6.  The applicant was born in 1949 and lives in San Gwann. 7.  A robbery took place on 12 May 1995 in the home of Mr and Ms Z. (the former is a lawyer by profession). According to the versions of the victims at the time, the robbery was carried out by five to seven hooded men who appeared to be under the effects of drugs. They had entered through the roof and sought to find the safe. Various items were stolen and the victims were injured while they were being held face down in the bedroom. According to Mr Z. during the robbery one of the robbers said, “Give us the two buckets of gold you told us you had in your possession”. Further conversations between the robbers indicated that they had a southern Maltese accent. When questioned after the incident the victims stated that they had not recognised anyone at the time, since they had been kept face down in the bedroom during the robbery. The Government contested the latter fact, relying on the version of events given by Mr Z. in 2002 (see below). 8.  The applicant and his brother, like their father previously, had done work for the Z. family as plumbers and electricians. 9.  During the investigation Mr Z. mentioned the applicant and his brother as possible people who had had access to his house and had been familiar with it, without indicating that he identified either of them as the robbers. Thus, despite the fact that the applicant had been questioned by the Police in June 1995, neither of them had, at the time, or later, been charged in connection with this robbery and no criminal prosecution ever ensued because of the lack of any evidence pointing in their direction. 10.  In 1996, the relationship between the brothers and Mr Z. broke down following Mr Z.’s failure to make payments to the applicant’s company. Following this, in 1997 Saliba Brothers (the company owned in part by the applicant) instituted proceedings against Mr Z. claiming payment for services rendered (these proceedings were eventually withdrawn following payment of the outstanding amount). 11.  The applicant alleged that pending the above‑mentioned proceedings, Mr Z. had started bad-mouthing the applicant to neighbours ‑ who had also suffered burglaries – stating that it had been the applicant, that is to say the electrician they all used, who had committed them. The Government noted that according to the evidence tendered by E.C., a neighbour of Mr and Ms Z. (see below), it had been a common perception that families who had been regular clients of the applicant had been robbed. The applicant highlighted that the same E.C., in cross‑examination had twice confirmed that he had had no suspicions that the applicant had somehow been involved in the robbery. 12.  Five years after the robbery, in June 2000, Mr and Ms Z. sued the applicant in civil proceedings for the damage resulting from the said robbery as, in retrospect, Mr Z. considered that he recognised the applicant as one of the robbers. 13.  During the proceedings, the court heard evidence from Mr Z. (including a lengthy affidavit) and accepted an affidavit from Mr Z.’s wife. The applicant was unable to cross-examine Ms Z. on the basis of medical advice given by an ex parte doctor who had testified before the court to the effect that Ms Z. had been suffering from depression for around eight years and that in the last two years her state of health had become much worse (she had been spending her days in bed not wanting to know about anything going on around her and had become dependent on others). He considered that there was no hope of this situation changing in the near future. When asked whether Ms Z. had been in a position to understand what she had been saying at the time of the incident, the ex parte doctor replied “I think so, of course she was”. 14.  The applicant’s request to have Ms Z.’s statement expunged from the record was refused. 15.  In all, the evidence presented before the court consisted of the following:
On behalf of the applicant:
- The affidavit of the applicant, as well as his oral testimony (where he noted the good relationship that had existed between him and the plaintiff and categorically denied any involvement in the robbery, during which he had been at home sleeping, and claimed that the plaintiffs had instituted the case only in response to the proceedings his company had lodged against Mr Z., in which they had eventually been successful; following these proceedings Mr Z. had started telling neighbours who had been robbed that he (the applicant) had been responsible; he related that the morning following the incident he had been surprised to see the police on the road at the Salibas’ shop, close to Mr Z.’s house and, after hearing what had happened, he had repeatedly tried to call Mr Z. to offer a helping hand. Since he had not been able to get through, he had gone to the house where he had been greeted warmly at the entrance by Mr Z., who had recounted what had happened during the night including a reference to three persons who Mr Z. had claimed had been watching the roof intermittently for a period; some days later, while the applicant had been visiting a relative in hospital with his family, they had also visited Ms Z.; Mr Z. had been happy to see him (the applicant) and had told him not to worry about the money he had been owed as only a little had been stolen and it had not even been worth the beating they got; the applicant further noted that he had been surprised about Ms Z.’s written testimony, given the relationship of mutual respect they had had, and he wished to cross-examine her; he further recounted how he had been called out to Mr Z.’s house during the night only once, and that he had never fallen off a ladder, contrary to what had been alleged by Mr Z. He further referred to certain jobs completed in the house and to a number of named individuals who could have seen the safe; he stated that the only times he had avoided Mr Z. had been when the latter had failed to pay him; he noted that contrary to what Mr Z. had alleged, he had had no connection to arms or drugs (save for possessing a hunting rifle with the relevant police permits, which he had no longer used); he stated that he had not stopped work on one of Mr Z.’s properties of his own motion, but because Mr Z. had told him to do so; the applicant had also explained this to N.S.T (an architect); the applicant also contradicted various elements of Mr Z.’s affidavit; in particular he denied ever having been told about buckets of gold by Mr Z., and reference to such gold had only been made by Mr Z. during the proceedings lodged against him, and by the police one time when they had questioned him (the applicant));
