JOHN AND MARGARET SLOUGH & A.J. AND W. KING AND 10 OTHERS v. THE UNITED KINGDOM

The facts of the case , as submitted by the parties , may be summarised as follows . The applicants are all businesses connected with the firearms industry . A list of applicants is annexed to the present decision . They are represented before the ORG by PERSON , ORG , GPE .

In the case of application no . CARDINAL/CARDINAL , the applicants , PERSON and PERSON , a married couple , have been trading in firearms in partnership since DATE . In DATE , the applicants designed and commenced the manufacture of the “ NORP ” pistol . In DATE the applicants ceased retailing and concentrated on the manufacture of the NORP and customisation of handguns ( the process of improving and adding specialist components , thereby enhancing functions and increasing their value ) using a rifling machine which they had designed . The applicants rented CARDINAL workshop units on leases due to expire on DATE and DATE . DATE and DATE , their gross profit increased from £ MONEY to £ MONEY .

As a result of the DATE LAW legislation - LAW and the Firearms ( Amendment ) ( No . CARDINAL ) Act DATE ( “ LAW , see below ) , the applicants’ business suffered a substantial drop in the value of its assets . The specialised nature of the plant and equipment will make disposal difficult . For example , the applicants own a specialist machining centre costing £ MONEY specifically designed for the manufacture of handguns . In DATE , the applicants had been able to realise MONEY on assets previously worth £ MONEY . The applicants also ran a pistol shooting club , and owned a shooting range which was suitable only for handgun shooting .

The applicants in application no . CARDINAL/CARDINAL rely on application no . CARDINAL/CARDINAL ( PERSON and PERSON ) , and have made no submissions of fact in relation to their claims .

The consequences of LAW are that the applicants are unable to derive handgun - related income from their businesses , and that the value of the goodwill and assets of those businesses have depreciated . The applicants have received no compensation for the reduction in value of their goodwill .

By DATE , MONEY had been paid to CARDINAL dealers under the compensation schemes , of a total of MONEY which had been paid to individuals , dealers and others . The ORG estimated the total costs which would be involved in paying compensation under the schemes to be MONEY .

B. Domestic law and practice

The Firearms Act DATE has been periodically amended since it was passed , and forms the basis of the current system of the control of firearms in GPE . LAW of DATE prohibits the possession , purchase , acquisition , manufacture , sale or transfer of the firearms there specified . LAW DATE ( “ LAW ” ) added large - calibre handguns to the class of prohibited firearms in section CARDINAL of the DATE Act .

Section CARDINAL of the Act of DATE , as amended by LAW , provided :

“ ( CARDINAL ) A person commits an offence if , without the authority of ORG , he has in his possession , or purchases or acquires , or manufactures , sells or transfers -

( aba ) any firearm which has a barrel length of QUANTITY in length or is QUANTITY in length overall , other than an air weapon , a small - calibre pistol , a muzzle - loading gun or a firearm designed as signalling apparatus . ”

The Firearms ( Amendment ) ( No . CARDINAL ) Act DATE ( “ LAW ” ; together with LAW , “ the CARDINAL Amendment Acts ” ) extended the scope of the prohibition in section CARDINAL to small - calibre pistols by declaring ( in section CARDINAL ) that the words “ a small - calibre pistol ” in section CARDINAL ) of LAW as amended by LAW should cease to have effect .

LAW provides as follows , so far as material :

“ CARDINAL Surrender of prohibited small firearms and munitions

( CARDINAL ) The Secretary of ORG may make such arrangements as he thinks fit to secure the orderly surrender at designated police stations of firearms or ammunition the possession of which will become or has become unlawful by virtue of CARDINAL or CARDINAL above .

CARDINAL Payments in respect of prohibited small firearms and ammunition

( CARDINAL ) The Secretary of ORG shall , in accordance with a scheme made by him , make payments in respect of firearms and ammunition surrendered at designated police stations in accordance with the arrangements made by him under section CARDINAL above .

