CASE OF R.K. AND A.K. v. THE UNITED KINGDOM

No violation of Art. 8;Violation of Art. 13;Non-pecuniary damage - award

David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä

The applicants , GPE nationals and husband and wife , were born in DATE and DATE respectively , and live in GPE .

The applicants had a daughter PERSON born on DATE .

On DATE , PERSON screamed with pain when picked up by the maternal grandmother . The parents and grandmother took PERSON to the hospital . The triage nurse made a note of information given by the family . That note stated that the mother , rather than the grandmother , had “ yanked ” M.

An X - ray showed a displaced slightly - comminuted fracture of the midshaft of the femur . While it was noted that there was no history of metabolic bone disease in the family , it was not noted that the parents were first cousins , an incident relevant to a possible genetic condition . Neither the mother nor grandmother spoke much LANGUAGE ; no PERSON interpreter was provided . A consultant paediatrician , PERSON , interviewed the parents and grandmother early in the morning DATE , again without an interpreter . He noted that none of them appeared to know how the injury had occurred . He concluded that it was an inflicted injury and told the parents this .

The police were informed . The parents were interviewed on DATE by a social worker . He was unable to communicate with the mother due to language difficulties .

On DATE the health visitor for the family was interviewed and stated that she had had no concerns about the family .

NORP On DATE the police interviewed the parents with an interpreter present .

On DATE , a social worker interviewed the family again and indicated that medical opinion was clear that PERSON could not have been injured by being picked up in the manner described by the grandmother . She warned that without a convincing explanation for the injury a child protection conference would have to be called .

On DATE , in light of the doctor ’s conclusion of non - accidental injury ( ORG ) , ORG decided to seek a second opinion but that meanwhile an interim care order should be obtained . Such care order was issued and parental responsibility given to the local authority on DATE .

On DATE , PERSON was discharged from hospital into the care of her aunt . The parents were allowed supervised contact .

The parents obtained legal advice and jointly instructed an expert , with PERSON ’s guardian , inter alia , to clarify whether tests had been carried out to exclude brittle bone disease . However no further tests were carried out at this stage .

On DATE , ORG judge found that the mother and grandmother were liars and knew more about the injury than they were prepared to reveal ( they had given evidence through an interpreter which they allege was suspect ) and that as the father was convinced of the innocence of his wife , he was disqualified as a person capable of protecting PERSON ordered PERSON to be placed in care . PERSON remained with her aunt who lived QUANTITY from the family home .

On DATE , PERSON sustained a second injury in her aunt ’s care . Bilateral femoral fractures were found and following further tests she was diagnosed with osteogenesis imperfecta ( “ OI ” , commonly known as brittle bone disease ) . Professor PERSON and Dr PERSON were consulted at this time by PERSON and inter alia did not find any ground for reaching a diagnosis of OI in preference to a non - accidental injury at the time of the first injury .

After discharge from hospital , PERSON returned home in DATE .

On DATE , the care order was discharged and PERSON returned to her parents . In her report to the court dated DATE , PERSON ’s guardian ad litem noted , inter alia , that this had been a particularly perplexing case , in which a diagnosis of non - accidental injury in respect of the first injury had appeared to be the most likely explanation while not fitting with the other information , essentially positive , which had emerged about the family . She also noted that all the experts agreed that medical evidence available to the court at the time of the interim care order was as complete as it could be at that time and that a diagnosis of bone disorder could not have been made at the time of the first injury .

The entire local community were aware that the family had been suspected of harming PERSON and the family had been extremely shocked and shamed . Rumours had spread to GPE that the mother had been put in prison . The GPE relationship with PERSON and with the grandmother were severely affected and disrupted as a result of events .

On DATE the parents brought claims for negligence and breach of their Article CARDINAL rights against the hospital trust and the consultant paediatrician .

On DATE , ORG found no duty of care was owed to the parents and that LAW DATE ( “ HRA DATE ” ) did not apply to events before it came into force on DATE . The parents appealed .

Leave to appeal to ORG was granted . CARDINAL other cases raising similar issues were considered at the same time .

On DATE , concerning the GPE claims in the CARDINAL cases , ORG held as regards allegations under LAW that no violation of this provision was involved , referring to GPE judgments ( PERSON and Others v. GPE ( [ ORG ] , no . CARDINAL , ORG CARDINALV and ORG and PERSON v. GPE ( [ ORG ] , no . CARDINAL , ORG CARDINALV ) . It found that while domestic law now recognised that there was a duty of care in relation to children , whose best interests were always paramount , there was a potential conflict of interest between the child and the parents , as it would always be in the GPE best interests for the child not to be removed . Where consideration was being given to whether child abuse justified measures , a duty of care could be owed to the child but not to the parents . It upheld the rulings of the various ORG judges as a result .

After a hearing on DATE and CARDINAL and DATE , ORG gave judgment on DATE . They affirmed the orders made by the first - instance judges and ORG . Lord PERSON , in his judgment with which the majority agreed , found inter alia :

" DATE . There are CARDINAL cardinal features in these cases . CARDINAL feature is that a parent was suspected of having deliberately harmed his or her own child or having fabricated the child ’s medical condition . The other feature , which is to be assumed , is that the ensuing investigation by the doctors was conducted negligently . In consequence , the suspected parent ’s life was disrupted , to a greater or lesser extent , and the suspected parent suffered psychiatric injury .

It is the combination of these features which creates the difficult problem now before the ORG . In the ordinary course the interests of parent and child are congruent . This is not so where a parent wilfully harms his child . Then the parent is knowingly acting directly contrary to his parental responsibilities and to the best interests of his child . So the liability of doctors and social workers in these cases calls into consideration CARDINAL countervailing interests , each of high social importance : the need to safeguard children from abuse by their own parents , and the need to protect parents from unnecessary interference with their family life .

The first of these interests involves protection of children as the victims of crime . Child abuse is criminal conduct of a particularly reprehensible character : children are highly vulnerable members of society . Child abuse is also a form of criminal conduct peculiarly hard to combat , because its existence is difficult to discover . Babies and young children are unable to complain , older children too frightened . If the source of the abuse is the parent , the child is at risk from his primary and natural protector within the privacy of his home . This both increases the risk of abuse and means that investigation necessitates intrusion into highly sensitive areas of family life , with the added complication that the parent who is responsible for the abuse will give a false account of the child ’s history .

The other , countervailing interest is the deep interest of the parent in his or her family life . ... Interference with family life requires cogent justification , for the sake of children and parents alike . So public authorities , should , so far as possible , cooperate with the parents when making decisions about their children . Public authorities should disclose matters relied upon by them as justifying interference with family life . Parents should be involved in the decision - making process to whatever extent is appropriate to protect their interests adequately .

The question raised by these appeals is how these countervailing interests are best balanced when a parent is wrongly suspected of having abused his child . Public confidence in the child protection system can only be maintained if a proper balance is struck , avoiding unnecessary intrusion in families while protecting children at risk of significant harm ... Clearly health professionals must act in good faith . They must not act recklessly , that is without caring whether an allegation of abuse is well - founded or not . Acting recklessly is not acting in good faith . But are health professionals liable to the suspected parents if they fall short of the standard of skill and care expected of any reasonable professional in the circumstances ? Are they exposed to claims by the parents for professional negligence ? ...

In considering these questions the starting point is to note that in each of these CARDINAL cases ... the doctors acted properly in considering whether the claimant parents had deliberately inflicted injury on the child in question . The doctors were entitled , indeed bound to consider this possibility . Further , having become suspicious , the doctors rightly communicated their suspicions to the statutory services responsible for child protection . That is the essential next step in child protection ...

DATE . In each case the suspected parent was eventually cleared of suspicion . In CARDINAL case this was after DATE , in the other cases after much longer periods . The second point to note is that , essentially , the GPE complaints related to the periods for which they remained under suspicion . In each case the parent ’s complaint concerns the conduct of the clinical investigation during these periods ; the investigation , it is said , was unnecessarily protracted . The doctors failed to carry out the necessary tests with appropriate expedition . Had due care and skill been realised from the outset , the ORG suspicions would have been allayed at once or much more speedily than occurred , and , in consequence , the parents would have been spared the trauma to which they were subjected . Thus the essence of the claims is that the health professionals responsible for protecting a suspected child victim owe a person suspected of having committed a crime against the child a duty to investigate their suspicions , a duty sounding in damages if they act in good faith but carelessly .

