The facts of the case , as found by the ORG and not contested before the ORG , are as follows .

The first applicant , PERSON , is a NORP national , born in DATE . She is a political scientist by profession and lives in GPE .

The second applicant , Mr PERSON , is also a NORP national , born in DATE . He is an insurance agent by profession and lives in GPE .

NORP In DATE criminal proceedings were initiated against the first applicant on suspicion of having committed espionage ( geheimdienstliche GPE ) . She was arrested on DATE and taken into detention on remand on DATE .

The trial of the first applicant and CARDINAL co - accused was held before ORG ( Oberlandesgericht ) sitting as a court of first instance over DATE in DATE and DATE . In these and the following proceedings , the first applicant was assisted by counsel .

On DATE ORG convicted the first applicant and the co - accused of espionage on behalf of GPE ( GDR ) , pursuant to LAW ) . The first applicant was sentenced to DATE and CARDINAL months’ imprisonment . The first applicant was also deprived for DATE of the rights to hold public office , to vote and to be elected . The co - accused were sentenced to DATE , DATE and DATE , and DATE imprisonment on probation respectively .

NORP The court found that in DATE , in the course of her studies and research for her thesis in political science , the first applicant had been contacted by agents of ORG ( ORG für ORG , the secret service of the GPE . On the occasion of a meeting in the east sector of GPE at DATE or DATE , she had agreed to work for ORG concerned . She had kept ORG informed about her work at a research institute DATE . Subsequently , upon her employment by ORG ( PERSON ) , she had forwarded secret information such as reports prepared by NORP embassies , and in particular reports prepared by ORG itself , to the secret service of the GPE . The first co - accused , living in GPE , had operated as courier ; the CARDINAL other co - accused had been agents of the secret service of the GPE and had also been living there .

ORG found that the first applicant and the co - accused had thereby committed espionage . As regards the co - accused , the court , referring to a decision of ORG ( ORG ) of CARDINAL DATE , observed that there was no legal impediment to punishing them ; however , the fact that their prosecution had only been possible following the NORP reunification had to be regarded as a mitigating circumstance .

NORP In fixing the first applicant ’s sentence , ORG regarded as mitigating circumstances in particular that she had no criminal record , had a regular life and had also shown helpfulness in taking care of a handicapped child . She had got involved in her criminal conduct due to her relationship with CARDINAL of the co - accused and she had not managed to discontinue her contacts with the secret service of the GPE . Moreover , due to a lack of adequate controls , she had had no particular difficulties in obtaining and forwarding the information concerned . Moreover , she had not obtained any financial advantage , but she would suffer serious professional disadvantage as a consequence of her conviction . Finally , ORG took into account that the first applicant had largely admitted her guilt . However , in view of the aggravating circumstances , in particular the lengthy period of the first applicant ’s involvement in espionage as well as the volume of secret information forwarded , ORG regarded a prison sentence of DATE and DATE appropriate .

On DATE ORG of ORG , sitting with CARDINAL judges , dismissed the first applicant ’s appeal on points of law ( Revision ) .

On DATE the first applicant was released , having served CARDINAL of her sentence .

NORP In DATE criminal proceedings were initiated against the second applicant on suspicion of having committed espionage . On DATE the second applicant was arrested and taken into detention on remand .

The trial of the second applicant and CARDINAL co - accused was held before ORG sitting as a court of first instance over DATE in DATE . In these and the following proceedings the second applicant was assisted by counsel .

On DATE ORG convicted the second applicant and the co - accused of espionage on behalf of the GPE , pursuant to LAW ( CARDINAL ) and QUANTITY , first sentence , of LAW . The second applicant was sentenced to CARDINAL years’ imprisonment . The second applicant was also deprived for DATE of the rights to hold public office , to vote and to be elected . The forfeiture of a sum of money amounting to MONEY was ordered . The co - accused was sentenced to CARDINAL years’ imprisonment on probation , and he was deprived for DATE of the rights to hold public office , to vote and to be elected .

ORG found that in DATE the second applicant had been contacted by agents of ORG . At the latest in DATE , he had agreed to work for ORG in question . The co - accused had acted as contact agent ( PERSON ) . The second applicant had incited his friend to commit espionage on behalf of the GPE . His friend , who had died in DATE , had worked for ORG and had had access to secret , and partly top secret , information . The applicant ’s friend had taken copies of secret documents , or originals thereof , to his home where the originals had been photographed ; copies and films had subsequently been forwarded by the second applicant to the co - accused .

The Court of Appeal observed that the second applicant and the co - accused had thereby committed espionage , within the meaning of LAW , which had been punishable at the time of their offences and had remained punishable following the accession of the GPE to GPE ( FRG ) , as regulated in LAW ( Gesetz zu dem PERSON . DATE zwischen der PERSON der GPE über die GPE der PERSON ) of DATE . As regards the second applicant , the court noted that he had acted as a citizen of the ORG against his own country . There was no appearance of a violation of his right to equal treatment . In particular , the NORP legislator was not obliged to enact legislation granting an amnesty or to limit the application of the provisions on espionage and treason . Finally , he could not be compared to secret agents of ORG who , irrespective of the different goals of the secret services concerned , acted on behalf of their own country and not against it . As regards the co - accused , the court , referring to a decision of ORG of CARDINAL DATE , observed that there were no rules of public international law prohibiting a ORG from punishing foreigners having committed espionage abroad . Moreover , taking into account the different goals of ORG and the secret service of the GPE , his prosecution for espionage did not amount to discrimination against him , and the secret agents of the GPE could not have any legitimate expectation that they would not be punished for their conduct following the accession of the GPE to the ORG .

In fixing the second applicant ’s sentence , ORG regarded as mitigating circumstances in particular that he had no criminal record , had a regular life and had not committed espionage primarily for financial purposes , but had pursued political ideas . However , in view of the aggravating circumstances , in particular the lengthy period of the second applicant ’s involvement in espionage , the involvement of his late friend , the kind of secret information forwarded as well as reasons of general crime prevention , ORG regarded a prison sentence of DATE appropriate . As regards the co - accused , ORG took into account the fact that he was a citizen of the GPE and a secret agent acting from within that territory .

On DATE ORG , sitting with CARDINAL judges , dismissed the second applicant ’s appeal on points of law .

On DATE the second applicant was released , having served CARDINAL of his sentence .

The first applicant appealed to ORG on DATE . Following indications as to certain formal shortcomings in her constitutional complaint , she filed supplementary submissions on DATE . Her case was registered on CARDINAL DATE . The second applicant ’s constitutional complaint of CARDINAL DATE was received by ORG on DATE .

The processing of the ORG and other similar cases was postponed as ORG envisaged rendering a leading decision in some test cases , that is , the application for a ruling submitted by ORG in DATE as well as CARDINAL constitutional complaints . In DATE a third constitutional complaint , covering general aspects , was added to the test cases . On DATE ORG , having considered the further action to be taken in these cases , ordered the preparation of an expert opinion on questions of international public law . The expert opinion , which should initially have been ready by DATE , was received by ORG on DATE . The parties in the test cases were given an opportunity to submit comments before DATE . Deliberations were taken up again in DATE , but again suspended DATE . However , during that period , a first draft of the decision was prepared .

On CARDINAL DATE ORG rendered the said leading decision ( CARDINAL BvL CARDINAL and others – see paragraphs CARDINAL et seq . below ) .

On CARDINAL DATE LAW , in separate decisions , refused to admit the first and second applicants’ constitutional complaints . ORG referred to sections CARDINALa and PERSON of ORG and to the decision of ORG CARDINAL DATE , which was attached to the decisions in the ORG cases . The first applicant received the decision on DATE . The second applicant ’s counsel received the decision on DATE , and the second applicant himself on DATE .

Under the criminal law of the ORG , treason ( PERSON ) is punishable under LAW and espionage ( geheimdienstliche GPE ) under LAW ) . The provisions of LAW are applicable to offences committed within the territory of the FRG ( Inlandstaten ) , pursuant to LAW . According to LAW , ORG CARDINAL and CARDINAL are also applicable to offences committed abroad ( Auslandstaten ) .

LAW of the GPE also contained provisions regarding the punishment of espionage and treason to the disadvantage of the GPE or CARDINAL of its allies . These provisions extended to espionage on behalf of the ORG .

The LAW between the Federal Republic of Germany and GPE on German Unification ( Einigungsvertrag ) of DATE abolished , with effect from DATE , LAW of the GPE and extended the applicability of the criminal law of the ORG to the territory of the GPE ( with some exceptions irrelevant in the present context ) .

In the course of the negotiations on the above LAW , an amnesty for persons having committed espionage on behalf of the GPE was considered ; however , this matter was not pursued on account of reservations among members of the general public and of envisaged difficulties in ORG ( NORP ) . Further attempts to introduce such an amnesty in DATE and DATE remained unsuccessful .

Under the terms of LAW ) , the ORG shall rule , inter alia , on constitutional complaints which may be lodged by any person who considers that the public authorities have infringed CARDINAL of his or her fundamental rights or CARDINAL of his or her rights as guaranteed under LAW , DATE , DATE , CARDINAL , CARDINAL and ORG of LAW .

Article CARDINAL § CARDINAL of LAW provides , inter alia , that , where a court considers unconstitutional a law whose validity is relevant to its decision , the proceedings shall be stayed and the question submitted to ORG if LAW is considered to have been breached . According to paragraph CARDINAL of this provision , where a court has doubts whether a rule of public international law is an integral part of federal law and whether such a rule directly creates rights and duties for the individual , the question shall be submitted to ORG .

The composition and functioning of ORG are governed by ORG ( PERSON über das Bundesverfassungsgericht ) . The DATE version of ORG ( applicable with effect from DATE ) was subsequently amended with a view to reducing the court ’s workload . The amendments adopted in DATE ( which came into force on DATE ) , among other things , reorganised the procedure for individual complaints ( sections DATE LAW ) .

