Remainder inadmissible;Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Expulsion);Non-pecuniary damage - award

David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Ledi Bianku;Paul Mahoney;Vincent A. De Gaetano;Zdravka Kalaydjieva

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

The applicant was born in DATE and is currently detained in GPE GPE .

The applicant arrived in GPE on DATE and claimed asylum . The asylum claim was refused but he was granted exceptional leave to remain until DATE .

On DATE the applicant was convicted of offences of rape and indecency with a child and sentenced to CARDINAL years’ imprisonment .

On DATE the Secretary of ORG for ORG issued the applicant with a decision to make a deportation order and on DATE he issued an authority for detention until the making of a deportation order .

On DATE the applicant appealed against the decision to make a deportation order and made a fresh claim for asylum . The appeal was unsuccessful and his appeal rights were exhausted on DATE .

NORP In DATE the applicant was interviewed by probation officers who found that he was not suitable for parole . During his time in prison he had received CARDINAL charges relating to offences against prison discipline . CARDINAL of these offences involved fighting . Moreover , he was assessed as presenting a high risk of sexual offending and a medium risk of general offending on release .

On DATE the applicant ’s release became automatic . However , he remained in detention pursuant to the authority issued on DATE .

On DATE the Secretary of ORG for ORG issued a deportation order which included a paragraph authorising the applicant ’s detention until his deportation . The order was served on the applicant on DATE .

The applicant had claimed to be a member of the ORG tribe , which comes from GPE , an autonomous region in north - west GPE . He further claimed that his parents were born in GPE , the capital of GPE , although it was accepted that he was born in GPE , in south - central GPE . Consequently , the authorities initially sought to return the applicant to NORP . However , in order to secure the agreement of the NORP authorities to the return of a PERSON to their territory , detailed information about clan - history was required . This was normally done through the provision of bio - data , but this was often difficult to obtain as it required the co - operation of the Somalilander . Consequently , few PERSON were returned to PERSON at this time . As the applicant did not co - operate with the provision of bio - data , the Government decided that it would be preferable to remove him to GPE .

NORP In DATE the last carrier willing to take “ enforced returns ” to GPE withdrew , with the consequence that it was no longer possible for the Government to remove people without their consent . The carriers were , however , willing to carry those who had signed a disclaimer confirming that they were returning voluntarily . In DATE the applicant refused a formal request to sign such a disclaimer .

On DATE an application for bail was refused by the Chief Immigration Officer .

In DATE the applicant made further representations for asylum . In DATE the Secretary of ORG for ORG refused to treat those representations as a fresh claim .

On DATE the applicant was again refused bail . In the course of the hearing , however , the immigration judge was wrongly informed that enforced removals to GPE would be possible in the foreseeable future .

In DATE the Government concluded an agreement with ORG which made enforced removals to GPE possible . The first enforced removal to GPE took place on DATE .

On DATE the applicant was granted permission to apply for judicial review of the decision to detain him but an application for interim relief in the form of an order that he be released from detention was refused .

The applicant was issued with removal directions set for DATE . He sought leave to apply for judicial review of the removal directions and the directions were cancelled pending a decision on that application .

The application for judicial review of the decision to detain the applicant was considered by Mr Justice PERSON in a judgment handed down on DATE . The judge reiterated the principles established by domestic case - law , most notably in the case of R v Governor of ORG , ex parte ORG PERSON [ DATE ] ORG CARDINAL : first , that the Secretary of ORG for ORG could only detain a person that he intended to deport for what amounted to a reasonable period in all the circumstances ; and secondly , that if , before the expiry of a reasonable period , it became apparent that the Secretary of ORG would not be able to effect deportation within a reasonable period , he should not seek to exercise the power of detention .

The judge first considered the lawfulness of the applicant ’s detention up until DATE . He was satisfied that from DATE to DATE the Secretary of ORG had exercised comparative diligence to overcome the obstacles and remove the applicant . In particular , he noted that the applicant could not have been removed DATE and DATE because his asylum and deportation appeals were still pending , and DATE and DATE he could not be removed because no deportation order had been served . When considered alongside the objections to bail ( the risk of re - offending and the risk of absconding ) , he held that on balance the continued detention of the applicant up to DATE was lawful .

NORP The period of detention from DATE , which was the date of the applicant ’s first review following his refusal to return voluntarily , to DATE was found to be unlawful because of its length , the impossibility during that period of achieving removal , and the misleading statements which had misled decision - makers both inside and outside ORG .

The judge held that the applicant ’s detention after DATE was lawful as once again there was a prospect of immediate removal .

Both the applicant and the Secretary of ORG were granted leave to appeal to ORG . The Secretary of ORG contended that the application for judicial review ought to have been dismissed , while the applicant submitted that his continued detention after DATE should have been held to be unlawful .

In a judgment handed down on DATE , ORG allowed the appeal by the Secretary of ORG and dismissed the applicant ’s appeal . The court held that the period of detention DATE and DATE was lawful because the applicant could have returned to GPE voluntarily . Moreover , the risk of the applicant reoffending was high , which was a worrying prospect in view of the nature of his previous offence . The court held that it was wrong in principle to offset those factors against the applicant ’s concerns about returning to GPE as his removal had already been held not to be in breach of LAW or Article CARDINAL of LAW .

On DATE the applicant was refused permission to appeal to ORG .

On DATE the Secretary of ORG issued a decision refusing to revoke the deportation order . An Immigration Judge allowed the applicant ’s appeal . On DATE ORG ordered reconsideration of the Immigration Judge ’s decision . The reconsideration hearing took place on DATE . The ORG held that the Immigration Judge had materially erred in law and ordered that the case be reheard . The rehearing took place on DATE and , in a determination promulgated on DATE , the ORG dismissed the appeal . The applicant was granted permission to appeal to ORG on DATE . In a judgment dated DATE ORG allowed the appeal , finding that the applicant would be at risk of ill - treatment which reached the threshold required by LAW if he were to be removed to GPE . However , on DATE ORG allowed the appeal by the Secretary of ORG for ORG .

On DATE the applicant was issued with removal directions to GPE . The removal was to take place on DATE . On DATE the ORG granted the applicant interim measures under LAW to prevent his removal .

The applicant remains in immigration detention pending removal . On DATE ORG had ordered that he be released from detention on bail . He was released DATE but was re - detained on DATE after breaching his bail conditions .

The present application is only concerned with the first period of detention , which ended shortly after DATE .

During the applicant ’s detention from DATE to CARDINAL DATE , reviews were carried out in DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE and DATE .

In DATE ORG introduced a “ secret ” policy creating a presumption in favour of the detention of ORG pending their deportation . The policy , which was not disclosed until DATE and was not formally published until DATE , constituted a “ near blanket ban ” on release . During this period , the Secretary of ORG ’s published policy on the detention of ORG stated that there was a presumption in favour of release . The lawfulness of this policy was considered by ORG in the cases of PERSON and ORG v. Secretary of ORG for ORG [ DATE ] ORG CARDINAL ( see paragraph CARDINAL , below ) .

The power to detain a person against whom a decision has been taken to make a deportation order is contained in LAW ( CARDINAL ) of Schedule CARDINAL to LAW DATE ( “ the DATE LAW ) , which provides :

“ Where notice has been given to a person in accordance with regulations under section CARDINAL of the Nationality , Immigration and Asylum Act CARDINAL ( notice of decision ) of a decision to make a deportation order against him , and he is not detained in pursuance of the sentence or order of a court , he may be detained under the authority of the Secretary of ORG pending the making of the deportation order . ”

The power to detain an individual in respect of whom a deportation order is in force is contained in LAW ( CARDINAL ) of Schedule CARDINAL to LAW . It provides :

“ Where a deportation order is in force against any person , he may be detained under the authority of the Secretary of ORG pending his removal or departure from GPE ( and if already detained by virtue of sub - paragraph ( CARDINAL ) or ( CARDINAL ) above when the order is made , shall continue to be detained unless [ he is released on bail or ] the Secretary of ORG directs otherwise ) . ”

There are , however , limitations on the power to detain . CARDINAL distinct principles emerge from the guidance given in R v Governor of ORG , ex parte ORG PERSON [ DATE ] WLR CARDINAL :

“ i. The Secretary of ORG must intend to deport the person and can only use the power to detain for that purpose ;

ii . The deportee may only be detained for a period that is reasonable in all the circumstances ;

iii . If , before the expiry of the reasonable period , it becomes apparent that the Secretary of ORG will not be able to effect deportation within that reasonable period , he should not seek to exercise the power of detention ;

iv . The Secretary of ORG should act with reasonable diligence and expedition to effect removal . ”

In the case of PERSON and ORG v. Secretary of ORG for ORG [ DATE ] ORG , ORG briefly considered the ORG PERSON principles . In his leading judgment , which was accepted by the majority of the court , Lord PERSON found that in assessing the reasonableness of the length of the period of detention , the risk of re - offending would be a relevant factor . In this regard , he noted that if a person re - offended , there was a risk that he would abscond either to evade arrest or , if he was arrested and prosecuted , that he would receive a custodial sentence . Either way , his re - offending would impede his deportation . He also considered that the pursuit of legal challenges by ORG could be relevant . However , he considered the weight to be given to the time spent on appeals to be fact - sensitive . In this regard , he noted that much more weight should be given to detention during a period when the detained person was pursuing a meritorious appeal than to detention during a period when he was pursuing a hopeless one .

