No violation of Art. 8;No violation of Art. 6-1;No violation of Art. 13

Ms GPE is a NORP citizen born in DATE and resident in GPE . Prior to the events in question she was employed as a nursery - school teacher .

When she was DATE she was diagnosed as having spondylolisthesis , a condition affecting the spine which can cause chronic back pain .

On DATE she slipped and fell at work , injuring her back . She was pregnant at the time , and had been seeing a doctor at the women 's clinic at the hospital . On TIME of the accident she went to the same clinic .

Following this incident , Ms GPE was unable to return to work for any sustained period of time because of severe back pain . After she had been on the sick - list for some time , she was granted a temporary disability pension ( sjukbidrag ) and , from DATE , a disability pension ( förtidspension ) .

On DATE she made a claim for compensation under ORG ( Lagen om arbetsskadeförsäkring , CARDINAL:CARDINAL – hereafter “ the LAW ” ) from ORG ( Försäkringskassan ; hereafter “ the Office ” ) .

NORP Some time thereafter , as a matter of routine , her lawyer requested a copy of the file which had been compiled by ORG of her claim . From the documents on the file she learnt that the ORG had written to the women 's clinic on DATE as follows :

“ [ The applicant ] has reported an industrial injury which occurred on DATE . She contacted your clinic as she was pregnant at the time . The ORG requests copies of medical records from that time . We hope you will assist us as soon as possible as the matter has been pending for some time and we need the records in order to determine it . ”

It was also apparent from the file that , on DATE , the head of the clinic had submitted copies of her medical records containing information on treatment she had received in DATE , DATE and DATE . Ms GPE had not been consulted prior to the disclosure of these documents .

The medical records from DATE stated , inter alia , that Ms GPE had complained of pain in her hips and back , but there was no indication that she had alleged that she had injured herself at work . The records from this period contained details of an abortion which she had requested because her pregnancy exacerbated her back complaint . The abortion had been performed in DATE . In this regard , an entry of CARDINAL DATE stated :

“ The reason for the termination is above all that she had an incredibly bad back , especially during her last pregnancy . ”

On DATE the ORG rejected Ms GPE 's claim for compensation under LAW , finding that her sick - leave had not been caused by an industrial injury . The applicant appealed successively to ORG ( PERSON ) , the local ORG ( Länsrätten ) and the competent ORG ( ORG ) , but at each stage her appeal was rejected . On CARDINAL DATE ORG ( Regeringsrätten ) refused her leave to appeal .

NORP Under sections CARDINAL and CARDINAL of chapter CARDINAL of the Freedom of the Press Act ( ORG ) , which is part of LAW , everyone is entitled to access to public documents , subject to exceptions set out in LAW ( Sekretesslagen , CARDINAL ) .

One of the exceptions to this general rule relates to confidentiality of information in the field of health and medical care and is set out in chapter CARDINAL , section CARDINAL , of LAW , which provides as follows :

“ Secrecy applies ... in the field of health and medical care to information on the individual 's state of health or otherwise concerning his or her private life , unless it is clear that the information can be disclosed without any harm to the individual or persons closely related to him or her ... ”

Notwithstanding the above rule of confidentiality , in certain circumstances health and medical - care authorities are required to submit information to another public authority . Thus , chapter CARDINAL , section CARDINAL , of LAW provides the following :

“ Secrecy does not prevent ... the disclosure of information to another authority , if an obligation to disclose the information is laid down in an act of law or a government ordinance . ”

Such an obligation follows from chapter CARDINAL , section CARDINAL , of LAW , which reads as follows :

“ A public authority ... [ is ] obliged to submit , on request , to the courts , ORG [ Riksförsäkringsverket ] [ or ] ORG ... information on a named person concerning circumstances of importance to the application of this LAW ... ”

In this context , a doctor employed by a public hospital ( as in the present case ) is regarded as a representative of a public authority . In addition , the person applying for compensation under LAW is obliged to provide ORG with information of importance to the claim ( chapter CARDINAL , section CARDINAL , of LAW ) .

ORG is under a corresponding duty to obtain a physician 's opinion in relation to each reported industrial injury ( section CARDINAL of the Ordinance on ORG and ORG – Förordning om arbetsskadeförsäkring och statligt personskadeskydd , CARDINAL ) .

Information which is submitted to the ORG is protected by the rule of confidentiality provided by chapter CARDINAL , section CARDINAL , of LAW :

“ Secrecy applies at ORG , ORG and the courts in matters arising under the legislation on ... industrial injury assurance ... in respect of information on an individual 's state of health or otherwise concerning his or her private life , if it can be assumed that the individual concerned or persons closely related to him or her will be harmed if the information is disclosed ... ”

Under the Freedom of the Press Act and LAW , there is a right to appeal against a decision not to grant access to public documents . There is , however , no such right in respect of decisions to grant access to information contained in public documents . Furthermore , there is no right for the individual concerned to be consulted before such information is disclosed or to be notified of the disclosure afterwards .

Under chapter CARDINAL , section CARDINAL , of LAW ( ORG ) , a physician who , intentionally or through negligence , discloses information which should be kept confidential according to law is guilty of breach of professional secrecy . Proceedings may be brought in the ordinary courts by the public prosecutor or , if the public prosecutor decides not to prosecute , the aggrieved individual . Such a breach of professional secrecy may also constitute a basis for claiming damages under chapter CARDINAL , section CARDINAL , or chapter CARDINAL , section CARDINAL , of LAW ( ORG , CARDINAL:CARDINAL ) . Action may be taken by the individual against the physician or his or her employer .

Public authorities and their employees are , furthermore , subject to the supervision of the Chancellor of ORG ( NORP ) and ORG ( PERSON ) . The Chancellor and the ORG investigate whether those exercising public powers abide by laws and follow applicable instructions and may prosecute a certain individual or refer the matter to disciplinary action by the relevant authority .


Violation of Art. 6-1;Not necessary to examine under Art. 13;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

The applicant was born in DATE and lives in PERSON .

In DATE the NORP authorities nationalised the house owned by his parents . In DATE his family was deported to GPE and to GPE .

On DATE the ORG enacted Law No . CARDINAL “ on the rehabilitation of the victims of the political repression committed by the totalitarian communist occupying regime ” . The PERSON enabled the victims of the NORP repression to claim restitution of their confiscated or nationalised property .

In DATE the applicant lodged an action with ORG ( FAC ) by which he sought the restitution of his GPE house . As the former tenants of the house had purchased it from the ORG , the applicant sought a judicial ruling declaring the purchase contracts null and void . He also requested the eviction of all the occupants of the house .

By a final judgment of CARDINAL DATE the applicant ’s action was upheld .

DATE the applicant lodged numerous complaints about the non - enforcement of the judgment of DATE with ORG , ORG and ORG .

NORP In DATE the applicant complained to the ORG about the non - enforcement of the final judgment of DATE . The applicant ’s application was given number CARDINAL/CARDINAL and was communicated to the Government in DATE .

NORP In DATE CARDINAL occupants of the applicant ’s house lodged with ORG a request for revision of the judgment of CARDINAL DATE . Relying on LAW they argued in their request that new information had become known to them . They also asked the court to extend the deadline for lodging the request in view of the fact that the new information had been obtained by them from ORG in DATE .

The applicant alleges that on DATE ORG offered him for signature an agreement according to the terms of which he would consent to withdrawing his application to the ORG and waiving his right to any compensation in exchange for receiving his house . According to the applicant , the Agent allegedly suggested that in the event of his refusal ORG would continue the examination of the revision request lodged by the defendants and the proceedings would remain unresolved for a long time . He refused to sign the agreement .

On DATE ORG examined the revision request lodged by the occupants of the applicant ’s house in which newly discovered facts were invoked .

The new facts relied upon by occupants were an issue of ORG of DATE and CARDINAL certificates from ORG and from ORG dated DATE , CARDINAL DATE and CARDINAL DATE .

A certificate from ORG dated DATE had the following content :

“ ... according to ORG , there is a house with a new number CARDINAL ( old number CARDINAL ) on the PERSON street whose owner is PERSON and a house with the new CARDINAL ( old number CARDINAL ) on the PERSON street , whose owner is Pelagheia Popov ” .

Another certificate from ORG dated DATE stated :

“ ... according to ORG on DATE the name of the street ORG was changed to PERSON . ”

The certificate of CARDINAL DATE issued by ORG had the following content :

“ ... according to the data from ORG for DATE , there was a house with CARDINAL on the PERSON street ( GPE ) whose owner was PERSON and a house with CARDINAL on the PERSON cel Mare street ( GPE ) whose owner was PERSON . ”

The certificate of CARDINAL DATE issued by ORG to judge GPE from ORG stated that the owner of the house on CARDINAL FAC , was Mr PERSON . It also stated that there was no information as to whom that house belonged before DATE since the first entry in ORG was made in DATE .

