Violation of Art. 8;Not necessary to examine Art. 14+8;No violation of Art. 5-1;Not necessary to examine Art. 5-4;Non-pecuniary damage - financial award

Luzius Wildhaber;Nicolas Bratza;Paul Mahoney

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

The first applicant is PERSON , born in DATE . The second applicant is her daughter , PERSON , born in DATE .

The applicants are of NORP origin . The first applicant was born in GPE into the family of a military officer of ORG ( GPE ) . At DATE she moved to GPE together with her parents . Her husband , PERSON , born in DATE , was transferred to GPE in DATE to serve as a NORP military officer . He met the first applicant in GPE and married her there in DATE . In DATE the first applicant gave birth to their daughter , the second applicant . The first applicant 's father retired from the army in DATE .

GPE regained independence from the GPE in DATE . On DATE GPE assumed jurisdiction over the former NORP armed forces , including those stationed in the territory of GPE .

On DATE the applicants and the first applicant 's parents were entered in the register of NORP residents ( “ the register ” ) as “ ex - GPE citizens ” ( see paragraphs CARDINAL below ) . At that time , none of them were citizens of any particular ORG . In her request to be entered in the register , the first applicant had not indicated that her husband was a NORP military officer .

The respondent Government state that , in requesting her entry in the register , the first applicant submitted false information about the occupation of PERSON , stating that he worked at a factory . The respondent Government have submitted a copy of an annex to the first applicant 's application for residence in GPE , including the statement that her husband worked at a factory .

The applicants and the third party submit that the document is falsified , and that it does not exist . They also refer to the fact that , during the subsequent proceedings concerning the legality of their stay in GPE ( see paragraphs CARDINAL - CARDINAL below ) , the immigration authorities did not refer to any such false information , and the NORP courts did not establish that the applicants had at any point submitted the information mentioned by the respondent Government .

PERSON , who had become a NORP citizen on an unspecified date in DATE , continued his service in the NORP army until his discharge in DATE on the ground of the abolition of his post . The parties disagree as to the actual date of his discharge : the applicants state that he was discharged on DATE . They rely on the fact that an order for his discharge was signed and became effective on DATE . The NORP Government support this conclusion . The respondent Government argue that the first applicant 's husband was discharged on DATE as it was only on that date that he formally completed his leave ; his leave allowance and retirement benefits had been calculated with reference to that date .

The treaty between GPE and GPE on the withdrawal of the NORP troops ( “ the treaty ” ) was signed in GPE on DATE and became effective on that date ( see paragraphs CARDINAL below ) .

According to the respondent Government , even before the signature and entry into force of the treaty , various NORP and NORP authorities cooperated in establishing the names of the NORP military personnel liable to be removed from GPE . In this context , on DATE , the NORP military authorities submitted to the NORP authorities a list of the NORP military officers in GPE , including the first applicant 's husband , with an accompanying request to prolong his and his family 's temporary residence in GPE . This , the respondent Government contend , made it clear that their stay in GPE was temporary , and that they would be required to leave .

According to the applicants and ORG , the list of DATE did not entail any obligation on PERSON to leave GPE as it was a document solely requesting the prolongation of his temporary stay in GPE , submitted before the actual signature and entry into force of the treaty .

On DATE PERSON applied to ORG ( “ the CMA ” ) for a temporary residence permit in GPE by reason , inter alia , of his marriage to the first applicant , a permanent resident of GPE . This was refused on the ground that , as a NORP military officer , he was required to leave GPE as a result of the withdrawal of the NORP troops in accordance with the treaty .

On DATE the ORG annulled the applicants ' entry in the register on the ground of PERSON military status . The applicants state that they were not informed about the decision , and that they found out about it only in DATE , in the context of the court proceedings brought by the first applicant 's husband ( see paragraph CARDINAL below ) .

The respondent Government have also produced a list dated DATE , which according to them had been submitted to the NORP authorities by the NORP armed forces . In the list PERSON was included in the category of military personnel who had retired after DATE . The applicants and the third party contest the authenticity of the list .

The respondent Government have further produced a list dated DATE , which according to them had been sent to ORG by the NORP consulate in GPE . According to the respondent Government , PERSON name appeared on the list among those NORP military pensioners who had been discharged from the NORP armed forces after DATE . It was also noted in the list that on QUANTITY DATE PERSON had been given housing in the city of Kursk in GPE , and that he had left GPE on DATE . The applicants and the third party contest the authenticity of the list .

NORP In point of fact , however , the first applicant 's husband had stayed in GPE . He brought a court action against the GPE , claiming that their refusal to issue him with a temporary residence permit was void . On DATE FAC found in his favour . The ORG appealed against the judgment .

On DATE ORG allowed the ORG 's appeal , finding , inter alia , that PERSON had been a NORP military officer until DATE and that the treaty of DATE required all NORP officers in service on DATE to leave GPE together with their families . ORG referred , inter alia , to the list of DATE , which confirmed that he had been provided with accommodation in Kursk , and that he had left GPE in DATE . He did not bring a cassation appeal against the appellate judgment .

On DATE the immigration authorities issued a deportation order in respect of the applicants . The order was served on them on DATE .

On that date the local authorities decided to evict the applicants from their flat , which they rented from ORG . NORP military officers and their families as well as other residents of GPE lived in the block where the flat was located . The eviction order was not enforced .

On an unspecified date in DATE PERSON moved to GPE , while the applicants remained in GPE .

The first applicant brought a court action in her own name and on behalf of her daughter , claiming that they were in fact permanent residents of GPE and that they could not be removed from the country .

On DATE FAC found in favour of the applicants . The court held , inter alia , that the first applicant had come to GPE as a relative of her father , not her husband . As her father had retired in DATE , he could thereafter no longer be regarded as a military officer , and his close relatives , including the applicants , could be entered in the register as permanent residents of GPE . The court quashed the deportation order in respect of the applicants and authorised their re - entry in the register .

The ORG appealed against the judgment of DATE . On DATE ORG dismissed the appeal , finding that the first - instance court had decided the case properly . Upon a cassation appeal by the ORG , on DATE ORG quashed the decisions of the lower courts and remitted the case to the appellate court for a fresh examination . ORG referred to the fact that the applicants had been provided with a flat in Kursk , and that they were subject to the provisions of the treaty of DATE .

On DATE ORG allowed the ORG 's appeal , finding that PERSON had been a serving NORP military officer until DATE . Referring to the fact that he had been given housing in Kursk in DATE following his retirement from the NORP military , the court decided that he had been required to leave GPE with his family in accordance with the treaty . The court found that the decision of the immigration authorities to annul the applicants ' entry in the register had been lawful .

On DATE the first applicant was informed by the immigration authorities that the deportation order of DATE had become effective upon the delivery of the appellate court 's judgment of CARDINAL DATE .

On DATE , on a cassation appeal by the applicants , ORG confirmed the decision of CARDINAL DATE . ORG stated that PERSON had been discharged from the NORP armed forces on DATE . ORG noted that the applicants had been allocated the flat in Kursk in the context of the material assistance provided by GPE for the withdrawal of NORP troops . Relying on the fact that PERSON had been discharged from the military after DATE , ORG concluded that the applicants , as part of his family , had also been required to leave GPE in accordance with the treaty .

On DATE the first applicant requested the ORG to defer execution of the deportation order . That was refused on DATE .

On DATE the first applicant lodged with the immigration authorities an appeal against the deportation order , requesting a residence permit and her re - entry in the register . She stated , inter alia , that GPE was her and her daughter 's motherland as they had lived there all their lives and had no other citizenship , and that she was required to take care of her disabled parents who were permanently resident in GPE .

In TIME of CARDINAL DATE the police entered the applicants ' flat . They were arrested at TIME on the same date . On DATE , at TIME , a police officer issued an arrest warrant in respect of the applicants on the basis of section CARDINAL of LAW . The warrant stated that the applicants had no valid documents justifying their stay in GPE , and that the applicants ' entry in the register of NORP residents had been annulled by ORG final judgment of CARDINAL DATE . It was also mentioned in the warrant that the applicants “ did not leave GPE following the judgment , and there were reasonable grounds to suspect that they were staying in GPE illegally ” . The warrant was signed by the applicants . On the basis of the warrant the applicants were immediately detained in a centre for illegal immigrants .

Also on CARDINAL DATE the Director of the ORG sent a letter to the immigration police , stating that the applicants ' arrest had been “ premature ” in view of the fact that the first applicant had lodged an appeal on DATE . No reference to domestic law was made in the letter . The Director of the ORG ordered the immigration police to release the applicants . They were released at an unspecified time on DATE .

