The applicant , PERSON , is a GPE national , born in DATE and living in GPE . She is the sister of PERSON , who died in police custody on DATE . She is represented before the ORG by PERSON , a lawyer practising in GPE .

The applicant ’s brother , PERSON , was DATE when he died . He was a large man who weighed QUANTITY , with no previous history of heart problems .

Shortly before TIME on DATE , the deceased was allegedly involved in a burglary in FAC , FAC . An intruder broke into a house , awoke the young couple who were its occupants and threatened them at knifepoint before leaving with cash point cards , money and a kitchen knife . The couple rang the police at TIME

Police Constables PERSON and PERSON responded . They saw the deceased leaving FAC and entering LOC . Believing him to be the intruder , they apprehended him after a chase which ended in a children ’s play area . The deceased threatened officers with a kitchen knife , which fell from his hand when his wrist was struck twice with a police baton by PC PERSON . A second officer also struck him . In all , he was struck on the arms and back . Several police officers gave evidence that the deceased punched PC PERSON in the face . The time was TIME The deceased was tackled to the ground , arrested and placed in the prone position , i.e. on his front with his hands restrained behind his back , and handcuffed . The deceased was placed in a police van , prior to which he complained that he had difficulty breathing . He was again placed in the prone position while he was transported to the police station .

Some of the officers later testified that the deceased was “ muttering ” incoherently in the van and wriggling , unable to sit of his own will . There was further evidence that on leaving the van , he was still “ shuffling ” and “ muttering ” incoherently . Some officers said that he was carried into the police station . The van arrived at the police station at TIME

The arresting officer PC PERSON told the custody sergeant PERSON of the circumstances surrounding the arrest , and stated that the deceased had assaulted him . Meanwhile , the deceased was placed face - down in the prone position on the floor of the custody suite . He was removed to a cell at TIME and had to be carried . He was then stripped and searched with his handcuffs removed , and was placed in the prone position for part of the search . The custody record notes , inter alia :

“ Subject complains of difficulty in breathing and is turned over on his back for searching . ”

PC ORG stated in oral evidence during the Inquest :

“ He [ the deceased ] then complained that he was finding it difficult to breathe on his front so the handcuffs were removed first and he was straight away turned onto his back . ”

PC ORG said that this appeared to relieve his breathing problem . On examination , PC ORG was asked if he saw any mucus on the deceased ’s face , to which he replied , “ No ” . He did not mention that the prisoner had been placed in a “ cell relocation position ” .

The evidence of PC PERSON was not the same :

“ Present were PCs GPE , PERSON and ORG . They stripped him down to his underpants and left the cell one at a time , the last officer holding the prisoner ’s legs crossed and then springing off him and then closing the door . ( Cell relocation technique ) . I then slammed the cell door . The prisoner rolled over and groaned , and had what appeared to be nasal mucus over his face . ”

After the search , the deceased was left on his own in the cell . ORG instructed PC PERSON to remain outside the cell and to keep a continuous watch on him . PC PERSON gave evidence that following this instruction he remained outside the cell door and kept watch through the wicket in the door .

ORG sent for ORG to examine the deceased in case he had suffered any internal injury from a baton and also to examine the CARDINAL police officers who complained of injury from the arrest .

After a short lapse of time , ORG came to the cell door . PC PERSON stated that he removed his gaze from the wicket to talk to him . When he looked back , the deceased was on his face and in difficulties .

Officers re - entered the cell at TIME when the deceased was said to be having a fit . His heart was beating but he had stopped breathing . Artificial respiration was commenced and an ambulance was called which conveyed the deceased to ORG where he arrived at TIME He was pronounced dead at TIME

The inquest into the death of the deceased took place DATE . It was presided over by the Coroner Sir PERSON , and a jury . Over CARDINAL witnesses gave evidence , including CARDINAL pathologists as to the cause of death . The pathologists were unable to agree as to the cause of death . PERSON ( instructed by the Coroner ) considered that the deceased had died of natural causes , due to hypertensive heart disease . However , the applicant claims that the jury rejected this and preferred the evidence of Professor PERSON and Dr N. GPE . The former considered that the most likely cause of death was “ positional asphyxia ” , and the latter considered that the cause of death was the deceased ’s restraint in the prone position , coupled with the stress occasioned by the whole incident .

At the conclusion of the evidence , the Coroner left CARDINAL verdicts to the jury , namely accident , open verdict , death by natural causes and unlawful killing . The applicant claims that the Coroner misdirected the jury on the meaning of unlawful killing in LANGUAGE law . The jury ’s verdict , by a majority of CARDINAL to CARDINAL , was recorded in the following terms :

“ Cause of death

NORP ( a ) left ventricular failure

( b ) stress and exhaustive and positional asphyxia

Verdict

Accidental death

Details of how Accident Happened

CARDINAL a.m. and TIME in a police cell in FAC following a chase and a series of restraints in the prone position face down as used in current police methods . ”

After the verdict was delivered , the Coroner issued a number of recommendations in respect of police methods of restraint in relation to positional asphyxia . This included :

“ Repeated periods of restraint in the face down position with the arms handcuffed behind the back can be dangerous and every officer should be given guidelines on essential observations to be made of the restrained person , with special emphasis on the possibility of positional asphyxia ; that is taking the pulse rate , listening to the breathing and so forth ... ”

The Director of ORG assured the ORG that these recommendations would be put in progress as policy matters within the ORG .

The applicant received legal aid to judicially review the decision of the Coroner on the basis of alleged misdirections .

On DATE Laws J dismissed the application for judicial review . He found that there had been a misdirection in the Coroner ’s summing up on the legal definition of “ unlawful killing ” in that he had had interwoven his explanation on the different aspects of manslaughter concerning unlawful acts and gross negligence in such a way that it may not have been clear to the jury that he was referring to CARDINAL different types of unlawful killing . Nonetheless , he found that on the evidence before them , and in the light of their finding on the cause of death , even if the jury had been properly directed they would have reached the same verdict . He noted that no complaint had been made about the deceased ’s arrest . As regarded alleged neglect by the police officers , he recalled the Coroner ’s finding that there was no evidence that the police officers should have recognised that the deceased ’s condition was due to anything other than stress and exhaustion . Each officer had been individually asked whether he thought that PERSON should have been taken to hospital and each had replied ‘ no’ . Further , there had been no evidence that had an attempt been made earlier to take him to hospital that this would have had any effect in avoiding his death . The judge agreed with the Coroner :

“ I think it is clear that there was no evidence in the case to the effect that any officer could have foreseen the deceased ’s sudden and catastrophic collapse owing to a left ventricular failure ( or at all ) . The Registrar at ORG , PERSON gave evidence . The Coroner said this ...

‘ I asked her this question and this is vital : ‘ In retrospect , if you were there at the time would you have done anything different than those officers at that point of time?’ and the answer was ‘ no’ and I think it is to their credit that everything they did when they found the heart had stopped and the breathing had stopped was right , and they did it quickly and it was done efficiently . She , as a doctor , almost a specialist herself , had said that had she been there she could not have done anything differently . She agreed with everything that was done.’

In my judgment this was never a case in which the exceptional course of leaving neglect as a free - standing verdict should have been taken . One has to postulate circumstances in which a reasonable jury were not satisfied that unlawful killing ( on any basis but in particular on the footing of gross negligence ) was made out , yet could have been satisfied that there was a ‘ gross failure’ to look after the deceased in the condition he was in . I can not see that on the facts of the case there was any perceptible space for such a scenario ... ”

In the context of the allegations of gross negligence , the judge referred to the undisputed fact that arrangements had been made by the police for ORG to see the deceased .

“ There was also the very important evidence that PC PERSON was instructed to keep continuous watch over the deceased in the cell , looking through a wicket in the door . [ Counsel for the family ] seeks to raise a question whether this instruction was properly carried out . The custody record shows that when the officers re - entered the cell and found the deceased having a fit he was lying on his front . He had previously ... been turned or turned himself onto his back . The Coroner records PC PERSON ( p. CARDINAL CARDINAL.CARDINAL ) as saying he had only momentarily turned his gaze away from the wicket when PERSON arrived outside the cell ; and ( CARDINAL.CARDINAL ) ‘ when they looked back he was on his face’ . [ Counsel for the family ] points to the expert evidence of Professor PERSON and PERSON to the effect that if a prisoner is taken out of the prone position ( as by being put on his back ) he recovers the ability to breathe ; and so [ counsel ] submits ... ‘ it is therefore difficult to understand why he further deteriorated and dies , if he was as PERSON alleged on his side or back while he was continuously watched’ .

I am afraid I regard that this argument is entirely speculative . When the officers re - entered the cell , TIME after PERSON arrived and spoke with PERSON , the deceased was as I have said having a fit ; and most unhappily must have been in a critical and terminal condition as the events which immediately followed demonstrate . He was not in control of his movements . He may have turned voluntarily on his front . There is nothing here to call into question the clear evidence that PC PERSON fulfilled his instructions to watch over him . ”

The applicant appealed this decision . It was dismissed on DATE by ORG composed of Lord Justices PERSON , ORG and PERSON . Lord Justice PERSON considered that there had been only borderline justification for leaving the verdict of unlawful killing to the jury . While there had been misdirections of law on “ unlawful killing ” , he refused to quash the verdict and order a fresh inquest as

– the verdict would not have been affected ;

– any fresh inquest after this passage of time would inevitably be less satisfactory and most unlikely to result in any different verdict ; and

– the inquest had performed in an exemplary manner the investigation of the facts and little more could be achieved by subjecting all concerned to the considerable expense and stress of a further inquest .

