Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-a - After conviction);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Independent tribunal);Violation of Article 5 - Right to liberty and security (Article 5-4 - Take proceedings)

Luzius Wildhaber;Nicolas Bratza;Paul Mahoney

The applicant was born in DATE .

On DATE , when he was DATE , he and another DATE boy , “ T. ” ( the applicant in case no . CARDINAL/CARDINAL ) , had played truant from school and abducted a DATE boy from a shopping precinct , taken him on a journey of QUANTITY and then battered him to death and left him on a railway line to be run over .

The applicant and ORG were arrested in DATE and detained pending trial .

Their trial took place DATE in DATE , in public , at ORG before a judge and CARDINAL jurors . In DATE preceding the trial , each applicant was taken by social workers to visit the courtroom and was introduced to trial procedures and personnel by way of a “ child witness pack ” containing books and games .

The trial was preceded and accompanied by massive national and international publicity . Throughout the criminal proceedings , the arrival of the defendants was greeted by a hostile crowd . On occasion , attempts were made to attack the vehicles bringing them to court . In the courtroom , the press benches and public gallery were full .

The trial was conducted with the formality of an adult criminal trial . The judge and counsel wore wigs and gowns . The procedure was , however , modified to a certain extent in view of the defendants ' age . They were seated next to social workers in a specially raised dock . Their parents and lawyers were seated nearby . The hearing times were shortened to reflect DATE ( TIME , with an TIME 's lunch break ) , and a TIME interval was taken TIME . During adjournments the defendants were allowed to spend time with their parents and social workers in a play area . The judge made it clear that he would adjourn whenever the social workers or defence lawyers told him that CARDINAL of the defendants was showing signs of tiredness or stress . This occurred on CARDINAL occasion .

At the opening of the trial on DATE the judge made an order under LAW ( see paragraph CARDINAL below ) that there should be no publication of the names , addresses or other identifying details of the applicant or T. or publication of their photographs .

On DATE , the applicant 's counsel made an application for a stay of the proceedings , on the grounds that the trial would be unfair due to the nature and extent of the media coverage . After hearing argument , the judge found that it was not established that the defendants would suffer serious prejudice to the extent that no fair trial could be held . He referred to the warning that he had given to the jury to put out of their minds anything which they might have heard or seen about the case outside the courtroom .

PERSON , of ORG , interviewed the applicant and his parents on behalf of the defence in DATE , although he did not give evidence at the trial . He found that PERSON showed post - traumatic effects and extreme distress and guilt , with fears of punishment and terrible retribution . PERSON found it very difficult and distressing to think or talk about the events in question and it was not possible to ascertain many aspects . The doctor found that he showed evidence of immaturity , behaving in many ways like a younger child emotionally , and recommended that , whatever happened , he was likely to need therapeutic care in a residential context .

During the trial , the prosecution presented evidence for the purpose of establishing that the CARDINAL defendants were criminally responsible for their actions in that they knew that what they were doing was wrong ( see paragraph CARDINAL below ) .

The court heard evidence from Dr PERSON , a consultant psychiatrist from ORG , who had written a report on the applicant on behalf of the ORG . PERSON gave evidence that the applicant presented as a child of average intelligence , and would have been able in DATE to distinguish between right and wrong . He would have known that it was wrong to take a child from his mother , injure him and leave him on a railway line . She had seen the applicant on a number of occasions . On each occasion , he had cried inconsolably and shown signs of distress . He was not able to talk about the events in issue in any useful way .

The prosecution also called the headmistress at the school attended by the CARDINAL boys . She stated that from DATE and CARDINAL children were aware that it was wrong to strike another child with a weapon . She stated that PERSON and the applicant would have been aware that what they were doing was wrong . Another teacher gave evidence to the same effect .

In addition , evidence was given by persons who had witnessed ORG and the applicant in the shopping centre from which the DATE boy was taken and who had seen the QUANTITY boys at various points between the shopping centre and the vicinity of the railway line , where the body was later found . The tapes of the interviews of the police with T. and the applicant were replayed in court . Neither the applicant nor PERSON gave evidence .

In his summing - up to the jury the trial judge noted that witnesses had arrived in court in a blaze of publicity and many had faced a bevy of photographers . They had had to give evidence in a large court packed with people and not surprisingly several of them were overcome with emotion and some had had difficulty in speaking audibly . This was CARDINAL of the factors to be borne in mind in assessing their evidence . He instructed the jury , inter alia , that the prosecution had to prove beyond reasonable doubt , in addition to the ingredients of the offences charged , that the applicant and T. knew that what they were doing was wrong .

On DATE the jury convicted PERSON and the applicant of murder and abduction . Neither applicant made any appeal to ORG against his conviction .

Following their conviction , the judge modified the order under LAW ( see paragraph CARDINAL above ) to allow the applicant and ORG 's names , but no other details , to be published . DATE their names , photographs and other particulars were published in newspapers throughout the country . On DATE the judge granted an injunction restraining , inter alia , the publication of the addresses where the boys were being detained or any other detail which could lead to information about their whereabouts , care or treatment being revealed .

In DATE the applicant was interviewed again by Dr GPE for the purposes of the judicial review proceedings ( see below ) . The doctor noted , inter alia , that PERSON was suffering from very high levels of fear that he would be attacked or punished for his actions . When the trial was mentioned , the applicant had described his sense of shock when he had seen the public being let in and his considerable distress when his name and photograph were published . He had been terrified of being looked at in court and had frequently found himself worrying what people were thinking about him . Most of the time he had not been able to participate in the proceedings and had spent time counting in his head or making shapes with his shoes because he could not pay attention or process the whole proceedings . He did not follow when he heard his and ORG 's interviews with the police being played in court and he recalled crying at that time .

PERSON commented that :

“ In my view , because of his immaturity , and his age when the act was committed and when he was tried , [ ORG ] did not have the capacity to fully take in the process of the trial except for the major actions for which he was responsible . ... [ W]hether ... he had an understanding of the situation such that he could give an informed instruction to his lawyer to act on his behalf ... is , in my view , very doubtful given his immaturity . Although he was chronologically over DATE at the time of his action , I am in no doubt that he was less mature than this as far as psychological or emotional age was concerned . ”

In a report by PERSON ( see paragraph CARDINAL above ) dated DATE , it was noted that until the trial the events during the offence were with the applicant CARDINAL per cent of the time and especially every night during the trial . It took him DATE to get over the trial itself . He still thought of it every night . He had been most scared when in the magistrates ' court on the first occasion . After DATE at ORG he had felt all right because he played with his hands and stopped listening . He had to stop listening because they played the police interviews with him and T. in front of everyone as if they were shouting it out . The press were laughing at him and he could tell from the faces of the jury that they would find him guilty . He still did not understand why the trial had been so long .

In a report on the applicant dated DATE , Sir PERSON , Professor of ORG at ORG , ORG , observed :

“ I have also been asked to comment on the likely mental and emotional effects on children in general , and on [ ORG ] in particular , of the prolonged trial process being in public . In my opinion there are CARDINAL negative aspects of the trial process as they apply to children of [ ORG 's ] age . First , one serious consequence of the long time involved in a trial means that there is an inevitable delay in providing the psychological care and therapeutic help that is needed . A child of DATE of psychological development still to come and it is most important that there is not a prolonged hiatus when this is impeded by the trial process . In particular , when children have committed a serious act , such as killing another child , it is most important that they are able to come to terms with the reality of what they have done and with all that that means . That is not possible at a time when a trial is still under way and guilt has still to be decided by the court . Thus , I conclude that the very prolonged nature of the trial process is bound to be deleterious for a child as young as QUANTITY or eleven ( or even older ) .

The fact that the trial process is held in public and that the negative public reactions ( often extreme negative reactions ) are very obvious is a further potentially damaging factor . While it is crucially important for young people who have committed a serious act to accept both the seriousness of what they have done and the reality of their own responsibilities in the crime , this is made more difficult by the public nature of the trial process ... ”

Following the applicant and ORG 's conviction for murder , the judge sentenced them , as required by law , to detention during Her Majesty 's pleasure ( see paragraph CARDINAL below ) .

He subsequently recommended that a period of DATE be served by the boys to satisfy the requirements of retribution and deterrence ( the “ tariff ” – see paragraphs CARDINAL below ) . He commented that he could not determine the boys ' relative culpability , and stated :

“ Very great care will have to be taken before either defendant is allowed out into the general community . Much psychotherapeutic , psychological and educational investigation and assistance will be required .

Not only must they be fully rehabilitated and no longer a danger to others but there is a very real risk of revenge attacks upon them by others .

... If the defendants had been adults I would have said that the actual length of deterrence necessary to meet the requirements of retribution and general deterrence should have been DATE .

However these CARDINAL boys came from homes and families with great social and emotional deprivation . They grew up in an atmosphere of matrimonial breakdown where they were exposed to , saw , heard , or suffered abuse , drunkenness and violence . I have no doubt that both boys saw video films frequently showing violent and aberrant activities .

