CASE OF ASHINGDANE v. THE UNITED KINGDOM

No violation of Art. 5-1;No violation of Art. 5-4;No violation of Art. 6-1

ORG The applicant , Mr. PERSON , is a NORP citizen born in DATE . On DATE , he was convicted by a court at GPE , GPE , in GPE of dangerous driving and CARDINAL offences of unlawful possession of firearms . Medical evidence was submitted to the effect that he was suffering from mental illness ( paranoid schizophrenia ) and his mental disorder was of a nature or degree which warranted his detention in a psychiatric hospital . The court made a hospital order under section CARDINAL of LAW DATE ( " LAW " ) together with an order under section CARDINAL restricting his discharge without limit of time ( see paragraph CARDINAL below ) .

ORG The applicant was ( after a short period of detention in prison ) initially detained at the local psychiatric hospital , ORG , in GPE , GPE . He twice absconded from ORG and the view was taken that the facilities there were not such that he could be contained . On DATE , the applicant was therefore transferred to ORG , a " special hospital " for those requiring treatment under conditions of special security on account of their dangerous , violent or criminal propensities ( see paragraph CARDINAL in fine below ) .

ORG DATE , the applicant ’s case was considered on CARDINAL occasions by ORG ( see paragraph CARDINAL below ) , which advised on each occasion that he was not ready to be discharged or transferred . The Secretary of ORG for ORG ( " the ORG Secretary " ) , who was responsible under LAW for control of the applicant ( see paragraph CARDINAL below ) , followed their advice .

Periodic reports were also sent by his responsible medical officer to the Secretary of ORG . At his own request , he was also examined , on CARDINAL occasions during this period , by independent doctors . According to all these medical reports , the reasons for his continued detention were that he was diagnosed as suffering from paranoid schizophrenia , that his condition in ORG was controlled by medication and supervision , that he was unwilling or unable to co - operate voluntarily in such treatment and that if he were released he might be dangerous .

ORG On DATE , Dr. PERSON , a consultant forensic psychiatrist who was the applicant ’s responsible medical officer at ORG , reported that the applicant no longer posed " the threat he previously did " and might properly be treated in an open hospital . In the doctor ’s view , the probability that he would be violent had diminished to the point where it was no longer necessary to treat him in the specially secure environment of ORG , although he required continuing treatment in hospital . Dr. PERSON therefore recommended his transfer to ORG . The applicant was also examined by Dr. PERSON , a consultant psychiatrist at ORG , who confirmed this opinion .

In DATE , in accordance with the relevant regulations ( see paragraph CARDINAL below ) , the Secretary of ORG indicated his agreement with Dr. PERSON ’s recommendation . On DATE , the ORG Secretary gave his consent to the applicant ’s transfer to a local psychiatric hospital ( section CARDINAL para . ( CARDINAL)(c ) of the DATE Act - see paragraph CARDINAL below ) , provided that a suitable vacancy could be found .

ORG However , ORG , the local authority responsible for ORG , refused to admit the applicant to ORG and the Secretary of ORG refused to direct his transfer there ( section CARDINAL of the DATE Act - see paragraph CARDINAL in fine below ) . The reason for these refusals was that the CARDINAL branches of the trade union of the nursing staff at ORG ( ORG ) were , and had since DATE been , operating a total ban on the admission of offender patients subject to section CARDINAL restriction orders ( see paragraph CARDINAL below ) . The union members considered that , owing to lack of adequate resources , they could not provide sufficient treatment , rehabilitation and security for section CARDINAL patients in the open environment of ORG ( as to which , see paragraph CARDINAL below ) . The Secretary of ORG had been advised by ORG that to admit the applicant without the agreement of the nursing staff would be likely to result in a withdrawal of labour which could endanger the health and well - being of other patients and would not be in the applicant ’s own interests . They had further advised that such a step would jeopardise the prospects of obtaining agreement of the staff to the lifting of the ban and that to admit the applicant to another hospital might not only result in disruptive industrial action at that hospital , but would be likely to worsen industrial relations at ORG itself .

No suitable accommodation could be found for the applicant at any hospital other than ORG and he therefore remained at ORG .

Prior to this , ORG had made enquiries as to the need to continue the section CARDINAL restrictions in the applicant ’s case . On DATE , Dr. PERSON , as the applicant ’s responsible medical officer , stated his view that " the restrictions should not be lifted ... until PERSON [ had ] demonstrated stability and indeed improvement in the open conditions of a conventional psychiatric hospital , over a reasonable period of time " .

