The applicants , PERSON , PERSON and PERSON and PERSON are NORP nationals , born in DATE , DATE , DATE and DATE respectively , and live in GPE . They were represented before the Court by Mr A. Feichtner , a lawyer practising in PERSON ( GPE ) .

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

On DATE the applicants’ father or husband , respectively , concluded a “ tenancy , option to purchase and mortgage agreement ” ( Miet- , Options- PERSON ) with the owner of an apartment in GPE ( GPE ) . According to this agreement its duration was to be DATE , the rent was CARDINAL NORP schilling per year and was considered as having already been paid as part of the contribution to the costs of construction . The tenancy contract automatically extended to future heirs . The owner would accept any successor named by the other party or its heirs as tenant . Furthermore , the owner granted him a right to pre - emption and an option to purchase the apartment to which he was bound for the duration of the contract . The price was fixed and in case of purchase would be set off against the contribution to the construction costs . Subsequently this agreement was entered in ORG ) .

In DATE the ORG filed an action with ORG ( PERSON ) against the applicants , the heirs to their father or husband who had died in the meantime , requesting the court to declare void ( ORG der GPE ) the “ tenancy , option to purchase and mortgage agreement ” of DATE .

On DATE ORG declared the agreement void . It found that the intention of the parties when concluding the contract of DATE had been to transfer a status tantamount to that of an owner on the applicants’ father , as was apparent from the conditions set out in the contract although it had the form of a tenancy agreement . In view of the number of foreign land owners in GPE , the real property transaction authorities would not have given their consent to a sales contract . The contract of DATE was therefore a sham and had to be declared void under LAW , which provides that a contract concluded in violation of a prohibition established by law is void .

Upon the ORG appeal , on DATE , ORG ( Oberlandesgericht ) confirmed ORG judgment . On DATE the applicants filed a further appeal on points of law ( Revision ) with ORG ( Oberster Gerichtshof ) in which they argued that the power of ORG to request the courts to declare void contracts which had been concluded DATE violated their rights under LAW No . CARDINAL as the declaration by ORG constituted a disproportionate interference with a legal position they had enjoyed over DATE . Furthermore , they argued that the DATE amendment to LAW had not been properly published and was therefore unconstitutional .

On DATE ORG dismissed the ORG further appeal . It found that the DATE amendment had been properly published and that there was no reason for applying to ORG Verfassungsgerichtshof ) for a review of the constitutionality of that amendment . It also had no doubts about the constitutionality of Section CARDINALa of the Real Property Transactions Act as nobody could expect that a status acquired by an unlawful act could become one protected by the law in the future . The fact that ORG could file actions against sham contracts which had been concluded DATE did not interfere with acquired rights ( wohlerworbenen Rechten ) , the only limit being prescription after DATE .

On DATE , after ORG had given its above decision , another chamber of that court decided that the right of ORG to request a declaratory decision applied only to transactions that were effected after DATE . If this right extended to previous transactions , that provision would be unconstitutional . On DATE ORG declared unconstitutional the DATE amendment to LAW , which established ORG powers , because it considered that this amendment had not been published as required by the relevant law .

Under the Tyrol LAW DATE ( PERSON ) , a contract concerning the transfer of ownership over real property was subject to approval by ORG if agricultural and forestry land was concerned or if the purchaser did not possess NORP nationality ( Section CARDINAL and CARDINAL ) . Such a contract could only take effect if it was approved by the real property transaction authorities ( Sections CARDINAL and CARDINAL ) . The purchaser of land was obliged to seek approval of the contract within DATE ( LAW § CARDINAL ) . If approval was withheld , the acquisition was null and void ( LAW ) . The conclusion of a tenancy did not require such consent , neither did an acquisition under a will .

According to an amendment to LAW of DATE , ORG . DATE , which entered into force on DATE , tenancy agreements concluded with a foreigner could only be entered in ORG after ORG had given its consent .

A further amendment to LAW of DATE enabled ORG to request a court decision declaring void a contract which constituted a circumvention of the requirement of consent under LAW ( Section CARDINALa ) . This right of ORG also related to transactions which had been concluded before that amendment entered into force ( LAW ) .


The applicant is an NORP citizen , born in DATE . At the time of the introduction of his application , the applicant was detained in FAC the GPE , GPE , GPE .

The applicant is represented before the ORG by PERSON ORG , a firm of solicitors based in GPE , GPE , and by Mr PERSON ORG and Mr PERSON , both of ORG .

A.

On DATE a bomb exploded at FAC in GPE killing CARDINAL members of the security forces and wounding CARDINAL others . A young girl was also injured in the explosion . The bomb had been planted near FAC , situated at the basement level at the point of entry to the military wing of the hospital . The basement of the military wing of the hospital was linked to the basement of the main block ( “ the PERSON wing ” ) by an underground passage . A steel door separated the PERSON end of the passage from the tunnel leading to ORG . The draw - bars of the door had been wholly or partly sawn through with a hacksaw .

The applicant , who was a porter at the hospital , was arrested while on duty at TIME on CARDINAL DATE pursuant to section DATE of ORG ( Temporary Provisions ) Act DATE . He was taken to ORG for questioning . Traces of explosive were found in the interior of his car and on a pair of white cotton gloves found under the front passenger seat of the car . CARDINAL pieces of metal swarf were found in the front passenger ’s foot - well and CARDINAL pieces of swarf were found on a pair of trousers belonging to the applicant which were seized following a search of his house . The applicant was cautioned under LAW ( GPE ) Order DATE at the time of his arrest and before his first interview .

The applicant was first interviewed at TIME on DATE . When questioned , he replied : “ I ’ll not be saying anything until I see my solicitor ” . At his second interview , his only comment was : “ I ’ll make a statement when I see my solicitor ” .

In the early part of his third interview from TIME to TIME on CARDINAL DATE the applicant continued to say nothing when questioned about his involvement in the explosion . However at some stage in the course of the third interview the applicant was asked : “ to get this matter out into the open ” . The applicant then proceeded to give an account of his involvement . This account was explored in the course of the subsequent interviews . The essence of the applicant ’s explanation was that he had agreed , under duress , to take CARDINAL men to the hospital on DATE . On DATE he drove the CARDINAL men to the hospital and parked his car in the hospital car park . They all went to the basement of the PERSON wing and he held the steel door open to allow the CARDINAL men to enter the military side of the underground passage . After the QUANTITY men had emerged from the passage he shut the steel door . They all exited the basement . The applicant stated that when he was told by the QUANTITY men to hold the steel door open he knew then that they were going to plant a bomb .

The applicant ’s solicitor was not present during any of the interviews . The applicant saw his solicitor between the conclusion of his interview at TIME on DATE and the beginning of his next interview at TIME on DATE . The applicant continued to speak freely to the police after seeing his solicitor .

After CARDINAL interviews the applicant was charged at TIME on DATE . He replied “ not guilty ” to the murder charges put to him .

The applicant was tried before a judge sitting without a jury at ORG . At his trial , no challenge was made to the admissibility of the applicant ’s various statements on any ground . The applicant himself gave evidence and , while repeating facts suggesting duress , changed his defence and pleaded a lack of knowledge , foreseeability and intention of the crimes with which he was charged . The trial judge found :

“ In the context of this case however , I had not the slightest difficulty in finding that [ the applicant ] was putting forward a completely lying defence . Hearing and observing him over DATE in the witness box left me in no doubt at all . His lies were deliberate and comprehensive … He was cunning in his attempts to build up his new defence of lack of knowledge of the operation … In cross examination he was evasive and sought to contradict an earlier answer or obscure it with vagueness when he thought it suited . My conclusion about the complete lack of credibility of his defence was based not only on my subjective conclusion , that is , a compelling impression of his lying demeanour in the witness box , but also on the objective view that the story he was telling was inherently unbelievable … ”

The trial judge found that the applicant was a willing participant in the plan to blow up FAC . He further found that the applicant had full knowledge of and was party to the plan and knew it was organised and would be carried out by members of the IRA . The judge observed that the applicant knew the layout of the hospital and its system of working , its security and where the military congregated . In the judge ’s view , the applicant , before he set out to drive the CARDINAL men to the hospital , knew that their plan was to plant and explode a bomb close to FAC with the intention of killing soldiers congregated there . The applicant gave the CARDINAL men assistance in the preparation , planting and priming of the bomb in the tunnel . In giving this assistance , the applicant knew that it was in furtherance of the plan and particularly in the tunnel he knew that he was assisting the planting of a bomb which , when exploded , would cause grievous bodily harm , if not death , to the soldiers in FAC . For the trial judge , the applicant , like the other participants , had intended to kill the soldiers .

