Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE .

On DATE the applicant was arrested and taken into police custody on suspicion of membership of an illegal organisation .

On DATE ORG ordered the applicant 's detention on remand .

On DATE the public prosecutor 's office at FAC filed a bill of indictment with the latter , accusing the applicant of membership of an illegal organisation . The public prosecutor 's office requested that the applicant be convicted and sentenced under LAW .

On DATE ORG convicted the applicant as charged and sentenced him to DATE imprisonment . Before ORG , the applicant was tried together with CARDINAL co - suspects .

Following the applicant 's appeal , his case was referred to ORG .

On DATE ORG quashed the judgment of ORG on the ground that latter had misinterpreted the domestic law in respect of the offence in question .

On DATE the applicant was released from detention .

Subsequent to promulgation of PERSON no . CARDINAL on DATE , which abolished the jurisdiction of ORG , ORG acquired jurisdiction over the applicant 's case .

On DATE ORG held that the offence fell within the scope of LAW and consequently the statutory timelimit under LAW and ORG of LAW had expired . It accordingly ordered that the criminal proceedings against the applicant be terminated .

On DATE the judgment became final in respect of the applicant .

A description of the relevant domestic law and practice can be found in Şahiner v. GPE , no . CARDINAL/CARDINAL , ORG CARDINAL-IX .


The applicant , Mr GPE PERSON , is an NORP national , who was born in DATE and currently lives in the GPE . He was represented before the ORG by Ms I.J.M. Oomen , a lawyer practising in GPE . The respondent Government were represented by their Agent , Mr R.A.A. PERSON , of ORG .

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

On DATE the applicant entered the GPE , where he applied for asylum . He stated that , during the former ( “ ORG ” ) regime of PERSON in GPE , he had been a member of ORG ( ORG ) and had been a pilot in the NORP air force . He further stated that , DATE , he had stayed in GPE for military training purposes . After having returned to GPE in DATE , he had participated between DATE and DATE in military operations in GPE , Tigra and PERSON and had carried out bombings . DATE and DATE , he had stayed for a second period in GPE for further military training . When the PERSON regime had been overthrown in DATE , he had remained in GPE and had returned to GPE in DATE . Shortly after his return , he had reported to the new authorities in GPE and had subsequently been sent to a political re - education camp . He had stayed in that camp from DATE until CARDINAL or DATE , when he had been released with an obligation to report regularly to the authorities . He had complied with this obligation until DATE when DATE after having heard that pilots had been arrested on accusations of murder and plundering , and after members of the military had come to his aunt ’s house with whom he had then lived and who had asked for him DATE he had gone into hiding for fear of being arrested again . He had left GPE for GPE in DATE . In the course of DATE , he had travelled from GPE to GPE where , holding forged residence permits , he had stayed until DATE when he had travelled on his own NORP passport via GPE to the GPE .

On DATE , the applicant ’s asylum request was rejected by the Deputy Minister of Justice ( ORG ) , who did not find it established that the applicant had a well - founded fear of persecution .

On DATE , the applicant filed an objection ( bezwaar ) against this decision with the Deputy Minister . On DATE he filed a request with the President of ORG ( arrondissementsrechtbank ) of GPE for an interim measure to the effect that he would be allowed to remain in the GPE pending the proceedings on his objection .

On DATE , following a hearing held on CARDINAL DATE , the Acting President of ORG rejected the applicant ’s request for an interim measure . The Acting President considered , inter alia , that there were no concrete indications that the applicant would be arrested if he returned to GPE , that the applicant ’s claims were only based on assumptions and hearsay information , and that the fact that his passport had been prolonged on DATE by the NORP consular authorities in GPE indicated that the applicant was not sought by the NORP authorities . The Acting President concluded that it had not been established that the applicant had a well - founded fear of persecution or that his expulsion to GPE would be contrary to the applicant ’s rights under LAW . Further considering that the proceedings on the applicant ’s objection would not result in a different finding , the Acting President also rejected the applicant ’s objection , in accordance with LAW ( Vreemdelingenwet ) as in force at the material time .

On DATE , the applicant requested ORG of The GPE for a revision ( herziening ) of the ruling of DATE . In its decision of CARDINAL DATE , following a hearing held on DATE , ORG rejected the revision request .

On DATE the applicant filed a second asylum request on the basis of new facts and circumstances , namely a copy of a letter of DATE addressed to his aunt by the NORP authorities , requesting information about the applicant ’s new address . The applicant further submitted that , in the proceedings on his first asylum request , he had omitted to say that , in his function as an air force pilot , he had participated in CARDINAL of flights over war zones .

The Deputy Minister of ORG rejected the applicant ’s second asylum request on DATE , holding that it did not appear from the letter of DATE from which it could only be concluded that the authorities wished to be informed of the applicant ’s new address DATE that the applicant had a well - founded fear of persecution . The Deputy Minister further held that this finding was supported by the applicant ’s statements that he had remained in contact with an aunt and his brother in GPE , and that there was no evidence whatsoever of any interest being shown by the NORP authorities in the applicant since DATE . The Deputy Minister further held that the applicant ’s statement about his participation in numerous flights over war zones did not constitute a relevant legal novum , as this element had already been taken into account in the proceedings on his first asylum request .

The applicant filed an objection against this decision with the Deputy Minister and requested the President of ORG of The GPE to issue an injunction to stay his expulsion pending the proceedings on his objection .

On DATE , the Acting President of ORG of The GPE accepted the applicant ’s request for an injunction . On the basis of , inter alia , information obtained by the applicant from ORG and ORG , the Acting President considered that it was plausible that pilots of the former NORP air force , like the applicant , who had been involved in bombings of the then freedom fighters , did in fact risk serious repercussions from the current NORP authorities , and that a further investigation was required to assess whether the applicant had a well - founded fear of persecution in GPE . The Acting President , having noted the applicant ’s statement that the rank last held by him was that of CARDINALst lieutenant - pilot , considered that , to this end , it was necessary to obtain an individual official report ( individueel ambtsbericht ) on the applicant ’s personal situation from the Minister of ORG and , after receipt of this official report , to hear the applicant before ORG for ORG ( PERSON vreemdelingenzaken ) .

On DATE , ORG transmitted the requested individual official report to the Deputy Minister of ORG , who sent a copy to the applicant ’s lawyer on DATE . It reads , in so far as relevant :

“ CARDINAL.a . The statement of DATE by ORG submitted by the [ applicant ] has been issued by this organisation and the therein - cited ranks of the air force officers are correctly mentioned .

CARDINAL.b . According to ORG and ORG , CARDINAL air force officers from the former ORG - period are detained in the ORG prison , which serves as a prison for authorities of the former ORG regime , on suspicion of genocide and crimes against humanity . There is no re - education regime in this prison . Some of these air force officers were arrested and detained in DATE after DATE of the ORG rule DATE , others later in DATE , [ and ] initially without any official charges having been brought . The[ir ] detention was ordered by ORG , who deals with trial proceedings against members of the ORG regime who are accused of genocide and crimes against humanity .

A general unofficial accusation against the air force during the ORG - regime is that it has caused many civilian casualties during bombings and firing from the air in the fight against the NORP Peoples’ ORG ( EPRDF ) , ORG ( ORG ) and ORG ) .

The same rights and obligations as for any other NORP [ citizen ] apply to former detainees of a re - education camp after their return to NORP society .

