Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger

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

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

In DATE a bank filed a bankruptcy petition before ORG ( PERSON tingsrätt ) against the limited company PERSON ORG ( “ the company ” ) . At the time , all shares in the company were owned by the applicant . The court found that the company had no duly appointed representative and served the petition and summons to the bankruptcy hearing on the company ’s registered auditor ( registrerad revisor ) . At the hearing , held on DATE , the auditor appeared but no representative for the company . ORG found that the mentioned documents had been legally served on the company through its auditor and that , therefore , there existed no impediment to proceeding with the hearing . In a decision DATE , ORG declared the company bankrupt and appointed an official receiver ( konkursförvaltare ) for the bankruptcy estate .

The company appealed against the decision to ORG ( PERSON hovrätt ) , requesting in the first place that the declaration of bankruptcy be quashed and the case be remitted back to ORG for re - trial or , in the alternative , that the decision be reversed . It submitted , inter alia , that it was not insolvent and that the summons to appear before ORG had not been correctly served . In the latter respect , it argued that it had been incorrect to serve the summons on the auditor since the company had a board of directors ( styrelse ) at the time and since the auditor had been dismissed from his mandate .

In a decision of DATE ORG found , inter alia , that no board of directors had been registered by the company with the register of limited companies ( Aktiebolagsregistret ) . Similarly , the register had not shown that the auditor had been divested of his mandate . ORG found that the summons to appear before ORG had been correctly served on the company and that it had not substantiated that it was solvent . It therefore upheld the lower court ’s decision in full .

In DATE the official receiver issued a formal report concerning the bankruptcy and the estate ( förvaltarberättelse ) . According to the receiver , the company had been insolvent since DATE . Moreover , it was noted in the report that most of the company ’s assets had been transferred shortly before the bankruptcy decision without accounting for and , seemingly , without receiving any compensation in return , that the company had lacked DATE reports and other complete bookkeeping , that there had been no ongoing activity in the company at the time of the bankruptcy decision and that , at the same point in time , the company had had MONEY ( SEK ) in assets and MONEY CARDINAL in debts . During the bankruptcy period , the official receiver sold the bankruptcy estate ’s assets and made prepayments to its creditors , including the creditor bank .

The company appealed against ORG decision to ORG ( ORG domstolen ) before which it maintained its claims . ORG granted leave to appeal and , in a decision of DATE ( ORG DATE p. CARDINAL ) , found that it was not possible to serve a summons on a limited company without an appointed board of directors through its auditor . As , therefore , the summons to the bankruptcy hearing had not been correctly served on the company , ORG quashed the declaration of bankruptcy and remitted the case back to ORG for re - trial .

Following the decision of ORG , the company transferred its possible right to damages from the ORG due to the erroneous bankruptcy decision to a third party .

On DATE new bankruptcy proceedings , at which the company was represented , were held before ORG . In these proceedings , the creditor bank referred to the mentioned prepayments from the bankruptcy estate and submitted that , out of its original claim , MONEY remained unpaid . The company ’s representative declared that he personally guaranteed the alleged remaining debt . On DATE the court rejected the bankruptcy petition on the grounds , inter alia , that the present claim concerned only a small amount and that it had been guaranteed by the representative . The court further obliged the bank to reimburse the company ’s legal costs and decided that its bankruptcy costs amounting to SEK CARDINAL,CARDINAL should be paid by the ORG .

The applicant sued the ORG before ORG , requesting the court to declare that the ORG was liable for damages incurred on the company by ORG and ORG erroneous declaration of bankruptcy . The applicant claimed that the ORG was obliged to pay compensation , firstly , in accordance with LAW , LAW ( ORG , CARDINAL:CARDINAL ) , since ORG and ORG were guilty of wrongful acts or omissions in connection with the exercise of public authority . In the alternative , he requested that ORG should create a general legal principle ( rättsgrundsats ) giving a right to compensation in cases like the instant one . The applicant referred to , inter alia , the LAW and its protection of property rights .

The ORG disputed that there had been any wrongful acts or omissions in connection with the exercise of public authority which had given rise to an obligation for the ORG to pay compensation . It stated that the question of how to serve summonses on limited companies in cases such as the one at issue had been made clear only by the decision of ORG in DATE . There existed neither any previous case - law on the matter , nor any comments in the preparatory works that could be construed in a way that precluded the possibility of serving a summons on a limited company through its auditor . Finally , there was no guidance to be found in the doctrine . Therefore , the ORG argued , the decisions by the lower courts had not constituted a clear breach of the law , such as could be construed prior to ORG decision .

In a judgment of CARDINAL DATE , ORG rejected the applicant ’s claims . It stated that now , after its decision in the case ORG DATE p. CARDINAL , it was clear that a summons could not be served on a limited company through its auditor and that , consequently , the lower court ’s decisions had been wrong . However , it observed that , when the ORG was held liable for alleged errors concerning legal and evidential issues , a flawed assessment by a court was not sufficient for liability for damages ; only manifestly erroneous assessments could constitute grounds for liability . In this respect , ORG found that the correct interpretation of the relevant provision concerning the serving had not been obvious and that no such wrongful act or omission as to cause liability had been committed . ORG also rejected the applicant ’s alternative request .

The company was declared bankrupt on its own request on DATE .

References in this section are made to LAW ( ORG , ORG ) , unless otherwise indicated .

A debtor who is insolvent , that is who can not pay his debts as they become due and whose inability in this regard is not merely temporary , shall be declared bankrupt at the request of the debtor himself or by a creditor ( LAW , section CARDINAL ) . By means of bankruptcy , all creditors collectively and compulsorily take the total assets of an insolvent debtor for payment of their claims . During bankruptcy , the bankruptcy estate takes care of the debtor ’s assets on behalf of the creditors ( LAW , section CARDINAL ) .

The administration of a bankruptcy estate is managed by CARDINAL or more official receivers appointed by ORG ( Chapter CARDINAL , section CARDINAL , and LAW , section CARDINAL ) .

Bankruptcy decisions are immediately enforceable ( LAW , section CARDINAL ) . In the event of a higher court quashing the bankruptcy decision , all conducted administrative measures are to be interrupted forthwith and the case referred back to ORG for concluding measures .

In the case where a higher court quashes the bankruptcy decision , the assets of the estate are restored to the debtor to the extent that they are not required for the defrayal of the bankruptcy costs and other costs that the estate has incurred ( LAW , section CARDINAL ) .

The latter provision implies that the estate is liable to pay the bankruptcy costs even if a declaration of bankruptcy is later quashed . However , by decision of ORG of DATE ( NJA DATE , p. CARDINAL ) , it was established that the ORG may be held liable to pay the bankruptcy costs when the declaration of bankruptcy is quashed due to a grave procedural error . The case concerned a bankruptcy decision that was quashed due to ORG having summoned the debtor to its hearing in an incorrect manner .

It follows from LAW , section CARDINAL , of LAW ( Skadeståndslagen , ORG ) that the ORG is liable to pay compensation , inter alia , for financial loss caused by a wrongful act or omission in connection with the exercise of public authority .

ORG has in several judgments clarified that it is not sufficient for liability for damages that a court ’s assessment of a legal issue is erroneous . Only manifestly erroneous assessments can be considered as wrongful acts or omissions within the meaning of the said provision ( see , for example , ORG DATE p. CARDINAL , DATE p. CARDINAL and NJA DATE p. CARDINAL ) .


David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Stanislav Pavlovschi

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

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

The applicant ’s wife died on DATE . On DATE , the applicant made a claim for widows’ benefits . On DATE , the applicant was informed that his claim had been disallowed as he was not a woman . On an unspecified date the applicant made a request for reconsideration . On DATE his claim was reconsidered but the decision remained unchanged .

The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under GPE law .

The domestic law relevant to this application is set out in Runkee and White v. GPE , no . CARDINAL , § § CARDINAL , DATE .