Lord PERSON further noted that while it was common ground that the refusal to return voluntarily was relevant to the assessment of the reasonableness of the period of detention because a risk of absconding could be inferred from the refusal , he warned against the danger of drawing such an inference in every case . On the contrary , he considered it necessary to distinguish between cases where the return to the country of origin was possible and cases where it was not . Where return was not possible for reasons extraneous to the person detained , the fact that he was not willing to return voluntarily could not be held against him since his refusal had no causal effect . If return was possible , but the detained person was not willing to go , it would be necessary to consider whether or not he had issued proceedings challenging his deportation . If he had done so , it would be entirely reasonable that he should remain in the GPE pending the determination of those proceedings , unless they were an abuse of process , and his refusal to return voluntarily would be irrelevant . If there were no outstanding legal challenges , the refusal to return voluntarily should not be seen as a trump card which enabled the Secretary of ORG to continue to detain until deportation could be effected , otherwise the refusal would justify as reasonable any period of detention , however long .

NORP In the same case of GPE and ORG was called upon to consider the lawfulness of detention which was effected pursuant to the unpublished policy which was inconsistent with the Secretary of ORG ’s published policy ( see paragraph CARDINAL above ) . The applicants in that case were ORG detained pursuant to the “ secret ” policy creating a presumption in favour of detention pending deportation , while at all material times the published policy indicated that there was a presumption in favour of release . The question of whether the applicants were lawfully detained divided the court , which concluded , by a narrow margin , that the unpublished policy applied to the applicants was unlawful . As a consequence , they were unlawfully detained and their civil claims in false imprisonment had to succeed . However , as the court found that the power to detain would have been exercised even if the lawful , published policy had been applied , it concluded DATE once again by a narrow majority – that the applicants should receive only nominal damages .

Lord PERSON , Lord PERSON and Lord PERSON dissented , preferring to find that the applicants’ detention was not unlawful because they would have been detained even if the published policy had been applied .

Chapter CARDINAL of the document formerly referred to as ORG provided that detention had to be reviewed DATE and written reasons for maintaining detention had to be provided DATE . In the case of PERSON v. Secretary of ORG for ORG [ DATE ] ORG , the applicant had been detained pending the making of a deportation order for DATE . There was no question of a breach of the ORG PERSON principles ( see paragraph DATE above ) but nevertheless the applicant alleged that his detention had been unlawful as it had not been subject to regular reviews as required by the Secretary of ORG ’s published policy . ORG concluded by a majority that it was the Secretary of ORG ’s duty to give effect to his published policy if that policy was sufficiently closely related to the authority to detain . In the present case , the court found that this test was met and that the applicant ’s detention was unlawful . However , in view of the fact that the applicant would have remained in detention even if the reviews had taken place , the court considered it likely that he would only be entitled to nominal damages .


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Pecuniary damage - claim dismissed (Article 41 - Causal link;Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

The applicant , PERSON , was born in DATE and lives in GPE .

On DATE by signing a contract of adoption before a notary public in PERSON , PERSON adopted the applicant . PERSON died on DATE . The applicant was left as the only legal heir to her property .

On CARDINAL DATE the ORG filed an action with ORG requesting the annulment of the above - mentioned contract of adoption . The ORG alleged that the contract did not comply with the necessary requirements and was not therefore a valid contract of adoption . They requested that PERSON property be transferred to the ORG .

On DATE the public prosecutor filed an indictment with ORG accusing the applicant and CARDINAL other persons of fraudulent misrepresentation and forgery .

On DATE experts in handwriting analysis produced a report in which they concluded that the signature of PERSON appearing on the contract of adoption was authentic . The applicant submitted this report to ORG . The court requested the opinion of another group of experts . On DATE the second group of experts confirmed the findings contained in the first report .

On DATE the Şişli First Instance Court in Civil Matters held that the contract satisfied the necessary requirements of a valid contract of adoption and rejected the ORG 's claims .

The ORG appealed . On DATE ORG quashed the decision of ORG . It held that the first - instance court should have adjourned the examination of the case pending the decision of ORG in the criminal proceedings . The applicant requested rectification of ORG ruling . On DATE ORG rejected her request .

On DATE the Şişli First Instance Court in ORG decided not to follow the decision of ORG . The ORG lodged an appeal with ORG of ORG ( Yargıtay Hukuk PERSON ) , which quashed the decision of ORG on DATE .

On DATE , at the request of ORG , ORG drew up a report which concluded that the signature of PERSON on the contract of adoption was authentic . However , in a further report dated DATE ORG noted that its examination of DATE had been based on a comparison between the signature of PERSON on the contract of adoption and her signature on documents submitted in furtherance of her request for permission to draw up and conclude a contract of adoption . The examination of other materials bearing the signature of PERSON revealed in fact that the signature on the contract of adoption was not her signature .

On DATE CARDINAL experts from ORG prepared another report . According to the experts , the signature of PERSON on the contract of adoption was not authentic .

The applicant sought the opinion of another group of handwriting experts . On DATE the experts , a graphologist and CARDINAL professors , finalised their analysis and drafted a report . According to the experts , the reports submitted by ORG experts were contradictory . In their opinion , the signature of PERSON on the contract of adoption was genuine .

On DATE the ORG requested ORG to clarify whether or not the signature of PERSON on the contract of adoption was authentic . On DATE CARDINAL experts belonging to ORG , having considered the findings contained in the previous expert reports , concluded that the signature of PERSON on the contract of adoption was authentic . CARDINAL of the experts who signed this report had also signed the report dated CARDINAL DATE .

On DATE , after requesting several reports from different handwriting experts and from ORG , ORG decided to discontinue the proceedings against the applicant and her co - accused on the ground that the offences of which they were charged had become time - barred since DATE had elapsed since the date of the charges . The court further held that , having regard to the apparent inconsistency between the CARDINAL reports of ORG dated DATE and DATE , ORG should open criminal proceedings against the CARDINAL experts who had signed both reports .

The applicant lodged an appeal against the decision of ORG . On DATE ORG rejected the applicant 's appeal .

On DATE the Şişli First Instance Court in Civil Matters held that the expert reports had established that the ORG had failed to substantiate the allegations of forgery and thus rejected their claim . The ORG appealed . On DATE ORG quashed the decision of ORG .

On DATE the Şişli First Instance Court in ORG decided not to follow the decision of ORG . The ORG lodged an appeal with ORG of ORG . On DATE it quashed the decision of ORG .

On DATE the Şişli First Instance Court in Civil Matters decided to abide by the decision of ORG of ORG . On DATE ORG upheld the decision of ORG .

On DATE ORG rejected the applicant 's request for rectification of the judgment .


Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen

NORP The applicant , Mr PERSON , is an NORP national who was born in DATE and lives in GPE . He was represented before the Court by PERSON , a lawyer practising in GPE . ORG were represented by PERSON PERSON GPE , ORG at ORG . In view of the applicant ’s nationality , the Government of GPE were invited to submit written comments on the case . However , no reply was received within the prescribed time - limit .

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

On DATE the applicant was arrested and charged with attempted murder , robbery and illegal firearms trafficking . His pre - trial detention was extended on several occasions .

On DATE ORG , in a jury trial , convicted the applicant as charged and sentenced him to fifteen years’ imprisonment .

On DATE ORG upheld the conviction on appeal .

Following the applicant ’s request , on DATE the ORG of ORG of GPE quashed the judgment of DATE , as upheld on CARDINAL DATE , by way of supervisory review , and remitted the case for a retrial .

On DATE ORG convicted the applicant as charged and sentenced him to DATE and DATE imprisonment .

The applicant did not appeal against that judgment .

During his arrest on DATE the applicant received a number of serious injuries , including gunshot wounds and fractures of the lower limbs , craniocerebral injury and concussion .

On DATE the applicant was taken to GPE hospital no . CARDINAL , where he received primary surgical treatment for the gunshot wounds and had plaster casts applied to the fractures . He was subsequently transferred to GPE hospital no . CARDINAL , where he stayed until DATE .

On DATE the applicant was placed in GPE remand prison IZCARDINAL/CARDINAL . Upon his admission , the applicant was examined by a surgeon and discovered to have a perforating gunshot wound of the right thigh , a nonperforating gunshot wound of the left gluteal region , a closed fracture ( immobilised ) of left medial malleolus , a fracture ( immobilised ) of the lower third of the right shinbone , a fracture of the proximal phalanx of the hallux of the right foot , and a closed craniocerebral injury . He was subsequently hospitalised in the surgical unit of the remand prison hospital .

In the surgical unit of the remand prison hospital the applicant was further diagnosed with concussion and traumatic neuropathy of the right median nerve . His condition was evaluated as “ moderately severe ” . The applicant was treated with antibacterial , anti - inflammatory , general health - improving , anaesthetic , local , antispasmodic and sedative medication .

On DATE the applicant was discharged from the IZ-CARDINAL/CARDINAL prison hospital in a satisfactory condition , after which he received outpatient treatment at the IZ-CARDINAL/CARDINAL medical unit .

On DATE the applicant filed a request with the acting Prosecutor of GPE asking for his transfer from remand prison IZ-CARDINAL/CARDINAL to GPE hospital no . CARDINAL for specialised treatment .

On DATE the applicant ’s defence counsel made an enquiry with the governor of facility IZ-CARDINAL/CARDINAL as to the state of the applicant ’s health and the possibility of the removal of the CARDINAL bullets from the applicant ’s body in the remand prison .

On DATE the applicant ’s grandfather applied to ORG for the Execution of Sentences asking for the applicant to be transferred to a correctional establishment with adequate medical equipment .

