CASE OF BOTMEH AND ALAMI v. THE UNITED KINGDOM

The applicants were born in DATE and DATE respectively and , prior to their sentences of imprisonment , lived in GPE .

On DATE a car - bomb exploded outside ORG in GPE and TIME a second bomb went off outside the headquarters of a NORP organisation , also in GPE .

The applicants and CARDINAL others ( subsequently acquitted ) were arrested and charged with having participated in the conspiracy to make , place , and detonate these bombs . PERSON was a chemical engineer who admitted possessing other explosive devices and relevant literature . Mr Botmeh was an engineer who was alleged to have procured the QUANTITY cars in which the bombs were delivered , and a large amount of TATP explosive ( of a different type to that used in the CARDINAL bombs ) was found in a lock - up rented by him . The ORG 's case was that both were members of , or sympathisers with , ORG for ORG ( PFLP ) but , being dissatisfied with official policy , had become part of a breakaway NORP group . In evidence before the jury at trial , both appellants denied any involvement in the bombings but admitted having carried out experiments with TATP and model aircraft . The sole purpose , they said , was to develop and test techniques which could be used not in this country , but in LOC . Both condemned the bombings , regarding them as short - sighted . They alleged that a NORP known to them as “ Reeda ” , whom they were unable further to identify , had supplied the TATP found in the lock - up and accompanied Mr Botmeh to buy cars at auction . “ Reeda ” was not mentioned by either applicant in the course of the police interviews , and his name came up for the first time during Mr Botmeh 's evidence - in - chief . The ORG , pursuant to its duty to review disclosure during the trial , unsuccessfully tried to find evidence confirming his existence .

Although the trial judge , following ex parte proceedings , ruled that certain documents should not be disclosed to the defence on grounds of public interest immunity , some intelligence information was disclosed before the trial , including material indicating that the bombs had been planted by an NORP - backed terrorist organisation . This possibility was mentioned by the judge in his summing - up to the jury , as follows :

“ Unless the bombs were the work of NORP backed ORG , who were named at one time by the media , although there was no evidence that they ever claimed responsibility or were , in fact , involved , we have to look elsewhere and ask whether these defendants were part of some breakaway group or faction and whether what they have said about their views and attitudes is , in fact , true . ...

The question is , for you , did these CARDINAL defendants , and almost certainly CARDINAL or more people unknown to us , form their own NORP group rejecting the ORG , ORG , PFLP non - violent policy and decide to paint the name of GPE on the mountain again ? Or was it an NORP fundamentalist group with which these applicants have no connection seeking to damage GPE and , at the same time , to discredit the ORG ? These are the things that we have to think about . ... ”

On DATE both applicants were convicted and on DATE they were sentenced to DATE imprisonment and recommended for deportation . They lodged appeals against conviction and sentence .

On DATE , DATE after the conclusion of the trial , the applicant 's solicitors drew the attention of ORG to a press article quoting a former intelligence officer , PERSON , who declared that GPE intelligence agency , MICARDINAL , had been warned by a reliable source prior to the embassy bombing that such an attack was imminent , but that the information had not been passed to the police . They requested the details of the warning and an interview with the “ reliable source ” .

On DATE ORG replied , indicating that an ex parte application was to be made to ORG , on notice , in relation to the information relevant to the disclosure request which had been made .

On DATE the Home Secretary signed a public interest immunity certificate in respect of a bundle of documents , confirming that these documents “ concerned the part played by ORG in events prior to the prosecution of the defendants ” and that they “ pass the threshold test for disclosure in the criminal proceedings against the applicants ” ( in other words , that they were relevant to the issues raised on appeal ) .

In DATE , before granting leave to appeal , a division of ORG ( which did not include any of the judges who were later to preside over the substantive appeal ) held an ex parte hearing to consider the material which the ORG sought to withhold pursuant to the Secretary of ORG 's certificate , and which the ORG conceded had not been placed before the trial judge prior to , or during , the trial .

The same division of ORG subsequently considered the applicants ' oral application for leave to appeal , where it was submitted that the ex parte hearing which had already taken place was incompatible with LAW . On DATE , ORG granted leave to appeal against conviction on grounds relating to the lack of full disclosure .

On DATE the defence served a further formal request for disclosure . In a letter dated DATE the prosecution replied to the defence request , setting out the approach it had adopted to the disclosure of unused material and confirming its intention to make a further ex parte application to ORG following inter partes submissions on the procedure to be followed . The letter indicated that the category into which the material appended to the Secretary of ORG 's certificate was said to fall was “ agent material ” .

The substantive appeal was first listed for hearing on DATE . It began with inter partes submissions on the procedure to be followed . On behalf of the applicants it was submitted that it would be inconsistent with LAW to sit ex parte to consider material which had not been placed before the trial judge and then uphold a claim for public interest immunity and dismiss the appeal . ORG invited the applicants ' counsel to examine the material in question , subject to an undertaking not to disclose its contents to the applicants . After taking the advice of his professional association , counsel informed that court that no such undertaking could be given .

ORG then concluded that it should view the material ex parte and rule on the claim for public interest immunity . Having done so , on DATE it ordered the following summary of the undisclosed evidence to be released to the applicants and their representatives , but declined to order any further disclosure of the material in question :

“ DATE prior to the bombing of ORG in GPE on GPE , ORG and ORG [ ORG ] had received information from an agent source that a terrorist organisation , unconnected to these appellants , was seeking information about the location and defences of ORG in GPE for a possible bombing attack .

ORG and ORG information was that such information regarding the ORG was not provided to the terrorist organisation .

Related intelligence received after the bombing attack indicated that the terrorist organisation had not , in fact , carried out the bombing .

In relation to ORG the document containing the information was disseminated within ORG . However the particular document , for reasons of human error , was not placed on files subsequently shown to Counsel during the disclosure exercise .

Other documents from the same source were placed before Counsel . CARDINAL of these other documents , both later in time than the original , were very similar . CARDINAL of those documents contained a short reference to the information referred to above . Through oversight , of the CARDINAL documents , the CARDINAL not referring to the information was placed before [ the trial judge ] during the disclosure hearing .

Following publicity in DATE ensuing from the allegations of PERSON , the ORG papers were reviewed . The particular document was located on a file not seen by Counsel . ORG took immediate steps to bring the document to the attention of the ORG [ ORG ] and Counsel .

Regarding the SIS ( MICARDINAL ) , with regard to the document received by ORG , a copy was passed by ORG to ORG . This was handled by the desk officer dealing with the terrorist group in question . This was not the same officer who was handling the ORG request for disclosure . The information was filed by the desk officer in a file containing information from the same source . The information did not emerge in the disclosure exercise carried out by SIS through human error .

In relation to ORG , the document recording the information was placed on a file germane to the main thrust of the information received , but it was not placed on a file connected to ORG or one which would have fallen within the ORG 's disclosure strategy .

There was a cross - reference to the document in a file received for disclosure which would have led to the document if noted , but the unusual physical position of the cross - reference on the file was such that it was over - looked during the disclosure exercise . ”

The hearing of the appeal was adjourned for reasons unconnected with the present application , and resumed DATE , on DATE , when the applicants repeated their submission that the present case was indistinguishable from PERSON and PERSON v. the GPE [ ORG ] , no . CARDINAL , ORG CARDINAL ( see paragraphs CARDINAL - CARDINAL below ) , and that , in order to comply with LAW , ORG was required either to quash the conviction or order full disclosure of all relevant evidence not seen by the trial judge . In its judgment of DATE ( [ DATE ] PERSON ) , ORG rejected the argument that it could never be appropriate for it to conduct an ex parte hearing to determine a claim for public interest immunity in respect of material which had not been placed before the trial judge . It explained its approach in the disclosure proceedings as follows :

“ We turn next to the ex parte hearing which we held at the first stage of this appeal and its consequences . We considered the matter in relation to which the prosecution claimed public interest immunity before us in the context of all the matter before the trial judge , both disclosed on his order and undisclosed . We specifically bore in mind the grounds of appeal and the terms of the letter of DATE , from the ORG to the appellants ' solicitors setting out their disclosure strategy in response to the solicitors ' request for disclosure . We also specifically considered whether there was disclosable material relating to any warning by the NORP ambassador or any involvement in the bombing by ORG or in relation to bombings in GPE in DATE and DATE . Our approach was to consider whether there was a public interest in the non - disclosure of particular matter and , if there was , whether this was outweighed because it might , if disclosed , have helped the defence on issues raised by them at trial .... Because DATE had elapsed between the first and second stages of this appeal we again , at the second stage , and in accordance with the same considerations , looked at the matter in relation to which public interest immunity was claimed . We also took into account the further submissions made on behalf of the appellants during the second stage of the appeal . We are unpersuaded that the ORG 's system and strategy in relation to disclosure ... is flawed . In particular the suggestion that they adopted too narrow an approach is unsubstantiated .