ORG The applicant ’s case was again considered by ORG on DATE . The ORG advised that it was essential for the applicant ’s well - being that he should remain under direct supervision to ensure that he continued to take his medication , but agreed that his condition was sufficiently improved to warrant transfer to a local hospital . On DATE , the Home Secretary reaffirmed his agreement in principle to the applicant ’s transfer . During this period , unavailing attempts were made on behalf of the local ORG to persuade the nursing staff at ORG to lift their ban on the admission of restricted patients .

ORG In the meantime , having obtained legal aid , the applicant instituted ORG proceedings in DATE to challenge the legality of his continued detention at ORG . He initially claimed various relief including :

i. ORG a declaration that ORG , which was sued as representing the Secretary of ORG , was under a statutory duty to provide him with hospital accommodation at ORG or some other appropriate local hospital ;

ii . ORG declarations that the ORG and ORG were acting ultra vires in refusing to admit him to ORG because of the union ’s ban ;

iii . a declaration that the secretaries and other members of the CARDINAL union branches at ORG were acting unlawfully in soliciting or causing the ORG and the local ORG to act in breach of their statutory duty ;

iv . ORG an injunction restraining the branch secretaries and members from so acting .

The original statement of claim was amended in DATE to include an allegation that the union members were acting unlawfully in threatening to walk out of the hospital if the applicant was brought there , and to include claims for injunctions and damages in respect of such conduct .

ORG On DATE , the action against the CARDINAL union branch secretaries , who were being sued personally and as representing the members of the branches , was stayed , on their application , by Mr. Justice PERSON on the ground that proceedings were precluded by section CARDINAL of LAW , which provided :

" CARDINAL . No person shall be liable ... to any civil ... proceedings to which he would have been liable apart from this section in respect of any act purporting to be done in pursuance of this Act ... , unless the act was done in bad faith or without reasonable care .

No civil ... proceedings shall be brought against any person in any court in respect of any such act without the leave of ORG , and the High Court shall not give leave under this section unless satisfied that there is substantial ground for the contention that the person to be proceeded against has acted in bad faith or without reasonable care .

On the application of ORG and the local ORG , an order staying the proceedings against them was granted on DATE by Mr. Justice PERSON on the same ground .

ORG The applicant appealed against both orders . On DATE , ORG unanimously ( a ) dismissed the appeal against the order of Mr. Justice PERSON relative to the GPE and ORG and ( b ) allowed the appeal against the order of Mr. Justice PERSON relative to the union secretaries .

Lord Justice Bridge delivered the first judgment . He noted that no leave had been sought of ORG and that there was no allegation of bad faith or of acting without reasonable care against any of the defendants . The issue was therefore whether or not the acts out of which liability was alleged to arise came within the ambit of the immunity from suit conferred by sub - section CARDINAL of section CARDINAL , as being acts done in the purported pursuance of LAW .

( a ) ORG As regards the first appeal , Lord FAC , dismissing Mr. PERSON ’s main contention , stated that where a statutory authority was acting in good faith in what it believed to be the proper manner of discharging its statutory responsibilities , the fact that it may have been acting in a way which contravened the statute to the point of frustrating its policy and objects , could not lead to the conclusion that the original acts in good faith were not in purported pursuance of the LAW . Section CARDINAL(CARDINAL ) of LAW propounded a subjective not an objective test : " if a person is acting honestly with the intention of performing , in the best way he knows how , the statutory functions or duties which are cast upon him , then it seems to me he is acting in purported pursuance of the statute " . Although Mr. PERSON alleged a breach of statutory duty under LAW DATE to provide hospital accommodation to meet all reasonable requirements ( see paragraph CARDINAL below ) , the essential act out of which liability was said to arise was the refusal of transfer , which fell within the protection of section CARDINAL . Applying the case of ORG v. PERSON ( [ DATE ] Appeal Cases CARDINAL and [ DATE ] CARDINAL All England Law Reports CARDINAL ) , he further held that " section CARDINAL does not create a personal immunity which is capable of being waived but imposes a fetter on the ORG ’s jurisdiction which is not so capable " . For these reasons , Lord FAC , with whom Lords Justice Cumming - PERSON and PERSON concurred , was in favour of dismissing the appeal .