On DATE the chief surgeon of IZ-CARDINAL/CARDINAL surgical unit , having examined the applicant , excluded any emergency surgical pathology , having found that the location of the CARDINAL bullets did not pose any risks to the applicant ’s life and to the functioning of his essential organs . The applicant was recommended elective ( non - urgent ) surgery .

On DATE the all - NORP advocacy group “ For Human Rights ” applied to ORG of GPE for the lifting of the applicant ’s custodial measure and his transfer to ORG for the removal of the bullets from his body .

On DATE the applicant was placed in GPE remand prison GPE , where he continued to receive treatment on an outpatient basis , with the assistance of civilian medical specialists .

On DATE the All - Russian Public Organisation of War and Military Service Veterans wrote to ORG requesting him to intervene and to assist the applicant in getting medical assistance for his gunshot wounds .

On DATE the head of ORG in GPE replied as follows :

“ [ ... ] At present [ the applicant ] is being supervised by the medical staff of [ GPE remand prison GPE ] .

On DATE an additional examination and consultation was provided to [ the applicant ] with the assistance of civilian medical specialists from [ GPE ] city clinical hospital no . DATE a neuropathologist , a traumatologist , a surgeon , and a neurosurgeon – in which [ the applicant ] was diagnosed with suture sinus in the region of the middle third of right thigh [ ... ] , a foreign body ( bullet ) in the soft tissue of the right thigh and pelvis , a wrongly healed fracture of right ankle , a healed fracture of the left ankle [ and ] deforming arthrosis of the ankle joints . ...

At present , surgery on the ankle joints is not recommended owing to a chronic infection of the right thigh soft tissue .

Surgical treatment on the right thigh soft tissue is required in a surgical hospital .

On DATE [ the applicant ] categorically refused treatment in the surgical unit of IZ-CARDINAL/CARDINAL remand prison hospital and in city clinical hospital no . CARDINAL . ... ”

A number of replies with similar content followed .

On DATE the All - NORP public organisation “ ORG in GPE ” applied to the ORG requesting him to assist the applicant in obtaining qualified medical aid and a transfer to ORG .

On DATE the deputy head of the medical section of ORG for the Execution of Sentences replied that no specialised neurosurgical treatment had been recommended for the applicant .

On DATE the applicant ’s defence counsel made an enquiry with ORG for the Execution of Sentences as to the state of the applicant ’s health and the possibility for him to have the CARDINAL bullets removed from his body in the remand prison . The information requested was necessary to substantiate his application for release on medical grounds .

On DATE ORG examined the applicant ’s medical file and classified his disability as “ category CARDINAL ” for DATE , until DATE .

On DATE the applicant ’s defence counsel requested ORG for the Execution of Sentences to carry out a medical examination of the applicant and to suspend his transfer to the correctional colony until the issue of the applicant ’s placement and treatment in a specialised medical establishment in GPE had been settled .

On DATE the applicant left IZ-CARDINAL/CARDINAL in order to serve his sentence .

On DATE the applicant was placed in the GPE correctional colony IK-CARDINAL , where he received outpatient treatment . He was examined by medical specialists on a DATE basis and received etiotropic , pathogenetic and symptomatic therapy .

On DATE the applicant ’s grandfather challenged the applicant ’s transfer to the correctional colony in GPE before the Department supervising compliance with lawfulness and respect for human rights by the authorities and institutions of ORG . He referred to the applicant ’s state of health and the alleged impossibility of adequate medical treatment in medical establishments within the prison system .

On DATE the applicant was admitted to the surgical unit of GPE Region prison hospital PERSON .

On DATE the applicant ’s defence counsel requested the head of ORG in GPE to carry out medical examination of the applicant necessary for deciding the issue of relief from serving his sentence on account of serious illness .

On DATE the head of ORG in GPE replied that the applicant ’s state of health was satisfactory , that there were no grounds for emergency surgery , and that the issue of elective surgery would be decided upon following the applicant ’s examination by medical specialists .

On DATE the applicant underwent elective surgery for the removal of CARDINAL bullets from the soft tissue of his right thigh and the sacral region .

On DATE the applicant ’s defence counsel asked the governor of GPE Region prison hospital PERSON to carry out the medical examination of the applicant necessary for deciding the issue of his relief from serving his sentence on account of serious illness .

NORP The post - operative period being uneventful , on DATE the applicant was discharged from the NORP Regional prison hospital PERSON . He was transferred to GPE Region remand prison IZ-CARDINAL/CARDINAL .

On DATE the applicant ’s father complained to ORG about the applicant ’s transfer from prison hospital PERSON to remand prison IZ-CARDINAL/CARDINAL . He asked that the applicant be transferred back to prison hospital PERSON for his subsequent treatment .

After removal of the post - operative sutures , on DATE the applicant complained of fever , excessive sweating , dizziness and pain . In the absence of a surgeon among the staff of the remand prison ’s medical unit the applicant was transferred back to LOC prison hospital PERSON , where he stayed until his discharge on DATE , when he was transferred to remand prison IZ-CARDINAL/CARDINAL .

On DATE the applicant was placed in GPE correctional colony IK-CARDINAL .

On DATE the applicant ’s defence counsel challenged with the head of ORG the applicant ’s transfer to GPE correctional colony IK-CARDINAL , which had deprived him of the possibility of receiving a complete course of postoperative treatment in prison hospital PERSON .

On DATE the expert medical commission examined the quality of the medical assistance provided to the applicant and came to the conclusion that the applicant had received comprehensive examinations and treatment in compliance with the standards for provision of specialised medical assistance . The decision read as follows :

“ ... Complaints : moderate pain in right and left ankle joints , restriction of function in these joints , pain in left knee joint on activity , restriction of function in this joint due to pain . Presence of scar tissue on the medial surface of the right thigh .

Results of objective examination : [ various observations based on an applicant ’s external inspection and radiographic and neurological examinations of the applicant ( by a neurologist and a neurosurgeon ) and the results of GPE , MRI and ORG examinations carried out on DATE ) ] .

Diagnosis : Effects of a gunshot wound to the right thigh and the lumbar - sacral region of DATE . ... Wrongly healed fracture of right ankle , a healed fracture of the left ankle . Effects of closed craniocerebral injury with astheno - neurotic syndrome .

The patient was subjected to comprehensive examination and treatment in accordance with the standards for provision of specialised medical assistance .

Recommended : walking with the help of a crutch , with the weight on the left [ foot ] . No further in - patient examination and treatment are required . ... ”

On DATE the applicant was again admitted to GPE prison hospital PERSON , where he was diagnosed with deforming osteoarthrosis of the right ankle . He was provided with treatment appropriate to his condition .

On DATE the applicant again underwent an expert medicosocial examination and was found to have no signs of persistent disability . The applicant ’s continued classification as disabled , therefore , was not required .

On DATE the applicant was discharged from LOC prison hospital PERSON .

On DATE he was admitted to correctional colony IK-CARDINAL .

On DATE the applicant was placed in GPE Region correctional colony IK-CARDINAL .

On DATE the applicant was transferred back to correctional colony IK-CARDINAL .

From DATE up to his release the applicant was held again in GPE remand prison IZ-CARDINAL/CARDINAL , where he was further diagnosed with , and treated for , osteochondrosis of the thoracic spine , lumbar osteochondrosis and astheno - neurotic syndrome .

On DATE the applicant ’s parents applied to the governor of GPE remand prison IZ-CARDINAL/CARDINAL asking for the applicant ’s transfer back to prison hospital PERSON , without success .

DATE . On DATE the applicant was released from prison .

The federal law on the detention of persons suspected of and charged with criminal offences ( Federal Law no . CARDINAL of DATE ) provides that inmates are entitled to medical assistance ( section CARDINAL ) . If an inmate ’s health deteriorates , the medical officers of the remand prison are obliged to examine him promptly and inform him of the results of the examination in writing . If the inmate requests to be examined by staff of other medical institutions , the administration of the detention facility is to organise such an examination . If the administration refuses , the refusal can be appealed against to a prosecutor or court . If an inmate is suffering from a serious disease , the administration of the remand prison is obliged immediately to inform the prosecutor , who can carry out an inquiry into the matter ( section CARDINAL ) .


Questions of procedure rejected;No violation of Art. 7

The purpose of the ORG 's request - to which is appended the ORG drawn up by the Commission in accordance with the provisions of LAW article CARDINAL ) of the Convention - is to submit the case of ORG to the ORG so that it may decide whether or not the facts of the case disclose that ORG has failed in its obligations under LAW .

As appears from the ORG 's request and from its ORG , ORG alleges in his ORG that , in his case , the LAW has been violated by the authorities of GPE , inasmuch as , in pursuance of an Order made by the Minister of ORG under LAW No . DATE amending the ORG against LAW , DATE , he was detained without trial , DATE and CARDINALth DATE , in a military detention camp situated in the territory of GPE .

The facts of the case , as they appear from the Report of the ORG , the memorials , evidence and documents laid before the ORG and the statements made by the ORG and by ORG during the oral hearings before the ORG , are in substance as follows :

ORG is a builder 's labourer , born in DATE . He is ordinarily resident in GPE ( GPE ) .

ORG admitted before the Commission that he had become a member of the IRA ( " ORG " ) in DATE . According to his own statements , he left the ORG in DATE and a splinter group of the ORG in DATE .

Under the LAW establishing ORG , signed on DATE between GPE and ORG , CARDINAL counties situated in LOC remained under NORP sovereignty .

