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

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens

The applicant was born in DATE and lives in GPE .

The applicant was married to PERSON Together they had CARDINAL boys born in DATE . He receives a disability pension on account of Attention Deficit Hyperactivity Disorder ( ADHD ) . He is active as an instructor in ice hockey and football .

NORP In DATE , the applicant 's wife moved out of their home and went to live in GPE . The children have since lived with the applicant . Shortly after her departure , PERSON sought to obtain an interlocutory injunction granting her the sole responsibility for the DATE care of the children , arguing that the applicant had physically abused her and had an abusive consumption of medication .

The applicant has been taking medication for ORG and for an earlier back injury .

Both ORG ( byrett ) and ORG ( lagmannsrett ) rejected her request . Subsequently the applicant and PERSON concluded a judicial settlement agreement according to which he was to assume the DATE care .

Concurrently with the above , PERSON reported the applicant to the police alleging that he had assaulted and threatened her . The police granted a request for an injunction prohibiting the applicant from visiting her or calling her by telephone but , after having heard the applicant , they dismissed all her complaints and lifted the prohibition .

NORP In addition , PERSON reported her concerns ( bekymringsmelding ) to the local child care authorities , alleging that the applicant was abusing intoxicating substances and that the children were at risk of violence . The child welfare services ( ORG ) at ORG ( helse- og sosialdistrikt ) opened an investigation ( hereinafter referred to as “ the first investigation ” ) under section CARDINAL of ORG DATE ( hereinafter referred to as “ the DATE LAW ) , in order to verify whether there was any ground for taking child care measures under LAW ( notably under section CARDINAL which sets out the grounds for compulsory taking into care of a child , such as serious deficiencies in the child 's DATE care , ill - treatment or other serious abuse occurring in the home , likelihood of parents ' inability to provide care causing serious damage to the child 's health or development ) . As a result , from DATE until DATE , the authorities carried out CARDINAL unannounced visits to the applicant 's home .

The applicant felt that ORG held preconceived views against him , due to the number of visits over DATE , inter alia in order to reveal high consumption of medicines , and that confidential information had been imparted to PERSON in this way . After exchanges between his lawyer and ORG , the matter was transferred to the child welfare services at ORG , which had their first conversation with the applicant on DATE . He was reticent to talk to begin with but , after being told that his ability to shield the children against the parental conflict was of great relevance , at a meeting on DATE he provided such information and also produced written statements by his doctor on his consumption of medicines and the possibility of reducing it .

The first investigation was discontinued on DATE .

On DATE followed a renewed call of concern to the child welfare services ( PERSON ) in GPE . The boyfriend of ORG sister had called to inform that PERSON had perceived the applicant as being drugged when speaking to him on the phone that day . Immediately , on DATE , the child welfare services carried out an unannounced visit to the applicant 's home and left after TIME , having found no evidence of intoxication .

In a report of DATE by the ORG concerning the first investigation , it was noted inter alia that the applicant 's doctor considered his consumption of medication too high and that it was desirable to reduce it , while the applicant , following his lawyer 's advice , was unwilling to come forward with information on the subject . No instances of intoxication had been found . The report concluded that the children did not live in a situation that was covered by any of the grounds for compulsory taking into public care under section CARDINAL of the CARDINAL Act , although the boys ' care situation had been made insecure and unpredictable by the parents ' conflict . The report also contained an assessment of the conduct of the mother , who appeared very assertive and was using inter alia the child welfare services in her “ warfare ” against the applicant , to the boys ' detriment .

On DATE , after a new report of concern , this time by a named third party , Mr R , who was a police officer , the child welfare services at ORG opened a new investigation ( hereinafter referred to as “ the second investigation ” ) . The source referred to an incident which he had observed while off duty near an ice hockey arena on DATE , when the applicant allegedly had difficulty standing on his feet , due to intoxication . A trainer had held him under his arm and had led him out . As the applicant wished to drive home his car keys had been taken from him . The applicant 's mother had then come to collect him . Mr R worked at the local police station and as he had returned to work he had found a message stating that somebody had called to report that the applicant had driven his children by car while in a state of intoxication . Mr R had the impression that the applicant often had turned up at the sports hall in a visibly intoxicated state .

CARDINAL other sources , CARDINAL of which were anonymous , had reported respectively on CARDINAL , DATE and DATE incidents of intoxication and , CARDINAL of them , that the applicant was violent and threatening and mentioned rumours about drugs abuse .

The anonymous report of DATE recounted an incident when the applicant had been so intoxicated that he did not manage to pass the sliding door in the sports hall and that , when his oldest son assisted him through the door , the applicant hit after him . Some adults in the hall had commented that this was not the first time . The managers of the sports club had called the applicant 's mother who came to collect the children . The source was worried about the children 's situation .

NORP The report of DATE had been submitted by another named third party , Mr O , recounting that some time before DATE his son and the latter 's mother had gone to the applicant 's home to fetch some money . When they arrived the applicant had fallen over due to intoxication . They had then brought the applicant 's eldest son with them to the cinema . Since the applicant was not capable of fetching the youngest son in the kindergarten , they had called the applicant 's mother and informed her . When Mr O. heard about this incident he was worried for the applicant 's children .

On DATE the child welfare authorities communicated to the applicant through his lawyer CARDINAL of the above reports of concern , namely those of DATE and DATE , with an invitation to the applicant for a meeting to discuss the allegations . In response to the above , the applicant 's lawyer pointed out that the reports of concern were of the same type as those that had prompted the investigation which had been opened in DATE and had been concluded . He explained to the authorities that the applicant had not been under the influence of drugs but had fainted in a state of malaise ; he had not had breakfast DATE and had been under duress because of the proceedings against him .

According to the applicant , who refused his cooperation in the investigation , the allegations against him must have originated from persons within his ex - wife 's entourage and were part of her attempt to obtain the DATE care of the children .

On DATE ORG , with reference to an investigation conducted under section CARDINAL of the CARDINAL Act , addressed requests for information to several instances , stating that the ORG had reason to fear that the applicant 's children lived in a situation such as described in section CARDINAL of the Act . The requests , which set out specific questions capable of shedding light on the children 's situation , were addressed to the applicant 's doctor , who was also the doctor of his CARDINAL sons , the school of the eldest son , the kindergarten of the youngest son , and the police , who were reminded of their obligation under section DATE ) to disclose such information to the child welfare services . In addition , the applicant 's mother was invited to the ORG for an interview .

By a letter also dated DATE ( but posted on DATE ) to the applicant 's lawyer , ORG , enclosing copies of the above mentioned requests , informed him of the commencement of the second investigation . It referred to ORG report of DATE stating that the extent of the applicant 's use of tablets was unclear and that he , on the advice of his lawyer , had refused to comment . It had been the ORG 's intention to inform about these requests at a meeting on DATE , but since the applicant and his lawyer had objected to meet , they had been informed in writing . The ORG added that a meeting with the applicant was scheduled for DATE , by which date they expected to have received the information requested from the above instances .

ORG received information from the doctor , the school , the kindergarten and the police . The applicant 's mother declined to meet for an interview . His ex - wife gave an interview by telephone from GPE .

The investigation was concluded by a report from the child welfare services at LOC , dated DATE , which stated that they were worried that the applicant might abuse intoxicating substances ( “ rusmisbruk ” ) , were unsure as to how much his ORG diagnosis affected his ability to assume care and were uncertain as to his capability to provide the children with a sufficiently good up - bringing and about his potential for development . It recommended support measures under section CARDINAL - CARDINAL of the CARDINAL Act , to be evaluated by DATE . The measures included assistance such as designating a support home which the children could visit , providing the applicant with guidance on how to master his ORG illness and problems related to drug taking , while at the same time assuming responsibility as a carer .

The applicant disputes this assessment , which had not been based on any further unannounced visits to his home , nor on information provided by his doctor , but on circumstantial evidence collected outside the home .

In the meantime , on DATE , the applicant had instituted proceedings before ORG to obtain a declaratory judgment ( fastsettelsesdom ) , maintaining that there was no legal basis for conducting an investigation against him . He also requested an interlocutory injunction suspending the investigation pending judgment in the case . ORG found that it was not possible to bring the matter before the courts and on DATE dismissed ( avviste ) the case . It observed that the matter could not be viewed as a “ decision ” taken in the exercise of official duties in the sense of Article CARDINAL(CARDINAL)(CARDINAL ) of the Code of Civil Procedure . As interpreted in light of the requirement of “ legal interest ” in Article CARDINAL , this term clearly referred to “ individual decisions ” ( “ enkeltvedtak ” ) .

On an appeal by the applicant , ORG , by CARDINAL votes to CARDINAL , upheld ORG decision , by a judgment of DATE .