In my judgment the appropriate length of detention necessary to meet the requirement of retribution and general deterrence for the murder , taking into account all its appalling circumstances and the age of the defendants when it was committed is DATE ... . DATE is ' very very many years ' for a DATE . They are now children . In DATE time they will be young men . ”

The Lord Chief Justice recommended a tariff of DATE . The applicant 's representatives made written representations to the Home Secretary , who was to fix the tariff period .

By a letter dated DATE , the Secretary of ORG informed the applicant that the family of the deceased child had submitted a petition signed by CARDINAL people urging him to take account of their belief that the boys should never be released , accompanied by CARDINAL letters of support from the public ; that a Member of ORG had submitted a petition signed by CARDINAL people calling for a minimum of DATE to be served ; that CARDINAL coupons from the PERSON newspaper supporting a whole life tariff and a further CARDINAL letters and small petitions had been received of which CARDINAL wanted a higher tariff than the judicial recommendations .

The applicant 's solicitors were given an opportunity to submit further representations to the Secretary of ORG .

By a letter dated DATE , the Secretary of ORG informed the applicant that he should serve a period of DATE in respect of retribution and deterrence . The letter stated , inter alia :

“ In making his decision , the Secretary of ORG had regard to the circumstances of the offence , the recommendations received from the judiciary , the representations made on your behalf and the extent to which this case could be compared with other cases . He also has regard to the public concern about this case , which was evidenced by the petitions and other correspondence the substance of which were disclosed to your solicitors by our letter of DATE , and to the need to maintain public confidence in the system of criminal justice .

The Secretary of ORG takes fully into account the fact that you were DATE when the offence was committed . He further acknowledges that a much lesser tariff should apply than in the case of an adult .

The Secretary of ORG notes the representations which were made on your behalf regarding the relative culpability of yourself and your co - defendant . The Secretary of ORG notes that the trial judge was unable to determine this . The Secretary of ORG has reached the same conclusion .

The recommendations made by the trial judge and the Lord Chief Justice were that the appropriate tariff should be DATE , and DATE respectively . The trial judge added that if the defendants had been adults then the appropriate tariff would have been DATE . The Secretary of ORG has had regard to these views . He takes the view that this was an exceptionally cruel and sadistic offence against a very young and defenceless victim committed over a period of several hours . The Secretary of ORG believes that if the offence had been committed by an adult then the appropriate tariff would have been in the region of DATE and not DATE as suggested by the trial judge .

For these reasons , and bearing in mind your age when the offence was committed , the Secretary of ORG has decided to fix a tariff of DATE in your case . The Secretary of ORG is satisfied that such a tariff is consistent with the tariffs fixed in other cases .

The Secretary of ORG is prepared to consider any fresh representations which you or your representatives might wish to make about the length of the tariff and , in the light of such fresh representations , to reduce the tariff if appropriate . ”

PERSON DATE report ( see paragraph CARDINAL above ) stated that the applicant had been distraught when told of DATE recommendations . When he was informed that a DATE tariff had been fixed , he was devastated . He made comments that he would never be let out and had a preoccupation that he was like PERSON . He felt that his life was no longer worth living and there was no point going on .

The applicant instituted judicial review proceedings challenging , inter alia , the tariff which had been set by the Secretary of ORG as being disproportionately long and fixed without due regard to the needs of rehabilitation . Leave was granted on DATE .

On CARDINAL DATE ORG upheld part of the applicant 's claims . On DATE ORG dismissed the appeal of the Secretary of ORG . On DATE ORG by a majority dismissed the Secretary of ORG 's appeal and allowed the applicant 's cross - appeal . A majority of ORG found that it was unlawful for the Secretary of ORG to adopt a policy , in the context of applying the tariff system , which even in exceptional circumstances treated as irrelevant the progress and development of a child who was detained during Her Majesty 's pleasure . A majority of ORG also held that in fixing a tariff the Secretary of ORG was exercising a power equivalent to a judge 's sentencing power and that , like a sentencing judge , he was required to remain detached from the pressure of public opinion . Since the Secretary of ORG had misdirected himself in giving weight to the public protests about the level of the applicant 's tariff and had acted in a procedurally unfair way , his decision had been rendered unlawful ( see further paragraph CARDINAL below ) . The tariff set by the Secretary of ORG was accordingly quashed .

On DATE the Secretary of ORG informed ORG that , in the light of ORG judgment , he had adopted a new policy in relation to young offenders convicted of murder and sentenced to detention during Her Majesty 's pleasure , pursuant to which , inter alia , he would keep the tariff initially set under review in the light of the offender 's progress and development . The Secretary of ORG invited the applicant 's representatives to make representations to him with regard to the fixing of a fresh tariff .

At the time of the adoption of this judgment , no decision has been taken in respect of the applicant 's tariff . The Government in their memorial informed the ORG that although the applicant ORG had submitted representations regarding the appropriate length of tariff , similar representations were still awaited in respect of T. , and the Home Secretary was in addition seeking independent psychiatric advice regarding both detainees .

Pursuant to section CARDINAL of ORG as amended by section CARDINAL(CARDINAL ) of ORG DATE ( “ the DATE LAW ) , the age of criminal responsibility in GPE and GPE is DATE , below which no child can be found guilty of a criminal offence . The age of DATE was endorsed by ORG ( composed of Members of ORG ) in DATE ( ORG , Sixth Report of the Session DATE , Her ORG ) . At the time of the applicant 's trial , a child DATE was subject to a presumption that he did not know that what he was doing was wrong ( doli incapax ) . This presumption had to be rebutted by the prosecution proving beyond reasonable doubt that , at the time of the offence , the child knew that the act was wrong as distinct from merely naughty or childish mischief ( C. ( a minor ) v. the Director of Public Prosecutions [ DATE ] Appeal Cases CARDINAL ) .

The doli incapax presumption has since been abolished with effect from DATE ( section CARDINAL of LAW DATE ) .

Pursuant to section CARDINAL of the Magistrates ' Courts Act DATE , children and young persons DATE must be tried summarily in the magistrates ' court , where the trial usually takes place in the specialist youth court , which has an informal procedure and from which the general public are excluded . The exceptions are children and young persons charged with murder , manslaughter or an offence punishable if committed by an adult with DATE imprisonment , who are tried in ORG before a judge and jury .

Where a child is tried in the youth court , section DATE of LAW imposes an automatic prohibition restraining the media from reporting the child 's name or personal details or from publishing his photograph or any other information which might lead to his identification . The court has a discretion to dispense with the restriction following conviction if it considers it in the public interest to do so .

Where a child is tried in ORG , there is no restriction on the reporting of the proceedings unless the trial judge makes an order under section CARDINAL of LAW , which provides :

“ ( CARDINAL ) In relation to any proceedings in any court ... the court may direct that –

( a ) no newspaper report of the proceedings shall reveal the name , address or school , or include any particulars calculated to lead to the identification of any child or young person concerned in the proceedings , either as being the person by or against or in respect of whom the proceedings are taken , or as being a witness therein ;

( b ) no picture shall be published in any newspaper as being or including a picture of any child or young person so concerned in the proceedings as aforesaid ;

except in so far ( if at all ) as may be permitted by the direction of the court .

( CARDINAL ) NORP person who publishes any matter in contravention of any such direction shall on summary conviction be liable in respect of each offence to a fine ... ”

This provision was extended by section CARDINAL(CARDINAL ) of ORG DATE to cover sound and television broadcasts .

ORG interpreting section CARDINAL has held that , since ORG intentionally distinguished between trial in a youth court , where there is a presumption against publicity , and trial in ORG , where the presumption is reversed , there should be a good reason for the making of an order under section CARDINAL of LAW ( NORP v. PERSON ( a minor ) CARDINAL Criminal Appeal Reports CARDINAL ) .

An accused is “ unfit to plead ” if by reason of a disability , such as mental illness , he has “ insufficient intellect to instruct his solicitors and counsel , to plead to the indictment , to challenge jurors , to understand the evidence , and to give evidence ” ( NORP v. PERSON Appeal Reports CARDINAL ) . The question whether or not a defendant is fit to plead must be decided by a jury upon the written or oral evidence of CARDINAL medical experts . Where a jury has found the defendant unfit to plead , either the same or another jury may be required to proceed with the trial and decide whether the accused did the act or made the omission charged against him as the offence , in which case the court may make a hospital order against him ( Criminal Procedure ( Insanity ) Act DATE , sections CARDINAL , CARDINAL and CARDINAL ) . Alternatively , the trial may be postponed indefinitely until the accused is fit to plead .

In the case of ORG v. the ORG ( [ DATE ] CARDINAL Weekly Law Reports CARDINAL ) , ORG quashed the conviction of an uneducated peasant from GPE in southern GPE who had been sentenced to death for murder after a trial in GPE conducted in a language he did not understand and where the evidence was not translated for him by an interpreter . ORG stated , inter alia :

“ It is an essential principle of the criminal law that a trial for an indictable offence should be conducted in the presence of the defendant . The basis of this principle is not simply that there should be corporeal presence but that the defendant , by reason of his presence , should be able to understand the proceedings and decide what witnesses he wishes to call , whether or not to give evidence and if so , upon what matters relevant to the case against him . ”

In GPE and GPE , adults convicted of murder are subject to mandatory life imprisonment ( Murder ( Abolition of Death Penalty ) Act DATE ) . Adults convicted of certain violent or sexual offences , for example manslaughter , rape or robbery , may be sentenced to life imprisonment at the discretion of the trial judge , if he or she considers that ( i ) the offence is grave and ( ii ) there are exceptional circumstances which demonstrate that the offender is a danger to the public and that it is not possible to say when that danger will subside .