Stated in this broad form , this is a surprising proposition . In this area of the law , concerned with the reporting and investigation of suspected crime , the balancing point between the public interest and the interest of a suspected individual has long been the presence or absence of good faith ...

DATE . This background accords ill with the submission that those responsible for the protection of a child against criminal conduct owe suspected perpetrators the duty suggested . The existence of such a duty would fundamentally alter the balance in this area of the law . It would mean that if a parent suspected that a babysitter or a teacher at a nursery or school might have been responsible for abusing her child , the doctor would owe a duty of care to the suspect ...

CARDINAL ... < Counsel > did not contend for such a broad proposition ... His submission was more restricted .... That the health professionals’ duty to exercise due professional skill and care is owed only to the child ’s primary carers , usually the parents , as well as the child himself . ...

My initial difficulty ... is that the distinction between primary carers , to whom the duty would be owed , and other suspects to whom it would not , is not altogether convincing . It is difficult to see why , if a health professional owes no duty to a childminder or teacher suspected of abuse , he should nonetheless owe such a duty to a parent suspected of abuse . An erroneous suspicion that a childminder or school teacher had been abusing a child in his or her care can be very damaging to him or her . ...

There is , however , CARDINAL major difference between parents and childminders or school teachers , . In the case of a parent suspicion may disrupt the parent ’s family life . ... So the crucial question ... is whether this potential disruption of family life tilts the balance in favour of imposing liability in negligence where abuse by a parent is erroneously suspected ...

In my view the Court of Appeal reached the right conclusion on the issue ... Ultimately the factor which persuaded me that , at common law , interference with family life does not justify according a suspected parent a higher level of protection than other suspected perpetrators is the factor conveniently labelled ‘ conflict of interest’ . A doctor is obliged to act in the best interests of his patient . In these cases the child is his patient . The doctor is charged with the protection of the child , not with the protection of the parent . The best interests of a child and his parent normally march hand - in - hand . But when considering whether something does not feel ‘ quite right’ , a doctor must be able to act single - mindedly in the interests of the child . He ought not have to have at the back of his mind an awareness that if his doubts about intentional injury or sexual abuse prove unfounded he may be exposed to claims by a distressed parent .

... the seriousness of child abuse as a social problem demands that health professionals , acting in good faith in what they believe are the best interests of the child , should not be subject to potentially conflicting duties when deciding whether a child may have been abused , or when deciding whether their doubts should be communicated to others , or when deciding what further investigatory or protective steps should be taken . The duty to the child in making these decisions should not be clouded by imposing a conflicting duty in favour of parents or others suspected of having abused the child . ... "


The applicant , PERSON , is a NORP national , who was born in DATE and lives in PERSON .

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

The applicant ’s real property situated in GPE was damaged on several occasions . The applicant considers that this was due to the fact that she had sold CARDINAL of her houses to a Romany family and that the local inhabitants were opposed to that family settling down in the village . In the beginning of DATE proceedings under LAW were brought against a person on the ground that he had used electric power from the connection to the applicant ’s house in GPE .

On DATE a masked man wearing gloves attacked the applicant with a club in her apartment in FAC . The applicant was seriously injured . Immediately after the attack she telephoned the police and asked for assistance .

Subsequently the applicant was brought to a hospital . The doctors diagnosed fractures of her jaw , forearm and shinbone as well as numerous contusions . The applicant had to undergo several operations . As a result of the injuries , the applicant had to stop working and she was granted a disability pension .

While she was treated in the hospital in ORG , the applicant twice telephoned the police and requested them to hear her .

The police in LOC heard the applicant for the first time on DATE , after her release from the hospital .

On DATE the police department in FAC adjourned the investigation of the case pursuant to LAW . The decision stated that it had not been possible to identify the perpetrator of the assault or to establish any facts permitting criminal proceedings to be brought against a specific person .

On DATE the applicant filed a complaint . She submitted that the police had failed to explain the reasons for their decision and that they had refused to record a part of her statement relating to the assault .

On DATE ORG quashed the police decision as being unlawful . The public prosecutor established , in particular , that the case should have been dealt with by ORG in GPE . The case was transferred to the latter .

In a letter of CARDINAL DATE ORG of ORG admitted that the police had taken too long to hear the applicant for the first time .

On DATE the investigator adjourned the case pursuant to LAW as the perpetrator of the assault could not be identified .

On DATE the applicant challenged this decision . She argued that the investigator had failed to hear her and to establish the relevant facts . The applicant also complained that the investigator had failed to give reasons for his decision .

On DATE ORG dismissed the complaint on the ground that the applicant lacked standing to file it . The decision stated that the investigator had proceeded in accordance with the law and that he had considered all available information .

On DATE ORG of the police acknowledged that the police in FAC had acted erroneously in that they had failed to transmit the case to ORG in PERSON immediately after having examined the applicant ’s flat .

On DATE ORG dismissed the applicant ’s complaint against the decision to adjourn the case . The letter stated that there existed no evidence permitting identification of the perpetrator of the offence .

The applicant filed complaints with different authorities . She alleged that the offence had not been investigated properly in that , inter alia , the case had not been handed over to the criminal police immediately after the incident as required by the relevant regulations , that the police and the investigator had not had regard to all relevant facts , and that they had disregarded her request that CARDINAL persons indicated by her should be thoroughly questioned in her presence .

On DATE the applicant filed a criminal complaint against CARDINAL persons whom she suspected of having been involved in the assault .

On DATE ORG suspended the proceedings concerning the assault on the applicant pursuant to LAW ) of LAW . Prior to that the investigator had heard the applicant . CARDINAL of the QUANTITY persons indicated by the applicant had also been examined . According to their statements , they knew the applicant and had had no conflicts with her . They denied any involvement in the offence and stated that they had no recollection of their whereabouts at the time when it had been committed . The whereabouts of the third person against whom the applicant had filed a criminal complaint could not be established .

On DATE ORG dismissed the applicant ’s complaint against the decision to suspend the proceedings .

In the meantime , on DATE , the applicant filed a criminal complaint against CARDINAL policemen alleging that they had failed to deal with her case in an appropriate manner as a result of which the perpetrator of the offence could not be identified .

On DATE ORG informed the applicant that no action would be taken on her complaint as there was no indication that an offence had been committed by members of the police .

On DATE the director of ORG in PERSON dismissed the applicant ’s request for exclusion of the investigators of that ORG . On DATE ORG in PERSON dismissed the applicant ’s complaint against this decision .

On DATE ORG in GPE resumed the criminal proceedings concerning the assault on the applicant on the ground that the police had established the whereabouts of the third person whom the applicant had indicated as a possible perpetrator of the offence .

On DATE the investigator again suspended the proceedings pursuant to Article CARDINAL(CARDINAL)(e ) of the Code of Criminal Procedure . The decision stated that the third person indicated by the applicant as a suspect had denied any involvement in the assault , and that that person had no recollection of his whereabouts at the time when the offence had been committed . On DATE ORG dismissed the applicant ’s complaint against this decision .

In the meantime , on DATE , ORG dismissed the applicant ’s complaint about the conduct of the investigation . As regards the conduct of the police in FAC , the public prosecutor stated that they had photographed the applicant ’s flat and examined it for fingerprints and any other relevant evidence . A record was drawn up which indicates that the police did not use a dog with a view to tracing the scent of the perpetrator as the traces had been destroyed , in the meantime , by the other inhabitants of the house . Furthermore , the police had heard CARDINAL persons before they adjourned the case . The public prosecutor admitted , however , that the police in FAC had acted erroneously in that they had failed to transfer the case to an investigator of ORG in PERSON immediately after the examination of the flat .

The letter by the public prosecutor further stated that the delay in hearing the applicant was due to a mistake by the PERSON - Juh police who had been asked to do so while the applicant had been in a hospital .

The public prosecutor informed the applicant that in the proceedings there had been no substantial shortcomings which would affect the lawfulness of the decisions taken .

On DATE the applicant challenged the above conclusions before ORG .

In a letter of CARDINAL DATE ORG dismissed the applicant ’s complaint with reference to the documents included in the case file . The letter stated , in particular , that the police department in FAC had called an ambulance and had sent a patrol to the applicant ’s flat immediately after her call on DATE . The police had examined the place of the assault and also taken all evidence available on the spot . No fingerprints which could be used had been discovered . On DATE the police had heard the applicant ’s son and CARDINAL other persons . On DATE the police had heard another person whom the applicant ’s son had indicated as a possible perpetrator of the offence . A number of the applicant ’s acquaintances , neighbours and colleagues had been heard subsequently , however to no avail .