The ... address in PERSON cited by the [ applicant ] exists . A sister of the [ applicant ] and her children live there . According to the persons living at this address and neighbours , the [ applicant ] had been held in DATE in a re - education camp and , towards DATE , had left PERSON for reasons unknown . The [ persons heard ] did not know when the [ applicant ] had been released from the above - mentioned re - education camp . According to the same persons , the [ applicant ] was a lieutenant in the NORP air force , but he would not have studied in GPE . Also according to information by these persons , local militia would have searched for the [ applicant ] after his departure , because his appointment as lieutenant in the NORP air force would at the time have been a political appointment .

In so far as could be verified , the [ applicant ] has been detained in the re - education camp ORG .

According to the archive of this office , the copy of a letter of DATE of ORG , submitted by the [ applicant ] , is not a copy of an authentic document .

It has not been possible to verify the authenticity of the identity card ... , submitted by the [ applicant ] . ”

On DATE , the applicant was heard before ORG for ORG .

On DATE , ORG informed the Deputy Minister of ORG that a further investigation had been carried out in GPE , and that the applicant ’s name was mentioned in the list of suspects of the PERSON - tribunal in GPE .

On the basis of the information contained in the individual official report , the Deputy Minister decided to investigate whether the applicant ’s situation fell within the scope of LAW DATE ( “ the DATE LAW ) , which provides as follows :

“ The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that :

( a ) he has committed a crime against peace , a war crime , or a crime against humanity , as defined in the international instruments drawn up to make provision in respect of such crimes ;

( b ) he has committed a serious non - political crime outside the country of refuge prior to his admission to that country as a refugee ;

( c ) he has been guilty of acts contrary to the purposes and principles of ORG . ”

The applicant ’s lawyer , who learned about this development on DATE , informed the Minister of ORG on DATE that he found this approach unacceptable .

On DATE , an immigration official conducted a further interview with the applicant about his membership of the ORG , his duties as an air force pilot , his career in the air force and whether he had been involved in the bombing of civilian targets .

On DATE , the Deputy Minister of ORG rejected the applicant ’s objection against the decision of DATE . The Deputy Minister found that the applicant ’s acts as an air force pilot during the PERSON regime fell within the scope of LAW of LAW , that he could be held responsible for these acts , that consequently LAW applied to his situation and that the applicant was therefore ineligible for asylum . Pursuant to LAW , he was also ineligible for a residence permit on any other grounds , including a residence permit for a limited duration based on LAW .

On DATE , the applicant filed an appeal against this decision with ORG of The Hague and , on DATE , requested the provisional measures judge ( voorzieningenrechter ) of that same court to issue an injunction to stay his expulsion pending the proceedings on his appeal .

On DATE , the applicant filed his written grounds of appeal with ORG of The Hague , in which he argued that LAW of LAW had been unjustly applied to his case , and that the decision of DATE had been taken in violation of the general principles of proper administration ( algemene beginselen van behoorlijk bestuur ) . In his appeal submissions to ORG , the applicant mentioned LAW without any further elaboration .

In its decision of DATE , following a hearing held on DATE , ORG of The Hague rejected the applicant ’s appeal . It considered that , pursuant to LAW ( PERSON ) , a person filing a repeat asylum request – i.e. after a negative decision had been taken on an original asylum request – should adduce newly emerged facts or altered circumstances ( nieuw gebleken feiten of veranderde omstandigheden ) that were not known when the initial negative decision was taken and of such a nature that it could lead to a different decision . It further noted that , under LAW , such a repeat request could be rejected with reference to the initial negative decision if no such new facts or circumstances had been adduced . Referring to the case - law of ORG of ORG ( Afdeling Bestuursrechtspraak van de Raad van State ) , ORG considered that it was for the courts to assess whether there was a novum within the meaning of Article CARDINAL and that this included facts or circumstances that had occurred after the negative decision on the original request had been taken or facts or circumstances that could not have been adduced earlier , as well as evidence in support of already submitted facts or circumstances which evidence could not have been submitted prior to the negative decision on the original request . However , even in case these requirements were met , such new facts and circumstances could nevertheless be regarded as not amounting to a novum if it was clear beforehand that they would not affect the decision taken on an original request or the reasons on which this decision was based .

In the instant case , ORG held inter alia that the differences in the respective statements given by the applicant in the CARDINAL subsequent asylum proceedings about the scope of his involvement in war events did raise questions , but could not be regarded as a novum because it concerned information which the applicant already held when he had filed his first asylum request and his participation in flights over war zones had in fact already been addressed in the decision of DATE on his first asylum request . It therefore concluded that the applicant ’s second asylum was not based on new facts or changed circumstances within the meaning of LAW ( PERSON ) . In accordance with LAW , this decision was notified to the applicant on DATE . No further appeal lay against this decision .

On DATE , the provisional measures judge declared inadmissible the applicant ’s request of CARDINAL DATE for an injunction staying his expulsion , as his appeal on the merits had been rejected by ORG of The Hague in the meantime . This decision was also notified to the applicant on DATE .

Until DATE , the admission , residence and expulsion of aliens were regulated by LAW DATE ( PERSON ; “ the DATE LAW ” ) . Further rules were set out in LAW DATE ( Vreemdelingenbesluit ) , the Regulation on Aliens ( Voorschrift Vreemdelingen ) and LAW DATE ( PERSON ) . LAW ( PERSON ) applied to proceedings under LAW , unless indicates otherwise in this LAW .

On DATE , the DATE LAW and the pertaining regulations were replaced by LAW , LAW , the Regulation on Aliens DATE and LAW DATE . Unless indicated otherwise in LAW , LAW continued to apply to proceedings on requests by aliens for admission and residence .

The applicant ’s first asylum request was examined under LAW . Although his second asylum request had been introduced under LAW , the applicant ’s objection against the decision of DATE was determined on the basis of LAW .

Under LAW of the DATE LAW DATE , aliens coming from a country where they have a well - founded reason to fear persecution on account of their religious or political convictions , or of belonging to a particular race or a particular social group , could be admitted as refugees . The expression “ refugee ” in this provision was construed to have the same meaning as in LAW , as amended by LAW of DATE ( decision of ORG of DATE , PERSON [ ORG ] DATE , no . CARDINAL ) .

Under LAW of LAW , an alien may be eligible for a residence permit for the purposes of asylum if inter alia :

he or she is a refugee within the meaning of LAW , or

he or she has established well - founded reasons to assume that he / she will run a real risk of being subjected to torture or other cruel or degrading treatment or punishment if expelled to the country of origin .

However , if the exclusion clause under LAW of the DATE Convention applies , the alien concerned loses any protection which would have been available under LAW and , consequently , becomes ineligible for a residence permit for asylum under LAW of LAW . In such a situation and pursuant to LAW , the alien concerned can neither be granted a residence permit on any of the other grounds referred to in LAW .

However , a refusal to grant a residence permit on the basis of LAW of LAW does not necessarily imply that the alien concerned will be effectively removed to his or her country of origin if that would be in breach of LAW . In CARDINAL rulings handed down on , respectively , CARDINAL and DATE CARDINAL examination of these cases had been incomplete .