Offenders under DATE who are convicted of murder are automatically to be detained during Her ORG 's pleasure , in accordance with section CARDINAL(CARDINAL ) of ORG as amended ) , which provides :

“ A person convicted of an offence who appears to the court to have been under DATE at the time the offence was committed shall not , if he is convicted of murder , be sentenced to imprisonment for life nor shall sentence of death be pronounced on or recorded against any such person but in lieu thereof the court shall ... sentence him to be detained during Her ORG 's pleasure , and if so sentenced he shall be liable to be detained in such a place and under such conditions as the Secretary of ORG may direct . ”

Until DATE a child or young person detained during Her Majesty 's pleasure will be held at a children 's home or other institution providing facilities appropriate to his age . At DATE the detainee becomes liable to be transferred to a Young Offenders ' Institution and , at DATE , to detention in the same institution as an adult sentenced to life imprisonment for murder .

At the time of the applicant 's conviction , the effect of the sentence of detention during Her ORG 's pleasure was that the child or young person was detained for an indeterminate period , the duration of which was wholly within the discretion of the ORG Secretary . The Secretary of ORG had a discretion to refer the case of a detained child to ORG for its advice and , if so advised by ORG , had a discretion to decide to order the child 's release ( Criminal Justice Act DATE ( “ the DATE LAW ) , sections PERSON ) and ( CARDINAL ) and CARDINAL ) ; see the speech of Lord PERSON in ORG , NORP v. Secretary of ORG for ORG , ex parte PERSON and CARDINAL [ DATE ] Appeal Cases CARDINAL at p. CARDINAL - F , hereafter “ Ex parte V. and NORP ” ) .

On DATE section CARDINAL of ORG was brought into force in order to implement the judgments of ORG in the PERSON and PERSON cases ( PERSON v. the GPE judgment of DATE , Reports of Judgments and Decisions CARDINAL-I , p. CARDINAL , and PERSON v. the GPE judgment of DATE , Reports CARDINAL-I , p. CARDINAL ) . The section provides that , after the tariff period has expired ( see paragraphs CARDINAL below ) , it shall be for ORG , and not , as previously , for the Secretary of ORG , to decide whether it is safe to release on licence an offender serving a sentence of detention during Her Majesty 's pleasure for an offence of murder committed before DATE .

A person detained during Her Majesty 's pleasure who is released on licence is liable to be recalled throughout his or her life , subject to the decision of ORG .

NORP Over DATE , the Secretary of ORG has adopted a “ tariff ” policy in exercising his discretion whether to release offenders sentenced to life imprisonment . This was first publicly announced in ORG by Mr PERSON on DATE ( ORG ) cols . CARDINAL - CARDINAL ) . In essence , the tariff approach involves breaking down the life sentence into component parts , namely retribution , deterrence and protection of the public . The “ tariff ” represents the minimum period which the prisoner will have to serve to satisfy the requirements of retribution and deterrence . The Home Secretary will not refer the case to ORG until DATE the expiry of the tariff period , and will not exercise his discretion to release on licence until after the tariff period has been completed ( per Lord PERSON , Ex parte V. and T. , op . cit . , at pp . CARDINAL ) .

Pursuant to section CARDINAL of the CARDINAL Act , the tariff of a discretionary life prisoner is fixed in open court by the trial judge after conviction . After the tariff has expired , the prisoner may require the Secretary of ORG to refer his case to ORG which has the power to order his release if it is satisfied that it is no longer necessary to detain him for the protection of the public .

A different regime , however , applies under LAW to persons detained during Her LOC 's pleasure or serving a mandatory sentence of life imprisonment . In relation to these prisoners , the Secretary of ORG decides the length of the tariff . The view of the trial judge is made known to the prisoner after his trial , as is the opinion of the Lord Chief Justice . The prisoner is afforded the opportunity to make representations to the Secretary of ORG who then proceeds to fix the tariff and is entitled to depart from the judicial view ( NORP v. Secretary of ORG for ORG , ex parte Doody [ DATE ] CARDINAL Appeal Cases CARDINAL ; and see the ORG Secretary , PERSON PERSON , policy statement to ORG , DATE , ORG ) cols . CARDINAL - CARDINAL ) .

In the judicial review proceedings brought by the applicant ( Ex parte V. and ORG , op . cit . ) , ORG gave consideration , inter alia , to the nature of the tariff - fixing exercise in respect of sentences of detention during Her Majesty 's pleasure .

Lord PERSON held :

“ The starting point must to be inquire into the nature of the power to fix a tariff which the Home Secretary exercises . Writing on behalf of the Home Secretary ORG explained that : ' The Home Secretary must ensure that , at all times , he acts with the same dispassionate fairness as a sentencing judge . ' The comparison between the position of the Home Secretary , when he fixes a tariff representing the punitive element of the sentence , and the position of the sentencing judge is correct . In fixing a tariff the Home Secretary is carrying out , contrary to the constitutional principle of the separation of powers between the executive and the judiciary , a classic judicial function . ORG entrusted the underlying statutory power , which entailed a discretion to adopt a policy and fix a tariff , to the ORG Secretary . But the power to fix a tariff is nevertheless equivalent to a judge 's sentencing power . ”

Lord Hope held :

“ But the imposition of a tariff , which is intended to fix the minimum period in custody is , in itself , the imposition of a form of punishment . This has , as Lord PERSON observed in NORP v. Secretary of ORG for ORG , ex parte Doody at p. CARDINAL - B , the characteristics of an orthodox judicial exercise , which is directed to the circumstances of the offence and those of the offender and to what , having regard to the requirements of retribution and deterrence , is the appropriate minimum period to be spent in custody . The judge , when advising the Secretary of ORG about the tariff , must and does confine his attention to these matters ...

If the Secretary of ORG wishes to fix a tariff for the case DATE in order to replace the views of the judiciary with a view of his own about the length of DATE he must be careful to abide by the same rules ... ”

Lord Hope also commented on the imposition of a tariff on a child offender :

“ A policy which ignores at any stage the child 's development and progress while in custody as a factor relevant to his eventual release date is an unlawful policy . The practice of fixing the penal element as applied to adult mandatory life prisoners , which has no regard to the development and progress of the prisoner during this period , can not be reconciled with the requirement to keep the protection and welfare of the child under review throughout the period while he is in custody . ”

Lord PERSON stated , inter alia :

“ ... if the Secretary of ORG implements a policy of fixing a penal element of the sentence of a mandatory prisoner pursuant to his discretionary power under LAW , he is to this extent exercising a function which is closely analogous to a sentencing function with the effect that , when doing so , he is under a duty to act under the same restraints as a judge will act when exercising the same function . In particular , should he take into account public clamour directed towards the decision in the particular case which he has under consideration , he will be having regard to an irrelevant consideration which will render the exercise of his discretion unlawful .

In so holding I wish to draw a distinction in the present context between public concern of a general nature with regard to , for example , the prevalence of certain types of offence , and the need that those who commit such offences should be duly punished ; and public clamour that a particular offender whose case is under consideration should be singled out for severe punishment ... ”

On DATE the Secretary of ORG announced that , in the light of ORG decision , he would adopt the following policy in respect of fixing the tariff for young offenders convicted of murder and detained during Her Majesty 's pleasure :

“ I shall continue to seek the advice of the trial judge and that of the Lord Chief Justice in deciding what punishment is required in any case of a person convicted under section CARDINAL(CARDINAL ) of the Children and Young Persons Act DATE . I shall then set an initial tariff with that advice , and the offender 's personal circumstances , in mind ; I shall continue to invite representations on the prisoner 's behalf and give reasons for decisions .

Officials in my ORG will receive DATE reports on the progress and development of young people sentenced under section CARDINAL(CARDINAL ) whose initial tariff has yet to expire . Where there appears to be a case for considering a reduction in tariff , that will be brought to the attention of Ministers .

When CARDINAL of the initial tariff period has expired , I , or a Minister acting on my behalf , will consider a report on the prisoner 's progress and development , and invite representations on the question of tariff , with a view to determining whether the tariff period originally set is still appropriate ... ”

The Beijing Rules were adopted by ORG on DATE . These Rules are not binding in international law ; in the Preamble , States are invited , but not required , to adopt them . They provide , as relevant :

“ CARDINAL . Age of criminal responsibility

CARDINAL NORP In those legal systems recognising the concept of the age of criminal responsibility for juveniles , the beginning of that age shall not be fixed at too low an age level , bearing in mind the facts of emotional , mental and intellectual maturity .