The trial judge concluded that the applicant was guilty of murder , attempted murder and the related charges on those findings .

On DATE the applicant was convicted on CARDINAL counts of murder , CARDINAL counts of attempted murder , of causing the bomb explosion and of being in possession of the bomb with intent contrary to section CARDINAL(CARDINAL)(b ) of LAW DATE . The applicant was sentenced to life imprisonment on the murder counts and to DATE imprisonment on the attempted murder counts . He was sentenced to DATE imprisonment on the count of causing the explosion and DATE imprisonment for being in possession of a bomb . All the sentences were to be served concurrently .

The applicant appealed to ORG . He contended , inter alia , that his trial was unfair since the police refused him access to a solicitor during interview and that the trial judge had made extensive use of the applicant ’s admissions during interview . Counsel for the applicant submitted that the trial judge , in the exercise of his discretion , should have excluded the admissions because the applicant did not have his solicitor present during interview .

In a judgment delivered on DATE ORG rejected the applicant ’s reliance on the opinion of ORG in the PERSON v. the GPE application : Lord Justice PERSON stated :

“ We therefore hold that , whatever view ORG may eventually take of the content of the rights under LAW , it is not to be regarded as ipso facto unfair within the meaning of section ORG GPE ( Emergency LAW Act DATE if a person detained under LAW Act DATE has not been permitted to have his solicitor present during the process of questioning by the police . Accordingly the learned trial judge could not properly have been required to exercise his discretion under section ORG ) of the DATE Act in such a way as to exclude the [ applicant ’s ] statements on the sole ground that he was refused permission to have his solicitor present with him during the interviews . This ground of appeal must therefore fail .

In reaching this conclusion we have borne in mind [ the applicant ’s counsel ’s ] related point that LAW ) Order DATE created such a “ coercive pressure ” ( to use his phrase ) that the requirement of a solicitor ’s presence during interview was highlighted . We do not accept that LAW implies such a requirement . If that had been the intention of ORG we have no doubt that it would have said so in clear terms . We do not agree that LAW creates a “ coercive pressure ” : it represents a conscious attempt by ORG to achieve a balance of fairness when … the law abiding members of the community are beset by so much ordinary as well as terrorist crime . ”

B. Relevant domestic law and practice

Provisions governing inferences which may be drawn from an accused ’s silence

Article CARDINAL of the Criminal Evidence ( Northern Ireland ) Order DATE provides in so far as relevant :

“ Circumstances in which inferences may be drawn from an accused ’s failure to mention particular facts when questioned , charged etc .

( CARDINAL ) Where in any proceedings against a person for an offence , evidence is given that the accused

( a ) at any time before he was charged with the offence , on being questioned by a constable trying to discover whether or by whom the offence was committed , failed to mention any fact relied on in his defence in those proceedings ; or

( b ) on being charged with the offence or officially informed that he might be prosecuted for it , failed to mention any such fact ,

being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned , charged or informed , as the case may be , paragraph ( CARDINAL ) applies .

( CARDINAL ) Where this paragraph applies ...

( c ) the court ... in determining whether the accused is guilty of the offence charged , may

( i ) draw such inferences from the failure as appear proper ;

( ii ) on the basis of such inferences treat the failure as , or as capable of amounting to , corroboration of any evidence given against the accused in relation to which the failure is material . ”

NORP Provisions governing access to a solicitor

The relevant provisions at the time of the applicant ’s trial governing the right of access to legal advice as a terrorist suspect were contained in section CARDINAL of GPE ( Emergency LAW DATE which , in so far as material , provides :

“ ( CARDINAL ) A person who is detained under the terrorism provisions and is being held in police custody shall be entitled , if he so requests , to consult a solicitor privately . ”

Section CARDINAL of the LAW does not prohibit the police interviewing a terrorist suspect once a request has been made pending the arrival of his solicitor ; nor is a person suspected of terrorist offences entitled DATE as provided for under paragraph CARDINAL of Code C of the Criminal Evidence ( GPE ) Order DATE in respect of non - terrorist offences – to have his solicitor present whilst he is interviewed . In this connection , section CARDINAL(CARDINAL ) of the DATE Order provides , in so far as relevant :

“ Nothing in a code of practice ... applies to the exercise of powers conferred by or under [ the Prevention of Terrorism ( Temporary Provisions ) Act DATE ] or to a person arrested or detained under those provisions . ”

Non - statutory guidelines issued by the Secretary of ORG for GPE in respect of the detention of persons suspected of terrorist offences , current at the time of the applicant ’s arrest , provided , in so far as relevant , at paragraph CARDINAL :

“ A person who asks for legal advice may not be interviewed or continue to be interviewed until he has received it unless :

( b ) an officer of the rank of superintendent or above has reasonable grounds for believing that :

( i ) delay will involve an immediate risk of harm to persons or serious loss of , or damage to , property ; or

( ii ) where a solicitor has been contacted and has agreed to attend , awaiting his arrival would cause unreasonable delay to the process of investigation ; or

( c ) the solicitor nominated by the person , or selected by him from a list :

( i ) can not be contacted ;

( ii ) has previously indicated that he does not wish to be contacted ;

( iii ) having been contacted , has declined to attend ; or

( d ) the person has given his agreement in writing that the interview may be started at once . ”


Violation of Art. 6-1+6-3-d;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

ORG Mr. PERSON , who is an NORP national born in DATE , lives in PERSON .

He complains of criminal proceedings brought against him for causing actual bodily harm to his step - daughter on DATE and to his wife on the following DATE .

ORG The incident on DATE was reported to the PERSON police ( PERSON ) DATE , first by a neighbour at the applicant ’s request and then by the applicant himself . According to him , his wife and step - daughter - who had TIME called him a " convict " ( PERSON ) - attacked him at TIME during a quarrel . In particular , he claimed that his wife had inflicted several head wounds with a paper - knife and gashed his forehead close to his eyebrow . He had needed treatment by a doctor .

He admitted that he had pushed his wife at the time and had tried unsuccessfully to slap his step - daughter in the face .

ORG On DATE , the police questioned the applicant ’s wife as a " suspect " ( PERSON ) and his step - daughter , PERSON , as a " person involved " ( Beteiligte ) .

Mrs. PERSON stated that she had been slapped in the face and beaten by her husband , who had grabbed her daughter by the hair to stop her running away ; both of them had then fought back . She had been holding a paper - knife and had , she said , probably struck him with it , but neither she nor her daughter had deliberately caused him any wounds to the head or face .

Miss PERSON admitted having called her step - father a " convict " that TIME , and said that he had responded by slapping her in the face , but without injuring her . During the quarrel at TIME , he had hit her mother several times , once in the face . When she herself had tried to escape , he had grabbed her by the hair and scratched her just below the right eye . He had also grabbed her mother by the hair and by the scruff of the neck . The CARDINAL women had therefore fought back , and she had pulled her step - father ’s hair but had not hit him ; she had not seen her mother strike him with the paper - knife . Her step - father ’s forehead was bleeding , but she had not seen a wound on the back of his head . She added that a doctor she had consulted had issued a certificate in respect of her own injury .

ORG On DATE , the PERSON police sent ORG ( LOC ) a report ( PERSON ) " concerning PERSON and PERSON , suspected of causing actual bodily harm ( Körperverletzung ) " .

According to the police , Mrs. PERSON and her daughter had attacked the applicant in the course of a quarrel , during which the former had probably ( vermutlich ) struck him several times with a paper - knife , causing a laceration on the back of his head and again close to his eyebrow . He himself had allegedly ( angeblich ) hit his step - daughter in the face and scratched her slightly just below the right eye .

Under the heading " Evidence " , the report referred to the statement by the above - mentioned neighbour of the PERSON to the effect that the applicant , whose face was covered in blood , had asked her to alert the police . The applicant had appeared in person at the police station TIME later holding a paper - knife ; he had explained that his wife had struck him on the head with it several times . Since Mr. PERSON seemed to need first aid , the officer on duty had suggested that he should see a doctor .

The police went on to say that they had already had to intervene in several quarrels in the household . They added that the CARDINAL protagonists had given conflicting accounts of the incident on DATE . Miss PERSON , who had been questioned as an informant ( ORG ) , had clearly taken her mother ’s side .

The report indicated that the applicant ’s injuries had been described as " slight " by the doctor .

Under the heading " Information given by the suspects " , the police summarised Mr. and Mrs. PERSON ’s statements .

The report was accompanied by several documents , including the statements made by the applicant , his wife and his step - daughter and the certificate issued by the doctor who had examined Miss PERSON .

