Violation of Art. 5-1;Violation of Art. 5-4;Non-pecuniary damage - financial award

On DATE ORG issued a warrant of arrest against the applicant and on DATE he was remanded in custody on suspicion of attempted manslaughter by assaulting the victims in their apartment with a knife and axe .

On DATE the ORG granted the prosecutor ’s request for prolongation of the detention until DATE in view of the need to take further expert opinions . On DATE the ORG dismissed the applicant 's request for release .

On DATE the case was transferred to ORG .

On DATE the ORG granted the applicant 's request to have the decision of DATE amended , and fixed the period for which the applicant 's detention was authorised to CARDINAL DATE .

On DATE the applicant requested his release . ORG and , upon appeal , ORG , dismissed his request .

On DATE the applicant requested his release . On DATE he underwent a psychiatric examination .

On DATE the ORG , acting upon the motion of ORG , prolonged the applicant 's detention from DATE until DATE . The court considered that the reasons for which the detention had been ordered had not ceased to exist . There was sufficient suspicion based on the evidence that the applicant had committed the offence with which he had been charged . The applicant had to undergo a further time - consuming psychiatric examination and further investigatory measures and evidence had to be taken .

On DATE an additional psychiatric opinion was submitted to the prosecutor ’s office .

On DATE the ORG upheld the decision of DATE considering that the detention had to be prolonged as the applicant 's psychiatric examination had not been completed .

On DATE and DATE the applicant requested to be released . His requests were on unspecified later dates dismissed by ORG .

On DATE the applicant requested ORG to order his release .

On DATE he was informed that the charges against him had been in part modified and he was given access to the case - file .

On DATE the applicant was served with a bill of indictment . On DATE the prosecutor lodged the indictment to ORG .

On DATE ORG dismissed the applicant 's request for release of DATE , having examined it in the prosecutor ’s presence . The court considered that there was a reasonable suspicion that the applicant had committed a dangerous offence , supported by the evidence given , inter alia , by the CARDINAL victims of the assault . The reasons for which the detention had been ordered still existed . The applicant had failed to indicate in his request any new circumstances capable of justifying this .

On DATE the applicant 's father appealed against this decision . He submitted that the period of detention had expired on DATE , whereas the applicant had not received any decision further prolonging his detention .

On DATE the applicant 's lawyer also lodged an appeal against the decision of CARDINAL DATE with ORG . He submitted that the court 's conclusions as to the reasonableness of the suspicions against him were based on insufficient evidence as only the evidence given by the victims supported the charges laid against the applicant . The applicant 's detention since DATE lacked any legal basis , as the detention period had expired on this date , and no further decision relating to the prolongation of the detention had been issued by any authority .

On DATE the ORG upheld the decision of DATE . The court first considered ill - founded the applicant 's arguments that the suspicion against him lacked any legal or factual basis . The court further considered that the applicant 's suggestion that his detention since DATE was unlawful , was entirely erroneous . The applicant 's lawyer must apparently have overlooked the fact that the bill of indictment had been lodged with the court on DATE . Therefore the time - limits provided for by LAW had ceased to apply , given that this provision applied only to the pre - trial stage of criminal proceedings . One might have thought , the court continued , that such manifestly obvious conclusion , which required only a cursory perusal of relevant provisions , should not have caused any interpretation difficulties .

NORP The court fixed the date for the first hearing for DATE , but it was later adjourned . Subsequently , on CARDINAL , CARDINAL , CARDINAL and DATE and on DATE the applicant requested to be released , but to no avail , as ORG dismissed all his requests .

On DATE the court convicted the applicant of attempted manslaughter and sentenced him to DATE imprisonment .

At the material time , the domestic provisions governing detention on remand were contained in LAW of DATE , which was later repealed and replaced by LAW ( hereafter referred to as the “ new LAW ) , which entered into force on DATE .

Under LAW , the grounds for imposing detention on remand and competent authorities were governed by the following provisions :

" CARDINAL . Preventive measures [ i.e. detention on remand , bail and police supervision ] shall be imposed by the court ; before a bill of indictment is lodged with the court , those measures shall be ordered by the prosecutor ( ... ) . "

" CARDINAL . A decision concerning preventive measures may be appealed [ to a higher court ] ....

NORP A prosecutor 's order on detention on remand may be appealed to the court competent to deal with the merits of the case .... "

“ A preventive measure ( including detention on remand ) shall be immediately quashed or altered if the basis therefor has ceased to exist or new circumstances have arisen which justify quashing or replacing a given measure with a more or less severe one . ”

“ CARDINAL . Detention on remand may be imposed if :

( CARDINAL ) there is a reasonable risk that an accused will attempt to induce witnesses to give false testimony or to obstruct the due course of proceedings by any other unlawful means ;

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

CARDINAL

Since DATE , and under the present criminal legislation , i.e. the new Code of Criminal Procedure , referred to above ( see § CARDINAL ) , the courts have been , and are bound by the maximum statutory time - limits for which pre - trial detention can be imposed , during the entire course of the proceedings .

Under the provisions applicable at the material time , the courts , when ruling on a prosecutor ’s request submitted to it pursuant to LAW , were obliged to determine the precise period for which detention could be prolonged . If they refused to prolong detention or if the prosecutor failed to submit a request for a further prolongation before or on the expiry of the last detention order ( regardless of whether it had been made by him or by a court ) , the detainee had to be released immediately .

Presence of the parties at court sessions other than hearings on the merits was regulated at the relevant time in ORG CARDINAL and CARDINAL of the Code of Criminal Procedure of DATE which provided , insofar as relevant :

" The ORG pronounces its decisions at a hearing if the law provides for it ; and otherwise , at a court session held in camera . ... "

" A court session in camera may be attended by a prosecutor ( ... ) ; other parties may attend if the law provides for it . "

However , no rule provided for the attendance of the accused or his or her lawyer before the court in any type of the proceedings concerning detention on remand .

At the relevant time there were no specific provision governing detention on remand after the bill of indictment was lodged with the competent court . In particular , there was no provision to the effect that lodging a bill of indictment automatically prolonged or replaced previous detention order , or that this event itself resulted in detention , which had originally been prolonged by a court for a fixed period at the investigation stage , being continued either for an unlimited period , or until a judgment at first instance was given . Nor was there any case - law to that effect . Nevertheless , according to the domestic practice , once a bill of indictment had been lodged with the court competent to deal with the merits of the case , detention was assumed to be prolonged pending trial , without any further judicial decision being given .

Articles CARDINAL and CARDINAL of LAW of DATE , referring to the formal requirements that a bill of indictment had to satisfy , stated , inter alia , that it should contain the first name and surname of the accused and information as to whether a preventive measure had been imposed on him or her . It also had to comprise a statement of the offence with which he or she had been charged , a detailed description of the facts of the case along with a statement of reasons for the accusation , an indication of the court competent to entertain the case , and the evidence upon which the accusation was founded .