On DATE the applicants received a letter from the Director of the ORG dated DATE , informing them that they were required to leave GPE immediately . They were also informed that , if they complied voluntarily with the deportation order , they could thereafter be issued with a visa enabling them to stay in the country for DATE per annum .

On DATE the flat of the first applicant 's parents was searched by the police in the presence of the second applicant . On DATE , at TIME , a police officer issued a warrant for the second applicant 's arrest on the basis of section CARDINAL of LAW . The warrant stated that the second applicant had no valid document justifying her stay in GPE , and that there were reasonable grounds to suspect that she was staying in GPE illegally . The order was signed by the second applicant . She was immediately arrested and thereafter detained for TIME in a centre for illegal immigrants . She was released on DATE .

On DATE the applicants moved to GPE to join PERSON . By that time the second applicant had completed her secondary education in GPE . On an unspecified date in DATE the applicants adopted NORP citizenship as former nationals of the GPE . The applicants now live in Kursk , in accommodation which was provided by the NORP defence authorities . After the applicants left GPE , their flat in GPE was taken back by the NORP authorities . Meanwhile , the first applicant 's parents continued living in GPE on the basis of their status as “ ex - GPE citizens ” .

According to the applicants , the first applicant 's parents are seriously ill , but the applicants have not been able to go to GPE to visit them . The deportation order of CARDINAL DATE prohibited the applicants from entering GPE for DATE . That prohibition expired on DATE . Towards DATE the applicants obtained visas permitting their stay in GPE for DATE per annum .

In view of the fact that PERSON had left GPE voluntarily , the prohibition on entering GPE was not extended to him . He was allowed to visit GPE several times in the period DATE .

NORP laws use the term “ citizenship ” ( pilsonība ) to denote the nationality of a person . In the official LANGUAGE translations of the domestic statutes , the term “ nationality ” is sometimes used in brackets alongside the term “ citizenship ” . An official LANGUAGE translation of LAW ( Part I ) provides , for example , that “ an ' alien ' [ is ] a person having the citizenship ( nationality ) of another ORG ; [ a ] ' stateless person ' [ is ] a person having no citizenship ( nationality ) ” .

NORP legislation on nationality and immigration identifies several categories of persons , each with its own status defined in a specific Act :

( a ) NORP citizens ( Latvijas Republikas pilsoņi ) , whose legal status is governed by LAW of DATE ( ORG likums ) ;

( b ) “ permanently resident non - citizens ” ( nepilsoņi ) – that is , citizens of the former GPE who lost their NORP citizenship following the dissolution of the GPE but have not subsequently obtained any other nationality DATE who are governed by the Status of Former GPE LAW of DATE ( NORP “ PERSON to bijušo ORG pilsoņu statusu , kuriem nav Latvijas vai citas valsts pilsonības ” ) ; this group of persons may also be referred to as “ ex - GPE citizens ” ;

( c ) asylum - seekers and refugees , whose status is governed by LAW ( Patvēruma likums ) ;

( d ) “ stateless persons ” ( bezvalstnieki ) within the meaning of LAW of DATE ( NORP “ ORG bezvalstnieka statusu Latvijas NORP ” ) , read in conjunction with LAW and , since DATE , with LAW which replaced it ;

( e ) “ aliens ” in the broad sense of the term ( ārzemnieki ) , including foreign nationals ( ārvalstnieki ) and stateless persons ( bezvalstnieki ) falling solely within the ambit of the Aliens and Stateless Persons ( Entry and Residence ) Act of DATE ( NORP “ ORG ārvalstnieku un bezvalstnieku ieceļošanu un uzturēšanos GPE DATE – “ LAW ” ) ( before DATE ) , and LAW ( after DATE ) .

LAW is based on CARDINAL principles : the principle of jus sanguinis and the doctrine of ORG succession in matters of international and constitutional law . Accordingly , with certain exceptions , only those persons who had NORP citizenship on DATE ( the date on which GPE came under NORP domination ) and their descendants are recognised ipso jure as NORP citizens ( section CARDINAL(CARDINAL ) ) . The fact of having been born within NORP territory or having been resident there for DATE does not in itself confer NORP citizenship ; accordingly , citizens of the former GPE who arrived in GPE during the NORP era ( DATE ) and their descendants were not automatically granted NORP citizenship after GPE had regained its independence .

Furthermore , LAW provides for the possibility of becoming a NORP citizen by means of naturalisation , in accordance with the conditions and procedure laid down in LAW of the LAW . Persons seeking naturalisation as NORP citizens must have been lawfully resident in GPE for at least DATE , have a legal source of income , pass an examination testing proficiency in NORP , be familiar with LAW and national anthem , have a basic knowledge of NORP history , swear an oath of allegiance and , where appropriate , renounce their existing citizenship ( section CARDINAL ) . Section CARDINAL(CARDINAL ) lists the grounds on which naturalisation may be refused ; for example the provision prohibits the naturalisation of persons who

“ ... after DATE chose GPE as their place of residence immediately after being discharged from the GPE ( NORP ) armed forces , and who did not have their permanent residence in GPE on the date of their conscription or enlistment ... ” .

In the version in force before DATE , section CARDINAL of the Status of Former GPE LAW provided :

“ ( CARDINAL ) This Act shall apply to citizens of the former GPE who are resident in GPE ... , were resident within NORP territory before DATE and are registered as being resident there , regardless of the status of their housing , provided that they are not citizens of GPE or of any other ORG , and also to their children below the age of majority , if the latter are not citizens of GPE or of any other ORG . ”

In the version in force since DATE , section CARDINAL of the Status of Former GPE LAW provides :

“ ( CARDINAL ) The persons governed by LAW non - citizens ' – shall be those citizens of the former GPE , and their children , who are resident in GPE ... and who satisfy all the following criteria :

NORP on DATE they were registered as being resident within the territory of GPE , regardless of the status of their housing ; or their last registered place of residence by DATE was in GPE ; or a court has established that before the above - mentioned date they had been resident within the territory of GPE for not less than DATE ;

NORP they do not have NORP citizenship ; and

NORP they are not and have not been citizens of any other ORG .

( CARDINAL ) NORP The legal status of persons who arrived in GPE after DATE shall be determined by the ORG and ORG .

( CARDINAL ) The present Act shall not apply to :

NORP military specialists engaged in the operation and dismantling of GPE military [ radar equipment ] installed in the territory of GPE , and civilians sent to GPE for that purpose ;

NORP persons who were discharged from the armed forces after DATE , if on the date of their enlistment they were not permanently resident in the territory of GPE and if they are not close relatives of NORP citizens ;

NORP spouses of the persons [ mentioned above ] and members of their families ( children and other dependants ) living with them , where , irrespective of the date of their arrival , they arrived in GPE in connection with the service of a member of GPE ( GPE ) armed forces ;

NORP persons who have received compensation for establishing their permanent residence abroad , regardless of whether the compensation was paid by a NORP central or local authority or by an international or foreign authority or foundation ; or

NORP persons who on DATE were officially registered as being resident for an indefinite period within a member country of ORG . ”

Section CARDINAL ( ) CARDINAL of the LAW prohibits the deportation of “ non - citizens ” , “ save where deportation takes place in accordance with the law and another ORG has agreed to receive the deportee ” . Furthermore , section CARDINAL ( which became section CARDINAL on DATE ) provides :

“ ( CARDINAL ) Section CARDINAL ... of this LAW shall also [ apply to ] stateless persons and their descendants who are not and have never been citizens of any ORG and who , before DATE , were resident within the territory of GPE and were registered as being permanently resident there ...

( CARDINAL ) Section CARDINAL of this Act shall also apply to nationals of other GPE and their descendants who were resident within the territory of GPE before DATE and were registered as being permanently resident there ... , provided that they do not have NORP citizenship ... ”

Lastly , section DATE provides that international agreements on immigration “ concluded by GPE and approved by ORG ” take precedence over national legislation .

The relevant provisions of LAW were worded as follows :

Section CARDINAL

“ Any foreigner or stateless person shall be entitled to stay in GPE for DATE [ version in force from CARDINAL DATE : ' DATE in the course of CARDINAL of a calendar DATE ' ] , provided that he or she has obtained a residence permit in accordance with the provisions of this Act . ... ”

Section CARDINAL

“ The following may obtain a permanent residence permit :

( CARDINAL ) the spouse of a NORP citizen , of a ' permanently resident non - citizen ' of GPE or of an alien or stateless person who has [ himself or herself ] been granted a permanent residence permit , in accordance [ with section ] ... CARDINAL of this LAW , and the spouse 's minor or dependent children ... ”

When LAW came into force , it did not contain any provision excluding serving members of the NORP armed forces who had been discharged after DATE . Regulation no . CARDINAL of DATE , confirmed by LAW of DATE , amended section CARDINAL as follows :

“ Permanent residence permits may be obtained by aliens who , on DATE , were officially registered as being resident for an indefinite period within GPE if , at the time of applying for a permanent residence permit , they are officially registered as being resident within GPE and are entered in the register of residents .