ORG The second incident , which took place on DATE , was reported to the PERSON police on DATE by Mrs. PERSON . She stated that her husband , who was slightly drunk , had kicked her right arm during a quarrel , causing her acute pain . An X - ray at the hospital DATE had shown that her right thumb was broken , and this had left her unfit for work for DATE . She added that she had started divorce proceedings against her husband .

On DATE , the hospital in PERSON had sent the police a report stating that the injury , inflicted by the complainant ’s " own husband " , should be regarded as serious .

ORG The police took a statement from Mr. PERSON on DATE . He denied injuring his wife on DATE , saying that her hand had already been bandaged when he had come home . She had actually attempted to hit him on the head with a hairbrush , but had missed and collided with the stair - rail instead . This might have aggravated the thumb injury , but the accusation she had made against him was a complete fabrication .

The applicant confirmed that divorce proceedings had been pending for some time .

ORG On DATE , the PERSON police sent ORG a report " concerning PERSON , suspected of causing grievous bodily harm " . This stated that the couple had had a quarrel on DATE , during which Mr. PERSON had kicked his wife ’s right arm . It went on to summarise Mrs. PERSON ’s and her husband ’s statements , which were appended .

ORG On an application from ORG , ORG decided on DATE to open an investigation against the applicant in respect of the CARDINAL incidents . After separating the proceedings against Mrs. Unterpertinger in respect of the first incident ( see paragraph CARDINAL above ) , ORG acquitted her on DATE .

ORG On DATE , Mrs. PERSON appeared before a judge at GPE , who told her that , as the wife of the accused ( PERSON ) , she was entitled to refuse to give evidence . In fact , LAW provides : " members of the accused ’s family ... shall not be required to give evidence " .

She replied that she nonetheless wished to do so , and gave an account of the facts in dispute , summarising what she had already told the police and disputing her husband ’s version of the incident on DATE .

Suspected of causing actual bodily harm contrary to Articles CARDINAL et seq . of LAW , the applicant was questioned on DATE by a judge of ORG . He admitted slapping his wife in the face on DATE . According to him , he had pulled Miss PERSON ’s hair in order to escape the CARDINAL women ’s attacks and might in so doing have injured her close to her eye ; he had also struck her in the face . As regards the second incident , he repeated what he had already said ( see paragraph CARDINAL above ) ; he also stated that he had not seen his wife come into contact with the stair - rail and added that he was not sufficiently agile to have been able to kick her thumb .

ORG The case was heard on DATE by a judge of ORG ( PERSON ) , sitting alone .

ORG According to the record of the hearing , the applicant pleaded not guilty . He admitted that he had hit his step - daughter on the head , but not that he had injured her . Nor had he broken his wife ’s thumb by kicking it ; he had no idea where she had broken it .

ORG then called Mrs. PERSON and PERSON . On being told by the court of their right to refuse to give evidence ( see paragraph CARDINAL above ) , they replied that they wished to avail themselves of that right . The court was consequently unable to examine them or to read out the record of Mrs. PERSON ’s interview with the judge at PERSON ( Article CARDINAL ) of LAW ) .

At the request of ORG , however , the documents it had mentioned in its application for leave to prosecute ( PERSON ) , including the police reports , the accused ’s criminal record and CARDINAL files relating to previous convictions of his , were read out . These documents thus included the various statements made to the police : in NORP judicial practice these had to be regarded as documents for the purposes of DATE ) of LAW ( see in particular judgment of DATE of ORG ( Oberster Gerichtshof , PERSON DATE , p. CARDINAL ) ; this meant that they had to be read out , unless the parties agreed that they should not be .

ORG At the end of the hearing , ORG found the applicant guilty of having committed , on DATE , the offence ( PERSON ) of causing actual bodily harm ( Article CARDINAL(CARDINAL ) of LAW ) to his step - daughter and , on DATE , the offence of causing grievous bodily harm ( schwere ORG , PERSON ) and PERSON ) of LAW ) to his wife . He was sentenced to CARDINAL months’ imprisonment .

Referring to the " inquiries made " and to the defence ( ORG ) put forward by Mr. PERSON , the court held that the following facts had been established .

During the quarrel on DATE , the applicant had hit his wife several times and had struck his step - daughter in the face , bruising her between the eye and nose and scratching her close to her right eye . His account could not be believed : he had admitted to the judge at GPE that he had struck Miss PERSON in the face and he had not ruled out the possibility that this might have caused the scratch . The injuries were slight , but his conduct showed that his actions had been deliberate .

On DATE , Mr. PERSON had broken his wife ’s right thumb by kicking her . Again , his defence did not stand up to examination . In addition , his record showed that he was quite capable of behaving in this way . He and his wife had had frequent quarrels , often ending in assault .

The court pointed out that Mrs. Unterpertinger - who in the meantime had divorced her husband - and her daughter had refused to give evidence at the trial . It nonetheless found their statements to the police " sufficiently clear and specific to support a conviction " ; " there [ could be ] no doubt as to the truth of these statements " . In this instance too , the applicant had acted deliberately .

The court found no mitigating circumstances ; on the contrary , it saw the applicant ’s criminal record as an aggravating circumstance .

ORG Mr. PERSON appealed on DATE .

He argued that the judgment of DATE was null and void ( Article CARDINAL ) of LAW ) : in spite of LAW , his former wife and step - daughter , whose statements to the police had formed the sole basis of his conviction , had not been informed at the outset that they were entitled to refuse to give evidence , and had thus been unable to avail themselves of this right .

Furthermore , ORG had not taken sufficient account of certain circumstances which made the credibility of Mrs. PERSON and her daughter doubtful . In this connection , the applicant requested that evidence should be taken from several witnesses , including CARDINAL doctors , a police officer , a neighbour and his own mother , step - daughter and former wife .

Finally , he emphasised that in the past he had always admitted the offences with which he had been charged - as was clear from the files on the earlier proceedings . In this instance , however , he had acted in self - defence during the first incident and with no intention of injuring his step - daughter - if indeed he really had injured her . ORG had disregarded his version of the events of DATE . As for the incident of CARDINAL September CARDINAL , he repeated that his former wife had been having trouble with her right thumb even before that date , as he had mentioned when he was first questioned . He further claimed that he himself had been suffering from a knee injury which would have prevented him from kicking hard enough to break his wife ’s thumb . He requested that these points should be investigated further and , in particular , that evidence should be taken from a number of people and an expert opinion ( PERSON ) obtained .

In conclusion , Mr. PERSON asked ORG ( Oberlandesgericht ) to quash the conviction of DATE and acquit him . Failing this , he asked it to review his sentence in the light of the degree of his guilt .

ORG sat on DATE .

Counsel for the applicant submitted the grounds of appeal and requested , inter alia , that additional witnesses be called by the court . He added that the fact that his client was not allowed to put questions concerning the statements made to the police by the prosecution witnesses contravened LAW . The prosecution sought to have the appeal dismissed .

Thereupon , the court decided to re - examine the evidence submitted to the court of first instance and to supplement it ( LOC ) by having the file on the divorce proceedings read out and hearing testimony from the wife of Mr. PERSON ’s brother . She was unable to say whether the applicant ’s former wife had had a bandage on her hand in the DATE or DATE . The applicant waived his right to cross - examine her .

The court had the documents in the file on the case read out and put several questions to Mr. PERSON , in particular about his knee injury . According to him , he was asked to walk up and down so that the judges could form an idea of his condition .

The court refused to admit the remaining evidence proffered , as to part , on the ground that the circumstances to which it related were of no importance and , as to the rest , because the applicant had not specified the matters he wished to be investigated further .

ORG dismissed the applicant ’s appeal immediately after the hearing on DATE .

With regard to the ground of nullity on which he had relied ( see paragraph CARDINAL above ) , it noted , on the basis of ORG case - law , that a lawful refusal to give evidence did not prevent the court from having read out witnesses’ statements which had been made to the police ( PERSON ) and not during the judicial proceedings proper . It added that ORG had ruled that the courts were indeed obliged to have such statements read out and to weigh them as evidence .

Otherwise , ORG was of the opinion that the evidence it had heard confirmed the findings of ORG . The ORG statements to the police were plausible and credible ; their account of the incident was logically coherent . The applicant ’s previous convictions showed that conduct like that of which he was accused was by no means alien to his nature . Moreover , he had given the police and the investigating judge conflicting versions of what had happened on DATE . His sister - in - law , who had been called as a witness , had been unable to give any information in this regard . As for his claim that he was not sufficiently agile to have been able to break his wife ’s thumb with a kick , this did not stand up to examination either .