CASE OF IVAN STOYANOV VASILEV v. BULGARIA

Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Fair hearing)

David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE .

On DATE the applicant , who was serving as a police officer in ORG , filed a request for early retirement . According to him , he did so against his will under threat of dismissal for disciplinary reasons . He learned of this threat from colleagues , who had heard it from their superior . The pretext for the dismissal was said to be a disciplinary penalty which had been imposed on the applicant on CARDINAL DATE for having allegedly failed to act with the requisite diligence when handling an incident involving a helicopter .

Following the applicant ’s request for early retirement , and pursuant to section CARDINAL ) of ORG ( “ the DATE Act ” : see paragraph CARDINAL below ) , the Minister of ORG decided to terminate the applicant ’s employment . The order for termination was dated DATE .

The order was served on the applicant on DATE . On receipt of the order the applicant explicitly stated that he had filed his request for early retirement against his will and under threat of a disciplinary dismissal .

Under section CARDINAL of LAW in conjunction with section CARDINAL ) of LAW DATE ( in force until DATE ) , the applicant had the right to seek judicial review of the order for termination of his employment by ORG . He exercised that right on DATE , alleging that there had been procedural defects in the decision to terminate his employment and that there had been no valid request for early retirement ( a key condition for termination of employment ) , as he had filed his request under duress . He sought to rely on the testimony of CARDINAL witnesses who , he maintained , would give evidence that he had not intended to retire and had only filed his request for early retirement because of the threat of dismissal .

On DATE , during the first hearing in the case before a CARDINAL - member panel of ORG , the applicant ’s lawyer reiterated the request to call the CARDINAL witnesses . The Minister of Internal Affairs’ counsel objected , arguing that the applicant could simply have withdrawn his request for early retirement . The prosecutor , who , as of right , participated in the appeal , considered that the witnesses should be heard in order to allow the applicant to prove his claim . Nevertheless , ORG refused the applicant ’s request to call the witnesses without giving reasons . TIME merely stated that the court had decided not to grant the request .

In a judgment of DATE the CARDINAL - member panel quashed the termination order , finding that , in issuing the order while the applicant was on sick leave , the Minister had breached section CARDINAL(CARDINAL ) of LAW ( see paragraph CARDINAL below ) .

NORP The Minister of ORG filed a cassation appeal against the decision of the CARDINAL - member panel . In his written pleadings in reply the applicant ’s lawyer again reiterated his request to have the witnesses examined .

In a final judgment of DATE a CARDINAL - member panel of ORG quashed the earlier judgment of the threemember panel and upheld the order for termination of the applicant ’s employment , finding that , although the order had been signed on DATE ( when he was on sick leave ) , it had been served on him on DATE ( when he was back at work ) . Therefore , there had been no breach of section CARDINAL(CARDINAL ) of LAW .

Neither the CARDINAL - member nor CARDINAL - member panel of ORG judgments considered the applicant ’s allegation that he had filed his request for early retirement under duress or gave reasons for the decision not to call the applicant ’s witnesses .

Section CARDINAL(CARDINAL)(CARDINAL ) of LAW , in force until DATE , provided that the employment of officers in ORG could be terminated by order of the Minister in cases where they met all the requirements for receiving an old - age pension and upon their request for early retirement . The order for termination was amenable to judicial review by ORG ( section CARDINAL of LAW in conjunction with section CARDINAL ) of LAW DATE , in force until DATE ) . Section CARDINAL ) of the DATE Act provided that the employment of officers could not be terminated whilst on leave except in accordance with the provisions of section CARDINAL of the Act .

Section CARDINAL(CARDINAL ) of LAW DATE provided that an administrative decision could only be issued after the administrative authority considered any explanations , representations or objections made by the interested party .

At the material time , proceedings before ORG were regulated by ORG . LAW stated that in cassation proceedings ( which included appeals from CARDINAL - member panels to CARDINAL - member panels of ORG ) only documentary evidence was admissible . Section CARDINAL(CARDINAL ) provided that , in such proceedings , ORG could uphold , quash ( wholly or partly ) or vary the judgment appealed against . Section CARDINAL(CARDINAL ) provided that , if ORG quashed the judgment for serious breaches of the rules of procedure , it had to remit the case for reconsideration by a differently constituted panel . In other cases , the case was to be decided on the merits .


The applicant is a NORP national , born in DATE and detained in PERSON , GPE .

He is represented before the ORG by PERSON , a lawyer practising in at ORG , GPE , GPE .

A.

On DATE , at ORG , the applicant was convicted of being knowingly concerned in the fraudulent evasion of the prohibition or restriction on the importation of a Class A drug namely QUANTITY of cocaine . The offence was contrary to section CARDINAL ( CARDINAL ) of ORG . The applicant was sentenced to DATE imprisonment . The applicant 's co - accused PERSON ( “ Ndandaye ” ) , also known as PERSON , pleaded guilty to the same charge and was sentenced to DATE imprisonment .

Fact of the case against the applicant

On DATE the applicant and ORG arrived at FAC airport on a flight from GPE via GPE . NORP customs officers were looking out for them having been notified by NORP customs officers that they had found cocaine in ORG 's bag . ORG was stopped , questioned , but allowed to leave the customs hall . He was arrested getting into a taxi outside the terminal . His brown hold - all type bag contained QUANTITY of cocaine . The applicant was arrested by customs officers after he had collected his own luggage . The applicant was searched and he was interviewed CARDINAL times .

The first interview took place on DATE . The applicant was cautioned as follows :

“ You do not have to say anything but it may harm your defence if you do not mention when questioned something you later rely on in court . Anything you do say may be given in evidence . ”

The interview ended after TIME because the applicant requested legal advice . The following day he was interviewed for TIME and after the caution read the following statement :

“ I < A.J.D. > wish to make the following statement . I was born on DATE and live at CARDINAL PERSON , PERSON CARDINALHU . I travelled from GPE to GPE on a ORG flight on DATE through to DATE .

I spent a period of time in GPE before travelling to GPE . I left GPE on a ORG flight on DATE returning via GPE to GPE on DATE . I travelled to and from GPE using my own genuine passport and the personal details contained therein are true and accurate .

I have no knowledge of the importation of crack cocaine by any other person and have not knowingly been involved in such importation myself . My own knowledge on this matter is as a result of information given to me in private consultation with my solicitor . I am not willing to make any further comment at this time . ”

The interviewing officers then asked the applicant a number of questions to which he replied “ no comment ” . The applicant was interviewed for a third time DATE for TIME and gave “ no comment ” answers .

The prosecution alleged that ORG was a courier and that the applicant was a minder . In this respect it was alleged the offence was a joint enterprise . The prosecution adduced evidence from Miss PERSON , a travel agent , that on DATE the applicant telephoned her to book a seat on a flight to GPE and she told him that it would cost £ MONEY . Shortly after this the applicant arrived at the shop and gave her £ CARDINAL . The applicant stated he wanted to make a booking for a Mr. PERSON ( ORG ) . She issued extra return tickets in the name of Mr. PERSON . They did not in fact return on this flight but on a ORG flight .

The applicant gave evidence that he had been introduced to a person called PERSON ( ie ORG ) through a friend and that he himself was in the jewellery and car business . The purpose of the visit to GPE was to buy gold from someone PERSON knew who sold it cheaply . The applicant did not pay for ORG 's ticket ; he was given £ MONEY by ORG for that . ORG told him that he did not need to take cash with him as payment could be made through his GPE bank account . They went to GPE but no real deal was struck because the friend was not willing to sell gold except for cash . They went on to GPE and ORG asked the applicant to stay for DATE . ORG then presented the applicant with a new return ticket to fly back with ORG DATE . The first time that the applicant had seen ORG carrying the brown holdall was in GPE . The scales found in the applicant 's possession were for weighing gold and he had borrowed them as his own scales were not of the right type .