According to ORG of DATE issued by ORG of PERSON , GPE , in order to eliminate the confusion in the numbering of houses which created economic and administrative difficulties , a new numbering was adopted for certain streets , including the PERSON street . The owners of the houses on the concerned streets were obliged to buy from ORG new number plates and to install them on their houses . The new numbering should have taken effect as of DATE . Until that date the owners had to have both the old and the new numbers on their houses , in order to facilitate the orientation of the population and authorities . According to a list containing the names of the house owners and their corresponding house numbers , PERSON [ the applicant ’s mother ] was the owner of a house with the old number DATE and the new number CARDINAL . ORG does not contain any other references to her .

The Court of Appeal described in its judgment of CARDINAL DATE the content of the above documents and concluded that :

“ the above circumstances were not examined by the court which decided on the merits and on the appeal . They [ the circumstances ] have an essential importance for an objective ruling on the case . The court which will re - examine the merits shall determine exactly the location and the surface of the house from which the applicant and his family were evicted . ”

ORG decided to extend the time limit for the lodging of the revision request without however giving any reasons thereto . It quashed the final judgment of CARDINAL DATE , ordered the re - opening of the proceedings and sent the file to the first instance court for a fresh examination .

After the hearing , on CARDINAL May CARDINAL , ORG allegedly told the applicant ’s representative that , had he consented to sign the agreement , the revision proceedings and the subsequent quashing and re - opening would not have taken place . The Government deny that this conversation ever took place .

On DATE the ORG adopted a judgment in the case of PERSON v. GPE , ( no . CARDINAL/CARDINAL , DATE ) , in which violations of LAW . CARDINAL to the Convention were found because of the non - enforcement of the final judgment of DATE until DATE .

The proceedings which were re - opened by ORG on CARDINAL DATE are still pending before the domestic courts . At the date of adoption of the present judgment they were still pending before the first instance court , ORG .

Article CARDINAL of LAW , in force DATE and DATE , ( “ the old Code of Civil Procedure ” ) , reads as follows :

“ Final judgments ... can be revised in the following cases :

CARDINAL ) NORP the discovery of new facts or circumstances , that were unknown and could not have been known earlier by the parties to the proceedings ; ”

On DATE a new Code of Civil Procedure entered into force . Article CARDINAL , in so far as relevant , reads as follows :

“ Grounds for revision

Revision may be requested :

c ) When new and essential facts or circumstances have been discovered , that were unknown and could not have been known earlier ; ”

“ A revision request may be lodged :

c ) within DATE from the date on which the concerned person has come to know the essential circumstances or facts of the case which were unknown to him / her earlier and which could not have been known to him / her earlier .... ”

( CARDINAL ) A decision by which a revision request is upheld ... can be challenged together with the merits of the affair ...


No violation of Art. 5-1;No violation of Art. 5-2;No violation of Art. 5-5;No violation of Art. 8;No violation of Art. 13

The CARDINAL applicants are members of the same family . The first applicant , PERSON , and the second applicant , Mr PERSON , are husband and wife . The other CARDINAL applicants are their children , namely their son PERSON ( born in DATE ) , their twin daughters PERSON and PERSON ( born in DATE ) and a younger daughter PERSON ( born in DATE ) . At the relevant time in DATE all CARDINAL applicants resided together in the same house in GPE , GPE .

On DATE CARDINAL of the first applicant ’s brothers were convicted in GPE ( " GPE " ) of arms offences connected with the purchase of weapons for ORG ( " Provisional IRA " ) . The Provisional IRA is included among the organisations proscribed under the special legislation enacted in GPE to deal with terrorism in GPE ( see paragraph CARDINAL below ) .

On DATE at TIME Corporal NORP , a member of ORG , attended an ORG briefing at which she was told that the first applicant was suspected of involvement in the collection of money for the purchase of arms for the IRA in the GPE , this being a criminal offence under section CARDINAL of GPE ( Emergency LAW DATE ( " LAW " ) and section CARDINAL of the Prevention of Terrorism ( Temporary Provisions ) Act DATE . The corporal was instructed to go to the first applicant ’s house , arrest her under LAW ( see paragraphs QUANTITY below ) and bring her back to the ORG screening centre at FAC in GPE .

At TIME Corporal D. , who was unarmed but accompanied by QUANTITY armed soldiers , arrived by ORG vehicle at the applicants’ home . The first applicant herself answered the door and CARDINAL of the male soldiers , together with Corporal NORP , entered the house . Corporal NORP established the identity of the first applicant and asked her to get dressed . Corporal NORP went upstairs with the first applicant . The other applicants were roused and asked to assemble in the living room . The soldiers did not carry out any search of the contents of the house , but made written notes as to the interior of the house and recorded personal details concerning the applicants . At TIME in the hallway of the house Corporal NORP , with CARDINAL of the soldiers acting as a witness , said to the first applicant , " As a member of Her ORG forces , I arrest you . " On being asked twice by the first applicant under what section , Corporal NORP replied , " Section CARDINAL . "

The first applicant was then driven to the ORG screening centre at FAC , GPE . She was escorted into a building and asked to sit for a short time in a small cubicle . At TIME she was taken before PERSON who asked her questions with a view to completing part CARDINAL of a standard form to record , inter alia , details of the arrest and screening procedure and personal details . The first applicant refused to answer any questions save to give her name and she refused to be photographed . The interview ended TIME . She was then examined by a medical orderly who endeavoured to establish whether she suffered from certain illnesses , but she again refused to co - operate and did not answer any of his questions .

At TIME she was taken to an interview room and questioned by a soldier in civilian clothes in the presence of Corporal NORP She was asked , inter alia , about her brothers and her contacts with them , but she still refused to answer questions . After the interview , which ended at TIME , she was returned to the reception area and then taken back to the medical orderly who asked her if she had any complaints . She did not reply to this query .

At some stage during her stay in the centre she was photographed without her knowledge or consent . This photograph and the personal details about her , her family and her home were kept on record .

She was released at TIME without being charged .

The standard record form , called the " screening proforma " , recorded the first applicant ’s name , address , nationality , marital and tenancy status , the chronological details about her arrest , the names of the ORG personnel involved , the names of the other applicants and their relationship to her , her physique and her attitude to the interview . Under the heading " Additional information ... concerning the arrestee ( as reported by the arresting soldier ) " , it stated : " Subject is the sister of C ... M ... who was arrested in GPE . Questioned on the above subject . " Nothing however was recorded under the heading " Suspected offence " . It noted that the applicant had refused to answer questions and that no information had been gained from the interview .

DATE , on DATE , the first applicant brought an action against ORG for false imprisonment and other torts .

In those proceedings CARDINAL of the principal allegations made by the first applicant was that her arrest and detention had been effected unlawfully and for an improper purpose . Her allegations were summarised in the judgment of PERSON on DATE :

" The plaintiff ’s counsel launched a series of attacks on the legality of the plaintiff ’s arrest and detention which varied in thrust between the very broad and the very narrow . In the former class , for example , was an attack in which they alleged that the use of section CARDINAL of the [ CARDINAL Act ] in this case was an example of what they called ‘ an institutionalised form of unlawful ORG by the military authorities , with the intention of obtaining what counsel termed ‘ low level intelligence’ from the plaintiff , and without ( a ) any genuine suspicion on the part of those authorities that she had committed a criminal offence or ( b ) any genuine intention on their part of questioning her about a criminal offence alleged to have been committed by her . "

In support of this case the first applicant ’s counsel not only called and examined the applicant herself but extensively cross - examined the CARDINAL witnesses called on behalf of the defendants , namely Corporal NORP and PERSON

The evidence given by the first applicant is recorded in a note drafted by the trial judge , there being no transcript of DATE of the trial as a result of a technical mishap with the recording equipment . The first applicant explained how she had found the conditions of her arrest and detention distressing for her . She had been angry but had not used strong language . She testified that whilst at the ORG centre she had refused to be photographed , to be weighed by the medical orderly , to sign any documents and to answer questions , whether put by PERSON , the medical orderly or the interviewer , apart from giving her name . She had made it clear that she would not be answering any questions . She alleged that PERSON had told her in so many words that the ORG knew that she had not committed any crime but that her file had been lost and the ORG wanted to update it . She said that she had been questioned about her brothers in the GPE , their whereabouts and her contacts with them , but not about the purchase of arms for the Provisional IRA or about any offence . She accepted that she had been in contact with her brothers and had been to the GPE , including a visit DATE ( DATE ) . She believed that the ORG had wanted to obtain information about her brothers . On leaving the centre , she had told the officials that she would be seeing them in court .