The letter further stated that the applicant could not be heard immediately after the incident due to the state of her health . Following her transfer to the hospital in PERSON the police in FAC had asked the PERSON - Juh police department , on DATE , to hear her in the hospital . On DATE the latter had replied that the applicant had had an operation on her jaw and that , according to doctors , she could be examined in DATE at the earliest . Following her release from the hospital the applicant had been heard by policemen from the LOC police department in her flat on CARDINAL DATE . The applicant had stated that she had had no conflicts with other persons and that she could not indicate who could be interested in causing injuries to her . There was no indication that the decision to adjourn the case had been arbitrary or erroneous .

ORG office noted that the case had been proceeded with following the applicant ’s criminal complaint against CARDINAL persons filed on DATE . In that context the police investigator had heard the applicant and the persons concerned . However , no facts permitting the prosecution of a specific person had been established . The letter concluded that the proceedings would be resumed should such facts be subsequently established .

On DATE the applicant sent a letter to ORG in which she alleged that the police and public prosecutors dealing with the case had intentionally kept secret the identity of the perpertrators of the offence . She complained that her flat had not been examined by the criminal police immediately after the assault and that the latter had failed to hear her . The applicant further complained that the police had examined her for the first time DATE after the assault had taken place and that she had not been confronted with the CARDINAL persons against whom she had filed a criminal complaint . Finally , the applicant alleged that the police in FAC had refused to come to her flat and to draw up a record of her statement that an unknown person had asked her on the telephone , on DATE , whether she wanted to know the identity of the perpetrator .

On DATE ORG replied to the applicant that her above letter contained no new relevant information .

The following provisions of LAW are relevant in the present case .

Pursuant to LAW ) , as in force until DATE , the police or investigator shall adjourn proceedings when the facts established by them do not suffice for criminal proceedings to be brought . Prior to such a decision all necessary action should be taken with a view to proceeding with the case effectively . Once the reasons for adjourning the case have ceased to exist , it should be proceeded with in accordance with the relevant provisions of LAW .

Article CARDINAL(CARDINAL)(e ) provides that a police investigator shall suspend the proceedings when it has not been possible to establish facts permitting the prosecution of a particular person .


The applicant is a GPE national who was born in DATE and lives in LOC . He is a practising lawyer ( advocaat en procureur ) . He was not represented before the ORG .

On DATE the social security investigating officer ( sociaal rechercheur ) Mr PERSON took and recorded a statement from CARDINAL PERSON , a person of PERSON origin who was suspected of having unjustly received social security benefits and , in this context , of having committed forgery . PERSON was alone with Mr PERSON at the time and did not have the assistance of either a lawyer or an interpreter .

Subsequently , PERSON was prosecuted for social security fraud . In addition , civil proceedings were instituted against him by the social security authorities for the recovery of the excess benefits paid to him . The applicant acted as PERSON counsel in both sets of proceedings .

NORP In the civil proceedings , the applicant declared , inter alia :

“ The statement recorded in writing by Mr W. can not have been obtained in any other way than by the application of pressure in an unacceptable manner in order to procure incriminating statements , the significance of which was not or not sufficiently understood by PERSON given the absence of an interpreter . ”

This passage appears in pleading notes submitted to ORG ( arrondissementsrechtbank ) at a hearing held on DATE .

Having learned of this statement in DATE , Mr PERSON filed a disciplinary complaint within the meaning of section CARDINALc of LAW ( GPE ) against the applicant to the PERSON ( deken ) of the local ORG ( PERSON ) . He complained that the applicant 's unfounded insinuations had tarnished his professional honour and good reputation , that the applicant had transgressed the limits of decency , and that the applicant had accused him obliquely of having committed perjury in drawing up the record in question .

Following an exchange of correspondence , the PERSON forwarded Mr PERSON 's complaint to ORG ( ORG ) of GPE .

In its decision of DATE , following adversarial proceedings , ORG rejected as unfounded the complaint that the applicant had , in veiled terms , accused Mr PERSON of perjury . It did , however , consider that the applicant , by contending that Mr PERSON had exerted unacceptable pressure on PERSON , had made an assertion that was not supported by any facts . It concluded that the applicant had thus transgressed the limits of acceptable behaviour and failed to observe the standards expected from a lawyer ( “ ... PERSON het toelaatbare overschreden en heeft hij in strijd gehandeld met hetgeen een behoorlijk advocaat betaamt ” ) . Noting the nature and the limited degree of seriousness of the applicant 's conduct , ORG considered it sufficient to declare the complaint of Mr PERSON partially well - founded without imposing any sanction .

The applicant lodged an appeal with ORG ) . He submitted that PERSON had not had the assistance of a lawyer before he signed his written statement , despite having asked for a lawyer to be present , that no interpreter had been present at the interrogation , that PERSON was a drug addict and that he had told him that pressure had been brought to bear . The applicant also referred to a statement taken by the investigating judge ( rechter - commissaris ) from PERSON on DATE , which reads as follows :

“ In reply to the question why I stated to the police that I had lived together with my ex - wife during the relevant period ... I say that I was pressured during that interrogation .

This pressure consisted of kicking against the table and kicking motions in my direction . I was also verbally abused .

When it came to signing the statement , I asked for the chief , but he was said to have already gone home . I then asked for a lawyer because I wanted an interpreter to come and read my statement to me . The police said , however , that no lawyer could come . So in the end I just signed the statement . ”

The applicant argued that in defending his client he should have been free to conclude , as he had , that his client 's confession could only have resulted from unacceptable pressure being brought to bear by the investigating officer . It would then have been for the court to which this conclusion was presented to decide whether or not it hat been established that such unacceptable pressure was in fact exerted . But it was not for a disciplinary tribunal to find that a statement made at a trial in defence of his client was unacceptable because it had not been sufficiently verified .

In its decision of CARDINAL DATE , following adversarial proceedings , ORG dismissed the applicant 's appeal and upheld the decision of DATE in its entirety .

It noted that , in the civil proceedings involving PERSON , the allegation in issue had been made in the applicant 's submissions during the first - instance proceedings as well as in the proceedings on appeal before ORG ( in the latter proceedings in the course of a hearing held on DATE ) . It did not find it established that , at the material time , the applicant had in fact been informed by PERSON that he considered that unacceptable pressure had been exerted on him when PERSON took his statement . It further noted that the applicant 's contention had remained wholly unsubstantiated at the material time .

The Disciplinary Appeals Tribunal agreed with ORG that a lawyer was not entitled to express reproaches of the kind in issue without any factual support , which implied that a lawyer , prior to raising such allegations , should seek information from his client as to the circumstances constituting the unacceptable pressure allegedly exerted .

Section CARDINAL of LAW provides as follows :

“ Advocates shall be subject to disciplinary proceedings regarding any act or omission which is in breach of the due care they ought to exercise as advocates visàvis those whose interests they look after , or ought to look after , any breach of the Regulations of the National Bar , and any act or omission not befitting a respectable advocate . This disciplinary justice is dispensed in the first instance by ORG , and , on appeal , by ORG , which is also the highest instance . ”

A complaint against an advocate is submitted to the PERSON of the local ORG ( section CARDINALc(CARDINAL ) ) , who shall investigate it ( section CARDINALc(CARDINAL ) ) . He may forward it to ORG ( PERSON ) for further action ( section CARDINALc(CARDINAL ) ) .

If a friendly settlement can not be reached , the matter is referred to ORG by the ORG ( or ORG as the case may be ) , either at the request of the complainant or ex officio ( section CARDINALc(CARDINAL ) and section CARDINALd ) .

The sanctions available to ORG and ORG are : mere admonition ; reprimand ; suspension from practising for a period not exceeding DATE ; and disbarment ( section CARDINAL ) .

Guidance on the nature of an “ act or omission not befitting a respectable advocate ” is found in LAW advocaten ) , the most recent version of which dates from DATE . Rule CARDINAL reads as follows :

“ Advocates should behave in such a way that confidence in the profession or in their own exercise of the profession is not harmed . ”


Anatoly Kovler;András Baka;Christos Rozakis;Corneliu Bîrsan;Egbert Myjer;Giovanni Bonello;Ján Šikuta;Jean-Paul Costa;John Hedigan;Karel Jungwiert;Lech Garlicki;Loukis Loucaides;Lucius Caflisch;Luzius Wildhaber;Margarita Tsatsa-Nikolovska;Mindia Ugrekhelidze;Nicolas Bratza;Rait Maruste;Sverre Erik Jebens;Vladimiro Zagrebelsky;Wilhelmina Thomassen

NORP The applicant was born in DATE and lived in GPE until DATE .

