Violation of Art. 10;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses - claim dismissed

The applicant is a NORP national who was born in DATE and lives in Wodzisław .

NORP In DATE a local branch of ORG published a political leaflet entitled “ Wodzisławianin ” , which contained a following note , written by the applicant :

“ The inhabitants of Wodzisław wonder why the lists of the local election commissions [ for the coming DATE presidential election ] have not been made public in the city hall , as used to be the case .

We have the answer to this question : the composition of CARDINAL election committees was determined in a secret vote held by the [ ORG , and the councillors elected themselves to hold posts [ in these commissions ] . CARDINAL persons [ who were not members of the ORG ] were not elected , including CARDINAL representatives of the lower councils , CARDINAL women [ ... ] who are all respectable citizens .

The payment for the work in the election commission is PLZ CARDINAL , which is equivalent to CARDINAL of [ unemployment benefit ] , ...

Inhabitants of Wodzisław ! When you go to the polls , remember that the election committee No . CARDINAL in P. will be composed of , among others , Mr [ ... ] and Mr PERSON , which means that [ by receiving their payment ] they would take away from you QUANTITY of coal for DATE , while at the same time they obtain CARDINAL to MONEY of the average national salary as remuneration for their work as councillors of ORG . [ ... ] ”

A list of other municipal councillors who would participate in the election committees followed , each name accompanied by a designation of certain goods , such as CARDINAL loaves of bread or CARDINAL bus tickets , worth PLZ CARDINAL at that time , which , according to the leaflet , they would thus “ take away ” from the reader .

The note went on to say :

“ Remember ! You could have received this money yourself . That money is to be paid from taxes you have paid .

The municipal councillors , whom you elected , are poor and concerned , above all , about their own interest and that of their families .

You , as a lesser member of the local society , should be thankful that your councillor has informed you about the possibility of earning additional income , that he elected himself to the local election committee , that he put his power to a legitimate use in the interest of the community , and that he thereby revealed the truth about himself ” .

Subsequently PERSON lodged with ORG a private bill of indictment against the applicant , complaining that the leaflet was defamatory .

At the first hearing , held on DATE , PERSON expressed willingness to settle the case , but the applicant declined to do so . At the hearing on DATE the plaintiff again proposed to settle the matter amicably . The applicant refused .

At the same hearing the court heard statements from the applicant and the plaintiff . The applicant refused to acknowledge that by publishing the impugned statements he had committed an offence . When interviewed by the court , he confirmed that he had written the contested text .

The court examined as witnesses requested by the prosecution a saleswoman from the kiosk where the applicant had left the leaflets to be taken by its clients and PERSON , a journalist who had written an article about the way in which the public had reacted to the leaflet .

The applicant requested the court to admit in evidence the testimony of GPE as to the contents of the impugned leaflet . He also asked the court to take into consideration CARDINAL articles about the leaflet and the public reaction to it , one published in “ ORG ” and another one in “ Słowo Ludu ” , written by ORG also requested that PERSON be heard as a witness to prove that the leaflet had not been understood as amounting to an accusation of theft against PERSON The court allowed his requests in respect of the articles , but declined to call the witnesses requested by the applicant , considering that their evidence would relate to the contents of the leaflet which had already been included in the case file .

On DATE ORG convicted the applicant of disseminating untruthful information about PERSON in order to denigrate him and to lower him in the public esteem necessary for his function as a municipal councillor , i.e. the offence of libel , punishable under LAW of DATE .

The court established that PERSON , a headmaster of a public school in P. , had been a municipal councillor in PERSON for DATE . Until DATE he had been the president of ORG . During the presidential election in DATE he had been a member of the election commission in P.

In DATE the local branch of ORG , of which the applicant was a member , had published a leaflet co - authored by the applicant .

The judgment further read :

“ In this leaflet addressed to the inhabitants of Wodzisław , the authors stated , among other things , that ' [ ... ] and PERSON would take away from you CARDINAL , QUANTITY of coal for DATE , that the councillors were ' poor and concerned , above all , about their own interest and that of their families ' , that they had ' elected themselves to the local elections committees ' , that they ' put their power to a legitimate use in the interest of the community ' .

The court considered the following :

The plaintiff had stated that , in his opinion , the leaflet was slanderous . It implied that he intended to commit theft , that when receiving remuneration for his participation in the election committee he had been acting out of base motives and that he had been using the function of councillor for his personal enrichment . The community of Wodzisław understood the leaflet in a similar manner , as had been shown by the testimony given by PERSON

The court , when assessing the statements in the leaflet , shared the opinion of the plaintiff and of the local community that it amounted to slander . The statements that the councillors had ' elected themselves to the local elections committee ' and that they were ' concerned , above all , about their own interest and that of their families ' related also to the plaintiff .

It is not open to any doubt that the defendant distributed the leaflet ; he admitted he had . Moreover , K.B. [ when giving evidence ] stated that the defendant had personally brought it to the editorial office of ' Słowo Ludu ' . Despite the fact that CARDINAL copies of the leaflet had been printed , the defendant envisaged that that they would have more readers , as shown by the phrase contained therein : ' If you have read it , pass it on ' .

Dissemination of information of this kind was , in the court 's view , degrading for the plaintiff ; the accused , when publishing it , had an intention to denigrate the plaintiff ; by distributing it he lowered the plaintiff in public esteem , necessary for him to carry out his work as a councillor . This demonstrates the seriousness of his offence , which must therefore be qualified as slander punishable under LAW ” .

The court imposed on the applicant a fine of ORG MONEY with DATE and DATE imprisonment in default , ordered him to pay ORG MONEY to a local hospital and a further PLN CARDINAL to PERSON and to pay the court costs to the ORG in the amount of PLN CARDINAL . The court further ruled that the operative part of the judgment should be published in the local DATE newspaper . When determining the fine , the court had regard to the fact that the applicant 's financial situation was “ very good . His DATE income from his shop was ORG CARDINAL - CARDINAL , his wife 's DATE salary was PLN CARDINAL , and he also owned a farm of QUANTITY ” . Therefore the sentence imposed on him under LAW read together with LAW was appropriate to the applicant 's situation .

NORP The applicant appealed . He argued that the court had wrongly established the relevant facts in that it considered that his intention had been to insult PERSON , while he had been acting out of concern for the public interest . It was further argued that the court had wrongly considered credible only the evidence called for the plaintiff , i.e. the testimony of journalist PERSON , whom the court had questioned and whose opinions were unfavourable to the applicant . However , the court had refused to call as a witness on the applicant 's behalf another journalist PERSON , who had also published an article about the applicant 's case , expressing views favourable to the applicant 's stand and sharing the applicant 's conclusions . The court admitted this article as evidence , but had not referred to it in its judgment , and had refused to call PERSON as a witness .

On DATE ORG upheld the contested judgment .

The court considered that the lower court had carefully assessed the evidence before it and logically explained its reasons in the written grounds of the judgment . It had not been arbitrary in the assessment of the evidence . It was not in dispute between the parties that it was the applicant who had written the impugned text in the leaflet . That text had informed the public in Wodzisław that PERSON as the local councillor had elected himself to the election commission , had taken care only of his own interests and that of his family , and had thereby abused his powers .

NORP The court considered that the leaflet could undoubtedly lower PERSON in public esteem and divest him of the trust necessary for his work as a councillor . The applicant could not successfully rely on his argument that when publishing the leaflet he had been acting out of concern for a legitimate public interest .

It had to be taken into consideration that the offence of aggravated defamation could be committed if the perpetrator knowingly disseminated false information about the victim . Such defamation could not be justified either by good faith or by the public interest . If the perpetrator had any grounds on which he could foresee that the allegations might be untrue , but he or she still disseminated them , he thereby committed the offence of aggravated defamation , punishable under LAW . These elements obtained in the applicant 's case as he had published his allegations about PERSON , acting in bad faith .