Except for his sister - in - law , it was unnecessary to hear the witnesses the applicant had sought to have called , since he had referred to them in connection with matters that were either of no importance or else extremely vague .

Consequently , Mr. PERSON ’s conviction on the CARDINAL counts against him was justified ; he had not been acting in self - defence on DATE . The sentence imposed was consistent with the degree of his guilt ( schuldangemessen ) .

ORG The applicant served his sentence from CARDINAL DATE to CARDINAL DATE .


The applicant is a NORP national , born in DATE . He is currently serving a prison sentence in GPE . He is represented before the ORG by PERSON , a lawyer attached to the GPE - based ORG .

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

DATE and DATE the applicant and CARDINAL other co - defendants , PERSON and PERSON , were tried before a jury at ORG on CARDINAL counts of conspiracy to produce and possess with intent to supply cannabis . PERSON pleaded guilty to CARDINAL fire - arms charges .

The charges against the applicant arose out of a police raid on a house of which he had previously been a tenant . The police found that cannabis was being cultivated on the LOC using hydroponic equipment . According to the prosecution the applicant had used his scientific expertise to set up a cannabis - making factory in the house and had bought hydroponic equipment for this purpose DATE while living in the house . He had then moved out in order to distance himself from the operation .

The applicant did not answer questions when interviewed by the police following his arrest .

At the close of the prosecution ’s arguments , the applicant ’s counsel advised him that he need not give evidence since he considered that there was no real evidence against him . The applicant did not testify .

In his summing up to the jury at the close of the trial , the trial judge , Judge PERSON , with reference to CARDINAL of ORG LAW DATE , directed the jury on the manner in which they were to deal with the applicant ’s failure to give evidence . The judge ’s direction was based on the ORG specimen directions . Specifically , he said :

“ [ The applicant ] , of course , has not given evidence , and that is , as [ the applicant ’s ] counsel ] quite properly reminded you , [ the applicant ’s ] legal right . The burden of proving the case still remains on the Prosecution throughout , and [ the applicant ] is quite entitled to say , as he has through [ his counsel ] , ‘ The Prosecution has failed to prove its case , and I stand on ORG . Moreover , failure to give evidence on its own can not prove guilt . On the other hand , if , and only if , you are satisfied that the evidence relied on by the Prosecution established that there is a case to answer , then in those circumstances you may consider [ the applicant ’s ] failure to give evidence . If , and only if , the sole sensible explanation for [ the applicant ’s ] decision not to give evidence is that he has no answer to the case against him , or none that could stand up to cross - examination , then it would be open to you , if you think fit , to hold against him his failure to give evidence . It is for you and you alone to decide whether it is fair to do in the circumstances of this case . ”

The jury retired to consider their verdict . A note was subsequently sent through to the judge from the jury stating that :

“ Regarding the evidence relating to [ the applicant ] we are unable to find definitive evidence to show guilt . However we do feel that there is a ‘ case to ORG . Are we able to infer that there is no defence because [ the applicant ] failed to give evidence ?

Ultimately we believe that [ the applicant ] was involved but we are experiencing difficulty in finding facts . Would your Honour please clarify his comments relating to the exercise of defendant ’s right not to give evidence . ”

In the absence of the jury , the trial judge addressed the applicant ’s counsel as follows :

“ I take the view , subject of course to anything that you say , that the correct course would be for me to remind the jury of that which I said firstly about circumstantial evidence , but then in relation to the failure to give evidence ... ”

The applicant ’s counsel agreed and also proposed that the jury be reminded again that the prosecution bore the burden of proving the applicant ’s guilt beyond reasonable doubt . The judge agreed .

The jury returned and announced a verdict of guilty against CARDINAL co - defendant , PERSON , and acquitted another , PERSON However , as regards the applicant , the jury informed the judge that they had not yet reached a verdict . The judge then gave the jury further directions in relation to the evidence against the applicant and his failure to give evidence . He stated :

“ May I first of all remind you of that which I have said about circumstantial evidence . It sometimes happens that a jury is asked to find some fact proved by considering direct evidence of it . Direct evidence may take many forms ... On the other hand it is often the case that direct evidence of a crime is not available and the jury is required to decide the case on what I call ‘ circumstantial evidence’ . That simply means that the prosecution is relying upon evidence of various circumstances relating to the crime and to the defendant in order to demonstrate that some or all of the circumstances , when taken together , establish the defendant ’s guilt . Because the only conclusion to be drawn from that evidence is that it was the defendant who committed the crime ... the evidence must lead you to the sure conclusion that the charge that the defendant faces is proved against him . Circumstantial evidence can be powerful evidence , but it is clearly important that you do examine the evidence with care and consider whether the evidence upon which the Prosecution relies in proof of its case is reliable and whether it does prove guilt . Furthermore , before convicting on circumstantial evidence , you should consider whether the evidence reveals any other circumstances which are or may be of sufficient reliability or strength to weaken or destroy the Prosecution case ...

But may I turn now to the failure of [ the applicant ] to give evidence , and may I remind you that that is his legal right not to give evidence . In spite of his not giving evidence , the burden of proving the case still remains on the Prosecution throughout . [ The applicant ] has to prove nothing ... Moreover , failure to give evidence on its own can not prove guilt . On the other hand , if and only if , you are satisfied that the evidence relied on by the Prosecution establishes that there is a case for him to answer , then in those circumstances you may go on to consider [ the applicant ’s ] failure to give evidence . If , and only if , the sole sensible explanation for his decision not to give evidence is that he has no answer to the case against him , or no answer that could have stood up to cross - examination , then it would be open to you , if you thought fit , to hold against him failure to give evidence . It is for you to decide whether it is fair to do in all the circumstances of this case . ”

The judge then allowed the jury to reach a majority verdict of CARDINAL . The jury retired at TIME to consider their verdict . At TIME they returned a verdict of guilty by a majority of CARDINAL .

On DATE the applicant was sentenced to CARDINAL concurrent terms of imprisonment of DATE .

The applicant sought to have his conviction overturned on the ground , inter alia , that the trial judge had erred in his second summing up to the jury by failing to mention that it was for the prosecution to prove beyond reasonable doubt that the applicant was guilty . The applicant was granted leave by the Single Judge to appeal to ORG against conviction and sentence .

On DATE ORG dismissed the applicant ’s appeal against conviction but reduced his sentence . Lord Justice PERSON , delivering the judgment of the court , agreed with the argument put forward by counsel for the Crown that the trial judge was not obliged to repeat a direction on the burden of proof if he had already given one to that effect . Lord Justice PERSON stated :

“ The fact that the matter had to be proved to the criminal standard of proof was CARDINAL on which the Judge had given the jury a very clear and correct direction at the beginning of the summing up and although it is a pity that he forgot to do what he had clearly intended to do , we do not consider that this late direction to the jury can be faulted on those grounds . ”

The applicant did not seek leave to appeal to ORG .

Section CARDINAL of ORG LAW DATE provides that :

“ CARDINAL . Where in any proceedings against a person for an offence , evidence is given that the accused –

( a ) at any time before he was charged with the offence , on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed , failed to mention any fact relied on in his defence in those proceedings ; or

( b ) ... being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned , charged or informed , as the case may be , subsection ( CARDINAL ) below applies .

Where this subsection applies ...

( c ) the court , in determining whether there is a case to answer ; and

( d ) the court or jury , in determining whether the accused is guilty of the offence charged , may draw such inferences from the failure as appear proper .

Subject to any directions by the court , evidence tending to establish the failure may be given before or after evidence tending to establish the fact which the accused is alleged to have failed to mention . ” .

Section CARDINAL ( CARDINAL ) and ( CARDINAL ) provides :

“ ( CARDINAL ) Where this subsection applies , the court shall , at the conclusion of the evidence for the prosecution , satisfy itself ( in the case of proceedings on indictment , in the presence of the jury ) that the accused is aware that the stage has been reached at which evidence can be given for the defence and that he can , if he wishes , give evidence and that , if he chooses not to give evidence , or having been sworn , without good cause refuses to answer any question , it will be permissible for the court or jury to draw such inferences as appear proper from his failure to give evidence or his refusal , without good cause , to answer any question .

( CARDINAL ) Where this subsection applies , the court or jury , in determining whether the accused is guilty of the offence charged , may draw such inferences as appear proper from the failure of the accused to give evidence or his refusal , without good cause , to answer any question . ”

Section CARDINAL ( CARDINAL ) adds that :

“ A person shall not ... be convicted of an offence solely on an inference drawn from such a failure or refusal as is mentioned in section GPE ) ... ”

Guidance as to the direction which the judge should give the jury in respect of section CARDINAL of ORG LAW DATE are provided by the ORG specimen directions and by the dicta of Lord PERSON in NORP v. PERSON ( [ DATE ] CARDINAL Criminal Appeal Reports CARDINAL ) .