( CARDINAL ) A scheme under subsection ( CARDINAL ) above shall provide only for the making of payments to persons making claims for such payments in respect of firearms or ammunition -

( a ) which they had , and were entitled to have in their possession on or immediately before DATE by virtue of firearms certificates held by them or by virtue of their being registered firearms dealers ; or

( b ) which on or before that date they had contracted to acquire and were entitled to have in their possession after that date by virtue of such certificates held by them or by virtue of their being registered firearms dealers ,

and their possession of which will become , or has become , unlawful by virtue of section CARDINAL(CARDINAL ) or CARDINAL above .

CARDINAL Payments in respect of ancillary equipment

( CARDINAL ) The Secretary of ORG shall , in accordance with any scheme which may be made by him , make payments in respect of ancillary equipment of any description specified in the scheme .

( CARDINAL ) For the purposes of subsection ( CARDINAL ) above , ‘ ancillary equipment’ means equipment , other than prohibited ammunition , which-

( a ) is designed or adapted for use in connection with firearms prohibited by virtue of section CARDINAL(CARDINAL ) above ; and

( b ) has no practicable use in connection with any firearm which is not a prohibited weapon .

( CARDINAL ) A scheme under subsection ( CARDINAL ) above shall provide only for the making of payments to persons making claims for such payments in respect of ancillary equipment-

( a ) which they had in their possession on DATE ; or

( b ) which they had in their possession after DATE , having purchased it by virtue of a contract entered into before that date .

CARDINAL Parliamentary control of compensation schemes

( CARDINAL ) Before making a compensation scheme the Secretary of ORG shall lay a draft of it before ORG .

( CARDINAL ) The Secretary of ORG shall not make the scheme unless the draft has been approved by resolution of each ORG .

( CARDINAL ) This section applies to any alteration to the scheme as it applies to a compensation scheme .

( CARDINAL ) In this section ‘ compensation scheme’ means a scheme under LAW ... above . ”

The Firearms ( Amendment ) Act CARDINAL Compensation Scheme ( “ the First Scheme ” ) was laid in draft before ORG and approved by resolution of both ORG . It was made on DATE . The First Scheme provided compensation for the large - calibre handguns themselves , for prohibited expanding ammunition and for certain ancillary equipment . There were CARDINAL options for claiming compensation : Option A , a flat rate payment for individual items , Option B , a payment for an individual item at the price in the list of values annexed to the First Scheme and Option C , a payment based on the market value of an individual item at or immediately before DATE ( the date of the announcement by the Government of their response to , and legislative intention following , ORG ) .

Under Option A , a payment of £ MONEY could be claimed for each large - calibre handgun . Under Option B , a payment could be claimed which was based on average retail values on DATE , reduced by PERCENT to reflect normal depreciation in value . Under Option C , dealers were entitled to claim the “ full market value ” of the large - calibre handguns and ancillary equipment which they held in stock . The full market value was to be calculated on the basis of the cost to the dealer of the item plus PERCENT .

By section CARDINAL of LAW , the provisions of sections CARDINAL of LAW were applied to small - calibre pistols . LAW ) ( No . CARDINAL ) Act CARDINAL Compensation Scheme ( “ the Second Scheme ” ) was made in DATE , after having been laid in draft before both ORG and approved by resolution of each ORG . The Second Scheme applied in relation to small - calibre pistols held on or immediately before DATE . The date for the calculation of full market value for the purposes of Option C remained DATE . The Second Scheme made provision for compensation in respect of small - calibre pistols , on materially the same terms as provided for in the First Scheme in respect of large - calibre handguns .


Angelika Nußberger;Dean Spielmann;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger

The first applicant , PERSON , is a NORP national who was born in DATE and currently lives in GPE . The second and third applicants , PERSON and PERSON , are daughters of the first applicant and they were born in GPE in DATE and DATE , respectively . These children live with their mother in GPE and they are NORP nationals . The applicants were represented before the ORG by successive firms of solicitors and , latterly , by ORG , a law firm practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON , of ORG , GPE .