NORP The majority considered that a decision taken by the child welfare services to carry out an investigation was not decisive for the applicant 's rights and obligations and thus was not a “ decision ” in the sense of LAW . The applicant did not have a legal interest in the case under LAW . A decision to implement an investigation was only a step in the child welfare services ' preparation of the case and thus was not decisive for his rights and obligations . Nor was there any conflict with Articles CARDINAL , DATE and CARDINAL of the Convention .

NORP The minority found that the appeal should be admitted for review ( fremmet ) , considering that the applicant had a legal interest in having it judicially established whether the authorities had unjustifiably interfered with his right to respect for private life .

The applicant sought to appeal against ORG decision by challenging its application of the law . He maintained that from ORG DATE and CARDINAL of the Code of Civil Procedure and Articles CARDINAL , CARDINAL and CARDINAL of the Convention , it followed that he should have a right to have the lawfulness of the investigation carried out by GPE reviewed by ORG . He requested ORG to quash ORG decision of DATE which upheld ORG dismissal of his case and to refer the case back to ORG for examination .

On DATE ORG of ORG decided that the case as a whole should be determined by ORG , under section CARDINAL ( CARDINAL ) of LAW DATE ( GPE - lov om forandring i lovgivningen om PERSON , DATE no . CARDINAL ) . On DATE the President of ORG decided that it should hear the parties according to the rules applicable to ordinary appeals ( ibid . ) .

In his letter to the applicant 's lawyer of DATE , notifying the applicant of the above decisions , the Registrar of ORG pointed out that , having regard to the fact that the case concerned the application of the law , it was assumed not to be necessary ( to commission a first instance court ) to collect evidence for use by ORG . Should the parties nonetheless be of the view that this was necessary , their representatives should by DATE give an account of what evidence should be collected and how . Within the same time limit the representatives of the parties were requested to confer about possible dates for oral hearing and shortly thereafter ORG would contact them to fix the hearing date . The rapporteur judge had estimated that the hearing would last for DATE and the representatives of the parties were invited to express a view on the presumed duration of the hearing .

The child welfare services of ORG submitted their concluding report of DATE . Otherwise the state of the evidence was the same as before the lower courts . Neither of the parties had responded to the above - mentioned communication of DATE by asking that additional evidence to be collected for use by ORG .

After holding an oral hearing , at which both parties were legally represented , ORG in a decision of DATE upheld , by CARDINAL votes to CARDINAL , ORG dismissal of the case .

On behalf of the majority , PERSON Justice PERSON gave the following reasons :

“ ( CARDINAL ) By way of introduction , I would point out that this case concerns a further interlocutory appeal , in which the jurisdiction of this court in principle is limited pursuant to LAW . In this instance , however , ORG , and now ORG , has full jurisdiction , since the lawsuit filed by [ the applicant ] was summarily dismissed ' because the case is not a matter for the courts of law ' , see Article CARDINAL ( CARDINAL)(CARDINAL ) .

( CARDINAL ) I will first consider the suit in relation to the conditions for filing a lawsuit under traditional NORP procedural law , set out in LAW . Under this provision , it is a procedural condition that the suit shall concern ' a legal relationship or a right ' . Furthermore , there must be a ' legal interest ' in having the case decided , which inter alia means that the plaintiff must have an actual need for a judicial clarification .

( CARDINAL ) The investigation was opened on DATE and had to be carried out as soon as possible and within CARDINAL , alternatively DATE at the latest , see section TIME ( CARDINAL ) of the [ DATE ] Act . The final report is dated DATE and was sent to [ the applicant 's ] lawyer on DATE , with notification that the investigation was closed .

( CARDINAL ) [ The applicant ] has contested the fact that the final report represented the end of the investigation . Reference is made to the fact that the report culminated in a recommendation that family assistance be provided in the home , subject to evaluation within DATE , so that there was still a ' case ' in progress .

( CARDINAL ) To this I would comment that the purpose of an investigation , as expressed in section CARDINAL of the [ DATE ] Act , is to ascertain whether there is a basis for taking measures pursuant to the LAW , and section CARDINAL - CARDINAL ( CARDINAL ) , first sentence , states that ' an investigation [ pursuant to section CARDINAL ] is regarded as completed when the child welfare services have made an administrative decision to implement measures or it has been decided to drop the case . ' Thus such measures do not represent a continuation of the investigation , but its conclusion .

( CARDINAL ) NORP Since the investigation has been closed , it is difficult to see how a judicial decision could have any legal significance for [ the applicant ] . It will not affect the implementation of the voluntary assistance measures recommended in the final report . Nor will it make any difference as regards the right to initiate a possible investigation in the future , based on new circumstances , or to decide to implement other measures pursuant to LAW , if warranted by circumstances .

( CARDINAL ) According to precedent it is undoubtedly the case that the requisite legal interest may cease to exist after legal proceedings have been instituted , with the consequence that the case must then be summarily dismissed . This may even occur - as in the present case DATE after judicial remedies have been pursued against a decision made in a court of second instance .

( CARDINAL ) I would add that a decision to carry out an investigation pursuant to section CARDINAL of the [ DATE ] Act is not an individual decision in the sense of LAW . The same applies to the measures initiated in the course of the investigation , in this instance the obtaining of information pursuant to section DATE of LAW . As a general rule , it is not possible to make the lawfulness of such procedural steps the object of a separate lawsuit pursuant to LAW . However , any errors made at this stage could be significant in a lawsuit brought against any administrative decision that might be taken , and could possibly also form the basis for a claim for damages .

( CARDINAL ) [ The applicant ] has undoubtedly experienced the investigation as a strain , also because it was started shortly after the end of a prior investigation , and any judgment in his favour might seem like redress . However , this is not sufficient either to justify a legal interest , see PERSON ( Supreme Court Legal Reports - “ Rt”)-CARDINAL - CARDINAL .

( CARDINAL ) Accordingly , I conclude that under traditional NORP procedural law [ the applicant 's ] suit had to be summarily dismissed .

( CARDINAL ) [ The applicant ] has claimed that a summary dismissal of the case will constitute a breach of the right of access to a court under LAW in cases relating to ' civil rights ' .

( CARDINAL ) I find it unnecessary to express a view on whether a demand that the child welfare services shall not make an investigation concerns a ' civil right ' at all . In any event , the ORG accepts that national law must have some latitude to impose limitations on the right of access to a court . However , this is conditional on the limitations having a legitimate purpose , and a proportionality criterion also applies , which means that there must be a reasonable relationship between the purpose of the limitations and the effects they have . Finally , the limitations must not have such far - reaching consequences that the very essence of the right to a court is impaired , see the judgment of ORG in the case of O v. GPE ( DATE ) , Series A No . CARDINAL , which states that the right to a court can not be precluded in more substantial disputes .

( CARDINAL ) In the Rt-CARDINAL - DATE , the first voting judge points out that ' sparing society – both courts of law and involved parties – lawsuits which , even if they were to succeed , would have no significance for the plaintiff 's legal position ' , constitutes a legitimate aim , and that the proportionality requirement does not militate against maintaining the requirement of a ' legal interest ' either . I concur with this . Nor can I see either that the limitation on the right to bring special lawsuits regarding the type of procedural decisions at issue in this case affects the essence of LAW .

( CARDINAL ) In my opinion , therefore , the summary dismissal of [ the applicant 's ] suit does not represent a breach of LAW .

( CARDINAL ) Accordingly , I shall move on to the question of whether the suit must be allowed in pursuance of LAW ... . [ The applicant ] has asserted that the investigation was a breach of LAW right to respect for his private and family life ' . The parties are in agreement that in this case there existed no right to lodge an appeal to a superior administrative body , in connection with either the opening of the investigation or the specific steps that were subsequently taken . Thus any review provided for in LAW must be carried out by a court of law .

( CARDINAL ) The Convention was incorporated into NORP law by LAW of DATE No . CARDINAL and , in the event of a conflict , takes precedence over provisions in other legislation , see section CARDINAL . This means , as stated on page CARDINAL , first column , of ORG . CARDINAL to the PERSON [ the larger division of GPE ] ( DATE ) , that ' should a situation arise , after incorporation , where ... LAW the right to a judicial hearing whereas no corresponding right is provided by LAW , a judicial hearing must be allowed ' .

( DATE ) It is my understanding that the LOC acknowledges that the grounds that would lead to a summary dismissal of [ the applicant 's ] lawsuit pursuant to LAW are not tenable pursuant to LAW . I concur . Pursuant to LAW , the question of whether LAW has been breached must be regarded as a legal issue and be made the object of a declaratory suit [ fastsettelssøksmål ] , even if the breach has ceased to exist . The doubt as regards the right to demand a judgment for non - compliance with a convention that existed in DATE , the so - called ' FAC case , must be regarded as having been dispelled by the adoption of LAW and the rule of precedence set out in section CARDINAL of the said Act .

