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We have gone through the former part of this epistle, which consists of several important doctrinal truths, contained in the three preceding chapters. We enter now on the latter part of it, in which we have the most weighty and serious exhortations that can be given. We may observe that in this, as in most others of Paul's epistles, the former part is doctrinal, and fitted to inform the minds of men in the great truths and doctrines of the gospel, the latter is practical, and designed for the direction of their lives and manners, all Christians being bound to endeavour after soundness in the faith, and regularity in life and practice. In what has gone before we have heard of Christian privileges, which are the matter of our comfort. In what follows we shall hear of Christian duties, and what the Lord our God requires of us in consideration of such privileges vouchsafed to us. The best way to understand the mysteries and partake of the privileges of which we have read before is conscientiously to practise the duties prescribed to us in what follows: as, on the other hand, a serious consideration and belief of the doctrines that have been taught us in the foregoing chapters will be a good foundation on which to build the practice of the duties prescribed in those which are yet before us. Christian faith and Christian practice mutually befriend each other. In this chapter we have divers exhortations to important duties. I. One that is more general, ver. 1. II. An exhortation to mutual love, unity, and concord, with the proper means and motives to promote them, ver. 2-16. III. An exhortation to Christian purity and holiness of life; and that both more general (ver. 17-24) and in several particular instances, ver. 25, to the end.
This is a general exhortation to walk as becomes our Christian profession. Paul was now a prisoner at Rome; and he was the prisoner of the Lord, or in the Lord, which signifies as much as for the Lord. See of this, ch. iii. 1. He mentions this once and again, to show that he was not ashamed of his bonds, well knowing that he suffered not as an evil doer: and likewise to recommend what he wrote to them with the greater tenderness and with some special advantage. It was a doctrine he thought worth suffering for, and therefore surely they should think it worthy their serious regards and their dutiful observance. We have here the petition of a poor prisoner, one of Christ's prisoners: "I therefore, the prisoner of the Lord, beseech you," &c. Considering what God has done for you, and to what a state and condition he has called you, as has been discoursed before, I now come with an earnest request to you (not to send me relief, nor to use your interest for the obtaining of my liberty, the first thing which poor prisoners are wont to solicit from their friends, but) that you would approve yourselves good Christians, and live up to your profession and calling; That you walk worthily, agreeably, suitably, and congruously to those happy circumstances into which the grace of God has brought you, whom he has converted from heathenism to Christianity. Observe, Christians ought to accommodate themselves to the gospel by which they are called, and to the glory to which they are called; both are their vocation. We are called Christians; we must answer that name, and live like Christians. We are called to God's kingdom and glory; that kingdom and glory therefore we must mind, and walk as becomes the heirs of them.
2 With all lowliness and meekness, with longsuffering, forbearing one another in love; 3 Endeavouring to keep the unity of the Spirit in the bond of peace. 4 There is one body, and one Spirit, even as ye are called in one hope of your calling; 5 One Lord, one faith, one baptism, 6 One God and Father of all, who is above all, and through all, and in you all. 7 But unto every one of us is given grace according to the measure of the gift of Christ. 8 Wherefore he saith, When he ascended up on high, he led captivity captive, and gave gifts unto men. 9 (Now that he ascended, what is it but that he also descended first into the lower parts of the earth? 10 He that descended is the same also that ascended up far above all heavens, that he might fill all things.) 11 And he gave some, apostles; and some, prophets; and some, evangelists; and some, pastors and teachers; 12 For the perfecting of the saints, for the work of the ministry, for the edifying of the body of Christ: 13 Till we all come in the unity of the faith, and of the knowledge of the Son of God, unto a perfect man, unto the measure of the stature of the fulness of Christ: 14 That we henceforth be no more children, tossed to and fro, and carried about with every wind of doctrine, by the sleight of men, and cunning craftiness, whereby they lie in wait to deceive; 15 But speaking the truth in love, may grow up into him in all things, which is the head, even Christ: 16 From whom the whole body fitly joined together and compacted by that which every joint supplieth, according to the effectual working in the measure of every part, maketh increase of the body unto the edifying of itself in love.
Here the apostle proceeds to more particular exhortations. Two he enlarges upon in this chapter:—To unity an love, purity and holiness, which Christians should very much study. We do not walk worthy of the vocation wherewith we are called if we be not faithful friends to all Christians, and sworn enemies to all sin.
I. The means of unity: Lowliness and meekness, long-suffering, and forbearing one another in love, v. 2. By lowliness we are to understand humility, entertaining mean thoughts of ourselves, which is opposed to pride. By meekness, that excellent disposition of soul which makes men unwilling to provoke others, and not easily to be provoked or offended with their infirmities; and it is opposed to angry resentments and peevishness. Long-suffering implies a patient bearing of injuries, without seeking revenge. Forbearing one another in love signifies bearing their infirmities out of a principle of love, and so as not to cease to love them on the account of these. The best Christians have need to bear one with another, and to make the best one of another, to provoke one another's graces and not their passions. We find much in ourselves which it is hard to forgive ourselves; and therefore we must not think it much if we find that in others which we think hard to forgive them, and yet we must forgive them as we forgive ourselves. Now without these things unity cannot be preserved. The first step towards unity is humility; without this there will be no meekness, no patience, or forbearance; and without these no unity. Pride and passion break the peace, and make all the mischief. Humility and meekness restore the peace, and keep it. Only by pride comes contention; only by humility comes love. The more lowly-mindedness the more like-mindedness. We do not walk worthy of the vocation wherewith we are called if we be not meek and lowly of heart: for he by whom we are called, he to whom we are called, was eminent for meekness and lowliness of heart, and has commanded us therein to learn of him.
II. The nature of that unity which the apostle prescribes: it is the unity of the Spirit, v. 3. The seat of Christian unity is in the heart or spirit: it does not lie in one set of thoughts, nor in one form and mode of worship, but in one heart and one soul. This unity of heart and affection may be said to be of the Spirit of God; it is wrought by him, and is one of the fruits of the Spirit. This we should endeavour to keep. Endeavouring is a gospel word. We must do our utmost. If others will quarrel with us, we must take all possible care not to quarrel with them. If others will despise and hate us, we must not despise and hate them. In the bond of peace. Peace is a bond, as it unites persons, and makes them live friendly one with another. A peaceable disposition and conduct bind Christians together, whereas discord and quarrelling disband and disunite their hearts and affections. Many slender twigs, bound together, become strong. The bond of peace is the strength of society. Not that it can be imagined that all good people, and all the members of societies, should be in every thing just of the same length, and the same sentiments, and the same judgment: buy the bond of peace unites them all together, with a non obstante to these. As in a bundle of rods, they may be of different lengths and different strength; but, when they are tied together by one bond, they are stronger than any, even than the thickest and strongest was of itself.
III. The motives proper to promote this Christian unity and concord. The apostle urges several, to persuade us thereto.
1. Consider how many unities there are that are the joy and glory of our Christian profession. There should be one heart; for there is one body, and one spirit, v. 4. Two hearts in one body would be monstrous. If there be but one body, all that belong to that body should have one heart. The Catholic church is one mystical body of Christ, and all good Christians make up but one body, incorporated by one charter, that of the gospel, animated by one Spirit, the same Holy Spirit who by his gifts and graces quickens, enlivens, and governs that body. If we belong to Christ, we are all actuated by one and the same Spirit, and therefore should be one. Even as you are called in one hope of your calling. Hope is here put for its object, the thing hoped for, the heavenly inheritance, to the hope of which we are called. All Christians are called to the same hope of eternal life. There is one Christ that they all hope in, and one heaven that they are all hoping for; and therefore they should be of one heart. One Lord (v. 5), that is, Christ, the head of the church, to whom, by God's appointment, all Christians are immediately subject. One faith, that is, the gospel, containing the doctrine of the Christian faith: or, it is the same grace of faith (faith in Christ) whereby all Christians are saved. One baptism, by which we profess our faith, being baptized in the name of the Father, Son, and Holy Ghost; and so the same sacramental covenant, whereby we engage ourselves to the Lord Christ. One God and Father of all, v. 6. One God, who owns all the true members of the church for his children; for he is the Father of all such by special relation, as he is the Father of all men by creation: and he is above all, by his essence, and with respect to the glorious perfections of his nature, and as he has dominion over all creatures and especially over his church, and through all, by his providence upholding and governing them: and in you all, in all believers, in whom he dwells as in his holy temple, by his Spirit and special grace. If then there be so many ones, it is a pity but there should be one more—one heart, or one soul.