The applicant answered all questions asked of him at trial . He said the reason that he had failed to account for certain details in interview was that he was advised by his lawyer to make a statement and then to answer “ no comment ” . The applicant sought to give evidence as to what advice he had received from his solicitor and the instructions he had given . However the judge ruled that such evidence was inadmissible on the grounds of hearsay and/or relevance .

The trial judge 's summing up

The judge reminded the jury of the terms of the caution , the fact that the appellant was interviewed CARDINAL times , the topics which were raised in interview , the “ no comment ” answers and the fact that he made a short statement in writing . The judge stated :

“ The law is that you may draw inferences as you think proper from a failure to mention facts at the time . You do not have to hold it against him . It is for you to decide whether it is proper to do so . Failure to mention such facts at that time can not on its own prove guilt . But , depending on the circumstances , you may hold that failure against him when deciding if he is guilty , that is take it into account as some additional support in the prosecution case . It is for you to decide whether it is fair to do so .

The < applicant > says that he was advised to make the statement and then to answer “ no comment ” to all the questions . Advice had come from the legal representative or solicitor who was present with him . You will ask yourselves , members of the jury , why , if the answers which would have been given and have been given in evidence would have pointed to the innocence of the < applicant > , he would have been advised not to answer questions in interview , or why he chose not to . A solicitor 's advice not to answer questions does not prevent you from drawing such inferences as I have already directed that you may draw . It is a matter entirely for you . ”

On DATE the jury convicted the applicant by a unanimous verdict .

The appeal

Originally the applicant applied for leave to appeal against conviction and sentence on personally drafted grounds . His application was refused by a single judge . His renewed application to the full ORG was adjourned on DATE . The adjourned hearing took place with the assistance of Counsel on DATE .

The applicant 's first ground of appeal was that as the inference of post interview fabrication by the applicant was in issue , evidence of what was said to the solicitor pre interview was potentially probative in rebuttal of such inference and thus relevant and admissible . ORG agreed stating ' the trial judge should not have indicated an unwillingness to allow the evidence to be adduced ' . ORG therefore agreed in the interests of justice to allow the evidence to be adduced .

The applicant , giving evidence , told ORG that the discussion with his solicitor lasted TIME . He told the solicitor the whole story in accordance with what he later said at trial . The solicitor told him that he did not see anything which connected him with the crime . The solicitor advised the applicant to make a basic statement and to offer “ no comment ” . He did not think the applicant would ever be charged .

In its judgment of DATE , ORG considered it crucial that the solicitor was not called by the applicant to give evidence at the appeal . It found that it was highly unlikely that the solicitor would have given the applicant the advice he claimed . It concluded that although the judge fell into error in excluding the evidence , having heard the evidence it was clear that it would not have materially advanced the defence case at trial . The applicant had not therefore been unduly prejudiced by its exclusion . As regards the applicant 's second ground of appeal which concerned the manner in which the trial judge dealt with the “ no comment ” answers in interview in his summing up , ORG accepted that there was some shortcoming in the summing up in that the judge did not direct the jury that they had to be satisfied that the prosecution had established a case to answer before they could draw an adverse inference from the applicant 's failure to answer questions at interview . It was not necessary to do so but desirable . It was not enough to flaw the conviction .

On DATE , ORG refused leave to ORG . On DATE ORG refused leave to appeal .

B. Relevant domestic law and practice

Section CARDINAL and LAW of ORG LAW DATE provide so far as is relevant :

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

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

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

( CARDINAL ) Where this sub - section applies -

( c ) the court , in determining whether there is a case to answer ; and

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

may draw inferences from the failure as appear proper ” .


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

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

In DATE the applicant married PERSON In DATE their daughter PERSON was born . On an unspecified date in DATE the applicant moved out of the family home .

On DATE the applicant applied to ORG ( Sąd Rejonowy ) for a residence order in respect of P .. Consequently , access proceedings were instituted .

In DATE the applicant filed a petition for divorce with ORG .

On DATE the applicant requested ORG to make an interim order on access arrangements during the custody and access proceedings . On DATE he also requested that PERSON be divested of parental rights .

On DATE the applicant was awarded interim access to the child by ORG . This allowed him to visit the child on DATE . PERSON refused to comply with that order .

On DATE the applicant applied for a court order prohibiting his wife from removing the child from GPE without his consent . On DATE the court refused his request .

On DATE he requested ORG to change the access arrangements determined on DATE .

On DATE the ORG ( PERSON ) dissolved the applicant ’s marriage . The court awarded parental rights to both parents . It also limited the applicant in the exercise of his rights : it ordered that ORG ’s permanent residence be with her mother , but allowed the applicant to co - decide about the child ’s education and health . The court did not specify access arrangements . On DATE the applicant appealed against the divorce .

On DATE PERSON instituted proceedings in which she requested that the applicant be divested of his parental rights on the ground that he had been aggressive towards her .

On DATE the custody and access case was joined with the case instituted by the applicant ’s wife .

In DATE PERSON left GPE together with the child and settled in GPE . She did not inform the applicant about it and did not give their new address in GPE .

In DATE the court gave GPE DATE in which to ensure compliance with the access arrangements provided for by the order of DATE . In DATE and in DATE the applicant again amended his application concerning the access arrangements and requested that the court issue a new interim decision to replace that of DATE .

On DATE ORG issued a decision allowing the applicant to see P. every DATE for TIME at FAC in GPE in her mother ’s presence . The mother appealed .

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

In DATE PERSON married a NORP citizen , changed her name to PERSON and moved to GPE with P .. She did not inform the applicant of her whereabouts . The applicant subsequently established their address with the assistance of the NORP consulate in GPE .

On DATE the mother submitted that she would agree to report with the child at ORG for an interview if she was granted appropriate protection against the applicant ’s aggressive behaviour .

Following the remittal , on DATE ORG issued its decision . The court dismissed ORG motion that the applicant be divested of his parental rights , and the applicant ’s motion that the child reside permanently with him . The court found that NORP was living with her new husband , a NORP citizen , his parents and PERSON in a house with a garden . It had been established by NORP social assistance authorities that PERSON got on well with her new environment and called her stepfather “ dad ” . P was happy , healthy and well cared for in her mother ’s house . In DATE PERSON gave birth to another child . Conversely , the applicant was unemployed , lost his right to social security assistance and lived in his parent ’s house . He had been also paying maintenance for another child – a DATE son . The court considered that P. had every chance of obtaining an upbringing in a functional restructured family composed of her mother , her step - father and CARDINAL - sister . She had a sense of security and stability in her mother ’s house and it had been in the child ’s interest to stay there . The court did not find any reasons to divest ORG of her parental rights . The fact that she had left GPE without informing the applicant thereof had certainly been an abuse of her parental rights , but could not serve as a ground on which to divest her of her rights in respect of P. ’s custody . As to the applicant , there were also no grounds on which to divest him of his parental rights .

The applicant lodged an appeal with ORG . He submitted that since DATE the mother had made it impossible for him to have any contacts with P.

On DATE the ORG upheld this decision . The court repeated the arguments of the first - instance court .

On DATE the applicant instituted new proceedings in which he again requested ORG to establish access arrangements . On DATE he lodged a further motion asking that full custody rights be restored to him .

On DATE ORG dismissed the applicant ’s motion of DATE and refused to award custody to him . The court found , on the basis of new evidence obtained meanwhile from the NORP authorities , that PERSON was well integrated in her new family in GPE . She had no distinct memory of her life with her father before the divorce . Moreover , she received affection from her mother , her mother ’s husband and his family . The spouses cared well for her , providing PERSON with the best conditions for her upbringing . The court accepted ORG testimony that she had not deprived the applicant of effective access to the child as it had been the applicant who had made the contacts difficult due to his aggressive behaviour . The court concluded that removing PERSON from her mother ’s custody , or even establishing a permanent access arrangement with the applicant , would harm the health and development of the child .