The dicta of Lord PERSON are as follows :

“ We consider that the specimen direction is in general terms a sound guide . It may be necessary to adapt it to the particular circumstances of an individual case . But there are certain essentials which we would highlight :

The judge will have told the jury that the burden of proof remains upon the prosecution throughout and what the standard required is .

It is necessary for the judge to make clear to the jury that the defendant is entitled to remain silent . That is his right and his choice .

An inference from failure to give evidence can not on its own prove guilt . That is expressly stated in section CARDINAL ) of the LAW .

Therefore , the jury must be satisfied that the prosecution have established a case to answer before drawing any inferences from silence . Of course , the judge must have thought so or the question whether the defendant was to give evidence would not have arisen . But the jury may not believe the witnesses whose evidence the judge considered sufficient to raise a prima facie case . It must therefore be made clear to them that they must find there to be a case to answer on the prosecution evidence before drawing an adverse inference from the defendant ’s silence .

NORP If despite any evidence relied upon to explain his silence or in the absence of any such evidence , the jury conclude the silence can only sensibly be attributed to the defendant ’s having no answer or none that would stand up to cross - examination , they may draw an adverse inference . ”

Following ORG judgments in NORP v. PERSON and NORP v. ORG , the following specimen direction in respect of section CARDINAL was drawn up by ORG . It states :

“ The defendant has not given evidence . That is his right . He is entitled to remain silent and require the prosecution to prove its case . You must not assume he is guilty just because he has not given evidence because , failure to give evidence can not , on its own prove , prove guilt . However , as he has been told , depending on the circumstances , you may take into account his failure to give evidence when deciding on your verdict .

NORP In the first place when considering the evidence as it now is you may bear in mind that there is no evidence from the defendant himself which in any way undermines or contradicts or explains the evidence put before you by the prosecution .

NORP In the second place , if you think that in all the circumstances it is right to do so , you are entitled , when deciding whether the defendant is guilty of the offence(s ) charged , to draw such inferences from his failure to given evidence as you think proper . In simple terms , this means that you may hold this failure against him .

[ There is evidence before you on the basis of which the defendant ’s advocate invites you not to hold it against the defendant that he has not given evidence . That evidence is ( here set out the evidence ) . If you think that this amounts to a reason why you should not hold it against the defendant that he has not given evidence , do not hold his silence against him . If , on the other hand , it does not in your judgment provide an adequate explanation for his absence from the witness box , then you may , if you think it right , hold his failure to give evidence against him . ]

What inference can you properly draw from the defendant ’s decision not to given evidence before you ? If you conclude that there is no case for him to meet , you may think that if he had an answer to it he would have gone into the witness box to tell you what it is .

If , in your judgment , the only sensible reason for his decision not to give evidence is that he has no explanation or answer to give , or none that could have stood up to cross - examination , then it would be open to you to hold against him his failure to give evidence , that is , take it into account as some additional support for the prosecution ’s case . You are not bound to do so . It is for you to decide whether it is fair to do so . ”

In NORP v. PERSON ( [ DATE ] Criminal Law Reports ) Lord PERSON stated , with reference to section CARDINAL of the DATE Act :

“ Inescapable logic demands that a jury should not start to consider whether they should draw inferences from a defendant ’s failure to give oral evidence at his trial until they have concluded that the ORG ’s case against him is sufficiently compelling to call for an answer by him . ... There is a clear risk of injustice if the requirements of logic and fairness are not observed ( ... ) ”

Section CARDINAL(CARDINAL ) of LAW DATE , as amended by LAW DATE , provides a single , composite ground of appeal against a criminal conviction . It states that ORG :

“ shall allow an appeal against conviction if it thinks that the conviction is unsafe ” .

In NORP v. NORP and PERSON ( [ DATE ] CARDINAL Criminal Appeal Reports CARDINAL ) ORG recognised that the omission of the word “ unsatisfactory ” which had been contained in the former section CARDINAL of LAW had changed the law . A conviction will not be liable to be quashed on account only of procedural irregularity , or abuse of process or a failure of justice to be seen to be done . However in NORP v. PERSON


The applicant , Mr PERSON , is a GPE national , who was born in DATE and lives in GPE . He is represented before the ORG by PERSON CARDINAL ORG , a lawyer practising in GPE .

On DATE , the applicant 's wife drowned and , shortly after , the applicant was arrested and detained on suspicion of having killed her . In the criminal proceedings that were subsequently brought against the applicant , ORG ( gerechtshof ) of GPE DATE on DATE and following proceedings on appeal – convicted the applicant and sentenced him to DATE imprisonment . Following subsequent proceedings in cassation , ORG ( PERSON ) quashed the judgment of DATE and remitted the case to ORG . In the course of the proceedings before ORG and on an unspecified date , the applicant was released from pre - trial detention . On DATE , ORG acquitted the applicant of the charges brought against him .

After the applicant had been arrested and placed in detention , his DATE then still minor DATE children were placed under supervision ( ondertoezichtstelling ) of the child welfare authorities and away from their family home ( uithuisplaatsing ) .

In a ruling handed down on DATE , ORG ( arrondissementsrechtbank ) , acting on a request filed on DATE by ORG ( PERSON – “ the Board ” ) , relieved the applicant of his parental authority ( ontheffing ouderlijk gezag ) over CARDINAL of his children , namely those who at that time were still a minor , and appointed ORG ( PERSON – “ the ORG ” ) as their guardian ( voogdes ) .

The applicant 's appeal against his ruling was dismissed on DATE by ORG . ORG noted that the criminal proceedings against the applicant had been remitted by ORG to ORG and that the proceedings before this court had been stayed until DATE on medical grounds . As regards the CARDINAL oldest of the CARDINAL children DATE who were born in DATE and DATE , respectively , and who had been heard before ORG – ORG noted that they had indicated that they did not wish to have any contacts with their father anymore and that the applicant , respecting the wishes of these CARDINAL children , no longer objected to being relieved of his parental authority over them .

As regards the CARDINAL youngest children – twins born in DATE – ORG noted that they were staying with a foster family and that the initial arrangement for the applicant 's access to them , i.e. once per month , had been reduced by ORG to TIME DATE in the applicant 's home and contact by telephone every uneven month . ORG held in their respect as follows :

“ ORG is of the opinion that [ their ] placement under supervision and away from [ their ] home do no longer suffice to protect the children against physical and moral ruin ( lichamelijke en zedelijke ondergang ) . On this point , ORG has submitted that the children require as soon as possible certainty about the place where they can grow up further . ORG considers it necessary that , noting what has occurred in their lives on account of their mother 's death , the authority over the children is to be exercised by someone else than the father . In the course of the proceedings , ORG has added that after relieving [ the father of his parental authority ] – in particular since already for DATE the father has not had any an active educational responsibility – the position of the father vis - à - vis the children will only become clearer . ORG did also emphasise that the children are being harmed in their development by the erratic course of the criminal proceedings in which still no definite decision has yet been taken , on which ground ORG now calls for a speedy decision .

Since DATE ... the ORG has not noted any obstruction from the side of the father anymore ; the contacts with the father run quite well . Nevertheless the ORG subscribes to the ORG 's position that a relief of parental authority is in the children 's interest ; it would be beneficial for them to have their future clearly laid out in a safe and stable situation . Also the foster family , with whom the children have now stayed for DATE and who moreover offer favourable future prospects would benefit from clarity . Certainly when growing up , children must know where they stand . To this end it is important that it will become clear that now , but also later , someone else is responsible for their care and upbringing . The current situation around the father , whether or not detained , is too disruptive for the children ; the children seek answers – that are as understandable as possible – to their questions . Parental authority must be separated from the [ issue of ] contacts with the father , which must be continued also [ if the applicant is relieved of his parental authority ] . The ORG favours maintaining the current access arrangement ; the former access arrangement was too burdensome for the foster family , who also had had to deal with access arrangements involving [ the older siblings of the twins ] . [ The foster family ] is prepared , after [ the applicant has been relieved of his parental authority ] , to set up a broader access arrangement in consultation with the father .

ORG adopts as its own the position taken by ORG . There is a founded fear that , owing to the unsuitability or incapacity ( ongeschiktheid of onmacht ) of the father , the placement under supervision , also in view of its temporary nature , is insufficient to avert the threat for the children .