- The affidavit of the applicant’s wife (she recounted that the applicant had only left the house twice during the night since 1989 – once to go to the Z. family’s premises following an urgent call-out, and once to go to another client; She also recounted their visit to Ms Z. after the robbery and in what circumstances they had met prior to the robbery; she lastly explained how surprised and hurt she was about Mr. Z.’s actions in their regard).
- The two affidavits of the applicant’s two brothers (F. and S.) and the oral testimony of F. (F. confirmed that he had worked everywhere in the house, including next to the safe, together with other workmen from his company and that other named individuals had had access to the house as they had also rendered services there; he also denied that he had ever spoken to W.B. (the Z. family’s caretaker) about payments due, and that he had ever taken anything from Mr Z. without permission, contrary to what had been alleged by him. He further stated that when questioned by the police two years after the incident they had asked him whether he had been aware of the position of the safe and the buckets of gold; in his oral testimony he confirmed that he had fallen off a ladder once in Mr Z.’s house contrary to Mr Z.’s statement alleging that it had been the applicant who had fallen); (S. testified that the brothers had stopped work on one of the projects because Mr Z. had not confirmed that he had wished them to continue and had failed to pay sums already due, and in respect of which they had thus sued Mr Z. S. also contradicted other events recounted by Mr Z. in his testimony and noted that he had never discussed due payments with W.B.)
- The seven affidavits of the applicant’s seven sisters (who denied ever having made certain statements to Mr Z., which he had imputed to them in his testimony, or having gone to his house, or even having known him);
- The cross-examination of Mr Z. (at two hearings);
- The cross‑examination of the police investigator, G.C. (at two hearings);
- The cross-examination of a neighbour, M.C.
On behalf of the plaintiffs:
- The two affidavits of Mr Z.
In the first affidavit Mr Z. explained the history and the good relationship he had had with the applicant’s family and how much the Z. family had cared for and trusted the applicant. He stated that at the time of the robbery the Saliba brothers had been working on project D. but works had been stalled; that the applicant’s sisters had gone to his office worried and in fear of the applicant, who they said was clever and armed; Mr Z. explained that a few weeks before the robbery the applicant had been working at the house, including on the roof, and at one point, while distracted, the applicant had fallen off a ladder; Mr Z. explained that on some occasions both the applicant and his brother had had access to the door of his roof and had known how to open it, and had also worked close to the safe. Mr Z. stated that in more recent years it had been only the applicant who had attended to jobs in the house and who had come during the late hours of the night, coming promptly and not charging them, even though he usually charged for all his services, even minor ones – thus, he had been the only one in the world, and nobody else, who had the knowledge of the house as it would be at night time. Mr Z. related that on one occasion, where payment to the applicant was likely to be delayed, he had reassured the applicant by referring to his (Mr Z.’s) numerous immovable properties and told the applicant precisely to “rest assured you have two buckets of gold as guarantee”. Mr Z. noted that he had never used these words with anyone else and that the applicant had appeared to take him literally; he stated that later on the applicant had also admitted to these words having been uttered to him. Mr Z. recounted the robbery: how, while the Z couple had been asleep, they had heard chaos in the entrance of the house and one man had run through the corridor directly towards them and asked him for gold. Another two men had followed and kept the couple in the bedroom in the dark; one of them (who injured his wife while holding her on the ground) had again asked for gold stating that they would go and consume drugs, while the other had repeated “give us the gold you told us you have”. Mr Z. stated that he had recognised the words on the spot, as those he had once uttered to the applicant. Mr Z. noted that the two people who had held them in the bedroom had appeared to be under the effects of drugs; while they had been asking for gold it had become clear that they had been targeting the safe. Twenty minutes later another voice had called out from the end of the corridor that they could leave and so they had done so. Mr Z. stated that once the robbers had left the bedroom he had followed them and recognised the applicant as one of the six or seven men - “I recognised him with my eyes, after already knowing that he was one of them through my ears”. Mr Z. held that the applicant had been the only one to have remained silent. Having known the applicant closely and worked with him for around twelve years, Mr Z. felt that he could recognise his mannerisms, stature, height and behaviour, as well as his movements and head inclinations, which corresponded to what he had seen. Mr Z. continued to explain that it had been natural not to say anything in that moment of shock and fear, but that:
“I knew from the start that he was part of the group because I was told so and because I recognised him, he had kept his distance but I saw him leave in the car with the others as if [qisu] the bottom part of his face uncovered”.