Lord Justice PERSON commented that it was important to note that it was not suggested that the way the deceased was treated at the time of his arrest was improper .

Leave to appeal to ORG was refused on DATE , of which the applicant was informed on DATE .

The matter was referred by ORG to ORG ( ORG ) , an independent body established by LAW to oversee complaints by members of the public against police officers . It informed the family that it had investigated CARDINAL disciplinary aspects of the case : whether any police officer had abused his authority by using unnecessary violence towards PERSON in effecting his arrest and detention , and whether any police officer had neglected his duty by failing to take proper care of the applicant ’s brother whilst in custody .

The ORG found on DATE that there were no grounds for criticism of the actions of any police officer on these issues .

Prior to the deceased ’s death , there existed significant literature on the dangers of police methods of restraint and that the very scenario which was the context of the deceased ’s death had been the subject of the following expert warning : a suspect , particularly one who is large , who has had his breathing compromised ( due to running away from police officers and/or struggling in the course of his apprehension ) who is then handcuffed to the rear , and placed on his front in the prone position , may be in danger .

ORG were aware of the dangers of positional asphyxia and officers had received training on this . The evidence from PC PERSON and ORG during the Inquest was that they had apparently had such training DATE before the incident . However , this training was limited and the Coroner expressed himself to be “ appalled ” that the topic had been dealt with in TIME .

Following the Coroner ’s recommendations , an Operational Notice was issued on DATE to all divisions in respect of positional asphyxia , dealing with risk factors , signs and symptoms , and ways of reducing risks . This was to be incorporated into a new DATE training course for ORG with effect from DATE .

Inquests are governed by LAW ( “ the LAW ” ) and Coroners Rules DATE ( “ the Rules ” ) . Under s.CARDINAL of the LAW , an inquest must be held if a person has died “ a violent or an unnatural death ” . It is the function of an inquest , as defined by the s. CARDINAL(CARDINAL)(b ) of the LAW and r. CARDINAL of the Rules , that a coroner and a jury shall look into and determine CARDINAL essential matters : who the deceased was , and where , when and how the deceased came by his / her death .

There is no legal aid for representation at inquests . Prior to DATE , there was no right to disclosure of documents , but there is now a scheme for limited disclosure , although not commensurate with that available for other types of proceedings .

It has been consistently emphasised in case - law that an inquest is an inquisitorial fact - finding exercise , and not a method of apportioning guilt . For example , ORG declared in ex parte PERSON :

“ It is not the function of a coroner or his jury to determine , or appear to determine , any question of criminal or civil liability , to apportion guilt or attribute blame . This principle is expressed in Rule CARDINAL of the DATE Rules . ” [ DATE QB CARDINAL ]

There is no right of appeal in relation to an inquest and ORG role is limited to review , which may be by way of judicial review , or statutory as contained in sections PERSON ) and ( CARDINAL ) of the LAW . This section applies where , on an application by or under the authority of the Attorney - General , ORG is satisfied as respects a coroner either –

“ ( a ) that he refuses or neglects to hold an inquest which ought to be held ; or

( b ) where an inquest has been held by him , that ( whether by reason of fraud , rejection of evidence , irregularity of proceedings , insufficiency of inquiry , the discovery of new facts of evidence or otherwise ) it is necessary or desirable in the interests of justice that another inquest should be held .

ORG may –

order an inquest or , as the case may be , another inquest to be held into the death ... ”

Under LAW DATE a claim may be brought by the dependants of the deceased for loss of support . Dependants include spouses and former spouses , children and parents , persons treated as children and/or parents , grandparents and grandchildren , and co - habitees of the opposite sex who had lived with the deceased for DATE . The claim under LAW is for the following CARDINAL heads :

– the value of the dependency ;

– funeral expenses ; and

– bereavement damages currently in the amount of £ CARDINAL for the surviving spouse , the parents of a legitimate child or the mother of an illegitimate child .

There is no claim under LAW for a deceased who leaves no dependants , or who does not fall into the limited category of persons mentioned above . LANGUAGE law does not recognise a tort for wrongful death .

Under LAW , a cause of action subsists in the personal estate of the deceased for any right of action the deceased would have had for damage caused by an act or omission before he / she died .


Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in Bjelovar . He was represented before the ORG by Mr PERSON , an advocate practising in PERSON . ORG ( “ the Government ” ) were represented by their Agent , PERSON .

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

The applicant was a shareholder of the GPE banka d.d . , a joint - stock company incorporated under NORP law with its registered office in GPE ( “ the bank ” ) . The bank was entirely owned by private individuals and companies .

On DATE ORG DATE “ the ORG ” ) adopted a decision appointing a temporary administrator to the bank . Under section CARDINAL(CARDINAL ) of LAW , from the date of service of such decision , all powers of the management board , the supervisory board and the ORG general meeting were transferred to the temporary administrator . Subsequently , on DATE the ORG extended the temporary administrator ’s term of office for DATE .

Meanwhile , on DATE the ORG had proposed to the Government that the process of recovery and restructuring of the bank be commenced , as provided for by the domestic legislation .

In accordance with that proposal , on DATE the Government adopted the Decision on Recovery and Restructuring of the GPE banka d.d . ( “ the Decision ” ) . From that date , all shares held by the bank ’s shareholders were revoked and cancelled . Following the process of recovery , the bank was to issue new shares , all in the name of ORG for Securing Savings Deposits and ORG ( PERSON agencija za osiguranja štednih uloga i sanaciju banaka ) .

In DATE and DATE CARDINAL shareholders of the bank , but not the applicant , filed CARDINAL separate petitions for review of the constitutionality and legality ( prijedlog za ocjenu ustavnosti i zakonitosti ) of ORG Decision of DATE . They complained that the Decision violated their constitutional rights as shareholders of the bank . They also claimed that the bank had been in good standing and that the ORG had therefore been unnecessary .

On DATE ORG ( Ustavni sud PERSON ) discontinued the proceedings because the statute on which the ORG was based had in the meantime been repealed .

On DATE the applicant brought a civil action for unjust enrichment ( or enrichment without cause ) in ORG ( PERSON u GPE ) against the bank , seeking repayment of CARDINAL NORP kunas ( HRK ) . He relied on section CARDINAL(CARDINAL ) of LAW . The applicant explained that on DATE he had bought CARDINAL of the bank ’s ordinary shares for the above amount . However , on the basis of ORG Decision of DATE he had been deprived of those shares . He argued that the ORG had actually annulled the contract under which the bank had sold him its shares . That contract , being the cause on the basis of which he had paid HRK CARDINAL,CARDINAL to the bank , had thus ceased to exist . It followed that the bank had enriched itself without cause , or more precisely , on the basis of a cause which had subsequently ceased to exist , and had therefore been bound to return to him the sum in question .

On DATE ORG dismissed his action . It rejected the applicant ’s argument that ORG LAW DATE had annulled the contract under which he had acquired the bank ’s shares . Consequently , the court found that the cause on the basis of which he had paid HRK CARDINAL,CARDINAL to the bank had not ceased to exist and that the bank had not been bound to return the sum demanded .

Following an appeal by the applicant , on DATE ORG ( PERSON u GPE ) quashed the first - instance judgment on account of incomplete facts and remitted the case . It also instructed the lower court to verify whether the contract under which the applicant had bought the shares could be rescinded under LAW on account of the fundamental change in circumstances , having regard to ORG Decision of DATE .

In the resumed proceedings , on DATE ORG ruled for the applicant , finding that the bank had indeed enriched itself without cause . The court again did not accept the applicant ’s argument that the contract of sale on the basis of which he had bought the bank ’s shares had been annulled by ORG of DATE . It however held that , because of that ORG , the contract had lost one of the essential elements for the validity of every contract , namely its consideration , defined as the economic purpose of a transaction . Relying on section CARDINAL of LAW , the court further found that , owing to the absence of consideration , the contract was null and void . Accordingly , the nullity of the contract had resulted in the disappearance of the cause on the basis of which the applicant had paid the bank the sum sought and the bank had been obliged to return that sum to him .

Following an appeal by the respondent , on DATE ORG reversed the first - instance judgment and dismissed the applicant ’s action . It found that ORG LAW DATE had not annulled the applicant ’s contract with the bank relating to the purchase of the shares . Moreover , the ORG could not in any other way have affected the validity of that contract because the parties had performed , and thereby extinguished , their contractual obligations before the LAW had been adopted ( the applicant by paying HRK CARDINAL,CARDINAL to the bank , and the bank by transferring CARDINAL of its shares to him ) . It followed that at the relevant time ( during its existence ) the applicant ’s contractual obligation had been performed for consideration which could not subsequently have been removed by an event that took place after that obligation had already been extinguished . The contract in question had thus been valid . As that contract had been the cause on the basis of which the applicant had paid HRK CARDINAL to the bank , and had been valid , it could not be argued that this cause had ceased to exist and that the bank had been bound to repay him the amount sought . The conditions for rescission of the contract on the basis of a fundamental change in circumstances had not been met either , because under section CARDINAL(CARDINAL ) of LAW such rescission could not have been sought by a party who had already performed his or her contractual obligations .

On DATE the applicant lodged a constitutional complaint against the second - instance judgment , alleging breaches of ORG CARDINAL ( CARDINAL ) , DATE and CARDINAL of the LAW .