According to section CARDINAL of the LAW , ORG is made up of CARDINAL divisions , each composed of CARDINAL judges .

Sections CARDINAL of that Act concern constitutional complaints lodged by individuals .

“ ( CARDINAL ) Any person who claims that CARDINAL of his basic rights or CARDINAL of his rights under LAW , DATE , DATE , CARDINAL , CARDINAL and ORG of LAW has been violated by public authority may lodge a complaint of unconstitutionality with ORG .

( CARDINAL ) NORP If legal action against the violation is admissible , the complaint of unconstitutionality may not be lodged until all remedies have been exhausted . However , ORG may decide immediately on a complaint of unconstitutionality lodged before all remedies have been exhausted if it is of general relevance or if recourse to other courts first would entail a serious and unavoidable disadvantage for the complainant .

“ The reasons for the complaint shall specify the right which is claimed to have been violated and the act or omission of the organ or authority by which the complainant claims to have been harmed . ”

Sections CARDINALa to CARDINALc of the DATE Act provided as follows :

“ A complaint of unconstitutionality shall require acceptance prior to a decision . ”

“ ( CARDINAL ) A Section may refuse acceptance of a complaint of unconstitutionality by a unanimous order if -

NORP the complainant has not paid the required advance at all ( section CARDINAL(CARDINAL ) ) or has not paid it on time ,

NORP the complaint of unconstitutionality is inadmissible or does not offer sufficient prospects of success for other reasons , or

the ORG is not likely to accept the complaint of unconstitutionality in accordance with the second sentence of section CARDINALc below .

The order shall be final .

( CARDINAL ) The Section may uphold the complaint of unconstitutionality by a unanimous order if it is clearly justified because ORG has already decided on the relevant question of constitutional law ...

( CARDINAL ) The decisions of the Section shall be taken without oral pleadings . In stating the reasons for an order by which acceptance of a complaint of unconstitutionality is refused , it is sufficient to refer to the legal aspect determining the refusal . ”

“ If the Section neither refuses acceptance of a complaint of unconstitutionality nor upholds it , the ORG shall then decide on acceptance . It shall accept the complaint of unconstitutionality if CARDINAL judges hold the view that a question of constitutional law is likely to be clarified by a decision or that the denial of a decision on the matter will entail a serious and unavoidable disadvantage for the complainant . Section CARDINALb(CARDINAL ) above shall apply mutatis mutandis . ”

Sections DATE Act read :

“ ( CARDINAL ) A complaint of unconstitutionality shall require acceptance prior to a decision .

( CARDINAL ) It is to be accepted ,

a. if it raises a constitutional issue of general interest ,

b. if this is advisable for securing the rights mentioned in LAW ) ; or also in the event that the denial of a decision on the matter would entail a particularly serious disadvantage for the complainant . ”

“ The ORG may refuse acceptance of a complaint of unconstitutionality or accept it in the event of section CARDINALc . In other cases , the ORG shall decide on acceptance . ”

“ ( CARDINAL ) If the conditions of section CARDINALa(CARDINAL)(b ) are met and ORG has already decided on the relevant question of constitutional law , the ORG may uphold the complaint of unconstitutionality if it is clearly justified ... ”

“ ( CARDINAL ) The decision pursuant to sections GPE and NORP shall be taken without oral pleadings . It is unappealable . The order by which acceptance of a complaint of unconstitutionality is refused does not require any reasoning .

Section CARDINAL provides for the right of third parties to be heard in complaint proceedings in ORG .

Section CARDINAL concerns the ruling of ORG if the complaint is upheld and reads :

“ ( CARDINAL ) If the complaint of unconstitutionality is upheld , the decision shall state which provision of LAW has been infringed and by which act or omission . ORG may at the same time declare that any repetition of the act or omission complained of will infringe LAW .

( CARDINAL ) NORP If a complaint of unconstitutionality against a decision is upheld , the ORG shall quash the decision and in cases pursuant to the first sentence of section CARDINAL(CARDINAL ) above it shall refer the matter back to a competent court .

( CARDINAL ) If a complaint of unconstitutionality against a law is upheld , the law shall be declared null and void . The same shall apply if a complaint of unconstitutionality pursuant to paragraph CARDINAL above is upheld because the quashed decision is based on an unconstitutional law . Section CARDINAL shall apply mutatis mutandis . ”

Section CARDINAL , to which section CARDINAL(CARDINAL ) refers , provides :

“ ( CARDINAL ) In the event that a final conviction is based on a legal provision , which has been declared incompatible with LAW or has been declared null and void pursuant to section CARDINAL , or based on the interpretation of a legal provision , which has been declared incompatible with LAW by ORG , a reopening of the criminal proceedings is admissible , in accordance with the provisions of LAW .

( CARDINAL ) In all other respects , subject to the provisions of section PERSON ) or a specific statutory provision , final decisions based on a rule declared null and void pursuant to section CARDINAL shall remain unaffected . Such decisions shall not be enforceable ... ”

ORG may issue an interim injunction ( einstweilige Anordnung ) in order to avoid serious disadvantages ( zur Abwehr schwerer GPE ) , to prevent imminent violence ( zur GPE drohender PERSON ) or for another important reason in the general interest ( aus einem anderen CARDINAL GPE zum gemeinen PERSON ) , pursuant to section CARDINAL of LAW .

On DATE ORG ( GPE ) suspended criminal proceedings relating to charges of espionage , treason and corruption in order to obtain a decision by ORG on the question whether persons who had been living in the GPE and had committed the above offences from the territory of the GPE could be prosecuted . Furthermore , in DATE and later , numerous persons convicted of such offences lodged constitutional complaints with ORG , claiming that their respective convictions violated in particular their rights of liberty , as guaranteed under LAW of LAW , as well as their right to equality , as guaranteed under LAW .

On CARDINAL DATE ORG rendered a leading decision on the request submitted by ORG and CARDINAL of the constitutional complaints .

The request submitted by ORG was declared partly inadmissible ; as regards the remainder , ORG held that there was no rule of public international law , forming an integral part of federal law , prohibiting criminal prosecution of espionage committed on behalf and within the territory of a ORG which had later peacefully become part of the ORG spied upon . Furthermore , as regards the first of the CARDINAL constitutional complaints , it found that the complainant ’s conviction violated his constitutional rights ; the first- and second - instance judgments were set aside and the case was referred back to the first - instance court . With regard to the second individual case , the sentencing was found to have violated constitutional rights , the judgments of the lower courts were , to that extent , set aside and the matter was referred back to the first - instance court . The third constitutional complaint was dismissed .

In its decision , ORG recalled its case - law according to which the prosecution for treason and espionage as provided for under LAW and CARDINAL of the Criminal Code amounted to an interference with the rights of liberty under LAW which was justified from a constitutional point of view . This finding also applied to the extent that secret agents of the GPE were liable to punishment even if they had only acted within the territory of the GPE or abroad . In this respect , ORG considered that the relevant provisions of LAW aimed at protecting the external security of the ORG , and took into account that the offences in question had been committed at a time when the ORG was particularly exposed to secret service operations of its enemies .

However , according to ORG , the question arose whether or not the accession of the GPE to the ORG required a new appraisal of the constitutional issues , in particular with regard to espionage committed from the territory of the GPE by persons who were citizens of the GPE and living there .

The Constitutional Court found that the fact that espionage on behalf of the GPE was prosecuted as a criminal offence whereas the criminal provisions of the GPE regarding espionage committed by agents of ORG had been repealed in the context of LAW did not amount to discrimination . Rather , such difference in treatment resulted from the particularities of national security rules ( PERSON ) , which protected the ORG against espionage by foreign powers . Thus , espionage against the ORG on behalf of the GPE remained a punishable act even after the accession of that ORG .

Moreover , the punishment for espionage on behalf of the GPE following the reunification of GPE did not breach any general rules of public international law , contrary to LAW . ORG , having regard to a legal opinion of ORG for foreign public law and public international law of DATE , observed that , under public international law , a ORG was entitled to enact legislation relating to criminal offences committed within its territory as well as to offences committed by foreigners abroad to the extent that its existence or important interests were at risk . There was no justification for espionage under public international law and there were no rules on the criminal liability for espionage following the accession of another ORG .

Furthermore , the prosecution of espionage on behalf of the GPE on the basis of the criminal laws in force in the ORG at the time of the offences concerned did not amount to a violation of the rule that no act could be prosecuted unless it was not a criminal offence under the relevant law at the time when it was committed . ORG noted that the scope of the provisions on treason and espionage was determined by ORG , CARDINAL and CARDINAL of LAW , which had been in force before the time of the offences in question . The extension of the jurisdiction of the FRG regarding such offences was a consequence of the accession of the GPE and LAW .

The Constitutional Court next examined whether or not the results of this extension of the jurisdiction of the ORG amounted to a breach of the rule of law ( ORG ) and , in particular , the principle of proportionality .

ORG found that , in the unique situation of the NORP reunification , the prosecution of citizens of the GPE , who had been living in the GPE and had acted solely within the territory of the GPE or of other GPE where they were safe from extradition or punishment , violated the principle of proportionality . Consequently , there was a technical bar to prosecution ( Verfolgungshindernis ) regarding this group of persons . Criminal prosecution and punishment as a means of protecting legal interests should not result in a disproportionate interference with the rights of the persons concerned .

In this context , ORG considered the difference between the punishment for espionage and for other criminal offences . Public international law did not prohibit espionage , but it also allowed the ORG spied upon to punish spies even if they had only acted abroad . There was no differentiation between espionage on behalf of a totalitarian ORG and espionage on behalf of a ORG with a free democratic basic order . Thus , espionage had an ambivalent nature : it served the interests of the observing ORG , where it was accordingly regarded as lawful , and prejudiced the interests of the ORG being spied upon , where it was therefore regarded as a punishable offence . Punishment of foreign spies was not , therefore , justified on account of a general moral value judgment of reproach ( ORG ) regarding the espionage act , but only for the purpose of protecting the ORG spied upon .