As appears from the transcript of her evidence , Corporal NORP gave an account of her briefing on TIME of the arrest . She stated that at the briefing she had been told the first applicant ’s name and address and the grounds on which she was wanted for questioning , namely her suspected involvement in the collection of money for the purchase of weapons from GPE . She testified that " my suspicions were aroused by my briefing , and my belief was that PERSON was suspected of collecting money to purchase arms " .

Under cross - examination Corporal NORP maintained that the purpose of an arrest and detention under section CARDINAL of LAW was not to gather intelligence but to question a suspected person about an offence . She stated that her suspicion of the first applicant had been formed on the basis of everything she had been told at the briefing and which she had read in a document which had been supplied to her then . Corporal NORP stated that she would not have effected the arrest unless she had been given the grounds on which she was expected to arrest the person . Under repeated questioning , Corporal NORP maintained that she had been informed at the briefing , and that she had formed the suspicion , that the applicant had been involved in the collection of money for the purchase of arms from GPE .

Corporal NORP was further examined about the interrogation of the first applicant at FAC . She stated that she recalled that questions had been asked of the applicant by the interviewer and that the applicant had refused to answer any questions put to her . She recalled that the interviewer had asked a few more questions when he returned to the room after leaving it but that she could not really remember what they were about . Counsel for the defence returned to the question of the interview of the applicant towards the end of his examination of Corporal NORP in the following exchange :

Q. " ... Now while you were , just going back for a moment to the time when what I might call the interview , that ’s when the CARDINAL of you were in the room , and the QUANTITY occasions you ’ve said she had to leave , you took her to , she wanted to go to the lavatory . Do you just have no recollection of any of the questions that were asked ? "

A. " I do n’t remember the questions as they were asked . There was a question regards money . A question regards GPE . "

No cross - examination by the first applicant ’s counsel was directed to this reply of the witness .

PERSON was examined and cross - examined about his completion of part CARDINAL of the standard record form when standing at the reception desk . He said that the first applicant had stated her name but refused to give her address or date of birth or any further information . He expressly denied the applicant ’s allegation that he had said to her that he knew she was not a criminal and that he just wanted to update her files which had been lost . He gave evidence that information recorded in DATE on the occasion of a previous arrest of the first applicant had in any event not been lost , since it had been used to complete the details on the first page of the form when she had refused to answer any questions .

Under cross - examination PERSON did not accept that the main purpose of questioning a person arrested under LAW was to gather general information about the background , family and associates of the arrested person . He maintained that persons were only arrested and detained if there existed a suspicion against them of involvement in a criminal offence .

The issue of the interview of the first applicant was specifically addressed in the final submission of defence counsel , in which the following exchange is partially recorded in the transcript :

" PERSON . PERSON : My Lord ... your Lordship has the grounds upon which the arresting officer carries out ( inaudible ) she then gives evidence and is present throughout the interview ... now I talk about the interview on the very last stage .

JUDGE : At the table ?

ORG . PERSON : At the table , and said that in the course of that interview money and arms that these matters were raised , I ca n’t ... hesitate to use the ( inaudible ) now that is CARDINAL point . The other point is this , that this was a lady who on her own admission was not going to answer any questions . She agreed during cross - examination that that was the attitude and so CARDINAL finds that an interview takes place with somebody who is not prepared to answer any questions but at least the questions are raised with her concerning the matter on which she was arrested .

JUDGE : Is the substance of that then that because of her fairly firm refusal you would say to answer any questions there was never any probing examination of her collecting money for example ?

ORG . PERSON : No my Lord because she ... as she said she was n’t going to answer any questions . "

In his judgment of DATE PERSON gave detailed consideration to the evidence of Corporal NORP and PERSON on the one hand and the first applicant on the other . PERSON could not possibly accept the [ first applicant ’s ] evidence " that she had been told by PERSON that she was not suspected of any offence and that he was just updating his records . He similarly rejected the applicant ’s claim that Corporal NORP at no time genuinely suspected her of having committed an offence . In the light of the evidence of Corporal NORP herself , who was described as a " transparently honest witness " , the judge was

" quite satisfied that on the basis of her briefing at FAC she genuinely suspected the [ first applicant ] of having been involved in the offence of collecting money in GPE for arms " .

PERSON also rejected the first applicant ’s claim that section DATE CARDINAL Act had been used with a view to screening in order to gain low - level intelligence : he accepted the evidence of Corporal NORP and PERSON , which had been tested in cross - examination , that the purpose of the applicant ’s arrest and detention under the section had been to establish facts concerning the offence of which she was suspected .

PERSON also believed the evidence of Corporal NORP that there were questions addressed to the matters of which the applicant was suspected . He stated :

" As regards the interviewer , the plaintiff accepted that he was interested in the activities of her brothers who shortly before the date of the interview had been convicted on arms charges in the GPE connected with the Provisional IRA but the [ first applicant ] , who seems to have been well aware of her rights , obviously had decided not to co - operate with the military staff in the centre . In particular she had decided ( it seems ) not to answer any of their questions and in this situation , and with the short detention period permitted by the section , there was little that the interviewer or any of the other staff in the centre could do to pursue their suspicions . "

PERSON likewise rejected the first applicant ’s argument that the photographing of her gave rise to a cause of action . His understanding of the law was that merely taking the photograph of a person , even against their will , without physically interfering with or defaming the person was not tortious .

The first applicant ’s action before ORG was therefore dismissed .

The first applicant thereupon appealed to ORG . She again challenged the legality of her arrest on the grounds , inter alia

" ( CARDINAL ) that the arresting officer did not have , or was not sufficiently proved to have , the requisite suspicion ; ( CARDINAL ) that she did not have sufficiently detailed knowledge or understanding of what was alleged against the plaintiff to warrant the conclusion that it was an offence which would justify arrest " .

In its judgment of CARDINAL DATE the ORG unanimously rejected both these grounds . In delivering judgment , ORG noted :

" [ The trial judge had ] found , and his finding was amply justified by the evidence , that [ Corporal NORP ] genuinely suspected the plaintiff of having been involved in the offence of collecting money in GPE for arms to be purchased in GPE for use by a proscribed organisation . "

In particular , as to the second ground ORG observed :

" Suspicion is something less than proof , and may exist without evidence , though it must be supported by some reason . "

ORG further unanimously rejected the first applicant ’s complaint that the purpose of her arrest and detention , and the whole purport of her questioning , was a fishing expedition unrelated to the matters of which she was suspected and designed to obtain low - grade intelligence about the applicant and others . In rejecting this complaint , ORG took account of the evidence which had been adduced on both sides :

" Corporal NORP who was present during the interview had very little recollection of the course of the questions . The only other witness as to the conduct of this interview was the [ first applicant ] . Her account also is sketchy , though in somewhat more detail . What is clear from both witnesses is that the [ first applicant ] was deliberately unhelpful and refused to answer most of the questions . What is certain is that she was asked about her brothers ... who in DATE had been convicted of offences connected with the purchase of firearms in the GPE for use by the IRA [ and for which offences they had been sentenced to terms of CARDINAL and CARDINAL years’ imprisonment ] . It is clear that it was for such a purchase that the [ first applicant ] was suspected of having collected money , as she stated the interviewer asked her whether she was in contact with them . There is no doubt , therefore , that the interviewer did attempt to pursue the subject of the suspicion which had been the occasion for her arrest but was unable to make any headway . "

The first applicant ’s appeal to ORG also concerned certain related matters such as the legality of the search of the applicants’ house , in respect of which ORG found that there was a sufficient basis in section CARDINAL(CARDINAL ) of LAW ( see paragraphs CARDINAL and ORG ) below ) . ORG held that the implied authority granted to the ORG under LAW included a power to interrogate a detained person and , as a practical necessity , a power to record personal particulars and details concerning the arrest and detention . It further found that the standard record form known as the " screening proforma " contained no information which might not have been relevant to the resolution of the suspicion .

As regards the applicant ’s complaint that she had been photographed without her knowledge , ORG stated as follows :

" The act of taking the photograph involved nothing in the nature of a physical assault . Whether such an act would constitute an invasion of privacy so as to be actionable in GPE is irrelevant , because the [ first applicant ] can only recover damages if it amounts to a tort falling within CARDINAL of the recognised branches of the law on the topic . According to the common law there is no remedy if someone takes a photograph of another against his will . ORG was placed on section CARDINAL(CARDINAL ) of the [ DATE ] Act by counsel for the [ first applicant ] ... This provision gives power to the police to order [ in addition to the taking of a photograph ] the taking of finger prints without the necessity of charging the person concerned and applying for an order of the magistrate under article CARDINAL of ORG ( GPE ) Order DATE , which contains no comparable provision as to the taking of photographs . The taking of finger prints otherwise than by consent must involve an assault and I am satisfied that section CARDINAL(CARDINAL ) was enacted not to legalise the taking of photographs without consent , but to legalise the taking of photographs or finger prints in circumstances where there would otherwise have been an illegal assault . It does not involve the implication that the taking of a photograph without violence and without consent is actionable . "

The first applicant was granted leave by ORG to appeal to ORG . This appeal was rejected on CARDINAL DATE ( ORG , [ DATE ] Weekly Law Reports CARDINAL ) .

