Alvina Gyulumyan;Corneliu Bîrsan;Elisabet Fura;Josep Casadevall;Luis López Guerra

NORP The applicant , Mr PERSON , is a NORP national who was born in DATE . He is currently detained in a prison in GPE , serving a DATE prison sentence imposed by ORG in the Territory of the Former GPE since DATE ( also known as ORG for the Former GPE , hereafter the ORG ) . He was represented before the ORG by PERSON , a lawyer practising in GPE ) .

CARDINAL

On DATE ORG issued an indictment against the applicant . This indictment charged the applicant , who had commanded a brigade of ORG ( PERSON , “ ORG ” ) in LOC , with genocide and in the alternative complicity in genocide , extermination as a crime against humanity , murder as a crime against humanity and a violation of the laws and customs of war , and persecutions on political , racial and religious grounds as a crime against humanity . This indictment was amended on DATE to include CARDINAL further charges , namely deportation as a crime against humanity and inhumane acts based on forcible transfer as a crime against humanity . The indictment was kept sealed until the applicant ’s arrest .

The applicant was arrested by ORG ) on DATE and transferred to the custody of the ORG DATE .

On DATE the applicant made his initial appearance in open court , assisted by duty counsel , Mr PERSON He pleaded not guilty to all charges . On DATE the applicant was ordered placed in detention on remand until further order .

The applicant claimed to lack the means to retain counsel and subsequently qualified to have counsel assigned . ORG assigned PERSON , pursuant to the applicant ’s request , on DATE . On DATE PERSON was assigned as co - counsel , based on the request of PERSON

On DATE the applicant lodged a motion for the replacement of PERSON By a decision dated DATE ORG refused to do so , finding that leading counsel PERSON had expressed confidence in Ms T. and that PERSON was not incompetent or acting in any way contrary to the applicant ’s interests .

On DATE the applicant again sought the replacement of Ms T. In addition , stating that he had lost confidence in PERSON who had failed to consult him when choosing PERSON as co - counsel , he requested the replacement of his entire legal team . On DATE ORG issued a decision refusing both requests , citing a lack of substantive grounds relating to PERSON peformance or professional ethics and pointing out that a replacement of counsel could cause delays in the proceedings which would affect the applicant ’s right to an expeditious trial .

Following a statement made by the applicant on CARDINAL DATE to the effect that he considered his entire defence team fired , ORG on DATE instructed the Registrar to appoint independent counsel for the purpose of assisting the applicant in his dispute with his assigned defenders .

In the meantime the applicant ’s case had been joined with that of another accused , Major PERSON The trial opened on DATE .

The PERSON appointed the lawyer PERSON . in the role of independent counsel on DATE . On DATE PERSON . filed a motion seeking that ORG instruct the Registrar to appoint a new defence team for the applicant due to an absence of trust and communication with the current team . This was denied by ORG on DATE ; however , ORG requested that the Registrar appoint a legal representative to assist the applicant and his defence team during the trial process in order to re - establish a relationship of trust .

Mr Sj . lodged an appeal against ORG decision . On DATE ORG dismissed the appeal . In so doing it considered that the applicant had failed to demonstrate any error of ORG in its impugned decision that would warrant the interference of ORG and that it was in the interests of justice that the applicant retain his assigned counsel , and that the applicant ’s trial had been adjourned pending the outcome of his appeal .

On DATE the Trial Chamber gave a judgment on motions for acquittal lodged by both accused . It acquitted the applicant of planning , instigating and ordering the crimes with which he was charged , with the exception of genocide . This document names PERSON and PERSON as the applicant ’s counsel .

The Trial Chamber rendered a single judgment against both the applicant and Major PERSON on DATE . This judgment too names PERSON and PERSON as the applicant ’s counsel . It found the applicant guilty of complicity to commit genocide , aiding and abetting murder as a crime against humanity and as a violation of the laws or customs of war and of aiding and abetting deportation as a crime against humanity and inhumane acts based on forcible transfer as a crime against humanity . ORG then sentenced him to DATE imprisonment , putting the time which he had spent in ORG ’s custody to his credit towards the sentence .

Both the applicant and the prosecution appealed .

ORG gave judgment on DATE . The judgment names the applicant ’s counsel as Mr PERSON , who is also his representative in the proceedings before ORG .

The judgment contains the following passages ( footnote references omitted ) :

“ CARDINAL . PERSON submits that ORG violated his right to counsel of his choice when it refused to replace his entire defence team after the breakdown in trust and communication between him and his assigned counsel . This submission consists of CARDINAL principal arguments . First , PERSON maintains that , even as a participant in ORG legal aid system , he has a right to counsel of his choice . This argument has no merit . An accused who lacks the means to remunerate counsel shall have the right to have counsel assigned to him by the PERSON from the list drawn up in accordance with Rule CARDINAL(B ) , provided that there is no impediment to the assignment of that counsel . While there is the additional limitation placed on the right of an indigent accused to choose counsel in so far as the choice is limited to the list of counsel maintained in accordance with Rule DATE , as previously explained in this case , the Registrar normally takes account of an accused ’s preferences in assigning counsel , as was done in the present case , but it is also within the Registrar ’s discretion to override that preference in the interests of justice . Once counsel has been properly assigned , as was the case here , counsel has a professional obligation to continue representing the accused and may only be withdrawn or replaced , if sufficient cause exists .

Second , Blagojević disputes the conclusion of ORG that he was not justified in resisting his assigned legal representation and that he did not show good cause for removing his assigned counsel . PERSON contends that the breakdown was not , in fact , unilateral because his counsel falsely accused him of trying to engage in fee - splitting . PERSON argues that this ‘ false and tendentious GPE destroyed all possibility of re - establishing any form of cooperation between them because in his view his counsel had accused him of being a ‘ common ORG . Though ORG found this argument to be without merit at the pre - trial stage , PERSON points to an exchange at a status conference during the trial where Mr. PERSON , in his view , acknowledged and apologized for making false accusations against him , thereby vindicating his refusal to deal with his counsel .

ORG previously explained that the matter of alleged fee - splitting had no bearing on ORG decision to maintain PERSON ’s assigned counsel . ORG nonetheless considered the nature and possible impact of such an allegation on the lawyer - client relationship ‘ for completeness and to ensure DATE . ORG noted that the assigned counsel did not breach any client confidence by raising the issue of fee - splitting , as he was ethically bound to bring such issues to the attention of the Registrar . ORG also determined that this issue should not unduly impact the relationship , in particular , noting that Mr. PERSON did not place blame on PERSON for attempting to enter into a feesplitting arrangement and instead explained that it resulted from ‘ family ORG . ORG observed that this was consistent with PERSON ’s own explanation . A review of the transcripts of the status conference pointed to by PERSON does not , contrary to his submissions , indicate that Mr. [ PERSON ] admitted to falsely accusing him of trying to engage in fee - splitting . Rather , Mr. [ PERSON ] simply made clear , consistent with the submissions previously considered by ORG , that he never accused PERSON himself of trying to engage in feesplitting .

In addition , PERSON seeks to reopen the issues considered and decided in the interlocutory appeal by arguing that ORG failed to appreciate that the breakdown of his relationship with his counsel would last throughout the trial and prevent him from playing any meaningful role in his defence . However , PERSON ’s submissions before trial clearly indicated that he considered the breakdown irreparable . Nonetheless , PERSON correctly notes that both ORG expressed measured optimism that the situation between him and his counsel would improve . This view resulted from the determination that there was no objective basis for PERSON to be dissatisfied with his counsel ’s performance . PERSON has not called this conclusion into question . More importantly , however , PERSON ’s argument on this point fails to address the key aspect of ORG earlier holding . In dismissing PERSON ’s interlocutory appeal , ORG stated :

[ sub - quotation ]

In circumstances such as this , where an Appellant unjustifiably resists legal representation from assigned Counsel , Counsel ’s professional obligations to continue to represent the accused remain . ORG is satisfied that Counsel in this case is committed to representing the Appellant , and that the Appellant will receive a fair trial with the assistance of his assigned Counsel . In dismissing the Appellant ’s appeal , ORG wishes to make it clear to the Appellant that he has now exhausted all avenues available to him to voice his objections that he has not been accorded that to which he has no justifiable reason to demand . The ORG will not entertain a demand by an Appellant for that to be granted to him to which he has established no legal entitlement .

[ end of sub - quotation ]

PERSON ’s own submissions under the present ground of appeal reflect that the continued breakdown during the trial and the resulting complaints about the conduct of his defence also resulted from his unilateral refusal to communicate with his counsel , rather than from any action on the part of his counsel and Defence team . ORG decision on PERSON ’s request to testify is exemplary of Mr. [ PERSON ] ’s continued willingness to meet with and assist him and of PERSON ’s unilateral resistance to any cooperation . ORG considers that an appellant can not premise a request for a new trial on a claim of a total breakdown in communication in circumstances where the appellant unjustifiably refused to cooperate with his or her assigned counsel throughout the trial proceedings . ”

The ORG understands fee - splitting to be an arrangement under which an accused who has been granted legal aid makes his consent to be represented by assigned counsel conditional on payment to him or her of a portion of the legal aid fees paid to counsel . The judgment includes the following quotation of PERSON from the transcript of a status conference during the trial ( footnote DATE on page CARDINAL ) :

“ I just want to reiterate , one , I have done nothing for which I need to explain or apologise . I have never divulged any attorney / client privileges , nor have I ever accused Mr. PERSON of making any attempts to fee split as he seems to indicate . I ’ve never accused him of that , nor has he ever made any efforts himself . So I want to make sure that ’s very clear on the record . I have nothing more , Your Honour . ”

The Appeals Chamber went on to dismiss the prosecution ’s appeal in its entirety and to allow the applicant ’s appeal in part . It reversed ORG conviction of complicity in genocide and reduced the sentence to DATE imprisonment , subject to credit being given for the period which the applicant had already spent in detention .