These rulings resulted in an amendment to the relevant rules . Where it has been established that a person , for reasons based on LAW , can not be expelled to his or her country of origin but , pursuant to LAW , is ineligible for a residence permit , no expulsion order will be issued , at least for as long as these reasons exist . However , no residence title will be issued to the alien concerned who remains under the obligation to leave the GPE at his or her own motion . It further remains possible to issue an order for his or her expulsion as soon as his or her removal will no longer entail a risk of treatment contrary to LAW in the country of origin or an order for removal to a third ORG willing to accept the person concerned ( Chapter CCARDINAL/CARDINAL.CARDINAL.CARDINAL.CARDINAL of LAW CARDINAL , as amended on DATE ) .

Article CARDINAL of LAW provides that a petitioner must adduce newly emerged facts or altered circumstances if a new request is filed following a decision in which the original request is , either totally or partially , rejected . When no such facts or altered circumstances have been adduced , the administrative authority may reject the new request with reference to the decision on the original request . Article CARDINAL thus embodies the ne bis in idem principle for the administrative law .

Nevertheless , an exception has been made in this particular area of the law , in that an alien may adduce exceptional facts and circumstances relating to him or her personally , on the basis of which the new request may be assessed outside the framework of Article CARDINAL . In the case of a repeat asylum application which also invokes the risk of treatment contrary to LAW , an assessment by the court outside the framework of Article CARDINAL is therefore possible . ORG of ORG has on CARDINAL occasion quashed the dismissal of a repeat application for a residence permit for the purposes of asylum despite the absence of new facts or altered circumstances ( judgment of DATE , no . CARDINAL/CARDINAL , PERSON Asiel- en ORG [ Newsletter on Asylum and Refugee law ] CARDINAL ) . It did so on the basis of the exceptional circumstance that there was no dispute between the parties , that on his return to his country of origin , the alien would run a real risk of being subjected to treatment or punishment proscribed by LAW .

According to LAW , any act of a public body in respect of an alien is to be equated with a formal decision within the meaning of LAW , entailing that such an act may be challenged in administrative appeal proceedings . If the act concerns an act aimed at the expulsion of an alien who has been denied admission , the lawfulness of this act will already have been judicially determined in the ruling dismissing the appeal brought against a negative decision on an admission request . However , this is not the case when the situation at the time of expulsion differs from the situation at the time of the judgment rejecting the appeal in such a way that it can no longer be said that the lawfulness of the expulsion has been established ( Parliamentary Papers , ORG ( ORG ) of ORG , DATE , CARDINAL , no.CARDINAL , p. CARDINAL ) .

Policy is based on official country reports ( ambtsberichten ) , periodically drawn up by ORG . At the material time , the GPE policy was based on the official country report on GPE issued in DATE . According to this report , the observance of civil and political rights in GPE had , in comparison with DATE , generally improved . However , despite statutory guarantees , there were in practice breaches of certain fundamental rights , including freedom of expression and freedom of assembly . The victims were journalists , union members and others who were highly critical of the Government , as well as members of the banned opposition parties . The situation was , however , not such that every asylum seeker from GPE automatically qualified for asylum . Any asylum seeker from GPE should demonstrate that his or her personal circumstances – viewed objectively – justified his or her fear of persecution as defined in refugee law or constituted grounds for granting a residence permit on grounds of compelling humanitarian reasons , e.g. because he or she would be subjected to treatment in violation of LAW if he or she were to return .

The most recent official country report on GPE was issued by ORG on DATE . This report , in its relevant part , reads :

“ ORG . The situation in prisons in GPE is wanting , in particular overcrowding is a problem . The food provided in prison is insufficient . Many detainees depend on food brought to them by family and friends . Access to medical facilities is not reliable . The prison conditions are considered to correspond to the general living conditions in GPE . ... ORG has access to most places of detention . ... Unlike the situation in the past , diplomats were given access to prisons . In addition , they were given permission to visit prominent detainees who are suspected by the ‘ Special Prosecutor ’s Office’ of war crimes and terrorist activities ....

... [ despite statutory guarantees ] ill - treatment and torture occur in GPE in particular during DATE after arrest . It occurs more often in police stations , remands centres and military barracks than in federal prisons . ... The aim of torture is generally to obtain information and to deter . Torture occurs in particular in cases of detention for alleged political activities or acts of civil disobedience . ... Torture and ill - treatment occur more often in rural areas than in the city , and in general is applied more frequently on persons who probably will never come into contact with members of the international community . ...

The LAW and criminal law allow the death penalty for a considerable number of crimes . Also the amended criminal law has retained the death penalty . Condition for execution of the death penalty is a ratification of the sentence by the President . The ORG has for some time already been working on a revision of the criminal law . ORG [ ORG ; a legal non - governmental organisation ] has exerted pressure on the authorities to remove the section relating to the death penalty from the criminal code in the revision process .

Since the change of government in DATE , the death penalty has been carried out only once . It concerned the murderer of a popular general , in DATE . During the reporting period , several persons have been sentenced to death , exact numbers are unknown . A number of these cases form a part of the so - called ‘ PERSON court cases . .... It is not known whether these sentences will be carried out . ...

CARDINAL.CARDINAL.CARDINAL . According to ORG ( SPO ) , the body dealing with the prosecuting of perpetrators of crimes under the PERSON regime ( DATE ) , CARDINAL persons have been indicted for their role in this regime . Prosecution is brought on the basis of LAW ( genocide ) and LAW . These provisions have been in force since DATE and thus applied during the ORG period . Charges brought by the ORG are determined by a specialised tribunal , the ‘ Sixth Criminal Bench’ of the ‘ ORG . An appeal and appeal in cassation lies with the ‘ ORG and the ‘ Cassation Court’ , respectively . If an accused is found guilty of genocide or murder , the death penalty may be imposed . Whether such a sentence will be effectively carried out is not known . In any event , to date , no death sentence has been carried out ( see also § CARDINAL Death penalty ) .

In particular , higher - ranked army officers and civil servants have been indicted . CARDINAL of them are being held , whereas the others are either free in GPE or abroad , or are no longer alive . The first judgments were handed down in DATE . The sentences that have been imposed to date vary from DATE imprisonment . The ORG does not give information about the progress of the court proceedings . For this reason , it is not known how many cases are still pending nor what sentences have been imposed during the reporting period . ”

In the absence of any reasons for change , the GPE policy on admitting NORP nationals has remained the same as in DATE . Every asylum seeker from GPE must still demonstrate that the personal facts and circumstances of his or her case – viewed objectively – justify a fear of persecution as defined in refugee law or might lead to the conclusion that he or she would be subjected to treatment contrary to LAW if returned .


CASE OF SEGHETI v. THE REPUBLIC OF MOLDOVA

Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra

The applicant was born in DATE and lives in Cricova .

The applicant worked as a consultant for ORG in GPE . On DATE he was arrested by NORP police in GPE , GPE , on suspicion of having made false accusations against a third person . While the parties did not submit any copies of judgments concerning the applicant ’s criminal proceedings , it follows from his correspondence that on an unknown date he was convicted to DATE imprisonment . He was placed in detention in prison no . CARDINAL in PERSON ( previously known as prison no . CARDINAL ) on DATE . On DATE he was transferred to prison no . CARDINAL in Cricova . On DATE he was transferred to the GPE prison hospital ( prison no . CARDINAL ) , where he received inpatient treatment until DATE for hypertension and cardiac insufficiency .

