not taken into account the report of 12 July 1994 (see paragraph 9 above). She also requested that the Ministry approve further check-ups and treatment in hospital H.H.I. 14.  On 30 November 1995 the Ministry, as the second-instance administrative body, dismissed the applicant’s appeal after obtaining an opinion from the Second-Instance Medical Commission for Treatment Abroad (“the Second-Instance Commission”). The Ministry found that the possibilities for treatment in the State had not been exhausted. 15.  The applicant initiated administrative-dispute proceedings before the Supreme Court. On 14 January 1998 the Supreme Court quashed the Ministry’s decision. It found that it had not been clear whether the applicant was supposed to undergo a medical check-up or prolonged treatment abroad and that there was a contradiction in the medical reports as to whether the possibilities to treat the applicant’s condition domestically had been exhausted. 16.  On 9 July 1999 the Ministry again dismissed the appeal by the applicant against the Fund’s decision of 8 December 1994. 17.  In so far as can be established from the available material, on 7 July 1995 the applicant lodged a separate request with the Fund for reimbursement of the expenses for the treatment that she had undergone in hospital H.H.I. 18.  On 21 September 1995 the Fund ordered a partial reimbursement of the medical expenses in the amount of 278,311 Macedonian denars (MKD), or 20% of the expenses actually incurred. On 12 November 1995 the decision was adjusted to 10%. It appears that on 13 November 1995 the awarded amount was increased to MKD 313,100. 19.  On 11 November 1996 the Ministry examined the applicant’s appeal and increased the award by an additional MKD 50,215. 20.  The applicant challenged the latter decision with an administrative-dispute claim before the Supreme Court. 21.  On 25 March 1998 the Supreme Court quashed the decision of 11 November 1996. It found that the Fund and the Ministry had failed to assess whether the applicant could have been treated in the State, in accordance with the Rules on the Conditions and Manner of Referral of Insured Persons for Treatment Abroad (see paragraphs 38-41 below). It further found that these bodies interpreted section 15 of the Rules to signify that a person was not entitled to reimbursement of expenses if he/she had not obtained a prior decision referring him/her for treatment abroad (решение за упатување на лекување во странство). In the court’s view, such an interpretation would be contrary to the Health Protection Act. 22.  On 6 January 1999 the Ministry reached an identical decision to that of 11 November 1996. 23.  The applicant initiated administrative-dispute proceedings against the Ministry’s decision. 24.  On 22 November 2000 the Supreme Court quashed both the decision of 6 January 1999 (see paragraph 22 above) and the decision of 9 July 1999 (see paragraph 16 above). It found that the Ministry should have joined the proceedings for reimbursement of the medical expenses incurred in hospital H.H.I. with the proceedings for referral for treatment abroad. It should have decided in the first place the request for referral to treatment abroad, the outcome of which was decisive for the applicant’s claim for reimbursement of the medical expenses. It again instructed the Ministry to assess whether the applicant could have been treated in the State. 25.  On 23 February 2001 the Ministry quashed the decision of 21 September 1995 (see paragraph 18 above) and decided that the applicant’s treatment abroad could not be recognised as treatment abroad based on a decision of the Fund. Nevertheless, the applicant was to be reimbursed the expenses for treatment abroad not based on such a decision, in the amount of MKD 378,741. The Ministry came to its conclusion on the basis of an opinion of a medical commission of 14 December 2000 which found that the applicant could be treated in the respondent State. 26.  The applicant again challenged the Ministry’s decision before the Supreme Court. 27.  On 13 November 2003 the Supreme Court quashed the decision, finding that the administrative bodies had not established whether at the time of the treatment the possibilities for treatment in the respondent State had been exhausted. 28.  On 5 November 2004 the Ministry again dismissed the appeal against the decision of 21 September 1995, this time based on a conclusion of the Second-Instance Commission of 3 November 2004 that the applicant could have been treated in the respondent State in 1994. 29.  On 14 December 2006 the Supreme Court again quashed the decision of the Ministry. The court found that there had been conflicting medical evidence as to whether the applicant could have been treated in the respondent State at the relevant time. It further requested that the doctors who had drawn up the report of 12 July 1994 give evidence as to whether the possibilities for treatment of the specific condition in the State in 1994 had been exhausted. 30.  After having consulted the doctors, on 8 October 2007, the Ministry again dismissed the applicant’s appeal against the decision of 21 September 1995. The relevant part of the decision reads as follows:
“The Minister of Health ... on the basis of all the documents in the file established that the [applicant’s] treatment in the [H.H.I. hospital] cannot be considered as treatment abroad based on a decision of the [Fund] in accordance with sections 7, 9 and 10 of the Rules for Referral for Treatment Abroad (Official Gazette nos. 3/92, 11/92, 32/92 and 48/92) and in accordance with sections 5, 7 and 8 of the subsequently adopted Rules on the Manner of Using Health Services Abroad (Official Gazette no. 111/2000) because under the provisions of both sets of Rules the medical opinion of the respective clinic is merely a proposal for referral for treatment abroad of an insured person, and the assessment and the opinion on the need for treatment abroad is provided by the [Fund’s commission], which assesses whether the possibilities for treatment in the State are exhausted and whether there are possibilities for successful treatment abroad, in which State and in which foreign medical facility.