( b ) ORG As to the action against the union branch secretaries , Lord FAC , after considering the judgment in the case of ORG v. PERSON ( ibid . ) , held that a decision by nursing staff to ban the admission of a whole class of patients , even if taken in the best of faith , was not within the express or implied authority of nurses under LAW . Nurses did not have authority under LAW to take decisions of broad policy . Consequently , the acts of the union secretaries were not protected by LAW and the stay imposed by Mr. Justice PERSON on the action against them should therefore be removed . Lords Justice Cumming - PERSON and PERSON agreed with this conclusion .

ORG refused the parties leave to appeal to ORG . The union secretaries petitioned ORG for leave but this was refused on DATE . The proceedings against them were ultimately discontinued ( see paragraph CARDINAL below ) .

During the course of the litigation referred to above , reports on the applicant ’s condition were made on various occasions . Thus , on DATE , Dr. PERSON wrote :

" i. It is my opinion that transfer from ORG for further treatment and rehabilitation in a local psychiatric hospital is an essential step in the plaintiff ’s ( i.e. Mr. PERSON ’s ) recovery .

ii . The disappointment at his rejection by ORG has made him tense and irritable . But more seriously , CARDINAL of his former delusional beliefs was to the effect that hospital authorities were persecuting him by continuing to detain him illegally . This delusion cleared when he gained some measure of insight . I fear that continued undue detention here will reactivate this to delusional intensity again and thus precipitate full - scale relapse .

iii . His present mental condition remains reasonably stable and in my opinion he is suitable for transfer to ORG . "

In DATE , the applicant was again examined by Dr. PERSON of ORG . In his report dated DATE , Dr. PERSON confirmed that the diagnosis of paranoid schizophrenia remained unchanged . He had the impression there had been a slight deterioration in the applicant ’s mental condition over DATE . He expressed the following opinion as to Mr. PERSON ’s condition :

" Although not overtly psychotic this man remains paranoid and I feel that his continued detention in ORG is having an adverse effect on his mental health , i.e. it is making him even more paranoid . His drawn - out involvement with ORG can only aggravate this paranoia and further constrict his outlook . "

Dr. PERSON recommended that the applicant was not fit to return to the community but that it should be possible to manage him in an ordinary psychiatric hospital with a closed ward . It was unlikely that he would have to remain in such a closed ward for DATE . The doctor was satisfied that he could be managed at ORG .

ORG Until DATE , ORG continued to advise that they were unable to admit the applicant to ORG because of the union ban on admission of section CARDINAL patients . However , on DATE they stated that an agreement with the union had been reached enabling him to be admitted there . The solution reached involved the recruitment of extra staff in order to service the facilities needed for nursing a restricted patient .

ORG On DATE , Dr. PERSON reported again that the applicant ’s proper rehabilitation continued to necessitate in - patient treatment due to his " lack of insight and long institutionalisation " . In the doctor ’s opinion , continued detention was " necessary in the interests of the patient ’s health or safety and for the protection of other persons " .

ORG The Home Secretary and the Secretary of ORG both consented to the applicant ’s transfer and he was admitted to ORG on DATE . Shortly thereafter , on the advice of his lawyers , his action against the union branch secretaries was discontinued .

In a letter of DATE , Dr. PERSON explained that , despite his earlier fears ( see paragraph CARDINAL above ) , " the applicant did remain reasonably stable during the relevant time " prior to transfer .

ORG The differences between the CARDINAL regimes and environments at ORG and ORG as experienced by the applicant may be summarised as follows .

Security is a major concern at ORG . The hospital buildings and grounds are surrounded by a high perimeter wall with a locked gate . Each of the several blocks in the hospital is locked all the time , frequently there is further security within the block and windows are barred . No patient moves beyond his ward without an escort unless he is paroled . The applicant never achieved paroled status . He worked in the kitchen gardens and during DATE he had the relative freedom of this large , open area . Escorted visits to the community or to members of a patient ’s family are effectively allowed only in exceptional compassionate circumstances and tend to be rare , not least because there are insufficient staff to undertake escort duties . During his stay at ORG DATE , the applicant made CARDINAL escorted visit to his mother and CARDINAL to the neighbourhood of the hospital . Because of its relatively remote location and difficult communications , the possibility of visits to ORG by members of the patient ’s family is limited . Moreover , such visits , at least in the time that the applicant was detained at ORG , were rarely private .