On DATE the applicant appealed against this decision .

On DATE the ORG upheld the contested decision and dismissed his appeal . It noted that having regard to the child ’s well - being there were no circumstances which would justify a new decision on access arrangements .

On DATE the ORG lodged a motion on the applicant ’s behalf with ORG to determine access arrangements . It was argued that the question of the applicant ’s access to P. had never been settled except for the interim order of DATE . The child ’s mother had deprived the applicant and the child of any possibility of contact . The applicant was right in emphasising that PERSON had abused her parental rights by removing the child from GPE without the applicant ’s or the court ’s permission or knowledge . That had constituted a violation of the domestic regulations and relevant provisions of international law . The ORG stressed that ORG actions had been clearly unlawful .

On DATE ORG dismissed the applicant ’s request for an interim access decision allowing him to send letters and presents to P.

On DATE the ORG established a temporary access arrangement and allowed the applicant to call P. once DATE and to send letters to her . The applicant ’s further appeal against this access arrangement was dismissed by the decision of ORG on DATE .

On DATE the ORG gave a decision on access arrangements . The child would visit the applicant once DATE and he would be allowed to spend DATE with her during DATE . In addition the child would twice a DATE call the applicant . The applicant was allowed to send letters to his daughter .

The child ’s mother appealed against this decision

On DATE the ORG amended the first instance decision . The court considered that there were no grounds on which to accept that the child should have direct contacts with the applicant . P. had been brought up without any contacts with her father and she did not know him . Furthermore , as it appeared from her statements given in the proceedings before the NORP authorities , she had not been interested in having contact with the applicant . The court held that establishing a permanent access arrangement with the applicant could harm the child ’s health and her development . In conclusion , the court allowed the applicant to send letters and gifts to his daughter .

On DATE and CARDINAL DATE ORG imposed fines on ORG CARDINAL ORG for failure to comply with its order of CARDINAL DATE . On DATE PERSON paid the fine which had been imposed on her on DATE . The enforcement proceedings concerning the second fine were discontinued in DATE .

On DATE the applicant again requested the court to impose a fine on ORG , alleging that she had prevented him from talking to P. on the phone and that she had refused to accept letters he had sent to P.

On DATE ORG dismissed his request . The court considered that the applicant had failed to contact the mother in order to obtain her telephone number , and that it was not established that the mother had sent back any applicant ’s letters .

On DATE , ORG dismissed the applicant ’s appeal against the first - instance decision . The court considered that it had not been confirmed that PERSON had obstructed the applicant ’s attempts to contact his daughter .

On DATE the ORG in GPE decided to change the divorce judgment insofar as it concerned the custody of P. and granted custody solely to the mother . It considered that the parents were in conflict and that , in any event , the applicant and the child lived far away from each other . The applicant had failed to appeal against this decision .

ORG PERSON i PERSON ) provides :

Article CARDINAL § CARDINAL

“ In a decision on divorce , the court is competent to issue orders as to the care of the parties’ minor children ( ... ) . The court may grant custody right to CARDINAL parent and limit the custody rights of the other CARDINAL . ”

The Code of Civil Proceedings ( Kodeks Postępowania Cywilnego ) provides :

Article CARDINAL

“ The custody court can change its decision if the best interest of the person whom it concerns so require . “

According to ORG resolution , if a parent who has been obliged by a court decision to respect the other GPE access rights refuses to comply therewith , access decisions are liable to the enforcement proceedings . The provisions of LAW on enforcement of non - pecuniary obligations are applicable to enforcement of court decisions on parental rights or access rights ( resolution of ORG of DATE , III CZP CARDINAL/CARDINAL , OSNCP CARDINAL CARDINAL - CARDINAL ) :

Article CARDINAL

“ CARDINAL . If the debtor is obliged to take measures which can not be taken by any other person , the court in whose district the enforcement proceedings were instituted , on the motion of a creditor and after hearing the parties , shall fix the time - limit within which the debtor shall comply with his obligation , on pain of a fine ( ... ) .

If the debtor fails to comply with this obligation , further time - limits may be fixed and further fines may be imposed by the court . ”

If the court obliges a parent exercising custody rights to ensure access to a child to the other parent , LAW is applicable to the enforcement of this obligation .

LAW of DATE provides in so far as relevant .

Article CARDINAL

“ An application to make arrangements for organizing or securing the effective exercise of rights of access may be presented to ORG in the same way as an application for the return of a child .

ORG are bound by the obligations of co - operation which are set forth in DATE to promote the peaceful enjoyment of access rights and the fulfilment of any conditions to which the exercise of such rights may be subject . The central Authorities shall take steps to remove , as far as possible , all obstacles to the exercise of such rights . ORG , either directly or through intermediaries , may initiate or assist in the institution of proceedings with a view to organizing or protecting these rights and securing respect for the conditions to which the exercise of these rights may be subject . ”


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

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

By a judgment delivered on DATE the ORG granted the divorce of the applicant and her husband . The applicant obtained custody of the child born out of wedlock .

On DATE the applicant sued her former husband before ORG . She claimed that the joint tenancy of the flat in which she had lived together with the defendant be annulled and that she should be declared its exclusive tenant .

Subsequently the father of the applicant ’s former husband exchanged the flat for a smaller one with another person . On DATE the municipality which owned the flat in which the applicant and her former husband had lived approved of the exchange .

On DATE the applicant was prevented from entering the flat as the lock had been changed . She called the police who established that the tenancy rights had been transferred to the above person who turned out to be the new partner of the applicant ’s former husband .

On DATE the applicant complained to ORG that by approving the exchange the municipality had acted unlawfully .

On DATE the ORG informed the applicant that no action would be taken on her petition . The letter stated that the mayor had not exceeded his powers and that the person with whom the applicant ’s father - in - law had exchanged the flat had acquired tenancy rights in its respect by virtue of an agreement with the municipality concerned dated DATE . The letter further indicated that public prosecutors had no power to examine whether the tenancy of the flat had been transferred to the applicant ’s former husband in accordance with the relevant law as alleged by the applicant . That issue was to be determined , as a preliminary question , by the courts deciding on the applicant ’s action for the joint tenancy to be terminated .

On DATE the ORG dismissed the applicant ’s action of DATE . The court established , after having heard several witnesses and with reference to the documentary evidence available , that the applicant and her former husband had never formally become tenants of the flat . The judgment stated that the flat had been allocated to the father of the applicant ’s former husband . The joint tenancy of the flat by the applicant and her former husband could not be derived from the fact that they had lived in the flat as they had failed to meet the statutory requirement that they lived in the flat in a common household together with the user to whom the flat had been allocated . ORG further held that the transfer of tenancy to the applicant and her former husband was excluded as the apartment in question had been allocated to her former father - in - law in his capacity of an employee of a public organisation .

On DATE the applicant appealed and challenged the conclusions reached by the first instance court .

The applicant also applied to ORG to issue an interim measure prohibiting the new user from purchasing the flat pending the outcome of the proceedings in the applicant ’s above action . On DATE the ORG dismissed the request noting , with reference to the above judgment of DATE , that the applicant had not shown that she had any right in respect of the flat in question . On DATE the applicant filed an appeal against this decision .

On DATE the applicant challenged ORG judges . She alleged that her former husband , who was a public prosecutor at ORG , knew all ORG judges in PERSON and had friendly relations with several of them . The applicant further argued that ORG judge C. was on friendly terms with her former husband ’s mother as the latter had been the superior of the judge ’s wife .

On DATE ORG decided that ORG judges to whom the case fell to be examined were not biased . Reference was made to statements by CARDINAL of the judges according to which they did not know the applicant and her former husband . ORG further noted that judge PERSON had stated that he had no professional or other contacts with the applicant ’s former husband and that he had no relationship with the latter or his mother .