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

NORP In DATE the first applicant and her husband lived with their son ( born in DATE ) in GPE , GPE . The first applicant is a Yoruba NORP from GPE . After second level education , she attended secretarial courses , before working for DATE in a travel agency and in an international bank . She gave up working in or around DATE as her husband travelled a lot on business . Her husband is a businessman in GPE and was born in LOC . In later proceedings ( her affidavit of CARDINAL DATE , paragraph CARDINAL below ) , the first applicant underlined that they had a comfortable life in GPE : they were financially secure , she was happily married , they had a CARDINAL bedroom villa , the use of CARDINAL cars and they employed a maid . The first applicant has CARDINAL brothers living in GPE .

The applicants arrived in GPE on DATE and DATE the first applicant applied for asylum on her own behalf and on behalf of her daughters claiming that she could not protect the second and third applicants from female genital mutilation ( “ ORG ” ) if they were returned to GPE . The first applicant submitted as follows . Her first daughter , PERSON , was born on DATE . On DATE this child was subjected to ORG carried out by an elder in the first applicant ’s mother - in - law ’s house . Neither the first applicant nor her husband had agreed to this procedure but they ultimately succumbed to it in view of alleged pressure from the latter ’s family . The first applicant ’s mother also strongly disagreed with ORG . On DATE the child was rushed to hospital and died on DATE as a result of complications from the ORG procedure . The first applicant did not report this death to the police because , allegedly , the NORP police would not interfere with a family tradition . Following the births of the second and third applicants , her husband ’s family wished ORG to be carried out on them and threatened to do so , including by attempting to abduct them to that end . She and her husband were opposed to the procedure , not least because of what had happened to their first daughter . Pressure from the family - in - law became so strong that the first applicant and her husband considered that the only way to protect their daughters was for the applicants to leave GPE . The first applicant stressed that she had not left GPE to improve their economic circumstances as she and her husband enjoyed good lives there . They left the country using an agent and on false passports . The first applicant ’s husband and their son remained in GPE . The applicants travelled via GPE to GPE .

Documents later supplied by GPE ( “ GPE ” ) immigration authorities to the NORP Minister for Justice , LAW ( “ the Minister ” ) showed that the first applicant , her husband as well as the second and third applicants ( not the son ) had been granted various visas to visit the GPE but that those visas had been revoked following the applicants’ claim for asylum in GPE . The applicants did not travel to the GPE , the first applicant maintaining in the asylum application in GPE that she could not protect her daughters from her family - in - law even in the GPE .

The applicants were legally represented throughout the domestic proceedings outlined below , apart from certain short periods during the appeal to ORG in the “ subsidiary protection ” proceedings , when the applicants changed solicitors .

By ORG dated DATE an officer of the ORG opined that the applicants had submitted neither credible evidence of a well - founded fear of persecution in GPE nor sufficient evidence that they would encounter persecution should they return or that state protection would be withheld ( section CARDINAL of LAW DATE , as amended , “ the DATE LAW ) . Considering the country of origin information from various international and ORG reports to be “ contrasting ” , an assessment of the first applicant ’s credibility was necessary and was done on “ the balance of probabilities ” . The ORG found that her fears were not credible given , inter alia , the passing of the federal PERSON banning PERSON through the lower house of the NORP national assembly , the banning of ORG in CARDINAL of LOC including GPE from where the first applicant ’s husband originated , that ORG was declining in large urban areas ( including therefore GPE ) , that the first applicant had reported neither her first daughter ’s death nor any threats from her family - in - law to the police whereas research showed that the police were alive to their duties and responsibilities and , given that she was in a privileged position , socially , enabling her to afford protection to her children . Finally , the report concluded that internal flight was a material possibility in GPE . On DATE the applicants were notified of the ORG recommendation to refuse refugee status .