Ordinary psychiatric hospitals such as ORG house both voluntary and involuntary patients and no appreciable distinction is made in their regimes . Situated within the town of GPE , ORG is easily reached by public transport . There is no surrounding wall and neither the main entrance nor the reception area is locked . As Dr. PERSON had recommended ( see paragraph CARDINAL above ) , the applicant was at first placed in a closed ward for CARDINAL patients , male and female , which was locked , at least at TIME . There was no special security but a high staff / patient ratio . The work available to him at ORG during this initial period , although similar to that at ORG , was subject to less and eventually to no supervision . With effect from DATE , he was allowed freedom , unescorted , in the hospital grounds for TIME a day . In DATE , he was moved to an open ward . Since then , regular , unescorted leave to visit his family has become a feature of his life at ORG . As at DATE , he was going home DATE from DATE till DATE and was free to leave the hospital as he pleased on DATE , provided only that he returned to his ward at TIME .

ORG At the material time in GPE and GPE , the law relating to the compulsory confinement of mentally disordered persons , and more particularly the detention of patients concerned in criminal proceedings , was contained principally in LAW . The greater part of this LAW was repealed and replaced in DATE by LAW DATE ( " LAW " - see , for example , paragraphs CARDINAL and CARDINAL below ) .

Various general provisions are also contained in ORG DATE ( " LAW " ) . Thus , section CARDINAL imposes a duty on the Secretary of ORG to provide hospital accommodation throughout GPE and GPE , " to such extent as he considers necessary to meet all reasonable requirements " . By virtue of section CARDINAL , he is under a further duty to provide and maintain " special hospitals " for those mental health patients subject to detention " who in his opinion require treatment under conditions of special security on account of their dangerous , violent or criminal propensities " .

Section CARDINAL(CARDINAL ) of the DATE Act empowered criminal courts to direct , where appropriate , that a person convicted of an offence be dealt with by way of medical treatment rather than by way of punishment . By virtue of this section , a criminal court could , subject to certain conditions regarding in particular medical evidence , make an order ( a " hospital order " ) authorising the convicted person ’s compulsory admission to and detention in a mental hospital ( see , for fuller details , the X v. the GPE judgment of CARDINAL DATE , Series A no . CARDINAL , p. CARDINAL , para . CARDINAL ) . Under section CARDINAL ) of LAW , the court could by further order ( a " restriction order " ) direct that the hospital order be subject to special restrictions in respect of discharge , either without limit of time or during a specified period . Before a restriction order could be made , it had to appear to the court , having regard to the nature of the offence , the antecedents of the offender and the risk of his committing further offences if set at large , that such a measure was necessary for the protection of the public . Where a restriction order was made , responsibility for control of the patient , though not for his treatment , vested in the Home Secretary .

ORG The transfer of mental health patients from CARDINAL hospital to another is the responsibility of the hospital managers , this being in the case of special hospitals the Secretary of ORG .

At the material time , the Secretary of ORG could authorise transfer of an offender patient from a special hospital if he were satisfied that arrangements had been made for admission to the hospital of transfer within DATE ( section CARDINAL of LAW of ORG DATE ) . As far as restricted patients ( that is , patients subject to a restriction order ) were concerned , this power to transfer was exercisable only with the consent of the Home Secretary ( section CARDINAL(CARDINAL)(c ) of the DATE Act ) .

However , section CARDINAL of the DATE Act conferred a further power on the Secretary of ORG to direct transfer from a special hospital without being satisfied that the above - mentioned arrangements had been made .

ORG In practice , according to CARDINAL reports ( interim report of DATE of ORG under the Chairmanship of Lord PERSON and the special hospitals research report no . DATE by PERSON , funded by ORG ) , special hospitals have for DATE been experiencing increasing difficulties in transferring to ordinary psychiatric hospitals patients no longer considered to be dangerous . The main reasons given by ordinary hospitals for not taking such patients on transfer were lack of room , the patient ’s characteristics , nursing - staff refusal and lack of suitable facilities , in particular lack of a secure unit or closed ward .

Periodic review of a restricted patient ’s case may be made by ORG , which at the material time had the function of advising the Home Secretary on the suitability of further detention and treatment ( section CARDINAL ) and ( CARDINAL ) of the DATE Act - see , for further details , the above - mentioned X v. the GPE judgment , Series A no . DATE , p. CARDINAL , paras . CARDINAL - CARDINAL ) . The legal position and authority of ORG have been substantially altered by LAW , the relevant sections of which came into force on DATE . In particular , by virtue of section CARDINAL of the DATE LAW now have the power in appropriate circumstances to direct the absolute or conditional discharge of restricted patients .