3. Which is taken from Christ's great end and design in giving gifts unto men. The gifts of Christ were intended for the good of his church, and in order to advance his kingdom and interest among men. All these being designed for one common end is a good reason why all Christians should agree in brotherly love, and not envy one another's gifts. All are for the perfecting of the saints (v. 12); that is, according to the import of the original, to bring into an orderly spiritual state and frame those who had been as it were dislocated and disjointed by sin, and then to strengthen, confirm, and advance them therein, that so each, in his proper place and function, might contribute to the good of the whole.—For the work of the ministry, or for the work of dispensation; that is, that they might dispense the doctrines of the gospel, and successfully discharge the several parts of their ministerial function.—For the edifying of the body of Christ; that is, to build up the church, which is Christ's mystical body, by an increase of their graces, and an addition of new members. All are designed to prepare us for heaven: Till we all come, &c., v. 13. The gifts and offices (some of them) which have been spoken of are to continue in the church till the saints be perfected, which will not be till they all come in the unity of the faith (till all true believers meet together, by means of the same precious faith) and of the knowledge of the Son of God, by which we are to understand, not a bare speculative knowledge, or the acknowledging of Christ to be the Son of God and the great Mediator, but such as is attended with appropriation and affection, with all due honour, trust, and obedience.—Unto a perfect man, to our full growth of gifts and graces, free from those childish infirmities that we are subject to in the present world.—Unto the measure of the stature of the fulness of Christ, so as to be Christians of a full maturity and ripeness in all the graces derived from Christ's fulness: or, according to the measure of that stature which is to make up the fulness of Christ, which is to complete his mystical body. Now we shall never come to the perfect man, till we come to the perfect world. There is a fulness in Christ, and a fulness to be derived from him; and a certain stature of that fulness, and a measure of that stature, are assigned in the counsel of God to every believer, and we never come to that measure till we come to heaven. God's children, as long as they are in this world, are growing. Dr Lightfoot understands the apostle as speaking here of Jews and Gentiles knit in the unity of the faith and of the knowledge of the Son of God, so making a perfect man, and the measure of the stature of the fulness of Christ. The apostle further shows, in the following verses, what was God's design in his sacred institutions, and what effect they ought to have upon us. As, (1.) That we henceforth be no more children, &c. (v. 14); that is, that we may be no longer children in knowledge, weak in the faith, and inconstant in our judgments, easily yielding to every temptation, readily complying with every one's humour, and being at every one's back. Children are easily imposed upon. We must take care of this, and of being tossed to and fro, like ships without ballast, and carried about, like clouds in the air, with such doctrines as have no truth nor solidity in them, but nevertheless spread themselves far and wide, and are therefore compared to wind. By the sleight of men; this is a metaphor taken from gamesters, and signifies the mischievous subtlety of seducers: and cunning craftiness, by which is meant their skilfulness in finding ways to seduce and deceive; for it follows, whereby they lie in wait to deceive, as in an ambush, in order to circumvent the weak, and draw them from the truth. Note, Those must be very wicked and ungodly men who set themselves to seduce and deceive others into false doctrines and errors. The apostle describes them here as base men, using a great deal of devilish art and cunning, in order thereunto. The best method we can take to fortify ourselves against such is to study the sacred oracles, and to pray for the illumination and grace of the Spirit of Christ, that we may know the truth as it is in Jesus, and be established in it. (2.) That we should speak the truth in love (v. 15), or follow the truth in love, or be sincere in love to our fellow-christians. While we adhere to the doctrine of Christ, which is the truth, we should live in love one with another. Love is an excellent thing; but we must be careful to preserve truth together with it. Truth is an excellent thing; yet it is requisite that we speak it in love, and not in contention. These two should go together—truth and peace. (3.) That we should grow up into Christ in all things. Into Christ, so as to be more deeply rooted in him. In all things; in knowledge, love, faith, and all the parts of the new man. We should grow up towards maturity, which is opposed to being children. Those are improving Christians who grow up into Christ. The more we grow into an acquaintance with Christ, faith in him, love to him, dependence upon him, the more we shall flourish in every grace. He is the head; and we should thus grow, that we may thereby honour our head. The Christian's growth tends to the glory of Christ. (4.) We should be assisting and helpful one to another, as members of the same body, v. 16. Here the apostle makes a comparison between the natural body and Christ's mystical body, that body of which Christ is the head: and he observes that as there must be communion and mutual communications of the members of the body among themselves, in order to their growth and improvement, so there must be mutual love and unity, together with the proper fruits of these, among Christians, in order to their spiritual improvement and growth in grace. From whom, says he (that is, from Christ their head, who conveys influence and nourishment to every particular member), the whole body of Christians, fitly joined together and compacted (being orderly and firmly united among themselves, every one in his proper place and station), by that which every joint supplies (by the assistance which every one of the parts, thus united, gives to the whole, or by the Spirit, faith, love, sacraments, &c., which, like the veins and arteries in the body, serve to unite Christians to Christ their head, and to one another as fellow-members), according to the effectual working in the measure of every part (that is, say some, according to the power which the Holy Ghost exerts to make God's appointed means effectual for this great end, in such a measure as Christ judges to be sufficient and proper for every member, according to its respective place and office in the body; or, as others, according to the power of Christ, who, as head, influences and enlivens every member; or, according to the effectual working of every member, in communicating to others of what it has received, nourishment is conveyed to all in their proportions, and according to the state and exigence of every part) makes increase of the body, such an increase as is convenient for the body. Observe, Particular Christians receive their gifts and graces from Christ for the sake and benefit of the whole body. Unto the edifying of itself in love. We may understand this two ways:—Either that all the members of the church may attain a greater measure of love to Christ and to one another; or that they are moved to act in the manner mentioned from love to Christ and to one another. Observe, Mutual love among Christians is a great friend to spiritual growth: it is in love that the body edifies itself; whereas a kingdom divided against itself cannot stand.
17 This I say therefore, and testify in the Lord, that ye henceforth walk not as other Gentiles walk, in the vanity of their mind, 18 Having the understanding darkened, being alienated from the life of God through the ignorance that is in them, because of the blindness of their heart: 19 Who being past feeling have given themselves over unto lasciviousness, to work all uncleanness with greediness. 20 But ye have not so learned Christ; 21 If so be that ye have heard him, and have been taught by him, as the truth is in Jesus: 22 That ye put off concerning the former conversation the old man, which is corrupt according to the deceitful lusts; 23 And be renewed in the spirit of your mind; 24 And that ye put on the new man, which after God is created in righteousness and true holiness. 25 Wherefore putting away lying, speak every man truth with his neighbour: for we are members one of another. 26 Be ye angry, and sin not: let not the sun go down upon your wrath: 27 Neither give place to the devil. 28 Let him that stole steal no more: but rather let him labour, working with his hands the thing which is good, that he may have to give to him that needeth. 29 Let no corrupt communication proceed out of your mouth, but that which is good to the use of edifying, that it may minister grace unto the hearers. 30 And grieve not the holy Spirit of God, whereby ye are sealed unto the day of redemption. 31 Let all bitterness, and wrath, and anger, and clamour, and evil speaking, be put away from you, with all malice: 32 And be ye kind one to another, tenderhearted, forgiving one another, even as God for Christ's sake hath forgiven you.
(2.) These Christians must distinguish themselves from such Gentiles: You have not so learned Christ, v. 20. It may be read, But you not so; you have learned Christ. Those who have learned Christ are saved from the darkness and defilement which others lie under; and, as they know more, they are obliged to live in a better manner than others. It is a good argument against sin that we have not so learned Christ. Learn Christ! Is Christ a book, a lesson, a way, a trade? The meaning is, "You have not so learned Christianity—the doctrines of Christ and the rules of life prescribed by him. Not so as to do as others do. If so be, or since, that you have heard him (v. 21), have heard his doctrine preached by us, and have been taught by him, inwardly and effectually, by his Spirit." Christ is the lesson; we must learn Christ: and Christ is the teacher; we are taught by him. As the truth is in Jesus. This may be understood two ways: either, "You have been taught the real truth, as held forth by Christ himself, both in his doctrine and in his life." Or thus, "The truth has made such an impression on your hearts, in your measure, as it did upon the heart of Jesus." The truth of Christ then appears in its beauty and power, when it appears as in Jesus.
2. Another branch of the general exhortation follows in those words, That you put off, concerning the former conversation, the old man, &c., v. 22-24. "This is a great part of the doctrine which has been taught you, and which you have learned." Here the apostle expresses himself in metaphors taken from garments. The principles, habits, and dispositions of the soul must be changed, before there can be a saving change of the life. There must be sanctification, which consists of these two things:— (1.) The old man must be put off. The corrupt nature is called a man, because, like the human body, it consists of divers parts, mutually supporting and strengthening one another. It is the old man, as old Adam, from whom we derive it. It is bred in the bone, and we brought it into the world with us. It is subtle as the old man; but in all God's saints decaying and withering as an old man, and ready to pass away. It is said to be corrupt; for sin in the soul is the corruption of its faculties: and, where it is not mortified, it grows daily worse and worse, and so tends to destruction. According to the deceitful lusts. Sinful inclinations and desires are deceitful lusts: they promise men happiness, but render them more miserable, and if not subdued and mortified betray them into destruction. These therefore must be put off as an old garment that we should be ashamed to be seen in: they must be subdued and mortified. These lusts prevailed against them in their former conversation, that is, during their state of unregeneracy and heathenism. (2.) The new man must be put on. It is not enough to shake off corrupt principles, but we must be actuated by gracious ones. We must embrace them, espouse them, and get them written on our hearts: it is not enough to cease to do evil, but we must learn to do well. "Be renewed in the spirit of your mind (v. 23); that is, use the proper and prescribed means in order to have the mind, which is a spirit, renewed more and more." And that you put on the new man, v. 24. By the new man is meant the new nature, the new creature, which is actuated by a new principle, even regenerating grace, enabling a man to lead a new life, that life of righteousness and holiness which Christianity requires. This new man is created, or produced out of confusion and emptiness, by God's almighty power, whose workmanship it is, truly excellent and beautiful. After God, in imitation of him, and in conformity to that grand exemplar and pattern. The loss of God's image upon the soul was both the sinfulness and misery of man's fallen state; and that resemblance which it bears to God is the beauty, the glory, and the happiness, of the new creature. In righteousness towards men, including all the duties of the second table; and in holiness towards God, signifying a sincere obedience to the commands of the first table; true holiness in opposition to the outward and ceremonial holiness of the Jews. We are said to put on this new man when, in the use of all God's appointed means, we are endeavouring after this divine nature, this new creature. This is the more general exhortation to purity and holiness of heart and life.