The insured person obtains the right to treatment abroad only by a decision of the [Fund] on the basis of a finding of the [Fund’s commission]. It is a fact that the [applicant] went for treatment abroad without [having obtained] a decision of the [Fund] on her own assessment, given that at that moment there was not even a medical report [by the clinic] which is only a proposal of the clinic for referral to treatment abroad.
In the entire proceedings the first- and second-instance bodies acted in accordance with the provisions of the Rules for [Referral to Treatment Abroad] and, in line with section 15 of the Rules, they decided to reimburse expenses as if the treatment had been performed in the [respondent] State, for the reason that the [applicant] had not obtained a right to be treated abroad because the competent commission had found that that condition had been treatable in the State ...
... That the Supreme Court in its last judgment requests that the members who provided the medical report of 1994 [give evidence] ... is irrelevant, given that the medical report is an initiative – a proposal for initiating certain proceedings – but [it does] not [confer] a right to be treated abroad.
If, in the court’s view, the medical report was decisive in the present case, a question arises as to what the competence of the [Fund’s commission] is and why there are provisions in the Rules ... and prescribed proceedings for obtaining the right to treatment abroad.
Having in mind the fact that the [Fund’s commission] for referral for treatment abroad, in the present case, had on multiple occasions found that the possibilities for treatment in the existing health institutions at the Skopje Clinic had not been exhausted ... the case is considered under section 15 [of the Rules of 1992], that is section 20 [of the Rules of 2000] ... , and it was decided that expenses for the treatment be reimbursed to the [applicant] in line with the price list for health services in the [respondent State].” 31.  The applicant challenged the Ministry’s decision seeking under the Administrative Disputes Act (see “Relevant domestic law” below) that the Supreme Court hold an oral hearing in order to take evidence from the doctors who had drawn up the 1994 report, the Chairman of the Ministry’s Second-Instance Commission and Dr R.L., the doctor who had treated her. She referred to the certificate of 1 April 1994 (see paragraph 7 above) and the medical report that it had been based on. She argued that, in view of her condition at that juncture and the short period of available time, she had not lodged a request to the Fund before leaving as she had considered that she could have done it after her return to the State. She further argued that the Ministry had failed to decide her claim for referral for treatment abroad and had only decided the claim for reimbursement of expenses. 32.  On 22 January 2009 the Administrative Court, which had meanwhile become competent to decide administrative disputes, held a private session and finally dismissed the applicant’s appeal. It did not in its decision address the applicant’s request for an oral hearing. 33.  The court referred to section 10 § 1 (14) and section 30 of the 2000 Health Insurance Act, as well as sections 20 of the Rules on the Manner of Using Health Services Abroad (see paragraphs 37, 41 and 42 below). It ruled that the administrative bodies had correctly applied the applicable law in awarding the applicant partial compensation for the medical expenses for her treatment in hospital H.H.I. in 1994. The relevant parts of the judgment stated as follows:
“... In the present case, [the applicant] went for treatment abroad without [having obtained] a decision of [the Fund], on her own assessment, and without a medical report, which she obtained after she had returned from the U.S.A. from the Skopje Neurology Clinic on 12 July 1994, contrary to section 30 of the 2000 Health Insurance Act.
The court considers that the [administrative] bodies in the proceedings correctly established that the [applicant’s] treatment in the [H.H.I.] hospital in the U.S.A. cannot be considered as treatment abroad based on a decision of [the Fund] in accordance with sections 7, 9 and 10 of the Rules for referral for treatment abroad (Official Gazette nos. 3/92, 11/92, 32/92 and 48/92) and in accordance with sections 5, 7 and 8 of the Rules on the Manner of Using Health Services Abroad (Official Gazette no. 111/2000), because under the provisions of the two [sets of] Rules the medical report of the relevant clinic is only a proposal for referral for treatment abroad of an insured person, and the assessment and the opinion on the need for treatment abroad is provided by the [Fund’s commission], which assesses whether the possibilities for treatment in the State are exhausted and whether there are possibilities for successful treatment of the condition abroad and in which country or in which foreign medical institution.
In deciding, the court assessed [the applicant’s] arguments that in [the respondent State] there had been no possibility of a successful continuation of her treatment and that there had been a need to continue the treatment abroad, but found them groundless since, according to the expert opinion of the Neurology Clinic, all cases of multiple sclerosis have always been treated in the State wherein the therapeutic procedures for these diseases are in accordance with international medical standards. Hence, the court considers that the [administrative] bodies acted in accordance with the Supreme Court’s instructions and removed the breaches in the proceedings in terms of clarification of the contradictions which had existed before, deciding to award expenses as if the treatment had been conducted in the State, under the terms of section 15 of the Rules for Referral to Treatment Abroad, given that [the applicant] had not obtained the right to be treated abroad because the competent [Fund’s commission] had provided its opinion that the condition had been treatable in the State.” 34.  This judgment was served on the applicant on 6 March 2009.