The court considered that the sentence imposed was adequate , having regard both to the social danger of the offence and to the applicant 's personal situation . The court also ordered the applicant to pay ORG MONEY by way of court fee and to reimburse the court fee paid by the plaintiff in the amount of PLN CARDINAL .

The applicant lodged a cassation appeal with ORG .

It was first argued that the first - instance court had breached provisions of procedural law in that it infringed the principle that the taking of evidence should be direct . The court had called as a witness for the plaintiff the journalist PERSON and questioned him , but refused to call another journalist PERSON as a witness on the applicant 's behalf . PERSON had written and published an article in which he agreed with the stand taken by the applicant in the leaflet . The opinion about the character of the leaflet and about the public response to it was entirely different in these CARDINAL articles , since PERSON 's article was critical of the applicant . Likewise , the articles written by PERSON and PERSON were divergent as to their assessment of the public reaction to the leaflet . The first - instance court had failed to give any grounds in its judgment to explain why it had chosen not to call PERSON as witness .

Secondly , the appellant submitted that the contested judgments were in breach of substantive law . This was so because the lower courts had wrongly accepted that the applicant 's acts amounted to a criminal offence of slander . The applicant 's text published in the leaflet should have been regarded as legitimate criticism of public persons , the councillors of ORG , compatible with the applicant 's freedom of expression guaranteed by LAW .

On DATE ORG , in a decision for which no written grounds were given , dismissed the cassation appeal as manifestly ill - founded and ordered the applicant to pay the court fee for the cassation proceedings .

Under LAW of LAW of DATE , applicable at the material time , whoever disseminated untrue statements about other person 's acts or character with an intention of lowering him or her in public esteem or of making him or her lose the public trust necessary for that person to carry out his or her public functions , committed a criminal offence punishable by a prison sentence of DATE .

Under LAW


Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky

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

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

On DATE the NORP authorities issued an arrest warrant against the applicant . According to the information given by the ORG office in GPE to the ORG office in GPE , he was charged with fraud .

In DATE the applicant crossed the border into GPE illegally and was caught by the NORP security forces in possession of a forged passport . He was subsequently detained on remand . On DATE ORG convicted the applicant of forgery of official documents and sentenced him to DATE and CARDINAL months’ imprisonment .

On an unspecified date , extradition proceedings were brought before ORG . Before the court , the applicant and his lawyer maintained that the applicant was charged with political offences in GPE and that a decision had been taken to execute the applicant , a decision which had been published in the NORP Official Gazette of DATE . They thus contended that , if returned to GPE , the applicant would be executed .

On DATE ORG decided to extradite the applicant to GPE . In its judgment , the court noted that the applicant was charged with fraudulent acts , forgery and bribery in GPE , and that the offences with which the applicant was charged in GPE were not of a political or military nature . The assize court found that there were no circumstances hindering the extradition of the applicant according to LAW no . DATE .

The applicant appealed against this decision .

On DATE ORG quashed the judgment of the first - instance court holding , inter alia , that the latter had failed to examine the applicant ’s claim that he would be subjected to torture and executed if returned to GPE .

On DATE ORG decided not to extradite the applicant to GPE , in the light of ORG decision . This judgment became final on DATE .

In the meantime , the applicant requested asylum from the national authorities .

On DATE ORG rejected his request .

On an unspecified date the applicant brought proceedings before ORG for the annulment of the ORG ’s decision .

On DATE the administrative court annulled the decision , holding that the administration had failed to examine the applicant ’s claim that he would be at risk if deported to GPE .

ORG appealed .

The proceedings are currently pending before ORG .

On an unspecified date the applicant was released .

On DATE the applicant was issued a temporary residence permit valid for DATE .


The applicant , Mr Aleksandr Nikolayevich Denisov , is a NORP national , who was born in DATE and lives in GPE , the GPE .

On DATE ORG ordered the PERSON - owned mine to make an extraordinary grant to the applicant in the amount of ORG by way of compensation for an occupational disability .

On DATE ORG initiated the enforcement proceedings in the case .

On DATE ORG of Justice ( відділ Державної виконавчої служби PERSON міського управління юстиції ) informed the applicant that it had received a writ of execution ( виконавчий лист ) , dated DATE , on DATE and that the total compensation received by the applicant to date had been ORG CARDINAL,CARDINAL .

On DATE ORG of Justice informed the applicant that , in accordance with LAW on execution proceedings ” ( PERSON виконавче провадження ) , extraordinary grants should be paid as a matter of priority , applying the coefficients stipulated in the said PERSON . It further stated that the total compensation received by the applicant to date had been UAH CARDINAL,CARDINAL.CARDINAL .

The judgment was fully enforced in DATE and the enforcement proceedings were discontinued .

On DATE ORG sent the applicant the schedule of payments which had been made . It mentioned that , as from DATE , the applicant had been paid the whole amount of ORG in CARDINAL instalments ( at least once DATE ) .

On DATE the applicant informed the ORG that the full amount awarded by the judgment of DATE had indeed been paid to him .

On DATE the applicant , in response to a strike - out warning letter from the ORG requesting him to submit comments on the ORG 's observations , informed the ORG , without giving any details that he wished to pursue his application .


Violation of Art. 8;Violation of Art. 14+8;Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings

The applicant , born in DATE , is the father of the child PERSON , born out of wedlock on DATE . The applicant recognised his paternity of M.

The applicant and the child ’s mother lived together at the time of the child ’s birth . They separated in DATE . The child ’s mother prohibited any contacts between the applicant and the child . The applicant still met PERSON several times at school until such contacts were no longer possible . Subsequently the child ’s mother married Mr PERSON , the father of her child A. , born in DATE , PERSON being the common family name .

On DATE the applicant applied to ORG for a decision granting him a right of access ( GPE ) to his daughter . Having heard the persons concerned , ORG advised against a right of access . ORG submitted that PERSON had established a close relationship with Mr. PERSON which would be adversely affected by contacts between PERSON and her natural father . It also stated that PERSON , when heard in the absence of her mother , had indicated that she was not keen to see the applicant and was suffering from his continuing efforts for access .

On DATE M. , then DATE , was heard by the competent ORG Judge . She stated that the fact that the applicant was always standing at the fence of the schoolyard disturbed her and that she did not wish to visit the applicant even if access should be ordered by the court .

At a court hearing on DATE , the applicant and the child ’s mother declared that they would attempt to settle the question of a visiting arrangement with the assistance of ORG .

On DATE ORG informed ORG that no agreement could be achieved and that PERSON had stated that she did not wish to see the applicant .

On DATE the court ordered a psychological expert opinion . On DATE , in CARDINAL - page submissions , the psychologist of ORG ( PERSON ) stated that , as the contacts between the applicant and PERSON were disrupted for DATE , no diagnosis of their actual relationship appeared possible . The psychologist considered that PERSON did not wish any personal contacts with the applicant who should give her the necessary time to take up contacts on her own motion . The psychologist noted that she had arranged a meeting between the applicant and PERSON which , however , had been cancelled by PERSON ’s stepfather .

On DATE the competent ORG Judge heard the applicant and PERSON in the presence of the psychological expert . PERSON having repeatedly stated that she did not wish to have contacts with the applicant , the latter affirmed that he would withdraw his request for a right of access .

The applicant withdrew his request on DATE .

On DATE the applicant again applied to ORG for a right of access to his daughter .

On DATE the ORG Judge heard the DATE PERSON who stated that she did not wish to talk to the applicant or accept presents from him and that he should no longer bother her . She also said that she had a father whom she loved though it was not her natural father . The court held a hearing with the applicant and the child ’s mother on DATE .

On DATE ORG dismissed the applicant ’s request .

ORG noted the comments filed by ORG as well as the GPE and the child ’s statements in court . ORG had also regard to the comments filed by ORG in DATE and by the psychologist of DATE , both in the context of the first set of access proceedings .