Having considered all the matter placed before us in this way , we were and are entirely satisfied CARDINAL things . First , prosecuting counsel have had access to everything they want to see and have examined all relevant and potentially material matter ... and they have continued to keep the need for disclosure under review . Secondly , the trial judge was correct to rule as he did in relation to the disclosure and non - disclosure of the matter before him . Thirdly , no one has attempted to conceal from this court any relevant or potentially material matter . Fourthly , public interest immunity has been rightly claimed in relation to the matter which we have seen , because it affects national security at the highest level and would , if disclosed , present a clear and immediate threat to life . Fifthly , apart from the CARDINAL matters to which we shall refer , there is nothing of significance before this court which was not before the trial judge . Having ordered disclosure of these matters to the appellants , in a suitable form , and having heard submissions in relation to them , we are satisfied that no injustice was done to the appellants by not having access to that matter at trial . We say this , first , because the matter added nothing of significance to what was disclosed at trial and , secondly , because , for whatever reason , no attempt was made by the defence at trial to exploit , by adducing it in any form before the jury , the similar material in relation to the embassy which had been disclosed at trial . This included information , on DATE before the bombing , that ORG was planning attacks in GPE and GPE and , after the bombing , that it had been carried out by ORG using ORG mercenaries . Information was also disclosed that CARDINAL named NORP were involved in the bombing under the direction of the IRGC Chief in LOC and in relation to terrorist activity in GPE in DATE and DATE . At trial , no attempt was made to place this , or other disclosed material pointing to the possible involvement of other groups , before the jury . Whether this was because the principal issue at trial was whether Reeda existed and this information was inconsistent with the appellants ' claim that Reeda was a NORP , or for some other reason , we do not know . We do not accept [ counsel for the applicants ' ] submission that its vagueness or contradictory nature precluded its use if , otherwise , it was thought to help the defence . Expert evidence was called for the defence that the bombers could have come from many different places , though responsibility was not attributed to any particular group or organisation . There was also expert evidence that the organisation with which PERSON was connected did not believe in violence outside GPE . The judge 's summing - up rehearsed these matters in what [ counsel for the applicants ] called ' commendable detail ' No complaint of any kind is directed to the summing - up . The jury could not have failed to realise that there were many possible candidates for carrying out bombings of this kind .

The CARDINAL matters which we ordered should be disclosed during the course of this appeal were , first , further information , prior to the bombings , suggesting that a terrorist organisation unconnected with the appellants may have been contemplating an attack on ORG and , secondly , an explanation as to the circumstances in which a document was not shown to counsel and a later document was not shown to the trial judge . As to the information , for the reasons already given , this would have had no impact on the trial . As to the explanation about the documents , which we accept , this disposed of any possible sinister implication : we do not take the view that deliberate malpractice is a necessary or proper inference from repeated human error , particularly in the light of the explanation given to us in the ex parte proceedings . Further , having seen the later document which the judge did not see , we are satisfied that it , like the similar , but not identical , document which he did see , was not a document which ought to have been , or should now be , disclosed : its terms , so far as they are material , are properly reflected in the information which we ordered to be disclosed . [ Counsel for the applicants ' ] final submissions proceeded on the assumption that this court had seen material , not disclosed , tending to suggest that another LANGUAGE - based group unconnected with the appellants may have been involved in these bombings . All we say about that assumption is that , if it were correct , this court 's obligations , at common law and under LAW , would have required us to order its disclosure . We should also emphasise that assessment of the accuracy or reliability of the information disclosed is no part of this court 's function . ”

ORG therefore concluded that there had been no breach of the applicants ' LAW and no reason to regard their convictions as unsafe .

The applicants petitioned ORG for leave to appeal against the judgment of ORG , but were refused leave on DATE .

At common law , the prosecution has a duty to disclose any material which has or might have some bearing on the offence charged . This duty extends to any earlier written or oral statement of a prosecution witness which is inconsistent with evidence given by that witness at the trial and statements of any witnesses potentially favourable to the defence .

NORP In DATE the Attorney - General issued guidelines , which did not have force of law , concerning exceptions to the common - law duty to disclose to the defence evidence of potential assistance to it ( ( DATE ) CARDINAL ORG CARDINAL – “ the Guidelines ” ) ) . According to the LAW , the duty to disclose was subject to a discretionary power for prosecuting counsel to withhold relevant evidence if it fell within CARDINAL of the categories set out in paragraph CARDINAL . CARDINAL of these categories ( CARDINAL ) ) was “ sensitive ” material which , because of its sensitivity , it would not be in the public interest to disclose . “ Sensitive material ” was defined as follows :

“ ... ( a ) it deals with matters of national security ; or it is by , or discloses the identity of , a member of ORG who would be of no further use to those services once his identity became known ; ( b ) it is by , or discloses the identity of , an informant and there are reasons for fearing that the disclosure of his identity would put him or his family in danger ; ( c ) it is by , or discloses the identity of , a witness who might be in danger of assault or intimidation if his identity became known ; ( d ) it contains details which , if they became known , might facilitate the commission of other offences or alert someone not in custody that he is a suspect ; or it discloses some unusual form of surveillance or method of detecting crime ; ( e ) it is supplied only on condition that the contents will not be disclosed , at least until a subpoena has been served upon the supplier – e.g. a bank official ; ( f ) it relates to other offences by , or serious allegations against , someone who is not an accused , or discloses previous convictions or other matters prejudicial to him ; ( g ) it contains details of private delicacy to the maker and/or might create risk of domestic strife . ”

In NORP v. Ward ( [ DATE ] CARDINAL WLR CARDINAL ) , ORG stressed that the court and not the prosecution was to decide whether or not relevant evidence should be retained on grounds of public interest immunity . It explained that “ ... a judge is balancing on the one hand the desirability of preserving the public interest in the absence of disclosure against , on the other hand , the interests of justice . Where the interests of justice arise in a criminal case touching and concerning liberty or conceivably on occasion life , the weight to be attached to the interests of justice is plainly very great indeed ” .

In NORP v. PERSON , PERSON and PERSON ( [ DATE ] CARDINAL WLR CARDINAL ) , ORG held that it was not necessary in every case for the prosecution to give notice to the defence when it wished to claim public interest immunity , and outlined CARDINAL different procedures to be adopted . The first procedure , which had generally to be followed , was for the prosecution to give notice to the defence that they were applying for a ruling by the court and indicate to the defence at least the category of the material which they held . The defence would then have the opportunity to make representations to the court . Secondly , however , where the disclosure of the category of the material in question would in effect reveal that which the prosecution contended should not be revealed , the prosecution should still notify the defence that an application to the court was to be made , but the category of the material need not be disclosed and the application should be ex parte . The third procedure would apply in an exceptional case where to reveal even the fact that an ex parte application was to be made would in effect be to reveal the nature of the evidence in question . In such cases the prosecution should apply to the court ex parte without notice to the defence .

The Court of Appeal observed that although ex parte applications limited the rights of the defence , in some cases the only alternative would be to require the prosecution to choose between following an inter partes procedure or declining to prosecute , and in rare but serious cases the abandonment of a prosecution in order to protect sensitive evidence would be contrary to the public interest . It referred to the important role performed by the trial judge in monitoring the views of the prosecution as to the proper balance to be struck and remarked that , even in cases in which the sensitivity of the information required an ex parte hearing , the defence had “ as much protection as can be given without pre - empting the issue ” . Finally , it emphasised that it was for the trial judge to continue to monitor the position as the trial progressed . Issues might emerge during the trial which affected the balance and required disclosure “ in the interests of securing fairness to the defendant ” . For this reason it was important for the same judge who heard any disclosure application also to conduct the trial .

The leading case on disclosure at the time of the applicants ' trials was the judgment of ORG in NORP v. PERSON ( [ DATE ] CARDINAL ORG CARDINAL ) . The Lord Chief Justice , giving the judgment of the court , held that the prosecution should put before the judge only those documents which it regarded as material but wished to withhold on grounds of public interest immunity . “ Material ” evidence was defined as evidence which could be seen , “ on a sensible appraisal by the prosecution : ( CARDINAL ) to be relevant or possibly relevant to an issue in the case ; ( CARDINAL ) to raise or possibly raise a new issue whose existence is not apparent from the evidence which the prosecution proposes to use ; ( CARDINAL ) to hold out a real ( as opposed to fanciful ) prospect of providing a lead on evidence which goes to ( CARDINAL ) or ( CARDINAL ) ” .