The applicants appealed to the RAT . The ORG allowed them time to furnish additional documents ( “ the applicants’ RAT documents ” ) which the applicants had sought to submit . These included :

( a ) a “ Medical Certificate of Cause of Death ” dated DATE signed by PERSON of ORG . He was ORG who , according to the applicants , had delivered PERSON and who had previously refused the mother - in - law ’s request to carry out ORG on PERSON and who had treated her upon admission to hospital on DATE . The Certificate recorded the primary cause of PERSON ’s death as being “ cardio - pulmonary collapse ” and the secondary cause as “ profuse bleeding ” ;

( b ) a Doctor ’s Report , also signed by PERSON and dated DATE , which recorded PERSON ’s normal birth , urgent admission to hospital with a “ history of weakness and pallor which possibly resulted from profuse bleeding after patient had undergone the traditional female circumcision ” and death from “ circulatory collapse ” ;

( c ) a Death Certificate of ORG ( “ ORG ” ) dated DATE ; and

( d ) a Certificate for Burial stamped by ORG .

Following an oral hearing before the RAT the ORG appeal was rejected by decision of DATE . The ORG was satisfied that they had not demonstrated to a reasonable degree of likelihood a well - founded fear of persecution . There was no concrete foundation for the concern which had induced the applicants to seek refugee status . The first applicant had failed to seek the assistance of PERSON , her parents ( her father was a civil servant opposed to ORG ) or of any family member including her siblings . Despite the experience with the first child , the real question was whether there was a prospect of serious harm upon return for which the receiving ORG could be accountable . The ORG considered similar country of origin information as before the ORG and found that ORG protection and/or ORG supported protection would have been available to the applicants in GPE . It also found that the first applicant ’s credibility was undermined by a partial account of how she had travelled to and arrived in GPE , by a lack of a reasonable explanation as to why she had not claimed asylum immediately on arrival and by her failure to furnish formal identity documents or “ reliable documentation in support of her claim ” .

The applicants did not seek leave to apply for judicial review of the ORG or RAT decisions .

In DATE the first applicant ’s husband was stopped by the NORP police travelling from GPE to GPE without an entry visa for GPE . He had documentation in his name showing an address in the GPE ( bank cards , a store card , a library card and a gas payment card ) . He was removed to the GPE and , from there , to GPE on DATE . He returned DATE to the GPE on a visitor ’s visa .

On DATE , relying on the RAT decision , the Minister refused the applicants a declaration of refugee status . On DATE he notified them of his proposal to make deportation orders and of their entitlement to apply , within DATE , for leave to remain within the ORG ( section CARDINAL(CARDINAL)(a ) of LAW , “ the DATE LAW ) . The applicants so applied . ORG reviewed their submissions and , thereafter , recommended that the Minister sign the deportation orders . That Unit considered that their deportation would not breach the prohibition of refoulement . The ORG relied on country of origin information including a ORG on a Joint NORP - Danish Fact - finding ORG DATE which Report recorded the view of BAOBAB ( a NORP Women ’s rights’ non - governmental organisation – “ NGO ” ) that ORG was not a genuine ground for seeking asylum given ORG and non - State protection for women and the re - location option . The ORG also considered that no issue arose under section CARDINAL of ORG ( ORG Convention Against Torture ) Act CARDINAL ( “ the LAW ” ) or in respect of the humanitarian factors listed in section CARDINAL(CARDINAL ) of the CARDINAL Act or under section CARDINAL(CARDINAL ) of ORG DATE ( “ DATE LAW ) . The Minister signed the deportation orders on DATE . The applicants were served with those orders and with ORG reasons and were directed to attend the police immigration bureau on DATE to facilitate their deportation .

The applicants made further submissions about , inter alia , ORG in GPE and they queried the credentials of BAOBAB . Having analysed those submissions , ORG recommended confirmation of the deportation orders . The Minister accepted that recommendation . On DATE the law firm representing the applicants received the deportation orders and requested further time to consider the position . The applicants did not report to the police immigration bureau . On DATE the first applicant absconded from her accommodation to avoid arrest and the second and third applicants were taken into care . On DATE the first applicant was arrested by the police and placed in prison to facilitate deportation .

By e - mail dated DATE to the applicants , ORG denied the stance which had been attributed to them and relied upon by ORG ( paragraph CARDINAL above ) .

On DATE the applicants applied for an extension of time and for leave to apply for judicial review . On DATE the Minister gave an undertaking not to expel the applicants pending that application and the applicant was released from detention . On DATE ORG granted the extension of time and leave because the applicants had established “ substantial grounds ” for challenging the deportation orders .