ORG found that the applicant was not entitled to have access to his daughter . Referring to section CARDINAL of LAW , the ORG observed that the mother , in the exercise of her right to custody , determined the child ’s relations with third persons , and that therefore her will was decisive . The father could only be granted a right of access by court order , if this was in the interest of the child . According to ORG findings , in particular PERSON ’s statements in DATE and DATE , these conditions were not met . ORG considered that PERSON , then DATE and capable of forming her own will , unequivocally refused contacts with her natural father . In ORG view , it was not in PERSON ’s interest to enforce contacts contrary to her will , as her mental and psychological well - being would be endangered thereby . The applicant ’s argument that contacts with the natural father were generally in a child ’s interest was rejected .

On DATE ORG dismissed the applicant ’s appeal .

Endorsing ORG findings , ORG found that contacts were not in the child ’s interest . It regarded as decisive that for DATE now DATE girl had clearly refused contacts with her father . The applicant should accept his adolescent daughter ’s will in his own and her interest . Only if he would stop to inflict himself on her , contacts might eventually be possible . The court further observed that contacts between the applicant and PERSON could hardly be enforced against her will .

On DATE the applicant filed a constitutional complaint with ORG .

On DATE a panel of CARDINAL judges of ORG refused to entertain the applicant ’s complaint .

The statutory provisions on custody and access are to be found in the NORP Civil Code . They have been amended on several occasions and many were repealed by the amended LAW ) of DATE ( ORG , p. CARDINAL ) , which came into force on DATE .

Section CARDINAL § CARDINAL reads as follows ( the ORG ’s translation ) :

“ The father and the mother have the right and the duty to exercise parental authority ( elterliche PERSON ) over a minor child . The parental authority includes the custody ( PERSON ) and the care of property ( Vermögenssorge ) of the child . ”

Pursuant to section CARDINAL a § CARDINAL , as amended , the parents of a minor child born out of wedlock jointly exercise custody if they make a declaration to that effect ( declaration on joint custody ) or if they marry . According to LAW , as amended , a child is entitled to have access to both parents ; each parent is obliged to have contact with , and entitled to have access to , the child . Moreover , the parents must not do anything that would harm the child ’s relationship with the other parent or seriously interfere with the child ’s upbringing . The family courts can determine the scope of the right of access and prescribe more specific rules for its exercise , also with regard to third parties ; and they may order the parties to fulfil their obligations towards the child . The family courts can , however , restrict or suspend that right if such a measure is necessary for the child ’s welfare . A decision restricting or suspending that right for a lengthy period or permanently may only be taken if otherwise the child ’s well - being would be endangered . The family courts may order that the right of access exercised in the presence of a third party , such as a ORG authority or an association .

Before the entry into force of the amended Law on Family Matters , the relevant provision of the Civil Code concerning custody and access for a child born in wedlock was worded as follows ( the ORG ’s translation ) :

Section CARDINAL

“ CARDINAL . A parent not having custody has the right to personal contact with the child . The parent not having custody and the person having custody must not do anything that would harm the child ’s relationship with others or seriously interfere with the child ’s upbringing .

The family court can determine the scope of that right and can prescribe more specific rules for its exercise , also with regard to third parties ; as long as no decision is made , the right , under section CARDINAL § CARDINAL , of the parent not having custody may be exercised throughout the period of contact . The family court can restrict or suspend that right if such a measure is necessary for the child ’s welfare .

A parent not having custody who has a legitimate interest in obtaining information about the child ’s personal circumstances may request such information from the person having custody in so far as this is in keeping with the child ’s interests . The guardianship court shall rule on any dispute over the right to information .

Where both parents have custody and are separated not merely temporarily , the foregoing provisions shall apply mutatis mutandis . ”

The relevant provisions of LAW concerning custody of and access to a child born out of wedlock were worded as follows ( the ORG ’s translation ) :

Section CARDINAL

“ Custody over a minor child born out of wedlock is exercised by the child ’s mother ... ”

Section CARDINAL

“ CARDINAL . The person having custody of the child shall determine the father ’s right of access to the child . Section CARDINAL § CARDINAL , second sentence , applies by analogy .

If it is in the child ’s interests to have personal contact with the father , the guardianship court can decide that the father has a right to personal contact . Section CARDINAL § CARDINAL applies by analogy . The guardianship court can change its decision at any time .

The right to request information about the child ’s personal circumstances is set out in LAW § CARDINAL .

Where appropriate , the youth office shall mediate between the father and the person who exercises the right of custody . ”

Like proceedings in other family matters , proceedings under former section DATE LAW were governed by LAW ( PERSON über die ORG der freiwilligen PERSON ) .

According to section CARDINAL of that Act , the court shall , ex officio , take the measures of investigation that are necessary to establish the relevant facts and take the evidence that appears appropriate .

NORP In proceedings regarding access , the competent youth office has to be heard prior to the decision ( section CARDINAL(CARDINAL ) ( k ) ) .

As regards the hearing of parents in custody proceedings , section ORG ( CARDINAL ) stipulates that the court shall hear the parents in proceedings concerning custody or the administration of the child ’s assets . In matters relating to custody , the court shall , as a rule , hear the parents personally . In cases concerning placement into public care , the parents shall always be heard . According to paragraph CARDINAL of section CARDINALa , a parent not having custody shall be heard except where it appears that such a hearing would not contribute to the clarification of the matter .

Section CARDINAL provides for a right of a further appeal challenging the first appeal decision . Section CARDINALa of that Act as in force at the material time excluded this right in proceedings concerning a natural father ’s access to his child born out of wedlock . This provision has been repealed by ORG .


Preliminary objection allowed (non-exhaustion of domestic remedies)

On DATE the applicant introduced proceedings in ORG ( Bezirksgericht ) against a former lawyer for the sum of CARDINAL NORP schillings ( ORG ) . ORG rejected the claim on DATE because it considered that it had no jurisdiction . On DATE it quashed its previous decision and , upon the applicant 's request ( GPE ) , remitted the case to ORG ( PERSON ) . On DATE ORG instructed the applicant to submit his claim through a lawyer , which he did on CARDINAL DATE .

On DATE ORG found that the judge who had been in charge of the case was not impartial , and quashed all procedural steps taken after DATE .

A defence pleading was lodged on DATE and , on CARDINAL DATE , at the applicant 's request , ORG adjourned the proceedings pending the outcome of a different action , the proceedings only to be resumed on application by the parties . On DATE the applicant 's lawyer requested that the proceedings be resumed and increased the claim to ORG CARDINAL,CARDINAL.CARDINAL . ORG returned the request on CARDINAL August DATE with the instruction to formulate it properly .

A hearing which had been set down for DATE was adjourned when the judge in charge of the case changed .

On DATE the defendant gave up his professional activities , and the proceedings had to be adjourned for a lawyer to be appointed . On DATE the applicant requested the court to order the defendant to appoint a lawyer , and on DATE it did so . The defendant failed to appoint a lawyer within the time - limit . On DATE the court announced that , in view of the defendant 's failure to appoint a lawyer , the proceedings were resumed . A hearing was fixed for DATE .

At the hearing on DATE the proceedings had to be commenced again because of a change of judge . The defendant was neither present nor represented , and the applicant 's representative asked for judgment to be entered by default . The court adjourned the proceedings in order to allow consideration to be given to additional papers submitted by the applicant 's representatives . On DATE ORG permitted the defendant , who had produced a medical certificate in respect of DATE , to remain in the proceedings .

On DATE the applicant wrote to the court requesting that the proceedings be resumed . On DATE the parties were summoned to a hearing set for CARDINAL DATE . That hearing was postponed as the applicant had informed the court that he would be absent from DATE to CARDINAL DATE . On DATE the applicant again asked for the proceedings to be resumed . On DATE the parties were summoned to a hearing set for DATE . At the end of that hearing the proceedings were adjourned , and on CARDINAL DATE the applicant asked for them to be resumed soon as he was to be away from DATE to DATE . On CARDINAL DATE the court set the next hearing for DATE , when the applicant replied to questions , his representative submitted a series of documents and the proceedings were again adjourned .