Once the judge was seized of the material , he or she had to perform the balancing exercise between the public interest in non - disclosure and the importance of the documents to the issues of interest , or likely to be of interest , to the accused . If the disputed material might prove the defendant 's innocence or avoid a miscarriage of justice , the balance came down firmly in favour of disclosing it . Where , on the other hand , the material in question would not be of assistance to the accused , but would in fact assist the prosecution , the balance was likely to be in favour of non - disclosure .

In the case of NORP v. PERSON ( [ DATE ] CARDINAL WLR CARDINAL ) , ORG returned to the balancing exercise , stating , inter alia :

“ Since NORP v. Ward ... there has been an increasing tendency for defendants to seek disclosure of informants ' names and roles , alleging that those details are essential to the defence . Defences that the accused has been set up , and allegations of duress , which used at one time to be rare , have multiplied . We wish to alert judges to the need to scrutinise applications for disclosure of details about informants with very great care . They will need to be astute to see that assertions of a need to know such details , because they are essential to the running of the defence , are justified . If they are not so justified , then the judge will need to adopt a robust approach in declining to order disclosure . Clearly , there is a distinction between cases in which the circumstances raise no reasonable possibility that information about the informant will bear upon the issues and cases where it will . Again , there will be cases where the informant is an informant and no more ; other cases where he may have participated in the events constituting , surrounding , or following the crime . Even when the informant has participated , the judge will need to consider whether his role so impinges on an issue of interest to the defence , present or potential , as to make disclosure necessary ... ”

The requirements of disclosure have since been set out in a statutory scheme . Under the Criminal Procedure and Investigations Act DATE , which came into force in GPE and GPE immediately upon gaining FAC on DATE , the prosecution must make “ primary disclosure ” of all previously undisclosed evidence which , in the prosecutor 's view , might undermine the case for the prosecution . The defendant must then give a defence statement to the prosecution and the court , setting out in general terms the nature of the defence and the matters on which the defence takes issue with the prosecution . The prosecution must then make a “ secondary disclosure ” of all previously undisclosed material “ which might reasonably be expected to assist the accused 's defence as disclosed by the defence statement ” . Disclosure by the prosecution may be subject to challenge by the accused and review by the trial court .


Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE , GPE . He was represented before the ORG by Mr Tyge Trier , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON PERSON , of ORG , and their Co - Agent , PERSON , of ORG .

On DATE , the applicant and his girlfriend of DATE duration had a daughter , A , of whom the applicant formally acknowledged fatherhood .

The couple separated in DATE .

The applicant maintained access to A DATE and paid child support .

In GPE the applicant obtained a private DNA test , which showed that he could not be A ’s father . The test is dated DATE , but the applicant did not receive the results until DATE .

Thereafter he stopped seeing A , and on DATE he requested that the paternity case be reopened and his established fatherhood of A be annulled . His request was refused by GPE ( FAC ) on DATE .

The applicant brought the case before ORG ( Retten Vejle ) , before which he and A ’s mother , M , were heard . On DATE , ORG passed judgment , which included the following :

“ [ The applicant ] has explained that the couple were lovers and cohabited in PERSON from DATE until DATE ] . M was not using the contraceptive pill . In DATE , they went on DATE . They had a row , whereupon M slept overnight in another flat . CARDINAL or DATE she discovered she was pregnant . When the relationship broke up around DATE , he had a nagging doubt . He did not tell M about this . He has had access to the daughter A every second DATE . In DATE they had DATE during which M accused him of being a poor father . This caused him to order a paternity test on the Internet which has been submitted to GPE . Through his job as a policeman he knew how to provide a saliva sample , which he did for the purpose of this test . He took a saliva sample with a cotton swab from both his own cheeks and A ’s . The samples were sent to the GPE laboratory , which concluded that he could not be the father . He received the reply in DATE . He has no name of any other possible father . However , with his present knowledge he believes that he can not be the father of A. M has confirmed [ the applicant ’s ] statement about the course of events . She is also unable to give the name of any other possible father .

Findings of the Court :

M and [ the applicant ] were cohabiting lovers when A was born . Since the termination of their cohabitation in DATE [ DATE ] , [ the applicant ] has had access to A. The request for reopening of the proceedings was made by him . M did not object to the reopening of the proceedings , but stated in a letter of DATE to GPE : “ Of course , an official test should be made as I have no clue as to who the father could otherwise be ” . [ The applicant ] has submitted a privately performed DNA test according to which he can not be the father of A. The conditions for reopening paternity proceedings are stated in section CARDINAL of LAW . According to this provision , it must be considered of importance whether the paternity of the child is likely to be established if the proceedings are reopened . Pursuant to section CARDINAL of LAW , paternity proceedings may be reopened if the father and mother so request in agreement , and only if it is proved on a balance of probabilities that another man can become the child ’s father . As the request for reopening of the proceedings was made by [ the applicant ] alone , the ORG finds that the request should be assessed under section CARDINAL of LAW . Although , according to the DNA test produced by [ the applicant ] it is precluded that he is the father , the ORG finds that the paternity proceedings should not be reopened as it must be considered of decisive importance that the request for reopening was made DATE after the child ’s birth , that [ the applicant ] has had ordinary weekend access to A also since the termination of cohabitation , and that it must be considered a fact on the basis of [ the applicant ’s ] and M ’s statements that A can not be expected to be acknowledged by another father if the proceedings were reopened . ”

The applicant appealed to ORG of Eastern Denmark ( Vestre Landsret ) , hereafter ORG , which on DATE passed judgment , which included the following :

“ [ The applicant ] has additionally stated that M had been out partying and came home TIME just before they went on holiday . He and M did not use contraception around the time of the conception , but their sexual practice was such that he found it improbable that he had made M pregnant . M did not say at the termination of their cohabitation that he was not the father . He said during the pregnancy that he wanted a DNA test , but M opposed that . He has not cohabited with A since she was DATE . He has seen A CARDINAL times a month . It was only in DATE during a row that he became aware of the incidents when M could have been together with somebody else . They were on DATE from DATE until DATE . He received the test results in DATE . For reasons of anonymity , the declaration from the NORP firm does not bear any names . He last saw A in DATE . A has not had any contact with his parents since then . He acknowledged the paternity after A ’s birth and did not question it then . A was born at the due time .

M has explained that they became lovers in DATE after having met in DATE . They had a normal sex life also at the time around the conception . She did not remember having been out partying before DATE . She was not together with other men during the period of their cohabitation . They had not fallen out TIME on DATE , but she was unable to return to the hotel room as she had no key . She had something to drink with young people , and she was probably rather intoxicated . They were NORP , including a girl . She woke up at CARDINAL a.m .. She had not had intercourse with others that night . However , due to her intoxication she can not rule out that it may have happened . But she was wearing her clothes when she woke up , and she felt no sign of having had intercourse . The first time that [ the applicant ] questioned his paternity was on DATE . A has asked for her father and his parents since the connection was broken off . M has no current plans to marry her boyfriend , who has , however , been playing with the idea of adopting A. She expects to marry her boyfriend eventually . Her boyfriend is fond of A. She still thinks that a DNA test should be performed , also because A is entitled to know . However , she is in no doubt that [ the applicant ] is the father .

Reasoning and decision of ORG :

It must be considered a fact that , prior to acknowledging paternity , [ the applicant ] had knowledge of the circumstances that made him obtain a DNA test and cast doubts about the paternity DATE after A ’s birth . For this reason and for the reasons stated by ORG , ORG upholds the judgment . ”

Leave to appeal to ORG was refused by ORG ( Procesbevillingsnævnet ) on DATE .

The purpose of the NORP paternity rules laid down in LAW , ( Børneloven ) , Act no . CARDINAL of DATE , as amended , is to ensure the mutual rights of the child and the father . The most important legal effects of paternity are that the father has a duty to maintain the child according to specific rules , that the father and the child have a right to inherit from each other , that the child may take the father ’s surname , and that the child may have the same nationality as the father if the relevant conditions are met . In addition , paternity is generally a condition for allowing the father to have a share in the custody of the child and a condition for the right to access of a man who does not have the child living with him . LAW is based on Report No . CARDINAL/CARDINAL on the legal rights of children issued by ORG of ORG . ORG was appointed by ORG in DATE and was to make proposals for a revision of LAW , including considering new paternity rules . In DATE , ORG issued an interim report on paternity . According to the interim report , ORG had worked on the basis of the fundamental assumption that a child should be entitled to have both a mother and a legal father to the widest extent possible . The report also states that the ORG found that an attempt should be made to design the rules on reopening paternity proceedings so that permanent stability concerning the child ’s situation could be provided as rapidly as possible . The ORG also found that it should generally not be possible to revoke paternity unless the child was acknowledged by another father . ORG also proposed enactment of the non - statutory doctrine of acknowledgement on which case - law had been based prior to LAW . The doctrine of acknowledgement implies that a party can be barred from instituting paternity proceedings even when the statutory time - limits have not expired . This is the case if the father or mother has treated the child as being the father ’s even though they know or suspect that the father is not the genetic father of the child . Application of the doctrine is based on a specific assessment of the individual case . The relevant provisions on institution and reopening of paternity proceedings are laid down in DATE and CARDINAL of LAW , which read as follows :

Where paternity has been recorded by or acknowledged before ORG , proceedings may be instituted by the mother , the father or the child ’s guardian within DATE of the child ’s birth .