ORG Under the LANGUAGE law of torts , that is private civil wrongs , " the breach of a statute may give rise to an action , commonly spoken of as an action for breach of statutory duty " ( Clerk and PERSON on ORG , CARDINALth edition , DATE , para . CARDINAL , p. CARDINAL ) . However , this is only so if the statute created in the individual concerned an interest which was intended by ORG to be protected by an action in tort ; and one has to look at the statute in question to determine the types of conduct ( whether intentional , negligent or accidental ) in respect of which the interest of the individual is to be protected .

The entitlement of patients confined under LAW to bring civil proceedings in connection with their detention was subject to the conditions and immunity laid down in section CARDINAL ( see paragraph CARDINAL above ) .

This provision has been replaced by section CARDINAL of LAW , which section came into force on DATE , that is , subsequent to the particular facts of the present case . As from this date , the position has been that proceedings against the Secretary of ORG or against ORG are excluded from the protection from suit afforded by the section . In other cases , the requirement that a person seeking leave to bring civil proceedings should have to satisfy the judge of there being " substantial ground " for the allegation of bad faith or negligence has been removed and what remains is the sole requirement that leave should be sought .


Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

The applicant , Mr PERSON , is a NORP citizen of NORP origin who was born in DATE and lives in GPE . He was represented before the ORG by Mr PERSON and PERSON , lawyers practising in Ivanić Grad . ORG ( “ the Government ” ) were represented by their Agent , PERSON .

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

On DATE the applicant reported to the police that on that same day at TIME he had had a fight with a certain ORG and that ORG had fired CARDINAL shots . Several other individuals had joined ORG and together they had hit and kicked the applicant who , according to the medical documentation submitted , suffered grave injuries such as concussion , a broken nose , lacerations to his head and broken teeth . On DATE the police lodged a criminal complaint with the Zagreb State Attorney ’s Office .

The Government submitted that on DATE the competent ORG had dropped the charges and that the case file had meanwhile been destroyed .

The applicant submitted that he had never been informed of the said decision to drop the charges .

On DATE the applicant lodged a criminal complaint against GPE and ORG , alleging that at DATE K.G. had threatened to kill him and that in DATE both GPE and ORG had threatened to kill him . On DATE he lodged a further complaint stating that on DATE GPE had said in front of CARDINAL GPE that he would kill the applicant .

On DATE the NORP State Attorney ’s Office ordered the police to collect information in relation to the applicant ’s allegations . In their report of DATE the police informed the ORG Attorney ’s ORG that they had interviewed the applicant and CARDINAL witnesses . On DATE the ORG Attorney ’s ORG ordered the police to interview ORG and GPE On DATE the police submitted a report and enclosed the record of the interviews with the alleged perpetrators .

On DATE the ORG Attorney ’s ORG requested an investigating judge of ORG ( istražni sudac ORG ) to hear evidence from the perpetrators . The investigating judge heard their evidence on DATE and CARDINAL DATE respectively .

On DATE the ORG Attorney ’s ORG indicted ORG and GPE in ORG ( PERSON ) on charges of uttering threats against the applicant . Hearings before that court were held on DATE and DATE , QUANTITY DATE , DATE and DATE . The court heard evidence from CARDINAL witnesses and the defendants and on the last - mentioned date gave a judgment acquitting GPE for lack of evidence . ORG was found guilty of making death threats to the applicant and was given a suspended sentence of CARDINAL months’ imprisonment with a probation period of DATE . The ORG Attorney lodged an appeal which was dismissed by ORG on DATE .

On DATE the applicant lodged a criminal complaint against ORG , alleging that at TIME on that same day PERSON had threatened to kill him , telling him that he was a “ newcomer ” and a “ shiptar ” , a derogatory term for persons of NORP origin . He had also warned the applicant that he had “ warrior experience ” and “ was in the war ” .

On DATE the NORP State Attorney ’s ORG requested an investigating judge of ORG to hear evidence from the defendant and the applicant . The investigating judge heard their evidence on DATE and DATE respectively .