On DATE ORG dismissed his constitutional complaint .

The relevant provisions of LAW ORG , ORG nos . CARDINAL , CARDINAL , DATE ( consolidated text ) , DATE , DATE ( consolidated text ) , CARDINAL and CARDINAL/CARDINAL ( consolidated text ) , CARDINAL ( corrigendum ) ) provide as follows :

“ The right to property is guaranteed . ”

“ The rights acquired through the investment of capital shall not be diminished by law , or by any other legal act . ”

“ CARDINAL . Property [ rights ] may be restricted or taken in accordance with the law and in the interest of GPE upon payment of compensation equal to its market value .

The exercise ... of property rights may exceptionally be restricted by law for the protection of the interests and security of GPE , nature , the environment or health . ”

The relevant provisions of LAW ( Zakon o bankama , ORG no . PERSON ) read as follows :

“ When ORG establishes that the potential losses of a bank ... are higher than that bank ’s share capital and in cases where a bank is insolvent , it shall appoint a temporary administrator to that bank , or shall file a petition with the competent court with a view to opening bankruptcy proceedings against that bank . ”

“ From the date of service of the decision on the appointment of a temporary administrator , all powers of the management board , supervisory board and ORG general meeting shall cease and shall at the same time be transferred to the temporary administrator . ”

“ On the proposal of ORG , the Government of GPE may decide to commence the process of recovery of a bank if it establishes that this is in the ORG ’s special interest and if it finds that the other possibilities of preventing disturbance in the stability of the overall financial system of the ORG have been exhausted . ”

The relevant provisions of the Act on Recovery and Restructuring of Banks ( Zakon o sanaciji i restrukturiranju banaka , ORG no . DATE “ the Recovery and Restructuring Act ” ) read as follows :

“ The procedure of recovery and restructuring of a bank shall be initiated when a bank shows potential losses ... of PERCENT of the amount of its share capital , if ORG deems such procedure feasible and economically justifiable . ”

“ The decision on recovery and restructuring of a bank shall be given by ORG on the proposal of ORG . ”

The Recovery and Restructuring Act was repealed on DATE by the entry into force of LAW o prestanku važenja zakona o sanaciji i restrukturiranju banaka , ORG no . CARDINAL of DATE ) .

The Decision on Recovery and Restructuring of the GPE banka d.d . ( ORG o sanaciji i restrukturiranju GPE banke d.d . , GPE , ORG nos . CARDINAL and CARDINAL/CARDINAL – “ the Decision ” ) , in its relevant part , read as follows :

“ It is established that on DATE the bank has :

( a ) risky investments and potential liabilities in the amount of CARDINAL kunas , including potential losses of CARDINAL kunas ;

( b ) suspected and disputed claims ... in the amount of CARDINAL kunas ;

( c ) business losses incurred in DATE and DATE and DATE in the amount of CARDINAL kunas . ”

“ On DATE of the publication of this Decision all existing shares of the ORG shall be revoked and cancelled . The ORG shall issue new shares in the amount of MONEY kunas , which shall be entirely owned by the ORG . ”

The relevant part of LAW ( Zakon o sudovima , ORG nos . CARDINAL , DATE , CARDINAL/CARDINAL and CARDINAL ) , as in force at the material time , read as follows :

Commercial courts ... shall adjudicate :

Disputes concerning the establishment , operation and dissolution of commercial companies as well as disputes concerning disposition of membership and membership rights in such companies ... ”

The relevant part of LAW ( Zakon obveznim odnosima , ORG nos . CARDINAL , CARDINAL , DATE , DATE , CARDINAL , CARDINAL , CARDINAL and CARDINAL ) , read as follows :

“ ( CARDINAL ) Every contractual obligation shall have permissible consideration .

( CARDINAL ) Consideration shall be impermissible if it is contrary to the LAW , peremptory rules or public morals .

( CARDINAL ) It shall be assumed that an obligation has consideration even if it is not expressly stated . ”

“ If consideration is inexistent or impermissible , the contract shall be null and void . ”

“ ( CARDINAL ) If , after a contract has been entered into , circumstances occur which make the performance of the obligations of CARDINAL party more difficult , or if , owing to such circumstances the purpose of the contract can not be attained , and in both cases to the extent that the contract obviously no longer corresponds to the expectations of the contracting parties and that , according to general opinion , it would be unfair to maintain the contract as it is , the party for which performance has been rendered more difficult or the party which , owing to the [ fundamentally ] changed circumstances , can not attain the purpose of the contract , may request that the contract be rescinded .

( CARDINAL ) ...

( CARDINAL ) The party requesting the rescission of the contract can not rely on [ fundamentally ] changed circumstances which have occurred after the expiry of the time - limit set forth for the performance of his or her obligation .

( CARDINAL ) ...

ENRICHMENT WITHOUT CAUSE

“ ( CARDINAL ) When a part of the property of CARDINAL person passes , by any means , into the property of another person , and that transfer has no basis in a legal transaction or a statute [ i.e. it is without cause ] , the beneficiary shall be bound to return that property . If restitution is not possible , he or she shall be bound to provide compensation for the value of the benefit received .

( CARDINAL ) ...

( CARDINAL ) The obligation to return the property or provide compensation for its value shall arise even when something is received on account of a cause which did not come into existence or which subsequently ceased to exist . ”

On DATE the High Commercial Court ( ORG trgovački sud PERSON ) delivered judgment no . Pž-CARDINAL/CARDINAL - CARDINAL in a case where the plaintiff , a shareholder of the GPE banka d.d . , had sued the bank and ORG for Securing Savings Deposits and ORG before the competent commercial court claiming that she had been deprived of her shares and the rights derived from them without any compensation . She sought a declaratory judgment that she was still a shareholder of the bank and asked the court to order the respondents to transfer her back CARDINAL of her shares . In ruling for the plaintiff the High Commercial Court directly applied Articles CARDINAL ( CARDINAL ) and DATE ( CARDINAL ) of the LAW . It expressly stated that ORG Decision of DATE was contrary to the latter Article and reasoned as follows :

“ In particular , any restriction or deprivation of the rights deriving from shares would be contrary to that provision of the LAW , as it would constitute diminution or deprivation of membership rights acquired through the investment of capital in a joint - stock company . ”


CASE OF OTTO-PREMINGER-INSTITUT v. AUSTRIA

Preliminary objections rejected (victim, estoppel);Preliminary objection rejected (six month period);No violation of Art. 10

ORG The applicant , PERSON - Institut für audiovisuelle PERSON ( ORG ) , is a private association under NORP law established in GPE . According to its articles of association , it is a non - profit - making organisation , its general aim being to promote creativity , communication and entertainment through the audiovisual media . Its activities include operating a cinema called " Cinematograph " in GPE .

ORG The applicant association announced a series of CARDINAL showings , which would be accessible to the general public , of the film PERSON ( " Council in Heaven " ) by PERSON ( see paragraph CARDINAL below ) . The first of these showings was scheduled for CARDINAL DATE . All were to take place at TIME except for CARDINAL matinée performance on DATE at TIME

This announcement was made in an information bulletin distributed by ORG to its CARDINAL members and in various display windows in GPE including that of the FAC itself . It was worded as follows :

" PERSON satirical tragedy set in Heaven was filmed by PERSON from a performance by ORG in GPE and set in the context of a reconstruction of the writer ’s trial and conviction in DATE for blasphemy . PERSON starts from the assumption that syphilis was God ’s punishment for man ’s fornication and sinfulness at the time of the ORG , especially at the court of the PERSON Pope PERSON . In PERSON ’s film , PERSON ’s representatives on LOC carrying the insignia of worldly power closely resemble the heavenly protagonists .

Trivial imagery and absurdities of the NORP creed are targeted in a caricatural mode and the relationship between religious beliefs and worldly mechanisms of oppression is investigated . "

In addition , the information bulletin carried a statement to the effect that , in accordance with FAC ( PERSON ) , persons DATE were prohibited from seeing the film .

A regional newspaper also announced the title of the film and the date and place of the showing without giving any particulars as to its contents .

ORG At the request of the FAC diocese of ORG , the public prosecutor instituted criminal proceedings against ORG ’s manager , Mr PERSON , on DATE . The charge was " disparaging religious doctrines " ( Herabwürdigung religiöser Lehren ) , an act prohibited by LAW .

ORG On DATE , after the film had been shown at a private session in the presence of a duty judge ( GPE ) , the public prosecutor made an application for its seizure under section CARDINAL of LAW ( Mediengesetz - see paragraph CARDINAL below ) . This application was granted by ORG ( PERSON ) DATE . As a result , the public showings announced by ORG , the first of which had been scheduled for DATE , could not take place .

Those who attended at the time set for the first showing were treated to a reading of the script and a discussion instead .

As PERSON had returned the film to the distributor , the " Czerny " company in GPE , it was in fact seized at the latter ’s LOC on DATE .

ORG An appeal by PERSON against the seizure order , filed with ORG ( ORG ) , was dismissed on DATE . ORG considered that artistic freedom was necessarily limited by the rights of others to freedom of religion and by the duty of the ORG to safeguard a society based on order and tolerance . It further held that indignation was " justified " for the purposes of section CARDINAL of LAW only if its object was such as to offend the religious feelings of an average person with normal religious sensitivity . That condition was fulfilled in the instant case and forfeiture of the film could be ordered in principle , at least in " objective proceedings " ( see paragraph CARDINAL below ) . The wholesale derision of religious feeling outweighed any interest the general public might have in information or the financial interests of persons wishing to show the film .