On DATE ORG , in an interpretative ruling of certain provisions of LAW of DATE as amended by LAW DATE , addressed the problems posed by the practice of keeping an accused in detention under the bill of indictment . In its resolution ( no . I ORG CARDINAL/CARDINAL ) ORG replied DATE in the affirmative – to the question whether , after lodging a bill of indictment with the court competent to deal with the merits of the case , that court was obliged to give a decision prolonging detention on remand , which had meanwhile exceeded the period fixed ( or further prolonged ) at the investigation stage . The relevant parts of the resolution read as follows :

“ Under the provisions of LAW which applied before [ CARDINAL DATE , when ] the amendment of DATE took effect , an obligation to determine the period of detention imposed by a prosecutor at the investigation stage was laid down in LAW . However , it did not emerge explicitly from LAW and CARDINAL ( CARDINAL ) of the code that , at the investigation stage , a prosecutor or the court competent to deal with the case had each time to determine the point until which detention should last . It was deemed to be obvious that , when prolonging detention at the investigation stage , both the prosecutor and the court competent to deal with the case had to determine the time until which detention was to last under a given decision . It was therefore assumed that the obligation to determine the period of detention arose if a decision on that matter was given before the expiry of the maximum statutory terms applicable at a given stage of the proceedings .

Comparing the old legislation with the present one leads [ this ORG ] to the conclusion that the legislator , when amending the code in DATE , simply extended [ the scope of ] the rules applicable to continuing and prolonging detention on remand DATE which had previously applied only at the investigation stage DATE to the phase of court proceedings .

Before the amendment , the legislation was based on the precept that a suspect should not be detained indefinitely as long as his case was not being dealt with by an independent court . Now , the starting - point is that a suspect ( and an accused ) should not be detained indefinitely as long as a first - instance judgment is not rendered .

Under the previous legislation there was no need to determine the period of detention after a bill of indictment had been lodged with the court because at this point proceedings reached the phase in which there was no statutory time - limit [ on this measure ] . For this reason , the court concerned had no interest in [ knowing ] until when detention had been prolonged under the last decision [ ; ] detention could continue because ‘ detention of limited ORG had become ‘ detention of unlimited ORG . There was therefore only a need to ascertain whether there were grounds for continuing detention under LAW code . ”

In its further resolution no . I ORG CARDINAL of DATE , ORG confirmed that :

“ If the case , in which detention on remand had been ordered , has been referred to a court with a bill of indictment and the period of detention which had previously been fixed expires , the court has a duty to consider whether detention needs to be continued and to give an appropriate decision on this matter . ”

Referring to the resolution of DATE , it also stressed that :

“ … the ratio legis of the amendments to criminal legislation is based on the precept that a suspect ( accused ) should in no case be detained indefinitely until the first - instance judgment is rendered in his case …

It should be noted that , from the point of view of procedural safeguards for an accused , what is material is not how long his detention at the investigation stage has lasted and how long it has lasted at the stage of the court proceedings , but the total period of his detention and whether his detention and its length are subject to review . If there is such a review at the investigation stage ( section QUANTITY ) , there is no reason why there should not be CARDINAL at the stage of the court proceedings … ”

A new Code of Criminal Procedure was enacted by the PERSON ( ORG ) on DATE . Its Article CARDINAL , in its relevant part , reads :

“ CARDINAL . Detention on remand shall be imposed by a court order .

NORP In the investigative stage of proceedings , detention on remand shall be imposed , on a prosecutor 's request , by a district court in the jurisdiction of which investigations are being conducted . After a bill of indictment is lodged with a court , a decision to impose detention on remand shall be given by a court competent to deal with the merits of the case .

NORP The prosecutor , when submitting to a court a request referred to in § CARDINAL , shall at the same time order that the suspect be brought before a court . "

Pursuant to LAW , before deciding whether the preventive measures should be imposed , the court shall hear the person charged with offence . The lawyer of the detainee should be allowed to attend in the court session concerning review of the lawfulness of pre - trial detention , if he or she is present at the court . However , it is not mandatory to inform the lawyer of the date and time of this session , unless the suspect so requests , and if it will not hinder the proceedings .

The court shall inform the lawyer of a detainee of the date and time of court sessions at which a decision , concerning prolongation of detention on remand or an appeal against a decision to impose or to prolong detention on remand , is to be taken . A failure on the part of the duly informed lawyer to attend the session does not prevent the court from pursuing examination of the issue .

The applicant lodged his application with the ORG on DATE , alleging , inter alia , that the courts were arbitrary in their decisions relating to his detention . He complained in particular that for a certain unspecified period as from DATE his detention on remand had lacked legal basis , as no decision of a competent authority had been given in order to prolong it beyond that date . The applicant complained that he had never been brought before a court in the proceedings concerning the review the lawfulness of his detention on remand . He finally complained that under domestic law applicable at the material time , neither he nor his lawyer had been entitled to attend any hearing in the proceedings concerning review of the lawfulness of his detention .

NORP The application was declared partly admissible by the Commission on CARDINAL DATE . On DATE the Commission declared admissible the applicant ’s complaints under LAW and CARDINAL of the LAW . In its report of CARDINAL DATE ( former LAW ) it expressed the unanimous opinion that there had been a violation of LAW in that the applicant ’s detention under the bill of indictment had been unlawful , and that there had been a violation of LAW in that the proceedings concerning review of his detention on remand had not been truly adversarial .

The applicant submitted that his detention on remand , insofar as it had been effected under the bill of indictment of CARDINAL DATE and after the detention order of DATE had expired , had not been in compliance with LAW , which states , insofar as relevant :

“ CARDINAL . Everyone has the right to liberty and security of person . No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law :

( c ) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so ;

The applicant submitted that his detention from DATE to CARDINAL DATE lacked any legal basis , and requested the ORG to accept the opinion expressed by the ORG in its report that there had been a violation of LAW ( c ) of the LAW .

The Government acknowledged that the situation complained of had arisen out of a common practice of the NORP courts , referred to as “ placing a detainee at the disposal of a court ” , followed at the material time . This practice originated from the absence of any precisely formulated provision which would oblige the court to give , on its own motion , any further decision on the prolongation of detention after the bill of indictment had been submitted to the court .

The Government emphasised that this practice had been abandoned since DATE , when the amendments to LAW of DATE , enacted on DATE , had entered into force . Under these provisions , statutory time - limits of pre - trial detention had been introduced . Subsequently , the relevant provisions of LAW , which entered into force on DATE , had put an end to this practice . Under the provisions of the new Code , as currently interpreted in accordance with the case - law of ORG , following an expiry of a detention order given in the investigative stage of the proceedings and after the bill of indictment had been lodged with a court , a case must be referred to a court for a decision on further detention . Following interpretation of the relevant provisions by ORG , the new practice has been implemented by the courts .