The High Court hearing on the substantive application took place on DATE . The applicants argued that the Minister should have identified the principal reasons why he had concluded that none of the applicants was at risk of torture on return and , further , that ORG should take into account , in determining the risk alleged , CARDINAL new affidavits including CARDINAL of PERSON dated DATE , which confirmed in detail the matters covered by the same doctor ’s documents of DATE .

Judgment was delivered on DATE . As to the applicants’ first argument , ORG found that , while section CARDINAL of LAW required the Minister to consider representations made , including satisfying himself on the refoulement issue , there was no obligation to give reasons for his decision in that respect since the Minister was not carrying out an inquisitorial process ( already completed by the ORG and the RAT ) but rather exercising ORG discretion . As to the request for a re - assessment of risk by the High Court based on the new affidavit evidence , ORG held that the breadth of its review of an exercise of a ORG discretion ( as opposed to its review of decisions of the ORG and RAT ) was more limited as was , accordingly , any re - assessment of risk . Applying this level of review , ORG noted that a deportation order could be challenged in CARDINAL special circumstances : if the Minister had not considered whether section CARDINAL of LAW applied ( principle of refoulement ) ; if the Minister could not reasonably have come to the view which he did ; if an applicant had not been afforded a statutory entitlement to make representations on “ humanitarian grounds ” ; and if the Minister had failed to consider such representations within the terms of the statute or the factors set out in section CARDINAL(CARDINAL ) of LAW . However , none of those circumstances applied in the present case . Leave to appeal to ORG was refused .

On DATE the applicants applied to the Minister to exercise his discretion to allow them to apply for “ subsidiary protection ” under ORG Regulations DATE ( “ the CARDINAL Regulations ” ) . The applicants’ grounds were substantially the same as their judicial review application . By letter of DATE the applicants were notified of the rejection of their application . Since the deportation orders were issued before LAW came into effect ( DATE ) , the applicants were not automatically entitled to apply for subsidiary protection . While the Minister had a discretion to consider their application if they had “ identified new facts or circumstances ” demonstrating a change of position from the date of the deportation orders ( ORG v. Minister for ORG , LAW ( [ DATE ] IEHC CARDINAL ) , they had not demonstrated grounds enabling him to exercise that discretion . Attached to the ORG letter was an analysis of the applicants’ submissions by ORG : new documents submitted concerning the birth and death of PERSON were not a material change since the Minister had not challenged the cause of her death .

In DATE the applicants were granted leave to apply for judicial review of the Minister ’s refusal of subsidiary protection .

By judgment dated DATE ORG refused to grant an interlocutory injunction stopping the applicants’ deportation finding , inter alia , that there was no “ fair question ” to be tried : the Minister reasonably found that there were no new facts and circumstances since the applicants had raised , on subsidiary protection , the very same fear of ORG and the very same set of circumstances that had been previously raised , examined and rejected .

Further to the ORG request , on DATE the President of ORG of this Court applied Rule CARDINAL , which application was later extended by the ORG until further notice .

On DATE the substantive judicial review application came on for hearing before the same ORG judge who had heard the injunction application . That judge acceded to the ORG request to recuse himself and a different High Court judge then heard and rejected the substantive judicial review application by judgment of DATE . The application for subsidiary protection was found not to disclose a significant change to the material circumstances pertaining on the date of the deportation orders , so that there was nothing irrational about the Minister ’s decision that there were no grounds for him to exercise his discretion under LAW . The applicants appealed to ORG .