Having regard to the father 's health condition and the fact that he is currently staying at home , ORG is of the opinion that the ORG , as indeed already proposed by it , must in that framework give attention to the frequency of the access arrangement which now has been reduced from CARDINAL to CARDINAL times per year . The clarity that a relief of parental authority entails can create space for the ORG to develop a further arrangement . ”

The applicant 's appeal in cassation against this ruling was rejected by ORG on DATE .

In the meantime , on DATE , the applicant had filed a request with ORG to restore his parental authority over the twins or , alternatively – to determine a broader access arrangement , namely an arrangement under which he would have access to the twins from TIME until TIME every fortnight .

On DATE , ORG declared the applicant inadmissible in his request to restore his parental authority as the decision in which he had been relieved of his parental authority was not yet final as the proceedings on the applicant 's appeal in cassation against the ruling of DATE were still pending before ORG . It further decided to stay pro forma and until DATE its examination of the applicant 's request for a broader access arrangement . It requested the parties to submit information by that date to whom the parental authority had been entrusted and the ORG to submit information about the running of the access arrangement .

The applicant filed an appeal against the decision of DATE with ORG . On DATE , ORG examined the applicant 's appeal . After having heard the parties , ORG decided to adjourn its further examination pending the submission of a report by ORG NORP ( PERSON NORP Adviesbureau NORP – “ NORP ” ) on the access arrangement issue . It decided to adjourn pro forma until DATE and , if the report had been submitted by then , to schedule a further hearing in DATE or DATE by which date the ORG should have set a time frame for an investigation into the question whether to work on returning the twins into the care and custody of their father would be in their interest .

On DATE , a further hearing was held before ORG . It adjourned its further examination of the appeal pending a further investigation by ORG ( Ambulant Bureau PERSON – “ ABJ ) on specific question points to be agreed upon between the parties . Failing such an agreement , ORG would hand down an interim decision defining the scope of the further investigation by the ORG .

In its decision of DATE , noting that the parties had been unable to reach an agreement and that they had requested the court to formulate the questions , ORG ordered the ORG to prepare a report dealing with the following points :

“ a. how is the ( social - emotional ) development of the children and is the father 's concern about their development justified ;

b. what is the significance of the foster parents for the children ;

c. how is the relationship between the children and the father ; is there bonding ;

d. what image do the children have of their father ;

e. what are the father 's possibilities in a pedagogical sense ;

PERSON are the pedagogical and other capabilities of the father sufficient for taking on again the care and upbringing of the children ;

g. what are the possibilities of the father in respect of realising contacts between the children and their CARDINAL brothers and their sister ;

h. is the father ( mentally ) capable to exercise access rights and/or parental authority in a responsible manner ;

i. have other facts and circumstances become known during the investigation that might be of relevance for any decision to be taken by the court in relation to the parental authority and access ? ”

ORG adjourned its further examination pending the submission of this report . On DATE , the requested report was submitted to ORG .

In its decision of DATE , following a hearing held on DATE , ORG declared the applicant inadmissible in his request for a broader access arrangement , quashed the decision of DATE in so far as the applicant had been declared inadmissible in his request for restoring his parental authority , declared this request admissible and rejected it . This decision , in its relevant part , reads as follows :

“ CARDINAL . ORG has declared the father inadmissible in his request to restore his parental authority over the minor children because , in ORG opinion , it was not clear whether or not the father had been relieved of his parental authority , because the proceedings on the appeal filed by the father against the decision of DATE were still pending .

As the decision of DATE was declared as being immediately enforceable ( uitvoerbaar bij voorraad ) , it did have legal effects for the father , so that he was admissible in his request to ORG . ORG must therefore examine on appeal and anew the father 's request for restoring his parental authority .

From the examination at trial and from the ORG report inter alia the following has appeared .

Although the children are involved with the father in a positive way , this involvement is limited . The children indicate that they do not wish to live with the father . The father wishes to be restored in his parental authority in order to be able to claim a more central role in the provision of aid to the children .

The children have now lived for DATE with the foster parents . The children have difficulties , noting everything that has happened in the past , with bonding [ with others ] , they have been harmed in their ability to bond [ with others ] ( hechtingsbeschadigd ) , also because in the past their mother was only to a limited extent emotionally available to the children . The children 's bonding with the foster parents has only just begun . This bonding development ( hechtingsontwikkeling ) is in the interest of a healthy personality development . The father has little sight on the children 's problems . His wish to care for the children appears to flow mainly from a sense of duty . He can give little substance to that . He overlooks the children 's interests . A termination of the bonding process would have serious negative consequences for the children 's emotional development .

Although ORG understands the wish of the father who , owing to the sad course of events surrounding his wife 's death , has lost his parental authority , ORG finds , in view of the above considerations , that it is of the utmost importance for the children that the bonding process set into motion is continued , in which it is also of importance to create now clarity about the authority over them ; it is beneficial for them to have clarity for the future in a safe and stable situation .

In addition the children have regular contacts with [ CARDINAL older siblings ] , who play a big role in the process of dealing with the loss of the mother . The father has already since DATE no contacts anymore with [ these CARDINAL siblings ] . The children have a great interest in a continuation of their contact with [ these CARDINAL siblings ] which would be jeopardised if the father were to be restored in his parental authority .

In view of the above , the ORG is not convinced that the minor children should be entrusted again to the father and it will therefore reject the father 's request to this effect .

As regards the father 's request to determine an access arrangement , ORG notes that , in the impugned decision , ORG has stayed [ its examination of ] this request . Consequently , the father is inadmissible in his appeal against this interim decision . ”

The applicant 's subsequent appeal in cassation was rejected by ORG on DATE .

The duties of ORG , as set out in LAW the ORG ” ) , include keeping itself informed of developments affecting child welfare , promoting cooperation between institutions concerned with child welfare and giving advice , upon request or of their own motion , to authorities and institutions . It has competence to take action in the interests of minors ( LAW ) .

Parental authority over minor children born in wedlock is exercised jointly by both parents ( Articles CARDINAL:CARDINAL § CARDINAL and CARDINAL § CARDINAL of the ORG ) . It comprises the duty and the right of parents to care for and bring up their child ( LAW ) . Under caring for and bringing up is also to be understood the care and responsibility for the mental and physical well - being of the child and the furtherance of the development of its personality ( LAW of the ORG ) . A parent invested with parental authority is the child 's statutory representative ( wettelijk vertegenwoordiger ) and administers its possessions ( LAW ) . If parental authority is exercised by both parents jointly and CARDINAL of them dies , the parental authority will be exercised by the surviving spouse alone if that spouse had parental authority when the other spouse died ( DATE the ORG ) .

According to LAW , the juvenile court judge ( kinderrechter ) may , on the application of inter alia ORG , order a minor child 's placement under supervision of a family supervision institution ( gezinsvoogdij - instelling ) within the meaning of LAW ( Wet op de Jeugdhulpverlening ) , if the child is growing up under such conditions that it is threatened with moral or physical ruin ( zedelijke of lichamelijke ondergang ) . Such an order can be given for a maximum period of DATE , but may be prolonged by a maximum of DATE on each occasion ( Article CARDINAL of the ORG ) .

If necessary in the interest of the child 's care and upbringing or for the purposes of an examination of the child 's mental or physical health condition , the juvenile court judge can further authorise that the child be placed away from its family home ( Article CARDINAL:CARDINAL of the ORG ) . Also such an authorisation can only be given for a maximum period of DATE , with the possibility of subsequent prolongations by a maximum of DATE on each occasion ( Article CARDINAL:CARDINAL § CARDINAL of the ORG ) .

Under GPE law , a parent invested with parental authority can be deprived of this authority by a decision of ORG either by being relieved of it ( ontheffing ) under LAW like the applicant in the present case – or by removal from it ( ontzetting ) under LAW . Relief of parental authority – which can only be pronounced upon a request by ORG by ORG or the public prosecution department ( openbaar ministerie ) – is based on a parent 's unsuitability or incapacity ( ongeschiktheid of onmacht ) to fulfil his / her duty of care and upbringing . Removal from parental authority – which can only be pronounced upon a request by the other parent , CARDINAL of the relatives by marriage or blood up to and including the fourth degree of consanguinity , ORG or the public prosecution department DATE is based on an imputable and wilful dereliction of duty or on an imputable unworthiness in the assumption of the task of mentor and care provider .

A decision to relieve a parent from his or her parental authority can not be taken if opposed by the parent concerned ( LAW ) . However , this rule does not apply where it appears after a placement under supervision of DATE , or where after a placement away from the family home of DATE and DATE there is a founded fear , that this measure – by the unsuitability or incapacity of a parent to fulfil his or her duty of care and upbringing DATE is insufficient to avert the threat with moral or physical ruin ( LAW ) .