One judge , Judge PERSON , appended a partly dissenting opinion in which he expressed the view that the applicant ’s steadfast refusal to recognise Mr PERSON as his counsel ought to have been respected and that the applicant ought to have been granted a retrial .

GPE ratified the Charter of ORG on DATE . As relevant to the present case , it provides as follows :

We the peoples of ORG determined

to save succeeding generations from the scourge of war , which twice in our lifetime has brought untold sorrow to mankind , and

to reaffirm faith in fundamental human rights , in the dignity and worth of the human person , in the equal rights of men and women and of nations large and small , and

to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained , and

to promote social progress and better standards of life in larger freedom ,

And for these ends

to practice tolerance and live together in peace with one another as good neighbours , and

to unite our strength to maintain international peace and security , and

to ensure , by the acceptance of principles and the institution of methods , that armed force shall not be used , save in the common interest , and

to employ international machinery for the promotion of the economic and social advancement of all peoples ,

Have resolved to combine our efforts to accomplish these aims

Accordingly , our respective ORG , through representatives assembled in the city of GPE , who have exhibited their full powers found to be in good and due form , have agreed to the present Charter of the United Nations and do hereby establish an international organization to be known as ORG .

The Purposes of ORG are :

To maintain international peace and security , and to that end : to take effective collective measures for the prevention and removal of threats to the peace , and for the suppression of acts of aggression or other breaches of the peace , and to bring about by peaceful means , and in conformity with the principles of justice and international law , adjustment or settlement of international disputes or situations which might lead to a breach of the peace ;

To develop friendly relations among nations based on respect for the principle of equal rights and self - determination of peoples , and to take other appropriate measures to strengthen universal peace ;

To achieve international co - operation in solving international problems of an economic , social , cultural , or humanitarian character , and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race , sex , language , or religion ; and

To be a centre for harmonizing the actions of nations in the attainment of these common ends .

The ORG and its Members , in pursuit of the Purposes stated in DATE , shall act in accordance with the following Principles .

The ORG is based on the principle of the sovereign equality of all its Members .

All Members , in order to ensure to all of them the rights and benefits resulting from membership , shall fulfill in good faith the obligations assumed by them in accordance with the present LAW .

All Members shall settle their international disputes by peaceful means in such a manner that international peace and security , and justice , are not endangered .

All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state , or in any other manner inconsistent with the Purposes of ORG .

All Members shall give ORG every assistance in any action it takes in accordance with the present LAW , and shall refrain from giving assistance to any state against which ORG is taking preventive or enforcement action .

The Organization shall ensure that states which are not Members of ORG act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security .

Nothing contained in the present Charter shall authorize ORG to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter ; but this principle shall not prejudice the application of enforcement measures under LAW .

NORP In order to ensure prompt and effective action by ORG , its Members confer on the ORG primary responsibility for the maintenance of international peace and security , and agree that in carrying out its duties under this responsibility ORG acts on their behalf . ...

The Members of ORG agree to accept and carry out the decisions of ORG in accordance with the present Charter .

ORG may establish such subsidiary organs as it deems necessary for the performance of its functions .

The Security Council shall determine the existence of any threat to the peace , breach of the peace , or act of aggression and shall make recommendations , or decide what measures shall be taken in accordance with ORG CARDINAL and DATE , to maintain or restore international peace and security .

In order to prevent an aggravation of the situation , ORG may , before making the recommendations or deciding upon the measures provided for in DATE , call upon the parties concerned to comply with such provisional measures as it deems necessary or desirable . Such provisional measures shall be without prejudice to the rights , claims , or position of the parties concerned . The ORG shall duly take account of failure to comply with such provisional measures .

ORG may decide what measures not involving the use of armed force are to be employed to give effect to its decisions , and it may call upon the Members of ORG to apply such measures . These may include complete or partial interruption of economic relations and of rail , sea , air , postal , telegraphic , radio , and other means of communication , and the severance of diplomatic relations .

Should the ORG consider that measures provided for in Article CARDINAL would be inadequate or have proved to be inadequate , it may take such action by air , sea , or land forces as may be necessary to maintain or restore international peace and security . Such action may include demonstrations , blockade , and other operations by air , sea , or land forces of Members of ORG .

All Members of ORG , in order to contribute to the maintenance of international peace and security , undertake to make available to ORG , on its call and in accordance with a special agreement or agreements , armed forces , assistance , and facilities , including rights of passage , necessary for the purpose of maintaining international peace and security .

Such agreement or agreements shall govern the numbers and types of forces , their degree of readiness and general location , and the nature of the facilities and assistance to be provided .

The agreement or agreements shall be negotiated as soon as possible on the initiative of ORG . They shall be concluded between ORG and Members or between ORG and groups of Members and shall be subject to ratification by the signatory states in accordance with their respective constitutional processes .

The action required to carry out the decisions of ORG for the maintenance of international peace and security shall be taken by all the Members of ORG or by some of them , as ORG may determine .

Such decisions shall be carried out by the Members of ORG directly and through their action in the appropriate international agencies of which they are members .

The Members of the ORG shall join in affording mutual assistance in carrying out the measures decided upon by ORG .

In the event of a conflict between the obligations of the Members of ORG under the present LAW and their obligations under any other international agreement , their obligations under the present LAW shall prevail . ”

The ORG was established by ORG / RES/CARDINAL of CARDINAL DATE , which reads as follows :

“ ORG ,

Reaffirming its resolutions CARDINAL ( DATE ) of CARDINAL DATE and all subsequent relevant resolutions ,

Having considered the report of the Secretary - General ( ORG and GPE ) pursuant to paragraph CARDINAL of resolution CARDINAL ( DATE ) ,

Expressing once again its grave alarm at continuing reports of widespread and flagrant violations of international humanitarian law occurring within the territory of the former GPE , and especially in GPE , including reports of mass killings , massive , organized and systematic detention and rape of women , and the continuance of the practice of ‘ ethnic PERSON , including for the acquisition and the holding of territory ,

Determining that this situation continues to constitute a threat to international peace and security ,

Determined to put an end to such crimes and to take effective measures to bring to justice the persons who are responsible for them ,

Convinced that in the particular circumstances of the former GPE the establishment as an ad hoc measure by ORG tribunal and the prosecution of persons responsible for serious violations of international humanitarian law would enable this aim to be achieved and would contribute to the restoration and maintenance of peace ,

Believing that the establishment of an international tribunal and the prosecution of persons responsible for the above - mentioned violations of international humanitarian law will contribute to ensuring that such violations are halted and effectively redressed ,

Noting in this regard the recommendation by ORG of ORG of ORG on the Former GPE for the establishment of such a tribunal ( PERSON ) ,

Reaffirming in this regard its decision in LAW ( DATE ) that an international tribunal shall be established for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former GPE since DATE ,

Considering that , pending the appointment of the Prosecutor of ORG , ORG established pursuant to LAW ( DATE ) should continue on an urgent basis the collection of information relating to evidence of grave breaches of LAW and other violations of international humanitarian law as proposed in its interim report ( S/CARDINAL ) ,

Acting under LAW of ORG ,

Approves the report of the Secretary - General ;

Decides hereby to establish an international tribunal for the sole purpose of prosecuting persons responsible for serious violations of international humanitarian law committed in the territory of the former GPE DATE and a date to be determined by ORG upon the restoration of peace and to this end to adopt the Statute of the International Tribunal annexed to the above - mentioned report ;

Requests the Secretary - General to submit to the judges of ORG , upon their election , any suggestions received from GPE for the rules of procedure and evidence called for in LAW ;

Decides that all GPE shall cooperate fully with ORG and its organs in accordance with the present resolution and the Statute of the International Tribunal and that consequently all GPE shall take any measures necessary under their domestic law to implement the provisions of the present resolution and the LAW , including the obligation of GPE to comply with requests for assistance or orders issued by a Trial Chamber under LAW ;

Urges States and intergovernmental and non - governmental organizations to contribute funds , equipment and services to ORG , including the offer of expert personnel ;

Decides that the determination of the seat of ORG is subject to the conclusion of appropriate arrangements between ORG and the GPE acceptable to the ORG , and that ORG may sit elsewhere when it considers it necessary for the efficient exercise of its functions ;

Decides also that the work of ORG shall be carried out without prejudice to the right of the victims to seek , through appropriate means , compensation for damages incurred as a result of violations of international humanitarian law ;

Requests the Secretary - General to implement urgently the present resolution and in particular to make practical arrangements for the effective functioning of ORG at the earliest time and to report periodically to the ORG ;

Decides to remain actively seized of the matter . ”

Annexed to the resolution was the “ Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former GPE since DATE ” . Elements of the Statute relevant to the case before the ORG are the following :

The judge of ORG to whom the indictment has been transmitted shall review it . If satisfied that a prima facie case has been established by the Prosecutor , he shall confirm the indictment . If not so satisfied , the indictment shall be dismissed . ...