ORG On DATE the criminal prosecution against PERSON was discontinued and the case was pursued in the form of " objective proceedings " under LAW para . CARDINAL of LAW aimed at suppression of the film .

ORG On DATE a trial took place before ORG . The film was again shown in closed session ; its contents were described in detail in the official record of the hearing .

Mr PERSON appears in the official record of the hearing as a witness . He stated that he had sent the film back to the distributor following the seizure order because he wanted nothing more to do with the matter .

It appears from the judgment - which was delivered the same day - that Mr PERSON was considered to be a " potentially liable interested party " ( PERSON ) .

ORG found it to be established that the distributor of the film had waived its right to be heard and had agreed to the destruction of its copy of the film .

ORG In its judgment ORG ordered the forfeiture of the film . It held :

" The public projection scheduled for CARDINAL DATE of the film PERSON , in which God the Father is presented both in image and in text as a senile , impotent idiot , PERSON as a cretin and PERSON of God as a wanton lady with a corresponding manner of expression and in which the ORG is ridiculed , came within the definition of the criminal offence of disparaging religious precepts as laid down in section CARDINAL of LAW . "

The court ’s reasoning included the following :

" The conditions of section CARDINAL of LAW are objectively fulfilled by this portrayal of the divine persons - God the Father , PERSON of God and PERSON are the central figures in NORP religious doctrine and practice , being of the most essential importance , also for the religious understanding of the believers - as well as by the above - mentioned expressions concerning the Eucharist , which is one of the most important mysteries of the NORP religion , the more so in view of the general character of the film as an attack on NORP religions ...

... Article PERSON of LAW Staatsgrundgesetz ) guarantees the freedom of artistic creation and the publication and teaching of article The scope of artistic freedom was broadened ( by the introduction of that article ) to the extent that every form of artistic expression is protected and limitations of artistic freedom are no longer possible by way of an express legal provision but may only follow from the limitations inherent in this freedom ... . Artistic freedom can not be unlimited . The limitations on artistic freedom are to be found , firstly , in other basic rights and freedoms guaranteed by LAW ( such as the freedom of religion and conscience ) , secondly , in the need for an ordered form of human coexistence based on tolerance , and finally in flagrant and extreme violations of other interests protected by law ( GPE anderer rechtlich geschützter GPE ) , the specific circumstances having to be weighed up against each other in each case , taking due account of all relevant considerations ...

The fact that the conditions of section CARDINAL of LAW are fulfilled does not automatically mean that the limit of the artistic freedom guaranteed by LAW has been reached . However , in view of the above considerations and the particular gravity in the instant case - which concerned a film primarily intended to be provocative and aimed at ORG multiple and sustained violation of legally protected interests , the basic right of artistic freedom will in the instant case have to come second .

Mr PERSON appealed against the judgment of ORG , submitting a declaration signed by CARDINAL persons who protested that they had been prevented from having free access to a work of art , and claiming that section CARDINAL of LAW had not been interpreted in line with the guarantee of freedom of art laid down by LAW .

ORG declared the appeal inadmissible on CARDINAL DATE . It found that PERSON had no standing , as he was not the owner of the copyright of the film . The judgment was notified to ORG on DATE .

ORG Prompted by the applicant association ’s lawyer , the then Minister for Education , ORG , Dr PERSON , wrote a private letter to the Attorney General ( Generalprokurator ) suggesting the filing of a plea of nullity for safeguarding the law ( Nichtigkeitsbeschwerde zur Wahrung des Gesetzes ) with ORG ( Oberster Gerichtshof ) . The letter was dated CARDINAL DATE and mentioned , inter alia , LAW ) of the Convention .

The Attorney General decided on DATE that there were no grounds for filing such a plea of nullity . The decision mentioned , inter alia , that the Attorney General ’s Department ( PERSON ) had long held the view that artistic freedom was limited by other basic rights and referred to the ruling of ORG in the case concerning the film PERSON ( " The Ghost " - see paragraph CARDINAL below ) ; in the Attorney General ’s opinion , in that case ORG had " at least not disapproved " of that view ( " PERSON ... wurde PERSON ... zumindest nicht mißbilligt " ) .

ORG There have been theatre performances of the original play in GPE since then : in GPE in DATE , and in GPE in DATE . In GPE the prosecuting authorities took no action . In GPE several criminal complaints ( Strafanzeigen ) were laid by private persons ; preliminary investigations were conducted , following which the prosecuting authorities decided to discontinue the proceedings .

ORG The play on which the film is based was written by PERSON and published in DATE . In DATE PERSON was found guilty by ORG ( ORG ) of " crimes against religion " and sentenced to a term of imprisonment . The play was banned in GPE although it continued in print elsewhere .

ORG The play portrays God the Father as old , infirm and ineffective , PERSON as a " mummy ’s boy " of low intelligence and PERSON , who is obviously in charge , as an unprincipled wanton . Together they decide that mankind must be punished for its immorality . They reject the possibility of outright destruction in favour of a form of punishment which will leave it both " in need of salvation " and " capable of redemption " . Being unable to think of such a punishment by themselves , they decide to call on the PERSON for help .

The PERSON suggests the idea of a sexually transmitted affliction , so that men and women will infect one another without realising it ; he procreates with ORG to produce a daughter who will spread it among mankind . The symptoms as described by the PERSON are those of syphilis .

As his reward , the PERSON claims freedom of thought ; PERSON says that she will " think about it " . The PERSON then dispatches his daughter to do her work , first among those who represent worldly power , then to the court of the Pope , to the bishops , to the convents and monasteries and finally to the common people .

ORG The film , directed by PERSON , was released in DATE . It begins and ends with scenes purporting to be taken from the trial of PERSON in DATE . In between , it shows a performance of the play by the Teatro Belli in GPE . The film portrays the God of the NORP religion , the NORP religion and the NORP religion as an apparently senile old man prostrating himself before the PERSON with whom he exchanges a deep kiss and calling the PERSON his friend . He is also portrayed as swearing by the PERSON . Other scenes show PERSON permitting an obscene story to be read to her and the manifestation of a degree of erotic tension between PERSON and the PERSON . The adult PERSON is portrayed as a low grade mental defective and in one scene is shown lasciviously attempting to fondle and kiss his mother ’s breasts , which she is shown as permitting . God , PERSON and GPE are shown in the film applauding the PERSON .

ORG Religious freedom is guaranteed by LAW , which reads :

" ( CARDINAL ) Complete freedom of beliefs and conscience is guaranteed to everyone .

( CARDINAL ) Enjoyment of civil and political rights shall be independent of religious confessions ; however , a religious confession may not stand in the way of civic duties .

( CARDINAL ) No one shall be compelled to take any church - related action or to participate in any church - related celebration , except in pursuance of a power conferred by law on another person to whose authority he is subject . "

ORG Artistic freedom is guaranteed by LAW , which provides :

" There shall be freedom of artistic creation and of the publication and teaching of article "

Section CARDINAL of the Penal Code reads as follows :

" Whoever , in circumstances where his behaviour is likely to arouse justified indignation , disparages or insults a person who , or an object which , is an object of veneration of a church or religious community established within the country , or a dogma , a lawful custom or a lawful institution of such a church or religious community , shall be liable to a prison sentence of DATE or a fine of CARDINAL DATE rates . "

ORG The leading judgment of ORG on the relationship between the above CARDINAL provisions was delivered after a plea of nullity for safeguarding the law filed by the Attorney General in a case concerning forfeiture of the film PERSON ( " The Ghost " ) by PERSON . Although the plea was dismissed on purely formal grounds without any decision on the merits , it appeared obliquely from the judgment that if a work of art impinges on the freedom of religious worship guaranteed by LAW , that may constitute an abuse of the freedom of artistic expression and therefore be contrary to the law ( judgment of DATE , ORG ( ORG and Law ) DATE , no . CARDINAL , p. CARDINAL ) .

ORG A media offence ( ORG ) is defined as " [ a]n act entailing liability to a judicial penalty , committed through the content of a publication medium , consisting in a communication or performance aimed at a relatively large number of persons " ( section CARDINAL para . CARDINAL of LAW ) . Criminal liability for such offences is determined according to the general penal law , in so far as it is not derogated from or added to by special provisions of LAW ( section CARDINAL of LAW ) .

ORG A specific sanction provided for by LAW is forfeiture ( GPE ) of the publication concerned ( section CARDINAL ) . Forfeiture may be ordered in addition to any normal sanction under LAW ( section CARDINAL para . CARDINAL ) .

If prosecution or conviction of any person for a criminal offence is not possible , forfeiture can also be ordered in separate so - called " objective " proceedings for the suppression of a publication , as provided for under LAW para . CARDINAL of LAW , by virtue of which :

" Forfeiture shall be ordered in separate proceedings at the request of the public prosecutor if a publication in the media satisfies the objective definition of a criminal offence and if the prosecution of a particular person can not be secured or if conviction of such person is impossible on grounds precluding punishment ... "

ORG The seizure ( Beschlagnahme ) of a publication pending the decision on forfeiture may be effected pursuant to section CARDINAL of LAW , which reads :

" CARDINAL . The court may order the seizure of the copies intended for distribution to the public of a work published through the media if it can be assumed that forfeiture will be ordered under section CARDINAL and if the adverse consequences of such seizure are not disproportionate to the legitimate interests served thereby . Seizure may not be effected in any case if such legitimate interests can also be served by publication of a notice concerning the criminal proceedings instituted .