Both forms of deprivation of parental authority entail a full loss of the authority over underage children . A request to be restored in parental authority may be filed with ORG by the parent concerned or by ORG . If ORG is convinced that a minor can be entrusted again to the parent who has been relieved or removed from his / her parental authority , it may restore this parent in his / her authority ( LAW ) . In the determination of such a request , ORG is to balance the interests of both the child and the parent . Pending this determination , both ORG and the parent concerned can request ORG to stay its determination pending a probationary period of maximum DATE during which period the child is to stay with the parent seeking restoration of parental authority ( LAW ) .

Access rights are regulated by Articles CARDINAL:CARDINALa - h of the ORG . Article CARDINAL of the ORG , in so far as relevant , provides as follows :

“ CARDINAL . The child and the parent who does not have custody are entitled to have access to each other ( omgang met CARDINAL ) .

The judge shall , at the request of the parents or of CARDINAL of them , establish an arrangement , for a definite or indefinite period , for the exercise of the right of access or shall deny , for a definite or indefinite period , the right of access .

The judge shall only deny the right of access if :

a. access would seriously impair the mental or physical development of the child ; or

b. the parent must be deemed to be manifestly unfit for or manifestly incapable of access ; or

c. the child , being DATE , when being heard has manifested serious objections against allowing the parent access ; or

d. access would for another reason be contrary to the weighty interests ( zwaarwegende belangen ) of the child . ”


Violation of Art. 5-1-f;Violation of Art. 5-4;Remainder inadmissible;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

The applicant was born in DATE and lives in LOC .

The applicant was the chairman of ORG ( “ PERSON ” ) .

In DATE the NORP opposition , comprising a coalition of NORP groups and NORP fundamentalists , seized power from ORG , which led to civil war . In DATE ORG elected PERSON as its chairman and head of ORG . PERSON was supported by armed forces of ORG . The applicant was the leader of ORG in the GPE region of NORP .

NORP In DATE Mr PERSON was declared winner in the Presidential election . The applicant supported the opposition candidate , Mr PERSON .

On DATE Mr PERSON signed a “ peace and accord ” agreement with the representative of ORG . On DATE ORG ) of NORP passed LAW which provided for discontinuation of criminal proceedings against the participants in the political and military conflict after DATE . Pending criminal cases , in which convictions had not been yet handed down , were to be discontinued , and no new cases were to be opened .

On DATE a force led by PERSON and PERSON PERSON launched an offensive in GPE . The ORG began a counter - offensive , joined by ORG forces . By DATE the Government had retaken control of the province after intense fighting . The applicant declared that he had not taken part in the offensive ; he had been ill and had stayed in GPE .

On an unspecified date the applicant 's youngest son was convicted for participation in the offensive and sentenced to DATE imprisonment . A search warrant was issued against the applicant who had fled to GPE together with his family .

On DATE an investigator in charge of particularly serious cases in ORG charged the applicant with criminal offences allegedly committed between DATE and DATE . The charges included kidnapping , manslaughter , participation in an anti - Government organisation , participation in an armed group with a view to attacking Government institutions , subversive activities , high treason and conspiracy to seize State power .

By a separate decision of the same date , the investigator held that the applicant should be taken into custody and that his name should be put on the list of fugitives from justice . The decision was approved by the acting Prosecutor General of NORP .

On DATE the applicant was arrested in GPE . On DATE ORG sent a request for the applicant 's extradition to its NORP counterpart which was received on DATE .

On DATE the Nagatinskiy ORG of GPE ordered the applicant 's detention on the basis of ORG CARDINAL , CARDINAL and CARDINAL of the Code of Criminal Procedure , finding as follows :

“ Having heard the parties to the proceedings , the court finds the [ prosecution 's ] request justified because the criminal - procedure laws governing application of measures of restraint have been complied with and the case file contains sufficient grounds showing that no measure of restraint other than deprivation of liberty may be applied to the accused . Mr PERSON is charged with serious and particularly serious crimes carrying a penalty of DATE imprisonment . His name is on the international list of fugitives from justice . Furthermore , the court considers that , since Mr PERSON is a foreign national and has no permanent place of residence within NORP territory , he may abscond from investigation and prosecution or otherwise hinder the criminal proceedings . ”

ORG did not set a time - limit for detention .

On DATE the applicant and his counsel asked ORG to refuse the request for his extradition . He submitted that he was being prosecuted in NORP on political grounds , that he risked a death sentence if found guilty as charged , and the guarantee against inhuman treatment and the right to a fair trial would not be respected in NORP . He indicated that he had applied for political asylum in GPE .

On DATE counsel for the applicant asked the director of the remand centre to release the applicant . In her submission , as there had been no arrest warrant issued by a NORP court , the provisions of LAW on pre - trial detention were to be applied . Article CARDINAL set the maximum detention period at DATE . As the detention period had not been extended following the expiry of that period on DATE , the applicant 's subsequent detention was unlawful . In these circumstances , the director of the remand centre had a statutory duty to release anyone detained unlawfully .

On DATE the director of the remand centre replied to her that the applicant was still detained under ORG decision of CARDINAL DATE and that his release would only be possible if there was a new judicial decision or a decision by ORG refusing his extradition .

On DATE counsel asked ORG to release the applicant , submitting that his detention had been unlawful under domestic terms and that , in any event , LAW limited the period of provisional arrest to DATE ( Article CARDINAL § CARDINAL ) . No reply was received .

NORP In DATE NORP counsel for the applicant asked ORG of NORP to review the lawfulness of the applicant 's detention because the maximum term of detention under LAW was DATE . On DATE ORG refused to consider the complaint , claiming that it should be examined by the court having territorial jurisdiction for the detention centre .

On DATE counsel lodged complaints with ORG , and the Nagatinskiy and ORG of GPE , seeking the applicant 's release on the ground that the maximum term of detention under LAW had expired .

On DATE the Nagatinskiy ORG returned the complaint , indicating that it had no territorial jurisdiction . It also pointed out that the measure of restraint had been applied under LAW and that counsel 's references to LAW were therefore irrelevant .

On DATE a deputy head of ORG of ORG told counsel to petition the “ competent authorities ” of NORP in order to have the measure of restraint varied .

On DATE counsel applied , with the same request , to ORG . By letter of DATE , the head of the department for investigation of particularly serious crimes informed her that LAW was not applicable because the applicant was not in NORP and because his detention had never been extended in NORP . Accordingly , the complaint would only be considered after the applicant had been extradited .

On DATE the maximum DATE detention period laid down in LAW expired .

On DATE the director of the remand centre told counsel that within the meaning of LAW the applicant was neither a “ suspect ” nor a “ defendant ” , whereas the provision concerning the statutory duty to release anyone detained unlawfully only mentioned “ suspects ” and “ defendants ” . He further reminded counsel that there had so far been no judicial decision on the applicant 's release or a refusal by the prosecutor to extradite him .

Counsel for the applicant unsuccessfully sought judicial review of the applicant 's detention in ORG , and the PERSON and ORG of GPE . She relied on LAW .

On DATE the Tverskoy District Court disallowed the counsel 's complaint about ORG Office 's failure to release the applicant , finding as follows :

“ The measure of restraint was imposed on PERSON exclusively for the purposes of providing legal assistance in criminal proceedings conducted in NORP . The procedure for detaining persons with a view to extradition is governed by LAW of LAW of GPE .

LAW does not limit the period of detention of individuals whose extradition is being sought ... The international - law instruments submitted to the court do not limit [ that period ] either . In these circumstances , the court considers unsubstantiated counsel 's reliance on LAW and their reference to the fact that Mr PERSON 's detention had never been extended .

In the territory of GPE there is no investigation of PERSON and he is not a party to criminal proceedings within the meaning of LAW ...

The court also takes into account the fact that the decision on Mr PERSON 's extradition has not been taken to date because he had applied for asylum in GPE and then lodged an appeal against the decisions ... rejecting his asylum claim . ”

On DATE ORG upheld that decision , reproducing its reasoning verbatim .

The applicant complained to ORG , claiming that the legal situation where detention of a person with a view to extradition was not limited in time was incompatible with the constitutional guarantee against arbitrary detention .

On DATE ORG declared the application inadmissible . It pointed out that there was no ambiguity in the contested provisions because the general provisions governing measures of restraint should apply to all forms and stages of criminal proceedings , including proceedings on extradition ( for further details on ORG decision , see paragraph DATE below ) .

On DATE counsel for the applicant lodged a complaint against ORG . She submitted that there were no legal provisions permitting the holding of the applicant in custody beyond the maximum DATE period and that the applicant 's detention should be subject to judicial review . She alleged , in particular , a violation of LAW .

