CASE OF OBSERVER AND GUARDIAN v. THE UNITED KINGDOM

Violation of Art. 10;No violation of Art. 13 or 14+10;Costs and expenses partial award - domestic proceedings;Costs and expenses award - Convention proceedings

The applicants in this case ( who are hereinafter together referred to as " O.G. " ) are ( a ) ORG , the proprietors and publishers of the GPE national DATE newspaper ORG , Mr PERSON , its editor , and Mr PERSON and Mr PERSON , CARDINAL of its reporters ; and ( b ) ORG , the proprietors and publishers of the GPE national DATE newspaper The ORG , Mr PERSON , its editor , and Mr PERSON , CARDINAL of its reporters . They complain of interlocutory injunctions imposed by the NORP courts on the publication of details of the book Spycatcher and information obtained from its author , Mr PERSON .

In litigation where the plaintiff seeks a permanent injunction against the defendant , the NORP courts have a discretion to grant the plaintiff an " interlocutory injunction " ( a temporary restriction pending the determination of the dispute at the substantive trial ) which is designed to protect his position in the interim . In that event the plaintiff will normally be required to give an undertaking to pay damages to the defendant should the latter succeed at the trial .

The principles on which such injunctions will be granted - to which reference was made in the proceedings in the present case - were set out in ORG v. PERSON ( [ DATE ] Appeal Cases CARDINAL ) and may be summarised as follows .

( a ) It is not for the court at the interlocutory stage to seek to determine disputed issues of fact or to decide difficult questions of law which call for detailed argument and mature consideration .

( c ) If damages would be an adequate remedy for the plaintiff if he were to succeed at the trial , no interlocutory injunction should normally be granted . If , on the other hand , damages would not provide an adequate remedy for the plaintiff but would adequately compensate the defendant under the plaintiff ’s undertaking if the defendant were to succeed at the trial , there would be no reason to refuse an interlocutory injunction on this ground .

( d ) It is where there is doubt as to the adequacy of the respective remedies in damages available to either party or both that the question of balance of convenience arises .

( e ) Where other factors appear evenly balanced , it is a counsel of prudence to take such measures as are calculated to preserve the status quo .

Mr PERSON was employed by ORG as a senior member of ORG ( MICARDINAL ) from DATE , when he resigned . Subsequently , without any authority from his former employers , he wrote his memoirs , entitled GPE , and made arrangements for their publication in GPE , where he was then living . The book dealt with the operational organisation , methods and personnel of MICARDINAL and also included an account of alleged illegal activities by ORG . He asserted therein , inter alia , that MICARDINAL conducted unlawful activities calculated to undermine the DATE ORG , burgled and " bugged " the embassies of allied and hostile countries and planned and participated in other unlawful and covert activities at home and abroad , and that Sir PERSON , who led MICARDINAL during the latter part of Mr PERSON ’s employment , was a NORP agent .

PERSON had previously sought , unsuccessfully , to persuade ORG to institute an independent inquiry into these allegations . In DATE such an inquiry was also sought by , amongst others , a number of prominent members of the DATE ORG , but in vain .

Part of the material in Spycatcher had already been published in a number of books about ORG written by PERSON . Moreover , in DATE PERSON had given a lengthy interview to ORG ( an independent television company operating in GPE ) about the work of the service and the programme was shown again in DATE . Other books and another television programme on the workings and secrets of the service were produced at about the same time , but little Government action was taken against the authors or the media .

In DATE the Attorney General of GPE and GPE ( " the Attorney General " ) instituted , on behalf of ORG , proceedings in ORG , GPE , to restrain publication of ORG and of any information therein derived from PERSON work for ORG . The claim was based not on official secrecy but on the ground that the disclosure of such information by PERSON would constitute a breach of , notably , his duty of confidentiality under the terms of his employment . On DATE he and his publishers , ORG , gave undertakings , by which they abided , not to publish pending the hearing of the Government ’s claim for an injunction .

Throughout the NORP proceedings the ORG objected to the book as such ; they declined to indicate which passages they objected to as being detrimental to national security .

Whilst the NORP proceedings were still pending , there appeared , on DATE respectively , short articles on inside pages of ORG reporting on the forthcoming hearing in GPE and giving details of some of the contents of the manuscript of Spycatcher . These CARDINAL newspapers had for some time been conducting a campaign for an independent investigation into the workings of ORG . The details given included the following allegations of improper , criminal and unconstitutional conduct on the part of MICARDINAL officers :

( a ) MICARDINAL " bugged " all diplomatic conferences at ORG in GPE throughout DATE and DATE ’s , as well as the GPE independence negotiations in DATE ;

( b ) MICARDINAL " bugged " diplomats from GPE , GPE , GPE and GPE , as well as Mr GPE ’s hotel suite during his visit to GPE in the DATE ’s , and was guilty of routine burglary and " bugging " ( including the entering of NORP consulates abroad ) ;

( c ) MICARDINAL plotted unsuccessfully to assassinate President PERSON of GPE at the time of the LOC crisis ;

( d ) MICARDINAL plotted against PERSON during his premiership from DATE ;

( e ) MICARDINAL ( contrary to its guidelines ) diverted its resources to investigate left - wing political groups in GPE .

The Observer and ORG articles , which were written by PERSON and PERSON and by Mr PERSON - Taylor respectively , were based on investigations by these journalists from confidential sources and not on generally available international press releases or similar material . However , much of the actual information in the articles had already been published elsewhere ( see paragraph CARDINAL above ) . The LANGUAGE courts subsequently inferred that , on the balance of probabilities , the PERSON sources must have come from the offices of the publishers of ORG or the solicitors acting for them and the author ( see the judgment of DATE of Mr Justice PERSON ; paragraph CARDINAL below ) .

The Attorney General instituted proceedings for breach of confidence in ORG of ORG and GPE against PERSON , seeking permanent injunctions restraining them from making any publication of Spycatcher material . He based his claim on the principle that the information in the memoirs was confidential and that CARDINAL party coming into possession of information knowing that it originated from a breach of confidence owed the same duty to the original confider as that owed by the original confidant . It was accepted that an award of damages would have been an insufficient and inappropriate remedy for the Attorney General and that only an injunction would serve his purpose .

The evidential basis for the Attorney General ’s claim was CARDINAL affidavits sworn by Sir PERSON , Secretary to ORG , in the NORP proceedings on CARDINAL and DATE . He had stated therein , inter alia , that the publication of any narrative based on information available to PERSON as a member of ORG would cause unquantifiable damage , both to the service itself and to its officers and other persons identified , by reason of the disclosures involved . It would also undermine the confidence that friendly countries and other organisations and persons had in ORG and create a risk of other employees or former employees of that service seeking to publish similar information .

On DATE ex parte interim injunctions were granted to the Attorney General restraining any further publication of the kind in question pending the substantive trial of the actions . On an application by PERSON and after an inter partes hearing on DATE , Mr Justice PERSON ( sitting in ORG ) decided that these injunctions should remain in force , but with various modifications . The defendants were given liberty to apply to vary or discharge the orders on giving CARDINAL hours’ notice .

The reasons for Mr Justice PERSON ’s decision may be briefly summarised as follows .

( a ) Disclosure by PERSON of information acquired as a member of ORG would constitute a breach of his duty of confidentiality .

( b ) PERSON wished to be free to publish further information deriving directly or indirectly from PERSON and disclosing alleged unlawful activity on the part of ORG , whether or not it had been previously published .

( c ) Neither the right to freedom of speech nor the right to prevent the disclosure of information received in confidence was absolute .

( d ) In resolving , as in the present case , a conflict between the public interest in preventing and the public interest in allowing such disclosure , the court had to take into account all relevant considerations , including the facts that this was an interlocutory application and not the trial of the action , that the injunctions sought at this stage were only temporary and that the refusal of injunctive relief might cause irreparable harm and effectively deprive the Attorney General of his rights . In such circumstances , the conflict should be resolved in favour of restraint , unless the court was satisfied that there was a serious defence of public interest that might succeed at the trial : an example would be when the proposed publication related to unlawful acts , the disclosure of which was required in the public interest . This could be regarded either as an exception to the NORP ORG principles ( see paragraph CARDINAL above ) or their application in special circumstances where the public interest was invoked on both sides .

( e ) The Attorney General ’s principal objection was not to the dissemination of allegations about ORG but to the fact that those allegations were made by CARDINAL of its former employees , it being that particular fact which PERSON wished to publish . There was credible evidence ( in the shape of Sir PERSON affidavits ; see paragraph CARDINAL above ) that the appearance of confidentiality was essential to the operation of ORG and that the efficient discharge of its duties would be impaired , with consequent danger to national security , if senior officers were known to be free to disclose what they had learned whilst employed by it . Although this evidence remained to be tested at the substantive trial , the refusal of an interlocutory injunction would permit indirect publication and permanently deprive the Attorney General of his rights at the trial . Bearing in mind , inter alia , that the alleged unlawful activities had occurred some time in the past , there was , moreover , no compelling interest requiring publication immediately rather than after the trial .