Seizure presupposes the prior or simultaneous institution of criminal proceedings or objective proceedings concerning a media offence and an express application to that effect by the public prosecutor or the complainant in separate proceedings .

The decision ordering seizure shall mention the passage or part of the published work and the suspected offence having prompted the seizure ...

CARDINAL - CARDINAL . ... "

ORG The general law of criminal procedure applies to the prosecution of media offences and to objective proceedings . Although in objective proceedings the owner or publisher of the published work does not stand accused of any criminal offence , he is treated as a full party , by virtue of section CARDINAL para . CARDINAL , which reads :

" [ In criminal proceedings or objective proceedings concerning a media offence ] the media owner ( publisher ) shall be summoned to the hearing . He shall have the rights of the accused ; in particular , he shall be entitled to the same defences as the accused and to appeal against the judgment on the merits ... "


Violation of Art. 6-1;Violation of Art. 13;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE .

On DATE he was arrested , charged with the rape of a minor and remanded in custody . CARDINAL other persons were also charged .

According to the indictment , the victim had been abducted by DATE and had been raped numerous times by several persons , some of whom had paid to PERSON for having sex with the victim . PERSON was charged with rape and acting as a procurer of prostitution . According to the applicant , all accused persons and the alleged victim are of GPE origin .

On unspecified dates an investigator interrogated the alleged victim and other accused persons and heard several experts .

NORP In DATE the applicant and CARDINAL other persons were indicted and the case listed for trial .

In DATE and DATE the trial court referred the case to the prosecutor in view of certain deficiencies in the investigation . On CARDINAL DATE the applicant was released on bail .

NORP In DATE the investigator concluded his work and submitted the file to the prosecutor .

In DATE the prosecutor ordered additional investigation . In DATE the investigator submitted the case to the prosecutor with the proposal that the applicant should be indicted .

In DATE the applicant ’s lawyer lodged requests with the prosecuting authorities complaining of the length of the criminal proceedings .

On DATE , noting that the case had remained dormant since DATE , a prosecutor ordered the resumption of the proceedings and referred the case to an investigator .

On DATE the investigator objected , stating that in view of the lapse of time , the ensuing evidentiary difficulties and the workload of the investigation service it was preferable to terminate the proceedings .

The prosecutor did not accept the investigator ’s proposal and on DATE ordered additional investigation .

It appears that as of DATE the proceedings were still pending .

NORP In DATE an amendment to LAW , the new Article CARDINALa , introduced the possibility for an accused person to have his case examined by a trial court if the investigation has not been completed within the statutory time - limit ( DATE in investigations concerning serious crimes and DATE in all other investigations ) .

By letter postmarked CARDINAL DATE the applicant ’s lawyer stated that his client had informed him that he did not intend to pursue the application since his relatives and the persons with whom he stood co - accused feared “ an adverse reaction by the ORG ” if he maintained his application .

After the ORG ’s admissibility decision the parties exchanged observations on the merits and on just satisfaction . The applicant ’s lawyer submitted that the ORG should continue the examination of the case which disclosed a flagrant denial of justice . The ORG objected .

On DATE the applicant submitted a written declaration stating that he did not claim monetary compensation from the ORG , but insisted that the criminal proceedings against him should be terminated , as he had already suffered a lot . He also stated that he left the issue of costs at the ORG ’s discretion .


András Sajó;David Thór Björgvinsson;Françoise Tulkens;Giorgio Malinverni;Paulo Pinto De Albuquerque

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He is represented before the Court by Mr A. Yum and Mr PERSON , lawyers practising in GPE . ORG ( “ the Government ” ) are represented by their Agent .

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

On DATE the Governorship of GPE expropriated a CARDINAL sq . m plot of land belonging to the applicant ( block no . CARDINAL , plot no . DATE ) , located in the Kocasinan Soğanlıbahçe region of GPE , GPE , to be used as a public school yard . It assessed the value of the land at MONEY ( TRL ) , that is , TRL CARDINAL per sq . m.

On DATE the administration sought to notify the applicant of the expropriation decision through a notary public . However , this notification did not reach the applicant as the service was made at the wrong address .

On DATE the applicant ’s lawyer obtained the expropriation decision from ORG in person and the expropriation was thus finalised .

On DATE , within the DATE prescription period stipulated in section QUANTITY of LAW ( Law no . CARDINAL ) , the applicant brought an action before ORG for additional expropriation compensation . He requested GPE CARDINAL in additional compensation , valuing the land at FAC per sq . m , and reserved the right to increase this claim . He did not request payment of interest .

On DATE the ownership of the plot of land was transferred to the administration in the title deed register .

On DATE the administration paid the applicant the previously assessed amount of TRL CARDINAL as compensation for expropriation .

On DATE the committee of experts appointed by ORG assessed the value of the land at FAC per sq . m. This evaluation was made on the basis of the value of the land on DATE , the date on which the applicant ’s lawyer was notified of the expropriation decision . The experts , however , noted that the compensation to be paid to the applicant at the end of the proceedings should be limited to his original claim in accordance with the relevant procedural rules .

On an unspecified date the applicant ’s lawyer submitted a petition to ORG , requesting that court , firstly , to apply interest on the amount of compensation to be awarded , and secondly to grant them additional time to bring an additional action ( “ ek dava ” ) to be able to claim an increased amount in compensation for the land .

At the hearing held on DATE the applicant ’s lawyer repeated his claim regarding the interest but did not bring up the request for an additional action . At the end of the hearing , ORG declared that the request regarding the interest would be entertained . It did not , however , take any decision on the request regarding an additional action , which had been made out of time .

Given the considerable discrepancy between the experts’ evaluation and that of the administration , the court appointed another committee of experts to report on the value of the land . This new committee conducted an examination on DATE and valued the land at TRL CARDINAL per sq . m as on DATE . However , it was again noted that the additional compensation was to be limited to the applicant ’s original claim .

On DATE the ORG accepted the applicant ’s claim in full and awarded him GPE CARDINAL in additional compensation , plus interest at the statutory rate running from DATE . That court stated that although the value of the land at the relevant time had been assessed to be higher in the expert reports , it was bound by the applicant ’s claim of GPE CARDINAL , and therefore could not award him a higher amount .

On an unspecified date , the applicant appealed against the judgment of the firstinstance court . He complained in particular that the value of his land had increased dramatically DATE , the date when he had brought the case before ORG , and DATE , the date when the second expert report had been obtained . In these circumstances , the insistence of the first - instance court on being bound by his initial claim had caused him significant financial loss . Having been obliged to bring his claim within the DATE prescription period , he could not possibly have foreseen such a radical increase in the value of his land .

On DATE ORG upheld the judgment of ORG .

On DATE ORG rejected the applicant ’s request for rectification of its previous decision . That decision was served on the applicant on DATE .

On DATE the administration paid the applicant TRL CARDINAL in additional compensation , including interest .

According to section CARDINAL of LAW ( Law no . CARDINAL of CARDINAL DATE ) , the owner of an expropriated property may , within DATE of notification of the expropriation decision , bring an action to challenge the amount of compensation assessed by the authorities .

According to LAW , the civil courts are bound by the claims of the parties and may not award a higher amount than requested .


André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Karel Jungwiert;Mark Villiger

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE , GPE .

On DATE the local electricity supply company , ORG , cut off the electricity in the applicant ’s house , allegedly because the electricity counter in his house was not properly sealed so the electricity used by him was not being properly metered . In DATE the applicant lodged a civil claim before ORG of LOC against O. , requesting that his house be re - connected to the electricity network , and claiming CARDINAL NORP hryvnas ( ORG ) ( at the material time MONEY ( ORG ) ) in compensation for non - pecuniary damage . The applicant alleged that without electricity he had not been able to properly store food , to cook and to relax in the TIME . He also claimed costs and expenses .

On DATE the court found in part for the applicant . The court ordered O. to re - connect the applicant ’s house to the electricity network , and awarded him UAH CARDINAL in compensation for non - pecuniary damage ( at the material time around EUR CARDINAL ) and ORG CARDINAL.CARDINAL ( at the material time around EUR CARDINAL ) in costs and expenses .

On DATE the ORG upheld this decision . O. appealed in cassation . The applicant stated that he had not been informed about it and had had no opportunity to comment on the defendant ’s appeal in cassation .

On DATE ORG of GPE , in the absence of the parties , quashed the above decisions in so far as they had awarded the applicant compensation for non - pecuniary damage , and rejected his claim for damages .


CASE OF WHITFIELD AND OTHERS v. THE UNITED KINGDOM

Violation of Art. 6-1 in respect of three applicants;Violation of Art. 6-3-c in respect of all applicants;Not necessary to examine Art. 6-3-b;No violation of Art. 5 alone or in conjunction with Art. 13;Non-pecuniary damage - findings of violations sufficient (with regard to three applicants);Non-pecuniary damage - financial award (with regard to one applicant);Costs and expenses award - Convention proceedings

The first applicant was born in DATE and is currently in prison in LOC , the second was born in DATE and lives in GPE and the third was born in DATE and lives in GPE . The fourth applicant was born in DATE .

On DATE the applicant was sentenced to CARDINAL years’ imprisonment following a conviction for causing grievous bodily harm .

It was later alleged that on DATE , as he was being transferred to ORG , a fight broke out during which he “ headbutted ” one of the prison officers . On DATE he was charged with assault contrary to Rule CARDINAL(CARDINAL ) of the Prison Rules DATE .