( CARDINAL ) Nevertheless , under the case - law of ORG , Article CARDINAL only requires the availability of a remedy before a national authority if there is a reasonable ground for claiming that the LAW has been breached ; there must be an arguable claim . This criterion is interpreted in accordance with LAW , pursuant to which a complaint to ORG shall be summarily dismissed if it is ' manifestly ill - founded ' ; see inter alia paragraph CARDINAL of the judgment in PERSON and PERSON v. GPE ( DATE ) , Series A No . CARDINAL .

( CARDINAL ) Since the right to take legal action pursuant to LAW has been extended as a result of the incorporation of LAW , there is reason to consider whether the limitations developed in the LAW case - law should also apply in NORP law . The question will then be whether the courts shall summarily dismiss a suit which , after a preliminary substantive assessment , is considered to be clearly unfounded . In that event , it is not a question of limiting rights that are already protected under NORP law , but of the degree to which they are to be extended . Thus no conflict with LAW can arise either , as [ the applicant ] has argued .

( CARDINAL ) In the continuation of the passage I cited above from ORG . CARDINAL ( DATE ) to the PERSON , it is stated that ' [ the Ministry ] will however obtain an assessment ... of whether LAW should be amended so that it is clearly evident from the statute when lawsuits concerning alleged breaches of human rights conventions are to be allowed and when they are to be summarily dismissed ' , and that the question was to be considered by the committee that was to be appointed to examine LAW with a view to its revision . The report of LAW recommends that no substantive ' screening system ' should be introduced for lawsuits concerning possible breaches of the Convention ; see PERSON ( ORG – “ ORG ” CARDINAL:CARDINAL page CARDINAL . On the other hand , the ORG points out that lawsuits that clearly can not succeed could be decided by means of a proposed simplified court hearing . No such possibility exists in our current procedural system , but it will , if it is introduced as proposed by the ORG , largely satisfy the considerations regarding the saving of time and costs in legal proceedings that have been advanced as the main arguments in favour of a screening system .

( CARDINAL ) ORG the issue should be resolved in the current dispute seems uncertain . I find it natural to take as the point of departure the fact that LAW establishes by statute DATE while at the same time limits – the right to bring any declaratory suit before a court . In the absence of statutory regulation of the issue , it is my view that the relaxation of the statutory conditions for bringing a lawsuit that follows from the LAW can not in principle go beyond what would be a direct consequence of the LAW and its incorporation into NORP law . Admittedly , some might object that it is foreign to NORP law to assess the merits of the claim in order to decide whether the case shall be heard . But the question concerns a right to take legal action that until now has not had a clear basis in NORP law .

( CARDINAL ) I would add that filing a suit such as the CARDINAL at hand , which has aimed at halting the investigations of the child welfare services , could entail considerable disadvantages . It will draw resources away from the real functions of the child welfare services , and might make its work more difficult in situations where it is necessary to react without undue delay . This reinforces the need for a simple , rapid assessment of whether there is any substance at all in the plaintiff 's claim . This concern will be met by applying the ORG 's own rule of summary dismissal if the claim is not arguable .

( CARDINAL ) The consequence of my view is that the question of summary dismissal will depend on whether the suit , based on LAW , must be considered manifestly ill - founded .

( CARDINAL ) I would add , however , that I have not thereby concluded whether the threshold for summary dismissal should be as low as that applied by ORG . As emphasized by PERSON in GPE Journal of Jurisprudence ) DATE , page CARDINAL , there are good reasons why national courts should follow a less stringent practice as regards summary dismissal . However , as will be shown below , the present case is in no way on the borderline in that respect .

( CARDINAL ) ...

( CARDINAL ) I find that the investigation constituted an interference with [ the applicant 's ] right to respect for his private and family life under LAW . On the other hand , however , I find it clear that it was an interference that was justified under the exception clause in LAW .

( DATE ) The decision to make an investigation is subject to a statutory condition - there must be ' reasonable cause to assume that circumstances prevail which may provide a basis for measures ' ; see section CARDINAL of the [ DATE ] Act . However , as stressed by the GPE , this criterion is linked to a professional assessment by the child welfare services , and the threshold for initiating an investigation is meant to be low . In Proposition No . DATE ) to the PERSON , it is also emphasized that interests of privacy will often have to yield to the child 's best interests ; see pages CARDINAL and CARDINAL .

( CARDINAL ) The investigation in dispute was opened on DATE . DATE , a first investigation had been completed , in which it had been concluded that the children ' are living in an insecure and unpredictable care situation ' . When a new child concern report was received on DATE , under section CARDINAL of the [ DATE ] Act the child welfare services had to consider whether it should be followed up by investigations pursuant to section CARDINAL .

( CARDINAL ) [ The applicant ] has maintained with vigour that this child concern report DATE which had given cause to suspect that he was intoxicated when he was with the children and misused pills , which was also the basis for the previous investigation – was unwarranted . I offer no opinion on this question , but can not see it otherwise than that the child welfare services had to carry out an investigation pursuant to section CARDINAL , with a view to obtaining confirmation or disproving that there was cause for concern in regard to the children 's care situation . The fact that there was an objective basis for initiating investigations was otherwise corroborated by new child concern reports and information from the school and day care centre indicating that the children had special care needs which it was doubtful that [ the applicant ] could fulfil . Finally , this was also confirmed by the assistance measures recommended by the child welfare services in their final report .

( CARDINAL ) In relation to LAW it is particularly important to consider the specific steps that were taken during the investigation . In this case , it was a question of obtaining information pursuant to section DATE ( CARDINAL ) and ( CARDINAL ) and section CARDINAL of the [ DATE ] Act .

( CARDINAL ) I find it clear that it can not be claimed that any breach of the [ the DATE ] LAW had occurred . Admittedly , in its final report , the child welfare services found no basis for making an administrative decision under section CARDINAL . However , in order to collect information it was sufficient that there was a substantiated suspicion that the children were in a situation such as described in the said provision . I would add that [ the applicant 's ] unwillingness to cooperate with the child welfare services was also unlikely to calm their basically justified uneasiness about the children 's situation .

( DATE ) Nor is there any ground to claim that the investigation did not pursue legitimate purposes or was unnecessary . In this respect it suffices to refer to ORG Right 's decision of inadmissiblity of CARDINAL DATE in the case of PERSON , in which precisely the children 's best interest were emphasised . The Commission stressed that the obtaining of information , as in the present case , was proportionate to the legitimate purpose and an interference of limited extent , since the public administration was also subject to a duty of confidentiality . Finally , it was also emphasized as a factor that the person whom the interference concerned was kept informed as to the information that was disclosed , as was done in [ the applicant 's ] case .

( CARDINAL ) Accordingly , it is my view that point CARDINAL of the operative part of ORG decision must be upheld .

( CARDINAL ) The interlocutory appeal has not succeeded . However , the case has raised hitherto unsettled questions concerning the relationship between traditional NORP law and LAW . In my view , the circumstances must be said to be so special that [ the applicant ] should not be ordered to pay costs either before ORG or ORG . ORG hearing has also been conducted in accordance with the rules for appeals , with the consequences that this has for the amount of the costs . Otherwise as regards ORG , the legal representatives were appointed at public expense ....

The dissenting member , Mr ORG , stated :

“ ( CARDINAL ) It is my opinion that the lawsuit must be admitted to ORG .

( CARDINAL ) I agree with the first voting judge that the suit would have had to be summarily dismissed in accordance with ' traditional NORP procedural law ' . I also agree that such a dismissal would not constitute a breach of the right of access to a court guaranteed by LAW CARDINALof the Convention .

( CARDINAL ) The first voting judge expresses the opinion that , as a consequence of incorporation of the LAW into NORP law by LAW of DATE No . CARDINAL , a claim may be made for a declaratory judgment asserting that there has been a breach of the Convention . I concur in this opinion . The view taken by the majority as regards this question in Rt-CARDINAL - CARDINAL , the ' ORG case , can not be maintained following the adoption of LAW . Given the relatively limited requirements that can now be made in this respect for this type of suit , I also find that [ the applicant ] has a sufficient actual interest in the suit ; see PERSON QUANTITY , pp . CARDINAL - CARDINAL .

( CARDINAL ) On the other hand , I do not agree with the first voting judge that a suit regarded as manifestly unfounded must be summarily dismissed . Once it has been accepted that a suit may be brought with a claim for a declaratory judgment asserting a breach of the LAW , the way in which such a claim should be dealt with depends , in my view , on NORP rules of procedure . It is therefore not decisive that the screening system , which according to the first voting judge should be applied , will not be contrary to the LAW . Under NORP procedural law , the assessment of whether the conditions for filing suit have been satisfied is based on the plaintiff 's submissions with regard to the claim he or she is putting forward . If the claim – in the event manifestly ill - founded – can not succeed , judgment must be given for the respondent after a hearing on the merits of the claim . In my view , it would be contrary to this principle to procedurally dismiss on a non - statutory basis manifestly unfounded lawsuits regarding breaches of the LAW after a summary examination on the merits , cf . the majority vote in DATE , ORG CARDINAL GPE , p. CARDINAL , and PERSON : NORP med kommentarer ( The Code of Civil Procedure , with commentary ) , CARDINALnd edition , p. CARDINAL .