All persons shall be equal before ORG .

In the determination of charges against him , the accused shall be entitled to a fair and public hearing , subject to LAW [ protection of victims and witnesses ] .

The accused shall be presumed innocent until proved guilty according to the provisions of the present Statute .

In the determination of any charge against the accused pursuant to the present Statute , the accused shall be entitled to the following minimum guarantees , in full equality :

( a ) to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him ;

( b ) to have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing ;

( c ) to be tried without undue delay ;

( d ) to be tried in his presence , and to defend himself in person or through legal assistance of his own choosing ; to be informed , if he does not have legal assistance , of this right ; and to have legal assistance assigned to him , in any case where the interests of justice so require , and without payment by him in any such case if he does not have sufficient means to pay for it ;

( e ) to examine , or have examined , the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him ;

( f ) to have the free assistance of an interpreter if he can not understand or speak the language used in ORG ;

( g ) not to be compelled to testify against himself or to confess guilt .

The Appeals Chamber shall hear appeals from persons convicted by ORG or from the Prosecutor on the following grounds :

( a ) an error on a question of law invalidating the decision ; or

( b ) an error of fact which has occasioned a miscarriage of justice .

ORG may affirm , reverse or revise the decisions taken by ORG .

The Convention on the Privileges and Immunities of the United Nations of CARDINAL DATE shall apply to ORG , the judges , the Prosecutor and his staff , and the Registrar and his staff .

The judges , the Prosecutor and the Registrar shall enjoy the privileges and immunities , exemptions and facilities accorded to diplomatic envoys , in accordance with international law .

The staff of the Prosecutor and of the Registrar shall enjoy the privileges and immunities accorded to officials of ORG under articles V and ORG referred to in paragraph CARDINAL of this article .

Other persons , including the accused , required at the seat of ORG shall be accorded such treatment as is necessary for the proper functioning of ORG .

The International Tribunal shall have its seat at GPE . ”

As relevant to the case before the ORG , the ORG between ORG and GPE concerning ORG committed in the Territory of the Former GPE since DATE ( “ LAW ” ) reads as follows :

“ ORG and GPE ,

Whereas ORG acting under LAW decided , by paragraph CARDINAL of its resolution CARDINAL ( DATE ) of CARDINAL DATE , inter alia ‘ that an international tribunal shall be established for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former GPE since GPE ;

Whereas ORG is established as a subsidiary organ within the terms of LAW ;

Whereas ORG , in paragraph CARDINAL of its resolution CARDINAL ( DATE ) of CARDINAL DATE further inter alia decided that ‘ the determination of the seat of ORG is subject to the conclusion of appropriate arrangements between ORG and the GPE acceptable to the Council’ ;

Whereas the Statute of ORG , in its DATE , provides that ‘ the ORG shall have its seat at The Hague’ ;

Whereas ORG and GPE wish to conclude an Agreement regulating matters arising from the establishment and necessary for the proper functioning of ORG in GPE ;

Have agreed as follows . ...

This Agreement shall regulate matters relating to or arising out of the establishment and the proper functioning of the ORG in GPE .

LAW and LAW shall be applicable mutatis mutandis to the ORG , its property , funds and assets , to the premises of the ORG , to the ORG , the Prosecutor and the Registrar , the officials of the ORG and persons performing missions for the ORG . ”

The expressions “ General Convention ” and “ LAW ” refer to ORG adopted by ORG of ORG on DATE and LAW of DATE , respectively ( Article I ( u ) and ( v ) of ORG ) .

The LOC of the ORG shall be under the control and authority of the ORG , as provided in this Agreement .

Except as otherwise provided in this LAW or in LAW , the laws and regulations of the host country shall apply on the premises of the ORG .

The ORG shall have the power to make regulations operative on the premises of the ORG for the purpose of establishing therein the conditions in all respects necessary for the full execution of its functions . The ORG shall promptly inform the competent authorities of regulations thus enacted in accordance with this paragraph . No law or regulation of the host country which is inconsistent with a regulation of the ORG shall , to the extent of such inconsistency , be applicable within the premises of the ORG .

Any dispute between the ORG and the host country , as to whether a regulation of the ORG is authorised by this LAW , or as to whether a law or regulation of the host country is inconsistent with any regulation of the ORG authorised by this Article , shall be promptly settled by the procedure set out in LAW , paragraph CARDINAL of this Agreement [ i.e. arbitration ] . Pending such settlement , the regulation of the ORG shall apply and the law or regulation of the host country shall be inapplicable on the premises of the ORG to the extent that the ORG claims it to be inconsistent with its regulation .

The host country shall not exercise its criminal jurisdiction over persons present in its territory , who are to be or have been transferred as a suspect or an accused to the LOC of the ORG pursuant to a request or an order of the ORG , in respect of acts , omissions or convictions prior to their entry into the territory of the host country .

The immunity provided for in this Article shall cease when the person , having been acquitted or otherwise released by the ORG and having had for a period of DATE from the date of his or her release an opportunity of leaving , has nevertheless remained in the territory of the host country , or having left it , has returned . ”

The ICTY ’s Rules of Procedure and Evidence , as in force on DATE and as relevant to the case before the ORG , provided as follows :

( A ) Whenever the interests of justice so demand , counsel shall be assigned to suspects or accused who lack the means to remunerate such counsel . Such assignments shall be treated in accordance with the procedure established in a Directive set out by the PERSON and approved by the permanent ORG .

( G ) A suspect or an accused electing to conduct his or her own defence shall so notify the Registrar in writing at the first opportunity .

( A ) ( i ) A ORG may , after a warning , refuse audience to counsel if , in its opinion , the conduct of that counsel is offensive , abusive or otherwise obstructs the proper conduct of the proceedings .

( ii ) The ORG may also determine that counsel is no longer eligible to represent a suspect or accused before the ORG pursuant to Rule CARDINAL and CARDINAL . ... ”

NORP The member States of ORG ( ORG ) have entered into an agreement ( Agreement between the Parties to ORG regarding the Status of their Forces , GPE , DATE , as supplemented by LAW of DATE ( subsequently amended in DATE , DATE and DATE ) – “ ORG ” ) . It regulates , among other things , criminal jurisdiction over members of their armed forces serving on each other ’s territory . Article VII of this Agreement provides as follows :

“ CARDINAL . Subject to the provisions of this Article ,

a. the military authorities of the sending ORG shall have the right to exercise within the receiving ORG all criminal and disciplinary jurisdiction conferred on them by the law of the sending ORG over all persons subject to the military law of that ORG ;

b. the authorities of the receiving ORG shall have jurisdiction over the members of a force or civilian component and their dependents with respect to offences committed within the territory of the receiving ORG and punishable by the law of that ORG .

a. NORP The military authorities of the sending State shall have the right to exercise exclusive jurisdiction over persons subject to the military law of that State with respect to offences , including offences relating to its security , punishable by the law of the sending State , but not by the law of the receiving State .

b. The authorities of the receiving ORG shall have the right to exercise exclusive jurisdiction over members of a force or civilian component and their dependents with respect to offences , including offences relating to the security of that ORG , punishable by its law but not by the law of the sending state .

c. For the purposes of this paragraph and of paragraph CARDINAL of this Article a security offence against a ORG shall include :

i. treason against the ORG ;

ii . NORP sabotage , espionage or violation of any law relating to official secrets of that State , or secrets relating to the national defence of that State .

NORP In case where the right to exercise jurisdiction is concurrent the following rules shall apply :

a. The military authorities of the sending ORG shall have the primary right to exercise jurisdiction over a member of a force or of a civilian component in relation to

i. NORP offences solely against the property or security of that State , or offences solely against the person or property of another member of the force or civilian component of that State or of a dependent ;

ii . NORP offences arising out of any act or omission done in the performance of official duty .

b. In the case of any other offence the authorities of the receiving ORG shall have the primary right to exercise jurisdiction .

c. If the ORG having the primary right decides not to exercise jurisdiction , it shall notify the authorities of the other ORG as soon as practicable . The authorities of the ORG having the primary right shall give sympathetic consideration to a request from the authorities of the other ORG for a waiver of its right in cases where that other state considers such waiver to be of particular importance .