In ORG the applicant did not pursue the allegation that she had not been arrested on the basis of a genuine and honest suspicion that she had committed an offence .

She did however pursue the complaint , previously raised before ORG , that since she was only lawfully arrested at TIME she had been unlawfully detained DATE TIME ORG found that a person is arrested from the moment he is subject to restraint and that the first applicant was therefore under arrest from the moment that Corporal NORP identified her on entering the house at TIME .. It made no difference that the formal words of arrest were communicated to the applicant at TIME In this respect Lord PERSON stated ( at pp . CARDINALH-CARDINALA ) :

" If the plaintiff had been told she was under arrest the moment she identified herself , it would not have made the slightest difference to the sequence of events before she left the house . It would have been wholly unreasonable to take her off , half - clad , to the ORG centre , and TIME would have elapsed while she gathered herself together and completed her toilet and dressing . It would seem a strange result that in these circumstances , whether or not she has an action for false imprisonment should depend upon whether the words of arrest are spoken on entering or leaving the house , when the practical effect of the difference on the plaintiff is non - existent . "

The first applicant had also maintained that the failure to inform her that she was arrested until the soldiers were about to leave the house rendered the arrest unlawful . This submission was also rejected by ORG . Lord PERSON held as follows ( at pp . TIME ) :

" It is a feature of the very limited power of arrest contained in section CARDINAL that a member of the armed forces does not have to tell the arrested person the offence of which he is suspected , for it is specifically provided by section GPE ) that it is sufficient if he states that he is effecting the arrest as a member of Her Majesty ’s forces .

Corporal NORP was carrying out this arrest in accordance with the procedures in which she had been instructed to make a house arrest pursuant to section DATE . This procedure appears to me to be designed to make the arrest with the least risk of injury to those involved including both the soldiers and the occupants of the house . When arrests are made on suspicion of involvement with the IRA it would be to close one ’s eyes to the obvious not to appreciate the risk that the arrest may be forcibly resisted .

The drill the ORG follow is to enter the house and search every room for occupants . The occupants are all directed to assemble in CARDINAL room , and when the person the soldiers have come to arrest has been identified and is ready to leave , the formal words of arrest are spoken just before they leave the house . The ORG do not carry out a search for property in the house and , in my view , they would not be justified in doing so . The power of search is given ‘ for the purpose of arresting a person’ , not for a search for incriminating evidence . It is however a proper exercise of the power of search for the purpose of effecting the arrest to search every room for other occupants of the house in case there may be those there who are disposed to resist the arrest . The search can not be limited solely to looking for the person to be arrested and must also embrace a search whose object is to secure that the arrest should be peaceable . I also regard it as an entirely reasonable precaution that all the occupants of the house should be asked to assemble in CARDINAL room . As Corporal D. explained in evidence , this procedure is followed because the soldiers may be distracted by other occupants in the house rushing from CARDINAL room to another , perhaps in a state of alarm , perhaps for the purpose of raising the alarm and to resist the arrest . In such circumstances a tragic shooting accident might all too easily happen with young , and often relatively inexperienced , armed soldiers operating under conditions of extreme tension . Your Lordships were told that the husband and children either had commenced , or were contemplating commencing , actions for false imprisonment arising out of the fact that they were asked to assemble in the living - room for a short period before the plaintiff was taken from the house . That very short period of restraint when they were asked to assemble in the living room was a proper and necessary part of the procedure for effecting the peaceable arrest of the plaintiff . It was a temporary restraint of very short duration imposed not only for the benefit of those effecting the arrest , but also for the protection of the occupants of the house and would be wholly insufficient to found an action for unlawful imprisonment .

It was in my opinion entirely reasonable to delay speaking the words of arrest until the party was about to leave the house . If words of arrest are spoken as soon as the house is entered before any precautions have been taken to search the house and find the other occupants , it seems to me that there is a real risk that the alarm may be raised and an attempt made to resist arrest , not only by those within the house but also by summoning assistance from those in the immediate neighbourhood . When soldiers are employed on the difficult and potentially dangerous task of carrying out a house arrest of a person suspected of an offence in connection with the IRA , it is I think essential that they should have been trained in the drill they are to follow . It would be impracticable and I think potentially dangerous to leave it to the individual discretion of the particular soldier making the arrest to devise his own procedures for carrying out this unfamiliar military function . It is in everyone ’s best interest that the arrest is peaceably effected and I am satisfied that the procedures adopted by the ORG are sensible , reasonable and designed to bring about the arrest with the minimum of danger and distress to all concerned . I would however add this rider : that if the suspect , for any reason , refuses to accept the fact of restraint in the house he should be informed forthwith that he is under arrest . "

Before ORG the first applicant also pursued a claim that her period of detention exceeded what was reasonably required to make a decision whether to release her or hand her over to the police . In this regard the applicant complained that the standard record form ( the " screening proforma " ) constituted an improper basis for questioning a suspect on the ground that it asked questions not directly relevant to the suspected offence ; it was also suggested that the evidence did not show that the questioning of the applicant was directed to the matters of which she was suspected . The allegation was unanimously rejected by ORG . Lord PERSON observed as follows ( at pp . CARDINALF-CARDINALC ) :

" The member of the forces who carried out the interrogation between CARDINAL.CARDINAL and TIME was not called as a witness on behalf of ORG . There may have been sound reasons for this decision associated with preserving the confidentiality of interrogating techniques and the identity of the interviewer , but be that as it may , the only evidence of what took place at the interview came from Corporal NORP and the [ first applicant ] and it is submitted that this evidence is insufficient to establish that the interview was directed towards an attempt to investigate the suspicion upon which the [ applicant ] was arrested . Corporal NORP was present at that interview , she was not paying close attention but she gave evidence that she remembered questions about money which were obviously directed towards the offences of which the [ applicant ] was suspected . The [ applicant ] also said she was questioned about her brothers .

The judge also had before him a questionnaire that was completed by the interviewer . ... There is nothing in the questionnaire which the ORG may not reasonably ask the suspect together with such particular questions as are appropriate to the particular case ... "

The conclusion of the trial judge that the applicant had not been asked unnecessary or unreasonable questions and the conclusion of ORG that the interviewer had attempted to pursue with the applicant the suspicion which had been the occasion of the arrest , but had been unable to make any headway , were held by ORG to be justified on the evidence .

For DATE the population of GPE , which totals CARDINAL people , has been subjected to a campaign of terrorism . During that time CARDINAL of persons in GPE have been killed , maimed or injured . The campaign of terror has extended to the rest of GPE and to the mainland of LOC .

The DATE Act forms part of the special legislation enacted over DATE in an attempt to enable the security forces to deal effectively with the threat of terrorist violence .

The first applicant was arrested under section DATE CARDINAL Act , which at the relevant time provided as follows :

" ( CARDINAL ) A member of Her Majesty ’s forces on duty may arrest without warrant , and detain for not more than four hours , a person whom he suspects of committing , having committed or being about to commit any offence .

( CARDINAL ) A person effecting an arrest under this section complies with any rule of law requiring him to state the ground of arrest if he states that he is effecting the arrest as a member of Her Majesty ’s forces .

( CARDINAL ) For the purpose of arresting a person under this section a member of Her Majesty ’s forces may enter and search any LOC or other place -

( a ) where that person is , or

( b ) if that person is suspected of being a terrorist or of having committed an offence involving the use or possession of an explosive , explosive substance or firearm , where that person is suspected of being . "

A similar provision had been in force since DATE and had been considered necessary to deal with terrorist activities in CARDINAL independent reviews ( Report of the ORG DATE which recommended such a power and a ORG chaired by Lord PERSON DATE ) .

In DATE Sir PERSON , a retired senior member of the judiciary , was invited by the Government to review the operation of LAW in order to determine whether its provisions struck the right balance between the need , on the one hand , to maintain as fully as possible the liberties of the individual and , on the other , to provide the security forces and the courts with adequate powers to enable them to protect the public from current and foreseeable incidence of terrorist crime . In the resultant report specific consideration was given to , inter alia , including a requirement in section CARDINAL of LAW that an arrest should be based upon reasonable suspicion . While expressly recognising the risk that the facts raising the suspicion might come from a confidential source which could not be disclosed in court in a civil action for wrongful arrest , Sir PERSON concluded that the inclusion of a requirement of reasonableness would not in fact make any difference to the actions of the military and recommended an amendment to LAW accordingly . That recommendation was implemented in DATE .