5.  The applicant was born in 1955 and is currently detained in HMP Whatton. 6.  On 25 April 2007 he received an indeterminate sentence for public protection (“IPP sentence”) following his conviction of the sexual assault of a fifteen-year old girl. The offence had been committed while the applicant was on licence in the community following his release from a sentence for indecent assault against girls under the age of sixteen and while he was undertaking the Sex Offender Treatment Programme (“SOTP”) in the community. A minimum term (“tariff”) of four years was fixed. 7.  The applicant was initially detained in HMP Armley. It was recommended in 2007 that he complete the SOTP. 8.  In June 2008 he was transferred to HMP Rye Hill. He completed an Enhanced Thinking Skills (“ETS”) course in 2008 and the core SOTP on 8 March 2009. On an unknown date, he completed an Alcohol Awareness course. 9.  In August 2009 a Structured Assessment of Risk and Need (“SARN”) report identified that further work was required to reduce the applicant’s risk of reoffending. It was recommended that he complete the extended SOTP and, possibly, a Better Lives Booster (“BLB”) programme. The extended SOTP consisted of seventy-four interactive sessions plus some individual work and generally lasted for around six months. 10.  At a Parole Board review on 7 September 2009 the Panel said that much offending work still had to be done in order to reduce the applicant’s risk and that he should therefore remain in closed conditions. 11.  In September 2009 the applicant was transferred to HMP Acklington. He claims that he had been informed that the extended SOTP was available at that prison. 12.  A memo dated 24 August 2010 from the Programmes Department of HMP Acklington confirmed that the applicant had been assessed as suitable to attend the extended SOTP and that he would have to be transferred to another establishment to complete the course as it was not offered at HMP Acklington. 13.  On 27 August 2010 the applicant completed the Thinking Skills Programme (“TSP”) at HMP Acklington. 14.  In January 2011 a pre-tariff-expiry paper Parole Board review took place. By letter dated 24 February 2011 the applicant was informed that the Parole Board had not recommended his release. His request for an oral hearing was refused. 15.  The letter explained:
“... The [Intensive Case Management] decision provides a detailed account of the index offence and your previous offending record ... You are given credit for the offence related work you have undertaken but further work in the form of an Extended SOTP (and possible a BLB programme thereafter) is considered necessary to further address your risk factors ... It is clear that significant risk reducing work is required in closed conditions before you can progress further.” 16.  By letter dated 6 April 2011 the National Offender Management Service informed the applicant that the Secretary of State agreed with the Parole Board recommendation. She considered that a number of risk factors were outstanding, namely sexual offending, feelings of grievance, distorted thinking, alcohol misuse and outbursts of anger. She was of the view that the extended SOTP was necessary to reduce the applicant’s risk level. She also indicated that an assessment for the BLB programme was necessary following completion of the extended SOTP and recommended that the applicant continue addressing his alcohol misuse. The letter expressed the expectation that the relevant interventions, or other equivalent risk reduction work, would be completed prior to the next Parole Board review. It clarified, however, that the Secretary of State could not guarantee to place the applicant on the courses identified as there were limits on the availability of resources. 17.  The review period was set at twenty-one months and was made up the following: transfer to an establishment to undertake the extended SOTP; participation in the extended SOTP; participation in post-course reviews; consolidate and test the skills learned; continued development and practice of appropriate risk strategies; assessment for the BLB programme; continued monitoring of alcohol misuse and relapse prevention work if necessary. The review was scheduled to commence in March 2012 and conclude in November 2012, with an oral hearing in September. 18.  On 26 April 2011 the applicant’s tariff period expired. 19.  The applicant sought advice on possible judicial review proceedings in respect of the delay in providing access to the extended SOTP. A letter was sent to HMP Acklington by his solicitors. On 22 September 2011 he was transferred to HMP Whatton. 20.  On 10 October 2011 the applicant requested information from HMP Whatton as to when he would begin the extended SOTP. He was informed in reply that he would be contacted to arrange an assessment as soon as possible. 21.  Meanwhile, the applicant’s solicitors wrote to HMP Whatton seeking information on when he would be allowed to participate in the extended SOTP. By reply dated 28 October 2011, the deputy extended SOTP treatment manager explained:
“In order that we can be responsive to the needs of Mr Dillon, it is essential that we allow him a period of settling in at HMP Whatton before an assessment for the Extended SOTP can take place.
Assessments and placements are prioritised on a number of factors including tariff expiry, risk level and treatment readiness. However, please be assured that an assessment will take place as soon as practically possible.