The foregoing provisions of this Article shall not imply any right for the military authorities of the sending ORG to exercise jurisdiction over persons who are nationals of or ordinarily resident in the receiving ORG , unless they are members of the force of the sending ORG .

a. The authorities of the receiving and sending states shall assist each other in the arrest of members of a force or civilian component or their dependents in the territory of the receiving ORG and in handing them over to the authority which is to exercise jurisdiction in accordance with the above provisions .

b. The authorities of the receiving ORG shall notify promptly the military authorities of the sending ORG of the arrest of any member of a force or civilian component or a dependent .

c. The custody of an accused member of a force or civilian component over whom the receiving state is to exercise jurisdiction shall , if he is in the hands of the sending ORG , remain with that ORG until he is charged by the receiving ORG .

a. The authorities of the receiving and sending GPE shall assist each other in the carrying out of all necessary investigations into offences , and in the collection and production of evidence , including the seizure and , in proper cases , the handing over of objects connected with an offence . The handing over of such objects may , however , be made subject to their return within the time specified by the authority delivering them .

b. The authorities of the Contracting parties shall notify one another of the disposition of all cases in which there are concurrent rights to exercise jurisdiction .

a. A death sentence shall not be carried out in the receiving ORG by the authorities of the sending ORG if the legislation of the receiving state does not provide for such punishment in a similar case .

b. The authorities of the receiving ORG shall give sympathetic consideration to a request from the authorities of the sending ORG for assistance in carrying out a sentence of imprisonment pronounced by the authorities of the sending ORG under the provision of this LAW within the territory of the receiving ORG .

Where an accused has been tried in accordance with the provisions of this LAW by the authorities of one ORG and has been acquitted , or has been convicted and is serving , or has served , his sentence or has been pardoned , he may not be tried again for the same offence within the same territory by the authorities of ORG . However , nothing in this paragraph shall prevent the military authorities of the sending ORG from trying a member of its force for any violation of rules of discipline arising from an act or omission which constituted an offence for which he was tried by the authorities of ORG .

Whenever a member of a force or civilian component of a dependent is prosecuted under the jurisdiction of a receiving ORG he shall be entitled :

a. to a prompt and speedy trial ;

b. to be informed , in advance of trial , of the specific charge or charges made against him ;

c. to be confronted with the witnesses against him ;

d. to have compulsory process for obtaining witnesses in his favour , if they are within the jurisdiction of the receiving ORG ;

e. to have legal representation of his own choice for his defence or to have free or assisted legal representation under the conditions prevailing for the time being in the receiving ORG ;

PERSON if he considers it necessary , to have the services of a competent interpreter ; and

g. to communicate with a representative of the Government of the sending ORG and when the rules of the court permit , to have such a representative present at his trial .

a. Regularly constituted military units or formations of a force shall have the right to police any camps , establishment or other LOC which they occupy as the result of an agreement with the receiving ORG . The military police of the force may take all appropriate measures to ensure the maintenance of order and security on such LOC .

b. Outside these LOC , such military police shall be employed only subject to arrangements with the authorities of the receiving ORG and in liaison with those authorities , and in so far as such employment is necessary to maintain discipline and order among the members of the force .

Each Contracting Party shall seek such legislation as it deems necessary to ensure the adequate security and protection within its territory of installations , equipment , property , records and official information of other Contracting Parties , and the punishment of persons who may contravene laws enacted for that purpose . ”

An additional agreement concluded in DATE ( Agreement among GPE Parties to ORG and the other GPE participating in the Partnership for Peace regarding the Status of their Forces , GPE , DATE ) extends the territorial application of this provision to non - ORG member GPE participating in ORG .

On DATE the Government of GPE and GPE and the Government of GPE , acting in pursuance of a resolution of ORG under LAW of CARDINAL DATE ) , concluded an agreement under which ORG undertook to host a ORG for the purpose and the duration of a trial under NORP law and procedure of CARDINAL NORP nationals accused of bombing a civilian passenger aircraft over GPE , GPE , in DATE ( Agreement between the Government of GPE and GPE and the Government of GPE concerning a NORP trial in the GPE ( with annexes ) , [ DATE ] CARDINAL United Nations Treaty Series – UNTS – pp . CARDINAL et seq . ) . ORG in the GPE existed until DATE .


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

In DATE ORG instituted proceedings against the applicant for the withdrawal of her title to a plot of land and the house built on that land by R.L.P. without authorisation . According to the applicant , this property belonged to her .

On DATE ORG allowed ORG claims .

In DATE the applicant requested the President of ORG to initiate supervisory review proceedings and to seek annulment of the decision , since she had not participated in the proceedings as the owner of the property in question .

ORG rejected the applicant ’s complaint on DATE , DATE and DATE , as being unsubstantiated .

In DATE the applicant lodged a request with the President of ORG of GPE for a supervisory review of her case .

On DATE , ORG instructed the Odessa Regional Court to review the complaints of the applicant and to inform her of the results of the review .

On DATE , the ORG informed the applicant that it was not possible to review the case because the case - file had been destroyed .

In DATE the applicant instituted proceedings in LOC for the reconstruction of the case - file which had formed the basis of the DATE decision .

On DATE the ORG of Odessa decided to reconstruct the case - file .

In DATE the applicant lodged an application with the President of the NORP ORG to annul the decision of ORG of Odessa of DATE . On CARDINAL DATE the ORG refused to initiate supervisory review proceedings on the basis of the applicant ’s complaints .

In DATE the applicant lodged an application with ORG in accordance with the procedure prescribed by the transitional provisions of the PERSON of DATE on the Introduction of Changes and Amendments to the Code of Civil Procedure , for annulment ( касаційна скарга ) of the decision of ORG of Odessa of DATE .

On DATE a panel of ORG of GPE refused to transfer the case to a chamber for consideration .

“ ORG is ORG of GPE . ”

“ Parties and other persons who participate in court proceedings , and the prosecutor and other persons who have not participated in the proceedings in which the court has decided on their rights and obligations , may lodge a cassation appeal against judgments and rulings adopted by the court of first instance , only in relation to a violation of the substantive or procedural law and rulings and judgments of an appeal court .

The basis for such an appeal is the incorrect application of the norms of substantive law or infringement of the norms of procedural law . ”

“ The deadline for lodging an application by the prosecutor is DATE from the date of delivery of the ruling or judgment of ORG , or DATE from the date of delivery of the ruling or judgment of the court of first instance , if these rulings or decisions have not been appealed against . ”

“ The issue of the transfer of the case for consideration by a judicial chamber is to be considered by a panel of CARDINAL judges , in camera , without the participation of the parties to the proceedings .

The case shall be transferred for a hearing by a judicial chamber if one of the judges of the court reaches that conclusion . ...

If the grounds for transfer of the case for consideration by the chamber are not satisfied , the court shall adopt a ruling refusing to allow the applicant ’s claims . ”

“ ORG has the power to :

CARDINAL ) adopt a ruling rejecting the application for annulment ;

CARDINAL ) adopt a ruling fully or partly annulling a judicial decision at issue and remitting the case for a re - hearing to the court of first instance or appellate court ;

CARDINAL ) adopt a ruling annulling the decision at issue and leaving in force a judgment that was quashed by an appeal court in error ;

CARDINAL ) adopt a ruling annulling a decisions at issue , terminating the proceedings in a civil case and refusing to allow an applicant ’s claims ;

CARDINAL ) change the decision on the merits of the case and not remit it for further consideration . ”

“ CARDINAL . This PERSON shall enter into force as from DATE .

Laws and other normative acts adopted before this PERSON entered into force are effective in so far as their provisions do not conflict with LAW and this PERSON .

Appeals in civil cases lodged before DATE shall be considered in accordance with the procedure adopted for the examination of appeals against local courts’ decisions .

Protests against judicial decisions lodged before DATE shall be sent to ORG of GPE for consideration in accordance with the procedure for consideration of cassation appeals ( касаційних скарг ) .

Decisions that have been adopted and have entered into force before DATE can be appealed against within DATE in accordance with the procedure for consideration of cassation appeals ( to ORG ) . ”


CASE OF D.P. & J.C. v. THE UNITED KINGDOM

No violation of Art. 3;No violation of Art. 8;No violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicants , PERSON and GPE , who are sister and brother , are GPE nationals , born in DATE and DATE and living in GPE and GPE , respectively .

NORP The applicants’ mother married the applicants’ father in DATE . The first applicant was born on DATE . CARDINAL more sisters were born , ORG and J. The second applicant , who was PERSON ’s twin , was born on DATE .

NORP The social services of the local authority , ORG , were involved with the family from DATE concerning problems largely connected to severe financial difficulties . In DATE , the ORG mother was sent on “ a holiday for tired mothers ” and the second applicant and his twin were placed in care for DATE . DATE , practical and financial assistance was provided to the family . In DATE , they were provided with a council house . In DATE , there were indications that the applicants’ father was beating their mother . Allegations later emerged that the father had inflicted physical abuse on the children during this period .

NORP In DATE , both parents were committed to prison for DATE for electricity meter offences . The first applicant and PERSON stayed with their maternal grandmother , while the second applicant and CARDINAL sisters were taken into voluntary care . A. was discharged to the mother ’s care on her release from prison .

On DATE , in matrimonial proceedings , the mother was given custody of the applicants and their siblings . The court ordered that the first applicant , T. and A. be subject to the supervision of the local authority under matrimonial supervision orders , pursuant to section CARDINAL of the Matrimonial Proceedings ( Magistrates Court ) Act DATE . As the second applicant and J. were still in the voluntary care of the local authority , they were not made subject to supervision orders .

The second applicant and J. remained in voluntary care until DATE when reunited with their mother . Social services carried out frequent visits to the family thereafter .

On DATE , the mother gave birth to a son M. from a brief relationship .