The Government did not contest that the applicant ’s detention had been maintained after DATE without a judicial decision being given as to its prolongation after this date , fixed by the detention order of CARDINAL DATE . This detention , however , was in compliance with the substantive and procedural provisions of the NORP law applicable at the material time . Pursuant to LAW , the lawfulness of the applicant ’s continued detention had been subject to a permanent supervision by ORG . Moreover , the applicant ’s request for release of DATE had been examined by that court as early as DATE , i.e. merely DATE after the preceding detention order had expired . The subsequent appeals , submitted by the applicant ’s father and by his counsel , had been dismissed by ORG on DATE .

Finally , the ORG stated that they would abstain from making their own assessment of the compatibility of the applicant ’s detention during the period under consideration with the requirements of LAW . They emphasised that the applicant ’s detention had been prescribed by law and effected in accordance with common practice . This practice had developed on the basis of regulations , which had been accessible , sufficiently precise and foreseeable . On the other hand , these provisions were not admittedly specific enough , and this had led to the practice complained of .

The ORG reiterates that the expressions “ lawful ” and “ in accordance with a procedure prescribed by law ” in LAW essentially refer back to national law and state the obligation to conform to the substantive and procedural rules thereof . While , in the first place , it is normal for the national authorities , notably the courts , to interpret and apply domestic law , it is otherwise in relation to cases where , as under LAW , failure to comply with that law entails a breach of the LAW . In such cases the ORG may , and should exercise a certain power to review whether national law has been observed ( see , among other authorities , GPE v. the GPE [ PERSON , no . NORP , § § DATE ) .

However , the “ lawfulness ” of detention under domestic law is the primary , but not always a decisive element . The ORG must , in addition , be satisfied that detention during the period under consideration , was compatible with the purpose of LAW , which is to prevent persons from being deprived of their liberty in an arbitrary manner . Moreover , the ORG must ascertain whether domestic law itself is in conformity with the LAW , including the general principles expressed or implied therein ( see , among many other authorities , the PERSON v. the GPE judgment of DATE , Series A no . CARDINAL , pp . CARDINAL , § CARDINAL ; and the Erkalo v. the GPE judgment of DATE , Reports of Judgments and Decisions CARDINAL-VI , p. CARDINAL , § CARDINAL ) .

The ORG stresses in this connection that where deprivation of liberty is concerned , it is particularly important that the general principle of legal certainty is satisfied . It is therefore essential that the conditions for deprivation of liberty under domestic law should be clearly defined , and that the law itself be foreseeable in its application , so that it meets the standard of “ lawfulness ” set by the LAW , a standard which requires that all law should be sufficiently precise to allow the person DATE if needed , to obtain the appropriate advice – to foresee , to a degree that is reasonable in the circumstances , the consequences which a given action may entail ( see the LOC v. the GPE judgment of CARDINAL DATE , Series A no . CARDINAL-B , pp . CARDINAL–CARDINAL , § § CARDINAL–CARDINAL , and , mutatis mutandis , ORG v. GPE ( no . CARDINAL ) judgment of DATE , Series A no . CARDINAL , p. CARDINAL , § DATE ; the PERSON v. the GPE judgment of DATE , Reports CARDINAL , p. CARDINAL , § DATE , and the Steel and Others v. the GPE judgment of DATE , Reports CARDINAL , p. CARDINAL , § CARDINAL ) .

Turning to the circumstances of the present case , the ORG notes that the applicant ’s detention was prolonged , by an order of DATE , until DATE . On DATE the applicant requested to be released . The bill of indictment was lodged with ORG on DATE . On DATE the detention order expired , but the applicant remained in detention in view of the fact that , following lodging of the bill of indictment with ORG , he had been regarded as having been placed at the disposal of the latter . Subsequently , on DATE ORG dismissed the applicant ’s request for release of DATE . It is not in dispute that from CARDINAL to CARDINAL DATE the applicant ’s detention was maintained solely on the basis of the fact that a bill of indictment had in the meantime been submitted to the court competent to examine the merits of the case .

The ORG recalls that it found a violation of LAW in its recent judgment in the case LAW GPE ( no . CARDINAL , § CARDINAL ) , where , considering detention under the same legal framework , the ORG stated as follows in § § DATE :

“ The ORG observes that the domestic practice of keeping a person in detention under a bill of indictment was not based on any specific legislative provision or case - law but , as the ORG had found and the parties acknowledged before the ORG , stemmed from the fact that NORP criminal legislation at the material time lacked clear rules governing the situation of a detainee in court proceedings , after the expiry of the term of his detention fixed in the last detention order made at the investigation stage .

Against this background , the ORG considers , first , that the relevant NORP criminal legislation , by reason of the absence of any precise provisions laying down whether DATE and if so , under what conditions DATE detention ordered for a limited period at the investigation stage could properly be prolonged at the stage of the court proceedings , does not satisfy the test of “ foreseeability ” of a “ law ” for the purposes of LAW .

Secondly , the ORG considers that the practice which developed in response to the statutory lacuna , whereby a person is detained for an unlimited and unpredictable time and without his detention being based on a concrete legal provision or on any judicial decision is in itself contrary to the principle of legal certainty , a principle which is implied in the LAW and which constitutes CARDINAL of the basic elements of the rule of law .

In that context the ORG also stresses that , for the purposes of LAW , detention which extends over a period of DATE and which has not been ordered by a court or by a judge or any other person “ authorised … to exercise judicial power ” can not be considered “ lawful ” in the sense of that provision . While this requirement is not explicitly stipulated in LAW , it can be inferred from LAW as a whole , in particular the wording in paragraph CARDINAL ( c ) ( “ for the purpose of bringing him before the competent legal authority ” ) and paragraph CARDINAL ( “ shall be brought promptly before a judge or other officer authorised by law to exercise judicial power ” ) . In addition , the habeas corpus guarantee contained in LAW further supports the view that detention which is prolonged beyond the initial period foreseen in paragraph CARDINAL necessitates “ judicial ” intervention as a safeguard against arbitrariness . In the ORG ’s opinion , the protection afforded by LAW against arbitrary deprivations of liberty would be seriously undermined if a person could be detained by executive order alone following a mere appearance before the judicial authorities referred to in paragraph CARDINAL of LAW . ”

The ORG observes that the facts , which had given rise to a violation of the LAW in the case quoted above , had occurred within the same legal framework as in the present case . The ORG sees no grounds , which would justify a different conclusion in the instant case . The ORG accordingly considers that the applicant ’s detention was not lawful within the meaning of LAW . Consequently , there was a breach of this provision .

The applicant also asserted that the respondent ORG had breached LAW which reads :

“ Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful . ”

The applicant submitted that the proceedings concerning review of his detention were in breach of procedural requirements of this provision in that they were not adversarial .