We anticipate delivering 4 Extended Programmes in 2012 and Mr Dillon will be considered for one of these programmes, if he is found suitable. The extended programme lasts 5 months. A SARN report will then have to be completed within 26 weeks of treatment being completed. The SARN report will identify any further treatment that is necessary.” 22.  On 12 November 2011 the applicant indicated to HMP Whatton his concern that he might not be adequately prioritised for the extended SOTP, referring to the expectation that the course would be completed by his next Parole Board review. He requested confirmation that he would be prioritised for the extended SOTP. 23.  By reply dated 18 November 2011 he was informed that HMP Whatton made “every attempt to ensure prisoners are treated fairly and have access to offending behaviour programmes”. However, the letter noted that there were limited resources and that there was a large number of IPP prisoners and life sentence prisoners at HMP Whatton whose tariffs had expired. 24.  On 6 January 2012 the applicant’s solicitors wrote to the Governor of HMP Whatton to notify him of the fact that judicial review proceedings were being contemplated. They sought an undertaking that the applicant would be given access to an extended SOTP scheduled to begin in April 2012. 25.  On 19 January and 6 February 2012 the applicant was reassessed for participation in the extended SOTP. In a report dated 6 February 2012 he was found not to be sufficiently motivated to undertake the course. The report noted that the second meeting had had to be terminated on account of the applicant’s use of abusive and disrespectful language and his loud and aggressive tone. It explained that while, given the applicant’s tariff expiry date, he would have been prioritised for the April 2012 extended SOTP course, it was considered that he was not ready for secondary treatment at that time. It was recommended that the applicant complete individual work with his offender supervisor to consider, inter alia, the costs and benefits of engaging in the extended SOTP and to address his outstanding treatment needs. Further assessment would take place in June/July 2012. 26.  The applicant subsequently pursued a request for a place on an extended SOTP scheduled to commence in August 2012. 27.  On 13 June 2012 the Parole Board notified the applicant of its decision on the papers not to direct his release or to recommend his transfer to open conditions. The Parole Board set out the details of the index offence and noted that the applicant had committed the offence while on a three-year extended licence following another conviction for sexual offences (see paragraph 6 above). It considered that he had breached the trust placed in him and expressed concern that this might not bode well for the applicant’s likely compliance with licence conditions. The Parole Board reiterated the applicant’s risk factors and turned to examine the evidence of any change during sentence. It explained:
“You completed the Core SOTP in 2009 and the Thinking Skills Programme in 2010. It was then recommended that you complete the Extended SOTP. Once this has been completed you will be assessed for other programmes such as the Better Lives Booster Programme and the Healthy Sexual Functioning Programme. You are reported to have attended for a programme assessment for the ESOTP at HMP Whatton but prison records state that this was a challenging meeting and that you were not sufficiently motivated to commence the group. You do not agree with this assessment. You will be offered the opportunity to attend for suitability assessment in the future. You have also been put forward for the CALM programme due to the violent offences on your record and difficulties in managing your emotions.” 28.  The Parole Board agreed that the applicant posed a high risk of harm to children. It commended the applicant on his completion of the ETS and core SOTP. However, it concluded:
“... [T]here is a considerable amount of accredited offending behaviour work still recommended for you to complete to reduce your risks to a level that can be safely managed in less secure conditions. In the first instance it is recommended that you complete the Extended SOTP and CALM and that following the SARN you may need to be assessed for the Better Lives Booster Programme and Health Sexual Functioning Programme. Clearly this will take some considerable time and whilst core areas of risk remain unaddressed there is no merit in an oral hearing being held ...” 29.  The applicant was reassessed for the extended SOTP in July 2012. He was found to be suitable to participate. 30.  In late July 2012 the applicant was informed that he was being considered for a place on an extended SOTP commencing in October 2012. 31.  The applicant completed the extended SOTP in March 2013. He was advised that a SARN report would be completed within the next six months to identify any further work that needed to be done. The SARN report was completed in March 2014.


4.  The applicant was born in 1956 and lives in Warszawa. 5.  On 19 November 2002 the applicant was placed in police custody on suspicion of drug trafficking. On 20 November 2002 the Częstochowa District Court ordered that the applicant be detained on remand. 6.  The court based its detention order on a reasonable suspicion that the applicant had committed the offence of drug trafficking and the severity of the likely penalty, which gave rise to a fear that the applicant would obstruct the proceedings. Moreover, the court took into account that other suspects had remained at large, which would pose a risk of collusion if the applicant were released. 7.  Subsequent decisions on the extension of the applicant's pre-trial detention were taken on 11 February 2003, 8 May 2003, 3 October 2003, 31 December 2003, 29 March 2004 and 29 June 2004. 8.  The courts referred to the complexity of the case, the need to conduct further investigations, the probability of collusion between the applicant and other suspects and exertion of unlawful pressure on witnesses by the applicant. They stressed that the fact that the applicant had not pleaded guilty posed an additional risk of his influencing other persons involved in the proceedings. In their opinion no other preventive measure could ensure the proper conduct of the proceedings. 9.  The applicant appealed on several occasions against the decisions extending his detention and requested release from detention or the imposition of a more lenient preventive measure, drawing the court's attention to his poor state of health. 10.  On 27 November 2002 a telephone company was requested to provide an itemised bill of the applicant's telephone calls to other suspects. 11.  On 18 December 2002 and 29 January 2003 confrontations of witnesses and suspects took place. 12.  On 19 December 2002 the prosecutor ordered an expert opinion of a heart specialist with a view to establishing the applicant's state of health. No grounds for the applicant's release from detention were found. 13.  On 19 March 2003 an expert opinion was ordered with a view to determining whether the substance found in the course of police operations had been an illegal drug. The opinion was submitted on 15 May 2003. 14.  On 30 April 2003 and 8 June 2003 expert opinions concerning a weapon which had been found by the police were submitted. 15.  On 5 May 2003 another expert opinion of a heart specialist was ordered. Again, the applicant was found to be fit for detention. 16.  On 25 June 2003 a bill of indictment against the applicant and ten other co-accused was lodged with the court. The applicant did not plead guilty. 17.  On 15 September 2003 the court decided to transfer the case file to the Prosecutor's Office so that shortcomings in the investigation could be corrected. 18.   On 24 December 2003 two expert opinions were ordered with a view to establishing the applicant's mental health. 19.  On 9 February 2004 expert opinions on cardiology and diabetology were ordered. The experts did not find any grounds for the applicant's release. 20.  Hearings were held on the following dates: 27 November 2003, 25 March 2004, 15 April 2004, 13 May 2004, 17 June 2004, 8 July 2004, 12 August 2004, 9 September 2004 and 27 September 2004. Over thirty-five witnesses were examined by the court. 21.  On 17 June 2004 the court ordered that witnesses who had previously failed to appear at hearings be escorted to the court. 22.  On 5 July 2004 an expert opinion on neurology was submitted. No grounds for the applicant's release were found, although it was stated in this opinion that his prolonged detention might pose some future risk to his health and he was referred to a prison hospital for observation. The date of his admission to hospital was fixed for 1 July 2004. 23.  On 30 September 2004 the Częstochowa District Court gave a judgment. The applicant was found guilty of drug trafficking and sentenced to three years' imprisonment. The court ordered that the applicant remain in custody until the prison sentence could be enforced. 24.  On 1 October 2004 the applicant appealed against the decision of 30 September 2004 on the extension of his detention. 25.  On 21 October 2004 the Częstochowa Regional Court allowed the applicant's appeal of 1 October 2004 and on the same day he was released from detention. 26.  On 6 December 2004 two appeals against the judgment of 30 September 2004 were lodged by the applicant's lawyers. 27.  On 22 June 2005 the Częstochowa Regional Court quashed the judgment and remitted the case. The proceedings are pending.