On DATE the NORP State Attorney ’s Office indicted GPE in ORG on the charge of making death threats to the applicant . The factual basis of the offence as described in the indictment reads :

“ ... that on DATE in GPE , ... , with the intention of scaring him , [ ORG ] told PERSON that he had “ war experience ” , that he had participated in the Homeland War , that he knew how to kill and that he was going to kill him and that he had no rights as an NORP because this was GPE and he was a NORP , which caused PERSON to fear for his personal safety ”

After the indictment , the Zabok State Attorney ’s ORG took over the prosecution . ORG held hearings on DATE , CARDINAL July , CARDINAL DATE , DATE and DATE and on DATE . It heard evidence from CARDINAL witnesses , the defendant and the applicant .

On DATE the GPE Attorney ’s Office informed ORG that it no longer wished to continue the prosecution of ORG on the grounds that the evidence of the witnesses heard had not shown that PERSON had seriously threatened to kill the applicant . Accordingly , on DATE ORG terminated the proceedings because ORG had dropped the charges . The applicant was informed that he could take over the prosecution within DATE of the date on which the decision was served on him . He did not pursue the prosecution nor did he appeal against the decision to terminate the proceedings .

On DATE the applicant lodged a criminal complaint against ORG , alleging that on DATE at TIME he had met ORG in the street . ORG had made a gesture as if he were going to pull a gun on the applicant , saying that he was going to kill him .

On DATE the ORG Attorney ’s Office ordered the police to collect information about the applicant ’s allegations . The police submitted their report on DATE .

On DATE the ORG Attorney ’s office indicted FAC in ORG on the charge of threatening behaviour against the applicant . These proceedings are currently pending .

The relevant provisions of LAW ( Zakon o kaznenom postupku , ORG nos . CARDINAL/CARDINAL , DATE , CARDINAL , CARDINAL , CARDINAL and CARDINAL ) provide as follows :

“ ( CARDINAL ) Criminal proceedings shall be instituted and conducted at the request of a qualified prosecutor only . ...

( CARDINAL ) In respect of criminal offences subject to public prosecution the qualified prosecutor shall be the ORG Attorney and in respect of criminal offences to be prosecuted privately the qualified prosecutor shall be a private prosecutor .

( CARDINAL ) Unless otherwise provided by law , the ORG Attorney shall undertake a criminal prosecution where there is a reasonable suspicion that an identified person has committed a criminal offence subject to public prosecution and where there are no legal impediments to the prosecution of that person .

( CARDINAL ) Where the ORG Attorney finds that there are no grounds to institute or conduct criminal proceedings , the injured party as a subsidiary prosecutor may take his place under the conditions prescribed by this LAW . ”


The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . The respondent Government are represented by their agent , Mr PERSON , of ORG , GPE .

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

The applicant ’s grandfather made a will in DATE ( and a codicil in DATE ) in which he left his residuary estate ( after payment of certain annuities ) on trust for his children in varying shares in the first place and , after they died , for their children . If a branch failed , the estate was to pass to the other branches . The grandfather died in DATE .

The applicant ’s grandfather had CARDINAL children . The oldest was the applicant ’s father , born in DATE . The second oldest , born in DATE , died in DATE without issue . The third child , the only daughter , was born in DATE and the youngest child was born in DATE .

In DATE , the youngest son married PERSON . CARDINAL children were born .

In DATE PERSON ( nee Bray ) left her husband and went , with the CARDINAL children , to live with his brother , the oldest son . The applicant was born to DATE . In DATE the applicant ’s mother died , and in DATE the applicant was adopted by his father .

In DATE , the applicant ’s grandfather ’s daughter died without issue .

The applicant ’s father died in DATE , providing in his will that all of his estate passed to his son , the applicant . He was entitled at his death to a CARDINAL share of the income from his father ’s estate .

The applicant claimed , in ORG , to be entitled to his father ’s CARDINAL share of the income . The executors considered that he was not entitled to any share because , as he was illegitimate , he could not inherit as a “ child ” of his father under the DATE will and codicil .

On DATE in ORG of ORG , Judge PERSON found that the applicant was not entitled to take any share under his grandfather ’s will . He found that it was a well - established principle that a gift to a child or children was , apart from statute , to be construed as a gift to legitimate children unless it was possible to find a contrary intention in the will . Sections CARDINAL and CARDINAL(CARDINAL)(b ) of LAW DATE , which improve the position of illegitimate children ( including in the interpretation of wills ) , only apply to events after DATE , and so could not assist the applicant . Other statutes , which dealt with the effect of legitimation where a child ’s parents married after he was born , did not assist the applicant as the applicant ’s parents never married .