The Government first referred to the ORG ’s case - law , according to which arrested or detained persons were entitled to a judicial review bearing upon the procedural and substantive conditions , essential for the lawfulness , in the ORG sense , of their deprivation of liberty . The competent court had to examine both compliance with the procedural requirements set out in domestic law , and the reasonableness of the suspicion grounding the arrest and the legitimacy of the purpose pursued by the arrest and the ensuing detention .

The Government abstained from making their own assessment of the compliance of the proceedings concerned , with the requirements of the ORG and asked the ORG to give its ruling in this respect . However , the Government emphasised that the provisions under which the applicant had been detained in the present case , had been repealed . Pursuant to the new Code of the Criminal Procedure , effective guarantees of equality of parties to the proceedings concerning review of pre - trial detention had been enacted . Therefore the question examined in the present case was only of a historical character .

The ORG recalls that by virtue of LAW , an arrested or detained person is entitled to bring proceedings for the review by a court of the procedural and substantive conditions , which are essential for the “ lawfulness ” , in the sense of LAW , of his or her deprivation of liberty ( see the PERSON and Others v. the GPE judgment of CARDINAL DATE , Series A no . CARDINAL-B , p. CARDINAL , § CARDINAL ) . Although it is not always necessary that the procedure under LAW be attended by the same guarantees as those required LAW CARDINAL § CARDINAL of the LAW for criminal or civil litigation ( see the GPE v. GPE judgment of CARDINAL DATE , Series A no . CARDINAL-A , p. CARDINAL , § CARDINAL ) , it must have a judicial character and provide guarantees appropriate to the kind of deprivation of liberty in question . In the case of a person whose detention falls within the ambit of LAW ( c ) , a hearing is required ( see the PERSON v. GPE judgment of DATE , Series A no . DATE , p. CARDINAL , § § CARDINAL–CARDINAL , the PERSON - GPE v. GPE judgment of DATE , Series A no . CARDINAL , p. CARDINAL , § DATE , and the NORP v. GPE judgment of CARDINAL DATE , Series A no . CARDINAL-B , p. CARDINAL , § CARDINAL ) . In particular , in the proceedings in which an appeal against detention order is being examined , “ equality of arms ” between the parties , the prosecutor and the detained person , must be ensured ( ORG v. GPE [ PERSON ] , no . ORG , CARDINAL , § CARDINAL ) .

The ORG notes the information provided by the ORG about the extensive legislative amendments which were effected with a view to bringing LAW in line with the LAW . However , the ORG ’s task is to assess the actual circumstances of the applicant ’s case .

The ORG observes that in the case under consideration , the applicant lodged requests for release , firstly on an unspecified date , and later on DATE , CARDINAL and DATE , and on DATE . ORG dismissed these requests on DATE , on later CARDINAL unspecified dates , and on DATE . The decision given on DATE was , upon the applicant ’s appeal , examined by the higher court which gave its ruling on DATE .

The ORG notes that it is not in dispute that the law , as it stood at that time , did not entitle either the applicant or his lawyer to attend the court session held in any of these proceedings in which the courts examined whether his detention was lawful and remained justified . Moreover , the applicable provisions of law on criminal procedure did not require that the prosecutor ’s submissions in support of the applicant ’s detention be communicated , either to the applicant or to his lawyer . Consequently , the applicant did not have any opportunity to comment on those arguments in order to contest the reasons invoked by the prosecuting authorities to justify his detention , either by disputing them directly before the court or by way of written submissions . At the same time the ORG notes that under applicable provisions it was open for the prosecutor to be present at any of court sessions , in which the court examined the lawfulness of the applicant ’s detention . It is also to be noted that the prosecutor in fact availed himself once of this opportunity by attending the session of ORG on DATE , when it was examining the applicant ’s request for release of CARDINAL DATE , whereas neither the applicant nor his counsel was present before the court .

In conclusion , in the light of the above considerations , the ORG finds that there has been a violation of LAW .

Article CARDINAL of the ORG provides :

“ If the ORG finds that there has been a violation of the Convention or the Protocols thereto , and if the internal law of the High Contracting Party concerned allows only partial reparation to be made , the ORG shall , if necessary , afford just satisfaction to the injured party . ”

The applicant claimed a sum of CARDINAL ( CARDINAL ) as compensation for non - pecuniary damage resulting from his detention , in particular such as significant loss of health caused by his detention .

The Government considered that the applicant ’s claim is exorbitant and asked the ORG to rule that a finding a violation constituted sufficient just satisfaction . In the alternative , they asked the ORG to assess the amount of just satisfaction on the basis of its case - law in similar cases and having regard to national economic circumstances , such as purchasing power of national currency and to current minimum gross salary in GPE .

As regards the claim for the alleged damage suffered as a result of violation of LAW , the ORG recalls that in certain cases which concerned violations of LAW and CARDINAL it has made modest awards in respect of non - pecuniary damage ( see the PERSON v. GPE judgment of DATE ( Article CARDINAL ) , Series A no . CARDINAL , p. CARDINAL , § CARDINAL , and the De Jong , GPE and FAC the GPE judgment of CARDINAL DATE , Series A no . CARDINAL , p. CARDINAL , § CARDINAL ) . However , in more recent cases , it has declined to make any such award ( see the PERSON v. GPE judgment of CARDINAL DATE , Series A no . CARDINAL ; p. CARDINAL , § DATE ; the PERSON and Others v. GPE ( Article CARDINAL ) judgment of CARDINAL DATE , Series A no . CARDINAL-B , pp . DATE , § CARDINAL ; the GPE v. GPE judgment of DATE , Series A no . CARDINAL , p. CARDINAL , § DATE ; the PERSON v. GPE judgment of CARDINAL DATE , Series A no . CARDINAL , p. CARDINAL , § CARDINAL ; the NORP v. GPE judgment cited above , p. CARDINAL , § CARDINAL ; PERSON v. the GPE [ G.C. ] , no CARDINAL/CARDINAL , CARDINAL , § § DATE ; and PERSON GPE cited above , § DATE ; ORG v. GPE , no . CARDINAL , LAW ) . In certain of these judgments , for instance given in cases of ORG , PERSON and ORG stated that just satisfaction can be awarded only in respect of damage resulting from a deprivation of liberty that the applicant would not have suffered if he or she had had the benefit of the procedural guarantees of LAW and concluded , according to the circumstances , that the finding of a violation constituted sufficient just satisfaction in respect of any non - pecuniary damage suffered .

In the present case , the ORG can not speculate as to whether the applicant would have been detained if the procedural guarantees of LAW had been respected in his case . Consequently , the ORG considers that the non - pecuniary damage is adequately compensated by the finding of a violation of this provision .

The ORG further considers that as a result of his detention in breach of the provisions of LAW , the applicant suffered non - pecuniary damage , which would not be adequately compensated by the finding of a violation ( LAW GPE cited above , § CARDINAL ) . Accordingly , making its assessment on an equitable basis , the ORG awards the applicant LAW .