Citizens of the former GPE who acquired the citizenship of another ORG DATE must apply for a permanent residence permit by DATE . ORG of the former GPE who acquired the citizenship of another ORG after DATE must apply within DATE on which they acquired the citizenship of that ORG .

This section shall not apply to :

NORP military specialists engaged in the operation and dismantling of NORP military [ radar equipment ] installed in the territory of GPE , and civilians sent to GPE for that purpose ;

NORP persons who were discharged from active military service after DATE if on the date of their enlistment they were not permanently resident in the territory of GPE and if they are not close relatives of NORP citizens ; or

NORP spouses of the persons [ mentioned above ] and members of their families ( children and other dependants ) living with them , where , irrespective of the date of their arrival , they arrived in GPE in connection with the service of a member of GPE ( GPE ) armed forces . ”

Persons who are lawfully resident in GPE are entered in the register of residents and given a personal identification number ( personas kods ) . The functioning of the register , which is kept by the interior authorities , is laid down in LAW of DATE ( ORG reģistra likums ) , which replaced LAW of DATE ( Likums “ ORG iedzīvotāju reģistru ” ) .

According to the information provided by the respondent Government , CARDINAL persons DATE close relatives of NORP military officers required to leave GPE under the treaty – were able to legalise their stay in GPE because those persons were either NORP citizens or close relatives of NORP citizens , and had not arrived in GPE in connection with service in the NORP armed forces .

Section CARDINAL of LAW lists the circumstances in which a residence permit , even a temporary one , will not be issued . LAW lists the grounds on which a residence permit may be withdrawn . The fact of having been a serving member of the NORP armed forces after DATE does not appear in either of these lists .

Point CARDINAL of section DATE provides that a residence permit should be withdrawn where its holder “ has knowingly submitted false information to the GPE ” . Point CARDINAL provides for the same consequences if the holder of a residence permit “ arouses reasonable suspicion on the part of the competent authorities that he or she presents a threat to public order and safety or national security ” . Point CARDINAL concerns persons who have “ entered the service of a foreign ORG , whether in the armed forces or otherwise , except in cases provided for by international agreements ” . Lastly , point CARDINAL concerns persons who have “ received compensation for establishing their permanent residence abroad , regardless of whether the compensation was paid by a NORP central or local authority or by an international or foreign authority or foundation ” .

Section CARDINAL of the LAW provides that the head of ORG or of one of its regional offices should issue a deportation order where an alien or stateless person resides within the territory of GPE without being in possession of a valid visa or residence permit or in any other circumstances listed in DATE .

Sections DATE and CARDINAL provide :

“ Where a deportation order is issued in respect of a person with dependent relatives in GPE , the latter must leave with him or her . The deportation order shall not apply to members of his or her family who are NORP citizens or non - citizens . ”

“ A person shall leave the territory of GPE within DATE after the deportation order has been served on him or her , provided that no appeal is lodged against the order in the manner prescribed in this section .

Persons in respect of whom a deportation order is issued may appeal against it within DATE to the head of the ORG , who shall extend the residence permit pending consideration of the appeal .

An appeal against the decision of the head of the GPE shall lie to the court within whose territorial jurisdiction the ORG 's headquarters are situated , within DATE after the decision has been served . ”

Under LAW , where a person has not complied with a deportation order , he or she may be forcefully removed from GPE by the police . Under section DATE , the police have the right to arrest a person in order to execute a deportation order .

Under section DATE , the police have the right to arrest a person where no decision to deport him or her has been taken , if :

( CARDINAL ) the person has illegally entered the ORG ;

( CARDINAL ) NORP the person has knowingly provided false information to the competent authorities in order to receive a visa or residence permit ;

( CARDINAL ) the authorities have a well - founded suspicion that the person will hide , or that he or she has no permanent place of residence ; or

( CARDINAL ) the authorities have a well - founded suspicion that the person poses a threat to public order or national security .

In such cases the police have the right to detain a person for not more than TIME , or , where a prosecutor has been notified , for not more than ten days . The police must immediately inform the immigration authorities about the arrest , with a view to their issuing an order for the deportation of the person by the use of force . The person concerned can appeal against that deportation order in accordance with the provisions of section QUANTITY .

By section CARDINAL - CARDINAL , a person in respect of whom such a deportation order has been issued may be detained until the execution of the order , and a prosecutor must be notified of the order .

Section DATE provides that an arrested person must be immediately informed of the reasons for his arrest , and of his right to have legal assistance .

By section CARDINAL - CARDINAL , the police have the right to arrest aliens and stateless persons who reside in GPE without a valid visa or residence permit . Such persons must be brought to the immigration authorities or to a police remand centre within TIME .

Chapter CARDINAL-A of the Code of Civil Procedure guarantees the right to appeal to a court against administrative acts breaching personal rights .

Article CARDINAL § CARDINAL states that a complaint against an action ( decision ) of a ORG authority may be submitted to a court , after a hierarchical complaint in this connection has been determined by the competent administrative authority .

Under LAW - CARDINAL § CARDINAL of the LAW , a complaint to a court may be submitted within DATE from the date of the notification of the dismissal of the hierarchical complaint , or within DATE from DATE of the contested act , provided that the person concerned has not received a decision .

Article CARDINAL - CARDINAL provides that the court must examine the complaint within DATE , having questioned the parties and other persons , if necessary .

Pursuant to LAW , if the court considers that the act concerned violates an individual 's personal rights , the court should adopt a judgment obliging the authority to remedy the violation .

Under the NORP legislation , a citizen was issued with a “ registration ” ( propiska ) at a particular address , by way of a special seal in his passport attesting to his place of permanent residence for the purposes of domestic law . Following the restoration of NORP independence in DATE , the “ registration ” system remained effective under the NORP legislation .

The treaty between GPE and GPE on the conditions and schedule for the complete withdrawal of GPE military troops from the territory of GPE and their status pending withdrawal ( “ the treaty ” ) was signed in GPE on DATE , published in GPE ( Official Gazette ) on DATE , and came into force on DATE .

In the preamble of the treaty the parties stated , inter alia , that by signing the treaty they wished to “ eradicate the negative consequences of their common history ” .

The other relevant provisions of the treaty read as follows :

“ GPE military troops shall leave the territory of GPE by DATE .

The withdrawal of GPE military troops shall concern all members of the armed forces of GPE , members of their families and their movable property .

The closure of military bases in the territory of GPE and the discharge of military personnel after DATE shall not be regarded as the withdrawal of military troops .

“ The GPE shall inform GPE about its military personnel and their families in the territory of GPE . It shall provide regular information , DATE , about the withdrawal of , and quantitative changes in , each of the above - mentioned groups . ... ”

“ GPE shall guarantee the rights and freedoms of GPE military troops affected by the withdrawal , and also of their families , in accordance with the legislation of GPE and the principles of international law . ”

“ This treaty ... shall be applied on a provisional basis from the date of signature and shall come into force on the date of exchange of the instruments of ratification . ... ”

The conditions for the implementation by GPE of the above - mentioned treaty are laid down in Regulation no . CARDINAL of DATE , the relevant parts of the second paragraph of which provide :

“ ORG :

shall issue residence permits , after checking the list of military personnel ... to discharged members of the NORP armed forces who were resident within the territory of GPE on DATE and have been registered by ORG ...

NORP shall issue deportation orders in respect of members of the armed forces who are unlawfully resident in GPE , and shall supervise the execution of such orders ; ... ”

An agreement between GPE and GPE , also signed on DATE , concerns the social protection of retired members of ORG armed forces and their families residing within the territory of GPE . LAW , which applies principally to persons discharged from the NORP armed forces before GPE regained its independence , provides :

“ The persons to whom this agreement applies shall enjoy their fundamental rights within the territory of GPE , in accordance with the standards of international law , the provisions of this agreement and NORP legislation .

The persons to whom this agreement applies ... and who were permanently resident within the territory of GPE before DATE , including those in respect of whom the relevant formalities have not been carried out and who are on the lists verified by both parties and appended to this agreement , shall retain the right to reside without hindrance in the territory of GPE , if they so desire . By agreement between the Parties , any persons who were permanently resident within the territory of GPE before DATE and , for various reasons , have not been included on the lists referred to above may be added to them . ... ”


The applicants are PERSON , who was born in DATE and lives at LOC , and Mr PERSON , who was born in DATE and lives at NORP - sous - Bois . Both are NORP nationals . They were represented before the ORG by Mr PERSON , a lawyer practising in GPE .