Commentary

The minimum age of criminal responsibility differs widely owing to history and culture . The modern approach would be to consider whether a child can live up to the moral and psychological components of criminal responsibility ; that is , whether a child , by virtue of her or his individual discernment and understanding , can be held responsible for essentially antisocial behaviour . If the age of criminal responsibility is fixed too low or if there is no lower age limit at all , the notion of criminal responsibility would become meaningless . In general , there is a close relationship between the notion of responsibility for delinquent or criminal behaviour and other social rights and responsibilities ( such as marital status , civil majority , etc . ) .

Efforts should therefore be made to agree on a reasonable lowest age limit that is applicable internationally .

Protection of privacy

CARDINAL NORP The juvenile 's privacy shall be respected at all stages in order to avoid harm being caused to her or him by undue publicity or by the process of labelling .

CARDINAL In principle , no information that may lead to the identification of a juvenile offender shall be published .

Guiding principles in adjudication and disposition

CARDINAL NORP The disposition of the competent authorities shall be guided by the following principles :

( a ) NORP The reaction taken shall always be in proportion not only to the circumstances and gravity of the offence but also to the circumstances and the needs of the child as well as to the needs of the society ;

( b ) ORG on the personal liberty of the juvenile shall be imposed only after careful consideration and shall be limited to the possible minimum ;

( d ) The well - being of the juvenile shall be the guiding factor in the consideration of her or his case .

Commentary

Rule CARDINAL ) implies that strictly punitive approaches are not appropriate . Whereas in adult cases , and possibly also in cases of severe offences by juveniles , just desert and retributive sanctions might be considered to have some merit , in juvenile cases such considerations should always be outweighed by the interest of safeguarding the well - being and future of the young person .

This treaty ( hereafter “ the ORG Convention ” ) , adopted by ORG of ORG on DATE , has binding force under international law on GPE , including all of the member ORG .

LAW states :

“ In all actions concerning children , whether undertaken by public or private social welfare institutions , courts of law , administrative authorities or legislative bodies , the best interests of the child shall be a primary consideration . ”

LAW a ) and ( b ) provides :

“ GPE Parties shall ensure that :

( a ) No child shall be subjected to torture or other cruel , inhuman or degrading treatment or punishment . Neither capital punishment nor life imprisonment without the possibility of release shall be imposed for offences committed by persons DATE ;

( b ) No child shall be deprived of his or her liberty unlawfully or arbitrarily . The arrest , detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time ... ”

Article CARDINAL provides , as relevant :

“ CARDINAL . DATE States Parties recognise the right of every child alleged as , accused of , or recognised as having infringed the penal law to be treated in a manner consistent with the promotion of the child 's sense of dignity and worth , which reinforces the child 's respect for the human rights and fundamental freedoms of others and which takes into account the child 's age and the desirability of promoting the child 's reintegration and the child 's assuming a constructive role in society .

To this end ... the GPE Parties shall , in particular , ensure that :

( b ) Every child alleged as or accused of having infringed the penal law has at least the following guarantees :

( vii ) To have his or her privacy fully respected at all stages of the proceedings .

DATE States Parties shall seek to promote the establishment of laws , procedures , authorities and institutions , specifically applicable to children alleged as , accused of , or recognised as having infringed the penal law , and , in particular :

( a ) The establishment of a minimum age below which children shall be presumed not to have the capacity to infringe the penal law ;

( b ) Whenever appropriate and desirable , measures for the dealing with such children without resorting to judicial proceedings , providing that human rights and legal safeguards are fully respected .

In its concluding observations in respect of GPE CRC / C/CARDINAL/add . DATE ) dated DATE , ORG set up by ORG to monitor compliance with LAW stated , inter alia :

“ CARDINAL . The ORG recommends that law reform be pursued to ensure that the system of the administration of juvenile justice is child - oriented ...

More specifically , the ORG recommends that serious consideration be given to raising the age of criminal responsibility throughout the areas of GPE ... ”

The LAW provides in LAW , which broadly corresponds to LAW , that :

“ In the case of juvenile persons , the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation . ”

The above recommendation , adopted by ORG on DATE , states , inter alia :

“ ORG , under the terms of Article CARDINAL.b of the Statute of the Council of Europe ,

Considering that social reactions to juvenile delinquency should take account of the personality and specific needs of minors , and that the latter need specialised interventions and , where appropriate , specialised treatment , based in particular on the principles embodied in LAW ;

Convinced that the penal system for minors should continue to be characterised by its objective of education and social integration ... ;

Having regard to ORG ( the Beijing Rules ) ,

Recommends the governments of member states to review , if necessary , their legislation and practice with a view :

NORP to ensuring that minors are tried more rapidly , avoiding undue delay , so as to ensure effective educational action ;

to avoiding committing minors to adult courts , where juvenile courts exist ;

to reinforcing the legal position of minors throughout the proceedings ... by recognising , inter alia :

the right of juveniles to respect for their private lives ;

The age of criminal responsibility is CARDINAL in GPE , GPE , GPE and GPE ; CARDINAL in GPE ; CARDINAL in GPE ; CARDINAL in GPE , GPE , GPE and many eastern NORP countries ; CARDINAL in the NORP countries ; CARDINAL in GPE , GPE and GPE ; and CARDINAL in GPE , GPE and GPE .


Remainder inadmissible;No violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Non-pecuniary damage - award

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens

The applicants are :

( CARDINAL ) Mr PERSON , who was born in DATE ;

( CARDINAL ) Ms Anna Ivanovna Chaplyga , born in DATE ;

( CARDINAL ) Ms Marina PERSON , born in DATE ;

( CARDINAL ) PERSON Punt ( at the material time PERSON ) , born in DATE ;

( CARDINAL ) Mr PERSON , born in DATE ;

( CARDINAL ) Mr PERSON , born in DATE ;

( CARDINAL ) Mr PERSON Onopriyenko , born in DATE ;

( CARDINAL) Mr PERSON GPE , born in DATE ;

( CARDINAL ) Mr PERSON Dombrovskiy ( at the material time PERSON ) , born in DATE ;

( CARDINAL ) Mr Toomas Punt , born in DATE ; and

( CARDINAL ) Miss PERSON , born in DATE .

The fifth applicant lives in GPE and all the remaining applicants live in GPE .

The eleventh applicant , PERSON , is the daughter of the fourth and tenth applicants , PERSON and Mr Toomas Punt , who have brought the application on her behalf . She was born in GPE on DATE and at the material time she was DATE and DATE .

The applicants were employed by a NORP travel company as catering and hotel staff on the cruise ship ORG , a vessel registered in GPE . On DATE the ship arrived and anchored in FAC in GPE with CARDINAL crew members and CARDINAL passengers aboard .

On DATE the ship was placed under arrest and forbidden from sailing by a court order , pending proceedings brought by crew members before ORG jurisdiction ; hereinafter “ the ORG ” ) claiming unpaid wages from the ship and its owners . DATE applicants also instituted like proceedings in DATE . They were represented by a NORP lawyer . It appears that the crew members who had initiated proceedings before ORG were not represented by the same lawyers and that the crew members , including the CARDINAL applicants , who were working as hotel and casino staff were represented by a different lawyer from the captain and other crew members who were employed by the ship 's owners .

Following the ship 's arrest the applicants and other crew members were issued with landing permits allowing them to disembark . These stated that they were revocable at any time .

The ship 's passengers were repatriated in DATE following the arrest .

As the owners of the ship were unable to bear the expense of running the ship and meeting their financial obligations to the crew , on DATE ORG issued an order for the sale of the ship .

On DATE a public auction was held for the ship 's sale . CARDINAL offer was made . PERSON , who was responsible for supplying the remaining crew with the necessary facilities for their upkeep , considered , however , that the offer was far too low . Consequently , on DATE , he applied to ORG for directions . He suggested that the offer be rejected and raised the question of the crew 's stay on the ship as it was no longer possible to continue their upkeep in view of the cost involved .

By that time most of the crew members , who had instituted legal proceedings in GPE in respect of their wages , had been repatriated . In addition to the ship 's captain , CARDINAL crew members , including the applicants , continued to remain on board following the ship 's arrest .

By a decision of DATE , ORG rejected the offer that had been made for the purchase of the ship at the public auction as too low and gave directions concerning the matters raised by LAW . In particular , it directed PERSON to terminate by DATE at the latest , the ORG - sponsored supply of food to all persons aboard the ship with the exception of CARDINAL crew members who were considered by him and the ship 's captain to constitute the “ minimum security crew ” . It further instructed that , with the exception of these CARDINAL crew members , ORG should make the necessary arrangements for the remaining crew 's repatriation . The relevant part of the court record provides as follows :

Court : ... Further , [ the Admiralty Marshal ] raises a question about the stay of the crew , since their continued maintenance will no longer be possible in view of the cost involved . You have been informed as interested parties , so you can express your views .

( The advocates are heard )

Court : In view of all the facts before me , the offer of USD MONEY is too low to be accepted . Consequently it is rejected .