On several occasions since the foundation of ORG , armed groups , calling themselves ORG " ( IRA ) , have been formed , for the avowed purpose of carrying out acts of violence to put an end to NORP sovereignty in GPE . At times the activities of these groups have been such that effective repression by the ordinary process of law was not possible . From time to time , the legislature has , therefore , conferred upon the Government special powers deal with the situation created by these unlawful activities ; and such powers have sometimes included the power of detention without trial .

On DATE the LAW at present in force in GPE was promulgated . In DATE all persons detained for political offences were released .

When the political situation in LOC foreshadowed war , the ORG resumed its activities and committed fresh acts of violence .

At DATE the IRA published documents described by it as a " declaration of war on GPE " . Following that declaration , the ORG , operating from territory of GPE , intensified its acts of violence on NORP territory .

In order to meet the situation created by the activities of the ORG , ORG passed the LAW against LAW , DATE , which came into force on DATE .

Part II of LAW defines the " activities prejudicial to the preservation of public peace and order or to the security of the ORG " . Part III contains provisions relating to organisations whose activities come under the LAW and any which may therefore be declared an " unlawful organisation " by order of the Government . LAW of LAW provides as follows :

" ( CARDINAL ) It shall not be lawful for any person to be a member of an unlawful organisation ;

( CARDINAL ) Every person who is a member of an unlawful organisation in contravention of this section shall be guilty of an offence under this section and shall :

( a ) on summary conviction thereof , be liable to a fine not exceeding QUANTITY , or at the discretion of the court , to imprisonment for a term not exceeding DATE or to both such fine and such imprisonment ; or

( b ) on conviction thereof on indictment , be liable to imprisonment for a term not exceeding DATE . "

Part DATE the CARDINAL Act contains various provisions relating to the repression of unlawful activities , including , in LAW , the following provision relating to the arrest and detention of persons suspected of being concerned in unlawful activities :

" ( CARDINAL ) A member of ORG ( if he is not in uniform on production of his identity card if demanded ) may without warrant stop , search , interrogate , and arrest any person , or do any one or more of those things in respect of any person , whom he suspects of having committed or being about to commit or being or having been concerned in the commission of an offence under any section or sub - section of this LAW , or an offence which is for the time being a scheduled offence for the purposes of Part V of this LAW or whom he suspects of carrying a document relating to the commission or intended commission of any such offence as aforesaid .

( CARDINAL ) Any member of PERSON ( if he is not in uniform on production of his identity card if demanded ) may , for the purpose of the exercise of any of the powers conferred by the next preceding sub - section of this section , stop and search ( if necessary by force ) any vehicle or any ship , boat , or other vessel which he suspects to contain a person whom he is empowered by the said sub - section to arrest without warrant .

( CARDINAL ) Whenever a person is arrested under this section , he may be removed to and detained in custody in a NORP FAC station , a prison , or some other convenient place for a period of QUANTITY from the time of his arrest and may , if an officer of ORG not below the rank of Chief Superintendent so directs , be so detained for a further period of TIME .

( CARDINAL ) A person detained under the next preceding sub - section of this section may , at any time during such detention , be charged before ORG or a ORG with an offence , or be released by direction of an officer of ORG , and shall , if not so charged or released , be released at the expiration of the detention authorised by the said sub - section .

( CARDINAL ) A member of PERSON may do all or any of the following things in respect of a person detained under this section , that is to say :

( a ) demand of such person his name and address ;

( b ) search such person or cause him to be searched ;

( c ) photograph such person or cause him to be photographed ;

( d ) take , or cause to be taken , the fingerprints of such person .

( CARDINAL ) Every person who shall obstruct or impede the exercise in respect of him by a member of ORG of any of the powers conferred by the next preceding sub - section of this section or shall fail or refuse to give his name and address or shall give , in response to any such demand , a name or an address which is false or misleading shall be guilty of an offence under this section and shall be liable on summary conviction thereof to imprisonment for a term not exceeding DATE . "

Part V of LAW is concerned with the establishment of " Special Criminal Courts " to try persons charged with offences under LAW .

Lastly , Part VI of LAW contained provisions authorising any

Minister of ORG - once the Government had brought that Part of the LAW into force - to order , in certain circumstances , the arrest and detention of any person whom he was satisfied was engaged in activities declared unlawful by the LAW .

On DATE , i.e. DATE after the entry into force of the Offences Against the State Act , the ORG made an order under LAW of the LAW that the ORG , declared an " unlawful organisation " , be dissolved .

CARDINAL persons were subsequently arrested and detained under Part VI of the LAW . CARDINAL of those persons brought an action in ORG of GPE , challenging the validity of his detention . ORG declared the detention illegal and ordered the release of the person concerned by writ of habeas corpus .

The Government had all the persons detained under the same clauses released forthwith .

Taking note of ORG judgment , the ORG tabled in ORG a Bill to amend Part VI of the ORG against LAW DATE . The PERSON , after being declared constitutional by ORG , was passed by ORG on DATE , becoming the ORG against LAW , DATE ( No . DATE ) .

This Act No . DATE confers on Ministers of State special powers of detention without trial , " if and whenever and so often as the ORG makes and publishes a proclamation declaring that the powers conferred by this Part of this LAW are necessary to secure the preservation of public peace and order and that it is expedient that this Part of this LAW should come into force immediately " ( section CARDINAL , sub - section ( CARDINAL ) of the LAW ) .

Under LAW , sub - section ( CARDINAL ) of the LAW , however , a Government proclamation bringing into force the special powers of detention may be annulled at any time by a simple resolution of ORG of ORG .

Moreover , under LAW must be kept fully informed , at regular intervals , of the manner in which the powers of detention have been exercised .

The powers of detention referred to in the LAW are vested in ORG . LAW provides as follows :

" ( CARDINAL ) Whenever a Minister of ORG is of opinion that any particular person is engaged in activities which , in his opinion , are prejudicial to the preservation of public peace and order or to the security of the ORG , such Minister may by warrant under his hand and sealed with his official seal order the arrest and detention of such person under this section .

( CARDINAL ) Any member of PERSON may arrest without warrant any person in respect of whom a warrant has been issued by a Minister of ORG under the foregoing sub - section of this section .

( CARDINAL ) Every person arrested under the next preceding sub - section of this section shall be detained in a prison or other place prescribed in that behalf by regulations made under this Part of this LAW until this Part of this LAW ceases to be in force or until he is released under the subsequent provisions of this Part of this LAW , whichever first happens .

( CARDINAL ) Whenever a person is detained under this section , there shall be furnished to such person , as soon as may be after he arrives at a prison or other place of detention prescribed in that behalf by regulations made under this Part of this LAW , a copy of the warrant issued under this section in relation to such person and of the provisions of LAW CARDINAL of this Act " .

Under section CARDINAL of the Offences against GPE , DATE , the ORG is required to set up , as soon as conveniently may be after the entry into force of the powers of detention without trial , a Commission ( hereinafter referred to as " ORG " ) to which any person arrested or detained under the Act may apply , through the Government , to have his case considered . The Commission is to consist of CARDINAL persons , appointed by the Government , one to be a commissioned officer of ORG with not DATE service and each of the others to be a barrister or solicitor of not DATE standing or a judge or former judge of CARDINAL of the ordinary courts . Lastly , section CARDINAL of the LAW provides that , if the ORG reports that no reasonable grounds exist for the continued detention of the person concerned , such person shall , with all convenient speed , be released .

After DATE during which there was very little IRA activity , there was a renewed outbreak in DATE and again in DATE .

In DATE armed attacks were made on a number of GPE police barracks and at DATE a policeman was killed . In DATE a police patrol on border roads was fired on , trees were felled across roads and telephone wires cut , etc . In DATE there were more incidents of the same kind . At DATE there was an armed attack on FAC during which CARDINAL of the assailants were killed ; both of them came from the CARDINAL area . CARDINAL others , of whom CARDINAL were wounded , fled across the border and were arrested by the police of GPE . Thereupon , the Prime Minister of GPE , in a public broadcast address on CARDINALth DATE , made a pressing appeal to the public to put an end to these attacks .

DATE after this broadcast , namely , on DATE , the IRA carried out an armed raid on an explosives store in the territory of GPE , situated at GPE , for the purpose of stealing explosives . On CARDINALth DATE , armed groups entered an explosives store at PERSON , held up the watchman and stole a quantity of explosives .

On DATE , the main railway line from GPE to GPE was closed by an explosion which caused extensive damage to the railway bridge at GPE , QUANTITY on the northern side of the border .

During TIME of CARDINALth-CARDINALth DATE , CARDINAL explosions between GPE and GPE , in GPE , also damaged the same railway line .

On TIME a GPE police patrol on duty a short distance from the border was ambushed . CARDINAL policeman was shot dead and another injured . At the scene of the ambush CARDINAL sticks of gelignite were found to have been placed on the road and covered with stones , with wires leading to a detonator .

This incident occurred DATE before the DATE Orange Processions which are widespread throughout GPE on DATE . In the past , this date has been particularly critical for the maintenance of peace and public order .

The special powers of arrest and detention conferred upon the Ministers of State by DATE LAW were brought into force on DATE by a Proclamation of ORG published in ORG on DATE .

On DATE , the ORG set up ORG provided for in CARDINAL of that LAW and appointed as members of that Commission an officer of ORG , a judge and a district ORG .