( CARDINAL ) I can not see that the provision in LAW prescribing that a complaint to ORG shall be summarily dismissed after a summary examination [ ... ] if it is manifestly ill - founded can be transposed , on a non - statutory basis , as a procedural condition to lawsuits concerning breaches of the Convention that are brought before NORP courts . I would also note that the considerations that serve as grounds for the various dismissal provisions in LAW may appear in a different light as regards lawsuits brought before national courts . A rule on summary dismissal of the kind at issue in this instance will , in my view , give rise to several procedural problems , concerning notably the legal force of the orders . My objections to such an arrangement also hold good if a rule of summary dismissal departing from LAW were to apply on a non - statutory basis , for instance if one were to apply a less stringent practice of summary dismissal than that of ORG or if the scope of the summary dismissal rule were to be limited in another discretionary manner .

( CARDINAL ) I agree with the first voting judge that filing a suit like the one at hand could give rise to significant disadvantages for the work of the child welfare services . However , such suits are DATE in my view – a consequence of the fact that it has now been made permissible to file suit complaining of a Convention breach irrespective of whether a judgment of this nature would entail specific legal effects for the plaintiff . In my view , an attempt must be made to reduce the problems that arise in this connection by adopting rules regarding simplified judicial hearings as has been proposed by ORG . In this connection , I wish to comment that the purpose of the screening system in question here will in actual fact be to introduce , on a non - statutory basis , a simplified hearing on the merits of the claims covered by the arrangement . ”

ORG DATE ( “ the DATE LAW ) contained the following provisions which are relevant :

Section CARDINAL - CARDINAL

“ The child welfare services shall at the earliest opportunity , and within DATE at the latest , examine reports it receives and assess whether the individual report shall give rise to investigations pursuant to section CARDINAL . ”

Section CARDINAL - CARDINAL

“ If there is reasonable cause to assume that circumstances prevail which may provide a basis for measures pursuant to this chapter , the child welfare services shall investigate the matter at the earliest opportunity ; see the time limits set out in section CARDINAL - CARDINAL .

The investigation shall be carried out in such a way as to minimise the harm it causes anyone affected , and it shall not have a wider scope than justified by its purpose . Importance shall be attached to preventing the unnecessary spreading of information about the investigation .

The parents or the persons with whom the child is living may not object to an investigation as mentioned in the first sub - section involving visits in the home ... ”

Section DATE

“ Information shall as far as possible be obtained in cooperation with the person whom the case concerns or in such a way that the person concerned is aware that the information is being obtained .

Notwithstanding the duty of secrecy , public authorities shall on their own initiative disclose information to the municipal child welfare services when there is reason to believe that a child is being mistreated at home or subjected to other serious deficiency of parental care ( see sections CARDINAL , CARDINAL and CARDINAL ) , or when a child has shown persistent , serious behavioural problems ; see section DATE . Organizations and private entities that perform tasks for the ORG , a county municipality or a municipality are considered on par with public authorities . Public authorities are also obligated to disclose such information when ordered to do so by agencies which are responsible for implementation of the LAW .

Practitioners of professions pursuant to [ various specified Acts ] are also obligated to disclose information pursuant to the rules of the second paragraph . ”

Section CARDINAL - CARDINAL

“ Anyone who performs service or work for a public administrative agency or institution pursuant to this act is subject to a duty of secrecy pursuant to sections CARDINAL to CARDINAL of LAW . Contraventions are punishable pursuant to LAW .

Information may only be disclosed to other public administrative agencies , see section CARDINALB , subsections CARDINAL and CARDINAL , of LAW , when necessary to facilitate the function of the child welfare services or the institution , or to prevent material danger to life or serious harm to a person 's health . ... ”

Articles DATE and CARDINAL of the Code of Civil Procedure , as in force at the material time ( it was replaced by a new Code which entered into force on DATE ) , provided :

Article CARDINAL

“ Until a claim matures , it may not be brought before the courts with a request for an executory judgment ( fullbyrdelsesdom ) , except in the following circumstances :

NORP If there is particular reason to fear that the respondent will escape fulfilling his or her obligations on time ;

NORP If it concerns a claim which is supplementary to a principal claim , such as interests running until payment , or compensation , which emerges from the disputed legal relationship ;

If it concerns periodic payments , of which one instalment has matured and when future instalments do not depend on any service in return ;

NORP If the claim is conditional upon the non - fulfilment of another claim , in respect of which the claimant requests a judgment in the same case .

If the claim has not matured by the time of judgment , the judgment shall stipulate what condition should occur or what time - limit should run , before it is to be executed . ”

Article CARDINAL

“ If a plaintiff has a legal interest in it being established by a judgment that a legal relationship or a right exists or does not exist ... he can institute proceedings with a request for a declaratory judgment ( fastsettelsesdom ) , even though an executory judgment may not yet be obtained . ”

Section CARDINAL ( CARDINAL ) of LAW DATE read :

“ When it is desirable for special reasons , ORG may , in cases being examined by it , refer a question of law to ORG or decide that the case as a whole [ saken i sin helhet ] shall be decided by ORG . ORG will rule on the legal issue or on the case in the form of a decision . The court may decide that oral proceedings may be held in accordance with the rules that apply to ordinary appeals [ ankesaker ] . A decision to this effect may also be taken by the presiding judge before the case is examined by ORG . ”

From Article CARDINAL ( CARDINAL ) , item CARDINAL , of the former Code of Civil Procedure it followed that a decision by ORG on an appeal against a dismissal of a case on grounds of lack of jurisdiction may form the subject of further appeal to ORG . The latter then has full jurisdiction to examine questions of law , fact and procedure ( see Tore GPE , GPE med kommentarer ( Code of Civil Procedure with Commentary ) , DATE , p , CARDINAL ) .

Pursuant to Article CARDINAL , ORG could not take oral evidence from witnesses directly , but the parties could make a request to the relevant district- or city court to hear witness evidence ( bevisopptak ) . In such event , the statements of the parties and/or witnesses were recorded in extenso by the first instance judge . The records were included in ORG case file and may be read out by the parties ' representatives during ORG hearing , should they so wish , like other documentary evidence contained in the file .

The human rights of children and the standards to which all governments must aspire in realising these rights for all children , are set out in the Convention on the Rights of the Child . This instrument entered into force on DATE and has been ratified by CARDINAL countries , including GPE , which has also incorporated it together with the Convention into its domestic legal order ( DATE ) .

The Convention spells out the basic human rights that children DATE without discrimination – have : the right to survival ; to develop to the fullest ; to protection from harmful influences , abuse and exploitation ; and to participate fully in family , cultural and social life . It further protects children 's rights by setting standards in health care , education and legal , civil and social services .

States Parties to the Convention are obliged to develop and undertake all actions and policies in the light of the best interests of the child ( Article CARDINAL ) . Moreover , GPE Parties have to ensure that a child is not separated from his or her parents against their will unless such separation is necessary for the best interests of the child ; and that a child who is separated from CARDINAL or both parents is entitled to maintain personal relations and direct contact with both parents on a regular basis , except if it is contrary to the child 's best interests ( Article CARDINAL ) .

Article CARDINAL reads :

“ CARDINAL . GPE Parties shall take all appropriate legislative , administrative , social and educational measures to protect the child from all forms of physical or mental violence , injury or abuse , neglect or negligent treatment , maltreatment or exploitation , including sexual abuse , while in the care of parent(s ) , legal guardian(s ) or any other person who has the care of the child .

Such protective measures should , as appropriate , include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child , as well as for other forms of prevention and for identification , reporting , referral , investigation , treatment and follow - up of instances of child maltreatment described heretofore , and , as appropriate , for judicial involvement . ”


Elisabeth Palm;John Laws;Nicolas Bratza;Paul Mahoney

At the time of the introduction of the application , the applicant was serving a prison sentence . The background to his conviction is as follows .

On DATE CARDINAL tonnes of cannabis resin was imported into GPE concealed in a consignment of frozen meat on a lorry travelling from PERSON to GPE . There had been CARDINAL previous importations of meat from the same consignor in DATE and DATE , both of which had been collected by a firm of hauliers called Davidsons . On this occasion , the meat was delivered to LOC at FAC , near GPE in GPE .