The applicant came to the GPE with his mother and CARDINAL brothers in DATE , when he was DATE , in order to join his father who had already been living there for DATE . He was granted a residence permit ( vergunning tot verblijf ) which he was required to renew at DATE intervals until DATE , when he obtained a permanent residence permit ( vestigingsvergunning ) .

On DATE the applicant was convicted by the single - judge chamber of ORG ( arrondissementsrechtbank ) of the offence of breach of the peace ( lokaalvredebreuk ) , and fined MONEY ( NLG – CARDINAL ( ORG ) ) . The same court convicted him on DATE of violent offence against the person , committed in public ( openlijke geweldpleging ) , and sentenced him to a fine of NLG CARDINAL ( ORG CARDINAL ) and a suspended term of imprisonment of DATE .

NORP In DATE the applicant entered into a relationship with a GPE national . They started living together in or around DATE . A son was born to the couple on DATE .

On DATE the applicant was convicted by ORG ( gerechtshof ) of violent offence against the person , committed in public , and sentenced to TIME of community service ( in lieu of CARDINAL months’ imprisonment ) .

During the second pregnancy of the applicant ’s partner , the relationship began to suffer . In order to alleviate the situation , the applicant moved out in DATE , but remained in close contact with both his partner and his son . The pregnancy ended in a miscarriage .

On DATE the applicant was involved in a dispute in a café . He pulled a loaded gun and shot a man , wounding him in the leg . Outside the café he then got into a fight with a friend of the injured man . He pulled a second loaded gun and shot him in the head . The man died . The applicant was convicted of manslaughter ( doodslag ) and assault ( zware mishandeling ) by ORG on DATE and sentenced to CARDINAL years’ imprisonment .

Whilst serving his prison sentence , from CARDINAL DATE until DATE , the applicant took courses in computer skills , administration and accounting , and also obtained a retailer ’s certificate ( middenstandsdiploma ) . He took further courses in order to qualify as a sports instructor . His partner and son visited him in prison at least once DATE and regularly more often . A second son was born to the applicant and his partner on DATE , whom he also saw DATE . Both his children have GPE nationality and have been recognised ( erkend ) by the applicant . Neither his partner nor his children speak NORP .

By a decision of DATE , the Deputy Minister of Justice ( ORG ) withdrew the applicant ’s permanent residence permit and imposed a DATE exclusion order ( ongewenstverklaring ) on him in view of his conviction of DATE and DATE prison sentence . The Deputy Minister considered that the general interest in ensuring public safety and the prevention of disorder and crime outweighed the applicant ’s interest in being able to continue his family life with his partner , children , parents and brothers in the GPE .

NORP The applicant lodged an objection ( bezwaarschrift ) against this decision , arguing that the offence in question had been committed long before , in DATE , that he had not reoffended , that there was no indication that he would reoffend , and that his partner and children could not be expected to follow him to GPE . Following a hearing before ORG on matters concerning aliens ( PERSON voor vreemdelingenzaken ) on DATE , at which the applicant was assisted by an interpreter , the Deputy Minister rejected the objection on DATE and ordered the applicant to leave the GPE as soon as he was released from prison .

The applicant appealed to ORG of The Hague , sitting in GPE , submitting that , as there was no risk of his reoffending , there was no necessity to impose an exclusion order on him and that to do so amounted to the imposition of a second penalty .

The applicant was released from prison on DATE and subsequently placed in GPE detention ( vreemdelingenbewaring ) pending his deportation .

Following a hearing on DATE , ORG rejected the applicant ’s appeal on DATE . ORG did not accept the applicant ’s argument that the period of time that had elapsed DATE on which his criminal conviction had become irrevocable and the date on which the exclusion order had been imposed was so long that the Deputy Minister should be deemed to have acquiesced in the applicant ’s continued residence in the GPE . Furthermore , it did not discern any facts or circumstances capable of justifying a reduction of the period for which the applicant would be excluded from GPE territory . The applicant ’s claim that there was no risk of his reoffending was based solely on his own statements and was not supported by the facts , given that he had also been convicted of violent offences in DATE and DATE . In addition , it did not appear that the applicant had put down roots in the GPE or become dissociated from NORP society to such a degree that he would be unable to return to his country of origin . Finally , ORG considered that the interference with the applicant ’s family life was justified for the purposes of preventing disorder and crime .

The applicant was deported to GPE on DATE . However , it appears that he returned to the GPE soon afterwards , as he was apprehended there on CARDINAL DATE . He was again deported to GPE on DATE , and a request for a provisional stay of execution of the deportation order , which he had lodged with ORG of The Hague , was declared inadmissible on DATE . He was also convicted of the offence of residing illegally in the GPE while subject to an exclusion order ( LAW ( PERSON ) ) and sentenced to CARDINAL months’ imprisonment .

On DATE the applicant requested that the exclusion order be revoked . The Deputy Minister of ORG refused the request on CARDINAL DATE and on DATE dismissed an objection the applicant had filed against that refusal . The applicant subsequently lodged an appeal , which was declared inadmissible by ORG of The Hague , sitting in GPE , on DATE . No appeal lay against that decision .

The applicant submitted that , prior to his deportation in DATE , he had only been back to GPE once in order to attend the funeral of his grandmother , and that he did not speak the NORP language apart from understanding certain expressions . His only relative in GPE was an uncle with whom he had no contact .

According to a report drawn up by a psychiatrist in GPE on DATE , the applicant was suffering from psychological problems as a result of being separated from his family . In particular , not being able to see his children was making him depressed . Treatment had begun in DATE and was continuing , though some improvement had been noted .

On DATE the applicant was discovered working at an illegal cannabis plantation in the GPE . He was arrested and subsequently placed in GPE detention . This detention was discontinued on DATE in order to execute the judgment whereby the applicant had been sentenced to CARDINAL months’ imprisonment ( see paragraph CARDINAL above ) . On DATE the applicant was deported to GPE .

At the relevant time the decision to withdraw the applicant ’s residence permit and to impose an exclusion order on him was taken under sections DATE and CARDINAL of LAW DATE ( Vreemdelingenwet DATE ) and in accordance with the policy laid down in Chapters ACARDINAL and ACARDINAL of LAW DATE ( Vreemdelingencirculaire – a body of directives drawn up and published by ORG ) . Underlying this policy is the principle that the longer an alien has lawfully resided in the GPE DATE and the stronger , therefore , his or her ties with the GPE are assumed to be DATE the more serious an offence must be before it can justify withdrawing a residence permit and excluding the alien from GPE territory ; the authorities thus apply a sliding scale ( glijdende schaal ) .

In accordance with this policy , a residence permit may be withdrawn and an exclusion order imposed on an alien who , at the time of committing the offence , has been lawfully residing in the GPE for CARDINAL but DATE like the applicant in the present case – if he or she is sentenced to an unsuspended prison sentence of DATE following a conviction for a serious , violent crime or for drug trafficking .

If an exclusion order is imposed on the basis of a conviction for a serious , violent crime or drug trafficking , this order will in any event be revoked , upon request , if the alien has been residing outside the GPE for a period of DATE and if he has not been convicted of further criminal offences ( LAW ACARDINAL/CARDINAL.CARDINAL of LAW DATE ) .

A person upon whom an exclusion order has been imposed is not allowed either to reside in or to visit the GPE .

Article CARDINAL § QUANTITY of the Criminal Code reads :

“ A convicted person sentenced to a custodial sentence for a determinate period of which DATE is to be executed shall be granted early release when CARDINAL of that sentence have been served . ”

Article CARDINALa of LAW , in so far as relevant , provides :

“ CARDINAL . NORP Early release may be postponed or withheld where :

( a ) the convicted person , on grounds of the inadequate development or pathological disturbance of his mental faculties , has been placed in an institution for the treatment of persons subject to an order for confinement in a custodial clinic and where continuation of treatment is required ;

( b ) the convicted person has been convicted in a final judgment of a serious offence for which , pursuant to LAW [ PERSON ] , detention on remand [ voorlopige hechtenis ] is allowed and where the offence was committed after the execution of his sentence commenced ;

( c ) there is evidence that the convicted person has otherwise grossly misbehaved after the execution of his sentence commenced ;

( d ) the convicted person evades , or attempts to evade , his sentence after its execution has commenced .