The applicant described the conditions of his detention in prison no . CARDINAL in PERSON as follows . He was detained with CARDINAL other people in a QUANTITY . m cell without ventilation or heating . Prisoners sometimes had to take turns to sleep and had to wait for a daily time - slot of TIME to obtain running tap water , which made hygiene issues in the prison a lot worse . The toilet was located in the cell itself and gave off a foul odour because there were no products to clean it with . The food was inedible .

He described the conditions of his detention in prison no . CARDINAL as follows . On DATE he was placed in a cell measuring QUANTITY . m with CARDINAL other people , which left very little space for each detainee . In the absence of any work or other activities , he had nothing to do and spent most of his time in the cell .

No bedding was given to the applicant and he had to ask his relatives to bring him some . The same was true of items of personal hygiene . He had to wear the same clothes he had been wearing when he was admitted to the prison , since no clothes were provided by the prison administration .

Water from a single tap was available during DATE but not at TIME , and owing to the number of detainees in the cell it was not always possible to have access to it . Food was scarce and of very poor quality . The library contents were old and there were no reading materials about the Convention . The applicant also claimed that he had been given insufficient medical treatment in both detention facilities .

According to the Government , the space available to the applicant in various cells of prisons no . CARDINAL and DATE always exceeded CARDINAL sq.m . In particular , in prison no . CARDINAL he was held in a detention block for working prisoners . The first cell he was detained in measured CARDINAL sq.m and accommodated CARDINAL people . Shortly thereafter he was transferred to a cell measuring CARDINAL sq.m , which accommodated CARDINAL detainees . He was later moved to another cell measuring DATE , which also accommodated CARDINAL detainees . All the cells had the correct number beds for detainees and were equipped with a water tap and a toilet .

The Government submitted a list confirming that the applicant was given medical assistance on a number of occasions in both prisons no . CARDINAL and no . CARDINAL , including inpatient treatment for an ulcer in DATE .

The relevant parts of the report by ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( the ORG ) concerning its visit to GPE from DATE read as follows ( unofficial translation ) :

“ DATE . The delegation visited CARDINAL establishments run by ORG : prison no . CARDINAL in PERSON [ and ] correctional facilities nos . CARDINAL and CARDINAL in Cricova ...

In view of the economic situation in the country , the situation in the majority of prisons visited remained difficult and the delegation encountered a number of problems already identified during its visits in DATE and DATE in terms of the physical conditions of detention and regimes .

Correctional facility no . CARDINAL has CARDINAL detention blocks where the prisoners were divided into different units , according to whether they were classed as workers ( units CARDINAL , CARDINAL , DATE and DATE ) or non - workers ( units CARDINAL , CARDINAL , DATE and CARDINAL) . Unlike correctional facility no . CARDINAL , despite the shabbiness of the LOC , the establishment gave an overall impression of cleanliness and satisfactory upkeep . The laudable efforts made in this regard deserve to be highlighted . But again , much depended on the resources [ available to the ] prisoners for fitting out and renovating the cells .

Physical conditions ranged from acceptable to good on occasion . This was the case as regards unit CARDINAL which held non - working detainees . Other dormitories DATE while remaining in an acceptable state of upkeep and cleanliness – presented difficult conditions there being , in some cases , fewer beds than occupants , windows with panes missing and a lack of basic amenities , certain essentials ( such as mattresses , sheets , blankets or crockery ) having been obtained through the charity of fellow - prisoners . Again , living space was often restricted in some of the dormitories , a situation which was partially alleviated by an open - door policy within the sections .

Except in the Lipcani Re - education ORG , where the efforts made in this respect regard are to be highlighted ... the quantity and quality of ORG food everywhere is a source of grave concern . The delegation was inundated with complaints regarding the absence of meat and dairy products . The findings of the delegation , regarding both stock levels of food and the menus , confirm the credibility of these complaints . The delegation ’s findings also confirm that in certain places ( Colonies CARDINAL and CARDINAL ) the food served was repulsive and virtually inedible ( for instance , insects and vermin were present ) . This is hardly surprising , given the general state of the kitchens and their modest equipment .

The NORP authorities have always claimed financial difficulties in ensuring that prisoners receive adequate food . However , the ORG reiterates that this is a fundamental requirement of life that must be ensured by the ORG to persons in its care , and that nothing can exonerate it from such responsibility . Failure to meet this obligation is all the more unacceptable as , under legislation , working prisoners in the institutions visited contribute to the cost of feeding themselves and their fellow - prisoners . ...

In the light of the above , the ORG recommends that the GPE authorities :

- ensure that each prisoner in correctional facility nos . CARDINAL and DATE has his own bed with the necessary bedding ( mattress , sheets , blankets ) and that all windows are glazed ;

- remove the screens from the windows in the cells in unit CARDINAL of correctional facility no . CARDINAL to allow for the proper entry of natural light and fresh air ;

- commence the refurbishment of the sanitary equipment in correctional facility nos . CARDINAL and CARDINAL and in the Re - education ORG forthwith , in the light of the remarks made above ;

- immediately guarantee that inmates in Prison nos . CARDINAL , ... CARDINAL and DATE , as well as in all other affected prisons , receive adequate food served in accordance with the basic rules of hygiene ;

- take all requisite measures to ensure adequate water , electricity and fuel supplies in correctional facility nos . CARDINAL and DATE , as well as in all other affected prisons ; ... ”

The relevant parts of the report of the Special Rapporteur on torture and other cruel , inhuman or degrading treatment or punishment concerning his visit to GPE from DATE ( ORG , document DATE , CARDINAL DATE ) read as follows :

“ B. Conditions in places of detention

Institutions under ORG

Undoubtedly , progress has been achieved in improving conditions of detention . However , some of the institutions visited by the Special Rapporteur were heavily overcrowded . The authorities themselves pointed out that Institution No . CARDINAL in PERSON was severely overcrowded - on DATE of the visit it held QUANTITY persons with the official capacity being CARDINAL ( see also appendix ) . The Special Rapporteur was informed of Government plans to close down this institution .

Common problems at all pre- and post - trial prisons are the poor hygienic conditions , restricted access to health care and lack of medication as well as risk of contamination with tuberculosis and other diseases . Whereas the Special Rapporteur notes that the minimum norms regarding nutrition of detainees ( Government Decision n. CARDINAL of CARDINAL DATE ) are checked on a DATE basis and that , according to the financial plan of ORG , the food budget for DATE had almost doubled in comparison to DATE and is set to rise further , he also received consistent allegations regarding the poor quality and quantity of food . ... ”

In its report for DATE ( page CARDINAL – “ Conditions of detention ” ) , ORG ( “ FAC ” , which also acts as ORG ) found , inter alia , that :

“ Regarding personal hygiene , clothing and bedding , despite [ the fact that ] Government decision no . CARDINAL ( DATE ) concerning minimum DATE food requirements and the issuing of items of personal hygiene provides for the issuing of soap to detainees for bathing and other sanitary - hygienic needs , this has remained unfulfilled during DATE . ”

In its report for DATE ( page CARDINAL et seq . – “ Conditions of detention ” ) ORG found , inter alia , that :

“ ... [ T]he ORG informed the ORG that meat and fish products are provided [ to detainees ] whenever possible . At the same time , that authority stated that , owing to the difficult financial situation , during DATE the detainees in prison no . CARDINAL in ORG received PERCENT of their normal quotas of meat and fish products respectively . In this connection , the Minister of ORG submitted information concerning the expenditure on ORG food in DATE . The cost amounted to MDL CARDINAL , whereas the budgetary need for DATE was , according to ORG draft budget , MDL CARDINAL . The DATE cost of feeding a detainee in DATE was MDL CARDINAL [ approximately ORG CARDINAL ] , while the DATE budgetary need was MDL CARDINAL . This statistic was often cited by prison administrations to justify why they were unable to provide detainees with meat and fish ... ”

On DATE ORG adopted Decision no . CARDINAL approving ORG for DATE . ORG included a number of objectives to be achieved over a DATE period and was aimed at improving conditions of detention , including reducing overcrowding , improving medical treatment , introducing detainees to employment and encouraging their social reintegration , as well as carrying out training for personnel . Regular reports were to be submitted regarding the implementation of ORG . On DATE the Government adopted a decision on the principles of reorganisation of the prison system , together with the DATE - CARDINAL Action Plan for ORG , both having the aim , inter alia , of improving the conditions of detention in prisons .

