The applicants , Mr PERSON , Mr PERSON and Mr PERSON , are NORP nationals who were born respectively in DATE , DATE and DATE . PERSON is currently in GPE , Mr PERSON has been released on licence on health grounds , while Mr PERSON ’s whereabouts are unknown . They were represented before the Court by Mr B. PERSON and Mr PERSON , of ORG . PERSON is also represented by PERSON of ORG and PERSON , of ORG . At the hearing on DATE , Mr PERSON was also represented by Mr PERSON and PERSON , of ORG . The respondent Government were represented by their Agent , ORG , and his co - Agent , PERSON .

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

On DATE a bomb exploded at ORG in GPE . A number of people were killed in the attack , which appears to have been politically motivated .

Superintendent PERSON was put in charge of the investigation . He discounted a theory advanced by a section of the media imputing responsibility for the attack to the far right and followed up a lead pointing to anarchist groups . In DATE PERSON and his assistants questioned Mr PERSON , a railway worker and member of an anarchist group , at a police station in GPE . At the end of the interview , Mr PERSON was killed in a fall from a window .

PERSON was subsequently accused at various public demonstrations organised by the far left of killing PERSON . ORG in a newspaper published by ORG , a political movement led by ORG and Mr Pietrostefani , were highly critical of him . Criminal proceedings were brought against him , but he was found to have no case to answer .

On CARDINAL DATE PERSON was killed in GPE by a young man , who fired QUANTITY shots before making his getaway with an accomplice in a stolen car , a blue ORG CARDINAL . They were involved in an accident before making good their escape .

On DATE the authorities put the car that had been used by the killers in a garage .

CARDINAL witnesses provided information on the events during DATE that had preceded the murder and a further CARDINAL on the murder itself . CARDINAL of the witnesses , PERSON , said that he had had a clear view of the killer and would be able to recognise him . Another said that he had seen QUANTITY people – a man and a woman – get out of a blue ORG CARDINAL , before getting into another car in which a man had been waiting for them .

Forensic tests were carried out on the ORG CARDINAL and at the scene of the crime .

The investigations proved inconclusive .

On DATE Mr PERSON turned himself into the police . On being questioned on DATE by ORG at ORG he said that he had taken part in the murder of PERSON on the orders of the leaders of Lotta Continua , Mr PERSON and Mr PERSON . The order had been confirmed by the CARDINAL principals on CARDINAL DATE , following an electoral meeting in GPE . The executive committee of the movement had decided on the killing for political reasons . On DATE Mr PERSON accused Mr PERSON of carrying out the murder . He said that he had waited for him in the blue ORG CARDINAL , which had been stolen TIME before the murder .

On DATE the GPE investigating judge issued a warrant for the applicants’ arrest at ORG request . The applicants were arrested DATE . The warrant contained a statement of the alleged offence . On CARDINAL , CARDINAL and CARDINAL DATE the applicants were questioned by the investigating judge .

On DATE the applicants were assigned to residence . On DATE they were released .

On CARDINAL and DATE the applicants made a request for the car used by the killers to be tested for fingerprints .

Confrontations were organised between Mr PERSON and Mr PERSON on DATE and between Mr PERSON and PERSON on DATE .

The applicants denied involvement in the murder or the existence of an illegal executive committee within the Lotta Continua movement .

A request by PERSON for the investigating judge to interview CARDINAL witnesses who could testify that he had been in GPE on DATE of the murder was turned down .

The public prosecutor ’s files of evidence against the applicants came to CARDINAL pages .

In DATE the files were made available to the applicants and their lawyers , who , by law , had DATE in which to set out their defence .

In view of the large number of documents to be examined , the investigating judge granted a request by the applicants for an extension of time , increasing the period to DATE .

On DATE Mr PERSON , Mr PERSON , Mr NORP and PERSON PERSON were committed to stand trial in ORG on a charge of intentional homicide with premeditation . Mr PERSON , PERSON PERSON and Mr PERSON were also committed to stand trial with other defendants on charges of armed robbery .

The first hearing was held on DATE . CARDINAL witnesses gave evidence during the course of CARDINAL hearings . They included Mr PERSON and CARDINAL witnesses named by PERSON during the preliminary investigations .

In evidence , Mr PERSON stated inter alia that he had contacted the carabinieri DATE before he made his formal deposition ( on DATE ) and that only Mr Sofri had attended the electoral meeting in GPE on CARDINAL DATE .

At the trial at first instance it was discovered that certain items of evidence relating to the murder were unavailable . In particular , the clothes PERSON had been wearing had been mislaid almost immediately after his death , having disappeared after being sent to the Prefecture in GPE . On DATE the ORG CARDINAL used by the killers was destroyed . The vehicle was subsequently deleted from the public register of vehicles ( pubblico registro automobilistico ) , as no road - fund tax had been paid for DATE .

The bullets that had been removed from PERSON body had disappeared after DATE . Under an order of ORG of DATE all objects used to commit an offence ( corpi di reato ) were confiscated after being preserved for DATE . Those with a commercial value were to be sold at auction and the remainder destroyed . The order was confirmed by a memorandum issued by the president of the court on DATE . On DATE the president of the court noted that a number of objects used to commit offences that had been stored in the court ’s archives had been badly damaged by water . He ordered their destruction . In a memorandum of CARDINAL DATE , the director of the office responsible for preserving objects used to commit offences certified that the bullets removed from PERSON body had been destroyed along with a large number of other items , pursuant to the aforementioned orders .

On DATE the applicants’ lawyers issued a statement deploring the destruction or disappearance of pieces of evidence . They pointed out , in particular , that it would have been possible through forensic tests on PERSON clothes to determine the power of the cartridge and whether the gun was long - barrelled or short - barrelled . Tests could have been carried out on the bullets , while an examination of the car would have allowed the accuracy of Mr PERSON ’s account of the circumstances in which it had been stolen to be verified .

In a judgment of CARDINAL DATE , ORG sentenced the applicants to DATE imprisonment . Mr PERSON was given an DATE sentence , as his cooperation with the judicial authorities constituted mitigating circumstances . ORG found that he was a credible witness for intrinsic and extrinsic reasons and that his statements were corroborated by various pieces of evidence , such as forensic tests carried out during the course of the investigations and trial , the results of the police inquiries and the statements of other witnesses . ORG considered conversely that the numerous defence witnesses either had a personal interest or were vague in their evidence . They were therefore not credible .

As regards the evidence that had been destroyed , ORG said that , while undoubtedly regrettable , it had had no real impact on the overall prosecution evidence that had been obtained during the investigation and at the trial . Immediately after the murder the police had analysed evidence from the car used by the killers and CARDINAL sets of thorough forensic tests had been carried out on the bullets . It was true that the destruction of the objects concerned had prevented any further tests or analyses . However , it would , in any event , have been undesirable to repeating them , unless it could help to establish the facts . In the case before ORG , the applicants had alleged , for instance , that it would have been possible to determine from an examination of the car whether , as Mr PERSON had affirmed , the wing mirror had been subjected to pressure from a screwdriver ( a point that was not mentioned in the police reports ) . However , even assuming that any marks so made could have been detected DATE , the fact that there was no external corroboration of Mr PERSON ’s affirmations was not in itself capable of casting doubt on their veracity . If , in the light of the available information , his statements were found to be precise and credible , ORG was entitled to rely on them in reaching a guilty verdict .

The President of ORG , Mr Manlio Minale , had been assigned to ORG on DATE . Mr Minale had started his new duties on DATE , that is to say , before signing the text of ORG judgment , which was lodged at the registry on DATE .

The second and third applicants appealed against that judgment . They argued , in particular , that Mr PERSON was not a reliable witness and his evidence contained a number of contradictions .

PERSON asked for a search to be made for PERSON clothes and for the results of the investigation carried out by the ORG before his death to be produced . He also requested ballistic tests in order to establish the type of firearm that had been used for the murder . Lastly , he called for the investigation to be reopened .

Mr PERSON submitted that the order committing the accused for trial was null and void , as they had been given DATE in which to prepare their defence when they should have been given more time in view of the volume of documents and decisions . He , too , called for the investigation to be reopened .

PERSON did not appeal . However , by virtue of LAW , which provides for “ the extension of the benefit of the appeal ” ( estensione dell’impugnazione – see “ Relevant domestic law and practice ” below ) , his case was examined at the hearing in ORG and the courts to which it was subsequently referred .

On DATE Mr PERSON applied for the case to be transferred to a different assize court of appeal on the grounds that the victim had worked in GPE and the political climate there was hostile to the accused . He also alleged that the judges in GPE were not independent , as , by the time he signed the judgment at first instance , Mr Minale had already taken up his appointment at the public prosecutor ’s office .

In a judgment of CARDINAL DATE , which was lodged with the registry on CARDINAL DATE , ORG dismissed that application . It noted that there was no trace of political or ideological prejudice among any members of the NORP judiciary . It added that if , as Mr PERSON had alleged , Judge PERSON had been assigned to ORG in order to penalise the accused , ORG would also have been prejudiced against them , so that there would have been no point in transferring the case to a different assize court .