LAW , which was in force at the time of the applicant ’s grandfather ’s will and codicil ( DATE and DATE ) provided that adoption did not confer any right to or interest in property as a child of the adopter , unless a contrary intention appeared in any disposition such as a will . There was no contrary intention and so at the date of death adopted children could not benefit under the will . Again , later amendments to the law were of no help to the applicant because they only applied prospectively .

Finally , Judge PERSON considered the points raised by the applicant in connection with the Convention . He noted that LAW Protocol No . CARDINAL applied only to existing possessions , but that the applicant had never been entitled to any of his grandfather ’s estate . He also noted that the litigation was between private individuals , where the cases of ORG and Inze had both involved claims against the ORG . Finally , he recalled that the legislation relating to adoption and illegitimacy had been changed so that there was now no discrimination on grounds of adoption or illegitimacy save in cases where the will was made before the relevant date . The applicant ’s criticism was therefore criticism that the amending legislation was not retrospective so as to affect the interpretation of existing instruments . He considered that there were sound reasons , such as the need for legal certainty , for not making such legislation retrospective . He thus agreed with the applicant that the effect of the rules as to legitimacy and adoption in a case where the will was made in DATE discriminated against him as an illegitimate son of his father , but he did not consider that the position was altered by LAW DATE .

Judge PERSON therefore concluded that the applicant was not a legitimate child of his grandfather within the meaning of his grandfather ’s will , and that the disputed share of the estate passed to the applicant ’s grandfather ’s youngest son . He also refused leave to appeal , but , according to the Government , extended the time for appealing .

On DATE , after the time limit for appealing had expired , the applicant filed an applicant ’s notice with ORG , seeking an extension of the time for filing a notice . On DATE he sought a further lengthy extension of time in which to lodge a bundle of documents and generally to progress his application . An extension was granted to CARDINAL DATE . On DATE the applicant wrote to ORG , explaining that he would be unable to comply with the deadline as he had gone to GPE . He indicated that he wished to withdraw his application and sought a refund of his fee . He was sent “ dismissal with consent ” forms to complete and return , and was told that if the defects in his bundle were not remedied by DATE , his application would be dismissed unless he provided a sufficient reason . Nothing more was heard from the applicant , and on DATE the application was dismissed for failure to complete the dismissal with consent forms , and for failure to progress the case within ORG .

On DATE , the applicant sought permission to reinstate , and ORG ) dismissed the application after a hearing on DATE . Lord Justice PERSON noted that the effect of reinstatement would be to grant an extension of time of over a year , and he could see no grounds for granting such a substantial extension . Time limits were there to be complied with unless there were good reasons for failing to do so , and the applicant had shown no good reasons . Lord Justice PERSON also referred to the applicant ’s reliance on the DATE period for bringing proceedings under section CARDINAL of LAW . However , the action before the court was not a proceeding under sections DATE CARDINAL of that LAW , and the CARDINAL-month period had no application . Lord Justice PERSON did not accept the applicant ’s submissions that it was not his fault that he was so substantially out of time , and refused to reinstate the earlier application which had been struck out . The judge mentioned in passing that he considered that the proposed appeal had no real prospect of success , and indeed that the judge ’s conclusions as to the effect of LANGUAGE statute law were plainly right . He underlined , however , that the application was dismissed for failure to provide good reason for the substantial delay .

LAW DATE , which entered into force on DATE , provides as follows :

“ CARDINAL . ( CARDINAL ) A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any-

( a ) judgment ... of ORG ...

... so far as , in the opinion of the court or tribunal , it is relevant to the proceedings in which that question has arisen ...

ORG ( CARDINAL ) So far as possible , primary legislation and subordinate legislation must be read and given effect in a way which is compatible with Convention rights .

( CARDINAL ) This section-

( a ) applies to primary legislation and subordinate legislation whenever enacted ;

( b ) does not affect the validity , continuing operation or enforcement of any incompatible primary legislation ...

ORG ( CARDINAL ) Subsection ( CARDINAL ) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right .

( CARDINAL ) If the court is satisfied that the provision is incompatible with a Convention right , it may make a declaration of that incompatibility ..