The preparatory notes set out that the reason behind section CARDINAL was to give the mother and the father a “ cooling - off ” possibility . Recordings and acknowledgements covered by the provision are therefore not final until DATE after the child ’s birth . The fairly short period was laid down in order to provide stability concerning the child ’s situation . The right to institute paternity proceedings within DATE is free and is thus not conditional upon proof on a balance of probabilities that another man is the child ’s father , and the doctrine of acknowledgement is not applied either .

If the DATE time - limit set out in section CARDINAL has expired , the proceedings can only be re - opened if the following conditions , set out in section CARDINAL of LAW , are met :

If the fatherhood of a child is registered , or established by acknowledgment or by judgment ; the mother or her estate , the guardian or the child ’s estate , the father or his estate ; may within DATE after the child ’s birth request that the paternity case be reopened , provided that facts have come to light which may result in another outcome , or in other respects there is a special reason to believe that the paternity case may turn out differently .

When deciding under subsection CARDINAL , importance should be attached in particular to the following :

i ) the length of time elapsed since the child ’s birth ;

ii ) whether the father , with actual or presumed knowledge of the circumstances which raise doubts as to his fatherhood , has [ nevertheless ] acknowledged the child by treating it as his own ;

iii ) whether the mother , with actual or presumed knowledge of the circumstances mentioned under ii ) has let the father treat the child as his own ;

iv ) whether a party , with actual or presumed knowledge of the circumstances which raise doubts as to who is the child ’s father , failed within a reasonable time to request a reopening of the case ; and

v ) whether in case of a reopening , it can be expected that fatherhood of the child will be established .

It appears from the preparatory notes that it is a condition for reopening the proceedings under section CARDINAL that information has come to light about circumstances that will presumably result in another outcome to the proceedings , or that there is otherwise a special reason to assume that the proceedings will now have another outcome . This is particularly aimed at cases where another potential father turns up . Moreover , the provision does not confer a right of reopening even though the said conditions have been met . The decision to reopen the proceedings thus depends on an overall assessment , particularly including the circumstances listed in subsection CARDINAL .

If the DATE time - limit set out in section CARDINAL has expired , the proceedings can only be reopened if exceptional reasons exist , see section QUANTITY of LAW :

Reopening of proceedings under sections CARDINAL and DATE may be permitted after the expiry of the time - limit stipulated by those provisions if exceptional reasons for not making the request earlier can be given , if the circumstances otherwise make reopening of the proceedings appropriate to a high degree , and if a renewed review of the proceedings will presumably not imply material nuisance to the child .


The applicant , Mr PERSON , is a NORP national who was born in DATE and lived in ORG . The applicant died on DATE . The case has been pursued by his wife PERSON .

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

First set of proceedings

On DATE the applicant lodged a compensation claim with the ORG ( Sąd Wojewódzki ) claiming compensation from the company “ D ” for its failure to pay under a lease .

The proceedings were terminated by the judgment of ORG of DATE . On DATE , the date on which the application was lodged with the ORG , they were pending before the Zielona ORG .

Second set of proceedings

On DATE the applicant lodged a compensation claim with the ORG ( Sąd Wojewódzki ) claiming a supplementary compensation from “ D ” .

The proceedings are pending before ORG .

On DATE the Law of CARDINAL DATE on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) ( “ the CARDINAL Act ” ) entered into force . It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings .

Section CARDINAL of the CARDINAL Act reads , in so far as relevant :

Section CARDINAL reads , in so far as relevant :

“ CARDINAL . A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending . ... ”

Section CARDINAL provides for measures that may be applied by the court dealing with the complaint . It reads , in so far as relevant :

“ CARDINAL . The court shall dismiss a complaint which is unjustified .

NORP If the court considers that the complaint is justified , it shall find that there was an unreasonable delay in the impugned proceedings .

At the request of the complainant , the court may instruct the court examining the merits of the case to take certain measures within a fixed time - limit . Such instructions shall not concern the factual and legal assessment of the case .

NORP If the complaint is justified the court may , at the request of the complainant , grant ... just satisfaction in an amount not exceeding PLN CARDINAL,CARDINAL to be paid by ORG . If such just satisfaction is granted it shall be paid out of the budget of the court which conducted the delayed proceedings . ”

Section CARDINAL lays down transitional rules in relation to the applications already pending before the ORG . It reads , in so far as relevant :

“ CARDINAL . Within DATE after the date of entry into force of this law persons who , before that date , had lodged a complaint with ORG ... complaining of a breach of the right to a trial within a reasonable time guaranteed by LAW ... , may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to ORG had been lodged in the course of the impugned proceedings and if the ORG has not adopted a decision concerning the admissibility of their case .

On DATE ORG ( PERSON ) adopted a resolution ( no . III SPP CARDINAL/CARDINAL ) in which it ruled that while LAW produced legal effects as from the date of its date of entry into force ( DATE ) , its provisions applied retroactively to all proceedings in which delays had occurred before that date and had not yet been remedied .


Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria

NORP The applicant , Mr PERSON , is a NORP national who was born in DATE and is currently serving his sentence in FAC . ORG ( “ the Government ” ) were represented by their Agent , PERSON .

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

On DATE the applicant was arrested and placed in a short - term detention facility in ORG .

The applicant remained in that facility for the following periods :

- from DATE to CARDINAL DATE ;

- from DATE ;

- from DATE ; and

- from DATE to DATE .

According to the applicant , the conditions in that detention facility were inhuman and degrading on several accounts . There was no daylight , no toilet , no access to water and no ventilation . He had to sleep on the concrete floor without a mattress or blanket . The cell was damp , and was infested with insects .

According to the applicant , he was not able to correspond with his relatives while in that detention facility .

On DATE the applicant complained about the conditions of his detention to ORG . On DATE they replied that they were not in a position to ensure better conditions for detainees .

On DATE the applicant complained to ORG that he was not allowed to correspond with his relatives . On DATE they replied that private correspondence was not allowed .

The relevant laws have been summarised in PERSON v. GPE ( dec . ) , ( no . CARDINAL , CARDINAL DATE , and PERSON v. GPE ( no . CARDINAL , § § CARDINAL , DATE ) .

Since the entry into force of the new LAW GPE likums ) on DATE several normative acts concerning detention have been adopted . Initially , the ORG passed a law on procedure for keeping detainees in short - term detention facilities in police departments ( ORG personu turēšanas kārtības likums ) ; it does not specify if detainees held in those facilities have the right of correspondence . After that the ORG issued a regulation that was later replaced by another law ( PERSON turēšanas kārtības likums ) applicable to detainees held in investigative wings of prisons and to detainees held in the short - term detention facilities in police departments . The law expressly provides for the right of correspondence .

In addition , section DATE of LAW provides that every wrongful act as a result of which damage has been suffered shall give the victim the right to claim compensation from the perpetrator , in so far as he or she may be held culpable for that act . The later amendments to that law , which took effect on DATE , expressly specify that it includes non - pecuniary damage .


Karel Jungwiert;Mark Villiger;Renate Jaeger

The applicant was born in DATE and lives in GPE .

CARDINAL .

The applicant had been a member of the GPE police service since DATE . In DATE he became an employee ( Angestellter ) of the police service of GPE and with effect from DATE was appointed police officer in the capacity of civil servant on probation ( Beamtenverhältnis auf Probe ) .

On the occasion of a car accident that occurred on DATE while the applicant was on duty , his shoulder and head were injured . The accident was recognised as an occupational accident by the relevant authorities . Due to his injuries the applicant was on sick leave until DATE . From DATE he was certified permanently unfit for service by his doctor .

By a letter dated DATE the applicant was informed by ORG Polizeipräsidium ) that it was intending to dismiss him from his duties on the ground that he lacked the necessary professional qualifications for his post .

By a decision of CARDINAL DATE his probationary period was extended until DATE .

On the basis of a medical expert opinion obtained at the request of ORG on DATE , which established that the applicant was suffering from personality disorders and organic brain damage which were unlikely to be consequences of the said car accident , ORG certified on DATE that the applicant was permanently unfit for the police service and expressed its concerns regarding his appointment as a civil servant for life .