At the appeal hearing , ORG ordered fresh ballistic tests . However , these were conducted using photographic evidence , as the bullets that had been removed from PERSON body had been destroyed in the interim .

In a judgment of CARDINAL DATE , which was lodged with the registry on DATE , ORG upheld the first - instance decision . It found that Mr PERSON had confessed to his crime through a genuine desire to repent . His evidence was credible and corroborated by other evidence , including documents and statements by other witnesses . ORG also found that the motive for the killing was clearly established by certain articles that had been published in the Lotta Continua newspaper .

The second and third applicants appealed to ORG . They argued , inter alia , that the reasoning in the judgment of CARDINAL DATE was illogical and that the intrinsic and extrinsic credibility of Mr PERSON ’s testimony had not been established .

On DATE the case was assigned to the full court of ORG .

In a judgment of DATE , which was lodged with the registry on CARDINAL DATE , the full court set aside the judgment of ORG in so far as it concerned the charges of homicide against the CARDINAL applicants who had appealed and remitted the case to the same court . PERSON also benefited by “ extension ” from that decision , in accordance with LAW .

ORG found , inter alia , that ORG had relied in its decision on Mr PERSON ’s intrinsic credibility , which had not been proved . It pointed out that the credibility of former accomplices had to be established , firstly , by reference to the following factors : their social , financial and family situation , their past , their links with other accomplices , and the immediate and underlying reasons for their decision to confess and to implicate their accomplices . The intrinsic coherence of their statements then had to be examined with the help of the criteria established by the case - law : notably the accuracy , consistency and spontaneity of the statements . Only after establishing the credibility of the former accomplice ( riscontri ) was the court to examine the evidence corroborating his or her testimony .

In a judgment of DATE , which was lodged with the registry on DATE , ORG , presided over by PERSON , acquitted the CARDINAL applicants who had appealed and , by “ extension ” , PERSON and Mr PERSON .

The judgment , which was drafted by PERSON and ran to CARDINAL pages , pointed to evidence , firstly , that Mr PERSON was genuinely repentant , had not sought to accuse the applicants unjustly and bore them no hatred and , secondly , that there was no plot against the applicants . That evidence indicated that Mr PERSON was , on the face of it , a credible witness . As it had been asked to do by ORG , ORG then turned to the intrinsic coherence of Mr PERSON ’s testimony and concluded that his confession had not been obtained through any duress or mental conditioning , especially as he had not been charged with or prosecuted for any other offences and , therefore , had no interest in accusing the applicants . Mr PERSON ’s evidence was precise and coherent , in spite of certain contradictions that were no doubt attributable to the time that had elapsed since the murder and the psychological pressure he had been under . It was also necessary to take into account the fact that Mr PERSON came from a different cultural background to Mr PERSON and Mr NORP and had had difficulty in answering the numerous questions put to him by the applicants . As regards corroboration of Mr PERSON ’s testimony , there was clear evidence of the existence of an illegal executive committee at Lotta Continua and various statements made by PERSON accorded with the results of police inquiries and the evidence of various witnesses . The lack of fingerprints inside the car used by the murderers was explained by the fact that they had not touched any of the smooth surfaces .

However , the DATE pages of the judgment of DATE pointed to testimony on CARDINAL factual matters that was insufficiently supported by other evidence and constituted “ twilight areas ” in Mr PERSON ’s evidence . The relevant circumstances were as follows :

Mr PERSON had incorrectly identified the colour of the car used to commit the murder .

NORP In his initial statements , he had failed to mention that he knew one “ PERSON ” , who had allegedly assisted him in preparing the murder and stealing the ORG CARDINAL ;

Mr PERSON said that the road - traffic accident that had occurred immediately after the murder had taken place in a car park , whereas an eyewitness said that it had happened elsewhere .

Mr PERSON said that he had reversed along a stretch of road just before the murder , but this was denied by eyewitnesses .

According to some witnesses , the car carrying the killers was driven by a woman , not by Mr PERSON ( a version that was supported by the fact that the police had found a pair of ladies glasses in the car ) ;

Mr PERSON could not recall certain items that had been found in the car and which did not belong to the owner .

In view of those circumstances , it was not possible to conclude that PERSON PERSON ’s account was sufficiently corroborated by other evidence , so that his presence in GPE on DATE of the murder could not be considered to have been proved . Since his guilt could not be established , his evidence also had to be regarded as unreliable in so far as it concerned acts allegedly committed by the applicants . As a result , it was not necessary to take into consideration his account of the applicants’ role .

The applicants affirmed that Judge PERSON disagreed with ORG verdict acquitting them . In a letter of DATE , ORG asked ORG to advise on the basis of the relevant documentation whether this was true .

In a memorandum from ORG dated DATE , the Government informed the ORG that at the end of the deliberations of ORG , composed inter alia of PERSON , the President of ORG had lodged with the registry , in accordance with LAW , a signed and sealed envelope containing the name of the dissenting judge or judges and details of the issue or issues on which they dissented . The ORG stated that the existence of that envelope showed that CARDINAL of the members of ORG had disagreed with the decision to acquit . The names of the dissenting judge or judges could , however , only be ascertained by opening the sealed envelope . However , the Government considered that the envelope could not be produced to ORG for the following reasons :

Envelopes were only to be opened for the purposes of protecting a dissenting judge against court proceedings for professional negligence .

Section CARDINAL(CARDINAL ) of ORG Act ( Law no . CARDINAL of DATE ) laid down that such envelopes were to be sent to the court in which the Prime Minister had issued proceedings seeking reimbursement of compensation paid to an injured party from the judge who delivered the decision .

According to the Government , the provisions of domestic law that allowed a derogation to be made from the rules of confidentiality applicable to proceedings in private applied only in special circumstances and could not be interpreted widely by analogy .

The applicants disagreed with the Government and considered that the refusal to produce the envelope to the ORG was unacceptable . The NORP authorities had thereby prevented the Convention institutions from gaining access to the sole document capable of establishing a vital point in their submissions .

On DATE Mr Sofri lodged a complaint against Mr Pincioni . He alleged that the judge had drafted a “ suicidal judgment ” with CARDINAL pages devoted to evidence pointing to the ORG guilt and CARDINAL pages to the areas of doubt that had persuaded ORG to acquit .

ORG requested that no action be taken on the complaint . It noted that ORG complaints concerned the performance of judicial duties by a judge of ORG . It did not constitute a criminal offence for a judge to make mistakes when drafting a judgment . Any such mistakes could , if appropriate , be used as the basis for an appeal against the judgment . By an order of CARDINAL DATE , the GPE investigating judge granted ORG application .

PERSON said in response to that decision that he had not appealed to ORG and would not be doing so , as he had been acquitted , not convicted .

ORG appealed to ORG against the judgment of DATE , arguing that the reasoning was illogical and contradictory .

In a judgment of DATE , which was lodged with the registry on DATE , ORG set aside the judgment of DATE , holding that the reasoning was illogical , contradictory and insufficient , and remitted the case to a different division of ORG .

ORG noted that ORG had carefully examined Mr PERSON ’s confession and found that it was entirely credible and corroborated by other evidence . However , the last CARDINAL pages of the impugned judgment referred to “ obscure ” circumstances which it said justified an acquittal . That manner of proceeding was illogical and contradictory , in particular because the “ obscure ” circumstances had in fact been clarified in the initial part of the judgment in which ORG had explained why they did not cast doubt on Mr PERSON ’s version of events . Accordingly , the doubts concerning his credibility were superficial only and not based on any concrete and compelling reason capable of outweighing the evidence of guilt referred to in the initial part of the judgment . ORG was also critical of ORG decision not to examine Mr PERSON ’s evidence concerning the applicants’ liability .

After admitting in evidence A viso aperto , a book containing an interview with Mr PERSON , the suspected leader of ORG , and testimony from one of the members of that organisation , ORG of ORG convicted the applicants and sentenced them to DATE imprisonment in a judgment of CARDINAL DATE , which was lodged with the registry on DATE . It also ruled that prosecution of the offence of which Mr PERSON was accused was time - barred in view of his mitigating circumstances .

ORG found that Mr PERSON had genuinely repented , bore no hatred of or hostility to the applicants and had no interest in accusing them falsely . He was a credible witness whose evidence was coherent , precise and consistent , the inaccuracies in his depositions being minimal and concerning aspects of the murder that were of secondary importance . The court found that the existence of an illegal executive committee within Lotta Continua had been fully established and PERSON PERSON ’s evidence was consistent with the results of the police investigations .

The applicants appealed to ORG . They argued that PERSON PERSON was not a credible witness , since despite declaring himself genuinely repentant after the killing , he had continued to commit armed robberies . They also pointed to numerous contradictions in his statements , which , contrary to what ORG had affirmed , had not been eliminated .