In the subsequent stages of the interlocutory proceedings , both ORG ( see paragraphs DATE below ) and all the members of ORG ( see paragraphs CARDINAL below ) considered that this initial grant of interim injunctions by Mr Justice PERSON was justified .

On DATE ORG dismissed an appeal by PERSON and upheld the injunctions , with minor modifications . It referred to the NORP ORG principles ( see paragraph CARDINAL above ) and considered that Mr Justice PERSON had not misdirected himself or exercised his discretion on an erroneous basis . It refused leave to appeal to ORG . It also certified the case as fit for a speedy trial .

As amended by ORG , the injunctions ( " the PERSON injunctions " ) restrained PERSON , until the trial of the action or further order , from :

" CARDINAL . disclosing or publishing or causing or permitting to be disclosed or published to any person any information obtained by PERSON in his capacity as a member of ORG and which they know , or have reasonable grounds to believe , to have come or been obtained , whether directly or indirectly , from the said PERSON ;

attributing in any disclosure or publication made by them to any person any information concerning ORG to the said PERSON whether by name or otherwise . "

The orders contained the following provisos :

" CARDINAL . this Order shall not prohibit direct quotation of attributions to PERSON already made by Mr PERSON in published works , or in a television programme or programmes broadcast by ORG ;

no breach of this Order shall be constituted by the disclosure or publication of any material disclosed in open court in ORG unless prohibited by the Judge there sitting or which , after the trial there in action no . CARDINAL of DATE , is not prohibited from publication ;

no breach of this Order shall be constituted by a fair and accurate report of proceedings in ( a ) either ORG of ORG in the GPE whose publication is permitted by that ORG ; or ( b ) a court of the GPE sitting in public . "

On DATE ORG granted leave to appeal against ORG decision . The appeal was subsequently withdrawn in the light of ORG decision of CARDINAL DATE ( see paragraphs DATE below ) .

The trial of the ORG ’s action in GPE ( see paragraph CARDINAL above ) took place in DATE . The proceedings were reported in detail in the media in GPE and elsewhere . In a judgment delivered on CARDINAL DATE Mr Justice PERSON rejected the Attorney General ’s claim against Mr PERSON and his publishers , holding that much of the information in GPE was no longer confidential and that publication of the remainder would not be detrimental to ORG or ORG . The undertakings not to publish were then discharged by order of the court .

The Attorney General lodged an appeal ; after a hearing in ORG in DATE , judgment was reserved . The defendants had given further undertakings not to publish whilst the appeal was pending .

On DATE a major summary of certain of the allegations in ORG , allegedly based on a copy of the manuscript , appeared in the GPE national DATE newspaper ORG . DATE reports of that summary were published in ORG and ORG .

On DATE the Attorney General applied to ORG of ORG for leave to move against the publishers and editors of these CARDINAL newspapers for contempt of court , that is conduct intended to interfere with or prejudice the administration of justice . Leave was granted on DATE . In this application ( hereinafter referred to as " the Independent case " ) the Attorney General was not acting - as he was in the breach of confidence proceedings against O.G. - as the representative of the Government , but independently and in his capacity as " the guardian of the public interest in the due administration of justice " .

Reports similar to those of DATE appeared on DATE in GPE , in ORG and ORG , and on DATE in GPE , in ORG .

On DATE CARDINAL PERSON applied for the discharge of the PERSON injunctions ( see paragraph CARDINAL above ) on the ground that there had been a significant change of circumstances since they were granted . They referred to what had transpired in the NORP proceedings and to the GPE newspaper reports of DATE .

The Vice - Chancellor , Sir PERSON , began to hear these applications on DATE but adjourned them pending the determination of a preliminary issue of law , raised in the Independent case ( see paragraph CARDINAL above ) , on which he thought their outcome to be largely dependent , namely " whether a publication made in the knowledge of an outstanding injunction against another party , and which if made by that other party would be in breach thereof , constitutes a criminal contempt of court upon the footing that it assaults or interferes with the process of justice in relation to the said injunction " . On DATE , in response to the Vice - Chancellor ’s invitation , the Attorney General pursued the proceedings in the Independent case in ORG of ORG and the Vice - Chancellor ordered the trial of the preliminary issue .

On CARDINAL DATE Viking ORG , which had purchased from Mr PERSON ’s NORP publishers the GPE publication rights to Spycatcher , announced its intention of publishing the book in the latter country .

On DATE the Vice - Chancellor decided the preliminary issue of law in the Independent case . He held that the reports that had appeared on DATE ( see paragraph CARDINAL above ) could not , as a matter of law , amount to contempt of court because they were not in breach of the express terms of the PERSON injunctions and the CARDINAL newspapers concerned had not been a party to those injunctions or to a breach thereof by the persons they enjoined . The Attorney General appealed .

On DATE O.G. , relying on the intended publication in GPE , applied to have the hearing of their application for discharge of the PERSON injunctions restored ( see paragraph CARDINAL above ) . The matter was , however , adjourned pending the outcome of the Attorney General ’s appeal in the Independent case , the hearing of which began on DATE .

On CARDINAL DATE the GPE national DATE newspaper ORG , which had purchased the NORP newspaper serialisation rights from Mr PERSON ’s NORP publishers and obtained a copy of the manuscript from ORG in GPE , printed - in its later editions in order to avoid the risk of proceedings for an injunction - the first instalment of extracts from Spycatcher . It explained that this was timed to coincide with publication of the book in GPE , which was due to take place on DATE .

On DATE the Attorney General commenced proceedings for contempt of court against ORG , the publisher of ORG , and Mr PERSON , its editor ( hereinafter together referred to as " S.T. " ) , on the ground that the publication frustrated the purpose of the PERSON injunctions .

On DATE ORG published FAC in GPE ; some copies had , in fact , been put on sale on DATE . It was an immediate best - seller . ORG , which had been advised that proceedings to restrain publication in GPE would not succeed , took no legal action to that end either in that country or in GPE , where the book also became a best - seller .

A substantial number of copies of the book were then brought into GPE , notably by NORP citizens who had bought it whilst visiting GPE or who had purchased it by telephone or post from NORP bookshops . The telephone number and address of such bookshops willing to deliver the book to GPE were widely advertised in that country . No steps to prevent such imports were taken by ORG , which formed the view that although a ban was within their powers , it was likely to be ineffective . They did , however , take steps to prevent the book ’s being available at GPE booksellers or public libraries .

On DATE ORG announced that it would reverse the judgment of the Vice - Chancellor in the Independent case ( see paragraph CARDINAL above ) . Its reasons , which were handed down on DATE , were basically as follows : the purpose of the PERSON injunctions was to preserve the confidentiality of the Spycatcher material until the substantive trial of the actions against PERSON ; the conduct of ORG , The London Evening Standard and ORG could , as a matter of law , constitute a criminal contempt of court because publication of that material would destroy that confidentiality and , hence , the subject - matter of those actions and therefore interfere with the administration of justice . ORG remitted the case to ORG for it to determine whether the CARDINAL newspapers had acted with the specific intent of so interfering ( sections CARDINAL(CARDINAL ) and CARDINAL ) of ORG ) .

ORG refused the defendants leave to appeal to ORG and they did not seek leave to appeal from the ORG itself . Neither did they apply to ORG for modification of the PERSON injunctions . The result of ORG decision was that those injunctions were effectively binding on all the NORP media , including ORG .

ORG made it clear that , unless restrained by law , they would publish the second instalment of the serialisation of Spycatcher on DATE . On DATE the Attorney General applied for an injunction to restrain them from publishing further extracts , maintaining that this would constitute a contempt of court by reason of the combined effect of the PERSON injunctions and the decision in the NORP case ( see paragraph CARDINAL above ) .

On DATE the Vice - Chancellor granted a temporary injunction restraining publication by ORG until DATE . It was agreed that on DATE he would consider the application by PERSON for discharge of the PERSON injunctions ( see paragraph CARDINAL above ) and that , since they effectively bound PERSON as well , the latter would have a right to be heard in support of that application . It was further agreed that he would also hear the Attorney General ’s claim for an injunction against ORG and that that claim would fail if the PERSON injunctions were discharged .

Having heard argument from DATE , the Vice - Chancellor gave judgment on the last - mentioned date , discharging the PERSON injunctions and dismissing the claim for an injunction against ORG

The Vice - Chancellor ’s reasons may be briefly summarised as follows .

( a ) There had , notably in view of the publication in GPE ( see paragraphs CARDINAL above ) , been a radical change of circumstances , and it had to be considered if it would be appropriate to grant the injunctions in the new circumstances .