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

PERSON was the manager of a firm of general building contractors GPE ( “ GPE ” ) , a private company she had formed in DATE . Mr GPE , who was the managing director of a hotel complex , had business dealings with GPE and had awarded it contracts to fit out and decorate some of his hotels .

As a result of financial difficulties GPE was declared insolvent on DATE .

By a judgment of DATE ORG , composed of PERSON , President , and PERSON and PERSON , made an order for the judicial reorganisation of GPE under the simplified procedure and appointed PERSON as the insolvency judge and PERSON as his substitute .

On DATE , after hearing the report of the insolvency judge , Mr Levêque , a differently constituted bench of ORG ordered the company ’s liquidation under the supervision of the court , renewed the appointments of the insolvency judge and the substitute insolvency judge and appointed a liquidator .

On DATE ORG made an order on its own initiative for an audit of the company ’s accounts .

On DATE it appointed PERSON as insolvency judge in place of PERSON .

On DATE the auditor appointed on CARDINAL DATE lodged his report .

On DATE the liquidator issued proceedings against ORG , in her capacity as de iure manager of the company , and against PERSON , as de facto manager , in which he sought a receivership order against them , a declaration that they were jointly and severally liable to pay the entire shortfall in the company ’s assets and a decision on whether they should be declared personally bankrupt .

The case was heard in ORG on DATE . The court was presided over by PERSON , assisted by CARDINAL wing members . The representative of ORG sought an order declaring the applicants personally bankrupt . The court reserved judgment and granted the parties permission to exchange notes to the court in deliberations and to adduce documentary evidence by DATE . The applicants sent various documents to the court on DATE .

Meanwhile , by an order of DATE the insolvency judge , Mr ORG , declared an application by PERSON for the liquidator ’s replacement inadmissible and refused to refer it to ORG , which was the sole body with jurisdiction to hear it .

By a judgment of CARDINAL DATE ORG dismissed the applicants’ applications and made a receivership order against them . In that connection , it added :

“ And on the basis of the finding in the insolvency judge ’s report that reorganisation will only be ordered to protect undertakings and there is no prospect of recovery in the instant case , the court makes an order for the commencement of judicial liquidation proceedings against [ the applicants ] ... ”

ORG also made an order declaring the applicants personally bankrupt for DATE , and ruled that it was immediately enforceable pending appeal . The applicants and the company appealed against that judgment . In their submissions , the applicants complained inter alia of the insolvency judge ’s presence on the bench that had delivered the judgment .

By a judgment of DATE ORG upheld all the provisions of the judgment , noting inter alia :

“ ... the court heard the report of the insolvency judge from which it emerged that there were no prospects of recovery in the instant case ;

... there is no provision of the PERSON of DATE that prevents an insolvency judge from sitting on the bench that delivers judgment . ”

By a judgment of DATE ORG dismissed the applicants’ appeal on points of law , holding that the insolvency judge ’s presence on the bench that had made the order for the liquidation of the applicants’ assets did not contravene LAW , even though he had previously acted as the insolvency judge in the liquidation of the company .

Section CARDINAL of Law no . DATE of DATE on ORG provides :

“ At any stage of the [ judicial reorganisation or liquidation ] proceedings the court may make a personal bankruptcy order against any de iure or de facto manager , whether paid or unpaid , of a juristic person ... ”

LAW implementing decree , Decree no . CARDINAL of DATE , provides :

“ ... The court shall , after submission of the insolvency judge ’s report , decide all issues arising out of the judicial reorganisation or liquidation that are referred to it . ”


Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

The case was referred to the ORG by ORG ( " the Commission " ) on DATE . It originated in an application ( no . CARDINAL ) against GPE lodged with ORG on DATE by Mr. PERSON , an NORP national .

In its judgment of DATE , the ORG held that there had been a violation of LAW ( LAW . The applicant 's deprivation of liberty in TIME of DATE , while the police were forcibly conveying him by car from GPE to the NORP border , had been neither " lawful " nor compatible with the " right to security of person " ; it " amounted in fact to a disguised form of extradition designed to circumvent the negative ruling of CARDINAL DATE " by the appropriate court " and not to ' detention ' necessary in the ordinary course of ' action ... taken with a view to deportation ' " ( Series A no . CARDINAL , pp . CARDINAL - CARDINAL and CARDINAL , § § CARDINAL of the reasons and point CARDINAL of the operative provisions ) .

There remains only to be settled , in part , the question of the application of LAW ) in the present case . As regards the facts , reference should be made to the judgment previously cited ( pp . CARDINAL , § § DATE ) , and the ORG will confine itself here to giving a few essential particulars .

The applicant was extradited to GPE from GPE on DATE and is now on the island of ORG serving a sentence of life imprisonment passed on him in absentia by ORG of Appeal on CARDINAL DATE ( ibid . , pp . CARDINAL and CARDINAL , § § DATE ) .

Through his counsel , Mr. PERSON asked the ORG , in his main submission , to recommend ORG ( " the Government " ) to approach the NORP authorities through diplomatic channels , with a view to securing either a presidential pardon or a reopening of the criminal proceedings taken against him ; he also sought , for his wife and himself , compensation for material and non - material damage - assessed at MONEY ( ORG ) - allegedly sustained by them as a result of the detention already undergone and , " if the ORG disallowed their main claim ... , compensation - in excess of CARDINAL ORG - for future material and non - material damage in respect of DATE still to be spent in prison by him " , and " CARDINAL ORG in respect of the costs of the proceedings , less the sums paid in legal aid by ORG and ORG " ( ibid . , p. CARDINAL , § § CARDINAL ) .

In the judgment of DATE the ORG rejected , firstly , the applicant 's main claim , as being unconnected with the subject - matter of the dispute , and , secondly , the claims made on Mrs. PERSON 's behalf , as she did not have the standing of an applicant ( ibid . , pp . DATE , § § CARDINAL of the reasons and point CARDINAL of the operative provisions ) . The ORG reserved the remainder of the question of awarding just satisfaction , ruling that it was not ready for decision , and it invited the ORG to submit their observations in writing within DATE and , in particular , to notify ORG of any agreement they might reach with the applicant ( ibid . , pp . DATE , § CARDINAL in fine of the reasons and point CARDINAL of the operative provisions ) .

All attempts at reaching such an agreement having failed , the Registrar received pleadings from the Government , the lawyers for the applicant and ORG on DATE , DATE and CARDINAL DATE respectively .

At the final deliberations on CARDINAL DATE , Mrs. PERSON - Robert and Mr. PERSON , substitute judges , replaced Mr. PERSON and Mr. PERSON , who were unable to attend ( Rules CARDINAL § CARDINAL and CARDINAL § CARDINAL of ORG ) . The ORG decided that in the circumstances there was no need to hold a hearing .


CASE OF BRANNIGAN AND McBRIDE v. THE UNITED KINGDOM

Derogation of Art. 5-3 satisfies the requirements of Art. 15;No violation of Art. 5-5;No violation of Art. 13

C. Russo;John Freeland;N. Valticos;R. Pekkanen

The first applicant , Mr PERSON , was born in DATE . He is a labourer and lives in GPE , GPE .

He was arrested at his home by police officers on DATE at TIME pursuant to section CARDINAL ( CARDINAL ) ( b ) of ORG ( Temporary LAW DATE ( " LAW " ) . He was then removed to LOC at FAC , GPE , where he was served with a copy of the " Notice to Persons in Police Custody " which informs the prisoner of his legal rights ( see paragraph CARDINAL below ) . A DATE extension of his detention was granted by the Secretary of ORG on DATE at TIME , and a further DATE extension was granted on DATE at TIME He was released at TIME on DATE . He was therefore detained for a total period of DATE , TIME .

During his detention he was interrogated on CARDINAL occasions and denied access to books , newspapers and writing materials as well radio and television . He was not allowed to associate with other prisoners .

Although access to a solicitor was at first delayed for forty- TIME because it was believed by the police that such a visit would interfere with the investigation , the first applicant was subsequently visited by his solicitor on DATE . He was seen by a medical practitioner on CARDINAL occasions during police custody .

The second applicant , Mr PERSON , was born in DATE .

He was arrested at his home by police officers on DATE at TIME pursuant to section CARDINAL ( CARDINAL ) ( b ) of LAW . He was then removed to FAC where he was served with a copy of LAW . A DATE extension of his period of detention was granted by the Secretary of ORG at TIME on DATE . He was released at TIME on DATE . He was therefore detained for a total period of DATE , TIME and TIME .

During his detention he was interrogated on CARDINAL occasions and was subject to the same regime as Mr Brannigan ( see paragraph CARDINAL above ) .