While CARDINAL medical report noted that the second applicant had suffered from a soiling problem from a very young age and that it had become DATE after the birth of PERSON , the social services records gave attention to this problem from DATE .

On DATE , in the GPE divorce proceedings , the matrimonial supervision order was varied to include the second applicant and J.

According to the applicants , the relationship between the mother and GPE began in DATE , though he had been acting as a babysitter for the mother for some time previously . GPE was DATE younger than the mother , who was DATE at this time . They were married in DATE . Social service records noted that the general standards in the home improved following GPE ’s arrival and that the children seemed to be accepting him as a substitute father . Positive comment was made on GPE adjusting well to the role of husband and father , and that the mother was benefiting from his support in finding more time for the children . It was observed that the second applicant was very wary of GPE and that his soiling problems were continuing .

In DATE , the social services involvement centred on the family ’s financial difficulties and the second applicant ’s soiling . He was admitted twice to hospital as an in - patient in that connection in DATE and DATE .

During the period from DATE to CARDINAL DATE , there were CARDINAL visits from the relevant social worker . It was noted that GPE had been supportive of the mother during her pregnancy and had strengthened his relationship with the children and their trust in him . PERSON was perceived as benefiting from his stabilising influence and J. had grown to rely on him . A. and the first applicant were noted as showing some resentment of GPE as a permanent authority figure . The first applicant was seen however as having become more lively , with fewer illnesses and learning to trust GPE The second applicant , alone among the children , had shown no physical improvement , was suffering teasing and taunting at home and at school , and continued to be wary and jealous of GPE These perceptions were confirmed by different social workers , education officers and health workers .

It was noted that the second applicant had stopped soiling during a DATE stay in hospital . When he returned home in DATE , the soiling recommenced . The social worker discussed this with the mother and GPE and considered that it was probably linked to the stress within the home . GPE was facing charges of arson and there were fears that he would be sent to prison . In DATE , following discussions at the school , the social worker noted that the second applicant was not soiling himself regularly at school , but rather on the way home from school .

On DATE , the social worker noted , following an arranged holiday :

“ I was able to inform [ ORG and their mother ] of the ORG excellent behaviour on holiday . This obviously pleased the couple who , despite all their faults , care greatly for their children ... GPE is such a caring figure in this house . I feel a child of his own will some how repay his devotion to his stepchildren . ”

In DATE GPE was convicted of arson and sentenced to CARDINAL months’ imprisonment . The social worker observed that the children were extremely upset at his imprisonment . At a multi - disciplinary meeting concerning the second applicant on DATE , his problems were considered by a team including teachers , psychiatrists , health workers and hospital staff . The notes indicated that no direct cause of the second applicant ’s problems was identified and that his mother was considered to be “ less caring ” than she should be .

N.C. returned to the family in DATE , at about the same time that the second applicant returned from a period in hospital . A new social worker attached to the family commented favourably on GPE ’s conduct , witnessing him cooking a meal for the children and making coffee for everyone .

The second applicant continued to receive out - patient treatment from the health service and had DATE psychiatric treatment . The detailed records which exist show no mention or suspicion of child abuse . The soiling had again stopped during his stay in hospital in DATE . It started again when he was at home .

On DATE S. , the daughter of GPE and the mother , was born ( the mother had suffered a series of miscarriages before this birth ) . Financial difficulties continued for the family , which social services sought to resolve . They continued to monitor the well - being of the children . Particular consideration was given to the second applicant ’s continued soiling , though in DATE it was observed to have become more infrequent . On DATE , it was recorded that the second applicant was being bathed by GPE as he was very averse to washing himself properly .

A report of CARDINAL DATE noted that PERSON , who was attending a group for young people organised by the social services , was causing concern as her sexual awareness was possibly greater than “ normal ” in a child of her age .

On DATE , the social worker was called urgently to the children ’s school after the children had told the teacher that GPE had hit them and their mother had knocked the baby on the floor . The incident was investigated . No physical injury was found , and GPE and the mother had talked about the stress which they had been under . No further action was taken .

In DATE , the case was transferred to another social worker Mr C. who remained with the family until DATE . His diary for DATE noted that he had spoken to the second applicant alone and sought to get him to explain why he had a soiling problem .

“ He was unable to answer properly but said that he knew he wanted to go to the toilet but for reasons he could n’t explain he did n’t make the effort . ... [ The mother and GPE ] have tried a variety of methods to attempt to modify his behaviour ... The only time success has been achieved is when he has been removed from home and obviously this accounts for some suggestions [ from the headmaster ] that maybe the answer is for him to be removed on a more permanent basis . As stated previously [ the mother and GPE ] are very against this and I would prefer to consider all the alternatives before suggesting his removal . In any case , without the consent of his parents it is extremely unlikely that the soiling problem would sufficiently constitute reason for taking him into care . ”

The records of PERSON with the family and its individual members made no mention of any reference to sexual abuse . In his statement of DATE , he had no recollection that the first applicant made any complaint to him . His notes record CARDINAL examples of conversations during this period :

“ CARDINAL.CARDINAL.CARDINAL [ The first applicant ] had refused to go to school DATE and I spoke to her about this . I do not feel that there was any real problem about it other than [ the mother and GPE ] allowing her to get away with it . ”

“ CARDINAL.CARDINAL.CARDINAL [ the first applicant ] claimed that she did not want to go to school because [ GPE ] was always getting on to her . ”

“ CARDINAL.CARDINAL.CARDINAL Talked to [ the first applicant ] alone and she was very critical of the way [ the foster parents ] treated her ... After talking to her it became evident that she had recently been home and they had asked her to go back ; this was obviously playing on [ her ] mind and causing her to be increasingly critical of [ her foster parents ] ... [ She ] was insisting that she wanted to go back home ... ”

The first applicant was truanting frequently during this period . On DATE , she was placed in care at both her and her GPE request . The application for her to be taken into voluntary care signed by PERSON stated :

“ The ... family have a long history of contact with the social services department and much support has been given over DATE . The problems presented are very much part of a total family situation which lacks a depth of relationship and stumbles from crisis to crisis . The symptoms of this situation are that the children ( CARDINAL ) present individual problems including incontinence and school truancy and the family are stigmatised within their community as a “ problem family ” . Efforts have been made by myself and other workers to improve matters , including a “ family group ” meeting on a DATE basis , but progress is slow and the basic problems remain . Whilst these efforts will be maintained it is considered that [ the first applicant ] the eldest is now beyond the control of her parents and this is not likely to improve . She is rebelling against her parents and family by constantly truanting from school and frequently staying out until TIME . I am convinced that her behaviour is very much tied to her unhappiness in the family and feel that a foster placement would allow her to return to an acceptable level of behaviour which she is more than capable of achieving . ”

The first applicant stayed in foster care for DATE and on DATE was returned at her own and her GPE request .

On DATE , an incident occurred in the family home , in which A. alleged that she had been hit by her parents during a “ great family row ” . The mother asked the social services to take her into care , along with the second applicant and J. It was decided in the end to place A. with foster parents and leave the others in the family home . The second applicant and PERSON were noted as being insistent that they remain at home . PERSON returned home at her own request and that of her mother and GPE in DATE .

On DATE , there was an incident when the first applicant ran away from home because of DATE . She returned DATE .

NORP The matrimonial supervision order in respect of the first applicant expired on DATE when she reached DATE .

On DATE , the mother and ORG had a second child , a son PERSON

From some time at DATE , the first applicant ’s boyfriend , ORG , began to live in the family house .

On DATE , there was an incident reported to the social services when GPE hit J. Though GPE admitted that he had caught her on the cheek , he stated that he had not intended to hit her on the face – he had swiped at her in anger as she had been extremely cheeky . As PERSON was not marked from any injury on the face , the matter was not pursued further .

Care proceedings were instituted in respect of A. due to her non - attendance at school . In DATE , she went to live with her father , where her attendance improved and the proceedings were dropped .

On DATE , ORG contacted the social services about the second applicant and his twin J. who were “ practically hysterical ” . The social worker talked to the second applicant in the absence of GPE and the mother but “ without a degree of success ” . He arranged to talk to him and his sister alone DATE and told them that if they had problems they should let him know . They mentioned to him some matters , e.g. they were picked on at school and their mother had borrowed money from them ( their earnings from a paper round ) . They promised to go to school and inform him if they had any problems .

On DATE , the social services attended the family home following a call from GPE , alleging that the second applicant and PERSON had been smashing up the house . It appeared that the first applicant ’s boyfriend , ORG , had been fighting with J. Potato knives and pieces of wood had been thrown . It was agreed to place the second applicant and J. in voluntary care .

On DATE , the second applicant and PERSON ran away from the foster home to the family home . They were returned to the foster home .

On CARDINAL DATE , GPE left the family home .

On DATE , the second applicant and PERSON returned home .

On DATE , the second applicant was placed in a children ’s home at the mother ’s request .

The social services noted GPE ’s return in DATE .