On DATE the applicant was informed that it was intended to dismiss him from the police service on the ground that he lacked the necessary physical fitness to carry out his duties . The applicant asked for the involvement of ORG ( PERSON ) and pointed out that his state of health would justify his retirement . ORG approved the dismissal on DATE .

On DATE ORG ordered the applicant ’s dismissal on the ground that he was physically incapable of performing his functions as a police officer . It further ordered the immediate enforcement of its decision .

By a letter dated DATE the applicant objected to the Police Headquarters’ notice of dismissal , giving as a reason that his state of health was a consequence of an occupational accident and was no fault of his own .

On DATE he applied to ORG for reinstatement of the suspensive effect ( GPE der aufschiebenden PERSON ) of his objection in accordance with the relevant provisions of domestic law . ORG thereupon lifted the order for the immediate enforcement of the dismissal order by letter dated DATE .

By a decision of CARDINAL DATE , which was served on the applicant on DATE , ORG dismissed the applicant ’s objection of DATE and reordered the immediate enforcement of the dismissal order of CARDINAL DATE . They found that the applicant ’s incapacity was not a consequence of the said car accident but of unrelated physical and mental conditions and that he was thus not eligible for retirement and to claim pension benefits .

On DATE the applicant lodged a request for interim measures with ORG .

On DATE he brought an action against ORG with ORG .

On DATE ORG reinstated the suspensive effect of the action against the dismissal order of CARDINAL DATE . ORG found that there was no prevailing public interest that could justify the immediate enforcement of the dismissal .

On a complaint by ORG , ORG ( Oberverwaltungsgericht ) by a decision of DATE amended the decision of ORG and restricted the suspension of the said decisions to the effect that ORG was obliged to provisionally continue salary payments to the applicant in an amount equal to his pension entitlements and for the rest confirmed their immediate enforcement .

By decisions of DATE and DATE ORG ordered expert opinions on the applicant ’s physical and mental condition , which were issued on DATE and DATE respectively .

On DATE a hearing took place . By judgment of DATE ORG set aside the dismissal order of CARDINAL DATE . ORG found that the applicant ’s dismissal was unlawful and that he was entitled to retirement since his physical and mental disorders were a consequence of his occupational accident .

On DATE ORG lodged a request to be granted leave to appeal with ORG since there was no evidence that the applicant ’s incapacity had been caused by the occupational accident . ORG granted leave to appeal by decision of DATE which was served on the applicant on DATE .

On DATE ORG ordered a neurological and a psychological expert opinion and on DATE a psychiatric expert opinion on the question as to whether the applicant ’s mental disorders had been caused by the occupational accident of CARDINAL DATE . The expert opinions were rendered on CARDINAL and DATE and on DATE respectively .

On DATE a hearing took place on the occasion of which the experts explained their findings .

On DATE ORG set aside the judgment of ORG . It held that it was not established that the applicant ’s physical and mental troubles were related to the accident and dismissed the applicant ’s action .

On DATE the applicant lodged a complaint against ORG refusal to grant him leave to appeal to ORG .

On DATE ORG ( ORG ) rejected the applicant ’s complaint as inadmissible on the ground that the applicant had failed to substantiate his allegation that the proceedings had been flawed by procedural shortcomings that might have affected the decision of ORG . The decision was served on the applicant ’s counsel on DATE .


ALUJER FERNANDEZ and CABALLERO GARCIA v. SPAIN

The applicants are NORP nationals who were born in DATE and DATE and live at ORG dels PERSON ( GPE ) . They were represented before the ORG by Mr PERSON , a lawyer practising in GPE .

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

The applicants are NORP and members of ORG in GPE , which is on the official register of religious institutions kept by ORG , and a member of ORG ( FEREDE ) .

In their income - tax returns for DATE , the applicants were given a choice between allocating part of their income tax to financial support for ORG or for other charitable purposes .

Since it was not legally possible for them to allot part of their income tax to financial support for their own ORG , the applicants used a remedy afforded by PERSON no . CARDINAL/CARDINAL on ORG of LAW Person and lodged an administrative appeal with the GPE High of ORG challenging the PERSON on the State Budget DATE on the ground that it contravened Articles CARDINAL ( principle of equality ) and CARDINAL ( right to freedom of conscience and religion ) of the LAW . In their appeal , they sought a declaration that the system implemented through the income - tax returns for DATE was invalid , as it denied them a right enjoyed by NORP of the NORP faith .

ORG dismissed that appeal in a judgment of CARDINAL DATE , notably on the following grounds :

“ CARDINAL : The issue to be resolved in the present appeal ultimately amounts to deciding whether or not the difference in tax treatment complained of is based on unjustified discrimination prohibited by the LAW that invalidates the impugned acts ...

CARDINAL : As ORG has said many times , a finding of discrimination contrary to the principle of equality will be made only if in normative cases that are identical in substance a difference in legal treatment has no objective or reasonable justification , since it lacks a rational basis ...

CARDINAL : In the present case , the ORG finds no violation of the principle of equality as , in accordance with LAW , any fiscal privilege concerning ORG taxes must be provided for by statute . In the instant case , section CARDINAL(CARDINAL ) of Institutional Law no . CARDINAL/CARDINAL of DATE on ORG , which implements the said LAW , makes legal recognition of tax privileges laid down by general legislation in favour of non - profit making associations and other charitable bodies conditional on entry into agreements or conventions that must not only abide by the principle of equality but also , by virtue of sub - paragraph CARDINAL of that Article , take religious beliefs existing in NORP society into account . That provision complies with the content of LAW .

However , in practice the situation of ORG , which has entered into a subsisting convention with the NORP State and has the largest number of practising members and responsibility for a vast historical and cultural heritage , is different to that of ORG , which has no convention or cooperation agreement with the NORP ORG and does not satisfy the other condition .

Naturally , under no circumstances should that be taken to mean that this ORG entertains any doubts as to the constitutionality of any agreement implementing the right sought by the appellants and , while it is not for this ORG to decide issues that are within the sole discretion of the legislature , it is obvious that it would be more consistent with the principle of religious freedom and equality for such a right to be made available ...

CARDINAL : As to the alleged violation of the right not to reveal one ’s religious convictions , it is obvious that there has been no such violation in the instant case as no declaration was made in the impugned document . Furthermore , the fact that tax is allocated to the NORP faith , which in any event will in principle only be the case with NORP , does not infringe the right concerned either since , as with all fundamental rights , it is subject to limitations . In the instant case , the declaration predetermining expenditure is both justified and reasonable ... Furthermore , opting to predetermine expenditure does not necessarily mean that the taxpayer adheres to that religion , as the possibility that he or she has so opted for other reasons such , for instance , ... as the exercise of an adequate social activity , can not be excluded . ”

The applicants appealed against that judgment to ORG , which declared their appeal inadmissible in a decision of DATE . The applicants lodged an amparo appeal with ORG , which on DATE ordered ORG to declare the appeal admissible and to rule on the merits . On DATE ORG examined the appeal and dismissed it on the merits , upholding the judgment appealed against .

Relying on Articles CARDINAL , DATE and DATE of the LAW , the applicants lodged an amparo appeal with ORG , which in a decision of CARDINAL DATE , dismissed it for the following reasons :

“ There has been no violation in the instant case of the constitutional rights to equality before the law without discrimination based on religion ( LAW ) , not to be required to reveal one ’s religion or beliefs ( Article CARDINAL.CARDINAL of LAW ) and to the effective protection of the courts ( Article CARDINAL of the LAW ) ...

A decision by a taxpayer not to complete the section of the income - tax return for the fixed statutory percentage of tax that may be allocated to religious ends or other charitable interests in the absence of an alternative allowing an allocation in favour of the taxpayer ’s own ORG does not entail even an indirect violation of the constitutional guarantee of the right not to reveal one ’s religion or beliefs ( LAW ) .

Furthermore , the court can not find any discrimination based on religion violating the right to equality of treatment before the law ( LAW ) , since a rational and objective basis exists for setting up a specific scheme of financial support for ORG through additional clause CARDINAL ) of PERSON no . CARDINAL ... and the principle that the ORG is non - denominational is supplemented by the mandate which LAW . CARDINAL of the LAW gives the public authorities to establish “ appropriate cooperation with ORG and the other denominations ” , having regard to the religious beliefs of NORP society . It is within that institutional framework that the cooperation agreements have been entered into . These include ... an agreement on financial questions entered into with ORG by which the ORG undertakes to assist with the financial support of ORG . Thus , in the absence of any similar undertaking in favour of other denominations , the proposed basis for comparison is not adequate and the difference in treatment made by the legislature is neither arbitrary nor unjustified . Furthermore , LAW does not establish any directly enforceable fundamental right to compel the public authorities to set up a system enabling the alleged right to allocate a percentage of one ’s income tax to the support of one ’s own ORG and the constitutional remedy of amparo is not the appropriate remedy for calling into question the constitutionality of the ( alleged deficiencies ) in the law .