( b ) Having regard to the case - law and notwithstanding the changed circumstances , it had to be assumed that the Attorney General still had an arguable case for obtaining an injunction against PERSON at the substantive trial ; accordingly , the ordinary NORP ORG principles ( see paragraph CARDINAL above ) fell to be applied .

( c ) Since damages would be an ineffective remedy for the Attorney General and would be no compensation to the newspapers , it had to be determined where the balance of convenience lay ; the preservation of confidentiality should be favoured unless another public interest outweighed it .

( d ) Factors in favour of continuing the injunctions were : the proceedings were only interlocutory ; there was nothing new or urgent about Mr PERSON ’s allegations ; the injunctions would bind all the media , so that there would be no question of discrimination ; undertakings not to publish were still in force in GPE ; to discharge the injunctions would mean that the courts were powerless to preserve confidentiality ; to continue the injunctions would discourage others from following Mr PERSON ’s example .

( e ) Factors in favour of discharging the injunctions were : publication in GPE had destroyed a large part of the purpose of the Attorney General ’s actions ; publications in the press , especially those concerning allegations of unlawful conduct in the public service , should not be restrained unless this was unavoidable ; the courts would be brought into disrepute if they made orders manifestly incapable of achieving their purpose .

( f ) The matter was quite nicely weighted and in no sense obvious but , with hesitation , the balance fell in favour of discharging the injunctions .

The Attorney General immediately appealed against the Vice - Chancellor ’s decision ; pending the appeal the injunctions against PERSON , but not the injunction against ORG ( see paragraph CARDINAL above ) , were continued in force .

In a judgment of CARDINAL DATE ORG held that :

( a ) the Vice - Chancellor had erred in law in various respects , so that ORG could exercise its own discretion ;

( b ) in the light of the NORP publication of Spycatcher , it was inappropriate to continue the PERSON injunctions in their original form ;

( c ) it was , however , appropriate to vary these injunctions to restrain publication in the course of business of all or part of the book or other statements by or attributed to PERSON on security matters , but to permit " a summary in very general terms " of his allegations .

The members of ORG considered that continuation of the injunctions would : serve to restore confidence in ORG by showing that memoirs could not be published without authority ( Sir PERSON , Master of the Rolls ) ; serve to protect the Attorney General ’s rights until the trial ( Lord Justice PERSON ) ; or fulfil the courts’ duty of deterring the dissemination of material written in breach of confidence ( Lord Justice PERSON ) .

ORG gave leave to all parties to appeal to ORG .

After hearing argument from CARDINAL to CARDINAL DATE ( when neither side supported ORG compromise solution ) , ORG gave judgment on DATE , holding , by a majority of CARDINAL ( Lord PERSON of ORG , Lord Templeman and Lord PERSON ) to CARDINAL ( Lord Bridge of GPE - the immediate past Chairman of ORG - and Lord PERSON of GPE ) , that the PERSON injunctions should continue . In fact , they subsequently remained in force until the commencement of the substantive trial in the breach of confidence actions on CARDINAL DATE ( see paragraph DATE below ) .

The majority also decided that the scope of the injunctions should be widened by the deletion of part of the proviso that had previously allowed certain reporting of the NORP proceedings ( see paragraph CARDINAL above ) , since the injunctions would be circumvented if LANGUAGE newspapers were to reproduce passages from Spycatcher read out in open court . In the events that happened , this deletion had , according to the Government , no practical incidence on the reporting of the NORP proceedings .

The members of ORG gave their written reasons on CARDINAL DATE ; they may be briefly summarised as follows .

( i ) The object of the Attorney General ’s actions against PERSON was the protection of an important public interest , namely the maintenance as far as possible of the secrecy of ORG ; as was recognised in Article CARDINAL para . CARDINAL ( article CARDINAL ) of the LAW , the right to freedom of expression was subject to certain exceptions , including the protection of national security .

( ii ) The injunctions in issue were only temporary , being designed to hold the ring until the trial , and their continuation did not prejudge the decision to be made at the trial on the claim for final injunctions .

( iii ) The view taken in the courts below , before the NORP publication , that the Attorney General had a strong arguable case for obtaining final injunctions at the trial was not really open to challenge .

( iv ) Publication in GPE had weakened that case , but it remained arguable ; it was not clear whether , as a matter of law , that publication had caused the newspapers’ duty of non - disclosure to lapse . Although the major part of the potential damage adverted to by Sir PERSON ( see paragraph CARDINAL above ) had already been done , the courts might still be able to take useful steps to reduce the risk of similar damage by other ORG employees in the future . This risk was so serious that the courts should do all they could to minimise it .

( v ) The only way to determine the Attorney General ’s case justly and to strike the proper balance between the public interests involved was to hold a substantive trial at which evidence would be adduced and subjected to cross - examination .

( vi ) Immediate discharge of the injunctions would completely destroy the Attorney General ’s arguable case at the interlocutory stage , without his having had the opportunity of having it tried on appropriate evidence .

( vii ) Continuing the injunctions until the trial would , if the Attorney General ’s claims then failed , merely delay but not prevent the newspapers’ right to publish information which , moreover , related to events that had taken place DATE in the past .

( viii ) In the overall interests of justice , a course which could only result in temporary and in no way irrevocable damage to the cause of the newspapers was to be preferred to CARDINAL which might result in permanent and irrevocable damage to the cause of the Attorney General .

( i ) The appeal involved a conflict between the right of the public to be protected by ORG and its right to be supplied with full information by the press . It therefore involved consideration of the LAW , the question being whether the interference constituted by the injunctions was , on DATE , necessary in a NORP society for one or more of the purposes listed in DATE . CARDINAL ( article CARDINAL ) .

( ii ) In terms of the LAW , the restraints were necessary in the interests of national security , for protecting the reputation or rights of others , for preventing the disclosure of information received in confidence and for maintaining the authority of the judiciary . The restraints would prevent harm to ORG , notably in the form of the mass circulation , both now and in the future , of accusations to which its members could not respond . To discharge the injunctions would surrender to the press the power to evade a court order designed to protect the confidentiality of information obtained by a member of the ORG .

( i ) It was accepted by all members of ORG that : the Attorney General had an arguable case for a permanent injunction ; damages were a worthless remedy for the ORG which , if the PERSON injunctions were not continued , would lose forever the prospect of obtaining permanent injunctions at the trial ; continuation of the PERSON injunctions was not a " final locking - out " of the press which , if successful at the trial , would then be able to publish material that had no present urgency ; there was a real public interest , that required protection , concerned with the efficient functioning of ORG and it extended , as was not challenged by the newspapers , to discouraging the use of the GPE market for the dissemination of unauthorised memoirs of ORG officers .

( ii ) It would thus be a denial of justice to refuse to allow the injunctions to continue until the trial , for that would sweep aside the public - interest factor without any trial and would prematurely and permanently deny the Attorney General any protection from the courts .

( i ) The case in favour of maintaining the PERSON injunctions - which had been properly granted in the first place - would not be stronger at the trial than it was now ; it would be absurd to continue them temporarily if no case for permanent injunctions could be made out .

( ii ) Since the Spycatcher allegations were now freely available to the public , it was manifestly too late for the injunctions to serve the interest of national security in protecting sensitive information .

( iii ) It could be assumed that the Attorney General could still assert a bare duty binding on the newspapers , but the question was whether the PERSON injunctions could still protect an interest of national security of sufficient weight to justify the resultant encroachment on freedom of speech . The argument that their continuation would have a deterrent effect was of minimal weight .

( iv ) The attempt to insulate the NORP public from information freely available elsewhere was a significant step down the road to censorship characteristic of a totalitarian regime and , if pursued , would lead to the ORG ’s condemnation and humiliation by ORG .

( i ) Mr Justice PERSON ’s initial order was entirely correct .

( ii ) The injunctions had originally been imposed to preserve the confidentiality of what were at the time unpublished allegations , but that confidentiality had now been irrevocably destroyed by the publication of Spycatcher . It was questionable whether it was right to use the injunctive remedy against the newspapers ( who had not been concerned with that publication ) for the remaining purpose which the injunctions might serve , namely punishing PERSON and providing an example to others .

( iii ) The newspapers had presented their arguments on the footing that the Attorney General still had an arguable case for the grant of permanent injunctions and there was force in the view that the difficult and novel point of law involved should not be determined without further argument at the trial . However , in the light of the public availability of the Spycatcher material , it was difficult to see how it could be successfully argued that the newspapers should be permanently restrained from publishing it and the case of the Attorney General was unlikely to improve in the meantime . No arguable case for permanent injunctions at the trial therefore remained and the PERSON injunctions should accordingly be discharged .