6.  The applicant was born in 1966 and lives in Arkhangelsk. 7.  The applicant, an advocate at the time, acted as defence counsel for a Mr R. 8.  On 5 August 2003 the Primorskiy District Court of Arkhangelsk, chaired by judge V., removed the applicant from his position as Mr R.'s counsel. The District Court found that the applicant had acted contrary to the Code of Criminal Procedure and the Advocate's Code of Ethics. The court noted, in particular:
“Persistent and repeated voluntary statements made by [the applicant] that he provided legal advice to witnesses N. and S. and at the same time acted as counsel for defendant R. ... show that [the applicant], in violation of the formal requirements of the Russian Code of Criminal Procedure, provided legal advice and acted as counsel in respect of persons whose interests were in conflict. Therefore, it is not possible for [the applicant] to continue to participate in the trial as legal counsel for defendant R. or to provide legal advice to N. and S.” 9.  On 26 September 2003 the District Court found Mr R. guilty as charged. 10.  On 16 December 2003 the Arkhangelsk Regional Court quashed Mr R.'s conviction and remitted the matter for fresh consideration. The court also upheld on appeal the decision of 5 August 2003. 11.  On 22 December 2003 the applicant asked the Presidium of the Regional Court for supervisory review of the judicial decisions to remove him from being Mr R.'s representative. 12.  On 2 February 2004 judge A. of the Regional Court dismissed the above complaint. In particular, the judge noted as follows:
“I hereby return your complaint against ... the decisions ... of 5 August 2003 and 16 December 2003 without having considered it on the merits. [The reason for this is that] the Primorskiy District Court of the Arkhangelsk Region opened R.'s trial on 22 January 2004 and it is impossible to verify the lawfulness and inconsistency of the decisions in question.” 13.  On 9 February 2004 the applicant filed a complaint against the judges who had participated in the proceedings for the determination of the criminal charge against Mr R., alleging that they had acted in violation of the rules of criminal procedure by refusing to consider his application for supervisory review in respect of the decision of 5 August 2003. The complaint was addressed to the President of the Supreme Court of the Russian Federation with a copy to the President of the Arkhangelsk Regional Court. The applicant asked for the President's intervention which would prompt, in his opinion, the Arkhangelsk Regional Court to respond to his application for supervisory review. 14.  In particular, the applicant made the following comments in the complaint:
“... Judges A. and V. used to “plough the fields of justice together” at the Arkhangelsk Regional Prosecutor's Office, and, apparently, they “continue their joint efforts now” at the Arkhangelsk Regional Court ...
... In my opinion, either judge A. is not quite familiar with the law, which is sad, or judge A. wilfully and knowingly restricts my access to court, which is twice as sad ...
... On 2 February 2004 I received an absolutely unlawful “brush-off” reply from judge A ...
... [Judge A.] could have unglued his posterior from [his] seat and brought it to the premises of the Primorskiy District Court ...
... Otherwise, why would judge A. receive such a salary which I, as a tax payer, contribute to? ...
... But judge A. simply pushed away my [request for] supervisory review and, by doing so, he seriously violated the rules of criminal procedure and my constitutional rights ...
... I believe that one telephone call from the Supreme Court of the Russian Federation will be enough to make the Arkhangelsk Regional Court consider my complaint on the merits ...” 15.  The President of the Supreme Court forwarded the applicant's complaint to the Arkhangelsk Regional Court for further action. The President of the Arkhangelsk Regional Court lodged a complaint with the Council of the Arkhangelsk Region Bar Association (the “Council”) alleging that the above comments were offensive and incompatible with the Advocate's Code of Professional Conduct. He stated as follows:
“In our opinion, [the applicant's complaint] contains remarks which are offensive and tactless vis-à-vis certain judges of the Arkhangelsk Regional Court.
We believe that the content and the style of the complaint are impermissible.
In our view, the reference made by [the applicant] in his complaint addressed to the President of the Supreme Court of Russia that ... a decision could be made in response to his application for supervisory review through a telephone call ... shows that he is lacking the qualities appropriate to his profession.
[A]dvocates should, under any circumstances, be tactful and correct vis-à-vis their counterparts and public officers, including judges. [They] should demonstrate respect towards the court and challenge [judicial] acts correctly and in accordance with the law.