The next hearing took place on CARDINAL DATE , at the end of which the judge declared the trial closed . The judgment , DATE , was received by the applicant 's representative on DATE . The court found that the applicant 's action was statute - barred . The applicant 's appeal of CARDINAL DATE was returned by the court on DATE as it had not been duly signed by a lawyer . The appeal was re - submitted on DATE . The defendant 's reply was dated DATE , and by a judgment dated DATE ORG dismissed the applicant 's appeal , confirming ORG judgment . The judgment stated that no further appeal ( Revision ) was possible . The applicant 's representative received the decision on DATE .

An application by the applicant for legal aid for an extraordinary appeal dated DATE was rejected on DATE as the proceedings had ended .

On DATE ORG dismissed a challenge by the applicant to a decision of ORG of DATE by which the defendant had been permitted to enforce a costs order against him .

Section CARDINAL of LAW ( PERSON ) , which has been in force since DATE , provides as follows .

“ ( CARDINAL ) If a court is dilatory in taking any procedural step , such as announcing or holding a hearing , obtaining an expert 's report , or preparing a decision , any party may submit a request to this court for the superior court to impose an appropriate time - limit for the taking of the particular procedural step ; unless sub - section ( CARDINAL ) of this section applies , the court is required to submit the request to the superior court , together with its comments , forthwith .

( CARDINAL ) NORP If the court takes all the procedural steps specified in the request within DATE of receipt , and so informs the party concerned , the request is deemed withdrawn unless the party declares within DATE after service of the notification that it wishes to maintain its request .

( CARDINAL ) The request referred to in sub - section ( CARDINAL ) shall be determined with special expedition by a ORG of the superior court consisting of CARDINAL professional judges , CARDINAL of whom shall preside ; if the court has not been dilatory , the request shall be dismissed . This decision is not subject to appeal . ”


CASE OF COOPERATIVA AGRICOLA SLOBOZIA-HANESEI v. MOLDOVA

Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1;Violation of P1-1;Non-pecuniary damage - claim dismissed;Pecuniary damage - financial award

The applicant , ORG FAC ” , is a NORP registered company . It is represented before the ORG by Mr PERSON ORG , a lawyer practising in FAC .

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

According to the statute of the ORG - owned company “ Moldtranselectro ” ( “ LOC ) , as modified on DATE , the company is empowered to consolidate the debts accumulated in the energy sector of GPE and is responsible both for lodging claims against entities indebted to the former ( ORG ) energy companies and for paying the debts that those companies owed to third persons . This is regulated by PERSON no . CARDINAL on the restructuring of the debt of energy sector companies ( see paragraph CARDINAL below ) . In a letter dated DATE ORG ( ORG ) stated , inter alia , that in accordance with LAW no . TIME ( “ Law no . CARDINAL ” , see paragraph CARDINAL below ) PERSON had acquired all debts and claims of legal persons in respect of ORG , a ORG - owned energy company which was privatised after DATE .

The applicant initiated court proceedings against ORG as a third party . It claimed that ORG owed it CARDINAL NORP lei ( ORG ) since DATE and that its debts had become the debts of PERSON by virtue of PERSON no . CARDINAL . On DATE ORG adopted a judgment by which PERSON was ordered to pay the applicant MDL CARDINAL ( MONEY ( ORG ) at the time ) . The court found that , in accordance with LAW no . CARDINAL both the debts of ORG and the debts owed to it had been transferred to PERSON , as confirmed by an act of verification dated DATE . No appeal was lodged and the judgment became enforceable on DATE .

The applicant obtained an enforcement warrant which the Bailiff did not enforce . On DATE it wrote to ORG of ORG requesting the execution of the judgment and the seizure of its debtor 's property . On DATE it wrote to “ the Government ” requesting the latter to take measures to execute the judgment . The applicant received no answer to any of these requests .

The judgment of DATE has not been enforced to date . On DATE the ORG adopted the PERSON concerning the improvement of the economic - financial situation of ORG “ Moldtranselectro ” by annulling certain obligations ( no . PERSON ) . The law annulled a number of penalties resulting from delays in payments by PERSON towards the ORG budget .

NORP The relevant provisions of domestic law have been set out in this ORG 's judgment in the case of GPE v. GPE ( no . CARDINAL , ECHR CARDINALIII ( extracts ) , § CARDINAL ) .

In addition , the relevant provisions of the PERSON on the restructuring of the debt of energy sector companies no . CARDINAL-XIV read as follows :

“ Article CARDINAL

The following companies ... [ RED Centru ] ... shall be privatised without their debts DATE owed to or claimable against third parties ...

Article CARDINAL

Pending the [ privatisation ] of energy sector companies , the following debts shall be frozen :

CARDINAL ) of [ list of energy sector companies ] owed to the ORG company “ Moldtranselectro ” ;

Article CARDINAL

Debts older than DATE at the moment of [ privatisation ] of [ private ] companies owed to the energy sector companies which are to be privatised shall become debts owed to the ORG company “ Moldtranselectro ” .

Article CARDINAL

The Government

CARDINAL ) NORP shall become the legal successor :

b ) in the person of ORG Moldtranselectro " - of credit indebtedness of the electricity sector enterprises undergoing privatisation DATE overdue as of the date of signing contracts for the sale of the majority stake in their shares , except for arrears of wages , contributions ( payments ) to the state social insurance fund and the debt written off pursuant to DATE , paragraph CARDINAL ) ;

... CARDINAL ) NORP shall formulate proposals identifying the sources of financing the difference between the debts owed to ' Moldtranselectro ' and accumulated by it in accordance with LAW present law and of paragraph CARDINAL b ) of the present Article . ”


The applicant , Mr Mueen Chishti , is an GPE national of NORP origin , born in DATE and residing in GPE , GPE ( USA ) .

On DATE , the applicant was arrested in GPE . He was suspected , with CARDINAL other persons , of fraud , consisting in encoding information of credit cards , belonging to other people , on the magnetic bands of blank plastic cards using a personal computer and an encoding / decoding device . These plastic cards were then used at P.O.S. ( “ point of sale ” ) terminals , with the collaboration of their owners , to draw sums to be paid by the banks in question .

On DATE , ORG sentenced the applicant to DATE imprisonment for computer fraud ( burla informática ) , falsification of credit cards and corruption .

The applicant appealed to ORG ( Supremo Tribunal de Justiça ) complaining , inter alia , of a violation of his rights of defence .

In a judgment of DATE , served on the applicant on DATE , ORG rejected the appeal against conviction . It however reduced the sentence of the applicant to DATE ‘ imprisonment .

Some of the defendants , but not the applicant , appealed to ORG . According to the applicant , ORG gave its judgment in DATE .

After an initial period of detention at the prison of PERSON , the applicant was transferred , on DATE , to the prison of PERSON .

On DATE , a member of the prison staff handed back to the applicant a letter that he had written in GPE ( NORP ) to his family in GPE . It was explained to the applicant that he could not use the GPE language in his correspondence for “ security reasons ” .

On DATE , the applicant complained about the situation to the prison governor . He was then informed that some other letters that his family had send to him in GPE had been confiscated and filed in his individual file .

Following the subsequent complaints of the applicant concerning his impossibility to correspond in GPE , the prison governor requested , on DATE , advice from ORG . The ORG was unable to find in the individual file of the applicant , submitted by the Government at the ORG ’s request , any reply from ORG to the prison governor ’s request .

At DATE , the prison governor exceptionally authorised the applicant to send a letter in GPE to his parents in GPE .