The adjudication hearing before the governor commenced on DATE and continued on DATE when a letter was received from the applicant ’s solicitor requesting that he be legally represented at the hearing . The governor adjourned the hearing until DATE to consider the request . On DATE legal aid was granted by ORG for representation prior to and at the adjudication hearing .

On DATE the applicant orally outlined to the governor why he needed legal representation but the governor rejected the request :

“ I have considered the case for legal [ representation ] . I do not feel there is an issue of seriousness or potential penalty . You are able to conduct your defence . You have access to check original with the prisoners you may call as witness . I do not consider you have been unfairly treated in comparison with the other prisoner so charged . No points of law are in question ” .

By letter of CARDINAL DATE the applicant ’s solicitors asked the governor to reconsider . By letter of CARDINAL DATE the prison service responded explaining that in considering requests for representation governors did not need to be sure beyond reasonable doubt that representation was not needed before rejecting a request but were required to take account of the CARDINAL criteria set out in the “ GPE principles ” ( NORP v. Secretary of ORG for ORG ex parte Tarrant [ DATE ] ORG ) .

The adjudication hearing resumed on DATE . The applicant again requested legal representation for the hearing without success . The governor found the applicant guilty ( adding “ whether your actions were deliberate or reckless , although you have not advanced that as a defence ” ) and sentenced him to CARDINAL “ additional days ” pursuant to Rule CARDINAL ( CARDINAL ) ( f ) of the Prison Rules DATE .

On DATE his solicitors appealed to the Secretary of ORG referring to the imminent incorporation into domestic law of LAW and to the failure to grant legal representation for the hearing . By letter dated DATE the Secretary of ORG rejected the appeal stating that the adjudication had been thoroughly reviewed , that the hearing had been fairly conducted and that the findings should be upheld .

The applicant was granted legal aid to obtain counsel ’s opinion on the lawfulness of the governor ’s decision of CARDINAL DATE . Counsel advised on DATE that the applicant had no realistic prospects of success given the ORG and PERSON case ( ORG and PERSON ORG [ DATE ] CARDINAL All ER CARDINAL ) . As to whether the governor ’s exercise of discretion was unreasonable , the “ GPE criteria ” , the “ relatively minor nature of the offence ” and the capacity of the applicant , meant that the prospects of passing the “ high hurdle of irrationality ” on judicial review were remote .

NORP In DATE the applicant was sentenced to DATE imprisonment for armed robbery and making threats to kill .

Following a fire in his cell , on DATE he was charged with intentionally endangering the health or personal safety of others by his conduct , or of being reckless as to whether such health or safety was endangered , contrary to rule CARDINAL of the Prison Rules DATE . He appeared at an adjudication hearing before the governor on DATE . He pleaded not guilty and the hearing was adjourned .

On DATE a solicitor submitted a written request to the governor to represent the applicant at the adjudication hearing .

On DATE the adjudication reconvened . The applicant made written representations in which he admitted telling a prison officer that he had caused the fire by throwing a lighted taper on the bed . However , he explained that that was untrue and that he believed his cell had been deliberately set on fire by other prisoners who thought that he was an informant . He had not explained this to the prison officers at the time as he was in the presence of other prisoners and he feared reprisals . He consistently maintained throughout the hearing that he had not started the fire . He cross - examined various witnesses called by the governor . The hearing continued the following day when he formally applied for legal representation for the remainder of the hearing , on the grounds that there were a large number of witnesses to be called , that the charge was a serious one and that it was difficult to be his own representative given the issue about his false admission . The governor refused his request taking the view that the offence was not sufficiently serious to warrant legal representation and that the applicant had demonstrated that he was capable of presenting his own defence . The hearing was adjourned until DATE to enable a particular prison officer to be called .

On DATE the applicant was due for early release from custody pursuant to the provisions of MONEY DATE . On TIME he fell down a flight of stairs and was injured . He was treated for head and back pain by a doctor at a hospital . Once informed of developments , the applicant ’s solicitor submitted orally to the governor that , given the applicant ’s injury , the interests of natural justice required the charge to be dismissed and the applicant to be released . Further written representations were also made : due to the nature of the injuries and the medication received , it was unreasonable for the applicant to represent himself and the charge should be dismissed and that the solicitor should be informed should the proceedings continue so that he could make further representations . These written representations were not seen by the governor until after the adjudication hearing . The applicant returned to prison after his treatment and was certified by the prison doctor as fit for adjudication . The adjudication recommenced DATE ( DATE ) and the applicant was accompanied at the hearing by a medical officer . While prison staff maintained that he was alert and able to conduct his defence ( even asking for the hearing to commence ) , the applicant stated that he felt so dizzy and ill that he could not concentrate and was incapable of asking questions or putting forward his case . DATE he was found guilty as charged and was sentenced to CARDINAL additional days’ detention to commence on DATE .

The applicant applied to the Secretary of ORG to review the hearing . He maintained that he had been unable to conduct his defence properly because of the medication and that the governor erred in refusing legal representation given the seriousness of the charge . The Secretary of ORG upheld the finding and punishment . An application for leave to apply for judicial review was lodged , leave was granted , ORG hearing took place on DATE but the substantive application for judicial review was dismissed .

The applicant was released on DATE .

On DATE the applicant was sentenced to CARDINAL months’ imprisonment following conviction for violent disorder , affray , criminal damage and breach of a supervision order . He was detained at a young ORG institution in GPE .

On DATE he was charged with assaulting ( punch in the face ) another inmate ( H ) contrary to Rule CARDINAL(CARDINAL ) of ORG DATE . The applicant claimed that he asked to see a solicitor but was told that he was not allowed to do so . He then pleaded guilty to the charge . On DATE the deputy controller of the prison commenced the adjudication of the charge . However , once it became apparent that H ’s jaw had been broken , the adjudication was adjourned and the charge was referred to the police for investigation .

On DATE the applicant ’s solicitors wrote to the controller requesting confirmation that the applicant could be legally represented at any adjudication . On DATE the controller responded stating that the adjudication had been adjourned as the charge had been referred to the police . He also noted that the applicant had not requested legal advice or representation at the hearing , had pleaded guilty to the charge and had apologised for the injuries caused . On DATE the controller wrote to the applicant ’s solicitors , stating that :

“ I write to advise that the victim of the alleged assault will not co - operate with the police investigation and wishes for the matter to be dealt with internally .

In view of the foregoing it is our intention to complete the hearing forthwith . As your client pleaded guilty at the initial hearing I am not prepared to allow him to be legally represented . I have applied the ‘ Tarrant’ criteria and am satisfied that he can adequately conduct his own defence and , if necessary , mitigate his actions . ”

On DATE the applicant ’s solicitors asked the controller to re - consider his refusal of legal representation : since the applicant had instructed them that it was self - defence , his guilty plea was not satisfactory . The applicant submitted that his solicitor had also advised that that defence was potentially a good one . By letter of DATE the controller rejected their request : the applicant could claim self - defence at the hearing and that claim would be examined on adjudication .

On DATE he was refused leave by ORG to seek judicial review of the controller ’s decision of DATE : there was no arguable case that the controller had failed to exercise his discretion in accordance with the above - noted GPE criteria . On CARDINAL DATE the applicant ’s renewed application for leave to seek judicial review to ORG was refused . It was considered a simple case in which the applicant had sworn an affidavit setting out his account of the incident including a passage which claimed self - defence and the adjudicator would have to decide whether he believed the applicant or LAW case - law opened to ORG ( ORG and Fell v. the GPE judgment of DATE , Series A no . CARDINAL , PERSON v. the GPE judgment of DATE , Reports of Judgments and Decisions PERSON , and PERSON the GPE judgment of DATE , ORG ) did not establish an inflexible rule that legal representation should be accorded in every case or even a looser rule that it should be generally accorded . It was held that there was no need for legal representation and that there was no identifiable legal error in the controller ’s refusal .

On DATE the adjudication hearing took place . The applicant was found guilty as charged . He was awarded CARDINAL additional days’ imprisonment and he was to be excluded from associated work for DATE . DATE of canteen privileges together with associated dining and recreation privileges were also forfeited .

On DATE the applicant was sentenced to CARDINAL months’ imprisonment for motoring offences . His ordinary release date would have been DATE .

On DATE he was charged with a breach of prison discipline contrary to paragraph CARDINAL(CARDINAL ) of the Prison Rules DATE , it being alleged that he had thrown burning material from a cell window . The hearing was adjourned to allow it to be heard by the deputy governor .

On DATE , upon his return from annual leave , the applicant ’s solicitor received a letter from the applicant denying the charges and requesting urgent assistance . The solicitor sent a facsimile to the governor at TIME on DATE requesting an adjournment to enable him to take urgent instructions and provide legal advice . The hearing resumed on DATE when the deputy governor refused an adjournment . It is recorded on the applicant ’s “ Record of Hearing and Adjudication ” that the deputy governor stated the following :

“ I have a letter from your solicitor requesting that you be allowed legal advice . I have considered your request and refuse it on the following grounds .

No points of law are likely to arise .

You can present your own case .

Although the charge is serious it does not require a solicitor to mitigate it .

There are no procedural difficulties .

There is a need for reasonable speed . There has already been a delay . ”

The deputy governor found the applicant guilty as charged and awarded CARDINAL additional days’ imprisonment .