Having regard to the above ... I hereby request that you follow up on the applicant's conduct and inform the Arkhangelsk Regional Court of the measures taken.” 16.  On 21 April 2004 the Council held a disciplinary hearing. The applicant did not challenge the offensive character of the comments. He submitted that he had been, in a way, provoked by the judges' allegedly unlawful decisions. The Council granted the complaint and terminated the applicant's bar membership as of 22 April 2004. In particular, the Council noted as follows:
“[The applicant's complaint] addressed to the President of the Supreme Court of Russia contains tactless remarks in respect of certain judges of the Arkhangelsk Regional Court, which amounts to a violation of the Advocate's Code of Professional Conduct ...
The content and the style of the [applicant's] complaint addressed to the President of the Supreme Court of Russia are impermissible.
The reference made by [the applicant] in his complaint addressed to the President of the Supreme Court of Russia that ... a decision could be made in response to his application for supervisory review through a telephone call ... shows that he is lacking the qualities appropriate to his profession.
[A]dvocates should, under any circumstances, be tactful and correct vis-à-vis ... judges. [They] should demonstrate respect towards the court and challenge [judicial] acts correctly and in accordance with the law.” 17.  The applicant appealed to the court. He claimed that he was disliked by the members of the Council and their decision had been retaliation against him for his personal views and convictions. He also alleged that the disciplinary hearing had been carried out with certain procedural irregularities. 18.  On 22 June 2004 the Oktyabrskiy District Court of Arkhangelsk dismissed the claim brought by the applicant against the Bar Association seeking reinstatement of his membership. The applicant appealed. 19.  On 9 August 2004 the applicant asked the Arkhangelsk Regional Court to transfer the case to another jurisdiction for consideration. The applicant alleged that any judge of the Regional Court would be biased against him because the original complaint which had prompted the disciplinary proceedings against him had been lodged by the President of the said court. On the same day judge M. of the Regional Court refused to consider the applicant's request and returned the relevant documents to him. In particular, the judge informed the applicant as follows:
“I hereby return your application stating the challenge to the whole composition of ... the Arkhangelsk Regional Court and advise you that, pursuant to the rules of civil procedure, it is only possible to challenge the specific judges who are appointed to consider your case and not the whole composition of [the court].” 20.  On 16 August 2004 the Arkhangelsk Regional Court upheld the judgment of 22 June 2004 on appeal. The court dismissed as unsubstantiated the applicant's allegations of the Council's partiality. Nor did it discern any procedural irregularities in the applicant's disbarment.


4.  The applicant was born in 1950 and lives in Casoria. 5.  On 12 December 1992 the applicant and two others, all of whom were charged with fraudulent bankruptcy, were committed for trial in the Naples District Court. After numerous adjournments on account of failure to serve proper notice or lawyers’ strikes, a hearing was held on 23 September 1997. At the hearing the lawyer retained by Mr Sannino produced a list of witnesses he wanted to be summoned to appear in court. They were mainly people who would say that the applicant had been less directly involved in the management of X, a commercial company, after February 1989. The president of the court granted the request. 6.  At a hearing on 18 November 1997, Mr Sannino was represented by a different lawyer of his choosing, Mr G., whom he had retained on 13 September 1996. Mr G. produced the list of witnesses again. The court again granted leave for the persons named in the list to be summoned. A number of witnesses were examined on 3 November 1998 in the presence of the applicant and Mr G. 7.  In a note deposited with the registry of the Naples District Court on 18 January 1999, Mr G. announced that he was withdrawing from the case. He said that the applicant had been informed accordingly by registered letter sent on 18 January 1999. On 19 January 1999 the court assigned the applicant a defence lawyer, Mr B. 8.  On 25 January 1999 Mr B. was informed of the date of the next hearing (17 February 1999). The note he received did not, however, mention that he had been officially assigned to represent Mr Sannino. No notification was sent to Mr Sannino. 9.  Mr B. did not appear at the hearing on 17 February 1999, but the applicant did. The court ordered Mr B. to be replaced by another official defence lawyer, Mr M., and adjourned the case to 16 March 1999. 10.  On that date Mr B. again failed to appear, but the applicant was present. The court ordered Mr B. to be replaced by another official defence lawyer, Mr A. One of the witnesses called by the prosecution was examined by the prosecution’s representative and cross-examined by the lawyer of one of the applicant’s co-defendants. The court adjourned the proceedings to 5 May 1999 and ordered the other witnesses to be summoned. 11.  On that date Mr B. again failed to appear, but the applicant was present. The court ordered Mr B. to be replaced by another official defence lawyer, Mr O. Mr Sannino made a number of spontaneous statements. A witness called by the prosecution was examined. Having regard to the absence of two other prosecution witnesses, the court adjourned its examination of the case to 16 June 1999. The hearing was not held on that date and the proceedings were adjourned on account of the European parliamentary elections. 