II. The apostle proceeds to some things more particular. Because generals are not so apt to affect, we are told what are those particular limbs of the old man that must be mortified, those filthy rags of the old nature that must be put off, and what are the peculiar ornaments of the new man wherewith we should adorn our Christian profession. 1. Take heed of lying, and be ever careful to speak the truth (v. 25): "Wherefore, since you have been so well instructed in your duty, and are under such obligations to discharge it, let it appear, in your future behaviour and conduct, that there is a great and real change wrought in you, particularly by putting away lying." Of this sin the heathen were very guilty, affirming that a profitable lie was better than a hurtful truth; and therefore the apostle exhorts them to cease from lying, from every thing that is contrary to truth. This is a part of the old man that must be put off; and that branch of the new man that must be put on in opposition to it is speaking the truth in all our converse with others. It is the character of God's people that they are children who will not lie, who dare not lie, who hate and abhor lying. All who have grace make conscience of speaking the truth, and would not tell a deliberate lie for the greatest gain and benefit to themselves. The reason here given for veracity is, We are members one of another. Truth is a debt we owe to one another; and, if we love one another, we shall not deceive nor lie one to another. We belong to the same society or body, which falsehood or lying tends to dissolve; and therefore we should avoid it, and speak truth. Observe, Lying is a very great sin, a peculiar violation of the obligations which Christians are under, and very injurious and hurtful to Christian society. 2. "Take heed of anger and ungoverned passions. Be you angry, and sin not," v. 26. This is borrowed from the LXX. translation of Ps. iv. 4, where we render it, Stand in awe, and sin not. Here is an easy concession; for as such we should consider it, rather than as a command. Be you angry. This we are apt enough to be, God knows: but we find it difficult enough to observe the restriction, and sin not. "If you have a just occasion to be angry at any time, see that it be without sin; and therefore take heed of excess in your anger." If we would be angry and not sin (says one), we must be angry at nothing but sin; and we should be more jealous for the glory of God than for any interest or reputation of our own. One great and common sin in anger is to suffer it to burn into wrath, and then to let it rest; and therefore we are here cautioned against that. "If you have been provoked and have had your spirits greatly discomposed, and if you have bitterly resented any affront that has been offered, before night calm and quiet your spirits, be reconciled to the offender, and let all be well again: Let not the sun go down upon your wrath. If it burn into wrath and bitterness of spirit, O see to it that you suppress it speedily." Observe, Though anger in itself is not sinful, yet there is the upmost danger of its becoming so if it be not carefully watched and speedily suppressed. And therefore, though anger may come into the bosom of a wise man, it rests only in the bosom of fools. Neither give place to the devil, v. 27. Those who persevere in sinful anger and in wrath let the devil into their hearts, and suffer him to gain upon them, till he bring them to malice, mischievous machinations, &c. "Neither give place to the calumniator, or the false accuser" (so some read the words); that is, "let your ears be deaf to whisperers, talebearers, and slanderers." 3. We are here warned against the sin of stealing, the breach of the eighth commandment, and advised to honest industry and to beneficence: Let his that stole steal no more, v. 28. It is a caution against all manner of wrong-doing, by force or fraud. "Let those of you who, in the time of your gentilism, have been guilty of this enormity, be no longer guilty of it." But we must not only take heed of the sin, but conscientiously abound in the opposite duty: not only not steal, but rather let him labour, working with his hands the thing that is good. Idleness makes thieves. So Chrysostom, To gar kleptein argias estin.—Stealing is the effect of idleness. Those who will not work, and who are ashamed to beg, expose themselves greatly to temptations to thievery. Men should therefore be diligent and industrious, not in any unlawful way, but in some honest calling: Working the thing which is good. Industry, in some honest way, will keep people out of temptation of doing wrong. But there is another reason why men ought to be industrious, namely, that they may be capable of doing some good, as well as that they may be preserved from temptation: That he may have to give to him that needeth. They must labour not only that they may live themselves, and live honestly, but they may distribute for supplying the wants of others. Observe, Even those who get their living by their labour should be charitable out of their little to those who are disabled for labour. So necessary and incumbent a duty is it to be charitable to the poor that even labourers and servants, and those who have but little for themselves, must cast their mite into the treasury. God must have his dues and the poor are his receivers. Observe further, Those alms that are likely to be acceptable to God must not be the produce of unrighteousness and robbery, but of honesty and industry. God hates robbery for burnt-offerings. 4. We are here warned against corrupt communication; and directed to that which is useful and edifying, v. 29. Filthy and unclean words and discourse are poisonous and infectious, as putrid rotten meat: they proceed from and prove a great deal of corruption in the heart of the speaker, and tend to corrupt the minds and manners of others who hear them; and therefore Christians should beware of all such discourse. It may be taken in general for all that which provokes the lusts and passions of others. We must not only put off corrupt communications, but put on that which is good to the use of edifying. The great use of speech is to edify those with whom we converse. Christians should endeavour to promote a useful conversation: that it may minister grace unto the hearers; that it may be good for, and acceptable to, the hearers, in the way of information, counsel, pertinent reproof, or the like. Observe, It is the great duty of Christians to take care that they offend not with their lips, and that they improve discourse and converse, as much as may be, for the good of others. 5. Here is another caution against wrath and anger, with further advice to mutual love and kindly dispositions towards each other, v. 31, 32. By bitterness, wrath, and anger, are meant violent inward resentment and displeasure against others: and, by clamour, big words, loud threatenings, and other intemperate speeches, by which bitterness, wrath, and anger, vent themselves. Christians should not entertain these vile passions in their hearts not be clamorous with their tongues. Evil speaking signifies all railing, reviling, and reproachful speeches, against such as we are angry with. And by malice we are to understand that rooted anger which prompts men to design and to do mischief to others. The contrary to all this follows: Be you kind one to another. This implies the principle of love in the heart, and the outward expressions of it, in an affable, humble, courteous behaviour. It becomes the disciples of Jesus to be kind one to another, as those who have learned, and would teach, the art of obliging. Tender-hearted; that is, merciful, and having tender sense of the distresses and sufferings of others, so as to be quickly moved to compassion and pity. Forgiving one another. Occasions of difference will happen among Christ's disciples; and therefore they must be placable, and ready to forgive, therein resembling God himself, who for Christ's sake hath forgiven them, and that more than they can forgive one another. Note, With God there is forgiveness; and he forgives sin for the sake of Jesus Christ, and on account of that atonement which he has made to divine justice. Note again, Those who are forgiven of God should be of a forgiving spirit, and should forgive even as God forgives, sincerely and heartily, readily and cheerfully, universally and for ever, upon the sinner's sincere repentance, as remembering that they pray, Forgive us our trespasses, as we forgive those who trespass against us. Now we may observe concerning all these particulars that the apostle has insisted on that they belong to the second table, whence Christians should learn the strict obligations they are under to the duties of the second table, and that he who does not conscientiously discharge them can never fear nor love God in truth and in sincerity, whatever he may pretend to.
In the midst of these exhortations and cautions the apostle interposes that general one, And grieve not the Holy Spirit of God, v. 30. By looking to what precedes, and to what follows, we may see what it is that grieves the Spirit of God. In the previous verses it is intimated that all lewdness and filthiness, lying, and corrupt communications that stir up filthy appetites and lusts, grieve the Spirit of God. In what follows it is intimated that those corrupt passions of bitterness, and wrath, and anger, and clamour, and evil speaking, and malice, grieve this good Spirit. By this we are not to understand that this blessed Being could properly be grieved or vexed as we are; but the design of the exhortation is that we act not towards him in such a manner as is wont to be grievous and disquieting to our fellow-creatures: we must not do that which is contrary to his holy nature and his will; we must not refuse to hearken to his counsels, nor rebel against his government, which things would provoke him to act towards us as men are wont to do towards those with whom they are displeased and grieved, withdrawing themselves and their wonted kindness from such, and abandoning them to their enemies. O provoke not the blessed Spirit of God to withdraw his presence and his gracious influences from you! It is a good reason why we should not grieve him that by him we are sealed unto the day of redemption. There is to be a day of redemption; the body is to be redeemed from the power of the grave at the resurrection-day, and then God's people will be delivered from all the effects of sin, as well as from all sin and misery, which they are not till rescued out of the grave: and then their full and complete happiness commences. All true believers are sealed to that day. God has distinguished them from others, having set his mark upon them; and he gives them the earnest and assurance of a joyful and glorious resurrection; and the Spirit of God is the seal. Wherever that blessed Spirit is as a sanctifier, he is the earnest of all the joys and glories of the redemption-day; and we should be undone should God take away his Holy Spirit from us.