Further , having taken into consideration everything that has been said , I will conclude with instructions to LAW not to incur any further expenses for the maintenance or otherwise of any persons on the ship , with the exception of CARDINAL crew members who are considered by LAW , in cooperation with the captain , to constitute the minimum security crew . For them the payment of maintenance expenses will continue . I would not say that I did not have some reservations in connection with the question of the costs of repatriation .

The Admiralty Marshal shall proceed with the necessary arrangements to provide and effect repatriation by CARDINAL . It is understood that the claimants in action no . CARDINAL/CARDINAL will pay to LAW in connection with the proposal of [ the lawyer ] the sums which are needed and which will include apart from the ticket a sum in the order of CARDINAL for use as LOC thinks fit . It must be understood that after CARDINAL payments by ORG will cease in respect of any person on the ship over and above the CARDINAL [ minimum safety crew ] , regardless of the question of the progress of the matter of repatriation . ”

On DATE CARDINAL of the remaining crew members left for GPE . The captain and CARDINAL crew members , including the applicants and the CARDINAL members constituting the “ minimum safety crew ” , stayed on .

By a letter dated DATE , the ship 's captain informed PERSON that CARDINAL of the crew members ( including the first to tenth applicants ) who had remained on the ship , despite the directions of ORG , were misbehaving ( by refusing to obey orders and drinking alcohol TIME ) and creating problems . He stated that the situation on board was becoming worse every day and expressed his concerns about the risk of fire or other damage . He further informed the authorities that there were CARDINAL women on board , CARDINAL of whom was DATE pregnant while the other had a DATE baby . Finally , he requested the repatriation of the CARDINAL above - mentioned crew members . This included the applicants .

By a letter dated DATE , the Director of ORG informed LAW of the problems the ship had caused to the port 's operation and the difficulties that were likely to arise in relation to the crew 's welfare ( such as with the organisation of food supplies and heating ) . He requested the Marshal to find a solution to the problems to avoid any untoward developments .

In a letter dated DATE to the Director of the District Aliens and Immigration Branch of ORG , ORG stated :

“ ... I would inform you that CARDINAL crew members remain on board the ship LOC ( which has been under arrest since DATE ) , despite ORG instructions that only CARDINAL should remain . Repatriation tickets were offered to the additional CARDINAL crew members but they refused to leave the ship , thus causing serious problems for the captain , whose letter I enclose for your reference .

The CARDINAL [ crew members ] still unlawfully on the ship are referred to by name in the captain 's letter .

Please examine whether there are grounds for their expulsion from GPE , with costs to be covered by the law office which undertook this responsibility before the court ... ” .

On DATE the applicants ' landing permits were renewed until DATE .

By a letter dated DATE the ORG of the GPE Police informed the Director of ORG that the lawyer acting for the captain and other crew members who were employed by the ship 's owners had , in view of ORG decision , offered to purchase tickets for the repatriation of CARDINAL of the crew members who had stayed on board , including the applicants , and to give them MONEY ( ORG ) each before their repatriation . The lawyer was now waiting for instructions from the immigration authorities on this . In the letter it was also stated that in order to facilitate the DATE disembarkation of the remaining crew , their passports were being held at the port office and landing permits had been issued , which they could use whenever they disembarked or boarded the ship . Further , the GPE immigration authorities had suggested that detention and deportation orders be issued against the remaining crew members for notification as close as possible to the proposed date for deportation , in order to secure their repatriation . They had noted that the above - mentioned CARDINAL crew members were causing serious problems on board the ship on a DATE basis and would certainly not accept any of the authorities ' suggestions with regard to their disembarkation and repatriation without a violent reaction .

The Director of the Aliens and ORG agreed with the above recommendation and by a note dated DATE referred the matter to ORG . In the note the Director recommended that since the immigration authorities had no right to intervene on the vessel , deportation and detention orders should be issued , provided that the opinion of the Attorney - General was obtained beforehand .

On DATE the Director of ORG issued detention and deportation orders against the applicants on the basis of section PERSON ) of the Aliens and Immigration PERSON ( PERSON . CARDINAL , as amended ) on the ground that the applicants were prohibited immigrants under section CARDINAL(CARDINAL)(k ) of the Aliens and Immigration PERSON . The copies of the orders submitted by the Government are in the NORP language . The opinion of the Attorney - General was not sought .

On DATE , letters were prepared in LANGUAGE by ORG informing the applicants individually of the authorities ' decision to deport them and of the reasons for that decision , namely that their stay was illegal under section CARDINAL(CARDINAL)(l ) of the Aliens and Immigration PERSON .

On DATE members of the immigration authorities visited the ship and invited the applicants to attend the immigration police offices at FAC on DATE so that photographs could be taken for the renewal of their landing permits .

On DATE the applicants , who were accompanied by the ship 's captain , went to the immigration police offices at the port , where they were arrested . The female applicants were taken to a separate room , where they were searched . Their personal items , documents and mobile phones were seized . The police also searched the eleventh applicant 's pram . The male applicants were ordered to face the wall before being searched and handcuffed .

The applicants made several requests for permission to contact the NORP Consul or their lawyer but their requests were either ignored or rudely rejected . Furthermore , they were not served with any document explaining the reasons for their arrest and expulsion .

The first , third , DATE and tenth applicants ( Mr PERSON , Ms PERSON , Mr PERSON , PERSON and PERSON ) all state that the first applicant was punched in the forehead , forcibly held by the neck , forced to the ground and kicked unconscious after asking the police officers to provide documents or an explanation for their actions . The first applicant says that he lost consciousness only for a while .

The CARDINAL female applicants and the baby were taken by car to FAC . Before leaving the immigration office , the fourth applicant pleaded with the police officers to be allowed to fetch warm clothes for her baby but her request was refused . She was taken to the ship to collect her marriage certificate . The officer accompanying her did not allow her to take any warm clothing for her baby . She was then taken to the airport .

The CARDINAL male applicants were handcuffed in pairs and taken to the airport in a vehicle with bars on the windows . The first applicant was taken to the airport in a separate vehicle in which he remained handcuffed and was forced to lie on the floor until his arrival at the airport .

The applicants repeatedly asked to be allowed to collect their personal belongings , including warm clothes , which had been left on board the ship , but the authorities refused their requests . It was recorded on their tickets that they had no luggage .

The applicants were held for TIME at the airport and were then put on an aircraft bound for GPE in GPE . They were given back the documents and other items that had been taken from them at the immigration offices at the time of their arrest . They then immediately called their relatives in GPE and asked them to bring warm clothes to FAC .

During a stopover in GPE , all the applicants apart from the tenth applicant , who is an NORP national and did not live in that city , managed to persuade the airport and customs authorities to allow them to leave the plane in spite of the fact that they had been booked to fly to GPE . When they arrived in GPE , where the outside temperature was CARDINAL , all of them , including the baby , were still dressed in the light clothes they had worn in GPE , where the temperature was around QUANTITY As the airport was not equipped with movable passenger gangways the applicants left the aircraft via a ramp .

The tenth applicant was not allowed to leave the aircraft in GPE and had to travel on to GPE . After the intervention of LOC , he was allowed to enter GPE and to fly DATE to GPE on a ticket paid for by his wife .

On DATE , after his return to GPE , the first applicant ( Mr PERSON ) underwent a medical examination by a forensic medical expert . According to the report he had a head injury and ecchymosis ( ушибленная рана и кровоподтек головы ) , neck ecchymoses and abrasions in the area of the wrist joints . The report stated that the injuries had been inflicted by a blunt object ( тупым предметом ) DATE before the medical examination was carried out ( “ i.e . they might have been inflicted on DATE ” ) and could be classified as minor bodily injuries ( относяться к легким телесным повреждениям ) .

The applicants ' belongings which had been left on board the ship were sent to them in DATE with the help of the NORP Consul in GPE .

Members of LOC ORG had visited the ship and requested the applicants to accept repatriation , but the applicants had refused .

On DATE air tickets for GPE were secured for the applicants by the lawyer who was representing the captain and other crew members in the proceedings before ORG ( see paragraph CARDINAL above ) . The applicants were booked on a flight from GPE to GPE on DATE .

The applicants were invited to attend the immigration police offices at FAC TIME on DATE . The Government did not state the reason for this .

NORP The applicants went to the immigration police offices on the above date accompanied by the ship 's captain .

At the request of the police , the captain explained ORG decision to the applicants and the reasons why their repatriation was necessary . The applicants had refused to be repatriated and reacted to the suggestion aggressively . In this connection , the ORG relied on CARDINAL letters / reports prepared by LOC ORG dated DATE and DATE describing the relevant events ( see paragraphs DATE and CARDINAL below ) .

The authorities had then proceeded with the execution of the deportation orders . They had shown the applicants the deportation and detention orders from a distance in order to avoid their destruction and , with the help of the ship 's captain , a NORP national , and a LANGUAGE - speaking member of the police , had explained the reasons for their issue . The female applicants had then been taken to a separate room as there had been indications of an imminent violent reaction by the first applicant , Mr PERSON . He had become furious and attacked the police officers and , as a result , had been immobilised with handcuffs .

The applicants had then been searched and all their belongings , including their mobile phones , had been removed to prevent them from causing harm to the police , themselves or property .