DATE . The applicant , who was granted legal aid by the ORG , did not seek to be reimbursed for any costs or expenses in connection with the proceedings .

The Government requested the ORG to decide on award of legal costs and expenses insofar as they had been actually and necessarily incurred and reasonable as to quantum . They relied in this respect on the ORG v. GPE judgment ( ORG v. GPE [ PERSON ] , no . CARDINAL/CARDINAL , § CARDINAL ) .

The ORG , having regard to the fact that the applicant did not seek reimboursement of his legal costs , makes no award under this head .

According to the information available to the ORG , the statutory rate of interest applicable in GPE at the date of adoption of the present judgment is PERCENT per annum .


Violation of Art. 6-1;No separate issue under P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

The applicant was born in DATE and lives in GPE .

In DATE the applicant instituted proceedings in ORG of GPE ( hereafter “ the ORG ” ) against Mr PERSON ( her brother ) for the division of their late GPE estate .

The first court hearing was held on DATE , when the defendant filed a counterclaim . The next sitting before ORG was scheduled for DATE but was adjourned at the defendant ’s request .

According to the ORG , the hearing fixed for DATE was cancelled on account of the applicant ’s failure to appear . The applicant contested this submission , stating that she was present in court and that the hearing took place as scheduled .

On DATE the applicant lodged a successful request for the removal of the judge .

At a hearing on DATE , the applicant obtained an adjournment .

On DATE the defendant unsuccessfully challenged the participation of the trial judge and obtained an adjournment to summon witnesses . The adjournment was extended until DATE at the applicant ’s request .

During DATE the court held CARDINAL hearings and questioned a number of witnesses .

The Government stated that on DATE the applicant sought , and was granted , a DATE adjournment . The applicant did not deny this but , in her observations , she mentioned CARDINAL hearings that were held during this period .

According to the Government , on CARDINAL DATE the court , at the defendant ’s request , ordered an assessment of the estate by a building expert and adjourned the hearing until DATE . The applicant enumerated , however , CARDINAL hearings , allegedly fixed for this period , CARDINAL of which were cancelled due to the defendant ’s failure to appear .

On DATE the defendant unsuccessfully challenged the trial judge and the expert .

On DATE the hearing was adjourned until DATE due to the defendant ’s failure to appear .

On DATE the hearing was cancelled , according to the Government , due to the failure of the applicant ’s lawyer to appear ; according to the applicant , it was because the defendant did not show up .

On DATE , the court , following the defendant ’s application , ordered an additional expert examination of the disputed property .

The applicant stated that on DATE and DATE the hearings were adjourned due to the defendant ’s absence in court . The Government did not mention any hearings having been fixed during this period .

On DATE the expert institution informed the court that the requested examination was impossible due to a lack of relevant documentation and the deficiency of the questions posed to them . The institution requested that further documents be provided and the questions reformulated .

On DATE the court reformulated its questions to the experts , ordered the defendant to pay the costs of the expert opinion and made an interim injunction to preserve the status quo .

On DATE the expert opinion was delivered .

On DATE the hearing was cancelled due to the applicant ’s failure to appear .

On DATE the court adjourned the hearing on its own motion .

DATE and DATE , the hearings were adjourned on CARDINAL occasions due to the defendant ’s failure to appear . On DATE the court issued a warrant to compel the defendant ’s presence . On DATE a local constable informed the court that the warrant could not be executed as Mr M. was absent from his place of residence .

From DATE to CARDINAL DATE the court adjourned hearings on CARDINAL occasions due to the applicant ’s absence in court .

On DATE the defendant unsuccessfully challenged the judge .

DATE and DATE CARDINAL hearings were cancelled due to the failure of the applicant ( on CARDINAL occasion ) , the defendant ( on CARDINAL occasion ) and both parties ( on QUANTITY occasions ) to appear in court .

From DATE to DATE the court held CARDINAL hearings .

On DATE the court allowed the applicant ’s claim , awarding her CARDINAL/CARDINAL of the disputed estate . In its judgment the court referred to the testimonies of CARDINAL witnesses and a wide range of documentary and expert evidence .

The defendant appealed . On DATE the ORG quashed the judgment of DATE and remitted the case for fresh consideration .

On DATE ORG remitted the case for trial .

On DATE and CARDINAL DATE the hearings were adjourned on account of the applicant ’s failure to appear .

At hearings on DATE and DATE , the applicant sought and obtained adjournments to amend her claims .

On DATE the applicant filed an appeal under the new cassation procedure against the decision of CARDINAL DATE . The applicant was refused leave to appeal and was given time to rectify the procedural defects of that cassation appeal .

On DATE the applicant lodged an amended claim and the defendant applied for an adjournment to familiarise himself with it .

On DATE the hearing was adjourned at the applicant ’s request .

DATE and DATE , the hearings were cancelled on CARDINAL occasions due to the applicant ’s failure to appear .

On DATE the judge granted an adjournment at the applicant ’s request pending the examination of her cassation appeal .

On DATE ORG rejected the applicant ’s appeal in cassation .

On DATE ORG resumed the consideration of the case ; however it had to adjourn the hearing due to the applicant ’s absence . From then onwards until DATE the applicant failed to appear for CARDINAL sittings .

DATE the court held five and cancelled CARDINAL hearings ( one hearing was cancelled due to the applicant ’s failure to appear , one because the judge was occupied with another case and the last one due to a third person ’s illness ) .

DATE and DATE CARDINAL sittings were adjourned because of the applicant ’s failure to appear and her illness .

On DATE the applicant asked the court to hear the case in her absence .

On DATE the court heard witnesses .

The hearings fixed for DATE and DATE were cancelled due to a third person ’s failure to appear . On DATE the court decided to hear the case in that person ’s absence . The court , at the defendant ’s request , ordered a further expert opinion on the disputed property .

On DATE the ORG delivered a judgment , partly granting the applicant ’s claim . However , PERSON share in the estate was increased to PERCENT .

The defendant appealed against this judgment . ORG invited the applicant to comment on the appeal . Having received the applicant ’s comments , on DATE the court referred the case to ORG .

On DATE ORG quashed the judgment of DATE and remitted the case for fresh consideration .

The case resumed on DATE , however the court had to adjourn this hearing as well as the next one due to the applicant ’s failure to appear . On DATE the applicant asked the court to proceed with the case in her absence .

On DATE the defendant ( apparently unsuccessfully ) challenged the participation of all judges of ORG and requested that the case be remitted to another court .

The case is still pending before ORG .

Section V of LAW regulates the review of judicial decisions . It envisages the following principal remedies :

an appeal which , under Articles CARDINAL and CARDINAL , can be brought against judgments and certain interlocutory decisions of the first instance courts ;

a cassation appeal which , under LAW , can be lodged with ORG against judgments and decisions of the first instance courts , which have previously been examined by the appellate courts and the judgments and decisions of the appellate courts ; and

a review of final judgments and decisions on the grounds of new or extraordinary circumstances .