On DATE ORG of Appeal delivered judgment dismissing the Attorney General ’s appeal ( see paragraph CARDINAL above ) ; the majority held that his claim was not justiciable in an NORP court since it involved either an attempt to enforce indirectly the public laws of a foreign ORG or a determination of the question whether publication would be detrimental to the public interest in GPE .

The Attorney General appealed to ORG of GPE . In view of the publication of ORG in GPE and elsewhere , that court declined to grant temporary injunctions restraining its publication in GPE pending the hearing ; it was published in that country on DATE . The appeal was dismissed on DATE , on the ground that , under international law , a claim - such as the Attorney General ’s - to enforce NORP governmental interests in its security service was unenforceable in the NORP courts .

Further proceedings brought by the Attorney General against newspapers for injunctions were successful in GPE but not in GPE .

In the meantime publication and dissemination of Spycatcher and its contents continued worldwide , not only in GPE ( CARDINAL copies were printed and nearly all were sold by DATE ) and in GPE ( CARDINAL copies printed ) , but also in GPE ( CARDINAL copies printed , of which CARDINAL were sold within DATE ) and GPE ( CARDINAL copies printed and distributed ) . CARDINAL copies were sent to various NORP countries other than GPE and copies were distributed from GPE in NORP countries . Radio broadcasts in LANGUAGE about the book were made in GPE and GPE and it was translated into CARDINAL other languages , including CARDINAL NORP .

DATE . On DATE the Attorney General instituted proceedings against ORG for breach of confidence ; in addition to injunctive relief , he sought a declaration and an account of profits . The substantive trial of that action and of his actions against PERSON ( see paragraph CARDINAL above ) - in which , by an amendment of DATE , he now claimed a declaration as well as an injunction - took place before Mr Justice PERSON in ORG in DATE . He heard evidence on behalf of all parties , the witnesses including Sir PERSON ( see paragraph CARDINAL above ) . He also continued the interlocutory injunctions , pending delivery of his judgment .

Mr Justice PERSON gave judgment on DATE ; it contained the following observations and conclusions .

( a ) The ground for the Attorney General ’s claim for permanent injunctions was no longer the preservation of the secrecy of certain information but the promotion of the efficiency and reputation of ORG .

( b ) Where a duty of confidence is sought to be enforced against a newspaper coming into possession of information known to be confidential , the scope of its duty will depend on the relative weights of the interests claimed to be protected by that duty and the interests served by disclosure .

( c ) Account should be taken of LAW ) of the LAW and the judgments of ORG establishing that a limitation of free expression in the interests of national security should not be regarded as necessary unless there was a " pressing social need " for the limitation and it was " proportionate to the legitimate aims pursued " .

( d ) PERSON owed a duty to the Crown not to disclose any information obtained by him in the course of his employment in MICARDINAL . He broke that duty by writing PERSON and submitting it for publication , and the subsequent publication and dissemination of the book amounted to a further breach , so that the Attorney General would be entitled to an injunction against PERSON or any agent of his , restraining publication of ORG in GPE .

( e ) O.G. were not in breach of their duty of confidentiality , created by being recipients of PERSON unauthorised disclosures , in publishing their respective articles of CARDINAL and DATE ( see paragraph CARDINAL above ) : the articles were a fair report in general terms of the forthcoming trial in GPE and , furthermore , disclosure of CARDINAL of PERSON allegations was justified on an additional ground relating to the disclosure of " iniquity " .

( f ) ORG , on the other hand , had been in breach of the duty of confidentiality in publishing the first instalment of extracts from the book on CARDINAL DATE ( see paragraph CARDINAL above ) , since those extracts contained certain material which did not raise questions of public interest outweighing those of national security .

( g ) S.T. were liable to account for the profits accruing to them as a result of the publication of that instalment .

( h ) The Attorney General ’s claims for permanent injunctions failed because the publication and worldwide dissemination of Spycatcher since DATE had had the result that there was no longer any duty of confidence lying on newspapers or other third parties in relation to the information in the book ; as regards this issue , a weighing of the national security factors relied on against the public interest in freedom of the press showed the latter to be overwhelming .

( i ) The Attorney General was not entitled to a general injunction restraining future publication of information derived from PERSON or other members of ORG .

After hearing argument , Mr Justice PERSON imposed fresh temporary injunctions pending an appeal to ORG ; those injunctions contained a proviso allowing reporting of the NORP proceedings ( see paragraphs CARDINAL above ) .

On appeal by the Attorney General and a cross - appeal by ORG , ORG ( composed of Sir PERSON , Master of the Rolls , Lord Justice PERSON and Lord Justice PERSON ) affirmed , on DATE , the decision of Mr Justice PERSON .

However , Sir PERSON disagreed with his view that the articles in the Observer and The ORG had not constituted a breach of their duty of confidence and that the claim for an injunction against these CARDINAL newspapers in DATE was not " proportionate to the legitimate aim pursued " . Lord Justice PERSON , on the other hand , disagreed with PERSON Justice PERSON ’s view that ORG had been in breach of duty by publishing the first instalment of extracts from Spycatcher , that they should account for profits and that the Attorney General had been entitled , in the circumstances as they stood in DATE , to injunctions preventing further serialisation .

After hearing argument , ORG likewise granted fresh temporary injunctions , pending an appeal to ORG ; PERSON and ORG were given liberty to apply for variation or discharge if any undue delay arose .

On DATE ORG ( Lord PERSON of GPE , Lord PERSON , Lord PERSON , Lord PERSON of Chieveley and Lord GPE of GPE ) also affirmed Mr Justice PERSON ’s decision . Dismissing an appeal by the Attorney General and a cross - appeal by ORG , it held :

" ( i ) That a duty of confidence could arise in contract or in equity and a confidant who acquired information in circumstances importing such a duty should be precluded from disclosing it to others ; that a third party in possession of information known to be confidential was bound by a duty of confidence unless the duty was extinguished by the information becoming available to the general public or the duty was outweighed by a countervailing public interest requiring disclosure of the information ; that in seeking to restrain the disclosure of government secrets the ORG must demonstrate that disclosure was likely to damage or had damaged the public interest before relief could be granted ; that since the world - wide publication of ORG had destroyed any secrecy as to its contents , and copies of it were readily available to any individual who wished to obtain them , continuation of the injunctions was not necessary ; and that , accordingly , the injunctions should be discharged .

( ii ) ( Lord PERSON dissenting ) that the articles of DATE and DATE ] had not contained information damaging to the public interest ; that the Observer and The ORG were not in breach of their duty of confidentiality when they published [ those ] articles ; and that , accordingly , the ORG would not have been entitled to a permanent injunction against both newspapers .

( iii ) That ORG was in breach of its duty of confidence in publishing its first serialised extract from Spycatcher on DATE ; that it was not protected by either the defence of prior publication or disclosure of iniquity ; that imminent publication of the book in GPE did not amount to a justification ; and that , accordingly , ORG was liable to account for the profits resulting from that breach .

( iv ) That since the information in Spycatcher was now in the public domain and no longer confidential no further damage could be done to the public interest that had not already been done ; that no injunction should be granted against the Observer and The ORG restraining them from reporting on the contents of the book ; and that ( Lord PERSON dissenting ) no injunction should be granted against ORG to restrain serialising of further extracts from the book .

( v ) That members and former members of ORG owed a lifelong duty of confidence to the ORG , and that since the vast majority of them would not disclose confidential information to the newspapers it would not be appropriate to grant a general injunction to restrain the newspapers from future publication of any information on the allegations in GPE derived from any member or former member of ORG . "

The substantive trial of the Attorney General ’s actions for contempt of court against ORG , The London Evening Standard , ORG ( see paragraph CARDINAL above ) , PERSON ( see paragraph CARDINAL above ) and certain other newspapers took place before Mr Justice PERSON in ORG in DATE . On DATE he held , inter alia , that ORG had been in contempt of court and imposed a fine of £ MONEY in each case .

On DATE ORG dismissed appeals by the latter CARDINAL newspapers against the finding that they had been in contempt but concluded that no fines should be imposed . A further appeal by ORG against the contempt finding was dismissed by ORG on DATE .


CIMEN, YILMAZ, ÖZTÜRK, ULUG, DELIBAS ET AL AND SARI ET AL v. TURKEY

The applicants are all NORP nationals ( see appendix ) . The second applicant is represented before the ORG by Mr PERSON , a lawyer practising in PERSON . The remaining applicants are represented by Mr PERSON , a lawyer practising in GPE .

A.

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

Application no . CARDINAL


CASE OF RUNKEE AND WHITE v. THE UNITED KINGDOM

No violation of Art. 14+P1-1 in connection with non-entitlement to a Widow's Pension;Violation of Art. 14+P1-1 concerning non-entitlement to a Widow's Payment;Not necessary to examine Art. 14+8;Pecuniary damage - financial award;Costs and expenses partial award

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

Mr Runkee was born in DATE and lives in Hull .