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Florida is an at-will employment state. The doctrine often allows employers to end employment relationships without suffering any negative consequences besides paying unemployment compensation benefits.
retaliating against an employee for making a valid claim for compensation or attempting to claim compensation under §440.205 Florida Statutes of Florida Workers’ Compensation Act.
This blog will address the first element of a §440.205 retaliatory discharge claim.
Florida does not recognize a common law tort for retaliatory discharge. Scott v. Otis Elevator Co., 572 So.2d 902, 903 (Fla. 1990). Hence, the statute is the only remedy available to address an employer’s challenged conduct, and since it is in derogation of common law, it must be construed strictly. Carlile v. Game & Fresh Water Fish Comm’n, 354 So.2d 362 (Fla. 1977); Jenks v. State, 582 So.2d 676 (Fla. 1st DCA), review denied, 589 So.2d 292 (Fla. 1991).
In order to prevail on a retaliatory discharge claim under §440.205 of the Florida Workers’ Compensation Laws, Chapter 440 of the Florida Statutes, the employee must prove: (1) he engaged in a statutorily protected activity; (2) an adverse employment action occurred; and (3) the adverse action was causally related to the employee’s protected activity. Russell v. KSL Hotel Corp., 887 So.2d 372, 379 (Fla. 3d DCA 2004); and Humphrey v. Sears, Roebuck, and Co., 192 F. Supp. 2d 1371, 1374 (S.D. Fla. 2002).
In Naboa v. The Sygma Network, Inc., United States District Court, M.D. Florida, Orlando Division 2012), the court rejected the Defendant Employer’s argument that the statute or case law compel an employee to file an official workers’ compensation Petition for Benefits to be protected by the retaliation statute. Instead, it found that Plaintiff engaged in protected activity when he reported his work related injury, filled out the Defendant’s corresponding paperwork, and was taken to a clinic by supervisors pursuant to Defendant’s established procedure for workers’ compensation injuries.
This standard is important because Petitions are not always filed in workers’ compensation cases, including those involving significant injuries. When employers and their workers’ compensation insurance companies furnish benefits in accordance with the law, there is no need to file a Petition. Hence, to require a Petition to invoke the protections of §440.205 would cause unnecessary litigation and hardship.
It is not uncommon for employers to challenge the compensability of accidents. In Smalbein v. Volusia County School Board, 801 So.2d 169 (Fla. 5th DCA 2001), the employee involved in a car crash claimed workers’ compensation benefits. The employer denied responsibility under the “going or coming” rule and prevailed on this defense in the workers’ compensation forum. Thereafter, the employee filed a §440.205 civil action against the employer, asserting retaliation for removing his name from the substitute teacher list. The trial court granted the Employer Defendant’s motion for summary judgment, concluding that, by losing the underlying workers’ compensation case, the Plaintiff was not engaged in a statutorily protected activity.
interpreting “valid” as “compensable” thwarts the purpose and intent of the Legislature to prohibit retaliation whereas construing a valid claim as a meritorious one provides the proper protection to injured employees seeking benefits without over-extending the protection to employees who file frivolous claims. 801 So.2d @ 170.
These cases demonstrate a reasonable reluctance against chilling an employee’s right to seek workers’ compensation benefits in meritorious cases.
Stay tuned for additional blogs on the subject of §440.205 retaliation claims.


On March 27, 2019, the United States Supreme Court decided Lorenzo v. SEC. Many eyes were on this case, because of its potential to have a significant impact on the scope of securities fraud liability. Ultimately, the Supreme Court found in favor of the Securities Exchange Commission and held that “dissemination of false or misleading statements with intent to defraud can fall within the scope of Rules 10b–5(a) and (c), as well as the relevant statutory provisions, even if the disseminator did not “make” the statements and consequently falls outside Rule 10b–5(b).” This decision clarified what the holding of Janus Capital Group, Inc. v. First Derivative Traders (2011) covers.
Lorenzo v. SEC involved a person named Francis Lorenzo. While Lorenzo had been serving as the director of investment banking at the SEC-registered brokerage firm Charles Vista, LLC, he knowingly sent two false and misleading emails (that had been asked for, supplied by, and approved by Lorenzo’s manager and boss) to prospective investors. The Securities Exchange Commission (SEC) later brought enforcement actions against the broker-dealer, its owner, and Lorenzo. The SEC ended up finding that Lorenzo had violated Rule 10b–5, §10(b) of the Exchange Act, and §17(a)(1) of the Securities Act by sending false and misleading statements to investors with intent to defraud. However, on appeal, the District of Columbia Circuit court then ruled that while the SEC could not find Lorenzo to have violated subsection (b) of Rule 10b-5 because Lorenzo was not a “maker” as defined by Janus, the SEC was indeed correct in finding Lorenzo liable under §10(b), §17(a)(1), and other subsections of Rule 10b-5—namely, subsections (a) and (c). And under Janus, the “maker” of a statement is the person or entity with ultimate authority over the statement, including its content and whether and how to communicate it.
The Supreme Court ultimately granted cert and found that those who do not “make” statements (as Janus defined “make”), but who disseminate false or misleading statements to potential investors with the intent to defraud, can nevertheless be found to have violated the other parts of Rule 10b–5, subsections (a) and (c) of Rule 10b-5, as well as related provisions of the securities laws. The decision in Lorenzo makes clear that Janus only addressed the “making” of a statement and said nothing about the application of Rule 10b-5 to people disseminating false or misleading information. Therefore, Janus’s precluding of primary liability still applies for situations in which an individual neither makes nor disseminates false information.
Lorenzo’s defense in this case centered on the argument that the only way for a person to be liable for false statements is through the provisions of the securities laws—such as Rule 10b–5(b)—that refer specifically to false statements. The Supreme Court majority, however, did not buy the defendant’s argument that each of these provisions should be read as governing different, mutually exclusive, spheres of conduct. According to the majority opinion, the courts and the SEC have long recognized considerable overlap among the subsections of Rule 10b-5 and related provisions of the securities laws. Ultimately, the Supreme Court ruled against Lorenzo.
The Supreme Court emphasized in Lorenzo that the securities laws’ fundamental policy is to protect the market from the spread of misinformation. Following the Lorenzo decision, the reach of the Janus limitation that only those who “make” a false statement are primarily liable under 10b-5(b) is restricted.
It will be interesting and crucial to keep an eye out for how the lower circuit courts now implement Lorenzo and the concept of “dissemination.” Previously, there had been a circuit split regarding whether material misstatements that are not actionable under Rule 10b-5(b) (because the defendant did not “make” them) can nonetheless form the basis for liability under Rule 10b-5(a) and (c). Some of the circuits (such as the Ninth Circuit and Second Circuit) had long held that alleged frauds solely involving material misstatements or omissions could not be pursued under provisions other than Rule 10b-5(b). Post-Lorenzo, those federal circuits will have to change their tune and adhere to the new legal rule.
Lorenzo expanded the umbrella of people who are able to potentially incur primary liability under the securities laws. In essence, any person who is responsible for communicating to investors—even if he or she is not individually responsible for the content of those communications—may incur primary liability for disseminating information they know to be false or misleading.


While claims among patents in the same family can be very similar, such similarities are not enough for the statutory estoppel provision of 35 U.S.C. §325(e)(1) to apply. In Telebrands Corp. v. Tinnus Enterprises, LLC, the PTAB interpreted the scope of 35 U.S.C. § 325(e)(1) as it applies to decisions involving similar, but not the exact same, patent claims and held that it applies only to final decisions involving the same patent. PGR2017-00015 (PTAB March 26, 2018) (Paper 26).
In this case, the PTAB had previously issued a Final Written Decision in PGR2016-00031 involving a related patent and concluded that the challenged claims were not indefinite. See, PGR2016-00031 slip op. at 15. In the current proceeding, the Patent Owner argued that the only issue presented was whether the “press-against” claim language common to the claims in both patents was indefinite. Given that the Board had previously ruled that this language was not indefinite, the Patent Owner contended that the current proceeding should be terminated.
The Patent Owner advanced two arguments in support of terminating the proceedings. First, the Patent Owner argued that under Section 325(e)(1), the PTAB’s decision in the related case barred the second proceeding. Second, the Patent Owner argued that the Board should exercise its discretion to terminate the proceeding and vacate the Decision on Institution because it would conserve resources and reduce the risk of inconsistent judgments.