According to ORG , DATE of the GPE , and the consequent termination of any protection for its spies , together with the replacement of its legal order by that of the ORG , which rendered prosecution possible , resulted in a disproportionate prejudice towards the group of offenders who had committed espionage on behalf of the GPE solely within the latter ’s territory and had not left the sphere of its protection , or had only been within the territory of other GPE where they had not risked extradition or punishment in respect of such acts . The reunification had at the same time repealed the punishment of espionage activities on behalf of the ORG . The court further found that any punishment of this group of persons would jeopardise the process of creating NORP unity .

With regard to other citizens of the GPE who had committed espionage within the territory of the ORG or one of its allies , or in CARDINAL ORG where they had risked extradition or punishment , there was no general bar to prosecution as the above conditions were not necessarily all met . However , those persons had , as a consequence of the fall of the GPE , also lost the protection of that ORG , if only the expectation of being exchanged in case of arrest . Moreover , even confronted with the legal order of the ORG , these ORG sense of wrongdoing ( PERSON ) was attuned to the legal order of the GPE . Above all , they were meanwhile prosecuted by their own ORG in respect of espionage activities committed at a time when they regarded that ORG as a foreign ORG . In such cases all relevant circumstances had to be weighed in the light of the above considerations with a view to determining whether or not prosecution should be continued , or in fixing the sentence .

In their separate opinion to ORG judgment , CARDINAL judges of ORG explained that they disagreed with the judgment as far as the finding of a technical bar to the prosecution of a group of persons having committed espionage was concerned .

PERSON and Mr PERSON applied to ORG on DATE . They alleged , inter alia , a violation of LAW as regards the length of the proceedings before ORG .

The Commission declared the application ( no . CARDINAL/CARDINAL ) partly admissible on DATE . In its report of CARDINAL DATE ( former LAW ) , it expressed the opinion , by QUANTITY votes to QUANTITY , that there had been no violation of LAW .


CASE OF DEMERDŽIEVA AND OTHERS v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Zdravka Kalaydjieva

The applicants were born in DATE , CARDINAL and DATE respectively and live in GPE .

On DATE ORG ( “ the trial court ” ) convicted the applicants of drug trafficking and sentenced them to CARDINAL , DATE and DATE imprisonment respectively . The trial court established that on DATE , a certain PERSON ( the last name of Mr GPE , as established in the course of the domestic proceedings , later referred to as PERSON ORG ) and the third applicant had arrived at the first applicant 's house where she lived with the second applicant , her stepson . The applicants bought CARDINAL g of heroin from N. for MONEY ( ORG ) . After keeping some drugs back at the house , the applicants divided the remaining CARDINAL g into CARDINAL packs to sell to PERSON ORG , an unidentified end buyer whom they had arranged to meet in a car park near ORG . The second applicant hired a taxi and the remaining applicants took ORG 's car to meet Mr PERSON The police stopped the cars and found the drugs in the taxi . N. escaped . The trial court established these facts on the basis , inter alia , of the statements of the second and third applicants given in the pre - trial proceedings . The court also referred to the first and third applicants ' statements at the hearing , notably that they had been victims of a constructed scenario and that they had not known ORG before the date when the offence was committed , but disregarded them as self - serving . The testimonies of CARDINAL witnesses , as well as items of real evidence , were also taken into account .

The applicants complained , inter alia , that they had been set up to commit the offence by ORG , an alleged agent provocateur , whom police had allowed to leave the scene . They further complained that no attempt had been made to uncover the truth as regards ORG 's involvement in the commission of the offence .

At a public session ( јавна седница ) of DATE , in the presence of the public prosecutor , the applicants and their lawyer , ORG dismissed the applicants ' appeal and upheld the trial court 's decision . It stated that efforts to discover ORG 's whereabouts had been unsuccessful . It further argued that the trial court had based its decision on considerable evidence which , taken as a whole , had confirmed the applicants ' involvement in the commission of the crime .

The trial court sent this decision to the applicants by mail . A stamp “ PERSON ” of DATE was affixed on the post slip returned to the trial court . According to the Government , this stamp was affixed by the detention centre where the applicants were being detained pending the proceedings in question . According to CARDINAL other return receipts bearing the detention centre 's receipt stamp , this decision was received by the latter on DATE . Each applicant signed and dated these receipts : the first applicant received the decision on DATE , the second applicant on DATE and the third on DATE .

On DATE the applicants lodged an appeal on points of law with ORG . They set out its general basis in a succinct manner and stated that detailed submissions would follow .

In submissions of CARDINAL DATE , the applicants provided full factual and legal grounds of appeal . They complained , inter alia , of having been entrapped into committing the offence by ORG , whose real name was Mr GPE They provided his whereabouts and stated that he had been actively involved in the crime and had operated as an agent provocateur , under the guidance of the police , who had sent him to incite the second applicant to buy the drugs , given his previous criminal record in that respect . They further maintained that Mr ORG had cooperated with the police in other cases , setting up other people in order to help his cousin who was serving a prison sentence for drug trafficking . The police 's involvement in the crime was supported , inter alia , by the following : they had allowed Mr GPE and PERSON , the unidentified end buyer , to leave the scene at the time of the applicants ' arrest ; the drugs had not been found in a routine police check , but on the basis of advance information about their whereabouts ; and CARDINAL detectives with known identities had been present at the scene . They further complained that the courts had failed to take evidence from these CARDINAL detectives and other police officers who had been present at the scene . The applicants made reference to the ORG 's case - law on the impact of an agent provocateur on convicts ' rights under LAW .

On DATE ORG rejected ( отфрла ) the appeal on points of law as out of time . It did so after it had obtained submissions from the public prosecutor in which the latter had requested that the appeal be dismissed on the merits . The court established that ORG decision had been served on the applicants on DATE .

In submissions of CARDINAL and DATE respectively , the applicants asked ORG to rectify the error in respect of the date of service of ORG decision . In support of their request they submitted a copy of the return receipts bearing the detention centre 's receipt stamp and their signatures ( see paragraph CARDINAL above ) . This request remained unanswered .

NORP Under LAW of LAW , it is neither the date of service of the judgment , nor the date of the event , that is taken to be the date from which the time - limit starts to run . It is DATE that is taken as the starting date for calculation of the time - limit . If DATE of the time - limit falls on DATE , DATE or DATE , the time - limit expires at DATE .

Section CARDINAL(CARDINAL ) and ( CARDINAL ) provides that a person convicted by a final decision and sentenced to imprisonment may lodge an appeal on points of law ( барање за вонредно преиспитување на правосилна пресуда ) . The appeal may be submitted within DATE of the date on which the convicted person was served with the decision .

Other provisions relevant to the present case were described in the cases of PERSON and PERSON ( see PERSON v. the former GPE DATE . ) , no . CARDINAL , CARDINAL DATE , and PERSON the former GPE DATE . ) , no . CARDINAL/CARDINAL , DATE ) .


Violation of Art. 7-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

The applicant was born in DATE and lives in GPE ( GPE ) . He is the owner of a company called AS Giga and chairman of the board of directors . He is also the chairman of another company called ORG .

On DATE the GPE police initiated criminal proceedings against the applicant for abusing his position as company chairman .

On DATE , on discovering that AS Giga had failed to pay certain mandatory taxes , the city tax authorities issued an order directing it to pay the taxes due .

NORP On DATE the applicant was formally charged with abuse of office , tax evasion and falsification of documents . However , on DATE the charge of abuse of office was dropped .

On DATE a further charge of fraud was added to the indictment .

On DATE the investigating officers furnished the applicant with the final version of the charges . They concerned his actions as chairman of ORG and AS ORG and as owner of the former . Under Article CARDINAL - CARDINAL § CARDINAL of LAW ( see “ Relevant domestic law and practice ” below ) he was accused of the intentional , continuous and large - scale concealment of taxable amounts and of submitting false information on the companies ' expenditure . The charges under that Article were divided into CARDINAL different counts : CARDINAL relating to CARDINAL instances in DATE of the forgery and fabrication of documents intended to show commercial dealings with a fictitious company ; the second to the use at DATE and in DATE of false documents purporting to relate to the payment of salaries to employees of LAW ; and the third to the entry into a sham contract on CARDINAL DATE in order to circumvent tax laws .

On DATE , after the completion of the preliminary investigation , the applicant and his lawyer were given access to the case file .

On DATE the bill of indictment was approved by the competent prosecutor and the case referred to ORG ( ORG ) .

On DATE ORG committed the applicant for trial on the above charges . On DATE he was served with a copy of the indictment as approved by ORG .

By a judgment of DATE , ORG found the applicant guilty as charged and sentenced him to DATE and DATE imprisonment , suspended for DATE .

In convicting the applicant of the charges of tax evasion under Article CARDINAL - CARDINAL § CARDINAL of LAW , ORG observed that the criminal acts had started in DATE , with the last act beginning on CARDINAL DATE . It considered that they constituted a continuing offence . They all contained the elements of the same offence – they were directed against the ORG taxation system , had the same criminal consequences , were all committed intentionally and in a similar fashion , namely by falsifying documents and presenting them to the tax authorities . ORG held that the applicant 's acts came within Article CARDINAL - CARDINAL § § CARDINAL to CARDINAL of LAW . As they had caused considerable damage , they fell to be considered under paragraph CARDINAL of that Article . ORG pointed out that paragraph CARDINAL was applicable irrespective of whether prior administrative penalties had been imposed on the accused and it referred to the practice of ORG in support for that view .

It ordered the applicant to pay the city tax authorities CARDINAL NORP kroons in outstanding taxes . No fine or tax surcharge was imposed .

On DATE the applicant lodged an appeal against that judgment with ORG . He argued that in convicting him under LAW of offences committed in DATE and DATE , ORG had applied the criminal law retrospectively , as paragraph CARDINAL had not entered into force until DATE . Prior to that date conviction under LAW could follow only if an administrative penalty had been imposed on the accused for the same act or he or she had a previous criminal conviction for a similar offence .