Subsequently , X and Y , CARDINAL members of the jury that had tried the case in ORG , made the following statement in private interviews with journalists and lawyers at DATE . They said that at the end of the deliberations in the jury room , the jurors had been divided ( CARDINAL votes to CARDINAL ) between those minded to convict and those minded to acquit . The applicants should therefore have been found not guilty under the “ most favourable decision for the accused ” rule ( Article CARDINAL § CARDINAL of LAW ) . However , the President of ORG , Mr PERSON , had encouraged jurors to change their vote to avoid “ ruining ” the judgment and forcing the public prosecutor ’s office to appeal to ORG ; at the same time he had assured them that any guilty verdict they returned could be accompanied by a request for clemency for the applicants . Some of the jurors had at that point proposed finding mitigating circumstances to enable the accused to benefit from the statute of limitations . However , Mr PERSON had also advised against that course of action , arguing that it would be tantamount to saying that they were not convinced of the applicants’ guilt . CARDINAL jurors had then changed their minds and voted in favour of a conviction .

On DATE , after learning of the CARDINAL ORG account of the deliberations of ORG , PERSON lodged a complaint against Mr GPE for abuse of authority .

On DATE ORG opened an inquiry . On DATE Mr Sofri requested that a statement be taken from a Mrs D. whom he said would be able to testify that well before the end of the trial Mr Della Torre had told her privately that the applicants were undoubtedly guilty . PERSON also made a request for statements to be taken from all the members of the Second and Third Divisions of ORG ( to which the first and second remittals of the case were respectively made ) .

On DATE Mr PERSON made an application to ORG for an order staying the proceedings pending the outcome of the inquiry into Mr GPE conduct .

On DATE Mr Sofri requested ORG to interview PERSON and all the members , both full and substitute , of ORG . He referred , in particular , to PERSON conversation with Mr PERSON , and said that PERSON had immediately informed CARDINAL of the defendants of Mr PERSON remarks , who had passed on the information to his co - accused and defence counsel .

On DATE the newspaper ORG della PERSON published a statement by a person who had served on the jury at the second retrial confirming , in substance , ORG allegations . It did not identify its source .

On DATE all the members of the jury who had sat at the second retrial were questioned by ORG or the police . They all said that they were bound by LAW to remain silent about the circumstances surrounding the deliberations in the jury room , which were confidential under NORP law . ORG nevertheless urged them to testify , saying that the duty to remain silent had to yield to the duty of persons holding public office to report criminal offences for which a prosecution lay without a formal complaint being made .

X and Y stood by their depositions . X further stated that in another trial that had ended with the accused ’s conviction , Mr PERSON had congratulated the jury on the vote and added : “ I hope that in the PERSON trial everyone will be like you and no one will allow themselves to be overawed , as last time they acquitted everybody when they should n’t have ” ( PERSON siano tutti come lei , che nessuno si lasci condizionare , perché l’ultima volta hanno assolto tutti , e non dovevano . )

In addition , Y and Z ( CARDINAL of the substitute members of ORG ) said in evidence that Mr PERSON had recommended that the jurors should focus in their reading on the judgment drafted by ORG and the judgment at first instance . They also said that some of the jurors had had difficulty in obtaining a copy of a pleading filed by ORG at the original trial .

On DATE PERSON was also questioned by ORG . She said that she was a “ very dear friend ” of Mr PERSON ’s wife , and greatly admired Mr PERSON . During a private conversation before the trial Mr PERSON had said that evidence had been obtained to support the accusations that had been made against the applicants , that Lotta Continua was a terrorist organisation and its members madmen ( scalmanati ) . DATE PERSON had informed Mr PERSON of her conversation with Mr PERSON and said that she was prepared to repeat her account to the authorities .

On DATE and CARDINAL DATE ORG questioned Mr GPE and Mr PERSON ( the latter being the other professional judge who had sat at the second retrial ) .

In a judgment of DATE , which was lodged with the registry on DATE , ORG dismissed the ORG appeals , holding that ORG had given logical and correct reasons for its findings on all the issues . It also dismissed PERSON application for a stay , observing that under the relevant provisions of domestic law ( ORG CARDINAL of the Code of Criminal Procedure ) criminal proceedings could only be stayed if their outcome depended on the resolution of a preliminary question of civil or administrative law and that no such measure was available if the preliminary question concerned a point of criminal law . It went on to say that Mr PERSON ’s submissions were in any event manifestly unfounded , as an impugned decision could only be declared null and void as a result of the voting procedure at private deliberations in very specific circumstances .

On DATE , on an application by PERSON , ORG requested the investigating judge to reopen the inquiry into Mr LOC ’s conduct , which had been officially closed on CARDINAL DATE . ORG submitted that evidence found in the inquiry into Mr GPE conduct called for new investigations into Mr ORG conduct .

By an order of DATE , the LOC investigating judge dismissed ORG Office ’s application . He observed , inter alia , that ORG had produced no new evidence against Mr Pincioni and that the reference to the investigations into Mr GPE conduct did not appear relevant , as no link could be found between the conduct of the CARDINAL judges , who had been involved at different stages in the proceedings and in an entirely different context .

On DATE ORG requested that no further action be taken on ORG complaint . As regards the deliberations and the vote in the jury room , ORG had obtained “ disturbing evidence ” from certain members of the jury ( X , Y and Z ) of conduct on the part of Mr GPE that could be described as abusive and intended to prejudice the applicants . However , those statements had not been corroborated by the other members of the jury or PERSON De PERSON . ORG did not think that X and Y were lying and pointed out that X could not have been politically motivated , as he had been a militant for the far right in the past . The explanation was simply that , in the tense atmosphere produced by such a complex and sensitive trial , the CARDINAL jurors had construed some of Mr GPE “ inappropriate remarks ” as intended to influence the jury . The notion that ORG had lodged his complaint solely in order to permit him to intervene in ORG proceedings could also be ruled out , as he had reported serious matters that might have had a bearing on the position of the accused in the PERSON trial .

PERSON opposed the request for no further action to be taken on the complaint . In view of the different accounts that had been given by the jurors , he requested further investigations in order to verify how the vote in the jury room had been taken and a confrontation between Mr PERSON , X and PERSON

A hearing was held in private before the investigating judge .

On DATE the GPE investigating judge made an order for no further action to be taken on ORG complaint . He observed , firstly , that legal commentators considered that judges derived their decision - making power directly from the people and consequently could not be guilty of abuse of authority when exercising it . Further , there was no indication that Mr PERSON was driven by “ self interest ” , and nothing in the case file to suggest that he had sought to damage the accused or pursue unlawful objectives . In addition , ORG should not have ordered the jurors from ORG to answer his questions . The confidentiality of votes cast and opinions expressed in the jury room was intended to guarantee judicial independence and ensure the proper administration of justice . Discussions in the jury room could be animated without being unlawful and the manner in which a court reached its verdict ought not to become the subject of an inquiry . The statements of the members of ORG had therefore been obtained illegally and were inadmissible in evidence . The complaint should consequently have been filed away for lack of supporting evidence , not because it disclosed no criminal offence . Lastly , a decided case on the abuse of authority indicated that ORG could not claim to be a victim of the matters complained of . His opposition to the request for no further action to be taken could not therefore be taken into consideration . In any event , the witness statements which ORG had requested were unlawful in so far as they concerned the subject matter of deliberations in the jury room and irrelevant in so far as they related to other matters .

The investigating judge nevertheless considered it helpful , “ in the interests of accuracy and in view of the sensitive nature of the case ” , to analyse the evidence that had been obtained by ORG . He attached little credibility to ORG and ORG statements and considered that there was considerable doubt as to their spontaneity . In particular , there were a large number of discrepancies between their accounts , which were not corroborated by the statements of the other jurors and Mr PERSON , who denied that there had been any attempt by Mr GPE to exert unlawful pressure . In addition , X and Y had initially recounted their story to the press and certain members of the public , rather than to the authorities , and had not expressed dissenting opinions as they were entitled to do by LAW .

The investigating judge also took into account PERSON evidence , which the representative of the public prosecutor ’s office had regarded as accurate and credible , but not such as to render Mr PERSON criminally liable , since the matters alleged fell to be considered from a moral and ethical standpoint . The investigating judge noted on the contrary that it appeared highly unlikely that a judge with Mr GPE experience would have revealed his personal conviction that the accused were guilty to someone whom he had just met and who was a “ dear friend ” of Mr GPE . Moreover , even assuming that he had passed on his views , such conduct did not constitute a criminal offence , but grounds for requiring him to stand down . However , the applicants , who were well aware of PERSON allegations , had not requested him to do so .

PERSON appealed to ORG .

In a judgment of DATE , which was lodged with the registry on CARDINAL DATE , ORG declared the appeal inadmissible , noting that a decision to take no further action could only form the subject of an appeal to ORG if the complainant had not been given an opportunity to challenge the order for no further action to be taken and to obtain a hearing in private , or if the investigating judge had failed to state in his order the reasons why such a challenge was inadmissible . In the instant case , no violation of the complainant ’s procedural rights could be discerned and ORG allegations related solely to the merits of the LAW judge ’s decision , an issue which ORG had no jurisdiction to decide .