Meanwhile , towards DATE , and given substantial domestic publicity surrounding the applicants’ case , the Minister re - opened previous investigations in GPE into the ORG claims about the birth and death of PERSON , the results of which were received after the delivery of the High Court judgment of DATE . On DATE the Minister filed CARDINAL affidavits with ORG which testified to the fact that the applicants’ RAT documents ( paragraph CARDINAL above ) , as well as PERSON affidavit of DATE ( paragraph QUANTITY above ) , concerning he birth and death of PERSON were forgeries . Disputing the ORG claims about a child known as GPE , the Minister requested the dismissal of the appeal as an abuse of process . Those affidavits were from :

( a ) an official of ORG in GPE who described his visit to an ORG ( “ ORG ” ) registration office , an official of which had produced the register , had confirmed that the registration number on the alleged NPC Death Certificate of DATE did not exist and had certified that that ORG was not authentic . ORG official also met PERSON who attested to the matters included in his affidavit noted below ;

( b ) a Detective Inspector of the NORP police who described how he had met PERSON and requested him to give his evidence by way of a sworn affidavit , which he did as noted immediately below ;

( c ) Dr Unokanjo ( dated DATE ) . He testified to the fact that he was ORG in GPE ; that he had not signed any documents concerning PERSON ( neither a ORG dated DATE nor an affidavit of DATE ) ; that no other PERSON worked or had ever worked at the hospital ; that he recognised the first applicant from photographs shown to him ; that the hospital records ( also exhibited ) indicated that he had treated the first applicant when she delivered her first child in DATE ( those records of DATE note “ CARDINAL ” after the title “ FAC ” and the title “ Dead Children ” is left blank ) ; and that he had not delivered or subsequently treated a child called PERSON . He further testified to the fact that the first applicant had telephoned him DATE previously requesting him to issue a death certificate in respect of a deceased child of hers to enable her to be given asylum in GPE and that he had refused so to do since she had neither had any baby before DATE nor had she lost CARDINAL ; and

( d ) an official of ORG who outlined the history of the applicants’ immigration applications and claims .

The first applicant responded to the Government ’s affidavits of DATE by her affidavit dated DATE . She maintained her position as regards PERSON ’s birth and death . She admitted that the documents purportedly signed by PERSON were forgeries but she claimed that her husband who obtained them had not told her . It had never been her wish to abuse the NORP legal process .

In the same affidavit , the first applicant furnished a second set of documents purporting to certify PERSON ’s birth and death following ORG , which had been recently obtained by her brother and by NORP solicitors . She also claimed to be in fear for her own safety on return given the attention her case in GPE had received and the critical comments reported on NORP television and radio about her by the NORP Ambassador to GPE and the NORP Attorney General : if she was harmed , she could not protect her children in GPE .

NORP In DATE the Minister engaged CARDINAL law firms in GPE to verify the authenticity of this second set of documents of the applicants . Both firms reported that CARDINAL of those documents were not authentic :

( a ) The affidavit of the first applicant ’s brother dated DATE was considered not authentic because the name of the Commissioner for Oaths appearing on it had been confirmed to be a fabrication by ORG of ORG ; and

( b ) A “ Medical Certificate of Cause of Death ” of PERSON purportedly completed by a PERSON as well as a letter entitled “ Verification of Death Certificate ” both purportedly of ORG were considered not authentic because the Chief Medical Director of the same hospital confirmed that PERSON was not on the staff and that neither document was from the hospital .

CARDINAL firm also found that certain documents could not be relied upon and the other firm qualified its authentication of those documents as they were not given sight of the relevant Death Register . While another document of the second set of documents ( an ORG document ) was certified as authentic by the CARDINAL firms retained by the Minister , they both pointed out that the information contained in that document was based on other documents which had not been certified as authentic . In DATE this material was filed in ORG by the Minister .

On DATE the first applicant responded with a brief affidavit . She had requested a firm of solicitors in GPE and her brother to obtain the second set of documents attesting to the birth and death of PERSON . Those documents were obtained by her in “ good faith ” and “ in the belief that they were genuine ” . She underlined that , in seeking to obtain documentation through legitimate channels in GPE , one could unknowingly fall victim to touts issuing forged documents . If any of the documents filed were forged , the applicants apologised for that .

Following a hearing on the preliminary issue of whether the Minister had jurisdiction to entertain an application for subsidiary protection from persons in respect of whom deportation orders had been made before the CARDINAL Regulations came into force , on DATE ORG ( by a majority ) found that the Minister had no discretion to do so . Consequently , the substantive application did not proceed and thus no factual findings were made as regards the Minister ’s allegations of forgery .