By a judgment of CARDINAL DATE , ORG upheld the applicant 's conviction . It considered that after his first criminal act in DATE he had embarked on a criminal enterprise which had lasted until DATE , when the tax authorities discovered the offences . The fact that no administrative penalty had been imposed on the applicant was not relevant for the purposes of determining the applicability of Article CARDINAL - CARDINAL § CARDINAL of LAW , as the offending acts had been committed intentionally . A criminal intent was proved by his conscious and calculated concealment of matters giving rise to a tax liability and his failure to pay the taxes .

On DATE the applicant lodged an appeal on points of law with ORG ( NORP ) raising the question of the retrospective application of the relevant provision of criminal law . He also argued that the concealment of matters giving rise to a tax liability was not a continuing offence , but a series of individual acts .

By a judgment of DATE , ORG , agreeing with the reasoning of ORG , upheld the applicant 's conviction . In response to the applicant 's above argument , it said that a constant and continuous violation of the obligation to declare one 's sources of income and to pay the taxes due created a persisting criminal state .

The text of Article CARDINAL - CARDINAL of LAW , as worded until DATE , was as follows :

“ Concealment of income or other taxable amounts and failures to submit income tax returns :

The concealment of income or other taxable amounts , the submission of knowingly false data in financial statements , tax calculations , income tax returns or other documents relating to the calculation of taxes or payments and their transfer to the ORG , or a failure to submit an income tax return or to do so on time shall , provided an administrative penalty has been imposed on the offender for a similar offence [ emphasis added ] , be punishable by a fine or DATE imprisonment ;

NORP The same acts , if committed by a person who has a previous conviction for an offence referred to in paragraph CARDINAL of this Article , shall be punishable by DATE imprisonment . ”

The text of Article CARDINAL - CARDINAL of LAW , as worded DATE and DATE , was as follows :

“ Failure to file income tax returns or other tax calculations , the concealment of income or other taxable amounts , and tax evasion :

Any person required to file an income tax return who fails to do so or does so out of time , or who supplies false information in such return shall , if an administrative penalty has been imposed on him or her for a similar offence [ emphasis added ] , be liable on conviction to a fine or DATE imprisonment ;

Any person with responsibility for such matters who conceals or understates income or other taxable amounts or overstates deductible expenditure , who fails to file or files out of time any income tax return , tax calculation , financial statement or other document relating to the calculation of taxes or payments and their transfer to the ORG , accounting document , contract or other document necessary for the assessment and verification of the tax liability , or who fails to comply with an order of ORG shall , if an administrative penalty has been imposed on him or her for a similar offence [ emphasis added ] , be liable on conviction to a fine or DATE imprisonment ;

Any person with responsibility for such matters who fails to pay taxes or to pay them on time , or who fails to comply or to comply satisfactorily with an order issued by ORG for the compulsory collection of taxes by a bank shall , if an administrative penalty has been imposed on him or her for a similar offence [ emphasis added ] , be liable on conviction to a fine or DATE imprisonment ;

Any person with responsibility for such matters who fails to deduct or to deduct correctly personal income tax from the wages ( income ) of employees , or to transfer payments so deducted to the ORG in full and on time , shall , if an administrative penalty has been imposed on him or her for a similar offence [ emphasis added ] , be punishable by a fine or DATE imprisonment ;

The same acts , if committed by a person who has a previous conviction for any of the offences referred to in DATE , CARDINAL , DATE or DATE of this Article shall be liable to between one and DATE imprisonment ;

A person who has committed any of the acts referred to in DATE , CARDINAL , DATE or DATE of this Article on a large scale shall be punishable by DATE imprisonment . ”

The text of Article CARDINAL - CARDINAL of LAW , as worded since DATE , reads as follows :

Any person required to file an income tax return who fails to do so or does so out of time , or who supplies false information in such return shall , if he or she acted with intent , or is a person on whom an administrative penalty has been imposed for a similar offence [ emphasis added ] , be liable on conviction to a fine or DATE imprisonment ;

Any person with responsibility for such matters who conceals or understates income or other taxable amounts or overstates expenditure for that purpose , who fails to file or files out of time any income tax return , tax calculation , financial statement or other document relating to the calculation of taxes or payments and their transfer to the ORG , accounting document , contract or other document necessary for the assessment and verification of the tax liability , or who fails to comply with an order of ORG shall , if he or she acted with intent , or is a person on whom an administrative penalty has been imposed for a similar offence [ emphasis added ] , be liable on conviction to a fine or DATE imprisonment ;

Any person with responsibility for such matters who fails to pay taxes or to pay them on time , or who fails to comply or to comply satisfactorily with an order issued by ORG for the compulsory collection of taxes by a bank shall , if he or she acted with intent , or is a person on whom an administrative penalty has been imposed for a similar offence [ emphasis added ] , be liable on conviction to a fine or DATE imprisonment ;

Any person with responsibility for such matters who fails to deduct or to deduct correctly personal income tax from the wages ( income ) of employees , or to transfer payments so deducted to the ORG in full and on time , shall , if he or she acted with intent , or is a person on whom an administrative penalty has been imposed for a similar offence [ emphasis added ] , be liable on conviction to a fine or DATE imprisonment ;

Any person with responsibility for such matters who supplies incorrect data or documents on compulsory registration under tax legislation , fails to disclose his or her residence , place of employment or place of business to a tax authority , or by any other means evades the payment of the taxes provided for in LAW shall , if he or she acted with intent , or is a person on whom an administrative penalty has been imposed for a similar offence [ emphasis added ] , be liable on conviction to a fine or DATE imprisonment ;

The same acts , if committed by a person who has a previous conviction for any of the offences referred to in DATE , CARDINAL , DATE , DATE or CARDINAL of this Article shall be punishable by DATE imprisonment ;

A person who has committed any of the acts referred to in DATE , CARDINAL , DATE , DATE or CARDINAL of this Article on a large scale shall be liable to DATE imprisonment . ”

Under the practice of ORG , referred to by the Government , if a failure to pay taxes is intentional and continuing , it is the most recent version of Article CARDINAL - CARDINAL that is applicable to acts which occurred prior to its amendment , provided that part of the criminal activity took place after the amendment came into force . Criminal liability arises on CARDINAL alternative , not cumulative , grounds : ( CARDINAL ) if the offender has committed the offence intentionally or ( CARDINAL ) if administrative penalties have previously been imposed on the offender for a similar offence . Article CARDINAL - CARDINAL § CARDINAL does not create a separate offence , but merely qualifies the elements listed in DATE . Thus , a person may only be convicted under LAW if his or her acts encompass the elements of one or more of the offences set out in DATE ( decision of ORG of DATE , PERSON DATE , CARDINAL , CARDINAL , and decision of DATE , PERSON DATE , CARDINAL , ORG ) .


Mr PERSON was born on DATE at GPE ( GPE ) and came to GPE in DATE with his mother and his elder brother under the arrangements for family reunion . His mother and CARDINAL brothers and sisters live in GPE . In DATE he met a woman of NORP nationality whom he married on DATE . They had a daughter born on CARDINAL DATE , in respect of whom he made a formal declaration of paternity on DATE .

ORG When a minor , the applicant was charged with rape with violence and theft in respect of offences committed on DATE .

He was taken into custody at FAC on DATE but escaped with a fellow prisoner on DATE , for which he was sentenced to DATE imprisonment .

ORG On DATE the ORG found him guilty of the offences of which he was accused . Finding that there were mitigating circumstances , it sentenced him to DATE imprisonment . Mr Bouchelkia was released on CARDINAL DATE after obtaining remission of sentence .

ORG On DATE the Minister of the ORG , to whom the matter had been referred by ORG on DATE , made the following order against the applicant :

" Having regard to section CARDINAL of Ordinance no . CARDINAL - CARDINAL of DATE , as amended , concerning the conditions of entry and residence of aliens in GPE ,

Whereas PERSON or GPE born on DATE at GPE ( GPE ) committed a rape on DATE while threatening his victim with a weapon ,

Whereas on account of his conduct his deportation is an absolute necessity for public safety ,

Whereas he has just been released ,

Whereas he should , in consequence , be removed from NORP territory as a matter of extreme urgency ,

On a proposal by the Prefect of Meurthe - et - GPE ,

IT IS HEREBY ORDERED AS FOLLOWS

Article CARDINAL : the above - named person is enjoined to leave GPE ,

LAW the Prefect of Police and the Prefects are instructed to serve and execute this order . "

That order was served on DATE and executed on DATE and the applicant , who was then aged twenty , single and had no children , was deported to GPE .

ORG On DATE counsel for Mr Bouchelkia applied to ORG for an order quashing the deportation measure and , on DATE , for an order staying its execution .

It was argued in the applications that it had not been established in Mr Bouchelkia 's case that it was a matter of extreme urgency or absolute necessity to deport him for reasons of public safety since the order had been made DATE after his release from prison and the offences could not be regarded as being of particular gravity for the purposes of the statutory provision . He also relied on LAW ( article CARDINAL) .

ORG On DATE the ORG dismissed the application for a stay of execution in the following terms :

None of the grounds relied on by PERSON in support of the application for judicial review of the deportation order made by the Minister of the ORG on CARDINAL DATE appears , on the basis of the case file before the court , to justify quashing that order ; it follows that the applicant 's application for a stay of execution of that order is unfounded ;

ORG On DATE , the ORG d'Etat upheld , in the same terms , the decision dismissing the application .

ORG In its judgment of CARDINAL DATE dismissing the application , the court gave the following grounds for its decision :

" The submission based on error of law :

Criminal offences committed by an alien can not , by themselves , justify in law deportation and do not under any circumstances exempt the authority concerned from its obligation to whether the alien 's presence in GPE is liable to constitute a serious threat to public order .