12.  Further hearings were held on 2 November and 17 December 1999 and on 18 January and 29 March 2000, to which the witnesses on the applicant’s list were not summoned. Mr B., who had still not appeared, was replaced by a different court-appointed defence lawyer each time. 13.  The record of the hearing on 2 November 1999 mentions that the applicant was present, which the applicant himself denies. He states that he attended his trial for the last time on 5 May 1999 and that after the adjournment of 16 June 1999 he was not notified of the date of the next hearing (2 November 1999). A notice of hearing had in fact been issued to a person who did not have authorisation (persona non abilitata) to receive notices. The Government produced a note (relata di notifica) before the Court, drawn up by a court bailiff, according to which notice of the hearing on 2 November 1999 had been served personally on 23 July 1999 on a person identifying himself as Giuseppe Sannino. The applicant maintains that the signature appearing on the note is not his and that on 23 July 1999 he was not at home, but at the Monteprandone Hotel in San Benedetto del Tronto, as had been proved by his lawyer in the appeals lodged after his conviction. Furthermore, he alleges, the indication that the notice of hearing was served on him personally was added by the court bailiff more than five years after the material time, “at the request of the office of the co-Agent at the Permanent Representation of Italy”. 14.  A final hearing was held on 12 April 2000. Neither the applicant nor Mr B. appeared. Mr B. was replaced by a court-appointed lawyer. Witnesses were examined. 15.  In a judgment of 12 April 2000, the text of which was deposited with the court’s registry on 19 April 2000, the Naples District Court sentenced the applicant to two years’ imprisonment. 16.  The applicant was not officially informed that the judgment against him had been deposited with the registry. He submits that, not having been aware of the conviction, he was unable to avail himself of his right to appeal within the statutory thirty-day period. 17.  He claims that he did not learn of his conviction – which had become final on 29 May 2000 – until 11 May 2001, when he asked for a copy of his criminal record. 18.  The applicant also learnt that Mr B. had been appointed to represent him, whereupon he contacted him. 19.  Through Mr B. the applicant lodged an application on 15 November 2001 for leave to appeal out of time. He claims that the notice of the date of the hearing of 2 November 1999 was void on the ground that the court bailiff’s report did not refer to the standing of the person on whom it had been served. Moreover, Mr B.’s appointment was – he alleges – unlawful because his name did not appear on the list of official defence lawyers. In any event Mr B. had never been informed of his appointment. In the applicant’s submission, the time-limit for lodging an appeal had therefore never started running. 20.  At the same time, again through Mr B., the applicant appealed against the judgment of 12 April 2000. He sought an acquittal on the merits and requested the investigation to be reopened for the purpose of hearing evidence from the witnesses indicated in the defence’s list. 21.  By an order of 8 March 2002, the Naples District Court dismissed the application for leave to appeal out of time. It observed that the applicant referred to matters regarding the conduct of the trial at first instance that should have been raised prior to the date on which the judgment of 12 April 2000 had become final. Leave to appeal out of time was granted only where the convicted person proved that he had been prevented by a case of force majeure from taking certain steps within the statutory time-limit, and not where he alleged procedural defects. In those conditions it was not necessary to ascertain whether the facts of which the applicant complained were genuine. 22.  On 29 March 2002 the applicant lodged an appeal on points of law. He alleged that the Naples District Court had wrongly construed the relevant provisions of domestic law, namely, Articles 175 and 670 of the Code of Criminal Procedure (“the CCP” – see “Relevant domestic law” below). He stated that, through no fault of his own, he had not been aware of the judgment. 23.  In a judgment of 4 March 2003, the text of which was deposited with the registry on 26 March 2003, the Court of Cassation declared the appeal inadmissible. It observed that the applicant was complaining of flaws in the appointment of his court-appointed defence counsel and the service of the notice of the date of the hearing of 2 November 1999. Those flaws could have resulted in certain measures being annulled on grounds of procedural errors, but had been cured (sanate) when the conviction had become final. 24.  On 29 April 2002 the Naples public prosecutor’s office ordered execution of the sentence imposed on the applicant by the judgment of 12 April 2000. Execution was stayed, however. 25.  On 11 June 2002 the applicant requested the application of an alternative measure to detention, namely, probation (affidamento in prova al servizio sociale). By an order of 28 June 2005, the Naples Post-Sentencing Court granted the applicant’s request. On 5 September 2005 the applicant declared that he accepted the obligations stipulated in the probation order, namely, not to leave the district (comune) of Casoria without prior authorisation of the judge supervising enforcement of sentences; to devote himself fully to his work at the M. company; not to leave his house before 8 a.m. and not to return after 8 p.m; not to associate with reoffenders; and to report to the police station at least three times per week.