All these items were returned to the applicants before they embarked on the aircraft .

The female and male applicants were separated . They were driven to the ship , from which they collected all their personal belongings . This included the baby 's belongings . The applicants had then been taken to FAC , from where they were deported at TIME One of the crew members , who had complained of chest pains , was not , however , deported but was taken to ORG for a medical examination . He was deported on CARDINAL DATE after it was ascertained at the hospital that there was nothing wrong with him . The first applicant had at no stage before leaving GPE complained to the authorities of any injuries .

The ship had remained under arrest until DATE .

In a report to the Director of the Aliens and ORG dated DATE , the Aliens and Immigration Branch of the Limassol Police stated :

“ ... On DATE detention and deportation orders were issued against the ... crew members of the cruise ship LOC .

DATE on DATE they came , at our invitation , to our office at the port together with their captain . ORG suggestion for them to be repatriated was explained to them . Their reaction was strong and after it had been explained to them that detention and deportation orders had already been made they left the authorities with no choice but to arrest them . CARDINAL of the crew members , PERSON , reacted violently and attacked and injured police officers CARDINAL and CARDINAL . Following the use of such force as was absolutely necessary , he was immobilised with handcuffs and taken with the others to FAC , from where they were deported to their country on flight VV CARDINAL ...

It has to be mentioned that as a result of the attack by the alien ( PERSON ) and the violent reaction to his arrest , policeman CARDINAL received superficial scratches whilst policeman CARDINAL suffered a bruise and blood contusion on his right ankle , was unable to put weight [ on that leg ] and walked with a limp . He was transferred to hospital and after treatment was granted sick leave until DATE . Following your briefing about the event no criminal proceedings were instituted against the alien to avoid delaying his deportation ... ”

Following the applicants ' deportation , the NORP Consul and ORG in GPE sent CARDINAL letters dated DATE respectively to the Minister of ORG of GPE requesting information as to the reasons for and conditions of the deportation of the crew members .

An exchange of correspondence followed between the various authorities on this issue .

In a report dated DATE to the Director of ORG , the NORP and Immigration Branch of the GPE Police stated :

After the decision of ORG , acting as an ORG , to repatriate the aliens , PERSON and the ship 's captain informed the crew members that they would have to be repatriated . On DATE the Admiralty Marshal and the ship 's captain informed our office that the crew members were refusing to comply with the captain 's instructions concerning their repatriation and were acting in a provocative manner . Fears were expressed that damage would be caused and/or that they would set fire to the ship . He requested understanding on the part of our service and help with their repatriation .

Members of our office visited the ship and spoke to the members of the crew . They explained the reasons why they were to be repatriated and provided all possible help , but it became clear that the aliens did not intend to accept their repatriation .

Taking into account the above and the captain 's fears of damage being caused to the ship , and although our office tried to convince the aliens to accept voluntary repatriation , the conclusion was reached that the only option was to deport them on the basis of detention orders .

When informed of all the details – the decision of ORG on the one hand , and the unacceptable , provocative behaviour of the CARDINAL crew members and their threats to the captain to set fire to the ship if any attempt to arrest and deport them was made , on the other – ORG [ Director of ORG ] proceeded to issue orders for their arrest and detention . Following our explanations concerning the explosive situation the CARDINAL crew members had created on the ship and their threats to set it alight , the lawyers ' office representing them ... , which was aware of ORG decision , secured tickets for their repatriation .

On DATE , in complete cooperation with the captain and after giving serious consideration to his concerns , our office asked the CARDINAL people concerned together with the other CARDINAL crew members and the captain to attend our office at the port . Following our request the captain explained to the assembled group that they did not have any other choice but to comply and accept repatriation .

I have to mention that , of the CARDINAL crew members , CARDINAL were women ... CARDINAL of them was the wife of [ Toomas Punt ] , PERSON . Immediately after they had been informed by the captain of ORG decision , they were led to a room some distance away because it became apparent that the intentions of the ship 's masseur PERSON did not exclude causing an incident involving the captain or our members ; infuriated , he had attacked our members and in our efforts to immobilise him injured police officers CARDINAL and DATE .

The CARDINAL women were put in cars without being aware of the incident that had occurred , and left for the airport after first being taken to the ship to collect their personal belongings . Handcuffs were used for the CARDINAL men ; they were taken to the ship to collect their personal belongings and from there to the airport for their departure . At the airport , CARDINAL of the men , PERSON , complained of chest pains and was transferred to ORG for tests and once it had been determined that he did not have anything was taken to the detention centre of ORG until DATE , when he left for his country . He stated that he had done this to avoid being deported .

Following a careful reading of your letter , it is observed that the allegations of the alien who was deported to a foreign country ( GPE ) have no basis since he was given sufficient time after receiving adequate explanations and chose to travel to GPE , where his wife comes from .

His personal belongings , those of his wife and their baby and those of the rest of the crew who were deported , were collected by them when they were taken to the ship DATE first the group of women and then the men – once they had collected their personal belongings , they were taken to FAC .

The members of our service , following the activation of the detention and deportation orders , and after being faced with violent and aggressive behaviour by the masseur , subjected all the members of the crew to a body search and took away any personal objects that could possibly be used for causing damage to themselves , us or the service cars . Among the objects that were taken were the mobile phones some had in their possession . All the objects were returned when the members of the crew boarded the aircraft . ... the above - mentioned alien , claimed that he was not informed of the reasons for his detention and that the detention and deportation orders were not shown to him ; these allegations are unfounded since the detention and deportation orders were shown to the crew members from a distance out of fear that they would be destroyed and the reasons for their deportation and arrest were explained to all of them by the LANGUAGE - speaking policemen ... from our unit whom they had injured and the captain . Their confinement to a detention room at FAC was required as there was no other option in view of the violent and aggressive behaviour of the aliens .

The confinement of the men and women in CARDINAL different groups until they boarded the plane was considered necessary under the circumstances . ”

Upon their arrival in GPE , the applicants lodged a petition with the NORP Parliamentary Ombudsman ( PERSON Верховної PERSON з прав людини – the NORP Ombudsman ) through ORG in which they complained of the degrading treatment they had received from the NORP authorities and a violation of their human rights .

By a letter dated DATE the NORP Ombudsman referred the applicants ' complaints to ORG ( hereinafter “ the NORP Ombudsman ” ) . The latter conducted an inquiry into the circumstances surrounding the applicants ' deportation . To that end , she requested ORG to forward written statements from the applicants ; she also considered , inter alia , the submissions and documents sent by the immigration and police authorities ( including the documents referred to in DATE and CARDINAL above ) and files from ORG , and met the applicants ' lawyer .

In her report of CARDINAL DATE the NORP Ombudsman came to the following conclusions :

( i ) There were no legal grounds for the issuing of the deportation orders against the applicants . According to section CARDINAL(CARDINAL)(k ) of the Aliens and Immigration PERSON , an immigrant was considered a “ prohibited immigrant ” if he entered or resided in the LOC contrary to the above statute and the relevant Regulations ( see paragraph CARDINAL below ) . From the evidence before her it emerged that the applicants had never entered or resided in GPE illegally and that there had never been any report of a violation of the Aliens and Immigration PERSON or the LAW . The applicants had been residing on a ship flying the NORP flag and moored in FAC , which suggested that for legal purposes they had been residing on NORP territory . According to LAW ( b ) of ORG ( see paragraph CARDINAL below ) , ship crew members who remained in a port of the Republic were not considered as residing in the Republic . The fact that the applicants had been coming ashore on a DATE basis after being granted a landing permit did not affect this . Given that for a deportation order to be issued , an alien had to be physically present in the country , the question that had to be asked was what were the true reasons behind the issue of the deportation orders against the applicants , bearing in mind that what had actually been sought was the departure of the applicants from the NORP ship , not from GPE .

( ii ) Neither the captain 's letter to the authorities nor the relevant police reports contained evidence to substantiate the allegations of disobedience on the part of the applicants vis - à - vis the local port authorities , the police or the law . The captain 's letter described the crew 's behaviour in a very general and broad manner . Although the possibility that the crew had committed disciplinary offences could not be excluded , there had been no mention of their having committed specific criminal offences which , under NORP law , would justify the involvement of the local authorities . Furthermore , in its decision of DATE , ORG had not ordered the applicants ' deportation but had merely required the food supplies to be stopped to all but CARDINAL of the crew members , practical travel arrangements to be made for the applicants ' repatriation and the relevant sums to be paid . ORG decision indicated that it had not excluded the possibility that the crew might not accept repatriation and had therefore ordered that their upkeep was to be terminated after DATE .

( iii ) The manner in which the deportation orders had been executed had violated the applicants ' rights to access to information , to be heard and to seek court or out - of - court protection ( see , in particular section PERSON ) of the Aliens and Immigration PERSON , and the Convention – paragraph CARDINAL below ) . The letters of DATE concerning the deportation orders had not been served on the applicants and they had therefore been unaware until DATE that their deportation was pending . The applicants had never been informed in writing of the decision of CARDINAL DATE to deport them , in breach of section PERSON ) of the Aliens and Immigration PERSON [ and LAW No . CARDINAL to the Convention ] .