On DATE ORG and Excise officers were keeping the applicant under observation . At TIME he was followed from his home in GPE , GPE , to a lorry park at PERSON , where he collected an articulated lorry and refrigerated trailor which he had bought DATE . He drove the lorry to LOC , where he loaded the consignment of meat onto the lorry , and then drove on to a lock - up garage in GPE , GPE . He backed the trailor into the garage and drove away in his car . He made CARDINAL brief visits to the garage during the morning , and then returned at TIME

The applicant remained inside the garage for TIME and was arrested just before TIME as he was leaving . The garage was searched . CARDINAL of the QUANTITY pallets of meat were still on the lorry in a frozen state , although the refrigerator motor was not operative . CARDINAL of the pallets , containing a large quantity of cannabis resin , had been opened and left to defrost in the unrefrigerated garage . The applicant told ORG officers that he worked as a haulage contractor and had not known that the meat contained cannabis .

NORP In addition , ORG officers found that the applicant 's daughter had rented a safety deposit box on DATE , of which the applicant , using the name of “ PERSON ” was an authorised signatory . Following the applicant 's arrest on DATE the box was searched and found to contain GBP CARDINAL in cash and CARDINAL passports bearing the applicant 's photograph , the first in his true name and the second in the name of PERSON . Also found in the box were CARDINAL documents dated DATE , the date of the applicant 's arrest .

The applicant was charged with an offence of being knowingly concerned in the fraudulent evasion of the prohibition on the importation of cannabis , and remanded for trial in ORG .

On DATE , shortly before the commencement of the trial , the prosecution made an ex parte application to the trial judge to withhold material in its possession on the grounds of public interest immunity . The defence were notified that an application was to be made , but were not informed of the category of material which the prosecution sought to withhold . They were given the opportunity to outline the defence case to the trial judge , namely that the applicant had collected the consignment of meat pursuant to instructions received by telephone the previous night , and had not been aware that the meat contained cannabis , and to request the judge to order disclosure of any evidence relating to these alleged facts . The trial judge examined the material in question and ruled that it should not be disclosed . The defence were not informed of the reasons for the judge 's decision .

On DATE the defence served the following written request on the prosecution :

“ CARDINAL . The ORG are formally asked to indicate ( a ) in general whether there is unused material in connection with this case , apart from the subject - matter of the ex parte application to the ORG on DATE ... which has not been disclosed and ( b ) in particular :

( i ) whether any listening device or telephone intercept was used , and whether there exists any resulting recording , note , memorandum , or other record ;

( ii ) whether there exists any note , memorandum or other record of any interview with , or statement by any witness or potential witness in this case that has not already been disclosed ;

( iii ) whether there exists any evidence ... of any observations on the lorry ... or on the premises of LOC , and if not , whether any such observations were in fact carried out ;

( iv ) whether there were any other observations carried out in connection with this enquiry that have not been disclosed ;

( v ) whether any enquiries were made to trace the vehicles and/or drivers used for DATE collections from ORG , and if so , with what result ;

( vi ) whether ORG and Excise acted in this enquiry on any ' information received ' and if so , whether there exists any log , memorandum , or other record of any such information . ”

Prosecution counsel provided the answer to questions CARDINAL(iii ) and ( vi ) , informing the defence that there had been no such observations and no “ information received ” from an informant , but declined to answer the remainder of the questions . The defence therefore applied to the trial judge for an order that the prosecution should provide the information requested . The application was heard on DATE , when prosecution counsel submitted :

“ I have refused and still refuse to answer the questions set out in ... paragraph CARDINAL because I contend that I am not required to reveal to any person whether there has been any interception of communications under the [ Interception of Communications ] Act [ see paragraphs CARDINAL below ] . If I answer the question at CARDINAL ) or CARDINAL ) , I shall be answering that question which I am not required to answer . ... I am confident I have done what is required of me in respect of it . ... I take the view that were there to be any matter falling under LAW it should not be the subject of any ex parte application ... . ”

NORP That position was upheld by the trial judge who , in his ruling of CARDINAL DATE , stated inter alia :

“ I can not invite [ prosecution counsel ] ... to go behind the stand that he is taking , at this stage , where he takes the view that even an ex parte application is unnecessary , which is the way he looks at it . ... I think we have taken the matter as far as we can in that particular aspect . CARDINAL is bound , because I have no power [ to order ] otherwise , to accept the situation as the prosecutor tells it to be . ”

The applicant did not give evidence at his trial . The defence case was that he had no knowledge of the cannabis hidden in the consignment and was acting as an innocent haulier of the goods . He was attempting to establish a haulage business ( “ Ejay Couriers ” ) and had bought vehicles and hired the lock - up garage for that purpose . It was submitted on his behalf that in collecting the meat he had been acting pursuant to instructions from another firm of hauliers , as was shown by a note , found in the applicant 's possession at the time of his arrest , on Ejay Couriers headed paper of a telephone call made by Davidsons ( see paragraph CARDINAL above ) at TIME on DATE .

On DATE the applicant was convicted of the offence charged and on DATE he was sentenced to DATE imprisonment .

The applicant appealed to ORG , on the following grounds :

“ It was clear that not all unused material had been disclosed . ... In open court it was stated on behalf of the defendant that the unused material was of potential importance to his defence that he had no knowledge that drugs were to be or were concealed in the load he carried , and that he had received his instructions for the collection by telephone , in the course of his business as a haulier , very shortly before DATE . ... Any information therefore that might have led to his being able to confirm either the source or content of those instructions , as well as to trace those who had involved him in a smuggling enterprise was of obvious importance . The ORG had declined to answer the question whether any potentially relevant material , apart from the subject - matter of the ex parte application , had not been disclosed , on the grounds that to do so would reveal whether or not there had been a telephone intercept . It was plain from the course of the argument that the ex parte application had not dealt with any telephone intercept , since the ORG argued that this was the province solely of the prosecutor , and not that of the judge , a proposition based on NORP v. PERSON [ see paragraph CARDINAL below ] . In these circumstances the defence were entitled to know at least the category of material with which that application did not deal . ... Furthermore , the ORG should have been called upon to justify , ex parte if necessary , the stance taken in relation to the other unused material . ... Since there must have been a reason for watching the defendant , which was explained neither by the evidence adduced , nor by that served but excluded by agreement , and since it was said that there was no informant involved in the case , there is a strong likelihood that disclosable information , bearing directly upon the defendant 's case , was in the possession of the prosecution . ”

On DATE , prior to the hearing of the appeal , defence counsel applied to ORG for an order that the defence should be given a transcript of the ex parte hearing of DATE , to enable ORG them to argue the non - disclosure as a ground of appeal . Defence counsel outlined the applicant 's case , namely that the instructions for the collection of the load had been received by telephone very shortly before DATE , and submitted that any information that might be in the ORG 's possession and which could , directly or indirectly , support the defence case , should have been disclosed .

ORG , which had before it the transcript of the ex parte hearing of DATE and the material which had been its subject - matter , declined to order the disclosure of either to the defence on the following grounds :

“ The application is made , correctly , on the ground that if the matters which emerged during the ex parte hearing are relevant , or likely to have been relevant , to the defence of PERSON , he should be permitted to have sight of the ruling and the transcript of the proceedings which took place on that occasion . We have read the record and it seems ... that the learned judge ... knew precisely the scope of the application and listened with the greatest possible care to the matters which were placed before him . He tested those matters , and he came to the conclusion that the ruling which he made was appropriate in all the circumstances . It is abundantly clear from the transcript that he throughout was very careful to ensure and to explore whether the material was relevant , or likely to be relevant to the defence which had been indicated to him . In these circumstances , it is impossible for this court to say that the learned judge erred in principle in adopting the course that he did , or that the prosecution erred in principle and we see no ground to set aside the order that the learned judge made on that occasion . ”

On DATE ORG dismissed the applicant 's appeal . The first ground of appeal , namely the non - disclosure of relevant evidence , was rejected in the following terms :

“ The first [ ground of appeal ] ... related to matters to which the label ' unused material ' is commonly given in these courts . It concerned the natural and proper desire of those instructed on behalf of the appellant to make sure , in so far as they could , that no documents or leads of any other sort existed which the ORG ought , as a matter of duty , to disclose to the defence if there was a real or a possible or more than a fanciful chance that disclosure of those documents or those leads might assist the defence . ... There is no suggestion , nor any ground for a suggestion , that the ORG were in any way in dereliction of their duty of good faith in making disclosure of anything that ought properly to be disclosed . ”

The court continued :

“ This was a case of enormous strength so far as the prosecution were concerned . The appellant had been caught red handed with a huge amount of cannabis resin . He was exercising a proprietorial form of control over the packages . He was unloading them and opening them up . By opening them he was allowing what were ostensibly their sole contents to defreeze , with a risk ( to put it no higher ) of their becoming valueless . He was not the consignee of the meat . [ He ] neither called nor gave evidence . That , of course , was his right , as the jury were ... directed , but it had the result that the jury were without any explanation whatsoever as to what , on his case , he was about . It is difficult , if not impossible , to see what other inference than that he was indeed guilty of the offence charged any reasonable jury could have reached . We dismiss this appeal . ”

At common law , the prosecution has a duty to disclose any earlier written or oral statement of a prosecution witness which is inconsistent with evidence given by that witness at the trial . The duty also extends to statements of any witnesses potentially favourable to the defence .