The Proclamation by which ORG brought into force on DATE the special powers of detention provided for in Part II of the CARDINAL Act ( No . CARDINAL ) read as follows :

" The Government , in exercise of the powers conferred on them by sub - section ( CARDINAL ) of LAW against LAW , DATE , ( No . DATE ) , hereby declare that the powers conferred by Part II of the said LAW are necessary to secure the preservation of public peace and order and that it is expedient that the said part of the said LAW should come into force immediately . "

By letter of DATE the NORP Minister for ORG informed the Secretary - ORG that Part II of the ORG against LAW , DATE ( No . CARDINAL ) had come into force on DATE .

Paragraph CARDINAL of that letter read as follows :

" ... Insofar as the bringing into operation of Part II of the Act , which confers special powers of arrest and detention , may involve any derogation from the obligations imposed by LAW , I have the honour to request you to be good enough to regard this letter as informing you accordingly , in compliance with LAW ) ( article LAW ) of the Convention . "

The letter pointed out that the detention of persons under LAW was considered necessary " to prevent the commission of offences against public peace and order and to prevent the maintaining of military or armed forces other than those authorised by LAW . "

The Secretary - General 's attention was called to section CARDINAL of the LAW which provides for the establishment of a Commission to which any detained person can appeal . ORG was set up on DATE .

Soon after the publication of the Proclamation of CARDINALth DATE bringing into force the powers of detention provided for under LAW , the Prime Minister of ORG announced that the Government would release any person held under that LAW who undertook " to respect the LAW and the laws of GPE " and " to refrain from being a member of or assisting any organisation declared unlawful under the ORG against LAW , DATE " .

ORG was first arrested with CARDINAL other men on DATE in a disused barn at GPE , County Leitrim . The police discovered in the barn a ORG machine - gun , CARDINAL army rifles , CARDINAL sporting guns , a revolver , an automatic pistol and CARDINAL magazines . Lawless admitted that he was a member of the IRA and that he had taken part in an armed raid when guns and revolvers had been stolen . He was subsequently charged on DATE with unlawful possession of firearms under LAW , DATE and under LAW of the LAW against LAW DATE .

ORG , together with the other accused , was sent forward for trial to ORG . On DATE , they were acquitted of the charge of unlawful possession of arms . The trial judge had directed the jury that the requirements for proving the accussed 's guilt had not been satisfied in that it not been conclusively shown that no competent authority had issued a firearm certificate authorising him to be in possession of the arms concerned .

At the hearing before this Court on DATE , ORG asked CARDINAL of the accused , PERSON , whether he wished to put any questions to any of the policemen present . PERSON replied as follows :

" As a soldier of ORG and as leader of these men , I do not wish to have any part in proceedings in this ORG . "

When asked by the ORG whether he pleaded guilty or not guilty to the charge , he again said :

" On behalf of my comrades and myself I wish to state that any arms and ammunition found on us were to be used against the NORP Forces of occupation to bring about the re - unification of our country and no NORP or woman of any political persuasion had anything to fear from us . We hold that it is legal to possess arms and also believe it is the duty of every NORP to bear arms in defence of his country . "

Subsequently , ORG in reply to a question by the ORG said : " PERSON spoke for me . "

Lawless was again arrested in GPE on CARDINALth DATE under LAW , on suspicion of engaging in unlawful activities . A sketch map for an attack of certain frontier posts between GPE and GPE was found on him bearing the inscription " Infiltrate , annihilate and destroy . "

On DATE his house was searched by the police who found a manuscript document on guerrilla warfare containing , inter alia , the following statements :

" The resistance movement is the armed vanguard of the NORP people fighting for the freedom of GPE . The strength of the movement consists in the popular patriotic character of the movement . The basic mission of local resistance units are the destruction of enemy installations and establishments that is PERSON halls , special huts , ORG recruiting offices , border huts , depots , etc .

Attacks against enemy aerodromes and the destruction of aircraft hangars , depots of bombs and fuel , the killing of key flying personnel and mechanics , the killing or capture of high - ranking enemy officers and high officials of the enemy 's colonial Government and traitors to our country in their pay , that is , NORP officers , police agents , touts , judges , high members of the Quisling party , etc . "

After being arrested , ORG was charged :

( a ) with possession of incriminating documents contrary to LAW ;

( b ) with membership of an unlawful organisation , the ORG , contrary to section QUANTITY of LAW .

On DATE , ORG was brought before ORG together with CARDINAL other men who were also charged with similar offences under LAW . The ORG convicted PERSON on the first charge and sentenced him to DATE imprisonment ; it acquitted him on the second charge . The ORG record showed that the second charge was dismissed " on the merits " of the case but no official report of the proceedings appears to be available . The reasons for this acquittal were not clearly established . ORG was released on DATE , after having served his sentence in GPE , GPE .

PERSON was re - arrested on CARDINALth DATE at ORG by Security Officer PERSON when about to embark on a ship for GPE . He was detained for TIME at FAC in GPE under LAW , as being a suspected member of an unlawful organisation , namely the IRA .

Detective - Inspector PERSON told the PERSON on DATE that he would be released provided that he signed an undertaking in regard to his future conduct . No written form of the undertaking proposed was put to ORG and its exact terms are in dispute .

On CARDINALth DATE , ORG , acting under LAW , sub - section CARDINAL of LAW , made an order that ORG be detained for a further period of TIME expiring at TIME on DATE .

At TIME on CARDINALth DATE , however , before ORG detention under LAW had expired , he was removed from ORG and transferred to the military prison in ORG ( known as the " Glass House " ) . He arrived there at TIME on DATE and was detained from that time under an order made on DATE by the Minister for ORG under LAW . Upon his arrival at FAC " , he was handed a copy of the above - mentioned detention order in which the Minister for ORG declared that ORG was , in his opinion , engaged in activities prejudicial to the security of the ORG and he ordered his arrest and detention under section CARDINAL of the CARDINAL Act .

From the " Glass House " , ORG was transferred on DATE to a camp known as the " Curragh Internment Camp " , which forms part of ORG and GPE in GPE , and together with CARDINAL other persons , was detained there without charge or trial until CARDINALth DATE when he was released .

On DATE G.R. Lawless was informed that he would be released provided he gave an undertaking in writing " to respect the LAW and laws of GPE " and not to " be a member of or assist any organisation which is an unlawful organisation under the ORG against LAW DATE . " ORG declined to give this undertaking .

On DATE G.R. Lawless exercised the right , conferred upon him by section CARDINAL of the CARDINAL Act , to apply to have the continuation of his detention considered by ORG set up under the same section of that LAW . He appeared before that Commission on DATE and was represented by counsel and solicitors . ORG , sitting for the first time , adopted certain rules of procedure and adjourned until DATE .

On DATE , however , ORG counsel also made an application to ORG , under LAW , for a Conditional Order of habeas corpus ad subjiciendum . The object of the application was that the ORG should order the Commandant of the detention camp to bring ORG before the ORG in order that it might examine and decide upon the validity of detention . A Conditional Order of habeas corpus would have the effect of requiring the Commandant to " show cause " to ORG why he should not comply with that Order .

The Conditional Order was granted on DATE and was served on the Commandant giving him DATE to " show cause " . It was also served upon ORG . ORG sat on DATE , and decided to adjourn the hearing sine die pending the outcome of the habeas corpus application .

ORG then applied , by a motion to ORG , to have ORG made " absolute " , notwithstanding the fact that the Commandant of FAC had in the meantime " shown cause " opposing this application . The Commandant had , in this connection , relied upon the order for the PERSON 's detention which had been made by the Minister for ORG .

ORG sat from DATE and heard full legal submissions by counsel for both parties . On DATE it gave judgment allowing the " cause shown " by the camp Commandant to justify detention . The habeas corpus application was therefore dismissed .

On DATE ORG appealed to ORG , invoking not only the LAW and laws of GPE but also ORG . On DATE ORG dismissed ORG appeal . It gave its reasoned judgment on DATE .

The main grounds of ORG judgment were as follows :

( a ) LAW , when in draft form as a PERSON , had been referred to ORG for decision as to whether it was repugnant to LAW . ORG had decided that it was not repugnant and LAW declared that no court had competence to question the constitutional validity of a law which had been approved as a PERSON by ORG .

( b ) The ORG ( i.e. the ORG ) which was the sole legislative authority had not introduced legislation to make ORG part of the municipal law of GPE . ORG could not , therefore , give effect to the LAW if it should appear to grant rights other than , or supplementary to , those provided under NORP municipal law .

( c ) The appellant 's period of detention under LAW was due to expire at TIME on DATE . At that time he was already being detained under another warrant issued by the Minister for ORG and his detention without release was quite properly continued under the second warrant .

( d ) The appellant had not established a prima facie case in regard to his allegation that he had not been told the reason for his arrest under the Minister 's warrant . An invalidity in the arrest , even if established , would not , however , have rendered his subsequent detention unlawful whatever rights it might otherwise have given the appellant under NORP law .

( e ) The ORG had already decided , when considering the DATE Act as a PERSON , that it had no power to question the opinion of a Minister who issued a warrant for detention under section CARDINAL of that Act .

( f ) The appellant in the habeas corpus proceedings before ORG had challenged the legality of the constitution of ORG . Even if it was shown that the ORG 's rulings on various procedural matters were wrong , that would not make the appellant 's detention unlawful nor would it provide a basis for an application for habeas corpus . LAW showed that the ORG was not a court and an application before it was not a form of proceedings but no more than an enquiry of an administrative character .