NORP If the prosecuting authorities [ Openbaar Ministerie ] charged with the execution of the sentence consider that , on one of the grounds mentioned in the first paragraph , there is cause for postponing or withholding early release , it shall lodge a written request to that effect with ORG without delay . ... ”

With regard to the various texts adopted by ORG in the field of immigration , mention should be made of ORG Rec(CARDINAL)CARDINAL concerning the security of residence of long - term migrants and Rec(CARDINAL)CARDINAL on the legal status of persons admitted for family reunification , and of ORG ) on the non - expulsion of long - term immigrants .

Recommendation PERSON states , inter alia :

“ CARDINAL . As regards the protection against expulsion

( a ) Any decision on expulsion of a long - term immigrant should take account , having due regard to the principle of proportionality and in the light of ORG Rights’ constant case - law , of the following criteria :

– the personal behaviour of the immigrant ;

– the duration of residence ;

– the consequences for both the immigrant and his or her family ;

– existing links of the immigrant and his or her family to his or her country of origin .

( b ) In application of the principle of proportionality as stated in paragraph CARDINAL ( a ) , member GPE should duly take into consideration the length or type of residence in relation to the seriousness of the crime committed by the long - term immigrant . More particularly , member GPE may provide that a long - term immigrant should not be expelled :

– after DATE of residence , except in the case of a conviction for a criminal offence where sentenced to in excess of CARDINAL years’ imprisonment without suspension ;

– after DATE of residence , except in the case of a conviction for a criminal offence where sentenced to in excess of DATE of imprisonment without suspension .

After DATE of residence , a long - term immigrant should no longer be expellable .

( c ) ORG - term immigrants born on the territory of the member ORG or admitted to the member ORG before DATE , who have been lawfully and habitually resident , should not be expellable once they have reached DATE .

Long - term immigrants who are minors may in principle not be expelled .

( d ) In any case , each member ORG should have the option to provide in its internal law that a long - term immigrant may be expelled if he or she constitutes a serious threat to national security or public safety . ”

In Recommendation CARDINAL ( DATE ) ORG recommended that ORG invite the governments of member GPE , inter alia :

“ CARDINAL . ...

( ii ) ...

( c ) to undertake to ensure that the ordinary - law procedures and penalties applied to nationals are also applicable to long - term immigrants who have committed the same offence ;

( g ) to take the necessary steps to ensure that in the case of long - term migrants the sanction of expulsion is applied only to particularly serious offences affecting State security of which they have been found guilty ;

( h ) to guarantee that migrants who were born or raised in the host country and their under - age children can not be expelled under any circumstances ;

ORG replied to the ORG on the matter of non - expulsion of certain migrants on DATE . It considered that Recommendation Rec(CARDINAL)CARDINAL addressed many of the concerns of the ORG and it was thus not minded to devise any new standards .

Under the heading “ Effective protection against expulsion of family members ” , ORG recommended to governments in Recommendation Rec(CARDINAL)CARDINAL that , where the withdrawal of or refusal to renew a residence permit , or the expulsion of a family member , is being considered :

“ ... member GPE should have proper regard to criteria such as the person ’s place of birth , his age of entry on the territory , the length of residence , his family relationships , the existence of family ties in the country of origin and the solidity of social and cultural ties with the country of origin . Special consideration should be paid to the best interest and well - being of children . ”

In the majority of the member ORG , second - generation immigrants may be deported by the authorities on the ground that they have been convicted of a criminal offence . CARDINAL member States have provided in their laws that second - generation immigrants can not be deported on the basis of their criminal record or activities : GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE . Apart from GPE and GPE , this protection is not confined to those who were actually born in the host country but also applies to foreigners who arrived during childhood ( varying from before DATE in GPE to before DATE in GPE ) .


Remainder inadmissible;Violation of Art. 10;Non-pecuniary damage - award

András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky

The applicant was born in DATE and lives in PERSON .

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

The applicant is the chairman of ORG ( ORG ) , which represents its members in numerous companies .

The applicant was an employee of the security company PERSON As the chairman of the trade union , he had constant arguments with the company . In DATE his employment was terminated , which measure was declared illegal by the competent courts in DATE . The applicant alleged that , since then , company PERSON has not allowed him to enter its LOC , even on official trade union business .

In DATE the applicant lodged a private motion ( magánindítvány ) with ORG against PERSON , the managing director of company PERSON , alleging that the latter had committed defamation by saying at a company meeting that the applicant “ had taken under his wing criminals who had worked in the company ” . In DATE ORG , acting as a second - instance court , ultimately found PERSON guilty of defamation and fined him MONEY ( ORG ) ( MONEY ( ORG ) ) .

In DATE the trade union became active in company NORP In DATE , the trade union was informed of an intention to sell company NORP and that CARDINAL of the possible buyers was company PERSON The employees of company NORP opposed the project and , in order to express their opinion , requested the trade union to organise a protest demonstration . This it did in front of the ORG building . The applicant , as chairman of the trade union , gave interviews to several newspapers concerning the events .

On DATE , a DATE newspaper ORG published an article which reported the planned sale of company NORP and described the demonstration , analysing the background to the events . It interviewed the applicant , who made the following statements .

“ ... the other reason [ for which we are holding a demonstration ] is that CARDINAL employees should not lose their livelihood and that such a company [ i.e. company PERSON ] which tramples constitutional and labour rights should not be the successor of company NORP ( ... ) Because of the inhuman conduct of the management [ of company PERSON ] [ the employees ] should not have to stay in a place where they were called ‛criminals’ . We initiated court proceedings in CARDINAL cases because of that . ”

On DATE PERSON brought an action against the applicant before ORG , asking the court to establish that the applicant ’s statements had infringed his good reputation , to order the applicant to refrain from such acts in the future and to arrange for a rectification to be published .

On DATE ORG , finding that it was impossible to identify PERSON directly from the impugned article , dismissed his action . The plaintiff appealed .

The Pest County Regional Court was of the view that the ORG decision had only been a partial decision determining the applicability of the law on defamation . On DATE , it amended the first - instance decision and established that the plaintiff could be identified from the article in question . Thus he , as an affected person , might lawfully claim the protection of his privacy rights .

NORP In fresh proceedings ORG found , on DATE , that the applicant had tarnished the plaintiff ’s good reputation by the impugned statements and ordered him to publish a rectification and pay the plaintiff ’s court fees in the amount of ORG CARDINAL ( approximately EUR CARDINAL ) . It established that the applicant ’s assertions were statements of fact rather than value judgments . It also noted that , although it was true that numerous civil and labour proceedings had been instituted against company PERSON , this fact could not justify defamatory statements .

ORG refused the applicant ’s request to obtain the decisions adopted in those other proceedings , or to hear witnesses who might be able to prove the veracity of his assertions . It was of the view that this evidence could not possibly render lawful his statements , which in any event were exaggerated and offensive .

The applicant appealed . On DATE the ORG upheld the first - instance decision . It held that the applicant ’s assertions were value judgments based on factual allegations expressed in a wholly unlawful manner , since he had articulated his views in a “ gratuitously insulting , offensive and harsh way . ”

ORG also referred to a decision of ORG which had come to the same conclusion in another defamation case instituted directly by company PERSON against the applicant . It established that the protection of the rights of others constituted a legitimate restriction on freedom of expression even in cases of public interest . However , it established that the present case did not deal with such matters of general concern , even if company NORP had many employees .

The applicant lodged a petition for review with ORG . He pointed out that the final decision had erroneously found his assertions to be statements of fact , since they were the expression of an opinion based on true facts . The applicant also stressed that his aim had been to inform the public about an important matter . Lastly , he was of the view that in expressing his opinion he could not have harmed anyone ’s reputation , even if he had used harsh terms , and that he had acted in compliance with relevant domestic law , the well - established case - law of ORG and ORG , as well as with NORP standards .

On DATE a single judge of ORG declared the applicant ’s petition inadmissible . It found that the final decision had been correct and in accordance with law , particularly in view of the nature of the applicant ’s assertions , which had been gratuitously insulting , offensive and harsh , and violated the plaintiff ’s privacy irrespective of their value judgment content . ORG also pointed out that the right to freedom of expression was not unlimited and should not violate the personality rights of others .

“ ( CARDINAL ) The protection of personality rights shall also include the protection of the good reputation of others .