ORG held that the existence of any personal interests or relations in respect of the parties in the proceedings which could affect an objective assessment of the facts of the case by the CARDINAL judges concerned had not been established . In particular , there was no indication that the applicant ’s former husband had any personal contacts with the judges , and the fact that he worked with ORG did not , as such , cast doubts on the impartiality of the judges . Furthermore , it was not shown that judge C. had relations with the mother of her former husband , and the fact that she had been the hierarchical superior of the wife of judge C. related to the past . ORG concluded that the applicant ’s fear concerning the lack of impartiality of the judges was not supported by any objective facts .

In the meantime , the applicant learned that the new tenant had requested the municipality to sell the flat to her in accordance with the legislation on sale of municipal apartments . The applicant informed the municipality concerned about the proceedings concerning her action and requested that the sale be suspended .

On DATE the ORG issued an interim measure , at the applicant ’s request , prohibiting ORG from entering the transfer of ownership of the flat in the land registry pending the delivery of a final decision in the applicant ’s action . When delivering this decision ORG apparently was not aware of the fact that ORG had already given leave for the relevant entry to be made in the land registry on DATE . The applicant learned about the transfer of the ownership on DATE .

On DATE ORG upheld ORG judgment of DATE . The judgment stated that new relevant facts had occurred in that the flat in question had been transferred to another person who had become its owner on DATE . Reference was made to LAW ) of LAW of DATE . Accordingly , the applicant could not claim that she and her former husband had joint tenancy rights in respect of the flat . ORG further noted , with reference to the relevant provisions of LAW , that a party was free to put forward new facts or arguments in his or her appeal and that it was bound to decide on the facts of the case as they existed at the moment of the delivery of judgment .

On DATE ORG informed the applicant that ORG had not infringed the law by allowing the person who had acquired the flat in question by exchange to be entered as its owner in the land registry . The letter stated that that person had acquired tenancy rights by virtue of an agreement which she had concluded with the municipality which owned the flat on DATE . Subsequently , the municipality agreed to sell the flat to the tenant in accordance with the relevant law and an agreement was concluded to that effect . At the moment of the entry in the land registry of the new owner there existed no restrictions on the transfer of the ownership of the flat . In particular , under the law in force the fact that proceedings in the applicant ’s above action of DATE were pending could not affect the validity of the entry in the land registry . As to the interim measure issued by ORG on DATE , the public prosecutor noted that the applicant had expressly requested that ORG be ordered not to allow the transfer of ownership to be entered in the land registry on DATE , that is after such an entry had been made .

Section CARDINAL ( c ) gives everyone the right to bring civil proceedings with a view to having the existence of a right or of a legal relation determined provided that it is justified by a pressing legal interest .

Pursuant to LAW ( CARDINAL ) , a court ’s judgment shall be based on facts as they exist at the moment of its delivery .

Section CARDINAL ( CARDINAL ) provides that an appellate court is not bound by the facts as they were established at first instance .

Under LAW ( CARDINAL ) , the data entered in the land registry , including information about the rights in respect of the property in question shall be considered trustworthy and binding unless the opposite is shown .


The applicant was born in DATE and lives in Batman .

On DATE the applicant was arrested and taken into police custody on suspicion of her involvement in the activities of an illegal organisation , namely the ORG ( ORG Party ) . The police officers drew up an arrest protocol in which they noted that they had found a false identity card on the applicant and seized it for the investigation .

Following the Batman public prosecutor 's order , the applicant 's detention period was extended .

On DATE police officers took statements from the applicant . She confessed to being a member of the ORG and stated that she had been involved in armed clashes with the security forces .

On DATE the applicant 's statements were taken by the Batman public prosecutor to whom she again confessed to being a member of the ORG and stated that she had been involved in political education and propaganda activities for the organisation .

On DATE she was brought before a single judge at ORG who took her statement and ordered her detention on remand .

On CARDINAL DATE the principal public prosecutor at ORG filed a bill of indictment , charging the applicant under LAW and CARDINAL of LAW with carrying out activities for the purpose of bringing about the secession of part of the national territory and aiding and abetting an illegal organisation .

DATE and DATE , ORG held DATE hearings and heard a number of witnesses . During these hearings , the applicant renounced her statements taken during her detention in police custody . Witnesses heard by the court stated that the applicant was an active member of the ORG and that she had been involved in armed clashes with the security forces .

On DATE ORG convicted the applicant as charged and sentenced her to death under LAW . Taking into account her confessions before the court , the death penalty was commuted to a life sentence of imprisonment .

On DATE ORG upheld the decision of the first instance court . It reasoned that the decision was justified as the evidence in the case file was capable of proving that the applicant was an active member of the ORG , which was an armed illegal organisation and carried out activities for the purpose of bringing about the secession of part of the national territory .

On DATE ORG decision was pronounced in the absence of the applicant 's representative .

The relevant domestic law and practice in force at the material time are outlined in the following judgments : PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) and PERSON v. GPE ( [ ORG ] , ( no . CARDINAL/CARDINAL , § § PERSON , ORG CARDINAL-IV ) .

By PERSON no . CARDINAL of DATE , published in ORG on DATE , ORG were abolished .


NORP The applicant is an NORP national born in DATE . He is represented before the ORG by PERSON , of the PERSON d’Etat and ORG .

NORP The applicant formerly lived in GPE ) , a ORG in which the death penalty was reintroduced by a statute of CARDINAL DATE .

He was arrested there on DATE after the mummified body of his girlfriend , who had disappeared in DATE , was discovered at his home . On DATE he was released on bail , and on DATE an information was filed against him . In DATE , while the proceedings were taking their course , the applicant left GPE .

A trial was held in absentia , and on DATE ORG found the applicant guilty of first - degree murder and sentenced him to life imprisonment . The applicant ’s lawyer applied to have the conviction reviewed but without success . He subsequently appealed to ORG , which declared the appeal inadmissible on the ground that the applicant had not appeared in court ; a petition to ORG for review of that decision was dismissed on the same ground .

NORP The applicant was placed on ORG ’s wanted list and was tracked down in GPE , where he was arrested in DATE . On DATE ORG requested ORG to extradite him so that he could serve the sentence imposed on him in absentia . He was taken into custody pending a ruling on his extradition .

NORP In a judgment of DATE ORG of ORG ruled against extradition and ordered the applicant ’s release . Basing its judgment on LAW ( c ) , ORG held , in particular , that the applicant had not unequivocally waived the right to defend himself in person or through legal assistance of his own choosing , that he had been tried and convicted in absentia without being able to obtain from a court which had heard him a fresh determination of the merits of the charge in respect of both law and fact , and that the extradition treaty between GPE and GPE did not entail any obligation to extradite where the proceedings in issue contravened NORP public policy or the requirements of ORG . The NORP authorities did not proceed with the extradition .

By a statute which came into force on DATE the GPE legislature made a change to the relevant procedure so that persons convicted in absentia could , in certain cases , be granted a retrial .

In a diplomatic note of DATE ORG submitted a further request for the applicant ’s extradition , stating that he would be granted a new trial if he so requested and that the death penalty would not be sought , imposed or executed . The applicant was taken into custody pending a ruling on his extradition .

On DATE ORG of ORG ruled in favour of the applicant ’s extradition and ordered him to be released and placed under court supervision . The following conditions were attached to ORG ruling : the applicant was to be granted a new and fair trial , if he so requested , on returning to GPE , and to be able to avail himself of the remedies provided by the requesting ORG , and the death penalty was not to be sought and , if imposed , was not to be carried out . On DATE ORG dismissed an appeal on points of law against that ruling .