He received CARDINAL visits from his solicitor on CARDINAL and DATE and was seen by a medical practitioner on CARDINAL occasions during police custody .

PERSON was shot dead on DATE by a policeman who had run amok and attacked ORG in GPE .

The emergency situation in GPE in DATE and the attendant level of terrorist activity form the background to the introduction of ORG ( Temporary Provisions ) Act DATE ( " LAW " ) . DATE , CARDINAL deaths were attributable to terrorism in GPE . In DATE , the number of deaths was significantly lower than in DATE but organised terrorism has continued to grow .

Since the commencement of the terrorist campaign there have been CARDINAL people injured in GPE as a result of terrorist acts . Many of these injuries involved loss of limbs and permanent physical disability . In the same period there have been a total of CARDINAL terrorist shooting or bombing incidents . Other parts of GPE have also been subjected to a considerable scale of terrorist violence .

LAW came into force on DATE . The LAW proscribed ORG ( " IRA " ) and made it an offence to display support in public of that organisation in GPE . The ORG was already a proscribed organisation in GPE . The LAW also conferred special powers of arrest and detention on the police so that they could deal more effectively with the threat of terrorism ( see paragraphs CARDINAL below ) .

This Act was subject to renewal DATE by ORG so that , inter alia , the need for the continued use of the special powers could be monitored . The LAW was thus renewed until DATE , when it was re - enacted with certain amendments .

Under LAW of LAW , the special powers were subject to parliamentary renewal DATE . LAW was in turn renewed DATE until DATE , when it was re - enacted with certain amendments . LAW , which came into force in DATE , proscribed ORG as well as the IRA . It was renewed DATE until replaced by the DATE Act which came into force on DATE . LAW contains provisions similar to those contained in CARDINAL of LAW .

LAW was reviewed by ORG in a report published in DATE and subsequently by PERSON in a report published in DATE . DATE reports on LAW have been presented to ORG by Sir PERSON ( for DATE and DATE ) and PERSON ( from DATE ) . A wider - scale review of the operation of LAW was also carried out by GPE in DATE .

These reviews were commissioned by the Government and presented to ORG to assist consideration of the continued need for the legislation . The authors of these reports concluded in particular that in view of the problems inherent in the prevention and investigation of terrorism , the continued use of the special powers of arrest and detention was indispensable . The suggestion that decisions extending detention should be taken by the courts was rejected , notably because the information grounding those decisions was highly sensitive and could not be disclosed to the persons in detention or their legal advisers . For various reasons , the decisions were considered to fall properly within the sphere of the executive .

In his DATE report reviewing the provisions of section CARDINAL , GPE considered that good reasons existed for extending detention in certain cases beyond TIME and DATE . He noted in this regard that the police in GPE were frequently confronted by a situation where they had good intelligence to connect persons with a terrorist incident but the persons concerned , if detained , made no statements , and witnesses were afraid to come forward , certainly in court : in these circumstances , it was concluded , the reliance on forensic evidence by the prosecution was increasing , and detective work had assumed a higher degree of importance . He also set out the reasons which individually or , as often , in combination constituted good grounds for extending the various periods within which otherwise persons suspected of involvement in terrorism would have to be charged or taken to court . These included checking of fingerprints ; forensic tests ; checking the detainee ’s replies against intelligence ; new lines of inquiry ; information obtained from one or CARDINAL other detainee in the same case ; finding and consulting other witnesses ( Command Paper CARDINAL , paragraphs CARDINAL.CARDINAL.CARDINAL - CARDINAL.CARDINAL.CARDINAL , DATE ) .

The relevant provisions of LAW , substantially the same as those of the DATE and DATE Acts , are as follows :

" CARDINAL . ( CARDINAL ) [ A ] constable may arrest without warrant a person whom he has reasonable grounds for suspecting to be

( b ) a person who is or has been concerned in the commission , preparation or instigation of acts of terrorism to which this Part of this Act applies ;

( CARDINAL ) The acts of terrorism to which this Part of this Act applies are

( a ) acts of terrorism connected with the affairs of GPE ;

( CARDINAL ) A person arrested under this section shall not be detained in right of the arrest for CARDINAL after his arrest ; but the Secretary of ORG may , in any particular case , extend the period of TIME by a period or periods specified by him .

( CARDINAL ) Any such further period or periods shall not exceed DATE in all .

( CARDINAL ) The following provisions ( requirement to bring accused person before the court after his arrest ) shall not apply to a person detained in right of the arrest

( d ) Article CARDINAL of ORG ( GPE ) Order DATE ;

( CARDINAL) The provisions of this section are without prejudice to any power of arrest exercisable apart from this section . "

According to the definition given in section CARDINAL ( CARDINAL ) of LAW , " terrorism means the use of violence for political ends , and includes any use of violence for the purpose of putting the public or any section of the public in fear " . An identical definition of terrorism in GPE ( Emergency LAW Act DATE was held to be " in wide terms " by ORG , which rejected an interpretation of the word " terrorist " that would have been " in narrower terms than popular usage of the word ‘ LOC might connote to a police officer or a layman " ( LOC v. Chief Constable for GPE [ DATE ] CARDINAL All England Law Reports CARDINAL at CARDINAL , per Lord PERSON ) .

Article CARDINAL of ORG ( GPE ) Order DATE , declared inapplicable in cases of suspected terrorism by section CARDINAL ) of LAW ( see paragraph CARDINAL above ) , provided that where a person arrested without warrant was not released from custody within TIME , he had to be brought before a ORG as soon as practicable thereafter but not TIME after his arrest .

Article CARDINAL was repealed by ORG ) Order DATE ( Statutory Instrument CARDINAL/CARDINAL ( GPE ) CARDINAL ) . Under the provisions of the DATE LAW which corresponds directly with ORG in force in GPE and GPE ) a person arrested on suspicion of his involvement in an offence may initially not be kept in police detention for CARDINAL without being charged ( Article CARDINAL(CARDINAL ) ) . On the authority of a police officer of the rank of Superintendent or above , the detention may be extended for a period not exceeding TIME from the time of arrest , or arrival at a police station after arrest , when the officer concerned :

" ... has reasonable grounds for believing that -

( a ) the detention of that person without charge is necessary to secure or preserve evidence relating to an offence for which he is under arrest or to obtain such evidence by questioning him ;

( b ) an offence for which he is under arrest is a serious arrestable offence ;

( c ) the investigation is being conducted diligently and expeditiously . " ( Article CARDINAL(CARDINAL ) )

By Article CARDINAL ) of the Order a Magistrates’ Court is empowered , on a complaint in writing by a constable , to extend the period of police detention if satisfied that there are reasonable grounds for believing that the further detention of that person is justified . Detention is only justified for these purposes if the conditions set out in ( a)-(c ) above are satisfied ( Article CARDINAL ) ) . The person to whom the complaint relates must be furnished with a copy of the complaint and brought before the court for the hearing ( Article CARDINAL(CARDINAL ) ) and is entitled to be legally represented at the hearing ( Article CARDINAL(CARDINAL ) ) . The period of further detention authorised by the warrant may not exceed TIME ( Article CARDINAL(CARDINAL ) ) . By DATE a ORG may , on a complaint in writing by a constable , extend the period of detention for such period as the court thinks fit , having regard to the evidence before it ( Article CARDINAL(CARDINAL ) , ( CARDINAL ) ) . This additional extension may not exceed TIME and may not end later than TIME after the time of arrest or arrival at the police station after arrest ( Article CARDINAL ) ) .

In order to make a lawful arrest under section CARDINAL(CARDINAL)(b ) of LAW , the arresting officer must have a reasonable suspicion that the person being arrested is or has been concerned in the commission , preparation or instigation of acts of terrorism . In addition , an arrest without warrant is subject to the applicable common law rules laid down by ORG in the case of ORG DATE ] Appeal Cases CARDINAL at CARDINAL and CARDINAL . The person being arrested must in ordinary circumstances be informed of the true ground of his arrest at the time he is taken into custody or , if special circumstances exist which excuse this , as soon thereafter as it is reasonably practicable to inform him . This does not require technical or precise language to be used provided the person being arrested knows in substance why .

In the case of ORG [ DATE ] ORG CARDINAL at CARDINAL , in which the arrested person sought a writ of habeas corpus , ORG of GPE discussed section CARDINAL(CARDINAL)(b ) . The arresting officer had told the applicant that he was arresting him under section CARDINAL of LAW as he suspected him of being involved in terrorist activities . Accordingly , ORG found that the lawfulness of the arrest could not be impugned in this respect .

The arresting officer ’s suspicion must be reasonable in the circumstances and to decide this the court must be told something about the sources and grounds of the suspicion ( per PERSON in PERSON v. Chief Constable of the ORG and ORG , decision of ORG , DATE ) .