Meanwhile , on DATE - that is DATE after the announcement of ORG rejection of his appeal - ORG had introduced his ORG before ORG , alleging that his arrest and detention under LAW , without charge or trial , violated the LAW and he claimed :

( a ) immediate release from detention ;

( b ) payment of compensation and damages for his detention ;

and

( c ) payment of all the costs and expenses of , and incidental to the proceedings instituted by him in the NORP courts and before the ORG to secure his release .

Shortly afterwards ORG resumed its consideration of the case of ORG under section CARDINAL of the CARDINAL LAW and held hearings for that purpose on CARDINALth and CARDINALth DATE . On DATE , at the invitation of the Attorney - General , ORG in person before ORG gave a verbal undertaking that he would not " engage in any illegal activities under the ORG against ORG , DATE and DATE " , and on DATE an order was made by the Minister for ORG , under section CARDINAL of the CARDINAL Act , releasing the Applicant from detention .

The release of ORG from detention was notified to ORG by his solicitor in a letter dated DATE . The letter at the same time stated that ORG intended to continue the proceedings before the Commission with regard to ( a ) the claim for compensation and damages for his detention and ( b ) the claim for reimbursement of all costs and expenses in connection with the proceedings undertaken to obtain his release .

At the written and oral proceedings before the ORG , ORG and ORG made the following submissions :

The Commission , in its Memorial of DATE :

" DATE it please the ORG to take into consideration the findings of the Commission in its ORG on the case of PERSON and

( CARDINAL ) to decide :

( a ) whether or not the detention of the Applicant without trial from CARDINALth July to CARDINALth DATE under LAW against LAW , DATE , was in conflict with the obligations of ORG under DATE and CARDINAL ( article CARDINAL , article CARDINAL ) of the ORG ;

( b ) whether or not such detention was in conflict with the obligations of ORG under LAW ;

( CARDINAL ) if such detention was in conflict with the obligations of ORG under DATE and CARDINAL ( article CARDINAL , article CARDINAL ) of the LAW , to decide :

( a ) whether or not the ORG 's letter to the Secretary - General of DATE was a sufficient communication for the purposes of LAW , paragraph ( CARDINAL ) ( article CARDINAL ) of the Convention ;

( b ) whether or not , from DATE , there existed a public emergency threatening the life of the nation , within the meaning of LAW , paragraph ( CARDINAL ) ( article CARDINAL - CARDINAL ) of the Convention ;

( c ) if such an emergency did exist during that period , whether or not the measure of detaining persons without trial under LAW , as it was applied by the Government , was a measure strictly required by the exigencies of the situation ;

( CARDINAL ) to decide whether or not the Applicant is , in any event , precluded by LAW ) of the LAW from invoking the provisions of LAW , DATE and DATE ( article CARDINAL , article CARDINAL , article CARDINAL ) ;

( CARDINAL ) in the light of its decisions on the questions in paragraphs CARDINAL of these submissions , to adjudge and declare :

( a ) whether or not the facts disclose any breach by ORG of its obligations under the LAW ;

( b ) if so , what compensation , if any , is due to the Applicant in respect of the breach . "

The Agent of ORG , at the public hearing on DATE :

" DATE it please the ORG to decide and declare that the answers to the questions contained in paragraph CARDINAL of the ORG 's Memorial of DATE are as follows :

CARDINAL .

( a ) That the detention of the PERSON was not in conflict with the obligations of the ORG under DATE and CARDINAL ( article CARDINAL , article CARDINAL ) of the Convention .

( b ) That such detention was not in conflict with the obligations of the Government under LAW ) of the LAW .

CARDINAL .

( a ) That the ORG 's letter of DATE was a sufficient communication for the purposes of paragraph ( CARDINAL ) of LAW ( article LAW ) of the LAW or , alternatively , that in the present case , the Government are not by any of the provisions of the said paragraph ( CARDINAL ) ( article CARDINAL ) deprived from relying on paragraph ( CARDINAL ) of LAW ( article LAW ) .

( b ) That from DATE there did exist a public emergency threatening the life of the nation , within the meaning of LAW , paragraph ( CARDINAL ) ( article DATE ) , of the Convention .

( c ) That the measure of detaining persons without trial , as it was applied by the ORG , was a measure strictly required by the exigencies of the situation .

That the Applicant is in any event precluded by LAW ) of the LAW from invoking the provisions of LAW , DATE and DATE ( article CARDINAL , article CARDINAL , article CARDINAL ) of the Convention .

CARDINAL .

( a ) That the facts do not disclose any breach by the Government of their obligations under the Convention .

( b ) That , by reason of the foregoing , no question of compensation arises . "


The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . He is represented before the ORG by Mr O. Kılıç , a lawyer practising in GPE .

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

Until DATE the applicant lived in the ORG village in the GPE district of the NORP province . In DATE the applicant ’s village was forcibly evacuated by security forces on account of intense terrorist activities in the region . Subsequently , the applicant ’s house was burned down along with the other houses in the village . He is still living in ORG with his family .

On DATE the applicant filed a petition with ORG NORP Governor , requesting compensation for his losses and permission to return to his village .

On DATE ORG GPE Governor replied to the applicant ’s petition , stating that the operations in the applicant ’s village were still continuing and that he would be resettled when public order in the region was re - established . There was no explanation in the context of the reply as regards the applicant ’s claim for compensation of his loss . The applicant did not challenge this reply .

The applicant was residing in ORG . According to his statement of CARDINAL DATE , given before ORG , he had only a DATE house in GPE village .

On DATE ORG asked the District Gendarme Commander for information concerning the applicant ’s allegations concerning the destruction and eviction of the ORG village .

On DATE the NORP Commander informed ORG that according to the ORG statements the houses in ORG village were burned down by the terrorist , dressed as security forces .

On DATE ORG gave a decision of nonjurisdiction and referred the file to the office of the Governor .

On DATE the NORP Governor gave a decision of nonprosecution as the alleged offences were not attributable to the security officers .

A description of the relevant domestic law can be found in the ORG ’s decision of PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) and in its judgment of ORG and Others v. GPE ( nos . CARDINAL/CARDINAL , CARDINAL/CARDINAL and CARDINAL - CARDINAL/CARDINAL , § § DATE , ECHR CARDINAL ... ) .


ESKINAZI AND CHELOUCHE v. TURKEY [Extracts]

The first applicant , PERSON , who has NORP and NORP nationality and was born in DATE , lodged the application with the ORG on her own behalf and on behalf of her daughter , PERSON ( the second applicant ) , who has NORP , NORP and NORP nationality and was born in DATE in GPE ( GPE ) . The applicants are currently living in GPE .

They were represented before the ORG by Mr PERSON , Mr J. PERSON , Mr PERSON and PERSON , of ORG , and assisted at the hearing by Mr PERSON , of ORG , and Ms NORP PERSON , a lawyer practising in GPE .

The third - party intervener in the case , Mr PERSON , of PERSON - NORP nationality and father of the second applicant , was born in DATE and lives in GPE .

He was represented before the ORG by Mr PERSON , of FAC , assisted at the hearing by PERSON , a lawyer practising in GPE , and Mr PERSON , a lawyer practising in GPE .

The facts of the case , as submitted by those appearing before the ORG , may be summarised as follows .

On DATE PERSON married Mr Chelouche . The civil wedding took place before the NORP consular authorities in GPE . A NORP wedding ceremony also took place in the same city .

The couple apparently intended to settle permanently in GPE , although Mr Chelouche ’s professional activities often kept him in GPE and PERSON often went to GPE , either for work purposes or to visit her family .

As she never sought to acquire NORP nationality , the first applicant used to stay in GPE on DATE tourist visas issued by the NORP consulate in GPE .

On DATE the second applicant was born in GPE . The couple continued travelling between the CARDINAL countries , however . The child was always accompanied by her mother .

As time went by the couple ’s relationship deteriorated .

On DATE the applicants went to GPE for DATE . The plan was that they would stay there for DATE . PERSON put off the return date a number of times , however , and ultimately decided to remain in GPE .

On DATE the first applicant filed a divorce petition ( case no . DATE - CARDINAL ) with the single judge of the ORG in GPE ( “ the ORG ” ) .

On DATE the ORG awarded PERSON interim custody of her daughter . Up until then PERSON and Mr Chelouche had had joint custody of their daughter .

On DATE , having been informed of the situation , PERSON in turn petitioned for divorce in ORG ( ORG – “ the ORG ” ) , composed of CARDINAL religious judges ( dayanim ) . PERSON asked for the issue of custody of his daughter to be determined at the same time as that of the religious dissolution of the marriage . That request conferred full jurisdiction ipso jure on ORG to rule on the issue of custody rights .

In his pleadings PERSON expressed the fear that his daughter would emigrate from GPE , which , judging by his wife ’s conduct , would sever all his ties with his daughter .

On DATE ORG made CARDINAL orders .

In the first one it ordered PERSON to bring her daughter back to GPE within DATE , failing which her action would be deemed “ wrongful removal of the child ” within the meaning of LAW ( “ LAW ) . The first applicant was informed of the order by telephone , and subsequently by fax and mail , and was given DATE in which to reply .

Before giving its ruling , ORG found it to be established that after their marriage the couple had elected GPE as the family ’s fixed place of residence , and that PERSON , although a NORP national , had continually lived in GPE , had obtained a driving licence and work permit in that country and had opened a bank account there . Pointing out that the child was a minor , of NORP nationality and resident in GPE , ORG noted that the mother had taken the child to GPE on DATE supposedly for DATE , but had never returned .

The order in question authorised the father to confiscate the child ’s passport , once she crossed the NORP border , and to “ use all means ” to safeguard his parental rights .