On an unspecified date ORG produced a report entitled “ LAW by ORG Chapter CARDINAL of ORG for DATE , approved by ORG no . CARDINAL of DATE ” . On DATE ORG also produced a report on implementation of ORG . Both reports confirmed the insufficient funding of the prison system and the resulting failure to fully implement the Plan in GPE prisons , including prison no . CARDINAL in GPE . The first of these reports stated , inter alia , that “ as long as the aims and actions outlined in [ the National Human Rights Action Plan ] do not have the necessary financial support ... it will remain only a good intention of the ORG to protect human rights as described in ORG no . CARDINAL of CARDINAL DATE ... ”


Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of association);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

At the material time the first applicant , PERSON , was chairman of ORG ( Halkın Emeği Partisi – “ the HEP ” ) , the second applicant , PERSON , was its vice - chairman and the third applicant , PERSON , was its general secretary .

On DATE the ORG was founded and its constitution was filed with ORG .

On DATE ORG at ORG applied to ORG to have the HEP dissolved . In his application he accused the party of having undermined the integrity of the State . He submitted that certain statements made at meetings and to the press by the party 's leaders and senior officials at both central and local level had infringed LAW and the PERSON on the regulation of political parties . He also accused the ORG of assisting and protecting those of its members who had committed illegal acts .

On DATE the President of ORG sent ORG application to the chairman of the ORG , inviting him to submit his preliminary observations in reply .

On DATE the ORG 's lawyer filed his preliminary written observations and requested a hearing . In his observations he submitted , in particular , that the PERSON on the regulation of political parties contained provisions that were contrary to the fundamental rights guaranteed by LAW . He also maintained that the dissolution of the party , as called for by ORG , would contravene international instruments such as LAW , LAW , LAW and GPE for LOC . In addition , he argued that there was insufficient evidence of the links between the ORG and the ORG ( ORG of Kurdistan ) . He further contended that ORG application referred to statements made by individuals , for which the ORG could not be held liable , pursuant to section FAC ) of the PERSON on the regulation of political parties .

On DATE the ORG 's lawyer submitted his observations on the merits . He again requested a hearing . He also sought leave , should that request be refused , for the ORG 's chairman and his predecessors to give evidence to ORG .

ORG acceded to the latter request . Accordingly , the former chairman and the chairman of the ORG made oral submissions to the court on DATE .

On DATE ORG decided to dissolve the ORG . Its judgment was served on ORG , the Speaker of ORG and ORG .

ORG judgment was published in ORG on DATE .

In its judgment ORG began by reiterating the main constitutional principles of relevance to the case , to the effect that all persons living within NORP territory , whatever their ethnic origin , formed a whole united by their common culture . Accordingly , the sum of the persons who made up GPE was called the “ NORP nation ” . The different ethnic groups making up the “ nation ” were therefore not divided into a majority or minorities . ORG pointed out that , under LAW , no political or legal distinction based on ethnic or racial origin could be made between citizens . All NORP nationals could avail themselves of all civil , political and economic rights without discrimination .

With particular reference to NORP citizens of NORP origin , ORG held that in every region of GPE these enjoyed the same rights as other NORP citizens . That did not mean , it added , that the LAW did not acknowledge the existence of a NORP identity , since citizens of NORP origin were not forbidden to express their NORP identity . The NORP language could be used on all private premises , at places of work , in the press and in works of art and literature .

The Constitutional Court reiterated the principle that all people were bound to observe the provisions of the LAW even if they did not agree with them . LAW did not preclude the celebration of difference but forbade propaganda that was based on racial difference and was aimed at destroying the constitutional order . ORG pointed out that under LAW , having a separate language or ethnic origin was not in itself sufficient for a group to qualify as a minority .

With regard to the ORG 's activities , ORG examined , in particular , the written and oral statements made at public and private meetings by the party 's leaders and by other officials at various levels . It also considered the content of calendars on sale to the public and slogans shouted at various meetings held on the ORG 's premises .

The Constitutional Court was particularly critical of the HEP for “ seeking to divide the NORP nation in QUANTITY , with NORP on CARDINAL side and NORP on the other , with the aim of establishing separate GPE ” and for “ seeking to destroy national and territorial integrity ” . It considered in that connection that the ORG was asserting through its activities that there was a separate NORP people with its own culture and language , which the NORP were not free to practise . The ORG demanded the right to self - determination for the NORP , advocated the setting up of “ NORP provinces ” and described the terrorist acts committed by the ORG as acts of international war . It regarded ORG terrorists as freedom fighters and claimed that instead of combating them , the security forces were in fact seeking to bring about the mass extermination of the NORP people . In all its activities , in which the sole emphasis was on equality between NORP and NORP , the ORG was calling for the establishment of a ORG built on racist foundations , thereby jeopardising the concept of the “ NORP nation ” , one of the principles on which the ORG had been founded . In ORG view , “ the ORG 's aims resembled those of terrorists ” and “ the use of accusatory and aggressive statements based on falsehoods , which the ORG 's leaders constantly repeated as a form of provocation , was likely to promote tolerance of terrorist acts and to justify and encourage their perpetrators ” .

ORG concluded that the ORG 's activities were subject , inter alia , to the restrictions referred to in paragraph CARDINAL of LAW and to the provisions of LAW . It pointed out in that connection that LAW for a LOC condemned racism , ethnic hatred and terrorism , and that the GPE LAW guaranteed adherence to the principles of the inviolability of national frontiers and of territorial integrity .

ORG accordingly ordered the dissolution of the HEP on the ground that its activities were such as to undermine the territorial integrity of the ORG and the unity of the nation .

NORP However , ORG dismissed ORG second argument that the ORG implicitly or explicitly tolerated the illegal actions of its members . In that connection , it took into account the fact that the various criminal proceedings instituted against members of the ORG were still pending and that none of its members had yet been found guilty .

The main ideas put forward in the ORG leaders ' speeches , explanations and statements , as outlined in ORG judgment , may be summarised as follows .

( a ) There is a NORP people in GPE which has its own language and culture and is oppressed .

( b ) The NORP are not allowed to read or write in NORP or improve their knowledge of the language and are unable to develop their culture .

( c ) The NORP are fighting for freedom and democracy . A parallel is drawn with the legend of PERSON , who had revolted against the oppressive King Dehhak DATE ; it is asserted that more and more people are emulating PERSON .