The documents on the case file do not reveal any failure by the Minister of the ORG to have regard to all the factors relating to the applicant 's conduct and the various aspects of his situation in determining whether or not his presence in GPE constituted a serious threat to public order . It follows that this first submission , based on an error of law , must be rejected .

The submission based on LAW ( article CARDINAL)

Under LAW article CARDINAL) of LAW referred to above : ' Everyone has the right to respect for his private and family life , his home and his correspondence ' .

The applicant relies on LAW ( article CARDINAL) in order to argue that the impugned decision does not comply with the aforementioned provisions ; the general principles governing the right to a normal family life do not preclude the Minister of the ORG from exercising the power conferred on him by section CARDINAL of the Ordinance of DATE , as amended . It follows that there is no alternative but to reject this ground .

The submission based on manifest error :

Section CARDINAL of the Ordinance of DATE , as amended , provides : ' In cases of extreme urgency and by way of derogation from sections CARDINAL to CARDINAL , deportation may be ordered where it constitutes an absolute necessity for the security of the ORG or public safety . '

The documents on the case file show that Mr El Hadi Bouchelkia was sentenced to DATE imprisonment for rape committed while threatening his victim with a weapon ; the fact that the order was made DATE after the applicant 's release from prison does not , in itself , mean that the question of his deportation is not urgent , regard being had to the gravity of the offences . Thus , the Minister of the ORG could have considered , without committing a manifest error , that Mr Bouchelkia 's deportation constituted an absolute necessity for public safety and that it was a matter of extreme urgency .

It follows that the ground based on manifest error must be rejected .

In the light of the foregoing , the application made by PERSON must be rejected . "

ORG On DATE the ORG d'Etat upheld the judgment in the following terms :

The documents on the case file show that Mr Bouchelkia committed a rape while threatening his victim with a weapon ; for that offence he was sentenced to DATE imprisonment . It follows that the Minister was entitled in law to consider that Mr Bouchelkia 's deportation constituted an absolute necessity for public safety . As he had recently been released , it was also a matter of extreme urgency at the date of the impugned order .

Regard being had to the seriousness of the offence committed by the applicant , that measure did not amount to an excessive interference in his family life . In these circumstances , the measure was not taken in violation of the aforementioned LAW article CARDINAL) .

It does not appear from the documents on the case file that the Minister , in making the impugned order for Mr Bouchelkia 's deportation ( which states the reasons of fact and law relied on ) , failed to carry out a full review of the circumstances of the case .

It follows from all the above that Mr Bouchelkia fails in his claim that in the impugned judgment ORG had wrongly dismissed his application to have the Minister of the ORG 's order of CARDINAL DATE requiring him to leave GPE set aside .

ORG The applicant made CARDINAL applications to the Minister of the ORG to have the deportation order of CARDINAL DATE rescinded .

ORG On DATE the Minister of the ORG dismissed the first application , made on DATE , in these terms :

I note that in its judgment of CARDINAL DATE the ORG d'Etat dismissed the application to quash ORG judgment dated DATE in which [ the ] application for a stay of execution of the ministerial deportation order made against [ Mr NORP ] was dismissed .

In addition , taking into account the seriousness of the offences committed by the applicant and his conduct whilst in custody , it is impossible for me to grant [ his ] request . The deportation order of CARDINAL DATE must stand .

ORG The second application made on DATE is currently pending before a board set up in accordance with section CARDINAL , as amended , of the Ordinance of DATE ( see paragraph CARDINAL below ) .

Mr Bouchelkia , who returned to GPE illegally in DATE , was arrested at GPE on DATE on charges of insulting a police officer , obstructing a police officer in the execution of his duty and illegally entering and staying in GPE . On DATE ORG sentenced him to DATE imprisonment and ordered that he be banned from re - entering GPE for DATE . It ordered that he remain in custody .

ORG On appeals by the applicant and the prosecution , ORG allowed the applicant 's appeal against sentence . In its judgment delivered on DATE , it gave the following reasons :

" With respect to the sentence

The custodial sentence imposed by the court below is a penalty that is proportionate to the seriousness of the offences when the mitigating circumstances are taken into account , adapted to his character and in accordance with the requirements of protecting public order .

On the other hand , regard being had to the circumstances in which the offences were committed and to the accused 's character , the additional order forbidding him to reenter GPE is an excessively severe penalty .

While this court can not and does not wish to call into question the appropriateness of the deportation order of DATE , the accused 's application for judicial review of which was dismissed by a judgment of the ORG d'Etat on DATE , it observes that the accused arrived in GPE at the age of CARDINAL and lives here with his mother and QUANTITY brothers and sisters , that he attended vocational training courses while imprisoned in connection with the criminal case which ended with the judgment of ORG , that he spent DATE in GPE where he has no ties or points of reference and that his companion has given birth to a child .

As the accused has made an application to have the deportation order rescinded , it would be inappropriate to take the option open to the court of forbidding him to reenter GPE . "

Mr Bouchelkia was arrested on DATE and detained with a view to his removal to GPE under the deportation order of DATE . He refused to leave and a compulsory residence order was issued against him .

On DATE ORG convicted him of the offence of refusing to comply with a deportation order , but deferred sentence pending ORG judgment .

ORG In NORP law deportation is a public - order measure , not a criminal penalty ( ORG decision no . CARDINAL - CARDINAL , ORG constitutionnel CARDINAL DATE , PERSON Sirey DATE , CARDINAL ; ORG d'Etat , DATE , PERSON , PERSON juridique ORG administratif DATE , CARDINAL ; and ORG , DATE , ORG périodique DATE , édition générale , II , DATE ) . It applies to aliens with a residence permit who live in GPE , but not to those who have entered illegally and against whom only a removal order may be made .

The deportation of aliens is governed by the provisions of the Ordinance of DATE concerning the conditions of entry and residence of aliens in GPE . LAW provides : " all persons who do not have NORP nationality , whether they have a foreign nationality or are stateless , shall be deemed to be aliens . " The basic provisions of the Ordinance have been amended by , inter alia , PERSON no . CARDINAL of DATE ; PERSON no . CARDINAL - CARDINAL of DATE ; PERSON no . CARDINAL of DATE ; PERSON no . CARDINAL - CARDINAL of DATE ; PERSON no . CARDINAL - CARDINAL of DATE ; PERSON no . CARDINAL of DATE ; PERSON no . CARDINAL of DATE and PERSON no . CARDINAL of DATE .

The PERSON of DATE prescribed CARDINAL grounds for deportation and substantially altered its role ; deportation had been intended to guard against threats to public order , but it was now also used as punishment in certain cases where there had been a breach of the immigration rules .

That PERSON was rapidly replaced by PERSON no . CARDINAL - CARDINAL of DATE , in which the following CARDINAL grounds for deportation were retained :

( i ) the first , to which the ordinary rules of procedure applied , was where " an alien 's presence on NORP territory PERSON ] a serious threat to public order " ( sections CARDINAL ) ;

( ii ) the second , for which there was a special procedure , concerned " cases of extreme urgency [ and ] absolute necessity for the security of the ORG or public safety " ( section CARDINAL ) .

That PERSON also prescribed the categories of aliens who could not be deported under the ordinary procedure and who were protected because of their age , the length of time they had spent in GPE , their family ties there , the services they had rendered and the fact that they had no criminal record .

The provisions relating to the definition of the protected categories , the substantive conditions and the safeguards provided under the ordinary procedure were alternately amended and restored by subsequent legislation .

In DATE it was a prerequisite to instituting the ordinary procedure governed by sections CARDINAL of the Ordinance of DATE that " the alien 's presence on NORP territory PERSON ] a serious threat to public order " . Recourse to the special procedure used in the instant case required extreme urgency and an " absolute necessity for the security of the ORG or public safety " .

ORG This procedure may properly be described as adversarial and applies where " the alien proves that he entered GPE legally and that he is the lawful holder of a residence permit " ( section CARDINAL ) .

An aliens deportation board for the département must be consulted . Such boards are composed of the president of the tribunal de grande instance of the administrative capital of the département or a judge delegated by him , who acts as chairman , a judicial officer ( magistrat ) appointed by the general assembly of the tribunal de grande instance of the administrative capital of the département and an administrative court judge . Its hearings are held in public . In DATE the Minister of the ORG had less discretion . Since PERSON no . CARDINAL of DATE , the board 's opinion is no longer binding on the Minister .

Deportation orders made to preserve public order are intended to guard against - and not to punish - breaches of public order . With the sole exception of minors , no category of aliens is protected .

Under the special procedure none of the safeguards contained in the ordinary procedure are available . Thus , aliens are not informed in advance that their deportation is being considered , do not receive any special notification , are not given an opportunity to make representations and do not appear before the board ; the board does not hold a meeting , not even in the alien 's absence . No formal steps have to be taken before the deportation order is issued and the order does not have to contain reasons .

ORG The condition relating to absolute necessity for the security of the ORG or public safety was introduced by the PERSON of DATE . It was replaced in the PERSON of DATE by a requirement of " a particularly serious threat to public safety " , but was reintroduced in the PERSON of DATE . According to the Minister of ORG , who was jointly responsible for drafting the bill which became the DATE Law , this type of deportation was only to apply to CARDINAL categories of aliens : terrorists , spies and drug traffickers . Neither the Minister of the Interior nor the LOC d'Etat have adopted that position ; they have interpreted the condition much more widely . In practice section CARDINAL also covers cases concerning violent and anti - social behaviour by an alien over a long period since DATE ( PERSON d'Etat , DATE , ORG , Recueil des arrêts du ORG d'Etat ( " Rec . " ) p. CARDINAL ) and rape and indecent assault with violence or taking the victim by surprise ( PERSON d'Etat , CARDINAL DATE , PERSON , ORG . p. CARDINAL , and ORG d'Etat , DATE , NORP , ORG administratif DATE , no . CARDINAL ) .