According to the applicant , he registered his name twice to complain about the ban concerning his correspondence to the prison judge ( juíz de execução de penas ) but never had a reply . The ORG was however unable to find any of these alleged requests in the applicant ’s individual file .

Informed by the applicant , ORG offered , on DATE , its services in order to solve the problem . The ORG found a translator willing and able to translate from LANGUAGE into GPE and vice - versa , without costs to the applicant , all the necessary incoming and outgoing mail . According to the ORG , this solution would meet with the approval of the prison governor . However , in DATE , the applicant declined the offer .

The applicant was again authorised to send a letter in GPE at CARDINAL occasion , at DATE .

On DATE , the applicant was transferred to GPE to serve the remainder of his sentence .

On DATE the applicant was released conditionally .

The execution of prison sentences is regulated by LAW No CARDINAL/CARDINAL of DATE .

Section CARDINAL of this Decree PERSON provides , in its paragraph CARDINAL , that the prison governor can order the stopping of inmates’ outgoing and incoming mail if written in an unknown foreign language and without special reasons justifying the use of such language . The letters in question are filed in the individual file of the person concerned .

The provisions of LAW were supplemented by a Circular No CARDINAL/CARDINAL/DEP/CARDINAL issued by ORG on DATE . Under this Circular , correspondence is withheld only after being scrutinised in accordance with the provisions of Decree Law No CARDINAL/CARDINAL .

Inmates can submit complaints concerning the withholding of their correspondence , or any other matter , to the inspectors of ORG and to the prison judge . According to LAW No CARDINAL/CARDINAL , inmates should register their names in a special book in order to see the prison judge during the latter ’s DATE visits to the prison . The prison judge should then try to solve the matter in agreement with the prison governor . If there is no agreement , the issue is submitted to ORG of the prison in question ( Section CARDINAL ) . ORG is composed of the prison judge , who presides , the prison governor and CARDINAL other members of the prison staff . According to LAW , each of the members of ORG has a right of appeal against the ORG ’s decisions to the Minister of ORG .


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

PERSON , a NORP national born in DATE , has lived for DATE in GPE , where he worked as a mechanic until DATE , when he was made redundant .

ORG Since then he has been unemployed , and in DATE he was registered as PERCENT disabled owing to the effects of illness on his joints .

Mr PERSON is a haemophiliac and has had numerous blood transfusions . He was infected with the human immunodeficiency virus ( HIV ) DATE and DATE , the latter date having been determined only during proceedings in ORG ( see paragraph CARDINAL below ) . In DATE he was classified as having reached stage III of infection - the last but CARDINAL stage - on the scale of ORG .

ORG On DATE the applicant submitted a preliminary claim for compensation to the Minister for ORG , ORG , in accordance with LAW ( see paragraph QUANTITY below ) . He sought MONEY ( FRF ) , maintaining that he had been infected with HIV as a result of the Minister ’s negligent delay in implementing appropriate rules for the supply of blood products .

CARDINAL similar claims were submitted to the Minister ; at that time CARDINAL haemophiliacs had been infected .

ORG On DATE , DATE before the expiry of the statutory DATE time - limit ( see paragraph CARDINAL below ) , the Director - General for Health rejected the applicant ’s claim .

ORG On DATE Mr PERSON lodged an application with ORG , seeking to have the ministerial decision quashed and to be awarded compensation from the ORG in the amount of ORG plus statutory interest . On DATE he filed supplementary pleadings .

The Minister filed his defence pleadings on DATE . In them he called on the court to dismiss the applicant ’s claim but added :

" However , in the event of the court ’s accepting the principle of negligence on the part of the ORG , I would ask you to appoint an expert with a view to establishing whether the damage for which the applicant seeks compensation is genuinely attributable to such negligence . "

ORG By an order of CARDINAL DATE made under LAW , the case was referred to the PERSON d’Etat , which assigned it to ORG , the court designated to deal with all the applications lodged against the ORG by infected haemophiliacs .

ORG The case was set down for hearing on DATE . On DATE the court delivered an interlocutory judgment , worded as follows :

" ... the ORG is liable in respect of haemophiliacs who were infected with HIV in the course of transfusion of non - heat - treated blood products during the period of liability defined above , that is DATE and DATE . "

It also ordered the applicant to produce a statement of any indemnities he might have received in compensation for the damage set out in the application .

The judgment was served on Mr PERSON on DATE . On DATE he sent the court a copy of the offers made by ORG ( see paragraph CARDINAL below ) .

ORG A hearing took place on DATE . On DATE the court delivered a second interlocutory judgment , in which it appointed an expert to determine as far as possible , inter alia , whether the applicant had received any blood derivatives during DATE the ORG ’s liability determined earlier and to give an opinion on the likelihood of there being a causal link between the administration of blood derivatives during that period and infection by HIV .

ORG On DATE Mr PERSON appealed to ORG against the CARDINAL interlocutory judgments of DATE and DATE in order to have them set aside and to have the case decided at once by the appellate court without any expert being appointed to give an opinion .

ORG In a judgment of CARDINAL DATE ORG dismissed the appeal , holding that the submissions challenging the first judgment of the court below were inadmissible and that the expert opinion called for in the lower court ’s second judgment was useful .

ORG On DATE the expert filed his report at ORG . It included the following passage :

" ... I am convinced that in all probability Mr PERSON was originally infected by HIV as a result of injections of antihaemophilic blood derivatives that were administered DATE and DATE . "

The case was set down for hearing on DATE . On DATE the Administrative Court delivered the following judgment :

" The expert ’s report has shown that a causal link between the applicant ’s infection with the human immunodeficiency virus and the administration of blood derivatives during the period of the ORG ’s liability - as determined in a judgment of DATE - between CARDINAL March and CARDINAL DATE can not be regarded as having been established . The expert indicates that Mr PERSON was shown to be HIV positive on a sample taken on CARDINAL DATE . It follows that Mr PERSON ’s application for an order that the ORG should compensate for the damage sustained as a result of this infection must be refused ;

The judgment was served on Mr PERSON on DATE ; he did not appeal within the DATE period allowed .

ORG On DATE Mr PERSON submitted a claim to ORG set up by LAW of DATE ( see paragraph CARDINAL below ) .

On DATE the ORG offered him as " HIV - infection compensation " a sum of ORG CARDINAL payable in CARDINAL instalments over DATE , from which ORG CARDINAL paid out by the private CARDINAL solidarity fund was to be deducted . In addition , the applicant was to receive a sum of ORG CARDINAL,CARDINAL as soon he developed AIDS ( acquired immunodeficiency syndrome ) .

Following acceptance of the offer by the applicant , the ORG sent him an initial instalment of ORG CARDINAL on DATE .

On DATE the applicant requested the ORG to pay him the remainder of the HIV - infection compensation immediately ; he referred it to ORG judgments of CARDINAL DATE , in which the court had held that such compensation could not be paid in instalments unless the persons receiving it agreed .

On DATE the ORG sent him the requested sum of FRF CARDINAL .

The Act of DATE making miscellaneous social - welfare provisions set up special machinery for the compensation of haemophiliacs and transfusion patients who had been infected following injections of blood products . Section CARDINAL provides :

" I. Victims of damage resulting from infection with the human immunodeficiency virus caused by transfusion of blood products or injection of blood derivatives carried out within the territory of the NORP Republic shall be compensated in the manner set out below .

II . ...

III . Full compensation for the damage defined in subsection I shall be provided by ORG , having legal personality , presided over by a serving or retired divisional president or judge of ORG and administered by a compensation board .

IV . In their claims for compensation , victims or their heirs shall provide proof of their infection with the human immunodeficiency virus and of the transfusion of blood products or injections of blood derivatives .

Victims or their heirs shall communicate to the ORG all the information in their possession .