The petition in a post-grant review of a claim in a patent under this chapter that results in a final written decision under section 328(a) … may not request or maintain a proceeding before the Office with respect to that claim on any ground that the petitioner raised or reasonably could have raised during that post-grant review.
35 U.S.C. § 325(e)(1) (emphasis added).
The Board found the plain language of Section 325(e)(1) foreclosed the relief sought by the Patent Owner. It explained that “[a]lthough there may be similarities between the claim of the ’612 patent at issue and the claims [at issue in the prior proceeding], there can be no dispute that no final written decision has issued with respect to any claim of the ’612 patent. PGR2017-00015, slip op. at 3. Thus, “under its plain language, §325(e)(1) does not apply.” Id. (citing Conn. Nat’l Bank v. Germain, 503 U.S. 249, 254 (1992) (“[C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there … when the words of a statute are unambiguous, then … the judicial inquiry is complete.”).
Second, the Board declined to decide whether it had discretion to terminate proceedings in general, and further declined, given the current circumstances, to terminate the proceedings in this case. The Board noted that the case was “well along.” Id. Briefing was nearly complete, and resources had been expended in the related proceeding concerning the similar claim limitation. As such, the Board was “not persuaded that any potential savings would be as substantial as the Patent Owner proposes.” Id. On the other hand, “termination would ignore the differences that exist between the record in this proceeding and the prior proceeding.” Id. The Board cited two declarations of record in the current case that were not submitted in the prior case and noted that the Petitioner had not yet had an opportunity to address this new evidence. “Thus, interests of fairness and due process weigh heavily against this relief.” Id. at 4.
Sue Gerber is an experienced IP litigator who handles complicated disputes in the district courts and before the Federal Circuit, other Circuit Courts of Appeals, and the United States Supreme Court. Her experience also includes litigating antitrust/unfair competition claims brought in the context of patent infringement litigation.


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Elizabeth Ritvo has more than 30 years of broad experience in complex commercial litigation and has also counseled and represented newspapers, television stations, publishers and other media in libel, invasion of privacy, access, prior restraint, First Amendment and copyright matters before state and federal trial and appellate courts. Liz has also served as an arbitrator for the American Arbitration Association for business and construction disputes.
Liz has been listed in The Best Lawyers in America in the area of First Amendment Law, was recognized as its 2017 “Lawyer of the Year” First Amendment Law in Boston and was named one of 2013's Top Women of Law by Massachusetts Lawyers Weekly.
Worman, et al. v. Healy (Attorney General U.S. First Circuit Court, No. 18-1545). Co-counsel for faith-based organizations on amicus brief supporting the Commonwealth and urging the Court to affirm District Court’s decision upholding Massachusetts Assault Weapons ban.
Committee for Public Services, et al. v. Attorney General of Massachusetts et al., 480 Mass. 700 (2018). Co-counsel for the Boston Bar Association on amicus brief in a case involving appropriate judicial measures to address prosecutorial misconduct in Amherst drug lab cases.
Bridgeman v. District Attorney for the Suffolk District, et al. 476 Mass 298 (2017). Co-counsel for the Boston Bar Association on amicus brief urging the court to vacate all outstanding drug convictions for which state drug-lab employee Annie Dookhan was the primary or secondary chemist.
Billingslea v. Commonwealth of Massachusetts (SUCV 2010-10103). Represented newspaper in gaining access to exhibits in sexually dangerous person civil commitment proceedings where the Superior Court found these were judicial records available for public inspection.
LaChance v. Boston Herald, et al., 78 Mass. App. Ct. 910 (2011). Defended newspaper in defamation case where Appeals Court made expansive application of limited purpose public figure status to plaintiff inmate. Grant of summary judgment affirmed.
Monahan v. The Boston Herald, Howard L. Carr and O’Ryan Johnson, (Mass. Superior Court, MICV 2006-03222). Defended newspaper, its columnist and its reporter in defamation case brought by former city selectman and chairman of state Civil Service Commission. Summary judgment granted on grounds that publications were either protected opinion, substantially true or published without actual malice.
Safe Haven, et al. v. Charles “Chuck” Turner, Diane Wilkerson, Boston Herald, Inc., Robert Brown and City of Boston Inspectional Services Department, (Mass. Superior Court, SUCV 2007-02247). Defended newspaper in defamation case brought by operators of sober housing against the newspaper, a city councilor and a state senator, among others. The court noted that defense of defamation claims comes at significant cost to the institution of the press and thus that courts take a more liberal position with respect to motions to dismiss in this context. Motion to dismiss allowed.
Commonwealth v. Entwistle, (Mass. Superior Court, Framingham Division, No. 0649-CR-0512). Represented newspaper in unsealing search warrant papers in connection with defendant Neil Entwistle and the murder of his wife and child.
Islamic Society of Boston, et al. v. Boston Herald, Inc. et al., (Mass Superior Court, SUCV-05-4637). Defended newspaper against defamation claim brought by Islamic Society of Boston against client newspaper and others. All claims dropped and case dismissed with prejudice.
Meuse v. Fox Television Stations, Inc., et al., 2008 WL 2228865 (Mass. Super.). Defended television station in defamation case brought by father who was focus of nationwide manhunt, after he disappeared with his daughter in custody dispute and was subject of television broadcast. Summary judgment granted on all counts.
Yohe v. Nugent, et al., 321 F. 3d 35 (1st Circuit, 2003). Defended newspaper in defamation case in which First Circuit adopted a favorable, in-depth analysis of the Massachusetts privilege for fair reports of governmental activity. Grant of summary judgment affirmed.
Unsealed pleadings in church sexual abuse cases in Massachusetts state courts.
The Boston Herald v. Sharpe, 432 Mass. 593 (2000). Represented newspaper in unsealing judicial records in a case in which Supreme Judicial Court of Massachusetts recognized that public right of access to judicial records in civil cases is substantially the same as the broad right of access to judicial records in criminal cases.
Peckham v. Boston Herald, Inc., 48 Mass. App. 282 (1999). Defended newspaper in invasion of privacy case in which Massachusetts Appeals Court recognized that the media are privileged against claims for invasion of privacy when a publication falls within a broad category of matters of “legitimate public concern.” Grant of summary judgment affirmed.
Sprint Spectrum L.P. v. Town of Easton, 982 F. Supp. 47 (D. Mass. 1997). Represented major telecommunications carrier where court found that town violated Civil Rights Act, 42 U.S.C. 1983 by denying carrier its rights under the Telecommunications Act of 1996. Summary judgment granted and injunction entered directing town to issue special permit for construction of telecommunications tower.
Rielly v. News Group Boston, Inc. et al., 38 Mass. App. Ct. 909 (1995). Represented newspaper in defamation case brought by daughter of president of union where Appeals Court found phrase “on the pad” had to be considered in context of entire article and, in context, was not capable of defamatory meaning. Grant of summary judgment affirmed.
Boston Herald, Inc., et al. v. Superior Court Department of the Trial Court, 421 Mass. 502 (1995). Represented newspaper in matter involving access to hospital arraignment in which Supreme Judicial Court recognized that the public right of access to judicial proceedings was the same, whether proceedings were held in traditional courtroom or in non-traditional settings.
Milgroom v. News Group Boston, Inc., 412 Mass. 9 (1992). Defended newspaper in defamation case brought by state judge where plaintiff failed to establish actual malice. Grant of summary judgment affirmed by Supreme Judicial Court.
Selected by her peers for inclusion in The Best Lawyers in America© in the fields of First Amendment Law and First Amendment Litigation (2009-2019) and as its 2017 “Lawyer of the Year First Amendment Law in Boston"

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1. The case originated in an application (no. 19327/13) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Nikolay Yuryevich Kavkazskiy (“the applicant”), on 31 January 2013.
2. The applicant was represented by Mr A.V. Babushkin and Mr S.A. Minenkov, lawyers practising in Moscow. The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.
3. The applicant complained that his arrest and pre-trial detention had not been based on relevant and sufficient reasons and alleged that various aspects of his detention had amounted to degrading treatment.
4. On 10 September 2013 the application was communicated to the Government and granted priority under Rule 41 of the Rules of Court.
5. The applicant was born in 1986 and lives in Moscow.
6. The background facts relating to the planning, conduct and dispersal of the public event at Bolotnaya Square are set out in more detail in Frumkin v. Russia (no. 74568/12, §§ 7-65, 5 January 2016) and Yaroslav Belousov Russia (nos. 2653/13 and 60980/14, §§ 7-33, 4 October 2016). The parties’ submissions on the circumstances directly relevant to the present case are set out below.
7. On 6 May 2012 a public event entitled the “March of Millions” was held in central Moscow to protest against the allegedly rigged presidential elections. The event had been approved by the city authorities in the form of a march followed by a meeting at Bolotnaya Square which was supposed to end at 7.30 p.m. The march was peaceful and held without any disruptions, but when the marchers arrived at Bolotnaya Square it turned out that barriers installed by the police had narrowed the entrance to the meeting venue allegedly restricting the space allocated for the meeting. To control the crowd the police cordon forced the protestors to remain within the barriers. There were numerous clashes between the police and protesters. At 5.30 p.m. the police ordered that the meeting finish early and began to disperse the participants. It took them about two hours to clear the protestors from the square.