NORP By letter dated DATE the PERSON wrote to ORG expressing grave concern . Whilst not wishing to prejudge the applicants’ case , the PERSON drew the ORG ’s attention to a number of international instruments and requested them to outline the initial steps taken to guarantee the applicants’ right under those instruments and to clarify a number of matters . On DATE the ORG replied detailing the various procedures and protections available to the applicants and the history of the ORG proceedings as well as noting the present application before this ORG . In her Report of DATE , the Special Rapporteur on Violence Against Women responded to ORG by expressing her thanks for their reply . Nothing further issued from the ORG .

Section CARDINAL of the DATE Act provides that a “ refugee ” includes a person who , owing to a well founded fear of being persecuted , is outside the country of his or her nationality and is unable or , owing to such fear , is unwilling to avail himself or herself of the protection of that country . Section CARDINAL contains the prohibition of refoulement :

“ ( CARDINAL ) A person shall not be expelled from the ORG or returned in any manner whatsoever to the frontiers of territories where , in the opinion of the Minister , the life or freedom of that person would be threatened on account of his or her race , religion , nationality , membership of a particular social group or political opinion . ”

The reasons prohibiting the Minister from making a deportation order under LAW are virtually identical to the qualification for refugee status under LAW ( PERSON v. the Minister for Justice , ORG and Another , unreported , ORG , PERSON , DATE ) .

Persons seeking asylum may apply to the Minister for a declaration recognising their status as refugees . The matter is referred , for investigation , to the ORG , who may interview the candidates and prepare a report on those interviews and on the investigations carried out . The ORG delivers a recommendation which may be appealed by an unsuccessful applicant to the RAT . The RAT shall affirm the ORG ’s recommendation unless it is satisfied , having considered relevant matters , that the applicant is a refugee . Applicants are notified of the RAT ’s decision . The Minister is then notified of the RAT ’s decision . If the RAT ’s decision upholds a ORG ’s recommendation to refuse refugee status , the Minister may refuse to give the applicant a declaration of refugee status . A person can challenge the above series of decisions , including the Minister ’s decision , through a request for leave to apply for judicial review , the scope of , and procedure for , which is set down in section CARDINAL of LAW , DATE .

Section CARDINAL of the DATE Act confers on the Minister the power to make a deportation order but only once he has considered and rejected the “ humanitarian ” factors listed in LAW and satisfied himself that the deportation would not breach the prohibition of refoulement ( contained in LAW ) . In Baby O v. the Minister for ORG , LAW ( [ DATE ] CARDINAL I.R. CARDINAL ) ORG found , per PERSON , that section CARDINAL of the CARDINAL Act simply required the Minister to satisfy himself as to the refoulement issue before making a deportation order and that there was no obligation on the Minister to set out detailed reasons for so satisfying himself .

FGM comprises all procedures that involve partial or total removal of the external female genitalia or other injury to the female genital organs for non - medical reasons . ORG ( “ WHO ” ) noted the following key facts about ORG in its Fact Sheet No . CARDINAL ( DATE ) : CARDINAL girls and women worldwide live with the consequences of ORG . It is mostly carried out on young girls some time between infancy and DATE and in LOC QUANTITY girls from DATE and above have undergone ORG .

There are different forms of ORG ( see Eliminating Female Genital Mutilation : An Interagency Statement DATE of various international organisations including the ORG , the ORG High Commissioner for Refugees ( “ ORG ” ) , ORG ( “ ORG ” ) and ORG ( “ UNIFEM ” ) ) . These include Clitoridectomy , Excision and Infibulation .

The same ORG statement described ORG as a violation of , inter alia , the right to freedom from torture , inhuman and degrading treatment so that protection from ORG was provided for by various international treaties ( Convention on the Rights of LAW ) , by regional treaties ( LAW to LAW , “ LAW ” ) as well as by consensus documents of several international organisations . ORG on Torture and other Cruel , Inhuman or Degrading Treatment or Punishment considers that ORG amounts to torture even if it is legal and/or medicalised ( Report to ORG , DATE . See also joint Global strategy to stop health - care providers from performing female genital mutilation DATE of , inter alia , the WHO , ORG , ORG and ORG ) .