( iv ) Knowing that they had no right to board the vessel , the police had assembled the applicants at the immigration police office under the false pretence that photographs would be taken to enable their landing permits to be renewed . This had amounted to deception , given that from the moment the applicants were assembled they had been arrested and treated in a degrading manner as if they were common criminals . ORG had no doubt that the applicants had not been allowed to contact their lawyer , their ORG or any other person , despite their requests , and that it had been for this reason that their mobile phones had been taken away from them . She observed that it appeared that they had been immediately transferred to the airport in degrading conditions DATE especially for the men – having being handcuffed and placed in a vehicle with bars on the windows , in order to be returned to their own country , with only the clothes they were wearing .

( v ) The police had admitted using violence against the first applicant but had claimed that this had been justified , as he had reacted violently to his arrest , injuring CARDINAL police officers . However , in view of the first applicant 's absence abroad and the lack of a medical report concerning any injuries , ORG stated that she had been unable to reach any objective or safe conclusion on whether the violence used against him had been necessary . In any event , she observed that what had taken place was wrong and that the decision to issue deportation orders which had no legal foundation had violated the applicants ' fundamental rights to prior information , to be heard , to be treated with dignity , to be given time to collect their personal belongings , and to be deported to their native country or to a country of their choice ( in the case of the tenth applicant only ) . It was for this reason that the applicants had reacted by resisting arrest and this had inevitably led to the use of violence by the police in order to arrest and deport them .

Lastly , ORG expressed reservations as to whether the applicants had been allowed to take their personal belongings and other documents from the ship prior to their deportation as the police had claimed . The fact that the applicants ' arrest had taken place TIME before the departure of the flight on which they were put led her to conclude that , with the exception of the fourth applicant , PERSON , who had been permitted to take certain things for her child and personal documents , none of the members of the crew had been allowed to take any of their personal belongings with them .

In accordance with ORG ( PERSON CARDINAL/CARDINAL as amended ) , ORG decided to refer the applicants ' case to the Attorney - General , whom she requested to examine the possibility of taking legal action . She indicated in this connection that she had no power to grant compensation for any damage incurred as a result of maladministration , as this came solely within the jurisdiction of the courts .

Amongst other documents , copies of CARDINAL written statements given by the first , second and fourth applicants on DATE , the third and ninth applicants on DATE and the sixth and eighth applicants on DATE were attached to her report .

In her statement the fourth applicant claimed that she had been taken to the ship by the authorities to collect her marriage certificate . The authorities had taken all her documents ( her NORP passports , her daughter 's birth certificate and her marriage certificate ) but had refused to allow her to take things for her and her baby ( such as a medical card , nappies , baby food and toys ) . She was only allowed to take milk for the baby . Her documents had been returned to her on the aircraft .

In his statement the first applicant stated :

The first applicant further stated that he had been transported to the airport in a police car with bars on the windows . He had been forced to lie down on the floor throughout the journey as CARDINAL of the persons in civilian clothes had his knee on his chest to keep him down . His head ached because of the blows , his face was swollen and he could not see out of CARDINAL of his eyes . No reference was made in the statement to the medical examination the first applicant had undergone in GPE or to the medical report drawn up following that examination .

In their statements the second , third , DATE applicants referred , with varying degrees of detail , to the first applicant 's arrest and/or the force used against him by the officers .

The second , fourth and eighth applicants stated that the first applicant had been beaten by a number of people .

The third , sixth and ninth applicants stated that the first applicant had sought explanations concerning their arrest . Following this :

– the third applicant stated that the first applicant had been held by the neck , punched in the face , forced to the ground and kicked ;

– the sixth applicant stated that the first applicant had had his arms pinned to the side and had been forced to the ground ; his hands had been twisted behind his back and handcuffed and he had been kicked ;

– the ninth applicant stated that the first applicant had been hit in the face , knocked off his feet and kicked by a number of people in civilian clothes .

In a letter dated DATE ORG transmitted her conclusions to ORG .

The Government submitted that , in the absence of medical evidence concerning the first applicant 's allegations , no criminal investigation had been ordered by the Attorney - General 's office following ORG report . No observations were submitted by the Government concerning any follow - up by the Attorney - General 's office with regard to the other complaints made by the applicants .

The Admiralty Marshal , in a note to ORG and Works dated DATE , stated :

“ With regard to the deportation of the CARDINAL alien sailors from the cruise ship under arrest LOC , which was flying the NORP flag , I would inform you of the following :

During DATE the ship was in detention CARDINAL sailors were repatriated ... The rest of the sailors , CARDINAL , who remained on the ship , refused to work on it and , taking advantage of the authorities ' patience , disembarked : the men , who were employed illegally in town ... TIME , and the women , who engaged in various unlawful acts , including prostitution , at TIME . Essentially , the ship was used by the majority of the crew as a hotel and restaurant .

All the illegal activities of the crew , such as acts of violence , theft of items from the ship , unlawful employment of the sailors off the ship were covered up by the ship 's captain PERSON , who according to confirmed evidence was taking percentages from the sailors for every unlawful transaction .

The captain was repatriated on his own initiative and Mr PERSON took over ; he immediately applied to the authorities through me as PERSON and requested the removal from the ship and repatriation of the crew that was causing problems .

After hearing the concurring opinion of the sailors ' lawyers , ORG , from which I had requested instructions on the matter , gave instructions for the sailors be to be repatriated and for CARDINAL members to remain on board , for security reasons .

CARDINAL people complied with the ORG 's decision and CARDINAL chose to stay , creating problems continuously both on and off the ship , with the result that the captain requested their removal in writing .

In his letter to me and the police authorities , the ship 's captain limited his request to the authorities to the repatriation of the crew , without going further and recording its punishable acts , as his aim was not the prosecution and conviction of the crew but simply its removal .

The captain of a ship of any nationality has the authority and the right to request police assistance from the authorities of the port where his ship is anchored and the police authorities are under an obligation to respond .

The intervention of the police authorities on a ship is completely lawful when it has been requested by the captain , who is the highest authority on board . During my long service on ships as a deck officer and a captain , I repeatedly encountered situations in respect of which we had requested police assistance from alien authorities ( as regards the ship 's nationality ) and it was always given .

Referring to the above and without wanting to comment on the ORG 's report , I believe that in general the authorities of the ORG had tolerated to a significant extent the demands and also the unlawful actions of some of the members of the crew of the Primexpress Island during their stay in GPE .

In particular , having regard to ORG decision , in response to the clear and completely lawful request of the captain for the removal of the CARDINAL people on board , to repatriate all the crew bar the CARDINAL sailors needed for the ship 's security , and having regard also to the information provided by NORP citizens and their complaints of unlawful acts by the crew , I consider that the NORP police acted within the limits of their obligations to preserve public order and within their powers . ”

The entry , residence and expulsion of aliens are regulated by ORG ( PERSON . CARDINAL , as amended ) .

NORP Under section CARDINAL(CARDINAL ) of the above PERSON , a person is not permitted to enter the Republic if he is a “ prohibited immigrant ” . This category includes any person who enters or resides in the country contrary to any prohibition , condition , restriction or limitation contained in the PERSON or in any permit granted or issued under the PERSON ( section CARDINAL(CARDINAL)(k ) ) and any alien who does not have in his possession an immigration permit granted by the Director of ORG in accordance with the relevant regulations ( section CARDINAL(CARDINAL)(l ) ) . A “ prohibited immigrant ” can be ordered to leave the LOC under LAW of the same PERSON .

The Director of ORG has power under the PERSON to order the deportation and , in the meantime , the detention , of any alien who “ is a prohibited immigrant ” under the PERSON ( section CARDINAL ) . Section PERSON ) provides that a person against whom a detention and/or deportation order has been issued is to be informed in writing , in a language which he understands , of the reasons for this decision , unless this is not desirable on public - security grounds , and has the right to be represented before the Director of ORG or any other authority of the Republic and to request the services of an interpreter . Pursuant to section GPE ) , an alien against whom a deportation order has been issued must be deported to the country to which he belongs or , with the consent of ORG , to another country , provided that both he and the Government of the country in question consent .

Section CARDINAL , provides that , even if not a prohibited immigrant , an alien has no absolute right to enter the Republic and may be refused entry in certain cases . Under LAW , employees and crew members of ships of a friendly ORG may be given permission by the Director of the approved port to enter the Republic subject to such conditions or limitations that may be imposed in the permit .

The PERSON is supplemented by ORG ( as amended ) . Regulation CARDINAL(b ) states that ship crew members who remain in a port of GPE are not considered to be residing in GPE Regulation CARDINAL provides for the issuing of landing permits to passengers on board ship for the time the ship remains in port . A landing permit is issued in exchange for the passenger 's passport and allows him or her to disembark and stay in GPE as long as the ship remains in the GPE 's territorial waters or for such other period that may be authorised by the immigration authorities . Passports are returned to the passengers when they re - embark . Regulation CARDINAL provides that when the Director of ORG decides that a person is a prohibited immigrant , written notice to that effect must be served on that person in accordance with the second schedule of the Regulations .