The scope and exercise of the section CARDINAL powers were considered by the domestic courts in the proceedings in the present case . The applicable law , as stated by the judgments in these proceedings , is that when the legality of an arrest or detention under section DATE is challenged ( whether by way of habeas corpus or in proceedings for damages for wrongful arrest or false imprisonment ) , the burden lies on the military to justify their acts and , in particular , to establish the following elements :

( a ) compliance with the formal requirements for arrest ;

( b ) the genuineness of the suspicion on which the arrest was based ;

( c ) that the powers of arrest and detention were not used for any improper purpose such as intelligence - gathering ;

( d ) that the power of search was used only to facilitate the arrest and not for the obtaining of incriminating evidence ;

( e ) that those responsible for the arrest and detention did not exceed the time reasonably required to reach a decision whether to release the detainee or hand him over to the police .

LAW of LAW , which concerns police arrest , provides in paragraph CARDINAL :

" Where a person is arrested under this section , an officer of ORG not below the rank of chief inspector may order him to be photographed and to have his finger and palm prints taken by a constable , and a constable may use such reasonable force as may be necessary for that purpose . "

In the general law of GPE , as in LANGUAGE law , it is lawful to take a photograph of a person without his or her consent , provided no force is used and the photograph is not exploited in such a way as to defame the person concerned ( see paragraphs CARDINAL and CARDINAL in fine above ) .

The common - law rule entitling the ORG to take a photograph equally provides the legal basis for its retention .

As was confirmed in particular by ORG and ORG in the present case , the standard record form ( known as the " screening proforma " ) was an integral part of the examination of the first applicant following her arrest , and the legal authority for recording certain personal details about her in the form derived from the lawfulness of her arrest , detention and examination under LAW CARDINAL of LAW ( see paragraph CARDINAL , first sub - paragraph in fine , and paragraph CARDINAL above ) . The implied lawful authority conferred by section CARDINAL of LAW to record information about the first applicant equally provided the legal basis for the retention of the information .


David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza

The applicant was born in DATE and is currently detained in FAC , GPE .

DATE robberies and CARDINAL aborted robberies took place in the GPE area . The robbers targeted security vehicles carrying cash ; banks ; CARDINAL post office ; and CARDINAL supermarket . More than once , firearms were discharged . Police officers chasing the robbers were fired upon and on CARDINAL occasion a lorry driver who used his vehicle to ram the robbers ' getaway car was shot and seriously injured .

NORP The prosecution case was that the applicant joined the conspiracy in around DATE after his release from prison , after CARDINAL of the robberies had been committed . The evidence against the applicant was almost entirely circumstantial and the case relied heavily on evidence from a police surveillance exercise carried out over a period of DATE . The prosecution argued that the applicant 's recorded movements were consistent with his playing an active part in the conspiracy .

The applicant was arrested on DATE . He denied any involvement in the conspiracy to rob and was interviewed under caution in DATE and DATE . The terms of the caution were that he did not have to say anything but that it might harm his defence if he did not mention when questioned something on which he later sought to rely in court . During the interviews , he was asked to give an explanation for his movements as recorded by the police in their surveillance exercise , his association with a variety of individuals and his whereabouts at the time of the robberies . On each occasion , he replied “ no comment ” .

The applicant subsequently pleaded not guilty to conspiracy to rob and other offences arising out of the conspiracy .

At trial before ORG , the applicant gave evidence in his own defence . His case was that he was not involved in the conspiracy . He claimed that he was not even aware of the robbery conspiracy or his associates ' involvement . However , he admitted being involved in the buying and selling of stolen cars and argued that the police observations showed his involvement in that business , rather than in any conspiracy to rob .

The applicant also provided answers to all the questions which he had declined to answer during the police interviews in DATE and DATE . In particular , he accounted for his association with various individuals , provided explanations for why he had moved certain vehicles on certain dates , gave detailed accounts of his movements on relevant dates , provided reasons why he was observed wearing gloves on specific occasions and gave explanations for conversations recorded by covert surveillance .

NORP The applicant was asked why he had not provided these explanations at the time of the police interviews . He responded that he had not wanted to incriminate people in relation to the stolen vehicles .

In his summing up to the jury , the judge directed them as to the burden of proof and the standard of proof in the case :

“ ... The burden [ of proof ] lies upon the prosecution throughout the case , to prove their case against the defendant . The defendant does not have to prove anything at all , there is no burden upon him to prove anything .

The next matter of law , is the standard of proof , this is a very simple concept , the standard is , that you must be sure . You must not convict this man unless you are sure he is guilty and nothing less than being sure will do . ”

He subsequently gave them the following direction regarding lies :

“ Another matter of law , ... which I should mention , concerns the telling of lies or being untruthful . You may come to the conclusion that this defendant has told you a lie or a number of lies ; I 'm not suggesting that he has or he has n't , it is simply a matter that you may wish to consider . Because , I have to tell you as a matter of law , that the fact that a defendant tells a lie , is not of itself , evidence of guilt . A defendant may lie for many reasons . He may lie because he does n't want to disclose something or out of confusion , panic or something of that sort .

If you think that the defendant has lied in evidence , but you think that there is or might be some innocent explanation for any lie , then ignore it , take no notice of it at all . If , on the other hand , you were to find that the defendant did lie and you are sure that he did n't lie for any innocent reason , then any such lie can be evidence going to support the prosecution 's case . ”

The judge went on to deal with the questioning of the applicant by the police . In this regard , he noted :

“ ... there [ were ] TIME if I 've added it up correctly DATE of interviews between the police and the defendant , from DATE of his arrest in DATE and at each of those various interviews , he was cautioned . The words of the caution being , that he was told that he did not have to say anything , but that it may harm his defence if he did n't mention when questioned , something which he may later rely on in court . He was told that anything which he might say may be given in evidence . ”

The judge noted that the applicant had not answered questions put to him during the police interviews , replying “ no comment ” to each of the questions posed . He reminded the jury that the applicant did not suggest that he was advised by his lawyer not to comment but said that he had not answered questions because he did not want to incriminate people in relation to stolen vehicles . The judge also reminded the jury of some of the specific questions asked of the applicant during the police interviews and of the subsequent answers relied upon by the applicant during his evidence at trial and added :

“ [ The applicant ] knew , as he accepted when he gave evidence before you , that he had been arrested for armed robbery . He admits that he failed to mention any of the facts to which I have just referred , when he was interviewed and he says his reason for that , was that although well knowing that others had been arrested for the much more serious offence of armed robbery , as he had been , he did n't want to incriminate them in the stealing of cars . ”

The judge concluded with the following direction :

“ You must decide , whether in the circumstances , these facts to which I have referred , were facts which the defendant could reasonably have been expected to have mentioned in the light of that caution , which was repeatedly given to him , over that period from DATE .

If you find that he could reasonably be expected to have mentioned those facts , then the law is , that you may draw such inferences as appear proper , from his failures to mention such matters when interviewed .

I reminded you of the period of the interviews . Failures to mention such matters can not on their own prove guilt , but you may hold such failures against the defendant when deciding whether he is guilty , that is to say , you may take them into account as some additional support for the prosecution 's case . You are not bound to do so , it 's a matter entirely for you to decide whether it is fair to do so . ”

On DATE the jury found the applicant guilty of the offences charged . He was sentenced to DATE imprisonment . ORG ( see paragraph CARDINAL below ) summarised the comments of the trial judge on sentencing as follows :

“ CARDINAL . In sentencing Mr PERSON , the judge noted that he had CARDINAL previous convictions dating from DATE , including a conviction for conspiracy to rob ... The trial judge described him as a dangerous , cunning and intelligent man and he was satisfied that after he had joined the conspiracy , he had played a commanding role ...

Mr Adetoro did not take part in the first CARDINAL robberies because he was in prison in respect of a previous matter connected with armed robbery . He was released in DATE and by DATE was associating with his co - accused ... Thereafter he joined the conspiracy . Once he had joined the tactics and execution of the various robberies increased in gravity . The judge noted that he was satisfied that Mr PERSON was involved in the sixth robbery and ignored his assertion that he was with PERSON PERSON and PERSON at the material time . He was a ' rather clever and determined liar ' and his alibi ' fell apart ' . The judge was not prepared to place reliance on anything he said and made no finding in respect of Mr PERSON and PERSON PERSON 's presence or absence in the circumstances of the sixth robbery . ”

The applicant appealed to ORG arguing , inter alia , that the summing up contained a PERSON direction ( a direction to the jury in relation to lies – see paragraph CARDINAL below ) where it was wholly inappropriate ; and that the trial judge had not given any direction to the jury regarding the drawing of adverse inferences from the applicant 's silence during the police interviews in circumstances where such a direction was appropriate .