( CARDINAL ) In particular , the statement or dissemination of an injurious and untrue fact concerning another person DATE or the presentation , with untrue implications , of a true fact relating to another person – shall constitute defamation . ”

“ ( CARDINAL ) A person whose personality rights have been infringed may bring the following civil-

a ) a claim that the court establish that an infringement has taken place ;

b ) a claim that the infringement be discontinued and the perpetrator be forbidden from further infringements ;

c ) a claim that the perpetrator be ordered to give satisfaction by making a declaration or in any other appropriate manner and , if necessary , this be made adequately public by , or at the expense of , the perpetrator ;

d ) a claim that the prejudicial situation be terminated , and that the situation prior to the infringement be restored by , or at the expense of , the perpetrator ... ;

e ) a claim for damages under the rules of civil law liability . ”


Violation of P4-2;Non-pecuniary damage - financial award;Costs and expenses (Convention proceedings) - claim dismissed

The applicant is an ethnic NORP ; he was born in DATE in GPE and lived there . In DATE his property in GPE was destroyed as a result of military hostilities . Since DATE the applicant has been living in GPE ; on DATE a forced migrant ’s card was issued to him . At the material time the applicant was the deputy chairman of ORG .

On DATE the applicant returned by car from a mission in GPE to PERSON in Kabardino - Balkaria . He was accompanied by PERSON . , driver , Mr PERSON , a member of ORG , and PERSON . , a representative of the NORP elders .

At TIME the applicant ’s car was stopped at the check - point “ GPE ” on the administrative border between PERSON and Kabardino - Balkaria . After TIME of checking the documents and identities of the applicant and his travelling companions , officers of the Kabardino - Balkaria State Inspectorate for Road Safety ( ГИБДД МВД КБР ) refused them entry to NORP on the ground of their NORP ethnic origin .

In TIME , the applicant and his companions took a long detour and reached PERSON through a different check - point .

On DATE the applicant lodged a complaint with the ORG against ORG of the Interior ( ORG КБР ) . The applicant sought a declaration that the actions of the police officers had been unlawful , and claimed compensation for non - pecuniary damage caused by the alleged violation of his constitutional right to liberty of movement .

The Nalchik Town Court accepted the complaint , but no proceedings took place for DATE . Following the applicant ’s complaint to ORG , ORG held a hearing .

On DATE the ORG gave its judgment . The court found that on DATE ORG had issued Directive no . CARDINAL ( ORG № CARDINAL ) on the procedure for crossing the administrative border of NORP by residents of GPE . The regulation provided for stricter checks of vehicles and passengers of NORP origin , as well as for the special registration of NORP on the basis of ORG cards . The court questioned the police officers who had been on duty on DATE . The officers maintained that neither the applicant nor his companions had produced their ORG cards ; the officers had informed their superior on duty of this situation and , pursuant to his oral order , they refused admission to the applicant and his companions . The court held that the applicant had failed to prove that he had indeed shown his migrant ’s card to the police officers and , therefore , there was no ground to declare their actions unlawful . The court noted that on TIME the applicant had gained admission into FAC through a different check - point . The court also inspected the registration log of DATE and noted that on the same day other NORP passengers carrying migrants’ cards had been admitted into FAC .

The applicant appealed against the judgment of DATE . He submitted , in particular , that the regulation of CARDINAL DATE had not been valid and enforceable because it had never been officially published .

On DATE ORG of the Kabardino - Balkaria Republic upheld the judgment of DATE . The court pointed out that the burden of proof was on the applicant , who had failed to show that he had been denied entry because of his ethnic ( NORP ) origin .

Article CARDINAL of the LAW of the Russian Federation provides for the equality of all before the law and courts of law , and equality of rights and liberties .

Article CARDINAL provides that everyone lawfully within the territory of the NORP Federation shall have the right to move freely and choose his or her place of stay or residence .


Violation of Article 4 - Prohibition of slavery and forced labour (Article 4-1 - Servitude);Non-pecuniary damage - award

George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva

The applicant was born in DATE .

The applicant travelled to GPE from GPE on DATE . She claimed that she had been raped several times in GPE and that her purpose in travelling to GPE was to escape from the sexual and physical violence which she had experienced . She intended to work to support herself in GPE and to pursue further education .

According to the applicant ’s account , a relative named PERSON and a Mr A. helped her obtain a false passport and a visa to enable her to enter GPE . However , the applicant claimed that on arrival in GPE took her passport and travel documents and did not return them to her .

The applicant lived for DATE at various houses belonging to LOC in GPE . She claimed that during this time he constantly warned her that she should not talk to people and that she could easily be arrested or otherwise come to harm in GPE . She was also shown violence on television and told that this could happen to her if she was not careful .

NORP In DATE S. introduced the applicant to a man called PERSON who ran a business providing carers and security personnel for profit . The applicant attended a short carers’ training course and thereafter did some overnight shifts as a carer and as a security guard in a number of locations . The applicant asserted that on each occasion payment was made by the client to PERSON , who transferred a share of the money to S. ’s bank account in the apparent belief that he would pass it on to her . However , she claimed that she did not receive any payment for the work that she did .

NORP In DATE the applicant began to work as a live - in carer for an elderly NORP couple ( “ Mr and PERSON ) . She found the role physically and emotionally demanding as PERSON suffered from Parkinson ’s disease and she was required to change his clothing , feed him , clean him and lift him as necessary . As a result , she was permanently on - call during DATE and night . On DATE she was given TIME leave but on these occasions she would usually be collected by PERSON and driven to S. ’s house for the afternoon . She accepted that after DATE she was permitted to take public transport but said she was warned that it was not safe and that she should not speak with anyone .

The applicant claimed that the ORG CARDINAL PERSON and PERSON paid DATE for her services was sent directly to PERSON by cheque . A percentage of that money was passed by PERSON on the apparent understanding that it would be paid to her . However , she received no significant payment for her labour . Occasionally PERSON and PERSON would give the applicant presents or second - hand clothes and from time to time S. would give her GBP DATE when she went to his home on her DATE TIME of leave . It was sometimes suggested that PERSON was saving up her income for her education , but she denied that any money was ever given to her .

In DATE Mr and PERSON went on a family trip to GPE . The applicant was unable to accompany them because she did not have a passport . In their absence , the applicant was taken to a house belonging to S. When he left for a business trip to GPE , she remained in the house with his partner , PERSON The applicant asserted that ORG effectively prevented her from leaving the house and warned her not to speak with anyone .

On DATE the applicant left the house . She went to a local bank , where she asked someone to call the police . Before the police arrived , she collapsed and was taken to ORG , where she was diagnosed as HIV positive . She was also suffering from psychosis , including auditory hallucinations .

The applicant remained in hospital for DATE . H. visited the applicant in hospital and the applicant claimed that during these visits she tried to persuade her to return to S. ’s house . In particular , she warned her that when she left the hospital she would have to pay for anti - retroviral medication and if she did not return to the house she would be “ on the streets ” .

Following her discharge from hospital , the applicant was housed by the local authority . On DATE she made an application for asylum . The application was refused on DATE . The Secretary of ORG for ORG considered that the applicant could access protection in GPE to prevent further sexually motivated attacks . Moreover , he found that if she had been genuinely afraid of S. , she would have tried to escape from him earlier . The applicant appealed . Her appeal was dismissed on DATE . In dismissing the appeal , the Immigration Judge expressed serious concerns about the applicant ’s credibility and found much of her account to be implausible .

NORP In DATE the applicant ’s solicitor wrote to the police and asked that they investigate her case . ORG , a police unit specialising in the investigation of human trafficking offences , commenced an investigation to ascertain whether or not she had been the victim of a criminal offence . The police interviewed the applicant on DATE . During the investigation , ORG sought the views of ORG in GPE , a multi - agency organisation which provided a central point of expertise in the field of human trafficking . However , the ORG advised that there was no evidence to substantiate the allegation that the applicant had been trafficked into GPE and observed that during her time working with PERSON and PERSON she had been well looked after .

On DATE the police informed the applicant ’s former solicitor that there was “ no evidence of trafficking for domestic servitude in the interview ” .

On DATE the applicant ’s current solicitor wrote to the police asking for the reasons for discontinuing the investigation . On DATE the police noted that ORG at ORG had advised that there was no evidence to substantiate the applicant ’s allegation that she had been trafficked into GPE . He further advised that while the applicant worked with the K family she was well looked after and given some money . There was , however , a dispute over money and it may have been that “ her cousin kept more than he should have done ” .

On DATE the police informed the applicant ’s solicitor that “ a decision was taken not to proceed with the matter as there was no evidence that she [ the applicant ] had been trafficked ” . On DATE the police reiterated that following the interview “ it was decided that there was insufficient evidence to substantiate the allegation of trafficking and thus further investigation was not warranted ” .