He married in DATE . He and his wife had CARDINAL children , born in DATE , DATE and DATE . On DATE his wife died . She had worked full time for DATE until becoming pregnant and had made full social security contributions .

The applicant notified ORG of his wife 's death and of his intention to claim “ widowers ' benefits ” on DATE . By a letter dated DATE , ORG informed the applicant that because he was not a woman he was not entitled to widow 's benefits . The applicant lodged a statutory appeal against this decision on DATE , but abandoned it when advised that the appeal was bound to fail .

At the time of his application to the ORG , Mr Runkee was in receipt of means - tested statutory benefits , including Income Support and ORG . Were he a woman , his entitlement to ORG would have been offset against these benefits , to the extent that , in his present circumstances , he would have received no additional money in respect of Widow 's Pension .

Mr White is a GPE national , born in DATE and living in GPE .

He married in DATE . He and his wife had CARDINAL children , CARDINAL of whom was adopted and born in DATE , the other of whom was born in DATE .

On DATE his wife died . She had worked until the birth of her son in DATE and had made reduced social security contributions .

The applicant notified ORG of his wife 's death and of his intention to claim “ widowers ' benefits ” on DATE . On DATE and DATE , PERSON , a Minister from ORG , wrote to the applicant 's Member of ORG confirming that as a man he was not entitled to claim widows ' benefits .

The following history of ORG ( “ WP ” ) is taken from Lord PERSON 's speech in NORP v. Secretary of ORG ex parte ORG [ DATE ] UKHL CARDINAL , paragraphs CARDINAL :

“ [ ORG was ] first introduced by the Widows ' , ORG ' and ORG DATE . The LAW provided a pension of MONEY a week to any widow whose husband had paid sufficient contributions . There was no age qualification or time limit on payment . Widows were as such entitled to support . But during the Second World War , large numbers of women worked in the armed forces or civilian employment , replacing men on active service . Public attitudes to widowhood changed . Sir PERSON said in his DATE Report on ORG and ORG ( Cmd CARDINAL , paragraph CARDINAL ) that there was no reason why a childless widow should get a pension for life . If she was able to work she should do so . He recommended that all widows should be paid DATE transitional allowance to help them adjust to their new circumstances but that longer term pensions should be confined to widows with dependent children . The Government did not accept this advice in full . It considered that an older widow , who had in accordance with convention stayed at home during a long marriage to look after husband and children , would often be severely disadvantaged if she was required to earn her own living . LAW DATE therefore not only gave effect to PERSON 's recommendations by introducing [ Widowed Mother 's Allowance : ' PERSON ' ] and a widow 's allowance for DATE after bereavement but also provided ORG for widows who were CARDINAL at the date of the husband 's death or who ceased to qualify for ORG when they were over DATE .

The secular trend in the position of women in employment over DATE reinforced PERSON 's view that being a widow should not , as such , entitle CARDINAL to a pension . More and more women entered the labour market . But the trend was a slow one and crude comparisons of the numbers of economically active men and women are misleading . Far more women than men worked part - time and the great majority of women were ( and remain ) unable to escape from the traditional low - paid activities of cooking , caring and cleaning . So the trend to equality was counteracted by political pressure from groups representing widows who claimed that , as GPE became more prosperous , benefits for widows should be increased rather than reduced . The policies pursued by successive governments were therefore not entirely consistent . ORG National Insurance Act DATE raised to CARDINAL the age at which a woman could claim ORG after ceasing to be entitled to ORG . On the other hand , ORG persons ' and widows ' pensions and attendance allowance ) Act DATE reduced to CARDINAL the age at which ORG would be payable ( at a reduced rate ) , whether as a result of bereavement or the cessation of ORG .

In DATE the government published a ORG on ORG which pointed out ( in paragraph CARDINAL ) that the current system of benefits dated DATE when far fewer married women worked :

' DATE CARDINAL of all married women with children over school age , and over a CARDINAL of widows CARDINAL , go to work . The present pattern of benefits nonetheless provides support without regard to widows ' other income , in many cases long after they have ceased to be responsible for bringing up children . The ORG 's view is that it is right to give greater emphasis to providing for widows of working age who have children to support , and for older widows less able to establish themselves in work . '

Despite this acknowledgement of changes in social conditions , LAW DATE made relatively modest adjustments to the system . DATE transitional widow 's allowance was abolished and the lump sum [ Widow 's Payment : ' WPt ' ] of £ MONEY substituted . The age at which ORG became payable , whether on bereavement or cessation of ORG , was raised to CARDINAL and entitlement to the full rate postponed until CARDINAL . These provisions were subsequently consolidated in the DATE Act .

The DATE changes were opposed by a strong lobby on behalf of widows . But no one suggested in the course of the Parliamentary debates that ORG should be extended to men . It is true that ORG , a non - governmental organisation for ' the widowed and their children ' , which had taken widowers on board in DATE , said in their DATE report :

' We ... continued to press for a widower 's pension , based on his wife 's national insurance contributions , and for an allowance to be paid to widowed fathers . '

But this pressure does not appear to have persuaded anyone to raise the question of ORG for widowers in ORG . The first serious suggestion that widowers should in principle be paid the same benefits as widows came from ORG . There had been a ORG in DATE on ' the progressive implementation of the principle of equal treatment for men and women in matters of social security ' which expressly excluded survivors ' benefits . In DATE the Commission produced a proposal for a new Directive ( Com ( CARDINAL ) CARDINAL Final ) . It drew attention in an explanatory memorandum to a statement of ORG in GPE and ORG of ORG ( Cases CARDINAL/CARDINAL and CARDINAL ) , [ DATE ] ORG , DATE , para CARDINAL ( a case concerning survivors ' pensions under the ORG 's own ORG ) that the principle of equal treatment of men and women ' forms part of the fundamental rights the observance of which the court has a duty to ensure . ' DATE of the draft Directive provided that there should be no discrimination on grounds of sex in the payment of survivorship benefits :

' and to this end :

( a ) either the recognition on the same terms for widowers of entitlement to the pensions and other benefits provided for widows ;

( b ) or the replacement of widows ' benefits by the creation or extension of a system of individual rights open to all surviving spouses regardless of sex . '

ORG on ORG ( ORG ) held an inquiry into the proposal in DATE . Miss PERSON , a writer on social security matters , said in evidence to the ORG that there was no case for paying older widowers the same pensions as older widows . The only way to produce equality was to level down . But hasty action would cause real hardship to large numbers of older widows who had chosen DATE to follow the conventional path of staying home to look after husband and children :

' the effect of earlier social patterns on women still have to be worked through . This suggests the need to phase out the older widow 's pension over a long period — in the order of DATE . Without this , there would be a serious risk of poverty among older widows who had followed the social norms of DATE and now find themselves at a severe disadvantage in a changed world as a result . '

ORG accepted Miss PERSON 's evidence and reported ( Session DATE , CARDINALth Report , ORG ) :

' In GPE ... there might be reluctance to reproduce for widowers the pension a childless widow can receive under the national insurance scheme , irrespective of her earnings , if she is aged DATE or more when her husband dies . This is in recognition of the difficulty the widow may find in re - establishing herself in the labour market — whereas a widower 's earning ability would not ordinarily be prejudiced in this way .

The ORG consider that , despite these difficulties , the concept of equal treatment must require that , eventually , men and women should be provided with survivors ' benefits on the same terms . Employment patterns are changing and , if it becomes the norm for married couples to be dependent on the earnings of both partners for most of their working lives , it will make sense for equal survivors ' benefits to be available . There is also a need to avoid putting families at a disadvantage if the mother , rather than the father , becomes the principal breadwinner . It would , however , be perverse to deprive widows of benefits they still need in the interests of sex equality . To reduce this danger , a substantial period should be allowed — DATE before Member GPE are obliged to equalise survivors ' benefits . Community law recognises a principle of ' legitimate expectation ' which would support this approach . '

The Government published its response on DATE ( Cm CARDINAL ) . It said at para CARDINAL :

' Within the state social security system the Government do not think there is any merit in introducing a universal state insurance benefit for widowers on a par with those currently provided for widows . To extend the current provisions for widows to widowers would cost MONEY a year . The available evidence indicates that widowers are more likely to be in full time work than widows , are more likely to have higher earnings than widows and are less likely to have dependent children . As a consequence the ORG have made it clear to the ORG that the equalisation of survivors ' benefits should be removed from this draft directive entirely . '

In DATE the ORG withdrew the draft directive pending further consultation with Member GPE and there has been no further ORG initiative on the question .