ORG To the extreme urgency requirement , laid down as from DATE , a requirement of " absolute necessity for the security of the ORG and public safety " was added in DATE . Extreme urgency is in practice relied on to ensure that aliens who have been convicted by the criminal courts and are serving their sentence can be deported as soon as they are released . Its substance is assessed on a case - by - case basis by the Minister , subject to review by the administrative court .

For a long time the ORG d'Etat ruled that the question whether there was any urgency itself came within the unfettered discretion of the Minister . From DATE it interpreted the requirement so as to limit its application solely to cases where the deportation was to take place within a very short time ( PERSON d'Etat , DATE , PERSON . p. CARDINAL ) . It later found that the urgency requirement had been satisfied where the alien was due to be released shortly ( PERSON d'Etat , CARDINAL DATE , ORG v. PERSON , ORG . p. CARDINAL ) , then held that it was lawful to use the procedure against an alien who had been released from prison DATE before the deportation order was made ( ORG d'Etat , CARDINAL DATE , ORG . , tables , p. CARDINAL , and DATE , PERSON , GPE DATE ) , or who had obtained early release DATE before the issue of a deportation order ( PERSON d'Etat , CARDINAL DATE , PERSON , requête no . DATE , ORG administratif , DATE , p. CARDINAL ) . It also accepted that the Minister could use the extreme urgency procedure where , in connection with a deportation initially commenced under the ordinary procedure , the board had expressed an opinion against deportation . The PERSON d'Etat held that practice to be lawful " provided that the requirements of LAW were satisfied at the time the order was made " ( PERSON d'Etat , CARDINAL DATE , PERSON , ORG . p. CARDINAL ) .

ORG A deportation order issued by the Minister of the ORG remains in force indefinitely . Since DATE such orders embody authority to execute and may be enforced without further order , using force if necessary .

ORG In general , deportation is carried out without delay ; however , the effects of the deportation order are not exhausted as a result of its execution .

Thus , deported aliens are precluded from returning to NORP territory for so long as the order has not been rescinded . If they do return , they are liable to the penalties applicable to cases of avoiding or attempting to avoid the execution of a deportation order and returning to GPE without leave to enter .

Furthermore , according to a circular issued by the Minister of the ORG on DATE concerning the application of LAW August and DATE , although the celebration of the marriage of an alien on NORP territory is not subject to any condition regarding the lawfulness of his stay , a prefect who is informed that the alien wishing to get married is in breach of the immigration rules may , before the wedding , make an order for his removal under section CARDINAL of the Ordinance of DATE and , after the ceremony , decide to expel him pursuant to that provision . The PERSON d'Etat has held that an order for removal could lawfully be made against an alien who was about to marry a NORP national ( PERSON d'Etat , ORG , CARDINAL DATE , ORG , requête no . DATE ) .

ORG As deportation orders are not subject to any special regime , an application for judicial review may be made to the administrative court having territorial jurisdiction under the ordinary rules . Such applications have no suspensive effect and may therefore be accompanied by an application for a stay of execution even where the order has been enforced and the alien is outside GPE .

On DATE ( requête no . DATE ) , the ORG d'Etat set aside a deportation order made against an NORP who was born in GPE and had always lived there , on the grounds that :

" ... his close relatives live in GPE and some of them have NORP nationality . When the deportation order was made against him , he was the father of a child of NORP nationality and was married to a NORP national . In the circumstances of the case , although it has been shown that he has committed offences for which he has been sentenced to several terms of imprisonment ( the most recent being a DATE sentence for armed robbery , burglary committed at night or with accomplices and theft ) the impugned decision has nonetheless , regard being had to the applicant 's conduct subsequent to his convictions for those offences and to the fact that he has no ties with any country other than GPE , interfered with the applicant 's rights to respect for his private and family life in a way that was disproportionate to the aims with which it was taken . "

ORG The alien concerned may , at any time , and as often as he chooses , apply for the deportation order to be rescinded .

Where the application is submitted DATE " after the final execution of the deportation order " , the Minister of the ORG is not subject to any specific procedural requirements in reaching his decision . If the application is submitted " after a period of DATE ... , it may be rejected only after the opinion of the deportation board for the département has been sought ; the alien may be represented before the board " . Consultation is required even where the deportation order was made under the procedure for cases of extreme urgency . Since the PERSON of DATE came into force , the board 's opinion is no longer binding on the Minister .

The PERSON d'Etat had considered that a deportation order was executed on the date the alien left NORP territory and that , in consequence , even if he subsequently returned to GPE illegally , the DATE period ran from DATE ( ORG d'Etat , CARDINAL DATE , ORG . p. CARDINAL ) . However , section CARDINAL bis , added to the Ordinance of DATE by the Law of DATE , now prevents a deportation order being rescinded if the alien has not left GPE or if he has returned there illegally : " An application ... for the rescission of a deportation order ... submitted after the expiry of the time - limit for making an application for judicial review can not be granted unless the foreign national resides outside GPE . "

An application to which there has been no response within DATE is deemed to have been rejected by the Minister of the ORG . Where the Minister of the ORG decides not to enforce a deportation order whilst at the same time refusing to rescind it , a compulsory residence order is made against the alien . If the alien continues to disturb public order , he may be deported . That constitutes a new decision , separable from the deportation order and in respect of which an application for judicial review may be made to the administrative court . In considering the application , the court examines the conduct of the alien during the period when his presence in GPE was tolerated . In reviewing the lawfulness of the measure the court therefore examines the position at the date of its judgment . However , a ground of appeal on the basis that the alien had mended his ways after the date of the order is ineffective ( ORG d'Etat , CARDINAL DATE , ORG . p. CARDINAL ) .

The fact that a deportation order has been rescinded does not constitute leave to enter . If leave is sought , it may lawfully be refused .

ORG Article DATE of LAW , which is relevant in this case , provides :

" Subject to the provisions of ORG DATE , CARDINAL - CARDINAL [ concerning aliens born in GPE of foreign parents ] and CARDINAL - CARDINAL [ concerning the minor children of parents who have acquired NORP nationality ] , no one may acquire NORP nationality or be restored to that nationality if either ( i ) he has been convicted of a serious crime [ crime ] or other major offence [ délit ] harmful to the fundamental interests of the nation or of an act of terrorism or ( ii ) whatever the nature of the offence , if he has been sentenced to a term of imprisonment , not suspended , of DATE .

( Law no . CARDINAL of DATE ) The same shall apply to a person who is the subject of a deportation order which has not been expressly set aside or rescinded or to a ban on re - entering NORP territory that has not expired .

( Law no . CARDINAL of DATE ) The same shall apply to persons whose stay in GPE is unlawful under the laws and treaties relating to the residence of aliens in GPE . "


Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza

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

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

In DATE the applicant concluded a contract with CARDINAL persons by which he bought their CARDINAL ownership share in an immovable property . The remaining CARDINAL share was owned by CARDINAL individuals whose whereabouts were unknown .

On DATE the applicant lodged a civil action requesting the Bratislava II ORG to dissolve the joint ownership of the abovementioned property and to recognise him as the sole owner . The ORG found in the applicant ’s favour by a decision which became final on DATE .

On DATE an heir of CARDINAL of the CARDINAL co - owners , whose whereabouts had been unknown , requested the reopening of the proceedings .

On DATE ORG stayed the proceedings on the request for reopening pending the outcome of another action concerning the validity of the purchase contract of DATE ( see point C below ) .

On DATE ORG resumed the proceedings on the request for reopening and decided to reopen the original proceedings .

On DATE , on the applicant ’s petition ( podnet ) under LAW § CARDINAL of the LAW , ORG found that ORG had violated the applicant ’s right to a hearing without unjustified delay under LAW in the reopened proceedings . It found no delays in the period of the proceedings on the request for reopening .

On DATE ORG stayed the reopened proceedings pending the outcome of the applicant ’s request to reopen the proceedings on the validity of the DATE purchase contract ( see point C below ) .

On DATE , on the applicant ’s complaint ( sťažnosť ) under Article CARDINAL of the LAW , ORG found that ORG had violated the applicant ’s right to a hearing within a reasonable time and its constitutional equivalent in DATE ORG earlier judgment of DATE . ORG ordered ORG to proceed with the case and , having regard to its earlier finding of a violation of the constitutional equivalent of LAW , it awarded the applicant CARDINAL NORP korunas ( SKK ) ( the equivalent of MONEY ( ORG ) at that time ) as just satisfaction for nonpecuniary damage suffered .

The reopened proceedings were resumed in the context of ORG decision of DATE ( see point C below ) .

On DATE the proceedings were again stayed on the ground that ORG had lodged an extraordinary appeal on points of law in the proceedings concerning the request to reopen the proceedings on the validity of the DATE purchase contract .

After the proceedings had been resumed , ORG found against the applicant on DATE .

The applicant appealed and the proceedings are pending before the court of appeal .

This related set of proceedings concerning the validity of the purchase contract of DATE is the subject - matter of another application lodged by the applicant , which is pending before the ORG under number CARDINAL/CARDINAL .

On DATE an individual ( the heir of CARDINAL of the CARDINAL remaining coowners mentioned above ) requested ORG to declare the purchase contract of DATE null and void .

On DATE ORG granted the action and on DATE ORG upheld the judgment . After having been served on the applicant , the judgment became final on DATE .

On DATE the applicant requested that the proceedings be reopened . His request was dismissed , on appeal , on DATE . On DATE ORG declared the applicant ’s appeal on points of law inadmissible .

On DATE ORG dismissed the extraordinary appeal on points of law lodged by ORG .

On DATE , on the applicant ’s complaint under LAW , the ORG quashed the above ORG decision and remitted the case to the latter .

On DATE ORG again rejected the Prosecutor General ’s extraordinary appeal on points of law . On DATE the applicant challenged that decision before ORG . The constitutional proceedings are still pending .


No violation of Art. 8;Not necessary to examine Art. 13

The applicants DATE Mr Bronda and his wife PERSON – live at NORP . In DATE their daughter , PERSON , her common - law husband and their granddaughter , PERSON , born in DATE , moved in to live with them . In DATE father moved to GPE .