On DATE the applicants applied to ORG for a review , alleging that there was new evidence to show that they should have been acquitted . They referred , inter alia , to the following evidence :

– documents , in particular press articles , a computer presentation of the dynamics of the murder , a reconstitution of the car accident with a witness , the personal diary of Mr PERSON ’s partner , PERSON , accompanied by the reports of CARDINAL expert witnesses , CARDINAL a handwriting expert and the other a psychologist ;

– a computer presentation showing photographs of a bullet and of a fragment of a bullet ;

– a ballistic expert ’s report based on the computer presentation ;

– statements by certain witnesses .

According to the applicants , this evidence proved that Mr PERSON was not a credible witness .

In particular , PERSON , an eye witness , had stated that DATE after the murder , he had been shown photographs by QUANTITY police officers from which he thought he recognised the killer . He had subsequently recounted this episode at police headquarters , but had been highly disconcerted by the indifference of the officials there and resolved not to talk about the matter further .

Mr T. had said that he had seen PERSON on TIME of the murder in a bar in GPE , QUANTITY from GPE .

PERSON had said that he had explained to Mr PERSON in DATE or DATE the legal advantages to cooperating with the criminal - justice system . He had also testified that Mr PERSON and his partner were short of money .

Lastly , it appeared from a psychologist ’s report and certain extracts from her diary that PERSON was suffering from a form of schizophrenia , that neither she nor Mr PERSON knew how the murder of PERSON had been carried out and that , contrary to what she asserted , she had been aware that Mr PERSON intended to make a confession . The applicants produced copies of the relevant diary extracts .

They also requested that the civil parties’ submissions be declared inadmissible .

In an order of DATE , ORG dismissed the latter application , holding that the civil parties were entitled to express their views on the application for a review .

In an order of CARDINAL DATE , ORG dismissed the application for a review as being manifestly unfounded . It noted that some of the evidence referred to by the applicants was not new , having previously been examined at first and second instance . As to the remaining evidence , it did not raise any doubts as to the guilt of those who had been convicted .

The applicants appealed to ORG against the orders of DATE . They argued that , as a result of the judgment of CARDINAL DATE , the decisions of the courts of first and second instance had been quashed so that evidence that had been presented subsequently had to be regarded as “ new ” . They also complained that ORG had examined the relevance , not just the admissibility , of the evidence on which their application was based .

On DATE the public prosecutor sought an order setting aside the orders of CARDINAL and DATE . He relied primarily on the applicants’ grounds of appeal to ORG .

On DATE a compulsory residence order was made in respect of PERSON on health grounds . However , he subsequently returned to prison .

In a judgment of DATE , which was lodged with the registry on DATE , ORG set aside the impugned orders and remitted the case to a different division of ORG . It ruled , firstly , that the civil parties could not take part in the proceedings to determine whether the case should be sent for review . Further , it found that any evidence that was presented but not examined at the trial had to be regarded as “ new ” . It added that in review proceedings account also had to be taken of expert evidence obtained with the help of new methods and techniques . In particular , the computer presentation of the photographs of the bullets was helpful , especially in view of the fact that the original bullets had improperly been destroyed before the start of the trial at first instance and that the ballistic tests had had to be carried out using the photographs . Furthermore , ORG , which should only have carried out a preliminary examination of the admissibility of the application , had in fact conducted a detailed analysis of the relevance of each piece of evidence adduced by the applicants , thereby anticipating the judgment on the merits .

By virtue of new legislation that had come into force in the interim , ORG had acquired jurisdiction to consider the application for a review .

In an order of DATE , it dismissed the application . It found , inter alia , that the “ new ” evidence submitted by the applicants was either inconsistent and contradictory , or manifestly irrelevant , and accordingly could not alter the outcome of the proceedings . Furthermore , it was not capable of corroborating the applicants’ allegations of the existence of a “ plot ” by certain ORG agents against Lotta Continua .

The applicants appealed to ORG .

On DATE the public prosecutor applied for an order setting aside the order of CARDINAL DATE , on the grounds that ORG had examined the “ new ” evidence separately and not , as it should have done , as a whole .

In a judgment of CARDINAL DATE , which was lodged with the registry on DATE , ORG set aside the impugned order and remitted the case to ORG . It observed , inter alia , that ORG had examined the items of evidence produced by the applicants primarily with a view to disproving the existence of a plot against Lotta Continua , and had thus omitted to examine whether the applicants had grounds for challenging the findings of the courts that had convicted them on appeal . Furthermore , some of the criticism of the new evidence was illogical and de facto anticipated the judgment on the merits . Nor had the evidence been considered as a whole . ORG added that the applicants had been within their rights when they produced copies of PERSON personal diary and that the question of the authenticity of the copies should have been left to the tribunal of fact .

In an order of CARDINAL DATE , ORG declared the application for a review admissible . It accordingly made an order commencing the review proceedings and provisionally staying execution of the applicants’ sentences . Compulsory residence orders were made against the applicants and they were prohibited from leaving the national territory . These security measures were set aside by an order of DATE .

ORG added that Mr PERSON , who had not applied for a review , should also be regarded as an accused , his own conviction being potentially null and void if the applicants were acquitted .

The proceedings began on DATE . After CARDINAL hearings , the expert witnesses previously appointed by ORG were sworn in on DATE . ORG then heard evidence from Mr PERSON , the applicants , a number of other witnesses and expert witnesses who had been appointed by the court of its own motion and the defence . The expert witnesses said , inter alia , that they had concluded from an analysis of the photographs of the bullets and the computer presentation of the photographs that the shots had not been fired from the same weapon , contrary to what Mr PERSON had affirmed .

In the course of the proceedings , the applicants applied for an order requiring PERSON to testify to the meaning of certain passages in her personal diary . However , she pleaded her right to remain silent under LAW , as the partner of CARDINAL of the accused , Mr PERSON . ORG ruled that that right could also be exercised by a person who , like PERSON , had chosen not to avail herself of it when questioned in the proceedings that had preceded the review proceedings . Moreover , at the review stage , the application was for PERSON PERSON to explain the content of her personal diary , which the defence had produced only after the trial was over ; in other words she was being asked to give evidence on matters that were unconnected with her previous testimony . ORG added that LAW was intended to resolve the conflict between the general interest in ensuring that witnesses to relevant events testified and the private interest arising out of feelings for one ’s family which could incite witnesses to lie DATE and thereby to commit perjury DATE in order to avoid harming their relatives’ case . In the situation that obtained in the case before it , the legislature and ORG had decided that precedence should be given to the latter interest .

On DATE ORG decided to bring the trial to an end .

In a judgment of DATE , which was adopted after DATE of deliberations in private , ORG dismissed the application for a review and revoked the orders staying execution of the applicants’ sentences . It examined the new evidence that had been produced by the applicants and the evidence that had not been taken into consideration in the proceedings on the merits and concluded that it did not justify acquitting the applicants . Although it was regrettable that the bullets had been destroyed , it was not the fault of the investigating judge or the representative of the public prosecutor ’s office , neither of whom had even been consulted on the subject . Furthermore , the expert evidence adduced by the applicants on the photographs of the bullets and the car did not prove that they were telling the truth , as it was insufficient to support their affirmations .

ORG found that the fact that PERSON had exercised her right to remain silent during the review proceedings did not make her earlier testimony less credible . In any event , that testimony served only to corroborate Mr PERSON ’s confession and , even without it , the applicants should still have been convicted . ORG found in particular that PERSON decision had not been taken on a whim , but reflected her wish not to divulge the strictly private details contained in her personal diary .

Although the copies of the diary that had been produced by the applicants had to be considered authentic , ORG noted that it was difficult ( if not impossible ) to decipher the exact meaning of the handwritten notes it contained . The applicants had referred , in particular , to the following undated passage :

“ VII purification of the penis and the uterus

I am in the car with PERSON .

He stops in front of the town hall and says to me : “ The Superintendent now has a post at the town hall . ”

A man ( PERSON ? ) enters .

He makes himself heard ; he takes him under his arm and they leave together .

They make their way along a path lined with wild grasses .

Among the grasses is a stork puppet with a child puppet in its beak .

I think : “ It ’s the eye witness . ”

PERSON ( ? ) and the Superintendent head towards the end of the path – the lake –

Making my way back I take the child puppet

as the stork puppet is too big . ”

The parties had also mentioned the following phrases :

“ Is PERSON going to sort his matters out alone ?

Am I going to write to PERSON ? ”

“ DATE , on DATE ( I did not

know that it was your birthday

or that a series of horrible things

were in the process of happening to me ) , in the train ,

I sat in seat no . CARDINAL and felt

DON’T NEGLECT ME . ”

ORG noted that PERSON had not given evidence at the hearing or , therefore , provided her own account of the passages concerned . In addition , it was not possible to establish from an analysis of the entries that Mr PERSON ’s partner had intended to refer , albeit in an elusive and dreamlike manner , to PERSON murder . In that connection , the evidence of certain witnesses showed that at least some of the statements made in PERSON personal diary were fanciful and totally divorced from reality . Neither the extracts from her diary or the other evidence relied on by the applicants was capable of establishing that PERSON had been aware that Mr PERSON intended to make a confession or that they had prepared his confession together . Moreover , even assuming otherwise , any lies Mr PERSON may have told about the circumstances in which he had made his confession did not automatically call into question the authenticity of the facts he had related , as they had been confirmed by other evidence .