In or DATE , the first applicant gave birth to a son , the father of whom was her boyfriend PERSON

On DATE , the matrimonial supervision order in respect of the second applicant and PERSON was varied to a care order . In a report of CARDINAL DATE to the court , the social services had described the family situation as follows :

“ This family have been known to ORG since DATE and throughout this time have had numerous complex problems ... GPE has always accepted that his role with the children was difficult but he did provide a great deal of support to [ the mother ] and has tried to help her through the many difficulties that a large family inevitably produce . GPE has not worked on a regular basis for some time , although he has shown on occasions that he is prepared to work hard over long periods ...

[ GPE and the mother ] appear to have developed a pattern of life which stutters from CARDINAL crisis to another , but on DATE GPE decided that he could not stand the situation any longer so he left the family home . He did , however , return for DATE in an attempt to reconcile his marriage , but the behaviour and attitude of [ the second applicant and J. ] towards him was so bad that he returned to his lodgings . GPE visited his wife regularly and helped to the best of his ability to assist and support his wife ...

The family seem unable to break out of the trap of financial hardship and this coupled with the relationship difficulties between GPE and the older children created a weak foundation on which to build a strong family situation . The family have received much support from our department , and others , to strengthen family relationships and advice on financial matters but success has been limited and there is often difficulty in maintaining the status quo . The family have rent arrears of MONEY CARDINAL,CARDINAL together with gas and electricity arrears . At the present time our department is negotiating with ORG to try and prevent the supply from being disconnected yet again .

In order to encourage the children to relate better to one another and to their parents , they were involved in various group situations supervised by our department . They have invariably shown themselves to be pleasant , co - operative children , who respond to the individual attention lacking at home . DATE a social worker ran a group for the whole family in an attempt to encourage them to work on improving their family relationships and also their relationship with the wider community in which to an extent they are stigmatised . This met with some success but at the end of the group the situation quickly reverted back . ...

[ The second applicant and J. ] have followed the pattern of their CARDINAL elder sisters for their school attendance has deteriorated ... [ GPE and the mother ] found themselves unable to make them attend school and their behaviour at home became intolerable so much so that on DATE [ the mother ] asked our department to receive [ them ] into ORG for DATE . The twins were placed with foster parents ... They started to truant the following week ... The mother ... became very depressed and according to [ the mother ] , the neighbours and [ the first applicant ] the twins took full advantage of their mother ’s illness and ran riot in the house and were not adverse to throwing items at the other residents . The situation became so bad that on DATE [ the mother ] telephoned our office and pleaded with us to take the children because she had no control over them whatsoever and was frightened in case she struck out and hurt them . Our department agreed to her request and on visiting the house the twins ran from the house . They were found shortly afterwards and placed separately in ORG homes ...

GPE believes that if [ the second applicant and J. ] are not at home there is a good chance that he and [ the mother ] could reconcile their marriage ...

The twins could be capable of persuading their mother to take them out of ORG and the situation would , as on past experience , revert to non school attendance and breakdown of the family unit . [ The first applicant ] will hopefully be given the tenancy of a council house after the birth of her baby in DATE and with the twins in care it would seem more likely that [ GPE and the mother ] would be able to care for the CARDINAL younger children in a satisfactory manner .

It is for these reasons that our department is asking for the supervision order on [ the second applicant and J. ] to be varied to a matrimonial care order . This action would ensure that the twins could not manipulate their mother and also have a period of stability both socially and educationally . ”

Pursuant to the care order , the second applicant remained in the children ’s home where he was recorded as making reasonably good progress . He was spending alternate weekends in the family home .

In a report dated CARDINAL DATE on the second applicant in the children ’s home , it was noted that there was no feedback from him on the home situation or how he was relating at home , the second applicant giving no insight into the structure or lifestyle there . An entry in the social services records noted on DATE that the second applicant was not happy about going home at DATE but the reason was not known . In an interview with the social worker in the children ’s home in DATE , it was recorded that he would not say why he did not want to go home or if he had problems there . The social worker told him that no - one could help him unless he shared his problems . Other entries in the records indicated that on DATE he returned after having had a good DATE at home and that when he went home at GPE he requested permission to extend his stay .

In DATE , PERSON was made subject of a care order due to his non - attendance at school and placed with foster parents .

On DATE , GPE was convicted of theft and sentenced to CARDINAL months’ imprisonment .

On DATE , the second applicant went home on a trial basis .

In DATE , GPE was released from prison .

On DATE , the care order was discharged on the second applicant .

During DATE , the first applicant married . In DATE , the second applicant went to live with her .

During DATE , PERSON ( aged DATE ) gave birth to a baby PERSON and allegations were made that GPE was the father , though S. in her statements denied this and told the social services that the father was a boy her own age . The social services had been informed of the pregnancy by the mother in DATE .

In DATE , A. informed a social worker that she had been sexually abused by GPE from DATE . On DATE , she gave a statement to the police . The police also interviewed PERSON , the second applicant and other family members . A. stated , inter alia , that during a row she and PERSON had once told her mother about the abuse in GPE ’s presence . GPE and their mother responded by hitting them . In her statement , J. recalled that the abuse was never discussed between the children and that “ it was almost accepted that it happened ” . She had tried to drop hints to their mother but did not tell her what was happening as she felt that she would be rejected . She used to misbehave hoping that her mother would give her attention and listen to her . The mother claimed that she had never seen or heard of any abuse occurring . S. denied that GPE had acted inappropriately with her .

The first applicant initially refused to give a statement . In LAW of DATE , it was recorded that though she admitted to having been sexually abused by ORG she was adamant that she did not wish to become involved or make a formal statement .

On DATE , ORG was interviewed by the police . He was charged with counts of rape , indecent assault and of inciting the second applicant to assault J. and J. to assault the second applicant .

On DATE , an ORG placed DATE and PERSON on ORG . It noted that the allegations of abuse in the home had come to light on DATE when a health worker informed the social services of ORG ’s disclosures of abuse by GPE It now appeared that CARDINAL of the children had been abused by GPE The mother had told the social services that J. was a liar and denied that any of the children had disclosed any sexual abuse to her . An Education Officer was noted as stating that he had always been of the opinion that any abuse was physical , and a social worker recalled A. telling him that GPE had used totally inappropriate / sexualised language to the children . These entries also appeared :

“ In the opinion of [ ORG ] , from reading the files , it would appear that there have been many concerns about the behaviour of the children within the family which may indicate abuse . ”

“ [ ORG ] the officer in charge of ORG reported that [ A. ] had discussed issues of sexual abuse with a social work student DATE previously but nothing specific was noted in the records . ... ”

On DATE , the social services were informed by the second applicant that GPE had been staying with the mother and visiting the house regularly in breach of bail conditions . GPE was arrested DATE and remanded in custody .

On DATE , the first applicant made a statement to the police .

Around DATE , ORG admitted the allegations made by both applicants . On DATE , he pleaded guilty to CARDINAL counts of attempted rape and CARDINAL counts of indecent assault ( on A. , J. and the second applicant ) . He was sentenced to CARDINAL years’ imprisonment , for which CARDINAL attempted rape and CARDINAL indecent assaults on the first applicant were also taken into consideration .

According to their statements , the applicants had suffered the following abuse :

From DATE , when she was CARDINAL , to DATE , the first applicant was sexually abused on a regular basis by GPE This occurred once DATE usually on DATE ( when her mother went out ) and on any other occasion when she and GPE were alone in the house . GPE regularly required the first applicant to masturbate him . On CARDINAL occasions he required her to place a nail in the end of his penis . He used to bath her ( and her sisters ) until DATE and during that time he was touching her ( and her sisters ) in her vagina and breasts . He raped her at DATE . At DATE he forced her to take his penis into her mouth and then forced her to have sexual intercourse with him . The abuse continued until DATE when the first applicant ’s boyfriend moved into the family home .

The first applicant claimed that she was acting against her will and she felt grossly humiliated in her own eyes . She stated that she was too afraid to tell her mother . When the first applicant , for example , made an attempt on her life in front of her mother after she was raped by GPE , her mother responded by simply laughing . The first applicant did not complain of the rape knowing that this would entail a gynaecological examination .

DATE . From DATE , when he was about CARDINAL , the second applicant was sexually abused by GPE on a regular basis , i.e. on DATE , DATE or DATE evenings when his mother was out . This continued until DATE ( though according to a psychiatric report the second applicant claimed that he was sexually abused from DATE ) , when the second applicant , at DATE , began absenting himself from school . He was taken into voluntary care by the local authority because his mother was unable to cope and placed in a children ’s home . Even then , however , the second applicant was sexually abused during weekend visits at home . GPE would masturbate the second applicant and tell him to masturbate him . On occasions GPE would require the second applicant to touch his twin sister J. on the vagina and would require J. to masturbate the second applicant . The second applicant did this unwillingly and because GPE threatened him that there would be trouble if he did not . The second applicant did not report to his mother for fear of not being believed and from fear of GPE The ORG mother , although it was not clear whether she was aware of GPE ’s conduct , did not take any interest when the children were distressed . The second applicant continued to be abused until he began to live independently .