( CARDINAL ) A declaration under this section ... -

( a ) does not affect the validity , continuing operation or enforcement of the provision in respect of which it is given ; and

( b ) is not binding on the parties to the proceedings in which it is made . ”

In ORG and others v. Secretary of ORG ( [ DATE ] ORG CARDINAL ) , ORG considered that the ORG power to make a declaration of incompatibility in respect of legislation only arose where it was not possible to give effect to the statute in a manner compatible with the Convention . Further , ORG had not intended section CARDINAL ( CARDINAL ) of LAW DATE to have the effect of altering the existing rights and obligations of parties to an agreement made before the section entered into force .


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

A report about the applicant , the leader of ORG ( a community describing itself as an NORP sect ) , entitled “ They came with bombs , they will leave with bombs ” ( “ Bombayla geldiler , bombayla gidecekler ” ) was published in DATE issues of PERSON ( “ FAC ) , a DATE newspaper with radical NORP leanings .

On DATE the public prosecutor at ORG charged the applicant with incitement to commit an offence , within the meaning of LAW , and with insulting the memory of GPE , under PERSON no . DATE , which protects the memory of GPE .

In a judgment of DATE , ORG acquitted the applicant of insulting the memory of PERSON , holding that his comments on Kemalism in the report in question amounted to criticism that could not be treated as an insult to the memory of PERSON .

However , it sentenced him to DATE imprisonment for incitement to commit an offence . In support of that decision , it cited the following comments by the applicant that had appeared in the report :

“ These people [ moderate NORP intellectuals ] have no strength left ... Now they have come up with ORG [ an NORP intellectual known for his moderate views ] ... Allah has blocked their water supply ... CARDINAL of NORP , among those not engaged in the struggle , regard ORG as someone important ... Now their teeth and nails have been ripped out , their hair has fallen out , they have been dethroned . They are still trying , but in vain , to preserve their greatness and , in doing so , provide a rather comic image of a monster ... like a hollow statue ... which , as soon as it is touched or set in motion ( in the event of an attack ) , will show that it no longer has the strength to do anything ... Indeed , this has already been seen ... All that is needed now is for CARDINAL brave man among the NORP to plant a dagger in their soft underbelly and run them through twice with a bayonet to show just how empty they are . They no longer have anything else to sustain them . There is nothing else left ... ”

The court held that the applicant 's statement “ All that is needed now is for CARDINAL brave man among the NORP to plant a dagger in their soft underbelly and run them through twice with a bayonet to show just how empty they are ... There is nothing else left ... ” in the account of his opinions about ORG amounted to public incitement to commit an offence . It considered that in the instant case the right to impart information and to engage in criticism could not be relied on and that publication of the statements in question had not served any public interest . In conclusion , it held that the legal rules governing the exercise of the right to impart information had not been complied with .

The applicant , submitting that his conviction had infringed his freedom of thought and expression , appealed on points of law on DATE .

On DATE ORG dismissed his appeal and upheld the judgment at first instance .

In the meantime , on DATE , ORG had sentenced the applicant to DATE imprisonment and a fine of MONEY , holding that the comments made by him in the report in question ( reference was made to other passages in the report , in which he had asserted that secularists and PERSON were infidels and enemies of NORP and should do penance to save their lives ) amounted to incitement to religious hatred . That decision was upheld by ORG on DATE .

Article CARDINAL § CARDINAL of LAW provides :

“ Public incitement to commit an offence

Anyone who publicly incites another to commit an offence shall be liable :

( CARDINAL ) ...

( CARDINAL ) to a penalty of DATE imprisonment , depending on the nature of the offence and the sentence it carries , whether long - term imprisonment or a shorter custodial sentence ...

Where incitement to commit an offence is done by means of mass communication , of whatever type – tape recordings , gramophone records , newspapers , press publications or other published material DATE by the circulation or distribution of printed papers or by the placing of placards or posters in public places , the terms of imprisonment to which convicted persons are liable shall be doubled ... ”

Under the criminal law , while the ordinary criminal courts have jurisdiction in cases concerning public incitement to commit an offence , within the meaning of LAW , only the national security courts have jurisdiction to try the offences referred to in LAW , which prohibits incitement to religious hatred .

The relevant part of section CARDINAL(CARDINAL ) of LAW ( Law no . CARDINAL of DATE ) provides :

“ ... persons who ... have been ordered to serve a custodial sentence shall be granted automatic parole when they have served CARDINAL of their sentence , provided they have been of good conduct ... ”