A statement of the reasons for the ( CARDINAL page ) judgment of DATE was lodged with the registry on DATE .

PERSON and Mr PERSON appealed to ORG .

In a judgment of DATE , which was lodged with the registry on DATE , ORG dismissed their appeals , holding that ORG had given logical and proper reasons for its decision on all the disputed issues .

The assize court and the assize court of appeal are composed of a president , another professional judge ( giudice or consigliere a latere ) and CARDINAL jurors ( giudici popolari ) . Substitute jurors attend hearings and replace sitting members if necessary . The votes of the CARDINAL professional judges and of the jurors on any issue of fact or law carry equal weight .

NORP law does not require the judge who drafts the reasons for the judgment to be chosen from among the majority . Accordingly , even dissenting judges may be assigned the task of drafting reasons for a decision with which they disagree . In practice , the statement of reasons is usually drafted by a consigliere a latere .

Article CARDINAL § CARDINAL of LAW provides :

“ At collective deliberations , at the request of a member of the division who has voted against the decision that has been adopted , a summary record shall be drawn up stating the names of the dissenters , the subject matter or issues with which they disagree and brief reasons for their disagreement . ”

LAW ( which has the same wording as LAW ) provides :

“ Where several people have taken part in the commission of an offence , an appeal by CARDINAL accused shall also benefit the others unless it is based on reasons that are peculiar to the appellant . ”

LAW in fine of LAW ( which has the same wording as LAW ) , provides that if the vote is split equally at the end of the deliberations , the court will adopt the solution that is most favourable to the accused .

Article CARDINAL § CARDINAL of the new Code of Criminal Procedure states that close relatives of an accused shall not be compelled to give evidence . This provision also applies to a person cohabiting with the accused , but only in respect of facts that occurred or were discovered during the period of cohabitation ( see paragraph CARDINAL ( a ) of Article CARDINAL ) .

Article CARDINAL of the Code of Criminal Procedure provides :

“ Save in cases in which they are under a duty to inform the judicial authorities , civil servants and persons holding public office shall be under a duty not to give evidence on confidential facts which they have learnt in the course of their duties . ”

Article CARDINAL of the Code of Criminal Procedure sets out the circumstances in which a convicted person may request a review . More specifically , subparagraph ( d ) of this provision provides :

“ A review may be requested ... if , after conviction , new evidence comes to light or is discovered which , by itself or together with evidence that has already been considered , shows that the convicted person should be exonerated ... ”


Violation of Article 8 - Right to respect for private and family life (Article 8 - Expulsion;Article 8-1 - Respect for family life;Respect for private life);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)

Mr PERSON , who is a mechanic by profession , is an NORP citizen . He was born in GPE on DATE , in LOC ( ORG department ) . He lived with his parents in the GPE region until DATE . His parents were born in GPE in DATE and DATE respectively . That country was a NORP department at the time , and became independent on DATE , following the NORP " Agreements " of DATE . In common with their children , they were deemed to have lost NORP nationality on DATE ( PERSON of DATE - see paragraph CARDINAL below ) , because they had not made a declaration recognising NORP nationality before DATE ( section CARDINAL of the Order of CARDINAL DATE - see paragraph CARDINAL below ) . PERSON father arrived in metropolitan GPE in DATE and served in the NORP army from DATE . He subsequently worked until his retirement in DATE as an assistant , later a civil servant , in ORG , this being a post reserved for NORP nationals . He died in Colombes ( Hauts - de - Seine ) in DATE .

ORG mother , who left GPE in DATE , and CARDINAL of his brothers and sisters - all born in metropolitan GPE prior to CARDINAL January DATE - each have an NORP national identity card . They reside in GPE , where they hold residence permits which are valid for DATE and are renewable . The youngest sister resumed NORP nationality on DATE .

PERSON was born in GPE on DATE , both her parents being NORP . She has NORP nationality and works as a secretary .

The applicants were married at Colombes on DATE , after living together for some time . They live at PERSON ( ORG ) ; they have no children .

Over DATE PERSON was convicted and received custodial sentences as follows :

( a ) DATE , CARDINAL months’ imprisonment for assault and battery ( ORG ) ;

( b ) DATE , CARDINAL months’ imprisonment for driving a vehicle without a licence and possession of category CARDINAL or category CARDINAL weapons or ammunition ( same court ) ;

( c ) DATE , CARDINAL months’ imprisonment , of which DATE suspended , and CARDINAL years’ probation for theft ( ORG ) ;

( d ) DATE , CARDINAL years’ imprisonment for aggravated theft ( Hauts - de - Seine Assize Court ) ;

( e ) DATE , CARDINAL months’ imprisonment for acquisition and possession of category CARDINAL or category CARDINAL weapons or ammunition ( ORG ) ;

( f ) DATE , CARDINAL months’ imprisonment , of which DATE suspended , and CARDINAL years’ probation for assault and battery and criminal damage ( same court ) .

His periods of imprisonment DATE , pending trial or after conviction , were as follows :

( a ) DATE , DATE and DATE ;

( b ) DATE , DATE and DATE ;

( c ) DATE , DATE and DATE ;

( d ) DATE , DATE , DATE and DATE ;

( e ) DATE , DATE and DATE .

Their total length was DATE , DATE and DATE .

On DATE the applicant was detained on remand at ORG ( Essonne ) and his wife was placed under judicial supervision in ORG ( ORG ) , both having been charged with aggravated receiving of stolen property by an investigating judge at the LANGUAGE tribunal de grande instance ( Seine - et - Marne ) .

In a judgment of DATE ORG of ORG ordered PERSON release subject to judicial supervision .

The Minister of the ORG had on DATE issued a deportation order against PERSON , on the ground that his presence on NORP territory was a threat to public order ( ordre public ) .

The order , which was in accordance with the opinion of ORG d’expulsion des étrangers ) , was served on the applicant on DATE at FAC .

Mr PERSON requested the Minister of the ORG on CARDINAL occasions to withdraw the order . The last request , of CARDINAL DATE , was the CARDINAL to receive a reply . This was sent to his lawyer on DATE by the Director of ORG at ORG , and read as follows :

" Following the decision of ORG DATE declaring PERSON application admissible [ ( see paragraph DATE below ) ] , you again drew my attention to your client ’s case . You wished in particular to know whether the Minister might be prepared to consider a friendly settlement of this matter .

In the light of a careful re - examination of PERSON case , the Minister issued a compulsory residence order ( arrêté d’assignation à résidence ) on DATE for the NORP - de- Seine department , where the applicant has his habitual residence .

The residence document issued to him has attached to it permission to undertake paid work .

This goodwill decision in favour of PERSON , which has been taken in view of his family ties , may be continued if his conduct is not in conflict therewith .

I confirm , however , that in view of the seriousness and the number of the offences committed by PERSON , it has not appeared possible to revoke the deportation order issued against him .

The compulsory residence order was served in DATE .

On DATE Mr Beldjoudi appealed to ORG for the deportation order to be set aside . Having been born in GPE of parents who were themselves NORP at the time , he was to be regarded as NORP and hence not liable to deportation ; further , he had no ties with GPE and had been married to a NORP for DATE .

The ORG d’État assigned the case to ORG , within whose local jurisdiction it fell .

On DATE that court ordered additional investigative measures : it asked the Minister of the ORG to submit his observations on the applicant ’s latest memorial and to produce a copy of the decree of DATE refusing him NORP nationality ( see paragraph CARDINAL below ) .

In an interlocutory judgment of DATE it decided to adjourn the case until the ordinary courts had decided the question of PERSON nationality ( see paragraphs DATE and CARDINAL below ) .

On DATE Mr Beldjoudi turned down the provisional residence permit which had been offered to him by the prefecture of the Hauts - de - Seine department , on the grounds that by accepting it he would be acknowledging that he was of NORP nationality .

PERSON resumed the proceedings on DATE , submitting a supplementary memorial , without waiting for a decision on his appeal to ORG ( see paragraph CARDINAL below ) . He argued from a law of CARDINAL DATE , which had amended the second paragraph of LAW on which the deportation order was based : having been habitually resident in GPE from birth , he could not be the subject of such an order , as he had not been convicted and sentenced to a term of imprisonment of DATE not suspended or DATE suspended in respect of offences committed after the coming into force of that law .

On DATE Mr Beldjoudi added to his supplementary memorial . With reference to LAW , he maintained that implementation of the said order would be a serious interference with the respect due to his private and family life ; he pointed out in this connection that he had been married to a NORP since DATE , he had been born in GPE , had lived there uninterruptedly and had received a NORP education and upbringing there .