While various rooms had been searched, only the contents of the safe had been stolen. Mr Z. explained that one of the robbers had exclaimed “there it is” and they had initially tried to remove the safe, but then they found the key to it in Ms Z.’s purse, which as a habit she regularly kept on the armchair in the sitting room. Confronted with this situation Mr Z. reiterated that on that date the applicant and his brother had been the only two persons who had known about the safe as they had been the only people who had entered that part of the house on multiple occasions since 1991, and the louvres had been always closed. Mr Z. recalled how after the robbery numerous people had come and seen the safe, but not the applicant or his brothers. The applicant had had all the knowledge necessary, including how to open the roof door, where to cut the phone line, where to find the purse, and other useful details to facilitate such a robbery, which had taken place in twenty minutes during the night. Mr Z. continued to explain the situation after the robbery. He stated that the working relationship had ended and that the applicant had gone to the house a couple of hours after the robbery; he had offered no help and had just shown his face; nor had he offered any help when he had gone to visit Ms Z. in hospital, with his wife and daughter who, had not been known to the couple. Mr Z. testified that a few days after the robbery he had gone to buy a bulb from the applicant, who had expressed no sympathy. Mr Z. stated that subsequently the applicant had called him to tell him he would no longer work on project D., and Mr Z. noted that the architect N.S.T. and their caretaker W.B. had said that the applicant had refused to work for Mr Z. any longer as he had no longer had money, and that he had failed to pay the brothers money due for services rendered. It had also been strange that sometime after the robbery, Mr. Z had sent invoices claiming such fees and had started avoiding the applicant. Yet in 1995 the applicant had sent the couple a Christmas card and in 1996 invited them to his daughter’s wedding. Mr Z. further referred to various robberies which had taken place in households in the neighbourhood which had been all clients of the applicant. He stated that M.C. had told him that the applicant had been the last person in the room before she had found her jewellery box missing. He reiterated the changed attitude of the applicant towards him following the robbery and had even instituted civil claims in judicial proceedings. The Saliba brothers had also not told him that their father had died, even though he had been the testamentary executor nominated by their late father. According to Mr Z. the applicant had known that had they not been sure of his responsibility, they would not have instituted proceedings against him.
In a later affidavit, Mr Z. clarified that it had been only three of the sisters who had gone to him in fear of their brother. He considered the applicant’s wife’s affidavit as totally untruthful; likewise the applicant’s brothers’, in particular in connection with the reasons why work on project D. had stopped – he noted that the real reason had been the robbery and the fact that the applicant had realised he had been caught – and in connection with their exchanges with W.B. Mr Z. also considered the applicant’s testimony to have been untruthful and therefore an indication of guilt, and indicated a number of lies therein.