In the second order ORG also imposed a prohibition on PERSON and her daughter leaving NORP territory . That measure , which was initially valid until DATE , was lifted on DATE .

On DATE ORG decided to adjourn its hearing in the divorce proceedings , which are still pending . PERSON is represented in those proceedings by CARDINAL members of ORG .

As a first step , PERSON lodged a criminal complaint in GPE against his wife for child abduction . The PERSON public prosecutor ’s office took no action , however , on the ground that the case fell to be dealt with under LAW and should be brought before the bodies having jurisdiction to deal with it .

Mr Chelouche therefore applied to ORG of his country , designated as ORG ( “ GPE ’s ORG ” ) , for assistance in securing his daughter ’s return to GPE , in accordance with the procedure laid down in DATE .

On DATE , for the purposes of those proceedings , GPE ’s ORG sent the CARDINAL aforementioned orders of ORG to its NORP counterpart , namely , ORG at ORG ( “ GPE ’s ORG ” ) .

On DATE GPE ’s ORG instructed the PERSON public prosecutor ( “ the public prosecutor ” ) to ascertain the child ’s current address , apply to ORG for an order prohibiting her from leaving NORP territory , and to summon PERSON in order to obtain a statement from her about the alleged abduction .

On DATE the ORG decided , in case no . CARDINAL , to issue the order requested by the public prosecutor , and gave instructions for the border posts to be informed accordingly .

On DATE GPE ’s ORG was sent CARDINAL further applications by the NORP authorities claiming that , under LAW , custody rights should be withdrawn from PERSON as ORG had found her liable for “ child abduction ” .

GPE ’s ORG then instructed the public prosecutor to raise a preliminary question in case no . CARDINAL pending before ORG , requesting the court not to rule on the custody of the child pending the outcome of the dispute regarding her return to GPE . On DATE the ORG followed the public prosecutor ’s advice and withdrew PERSON custody of her daughter .

On DATE friendly - settlement negotiations , conducted at the request of GPE ’s ORG and under the aegis of ORG , failed after PERSON insisted on his daughter ’s repatriation .

On DATE GPE ’s ORG sent PERSON lawyer a request from the NORP authorities regarding the arrangements proposed by PERSON for visiting his daughter in GPE .

On DATE the public prosecutor brought proceedings in ORG for the return of the child to her father ( case no . CARDINAL - CARDINAL ) .

ORG held CARDINAL hearings in the case .

At the hearing on DATE the parties submitted their preliminary observations . Counsel for PERSON argued that LAW was inapplicable in a number of respects to the case in hand and produced in support of that submission private legal opinions by NORP professors of private international law and NORP lawyers .

With a view to proving that the child was socially integrated in GPE and had ties there , PERSON also relied on numerous documents and witness statements , and asserted that the girl had gone with her to GPE with the father ’s consent and could not therefore be regarded as having been abducted .

PERSON , for his part , disputed those submissions and called CARDINAL witnesses : his uncle and mother .

At the end of the hearing the court fixed the father ’s visiting DATE . The visits were to take place at the mother ’s home in the presence of a social worker , but without the mother being present .

At the following hearing , on DATE , which was the last one , ORG first took formal note of the documents produced by GPE ’s ORG in support of Mr Chelouche ’s application . These were statements from nurseries and paediatricians in GPE . Also produced in the proceedings was an official record of the dates on which the child had gone in and out of GPE during the period DATE , drawn up by the GPE city authorities and the NORP and NORP border police .

During the proceedings Mr Chelouche , referring in particular to the information provided by ORG , claimed that his daughter had spent PERCENT of her life in GPE . He submitted that his right was established and that a ruling had to be made expeditiously , since LAW required proceedings to be disposed of within DATE .

The court then heard evidence from Mr Chelouche ’s mother and uncle and from the defendant ’s CARDINAL witnesses . According to the latter , the child and her mother had mainly spent their time in GPE , with the father ’s knowledge . The first applicant also produced a written statement to that effect by Mr PERSON , an NORP importer known to the couple .

PERSON relied further on photocopies of her passport , declaring that she had never stayed in GPE for DATE out of CARDINAL and had always had her daughter with her . She also submitted several ORG opinions questioning PERSON ’s ability to assume custody of his daughter .

In addition , PERSON challenged the participation of a public prosecutor in the proceedings and complained that the plaintiff was attempting to influence the court by referring to observations of ORG that were not based on any final judicial and binding decision awarding custody of the child to the father , that right having previously been exercised jointly by the parents in GPE .

Lastly , PERSON submitted a list of further witnesses . The public prosecutor opposed her application to call them , arguing that the case was ready for decision and that , in the light of the evidence , the court should find in favour of Mr Chelouche .

In accordance with LAW b ) , second paragraph , of LAW , ORG did not hear the second applicant on account of her young age .

At the end of the proceedings ORG decided that the child should be returned to her father in GPE , and maintained the prohibition on her leaving GPE until the judgment became final .

The court found that , whilst the parties to the dispute had joint custody of their daughter , PERSON had assured Mr Chelouche that she would go to GPE on DATE , as usual , and return on DATE , which she had not done in the end , contrary to the father ’s wishes . Having regard in particular to the official record provided by GPE ’s ORG , the court found that , during the period DATE , that is , until PERSON was removed , she had spent DATE outside GPE .

The other relevant passages from the judgment read as follows :

“ ... The ORG can not accept the argument submitted by the defendant and her representative that the child ’s habitual place of residence is not GPE . In the light of the CARDINAL - page official document issued by ORG ... setting out the dates of the child ’s entry into and exit from GPE DATE ... and the other documents ... , it is established that , from her birth onwards , the child spent most of her life in GPE . The assertion regarding the habitual place of residence is therefore inadmissible , particularly when regard is had to the fact that the defendant declared on DATE before the PERSON public prosecutor that she had lived in GPE for DATE that elapsed following the marriage . The child ’s habitual place of residence , prior to her removal , was therefore GPE , notwithstanding the contrary statements by the defendant ’s witnesses , which are not based on established facts and are contradicted by the official documents filed in the proceedings .

Nor can the ORG accept the final submission of the defendant ’s representative , based on LAW b ) of LAW , according to which the conditions for ordering the child ’s return are not satisfied on account of the state of war affecting GPE . It would appear that life in GPE pursues its normal course regarding , among other things , teaching , education , business , tourism , etc . , and that the conflict and disorder in the country are confined to certain specific regions . Moreover , the conflict , which is not new and has been going on for DATE , did not stop the parties from continuing to live in GPE . Furthermore , the existence of a grave risk , within the meaning of LAW ( b ) of LAW , that her return would expose the child to physical or psychological harm or otherwise place her in an intolerable situation has not been established . Thus , the conditions for refusing to return the child , as specified in the said LAW , have not been made out . ”

The judge of ORG concluded as follows :

“ ... After hearing the parties’ submissions , I consider it established that PERSON was taken to GPE by her mother and subsequently removed ... from her father , contrary to the latter ’s wishes , in breach of LAW ... I also consider it established that the requirements regarding the time - limit stipulated in LAW of [ that convention ] are satisfied , but that the conditions capable of justifying a refusal to return the child in the light of LAW and DATE are not . ”

On DATE , following the divorce proceedings instituted by her husband , PERSON applied to ORG ( ORG ) , using an NORP lawyer . The application , which was lodged on PERSON behalf , sought to challenge the jurisdiction of the religious courts on the ground that the mother was not an NORP national and did not reside in GPE .

However , after a thorough examination of the case another lawyer convinced the first applicant that the application “ stood no chance of success ” , and she withdrew it on DATE .

On DATE PERSON final application for reinstatement of custody of her daughter , in case no . CARDINAL , was dismissed by ORG , having regard to the order for the child ’s return in case no . CARDINAL - CARDINAL .

On DATE PERSON appealed on points of law against the decision to return the child to her father . Relying on the concept of the “ best interest of the child ” , she maintained that her daughter ’s habitual residence was in GPE . In her submission , a child could have several places of residence , under the rules of international law , and , in any event , LAW could not be applied merely by calculating DATE the child had spent in GPE .

The first applicant argued that the child could not therefore be considered to have been abducted , especially as the father had knowingly agreed to the child gradually settling in GPE ; PERSON had neither a fixed place of residence nor regular work commitments in GPE , and had himself been keen to settle elsewhere .

According to PERSON , he had in fact acted in bad faith in order to have the child ’s habitual residence established arbitrarily , deliberately referring the matter to a rabbinical court , which – despite having no jurisdiction – had ruled in the absence of the mother on the basis of religious tenets and with total disregard for the principles of equality of arms and adversarial process .

Lastly , PERSON lawyer referred to the prosecution ’s participation in the proceedings before ORG , alleging that this had considerably swayed the mind of the single judge of ORG .

On DATE ORG held a hearing at which it heard submissions from both parties’ representatives . On DATE it upheld all the provisions of the impugned judgment .

The applicant then lodged an application for rectification of a judgment .

On DATE , at the request of its NORP counterpart , GPE ’s ORG instructed the public prosecutor to take the necessary measures to prevent PERSON from leaving with the child .

On DATE PERSON application for rectification was refused and the judgment ordering the child ’s return thus became final .

On DATE Mr Chelouche brought enforcement proceedings for the return of his daughter .

Enforcement of the judgment was stayed , however , in accordance with the interim measure indicated in the case by ORG under Rule CARDINAL of the Rules of Court .