Both applicants suffered extreme humiliation from the activities in which they were required to engage . Both had extreme difficulty in reporting the matter to the police and were only able to reveal the full extent of the abuse after several statements . Both applicants have suffered long term depression and trauma as a result of the abuse and have submitted psychiatric reports in respect of this . As a consequence of her abuse , the first applicant has been diagnosed as suffering from depression on and off throughout her life , which on occasions could last for DATE . She suffered from a personality disorder associated with feelings of low self esteem , anxiety , anger , aggression , social phobia and to some degree agoraphobia . She has had nightmares for most of her life and has experienced suicidal thoughts . Over DATE she has suffered from irritable bowl and migraine headaches which have been diagnosed as being partly due to stress suffered because of her abuse as a child . She has been attending DATE counselling since DATE .

The second applicant has also suffered psychological problems as a result of his treatment which were exacerbated after the police investigation into his sexual abuse . His personality has been adversely affected . He experienced mood swings and suffers from anxiety , anger and aggression . He had little enjoyment of life and , as a consequence of his condition , he had less energy and found it hard to concentrate . He experienced difficulty in forming relationships . He has suffered from epilepsy since DATE which is said to complicate his psychological condition . The second applicant has various minor criminal convictions for theft and like offences prior to DATE which could , it is argued , be a result of the abuse suffered .

The applicants claimed that they had informed the social services of the abuse as follows .

For the first time , in DATE , both applicants and their sisters told the visiting social worker that their stepfather hit them . On another occasion during DATE , the first applicant reported to the new social worker , PERSON , that she and the second applicant were being assaulted by their stepfather . On that occasion the applicants’ mother was asked by the social services whether any abuse was taking place but denied the allegations . No action was taken by the social services department .

After continued sexual assaults , the first applicant states that on CARDINAL of her regular meetings at the social worker ’s office she was asked why she was being difficult at home and running away . She told them that GPE was hitting her and doing “ other things ” to her and she wanted to leave home . The first applicant stated that GPE raped her on DATE , which was DATE her CARDINAL sister , PERSON , was born . She claims that the social services did not believe her when she told them of the “ things ” that were going on and thought that she was jealous of the birth of the baby .

During the police investigation , the second applicant states that he was informed by the police for the first time that there was information on the social services files which indicated that the social services department had been aware of the sexual abuse in GPE ’s household .

On DATE , the second applicant made an application to ORG , as a victim of a crime , which made him an offer of compensation of MONEY ( GBP ) , which he accepted . On DATE , the first applicant also made an application to the ORG which made her an offer of compensation of GBP CARDINAL which she did not accept .

DATE . On DATE , the second applicant ’s solicitors wrote to the social services department asking for information about the files relating to him . On DATE , solicitors for the first applicant wrote to the social services department complaining of the abuse and requesting information . They were referred to solicitors for the local authority ’s insurers . On DATE , the applicants’ solicitors wrote to those solicitors complaining that the “ ORG failed to protect both of our clients from persistent abuse in particular perpetrated by [ GPE ] . ”

On DATE , the applicants applied for legal aid . ORG refused legal aid on DATE , finding that there were no reasonable grounds for taking proceedings . The appeal against the refusal was dismissed on DATE .

In or DATE , the second applicant approached the local authority personally with a complaint , and was told that he could see his social services file with third party information removed . DATE , this offer was withdrawn .

On DATE , the local authority solicitors wrote to the first applicant ’s solicitors :

“ We regret that the principle of ORG means that the ORG will be unable to voluntarily disclose information relating to your client . ”

On DATE , the local authority solicitors wrote a similar letter in relation to the second applicant ’s complaints .

On DATE , legal aid was granted to the second applicant for counsel ’s advice in respect of an action against the local authority .

On DATE , the second applicant brought proceedings in ORG claiming damages for negligence and breach of statutory duty under LAW DATE and/or LAW DATE by the local authority and the social workers employed by them , acting as their servants and agents because they failed inter alia :

– to carry out a proper investigation of the complaints now or of the alleged abuse at the time ,

– to remove him from the care of GPE and his mother .

The second applicant alleged that the local authority owed him a duty of care , had acted in breach of that duty and breached their statutory duty , causing him loss and damage . He claimed breach of statutory duty in that the local authority failed to grant him access to the records held by them , contrary to section CARDINAL of the Access to Personal Files Act DATE .

The local authority applied to strike the case out on the basis that the second applicant had no reasonable cause of action .

On DATE , the application was struck out by the District Judge as disclosing no cause of action following the cases of X. and Others v. ORG ( [ DATE ] PERSON ) and H v. ORG ( [ DATE ] CARDINAL FLR CARDINAL ) , in which it was held that there was no cause of action in negligence or for breach of statutory duty against a local authority in respect of any alleged failure by the local authority to discharge its statutory duties relating to child care .

In the light of the decisions of X. and Others v. ORG and H v. ORG and the judgment of ORG , counsel advised both applicants that they could not pursue domestic proceedings against ORG .

In or DATE , the local authority gave the second applicant sight of edited extracts from the social services files .

In an affidavit dated DATE , the social worker , PERSON , stated that he had no recollection of having any conversation with the first applicant in which she had said that GPE had sexually abused her . He remembered the family very well , and when he left the area in DATE he did not recall that any accusations of sexual abuse had been made . He had made detailed running records of his involvement with the family and if there had been any suggestion of sexual abuse by GPE he was confident that it would be in those records .

Prior to the coming into force of the current legislation , LAW DATE , on DATE , the local authority ’s duty in respect of child care was governed by LAW .

Sections CARDINAL and CARDINAL of LAW DATE provided :

“ CARDINAL . It shall be the duty of every local authority to make available such advice , guidance and assistance as may promote the welfare of children by diminishing the need to receive or keep them in care .

CARDINAL(CARDINAL ) Where it appears to a local authority with respect to a child in their area appearing to them to be under DATE

( a ) that he has neither parent nor guardian or has been and remains abandoned by his parents or guardian or is lost ;

( b ) that his parents or guardian are , for the time being or permanently , prevented by reason of mental or bodily disease or infirmity or other incapacity or any other circumstances from providing for his proper accommodation , maintenance and upbringing ; and

( c ) in either case , that the intervention of the local authority under this section is necessary in the interests of the welfare of the child , it shall be the duty of the local authority to receive the child into their care under this section ” .

Section CARDINAL of LAW DATE has since provided , inter alia :

“ CARDINAL . Provision of services for children in need , their families and others

( CARDINAL ) It shall be the general duty of every local authority ( in addition to the other duties imposed on them by this Part ) -

( a ) to safeguard and promote the welfare of children within their area who are in need ; and

( b ) so far as is consistent with that duty , to promote the upbringing of such children by their families , by providing a range and level of services appropriate to those children ’s needs .

( CARDINAL ) For the purpose principally of facilitating the discharge of their general duty under this section , every local authority shall have the specific duties and powers set out in Part CARDINAL of Schedule CARDINAL ...

( CARDINAL ) For the purposes of this Part a child shall be taken to be in need if –

( a ) he is unlikely to achieve or maintain , or to have the opportunity of achieving or maintaining a reasonable standard of health or development without the provision for him of services by a local authority under this Part ;

( b ) his health or development is likely to be significantly impaired or further impaired , without the provision for him of such services ; or

( c ) he is disabled ...

( CARDINAL ) ... in this Part

‘ development’ means physical , intellectual , emotional , social or behavioural development ; and

‘ FAC means physical or mental health . ”

Part III of LAW DATE deals with local authority support for children and families . The policy of the LAW is made clear by paragraph CARDINAL of Part i of Schedule CARDINAL , which requires local authorities to take reasonable steps designed to reduce the need to bring proceedings relating to children .

Section CARDINAL provides that

“ CARDINAL ) Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of –

( a ) there being no person who has parental responsibility for him ;

( b ) his being lost or having been abandoned ; or

( c ) NORP the person who has been caring for him being prevented ( whether or not permanently , and for whatever reason ) from providing him with suitable accommodation or care . ...

( CARDINAL ) A local authority may provide accommodation for any child within their area ( even though a person who has parental responsibility for him is able to provide him with accommodation ) if they consider that to do so would safeguard or promote the child ’s welfare . ”

Part V of LAW DATE deals with the protection of children . Section CARDINAL provides as follows :

“ CARDINAL(CARDINAL ) Where a local authority – ...

( b ) have reasonable cause to suspect that a child who lives or is found , in their area is suffering , or is likely to suffer , significant harm ,

the authority shall make , or cause to be made , such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child ’s welfare ...

( CARDINAL) Where , as a result of complying with this section , a local authority conclude that they should take action to safeguard or promote the child ’s welfare they shall take action ( so far as it is within their power and reasonably practicable for them to do so ) . ”

In GPE and GPE , there is no single tort which imposes liability to pay compensation for civil wrongs . Instead there are a series of separate torts , for example , trespass , conversion , conspiracy , negligence and defamation .

Negligence arises in specific categories of situations . These categories are capable of being extended . There are CARDINAL elements to the tort of negligence : a duty of care , breach of the duty of care and damage . The duty of care may be described as the concept which defines the categories of relationships in which the law may impose liability on a defendant in damages if he or she is shown to have acted carelessly . To show a duty of care , the claimant must show that the situation comes within an existing established category of cases where a duty of care has been held to exist . In novel situations , in order to show a duty of care , the claimant must satisfy a CARDINAL test , establishing :

– that damage to the claimant was foreseeable ;

– that the claimant was in an appropriate relationship of proximity to the defendant ; and ,

– that it is fair , just and reasonable to impose liability on the defendant .