An application for leave to apply for judicial review was made arguing that the imprisonment was based upon a punishment , the legality of which was seriously flawed both on grounds of irrationality and procedural unfairness . On DATE Mr. Justice PERSON granted leave but refused bail . On DATE the Secretary of ORG quashed the punishment in the following terms :

“ The adjudication detailed above has been reviewed and it has now been decided that the finding of guilt should be quashed on the grounds that the adjudicator should have offered Mr. PERSON a limited opportunity to consult with his solicitors . Although Mr. PERSON did not apply for legal advice or assistance at the original hearing on DATE he should have been given the opportunity to discuss matters with his solicitor , possibly by telephone to arrange for a meeting DATE , and given a deadline for obtaining the advice he sought . A time limit could have been set to ensure that the prisoner did not delay the hearing unnecessarily . In view of the urgency of this case , please arrange for Mr. PERSON to be released immediately as this decision means that he is serving added days now . ”

The applicant was released at TIME on DATE , having served CARDINAL of DATE awarded .

By letter dated CARDINAL DATE the ORG Solicitor refused to admit liability in respect of the alleged unlawful imprisonment . Counsel was therefore asked to advise whether there existed any effective domestic remedy which the applicant could pursue in respect of the relevant DATE period of detention . Counsel advised that there was no such remedy : under LANGUAGE law a disciplinary finding was presumed to be valid and , in effect , the order for additional days’ detention was valid until it was set aside .

On DATE the applicant ’s solicitor wrote to the ORG Solicitor pointing out that , in the light of ORG ’s advice , no claim for false imprisonment or misfeasance in public office would be commenced . However , it was alleged that the deputy governor ’s conduct violated LAW . A request was therefore made for an ex gratia payment to compensate the applicant for the CARDINAL days’ detention resulting from the adjudication . The ORG Solicitor responded that the matter would be considered after the publication of ORG judgment in NORP v. Governor of PERSON , ex parte PERSON . No . CARDINAL ( [ DATE ] CARDINAL WLR CARDINAL ) . The Government have not submitted that any payment was made .

The ORG refers to the law and practice outlined in the case of Ezeh and PERSON v. GPE ( [ ORG ] , ORG . CARDINAL and CARDINAL , § § DATE , ORG CARDINALX ) .

A charge was , in general , drawn up by a prison officer against whom the alleged offence was committed or who witnessed or dealt with the incident during which the alleged offence took place . Such reporting officers could consult a more senior officer on what charges were to be laid against the prisoner . A charge was formally laid when form a Notice of Report was handed to the accused . A charge had to be laid as soon as possible and , save in exceptional circumstances , within TIME of the alleged offence being discovered .

Every charge laid against a prisoner had to be inquired into by the prison governor . The governor also determined the charge against the accused during the adjudication hearing and imposed punishments from those available to him under the prison rules .

Since DATE the management of certain prisons has been contracted out to private security companies . All such “ contracted out ” prisons have a “ Controller ” ( a ORG employee ) linking them to ORG and the governors are called “ Directors ” . ORG hearings are conducted by the ORG rather than by the Director .


Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE .

On DATE the applicant was injured in a car accident . The company owning the bus that caused the accident had taken out insurance with the insurance company ZT .

On DATE the applicant instituted civil proceedings against ZT in ORG ( Okrožno sodišče v PERSON ) seeking damages in the amount of CARDINAL tolars ( MONEY ) for the injuries sustained .

On DATE and CARDINAL DATE the applicant requested that a date be set for a hearing .

DATE and DATE the applicant lodged CARDINAL preliminary written submissions and/or adduced evidence .

Of the CARDINAL hearings held DATE and DATE none was adjourned at the request of the applicant .

During the proceedings the court appointed a medical expert . The court also sought an additional opinion from the appointed expert .

At the last hearing the court decided to deliver a written judgment . The judgment , upholding the applicant ’s claim in part , was served on the applicant on DATE .

On DATE the applicant appealed to ORG ( PERSON v PERSON ) . ZT cross - appealed .

On DATE the court dismissed the appeals .

The judgment was served on the applicant on DATE .


Violation of Article 8 - Right to respect for private and family life (Article 8 - Expulsion) (Conditional) (Pakistan);Pecuniary and non-pecuniary damage - award

Anatoly Kovler;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska

The first and second applicants , who are sister and brother , were born in GPE in DATE and DATE respectively and live in GPE .

In DATE the applicants arrived in GPE with their mother and were in view of the children ’s particular situation granted a residence permit on DATE on the ground of strong humanitarian considerations ( section CARDINAL(CARDINAL ) of the former DATE LAW , see paragraph CARDINAL below ) .

During DATE the mother returned with the children to GPE , where the children first lived with their grandparents and then with their father and his wife . There they stayed until DATE , when the mother resettled in GPE with the children . In the meantime , on DATE ORG had granted them a settlement permit , while being ignorant about their stay in GPE from DATE .

In DATE the applicants’ father applied for family reunification . His application , which was refused , prompted an investigation by the immigration authorities which revealed that for most of the period from DATE to DATE the applicants and their mother had lived in GPE . The authorities further observed that the applicants had strong attachment to GPE since they had lived and gone to school in that country from DATE to DATE and because their father still lived there . On DATE ORG decided to withdraw the ORG and their ORG settlement permit , on the ground that the permit had been granted on the basis of false information provided by the mother about her and the children ’s residence in GPE . It was also decided to refuse them further residence in GPE .

On DATE ORG upheld the ORG ’s decision . Several successive requests for reconsideration were rejected . In DATE the children were apprehended with a view to being deported to GPE . However , the police decided not to do so , based on their information that they had no contact with the mother or with the family in GPE . The police considered that it would be inappropriate to expel them without their mother who had disappeared around the turn of the year DATE . The applicants had no contacts with their mother until she was hospitalised in GPE in DATE . During this period they lived with an uncle and aunt in GPE .

On DATE the second applicant was convicted for unprovoked aggravated physical assault , having hit another person with his fist causing a fracture to the victim ’s nose and a QUANTITY scar on his eyelid that had to be stitched . For this and certain other offences ( withdrawal of CARDINAL NORP Krone ( ORG ) from cash points by using another person ’s credit card ; driving a stolen moped and the possession of QUANTITY of hashish ) he was sentenced to CARDINAL days’ imprisonment .

In the light of these offences , ORG decided on DATE to expel him indefinitely , with reference to section CARDINAL ) of the DATE LAW , as he had been convicted for an offence that was punishable by CARDINAL months’ imprisonment .

NORP In DATE the applicants sought to challenge the validity of the decision of DATE and , as regards the second applicant , that of CARDINAL DATE . By a judgment of CARDINAL DATE ORG upheld their action .

In DATE the mother was expelled to GPE , in compliance with the immigration authorities’ decision ( see paragraph CARDINAL above ) . She died in DATE .

On DATE ORG found against the applicants . It was observed that when the settlement permit was revoked in DATE , the applicants had in reality resided unlawfully in GPE for DATE . At that time they had close relatives in GPE , including their father , with whom they had lived for periods DATE before . Nor did ORG find that the decision of CARDINAL DATE regarding the second applicant was disproportionate .

On DATE ORG refused the applicants leave to appeal .

On DATE the applicants lodged a previous application ( no . CARDINAL/CARDINAL ) under the Convention , complaining that their deportation to GPE would constitute a violation of NORP CARDINAL and CARDINAL of the Convention . They also requested an interim measure to stay their deportation under Rule CARDINAL of ORG . On DATE the request was refused . The applicants did not pursue their application . On DATE , a ORG of CARDINAL judges decided to strike it out of the ORG ’s list of cases ( LAW ) .

In the meantime , on DATE ORG , in CARDINAL separate decisions , rejected the ORG requests for modification of the decision of CARDINAL DATE revoking their settlement ( and residence ) permit and , as regards the second applicant , the ORG ’s decision of CARDINAL DATE to expel him indefinitely from GPE . ORG observed that such modification was not warranted either by strong humanitarian considerations or a strong attachment to GPE ( section CARDINAL ( CARDINAL ) of the former DATE LAW ) .

As regards the first applicant the ORG had regard to the fact that she had not had a residence permit since DATE and that any links established after this date ought to carry little weight . Furthermore , all of the first applicant ’s closest family lived in GPE and her brother , the second applicant , had been ordered to leave GPE indefinitely .

As regards the second applicant the ORG quoted from its decision of CARDINAL DATE and maintained its previous view :

“ As to the [ second applicant ’s ] attachment to GPE , the ORG has attached particular weight to the fact that during the period from DATE , when he had a residence permit in GPE , he had essentially lived in GPE . By ORG decision of CARDINAL DATE his settlement permit was finally revoked . He does not have a residence permit and is obliged to leave the country . In practice , links that are established during unlawful residence carry little weight . Reference is also made to the fact that [ the second applicant ’s ] mother and sister do not hold a residence permit and are obliged to leave the country . In addition , the applicant has close family in his home country . He therefore ought to be seen as having relatively strong attachment to his home country .

The ORG can not see that the [ second applicant ’s ] current situation has been significantly changed since the situation considered in the decision of CARDINAL DATE . ”

In respect of both applicants ORG also referred to the reasoning and conclusions in earlier decisions and judgments and emphasised that its conclusions in the present decisions ought to be viewed in the context of those .

In DATE the applicants challenged that decision before the courts . In this connection they both requested an interlocutory injunction to stop their deportation . These requests were rejected by ORG on DATE and ORG on DATE .