8. On the same day the Moscow city department of the Investigative Committee of the Russian Federation opened criminal proceedings to investigate suspected acts of mass disorder and violence against the police (Articles 212 § 2 and 318 § 1 of the Criminal Code). On 18 May 2012 the file was transferred to the headquarters of the Investigative Committee for further investigation. On 28 May 2012 an investigation was also launched into the criminal offence of organising acts of mass disorder (Article 212 § 1 of the Criminal Code). The two criminal cases were joined on the same day.
9. The applicant is a human rights activist and a lawyer of an NGO, the Committee for Civil Rights (Комитет за гражданские права). On 6 May 2012 he arrived at Bolotnaya Square to participate in the demonstration and during its dispersal kicked an unidentified police officer in the arm. After these events the applicant continued to live at his usual address and to pursue his normal activities, including taking part in authorised public events.
10. On 25 July 2012 the applicant’s flat was searched; the police seized the applicant’s clothes, domestic and international passports, other documents and his computer. On the same day the applicant was arrested on suspicion of having participated in acts of mass disorder on 6 May 2012.
“The prosecution bodies suspect [the applicant] of having committed a serious offence punishable with imprisonment of over two years.
… the court concludes that there are grounds to consider that [the applicant], if at liberty, is likely to abscond from the investigation and trial, to act in person or through proxy with the aim of avoiding criminal liability, to continue [his] criminal activity, to destroy evidence and otherwise obstruct the investigation, which is at its initial phase.
Operational-search activities are now underway, aimed at establishing [the applicant’s] possible connections with other active participants of the mass disorders which took place at Bolotnaya Square in Moscow and its environs, therefore, if at liberty, [he] might co-ordinate his position with unidentified accomplices.
12. The District Court dismissed an application by the applicant for an alternative preventive measure, such as house arrest, and stated that his state of health did not preclude him from detention. On 5 September 2012 the Moscow City Court upheld the detention order.
13. On 2 August 2012 the applicant was charged with the offence laid down in Article 212 § 2 of the Criminal Code (participation in mass disorder accompanied by violence) and accused, in particular, of having kicked a police officer.
14. On 24 September 2012 the Basmannyy District Court extended the applicant’s detention until 6 November 2012, having found that the circumstances that had justified the detention order had not changed. The District Court dismissed the applicant’s allegations of lack of medical assistance in the remand prison as unsubstantiated. It stated that the applicant’s state of health was satisfactory and did not warrant his release. On 15 October 2012 the Moscow City Court upheld the extension order.
15. On 31 October 2012 the Basmannyy District extended the applicant’s detention until 6 March 2013 on essentially the same grounds as earlier. On 26 November 2012 the Moscow City Court upheld the extension order.
16. On 4 March 2013 the Basmannyy District Court examined a new application for an extension of the applicant’s pre-trial detention. The applicant complained of exacerbation of chronic diseases in detention. He asked to be released on bail and presented personal guarantees from two prominent public figures, including a human-rights activist, who vouched for him. On the same day the District Court extended the applicant’s detention until 6 July 2013. It considered that a milder preventive measure, including release on bail, would not prevent the applicant from obstructing the proper administration of justice. The applicant’s allegations in respect of the deterioration of his health were dismissed; the court relied on the medical statement from the remand prison, according to which his health was satisfactory. On 17 April 2013 the Moscow City Court upheld the extension order.
17. On 24 May 2013 the applicant’s criminal case was transferred to the Zamoskvoretskiy District Court of Moscow for the determination of criminal charges.
18. On 6 June 2013 that court granted another extension of the applicant’s detention, until 24 November 2013. The decision concerned eleven defendants. Along with the seriousness of the charges, the court based its decision on the findings that “the reasons which had initially warranted the detention have not changed” and that “no other measures of restraint would secure the aims and goals of the judicial proceedings”. The Moscow City Court upheld this extension order on 2 July 2013.
19. On 2 August 2013 the Presidium of the Moscow City Court examined the supervisory appeal lodged by the Ombudsman of the Russian Federation. It rectified the extension orders of 24 September and 31 October 2012, and 4 March and 6 June 2013 as well as the Moscow City Court’s decision of 15 October 2012. The Presidium found that the applicant’s detention had been unjustified and that the detention orders had not been supported by relevant facts; it also took account of his worsening health. The Presidium lifted the detention order and placed the applicant under the house arrest until 2 October 2013 under the following conditions: prohibition from leaving his house or changing his place of residence; prohibition from communicating with co-defendants and witnesses; prohibition from sending and receiving correspondence; prohibition from using any means of communication. On the same day the applicant was released from pre-trial detention.
20. On 26 September 2013 the Zamoskvoretskiy District Court extended the applicant’s house arrest until 2 January 2014. It referred to the seriousness of the charges and considered that as a human-rights activist the applicant could communicate with different authorities and persons and thus obstruct the course of criminal proceedings. On 28 October 2013 the Moscow City Court upheld this decision on appeal.
21. On 18 December 2013 the State Duma passed the Amnesty Act, which exempted people suspected and accused of criminal offences under Article 212 §§ 2 and 3 of the Criminal Code from criminal liability.
22. On 19 December 2013 the applicant applied for the termination of the criminal proceedings against him under the Amnesty Act. On the same day the Zamoskvoretsky District Court granted his application and lifted the house arrest.
23. Prior to his detention, the applicant was diagnosed with an organic lesion of the central nervous system, hypertensive syndrome, tonsillitis, chronic gastritis, atopic dermatitis, osteochondrosis and dorsopathy (back pain). According to the applicant, these diseases required regular medical supervision, diet and lifestyle adjustments.
24. From 27 July 2012 to 2 August 2013 the applicant was held in remand prison IZ-77/2 in Moscow. Upon his admission to the prison he underwent a health check which revealed no health issues except atopic dermatitis and scoliosis. The applicant provided the detention facility with his medical records which stated his chronic ailments.
25. On 31 August 2012 the applicant underwent a medical examination by a general practitioner (“GP”). He was diagnosed with vegetative-vascular dystonia, dorsopathy, osteochondrosis, kyphoscoliosis, and first- or second‑degree obesity. He received a prescription for a special diet limiting intake of fats and quickly-absorbed carbohydrates.
26. The applicant was subsequently examined by a GP on 25 September, 19 October and 26 November 2012, and 24 January, 15 and 25 February, and 15 March 2013. The examinations revealed no negative dynamics in the state of the applicant’s health; the prescriptions for the special diet were renewed each time.
27. By letter of 2 November 2012 the head of the IZ-77/2 informed the applicant’s father that chronic gastritis was not on the list of diseases which allow patients to receive additional nutrition.
28. On 30 November 2012 the applicant’s lawyer complained to the prison chief of the deterioration of his client’s health, in particular, of his regular headaches, back pain and weight-gain. He alleged that the applicant had put on 20 kg over the five months in detention and requested an inpatient medical examination.
29. On 31 January 2013 the applicant was examined by a neurologist and received a prescription for treatment in relation to vegetative-vascular dystonia. At the regular check-up by a GP on 15 February 2013 the applicant stated that his condition had improved; he was recommended to continue the prescribed treatment.
30. On 14 February 2013 the applicant’s lawyer reiterated his application for a medical examination and asked to give the applicant access to a gym.
31. On 4 April 2013 a medical commission composed of a GP, an infection specialist, a surgeon and two administrators examined the applicant and his medical history. In addition to the previous diagnoses, they established chronic liver disorder and recommended that he continue the special diet.
32. On 14 April 2013 the applicant was temporarily transferred to the medical wing of IZ-77/1. Upon his admission he was found to be suffering from second- or third-degree obesity (at this stage he weighed 109 kg and was 178 cm in height) and was prescribed the same diet as before.
33. In IZ-77/1 the applicant underwent series of medical examinations and tests, including an abdominal ultrasound, a thyroid echography, an electrocardiogram, roentgenofluorography, X-ray examinations of his skull and spine, and blood tests. He was regularly examined by a GP who adjusted the treatment according to the results of the tests. The applicant also had a consultation with a dermatologist.
34. The public commission for the monitoring of detention facilities visited the applicant on 17 and 24 April and 2 May 2013. According to the journal of their visits, the applicant did not complain of inadequate medical assistance in IZ-77/1.
35. The discharge summary (выписной эпикриз) from the medical wing of IZ-77/1, issued on 17 May 2013, contained the results of the applicant’s medical examinations. He was diagnosed with osteochondrosis, dorsopathy, fatty liver, hypercholesterolemia, vegetative-vascular dystonia, acne and first-degree obesity. The applicant received a prescription for physiotherapy and a special diet; he was also recommended to undergo a magnetic resonance imaging procedure in relation to a suspected cerebral condition, which had to be carried out in a different hospital equipped with the appropriate scanning device. On the same day the applicant was transferred back to IZ‑77/2.
36. On 6 July 2013 the applicant lodged a complaint about the authorities’ failure to carry out his medical examination to the Tverskoy District Court of Moscow. On 4 September 2013 the Tverskoy District Court refused to examine this complaint.