Under ordinary law , there is no power to arrest and detain a person merely to make enquiries about him . The questioning of a suspect on the ground of a reasonable suspicion that he has committed an arrestable offence is a legitimate cause for arrest and detention without warrant where the purpose of such questioning is to dispel or confirm such a reasonable suspicion , provided he is brought before a court as soon as practicable ( NORP v. PERSON [ DATE ] CARDINAL ORG at CARDINAL , and PERSON [ DATE ] CARDINAL All England Law Reports CARDINAL at CARDINAL ) .

On the other hand , Lord PERSON held in the case of ORG ( loc . cit . at CARDINAL ) that under LAW no specific crime need be suspected to ground a proper arrest under section CARDINAL(CARDINAL)(b ) . He added ( ibid . ) :

" ... [ I]t is further to be noted that an arrest under LAW ) leads ... to a permitted period of detention without preferring a charge . No charge may follow at all ; thus an arrest is not necessarily ... the first step in a criminal proceeding against a suspected person on a charge which was intended to be judicially investigated . "

In GPE , applications for extended detention beyond the initial TIME period are processed at senior police level in GPE and then forwarded to the Secretary of ORG for GPE for approval by him or , if he is not available , a junior minister .

There are no criteria in LAW ( or its predecessors ) governing decisions to extend the initial period of detention , though strict criteria that have been developed in practice are listed in the reports and reviews referred to above ( see paragraphs CARDINAL and CARDINAL above ) .

According to statistics submitted by the ORG a total number of CARDINAL persons were arrested under LAW ( Temporary LAW in DATE of whom CARDINAL were eventually charged . Of these , CARDINAL were detained for DATE or less , PERCENT of whom were charged . However , of the CARDINAL persons detained for DATE and DATE PERCENT were charged . In addition , of the CARDINAL persons detained for DATE PERCENT were charged , many with serious offences including murder , attempted murder and causing explosions . In each of these cases the evidence which formed the basis of the charges only became available or was revealed in the latest stages of the detention of the person concerned .

A person detained under LAW of LAW ( now section CARDINAL of the CARDINAL Act ) has the rights , if he so requests , to have a friend , relative or other person informed of the fact and place of his detention and to consult a solicitor privately ; he must be informed of these rights as soon as practicable . Any such requests must be complied with as soon as practicable . This may , however , be delayed for up to TIME in certain specified circumstances ( sections DATE and CARDINAL of GPE ( Emergency LAW Act DATE - formerly sections CARDINAL and CARDINAL of the DATE Act ) .

A decision to deny access to a solicitor within the first TIME is subject to judicial review . Cases decided by ORG in GPE establish that under section CARDINAL of GPE ( Emergency LAW Act DATE the power to delay access can only be used if the officer concerned has reasonable grounds for believing that the exercise of the right would have CARDINAL or more of the specific consequences set out in subsection CARDINAL of section CARDINAL . There is a burden on the officer concerned to show to the satisfaction of the court that he had reasonable grounds for his belief . In the absence of evidence to establish such reasonable grounds the court will order the immediate grant of access to a solicitor ( decisions of the Northern Ireland High Court in applications for judicial review by PERSON ( DATE ) , PERSON and PERSON ( DATE ) , PERSON and Others ( DATE ) ) .

Since DATE , the practice has been that a detainee is not interviewed until he has been examined by a forensic medical officer . Thereafter , arrangements are made for the detainee to have access to a medical officer including his own doctor . There is provision for consultation with a forensic medical officer at a pre - arranged time DATE .

The above rights are briefly set out in a " Notice to Persons in Police Custody " which is served on persons arrested under LAW when they are detained .

Under paragraph CARDINAL of Schedule CARDINAL to the Prevention of Terrorism ( Temporary Provisions ) Act DATE a justice of the peace may grant a warrant authorising a constable involved in a terrorist investigation to search LOC and seize and retain anything found there if he has reasonable grounds for believing inter alia that it is likely to be of substantial value to the investigation . Paragraphs CARDINAL ) and ( CARDINAL ) of Schedule CARDINAL confer a similar power on a circuit judge and on a county court judge in GPE .

However , paragraph CARDINAL(CARDINAL ) provides that the Secretary of ORG may give to any constable in GPE the authority which may be given by a search warrant under paragraphs CARDINAL and CARDINAL if inter alia it appears to him that the disclosure of information that would be necessary for an application under those provisions " would be likely to prejudice the capability of members of ORG in relation to the investigation of offences ... or otherwise prejudice the safety of , or of persons in , GPE " .

The principal remedies available to persons detained under LAW are an application for a writ of habeas corpus and a civil action claiming damages for false imprisonment .

Under LAW , a person may be arrested and detained in right of arrest for a total period of DATE ( section CARDINAL(CARDINAL ) and ( CARDINAL ) - see paragraph CARDINAL above ) . Paragraph CARDINAL(CARDINAL ) of Schedule DATE CARDINAL LAW provides that a person detained pursuant to an arrest under LAW CARDINAL of the Act " shall be deemed to be in legal custody when he is so detained " . However , the remedy of habeas corpus is not precluded by paragraph CARDINAL ) cited above . If the initial arrest is unlawful , so also is the detention grounded upon that arrest ( per PERSON in the GPE case , loc . cit . at CARDINAL ) .

Habeas Corpus is a procedure whereby a detained person may make an urgent application for release from custody on the basis that his detention is unlawful .

The court hearing the application does not sit as a court of appeal to consider the merits of the detention : it is confined to a review of the lawfulness of the detention . The scope of this review is not uniform and depends on the context of the particular case and , where appropriate , the terms of the relevant statute under which the power of detention is exercised . The review will encompass compliance with the technical requirements of such a statute and may extend , inter alia , to an inquiry into the reasonableness of the suspicion grounding the arrest ( Ex parte Lynch , loc . cit . , and PERSON , loc . cit . ) . A detention that is technically legal may also be reviewed on the basis of an alleged misuse of power in that the authorities may have acted in bad faith , capriciously or for an unlawful purpose ( NORP v. Governor of ORG , ex parte PERSON [ DATE ] CARDINAL ORG Bench Reports CARDINAL , and NORP v. FAC ( Governor ) , ex parte NORP [ DATE ] CARDINAL All England Law Reports CARDINAL ) .

The burden of proof is on the respondent authorities which must justify the legality of the decision to detain , provided that the person applying for a writ of habeas corpus has first established a prima facie case ( PERSON v. Secretary of ORG [ DATE ] CARDINAL All England Law Reports CARDINAL ) .

A person claiming that he has been unlawfully arrested and detained may in addition bring an action seeking damages for false imprisonment . Where the lawfulness of the arrest depends upon reasonable cause for suspicion , it is for the defendant authority to prove the existence of such reasonable cause ( ORG v. PERSON [ DATE ] CARDINAL Queen ’s Bench Reports CARDINAL and PERSON , loc . cit . at CARDINAL ) . In false imprisonment proceedings , the reasonableness of an arrest may be examined on the basis of the well - established principles of judicial review of the exercise of executive discretion ( see PERSON , loc . cit . ) .

Issues akin to those arising in the present case were examined by ORG in its PERSON and Others judgment of CARDINAL DATE ( Series A no . CARDINAL-B ) where it held that there had been a violation of LAW para . CARDINAL ( article CARDINAL ) of the LAW in respect of each of the applicants , all of whom had been detained under section CARDINAL of LAW . The ORG held that even the shortest of the CARDINAL periods of detention concerned , namely DATE and TIME , fell outside the constraints as to time permitted by the first part of Article CARDINAL para . CARDINAL ( article CARDINAL ) . In addition , ORG held that there had been a violation of Article CARDINAL para . CARDINAL ( LAW ) in the case of each applicant ( Series A no . CARDINAL-B , pp . CARDINAL , paras . CARDINAL and CARDINAL - CARDINAL ) .

Following that judgment , the Secretary of ORG for ORG made a statement in ORG on DATE in which he explained the difficulties of judicial control over decisions to arrest and detain suspected terrorists . He stated inter alia as follows :

" We must pay proper regard to the tremendous pressures that are already faced by the judiciary , especially in GPE , where most cases have to be considered . We are also concerned that information about terrorist intentions , which often forms part of the case for an extension of detention , does not find its way back to the terrorists as a consequence of judicial procedures , which at least in GPE legal tradition generally require someone accused and his legal advisers to know the information alleged against him .