On DATE the court dismissed the appeal for the following reasons :

" Considering that by the order dated DATE the Minister of the ORG , following the opinion of the special commission set up under LAW of the Order of DATE , ordered the deportation of PERSON , an NORP citizen , who had been convicted by a criminal court on DATE and sentenced to CARDINAL years’ imprisonment for aggravated theft ;

Considering that it does not appear from the case - file that the Minister , in deciding that the presence of PERSON was a threat to public order and consequently ordering his deportation , failed to examine all the evidence relating to the applicant ’s conduct or assessed that conduct in a manifestly erroneous manner ; and that it is not alleged that this assessment was based on material errors of fact ;

Considering that PERSON is not justified in relying on provisions emanating from the Declaration of the Rights of Man and of the Citizen , claiming to this end the benefit of provisions in LAW as amended in a version subsequent to the decision appealed against ; that having regard to the fact that the measure taken against the applicant was necessary for public safety , he is not entitled to take advantage of the provisions of LAW article CARDINAL) of ORG ; " .

Mr Beldjoudi appealed to the ORG d’État on DATE , asking it to quash the judgment of CARDINAL DATE and set aside the order of CARDINAL DATE as being ultra vires .

The Government Commissioner ( commissaire du ORG ) , Mr PERSON , made the following submissions :

" The majority of the grounds of appeal should not keep you long . CARDINAL of them , however , should induce you to re - examine , and in our opinion to amend , your case - law on a point which is of considerable importance .

According to the appellant , the deportation order against him is in breach of LAW article CARDINAL) [ of the LAW ] , as it constitutes an excessive interference with his family life . PERSON has been married to a NORP since DATE . He had thus been so married for DATE at the time of the decision appealed against .

In the current state of your case - law this ground of appeal would have to be dismissed as ineffective .

Thus in a decision of DATE , GPE , [ PERSON , tables ] , p. CARDINAL , and ORG [ ORG périodique ] CARDINAL.II.CARDINAL.CARDINAL , note PERSON , your court held that an alien ` can not to any effect rely on ... the provisions of LAW article CARDINAL) of ORG ... in support of his submissions asking for the deportation order against him to be set PERSON . Making the same point , but expressed slightly differently , the ORG judgment of DATE found that LAW article CARDINAL) of ORG did not prevent exercise of the power conferred on the Minister of the ORG by LAW , and dismissed the ground of appeal without further consideration ( appeal no . DATE ) .

Whatever the position may be on these uncertainties , we will suggest to you DATE that you definitely abandon the solution laid down in the GPE ben Abdeslem judgment and adopt an entirely new approach to the question before us .

There are CARDINAL principal reasons why we suggest this new approach to you .

The first reason is a negative one . It is that we do not really see what can justify the radically unfavourable answer given in DATE .

You surely did not intend to deny LAW article CARDINAL) of the LAW its character as a provision which is directly applicable in the domestic legal order . All your case - law is consistent as to the direct effect of LAW , nor does the actual wording of the ORG judgment in any way suggest such an ORG , as LAW article CARDINAL) was not rejected as such , but only with reference to the removal of aliens .

Was it your intention rather to apply the technique of the ‘ screen law’ , considering that as the law gives a complete and exclusive definition of the legal conditions for deportation , the addition of supplementary conditions derived from international agreements would amount to disregarding the legislature ’s intention ? If that was the reason for your decision at the time , it would clearly no longer be applicable DATE , following your plenary court decision of DATE in the PERSON case , according to which treaties take precedence over laws , even if the laws postdate them . But we doubt whether this was the explanation of your decision in PERSON : the decision related to a DATE deportation order ; but at that time the relevant internal legislation was not subsequent but prior to GPE ’s ratification of the Convention , and the ‘ screen law’ theory explanation is thus not tenable .

More simply , it seems probable to us that you considered that a deportation order was not in itself an interference with the alien ’s family life : if the alien has family ties on NORP territory , nothing prevents the other members of the family group leaving GPE with him . But this is a very theoretical way of looking at things . It is no doubt correct that in certain cases there is nothing to prevent the family leaving NORP territory ; but in other cases , especially if the alien has a spouse or children of NORP nationality , it may be difficult on practical or even legal grounds for the other members of the family to follow him , with the effect that the expulsion measure jeopardises the pursuit of an ordinary family life . In any event , it is in our opinion not possible to state that a deportation measure can never of itself be capable of interfering with the family life of the person concerned , and there is no reason to dismiss a priori as ineffective a ground of appeal based on DATE ( article CARDINAL) .

There is a second reason which supports us in this view : your case - law is not at all in harmony with that developed by ORG in DATE .

In the PERSON v. the GPE judgment of DATE ORG defined for the first time the possible impact of LAW article CARDINAL) on expulsion measures against aliens . The substance of its decision was that where the alien has real family ties in the territory of the ORG in which he is resident and the expulsion measure is such as to jeopardise the maintenance of those ties , the measure is justified with regard to LAW only if it is proportionate to the legitimate aim pursued , in other words , if the interference with family life which follows from it is not excessive with respect to the public interest to be protected . This balance between the public and private interests induced the ORG to find in the PERSON case that there had been a violation of the Convention by the GPE , with respect to an alien who was the father of a child born of a ( dissolved ) marriage with a GPE woman and who had been refused renewal of his residence permit for purely economic reasons , reasons which were indeed legitimate , but which led in the particular case to consequences whose seriousness was not proportionate to the public interest pursued .

Such an intellectual approach ought not to disconcert you , and we see nothing to prevent you henceforth adopting it as yours with reference to the deportation of aliens , provided of course that LAW article CARDINAL) of the LAW is in fact pleaded .

Reviewing proportionality is among your tried and tested techniques , and the concept of a balance to be struck between divergent public and private interests is certainly not unfamiliar to you , since you constantly make use of it in certain contexts . Admittedly , the field of deportation has until now been dominated rather by the concept of discretionary power and its corollary of a limited power of review restricted to manifest abuse of discretion . But even in this field you carry out a complete review where the statutory provisions require this - as in the case of the concepts of ‘ absolute FAC and ‘ compelling necessity for national NORP which exceptionally permit the expulsion of aliens belonging to categories who in principle are protected against such a measure , under the legislation in force after DATE - and in our opinion the same should apply in the case of the application of LAW article CARDINAL) of the Convention .

Furthermore - and here we come to our final argument - maintaining your case - law as in GPE PERSON would have the awkward consequence of making appeals to the GPE institutions directly available to aliens who were the subject of a deportation order and complained of an interference with their family life , without their being obliged first to have recourse to the domestic courts .

For it is a known fact that , according to the consistent case - law of ORG , the rule that domestic remedies must first be exhausted , which under LAW article CARDINAL ) of the LAW is a condition of admissibility of individual applications submitted to the ORG , must be understood as imposing on an applicant the obligation only to have prior recourse to domestic remedies which have a reasonable chance of success , having regard in particular to the case - law of the highest courts , with the effect that a definite line of case- law excluding a priori the taking into account of LAW article CARDINAL) of the ORG would entitle an alien to take his claims directly to the NORP institutions .

The present case is a perfect illustration of this . Without waiting for you to give a decision and hence before having exhausted all possible domestic remedies , PERSON lodged with ORG an application complaining of a violation of LAW article CARDINAL) of the LAW which he claimed to be the victim of . Despite the proceedings still pending before you , ORG declared the application admissible in a decision of DATE , referring in particular to your GPE ben GPE decision .

Further , after adopting its report , ORG referred the application to ORG , and the same case is thus simultaneously pending before you and before ORG , which will no doubt give a decision DATE . This is an exceptional situation , which can not be regarded as satisfactory or normal with respect to the control machinery set up by ORG , which is based on the concept of the subsidiarity of control by the NORP institutions to control by the domestic courts .

The only way to avoid such a situation occurring again , and indeed to avoid the domestic courts losing jurisdiction altogether in favour of ORG , consists in you yourselves reviewing compliance with LAW article CARDINAL) rather than leaving this task to the GPE institutions , whom incidentally you would not be doing a favour by allowing applicants immediate access to them .

If you agree with us on this question of principle , you will then have to make a decision on CARDINAL points in the present case : firstly , does the deportation of PERSON constitute an ‘ interference’ with his ‘ right to respect for his family life’ , to use the language of Article CARDINAL ( article CARDINAL) ? Secondly , is this ‘ interference’

We suggest that you answer both questions in the affirmative .

In our opinion , it can not be doubted that the deportation of the applicant jeopardises his family life to a certain extent .

No doubt the possibility can not be excluded of his NORP spouse being able to follow him abroad , which in practice means to GPE . But it must be admitted that that would not be easy , and that legal and practical obstacles could make it difficult for the couple to restart life abroad .

However , the serious nature of the offences committed by the applicant appears to us to justify the deportation order issued against him , and the interference with the applicant ’s family life is in the instant case not disproportionate to the threat to public order which the applicant ’s presence on NORP territory represented on DATE , the date for you to have reference to .

We are indeed far removed from the circumstances which gave rise to the above - mentioned PERSON judgment .

From DATE , when he was DATE , PERSON committed various offences for which he received various convictions : assault and battery , driving a vehicle without a licence , carrying a prohibited weapon .