- The affidavit of Ms Z. (to the effect that robbers had targeted the safe, which they had tried to remove entirely until they had found the key to it in her handbag; she stated that absolutely nobody had known about the safe before the robbery as nobody had entered that very private area of the house; she further stated that it had been only the applicant who – in the three years before the robbery – had continuously and at all times of day and night entered all parts of the house as he had been their trusted handyman, and that sometimes he had been accompanied by his brother and that they had both known about the safe. She reiterated that it had been only the applicant who had had access to the safe and had known the house by night, knowledge which neither his brother nor the domestic help had had. She explained that she had been told that after the incident the applicant had gone to their house and to visit her in hospital with his family; he had also sent a Christmas card and invited the couple to his daughter’s wedding; however he had not wanted to continue working on one of Mr Z.’s projects and had eventually sued them in court without giving them prior notice. She considered this to be odd given their good relationship, which had dated back many years, and she thus considered that they had had something to hide.);
- The affidavit of the architect on project D., N.S.T. (who stated that the reason given by the applicant for stopping the works on project D. had been that Mr Z. had had no money);
- The affidavit of W.B. an employee of the Z. family (who testified that the Saliba brothers had been the trusted electricians and plumbers of the Z. family and they had stopped working on any of the Z. family’s properties after the robbery (unlike other workers); he stated that the brothers had once asked him why Mr Z. had not been paying them as Mr Z. had told them that compared to the gold he had not even a breadcrumb had been taken. Another time the brothers had told him (W.B.) that they had not wanted to work for Mr Z. anymore as he had had no money. When he (W.B.) had told Mr Z. what the brothers had told him, Mr Z. had told W.B. that he had once told the applicant not to worry if he had not paid up immediately as he had had two buckets of gold as a guarantee for any outstanding debt. Mr Z. had explained to him (W.B.) that the applicant had taken him literally and that the applicant had expected to find more than he had actually found in the safe; W.B. also stated that he had never entered that private part of the house where the safe had been. Lastly, he denied participation in the robbery);
- The affidavits of two neighbours, E.C. and M.C. (E.C. stated that he and other neighbours had been robbed while being clients of the applicant who ran a shop on the same road where they lived – this fact was known in the area);
- Evidence of police inspectors S.G. and J.C. (S.G. confirmed that at the time of the incident they had not known who the robbers had been: J.C. stated that the investigators had spoken about the applicant in June 1995 and that subsequently he had been questioned (amongst others – five people altogether) as a person with the knowhow to commit such a robbery, as well as a result of Mr Z.’s claim to the effect that he had mentioned the buckets of gold only to the applicant. J.C. also stated that Mr Z. had said that only one of the four or five robbers had spoken during the incident);
- The cross-examination of the applicant’s two brothers and four of his sisters
- Breakdown of the plaintiff’s claim, confirmed under oath by Mr Z., and a number of supporting documents. 16.  By a five-page judgment of 10 October 2006 the Civil Court (First Hall), in its civil jurisdiction, considered that the applicant had taken part in the robbery and therefore ordered him to pay damages yet to be quantified, and requested that the plaintiffs submit a claim. The court admitted that there had been various inconsistencies in the testimony of Mr Z. – for example statements that the applicant had been silent and yet that the victim had recognised him through his sense of hearing, as well as his statement that someone had told him that it had been the applicant. The court further noted that many of Mr Z.’s arguments indicating that the applicant was implicated had weakened his version. These arguments based the applicant’s guilt on the fact that i) he had fallen off a ladder; ii) that he had invited Mr and Ms Z. to his daughter’s wedding; iii) that he had not informed Mr and Ms Z. about the demise of his father; iv) that he had been paid for work by means of land; v) that he had sent the Z. family a postcard; vi) that the applicant had fallen out with his brothers; and vii) that the applicant had been “silent and absent”. Indeed these repeated arguments had been far-fetched and banal, usually an indication that an individual was not convinced of his statement. The court noted that the only established facts were that the robber had known both the house (allowing him to move comfortably within it and find what he wanted) and Mr Z. (giving the robber a reason to remain silent during the robbery). While the applicant had not been the only one to have had these traits, the applicant had been one of the few who had had them. Furthermore, the robbers had known about the “buckets of gold”, which Mr Z. had allegedly mentioned to the applicant. In the court’s view the robbers had either known this from the applicant and, if so, the applicant would have had no other reason to share this information apart from bad intentions, or the robber had actually been the applicant himself. The court noted that this unfortunately indicated that Mr Z. had used this factor for the identification of the applicant, and it would have been better to have solely relied on visual identification. 