In the meantime , the position can not be left as it stands . I have already made clear to the ORG that we shall ensure that the police continue to have the powers they need to counter terrorism , and they continue to need to be able to detain suspects for DATE in some cases . To ensure that there can be no doubt about the ability of the police to deal effectively with such cases , the ORG are DATE taking steps to give notice of derogation under LAW article CARDINAL ) of ORG , and LAW . There is a public emergency within the meaning of these provisions in respect of terrorism connected with the affairs of GPE in GPE ... "

On DATE the GPE informed the Secretary General of ORG that the ORG had availed itself of the right of derogation conferred by LAW para . CARDINAL ( article CARDINAL ) to the extent that the exercise of powers under LAW of LAW might be inconsistent with the obligations imposed by LAW CARDINAL ( article CARDINAL ) of the LAW . Part of that declaration reads as follows :

" ... Following [ the PERSON and Others judgment ] , the Secretary of ORG for ORG informed ORG on DATE that , against the background of the terrorist campaign , and the over - riding need to bring terrorists to justice , the ORG did not believe that the maximum period of detention should be reduced . He informed ORG that the Government were examining the matter with a view to responding to the judgment . On DATE , the Secretary of ORG further informed ORG that it remained the Government ’s wish , if it could be achieved , to find a judicial process under which extended detention might be reviewed and where appropriate authorised by a judge or other judicial officer . But a further period of reflection and consultation was necessary before the ORG could bring forward a firm and final view . Since the judgment of CARDINAL DATE as well as previously , the Government have found it necessary to continue to exercise , in relation to terrorism connected with the affairs of GPE , the powers described above enabling further detention without charge , for periods of DATE , on the authority of the Secretary of ORG , to the extent strictly required by the exigencies of the situation to enable necessary enquiries and investigations properly to be completed in order to decide whether criminal proceedings should be instituted . To the extent that the exercise of these powers may be inconsistent with the obligations imposed by ORG have availed themselves of the right of derogation conferred by LAW and will continue to do so until further notice ... "

The Government have reviewed whether the powers of extended detention could be conferred on the normal courts but have concluded that it would not be appropriate to involve courts in such decisions for the reasons given in a Written Answer in ORG by the Secretary of ORG , Mr PERSON , on DATE :

" Decisions to authorise the detention of terrorist suspects for periods beyond TIME may be , and often are , taken on the basis of information , the nature and source of which could not be revealed to a suspect or his legal adviser without serious risk to individuals assisting the police or the prospect of further valuable intelligence being lost . Any new procedure which avoided those dangers by allowing a court to make a decision on information not presented to the detainee or his legal adviser would represent a radical departure from the principles which govern judicial proceedings in this country and could seriously affect public trust and confidence in the independence of the judiciary . The Government would be most reluctant to introduce any new procedure which could have this effect " . ( ORG , DATE , col . CARDINAL )

In a further notice dated DATE the GPE informed the Secretary General that a satisfactory procedure for the review of detention of terrorist suspects involving the judiciary had not been identified and that the derogation would therefore remain in place for as long as circumstances require .


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)

Upon a private company ’s request , in DATE PERSON , a forest engineer employed by the company , made an estimation of the amount of damages caused to the company ’s territory by wild animals under the responsibility of a hunting society . Subsequently , on DATE the company brought an action in compensation against the hunting society , the members of which were the applicants .

In DATE the hunting society was dissolved . The proceedings were discontinued on DATE , pending the identification of successors to the proceedings .

On DATE the proceedings continued , as the plaintiff designated the applicants as successors to the proceedings .

ORG appointed an expert , PERSON , to establish the value of the hunters’ house . The expert filed an opinion on DATE .

On DATE the ORG found for the plaintiff . This judgment was quashed by ORG on DATE .

In the resumed proceedings , due to the bias declared by the judges in GPE , the case was heard by ORG . The court requested PERSON to submit a further expert report to establish the amount of damages caused . He filed an opinion on DATE .

On DATE the first - instance court gave judgment , finding for the plaintiff . The applicants appealed , arguing - among others - that they had not received the copy of TIME of the hearing of DATE on time , and questioning the impartiality of PERSON

On appeal , ORG upheld ORG judgment . Concerning TIME of the hearing , the second - instance court pointed out that ORG had no legal obligation to send them the minutes automatically . They had the options of requesting copies either by post or in person at the court . The applicants had requested the copies for the first time on DATE , following which the court had sent the minutes on DATE despite the fact that the applicants had not paid the copy fees . The delivery of the mail sent according to the rules had not been successful . Following the repeated request of the applicants on DATE , the copies had been sent once again on DATE . Moreover , the court pointed out that the respondents had been present at the hearing , where they had the opportunity to take notes , and could have submitted observations within DATE to PERSON expert report , delivered to them on DATE . As to the impartiality of PERSON , the court emphasised that he had been the only expert to see the damages on - site in DATE . DATE after the occurrence of the damages , appointing a further forensic expert to proceed on the basis of documentary evidence would have been futile in the court ’s opinion . In addition , PERSON had followed the court ’s instructions when preparing the expert report .

The applicants lodged a petition for review with ORG , which upheld the final judgment on DATE . This decision was served on the applicants on DATE .


Violation of Art. 5-3;No violation of Art. 6-1;Pecuniary and non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE , GPE .

On DATE the applicant was arrested by the police on suspicion of having committed burglary . On DATE he was brought before PERSON , a district prosecutor from ORG ( Prokuratora Rejonowa ) , charged with CARDINAL counts of burglary and detained on remand . The prosecutor considered that there was a reasonable suspicion that the applicant had committed the offences in question because he had been arrested in flagrante delicto . He also relied on the serious nature of the offences in question .

On DATE the ORG prolonged the applicant ’s detention until DATE on the ground that it was necessary to secure the proper conduct of the proceedings . The prosecutor stressed that in the light of evidence gathered during the investigation it was likely that the applicant had also committed other , similar offences and that , in turn , justified a risk that he might obstruct the process of obtaining evidence from witnesses .

On DATE the ORG prolonged the applicant ’s detention until DATE , considering that it was necessary to secure the conduct of the investigation , especially as fresh evidence needed to be obtained .

On DATE , on an application made by ORG , ORG ( Sąd Rejonowy ) prolonged the applicant ’s detention until DATE in view of the reasonable suspicion that he had committed the offences with which he had been charged and the fact that the investigation could not be completed because evidence from a fingerprint expert and yet another forensic expert needed to be obtained .

On DATE , on the subsequent application by ORG , the ORG prolonged the applicant ’s detention until DATE . It found that such further prolongation was necessary to secure the process of obtaining fresh evidence , especially as several new charges of burglary had in the meantime been laid against the applicant . Moreover , evidence from an expert - valuer needed to be obtained to determine the damage caused by the offences .

On DATE , on a further , similar application by ORG , GPE , a single judge sitting as ORG , prolonged the applicant ’s detention until DATE . The reasons for that decision read , in so far as relevant :

“ [ The applicant ] was charged with the offence defined in LAW read in conjunction with LAW . In the light of the material gathered in the case , that charge has a sufficient degree of verisimilitude ( zarzut CARDINAL został w wystarczającym stopniu uprawdopodobniony ) . As it emerges from the case - file , new circumstances have arisen which might indicate that it would be necessary to obtain evidence from psychiatrists in order to establish the suspect ’s criminal responsibility . That being so and since in this court ’s opinion the grounds given for [ the applicant ’s ] detention have not ceased to exist but new circumstances have appeared that make it impossible [ for the prosecution ] to terminate the investigation , it has been held as in the operative part of the decision . ”

On DATE the ORG lodged a bill of indictment with ORG . The applicant was indicted on CARDINAL charges of burglary .

On DATE the applicant made an application for release to ORG . On DATE judge GPE , sitting as ORG , dismissed the application . The reasons for this decision read , in so far as relevant :

“ The accused , asking [ the court ] for the preventive measure [ imposed on him ] to be varied , submitted that the mother of his minor son was not providing the child with the proper care . This court dismisses his application since the actus reus of the accused is characterised by a high degree of danger to society ( “ zarzucany czyn oskarżonego charakteryzuje się wysokim stopniem społecznego niebezpieczeńtwa ” ) – the accused is amenable to the law under the rules governing relapse into crime defined in LAW . The likelihood of the facts adduced by the accused [ in his application ] has by no means been shown by him . The court could not , therefore , verify those facts . ... ”

The applicant appealed . He maintained that he should be released in view of the difficult situation of his family . On DATE ORG PERSON ) dismissed his appeal . It found that there were no valid reasons to release the applicant because his child had already been placed under the care of the grandparents .