Above all , on DATE he gained entry at TIME , together with accomplices , to the residence of CARDINAL people who were subjected to violence by the criminals in order to steal their savings . For these acts the applicant was convicted on DATE and sentenced to CARDINAL years’ imprisonment for aggravated theft .

In these circumstances , the decision taken with respect to him in DATE does not appear to us to have been disproportionate to the aim pursued , or to be excessive even having regard to the family consequences it has for the applicant .

In CARDINAL pan of the scales one must place the public interest in the removal of an individual who is a serious threat to the safety of persons and property . In the other pan one must bear in mind the difficulties Mr Beldjoudi and his wife ( the couple have no children ) would have in resettling abroad without damaging their family life . It seems to us that the balance is tilted towards the public interest .

We would not have any doubt in reaching this conclusion , had not ORG Rights - as it is now necessary to mention - adopted an opposite position , in the report it drew up on this case under LAW para . CARDINAL ( LAW and which it referred to ORG together with the application .

The Commission was of the opinion , by CARDINAL votes to CARDINAL , that the deportation of PERSON constituted a violation of Article CARDINAL ( article CARDINAL) .

The greatest regard must of course be had to such an opinion , but it must , however , not be forgotten that it is only an opinion , albeit a highly authoritative one and deserving of respect , as the ORG in a sense fulfils for the ORG the same function as the ORG Commissioner before your court ; this is a sufficient indication of its importance , but the ORG is not obliged to follow it ; and in the past the ORG has on several occasions differed from the GPE ’s opinion .

We for our part are unable to agree with the ORG ’s reasoning . It is clear from reading its report that it based itself not so much on PERSON matrimonial ties , as on the fact that the applicant was born in GPE , has always lived there , appears not to have personal ties with GPE , and does not know the LANGUAGE language and that , in the words of the Commission , ‘ the nationality link , though a legal reality , in no way reflects the real situation in human PERSON ( see paragraph CARDINAL of the report ) .

We appreciate the significance in human terms of these facts . Under the DATE legislation they might perhaps have protected Mr Beldjoudi against deportation , despite the seriousness of the offences committed by him . But they appear to us to have nothing to do with the concept of ‘ family life’ protected by LAW , or with that of ‘ private life’ , which CARDINAL members of the Commission , in a concurring but separate opinion annexed to the report , suggested as a better basis for a finding of a violation of DATE ( article CARDINAL) .

In fact , what the Commission intended to protect was not the applicant ’s ‘ family life’ or ‘ private life’ but rather his personal life and social life . But that seems to us to be outside the scope of the LAW relied on .

We add for the sake of completeness of information that the deportation of PERSON has not actually been enforced and that the authorities have , in a spirit of conciliation , assigned him to compulsory residence in LOC department , where he still is .

For all these reasons , we submit that the appeal should be dismissed . "

On DATE the ORG d’État ruled in accordance with the above submissions , and gave the following reasons for its decision :

" The technical correctness of the judgment appealed against

Considering , firstly , that contrary to what the appellant maintains , the judgment appealed against did not omit to rule on the ground of appeal based on the application of LAW of the Order of DATE ;

Considering , secondly , that it follows from a judgment of ORG of CARDINAL DATE , given prior to the judgment appealed against , that the appellant is of NORP nationality ; that ORG was thus rightly able to regard the question of nationality , on which it had by an earlier judgment adjourned a decision , as having been settled and to give no decision on the ground of appeal based on Mr PERSON ’s NORP nationality , abandoned by him ;

The lawfulness of the Minister of the ORG ’s order of CARDINAL DATE

Considering that PERSON , who did not raise any ground of appeal before ORG relating to the outward legality of the order for his deportation , is in any event not entitled to raise for the first time on appeal arguments based on the lack of reasons in the opinion of ORG , the order pronouncing deportation and the letter notifying it , which are based on legal grounds different from those on which his application at first instance was based ;

Considering that according to section [ CARDINAL ] of the Order of DATE , in the wording in force at the time of the decision appealed against , prior to the PERSON of DATE , ‘ deportation may be ordered by an order of the Minister of the ORG if the alien ’s presence on NORP territory constitutes a threat to public order or public finance’ ; that it can be seen from the documents in the case - file that the aforesaid measure was taken by the Minister of the Interior after he had taken into consideration not only the criminal convictions pronounced against PERSON but also the totality of PERSON conduct ; that it is thus not tainted by error of law ;

Considering that under LAW article CARDINAL) of ORG , ‘ CARDINAL . Everyone has the right to respect for his private and family life , his home and his correspondence - CARDINAL . There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a NORP society in the interests of national security , public safety or the economic well - being of the country , for the prevention of disorder or crime , for the protection of health or morals , or for the protection of the rights and freedoms of others’ ; that the measure appealed against , based on the defence of public order , was necessary for the defence of that order in view of the applicant ’s conduct and the seriousness of the offences committed by him ; that in these circumstances it was not in violation of DATE ( article CARDINAL) of the said Convention ;

Considering that it follows from the foregoing that PERSON is not justified in requesting the quashing of the judgment appealed against , by which ORG dismissed his claim that the order of the Minister of the Interior of DATE , requiring him to leave NORP territory , be set aside ; " ( PERSON DATE , p. CARDINAL )

On DATE Mr Beldjoudi had lodged with the registry of the ORG d’État an application for a stay of execution . It was dismissed by the court on CARDINAL DATE , on the grounds that " none of the arguments relied on appear[ed ] such as to justify withdrawal of the deportation order " .

While his appeal for the order to be set aside was pending before ORG ( see paragraphs CARDINAL above ) , the applicant twice requested a stay of execution . The requests , which were registered on CARDINAL DATE and CARDINAL DATE , were joined to the merits of the case and dismissed on DATE ( see paragraph CARDINAL above ) .

On DATE , DATE before his marriage , PERSON made a declaration before the ORG tribunal GPE with a view to resumption of NORP nationality . He relied on section QUANTITY of the Law of DATE , which allowed such a right to minor children born before DATE whose parents had not made such a declaration .

A prime ministerial Decree , adopted on DATE in accordance with the opinion of the PERSON d’État and served on CARDINAL DATE , refused him recognition of NORP nationality ( section CARDINAL of the Decree of DATE ) .

The applicant was at his request registered with the DATE intake , and on DATE at PERSON he was given a certificate of fitness for national service , issued by the commanding officer of ORG selection centre no . CARDINAL . He did not do the said military service , however , as the commanding officer of the GPE recruitment office had deleted his name from the register on DATE .

On DATE Mr Beldjoudi submitted a declaration of nationality to the ORG tribunal GPE , accompanying it by supporting documents . He claimed that he had enjoyed uninterrupted ostensible possession ( possession d’état ) of NORP status .

On DATE the judge sent the file back to the applicant ’s lawyer , informing him that the applicant should apply to the prefecture of the Hauts - de - Seine department with a request for naturalisation .

On DATE Mr Beldjoudi asked the judge in question to issue him with a certificate of NORP nationality . In an opinion of DATE the judge declined , as the evidence produced was not sufficient to prove that the applicant enjoyed NORP nationality .

On DATE the applicant started proceedings against the procureur de la République in the PERSON tribunal de grande instance , in order to have his NORP nationality recognised .

The court dismissed the claim on DATE , on the grounds that the applicant had lost NORP nationality on DATE , pursuant to the second paragraph of LAW DATE ( see paragraph CARDINAL below ) .

Mr Beldjoudi appealed against the judgment to ORG on DATE . He maintained that his father had not passed on to him anything which would allow him to claim an NORP identity as to culture and language , that the NORP religion was foreign to him , that he had ostensible possession of NORP status , and that the challenge to his NORP nationality on the basis of his NORP status represented a discriminatory interference with his freedom of conscience and his right to lead a normal family life , in manifest breach of ORG , DATE , DATE , DATE and DATE ( article CARDINAL , article CARDINAL , article CARDINAL , article CARDINAL , article CARDINAL ) of the Convention .

ORG dismissed his appeal on DATE . It gave the following reasons for its decision :

" Considering that civil status is transmitted by descent ; that a child born of CARDINAL parents with special civil status ( statut civil de droit local ) possesses that status ; that prior to NORP independence Mr NORP senior did not , as he could have done , declare that he renounced his personal special civil status in order to acquire normal civil status ( statut civil de droit commun ) ; that the fact that Mr ORG had NORP special civil status concerned only the rules applicable to the exercise of his civil rights and respected his freedom of religious conviction and did not require him to adhere to the NORP religion ; that , contrary to his claims , PERSON can not claim for himself and his father ostensible possession of NORP status when , according to a letter from the ORG and Commissioner of GPE dated DATE , his father , brothers and sisters have all for DATE been holders of NORP national identity cards and ORG residence permits , and he himself has never since NORP independence held documents such as a NORP national identity card or a NORP passport providing evidence of his ostensible possession of NORP status , but was the subject of a deportation order on DATE which has apparently not prevented him up to now leading a normal family life in GPE ; that accordingly the final ground of appeal he relies on , based on ostensible possession of NORP status and a violation of LAW , which was moreover not in force when he lost NORP nationality , must be dismissed ; "

The decision was served on the applicant on DATE .