A report drawn up on DATE by the social worker responsible for overseeing the parental visits noted that PERSON had made efforts to ensure that the child ’s meetings with her father were conducted smoothly and in a warm atmosphere . A second report , filed in the proceedings on DATE , on the date when the judgment at first instance was delivered , still referred to a harmonious relationship between the child and her father .

However , the many further reports drawn up by social workers after that judgment were increasingly critical of the father .

On DATE , when visiting the child at PERSON flat , Mr ORG allegedly attacked the social worker present , insisting that he wanted to talk to his daughter alone . He allegedly also caused damage in the flat . A complaint lodged in connection with those events led to the institution of criminal proceedings , which are still pending .

It appears that relations deteriorated still further after that incident , and on DATE , at PERSON request , a second indictment was filed against Mr Chelouche .

Following a series of psychiatric examinations carried out in DATE and DATE , in the appropriate departments of CARDINAL university hospitals , the second applicant was diagnosed with post - traumatic stress disorder . She has been taking medication ever since .

For some of the provisions of this convention , see , for example , PERSON and GPE v. GPE ( no . CARDINAL , § CARDINAL , ECHR CARDINAL-V ) . The following ORG are also relevant :

“ If ORG which receives an application referred to in DATE has reason to believe that the child is in another Contracting State , it shall directly and without delay transmit the application to ORG of that ORG and inform the requesting ORG , or the applicant , as the case may be . ”

“ In ascertaining whether there has been a wrongful removal or retention within the meaning of LAW , the judicial or administrative authorities of the requested ORG may take notice directly of the law of , and of judicial or administrative decisions , formally recognised or not in the ORG of the habitual residence of the child , without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable . ”

“ The judicial or administrative authorities of a Contracting ORG may , prior to the making of an order for the return of the child , request that the applicant obtain from the authorities of the ORG of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of LAW , where such a decision or determination may be obtained in that ORG . ORG shall so far as practicable assist applicants to obtain such a decision or determination . ”

“ After receiving notice of a wrongful removal or retention of a child in the sense of LAW , the judicial or administrative authorities of ORG to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this LAW or unless an application under the LAW is not lodged within a reasonable time following receipt of the notice . ”

“ The return of the child under the provisions of LAW may be refused if this would not be permitted by the fundamental principles of the requested ORG relating to the protection of human rights and fundamental freedoms . ”

“ Any application submitted to ORG or directly to the judicial or administrative authorities of a ORG in accordance with the terms of this Convention , together with documents and any other information appended thereto or provided by ORG , shall be admissible in the courts or administrative authorities of GPE . ”

The relevant provisions of this convention , ratified by GPE and by GPE on DATE and DATE respectively , provide :

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

“ GPE Parties undertake to respect the right of the child to preserve his or her identity , including nationality , name and family relations as recognised by law without unlawful interference . ”

“ CARDINAL . DATE States Parties shall ensure that a child shall not be separated from his or her parents against their will , except when competent authorities subject to judicial review determine , in accordance with applicable law and procedures , that such separation is necessary for the best interests of the child . Such determination may be necessary in a particular case such as CARDINAL involving abuse or neglect of the child by the parents , or one where the parents are living separately and a decision must be made as to the child ’s place of residence .

NORP In any proceedings pursuant to paragraph CARDINAL of the present Article , all interested parties shall be given an opportunity to participate in the proceedings and make their views known .

DATE States Parties shall respect the right of the child who is separated from one or both parents 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 . ”

“ CARDINAL . In accordance with the obligation of GPE Parties under LAW , paragraph CARDINAL , applications by a child or his or her parents to enter or leave a ORG for the purpose of family reunification shall be dealt with by GPE Parties in a positive , humane and expeditious manner . GPE Parties shall further ensure that the submission of such a request shall entail no adverse consequences for the applicants and for the members of their family .

A child whose parents reside in different GPE shall have the right to maintain on a regular basis , save in exceptional circumstances , personal relations and direct contacts with both parents . Towards that end and in accordance with the obligation of GPE Parties under LAW , paragraph CARDINAL , GPE Parties shall respect the right of the child and his or her parents to leave any country , including their own , and to enter their own country . The right to leave any country shall be subject only to such restrictions as are prescribed by law and which are necessary to protect the national security , public order ( ordre public ) , public health or morals or the rights and freedoms of others and are consistent with the other rights recognised in the present Convention . ”

“ CARDINAL . DATE States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child , the views of the child being given due weight in accordance with the age and maturity of the child .

NORP For this purpose , the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child , either directly , or through a representative or an appropriate body , in a manner consistent with the procedural rules of national law . ”

LAW , signed by GPE on DATE and ratified by GPE on DATE , provides :

“ CARDINAL . The family is the natural and fundamental group unit of society and is entitled to protection by society and the ORG .

GPE Parties to the present LAW shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage , during marriage and at its dissolution . In the case of dissolution , provision shall be made for the necessary protection of any children . ”

GPE ’s reservation regarding that provision reads as follows :

“ With reference to LAW , and any other provision thereof to which the present reservation may be relevant , matters of personal status are governed in GPE by the religious law of the parties concerned .

To the extent that such law is inconsistent with its obligations under the LAW , GPE reserves the right to apply that law . ”

Implementation of the LAW by the GPE Parties is supervised by ORG , which is a body made up of independent experts . Under LAW , the ORG may examine communications of GPE Parties in respect of other GPE . All the GPE Parties undertake to submit reports , at regular intervals , on the measures they have adopted which give effect to the rights recognised in the LAW . They must submit an initial report within DATE of acceding to the LAW and subsequently whenever the ORG requests CARDINAL . ORG studies the reports and informs ORG concerned of its concerns and recommendations in the form of “ final observations ” . ORG meets in GPE or GPE and generally holds CARDINAL sessions per year .

Recommendation CARDINAL ( DATE ) of ORG of ORG on a NORP Charter on the Rights of the LOC states among the first general principles :

“ ( a ) Children must no longer be considered as GPE property , but must be recognised as individuals with their own rights and needs ; ”

LAW has statutory force in NORP law and forms part of the legislation . In theory , the execution in GPE of a decision of a foreign court requires a registration procedure . However , by virtue of LAW , decisions delivered by the courts of the place of “ habitual residence ” of the child concerned are applicable without any need for a registration procedure . When dealing with an application under LAW , the NORP family affairs courts are therefore empowered to rely directly on the court decision on which the application is based as conclusive evidence ( LAW ) , without having to endorse it in the legal sense of the term .

Execution of a decision to return a child to the country deemed to be its “ habitual residence ” is carried out by public prosecutors , on behalf of ORG at ORG , that is , “ the ORG ” designated to implement the procedures laid down in LAW .

In practice , in that context , the public prosecutor in charge of execution asks the requesting ORG to inform him of the date of arrival of the parent whose child has been abducted and makes the necessary arrangements for the child to be returned in the best conditions .

In accordance with LAW b ) of LAW , procedures for the return of a child and meetings in person with a child are conducted in the presence of an expert ( social worker , teacher , psychologist , etc . ) who is appointed jointly by the head of ORG and ORG and ORG .

The Law of DATE , which establishes the structure of the NORP legal system , provides – apart from the special courts – for CARDINAL major types of court : civil , religious and military . The religious courts are governed by ORG Act ( Law no . CARDINAL/CARDINAL ) . The laws applicable to NORP in the sphere of personal status are generally based on the NORP and the Halacha .

For parties of the NORP faith , the regional rabbinical courts ( ORG ) have exclusive jurisdiction in the areas of , among other things , divorce , marriage and diet of the members of their community . They also have jurisdiction in any other sphere relating to the personal status of NORP ( such as custody and contact rights in respect of children , maintenance payments , filiation , etc . ) . Moreover , in respect of those matters , the regional rabbinical courts and the civil family courts ( ORG ) DATE which are governed by FAC ( Law no . CARDINAL ) DATE are vested with concurrent jurisdiction , which , in practice , becomes exclusive for the court before which the case is first brought .

Decisions of the rabbinical courts delivered at first instance are subject to review by ORG ( PERSON ) , which is the appeal court .

Whether a case is tried by the rabbinical or the civil courts , the final court of appeal is ORG . According to the information in the ORG ’s possession , however , in respect of the rabbinical courts ORG acts as ORG , under section CARDINAL(c ) of the above - mentioned PERSON of DATE , and , accordingly , the object and scope of its power of review are more limited . In practice , it would appear that this power of review is often exercised in respect of disputes relating to the jurisdiction of the rabbinical courts and , more rarely , in cases of denial of natural rights and non - application of the mandatory provisions of civil law . It is accepted that , in cases of conflict of jurisdiction , ORG can set aside the decision of the rabbinical court and refer the case to a civil court , but that , where errors of law with regard to the Halacha are concerned , it will merely remit the case to the original rabbinical court for it alone to amend its decision .

Many NORP writers point to the inequality between the sexes in the rabbinical courts , particularly in connection with the get institution , which is often criticised by NORP society . In accordance with the Halacha , only the husband may petition for divorce from his wife , by handing her the get . There is a consensual aspect to the measure , however , since the wife is free to accept or refuse the get .

Under NORP law , the family courts and the rabbinical courts can , in the interests of the proper conduct of the proceedings , prohibit a party to divorce proceedings from leaving NORP territory . According to the information available , such ne exeat measures are ordered by the rabbinical courts at the request of the party petitioning for divorce , normally for a renewable DATE period . Where the respondent is not an NORP national , the measure is applied with particular rigour . Where the opposing party objects , the rabbinical court determines the matter following a hearing of the issue .