Deportation and detention orders can be challenged before ORG by way of administrative recourse under LAW . This provision provides as follows :

“ ORG shall have exclusive jurisdiction to adjudicate finally on a recourse made to it on a complaint that a decision , an act or omission of any organ , authority or person , exercising any executive or administrative authority is contrary to any of the provisions of this LAW or of any law or is made in excess or in abuse of powers vested in such organ or authority or person . ”

Such a recourse must be made within DATE of the date when the decision or act was published or , if not published and in the case of an omission , when it came to the knowledge of the person making the recourse ( LAW ) . Upon such a recourse ORG may ( a ) confirm , either in whole or in part , such decision or act or omission ; or ( b ) declare , either in whole or in part , such decision or act to be null and void and of no effect whatsoever , or ( c ) declare that such omission , either in whole or in part , ought not to have been made and that whatever has been omitted should have been performed ( LAW ) . The jurisdiction of ORG is limited to the review of the legality of the act in question on the basis of the situation that existed at the time the act was issued ; ORG will not examine the merits of the decision under review and replace the decision of the administrative organ with its own decision .

Article CARDINAL § CARDINAL provides for compensation :

“ Any person aggrieved by any decision or act declared to be void under paragraph CARDINAL of this LAW or by any omission declared thereunder that it ought not to have been made shall be entitled , if his claim is not met to his satisfaction by the organ , authority or person concerned , to institute legal proceedings in a court for the recovery of damages or for being granted other remedy and to recover just and equitable damages to be assessed by the court or to be granted such other just and equitable remedy as such court is empowered to grant . ”

Part II of the LAW contains provisions safeguarding fundamental human rights and liberties . LAW protects the right to liberty and security . It reads as follows , in so far as relevant :

“ CARDINAL . Every person has the right to liberty and security of person .

No person shall be deprived of his liberty save in the following cases when and as provided by law :

( f ) the arrest or detention of a person to prevent him effecting an unauthorised entry into the territory of the Republic or of an alien against whom action is being taken with a view to deportation or extradition .

Every person arrested shall be informed at the time of his arrest in a language which he understands of the reasons for his arrest and shall be allowed to have the services of a lawyer of his own choosing .

Every person who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful .

Every person who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation ” .

Section CARDINAL(CARDINAL ) of the Commissioner of Administration Law CARDINAL ( Law no . DATE as amended ) reads as follows :

“ If at any stage during the investigation or after its completion , the Commissioner decides that a criminal or disciplinary offence may have been committed by any officer , the Commissioner shall refer the matter to the Attorney - General of the Republic or to the competent authority , as the case may be , so that the appropriate measures may be taken . ”

“ CARDINAL . The Attorney - General of the Republic assisted by the Deputy Attorney - General of the Republic shall be the legal adviser of the Republic and of the President and of the Vice President of the Republic and of ORG and of the Ministers and shall exercise all such other powers and shall perform all such other functions and duties as are conferred or imposed on him by this LAW or by law .

The Attorney - General of the Republic shall have power , exercisable at his discretion in the public interest , to institute , conduct , take over and continue or discontinue any proceedings for an offence against any person in the LOC . Such power may be exercised by him in person or by officers subordinate to him acting under and in accordance with his instructions . ”

The law of tort provides , inter alia , for actions in damages in respect of false imprisonment , unlawful detention and assault , and conversion and trespass to movable property ( sections CARDINAL , DATE , DATE , DATE , DATE , DATE and CARDINAL of the Civil Wrongs Law ) .

Section CARDINAL of the Criminal Code provides as follows , in so far as relevant :

“ LAW and any other law that constitutes an offence , applies to all offences which were committed :

( e ) in any foreign country by any person if the offence :

( i ) is treason or an offence against the security of the Republic or the LAW order , or

( ii ) constitutes piracy , or ,

( iii ) is connected to the coinage or banknote of the Republic , or

( iv ) concerns unlawful trading of dangerous drugs , or ,

( v ) is one of the offences for which LAW are applicable under LAW . ”

By CARDINAL of LAW , a person who was born in GPE on or after DATE is a NORP citizen if , at the time of his birth , either of his parents was a NORP citizen .

The Explanatory Report to Protocol No . CARDINAL ( ETS No . CARDINAL ) defines the scope of application of LAW No . CARDINAL in the following manner :

“ CARDINAL . The word ' resident ' is intended to exclude from the application of the article any alien who has arrived at a port or other point of entry but has not yet passed through the immigration control or who has been admitted to the territory for the purpose only of transit or for a limited period for a non - residential purpose ...

The word lawfully refers to the domestic law of the ORG concerned . It is therefore for domestic law to determine the conditions which must be fulfilled for a person 's presence in the territory to be considered ' lawful ' .

[ A]n alien whose admission and stay were subject to certain conditions , for example a fixed period , and who no longer complies with these conditions can not be regarded as being still ' lawfully ' present . ”

“ a. Residence by an alien in the territory of any of the Contracting Parties shall be considered lawful within the meaning of this Convention so long as there is in force in his case a permit or such other permission as is required by the laws and regulations of the country concerned to reside therein ...

b. Lawful residence shall become unlawful from the date of any deportation order made out against the person concerned , unless a stay of execution is granted . ”

“ a. Regulations governing the admission , residence and movement of aliens and also their right to engage in gainful occupations shall be unaffected by this Convention insofar as they are not inconsistent with it ;

b. Nationals of a Contracting Party shall be considered as lawfully residing in the territory of another ORG if they have conformed to the said regulations . ”


CASE OF TOTH, MAGYAR AND TOTHNE v. HUNGARY

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

The applicants were born in DATE , DATE and DATE respectively , and live in the same household in GPE , GPE .

On account of his modest means and the financial burden of his minor daughter ’s upbringing , on DATE the first applicant lodged a request for a special family allowance ( rendszeres nevelési segély ) with the Mayor of GPE . In DATE the request was refused ; the applicant filed an administrative appeal . On DATE ORG of GPE upheld the Mayor ’s decision .

On DATE the first applicant brought an action before FAC for the judicial review of ORG decision . On DATE ORG dismissed his motions for bias against ORG and ORG .

On DATE and DATE hearings were held . Following proceedings concerning the first applicant ’s renewed motions of bias , on DATE the case was transferred to ORG , because of a change in the law concerning ORG jurisdiction .

On DATE ORG dismissed the action . On CARDINAL DATE the first applicant challenged this decision before ORG . On DATE ORG invited him to complete his motion , which he did on DATE . On DATE it decided to deal with the motion in appellate , rather than review proceedings .

On DATE ORG quashed the decision of DATE and remitted the case .

In the resumed proceedings , the judges of ORG declared themselves biased . On DATE ORG appointed GPE to hear the case . That court appointed a legal - aid lawyer for the first applicant on DATE .

On DATE the Bács - Kiskun County Regional Court quashed ORG decision and remitted the case to the first administrative body . The respondent authority appealed .

NORP On DATE ORG held a hearing but the parties did not appear . On DATE it upheld ORG decision .

In the resumed administrative proceedings , on DATE the first applicant was granted the allowance sought . His quantitative appeal was dismissed by the second - instance administrative authority on DATE .

On DATE the applicant sought judicial review . On DATE the ORG dismissed his action .

In DATE and DATE the applicants , acting on behalf of their minor children , lodged several requests with the Mayor of GPE for another type of social benefit ( gyermekintézményi étkeztetési térítési díj támogatása ) . On DATE and DATE , respectively , their requests were refused . ORG of GPE dismissed their administrative appeals on DATE and DATE , respectively . The applicants sought judicial review before the JászNagykunSzolnok ORG .

ORG dismissed their action on DATE , holding that the administrative authorities’ decisions had been in compliance with the local regulations . The latter excluded the disbursement of the allowance sought if the requesting individuals received other social benefits ( rendszeres gyermekvédelmi támogatás ) – which was the applicants’ case .


CASE OF BAKHSHIYEV AND OTHERS v. AZERBAIJAN

Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

Julia Laffranque;Khanlar Hajiyev;Peer Lorenzen

All of the applicants have either tenancy rights to their flats on the basis of occupancy vouchers ( yaşayış sahəsi orderi ) issued by the relevant executive authorities or ownership rights to them on the basis of an ownership certificate issued by the competent domestic authority ( see Appendix - Table I ) .

NORP In all cases , the applicants’ flats were unlawfully occupied by internally displaced persons ( “ IDPs ” ) from different regions of GPE under occupation by NORP military forces following the ORG conflict over GPE - Karabakh .

The applicants lodged separate civil actions before the domestic courts seeking the eviction of the IDPs from their flats .

On the dates indicated in the Appendix ( Table I ) , the ORG claims were granted by various domestic courts , which ordered the eviction of the IDPs from their flats .

The respective judgments became final and enforceable . However , the ORG families refused to comply with those judgments and despite the ORG complaints to various authorities , the judgments were not enforced .

The relevant domestic law is summarised in the ORG ’s judgment in the case of PERSON v. GPE ( no . CARDINAL , § § DATE , DATE ) .