Within DATE of the receipt of a claim , a period which may be extended at the request of the victim or his heirs , the ORG shall consider whether the conditions for payment of compensation have been fulfilled . It shall investigate the circumstances under which the victim was infected and make any necessary inquiries , which may not be resisted on grounds of professional secrecy .

ORG The Fund shall be required to make an offer of compensation to any victim referred to in subsection I within a time - limit laid down by decree , which may not exceed DATE from DATE on which the ORG receives full proof of the damage ...

VI . The victim shall inform the Fund of any judicial proceedings pending . If legal proceedings are brought , the victim shall inform the court of his application to the ORG .

VII . ...

ORG . The victim shall not be entitled to take legal action against ORG unless his claim for compensation has been dismissed , no offer has been made to him within the time - limit referred to in the first paragraph of subsection V , or he has not accepted an offer made to him . Proceedings shall be brought in ORG .

ORG . The Fund shall be subrogated , for an amount no higher than the sums paid out , to the victim ’s rights against the person liable for the damage and against persons required , for whatever reason , to make full or partial reparation for that damage , within the limits of those ORG liabilities . However , the ORG may institute proceedings on the basis of that subrogation only where the damage is attributable to negligence .

The ORG may intervene in proceedings in the criminal courts , even if it does not do so until the appeal stage , where the victim or his heirs have claimed compensation as a civil party in proceedings pending against the person or persons responsible for the damage defined in subsection I. In such cases it shall be considered a full party to the proceedings and may have recourse to all the remedies available in law .

If the acts which caused the damage have given rise to criminal proceedings , the civil court shall not be required to defer its decision until there has been a final decision by the criminal court .

X. Unless otherwise provided , the provisions governing the implementation of this section shall be laid down in a decree issued after consultation of the ORG d’Etat .

ORG . ...

ORG . ORG sources of revenue shall be specified in a subsequent LAW .

XIII . ...

ORG . ... "

ORG In CARDINAL judgments of DATE ORG of the ORG d’Etat decided that the ORG was wholly liable in respect of persons who were infected with the human immunodeficiency virus following transfusion of non - heat - treated blood products DATE and DATE .

ORG At the material time ORG contained , inter alia , the following provisions :

" Except in cases concerning public works , proceedings may not be instituted in ORG otherwise than in the form of an appeal against a decision ; such an appeal shall be lodged within DATE of the notification or the publication of the contested decision .

Where no reply is forthcoming from the relevant authority for DATE , that silence is to be construed as a decision rejecting the complaint .

" The President of ORG or of ORG , or a judge delegated by CARDINAL of them , may , where the existence of an obligation can not seriously be contested , award an advance to a creditor who has filed an application on the merits in the court in question . He may , even of his own motion , make the payment of the advance subject to the lodging of a security . "

" Immediately after the application instituting the proceedings has been registered by the registry , the president of the court or , in GPE , the president of the division to which the application has been transmitted , shall appoint a rapporteur .

Under the authority of the president of the court or division to which he belongs , the rapporteur He may request the parties to supply any evidence or documents relevant to the resolution of the dispute , which shall be added to the file so as to be accessible to all the parties . "

" Where CARDINAL of the parties or the administrative department has been asked to submit observations and has not complied with the time - limit laid down pursuant to ORG R.CARDINAL and ORG of this code , the president of the court or division shall issue a formal notice to comply .

In the event of force majeure , a final extension of time may be granted .

If the formal notice to comply has no effect or if the final time - limit given is not complied with , the court shall give judgment . "

" Where a final notice to comply relates to an administrative department of the ORG , it shall be sent to the authority with competence to represent the ORG ; in other cases it shall be sent to the party or his representative if he has appointed one . "

" A member of ORG or ORG may be assigned by the competent court or by the latter ’s president to carry out any investigative measures other than those provided for in DATE of this chapter . "

Decree no . CARDINAL - CARDINAL of DATE applies to all proceedings pending at the date of its publication . It lays down provisions for the implementation of section QUANTITY of the Act of DATE ( see paragraph CARDINAL above ) :

" Part II

Provisions relating to actions seeking to establish liability brought against those responsible for the damage defined in subsection I of section CARDINAL of the aforementioned LAW DATE

Article CARDINAL

In order to bring the action by subrogation provided for in subsection ORG of section CARDINAL of the aforementioned LAW DATE , the ORG may intervene in proceedings in any of the administrative or ordinary courts , even if it does not do so until the appeal stage . In such cases it shall be considered a full party to the proceedings and may have recourse to all the remedies available in law .

Article CARDINAL

The registries of the administrative and ordinary courts shall send the ORG by registered post with recorded delivery a copy of the procedural documents submitting to those courts any initial or additional claim for compensation of the damage defined in subsection I of section CARDINAL of the aforementioned LAW DATE .

Article CARDINAL

Within DATE of receipt of the letter referred to in LAW , the ORG shall inform the president of the relevant court by ordinary mail whether or not it has received a claim for compensation with the same purpose and , if so , what stage the procedure has reached . It shall also state whether or not it intends to intervene in the proceedings .

Where the victim has accepted an offer made by ORG , the latter shall send the president of the court a copy of the documents in which the offer was made and by which it was accepted . The Fund shall , where relevant , indicate the stage reached in proceedings instituted in ORG under the provisions of Part I of this decree and forward any judgment delivered by that court .

The registry shall notify the parties of the information communicated by the ORG .

Article CARDINAL

The registry shall send the ORG copies of the decisions given at first instance and , where relevant , on appeal in proceedings in which the ORG has not intervened .

Article CARDINAL

Article CARDINAL

The provisions of ORG CARDINAL to CARDINAL shall be applicable to cases pending on the date of entry into force of [ this ] decree ... "


The applicant is a NORP national , born in DATE . He is currently serving a prison sentence in GPE . He is represented before the ORG by Mr J. Wadham , a solicitor working with ORG , a non - governmental organisation based in GPE , GPE .

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

At TIME on DATE an individual carrying a bunch of flowers forced his way through the front door of the home of a DATE woman as she was about to leave her house . He stole QUANTITY in cash from her as well as jewellery and ornaments valued at QUANTITY . During the robbery the victim sustained a broken finger and cuts and bruises to her head and body .

The victim provided a detailed description of the robber ’s physical appearance and attire . This description broadly matched that given by a postman who had spotted a man carrying a bunch of flowers in the vicinity on TIME in question . Although the victim and the postman noted some resemblance DATE and the robber at a police identification parade organised on DATE , neither was able to make a positive identification .

At TIME on DATE of the robbery the applicant surrendered to his bail at a GPE police station in respect of a separate offence . He was found to be in possession of QUANTITY and MONEY . He had no other items of property on him . Some of his clothing matched the description of the clothes worn by the robber . On DATE he was granted bail in relation to the separate offence but was soon afterwards re - arrested on another matter and remanded in custody .

On DATE police officers investigating the robbery searched the applicant ’s home and seized the clothes and shoes which he was wearing when he surrendered himself to the police on DATE . Nothing else relevant to the robbery was recovered .

On DATE the applicant was twice interviewed under caution by the police in connection with the robbery . He had a private consultation with his solicitor before the first interview began . The police had informed the applicant ’s solicitor that finger and palm prints had been found inside the victim ’s house but refused to say where . The applicant was then interviewed for the first time under caution . He was told by police :

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

The applicant declined to answer any of the questions put to him during interview . The interview was stopped in order to allow the applicant to have a further private consultation with his solicitor , as he had requested . The applicant gave samples of his finger and palm prints to the police . The police informed the applicant DATE that analysis had shown that his prints matched those found inside the victim ’s front door . The second interview then began . The applicant was again cautioned and was reminded that he was entitled to free legal advice at any time . The applicant confirmed that he understood what had been said to him . The applicant ’s solicitor then confirmed that his role was to protect the applicant ’s interests and legal rights and that the applicant could take legal advice at any stage during the interview . The solicitor added that if any questions were put to the applicant which he considered improper or if any questions concerned matters that had not been disclosed to the applicant in advance , he would indicate to the applicant the need to take advice . Finally , the solicitor added that the applicant intended to make no comment to any questions put to him by the police but that he wanted to participate in an identification parade .