There is no specific provision in the LAW providing for remedies against the inactivity on the part of the judiciary in the course of civil proceedings .

Article CARDINAL of the PERSON provides that if the duly summoned defendant repeatedly fails to appear in courtroom the court may , of its own motion , decide to proceed with the case in his / her absence . If the defendant ’s repetitive failure to appear had no valid reasons , the court may fine him / her CARDINAL times the DATE minimum wage ( see PERSON GPE ( dec . ) no . CARDINAL/CARDINAL , DATE ) .


Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 8;Violation of Art. 6-1;Not necessary to examine Art. 14;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings

ORG The applicant met his girlfriend PERSON ( " V. " ) in DATE . They lived together from DATE until DATE . Around DATE they decided to have a child . Subsequently , on DATE , they became engaged to be married .

On DATE it was confirmed that ORG was pregnant . Shortly after this the relationship between the applicant and PERSON broke down and they ceased co - habiting . On DATE PERSON gave birth to a daughter PERSON of whom the applicant was the father . The applicant visited PERSON at a private nursing home and saw the baby when it was DATE . DATE he visited ORG ’s GPE home but was not permitted to see either ORG or the child .

ORG During her pregnancy ORG had made arrangements to have the child adopted and on CARDINAL DATE she had the child placed by a registered adoption society with the prospective adopters . She informed the applicant of this in a letter dated CARDINAL DATE .

ORG The applicant subsequently instituted proceedings before ORG to be appointed guardian under section CARDINAL , sub - section CARDINAL , of the Guardianship of Infants Act DATE , which would have enabled him to challenge the proposed adoption . He also applied for custody of the child . Pursuant to LAW , an adoption order can not be made , inter alia , without the consent of the child ’s mother and the child ’s guardian ( see paragraph CARDINAL below ) . While a married man is a guardian of his children , an unmarried man is not unless so appointed by the court ( see paragraphs CARDINAL and CARDINAL below ) .

ORG On CARDINAL DATE ORG appointed the applicant guardian and awarded him custody .

ORG Following an appeal against the judgment of ORG by ORG and the prospective adopters , ORG found in DATE that the applicant was a fit person to be appointed guardian and that there were no circumstances involving the welfare of the child which required that the father ’s rights be denied . Mr Justice PERSON of ORG stated :

" I am of the opinion that in considering the applications both for custody and guardianship I must have regard to circumstances as they presently exist and that in considering the welfare of the child I must take into account the fact that she has been placed for adoption . Each application must be taken as part of a global application and not as a separate and distinct one . The test therefore is :

( CARDINAL ) whether the natural father is a fit person to be appointed guardian , and , if so :

( CARDINAL ) whether there are circumstances involving the welfare of the child which require that , notwithstanding he is a fit person , he should not be so appointed .

In the present case , I am of the opinion that he satisfies the first condition and that unless the welfare of the child is to be regarded as the sole consideration , he satisfies the second condition ...

In my opinion , having regard to the purposes of LAW DATE , the rights of the father should not be denied by considerations of the welfare of the child alone , but only where - and they do not exist in the present case - there are good reasons for so doing . "

ORG After the conclusion of the ORG proceedings Mr ORG acceded to an application by ORG and the prospective adopters to state a case for the opinion of ORG . The questions put to ORG by the judge were as follows :

" ( CARDINAL ) Am I correct in my opinion as to the manner in which section CARDINAL of the Guardianship of Infants Act DATE , as inserted by CARDINAL of LAW DATE , should be construed ?

( CARDINAL ) If not , what is the proper construction of that section and what other , if any , principles should I have applied or considered whether in relation to guardianship or custody which derive either from law or from the provisions of the LAW ? "

ORG Delivering the majority judgment of ORG on DATE , Chief Justice PERSON stated that ORG had incorrectly construed section CARDINAL of the DATE Act as conferring on the natural father a right to be a guardian . He considered that the LAW only gave the natural father a right to apply to be guardian . It did not equate his position with that of a married father . The first and paramount consideration in the exercise of the court ’s discretion was the welfare of the child , and the blood link between child and father as merely one of the many relevant factors which may be viewed by the court as relevant to that question . He added , inter alia :

" ... although there may be rights of interest or concern arising from the blood link between the father and the child , no constitutional right to guardianship in the father of the child exists . This conclusion does not , of course , in any way infringe on such considerations appropriate to the welfare of the child in different circumstances as may make it desirable for the child to enjoy the society , protection and guardianship of its father , even though its father and mother are not married .

The extent and character of the rights which accrue arising from the relationship of a father to a child to whose mother he is not married must vary very greatly indeed , depending on the circumstances of each individual case .

The range of variation would , I am satisfied , extend from the situation of the father of a child conceived as the result of a casual intercourse , where the rights might well be so minimal as practically to be non - existent , to the situation of a child born as the result of a stable and established relationship and nurtured at the commencement of his life by his father and mother in a situation bearing nearly all of the characteristics of a constitutionally protected family , when the rights would be very extensive indeed ... "

He concluded that :

" ... regard should not be had to the objective of satisfying the wishes and desires of the father to be involved in the guardianship of and to enjoy the society of his child unless the ORG has first concluded that the quality of welfare which would probably be achieved for the infant by its present custody which is with the prospective adoptive parents , as compared with the quality of welfare which would probably be achieved by custody with the father is not to an important extent better " .

The matter was then referred back to ORG for the case to be decided in light of this interpretation .

ORG resumed its examination of the case in DATE . It heard , inter alia , the evidence of a consultant child psychiatrist who considered that the child would suffer short - term trauma if moved to the applicant ’s custody . In the longer term she would be more vulnerable to stress and be less able to cope with it . She would also have difficulty in forming " trust " relationships .

ORG In his judgment of CARDINAL DATE Mr ORG recalled that the applicant wished bona fide to have custody of his daughter and that he felt the existence of an emotional bond .

He had also noted that if the child remained with the adopters she would obtain the benefit of a higher standard of living and would be likely to remain at school longer . However , he considered that differences springing solely from socio - economic causes should not be taken into account where CARDINAL of the claimants is a natural parent . In his view " to do otherwise would be to favour the affluent as against the less well - off which does not accord with the constitutional obligation to hold all citizens as human persons equal before the law " .

Applying the test laid down by ORG in the light of the dangers to the psychological health of the child he allowed the appeal of the natural mother and the prospective adopters and concluded as follows :

" The result , it seems to me , is this . If the child remains where she is , she will if the adoption procedures are completed become a member of a family recognised by LAW and freed from the danger of psychological trauma . On the other hand if she is moved she will not be a member of such a family and in the short and long term her future is likely to be very different . The security of knowing herself to be a member of a loving and caring family would be lost . If moved , she will I am sure be a member of a loving and caring unit equivalent to a family in her eyes . Nevertheless the security will be lost and there will be insecurity arising from the several factors which have been enumerated .