( d ) The NORP people have the right to self - determination .

( e ) NORP The NORP people can not avail themselves of any rights arising from international agreements .

( f ) The problems in eastern GPE are not of an economic nature .

( g ) The statutory measures taken against organised terrorism constitute an international war , and the armed organisation ( the ORG ) is one of the belligerents .

( h ) The armed militants belonging to that organisation are freedom fighters . It is therefore natural that the international laws of war should be applied to them , but the NORP government has not put that into practice .

( i ) The NORP army and the security forces pursue the aim of physically destroying the NORP masses from which the NORP militants are drawn rather than fighting them .

( j ) Since the break - up of the GPE , the course of history has caused NORP citizens of NORP origin to take an interest in that phenomenon , and a parallel has consequently been drawn with the situation of the NORP people .

( k ) The Republic has been founded by the NORP and NORP peoples . NORP and NORP should establish a social system based on equality between the CARDINAL ethnic groups , without taking any others into account .

( l ) NORP The government forces stationed in south - eastern GPE have been deployed not against the terrorists but against the NORP people and have appropriated their national rights .

( m ) The ORG is also the party of the oppressed NORP , the workers , other oppressed and exploited ethnic groups , the NORP , the NORP , the PERSON and the NORP .

( n ) ORG should hold a conference on the NORP question as soon as possible .

( o ) The NORP problem is the biggest obstacle to democracy . Until it is solved , democracy can not be developed in GPE .

At the material time the relevant provisions of the LAW read as follows .

“ GPE is a democratic , secular and social ORG based on the rule of law , respectful of human rights in a spirit of social peace , national solidarity and justice , adhering to the nationalism of PERSON and resting on the fundamental principles set out in the Preamble . ”

“ The State of GPE shall constitute with its territory and nation an indivisible whole . The official language shall be NORP . ”

“ None of the rights and freedoms referred to in the LAW shall be exercised with a view to undermining the territorial integrity of the ORG and the unity of the nation , jeopardising the existence of ORG , abolishing fundamental rights and freedoms , placing the control of the ORG in the hands of a single individual or group , ensuring the domination of CARDINAL social class over other social classes , introducing discrimination on the grounds of language , race , religion or membership of a religious sect , or establishing by any other means a ORG political system based on such concepts and opinions . ”

“ ORG shall have the right to form political parties and to join them or withdraw from them in accordance with the lawful procedure laid down for the purpose ...

Political parties shall be an indispensable part of the democratic political system .

Political parties may be formed without prior permission and shall carry on their activities in accordance with the LAW and the law .

... The constitutions , rule books and activities of political parties shall not be incompatible with the independence of the ORG , the integrity of ORG territory and of the nation , human rights , the principles of equality and the rule of law , national sovereignty or the principles of a democratic , secular Republic . No political party may be founded with the aim of advocating and establishing the domination of one social class or group , or a dictatorship in any form whatsoever . ... ”

“ Political parties shall not engage in activities other than those referred to in their constitutions and programmes , nor shall they disregard the restrictions laid down by LAW , on pain of permanent dissolution .

The decisions and internal running of political parties shall not be contrary to democratic principles .

Immediately a political party is formed , ORG shall verify as a matter of priority that its constitution and programme and the legal position of its founding members are consistent with the LAW and the laws of the land . He shall also monitor its activities .

The Constitutional Court shall give a final ruling on the dissolution of political parties on an application by ORG at ORG .

Founding members and managers , at whatever level , of political parties which have been permanently dissolved may not become founding members , managers or financial controllers of any new political party , nor shall a new party be formed if a majority of its members previously belonged to a party which has been dissolved ... ”

At the material time the relevant provisions of PERSON no . PERSON read as follows .

“ Political parties

... shall not aim or strive to or incite third parties to

– change ... the legal provisions concerning the absolute integrity of ORG territory , the absolute unity of its nation , its official language ...

– jeopardise the existence of ORG , abolish fundamental rights and freedoms , introduce discrimination on grounds of language , race , colour , religion or membership of a religious sect , or establish , by any means , a system of government based on any such notion or concept . Political parties may not incite third parties to act in pursuit of those aims . ”

“ Political parties shall not aim to change the principle of the unitary ORG on which GPE is founded , nor carry on activities in pursuit of such an aim . ”

“ Political parties shall not

( a ) assert that there exist within the territory of GPE any national minorities based on differences relating to national or religious culture , membership of a religious sect , race or language ; or

( b ) aim to destroy national unity by proposing , on the pretext of protecting , promoting or disseminating a non - NORP language or culture , to create minorities on the territory of GPE or to engage in similar activities . ... ”

“ Forfeiture of the status of member

Where ORG has validated the resignation of members of parliament , the loss of their status as members shall be decided by ORG in plenary session .

A convicted member of parliament shall not forfeit the status of member until the court which convicted him has notified the plenary ORG of the final judgment .

A member of parliament who continues to hold an office or carry on an activity incompatible with the status of member , within the meaning of section CARDINAL , shall forfeit that status after a secret ballot of ORG held in the light of the relevant committee 's report showing that the member concerned holds or carries on the office or activity in question .

Where ORG notes that a member of parliament , without valid authorisation or excuse , has failed , for a total of DATE in DATE , to take part in the work of the ORG , that member shall forfeit the status of member where by majority vote ORG so decides .

The term of office of a member of parliament whose words and deeds have , according to ORG judgment , led to the dissolution of his party , shall end on DATE when that judgment is published in ORG . The Presidency of ORG shall enforce that part of the judgment and inform ORG accordingly . ”

“ The constitution , programme and activities of political parties shall not contravene the LAW or this PERSON . ”

“ The Constitutional Court shall dissolve a political party where

( a ) the party 's constitution or programme ... is contrary to the provisions of LAW of this PERSON ; or

( b ) its general meeting , central office or executive committee ... takes a decision , issues a circular or makes a statement ... contrary to the provisions of LAW , or where the chairman , vice - chairman or general secretary makes any written or oral statement contrary to those provisions ... ”

“ Where it is found that a political party has become a centre of activities contrary to the provisions of sections CARDINAL and section CARDINAL of the present PERSON , the party shall be dissolved by ORG . ”

“ All the assets of political parties dissolved by order of the Constitutional Court shall be transferred to the ORG . ”


Violation of Art. 6-3-c;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient

ORG The applicant , Mr PERSON , is a NORP citizen born in DATE . He lives in GPE , GPE .

On CARDINAL or DATE CARDINAL masked men broke into a private house , situated in GPE , GPE . They assaulted the occupant causing him severe injury and permanent disfigurement .

On DATE Mr ORG was arrested together with another man . They were indicted on a charge of assault . They were both held in custody until trial started on CARDINAL DATE in ORG of GPE , GPE .

ORG On DATE the jury found the applicant guilty of the charge . Taking account of his bad criminal record , the judge sentenced him to CARDINAL years’ imprisonment .

Legal aid had been made available to the applicant for the preparation of his defence and for his representation by counsel at the trial .

ORG After conviction , PERSON instructed a new firm of solicitors , who then asked counsel who had represented him at the trial to advise on the prospects of an appeal . Having received counsel ’s advice , the solicitors informed the applicant that they could not identify any basis for an appeal and accordingly could not act for him . Their advice to the applicant was in accordance with proper professional practice ( see paragraph CARDINAL below ) .