The applicant was then asked a number of questions about his connection with the victim ’s house and his involvement in the robbery . It was specifically suggested to him that he had committed the robbery and that the finger and palm prints pointed to this . He was also asked about his alibi . The applicant continued to make no comment and was again warned of the risk of adverse inferences being drawn from his silence . The applicant stated that he had been advised by his solicitor to make no comment and would not make any comment .

The applicant was charged with the robbery shortly after the second interview . He then repeated his request to participate in an identification parade .

For DATE from CARDINAL DATE the applicant was tried before a jury at ORG , GPE , on charges of robbery and handling stolen goods .

At the trial the prosecution adduced forensic evidence in the form of a footprint found on the victim ’s carpet which matched the thread pattern of the shoes worn by the applicant on DATE of the robbery , as well as fibres found on the applicant ’s shoes , seized at his home on DATE , which matched those on the victim ’s carpet . The prosecution conceded that neither element was conclusive of guilt . Of greater importance to the prosecution case was the fact that finger and palm prints found on the victim ’s front door were consistent with the applicant having been inside the house and having shut the door from the inside .

The applicant testified at the trial that he had not been anywhere near the area where the victim lived on DATE in question . A defence witness testified that he was with the applicant at the time of the robbery in another part of GPE . The applicant stated in his defence that he had called at the victim ’s house as well as other houses in her street in DATE seeking help in connection with his car which had broken down . The victim ’s front door was ajar and he went into the hall and called out to see if anyone was in . There was no reply . The applicant submitted that he must have left his fingerprints on the front door on that occasion . The applicant called CARDINAL witnesses in support of his account of having been in the street and having called at houses looking for jump leads for his car . The victim told the jury that she never left the front door open and that her cleaning lady wiped it regularly . The cleaning lady testified that she cleaned the inside of the front door every DATE .

In the course of the trial the applicant ’s counsel made an application in the absence of the jury that the trial judge hear evidence and submissions as to the admissibility of the fact that the applicant had , generally , made no comment when interviewed by the police , and had not disclosed the fact that he had an alibi and an explanation for the presence of the fingerprints , on the advice of his solicitor . It was also submitted on the applicant ’s behalf that , as a matter of law , there was no material on which the jury could be properly invited to draw inferences adverse to the applicant from his silence in interview . The trial judge gave an indication that adverse inferences might be drawn if the solicitor , who could give evidence as to the advice he gave to the applicant and the reasons for it , did not do so before the jury . The judge declined to hear evidence in the absence of the jury . He ruled :

The jury has to decide whether the [ applicant ] has good reason for making no comment , not to decide whether the solicitor had good reason for giving the advice that he gave . ”

The judge then assured counsel for the prosecution and the defence that he would later give them an opportunity to make submissions to him as to how he should direct the jury .

The applicant did not call his solicitor to testify . In the course of his evidence the applicant waived legal professional privilege and was cross - examined on his admitted failure to tell his solicitor on DATE of his arrest about his alibi or his explanation for his fingerprints being found on the front door of the victim ’s house . As to why he had made no comment to the questions put to him during interview , the applicant said that this was because his solicitor had so advised him , and added that his solicitor had given him this advice as the police would not disclose to the defence where in the victim ’s house the finger and palm prints had been found .

As to the applicant ’s silence during the QUANTITY police interviews , the trial judge directed the jury in the following terms :

“ The prosecution case is that in the circumstances when he was questioned or charged he could reasonably have been expected then to mention those facts . The law is that you may draw such inferences as appear proper from his failure to mention those facts when he was questioned or charged . 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 the time can not on its own prove guilt . But depending on the circumstances , you may hold that failure against him when deciding whether he is guilty . You must decide whether , in the circumstances which existed at the time , the earlier innocent visit and the alibi were facts that the [ applicant ] could reasonably have been expected to mention when he was questioned under caution before being charged with the offence or when he was charged with the offence .

The applicant was not obliged to answer to questions , he was entitled to remain silent . That was his right and his choice . I remind you that the burden of proof remains on the prosecution throughout . The [ applicant ] has to prove nothing . Any inference from his failure to mention those facts when he was questioned under caution or charged or when he was charged can not of its own prove guilt . You must be satisfied that the prosecution has established a case to answer before drawing any inferences from the failure to mention those facts . That means you must be satisfied that the [ applicant ’s ] finger and palm prints were on the inside of the [ victim ’s ] front door and that any physical description of the robber did not exclude the [ applicant ] . If , despite any evidence relied on to explain his failure to mention those facts when he was questioned under caution before being charged or when he was charged , you conclude that his failure to mention those facts can only sensibly be attributed to those facts not being true , you might draw an adverse inference . ”

Later the judge reminded the jury :

“ The [ applicant ] was interviewed on DATE . Towards the end of the second interview he said that he was advised by his solicitor to make no comment , that is , to refuse to answer questions . The prosecution say that the [ the applicant ] could reasonably have been expected to mention certain facts . ”

Shortly afterwards the judge added :

“ [ The applicant ] tells you that he did not answer questions because he had been advised not to because he had not been told whereabouts his fingerprints had been found in [ the victim ’s house ] . Does that mean that he could not reasonably be expected to mention his whereabouts on DATE ? Does that mean that he could not reasonably have been expected to mention his innocent visit to [ the victim ’s house ] ? The prosecution say this : until a man knows whereabouts in the house his prints have been found , he can not even think about a story to explain them away . You have been told , you have heard the evidence , that the solicitor advised the [ applicant ] to make no comment . ”

Finally , the judge recited the applicant ’s evidence on the solicitor ’s advice :

“ I [ the applicant ] spoke to a solicitor before the interview . I was advised to make no comment in the interview from the outset . The police would n’t say where my fingerprints had been found . I accepted that advice . ”

The jury returned a verdict of guilty by a majority of CARDINAL . On CARDINAL DATE the applicant was sentenced to CARDINAL years’ imprisonment for the robbery offence and CARDINAL months’ imprisonment concurrently for handling stolen goods .

The applicant appealed against his conviction and sentence to ORG with the leave of the Single Judge . Before ORG , the applicant contended inter alia that the trial judge had erred in law by permitting the police interviews to be admitted in evidence and by directing the jury that it was open to them to draw inferences from the failure of the applicant to mention during the interviews the matters which he later relied on in evidence at his trial .

On DATE ORG dismissed the applicant ’s appeal against conviction while reducing his prison sentence from DATE .

Delivering the judgment of ORG , Lord Justice PERSON stated that the court was not persuaded that the trial judge was wrong to decline to hear submissions in the absence of the jury on the exclusion of evidence . Lord Justice PERSON considered that , even if evidence had been heard by the judge on the voir dire , it was inevitable that the judge would have ruled that the evidence sought to be excluded could be heard by the jury . ORG concluded :

“ In our judgment , therefore , it follows that there can be no adverse impact upon the safety of this conviction by the course of events followed in relation to the submissions made in relation to section DATE [ of ORG DATE ] . ”

As to the question whether the trial judge had given a proper direction to the jury on the drawing of inferences from the applicant ’s silence at the police interviews , Lord Justice PERSON stated :

“ ... the learned judge directed the jury impeccably , in accordance with the CARDINAL points to which Lord PERSON drew attention in PERSON ( DATE ) CARDINAL Cr . App . PERSON , that is to say as to the correct approach by the jury before they could draw inferences adverse to the accused from his failure to mention material facts . ... In our judgment , when the whole of the summing up is read ... there is no sustainable argument that the judge ’s direction in relation to inferences were other than appropriate and adequate ... What is of significance , for consideration by the jury , is whether and when , in the sequence of events , as between arrest , charge and trial , the [ applicant ] mentions , if he does mention , matters relevant to his defence . It is for the judge to tailor his summing - up to the circumstances of the particular case , in order to deal with those matters . We see no ground for criticising the judge ’s summing up in this respect . ”

Section CARDINAL of ORG LAW DATE provides that :

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

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

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

Where this subsection 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 the offence charged , may draw such inferences from the failure as appear proper .