17.  Nevertheless, the court considered Mr Z.’s testimony reliable on the basis that identification could be based on mannerisms, movements and a silhouette, even if the face and voice remained hidden. It concluded that the applicant “had taken part in the robbery” and in application of the civil code was responsible for the damages suffered by the claimants. 18.  By a decree of the same date the court ordered Mr Z. to lodge a schedule of damage within two months. 19.  By means of an affidavit of 13 November 2006, confirmed under oath by Mr Z., the Z. family claimed damage amounting to around 125,000 euros (EUR) covering the items and money stolen (including a list of jewellery drawn up with the assistance of a professional who had not taken an oath) and the expenses to repair the damage caused to the house. They further claimed medical expenses of EUR 85,000 in relation to the injuries suffered. 20.  On 8 January 2007 the applicant made submissions on this point requesting that the court not allow the affidavit of 13 November 2006 as evidence on the grounds that the stage of putting forward evidence had been closed two years earlier and Mr Z. had declared that he no longer had any evidence to submit. 21.  By a judgment of 4 March 2008, the Civil Court (First Hall), in its civil jurisdiction, ordered the applicant to pay EUR 130,000 in damages, specifically for the EUR 125,000 in stolen items and cash and for the damage done to the house, as declared by Mr Z.; and EUR 5,000 in medical expenses. The court noted that the victims were not required to have receipts of the items obtained over several years or proof of how much cash they had had in the house. In such circumstances the best proof was the victims’ declaration under oath, the veracity of which (after having seen the house) the court had no reason to doubt. Thus, damages for items stolen had to be granted on the basis of Mr Z.’s claim. However, as to the medical expenses, while it was true that the claim had also been made under oath, given that the expenses had been incurred after the robbery and after the couple had already decided to sue, the court considered that the claimants should have kept receipts of such expenses and therefore made this award arbitrium boni viri. 22.  By a decree of the same day the court refused the applicant’s request not to allow the submission of the claim for expenses rendered by means of an affidavit not confirmed under oath by the ex parte expert and submitted after the stage for submissions of evidence had closed. 23.  On 17 March 2008, the applicant appealed against all the above decisions. In his appeal application and again orally during the appeal hearing he asked the court to allow his brother to appear in court (to show that the victim could not differentiate between the two brothers – see paragraph 15 above in connection with the testimonies concerning the ladder incident). The appeal application read as follows:
“At this stage, the plaintiff is humbly making a formal request to the Court of Appeal to allow the applicant to produce as evidence before it his brother [F.S.] in order for the court to be able to confirm the above ...”
The Government contested the fact that the written request had been repeated orally, as no such record had been found in the acts of the proceedings. The Court of Appeal gave no reply to this request. 24.  The Court of Appeal, by a judgment of 6 October 2009, reiterated that it was well known that it was not for it to alter the assessment of evidence in the absence of compelling reasons. It noted that for civil proceedings to reach a finding it sufficed for a judge to have a “moral certainty”, as opposed to proof beyond reasonable doubt as required in criminal proceedings. It was true that a more rigorous test was required when a person was being accused of a crime in the context of civil proceedings, particularly when the issue was the identity of the person. However, Maltese law did not provide what was necessary for identification, only what was not necessary, thus leaving it to the judge to decide according to his discretion. In the present case, the whole case depended on Mr Z.’s identification of the applicant, which the first‑instance court had chosen to believe despite the inconsistencies and contradictions in his and Ms Z.’s testimonies. In this connection one had to bear in mind that the memory of a victim of a violent robbery could suffer psychological effects which may result in inconsistencies. Having examined the acts of the proceedings and the applicant’s submissions, it considered that it need not depart from the first-instance court’s findings because the applicant’s arguments were secondary to the actual identification of the applicant and were therefore not justified. 25.  As to the dismissal of the applicant’s objection in relation to the claim for damages which were allowed at a later stage, the court considered that the claim was not new evidence as such and it was the only proof of the damage that had been caused. Moreover, it had been the court which had requested that Mr Z. lodge the claim and the applicant had had the possibility of making submissions in reply, thus no prejudice had been caused. 26.  As to the award of damages, the Court of Appeal noted that Mr Z.’s testimony had been made under oath; the list of jewellery had been drawn up with the assistance of an expert (although he had not confirmed it under oath); thus, Mr Z. could not be blamed for not presenting further evidence of the damage, particularly since some items had been inherited and others purchased long before, as well as because certain documents had also been in the safe and had been stolen during the robbery. Mr. Z. had not valued the items himself and had appropriately engaged a jeweller to perform the evaluation. Had the applicant had doubts as to that person’s expertise, he could have, at the relevant time, challenged him and called him as a witness. 