On DATE ORG dismissed the complaint , finding that ORG was not responsible for the applicant 's detention and that LAW did not require it to extend the period of detention until the decision on extradition had been taken .

On DATE counsel for the applicant wrote to ORG and the director of the remand centre that the applicant 's detention was unlawful and that he should be released immediately .

On DATE ORG rejected , in the final instance , the applicant 's request for political asylum in GPE .

On DATE the first deputy prosecutor of the PERSON District of GPE asked the ORG to extend the applicant 's detention by DATE on the ground that , after his application for asylum had been turned down , the prosecution needed additional time to examine the request for extradition .

On DATE ORG granted the prosecution 's request , relying on ORG CARDINAL and CARDINAL § CARDINAL of LAW . ORG noted that the prosecution had produced evidence showing that the extradition request was being decided upon , and that the applicant was charged with serious and particularly serious crimes , had no permanent place of residence in GPE and would abscond if released .

On DATE ORG upheld that decision on appeal , finding that it was lawful and justified . It did not refer to any legal provisions governing the applicant 's detention .

By letter of DATE , a deputy Prosecutor General informed the applicant that a decision had been taken to extradite him to NORP . A copy of the decision was not enclosed .

Counsel challenged the decision before ORG and applied to this ORG with a request for interim measures under LAW .

On DATE the ORG indicated to the respondent Government that the applicant should not be extradited to NORP until further notice .

By letter of DATE , the Government acknowledged receipt of the ORG 's decision and confirmed that the domestic authorities had been informed accordingly .

On DATE ORG overruled the prosecutor 's decision to extradite the applicant . It noted at the outset that ORG had not furnished the guarantees required by NORP law that the applicant would only be tried for the offences for which the extradition was sought , that he would be free to leave the country after serving the sentence and that he would not be deported , transferred or extradited to a third State without the consent of GPE .

ORG further found that , in granting the extradition request , the deputy Prosecutor General had failed to consider whether the applicant could be prosecuted for an offence connected with a political offence , whereas LAW prohibited extradition in such situations . As the applicant 's extradition was sought in connection with offences allegedly committed from DATE to DATE , ORG determined that his prosecution had been initiated in breach of LAW of DATE ( see paragraph CARDINAL above ) and was therefore politically motivated . Moreover , the applicant was eligible for amnesty under LAW of DATE .

ORG ordered the applicant 's release , finding that the maximum detention period set out in Articles CARDINAL and CARDINAL of LAW had expired and that his detention in excess of that period had been unlawful in the light of ORG decision of DATE .

On DATE the prosecution lodged an appeal . They claimed , in particular , that the allegedly political motives of the applicant 's prosecution had been examined “ by way of an exchange of secret correspondence ” between ORG , ORG and ORG which ORG had not taken into account . They also alleged that the applicant 's period of detention had not expired because ORG decision of DATE had not been quashed .

On DATE ORG of GPE dismissed the appeal by the prosecution and refused the extradition of the applicant to NORP .

The LAW guarantees the right to liberty ( LAW ) :

“ CARDINAL . Everyone has the right to liberty and personal integrity .

Arrest , placement in custody and detention are only permitted on the basis of a judicial decision . Prior to a judicial decision , an individual may not be detained for longer than TIME . ”

ORG ( signed in GPE on DATE and amended on DATE , “ the DATE Minsk Convention ” ) , to which both GPE and NORP are parties , provides as follows :

“ CARDINAL . NORP The person whose extradition is sought may also be arrested before receipt of a request for extradition , if there is a related petition ( ходатайство ) . The petition shall contain a reference to a detention order or a final conviction and shall indicate that a request for extradition will follow ... ”

“ CARDINAL . A person arrested pursuant to LAW ... shall be released ... if no request for extradition is received by the requested ORG within DATE of the arrest ... ”

“ The requested ORG shall notify the requesting ORG of the place and time of surrender . If the requesting ORG does not accept the person being extradited within DATE of the scheduled date of surrender , that person shall be released . ”

LAW of DATE ( ORG no . CARDINAL ) , to which GPE is a party , provides as follows :

“ CARDINAL . In case of urgency the competent authorities of the requesting ORG may request the provisional arrest of the person sought . The competent authorities of the requested ORG shall decide the matter in accordance with its law .

ORG . Provisional arrest may be terminated if , within DATE after arrest , the requested ORG has not received the request for extradition and the documents mentioned in LAW . It shall not , in any event , exceed DATE from the date of such arrest . The possibility of provisional release at any time is not excluded , but the requested ORG shall take any measures which it considers necessary to prevent the escape of the person sought . ”

LAW ( “ Measures of restraint ” ) governs application of measures of restraint , or preventive measures ( меры пресечения ) , which include , in particular , placement in custody . A custodial measure may only be ordered by judicial decision in respect of a person who is suspected of , or charged with , a criminal offence punishable by DATE imprisonment ( LAW in custody ” ) . The time - limit for detention pending investigation is fixed at DATE ( Article CARDINAL “ ORG - limits for detention ” ) . A judge may extend that period DATE ( LAW ) . Further extensions may only be granted by a judge if the person is charged with serious or particularly serious criminal offences ( LAW ) . No extension beyond DATE is permissible and the detainee must be released immediately ( LAW ) . A judicial decision ordering or extending the application of a custodial measure may be appealed against to a higher court within DATE of its issue ( Articles QUANTITY § DATE and CARDINAL § CARDINAL ) . A custodial measure may be revoked or varied by a judicial decision if it is no longer considered necessary ( LAW Revoking or varying the measure of restraint ” ) .

LAW ( “ Extradition of a person for criminal prosecution or execution of sentence ” ) regulates extradition procedures . Article CARDINAL is the only provision in the chapter that governs application of measures of restraint with a view to extradition . Paragraph CARDINAL deals with the situation where a request for extradition is not accompanied by a detention order issued by a foreign court . In that case a prosecutor must decide whether it is necessary to impose a measure of restraint “ in accordance with the procedure provided for in the present Code ” . Paragraph CARDINAL establishes that , if a foreign judicial decision on placement in custody is available , a prosecutor may place the person in detention or under house arrest . In that eventuality no confirmation of the foreign judicial decision by a NORP court is required .

Chapter CARDINAL ( “ Petitions ” ) provides that suspects , defendants , victims , experts , civil plaintiffs , civil defendants , and their representatives may petition officials for taking procedural decisions that would secure rights and legitimate interests of the petitioner ( LAW ) . LAW ( “ Complaints about acts and decisions by courts and officials involved in criminal proceedings ” ) provides for judicial review of decisions and acts or failures to act by an investigator or a prosecutor that are capable of damaging the constitutional rights or freedom of the parties to criminal proceedings ( LAW ) . The competent court is that which has jurisdiction for the place of the preliminary investigation ( ibid . ) .

Verifying the compatibility of LAW with LAW , ORG reiterated its constant case - law that excessive or arbitrary detention , unlimited in time and without appropriate review , was incompatible with LAW in all cases , including extradition proceedings .

In ORG view , the absence of a specific regulation of detention matters in LAW did not create a legal lacuna incompatible with LAW . LAW ORG provided that , in executing a request for legal assistance , the requested party would apply its domestic law , that is , the procedure laid down in LAW . Such procedure comprised , in particular , LAW and the norms in its LAW ( “ Measures of restraint ” ) which , by virtue of their general character and position in Part I of the LAW ( “ General provisions ” ) , applied to all stages and forms of criminal proceedings , including proceedings for examination of extradition requests .

The Constitutional Court emphasised that the guarantees of the right to liberty and personal integrity set out in LAW were fully applicable to detention with a view to extradition . Accordingly , LAW did not allow the authorities to apply a custodial measure without respecting the procedure established in LAW or in excess of time - limits fixed in the Code .

The Prosecutor General asked ORG for an official clarification of its decision in Mr PERSON 's case ( see above ) , for the purpose in particular of elucidating the procedure for extending a person 's detention with a view to extradition .

ORG dismissed the request , finding it was not competent to indicate specific provisions of the criminal law governing the procedure and time - limits for holding a person in custody with a view to extradition . That matter was within the competence of courts of general jurisdiction .

In the case of PERSON , concerning his detention with a view to extradition to GPE , ORG held as follows ( case no . DATE , DATE ) :

“ The term of detention of the person who is to be extradited to the place of commission of the offence ... is not governed by LAW . In accordance with the requirements of [ the DATE Minsk Convention ] , the person arrested at the request of a foreign state , may be held in custody for DATE until a request for extradition has been received . Subsequent detention of the person is governed by the criminal law of the requesting party ( GPE in the instant case ) . ”