NORP In DATE the Attorney - General issued Guidelines , which did not have the force of law , concerning exceptions to the common law duty to disclose to the defence certain evidence of potential assistance to it ( ( DATE ) CARDINAL Cr . App . PERSON ( “ the LAW ) ) . The LAW attempted to codify the rules of disclosure and to define the prosecution 's power to withhold “ unused material ” . Under paragraph CARDINAL , “ unused material ” was defined as :

“ ( i ) All witness statements and documents which are not included in the committal bundle served on the defence ; ( ii ) the statements of any witnesses who are to be called to give evidence at the committal and ( if not in the bundle ) any documents referred to therein ; ( iii ) the unedited version(s ) of any edited statements or composite statement included in the committal bundles . ”

According to the Guidelines , the duty to disclose was subject to a discretionary power for prosecuting counsel to withhold relevant evidence if it fell within CARDINAL of the categories set out in paragraph CARDINAL . CARDINAL of these categories ( CARDINAL ) ) was “ sensitive ” material which , because of its sensitivity , it would not be in the public interest to disclose . “ Sensitive material ” was defined as follows :

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

According to paragraph CARDINAL , “ in deciding whether or not statements containing sensitive material should be disclosed , a balance should be struck between the degree of sensitivity and the extent to which the information might assist the defence ” . The decision as to whether or not the balance in a particular case required disclosure of sensitive material was one for the prosecution , although any doubt should be resolved in favour of disclosure . If either before or during the trial it became apparent that a duty to disclose had arisen , but that disclosure would not be in the public interest because of the sensitivity of the material , the prosecution would have to be abandoned .

Since DATE the Guidelines have been superseded by the common law , notably by a number of decisions of ORG .

In NORP v. Ward ( [ DATE ] vol . CARDINAL Weekly Law Reports p. CARDINAL ) ORG dealt with the duties of the prosecution to disclose evidence to the defence and the proper procedure to be followed when the prosecution claimed public interest immunity . It stressed that the court and not the prosecution was to be the judge of where the proper balance lay in a particular case , because :

“ ... [ When ] the prosecution acted as judge in their own cause on the issue of public interest immunity in this case they committed a significant number of errors which affected the fairness of the proceedings . Policy considerations therefore powerfully reinforce the view that it would be wrong to allow the prosecution to withhold material documents without giving any notice of that fact to the defence . If , in a wholly exceptional case , the prosecution are not prepared to have the issue of public interest immunity determined by a court , the result must inevitably be that the prosecution will have to be abandoned . ”

ORG described the balancing exercise to be performed by the judge as follows :

“ ... a judge is balancing on the one hand the desirability of preserving the public interest in the absence of disclosure against , on the other hand , the interests of justice . Where the interests of justice arise in a criminal case touching and concerning liberty or conceivably on occasion life , the weight to be attached to the interests of justice is plainly very great indeed ” .

In NORP v. PERSON . CARDINAL ORG p. CARDINAL ) , ORG emphasised that in performing the balancing exercise referred to in Ward , the court must view the material itself :

“ In our judgment the exclusion of the evidence without an opportunity of testing its relevance and importance amounted to a material irregularity . When public interest immunity is claimed for a document , it is for the court to rule whether the claim should be upheld or not . To do that involves a balancing exercise . The exercise can only be performed by the judge himself examining or viewing the evidence , so as to have the facts of what it contains in mind . Only then can he be in a position to balance the competing interests of public interest immunity and fairness to the party claiming disclosure . ”

This judgment also clarified that where an accused appeals to ORG on the grounds that material has been wrongly withheld , ORG will itself view the material ex parte .

In NORP v. PERSON , PERSON and PERSON ( [ DATE ] vol . CARDINAL Weekly Law Reports p. CARDINAL ) , ORG held that it was not necessary in every case for the prosecution to give notice to the defence when it wished to claim public interest immunity , and outlined CARDINAL different procedures to be adopted .

The first procedure , which had generally to be followed , was for the prosecution to give notice to the defence that they were applying for a ruling by the court and indicate to the defence at least the category of the material which they held .

The defence then had the opportunity to make representations to the court .

Secondly , however , where the disclosure of the category of the material in question would in effect reveal that which the prosecution contended should not be revealed , the prosecution should still notify the defence that an application to the court was to be made , but the category of the material need not be disclosed and the application should be ex parte .

The third procedure would apply in an exceptional case where to reveal even the fact that an ex parte application was to be made would in effect be to reveal the nature of the evidence in question . In such cases the prosecution should apply to the court ex parte without notice to the defence .

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

In NORP v. PERSON ( [ DATE ] vol . CARDINAL Weekly Law Reports p. CARDINAL ) ORG emphasised that , since the ex parte procedure outlined in PERSON , PERSON and PERSON was “ contrary to the general principle of open justice in criminal trials ” , it should be used only in exceptional cases . It would be an abdication of the prosecution 's duty if , out of an abundance of caution , it were simply “ to dump all its unused material in the court 's lap and leave it to the judge to sort through it regardless of its materiality to the issues present or potential ” . Thus , the prosecution should put before the court only those documents which it regarded as material but wished to ORG withhold . “ Material ” evidence was that which could , on a sensible appraisal by the prosecution , be seen to ( i ) be relevant or possibly relevant to an issue in the case ; ( ii ) raise or possibly raise a new issue the existence of which was not apparent from the evidence the prosecution proposed to use ; or to ( iii ) hold out a real ( as opposed to fanciful ) prospect of providing a lead of evidence going to ( i ) or ( ii ) . Exceptionally , in case of doubt about the materiality of the documents or evidence , the court might be asked to rule on the issue . In order to assist the prosecution in deciding whether evidence in its possession was “ material ” , and the judge in performing the balancing exercise , it was open to the defence to indicate any defence or issue which they proposed to raise .

In NORP v. PERSON ( The ORG , DATE ) , ORG held that a failure by the prosecution to disclose the fact that a prosecution witness whose evidence was challenged had applied for or received a reward for giving information was a material irregularity which justifies overturning a conviction .

In NORP v. PERSON ( [ DATE ] ORG p. CARDINAL ) , ORG reviewed the operation of the Guidelines . It stated :

“ The Attorney General 's objective was no doubt to improve the existing practice of disclosure by the ORG . That was a laudable objective . But the Attorney General was not trying to make law and it was certainly beyond his power to do so ... . The LAW are merely a set of instructions to ORG lawyers and prosecuting counsel ... . Judged simply as a set of instructions to prosecutors , the LAW would be unobjectionable if they exactly matched the contours of the common law duty of non - disclosure ... . But if the LAW , judged by the standards of DATE , reduce the commons law duties of the ORG and thus abridge the common law rights of a defendant , they must be pro tanto unlawful ... . [ T]oday , the Guidelines do not conform to the requirements of the law of disclosure in a number of critically important respects . First , the judgment in LOC established that it is for the court , not prosecuting counsel , to decide on disputed questions as to discloseable materials , and on any asserted legal ground to withhold production of relevant material ... . For present purposes the point of supreme importance is that there is no hint in the Guidelines of the primacy of the court in deciding on issues of disclosure ... . Secondly , the guidelines are not an exhaustive statement of the ORG 's common law duty of disclosure : NORP v. Ward at CARDINAL and CARDINALD. To that extent too the Guidelines are out of date . Thirdly , the LAW were drafted before major developments in the field of public interest immunity . [ I]n paragraph CARDINAL the Guidelines are cast in the form of a prosecutor 's discretion ... . Much of what is listed as ' sensitive material ' is no doubt covered by public interest immunity . But not everything so listed is covered by public interest immunity ... . ”