37. The magnetic resonance imaging procedure had not been carried out before the applicant’s release from the detention facility on 2 August 2013.
38. After release the applicant had a medical examination at the town hospital and a consultation with a prominent gastroenterologist. The doctor confirmed the applicant’s previous diagnoses related to the digestive system and prescribed him medical treatment, a special diet and physical exercise.
39. The applicant’s description of the conditions of detention during his transfer from the remand prison to court and back was identical to that in the case of Yaroslav Belousov (cited above, § 69-73).
40. On 6 June 2013 court proceedings began in hearing room no. 338 and at the end of July moved to hearing room no. 635 of the Moscow City Court. The defendants, including the applicant, were held in glass cabins in both hearing rooms, as described in Yaroslav Belousov (cited above, § 74‑76). From 2 August 2013 the applicant was no longer placed in the glass cabin owing to a change in the measure of restraint for him.
“1. The organisation of mass disorder, accompanied by violence, riots, arson, destruction of property, the use of firearms, explosives and explosive devices, as well by armed resistance to a public official, shall be punishable by four to ten years’ deprivation of liberty.
Participation in the types of mass disorder provided for by paragraph 1 of this Article shall be punishable by three to eight years’ deprivation of liberty.
42. For a summary of the relevant domestic law provisions governing pre-trial detention and for the practice of the domestic courts in that matter see the case of Zherebin v. Russia ( 51445/09, §§ 16-25, 24 March 2016).
43. Article 107 § 1 of the Code of Criminal Procedure (“the CCrP”) provides that house arrest consists of a suspect’s or an accused’s isolation at his or her domicile, combined with restrictions or prohibitions, such as (1) leaving the house where he or she lives, (2) communicating with certain persons, (3) receiving and sending correspondence, (4) using the Internet and other means of communication. The court may subject a suspect or an accused to all of these restrictions or prohibitions, or part of them. A suspect or an accused can be put under house arrest for up to two months; this term can be extended by the court under the same conditions as pre-trial detention.
44. The Amnesty Act of 18 December 2013 was passed by the State Duma on the occasion of the twentieth anniversary of the adoption of the Constitution of the Russian Federation. It applied, inter alia, to pending criminal proceedings against people suspected and accused of criminal offences under Article 212 §§ 2 and 3 of the Criminal Code.
46. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.
47. The applicant complained that during his pre-trial detention he had not been given adequate medical assistance in relation to his multiple health disorders. He argued, in particular, that his health had significantly deteriorated in custody and claimed that his requests for a medical examination had been disregarded. Furthermore, he alleged that the medical prescriptions for a special diet and physical exercise had been neglected, which had caused him significant headaches and back pain, and to gain weight. In particular, the applicant could not eat most of the regular prison meals and sustained himself on dairy products purchased at the prison shop and groceries sent by his family. This provided him with insufficient intake of vegetables and fruit owing to the limits on what he was allowed to receive in parcels. The applicant claimed that he and his lawyer had lodged numerous requests and complaints with the investigator and the prosecutor’s office. Furthermore, he had brought his health issues to the attention of the court in the detention proceedings and had lodged a separate claim to the Tverskoy District Court, to no avail. According to the applicant, after his release his condition had gradually improved, mainly through physical activity and controlled diet.
48. The Government, for their part, contended that the applicant had been receiving regular medical care and that he had not raised any health issues before the public commission for the monitoring of detention facilities during their visits. They denied that he had lodged a formal complaint about the lack of medical assistance.
49. The Court reiterates that even though Article 3 does not entitle a detainee to be released “on compassionate grounds”, it has always interpreted the requirement to secure the health and well-being of detainees, among other things, as an obligation on the State to provide detainees with the requisite medical assistance (see Kudła v. Poland [GC], no. 30210/96, § 94, ECHR 2000‑XI; Kalashnikov v. Russia, no. 47095/99, § 95, ECHR 2002-VI; and Khudobin v. Russia, no. 59696/00, § 96, ECHR 2006‑XII (extracts)). The “adequacy” of medical assistance remains the most difficult element to determine. The Court insists that, in particular, authorities must ensure that diagnosis and care are prompt and accurate (see Khatayev v. Russia, no. 56994/09, § 85, 11 October 2011; Yevgeniy Alekseyenko v. Russia, no. 41833/04, § 100, 27 January 2011; Gladkiy v. Russia, no. 3242/03, § 84, 21 December 2010; Hummatov v. Azerbaijan, nos. 9852/03 and 13413/04, § 115, 29 November 2007; and, mutatis mutandis, Holomiov v. Moldova, no. 30649/05, § 121, 7 November 2006), and that, where necessitated by the nature of a medical condition, supervision is regular and systematic and involves a comprehensive therapeutic strategy aimed at adequately treating the detainee’s health problems or preventing their aggravation (see Hummatov, cited above, §§ 109 and 114; Popov v. Russia, no. 26853/04, § 211, 13 July 2006; and Sarban v. Moldova, no. 3456/05, § 79, 4 October 2005).
50. On the whole, the Court reserves sufficient flexibility in defining the required standard of health care, deciding it on a case-by-case basis. That standard should be “compatible with the human dignity” of a detainee, but should also take into account “the practical demands of imprisonment” (see Aleksanyan v. Russia, no. 46468/06, § 140, 22 December 2008).
51. In the present case it is common ground that the applicant had been suffering from a number of chronic conditions pre-dating his detention and required regular medical supervision in relation to those conditions. What is in dispute between the parties is the extent to which these ailments had aggravated in detention and the adequacy of the medical assistance provided to him.
52. The Court observes that, when being taken into custody, the applicant informed the authorities of his state of health and of the need for medical supervision. From the very beginning he and his lawyer submitted regular health complaints and requests for medical examinations, and when they considered that the applicant’s needs had not been met, lodged complaints with the prison authorities, the prosecutor’s office and, ultimately, the courts.
53. The Court further notes that in the first eight months of detention the applicant was examined by a general practitioner on average once a month. At these consultations the doctor confirmed the earlier diagnoses of the chronic conditions but found no alarming developments. The only prescription made in that period was for the special diet (the Court will come back to the adequacy of the applicant’s nutrition below). The applicant was also examined by a neurologist, who prescribed treatment for vegetative-vascular dystonia; as a result, the applicant’s condition improved. Therefore, there is nothing in the case file to suggest that in the initial eight‑months’ period the medical practitioners overlooked an important deterioration of the applicant’s health or neglected to treat it. At a later stage, when the applicant’s rapid weight-gain, compounded by other recurring symptoms, such as headaches and back pain, became obvious, the medical commission referred him for a comprehensive inpatient examination. The Court considers that the applicant’s persistent health complaints, especially in the light of his medical history known to the authorities, should have prompted an earlier response. However, the medical evidence available in the case file gives it no grounds to conclude that the referral for the inpatient examination had been delayed to the point of putting the applicant at risk.
54. The applicant did not contest the thoroughness or the outcome of the ensuing inpatient examination in IZ-77/1 which lasted for one month, and the Court finds no shortcomings in this respect. As regards its follow-up, however, the Court observes that the recommendations for a magnetic resonance imaging procedure, physiotherapy and a special diet were not carried out. Yet there was no indication that the imaging procedure was urgent, and the need for special radiological equipment may explain a certain delay in carrying it out.
55. The Court further notes that no such reasons existed for the authorities’ failure to implement the two remaining recommendations. The omission as regards the special diet, which had been prescribed on multiple occasions, is unexplainable. It appears that the prison authorities did not consider themselves bound to make the necessary adjustments to comply with the prescription, either by providing the applicant with appropriate nutrition or by allowing him to receive it from his family in the right quantities. However, the Court does not consider that this omission caused the applicant sufferings of a duration and severity passing the threshold of Article 3 of the Convention, primarily owing to his release. On 2 August 2013 the Presidium of the Moscow City Court quashed the applicant’s detention orders and changed the preventive measure to house arrest, having specifically noted the applicant’s health issues. It is of particular relevance that the Presidium’s decision came two and a half months after the conclusions of the complete medical examination, rapidly enough to allow the applicant’s treatment before his condition deteriorated further. The fact that the applicant’s state of health improved after his release from detention is consistent with this assessment.
56. In the light of these circumstances, the Court considers that there had been no failure on the part of the Russian authorities to provide the applicant with the adequate medical assistance.
57. Accordingly, there has been no violation of Article 3 of the Convention in this respect.
58. The applicant alleged that his transfers from the remand prisons to court and back had amounted to inhuman and degrading treatment. He complained about the frequency and the length of those transfers, of appalling conditions at the prison assembly sections and in the police vans, and of the intensity of the schedule, which did not leave him sufficient time to sleep. The applicant argued that the combination of the above factors had led to physical exhaustion and mental distress.