On DATE , ORG handed down its judgment . It agreed that there had been no need for a PERSON direction . However , it considered that the fact that one was given did not prejudice the applicant 's defence or the safety of his conviction . Regarding the adverse inferences direction , the court concluded , having regard to the transcript of the trial judge 's summing up , that the judge had given such a direction to the jury . It considered the applicant 's case in the round and noted that the evidence against the applicant was overwhelming . The applicant 's appeal against conviction was dismissed . However , his sentence was reduced to DATE imprisonment .

On DATE , ORG ( “ CCRC ” ) referred the applicant 's conviction to ORG on the basis of the trial judge 's direction to the jury in relation to the applicant 's silence at the police interviews . The main ground of appeal was that the direction on adverse inferences was defective in that the jury were not directed that an adverse inference could only be drawn where it was satisfied that the real reason for the applicant 's silence was that he had no answer to the questions asked , or no answer that would hold up to scrutiny . The PERSON report noted that legal advice dated DATE on the merits of an appeal made reference to the omission in the jury direction but that this issue was not pursued beyond the initial advice and was not incorporated into the applicant 's grounds of appeal at that time . ORG subsequently observed that this ground :

“ was not CARDINAL of the CARDINAL grounds of appeal advanced by experienced counsel who appeared for the appellant at trial . ”

On TIME of the appeal hearing , counsel for the prosecution informed counsel for the applicant that he considered there to be no justification for opposing the appeal and that the only issue would be whether or not there ought to be a retrial .

The Court of Appeal disagreed and found that , despite the misdirection by the trial judge , the conviction was safe . It distinguished between cases where an accused exercised his right to silence pursuant to legal advice or because he was tired or ill and those where , as in the present case , the reason for not answering questions was linked to the accused 's defence itself . It found that the jury had rejected the applicant 's defence and , in doing so , must also have rejected the applicant 's explanation of why he failed to answer questions in the police interview , noting :

“ Here the appellant 's explanation was inextricably linked to his defence which was : ' I was involved with the others in buying and selling stolen cars , but not in armed robbery ' . In saying that he did not answer questions because he did not wish to implicate others in this business , the appellant was necessarily advancing his own defence . The jury rejected this defence and it seems to us that in doing so they must also have rejected the appellant 's explanation for his failure to mention facts at interview . ”

NORP The court also noted that the judge had given the jury an unnecessary PERSON direction which , in the event , provided assistance to the jury in how to approach the question of adverse inferences which could be drawn from the applicant 's failure to provide an explanation of his conduct during the police interviews . It concluded that :

“ The direction the judge gave could only have related to lies told by the appellant in court . The jury were told that if they thought there was an innocent explanation for any such lie told by the appellant they should not hold it against him . So , as the jury must have concluded that the appellant 's explanation for his silence ( ' I wanted to protect others ' ) was a lie , following the judge 's direction they would have had to consider whether there was an innocent explanation for it before they could have used it as supportive of the ORG 's case . If therefore they did use his lying explanation against him , the jury must have concluded that the lie was not innocent DATE in other words the reason he was lying about why he had not answered the questions was because he had no answer to them or none which would withstand scrutiny .

... So on analysis if the jury in this case did draw adverse inferences against the appellant from his silence at interview , they could only have done so by following the same thought processes as they would have had to follow if the proper section CARDINAL direction had been given . This is therefore not a case in which one can not say what the jury would have done if such a direction had been given . Put shortly , if they did draw adverse inferences against the appellant following the directions which they were given , they could only have done so if they considered that the reason for his silence was that he had no or no sustainable answer to the questions he was asked . ”

The court referred to the earlier judgment of ORG , which found the evidence against the applicant to be overwhelming , and concluded :

“ This was not therefore a case in which one could say that the correct direction would have tipped the balance ” .

The applicant 's appeal against conviction was dismissed on DATE .

Section CARDINAL of ORG LAW DATE provides that :

“ ( CARDINAL ) Where in any proceedings against a person for an offence , evidence is given that the accused–

( a ) at any time before he was charged with the offence , on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed , failed to mention any fact relied on in his defence in those proceedings ;

being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned , charged or informed , as the case may be , subsection ( CARDINAL ) below applies .

( CARDINAL ) Where this subsection applies

( d ) the court or jury , in determining whether the accused is guilty of the offence charged ,

may draw such inferences from the failure as appear proper .

( CARDINAL ) Subject to any directions by the court , evidence tending to establish the failure may be given before or after evidence tending to establish the fact which the accused is alleged to have failed to mention .

Section CARDINAL ) provides that :

“ A person shall not ... be convicted of an offence solely on an inference drawn from such a failure or refusal as is mentioned in section GPE ) ... ”

A number of domestic cases have considered the application of section CARDINAL in practice . In NORP v. PERSON ( [ DATE ] CARDINAL Criminal Appeal Reports CARDINAL ) , Lord PERSON set out CARDINAL “ essentials ” when making a direction on adverse inferences :

“ We consider that the specimen direction is in general terms a sound guide . It may be necessary to adapt it to the particular circumstances of an individual case . But there are certain essentials which we would highlight :

The judge will have told the jury that the burden of proof remains upon the prosecution throughout and what the standard required is .

It is necessary for the judge to make clear to the jury that the defendant is entitled to remain silent . That is his right and his choice .

An inference from failure to give evidence can not on its own prove guilt . That is expressly stated in section CARDINAL ) of the LAW .

Therefore , the jury must be satisfied that the prosecution have established a case to answer before drawing any inferences from silence . Of course , the judge must have thought so or the question whether the defendant was to give evidence would not have arisen . But the jury may not believe the witnesses whose evidence the judge considered sufficient to raise a prima facie case . It must therefore be made clear to them that they must find there to be a case to answer on the prosecution evidence before drawing an adverse inference from the defendant 's silence .

NORP If despite any evidence relied upon to explain his silence or in the absence of any such evidence , the jury conclude the silence can only sensibly be attributed to the defendant 's having no answer or none that would stand up to cross - examination , they may draw an adverse inference . ”

Subsequently , in NORP v. ORG ( [ DATE ] Criminal Appeal Reports CARDINAL ) , Lord PERSON ( as he was then ) added a sixth condition that had to be met before section CARDINAL of the DATE Act would allow inferences to be drawn :

“ The sixth condition is that the appellant failed to mention a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when questioned . The time referred to is the time of questioning , and account must be taken of all the relevant circumstances existing at the time . The courts should not construe the expression ' in the circumstances ' restrictively : matters such as DATE , the defendant 's age , experience , mental capacity , state of health , sobriety , tiredness , knowledge , personality and legal advice are all part of the relevant circumstances ; and those are only examples of things which may be relevant ...

Like so many other questions in criminal trials this is a question to be resolved by the jury in the exercise of their collective common - sense , experience and understanding of human nature . Sometimes they may conclude that it was reasonable for the defendant to have held his peace for a host of reasons , such as he was ... worried at committing himself without legal advice , acting on legal advice , or some other reason accepted by the jury . ”

Guidance as to the direction which the judge should give the jury are provided by ORG , which provides specimen directions . The present specimen direction on section CARDINAL is based on the CARDINAL “ essentials ” listed in NORP v. PERSON , as applied in subsequent section CARDINAL cases before the domestic courts , including R v. ORG , and by this ORG in PERSON the GPE , DATE , Reports of Judgments and Decisions DATE and ORG v. GPE , no . CARDINAL , ORG CARDINALV ) .

The Judicial Studies Board specimen direction , which was last amended in DATE , prior to the applicant 's second appeal , provides as follows ( the sections in bold indicate substantive differences from the version of the guidelines in force at the time of the applicant 's trial ) :

“ CARDINAL . Before his interview(s ) the defendant was cautioned ... He was first told that he need not say anything . It was therefore his right to remain silent . However , he was also told that it might harm his defence if he did not mention when questioned something which he later relied on in court ; and that anything he did say might be given in evidence .

As part of his defence , the defendant has relied upon ( here specify the facts to which this direction applies - see Note CARDINAL ) . But [ the prosecution say][he admits ] that he failed to mention these facts when he was interviewed about the offence(s ) . [ If you are sure that is so , this / This ] failure may count against him . This is because you may draw the conclusion ... from his failure that he [ had no answer then / had no answer that he then believed would stand up to scrutiny / has since invented his account / has since tailored his account to fit the prosecution 's PERSON refer to any other reasonable inferences contended for ... ) ] . If you do draw that conclusion , you must not convict him wholly or mainly on the strength of it ... ; but you may take it into account as some additional support for the prosecution 's case ... and when deciding whether his [ evidence / case ] about these facts is true .