27.  The applicant instituted constitutional redress proceedings claiming a violation of, inter alia, Article 6 § 1 of the Convention. 28.  By a judgment of 7 October 2011 the Civil Court (First Hall), in its constitutional jurisdiction, rejected the applicant’s claims. 29.  It considered that the applicant had not been found guilty of a criminal offence, but was responsible for damages arising as a result of that crime. In consequence the proceedings remained under civil law and the burden of proof remained that used for civil cases, namely a balance of probabilities, and did not require a more onerous degree of proof. It noted that the first court had assessed the evidence available and considered that the identification of the applicant had been convincingly established; the Court of Appeal found no reason to alter that conclusion. Thus there was nothing which indicated a breach of the applicant’s rights. 30.  As to the applicant’s inability to cross-examine Ms Z., it noted that there had been a valid reason, namely her poor health as confirmed by her doctor, and the applicant had had the opportunity to comment on her written testimony. In its view there had been nothing arbitrary in the court’s decision to allow that statement, as it had been acting within its discretion. Furthermore, the applicant had not appealed against this matter before the Court of Appeal. As to the refusal of the appeal court to call for his brother, it noted that it was not the Court of Appeal’s role to re-examine witnesses and the applicant’s brother had already given testimony in written and oral form at first instance. As to the refusal not to allow the “late” claim for damages, it found that this fell within the court’s discretion to proceed with the case in the way it deemed fit in the interests of justice. Lastly, no issue arose from the courts’ acceptance of an evaluation of damage which had not been confirmed under oath by the expert, and such an evaluation fell within the discretion of the courts. It concluded that the applicant’s rights had not been breached. 31.  The applicant appealed. 32.  By a judgment of 15 October 2012 the Constitutional Court also rejected the applicant’s claims. It considered that in the civil proceedings the first-instance court had had no doubt about Mr Z.’s testimony and his identification of the applicant and nothing indicated that that court had not taken into consideration all the necessary evidence for its assessment. Furthermore, the Court of Appeal had not found there were compelling reasons to alter that decision. 33.  As to the failure of the Court of Appeal to hear evidence from the applicant’s brother, it considered that although this request had been made in writing amongst other pleadings in the appeal application, it had not been reiterated in the concluding requests of the appeal application. There was also no note in the minutes of the hearings that this matter had been raised orally. In any event, the applicant’s brother had given testimony at first instance and, given that such a decision fell within the discretion of the courts, the applicant had not proved that the failure to re-examine the witness had caused him prejudice. 34.  As to the inability of the applicant to cross-examine Ms Z., the Constitutional Court noted that her testimony (unlike that of her husband) had not referred to the identification of the applicant, which had been nearly the only factor on which the civil court had based its decision. Thus, no prejudice had been caused to the applicant. It followed that no issue of equality of arms arose as a result of the two procedural steps examined above. 35.  As to the decision on the damage, the Constitutional Court considered that the principle of onus probandi incumbit ei qui dicit non ei qui negat had been respected, as the civil court had opined that the damage had been proved by Mr Z. 36.  According to the documents submitted, following the above judgments the applicant became extremely depressed and unfit for work. He was thus excused from work and began to receive a disability pension. He considered that had he continued to work, he would have earned much more. According to the Government the applicant was certified as unfit for work on 1 July 2005 and retired when he was sixty-one and has since then been in receipt of a pension. 37.  On 25 March 2010 Mr and Ms Z. made a request for a judicial sale by auction of property belonging to the applicant in order to have the courts’ judgment enforced. Another such request was made on 11 February 2013. 38.  The applicant attempted to obtain the entire case file concerning the civil proceedings; however, he was informed that it had gone missing from the Registry of the Courts of Malta; the applicant lodged the application before this Court with the documents in his possession. The Government located the file following communication of the application and submitted it to the Court. 39. In 2015, since they had not yet received payment from the applicant, the Z. family instituted civil proceedings against the applicant’s brother F., asking the court to declare him responsible for the same robbery and asking the court to order (in solidum with the applicant) the payment of the same damages liquidated by the Court of Appeal in its judgment of 6 October 2009. 40.  The photos submitted to this Court by the applicant show, in particular, a difference in height and hair colour between the applicant and his brother.