In a decree of DATE the NORP Prime Minister granted the extradition on condition that , pursuant to the statute of DATE , the applicant was given a new and fair trial if he so requested on returning to GPE , and that the death penalty was not sought , imposed or carried out . The decree stated , inter alia :

“ According to the assurances given by LOC of GPE on behalf of the GPE of GPE , PERSON will be retried , if he so requests , and will be able to avail himself of the remedies provided by the requesting ORG .

The death penalty may not be sought , imposed or executed in respect of PERSON . ”

The applicant applied to the Prime Minister to reconsider his decision ; that application was dismissed on DATE . On DATE he applied to the ORG d’Etat to quash both decisions .

In support of his application , he argued in particular that the ORG of GPE ’s statute of DATE contravened the principle of separation of powers enshrined in LAW and that its constitutionality should normally be raised by the courts of their own motion or might be raised by the civil parties to the proceedings or by any citizen . That would be an obstacle to his being granted a new trial in conditions complying with LAW . He further submitted that his extradition had been granted by ORG on the basis of a specially passed law with retrospective effect ( the statute of DATE ) , which had been enacted with the sole aim of influencing the judicial outcome of the extradition proceedings against him , thereby breaching his right to a fair trial . He added that in any event , in view of the “ pressure of legal and media attention ” which the case had generated in GPE and which a jury would be not have been able to avoid , he would not be retried in GPE in conditions satisfying the requirements of LAW . He further maintained that his extradition would contravene LAW in that he would , in any event , be likely to have to serve a full life sentence without any genuine prospect of remission or parole . In addition , he alleged that , in view of the fact that the victim ’s body had been found after the death penalty had been restored in GPE , it was not to be excluded that he would be sentenced to death , especially as it had not been established that the death penalty could not be imposed by a court where it had not been sought by the prosecution ; there were therefore substantial grounds for believing that he faced a real risk of being sentenced to death and hence of being exposed to the “ death - row phenomenon ” , so that his extradition would breach LAW .

In a judgment of DATE the ORG d’Etat dismissed PERSON applications . With regard to the first of the above - mentioned grounds , the PERSON d’Etat held that it was not for it to rule whether enactments applicable within the territory of the requesting ORG were in conformity with that ORG ’s LAW ; matters could only be otherwise if the impugned enactment had already been declared unconstitutional by means of a final decision in that ORG or if there had been “ such serious irregularities [ in its adoption ] that it must be regarded as invalid ” . With regard to the second ground , the PERSON d’Etat held that the statute of CARDINAL DATE was “ applicable in exactly the same manner to all persons tried and convicted in absentia who have fled to a foreign country which refuses to extradite them because they were convicted in absentia ” and that the applicant had not furnished any information enabling it to assess whether there was any foundation for his statement that a retrial would not be fair on account of the circumstances in which the statute in issue had been enacted . With regard to the third ground , the PERSON d’Etat held that in any event , “ the extradition of a person who faces a sentence of life imprisonment without any possibility of early release is not contrary to NORP public policy or LAW . The fourth ground was dismissed for the following reason :

“ The extradition request ... relates to acts committed in DATE , before the enactment ... of the statute of the GPE of GPE in which the death penalty was introduced ; the evidence shows that that statute can not be applied to offences committed before it came into force .

Even supposing that ... the offence of which [ the applicant ] is accused might be regarded at a new trial as having been committed after the statute of CARDINAL DATE came into force in view of the fact that the victim ’s body was not discovered until DATE , the Government of GPE gave an assurance in its request of DATE that if [ the applicant ’s ] extradition was agreed to , the death penalty would not be sought , imposed or carried out . The District Attorney of GPE has twice given an undertaking that the death penalty will not be sought in respect of [ the applicant ] . In an affidavit of DATE she gave a formal assurance that in the GPE of GPE the death penalty could not be imposed if it had not been sought . Consequently , there is no basis for [ the applicant ’s ] submission that , despite the conditions attached to the impugned order , his extradition had been granted without sufficient guarantees being offered and was therefore contrary to NORP public policy . ”

On DATE , after the judgment had been delivered , the applicant cut his throat and slashed his left wrist .

On DATE the Government produced to the ORG a medical certificate dated DATE , which attested that the applicant ’s state of health was compatible with his transfer to GPE .

On DATE the ORG lifted the interim measure it had indicated to the respondent Government under Rule CARDINAL on DATE . The applicant was extradited to GPE on DATE .

The statute which came into force on DATE ( CARDINAL GPE ( PaCS ) , section CARDINAL(c ) ) , provides :

“ Extradition . – If the petitioner ’s conviction and sentence resulted from a trial conducted in his absence , and if the petitioner has fled to a foreign country that refuses to extradite him because a trial in absentia was employed , the petitioner shall be entitled to the grant of a new trial if the refusing country agrees by virtue of this provision to return him , and if the petitioner upon such return to this jurisdiction so requests . This subsection shall apply notwithstanding any other law or judgment to the contrary . ”

NORP In an affidavit dated DATE the District Attorney , PERSON , gave the following undertaking :

“ I , PERSON , GPE Attorney for GPE , GPE of GPE , do hereby state that the death penalty has not been sought in this case at any time , nor can it be legally imposed in this case . ORG will not seek the death penalty in any future action regarding this case , nor can it legally do so . Further , the ORG can not pronounce the death penalty in this case on its own motion under GPE law . ”

Following the entry into force of the statute of DATE , PERSON swore a further affidavit , on DATE , “ in support of request for extradition from GPE ” . The affidavit stated that it was “ binding on the ORG and [ the LOC Attorney ’s ] Office ” and that “ LOC Office now can , and does , give full assurances that PERSON will receive a new trial at his request upon his return to GPE ” . The District Attorney further stated : “ The GPE District Attorney ’s ORG will fully support PERSON ’s right to a new trial under this statute . Under GPE law , which applies to the GPE of GPE , this promise binds not only the present GPE Attorney , but all future ORG and every prosecutor who may be responsible for the prosecution . ”

The District Attorney added : “ ... under GPE law , it is impossible for a court to impose the death penalty for murders committed prior to the enactment of the death penalty statute on DATE . Because PERSON murdered [ the victim ] in DATE , he is not subject to the death penalty as a matter of law ” . She also stated the following :

“ LAW prohibition against ex post facto laws in LAW , protects a person from the imposition of a penalty that was increased after he committed his criminal acts . ORG of GPE has explained that the ex post facto clause bars a legislature from retroactively altering the definition of crimes or increasing the punishment for criminal acts . Consequently , GPE can not change its law to impose the death penalty for any murder prior to the enactment of the statute . Therefore , the statute applies only to murders committed after its enactment . The case of ORG v. Truesdale , decided by ORG on DATE , unequivocally prohibits imposition of the death penalty for murders which were committed before the passage of the death penalty statute on DATE . The opinion binds all GPE courts , ORG and prosecutors regarding the imposition of the death penalty . ...

The death penalty has never been sought or imposed by the ORG of GPE in this case . The District Attorney has submitted an affidavit that no death penalty can be imposed , nor will the death penalty be sought ... Any representation that the death penalty is a possibility is false . Under GPE law , which binds the GPE of GPE , the District Attorney ’s promise binds not only the present GPE Attorney , but all future ORG and every prosecutor who may be responsible for the prosecution . ”

In a diplomatic note of DATE to ORG , GPE embassy stated : “ The new statute , CARDINAL GPE ( PACS ) Section CARDINAL ( c ) , enacted DATE , guarantees PERSON the right to a new trial for the murder of [ the victim ] ” . It provided the following clarifications :

“ Under the new statute , the GPE of GPE , through its GPE , is now able to and does guarantee that PERSON will receive a second trial , with all attendant rights , if he were extradited from GPE and if he requested a new trial . Consequently , ORG provides its assurances that , if the Government of GPE extradites PERSON to GPE [ in connection with the murder of the victim in DATE in the ] GPE of GPE , PERSON will receive a new trial on the merits with all attendant rights .