However , you may draw such a conclusion against him only if you think it is a fair and proper conclusion , and you are satisfied CARDINAL things : first , that when he was interviewed he could reasonably have been expected to mention the facts on which he now relies ; second , that the only sensible explanation for his failure to do so is that he had no answer at the time or none that would stand up to scrutiny ... ; third , that apart from his failure to mention those facts , the prosecution 's case against him is so strong that it clearly calls for an answer by him ...

( Add , if appropriate : ) The defence invite you not to draw any conclusion from the defendant 's silence , on the basis of the following evidence ( here set out the evidence ... ) . If you [ accept this evidence and ] think this amounts to a reason why you should not draw any conclusion from his silence , do not do so . Otherwise , subject to what I have said , you may do so . ”

A PERSON direction is a direction from the judge to the jury to the effect that the fact that the accused has told lies , or is alleged to have told lies , does not in itself indicate guilt . The jury should be invited to consider other explanations why the accused might have lied , including any he provides during the trial . The relevant case is R v. PERSON ( [ DATE ] Q.B. CARDINAL ) , in which it was held that :

“ To be capable of amounting to corroboration the lie told out of court must first of all be deliberate . Secondly it must relate to a material issue . Thirdly the motive for the lie must be a realisation of guilt and a fear of the truth . The jury should in appropriate cases be reminded that people sometimes lie , for example , in an attempt to bolster up a just cause , or out of shame or out of a wish to conceal disgraceful behaviour from their family . Fourthly the statement must be clearly shown to be a lie by evidence other than that of the accomplice who is to be corroborated , that is to say by admission or by evidence from an independent witness . ”


The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in PERSON . He is represented before the ORG by PERSON PERSON , a lawyer practising in GPE . The respondent Government are represented by their Agent , Mr PERSON , Director , ORG .

The facts of the case , as submitted by the parties and as they appear from the documents , may be summarised as follows .

The applicant was placed on temporary unpaid leave , on DATE , because of his employer 's financial difficulties . The same day the applicant registered as an unemployed person , seeking new employment at the local unemployment office . He received a certificate from the unemployment office ( työvoimatoimisto , arbetskraftsbyrå ) of GPE , dated CARDINAL DATE , according to which he could receive unemployment benefit as from CARDINAL DATE onwards .

On DATE ORG ( työvoimatoimikunta , arbetskraftskommision ) confirmed that he could receive the benefit as from DATE .

On DATE ORG and Economists ( IAET ) , which was paying the applicant 's unemployment benefit , requested a new certificate from the applicant 's local unemployment office . According to the new certificate of DATE , ORG found that the applicant had been de facto self - employed from DATE in several enterprises owned partly by him or his family and that he was not entitled to receive unemployment benefit for that period .

On DATE the ORG requested ORG ( vakuutusoikeus , försäkringsdomstolen ) to quash and annul the ORG 's own earlier decisions ( issued in DATE ) , according to which the applicant was entitled to receive , inter alia , unemployment benefit , and to refer the case back to the IAET to be reconsidered . ORG accepted the ORG 's request on DATE . The judgment was served upon the applicant by mail on DATE .

Subsequently , on CARDINAL , DATE and DATE , the IAET refused the applicant his entitlement to the benefits and decided to request the applicant to reimburse all the benefits paid , amounting to approximately EUR CARDINAL . The applicant lodged several appeals with ORG ( työttömyysturvalautakunta , arbetslöshetsnämnden ; hereinafter “ the BFUB ” ) . On DATE the ORG rejected all of the applicant 's appeals against the IAET 's decisions . On DATE the applicant appealed against the ORG 's decisions to ORG . It refused his appeals on DATE . The judgment was served upon the applicant by mail on DATE .

The applicant was employed from DATE to CARDINAL DATE . On DATE ORG again found that the applicant had been self - employed as from DATE . On DATE the IAET refused the applicant 's unemployment benefit application as from DATE since ORG had on DATE issued a new certificate , according to which the applicant had not reported as a job - seeker at the unemployment office . On DATE the applicant appealed against the IAET 's decisions to the ORG , and requested to be paid unemployment benefit for the period of DATE until DATE . On DATE the ORG examined the applicant 's appeal and quashed the PERSON 's decision of DATE and returned the case for re - examination , finding that the applicant 's application had been dismissed without first obtaining a fresh certificate from the unemployment office .

As it appears from the documents , on DATE the local ORG found that the applicant was still self - employed . On DATE the IAET dismissed the applicant 's unemployment benefit application as from DATE because he was still found to be de facto self - employed . On DATE the applicant appealed to the ORG . On DATE the applicant submitted his further observations . The ORG refused the applicant 's appeal on CARDINAL DATE . The applicant appealed against the ORG 's decision to ORG . It invited the ORG 's observations and the applicant 's observations . The applicant submitted his further observations to ORG on DATE and DATE . The IAET submitted additional observations and the applicant was given an opportunity to submit further observations . On CARDINAL DATE ORG dismissed the appeal . According to the applicant , he was forced to reapply for his unemployment benefit for the period from DATE to DATE and that he received the benefit on DATE .

On DATE the applicant requested ORG to quash and annul all the earlier ORG decisions and to re - open the case on the basis of the new evidence he had this time enclosed with his request . On DATE ORG found in favour of the applicant and annulled its previous decisions . It considered , in the light of the new evidence , that the applicant was entitled to receive unemployment benefit as from DATE . It noted that the new evidence was , at least partly , such that the applicant had not had access to it at the time of the previous proceedings . The applicant 's case was referred back to the IAET . He was finally granted the benefit on DATE .

According to section CARDINAL of the LAW ( työttömyysturvalaki , lag om utkomstskydd för arbetslösa , CARDINAL/CARDINAL ) , as in force at the relevant time , whosoever was unsatisfied with a decision of an unemployment fund could appeal the decision to ORG , and the decision of ORG . The decision of ORG could not be appealed .

Section CARDINAL of the LAW , as in force at the relevant time , concerned the reimbursement of benefits paid . If a benefit referred to in the LAW had been paid wrongly or in too large an amount , the excessive amount was to be recovered . Recovery could be waived completely or in part if this was considered reasonable . A final decision on reimbursement could be enforced in the same way as any final decisions .

Section CARDINAL ( CARDINAL ) , as in force at the relevant time , concerned the annulment of decisions . According to that section , when a final decision concerning a benefit referred to in the LAW was based on incorrect or insufficient information or was manifestly unlawful , ORG could annul the decision after having heard the other interested parties if so recommended by the relevant unemployment fund or requested by the person concerned , and order the matter to be reprocessed . After having given the said recommendation , the unemployment fund could temporarily suspend payment of the benefit or pay it in accordance with the recommendation , until the matter had been resolved .

According to section CARDINAL of LAW ( työttömyyskassalaki , lag om arbetslöshetskassor ; CARDINAL/CARDINAL ) , the purpose of an unemployment fund is , inter alia , to provide its members unemployment benefits pursuant to LAW . LAW provides that ORG and ORG grants licences to establish an unemployment fund .

An unemployment fund receives state funding ( section CARDINAL of the Act ) and its rules must be registered to ORG ( vakuutusvalvontavirasto , PERSON ) , which is subordinated to ORG ) . ORG supervises the unemployment funds and has the right to obtain information from them as well as to order the unemployment funds to take actions which ORG regards as necessary for the fulfilment of the provisions of LAW ( sections DATE and CARDINAL of the Act ) .


David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä

The applicants , all NORP nationals of NORP - Cypriot origin , are named as :

Mr PERSON , born in DATE ;

PERSON , born in DATE , is the mother of the other applicants and administrator of the property of her missing husband ( see below ) ;

PERSON , born in DATE ;

Mr PERSON , born in DATE ;

Mr PERSON , born in DATE ;

PERSON , born in DATE .

The application was stated to be brought by the applicants , in their own capacity and on behalf of PERSON , their husband and father respectively , and PERSON , their son and brother respectively , who have been missing since DATE . The applicants are the heirs to the property of PERSON . Applicants nos . CARDINAL , CARDINAL , DATE , DATE and DATE are living in GPE and applicant no . CARDINAL is living in GPE .

They were represented before the ORG by PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent .

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

All the applicants and the missing persons were born in the village of PERSON in GPE which had inhabitants of both Greek- NORP and NORP - NORP origin . The applicants stated that until DATE they were all living together in the village .