On DATE the applicant ’s solicitor wrote to the police to ask them to consider prosecutions for other offences , including a jus cogens offence of slavery or forced labour .

On DATE the applicant was assessed by ORG , a Government funded project providing housing and support for victims of trafficking . ORG concluded that she had been “ subjected to CARDINAL of the CARDINAL indicators of forced labour ” ( as identified by the ORG ) . In particular , her movement had been restricted to the workplace , her wages were withheld to pay a debt she did not know about , her salary was withheld for DATE , her passport was retained , and she was subjected to threats of denunciation to the authorities .

On DATE the police began to conduct further investigations . On DATE the police noted that a statement had been obtained from the agent who arranged the applicant ’s work with Mr and PERSON ( presumably the man previously identified as PERSON ) . He stated that he had been introduced to the applicant by a person he believed to be her relative . He was supplied with a passport , a national insurance number and a criminal records check . The agent stated that the applicant came to the agreement with her relative that her wages would be paid to him . She only complained about this arrangement in or around DATE . The agent also stated that he feared the applicant ’s relative , who was a wealthy and powerful man well - connected to the NORP government .

The police were unable to make contact with PERSON and PERSON Eventually they made contact with a member of the K family . However , no statement appears to have been taken as the ( unidentified ) woman told the police that she was leaving the country for medical treatment .

On DATE the police informed the applicant ’s solicitor that the evidence did not establish an offence of trafficking . They noted that “ at this stage there is no evidence that would support exploitation of any kind ” .

Police officers met with the applicant and her representative on DATE . The applicant ’s solicitor asserted that at this meeting a police officer indicated that it was ORG provisional view , given expressly without formal authority , that there was no offence in LANGUAGE criminal law which applied to the facts of the case . The solicitor further asserted that the police apologised for the cursory manner in which the case had been dealt with previously and confirmed that the applicant ’s account was credible .

In an entry dated DATE the police noted that :

“ It is clear that this female was not trafficked into the GPE for labour exploitation . She having applied for a visa in her real name to come to the GPE was refused . She then in agreement with her father then obtained a false passport with a forged visa stamp . These false documents were paid for by her father with the assistance of her uncle ...

She willingly commenced work that was arranged by her uncle as a live - in carer for an elderly couple .

The family at first wanted to pay her wages direct . But on the request of the victim she stated the money should be paid to the agency and then the money should then be transferred to her uncle ’s account who in turn would send the money back to GPE . This agreement was made in order to hide from the authorities the fact that the victim did not have a national insurance number . If money was paid to her then she would have had to pay tax and her false identity would have come to the notice of the tax office and then to the [ ORG ] . This would then lead to her arrest and eviction from the GPE ...

... There is no evidence to show that this female is / was a victim of slavery or forced labour . She willingly worked and was in fact paid but she choose that the money should go via her uncle in order to conceal being in the GPE . It is basically a situation that one criminal ( her uncle ) has taken all the proceeds of their crime ... ”

At that meeting the applicant ’s solicitor pointed out that PERSON had taken the applicant ’s identity documents from her upon her arrival in GPE and that this was grounds to prove possible forced labour . However , the police indicated that the documents taken from the applicant were false documents purchased by her and her father to enable her to enter GPE .

On DATE the police spoke again with the applicant ’s solicitor . While they accepted that not every enquiry had been carried out , such as production orders relating to relevant bank accounts , it was important to ensure that the limited resources of ORG were used to best effect and they could not , therefore , carry out any further investigation into the applicant ’s complaints .

The applicant was assessed by a clinical psychologist specialising in violence against women . The psychologist concluded in her CARDINAL DATE report that the applicant was “ suffering to a severe degree from a complex form of chronic Post - Traumatic Stress Disorder ( PTSD ) , in conjunction with a Major Depressive Disorder and she presents a moderate risk of suicide . ” In particular , she noted that the applicant presented “ in ways consistent with a victim of trafficking and forced labour , in the context of a history of sexual assaults ” .

On DATE the police noted that they would write to the applicant ’s solicitor to confirm that “ this particular case does not fulfil the requirements of human trafficking as per GPE legislation and that legislation does not exist in relation to sole and specific allegations of domestic servitude where trafficking is not a factor ” .

On DATE the police wrote to the applicant ’s solicitor in the following terms :

“ I can confirm that after undertaking an investigation of the case including interviewing PERSON a decision has been made to conclude the investigation . This decision is based on several factors , one being that after consultation with the legal representative of ORG the circumstances of PERSON case did not appear to constitute an offence of trafficking people for the purposes of exploitation contrary to ORG .

I am not aware of any specific offence of forced labour or servitude beyond that covered by section CARDINAL of ORG though regulation of working conditions are controlled by such areas as health and safety legislation and in certain instances LAW ... ”

Section CARDINAL of the Coroners and Justice Act DATE , which received Royal Assent on DATE , made slavery , servitude and forced or compulsory labour criminal offences punishable by a fine and/or up to CARDINAL years’ imprisonment . Section CARDINAL came into force on DATE but did not have retrospective effect .

Section CARDINAL of ORG etc . ) Act CARDINAL created the offence of trafficking people for exploitation . It provides that :

“ ( CARDINAL ) A person commits an offence if he arranges or facilitates the arrival in GPE of an individual ( the “ passenger ” ) and—

( a ) he intends to exploit the passenger in GPE or elsewhere , or

( b ) he believes that another person is likely to exploit the passenger in GPE or elsewhere .

( CARDINAL ) A person commits an offence if he arranges or facilitates travel within GPE by an individual ( the “ passenger ” ) in respect of whom he believes that an offence under subsection ( CARDINAL ) may have been committed and—

( CARDINAL ) A person commits an offence if he arranges or facilitates the departure from GPE of an individual ( the “ passenger ” ) and—

( a ) he intends to exploit the passenger outside GPE , or

( b ) he believes that another person is likely to exploit the passenger outside GPE .

( CARDINAL ) For the purposes of this section a person is exploited if ( and only if)—

( a ) he is the victim of behaviour that contravenes LAW ( slavery and forced labour ) ,

( b ) he is encouraged , required or expected to do anything as a result of which he or another person would commit an offence under LAW CARDINAL ( c. CARDINAL ) or FAC ( GPE ) Order DATE ( NORP CARDINAL/CARDINAL ( N.I. CARDINAL ) ) ,

( c ) he is subjected to force , threats or deception designed to induce ORG

( i ) to provide services of any kind ,

( ii ) to provide another person with benefits of any kind , or

( iii ) to enable another person to acquire benefits of any kind , or

( d ) he is requested or induced to undertake any activity , having been chosen as the subject of the request or inducement on the grounds that—

( i ) he is mentally or physically ill or disabled , he is young or he has a family relationship with a person , and

( ii ) a person without the illness , disability , youth or family relationship would be likely to refuse the request or resist the inducement .

( CARDINAL ) A person guilty of an offence under this section shall be liable—

( a ) on conviction on indictment , to imprisonment for a term not exceeding DATE , to a fine or to both , or

( b ) on summary conviction , to imprisonment for a term not exceeding DATE , to a fine not exceeding the statutory maximum or to both . ”

On DATE the Coroners and Justice Act DATE received ORG . Section CARDINAL , which will come into force “ on DATE as the Secretary of ORG may by order appoint ” , provides as follows :

“ CARDINAL Slavery , servitude and forced or compulsory labour

( CARDINAL ) A person ( D ) commits an offence if—

( a ) D holds another person in slavery or servitude and the circumstances are such that D knows or ought to know that the person is so held , or

( b ) D requires another person to perform forced or compulsory labour and the circumstances are such that D knows or ought to know that the person is being required to perform such labour .

( CARDINAL ) In subsection ( CARDINAL ) the references to holding a person in slavery or servitude or requiring a person to perform forced or compulsory labour are to be construed in accordance with LAW ( which prohibits a person from being held in slavery or servitude or being required to perform forced or compulsory labour ) .

( CARDINAL ) A person guilty of an offence under this section is liable—

( a ) on summary conviction , to imprisonment for a term not exceeding the relevant period or a fine not exceeding the statutory maximum , or both ;

( b ) on conviction on indictment , to imprisonment for a term not exceeding DATE or a fine , or both .

( CARDINAL ) In this section—

“ Human Rights Convention ” means ORG agreed by ORG at GPE on DATE ;

“ the relevant period ” means—

( a ) in relation to GPE and GPE , DATE ;

( b ) in relation to GPE , DATE . ”

Articles CARDINAL and CARDINAL of the ORG provide as follows :

“ Article CARDINAL

Each Member of ORG which ratifies this Convention undertakes to suppress the use of forced or compulsory labour in all its forms within the shortest possible period .