In a note of CARDINAL DATE , ORG informed the relevant authorities that CARDINAL of the applicants and certain neighbours had told them that PERSON was neglecting her parental duties towards PERSON , PERSON 's interviews with ORG became tense and her relations with the social workers began to deteriorate .

Accordingly , ORG attached to ORG requested ORG to commence proceedings with a view to determine whether PERSON should be removed from her mother ’s care .

On DATE ORG ( “ the ORG ” ) made a care order in respect of PERSON ( affidamento al commune ) ; parental rights were assigned to the local authority , ORG . Although that decision was declared to be immediately enforceable , it was not in fact enforced as ORG feared the mother might overreact .

On DATE applied to ORG for the care order to be set aside . CARDINAL medical reports confirmed that PERSON was mentally fit to assume her parental responsibility .

On DATE ORG set aside the care order on condition that PERSON remained in regular contact with the social workers .

On DATE , as ORG had failed to attend interviews with ORG , she was questioned by the guardianship judge , who subsequently sent the papers to ORG for his opinion as to ORG whether a fresh care order should be made and the child placed for adoption . On DATE ORG advised against that course of action .

Nevertheless , on DATE ORG made a second care order and requested a psychiatric report on PERSON In her report , filed on DATE , the psychiatrist stated that , although ORG had certain psychological problems , she was fit to assume her parental responsibilities .

On DATE the social services took S. away from her mother , who was then admitted to hospital where she received psychiatric care for DATE . S. was placed in a children 's home .

On DATE S.B. requested ORG to set aside the second care order . On DATE the court refused to set the care order aside and ordered a further psychiatric report on S.B.

On DATE S.B. removed PERSON from the children 's home and took her into hiding . Attempts to find her were unsuccessful .

On DATE the psychiatrist stated that PERSON was unfit to assume her parental responsibility and had jeopardised PERSON 's future emotional development .

On DATE ORG commenced proceedings with a view to placing PERSON for adoption .

On DATE S.B. and S. were found in GPE . S. was taken back to the children 's home . On DATE the President of ORG heard evidence from the applicants and PERSON On DATE ORG recommended placing S. for adoption .

In a decision of CARDINAL DATE ORG ruled that PERSON was available for adoption ( stato di adottabilità ) under section CARDINAL of PERSON no . CARDINAL . S. was placed with a family in GPE .

S.B. and the applicants applied on DATE for an order setting aside that decision ; PERSON ’s father did likewise on DATE .

On DATE the guardianship judge ordered a medical and psychological report on S.

In his report filed on DATE , the psychiatrist stated that PERSON 's father had lost all interest in her , that her mother was suffering from a very serious mental illness and that , consequently , PERSON 's family environment was detrimental to her emotional and psychological development . S. had therefore been abandoned , which was the statutory precondition for declaring a child available for adoption .

On DATE ORG dismissed the applications .

On DATE S.B. and the applicants , who denied that S. had been abandoned , appealed to ORG .

In a judgment of DATE , ORG found that PERSON had never been abandoned in the sense of her mother failing to provide her with emotional and material support . It set aside the judgment of ORG , annulled the declaration that PERSON was available for adoption and ordered ORG to arrange for PERSON to be returned to her natural family . The judgment was immediately enforceable . However , no contact was authorised between PERSON and her mother or grandparents .

Under the procedure laid down by LAW ( see paragraph CARDINAL below ) , ORG instructed a psychiatrist to prepare a report on PERSON 's family environment and to prepare those concerned for her possible return to her natural family .

On DATE S. 's guardian ad litem appealed on points of law against ORG judgment .

NORP In a decision of DATE , deposited in the court registry on DATE and served on the applicants and PERSON on DATE , ORG prohibited any contact , even by telephone , between PERSON and her natural family , in order to allow the expert to prepare his report without interference .

On DATE the expert filed his report ; he said that the applicants ' family was not yet fit to provide a home for S. and that , moreover , S. had panicked at the idea of leaving her foster parents . The expert concluded , inter alia , that the following factors made it impossible for him to bring PERSON and her family together :

( a ) S. 's mental and psychological state ; having fully adapted to her foster parents , she dreaded the prospect of leaving them ;

( b ) her mother 's mental health ; she would have been unable to deal adequately with PERSON 's return and ensure her normal emotional and intellectual development ;

( c ) the lack of any relationship between PERSON 's parents ; and

( d ) the applicants ' conflictual family environment .

On DATE S. 's guardian ad litem made an application under LAW ( see paragraph CARDINAL below ) to ORG for a stay of execution of the judgment of DATE until the appeal on points of law to ORG had been heard . He submitted in particular , on the basis of the psychiatric report , that returning PERSON to her natural family would put her at risk and cause her permanent harm .

At a hearing on DATE evidence was heard from the parties and the psychiatric experts . The applicants and PERSON , relying on their own psychiatric report which stated that it was in PERSON 's interests for her to return to her natural family , opposed the application for a stay .

On DATE ORG ordered a stay . It based its decision on the psychiatric report of CARDINAL DATE . ORG considered that the outcome of the appeal to ORG was unpredictable and concluded that postponing PERSON 's return to her mother and grandparents DATE even if delay was always undesirable “ given the effects of and hopes raised by the passage of time , which further complicate the homecoming ” – would be less detrimental to LOC than the irreversible effects of returning her to her natural family immediately , only for her to be taken into care again shortly afterwards .

In a judgment of CARDINAL DATE , deposited in the court registry on DATE , ORG dismissed the appeal .

ORG , which had been instructed by ORG to arrange for S. to be returned to her family ( see paragraphs CARDINAL and CARDINAL above ) , summoned PERSON , PERSON 's father and the applicants , in accordance with the procedure laid down in LAW , to appear before the guardianship judge on DATE . It ordered a psychiatric report as requested by ORG ; S. remained with her foster parents .

The expert took the oath on DATE . He then interviewed S.B. twice and arranged a meeting between PERSON and the psychologist from ORG .

ORG also asked the police for information about PERSON 's father ; CARDINAL reports were filed , on DATE and CARDINAL DATE . In the meantime , ORG organised CARDINAL meetings between PERSON and her natural family , on DATE , CARDINAL May and DATE respectively . At each meeting , PERSON told her natural relatives that she did not want to return to them . During the meetings , PERSON appeared frightened and anxious and asked to leave before the appointed time .

The expert filed his report on an unspecified date . His view was that it would be dangerous for PERSON and her mother for PERSON to return to her natural family since the mother was suffering from a very serious “ psycho - dissociative ” illness . He recommended that PERSON should remain with her foster parents at least until her fourteenth birthday , while continuing to have contact with her mother .

On DATE ORG held that PERSON was sufficiently mature for her wishes to be taken into account and that she should not therefore be returned to her natural family against her will . Accordingly , the court awarded care of PERSON to her foster parents under LAW and granted the parents access once DATE . The decision was lodged with the registry on DATE .

On DATE S. 's parents and the applicants lodged a complaint ( reclamo ) against that decision with ORG .

In its decision of DATE , which was lodged with the registry on DATE , ORG upheld the complaint in part and ordered that DATE meetings be organised under the supervision of ORG , CARDINAL at the offices of the social services followed by a fourth at the GPE home .

On DATE , having noted that the first CARDINAL meetings had been attended only by PERSON ’s father and grandparents and in the light of the report of the social services and in particular their finding that the father ’s conduct was aggressive and that PERSON was afraid , ORG held that she should remain with the foster parents . It ordered that there should be no more contact between PERSON and her parents and allowed the grandfather CARDINAL access visits a year .

The applicants appealed against that decision to ORG , which on DATE set the case down for hearing on DATE .

At the date of adoption of this judgment the ORG has no information on the outcome of that hearing .

Under LAW

“ Parents have a duty and a right to maintain , educate and bring up their children , even those born out of wedlock .

Where the parents are incapable of performing these duties and exercising these rights , the legislature shall make appropriate provision ... ”

Law no . CARDINAL of CARDINAL DATE completely revised NORP adoption law .

“ ... a minor has a right to be brought up by his own family . ”

“ ... a minor who has temporarily been deprived of a satisfactory family environment may be placed with another family , if possible with other minor children , or with a single person , or with a family - type community , for the purposes of providing him with support , an upbringing and an education .

If it is not possible to provide him with a satisfactory family environment , a minor may be placed in a public or private children ’s home , preferably in the area in which he has been living . ”

Section CARDINAL provides that minors who have been declared available for adoption may be adopted . It also lays down that minors aged CARDINAL or over can not be adopted unless they have given their consent , even if their fourteenth birthday falls during the course of the proceedings . Minors aged DATE or over must be heard in person . Minors aged under twelve may be heard if it appears appropriate and there is no danger of them thereby being harmed .

“ ... ORG may , even of its own motion , declare ... a minor available for adoption if he has been abandoned in the sense of being deprived of all emotional or material support from the parents or the members of his family responsible for providing such support ( other than in temporary cases of force majeure ) . A minor shall continue to be considered abandoned ... even if he is in a children ’s home or has been placed in a foster home . ”

Section CARDINAL provides that a case of force majeure shall be deemed to have ceased where the parents or other members of the minor 's family responsible for providing support refuse assistance from the authorities and the court considers their refusal unjustified .

The fact that a minor has been abandoned may be reported to the authorities by any member of the public or noted by a court of its own motion . Furthermore , any public official and any member of the minor 's family who is aware that a child has been abandoned must report the situation to the authorities . Any failing by the family in this regard may entail loss of parental responsibility . Children ’s homes must keep the judicial authorities regularly informed of the situation of minors whom they take into their care ( section CARDINAL ) .

Section CARDINAL provides that , pending a minor 's placement in a foster home before adoption , the court may order any temporary measure which is in the minor 's interests , including , if necessary , the suspension of parental rights .