... [ O]ver DATE the question of paying PERSON to widowed fathers was raised on CARDINAL occasion ( see , for example , a Private Member 's PERSON introduced by Mr PERSON MP on DATE ( ORG ( CARDINALth Series ) vol CARDINAL , cols CARDINAL - CARDINAL ) and a Written Answer by the Secretary of ORG ( ORG Deb ( CARDINALth Series ) vol CARDINAL , DATE , col CARDINAL ) ) . No one suggested paying ORG to widowers or , unsurprisingly , abolishing ORG for widows . ORG said in evidence in these proceedings that Mr PERSON 's decision to confine his Private Member 's PERSON to PERSON was ' tactical ' but the need for such tactics suggests that there would have been little support for anything more .

The abolition of ORG came as part of a wider reform of survivorship and other social security benefits in LAW . It was preceded in DATE by a ORG which drew attention to the fact that , in DATE , CARDINAL out of CARDINAL married women worked compared with CARDINAL in CARDINAL in DATE . CARDINAL of widows under CARDINAL worked and PERCENT of widows now had income from occupational pension schemes . The Government took the view that widows without dependent children no longer needed long term support . The extension of ORG to men was ' not acceptable ' : it would cost MONEY a year and would mean giving help to people who were , as a class , unlikely to need it .

But the abolition of ORG was strongly opposed by some members of ORG , partly on the ground that elderly widows were still disadvantaged compared with men or younger widows and partly on the ground that ORG was a contributory benefit and that it would be a breach of faith to deny it to the widows of men who had made contributions and arranged their affairs on the assumption that it would be available . An opposition amendment deferring the abolition of ORG until DATE was defeated but the ORG agreed that the changes should not come into force until DATE and that the rights of women bereaved before that date should be preserved . ”

Under LAW of the DATE Act , a woman who had been widowed was entitled to a ORG if her husband satisfied the contribution conditions set out in a Schedule to the LAW ; and

( i ) at the date of her husband 's death she was over DATE ( CARDINAL for deaths occurring before DATE ) , but under DATE ; or

( ii ) she ceased to be entitled to a ORG at a time when she was over DATE ( CARDINAL for deaths occurring before DATE ) , but under DATE .

This benefit was not payable for any period after the widow remarried or in which she and a man to whom she was not married were living together as husband and wife , or for any period in which she was entitled to a ORG .

The Welfare Reform and Pensions Act DATE ( “ the DATE LAW ) came into force on DATE . Section CARDINAL introduced ORG which replaced PERSON . The same conditions applied , except that the new payment was available to both widows and widowers whose spouse died on or after DATE . Section CARDINAL introduced ORG . Identical conditions applied as for Widowed Mother 's ORG , except that the new allowance was available to ( i ) widows and widowers whose spouse died on or after DATE and who were under pensionable age ( CARDINAL for women and CARDINAL for men ) at the time of the spouse 's death , and ( ii ) widowers whose wife died before DATE , who had not remarried and were still under pensionable age on DATE .

Section CARDINAL replaced ORG with ORG for widows and widowers over DATE but under pensionable age at the spouse 's death , where no dependent children existed . The deceased spouse had to have satisfied the relevant contribution conditions and died on or after DATE . ORG is payable for DATE from the date of bereavement , but is not payable for any period after the survivor reaches pensionable age or remarries or lives with another person as husband and wife , or for any period for which the survivor was entitled to Widowed Parent 's ORG .

Widows ( but not widowers ) whose husbands died before DATE , and who fulfilled the other conditions of entitlement , continued to be eligible for ORG .

For details of the relevant legislative provisions , see PERSON , PERSON , PERSON and Geen v. the GPE , nos . CARDINAL , GPE , GPE and GPE , judgment of DATE , § § DATE and CARDINAL - CARDINAL .

On DATE ORG delivered a unanimous judgment ( cited in paragraph CARDINAL above ) , in which it found , inter alia , that the difference in treatment between men and women as regards ORG from CARDINAL October CARDINAL ( when LAW DATE came into force ) onwards was objectively justified and involved no breach of Convention rights .

Lord PERSON , with whom the other Law Lords agreed , observed that ORG had , for reasons of administrative economy , never been means - tested , but had been paid to older widows because it was thought that , as a class , they were likely to be disadvantaged because it had been the custom for women to give up work when they got married . The same did not apply to widowers . The question was not , therefore , whether there was justification for not paying ORG to men , but rather whether there was justification for not having moved faster in abolishing its payment to women . The history of ORG ( set out in paragraph CARDINAL above ) demonstrated that the decision to achieve equality between men and women by levelling down survivors ' benefits , subject to vested rights , was by no means easy or obvious . It was true that by DATE the proportion of older women ( CARDINAL ) who were “ economically active ” was PERCENT against PERCENT for men . But those figures had to be adjusted to reflect greater part - time working by women ( PERCENT as against PERCENT ) and the concentration of women in low - paid occupations . The comparative disadvantage of women in the labour market had by no means disappeared .

It was permissible under LAW to treat groups unequally in order to correct “ factual inequalities ” between them , and the ORG enjoyed a wide margin of appreciation in determining social and economic policy . Once it was accepted that older widows were historically an economically disadvantaged class which merited special treatment but were gradually becoming less disadvantaged , the question of the precise moment at which such special treatment was no longer justified was a matter of legislative judgment .


CASE OF JOSEPH GRANT v. THE UNITED KINGDOM

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

The applicant was born in GPE on DATE and he is currently living there again .

CARDINAL .

The applicant and CARDINAL of his CARDINAL brothers arrived in GPE in DATE to join their mother who was already there . His brother was granted NORP citizenship in DATE . A third brother was born in GPE . His mother and CARDINAL brothers continue to live in GPE . He has no surviving relatives in GPE .

In DATE the applicant had a son , PERSON , by a NORP national . He has a grandchild by this son . In DATE the applicant had a second son , PERSON , by a second NORP woman . Also in DATE he began a relationship with a third NORP national which lasted DATE . They had a daughter , PERSON , who has born in DATE and is now DATE . During this time the applicant had a third son , PERSON , by another woman . PERSON is now DATE .

Although the applicant has never lived with any of his children , he claims that he is in regular contact with all of them and in particular sees his daughter on average CARDINAL times a week . Although she is now married , the applicant remains in contact with the mother of his daughter .

The applicant was first convicted on DATE , when he was fined GBP CARDINAL for shoplifting . DATE he was fined a further ORG after a second conviction for shoplifting , and in DATE he was fined GBP CARDINAL following convictions for criminal damage and assaulting a police officer . On DATE the applicant was convicted of supplying a controlled drug . He was sentenced to CARDINAL months’ imprisonment . Following this sentence , the applicant was considered for deportation by the Secretary of ORG for ORG . Following representations by the applicant that the drug in question was cannabis with a value of ORG ( equivalent to LAW ) , on DATE the Secretary of ORG wrote to the applicant advising him that deportation action would not be pursued and warning him that if he came to the adverse notice of ORG in the future his deportation would again be considered .

The applicant subsequently became addicted to heroin . DATE and DATE he was convicted CARDINAL times for CARDINAL offences , including driving offences , assaulting a police officer , assault occasioning actual bodily harm , criminal damage , possession of an offensive weapon , possession and supply of controlled drugs and theft . The applicant received sentences of fines , suspended sentences , community service orders and occasionally prison sentences which at no time exceeded DATE . He maintains that these convictions were connected with his drug abuse and , while they included convictions for the possession of crack cocaine and heroin and theft in order to feed his drug habit , he has never sold drugs .

On DATE he pleaded guilty to robbery at ORG . In sentencing the applicant , the trial judge noted that the normal sentence for robbery would have been CARDINAL to CARDINAL years’ imprisonment but , given the facts in the case and the applicant ’s guilty plea , he imposed a sentence of CARDINAL months’ imprisonment . He made no recommendation regarding the applicant ’s deportation from GPE .

On DATE , at ORG , the applicant was convicted of CARDINAL counts of theft and breach of a conditional discharge for possessing a controlled drug .

On CARDINAL DATE the Secretary of ORG for ORG made a deportation order against the applicant stating that , in view of his conviction for robbery of DATE , it was conducive to the public good to do so .

The applicant appealed to ORG ( “ the ORG ” ) , relying , inter alia , on LAW . He argued that , in light of his extensive private and family life in GPE and the length of his stay there , the decision to deport him was a violation of LAW . In its determination of DATE , the ORG dismissed the applicant ’s appeal . It accepted that the applicant enjoyed family life in GPE but held that the relevant judgments of ORG finding a violation of Article CARDINAL in deportation cases could be distinguished on the facts . The ORG concluded :

‘ We therefore consider that , although there will be a breach of the Appellant ’s family life if deported to GPE , this will not be disproportionate in terms of being conducive to the public good.’