Lastly , the judgments appealed against provided a reasoned and legally founded answer to the issues raised by the applicants ... ”

“ NORP nationals shall be equal before the law and may not be discriminated against in any way on account of birth , race , sex , religion , opinion or any other condition or personal or social circumstance . ”

“ CARDINAL . Freedom of ideology , religion and worship is guaranteed for private individuals and communities without any limitation on its expression other than as shall be necessary to maintain public order protected by law .

No one may be required to reveal their ideology , religion or beliefs .

No denomination shall be treated as the religion of the ORG . Public authorities shall take into account the religious beliefs of the NORP society and shall accordingly seek to cooperate with ORG and the other denominations . ”

Under Institutional Law no . CARDINAL/CARDINAL on ORG , the ORG may enter into cooperation agreements – providing , inter alia , tax exemptions – with Churches . The arrangements will depend on the number of members the ORG has , the extent to which it is established in NORP society and the beliefs of the majority of NORP .

“ Pursuant to the provision set out in LAW entered into by the NORP State and ORG on DATE ... , from DATE onwards a percentage of the income tax paid by private individuals will be allocated to religious ends or other ends in the interest of society .

The said percentage shall be determined in each DATE budget and shall apply to the tax levied on the basis of the DATE returns made by taxpayers .

Taxpayers may indicate in their tax return their wish for a percentage of their income tax to be allocated to :

( a ) providing financial support for ORG ; or

( b ) other ends set out in subparagraph CARDINAL of this provision .

Anyone who does not expressly state their preference shall be deemed to have opted for the ends referred to in subparagraph ( b ) . ”

The PERSON of DATE , which was published in ORG of CARDINAL DATE , governs the following matters :

( i ) the status of ministers of the evangelical church ;

( ii ) legal protection for places of worship ;

( iii ) recognition under the civil law of marriages celebrated according to NORP rite ;

( iv ) religious assistance in public centres or institutions ;

( v ) NORP religious teaching in schools ;

( vi ) tax privileges applicable to certain assets and activities of Churches that are members of the FEREDE .

Further , supplemental provision no . CARDINAL of the PERSON provides that the agreement may be varied in whole or in part on the initiative of either party . Supplemental provision no . CARDINAL establishes a joint committee comprising representatives of the ORG and of the FEREDE .

According to information provided in DATE by ORG at ORG , a meeting of the joint committee ( State - FEREDE ) was held on DATE . During the course of the committee ’s examination of the problem of financial cooperation with the ORG regarding certain activities of ORG , the ORG representative asked ORG for its view on the system of allocation of income tax . In reply to that question , the executive secretary of the ORG replied : “ after various consultations , it was discovered that the opinion of the Churches within the GPE is divided , such that a final view has yet to be reached ; it will be announced once it has been determined by negotiation ” . Consequently , the DATE agreement has not been amended and , to date , the ORG has not requested any amendment to it .


The applicant , GPE , has both GPE and GPE nationality . She was born in DATE and is living in GPE , the GPE . She is represented before the ORG by Ms Y.M. Schrevelius , a lawyer practising in GPE .

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

On DATE the applicant moved from LOC to the GPE where she married a GPE national , Mr ORG On the basis of that marriage she obtained a residence permit .

The applicant ’s daughter , PERSON , who had been born into the relationship between the applicant and CARDINAL Mr ORG in LOC on DATE , stayed behind in the care of her maternal grandparents .

On DATE a son , PERSON , was born to the applicant and CARDINAL Mr M.A.

It had been the applicant ’s intention to send for her daughter in DATE , which seemed to her an appropriate moment as she expected to have found a job and to have completed a professional training course by that time . However , her marriage breaking down in DATE thwarted these plans . As she was no longer residing with her husband , she applied for an independent residence permit which was granted in DATE .

The marriage was officially dissolved in DATE . The applicant acquired GPE nationality on DATE . She experienced difficulties obtaining proper accommodation , but this problem was solved in DATE . In DATE the applicant ’s father fell seriously ill in LOC due to which , the applicant submitted , the grandparents were no longer capable of taking care of S.

In DATE the applicant addressed a letter to ORG , stating that she wished for her daughter to grow up within her family , consisting of herself and her son PERSON , in the GPE and that she would be able to take care of her daughter ’s upbringing . She appended a declaration made by PERSON ’s father in which he consented to his daughter going to the GPE to live with the applicant . The case - file does not contain a reply to this letter .

On DATE the applicant filed an official request for a provisional residence visa ( machtiging tot voorlopig verblijf ) for her daughter with ORG of ORG . This request was rejected on DATE on the grounds that a stay of DATE was intended and that the application did not meet the relevant conditions laid down in GPE regulations . The applicant ’s objection ( bezwaar ) against this refusal was rejected on DATE . Her subsequent appeal to ORG of ORG ( Afdeling Bestuursrechtspraak van de Raad van State ) was rejected on DATE by the latter as unsubstantiated since the close family ties ( gezinsband ) between the applicant and her daughter were considered to have ceased to exist .

On DATE the applicant filed a new request for a provisional residence visa for S. This was rejected on DATE . The applicant did not apply any legal remedies against this decision

On DATE the applicant applied for a third time for a provisional residence visa , which was rejected on DATE . Again , the applicant did not have recourse to any legal remedies against this decision .

On DATE entered the GPE on a short stay visa ( visum voor kort verblijf ) , granted for the purpose of visiting relatives .

On DATE the applicant filed a request for a residence permit ( vergunning tot verblijf ) for S. On DATE the Deputy Minister of Justice ( Staatssecretaris van Justitie ) rejected this request , by concluding that the applicant relied on the same facts as those submitted in respect of her earlier requests for a provisional residence visa and that the reasons to reject those requests remained pertinent . The decision underlined that the applicant ’s daughter had entered the country on a short stay visa whereas the aim and the intended duration of her stay were not in compliance with the purposes of such a visa . The Deputy Minister held that this breached a rule of general interest .

Referring to the need for a restrictive immigration policy , the decision further stated that , unless international law obliged the GPE to grant admission , aliens could be allowed residence only if this served “ essential interests of the GPE ” ( wezenlijk Nederlands belang ) or in case of compelling reasons of a humanitarian nature ( klemmende PERSON aard ) . Neither of these conditions was met in the case of S.

On DATE the applicant filed an objection ( bezwaar ) through counsel with the Deputy Minister of ORG , underlining that her child could not have a normal existence in the LOC and that there were solid reasons why the applicant had been unable to bring her child to the GPE before DATE .

On DATE the Deputy Minister rejected the applicant ’s objection concluding that there were no grounds to justify a reversal of the initial decision since no new facts or other circumstances had been adduced and the grounds for rejection had been correct .

On behalf of S. the applicant lodged an appeal against the decision of the Deputy Minister with ORG of the Hague ORG sitting in GPE ( arrondissementsrechtbank te ‘ s - Gravenhage nevenzittingsplaats GPE , Enkelvoudige Kamer voor Vreemdelingenzaken ) . She requested an interim measure ( voorlopige voorziening ) to the effect that her daughter would not be expelled while the appeal was pending and invoked LAW in support of her claim .

eerste toelating ) to the GPE , rather than a refusal to prolong an existing right of residence . ORG rejected the request for a provisional measure .

ORG decision was final and not subject to appeal .

As a rule , anyone wishing to apply for a residence permit in the GPE must first apply from his or her country of origin to the GPE Minister of ORG for a provisional residence visa . Only once such a visa has been issued abroad may a residence permit for the GPE be granted . An application for a provisional residence visa is evaluated on the basis of the same criteria as a residence permit .

In general , the Minister of ORG ( Minister PERSON ) decides on requests lodged by aliens for residence in the GPE ( LAW ( DATE ) ) . The Minister of ORG can refuse entry and residence on general interest grounds ( gronden aan het algemeen belang ontleend ) .

In view of the situation in the GPE as regards population size and employment , Government immigration policy DATE defined at the time in the DATE Aliens Circular ( Vreemdelingencirculaire DATE ) DATE is aimed at restricting the number of aliens admitted to the GPE . In general , an application for a residence permit in the GPE is granted only if the individual ’s presence serves an essential national interest or if there are compelling humanitarian grounds to do so ( LAW of the DATE Aliens Circular ) .

The policy for admission for family reunion purposes was laid down in LAW of the DATE Aliens Circular . It provided that the following persons , where relevant , may qualify for family reunion if certain conditions ( relating to matters such as public policy and means of subsistence ) are met :

– a person ’s spouse ,

– a minor child born into the marriage who actually belongs to the family unit ( gezin ) , and

– a minor child born outside the marriage who actually belongs to the family unit ( e.g. a child of CARDINAL of the spouses from a previous marriage or a foster child ) .