6.  The applicant was born in 1980 and, at the time of lodging his application, he had been serving a custodial sentence at Pravieniškės prison. 7.  On 19 February 2003 the Kaišiadorys District Court convicted the applicant - together with an accomplice - of attempted drug dealing in large quantities (Articles 16 § 2 and 232-1 § 5 of the Criminal Code as then in force). The court established that the offence had been disclosed using a “Criminal Conduct Simulation Model” (“the model”), which had been authorised by the Prosecutor General on 29 May 2002. 8.  The court found that on 4 June 2002 V, a policeman acting as an undercover agent under the model, had met the applicant and, during their conversation on various topics, asked where he could get psychotropic drugs. The applicant had said that he could procure and sell samples to the policeman straight away, and more thereafter if the samples were good. The samples would cost between 15 to 21 LTL per gram, depending on the quantities required. He refused to lower the price for the first transaction, but suggested that it might be cheaper thereafter if V needed a regular supply. However, the officer replied that he could not wait and they agreed to telephone each other on the matter. V had to undergo a hospital intervention. Thereafter it was the applicant who contacted V, suggesting a meeting so that he could provide V with drug samples. On 21 June 2002, the applicant sold V some drugs. 9.  On 23 June 2002 V had telephoned the applicant, requesting more drugs for a total sum of USD 3,000. On 25 June 2002 the applicant provided V with 250 grams of amphetamines. He said that he had around 5 kilos of drugs (amphetamines) and that the price would be lower next time. The applicant and his accomplice were arrested immediately. The applicant pleaded guilty to the attempted drug offence. 10.  The court questioned V as an anonymous witness, outside the courtroom via an audio relay. His identity was not disclosed in order to protect him and the proper functioning of the police drug squad. At that stage the defence did not put any questions to V. After his testimony had been read out by the trial judge, the defence formulated some supplementary questions which were put to him by the judge and answered. The other evidence examined by the court included the transcripts of the conversations between V and the applicant, the testimony of another police officer who acted as V’s back up during the operation, their supervising officer, the testimony of the applicant and his co-accused and an expert’s conclusions. 11.  The documents relating to the authorisation of the model were classified as secret and were not disclosed to the defence because they would have disclosed the identity of the police officers involved and the operational methods of the drug squad. The Government contended that the applicant was not, however, denied access to information about the execution of the model. In their submissions to the Court, the Government provided further information about it. The police had information about the applicant’s continued large scale drug dealings in Lithuania and abroad under the nickname of “Malina”. Two police officers were authorised to contact the applicant and his associates and, should their suspicions prove to be founded, they were authorised to procure drugs from him. The steps to be taken and the equipment to be used to obtain proof were set out in the model, which was authorised for a year. 12.  Defence counsel, in his final submissions to the trial court, contended that the applicant had been incited to commit the offence by the undercover police officer, who had acted unlawfully. Consequently, the latter’s evidence could not be relied on. Counsel requested that the applicant’s acts be qualified as an attempted offence, for which a milder sentence would be appropriate. 13.  The trial court concluded that the use of the model in the case had been lawful. It observed inter alia as follows:
“[T]he Criminal Conduct Simulation Model is used to collect evidence about the criminal activities of a particular person. That is what happened in the present case. Having obtained information that the defendant ... was selling psychotropic substances, the police officer - whose identity was concealed - expressed his wish to get some drugs. The subsequent activities of [the applicant], i.e., the selling of a large quantity of drugs, were in part determined by the conduct of the police officer.” 14.  The court acknowledged that the applicant’s conduct had been influenced by Officer V from the outset, and commented at the sentencing stage that it had not been established the applicant had sold or tried to sell drugs to anyone other than this officer.  The applicant was convicted of the attempted offence and sentenced to three years and six months’ imprisonment, as well as to the confiscation of 3000 Lithuanian Litai (“LTL”; about 857 euros [“EUR”]). 15.  The applicant appealed, complaining inter alia that V had overstepped the legitimate limits of investigation by influencing and inciting him to sell a large quantity of drugs. In his view, this warranted a lesser penalty. The Government contended that he did not dispute the finding of the first instance court that the authorisation of the model had been lawful and, consequently, that he had been involved in drug dealing previously. The parties did not request that the evidence be re-heard de novo. 16.  On 10 June 2003 the Kaunas Regional Court upheld the conviction, considering that the applicant was guilty of a completed offence, not a mere attempt. The court thus re-classified the conviction under Article 260 § 2 of the new Criminal Code and increased the sentence to nine years’ imprisonment. With respect to the applicant’s entrapment allegations, the court noted:
“[I]n establishing the persons involved in drug-dealing, [the officers] did not overstep the limits of the Criminal Conduct Simulation Model. ... [T]he police have only uncovered the ring of persons committing crimes and have discontinued their criminal activities. The officers joined in the crime that was already taking place ... Having established the group of accomplices, the officers discontinued their criminal activities, but did not influence or incite them.” 17.  The applicant lodged a cassation appeal. He alleged that the actions of V had been unlawful. He could have discontinued the crime on 21 June 2002, when the applicant had handed over the drug samples. However, V had offered to buy more drugs for a price significantly higher than their market value. The applicant alleged that V had thus provoked him into selling drugs in large quantities. According to the Government, the aim of this appeal was thus to receive a reduction in sentence. 18.  The Supreme Court partially dismissed the applicant’s cassation appeal on 14 October 2003. It held, inter alia, as follows:
“In the present case, the Criminal Conduct Simulation Model ... was applied in order to protect society and the State from the challenges posed by the consumption and illegal circulation of drugs and psychotropic substances. The model was sanctioned by the Prosecutor General, in view of the possession of information about [the applicant] selling narcotic substances. Such data ... is a lawful ground for the use of the model.
By entering into contact with the applicant and offering to buy psychotropic substances from him..., V only joined in the criminal activity of [the applicant] and uncovered his accomplice. Such actions cannot be considered to be entrapment (nusikaltimo provokavimas): it appears from the case file that [the applicant] was not subject to any pressure ... [The applicant’s] allegation that the police undercover agent induced (paskatino) a person who had never offended before to commit a serious crime is unsubstantiated. On the contrary, the use of [the model] helped stop the criminal activity.” 19.  The applicant’s conviction was again re-classified as an attempt to sell drugs in large quantities (Articles 22 § 1 and 260 § 2 of the new Criminal Code), but the sentence of nine years’ imprisonment was retained.