By a judgment of DATE , ORG quashed ORG decision of CARDINAL DATE , disagreeing with the ORG ’s assessment that the applicants lacked special attachment to GPE .

ORG observed that the applicants , respectively CARDINAL and DATE , had lived in GPE for DATE during major parts of their childhood and the entirety of their adolescence . The question was what weight should be attached to their residence in GPE since they had been obliged to leave the country in DATE .

It had not been possible for the applicants to obtain the necessary travel documents before they reached the age of majority in DATE and DATE , respectively . In such a situation the unlawful character of their sojourn had to be disregarded . There was little reason to emphasise their mother ’s lack of cooperation in leaving the country . Nor could the applicants be said to have escaped implementation of the deportation , either before DATE or thereafter , as it had been decided on DATE not to implement the deportation . With the exception of DATE , no active steps had been taken to implement the decision to expel the applicants and no attempts had been made to this effect pending the judicial proceedings , until DATE . Therefore , the applicants’ residence in GPE since DATE ought to carry a not insignificant weight in the assessment of whether they had special attachment to GPE .

ORG further observed that in GPE the applicants had close relatives – uncles and aunts – and had lived with these since DATE . The applicants had gone to school in GPE , had friends and acquaintances there and were mastering the NORP language , both oral and written . Whilst ORG had found that the applicants had relatively strong links to GPE , ORG found that these had almost ceased . They had not had contact with their father since DATE and did not wish to have any contact with him . Their mother had died and it was uncertain whether they had other relatives in the country . They were able to speak GPE and to understand the language in oral form but could not read or write it .

In view of the ORG longstanding residence in and attachment to GPE and their little or no connection to GPE , ORG considered that they had special ties to GPE . Accordingly , ORG decisions of CARDINAL DATE were to be quashed . In making a new assessment the ORG ought to take as a premise that the applicants had strong attachment to GPE and that it was empowered under LAW to grant them a residence permit .

The ORG appealed to ORG , which overturned ORG ruling by a judgment of DATE and upheld ORG refusal of CARDINAL DATE as being lawful .

The High Court found it clear that the refusal to grant residence permits constituted an interference with the applicants’ rights under paragraph CARDINAL of Article CARDINAL of the Convention . In considering whether the interference was justified under paragraph CARDINAL , the central question was whether the measure was “ necessary in a NORP society ” . The High ORG had regard to the consideration that where family life has been created at a time when the persons involved were aware that the immigration status of CARDINAL of them was such that the persistence of that family life within the host ORG would from the outset be precarious the removal of the non - national family member would be incompatible with LAW only in exceptional circumstances ( PERSON and PERSON v. the GPE , no . CARDINAL/CARDINAL , § § DATE and DATE , ORG CARDINALI ) and PERSON and Others v. GPE , no . CARDINAL , § CARDINAL , DATE ) .

In balancing the competing interests ORG considered it important when the applicants had become aware that their sojourn in GPE was unauthorised . It was clear that at the latest when they had been apprehended in DATE they had understood that they did not possess a residence permit . Their explanation that they had been unaware until then of their residence status was reliable . At that time they had been DATE , respectively .

The applicants had further stated that their mother had gone under ground at around DATE , and that she had stayed in hiding until DATE , without theirs having any contact with her or being aware of her whereabouts . However , in DATE the police had found her handbag with her passport at her brother ’s home . ORG found it hardly probable that the applicants had no contacts with their mother and had no knowledge of her whereabouts from DATE until DATE . The authorities’ omission to implement “ the refusal of residence ” ( “ oppholdsnektelsen ” ) ought to be seen in the light of the fact that the police had been unable to get hold of their mother .

Nonetheless , there was reason to assume that during DATE the police did not in practice expect the applicants to leave the country on their own and that they would not be deported without their mother . In any event , the applicants could reasonably perceive the situation in this manner . Shortly after their arrest in DATE the applicants had been released because their mother could not be found and it was deemed unfortunate to deport them without her . It had further been clear that the applicants had not possessed NORP passports and that the police had done nothing to arrange for them to obtain such passports . Until passing the age of majority in DATE and DATE , respectively , the applicants had been dependent on the assistance of the NORP authorities to obtain passports .

The reason why the applicants had not been deported together with their mother when she was expelled on DATE was that the main hearing in the applicants’ case had been scheduled for DATE and that the immigration authorities had found it correct to give them the opportunity to attend the hearing .

Since the applicants could reasonably perceive the authorities to mean that they were not expected to travel to GPE on their own , it was difficult to ascribe any responsibility to the applicants for not having taken any steps to leave the country while the mother had gone into hiding from the police . However , after reaching the age of majority , the applicants’ choice to stay in GPE had been something for which they ought to bear the risk and responsibility .

There were generally speaking strong immigration policy considerations in favour of identifying children with the conduct of their parents . If it were to be otherwise , there would be a great risk that parents exploited the situation of their children to secure a residence permit for themselves and for the children . However , in the present case there had been no such risk as the applicants had reached the age of majority and their mother was dead .

The applicants had developed a strong personal and social attachment to GPE . They had received the essential part of their education and upbringing there , they mastered the language to the full and their education had been adapted to the NORP job market . The applicants had until DATE lived with their uncle and aunt ( their mother ’s brother and sister ) with family in GPE . They were therefore presumed to have close emotional links to this part of the family . This was also where they had their friends and social network . The first applicant had completed high school and education as a lawyer ’s secretary and was currently working in a media monitoring bureau . The second applicant had been pursuing high school as a private candidate .

As regards the applicants’ links to GPE , these had since their mother ’s death in DATE first and foremost related to their father . They had not seen him after they had returned to GPE in DATE at DATE and CARDINAL , respectively . An uncle ( a brother of their late mother ) living in the same area of GPE as the father had met the applicants when visiting his siblings in GPE DATE . Moreover , the deceased mother had left a house in a well - off area of GPE , in the vicinity of where the uncle lived . The father occupied parts of the house and let out the remainder . According to NORP inheritance rules , the applicants and the father were entitled to CARDINAL , respectively , of the house . Moreover , the applicants had stated that they were unable to write in GPE and were speaking a “ childish ” GPE . They both mastered LANGUAGE well , which was an official language in GPE . Thus , in ORG view , the applicants still had certain links to their country of origin , though they might encounter social and professional difficulties upon return .

It also observed that in the experience of ORG , it was rare that one was confronted with cases where the duration of the unlawful stay had been nearly as long as in the present case . One could therefore question whether general immigration policy considerations , which normally carried weight in cases of unlawful residence , would be sufficiently weighty to regard the refusal of residence as being “ necessary in a NORP society ” .

The High Court , nonetheless , with doubt , arrived at the conclusion that the refusal of residence had not been unlawful as being contrary to LAW . It attached decisive weight to the fact that the applicants’ strong attachment to GPE had been established during unlawful residence , that they still had links to their home place in GPE and that they as adults had relatively good possibilities for settling in GPE . The special circumstances pointed to above regarding the background to the applicants’ continuing residence in GPE for so many years could not be regarded as “ exceptional circumstances ” in the sense that this criterion had been applied by ORG in its case - law . No new circumstances had occurred between the CARDINAL decisions of CARDINAL DATE and DATE ( see paragraphs CARDINAL and DATE above ) that could warrant a different conclusion than that reached by ORG in its judgment of DATE ( see paragraph CARDINAL above ) .

On DATE ORG Leave Committee of ORG refused the applicants leave to appeal finding that such leave was not warranted by the importance of the decision for other cases or by other considerations .

On DATE an article published by the newspaper ORG , which included an interview with the applicants , stated that they lived at an undisclosed address .

On DATE the police arrested the applicants at an apartment in FAC , belonging to their maternal uncle and aunt in GPE . ORG ordered the applicants’ detention for DATE . Before ORG the first applicant said that she had all the time lived at the apartment of her maternal uncle in FAC . She had occasionally gone to the flat in FAC where her aunt lived in order to fetch things . According to information contained in ORG order of DATE to detain the second applicant for DATE , he had first cohabited with a girlfriend in a studio outside GPE from DATE . Before and after , he had lived at his uncle and aunt ’s apartment in FAC .

During his ensuing detention , the police sought to have him detained on account of a separate matter , namely on suspicion of threats committed against his girlfriend . An indictment was issued on DATE . The second applicant denied the accusations in the main . The police dropped the charges concerning threats on DATE . No further information has been submitted in respect of these criminal proceedings .

According to the applicants during DATE they took refuge in ORG , GPE .

On DATE ORG decided to stay the implementation of the applicants’ deportation to GPE .

The disputed decisions taken by ORG on DATE in the present case relied notably on section DATE , second subparagraph , of the DATE LAW ( subsequently replaced by a new Immigration Act in DATE , which entered into force on DATE ) . Section CARDINAL read :

“ Any foreign national has on application the right to a work permit or a residence permit in accordance with the following rules :

CARDINAL ) Subsistence and housing must be ensured in accordance with further rules laid down in regulations issued by the King .

CARDINAL ) NORP The conditions for work and residence permits laid down in regulations pursuant to LAW , second paragraph , must be fulfilled .

CARDINAL ) NORP There must not be circumstances which would constitute a ground pursuant to other provisions of this Act for refusing the foreign national leave to enter the realm , to reside or to work there .

Even if these requirements are not fulfilled a work or a residence permit may be granted if warranted by strong humanitarian considerations , or if a foreign national has a special attachment to GPE . The King may issue regulations containing further rules . ”