The applicant then sought to instruct another firm of solicitors but they were also unwilling to act for him .

ORG On DATE , notwithstanding the advice which had been given to him , the applicant lodged with the court a note of appeal setting out grounds which he formulated himself .

The grounds of appeal can be summarised as follows :

( a ) the applicant had not been able to substantiate his contention that a crucial witness was giving false evidence against him because to do so would have involved revealing to the jury a previous conviction ;

( b ) a number of witnesses had not been called by the ORG or by the Defence ;

( c ) crucial evidence had been entirely fabricated ;

( d ) the verdict of the jury was not supported by the evidence ;

( e ) his legal advisers had disregarded instructions which he had given them and had not defended him in accordance with his instructions ;

( f ) there had been insufficient evidence to establish that the assault had resulted in the victim ’s permanent disfigurement .

ORG The applicant subsequently instructed another firm of solicitors and obtained an adjournment of the hearing of his appeal . However , shortly before the adjourned hearing , those solicitors informed the applicant that they could no longer act for him in his appeal and that they were unable to find any counsel who was willing to present the appeal . Such refusal by counsel was in accordance with the relevant rule of professional practice ( see paragraph CARDINAL below ) .

The applicant was granted a further adjournment of the hearing of his appeal .

Mr Maxwell instructed yet another firm of solicitors . On DATE they lodged an application for legal aid to pay for representation at the hearing of the appeal with ORG ( " the Board " ) . At the ORG ’s request , they sought the advice of a new counsel on the prospects of success of the appeal .

In an opinion dated DATE in which he considered the grounds of appeal formulated by the applicant , counsel concluded that there was " no ground of appeal against conviction and no prospects of appealing successfully against sentence " . Mr ORG ’s solicitors submitted to ORG that their client should nonetheless be granted legal aid in view of the lengthy sentence which he had received .

ORG On DATE , ORG informed PERSON that his application had been refused as the ORG was not satisfied , as it was required to be under the relevant legislation ( see paragraph CARDINAL below ) , that there were substantial grounds for making an appeal and that it was reasonable that legal aid should be made available . His solicitors advised him that he should abandon his appeal but he chose not to accept their advice .

Following the refusal of legal aid , the solicitors declined to continue to act for the applicant . A further adjournment of the hearing was then granted . The applicant decided to proceed with his appeal personally .

ORG On DATE , the applicant addressed the High Court of Justiciary on his grounds of appeal . The ORG was represented by counsel but there is no indication that he intervened at the hearing . Presiding over the CARDINAL - judge bench was the Lord ORG , CARDINAL of the CARDINAL most senior judges in GPE .

On the same date the court dismissed the appeal . In his judgment the Lord ORG noted that detailed grounds of appeal had been put forward and that the applicant had addressed the court at some length upon those grounds . The judgment gave full consideration to each of the grounds of appeal , but was satisfied that they had no substance and that there had been no miscarriage of justice .

ORG The following details relate solely to the " solemn procedure " , under which trial proceeds upon an indictment before a judge sitting with a jury .

ORG A person convicted of a criminal charge in GPE has an automatic right of appeal granted by statute ( section CARDINAL of the Criminal Procedure ( GPE ) Act DATE - " LAW " ) . No leave to appeal is required .

ORG In an appeal , the appellant may ask the court to review any alleged miscarriage of justice in the proceedings in which he was convicted ( section CARDINAL(CARDINAL ) of LAW ) . What is a miscarriage of justice is not defined by statute , but the term covers such matters as misdirections by the trial judge or wrong decisions on the admissibility of evidence , as well as breaches of natural justice . In any appeal , the nature of the alleged miscarriage of justice must be specified in the grounds of appeal contained in a written note of appeal , lodged within DATE of the date when sentence was imposed upon the appellant ( section PERSON ) and ( CARDINAL ) of LAW ) . An appellant may not , at the appeal hearing , found any aspect of his appeal on a ground which is not contained in the note of appeal unless , exceptionally and on cause shown , he obtains the leave of the court to do so ( section CARDINAL ) of LAW ) .

ORG An appeal is heard by a bench of not CARDINAL judges . At the hearing of the appeal the appellant or his counsel , if he is represented , makes submissions to the court in support of the grounds of appeal . Appellants who do not have legal representation are not required to make an oral presentation : they are allowed , however , to read any material that they may have prepared or collected .

The ORG is always represented by counsel at the hearing of criminal appeals . Their duty is to act solely in the public interest and not to seek to uphold a wrongful decision . Accordingly , they will only address the court if requested to do so or if it is necessary to bring to the attention of the court some matter relevant to the appeal , whether or not favourable to the prosecution .

ORG In disposing of an appeal against conviction the court may dismiss it and affirm the verdict of the trial court ; set aside the verdict of the trial court either by quashing the conviction or by substituting an amended verdict of guilty ; or set aside the verdict of the trial court and authorise a new prosecution ( section CARDINAL of LAW ) .

Counsel in GPE are vested with the public office of advocate , which imposes a number of duties upon them , among which is the duty not to accept instructions to act in circumstances where , in their professional opinion , a case is manifestly unfounded , even if the client is able to pay for such representation .

The basis of this rule of professional conduct is that counsel can not properly occupy the time of the court in advancing arguments which he knows to be without foundation .

ORG The administration of legal aid in GPE is the responsibility of ORG , an independent body whose members are appointed by the Secretary of ORG for GPE from among counsel , solicitors and other persons with experience of the courts .

Legal aid which has been made available for a trial on indictment extends , in the case of conviction , to include consideration and advice by a solicitor on the question of appeal . An opinion on the prospect of the appeal can also be obtained from the counsel who acted at the trial .

Under special provisions legal aid is also available to enable the solicitor to prepare and lodge the statutory intimation of intention to appeal and , where appropriate , arrange for the opinion of counsel to be obtained as to the prospects of the appeal , and for the drafting and lodging of a note of appeal setting out the grounds of appeal .

ORG To extend the legal aid beyond this point a further application by the solicitor to ORG is required . This should include confirmation that the applicant ’s solicitor is willing to act in the appeal as well as a statement of the arguments in support of the grounds of appeal and a note of the solicitor ’s reasons for believing that the grounds of appeal are substantial and that legal aid should be made available .

ORG The ORG takes its decisions on the basis of the documents before it , which normally include copies of the Note of Appeal , the trial judge ’s charge to the jury and the trial judge ’s report on the case . The views expressed by the applicant ’s solicitor and counsel will also be taken into account .

ORG Although the legislation does not provide for a formal review , ORG will , as a matter of practice , when requested to do so , reconsider an application which has been refused . Such reconsideration involves the application being referred to an external reporter , who was not involved in the ORG ’s earlier decision and who reports to ORG on the merits of the application . Otherwise , Board decisions are subject to ordinary judicial review .

ORG If the appellant proceeds with his appeal without legal aid and the court considers that , prima facie , he may have substantial grounds for taking the appeal and it is in the interests of justice that he should have legal representation in arguing these grounds , then the court must immediately adjourn the hearing and make a recommendation that the ORG ’s decision be reviewed .