With a view to this complete suppression , recourse to forced or compulsory labour may be had , during the transitional period , for public purposes only and as an exceptional measure , subject to the conditions and guarantees hereinafter provided .

At the expiration of a period of DATE after the coming into force of this LAW , and when ORG of ORG prepares the report provided for in DATE below , the said ORG shall consider the possibility of the suppression of forced or compulsory labour in all its forms without a further transitional period and the desirability of placing this question on the agenda of the Conference .

Article CARDINAL

For the purposes of this Convention the term forced or compulsory labour shall mean all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily .

Nevertheless , for the purposes of this Convention , the term forced or compulsory labour shall not include--

( a ) any work or service exacted in virtue of compulsory military service laws for work of a purely military character ;

( b ) any work or service which forms part of the normal civic obligations of the citizens of a fully self - governing country ;

( c ) any work or service exacted from any person as a consequence of a conviction in a court of law , provided that the said work or service is carried out under the supervision and control of a public authority and that the said person is not hired to or placed at the disposal of private individuals , companies or associations ;

( d ) any work or service exacted in cases of emergency , that is to say , in the event of war or of a calamity or threatened calamity , such as fire , flood , famine , earthquake , violent epidemic or epizootic diseases , invasion by animal , insect or vegetable pests , and in general any circumstance that would endanger the existence or the well - being of the whole or part of the population ;

( e ) minor communal services of a kind which , being performed by the members of the community in the direct interest of the said community , can therefore be considered as normal civic obligations incumbent upon the members of the community , provided that the members of the community or their direct representatives shall have the right to be consulted in regard to the need for such services . ”

The ORG has developed indicators of forced labour which provide a valuable benchmark in the identification of forced labour . These indicators are :

“ CARDINAL . Threats or actual physical harm to the worker .

Restriction of movement and confinement to the work place or to a limited area .

Debt bondage : where the worker works to pay off a debt or loan , and is not paid for his or her services . The employer may provide food and accommodation at such inflated prices that the worker can not escape the debt .

Withholding of wages or excessive wage reductions , that violate previously made agreements .

Retention of passports and identity documents , so that the worker can not leave , or prove his / her identity and status .

Threat of denunciation to the authorities , where the worker is in an irregular immigration status . ”

GPE ratified LAW on DATE and it came into force on DATE .

DATE defines “ trafficking in human beings " as follows :

“ ( a ) the recruitment , transportation , transfer , harbouring or receipt of persons , by means of the threat or use of force or other forms of coercion , of abduction , of fraud , of deception , of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person , for the purpose of exploitation . Exploitation shall include , at a minimum , the exploitation of the prostitution of others or other forms of sexual exploitation , forced labour or services , slavery or practices similar to slavery , servitude or the removal of organs ;

( b ) The consent of a victim of “ trafficking in human beings ” to the intended exploitation set forth in subparagraph ( a ) of this article shall be irrelevant where any of the means set forth in subparagraph ( a ) have been used ;

Article CARDINAL provides that :

“ Each ORG shall consider adopting such legislative and other measures as may be necessary to establish as criminal offences under its internal law , the use of services which are the object of exploitation as referred to in DATE paragraph ( a ) of this Convention , with the knowledge that the person is a victim of trafficking in human beings . ”

DATE , which GPE ratified in DATE , provides that :

“ The High Contracting Parties recognise that recourse to compulsory or forced labour may have grave consequences and undertake , each in respect of the territories placed under its sovereignty , jurisdiction , protection , suzerainty or tutelage , to take all necessary measures to prevent compulsory or forced labour from developing into conditions analogous to slavery .

It is agreed that :

( CARDINAL ) Subject to the transitional provisions laid down in paragraph ( CARDINAL ) below , compulsory or forced labour may only be exacted for public purposes .

( CARDINAL ) In territories in which compulsory or forced labour for other than public purposes still survives , the High Contracting Parties shall endeavour progressively and as soon as possible to put an end to the practice . So long as such forced or compulsory labour exists , this labour shall invariably be of an exceptional character , shall always receive adequate remuneration , and shall not involve the removal of the labourers from their usual place of residence .

( CARDINAL ) In all cases , the responsibility for any recourse to compulsory or forced labour shall rest with the competent central authorities of the territory concerned . ”

Recommendation DATE ) provides , as relevant , that :

“ CARDINAL . In DATE a new form of slavery has appeared in LOC , namely domestic slavery . It has been established that CARDINAL women are sold DATE in the world .

In this connection the ORG recalls and reaffirms DATE , paragraph CARDINAL of ORG ) , which prohibits slavery and servitude , and also the definition of slavery derived from the opinions and judgments of ORG and ORG .

The ORG also recalls LAW ORG , which provides that no one shall be subjected to torture or to inhuman or degrading treatment or punishment , and LAW , which proclaims the right of access to a court in civil and criminal matters , including cases where the employer enjoys immunity from jurisdiction .

It notes that the ORG passports are systematically confiscated , leaving them in a situation of total vulnerability with regard to their employers , and sometimes in a situation bordering on imprisonment , where they are subjected to physical and/or sexual violence .

Most of the victims of this new form of slavery are in an illegal situation , having been recruited by agencies and having borrowed money to pay for their journey .

The physical and emotional isolation in which the victims find themselves , coupled with fear of the outside world , causes psychological problems which persist after their release and leave them completely disoriented .

It regrets that none of ORG member states expressly make domestic slavery an offence in their criminal codes .

It accordingly recommends that ORG ask the governments of member states to :

i. make slavery and trafficking in human beings , and also forced marriage , offences in their criminal codes ;

vi . protect the rights of victims of domestic slavery by :

a. generalising the issuing of temporary and renewable residence permits on humanitarian grounds ;

b. taking steps to provide them with protection and with social , administrative and legal assistance ;

c. taking steps for their rehabilitation and their reintegration , including the creation of centres to assist , among others , victims of domestic slavery ;

d. developing specific programmes for their protection ;

e. increasing GPE time limits for bringing proceedings for offences of slavery ;

f. establishing compensation funds for the victims of slavery . ”

Recommendation DATE ( DATE ) further provides , as relevant , that :

“ The ORG thus recommends that ORG :

i. in general :

a. bring the negotiations on ORG convention on action against trafficking in human beings to a rapid conclusion ;

b. encourage member states to combat domestic slavery in all its forms as a matter of urgency , ensuring that holding a person in any form of slavery is a criminal offence in all member states ;

c. ensure that the relevant authorities in the member states thoroughly , promptly and impartially investigate all allegations of any form of slavery and prosecute those responsible ;

d. recommend that member states review their immigration and deportation policies , granting victims of domestic slavery at least temporary residence permits ( if possible , in conjunction with work permits ) and allowing them to file complaints against their abusive husbands or employers if they wish to do so ;

e. urge member states to provide an efficient support network for victims ( including emergency accommodation , health care , psychological and legal counselling services ) and attribute funds to non - governmental organisations working in this area ;

PERSON ensure that victims of slavery are provided with reparation , including compensation , restitution , rehabilitation , satisfaction and guarantees of non - repetition ;

ii . as concerns domestic servitude :

a. elaborate a charter of rights for domestic workers , as already recommended in Recommendation CARDINAL ( DATE ) on domestic slavery . Such a charter , which could take the form of a ORG of ORG recommendation or even of a convention , should guarantee at least the following rights to domestic workers :

– the recognition of domestic work in private households as “ real work ” , that is , to which full employment rights and social protection apply , including the minimum wage ( where it exists ) , sickness and maternity pay as well as pension rights ;

– the right to a legally enforceable contract of employment setting out minimum wages , maximum TIME and responsibilities ;

– the right to health insurance ;

– the right to family life , including health , education and social rights for the children of domestic workers ;

– the right to leisure and personal time ;

– the right for migrant domestic workers to an immigration status independent of any employer , the right to change employer and to travel within the host country and between all countries of ORG and the right to the recognition of qualifications , training and experience obtained in the home country ;

b. recommend the introduction of a system of accreditation for agencies placing domestic workers , which would commit these agencies to certain minimum standards , such as charging reasonable fees , tracking the employees they have placed and providing emergency help in cases of difficulty . Accredited agencies could have visa applications put forward on their behalf validated automatically ;

c. ensure regular monitoring by appropriate authorities of the agencies accredited under the system referred to in sub - paragraph b above . ”