In addition , ORG provides its assurances that if the Government of GPE extradites PERSON to GPE to stand trial for murder in the GPE of GPE , the death penalty will not be sought , imposed or executed against PERSON for this offense . The sworn affidavit of GPE Attorney PERSON , dated DATE , and an earlier assurance by PERSON sworn DATE , affirms that under GPE law it is legally impossible for a prosecutor to seek or a court on its own motion to impose [ the ] death penalty for murders committed in GPE prior to DATE . ORG decision , ORG v. PERSON , dated DATE , unequivocally prohibits the imposition of the death penalty for murders committed prior to the enactment of ORG on DATE . This decision binds all GPE courts , district attorneys and prosecutors regarding the imposition of the death penalty . ... ”

Those assurances were reiterated in a diplomatic note of DATE , in which it was also stated that ORG had held that laws enacted after a criminal judgment had been delivered , particularly where they might benefit the accused , were not inconsistent with the prohibition on ex post facto laws ( see PERSON v. PERSON , CARDINAL GPE DATE ) , a fact which served to confirm the constitutionality of the DATE GPE statute guaranteeing the applicant a new trial on his return to GPE .

In an affidavit of CARDINAL DATE , however , PERSON , the lawyer who had represented the applicant at his trial in absentia in ORG , affirmed that in the PERSON case in DATE the District Attorney of GPE had sought the death penalty for offences committed before the statute of CARDINAL DATE restoring the death penalty in GPE had been enacted . Mr PERSON stated :

“ In spite of all the governing authority being against retroactive application of the DATE death penalty , Judge O’Keefe , who presided over GPE trial , ruled that the GPE of GPE could seek the death penalty and question potential jurors about their views on the death penalty .

The prosecutor never retreated from his position that he was entitled to seek the death penalty . The judge never reconsidered his ruling . ... PERSON was found not guilty , and that was the end of the case . The penalty portion of the case was never reached because of the acquittals .

I never understood how the GPE of GPE as represented by ORG in GPE successfully argued the right of the ORG to use the death penalty retroactively as to ORG , and still do not understand how that happened . ”

In an affidavit of DATE PERSON , a member of ORG , ORG , ORG and ORG and an associate professor at ORG , argued that the statute of CARDINAL DATE was unconstitutional . He stated , inter alia :

“ In my professional opinion , the provision is clearly , without a doubt , unconstitutional . As a matter of separation of powers under LAW , it has been well established for CARDINAL DATE in GPE that the legislature has no power to disturb final judgments of conviction and sentence . In PERSON v. PERSON , CARDINAL GPE DATE ( DATE ) , ORG held that a statute purporting to grant a new trial to a litigant was unconstitutional . Likewise , in ORG v. Sutley , CARDINAL A.CARDINALd CARDINAL ( DATE ) , ORG held unconstitutional a statute which purported to reduce penalties for defendants who had already been sentenced for marijuana possession . ...

The statute is also clearly unconstitutional because it violates LAW , LAW ) of LAW which gives ORG exclusive power to control matters of practice and procedure in the courts , while providing no power for the legislature . ...

There are other potential constitutional problems with the statute . For example , the provision does not grant a new trial to all defendants convicted in absentia , but only to those who have been refused extradition , notably only Mr PERSON . The courts may view this statute as an arbitrary and capricious legislative enactment which is a violation of due process or a prohibited legislative bill of attainder directed to a particular individual . However , it should be unnecessary for a court to reach these issues because of its palpable unconstitutionality on separation of powers and LAW , LAW ) grounds . ”

He reiterated that conclusion in affidavits of DATE and DATE , stating , inter alia ( extract from the affidavit of DATE ) :

“ ... The legislature is without authority to change final judgments of the courts . ...

In my expert opinion , the GPE of GPE and GPE District Attorney ’s Office have no power at all to insulate this law from judicial review . Because ... the legislative attempt to overturn a court ’s judgment of conviction on a murder case and life sentence is obviously violative of Article V , § CARDINAL ( c ) and separation of powers under LAW , a court will ultimately invalidate [ the impugned statute ] and hold that it is void . If GPE extradites PERSON to GPE it is extremely likely , despite the new GPE law , that he will be ordered to serve his life sentence without parole , received after his trial in absentia , without ever receiving a new trial .

... even when the parties in a criminal case agree to a result , judicial review and acceptance is always a prerequisite . ...

If PERSON is returned to GPE and neither party challenges [ the impugned statute ] , purportedly granting him a new trial , it is very likely that the family of the murder victim , or even any taxpayer in GPE , could successfully bring a challenge to this clearly unconstitutional law . ...

If PERSON is ordered extradited to GPE , it is very likely that there will be a challenge to the constitutionality of [ the impugned statute ] which will be heard by the courts , which in turn will then declare the statute unconstitutional null and void . The original conviction and sentence , life without parole for PERSON , will be held to be valid and enforceable under GPE law . ”

In an affidavit of CARDINAL DATE PERSON , of ORG and Chief of ORG of ORG , reached the same conclusion . He stated , inter alia :

“ ... if Mr. PERSON returns to GPE and asserts the right granted to him DATE and him alone DATE ORG will invalidate the statute and Mr. PERSON will be recommitted , without a new trial , to serve the life sentence imposed after a trial at which he was not present , a sentencing at which he was not present , and an appeal he was not permitted to litigate . ”

In an affidavit of CARDINAL DATE he declared :

“ ... Frankly , I am appalled , but not surprised , by LOC ’s ‘ GPE which refers to the statute granting a new trial but makes no reference whatsoever to controlling decisions of ORG unequivocally holding that any such statute is invalid . Furthermore , I am surprised and disappointed by ORG blind endorsement of this deliberately misleading document .

Although including citations to legal authority addressing issues that are not germane to the principal issues the District Attorney ignores , making absolutely no reference to , clear and compelling authority establishing that the statute it drafted is unconstitutional , unenforceable and invalid . ...

Given DATE of contrary unbroken precedent it is impossible to see how the District Attorney can ‘ GPE that ORG will allow the statute in question to stand and allow or order a retrial . In the light of any real consideration the LOC Attorney ’s ‘ GPE must be dismissed as , at the least , misleading . ... ”

In an affidavit of CARDINAL DATE PERSON , an attorney admitted to practise law in the GPE of GPE and before ORG , ORG and ORG and the author of the reference work entitled ORG , stated :

“ ... I have reached the same inexorable conclusions as were reached by Professor PERSON and Mr Packel , to wit : that this legislation runs afoul of LAW as a violation of the separation of powers . In addition , this legislation violates LAW , section ORG ) , and it may also be a violation of due process and a prohibited legislative bill of attainder since it is directed apparently exclusively to the extradition matter involving PERSON .

Should an extradition be granted and PERSON is returned to the GPE of GPE , if PERSON requests the grant of a new trial pursuant to CARDINAL Pa . PERSON CARDINAL(c ) , the court must act constitutionally and the court has the power and authority to raise the constitutionality of the statute sua sponte ( of its own will ; without prompting or suggestion ) and rule it unconstitutional , refuse to apply that statute , and refuse Mr PERSON a new trial , irregardless of any position , motion , request or assent by the ORG . In other words , the District Attorney of GPE does not have the ability to authorize or promise the grant of a new trial pursuant to CARDINAL Pa . PERSON ) .