These criteria apply to claims against private persons as well as claims against public bodies . The leading case is ORG v. ORG [ DATE ] CARDINAL AC CARDINAL ) .

If the courts decide that as a matter of law there is no duty of care owed in a particular situation , that decision will ( subject to the doctrine of precedent ) apply in future cases where the parties are in the same relationship .

The decision in X and Others v. ORG ( [ DATE ] CARDINAL ORG CARDINAL ) is the leading authority in GPE in this area . ORG there held that local authorities could not be sued for negligence or for breach of statutory duty in respect of the discharge of their functions concerning the welfare of children . The children in that case had suffered severe neglect and abuse from their parents and had alleged that the local authority had failed to protect them , inter alia , by not exercising their power to take them into care at an earlier stage . As regards the claims that the local authority owed a duty of care to the applicants pursuant to the tort of negligence , Lord PERSON stated inter alia :

“ I turn then to consider whether , in accordance with the ordinary principles laid down in GPE [ DATE ] CARDINAL A.C. CARDINAL , the local authority ... owed a direct duty of care to the plaintiffs . The local authority accepts that they could foresee damage to the plaintiffs if they carried out their statutory duties negligently and that the relationship between the authority and the plaintiffs is sufficiently proximate . The third requirement laid down in GPE is that it must be just and reasonable to impose a common law duty of care in all the circumstances ...

The Master of the Rolls took the view , with which I agree , that the public policy consideration that has first claim on the loyalty of the law is that wrongs should be remedied and that very potent counter considerations are required to override that policy ( see [ DATE ] CARDINAL AER CARDINAL at CARDINAL ) . However , in my judgment there are such considerations in this case .

First , in my judgment a common law duty of care would cut across the whole statutory system set up for the protection of children at risk . As a result of the ministerial directions contained in “ ORG ” the protection of such children is not the exclusive territory of the local authority ’s social services . The system is inter - disciplinary , involving the participation of the police , educational bodies , doctors and others . At all stages the system involves joint discussions , joint recommendations and joint decisions . The key organisation is ORG , a multi - disciplinary body which decides whether to place the child on ORG . This procedure by way of joint action takes place , not merely because it is good practice , but because it is required by guidance having statutory force binding on the local authority . The guidance is extremely detailed and extensive : the current edition of “ LAW ” runs to CARDINAL pages . To introduce into such a system a common law duty of care enforceable against CARDINAL of the participant bodies would be manifestly unfair . To impose such liability on all the participant bodies would lead to almost impossible problems of disentangling as between the respective bodies the liability , both primary and by way of contribution , of each for reaching a decision found to be negligent .

Second , the task of the local authority and its servants in dealing with children at risk is extraordinarily delicate . Legislation requires the local authority to have regard not only to the physical well - being of the child but also to the advantages of not disrupting the child ’s family environment . ... In one of the child abuse cases , the local authority is blamed for removing the child precipitately ; in the other for failing to remove the children from their mother . As the Report of the Inquiry into Child Abuse in GPE DATE ( ORG . CARDINAL ) ( “ GPE Report DATE ” ) said , at p. CARDINAL :

‘ ... It is a delicate and difficult line to tread between taking action too soon and not taking it soon enough . Social services whilst putting the needs of the child first must respect the rights of the parents ; they also must work if possible with the parents for the benefit of the children . These parents themselves are often in need of help . Inevitably a degree of conflict develops between those objectives.’

ORG , if liability in damages were to be imposed , it might well be that local authorities would adopt a more cautious and defensive approach to their duties . For example , as ORG makes clear , on occasions the speedy decision to remove the child is sometimes vital . If the authority is to be made liable in damages for a negligent decision to remove a child ( such negligence lying in the failure properly first to investigate the allegations ) there would be a substantial temptation to postpone making such a decision until further inquiries have been made in the hope of getting more concrete facts . Not only would the child in fact being abused be prejudiced by such delay , the increased workload inherent in making such investigations would reduce the time available to deal with other cases and other children .

The relationship between the social worker and the child ’s parents is frequently CARDINAL of conflict , the parent wishing to retain care of the child , the social worker having to consider whether to remove it . This is fertile ground in which to breed ill - feeling and litigation , often hopeless , the cost of which both in terms of money and human resources will be diverted from the performance of the social service for which they were provided . The spectre of vexatious and costly litigation is often urged as a reason for not imposing a legal duty . But the circumstances surrounding cases of child abuse make the risk a very high one which can not be ignored .

If there were no other remedy for maladministration of the statutory system for the protection of children , it would provide substantial argument for imposing a duty of care . But the statutory complaints procedures contained in section DATE of LAW and the much fuller procedures now available under LAW provide a means to have grievances investigated though not to recover compensation . Further , it was submitted ( and not controverted ) that the local authorities ORG would have power to investigate cases such as these .

Finally , your Lordships’ decision in Caparo [ DATE ] CARDINAL A.C. CARDINAL lays down that in deciding whether to develop novel categories of negligence the court should proceed incrementally and by analogy with decided categories . We were not referred to any category of case in which a duty of care has been held to exist which is in any way analogous to the present cases . Here , for the first time , the plaintiffs are seeking to erect a common law duty of care in relation to the administration of a statutory social welfare scheme . Such a scheme is designed to protect weaker members of society ( children ) from harm done to them by others . The scheme involves the administrators in exercising discretion and powers which could not exist in the private sector and which in many cases bring them into conflict with those who , under the general law , are responsible for the child ’s welfare . To my mind , the nearest analogies are the cases where a common law duty of care has been sought to be imposed upon the police ( in seeking to protect vulnerable members of society from wrongs done to them by others ) or statutory regulators of financial dealing who are seeking to protect investors from dishonesty . In neither of these cases has it been thought appropriate to superimpose on a statutory regime a common law duty of care giving rise to a claim in damages for failure to protect the weak against the wrongdoer . ... In my judgment , the courts should proceed with great care before holding liable in negligence those who have been charged by ORG with the task of protecting society from the wrong doings of others . ”

More recently , ORG gave judgment on DATE in PERSON v. the GPE of GPE ( [ DATE ] CARDINAL WLR CARDINAL ) . That case concerned the claims of the plaintiff , who had been in care from DATE , that the local authority had negligently failed to safeguard his welfare causing him deep - seated psychiatric problems . The local authority had applied to strike out the case as disclosing no cause of action . ORG , upholding the plaintiff ’s appeal , unanimously held that the case of X and Others v. ORG did not in the circumstances of this case prevent a claim of negligence being brought against a local authority by a child formerly in its care .

Lord PERSON , in his judgment in that case , commented as follows on the operation of the duty of care :

“ ( CARDINAL ) Although the word ‘ ORG is sometimes incorrectly used , a holding that it is not fair , just and reasonable to hold liable a particular class of defendants whether generally or in relation to a particular type of activity is not to give immunity from a liability to which the rest of the world is subject . It is a prerequisite to there being any liability in negligence at all that as a matter of policy it is fair , just and reasonable in those circumstances to impose liability in negligence . ( CARDINAL ) In a wide range of cases public policy has led to the decision that the imposition of liability would not be fair and reasonable in the circumstances , e.g. some activities of financial regulators , building inspectors , ship surveyors , social workers dealing with sex abuse cases . In all these cases and many others the view has been taken that the proper performance of the defendant ’s primary functions for the benefit of society as a whole will be inhibited if they are required to look over their shoulder to avoid liability in negligence . In LANGUAGE law the decision as to whether it is fair , just and reasonable to impose a liability in negligence on a particular class of would - be defendants depends on weighing in the balance the total detriment to the public interest in all cases from holding such class liable in negligence as against the total loss to all would - be plaintiffs if they are not to have a cause of action in respect of the loss they have individually suffered . ( CARDINAL ) In LANGUAGE law , questions of public policy and the question whether it is fair and reasonable to impose liability in negligence are decided as questions of law . Once the decision is taken that , say , company auditors though liable to shareholders for negligent auditing are not liable to those proposing to invest in the company ( see ORG plc v Dickman [ DATE ] CARDINAL All ER CARDINAL , [ DATE ] CARDINAL AC CARDINAL ) , that decision will apply to all future cases of the same kind . The decision does not depend on weighing the balance between the extent of the damage to the plaintiff and the damage to the public in each particular case . ”

At the relevant time , LAW rule CARDINAL of the Rules of ORG provided that a claim could be struck out if it disclosed no reasonable cause of action . This jurisdiction has been described as being reserved for “ plain and obvious cases ” , in which a claim was “ obviously unsustainable ” .

NORP In applications to strike out , the courts proceeded on the basis that all the allegations set out in the claimant ’s pleadings were true . The question for the courts was whether , assuming that the claimant could substantiate all factual allegations at trial , the claim disclosed a reasonable cause of action .

The striking out procedure , now contained in the Part CARDINAL.CARDINAL(CARDINAL ) of ORG in force since DATE , is aimed at securing speedy and effective justice , inter alia by allowing it to be decided promptly which issues need full investigation and trial and disposing summarily of the others . By means of this procedure , it can be determined at an early stage , with minimal cost to the parties , whether the facts as pleaded reveal a claim existing in law .