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

“ Since NORP v. Ward ... there has been an increasing tendency for defendants to seek disclosure of informants ' names and roles , alleging that those details are essential to the defence . Defences that the accused has been set up , and allegations of duress , which used at one time to be rare , have multiplied . We wish to alert judges to the need to scrutinise applications for disclosure of details about informants with very great care . They will need to be astute to see that assertions of a need to know such details , because they are essential to the running of the defence , are justified . If they are not so justified , then the judge will need to adopt a robust approach in declining to order disclosure . Clearly , there is a distinction between cases in which the circumstances raise no reasonable possibility that information about the informant will bear upon the issues and cases where it will . Again , there will be cases where the informant is an informant and no more ; other cases where he may have participated in the events constituting , surrounding , or following the crime . Even when the informant has participated , the judge will need to consider whether his role so impinges on an issue of interest to the defence , present or potential , as to make disclosure necessary ... It is sufficient for us to say that in this case we are satisfied that the information concerning the informant showed a participation in the events concerning this crime which , coupled with the way in which the defence was raised from the very first moment by the defendant when he said that he was being set up , gave rise to the need for the defence to be aware of the identity of the informant and his role in this matter . We , therefore , conclude that if CARDINAL applies the principle which has been quoted from NORP v. PERSON ... to the facts of the present case , there could only be one answer to the question as to whether the details concerning this informer were so important to the issues of interest to the defence , present and potential , that the balance which the judge had to strike came down firmly in favour of disclosure . ”

Subsequent to the applicant 's trial , a new statutory scheme covering disclosure by the prosecution has come into force in GPE and GPE . Under LAW , the prosecution must make “ primary disclosure ” of all previously undisclosed evidence which , in the prosecutor 's view , might undermine the case for the prosecution . The defendant must then give a defence statement to the prosecution and the court , setting out in general terms the nature of the defence and the matters on which the defence takes issue with the prosecution . The prosecution must then make a “ secondary disclosure ” of all previously undisclosed material “ which might reasonably be expected to assist the accused 's defence as disclosed by the defence statement ” . Disclosure by the prosecution may be subject to challenge by the accused and review by the trial court .

The Interception of Communications Act DATE ( “ the DATE LAW ) came into force on DATE following the ORG 's judgment in ORG v. GPE ( DATE , Series A no . CARDINAL ) . Its objective , as outlined in ORG which preceded it , was to provide a clear statutory framework within which the interception of communications on public systems would be authorised and controlled in a manner commanding public confidence ( Interception of Communications in GPE ( DATE ) Her ORG , ORG . DATE ) .

By DATE ( CARDINAL ) of the DATE Act , anyone who intentionally intercepts a communication in the course of its transmission by means of a public communications system is guilty of a criminal offence . LAW ) and ( CARDINAL ) provide CARDINAL circumstances in which a person who intercepts communications in this way will not be guilty of the offence , for example , interception of a communication pursuant to a warrant lawfully issued by the Secretary of ORG under LAW , where the Minister considers the interception necessary in the interests of national security , for the purpose of preventing or detecting serious crime , or in order to safeguard the economic well - being of GPE . The operation of the LAW is overseen by a ORG and a Commissioner : see further the PERSON v. the GPE judgment of DATE ( Reports CARDINAL , § § DATE ) .

Section CARDINAL of the DATE Act contains a series of provisions designed to secure that the retention and circulation of any intercepted material is “ limited to the minimum ... necessary ” to achieve the section CARDINAL purpose for which it was obtained , including a provision requiring the destruction of any such material as soon as its retention “ is no longer necessary ” for that purpose . Section CARDINAL provides that no evidence shall be adduced by any party , in any proceedings before a court or tribunal , which tends to suggest either that an offence under section CARDINAL of the DATE Act has been committed by a public servant or that a warrant has been issued to such a person under LAW .

In NORP v. PERSON ( [ DATE ] vol . CARDINAL Appeal Cases p. CARDINAL ) , ORG decided that the fact that material intercepted pursuant to section CARDINAL of the DATE Act had been destroyed did not amount to a material irregularity in criminal proceedings . The basis for ORG decision was that the purpose for which such an interception might be permitted was narrowly defined in section CARDINAL of the CARDINAL Act ; in particular , the purpose of “ preventing and detecting serious crime ” did not extend to amassing evidence with a view to prosecuting offenders . CARDINAL of the consequences of this construction was that , in a case of interception authorised for “ preventing and detecting serious crime ” , section CARDINAL of the Act would normally require the destruction of intercepted material at a stage well before the prosecution 's duty to disclose relevant material could arise in criminal proceedings . Accordingly , if the LAW were to operate , as ORG had intended , to restrict retention and dissemination of intercepted material to the minimum necessary to achieve the purpose of “ preventing and detecting serious crime ” , there was likely to be no intercepted material to disclose to the defence and its destruction could not be said to amount to a material irregularity .

Following the judgments of the ORG in PERSON v. GPE ( DATE , Reports of Judgments and Decisions PERSON ) and PERSON v. GPE ( DATE , Reports CARDINAL-IV ) GPE has introduced legislation making provision for the appointment of a “ special counsel ” in certain cases involving national security . The provisions are contained in ORG Act DATE ( “ the CARDINAL Act ” ) , and LAW DATE ( “ the DATE LAW ) . Under this legislation , where it is necessary on national security grounds for the relevant tribunal to sit in camera , in the absence of LAW the affected individual and his or her legal representatives , the Attorney General may appoint a special counsel to represent the interests of the individual in the proceedings . The legislation provides that the special counsel is not however “ responsible to the person whose interest he is appointed to represent ” , thus ensuring that the special counsel is both entitled and obliged to keep confidential any information which can not be disclosed .

For example , in the immigration context , the relevant Rules under LAW are contained in GPE ( Procedure ) Rules DATE ( ORG no . DATE ) . Rule CARDINAL provides that in exercising its functions , the Commission shall secure that information is not disclosed contrary to the interests of national security , the international relations of GPE , the detection and prevention of crime , or in any other circumstances where disclosure is likely to harm the public interest . Rule CARDINAL relates to the special advocate established by section CARDINAL of LAW . It provides , inter alia ,

“ CARDINAL . ( CARDINAL ) The function of the special advocate is to represent the interest of the appellant by -

( a ) making submissions to the Commission in any proceedings from which the appellant or his representative are excluded ;

( b ) cross - examining witnesses at any such proceedings ; and

( c ) making written submissions to the Commission .

( CARDINAL ) Except in accordance with paragraph ( CARDINAL ) to ( CARDINAL ) the special advocate may not communicate directly or indirectly with the appellant or his representative on any matter connected with proceedings before the Commission .

( CARDINAL ) The special advocate may communicate with the appellant and his representative at any time before the Secretary of ORG make the material available to him .

( CARDINAL ) At any time after the Secretary of ORG has made the material available under rule ORG ) , the special advocate may seek directions from the Commission authorising him to seek information in connection with the proceedings from the appellant or his representative .

( CARDINAL) The Commission shall notify the Secretary of ORG of a request for direction under paragraph ( CARDINAL ) and the Secretary of ORG must , within a period specified by the Commission , give the Commission notice of any objection which he has to the request for information being made or to the form in which it is proposed to be made .

( CARDINAL ) Where the Secretary of ORG makes an objection under paragraph ( CARDINAL) rule CARDINAL shall apply as appropriate . ...

ORG If the Secretary of ORG intends to oppose the appeal , he must , no later than CARDINAL days after receiving a copy of the notice of appeal -

( a ) provide the ORG with a summary of the facts relating to the decision being appealed and the reasons for the decision ;

( b ) inform ORG grounds on which he opposes the appeal ; and

( c ) provide the ORG with a statement of the evidence which he relies upon in support of those grounds .

( CARDINAL ) Where the Secretary of ORG objects to material referred to in paragraph ( CARDINAL ) above being disclosed to the appellant or his representative , he must also

( a ) state the reasons for the objection ; and

( b ) if and to the extent it is possible to do so without disclosing information contrary to the public interest , provide a statement of that material in a form that can be shown to the appellant .

( CARDINAL ) Where he makes an objection under paragraph ( CARDINAL ) , the Secretary of ORG must make available to the special advocate , as soon as it is practicable to do so , the material which he has provided to the ORG under paragraphs ( CARDINAL ) and ( CARDINAL ) .

CARDINAL ) Proceedings under this rule shall take place in the absence of the appellant and his representative .

( CARDINAL ) The Commission shall decide whether to uphold the Secretary of ORG 's objection .

( CARDINAL ) Before doing so it shall invite the special advocate to make written representations .

( CARDINAL ) After considering representations made under paragraph ( PERCENT may -

( a ) invite the special advocate to make oral representations ; or

( b ) uphold the Secretary of ORG 's objections without requiring further representations from the special advocate .

( CARDINAL ) Where the Commission is minded to overrule the Secretary of ORG 's objection , or to require him to provide material in different form from that in which he has provided it under rule ORG ) , the Commission must invite the Secretary of ORG and the special advocate to make oral representations .

( CARDINAL ) Where -

( a ) the Commission overrules the Secretary of ORG 's objection or requires him to provide material in different form from that in which he has provided it under rule ORG ) , and

( b ) the Secretary of ORG wishes to oppose the appeal , he shall not be required to disclose any material which was the subject of the unsuccessful objection if he chooses not to rely upon it in opposing the appeal . ”

In the context of fair employment proceedings in GPE , the scheme under sections CARDINAL of the CARDINAL Act and the relevant Rules is identical to the mechanism adopted under LAW ( above ) .