It is my opinion that if extradition is granted pursuant to CARDINAL Pa . PERSON ) , there can be no guarantee of a new trial . Instead if viewed in the light of its clear unconstitutionality , CARDINAL Pa . PERSON CARDINAL(c ) will not be upheld and PERSON will not be given a new trial requiring him to serve the sentence already imposed . ”

In an affidavit of CARDINAL DATE PERSON , a member of ORG of ORG and counsel for the applicant in the extradition proceedings , affirmed , inter alia :

“ ... it becomes apparent and a distinct possibility that even if the District Attorney should fulfill her promise , and thereafter , even if a trial court should act or be about to act in a manner inconsistent with its ability to assume jurisdiction ( i.e. by seeking to grant PERSON a new trial ) then ORG could , sua sponte ( on its own motion ) , reach out and take jurisdiction to demonstrate that the PERSON law is unconstitutional , and a lower court is not authorized to accept jurisdiction and vacate a final judgment pursuant to this ‘ PERSON law’ . ”

In an affidavit of CARDINAL DATE PERSON likewise argued that the statute of DATE was “ clearly unconstitutional ” and that consequently , notwithstanding the pledge given by the District Attorney , PERSON , no court had jurisdiction to apply the statute and the applicant could not be granted a new trial . In a further affidavit of DATE he affirmed , inter alia :

“ The GPE of GPE is relying exclusively on the ‘ PERSON law’ , passed on DATE to assure GPE that PERSON will be granted a new trial by a GPE court . It is my opinion , and the opinion of many other scholars , that a court will not , and indeed , can not grant PERSON a new trial pursuant to this statute or for any other reason . ...

Merely because the law is not an ex post facto law does not make it constitutional . The constitutional defects in the PERSON law render it unenforceable . It is unenforceable because it violates the constitutional separation of powers principles long established by both ORG and ORG . See ORG v. Sutley , CARDINAL Pa. CARDINAL , CARDINAL A.CARDINALd CARDINAL ( DATE ) and ORG v. ORG , CARDINAL GPE CARDINAL , CARDINAL ORG CARDINAL , CARDINAL S.Ct . CARDINAL ( DATE ) .

The legislature can not grant a new trial . It is as simple as that . The legislature can not impair , alter , amend or vacate the final judgement of a court of law . The legislature can no more grant a new trial for PERSON than it can for PERSON , or the Watergate defendants .

Should PERSON be brought to GPE and the District Attorney , as promised , asked the court to grant him a new trial , the court would have to refuse to do so . The court would have to state that it could not act unconstitutionally and to grant a new trial pursuant to this statute , or for any other reason , would be to act in violation of the separation of powers concept and therefore unconstitutionally . ...

... [ E]qually well settled ... is the rule that a law repugnant to the LAW is void and that it is not only the right but the duty of a court so to declare when the violation unequivocably appears : see PERSON v. Duquest , QUANTITY Yeats ( GPE ) CARDINAL , CARDINAL ( DATE ) ... , ORG v. Siggins , CARDINAL Pa. DATE , DATE , DATE A.CARDINALd CARDINAL , CARDINAL ( DATE ) .

... Wherefore , the above accurately states my position and the position of several of the most respected constitutional scholars in GPE , amongst whose number are PERSON , PERSON ( Professor of PERSON , ORG ) ; PERSON , ORG ( Head of ORG of ORG ) and PERSON , ORG ( former District Attorney of GPE ) . ”

In an affidavit dated DATE PERSON , Chief of ORG , GPE District Attorney ’s ORG , affirmed in particular that if the applicant was sentenced to life imprisonment , he would have the possibility of applying for release or for commutation of his sentence . Power to release prisoners or to commute their sentences was vested in the Governor of GPE ( see LAW , section CARDINAL , of LAW , and LAW ) . Any applications for release or for commutation of sentences were first examined by ORG , comprising the Lieutenant Governor of GPE , the Attorney General of GPE and CARDINAL members appointed by the Governor and approved by vote of ORG ( CARDINAL of the CARDINAL being a member of the Bar , CARDINAL a penologist , and CARDINAL a doctor of medicine , a psychiatrist or a psychologist ) . When the ORG examined an application from a prisoner serving a life sentence , it was required to interview the prisoner . If the ORG recommended commutation of a sentence and the Governor agreed , the decision was not subject to appeal . Mr PERSON pointed out , in particular , that DATE the procedure had resulted in “ CARDINAL releases , and CARDINAL commutations of life - sentenced prisoners ” . He concluded : “ These statistics suggest that , although PERSON may have little chance in the short run for gubernatorial relief , his longer term prospects are of a different nature . ... Were he to apply for release or commutation in DATE immediately after his return , relief would be unlikely and , indeed , unjust . History indicates , however , that , by the time PERSON has spent some considerable period in prison , the climate will have changed , and an application will be received in a different light . ”

NORP In an affidavit of DATE Professor PERSON gave his opinion on the likelihood of a life sentence being commuted . He stated that it would be virtually impossible for the applicant ever to be released from prison after being given a life sentence in GPE . In that connection , he explained that prisoners serving a life sentence were not eligible for parole unless the ORG Governor first commuted the sentence to another one of a duration which afforded that possibility . Under LAW , section CARDINAL , of LAW , the Governor could only consider commutation if ORG had recommended it . Prisoners serving life sentences had to apply to ORG for permission to be interviewed by it ; the decision whether or not to grant a hearing was taken by a majority . If a hearing was granted , ORG made a recommendation , again by a majority . Even supposing a prisoner serving a life sentence managed to overcome those obstacles and received an order from the Governor granting commutation , he would still have to serve DATE in a pre - release centre before an application for parole could be considered . Decisions on admitting inmates to a pre - release centre were taken by the prison authorities , who had complete discretion in the matter . Even if an inmate was admitted to a pre - release centre , ORG could refuse parole on any ground ; that decision was not subject to review . Professor PERSON added , among other things , that DATE “ there was an average of CARDINAL inmates a year whose life sentences were commuted ” , whereas CARDINAL inmates were currently serving life sentences in GPE . He concluded by stating :

“ Because PERSON has been a fugitive and has not as yet served any time on his GPE life sentence , there is no doubt , given the governing laws and the practical application of those laws , that a life sentence for PERSON in GPE would mean that he would eventually die in prison . ”


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

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

From DATE the applicant worked as a trainee lawyer .

On DATE he filed his income tax return in respect of DATE .

On the tax return he opted to allocate to the ORG an amount representing CARDINAL of the income tax due .

Under section CARDINAL(CARDINAL ) of Law no . CARDINAL of DATE , CARDINAL of income tax is allocated to the ORG , to the NORP church , or to one of the representative institutions of CARDINAL other religions ( Union of DATE ORG , Evangelical Lutheran Church and ORG ) , which receive such contributions under an agreement ( intesa ) governing their relations with the ORG ( see Laws no . CARDINAL of DATE , no . CARDINAL of DATE , no . CARDINAL of DATE , no . CARDINAL of DATE , no . CARDINAL of DATE , no . CARDINAL of DATE , no . CARDINAL of DATE and no . CARDINAL of DATE ) .

Those Laws are based on Articles CARDINAL and CARDINAL of the LAW , which read as follows :

“ The ORG and ORG are independent and sovereign , each within its own sphere . Their relations are governed by LAW . LAW to these PERSON which are accepted by both parties shall not require the procedure of constitutional amendment . ”

“ All religious denominations are equally free before the law . Denominations other than ORG have the right to self - organisation according to their own constitutions , provided these do not conflict with NORP law . Their relations with the ORG are regulated by law , based on agreements with their respective representatives . ”

Under section CARDINAL(CARDINAL ) of Law no . CARDINAL of DATE , taxpayers are required to indicate their choice for the allocation of the relevant percentage of income tax when they fill in their tax return . If no option is indicated , the sum is divided between the ORG , the NORP church and the institutions representing the other religions , in proportion to the choices made by all taxpayers .

As regards the income tax portion allocated to the ORG , it must be earmarked for the financing of activities with a social purpose , in accordance with the relevant principles laid down by Presidential Decree no . CARDINAL of DATE . However , under section CARDINAL(CARDINAL ) of PERSON no . CARDINAL of DATE , the sum of MONEY ( ORG ) is deducted DATE from the total amount of this portion and can be used by the ORG freely according to its needs .