In my view these differences and the danger to her psychological health are of such an importance that I can not hold that the quality of welfare likely to be achieved with the prospective adopters would not be to an important extent better than that likely to be achieved by custody with the father . That being so , his wish and desire to be involved in the guardianship of and to enjoy the society of his child is not a factor which I am to take into account . In these circumstances , the welfare of the infant requires her to remain in her present custody . Accordingly the application for relief must be refused . "

ORG An adoption order was subsequently made in respect of the child .

ORG A decision of ORG which determines an appeal from ORG can not be appealed to ORG ( ORG v. ORG [ DATE ] NORP Reports CARDINAL ) . ORG can , however , ask for the opinion of ORG on points of law by way of a case stated .

ORG The adoption of children in GPE is governed by LAW . This LAW was amended in DATE , DATE and DATE .

Section CARDINAL of the DATE Act established a body to be known as ORG ( An Bord Uchtála ) to fulfil the functions assigned to it by the LAW , its principal function being to make adoption orders on application being made to it by persons desiring to adopt a child .

ORG Arrangements for the adoption of a child under DATE may only be made by a registered adoption society or ORG ( section CARDINAL of the CARDINAL Act ) and where the mother or guardian of a child proposes to place the child at the disposal of a registered adoption society for adoption the society must , before accepting the child , furnish the mother or father with a statement in writing explaining clearly the effect of an adoption order on the rights of the mother or guardian and the provisions of the LAW relating to consent to the making of an adoption order ( section CARDINAL of LAW ) . When the applicant ’s child was placed for adoption there was also a requirement that notice in writing had to be given to ORG before or within DATE after the reception of the child into the home of the proposed adopters ( section QUANTITY .

ORG As regards the requisite consent of the natural parent , LAW provides as follows :

" ( CARDINAL ) An adoption order shall not be made without the consent of every person being the child ’s mother or guardian or having charge of or control over the child , unless the ORG dispenses with any such consent in accordance with this section .

( CARDINAL ) ORG may dispense with the consent of any person if the ORG is satisfied that that person is incapable by reason of mental infirmity of giving consent or can not be found .

( CARDINAL ) A consent may be withdrawn at any time before the making of an adoption order . "

ORG As regards those persons who are entitled to be heard on an application for an adoption order , LAW provides as follows :

" ( CARDINAL ) The following persons and no other persons shall be entitled to be heard on an application for an adoption order -

( a ) the applicants ,

( b ) the mother of the child ,

( c ) the guardian of the child ,

( d ) a person having charge of or control over the child ,

( e ) a relative of the child ,

( f ) a representative of a registered adoption society which is or has been at any time concerned with the child ,

( g ) a priest or minister of a religion recognised by LAW ( or , in the case of any such religion which has no ministry , an authorised representative of the religion ) where the child or a parent ( whether alive or dead ) is claimed to be or to have been of that religion ,

( h ) an officer of ORG ,

( i ) any other person whom ORG , in its discretion , decides to hear .

( CARDINAL ) ORG A person who is entitled to be heard may be represented by counsel or solicitor .

( CARDINAL ) The ORG may hear the application wholly or partly in private .

( CARDINAL ) ORG has notice of proceedings pending in any court of justice in regard to the custody of a child in respect of whom an application is before ORG , the ORG shall make no order in the matter until the proceedings have been disposed of . "

ORG has held in the leading case of the ORG ( Nicolaou ) v. An Bord Uchtála ( ORG ) [ DATE ] Irish Reports CARDINAL that the relevant provisions of LAW , which permitted the adoption of a child born out of wedlock without the consent of the natural father or without the right to be heard by ORG prior to the making of an adoption order , were not repugnant to LAW on the grounds that they discriminated against the natural father or infringed his constitutional rights ( Article CARDINAL , sections CARDINAL and CARDINAL of the LAW ) . It also held that the protection afforded to the " family " in LAW related only to the " family " based on marriage .

Section DATE CARDINAL LAW provides :

" CARDINAL . ( CARDINAL ) The ORG may ( and , if so requested by an applicant for an adoption order , the mother or guardian of the child or any person having charge of or control over the child , shall , unless it considers the request frivolous ) refer any question of law arising on an application for an adoption order to ORG for determination .

( CARDINAL ) Subject to rules of court , a case stated under this section may be heard in camera . "

ORG As regards proceedings relating , inter alia , to the custody or guardianship or upbringing of an infant , the Guardianship of Infants LAW provided as follows :

" CARDINAL . Where in any proceedings before any court the custody , guardianship or upbringing of an infant , or the administration of any property belonging to or held on trust for an infant , or the application of the income thereof , is in question , the court , in deciding that question , shall regard the welfare of the infant as the first and paramount consideration . "

" Welfare " in relation to an infant is defined as follows in LAW :

" ‘ ORG , in relation to an infant , comprises the religious and moral , intellectual , physical and social welfare of the infant . "

Section CARDINAL of the DATE Act provided as follows :

" ( CARDINAL ) The father and mother of an infant shall be guardians of the infant jointly .

( CARDINAL ) On the death of the father of an infant the mother , if surviving , shall be guardian of the infant , either alone or jointly with any guardian appointed by the father or by the court .

( CARDINAL ) On the death of the mother of an infant the father , if surviving , shall be guardian of the infant , either alone or jointly with any guardian appointed by the mother or by the court . "

ORG The definition of " father " under LAW did not include the father of a child born out of wedlock .

ORG LAW DATE amended the Guardianship of Infants Act DATE in the following way :

" CARDINAL . Section CARDINAL of the Act of DATE is hereby amended by the substitution of the following subsection for subsection ( CARDINAL ) :

‘ ( CARDINAL ) Where the mother of an infant has not married the infant ’s father , she , while living , shall alone be the guardian of the infant unless there is in force an order under LAW ( inserted by LAW of DATE ) of this LAW or a guardian has otherwise been appointed in accordance with this Act.’

The Act of DATE is hereby amended by the insertion after section CARDINAL of the following section :

‘ CARDINAL ( CARDINAL ) Where the father and mother of an infant have not married each other , the court may on the application of the father , by order appoint him to be a guardian of the infant .

( CARDINAL ) ... the appointment by the court under this section of the father of an infant as his guardian shall not affect the prior appointment of any person as guardian of the infant under section CARDINAL ( CARDINAL ) of this LAW unless the court otherwise orders ... ’ "

ORG As regards court applications for custody of an infant , LAW provided as follows :

" CARDINAL . ( CARDINAL ) Any person being a guardian of an infant may apply to the court for its direction on any question affecting the welfare of the infant and the court may make such order as it thinks proper .