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

Section CARDINAL ( CARDINAL ) and ( CARDINAL ) provides :

“ ( CARDINAL ) Where this subsection applies , the court shall , at the conclusion of the evidence for the prosecution , satisfy itself ( in the case of proceedings on indictment , in the presence of the jury ) that the accused is aware that the stage has been reached at which evidence can be given for the defence and that he can , if he wishes , give evidence and that , if he chooses not to give evidence , or having been sworn , without good cause refuses to answer any question , it will be permissible for the court or jury to draw such inferences as appear proper from his failure to give evidence or his refusal , without good cause , to answer any question .

( CARDINAL ) Where this subsection applies , the court or jury , in determining whether the accused is guilty of the offence charged , may draw such inferences as appear proper from the failure of the accused to give evidence or his refusal , without good cause , to answer any question . ”

Section CARDINAL ( CARDINAL ) adds that :

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

Guidance as to the direction which the judge should give the jury in respect of section CARDINAL of ORG LAW DATE are provided by the ORG specimen directions and by the dicta of Lord PERSON in NORP v. PERSON ( [ DATE ] CARDINAL Criminal Appeal Reports CARDINAL ) . The relevance of these dicta to directions under section CARDINAL of the same Act was confirmed by ORG in NORP v. ORG ( [ DATE ] CARDINAL Criminal Appeal Reports CARDINAL ) .

The ORG guideline direction at the time of ORG consideration of the applicant ’s appeal provided that :

“ If he failed to mention [ a fact ] ... when he was questioned , decide whether in the circumstances which existed at the time , it was a fact which he could reasonably have been expected then to mention .

The law is that you may draw such inferences as appear proper from his failure to mention it at that 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 a fact at that time can not , on its own , prove guilt , but depending on the circumstances , you may hold that failure against him when deciding whether he is guilty , that is , take into account as some additional support for the prosecution ’s case . It is for you to decide whether it is fair to do so . ”

The dicta of Lord PERSON are as follows :

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

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

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

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

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

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

The current specimen direction for DATE , up - dated in DATE in the light of the judgments of ORG in NORP v. ORG ( [ DATE ] Criminal Appeal Reports CARDINAL ) and in the instant case , provides :

“ [ When arrested , and at the beginning of each interview ] this defendant was cautioned , he was told that he need not say anything , but that it may harm his defence if he did not mention something when questioned which he later relied on in court . Anything he did say may be given in evidence .

The defendant as part of his defence has relied upon [ ... ] ( here specify precisely the fact(s ) to which this direction applies ) . But [ the prosecution case is ] [ he admits ] that he did not mention this [ when he was questioned before being charged with the offence ] [ when he was charged with the offence ] [ when he was officially informed that he might be prosecuted for the offence ] .

The prosecution case is that in the circumstances , and having regard to the warning which he has been given , if this fact had been true , he could reasonably have been expected to mention it at that stage , and as he did not do so you may therefore conclude that [ it has since been invented / tailored to fit the prosecution case / he believed that it would not then stand up to scrutiny ] .

If you are sure that he did fail to mention [ ... ] when he was [ charged ] [ questioned ] [ informed ] , it is for you decide whether in the circumstances it was something which he could reasonably have been expected to mention at that time . If it was , the law is that you may draw such inferences as appear proper from his failure to do so .

Failure to mention [ ... ] can not , on its own , prove guilt . But , if you are sure that quite regardless of this failure , there is a case for him to meet , it is something which you are entitled to take into account when deciding whether his evidence about this matter is true , i.e. you may take it into account as some additional support for the prosecution ’s case . You are not bound to do so . It is for you to decide whether it is fair to do so .

[ There is evidence before you on the basis of which the defendant ’s advocate invites you not to hold it against him that he failed to mention this fact when he had the opportunity to do so . That evidence is [ ... ] . If you think this amounts to a reason why you should not hold the defendant ’s failure against him , do not do so . On the other hand , if it does not in your judgment provide an adequate explanation , and you are sure that the real reason for his failure to mention this fact was that he then had no innocent explanation to offer in relation to this aspect of the case , you may hold it against him . ] ”

In NORP v. ORG confirmed that legal advice is CARDINAL circumstance to be taken into account by the jury . ORG explained CARDINAL conditions that had to be met before section CARDINAL of the DATE could allow inferences to be drawn . As regards the sixth condition , Lord PERSON stated :

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

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

In NORP v. FAC ( [ DATE ] Criminal Law Reports CARDINAL ) ORG stressed the defendant ’s right to reveal to the jury not only the fact that he remained silent on legal advice but also his right to adduce evidence before the jury ( by way of oral evidence from the defendant himself and / or the solicitor who gave the advice ) about the contents of the advice , that is the reasons why he was so advised .

The approach in NORP v. PERSON was confirmed in the later cases of NORP v. PERSON ( [ DATE ] CARDINAL Criminal Appeal Reports CARDINAL ) , NORP v. PERSON ( [ DATE ] CARDINAL Weekly Law Reports CARDINAL ) , and PERSON judgment of DATE , unreported ) .

In NORP v. PERSON ( [ DATE ] ORG CARDINAL ) ORG held that where a trial judge decides , as a matter of law , that no jury could properly conclude that the requirements of section CARDINAL of the DATE have been satisfied and , therefore , it is not open to the jury to draw an adverse inference under section GPE ) , he must specifically direct the jury not to draw any inference . In NORP v. PERSON ( judgment of DATE : “ The NORP ” , DATE ) ORG ( per Lord Justice Auld ) stated :

“ Acceptance of the truth and accuracy of all or part of the prosecution evidence may or may not amount to sureness of guilt . Something more may be required , which may be provided by an adverse inference from silence if they think it proper to draw CARDINAL . What is plain is that it is not for the jury to repeat the threshold test of the Judge in ruling whether there is a case to answer on the prosecution evidence if accepted by them . The direction approved in GPE has a different object . It is to remind the jury that they can not convict on adverse inferences alone . It is to remind them that they must have evidence , which , in the sense of section CARDINAL inferences , may include defence evidence where called and which , when considered together with any such adverse inference as they think proper to draw , enables them to be sure both of the truth and accuracy of that evidence and , in consequence , guilt . ”

The Government submitted in the ORG v. the GPE case ( judgment of DATE , no . CARDINAL , to be published in LOC ) that the case of NORP v. PERSON is authority for the proposition that the jury must be satisfied that the prosecution have established a prima facie case of guilt before inferences may be drawn under LAW of LAW .

In NORP v. PERSON ( [ DATE ] CARDINAL Criminal Appeal Reports CARDINAL ) ORG confirmed that if a defendant seeks to rely on reasons given in the course of an interview by a solicitor for advising his client to remain silent this would constitute a waiver of privilege even if the solicitor was not called to give evidence at the trial .

Section CARDINAL(CARDINAL ) of LAW DATE , as amended by LAW DATE , provides a single , composite ground of appeal against a criminal conviction . It states that ORG :

“ shall allow an appeal against conviction if it thinks that the conviction is unsafe ” .

In NORP v. NORP and PERSON ( [ DATE ] CARDINAL Criminal Appeal Reports CARDINAL ) ORG recognised that the omission of the word “ unsatisfactory ” which had been contained in the former section CARDINAL of LAW had changed the law . A conviction will not be liable to be quashed on account only of procedural irregularity , or abuse of process or a failure of justice to be seen to be done . However in NORP v. PERSON