The phrase “ actually belonging to the family unit ” ( “ feitelijk behoren QUANTITY ” ) used in GPE law overlaps only partly with the term “ family life ” in LAW . The former is understood to mean , for instance , that the close family ties ( gezinsband ) between the child and its parents whom it wishes to join in the GPE already existed in another country and have been maintained . For the rest , the question of whether the close family ties should be deemed to have been severed is answered on the basis of the facts and circumstances of each specific case . Factors taken into consideration include the length of time during which parent and child have been separated and the reasons for the separation , the way in which the relationship between parent and child has been developed during the separation , the parent ’s involvement in the child ’s care and upbringing , custody arrangements , the amount and frequency of the parent ’s financial contributions to the child ’s care and upbringing , the parent ’s intention to send for the child from the GPE as soon as possible and his / her efforts to do so , and the length of time that the child has lived in a family other than with the parent . Living together in the GPE without a permanent residence permit is not seen as restoring severed family ties .


The applicants are NORP nationals . They were represented before the ORG by Mr PERSON , a lawyer practising in GPE .

s , may be summarised as follows .

NORP In DATE , the applicants , as members of a ORG - supported housing construction cooperative , paid various amounts of money in NORP roubles , the then legal tender , to the GPE municipality in exchange for the local authority ’s undertaking to provide them , under privileged conditions , with newly built apartments . The payable amounts were calculated according to the prices prevailing on the NORP real property market at the material time . The validity of that transaction was confirmed by a number of legal acts issued by the municipality during the same period .

Owing to financial crises which hit the country in the course of its transition from the old NORP , ORG - controlled economy to a market one in DATE , the GPE municipality failed to fulfil its contractual obligation . Thus , the construction of the relevant block of flats for the applicants never started .

NORP The applicants’ case was not an isolated instance of non - fulfilment by the State of its contractual housing obligations . There were many other such housing construction cooperatives all over the country , which , despite having duly paid their contributions to the State , never received any dwellings in exchange . As disclosed by various legal acts contained in the case file , and notably by a Resolution of DATE of the Government of GPE , CARDINAL of the major reasons for that civil liability of the ORG was a sudden and drastic depreciation of the NORP rouble and a consequent rise in the prices of the relevant services and goods , which rendered the monetary contributions of the individual members of various housing cooperatives , such as the applicants , insufficient even for partial funding of house construction work .

NORP In DATE ORG withdrew the collapsed NORP rouble from circulation , introducing instead a provisional currency , the socalled coupons , which then also suffered from hyper - inflation . In DATE , the provisional currency was finally replaced by the NORP lari , the current national legal tender .

On DATE the applicants brought an action against ORG , requesting that the ORG fulfil its obligations under section QUANTITY ( g ) of the Act of DATE on ORG ( “ the LAW on State Debt ” ) by paying them compensation for the undelivered apartments in an amount of MONEY . They explained that the amount claimed corresponded to the overall total value of similar apartments according to the current prices on the NORP real property market .

In a judgment of CARDINAL DATE , ORG dismissed the applicants’ action as manifestly ill - founded . At the outset , the court acknowledged that the ORG ’s liability vis - à - vis the individual members of housing construction cooperatives constituted domestic public debt under section CARDINAL § CARDINAL ( g ) of the LAW . The court also noted that the ORG had failed to develop a scheme for the settlement of that debt within the time - limit set by section CARDINAL § CARDINAL of the LAW .

ORG then recalled that on DATE the Government of GPE had established , on the basis of section CARDINAL § CARDINAL of the LAW , an ad hoc ministerial Commission for the purpose of studying and drawing up recommendations for the problems related to the settlement of various forms of domestic public debt , including that owed to the individual members of housing construction cooperatives . However , that ORG was still in the process of working on the problems , without having submitted any specific recommendations to the ORG and President of GPE as yet . Consequently , in the absence of a clear legislative mechanism whereby the ORG should settle the debt , the court was not able to rule on the matter . Without such a mechanism it was not even possible , ORG emphasised , to calculate amounts which were currently payable to the applicants as compensation for their old deposits .

On DATE ORG fully upheld the first instance court ’s judgment of DATE . The appellate court reiterated that , in the absence of a legislative mechanism regulating the settlement of the relevant domestic public debt , there was no legal basis for the courts to entertain the applicants’ action for the time being . Since the repayment of that debt was intrinsically connected to its indexation and other complex financial calculations , the judiciary could not overstep the competence of the relevant ministerial Commission specifically created for that purpose .

On DATE ORG of GPE rejected the ORG cassation appeal as inadmissible , finally terminating the dispute .

On DATE the Act on State Debt was enacted . Pursuant to its section CARDINAL ( b ) , domestic debt , which resulted from various types of Government liabilities , was represented by sums in fiat currency .

Pursuant to section CARDINAL § CARDINAL ( g ) of GPE , the contractual obligations undertaken but not fulfilled by the ORG visàvis individual members of housing construction cooperatives were recognised , amongst other Government liabilities , as a form of domestic public debt . According to paragraph CARDINAL of the same section , ORG was supposed to devise a mechanism for the repayment of that particular debt by DATE .

On DATE the Prime Minister of GPE issued ORG no . CARDINAL , establishing an ad hoc Commission to address the problem of the settlement of the various forms of domestic public debt under section CARDINAL § CARDINAL of the LAW . The ORG was composed of different Ministers and was initially supposed to submit specific recommendations for the resolution of the problem by DATE . Subsequently , that deadline was postponed several times . Pursuant to the ORG as it currently stands , after having been amended for the last time on DATE , the ORG is expected to submit such recommendations by DATE .


Preliminary objection (non-exhaustion of domestic remedies) dismissed;Violation of Art. 11;Violation of Art. 11+13;Non-pecuniary damage - financial award;Costs and expenses partial award

On an unspecified date GPE ( the municipality ) started clearing the banks and the riverbed of the river “ GPE , which runs through the city . The procedure involved the uprooting and eradication of trees and plant life , which were blocking the flow of the river .

NORP The applicant organisation believed that the actions of the municipality were in violation of the domestic environmental protection legislation and that the disorderly uprooting and eradication of the trees and the plant life would disrupt the biological balance of the river .

On DATE the applicant organisation informed the municipality of its intention to hold a public rally on DATE , DATE , in front of the municipality . The aim of the public rally was to protest against the municipality 's actions and to demand that the disorderly uprooting and eradication of the river 's plant life be stopped because it was destroying important alluvial trees and the habitat of rare , endangered birds .

In a letter of DATE the municipality informed the applicant organisation that it would not permit the rally to go ahead as planned . The full text of the letter , signed by the secretary of the municipality , read as follows :

“ We inform you that GPE does not permit the conducting of the [ planned ] public rally . ”

Later on DATE , police officers visited the offices of the applicant organisation and obtained signed declarations from its leaders that they were aware of the prohibition and would not organise the rally as planned .

The applicant organisation did not hold a rally on DATE and the clearing the banks and the riverbed of the river “ NORP ” continued unabated .

On DATE the applicant organisation appealed against the municipality 's prohibition of its public rally . The appeal was filed with the municipality which did not forward it , as required under the applicable legislation , to the domestic courts together with all relevant documents .

On DATE the applicant organisation re - filed its appeal with ORG .

On DATE the ORG requested the municipality to provide it with its file and all other relevant documents regarding the public rally planned by the applicant organisation .

The municipality sent the requested documents to ORG on DATE with the exception of the applicant organisation 's appeal of DATE .

On DATE the ORG requested that the municipality also provide it with the applicant organisation 's appeal of CARDINAL DATE . On DATE it also instructed the applicant organisation to deposit the required court fee , which the latter did on DATE .

On DATE the municipality provided ORG with the applicant organisation 's appeal of DATE .

At a hearing on DATE the applicant organisation 's appeal was examined by ORG .

In a judgment of DATE ORG declared null and void the municipality 's prohibition of the public rally planned by the applicant organisation for DATE . It established that the prohibition had been issued in violation of the provisions of ORG , as it had been decided not by the mayor but by the secretary of the municipality . Furthermore , it lacked reference to any of the statutory grounds for issuing such prohibitions .

NORP The applicant organisation claimed , which the Government did not challenge , that it was informed of the judgment of ORG on DATE .

No appeal was filed against the judgment of DATE and it became final on an unspecified date .

The relevant provisions of the LAW ( DATE ) and ORG ( DATE ) have been summarised in the ORG 's judgment in the case of ORG and PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) .

Section DATE ( CARDINAL ) of LAW provided at the relevant time that the administrative authority , whose act was being appealed , had an obligation to forward the appeal filed with it to the competent court within DATE together with its full file on the matter . The second paragraph of this section provided that if the appeal and file were not forwarded to the courts then the appellant had the right to re - file his appeal directly with the courts .