After the intervention by the NORP armed forces in DATE the applicants alleged that they remained in their village following reassurances by fellow NORP - NORP villagers and the head of the latter 's community in the village that they would protect them . Subsequently , on DATE the NORP armed forces took over the village and arrested the applicants . The applicants claimed that on QUANTITY DATE PERSON , who was DATE at the time and ORG , DATE at the time , were taken by the NORP armed forces and/or NORP under their command along with other men of NORP - Cypriot origin in the village and that they were told that the villagers had been taken to ORG for interrogation . The applicants stated that they were detained in a house , with other women and children , with armed guards outside and that they were not allowed to go home , or to take care of their animals on the farm or their property . Then they were put onto trucks and taken through various villages , subjected en route to abuse by mobs who were spitting , shouting abuse and throwing objects at them . On DATE the applicants stated that they were forced to abandon their home , property and village and flee to southern GPE .

Since DATE the applicants have never seen their husband / father and son / brother again and they claimed that GPE refused to give any information about their whereabouts .

These men were listed as missing persons , the information being given to the NORP authorities , ORG and ORG . In DATE , ORG on Missing Person ( “ CMP ” ) was set up to look into cases of persons reported missing in the intercommunal fighting as well as the events of DATE and afterwards ( for further details on the ORG , see PERSON and Others v. GPE [ ORG ] , ORG . CARDINAL , CARDINAL , CARDINAL , CARDINAL/CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL and GPE , § § DATE , ECHR DATE ... ) .

The Government stated , inter alia , that it had no knowledge of the missing persons and that the applicants had failed to initiate any inquiry about their missing relatives .


The applicant has dual NORP / NORP nationality . She was born in DATE and lives at GPE ( GPE ) . She is represented before the court by PERSON PERSON , a lawyer practising in GPE .

In DATE the applicant was injured in a road accident when travelling as a passenger in a vehicle insured for third - party risks by the PERSON insurance company .

She sustained serious bodily injuries . S. paid her medical expenses until DATE but refused to make any further payments .

After negotiations had broken down , the applicant brought an action for damages against the insurance company on DATE in ORG .

In the course of those proceedings she learnt that had been under surveillance by private detectives on several occasions . It appears from the file that was produced to the ORG that in DATE the insurance company began to have doubts about the true extent of the applicant ’s injuries and instructed CARDINAL private detectives to verify her physical condition . The detectives monitored the applicant ’s movements and followed her by car . They also kept a record of any visits she received . They filmed the applicant on various occasions , notably when she attended an appointment at the insurance company ’s offices and at a picnic that had been organised in the car park of the company for which her partner worked . In the course of their surveillance operations the detectives produced reports , photographs and a video recording .

On DATE the applicant made an “ application for protection of her personality rights ” to ORG on the basis of Articles CARDINAL et seq . of LAW . She sought an injunction restraining the insurers from keeping her under surveillance , an order for the destruction of the photographs and video and a declaration that the reports , photographs and video constituted an unlawful interference with her personality rights .

On DATE she lodged a criminal complaint against the private detectives and representatives of the insurance company , notably for interference with her privacy . The criminal proceedings were stayed pending the outcome of the civil proceedings before ORG , which on DATE made an order for damages against the insurance company . According to the applicant , that judgment has become final and irreversible as neither party has appealed against it .

On DATE ORG Instance dismissed the applicant ’s application for protection of her personality rights . On DATE ORG of ORG of GPE upheld that decision .

In a judgment of DATE ORG dismissed the applicant ’s application to have that judgment set aside . It began by observing that by virtue of LAW subparagraph CARDINAL of LAW an interference was unlawful unless justified by the victim ’s consent , an overriding private or public interest , or statute . When , as in the case before it , the insurance company had pleaded an overriding interest , the trial court had to decide whether , in the light of all the circumstances , sufficient grounds existed to make the interference legitimate . It further pointed out that it was for the trial court , in its discretion , to weigh up the competing interests . It proceeded to dismiss the applicant ’s application on the following grounds :

“ ( b ) NORP Before making an insurance payment , an insurer providing third - party cover has a duty to verify whether the insured has incurred civil liability for the damage caused to the third party and whether the victim ’s claim for reparation is justified . It must also defend the insured against unjustified claims by third parties . Further , the insurer acts in the interests of all its insured collectively ( see , on this subject , PERSON , ORG , GPE DATE , ORG . CARDINAL et seq . ) . When discharging its duties , the insurer is therefore entitled to conduct private investigations and assemble evidence . For their part , victims claiming compensation must cooperate in establishing the facts and accept that the insurer may conduct investigations , even without their knowledge , when that is necessary to achieve the aim pursued . Thus , assembling evidence with a view to establishing the existence and extent of the insurer ’s obligations towards the victim may constitute a valid reason for interfering with personality rights ( see PERSON , ‘ PERSON i m GPE , thesis , ORG , p. CARDINAL ) .

( c ) In the present case , the cantonal court accepted , and its finding is binding on ORG ( Article CARDINAL subparagraph CARDINAL of LAW ) , that the investigations , which were conducted from a public place and were confined to ascertaining the appellant ’s mobility , that being ‘ an essential element in the GPE proceedings for which the information thereby obtained was intended’ , were aimed solely at protecting the insurer ’s pecuniary rights and preserving the evidence necessary for its defence in the proceedings . On the basis of those facts , ORG must be regarded as having acted within the limits of its discretionary powers when it found that the respondent had an overriding interest that made the interference lawful .

The impugned judgment shows that the insurer had doubts about the true extent of the injuries sustained by the appellant in the accident . In the light of the above principles and of the amount claimed ( MONEY ) , the insurer was entitled to conduct an investigation . Furthermore , the means employed ( surveillance , photographs and video recording ) were appropriate for the aim pursued . Admittedly , any impairment of a person ’s physical condition can be established by medical evidence and indeed the appellant underwent a medical examination . However , a medical examination constitutes first and foremost a theoretical medical assessment , while the effects of damage to physical integrity may also be assessed by reference to the sufferer ’s actual DATE and working life . In the circumstances , the surveillance carried out by the respondent DATE which amounted to CARDINAL investigations each lasting DATE and staggered over a period of DATE and the pictures taken of the appellant as part of those investigations do not appear to be disproportionate either . In any event , the cantonal court clearly was acting within the bounds of its discretion when it found that the interference was justified .

( CARDINAL ) In conclusion , to the extent that it is admissible , the application must be dismissed and the impugned judgment upheld . ”

LAW lays down the principle of protection of personality rights . It reads as follows :

“ Anyone who suffers an unlawful interference with their personality rights may apply to the courts for protection against any person who has participated therein .

An interference will be unlawful unless it is justified by the consent of the victim , an overriding private or public interest or statute . ”

Article CARDINAL(a ) sets out the remedies available to anyone who claims to have sustained damage as a result of a violation of their personality rights :

“ The applicant may request the court to :

( CARDINAL ) prohibit an unlawful interference , if imminent ;

( CARDINAL ) NORP order that any continuing unlawful interference shall cease ;

( CARDINAL ) make a declaration that an interference is unlawful if the harm which it has caused continues to subsist . ”

The applicant lodged a criminal complaint for , inter alia , “ an interference with [ her ] private life ” against the private detectives and the representatives of the insurance company . LAW of LAW makes it an offence to use a camera to encroach upon a person ’s personal or private life :

“ It shall be an offence punishable by imprisonment or a fine following a complaint to use a camera to observe , or image - recording equipment to record , any matter pertaining to a person ’s personal life or , if it would not be in public view but for the camera or equipment , to his or her private life , without the consent of the person concerned . ”


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)

The applicant was born in DATE and lives in GPE .

The applicant used to work as secretary on contractual basis at ORG of ORG in GPE attached to ORG .

On DATE the ORG annulled the contract .

On DATE the applicant lodged a compensation case with ORG against ORG for her labour claims .

On DATE the labour court issued a decision of non - jurisdiction which was upheld by ORG on DATE .

Upon the decision of non - jurisdiction , on DATE the applicant brought compensation proceedings before ORG for her labour claims , such as bonus , notice and severance pay .

On DATE the court issued a decision of non - jurisdiction and transferred the case to ORG .

On DATE ORG quashed the decision of DATE holding that the matter fell within the jurisdiction of it .

On DATE ORG dismissed the case as introduced out of time . Without examining the merits of the case , it established that DATE time - limit to bring compensation action before the administrative court had expired on DATE whereas the applicant lodged her case with the court on DATE .

In her appeal petition of CARDINAL DATE the applicant challenged the judgment of the administrative court and requested a hearing in the appeal proceedings .

On DATE ORG upheld the judgment of DATE , finding it to have been in accordance with the law and the procedural rules . It decided that it was not necessary to hold a hearing .

On DATE ORG dismissed a request by the applicant for rectification of the judgment .

On DATE the decision was served on the applicant .