( CARDINAL ) The court may by an order under this section

( a ) give such directions as it thinks proper regarding the custody of the infant and the right of access to the infant of his father or mother ;

ORG This section of LAW was amended by LAW as follows :

" CARDINAL . LAW of DATE is hereby amended by the substitution of the following subsection for subsection ( CARDINAL ) :

‘ ( CARDINAL ) In the case of an infant whose father and mother have not married each other , the right to make an application under this section regarding the custody of the infant and the right of access thereto of his father or mother shall extend to the father who is not a guardian of the infant , and for this purpose references in this section to the father or parent of an infant shall be construed as including him.’ "

ORG The DATE LAW , inter alia , that a guardian under the LAW shall be entitled ( CARDINAL ) to the custody of the infant and to take proceedings for the restoration of his custody of the infant against any person who wrongfully takes away or detains the child and ( CARDINAL ) to the possession and control of all property of the infant ( section CARDINAL ) .

ORG The following developments have taken place subsequent to the facts of the present case .

By memorandum of DATE from ORG , the relevant adoption societies and social workers have been notified , inter alia , of the rights of the natural father to apply for joint guardianship and/or custody of or access to his child . The memorandum also draws attention to the desirability of ascertaining from the mother and , where practicable , the father , his intentions in relation to the child as regards adoption although it recognises the practical difficulties which may arise when mothers do not want to involve the father or do not know who or where he is .

Where an adoption agency is given an indication by the natural father that he opposes the placement of the child for adoption the agency is advised to consider the prudence of delaying the placement for a period . The memorandum further states that where a natural father has applied to a court under no circumstances should the child be placed for adoption pending the determination of the court proceedings .

By a letter of DATE ORG has informed the relevant adoption societies and social workers of a review of its policy in relation to natural fathers of children placed for adoption and the necessity of following new procedures . The letter indicates that whenever a natural father is

( a ) named as father on the child ’s birth certificate , ( b ) in a continuous relationship with the mother ,

he should be notified , if not already aware , of the application to adopt his child and offered a hearing by ORG on the application .

In addition CARDINAL forms must now be completed by the adoption agency or by the applicant or applicants . These forms make the fullest relevant enquiries for the purpose , inter alia , of ascertaining the identity and intentions of the natural father as regards the proposed adoption .


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

C. Russo;John Freeland;N. Valticos;B. Walsh

The applicant , PERSON , who was born in DATE , has been unemployed since ORG ( " the RHA " ) terminated his employment as a consultant microbiologist and Director of ORG in GPE . This case concerns the length of time that proceedings relating to this dismissal have taken .

Following administrative changes in ORG in DATE , management problems arose in many regions including the GPE RHA . As a result of differences over staff appointment procedures , in DATE a local grievance procedure was initiated against PERSON before ORG ( " the AHA " ) by ORG .

Although Dr PERSON was considered by ORG legal department to have been acting within the terms of the ORG ’s guidelines in ORG ( IS ) CARDINAL , the ORG endorsed the new appointments procedure .

Following further disagreement , a formal complaint was made in DATE by the ORG to the GPE RHA alleging non - compliance with laboratory staff appointment procedures . PERSON was informed by letter of DATE that a sub - committee had been set up to deal with the ORG ’s formal complaint .

After various investigations had been carried out , a disciplinary procedure under circular ORG ( CARDINAL ) CARDINAL was instituted against Dr PERSON by the GPE RHA . By letter of DATE he was suspended from duty pending the outcome .

After attempts to settle the case had failed , a panel of inquiry sat for DATE between DATE and DATE . It reported in DATE that the applicant was at fault in certain respects .

A sub - committee subsequently appointed by the GPE RHA recommended that Dr PERSON ’s employment as a consultant microbiologist be terminated . Accordingly , by letter of CARDINAL DATE from the GPE RHA , the applicant was dismissed on CARDINAL months’ notice with effect from DATE .

The applicant appealed to the Secretary of ORG against his dismissal on DATE . A professional committee was appointed in accordance with paragraph CARDINAL of the Terms and ORG . The paragraph CARDINAL procedure has since been replaced by a new procedure which incorporates time - limits into the various stages of an appeal to the Secretary of ORG against dismissal .

After holding a hearing on DATE , the professional committee reported to the Secretary of ORG who , in DATE , sought further information .

The Secretary of ORG directed the RHA to offer PERSON a new post in the region without managerial responsibility . In reaching this decision the Secretary of ORG had noted that the professional committee had been very critical of the handling of the case .

The RHA challenged this direction . The applicant was informed by ORG ( " the ORG " ) that in view of the unavailability of alternative employment , the case had been remitted to the Secretary of ORG who , not being bound by the professional committee ’s recommendation to allow the appeal , had decided that the termination of PERSON services in accordance with the paragraph CARDINAL procedure should be confirmed .

By judicial review proceedings commenced in ORG on DATE , the applicant challenged the fairness of the procedure leading to the Secretary of ORG ’s decision . ORG granted a declaration that this decision was invalid and indicated that the Secretary of ORG should reconsider the matter . The Secretary of ORG did not appeal .

On DATE the applicant informed the ORG that he now sought a further paragraph CARDINAL hearing . An exchange of correspondence took place . The ORG attempted to convoke an ad hoc committee meeting , but this was cancelled as the applicant refused to accept such a compromise . On DATE , having proceeded on the basis of the written material which included further written submissions , the Secretary of ORG decided to confirm the applicant ’s dismissal .

Accordingly , by letter of DATE , the ORG informed the applicant that , on the basis of the professional committee ’s report of DATE and the written submissions made by PERSON and the GPE RHA , re - employment was not a possibility and termination of his services was effective from the date of that letter .

The applicant ’s application for judicial review of the validity of the Secretary of ORG ’s direction was dismissed on DATE .

In the meantime , the applicant had also sought reinstatement , re - engagement and damages for dismissal by proceedings in ORG . CARDINAL applications had been made to the ORG , the first on DATE following his dismissal in DATE and the second in DATE following the Secretary of ORG ’s initial rejection of his appeal against dismissal . These proceedings had been stayed from time to time at the applicant ’s request , pending the results of the appeal to the Secretary of ORG and the judicial review proceedings .

In DATE , the second ORG application was revived and the first was subsequently withdrawn . A pre - hearing assessment took place on DATE in which the ORG determined that a hearing could take place with no cost consequences to the applicant .

In its reserved decision of DATE , the ORG held that the dismissal of the applicant was not unfair . It had not been persuaded that the applicant had in any way been prejudiced by the time which had elapsed until a decision was finally reached . He had been paid his salary in full until DATE .

The applicant ’s appeal to ORG was dismissed on DATE .

In DATE a separate action in the High Court claiming damages for the applicant ’s suspension from work in DATE pending the outcome of the disciplinary procedure was struck out as it disclosed no reasonable cause of action . An appeal against the striking out was dismissed in DATE .