ORG The practice of the court in this regard was formalised following the judgment of ORG in PERSON v. GPE no . CARDINAL ) by a Practice Note to this effect issued on DATE by the Lord Justice General to all Appeal Court Chairmen and Clerks :

" In any appeal where legal aid has been refused and the court considers that prima facie an appellant may have substantial grounds for taking the appeal and it is in the interests of justice that the appellant should have legal representation in arguing his grounds , the court shall forthwith adjourn the hearing and make a recommendation that the decision to refuse legal aid should be reviewed . "

ORG Where such a recommendation is made , legal aid is automatically granted . To this end , ORG provides in paragraph CARDINAL that :

" In these circumstances ORG will receive a letter from ORG of Justiciary giving the details of the case where they are recommending a re - consideration of the decision to refuse . If we are asked to re - consider a decision in these circumstances , then the application should be granted automatically . The case need not be seen by a reporter or ORG solicitor , but ought to be referred to the Assistant Manager for the appropriate action . "


The applicant is a NORP national , born in DATE and living in GPE

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

The applicant met PERSON whilst he was still at school , and on DATE a child was born . The child and PERSON initially stayed with the applicant and his parents , but the relationship came to an end in DATE when they separated . Both the applicant and PERSON applied to ORG for custody of their child on DATE respectively . On DATE , the mother obtained an interim order for the delivery of the child to her , and the child lived with the mother and an older child thereafter . On DATE the applicant was awarded interim access to the child by the Sheriff . This allowed him to visit the child on the first Saturday of DATE TIME DATE . On DATE the CARDINAL sets of custody proceedings were joined . The applicant sought CARDINAL continuations ( a form of adjournment ) during the course of these initial custody proceedings before the Sheriff .

On DATE the Sheriff awarded custody of the child to the applicant . PERSON appeal to ORG was refused on DATE . PERSON appealed to ORG on DATE . With the exception of a CARDINAL day delay in lodging the case papers and a DATE extension being granted on an unopposed motion of PERSON in respect of the lodging of some further documentation , the appeal to ORG was dealt with according to the relevant Rules of Court . The appeal was successful , and on DATE custody of the child was awarded to PERSON

The applicant appealed to ORG . Under ORG which regulated such appeals , the applicant had DATE in which to lodge his appeal , or DATE after the final determination of his legal aid application , whichever was the later . The applicant ’s appeal was lodged on DATE .

The applicant was required by ORG to lodge a statement and appendix consisting of the relevant case papers within DATE of lodging his appeal . He did this on DATE . The appeal could not be set down until the appendix had been lodged .

DATE , ORG of ORG was in correspondence with the applicant ’s representatives about a proposal raised by the applicant to provide ORG with a report on the child ’s current circumstances . ORG suggested that the applicant write to ORG offering to submit such a report if their Lordships wished . No response was received from the applicant .

The hearing took place before ORG on DATE . Judgment was delivered on DATE , when the appeal was dismissed .

Following the hearing of the appeal ORG wrote on DATE to the applicant ’s representatives at the request of a member of ORG to establish why it took so long for the case to reach a hearing given that it involved a very young child . Again , no response was received from the applicant or his representatives .

Lord GPE of GPE , giving the judgment of ORG on DATE , found , inter alia , as follows :

" The sheriff found as a fact that apart from being subject to respiratory infections [ the child ] was happy , healthy and well cared for in the mother ’s house . In his note he drew attention to the different social backgrounds from which the parties came . The father was , he said , comfortably middle class , while the mother had had none of the educational and social advantages which he had had . The mother ’s lifestyle was not particularly stable although that was not unusual for a person of her background . However he concluded that were the mode of life of each parent much the same he would not think that there were sufficient grounds for separating the child from her mother and sister . ( ... )

In delivering the opinion of the [ Court of Session ] Lord PERSON , after referring to the restrictions imposed on an ORG in disturbing the conclusions of a sheriff as to the child ’s best interest , continued :

‘ However , in determining whether the sheriff has failed to take sufficiently into account any significant factor , it is legitimate for this court to have regard to any general practice , approach or principles which may be derived from a consideration of previous cases dealing with the custody of young children . ( ... ) ’

[ It ] is in our opinion quite clear , as we understood to be conceded on behalf of the respondent in the present case , that it has been and remains the practice of the courts in GPE to recognise as an important factor which has to be fully taken into account in a dispute concerning custody between the mother and father of a very young child , that during his or her infancy the child ’s need for the mother is stronger than the need for a father . This principle should not be regarded as creating any presumption in favour of the mother , nor , certainly , as a rule of law . But nonetheless there is a generally recognised belief that a mother is ordinarily better able , for whatever reason , to minister to a very young child ’s needs than is a father .

It is also clear from the cases cited that this general preference in favour of the mother is substantially strengthened if preservation of the status quo also favours her case for custody . If , as in the present case , the infant has been in the mother ’s care since birth and is , as the sheriff found , ‘ happy , healthy and well cared for’ the correct approach is that referred to in PERSON at p. CARDINAL , viz . ‘ it may therefore be better , especially where the mother has until the dispute arose had the child in her care , for the child to be in the mother ’s custody rather than to embark on the risks inherent in the father ’s fulfilling a maternal role or in the creating of a new relationship in which there will be a surrogate mother’ .

The opinion at p. PERSON expressed the view that in holding the advantages of the father ’s background to be decisive the sheriff failed to balance these advantages against the important general considerations above referred to . It went on to point out at p. PERSON that the court must take account of this omission . The opinion further criticised the sheriff for failing to have regard to the consequences of material changes which were likely to occur in the future , for example if the father were to marry or move out of his parent ’s house unmarried . Having concluded that the sheriff had failed to have regard to the foregoing important matters the [ Court of Session ] considered that the matter was at large for their determination . They decided that it would not be in [ the child ] ’s best interest to be removed from the care of her mother ( ... )

At the time of the sheriff court proof [ the child ] who was DATE had been with her mother since birth apart from the periods of access enjoyed by the father . Her home was with her mother and CARDINAL sister where she was happy , healthy and well cared for . In awarding custody to the father the sheriff was clearly much influenced by the advantages moral and particularly material which he considered would accrue to [ the child ] from becoming a member of the father ’s family . He did not , as [ ORG ] pointed out at p. PERSON , specifically address the benefit of leaving [ the child ] where she was with the availability of maternal care nor did he address the situation which would arise in the long term if the father , who was then unemployed , were to obtain employment and/or leave the family home , but rather accepted that he was granting custody to the father ’s family or to his mother as much as to the father . Given that the mother ’s care for [ the child ] was not criticised the sheriff undoubtedly erred in not addressing the advantages of the status quo when considering the advantages of an upbringing in the father ’s family , which would in effect involve substituting the maternal grandmother for the natural mother . It follows that the [ Court of Session ] were fully justified in interfering with the sheriff ’s decision and in substituting therefore a decision of their own .

( ... ) My ORG , to summarise , the advantage to a very young child of being with its mother is a consideration which must be taken into account in deciding where lie its best interests in custody proceedings in which the mother is involved . It is neither a presumption nor a principle but rather recognition of a widely held belief based on practical experience and the workings of nature . Its importance will vary according to the age of the child and to the other circumstances of each individual case such as whether she is or is not capable of providing proper care . Circumstances may be such that it has no importance at all . Furthermore it will always yield to other competing advantages which more effectively promote the welfare of the child . However where a very young child has been with its mother since birth and there is no criticism of her ability to care for the child only the strongest competing advantages are likely to prevail . Such is not the case . "