The applicant applied for reconsideration of the ORG ’s decision . On DATE , a Senior Immigration Judge refused the application , holding that the ORG had clearly considered the applicant ’s contact with all his children and was well aware of the length of time the applicant had been living in GPE . She found the ORG ’s reasons to be adequate , proper and intelligible .

The applicant ’s application for statutory review was dismissed by ORG on DATE . On CARDINAL DATE the applicant was deported to GPE .

Section CARDINAL(CARDINAL)(a ) of LAW DATE ( as amended by ORG ) provides that a person who is not a NORP citizen shall be liable to deportation from GPE if the Secretary of ORG deems his deportation to be conducive to the public good . Sections CARDINAL(CARDINAL ) and CARDINAL of the Nationality , Immigration and Asylum Act DATE provide for a right of appeal against this decision on the grounds , inter alia , that the decision is incompatible with the Convention .

Section CARDINAL of LAW DATE provides that , in determining any question that arises in connection with a Convention right , courts and tribunals must take into account any case - law from this ORG so far as , in the opinion of the court or tribunal , it is relevant to the proceedings in which that question has arisen .

The Rules relating to the revocation of a deportation order are contained in paragraphs LAW of ORG CARDINAL ( as amended ) , supplemented by LAW ( “ IDIs ” ) . There is no specific period after which revocation will be appropriate although ORG to LAW of the IDIs gives broad guidelines on the length of time deportation orders should remain in force after removal . Cases which will normally be appropriate for revocation DATE after deportation include those of overstayers and persons who failed to observe a condition attached to their leave , persons who obtained leave by deception , and family members deported under LAW ) of LAW DATE . With regard to criminal conviction cases , the normal course of action will be to grant an application for revocation where the decision to deport was founded on a criminal conviction which is now “ spent ” under section CARDINAL(CARDINAL ) of the Rehabilitation of Offenders Act DATE . Paragraph CARDINAL of the Rules , however , indicates that in the case of an applicant with a serious criminal record continued exclusion for a long term of years will normally be the proper course . This is expanded on in GPE A to LAW of the IDIs , which indicates that revocation would not normally be appropriate until DATE after departure for those convicted of serious offences such as violence against the person , sexual offences , burglary , robbery or theft , and other offences such as forgery and drug trafficking .


The applicant was born in DATE and lives in the town of ORG .

The applicant is a retired serviceman . On unspecified dates in the past , he had taken part in peace - keeping operations in former GPE .

On an unspecified date , the applicant instituted proceedings against military unit no . DATE , seeking to recover the unpaid DATE allowances owed to him for his participation in the above operations .

In the proceedings before ORG of FAC ( ORG гарнизонный военный суд ) the representative of the military unit fully accepted the applicant 's claim .

He submitted that it was impossible to pay the sum owed to the applicant , since there was no mechanism developed for payment of DATE allowances to servicemen who had been commissioned abroad . Furthermore , no funds were available for this purpose .

On DATE ORG of FAC granted the applicant 's claim and ordered the defendant to pay him MONEY ( ORG , CARDINAL at the material time ) .

The court found that the applicant could not be deprived of the right to receive the sum owed to him because of the absence of an appropriate mechanism of payment . No appeal was lodged and this judgment became final on DATE .

On DATE ORG issued an execution writ .

On an unspecified date , the applicant submitted the execution writ to ORG of ORG .

It appears that ORG informed the applicant that it was impossible to enforce the judgment as there were no budgetary funds available on the defendant 's account for this purpose . He was advised to apply to ORG for the latter to recover the amount due from ORG .

On DATE the applicant forwarded the execution writ to ORG .

On DATE ORG , acting as a supervisory review instance upon the application by the President of that Court , quashed the judgment of DATE as unlawful and unfounded and remitted the case at first instance for a fresh examination .

It does not appear that the applicant and his counsel were notified of the supervisory review proceedings in advance or that they were able to take part in them .

According to the Government , in DATE ORG rejected the applicant 's claims . This judgment was upheld on appeal by ORG by CARDINAL decisions dated DATE , DATE .

According to Articles CARDINAL , CARDINAL and CARDINAL of the old ORG процессуальный кодекс РСФСР ) , in force at the material time , a court judgment , which has become final , is binding and must be executed .


Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - reserved;Non-pecuniary damage - award

David Scicluna;George Nicolaou;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva

The applicants were born in DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE and DATE respectively . The ninth , tenth , twelfth and thirteenth applicants live in GPE , the eleventh applicant lives in GPE and all the other applicants live in GPE .

The applicants or their ancestors ( hereinafter “ the applicants ” ) were owners of CARDINAL an undivided share of several properties in PERSON , namely , CARDINAL apartments on the ground floor and an adjacent entrance giving access to another CARDINAL apartments above . At the time when the property was acquired , for the price of QUANTITY ( MONEY ( “ EUR ” ) ) , it was leased and occupied by various third parties .

This property was damaged during the Second World War and war - damage compensation was due to the owners under LAW .

By a declaration of CARDINAL DATE the ORG took possession of this property under title of “ possession and use ” in accordance with ORG ) Ordinance ( see relevant domestic law ) . Under this title the owners were paid a DATE acquisition rent of MONEY ( “ MTL ” ) − approximately LAW for the entire property . This rent was calculated on the rental value declared by the owners to ORG .

Subsequently , without requesting prior consent from the owners and without having the plans of the property as it stood , the Government demolished the property and built a new set of apartments on wholly different plans , using part of the property to widen a road . The Government noted that permission for demolition was not necessary since they had legal possession of the property . At the time since the city of PERSON had been totally bombarded and consisted of a pile of rubble , the Government were engaged in an intensive restructuring and construction exercise , taking possession of properties and rebuilding the area with residences for social accommodation . In doing this the applicants alleged that the Government had also appropriated to themselves the war - damage compensation due to them . The Government considered this allegation to be unsubstantiated .

On DATE the owners wrote to the Commissioner of Lands ( “ COL ” ) requesting compensation for their property . They suggested the sum of ORG DATE approximately EUR CARDINAL . Receipt of their request was acknowledged but the claim remained unanswered .

By a declaration of CARDINAL DATE the ORG acquired the said property under the title of “ public tenure ” according to ORG ( see relevant domestic law ) . Under this title the owners continued to be paid ORG DATE for the entire property .

In the meantime , this property was allocated as housing to third parties and included a shop .

The applicants pointed out that in DATE the ORG had declared that it would no longer be resorting to takings under titles of “ possession and use ” or “ public tenure ” . During political debate , the Deputy Prime Minister had in fact referred to such takings as a nefarious method of acquisition . Indeed , in DATE the Government had converted takings under title of “ possession and use ” or “ public tenure ” to takings under “ outright purchase ” . The latter provided for a more favourable form of compensation , namely the market value of the property at the time of taking . The applicants submitted a number of examples reflecting this allegation ( for example , LAW . CARDINAL and CARDINAL of DATE converting previous takings to outright purchases , and declaration no . CARDINAL of CARDINAL DATE substituting a declaration of taking under possession and use of DATE with an outright purchase , following complaints by the owners . In the latter case the property had also been demolished and rebuilt and was being used for social housing ) .

The applicants also submitted an expert report valuing the entire property in PERSON at ORG CARDINAL,CARDINAL . Thus , their share as owners of CARDINAL an undivided share was worth EUR CARDINAL .

On DATE the applicants brought constitutional redress proceedings . Invoking LAW No . CARDINAL to the Convention and Article CARDINAL they requested that the court find a violation of their rights as a consequence of the actions taken by the ORG and to grant adequate compensation . Given the way the application was presented the Government did not plead non - exhaustion in respect of the failure of the applicants to institute proceedings before the ORG .

The case was set down for hearing on DATE . On CARDINAL DATE the court - appointed architect was requested to conduct an on - site inspection to determine whether the property built by the Government was indeed built on the applicants’ property and what use was being made of the ground floor . The report was submitted on DATE ; however , the court - appointed expert failed to draw up an estimate of the value of the property in issue and the ORG request for additional terms of reference to be given to the expert was rejected on DATE on the basis that the value of the property was irrelevant to the merits of the claim . Subsequently , on DATE the case was adjourned pending negotiations regarding the possibility of reaching an amicable solution to the case . This having failed , the proceedings continued on DATE at the ORG request . On DATE the applicants requested the court to make written submissions . On DATE the applicants requested that the case be suspended pending the determination of another constitutional case that could have affected the merits of their case . The hearing of submissions recommenced on CARDINAL DATE . The ORG filed their written submissions on CARDINAL DATE and the case was scheduled for judgment on DATE .