PERSON had appealed on DATE . The appeal was dismissed by ORG ( ORG ) on DATE for the following reasons :

" Whereas according to the recitals of the judgment appealed against ( GPE , DATE ) , Mr NORP , born at Courbevoie on DATE , the son of PERSON , born on DATE at ORG ( GPE ) , and PERSON , born in DATE at ORG ( GPE ) , brought proceedings in order to have his NORP nationality recognised ; and whereas his application was dismissed on the grounds that , being aged DATE on the coming into force of Order no . QUANTITY of DATE , he had , as regards the effect of the independence of GPE on his nationality , followed the status of his parents , who were natives of that territory and had special civil status , and , not having benefited from the collective effect of a declaration recognising NORP nationality made by his father at the appropriate time , he was deemed to have lost NORP nationality on DATE , in accordance with paragraph CARDINAL of LAW no . CARDINAL - CARDINAL of DATE ;

Whereas Mr Beldjoudi complains that the judgment appealed against reached its decision on an invalid ground , namely that review of the constitutionality of the PERSON of DATE was not a matter for the ordinary courts , in dismissing his ground of appeal based on the fact that the said PERSON was contrary to the provisions of LAW ) ( iii ) of LAW on LAW , ratified by GPE and published in ORG of DATE , which prohibited all discrimination based on origin , especially ethnic origin , in the granting or withdrawing of nationality of the citizens of member GPE ;

But whereas the judgment appealed against held that PERSON no . CARDINAL- CARDINAL of DATE based itself , in order to regulate the consequences for nationality of NORP independence , on the civil status of persons originating from that territory and not on criteria prohibited by the aforesaid convention ;

It follows that the judgment does not warrant the criticism made of it by the ground of appeal , which can not be upheld ; "

Deportation of aliens is governed by the provisions of the Order of DATE relating to the conditions of entry and residence of aliens in GPE . The wording of the Order has been amended on several occasions , including amendments subsequent to DATE , the date when the ministerial order relating to the applicant was issued ( see paragraph CARDINAL above ) . The legislation in question did not include any transitional provisions .

In DATE , section CARDINAL of the DATE Order read as follows :

" ... deportation may be ordered by an order of the Minister of the ORG if the alien ’s presence on NORP territory constitutes a threat to public order or public finance . "

Section CARDINAL was amended by a PERSON of DATE , under which deportation was now subject to the existence of a " serious threat to public order " .

Section CARDINAL of the new PERSON , however , provided for a derogation , except in the case of aliens DATE :

" In the event of absolute urgency ... , deportation may be ordered where it constitutes a compelling necessity for the security of the ORG or for public safety .

These rules were altered by a Law of DATE .

Section CARDINAL resumed its original wording , that of DATE . It added , however , that " the deportation order [ could ] be revoked at any time by the Minister of the Interior " .

As for section CARDINAL , it stated that " a threat [ to public order ] having a particularly serious character " could in the event of absolute urgency justify deportation .

A Law of DATE reintroduced the DATE provisions .

The Minister of the ORG issued CARDINAL deportation orders in DATE . Of these , CARDINAL were based on section CARDINAL of the DATE Order , CARDINAL relating to ordinary criminal offences and CARDINAL to offences against the external or internal security of the ORG .

ORG did not define any categories of persons who were protected against all deportation measures .

DATE . By contrast , after being amended by the Law of DATE , section CARDINAL of the Order stated :

" The following may not be the subject of a deportation order under LAW :

An alien DATE ;

An alien who proves by any means that he has habitually resided in GPE since attaining DATE at the most ;

An alien who proves by any means that he has habitually resided in GPE for DATE , and also an alien who has lawfully resided in GPE for over DATE ;

An alien who has been married for DATE and whose spouse is of NORP nationality ;

An alien who is the father or mother of a NORP child residing in GPE , provided that he exercises parental authority ( at least in part ) with respect to that child or is actually meeting his needs ;

An alien who is the beneficiary of a pension in respect of an accident in employment or occupational illness paid by a NORP organisation , and whose permanent disability percentage is greater than or equal to PERCENT ;

An alien lawfully residing in GPE under one of the residence documents provided for by the present Order or international agreements , and who has not been definitively convicted and sentenced to a penalty equivalent DATE non - suspended imprisonment .

However , as a derogation from no . CARDINAL above , any alien who has been definitively convicted and sentenced to a penalty of non- suspended imprisonment for any length of time for an offence under sections CARDINAL and CARDINAL of Law no . CARDINAL - CARDINAL of DATE on multiple occupation , LAW , CARDINAL - CARDINAL and CARDINAL of LAW , may be deported .

The Law of CARDINAL DATE restricted the categories of non- deportation , but the LAW of DATE returned to the DATE legislation .

PERSON is regarded in NORP law as a police measure , not a criminal sanction . An alien affected does not benefit from the retrospective effect of the more favourable later provisions . He can thus not rely on them in support of an application for a decision concerning him to be set aside .

Once a deportation order has been issued by the Minister of the ORG , it remains in force indefinitely . The alien concerned may at any time , as often as he wishes , request that it be revoked .

If the alien has been absent from NORP territory for DATE and wishes to obtain such revocation , his request is considered by a committee which consists of judges only . If the committee finds in his favour , its opinion is binding on the Minister .

DATE . It frequently happens that the Minister of the ORG waives enforcement of a deportation order while nevertheless declining to revoke it . In such cases a compulsory residence order is issued in respect of the alien , in the hope of his reintegration into society . If he continues to disturb public order , he may be deported . This is then a fresh decision , separable from the order and itself capable of being challenged before the administrative court judge .

If the matter is referred to the judge , he considers the behaviour of the person concerned during the period when his presence on NORP territory has been tolerated . In order to assess the lawfulness of the measure , he thus considers the facts as they are at the date when he takes his decision .

For a period of DATE the ORG d’État considered arguments based on LAW article CARDINAL) of the Convention to be of no effect as against a deportation order ( see for example the ORG judgment of DATE , PERSON DATE , p. CARDINAL , and ORG périodique DATE , jurisprudence , no . DATE , with note by Mr PERSON , and the ORG judgment of DATE ) .

The PERSON judgment of CARDINAL DATE ( see paragraph CARDINAL above ) marks the abandonment of this line of case - law . Instead of reviewing whether there has been a manifest error of discretion with reference only to the threat to public order , the court now carries out a complete review of proportionality , and this has sometimes led to the setting aside of deportation orders ( see for example the PERSON judgment of DATE ( plenary court ) , with submissions by Government Commissioner PERSON , Revue française de droit administratif DATE , pp . CARDINAL - CARDINAL , and the PERSON judgment of CARDINAL DATE ( the President of ORG ) , to be reported in ORG ) .

The Law of DATE inserted into the Code of Nationality a Part VII , " Recognition of NORP Nationality " .

It was limited to overseas territories ( ORG ) , and introduced a new method for certain categories of " domiciled persons " and their descendants to have their NORP nationality recognised , subject to the CARDINAL conditions of settling on NORP territory and making a declaration .

GPE did not have the status of a TOM when it gained independence . This induced the NORP legislature to enact the Order of DATE relating to various provisions on nationality .

Under this Order persons of normal civil status , and persons of special civil status who had not been granted NORP nationality under NORP law , kept their NORP nationality as of right .

With respect to other persons of special civil status - the category to which the applicant ’s family belonged - section CARDINAL provided that as from DATE they and their children would not be able to establish their NORP nationality except by showing that they had made a declaration of " recognition of NORP nationality " .

The Law of DATE terminated the application of the DATE Order as from DATE . It brought about the loss of NORP nationality in the absence of a declaration of recognition .

Paragraph CARDINAL ( c ) of section CARDINAL of the PERSON stated that :

" Persons of special civil status of NORP origin who have not by that date made the declaration provided for in LAW shall be deemed to have lost NORP nationality on DATE . However , persons of special civil status of NORP origin shall keep NORP nationality as of right if no other nationality has been conferred on them after DATE . "

Section CARDINAL nevertheless offered minor children born before DATE - such as the applicant - the possibility of resuming NORP nationality where the parent whose nationality they had taken had not made the declaration of recognition .

The Law of DATE abolished recognition and deleted this word from the Code of Nationality . Part VIII of the Code , completely rewritten , laid down for the future special conditions for resumption of nationality for certain categories of persons who had lost NORP nationality following the gaining of independence by their country .

ORG is granted by decree . It may be granted inter alia to " nationals or former nationals of territories or GPE over which GPE has exercised sovereignty or a protectorate or a mandate or trusteeship " ( paragraph CARDINAL of LAW ) .

However , " an alien who has been the subject of a deportation order or a compulsory residence order shall not be eligible for naturalisation unless such order has been revoked in the form in which it was issued " ( first paragraph of DATE ) . In addition , " no one may be naturalised if he is not of good character and morals or if he has been convicted of one of the offences mentioned in LAW ... " ( LAW ) .