59. The Court has examined the conditions of transfer to and from court, which were common to the applicant and his co-defendant, in the case of Yaroslav Belousov (nos. 2653/13 and 60980/14, §§ 105-10, 4 October 2016). It found that those conditions amounted to inhuman and degrading treatment contrary to Article 3 of the Convention on account of a lack of sufficient rest and sleep on the days of court hearings, overcrowding and generally poor conditions in the prison assembly sections and convoy cells at the Moscow City Court, lengthy transfers between the remand prisons and the court and poor conditions during the transfers. The Court sees no reason to depart from those findings in the present case. Although the applicant had to endure this treatment for one month only, it was capable of causing him sufferings attaining the threshold of severity required to characterise it as inhuman or degrading within the meaning of Article 3 of the Convention, given his poor state of health and the intensity of the hardship involved. Accordingly, there has been a violation of Article 3 of the Convention in that respect.
60. The applicant complained that his confinement in glass cabins during court hearings amounted to inhuman and degrading treatment. The Government submitted that that the security installations in question neither constituted degrading treatment nor caused significant discomfort to the applicant and his co-defendants.
61. The Court summarised the principles on confinement in glass cabins in Yaroslav Belousov (cited above, §§ 120-22). It has examined the conditions of detention in hearing rooms nos. 338 and 635 at the Moscow City Court, which were common to the applicant and his co-defendants, including Mr Belousov (ibid, §§ 123-28), and found a violation in respect of issues identical to those in the present case. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion. Accordingly, there has been a violation of Article 3 of the Convention on account of the confinement in a glass cabin in hearing room no. 338 at the Moscow City Court, and no violation of Article 3 of the Convention as regards the conditions of detention in hearing room no. 635.
63. As regards the alleged unlawfulness of the applicant’s detention, the Court notes that it was the Basmannyy District Court of Moscow which ordered that measure and that the same court subsequently extended it on several occasions. After the case had been sent for trial, the detention order was issued by the Zamoskvoretskiy District Court of Moscow. That court also extended the applicant’s house arrest, imposed by the Presidium of the Moscow City Court. The domestic courts acted within their powers in making those decisions and there is nothing to suggest that they were invalid or unlawful under domestic law. Accordingly, the applicant’s detention was imposed and extended in accordance with a procedure prescribed by law.
64. As regards the allegation that the applicant’s detention was not based on a reasonable suspicion that he had committed criminal offences, his complaint under Article 5 § 1 of the Convention overlaps to a large extent with his complaint under Article 5 § 3 of the Convention about the authorities’ failure to adduce relevant and sufficient reasons justifying the extensions of his detention pending criminal proceedings. The Court reiterates that while Article 5 § 1 (c) of the Convention is mostly concerned with the existence of a lawful basis for detention within criminal proceedings, Article 5 § 3 of the Convention deals with the possible justification for such detention. Moreover, according to the Court’s established case-law under the latter provision, the persistence of a reasonable suspicion is a sine qua non for the validity of the continued detention (see Buzadji v. the Republic of Moldova [GC], no. 23755/07, § 87, ECHR 2016 (extracts)). The Court therefore deems it more appropriate to deal with this complaint under Article 5 § 3 of the Convention (see Kovyazin and Others v. Russia, nos. 13008/13 and 2 others, § 71, 17 September 2015; Taranenko v. Russia, no. 19554/05, § 46, 15 May 2014; and Khodorkovskiy v. Russia, no. 5829/04, § 165, 31 May 2011).
65. The Court observes that the Government did not dispute applicability of Article 5 of the Convention to the applicant’s house arrest. According to its case-law, house arrest is considered, in view of its degree and intensity, to amount to deprivation of liberty within the meaning of this provision (see Buzadji, cited above, § 104, and the cases cited therein). Having regard to the modalities of the applicant’s house arrest as described in paragraph 19 above, the Court accepts that it constituted deprivation of liberty in the sense of Article 5 (see, mutatis mutandis, Ermakov v. Russia, no. 43165/10, § 238, 7 November 2013).
66. Furthermore, the Court finds that the applicant’s complaint of a violation of Article 5 § 3 is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that this part of the application is not inadmissible on any other grounds. It must therefore be declared admissible.
67.The parties made essentially the same submissions under Article 5 of the Convention as in Kovyazin and Others (cited above, §§ 73-74). The applicant additionally stated that when extending his house arrest on 26 September 2013, the domestic courts failed to assess his personality, his behaviour while under house arrest, his state of health and the possibility for him to earn a living.
68. The relevant general principles applicable in this case were summarised by the Court in Kovyazin and Others (cited above, §§ 75-78). In addition, the Court has recently noted that the same criteria should apply to the assessment of reasons advanced by the domestic authorities to justify house arrest as to pre-trial detention (see Buzadji, cited above, §§ 112-14).
69. The period of deprivation of liberty to be taken into consideration in this case started on 25 July 2012, the date of the applicant’s arrest, and ended on 19 December 2013, when he was released following the application of the Amnesty Act. Accordingly, the period to be taken into consideration is one year and five months, including one year’s pre-trial detention and five months’ house arrest. Having regard to the considerable length of deprivation of liberty in the light of the presumption in favour of release, the Court finds that the Russian authorities were required to put forward very weighty reasons for maintaining that measure against the applicant.
70. It appears from the applicant’s detention orders and the Government’s observations that the primary reason for the applicant’s deprivation of liberty was the seriousness of the charges. The domestic courts considered that the applicant, faced with the risk of prison, was likely to abscond, influence witnesses, or interfere with the administration of justice. In addition, the domestic courts dismissed the applicant’s application to be released on bail which was supported by statements signed by two prominent public figures agreeing to vouch for him. Furthermore, the decision prolonging house arrest did not rely on any reasons in support of such a measure other that the seriousness of the offence imputed to him and the risk of obstructing the course of the criminal proceedings (see paragraph 20 above).
71. The Court has previously examined similar complaints lodged by the applicant’s co-defendants and found a violation of their rights set out in Article 5 § 3 of the Convention (see Kovyazin and Others, cited above, §§ 82-94, and Yaroslav Belousov, cited above, §§ 133-38). The Court noted, in particular, the domestic courts’ reliance on the seriousness of the charges as the main factor for the assessment of the potential to abscond, reoffend or obstruct the course of justice, and their reluctance to pay proper attention to a discussion of each applicant’s personal situation or to have proper regard to factors pointing in favour of release. It also noted the use of collective detention orders without a case-by-case assessment of the grounds for detention in respect of each co-defendant and the failure to thoroughly examine the possibility of applying a less rigid measure of restraint, such as bail.
72. The Court stresses that in the present case the Presidium of the Moscow City Court quashed the applicant’s detention orders after a year of pre-trial detention and changed the preventive measure to house arrest. It specifically noted that the reasons invoked by the domestic courts for extending detention had been abstract and repetitive; the courts had failed to take into account that the applicant had made no attempts to flee or to obstruct criminal proceedings from the moment of their initiation until his arrest and that he had had chronic diseases which could worsen in detention.
73. Having regard to the material in its possession, the Court notes that the Government have not put forward any fact or argument capable of persuading it that the applicant’s pre-trial detention and house arrest were justified by relevant and sufficient reasons. Indeed, the specific offence imputed to the applicant – kicking a police officer – may have initially warranted his pre-trial detention. However, with the passage of time the nature and the seriousness of the offence as the ground for the applicant’s continued detention inevitably became less and less relevant (see Kovyazin and Others, cited above, § 85, and Artemov v. Russia, no. 14945/03, § 75, 3 April 2014). The Court further notes that the applicant’s detention was extended by the same collective order of 6 June 2013 as that of his co‑defendants, without any individual assessment of his situation (Kovyazin and Others, cited above, §§ 92-93). Similarly, the domestic courts failed to convincingly demonstrate that house arrest was still necessary as a preventive measure when extending it.
74. There has accordingly been a violation of Article 5 § 3 of the Convention.
76. The Court notes that the applicant lodged this complaint while the criminal proceedings against him were still pending. It further notes that the applicant did not reiterate it after the proceedings were discontinued following the application of the Amnesty Act. The Court has previously held that in cases where an accused had been granted an amnesty he could no longer claim to be a victim of alleged violations of the Convention during the proceedings, given that he was no longer affected at all (see Correia de Matos v. Portugal (dec.), no. 48188/99, 15 November 2001, ECHR 2001‑XII). Having regard to the fact that the applicant in the present case was relieved of any effects of the proceedings to his disadvantage, the Court considers that he cannot claim to be the victim of a breach of Article 6 of the Convention.
77. The Court concludes that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
79. The applicant claimed 20,000 euros (EUR) in respect of pecuniary damage and EUR 50,000 for non-pecuniary damage.
80. The Government contested the claims as unsubstantiated and excessive.
81. The Court does not discern any causal link between the violations found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, the Court observes that it has found a violation of Articles 3 and 5 of the Convention in respect of the applicant. In those circumstances, the Court considers that the applicant’s suffering and frustration cannot be compensated for by a mere finding of a violation. Making its assessment on an equitable basis, it awards the applicant EUR 10,000 in respect of non‑pecuniary damage.
82. The applicant did not submit any claims under this head. Accordingly, there is no call to award him any sum on that account.
83. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
Done in English, and notified in writing on 28 November 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.