In addition , the ORG has recently placed before ORG CARDINAL Bills which make provision for the appointment of “ special counsel ” ( operating under the same conditions ) in other circumstances . ORG Bill DATE provides for the appointment of a “ special representative ” in proceedings before an ORG to be established for the purpose of examining complaints relating to the interception and interpretation of electronic communications . In the context of criminal proceedings , ORG and Criminal Evidence Bill DATE makes provision for the appointment by the court of a special counsel in any case in which a trial judge prohibits an unrepresented defendant from cross - examining in person the complainant in sexual offence .


The applicant is a NORP construction company with limited liability having its registered seat in GPE . In the proceedings it is represented by PERSON M.W.C. PERSON , a lawyer practising in GPE .

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

a. Particular circumstance of the present case

In DATE and DATE , the applicant company hired employees for work in the GPE from PERSON ( hereinafter referred to as " PERSON " ) , a company with limited liability having its registered seat in GPE . For the latter company 's employees hired by third companies , ORG ( Allgemeine ORG ) issued secondment certificates ( detacherings - verklaringen ) , so - called E-CARDINAL certificates .

In accordance with the relevant statutory rules , ORG ( Nieuwe Algemene Bedrijfsvereniging ; " NAB " ) enlisted PERSON as a member and decided that the latter had to pay NORP social security contributions for these employees . As PERSON failed to provide the ORG with the necessary information on wages paid , the ORG determined the relevant social security contributions ex officio . PERSON was declared bankrupt in DATE .

In its decision of DATE , the ORG held the applicant company severally liable ( hoofdelijk aansprakelijk ) for the payment of the social security contributions under LAW ( PERSON ; " WW " ) , LAW ( PERSON ; " PERSON " ) , ORG ( GPE ; " ZFW " ) and ORG ( Wet op de Arbeidsongeschiktheidsverzekering ; " PERSON " ) for the employees hired by the applicant company from PERSON GmbH. These contributions amounted in total to MONEY .

In this decision it was stated that the applicant company would have been exempted from this liability if it would have reported , in accordance with the procedure stated in the decision Nr . DATE of CARDINAL DATE of ORG ( Sociale Verzekeringsraad ) , that it was availing itself of the services of seconded employees and , in addition , if this secondment had taken place under a permit referred to in Article CARDINAL para . CARDINAL of Act on ORG ( FAC CARDINAL beschikking stellen van arbeidskrachten ) issued to the seconding employer . It was found that the applicant company had not complied with either condition .

The applicant company filed an appeal with ORG ( Arrondissementsrechtbank ) of GPE . In the course of a hearing held on DATE before ORG , the applicant company submitted not to have found any social security contribution demands ( premienota 's ) and , expressing doubts on the actual existence of such demands , raised the question whether under these circumstances it could be held liable for payment of these social security contributions . The ORG replied that the demands existed .

On DATE , ORG rejected the applicant company 's appeal as ill - founded . ORG noted that no payment had been received on the social security contribution demands for DATE which the ORG had addressed to PERSON GmbH.

As to the question whether the applicant company could be held liable for the payment of these contributions , ORG held that the applicant company had failed to report that it was availing itself of seconded employees and that no permit had been issued to PERSON GmbH.

Rejecting all arguments advanced by the applicant company in this respect , ORG found that the facts at issue did not constitute a situation of international secondment as referred to in the EEC Ordinances CARDINAL/CARDINAL and CARDINAL/CARDINAL . It noted that the employees at issue were all NORP nationals and were all residing and working in the GPE at the relevant time . It further noted that ORG had recruited these employees , who until TIME had been insured under the NORP social security system , in the GPE where they had also been assigned to work .

Having reached this finding , ORG concluded that the NORP social security legislation was applicable to the employees hired by the applicant company and that , as ORG had failed to pay the contributions due , the applicant company could be held liable , pursuant to LAW , for payment of the social security contributions over DATE and DATE in respect of the employees it had hired from PERSON GmbH.

The applicant company filed an appeal with ORG ( ORG ) . In its written appeal it stated , inter alia , that it did not appear from the case - file that social security contribution demands had been issued to PERSON GmbH. The applicant company argued that , as long as statutory social security contributions debts had not been formalised in a social security contribution demand , there could be no formally claimable contribution debt . It further doubted that any steps aimed at collecting this debt had been taken against ORG and submitted that , in these circumstances , it was inappropriate that it should be held liable for this debt .

In its written reply of DATE to the applicant company 's appeal , the ORG stated that social security contribution demands had been issued and , although it had not yet been possible to submit copies of these demands , that it would submit copies of these demands as soon as possible . As to the lack of any debt recovery steps , the ORG submitted that ORG had gone bankrupt in DATE and that it was thus impossible to collect this debt .

In the course of a hearing held on DATE before ORG , the applicant company also argued that the letters of DATE and DATE from ORG ( ORG ; " ORG " ) to PERSON had created a legitimate expectation that no NORP social security contributions would be imposed . It further submitted that , since it still had not received any social security contribution demands addressed to PERSON , no contributions had been imposed and thus no contributions were due .

The ORG replied that it could not bear any responsibility for acts of another administrative organ which may have led to certain expectations and , as regards the submission of the demands , responded that this had still not been done but that it would be able to submit these demands at the hearing .

In reply to this offer by the ORG to submit the demands , the President of ORG , referring to LAW ( PERSON ) , stated that additional documents were to be submitted DATE before the date of the hearing .

When the applicant company submitted that the ORG , in its written submissions of DATE , had only stated that the demands would be submitted as soon as possible but that so far nothing had in fact been submitted , the President of ORG stated that it appeared indisputably from the administrative records that social security contributions demands had been issued ( " uit de administratie onomstotelijk blijkt dat er premienota 's zijn opgelegd " ) . The applicant company 's representative responded not to have seen these demands .

In its decision of DATE , ORG rejected the applicant company 's appeal and upheld the judgment of DATE .

It held , inter alia , that it agreed with ORG finding that the employees at issue fell under the GPE social security scheme and that the situation at issue did not concern secondment of employees recruited in GPE . It noted on this point that the applicant company did no longer contest this finding .

ORG further agreed with ORG that the letters of CARDINAL DATE and DATE from the ORG could not be regarded as constituting a violation of the principle of justified expectations ( vertrouwensbeginsel ) to such an extent that the applicant company 's liability could not be maintained . It noted that these letters came from the ORG and not from the ORG and held that , given the manner in which the clauses contained in these letters were formulated , the applicant company could not have attached a decisive importance to them .

ORG did not deal with the issues raised by the applicant company in respect of the social security contribution demands .

b. Relevant domestic law and practice

Under LAW of ORG - ordination LAW ) , social security contributions due by employers are determined by the occupational association to which the employer belongs . According to paragraph CARDINAL of this provision , the occupational association must inform the employer in writing of the amount due and the delay for payment .

According to LAW para . CARDINAL of ORG - ordination LAW , social security contributions will no longer be determined after a period of DATE has elapsed since the end of the calendar DATE for which such contributions are in principle due . Paragraph CARDINAL of this provision states that payment of social security contributions , which have not been collected within DATE after their determination , can no longer be claimed .

Pursuant to Article CARDINALa of ORG - ordination LAW , a legal person hiring employees of a third party may in certain circumstances be liable to pay the social security contributions , in principle due by the third party employer , for such employees . CARDINAL such circumstance is the failure of the third party to pay these contributions .

In a decision of DATE , ORG held that a third party can not be held liable for payment of social security contributions if the initial demand had not issued to the correct debtor . In that case it was held that the real debtor was a company with limited liability whereas the demand stated this company 's director / shareholder in his personal capacity as debtor ( CRvB , DATE , PERSON , Nr . CARDINAL ) .

Under LAW ( PERSON ) the administrative organ against whose decision an administrative appeal has been lodged shall transmit to the court dealing with the appeal the documents relating to the case ( " de op de zaak betrekking hebbende stukken " ) within a set time - limit .

Pursuant to LAW , an administrative court can further request the parties and others to submit documents within a fixed time - limit . Under paragraph CARDINAL of this provision , administrative organs , even if they are no party to the proceedings concerned , are obliged to comply with such a request . Pursuant to LAW , parties are obliged to comply with a request of an administrative court to submit documents .

Under LAW para . CARDINAL of LAW , an administrative court shall give judgment on the basis of the notice of appeal , the documents submitted , the preliminary examination and the hearing before the court . Under the second and third paragraphs of this provision an administrative court may ex officio complete the legal grounds and the facts .

Under LAW a written decision of an administrative judicial body shall include the grounds on which it is based .