Sections CARDINAL to CARDINAL provide that enquiries shall be made so as to clarify the minor 's situation and determine whether he has been abandoned . In particular , under section CARDINAL the President of ORG or a delegated judge may , if he considers it appropriate , order the parents to take measures to provide the minor with emotional support , maintenance , an education and an upbringing and at the same time require regular checks DATE with the assistance , if necessary , of the guardianship judge or the local social services – to ensure that the measures are taken .

If , at the end of the procedure provided for in the above sections , the minor is still abandoned within the meaning of section CARDINAL , the ORG shall declare him available for adoption if :

( a ) the parents or other members of the family have not appeared in the course of the proceedings ;

( b ) it is clear from interviews with them that they are still failing to provide the child with emotional and material support and are unable or unwilling to remedy the situation ; and

( c ) measures ordered under LAW have not been implemented through the parents ' fault ( section CARDINAL ) .

Section CARDINAL also provides that a declaration that a minor is available for adoption shall be made in a reasoned decision of ORG sitting in chambers , after it has heard ORG , the representative of the children ’s home in which the minor has been placed or any foster parent , the guardian , and the minor if aged over CARDINAL or , if under twelve , where necessary .

Under section CARDINAL parental responsibility is suspended while a minor is available for adoption .

Lastly , section CARDINAL provides that a minor shall no longer be available for adoption once he has been adopted or has come of age . Moreover , a declaration that a child is available for adoption may be annulled , either by the court of its own motion or at the request of the parents or ORG , if the conditions laid down in DATE have in the meantime ceased to apply . However , if the minor has been placed with a family with a view to adoption ( affidamento preadottivo ) within the meaning of sections CARDINAL–CARDINAL , the declaration that he is available for adoption can not be annulled .

NORP Under ORG case - law , a child has been abandoned if the parents have been shown to be incapable of ensuring its normal mental and physical development ( judgment no . GPE ) . ORG has also held that the fact that a child ’s upbringing is less than perfect or that his relationship with his parents can be criticised on account of the latter ’s cultural or intellectual shortcomings or personality defects will not necessarily result in the child being declared available for adoption , unless such shortcomings or defects are likely to jeopardise the child 's mental development irremediably ( judgment no . DATE ) .

ORG has also held that a parent does not have to have lost all interest in the child : it suffices that the behaviour of a parent living with the child seriously and irremediably jeopardises its mental and physical development ( judgment no . DATE ) . A child may therefore be held to have been abandoned even where it is living with its parents ( judgment no . DATE ) , as sometimes the mere presence of a parent may be detrimental to a minor 's balanced mental and physical development ( judgment no . DATE ) . The parent does not have to be guilty of wilfully neglecting or harming the minor 's interests to have abandoned it . Abandonment is an objective state of affairs and the declaration that a child is available for adoption flows from a decision which is not necessarily intended to penalise the parent ( judgment no . CARDINAL/CARDINAL ) .

Article CARDINAL of the Civil Code also provides that where the conduct of CARDINAL or both parents is not sufficiently serious to justify forfeiting their parental rights , but is nonetheless detrimental to the child , the court may take any appropriate decision and even order the child ’s removal from its home .

ORG said in its judgment no . CARDINAL/CARDINAL that even if a declaration that a child is available for adoption is set aside on an application by the parents , the court must not automatically order the child ’s return to its family , but must verify whether , in the meantime , the child has adapted and become attached to its foster home and considers it as its own , and whether , consequently , it would be detrimental to the child 's equilibrium , physical and mental health , upbringing and future to return it to its natural family .

Under LAW , where enforcement of a judgment may cause serious and irreparable harm , the court which delivered the judgment in question may stay its execution until an appeal on points of law to ORG has been heard .


The applicant is an NORP citizen , born in DATE in GPE . He is an elected member of ORG , representing PERSON . He lives in GPE , GPE .

The applicant is represented before the ORG by Mr PERSON , a solicitor practising in GPE .

A.

The facts as submitted by the applicant may be summarised as follows .

In the General Election held on DATE the applicant was elected Member of ORG ( “ MP ” ) for the ORG constituency in GPE . His party , PERSON , which polled PERCENT of the votes cast in GPE in the General Election , is an NORP republican political party committed to the principle that the NORP people have the right to self - determination .

The applicant made known to his constituents during the electoral campaign that , in line with official Sinn Féin policy , he would not take the oath of allegiance ( “ the oath ” ) to the NORP monarchy which MPs are required to swear as a condition of taking their seats in ORG . The applicant did , however , affirm that he would attend the ORG of GPE , the seat of ORG , in order to avail himself of the normal facilities afforded to MPs , namely office accommodation , staff allowances , research facilities , travel allowances , broadcasting services and access to restricted areas for the purpose of making informal contact with other MPs . It was the applicant 's understanding that elected members who did not take the oath were nonetheless entitled to benefit from these services .

The oath , as set out in LAW of DATE ( “ the LAW ” ) , amended by sections CARDINAL , DATE and DATE of the Promissory Oaths Act of DATE , is as follows :

“ I [ name ] do swear that I will be faithful and bear true allegiance to Her Majesty Queen PERSON , her heirs and successors , according to law . So help me God . ”

On DATE the Speaker of ORG ( “ the Speaker ” ) made the following Statement to the ORG :

“ This ORG has traditionally accommodated great extremes of opinion . I am sure therefore that the ORG would not wish to put any unnecessary obstacle in the way of Members wishing to fulfil their democratic mandate by attending , speaking and voting in the ORG . Equally , I feel certain that those who choose not to take their seat should not have access to the many benefits and facilities that are now available in the ORG without also taking up their responsibilities as Members .

The present position is that under the terms of LAW , any Member who fails to take the oath or make the affirmation that is required by law and who then votes or sits during any debate after the election of the Speaker is subject to a penalty of [ GBP ] CARDINAL on each occasion and his or her seat is automatically vacated . In DATE CARDINAL of my predecessors ruled that any such Member could not receive a salary and this regulation also applies to allowances .

In the interests of the ORG and making use of the power vested in the Speaker to control accommodation and services in the ORG parts of FAC and the precincts , I have decided to extend these restrictions . As from DATE Queen 's speech the services that are available to all other Members from the CARDINAL departments from the ORG and beyond will not be open for use by Members who have not taken their seats by swearing or by affirmation ... . ”

On DATE the applicant travelled to GPE together with Mr PERSON , the other ORG MP elected at the DATE General Election and leader of the party . They were officially informed that they would be barred from using any services or facilities if they did not take the prescribed oath .

On DATE Mr PERSON wrote to the Speaker requesting her to review her decision . The Speaker replied on DATE stating that her decision stood for the reasons set out in the Statement .

On DATE the applicant applied to ORG of GPE for leave to apply for judicial review of the Speaker 's decision and for a declaration that LAW , in so far as it required him to swear or affirm allegiance to the NORP monarchy , was incompatible with his constitutional rights as an MP . Mr Justice PERSON heard the application on DATE .

On DATE Mr Justice PERSON refused the application . As to the applicant 's challenge to the Speaker 's authority to extend the restriction on facilities and services , the judge ruled that the Speaker was acting as a delegate of the ORG and on behalf of the ORG . Furthermore , he pointed out that the government of DATE decided in DATE that the control of the accommodation and services in ORG and its precincts should be vested in the Speaker on behalf of the ORG . The judge further ruled that he was :

“ quite satisfied that ... the Speaker 's action lies squarely within the realm of internal arrangements of ORG and is not amenable to judicial review . Control of its own internal arrangements has long been recognised as falling uniquely within ORG 's domain and superintendence from the ORG 's intervention is excluded ... . ”

As to the applicant 's challenge to the validity of the DATE Act Mr Justice PERSON ruled that , being primary legislation , the court did not have jurisdiction to review it .

As to the applicant 's claim that the Speaker 's action was not a “ proceeding ” under LAW , the judge did not rule on the matter , but he said that if it had been necessary for him to do so , he would have held that the Speaker 's decision to introduce the restrictions was a proceeding in ORG and so could not be challenged by way of judicial review under LAW ( see domestic law and practice below ) .

The applicant did not appeal to ORG , following advice from counsel that an appeal would be to no avail .

On DATE the Speaker met with the applicant and PERSON , and refused once again to reconsider her decision to restrict facilities and services of ORG to members who had not taken the oath .

B. Relevant domestic law and practice

Appended to ORG for DATE following the Statement of the Speaker was a list of services to which the new regulations apply , including : legal services , procedural services ( including the tabling of questions , motions and amendments , and public petitions ) , broadcasting services , ORG services , services available from ORG , the provision of passes , special permits and car parking facilities , access to those areas within the parliamentary precincts which are open only to pass holders , the booking of Committee rooms , conference rooms and interview rooms , office accommodation services for members and their staff , computer services , except those available to the public , the allocation of ORG tickets , the sponsoring of exhibitions in FAC , members ' medical services , library and research services , except for those services of ORG generally available to the public , services provided by ORG , payroll and other financial services provided to members and their staff , insurance services , catering services provided for members and their staff , including the sponsoring of banqueting services , police and security advice available within the precincts , services in the members ' post offices and travel services .

LAW provides that :

“ ... the freedom of speech and debates or proceedings in ORG ought not to be impeached or questioned in any court or place out of ORG . ”

In ORG v. PERSON ( DATE ) CARDINAL FAC , also involving a challenge to LAW of DATE , the court held that the matter related to the internal management of the procedure of ORG and that the court had no power to interfere with the MPs ' decision to exclude the plaintiff from the ORG . In the case of ORG v. Television GPE ( DATE ) CARDINAL A.C. CARDINAL , ORG ruled :

“ In addition to LAW itself , there is a long line of authority which supports a wider principle ... that the courts and ORG are both astute to recognise their respective constitutional roles . So far as the courts are concerned they will not allow any challenge to be made to what is said or done within the walls of ORG in performance of its legislative functions and protection of its established privileges . ”