The applicant ’s trial was to begin on DATE but it was postponed because the applicant , having found out that GPE had been appointed to sit as the presiding judge , challenged his impartiality . In the applicant ’s submission , the judge DATE who had dealt with his applications for release at the investigation stage – had actively participated in the investigation , and had consequently become a party to the proceedings . In particular , the applicant stressed that GPE had made the decision of CARDINAL DATE prolonging his detention . On DATE he had also dealt with , and dismissed , his application for release . On these occasions the judge had evaluated the charges against him and concluded that they had been justified . He had also referred to such aggravating circumstances as the serious nature of the offences in question and the applicant ’s criminal record . All those findings were closely related to the assessment of his guilt , criminal liability and to the anticipated sentence . In view of that , the applicant considered that it was clear that the judge had already formed a preconceived opinion on his guilt .

On DATE a panel of CARDINAL judges , sitting as ORG , dismissed the applicant ’s challenge as being groundless . The court stressed that the taking decisions on prolongation of detention made at a prosecutor ’s application was not tantamount to the taking part in an investigation .

Subsequently , the applicant again asked ORG to release him under police supervision in view of the difficult situation of his family . He also complained that GPE lacked impartiality .

On DATE GPE , sitting as ORG , dismissed the application . The reason for that decision read , in so far as relevant :

“ The arguments presented by the accused in relation to his family situation are identical to those adduced in his application of DATE . They were already examined by the courts at first and second instance . ORG , in its decision of DATE , indicated to the applicant the way in which care over his child could be secured . Since in this court ’s opinion there are no circumstances listed in LAW and the arguments relating to the disqualification of the presiding judge were already dealt with in the [ ORG decision of DATE - it should be held as in the operative part of the decision . ”

On DATE judge GPE , sitting as ORG , dismissed the applicant ’s fresh application for release on bail . The reasons for the decision read , in so far as relevant :

“ The accused has been charged with numerous counts of burglary committed in the circumstances of relapse into crime specified in LAW . The offence with which he was charged is characterised by a high degree of danger to society . Bail proposed by the accused can not , in this court ’s opinion , secure the proper conduct of the trial .

It should be pointed out that both the fact that an offence has been committed in the circumstances of relapse into crime and the serious danger to society [ represented by the offence ] are autonomous prerequisites for imposing detention on remand ( cf . LAW ( CARDINAL ) and ( CARDINAL ) of LAW ) - in respect of the accused those prerequisites exist cumulatively . ... ”

On DATE , on the applicant ’s appeal , ORG upheld the above decision , finding that his detention was justified under LAW ( CARDINAL ) and ( CARDINAL ) of LAW and that no special circumstances militated in favour of his release .

On DATE the applicant asked ORG to quash the detention order . In his view , his detention had become unlawful as the statutory - time limit of DATE for detention on remand laid down in the Code of Criminal Procedure had expired .

On DATE judge GPE dismissed the application as groundless and informed the applicant that the time - limits for detention on remand applied only to the investigative stage of criminal proceedings but there were no such statutory terms for detention pending trial . That decision was upheld on appeal on DATE .

On an unspecified date , the applicant again challenged the presiding judge . He repeated his previous arguments . The challenge was dismissed by ORG on DATE . In the court ’s opinion , the arguments adduced by the applicant did not justify disqualifying the presiding judge from dealing with the case .

Later , the applicant asked ORG to quash the detention order made by ORG on DATE . He argued that that decision was valid only for DATE . He also submitted that he should be released on account of the difficult situation of his family .

On DATE judge GPE dismissed the application and upheld the impugned detention order . Referring to the applicant ’s family situation , the judge observed that such arguments as the fact that the applicant ’s son was not – allegedly – being provided with the proper care had to be rejected because the child was under the care of his grandmother . Finally , GPE stressed that the reasons previously given to justify the applicant ’s detention were still valid .

On DATE a panel consisting of GPE , the presiding judge , and CARDINAL lay judges , sitting as ORG , opened a trial in the applicant ’s case

On DATE the final hearing was held . The prosecution was represented by PERSON , who had detained the applicant on remand on DATE . After hearing the parties’ final submissions , the court gave judgment . It convicted the applicant of CARDINAL counts of burglary and sentenced him to CARDINAL years’ imprisonment and a fine of MONEY , convertible into CARDINAL days’ imprisonment .

On DATE the applicant ’s lawyer appealed against that judgment . The appeal was directed against the sentence imposed and the conviction was not as such contested .

On DATE the applicant appealed . In his appeal , he alleged , among other things , that the trial court had violated the principles of the presumption of innocence and in dubio pro reo because the presiding judge GPE had considered him guilty and had had a preconceived view on his criminal liability long before the end of the trial , i.e. already on DATE , when he had prolonged his detention at ORG request .

The appeals were heard on DATE before ORG . On DATE ORG upheld the firstinstance judgment .

At the material time the rules governing detention on remand were contained in LAW of the Law of DATE Code of Criminal Procedure ( “ the Code ” ) ( Kodeks postępowania karnego ) entitled “ Preventive measures ” ( NORP zapobiegawcze ) . The LAW is no longer in force . It was repealed and replaced by LAW DATE ( commonly referred to as the “ GPE Procedure ” ) , which entered into force on DATE .

Until DATE ( i.e. the date on which the Law of DATE on LAW to LAW and Other Criminal Statutes ( “ the DATE Law ” ) entered into force ) at the investigation stage of criminal proceedings detention on remand was imposed by a prosecutor .

Article QUANTITY ( in the version applicable at the material time ) stated :

“ CARDINAL . Preventive measures shall be imposed by the court ; before a bill of indictment has been lodged with the competent court , the measures shall be imposed by the prosecutor .

A prosecutor may impose a preventive measure only with respect to a person who has been questioned in the case as a suspect . Before ordering detention on remand or deciding on bail the prosecutor shall personally hear the suspect . ”

Under LAW of the Code a detainee could appeal against a detention order made by a prosecutor to the court competent to deal with his case ; however , he was not entitled to be brought before the judge dealing with his appeal .

Chapter III of the PERSON entitled : “ Parties to proceedings , defence counsel , representatives of the victims and representatives of society ” described a prosecutor as a party to criminal proceedings . Under all the relevant provisions of the LAW taken together , a prosecutor performed investigative and prosecuting functions in the course of criminal proceedings . As regards the general position of the prosecution , at the material time they were not independent from the executive since the Minister of ORG carried out the duties of ORG .

Article CARDINAL § CARDINAL defined grounds for detention on remand . The relevant part of that provision , in the version applicable at the material time , provided :

“ CARDINAL . Detention on remand may be imposed if :

( CARDINAL ) an accused has been charged with a serious offence or has relapsed into crime in the manner defined in LAW ; or

( CARDINAL ) an accused has been charged with an offence which creates a serious danger to society .

Article CARDINAL stated :

“ If there are no special reasons to the contrary , detention on remand should be lifted , in particular , if :

( CARDINAL ) it may seriously jeopardise the life or health of the accused ; or

( CARDINAL ) it would have serious repercussions for the accused or his family . ”

At the material time Chapter VIII of LAW of DATE ( which was repealed on DATE Code of Criminal Procedure referred to above ) , entitled “ Relapse into crime ” ( PERSON do przestępstwa ) , contained special rules relating to sentencing repeat offenders ( in GPE , they are more commonly referred to as “ recidivists ” , i.e. “ recydywiści ” ) .

The finding that a person “ relapsed into crime ” within the meaning of Articles CARDINAL and CARDINAL of LAW ( provisions which constituted , for all practical purposes , sentencing guidelines in respect of recidivists ) , inevitably resulted in the sentence of imprisonment to which the accused was liable being increased .

Article CARDINAL § QUANTITY of LAW , in the version applicable at the material time , provided :

“ CARDINAL . If an offender , who has already been convicted of an intentional offence and , as a result , has served a sentence of CARDINAL months’ imprisonment , commits another similar offence within DATE following [ the date on which ] he has ended the service of the whole or part of his previous sentence of imprisonment , the court shall impose on him a sentence of imprisonment of between twice the minimum and oneand - a - half times the maximum sentence applicable . ”

The term was ( and still is ) related to the assessment of the gravity of criminal offences . If the “ danger to society ” represented by a given offence was considered by the court to have been “ serious ” or “ of a high degree ” , the court had to take that factor into account as an aggravating circumstance when imposing a sentence under the general rules of sentencing set out in LAW . That provision , in its relevant part , read :

“ CARDINAL . The court shall impose the punishment at its discretion , within the limits set out by the law , assessing the degree of danger to society [ represented by ] an offence and taking into account the purposes of the punishment in the sphere of retribution as well as the preventive and reformative purposes it is to achieve in respect to the convicted person .

Following the guidelines mentioned in paragraph CARDINAL , the court shall particularly take into account the kind and amount of damage caused by an offence , the intentions and the manner of acting of an offender , his personal qualifications and situation , as well as the way he lived before , and the behaviour after , the commission of an offence and [ as the case may be ] , complicity with a minor person in the commission of an offence .