By a judgment of DATE ORG ( FAC ) , acting in its constitutional jurisdiction , rejected their claims . It held that , since the applicants were still owners of the said property , the taking under both titles could not be considered a deprivation of property but a control of the use of such property . This control had been necessary in view of the fact that the property had been ruined in the war and that there had been a need to provide social housing in DATE . For the same reasons , even assuming that the taking under title of public tenure had been a deprivation of possessions , it would have been in the public interest . In respect of the fair balance required , the court observed that , when the ORG was pursuing economic reform or social justice , less reimbursement was due than the full market value . While it was true that the recognition rent payable to the applicants was not high and there were no prospects for it to be increased in DATE , it was comparable to the rents applicable under the controlled rents regime in force in respect of other old properties . Moreover , in the present case the owners had not been required to incur expenses for the building of the new apartments or for their maintenance and when the property had been originally purchased by the ORG ancestors it was already rented to third parties to which such regulated rents applied . In consequence , it could not be said that the applicants had borne an excessive burden . The court found that their related complaint under the same provision in respect of the unauthorised demolition could not be examined ratione temporis .

Lastly , as to the complaint regarding the difference in treatment as a result of the taking under title of public tenure as opposed to an outright purchase , the court held that the choice was specifically available to the Government . However , according to the policy in force , takings under titles of possession and use were converted to outright purchases in cases where the properties were used for commercial purposes . Other properties , where the Government wished to keep control of the expropriated property , were taken under title of public tenure . While this choice allowed for a large margin of appreciation , the applicants had not proved that other people in an analogous position had been treated more favourably and it did not appear that the policy had been applied arbitrarily or in a discriminatory fashion in the applicants’ case .

On appeal , by a judgment of DATE ORG upheld the first - instance judgment .

Primarily , it noted that the applicants had been acquiescent for DATE before they ever solicited any action from the authorities or the relevant courts . On the merits , it confirmed that the interference did not amount to a deprivation since quite apart from retaining the title of ownership , the applicants had continued to receive rent in respect of the said property and to have standing to institute proceedings in respect of complaints relating to the property . Thus , not all the legal rights of the owners had been extinguished .

It further noted that the legality of the interference and the public interest involved were not disputed . Indeed , the law ( section CARDINAL(CARDINAL ) of ORG ) Ordinance , prior to its amendment ) allowed the ORG to carry out works on property taken under possession and use , without any specific limitation . Moreover , the property which had been demolished and rebuilt had been taken in a damaged state , and any complaints about the entitlement to war - damage compensation remained unsubstantiated and were irrelevant to the main complaint in issue .

The decision as to under which title the property could be taken fell within the margin of appreciation of the ORG . As to the fair balance and the relevant amount of compensation , while it was true that a rent of LAW was by DATE ’s standards low for the property in issue , the value of the property had to reflect the values applicable in DATE and not DATE . It noted that the applicants had not even contested the amount of rent due before ORG ( “ LAB ” ) and that their acquiescence had led to a situation where even if they had wanted to do so , they could not prove the boundaries of the property . However , it was also true that the authorities had failed in their duty to draft a report as to the state and the boundaries of the property before they demolished it and created new plans for it . Thus , at this stage it was impossible to determine the actual boundaries of the property and in this state of uncertainty it was not surprising that the applicants had not taken up the procedure before the LAB . In any event , the court was of the view that the complaint was manifestly ill - founded .

As to the complaint under LAW , it noted the witness testimony from ORG to the effect that takings under absolute purchase had occurred , although they generally related to commercial properties ; that there had been cases were the Government had acted differently and acquired property by outright purchase following a taking by title of possession and use ; that there was no hard policy regulating what type of taking was required in each case ; and that to the witness ’s knowledge there had been no political or other specific reasons motivating such an action . The court concluded that the fact that it had been established that other property had been taken by absolute purchase was not enough to prove discriminatory treatment and therefore there could not be a violation of the said provision .

The Constitutional Court further criticised the delay of DATE which the first - instance court had taken to decide on the case even though a good part of the delay had been attributable to the applicants who , inter alia , had taken DATE to make submissions .

Following the introduction of the application with ORG ( DATE ) , on DATE the ORG issued a declaration that the property was being taken under title of absolute purchase . The property was valued in terms of section CARDINAL of the GPE and the compensation offered was that of ORG CARDINAL,CARDINAL.CARDINAL .

Section CARDINAL of ORG ) Ordinance ( “ the LAW ” ) , LAW of the Laws of Malta provides for CARDINAL methods of acquisition by the Government of private property . It reads as follows :

“ The competent authority may acquire any land required for any public purpose , either -

( a ) by the absolute purchase thereof ; or

( b ) for the possession and use thereof for a stated time , or during such time as the exigencies of the public purpose shall require ; or

( c ) on public tenure :

Provided that after a competent authority has acquired any land for possession and use or on public tenure the conversion into public tenure or into absolute ownership of the terms upon which such land is held shall always be deemed to be an acquisition of land required for a public purpose and to be in the public interest :

Provided also that , subject to the provisions of articles CARDINAL , DATE and DATE , a competent authority may acquire land partly by one and partly by another or others of the methods in paragraphs ( a ) , ( b ) and ( c ) :

Provided further that where the land is to be acquired on behalf and for the use of a third party for a purpose connected with or ancillary to the public interest or utility , the acquisition shall , in every case , be by the absolute purchase of the land . ”

Section CARDINAL regarding compensation reads , in so far as relevant , as follows :

“ ( CARDINAL ) The amount of compensation to be paid for any land required by a competent authority may be determined at any time by agreement between the competent authority and the owner , saving the provisions contained in subarticle ( CARDINAL ) .

( CARDINAL ) The compensation shall in the case of acquisition of land for temporary possession and use be an acquisition rent and in the case of acquisition of land on public tenure be a recognition rent determined in either case in accordance with the relevant provisions contained in DATE . ”

The LAW provides that compensation in respect of absolute purchase is calculated in accordance with the applicable “ fair rent ” , as agreed by the parties following the Government ’s offer or as established by the LAB . In respect of public tenure , section CARDINAL(CARDINAL ) of the LAW provides as follows :

“ The compensation in respect of the acquisition of any land on public tenure shall be equal to the acquisition rent assessable in respect thereof in accordance with the provisions contained in subarticles ( CARDINAL ) to ( CARDINAL ) , inclusive , of this article , increased ( a ) by DATE ( PERCENT ) in the case of an old urban tenement and ( b ) by DATE ( PERCENT ) in the case of agricultural land .

In so far as relevant , section CARDINAL(CARDINAL ) and ( CARDINAL ) reads as follows :

( CARDINAL ) When land has been acquired by a competent authority for use and possession during such time as the exigencies of the public purpose shall require , the owner may , after the lapse of DATE from the date when possession was taken by the competent authority , apply to ORG for an order that the land be purchased or acquired on public tenure or vacated within DATE from DATE of the order , and the land shall either be vacated or acquired on public tenure or purchased upon compensation to be determined in accordance with the provisions of this Ordinance or of any GPE amending or substituted for this Ordinance .

( CARDINAL ) Public tenure shall of its nature endure in perpetuity , without prejudice to any consolidation by mutual consent or otherwise according to law of that tenure with the residual ownership of the land ; and the recognition rent payable in respect thereof shall in every case be unalterable , without prejudice to the effects of any consolidation , total or partial . The residual ownership of land held on public tenure with the inherent right to receive recognition rent , shall , for all purposes of law , be deemed to be an immovable right by reason of the object to which it refers and shall be transferable according to law at the option of the owner , from time to time , of that right .

Thus , while a taking under title of “ possession and use ” is intended for a determinate period of time , a taking under title of “ public tenure ” is for an indeterminate period of time , possibly forever , and the relevant recognition rent is to remain unaltered for its duration .


Violation of Art. 6-1 (length);Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

The applicant was born in DATE and lives in GPE .

On DATE the applicant ’s ex - wife brought an action in trespass against him in ORG , in the context of a dispute concerning the use of the divorced couple ’s flat .

On DATE and DATE this court held hearings .

On DATE the court instructed the plaintiff to submit better particulars of her claims .

On DATE the case was transferred to the NORP ORG for reasons of competence . On DATE the court held hearings . After a short stay of the proceedings , a further hearing was held on DATE , which the plaintiff did not attend . After another stay , hearings took place on CARDINAL May and DATE . On DATE the plaintiff submitted additional particulars of her claims .

The court held hearings on DATE , DATE , DATE , DATE and DATE . On DATE the court gave judgment , partly finding for the plaintiff . It ordered the applicant to pay compensation to the plaintiff in the amount of MONEY ( ORG ) plus accrued interest . The court held that the subject matter of the case was the settlement of scores concerning the division of the matrimonial property .

On appeal , on DATE ORG upheld this decision .

On DATE ORG rejected as inadmissible the applicant ’s petition for review , without examining it on the merits , since the disputed amount fell below the statutory threshold of ORG MONEY , under which no review lay against second - instance decisions .