NORP Before DATE ORG of DATE ( the “ ORG ” ) provided , inter alia , that the ORG was liable for damage caused only to private persons by ( a ) the illegal acts , actions or omissions of its bodies and officials acting within the scope of , or in connection with , their administrative duties ; and ( b ) the organs of the investigation , the prosecution and the courts ( sections CARDINAL and CARDINAL : see PERSON № DATE от CARDINAL г. по гр. д. № DATE г. , V г. о. на ORG and PERSON решение № CARDINAL от CARDINAL г. по т. гр. д. № CARDINAL/CARDINAL г. , ORG на ВКС ) .

NORP Currently , the ORG and local municipalities are also liable for damage caused to juridical entities by the illegal acts , actions or omissions of their bodies and officials acting within the scope of , or in connection with , their administrative duties ( section CARDINAL ) . The amendment does not have retroactive effect in respect of damage cause prior to its date of introduction .


The applicant is a NORP national , born in DATE and living in GPE . She is represented before the Court by Mr T. Christie of ORG .

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

The applicant and her husband , who are both gypsies , purchased a plot of land in DATE and moved to live there in their caravans . Applications made for planning permission for either of their caravans or for a dwelling were refused by ORG ( the Council ) . The site lay within LOC .

The applicant has been involved in procedures challenging the refusal of planning permission for DATE . In the latest appeal against the refusal of planning permission , ORG held in his decision of DATE inter alia

“ CARDINAL . PPGCARDINAL makes it clear that development not falling within the categories of exceptions against development in LOC is “ inappropriate ” development and should not be approved except in very special circumstances . Para . CARDINAL of PPGCARDINAL makes it clear that the very special circumstances to justify inappropriate development will not exist unless the harm by reason of the inappropriateness and any other harm is clearly outweighed by other considerations ...

Having regard to the above established planning policy background and the representations made , and from my inspection of the appeal property and its surroundings , I consider that the main issue in this case is whether the retention of the mobile home and its associated outbuildings would be inappropriate development in LOC , and if so whether there are any very special circumstances which outweigh the harm caused by such development .

Inappropriate development comprises all development except for a limited number of specified exceptions . The proposed retention of a new residential unit and the associated outbuildings does not constitute one of the identified exceptions ...

I turn now to whether there are very special circumstances in this case which outweigh the harm caused by such inappropriate development . You indicate ... the fact that the development is unobtrusive in form and ... the gypsy status of the < applicant and her husband>. ...

The appeal site is located close to the boundary between LOC and the north - western tip of the developed area of GPE . Given this location , I accept the ORG 's view that it is particularly vulnerable to pressure from the expansion of this adjoining area . As such , the continued openness of the site and that of the tract of land of which it forms part is of considerable importance in ensuring that the adjoining area does not expand and coalesce with the developed area of ORG to the west . Although the area contains a number of existing buildings it remains predominantly rural in character and largely undeveloped . However < the applicant 's > development , by virtue of its design , nature and siting constitutes a cluttered and urban form of development . This I consider ... is both harmful to the rural and open character of the Green Belt and to the visual amenities and landscape of this part of LOC . ...

... With respect to the accommodation needs of < the applicant > , I have taken into account that there are CARDINAL authorised gypsy caravan sites in NORP consisting of a total of CARDINAL pitches having a capacity for accommodating CARDINAL caravans . In DATE , CARDINAL caravans of CARDINAL families were parked on these pitches .

CARDINAL ... I do not find the fact of < the applicant 's > infirmity or of the suitability of horse - keeping and breeding in the countryside to be very special reasons for allowing the retention of residential use in LOC . There is no convincing reason why the use could not be carried out and secure permanent accommodation found elsewhere on land outside LOC .

I have taken into account all other matters raised in the written representations including the support given to < the applicant > locally but there is nothing of sufficient substance to outweigh those considerations which led me to the decision in this case .

For the above reasons ... I hereby dismiss the appeal ... ”

The ORG took proceedings to obtain an injunction against the applicant and her husband . On DATE , ORG ordered the applicant to remove the caravans .

Following the applicant 's appeal , ORG on DATE adjourned the matter pending further argument and with a view to reviewing the matter in the light of LAW DATE entering into force on DATE .

ORG as amended by ORG DATE ) ( “ the DATE LAW ) consolidated pre - existing planning law . It provides that planning permission is required for the carrying out of any development of land ( section CARDINAL of LAW ) . A change in the use of land for the stationing of caravans can constitute a development ( ORG v. Secretary of ORG for the Environment and GPE [ DATE ] ORG Law CARDINAL ; PERSON v. Secretary of ORG for the Environment and South Hertfordshire District Council [ DATE ] ORG ) .

An application for planning permission must be made to the local planning authority , which has to determine the application in accordance with the local development plan , unless material considerations indicate otherwise ( section CARDINALA of LAW ) .

The DATE Act provides for an appeal to the Secretary of ORG in the event of a refusal of permission ( section CARDINAL ) . With immaterial exceptions , the Secretary of ORG must , if either the appellant or the authority so desire , give each of them the opportunity of making representations to an inspector appointed by the Secretary of ORG . It is established practice that each inspector must exercise independent judgment and must not be subject to any improper influence ( see the PERSON the GPE judgment of CARDINAL DATE , Series A no . CARDINAL-A , p. CARDINAL , § DATE ) . There is a further appeal to ORG on the ground that the Secretary of ORG 's decision was not within the powers conferred by LAW , or that the relevant requirements of LAW were not complied with ( section FAC ) .

If a development is carried out without the grant of the required planning permission , the local authority may issue an “ enforcement notice ” if it considers it expedient to do so having regard to the provisions of the development plan and to any other material considerations ( section CARDINAL ( CARDINAL ) of LAW ) .

There is a right of appeal against an enforcement notice to the Secretary of ORG on the grounds , inter alia , that planning permission ought to be granted for the development in question ( section CARDINAL ) . As with the appeal against refusal of permission , the Secretary of ORG must give each of the parties the opportunity of making representations to an inspector .

Again there is a further right of appeal “ on a point of law ” to ORG against a decision of the Secretary of ORG under section CARDINAL ( section CARDINAL ) . Such an appeal may be brought on grounds identical to an application for judicial review . It therefore includes a review as to whether a decision or inference based on a finding of fact is perverse or irrational ( NORP v. Secretary of ORG for ORG , ex parte PERSON [ DATE ] Appeal Cases CARDINAL , CARDINAL ORG ) . ORG will also grant a remedy if the inspector 's decision was such that there was no evidence to support a particular finding of fact ; or the decision was made by reference to irrelevant factors or without regard to relevant factors ; or made for an improper purpose , in a procedurally unfair manner or in a manner which breached any governing legislation or statutory instrument . However , the court of review can not substitute its own decision on the merits of the case for that of the decision - making authority .

Where any steps required by an enforcement notice to be taken are not taken within the period for compliance with the notice , the local authority may enter the land and take the steps and recover from the person who is then the owner of the land any expenses reasonably incurred by them in doing so ( section CARDINAL of LAW ) .

The purpose of ORG and the operation of the policy to protect them is set out in the national policy document FAC ( DATE ) .

“ CARDINAL . The Government attaches great importance to GPE , which have been an essential element of planning policy for DATE . ...

The fundamental aim of LOC policy is to prevent urban sprawl by keeping land permanently open ; the most important attribute of ORG is their openness . Green Belts can shape patterns of urban development at sub - regional and regional scale , and help to ensure that development occurs in locations allocated in development plans . They help to protect the countryside , be it in agricultural , forestry or other use . They can assist in moving towards more sustainable patterns of urban development .

There are CARDINAL purposes in GPE :

- to check the unrestricted sprawl of large built - up areas ;

- to prevent neighbouring towns from merging into one another ;

- to assist in safeguarding the countryside from encroachment ;

- to preserve the setting and special character of historic towns ; and

- to assist in urban regeneration by encouraging the recycling of derelict and other urban land . ...

NORP The essential characteristic of GPE is their permanence . Their protection must be maintained as far as can be seen ahead . ...

The general policies controlling development in the countryside apply with equal force in Green Belts but there is , in addition , a general presumption against inappropriate development within them . Such development should not be approved , except in very special circumstances . ...

Inappropriate development is , by definition , harmful to LOC . It is for the applicant to show why permission should be granted . Very special circumstances to justify inappropriate development will not exist unless the harm by reason of inappropriateness , and any other harm , is clearly outweighed by other considerations . In view of the presumption against inappropriate development , the Secretary of ORG will attach substantial weight to the harm to the Green Belt when considering any planning application or appeal concerning such development . ”