Nigeria is a federal republic of CARDINAL states with a population of CARDINAL . LANGUAGE is one of its official languages .

In DATE GPE ratified LAW , LAW to legislate to prohibit ORG . LAW prohibits “ torture or inhuman or degrading treatment ” . A PERSON banning PERSON was introduced at federal level in GPE and it was withdrawn when ORG stepped down in DATE . Since this PERSON has not been re - introduced , there is currently no general federal law against the practice of ORG in GPE . However , CARDINAL of GPE in GPE have adopted laws specifically prohibiting ORG , including GPE ( CARDINAL of which is LOC ) and almost the whole of the south - west . The federal LAW DATE provides that causing ORG is a punishable offence and that federal LAW has been enacted in CARDINAL of GPE .

Having recommended to GPE to adopt federal legislation prohibiting ORG as well as measures to support girls who refused to undergo ORG , on DATE ORG commented as follows on the report submitted by GPE under LAW of the Convention on the Rights of the Child :

“ While noting the multidisciplinary approach adopted by ORG to raise awareness and promote attitudinal change with respect to ... ( ORG ) , and that cutting tattoos or marks and female genital mutilation are made punishable offences in LAW , the ORG is concerned about the high percentage of women who have undergone female genital mutilation . The ORG regrets the lack of up - to - date information on measures taken by ORG to prevent and eliminate harmful traditional practices , including progress in the implementation of its earlier recommendations ... .

ORG urges ORG , as a matter of priority , to : ...

( d ) Eliminate ORG and other harmful traditional practices , including by enacting legislation to prohibit ORG and to conduct awareness raising programmes for , and involving , parents , women and girls , heads of families , religious leaders and traditional dignitaries . ”

A report , signed jointly by the ORG and ORG , dated DATE and entitled Elimination of Female Genital Circumcision in GPE noted that the practice of ORG was widespread in GPE , covered practically every ORG and was still deeply entrenched in NORP society . However , since the CARDINALth ORG to resolve to eliminate ORG in DATE which GPE joined , various steps had been taken by ORG : the establishment of multi - sectoral ORG on Harmful Traditional Practices ( HTPs ) , the conduct of various studies and national surveys on HTPs , the launching of a regional ORG , the formulation of a national policy and plan of action approved by ORG for the elimination of ORG .

The Interagency Statement of DATE ( described at paragraphs CARDINAL above ) estimated the prevalence of ORG in GPE amongst women aged CARDINAL at PERCENT , whereas the daughters of such women had undergone ORG at the lower rate of PERCENT .

The ORG website ( accessed in DATE ) indicated a national average of ORG at PERCENT as of DATE . It also noted a number of trends across LOC including the medicalisation of the ORG procedure and the lowering of the average age for ORG ( possibly to escape anti - FGM legislation ) in certain countries ( not mentioning GPE ) . Data from CARDINAL surveys indicated , as regards most NORP countries including GPE , that women of DATE were less likely to have been submitted to ORG than are women in older age groups , the latter trend indicating greater support for the discontinuation of ORG amongst younger women .

The Nigerian Demographic and Health Survey DATE ( “ NDHS CARDINAL ” ) of the ORG and a GPE research company of DATE noted that PERCENT of women in GPE had been subjected to ORG .

The prevalence in GPE varied considerably : PERCENT ( LOC ) ; PERCENT ( LOC ) , CARDINAL ( GPE ) , PERCENT ( LOC ) , PERCENT ( LOC ) and PERCENT ( GPE ) . Moreover , differentials in the prevalence of ORG by age indicated “ that the practice has become less common over time ” : women aged DATE were nearly twice as likely as women aged DATE to have been circumcised .

While the average prevalence of ORG reported in DATE was reported as PERCENT ( as against PERCENT in DATE ) , it was unlikely that this was indicative of an increase in ORG nationally given the overall decreasing prevalence among younger age groups . Much of that increase was explained by a sharp increase in CARDINAL ORG of the north - west zone in which zone certain practices had been included in the definition of ORG in DATE that had not been previously included .

The ORG report on ORG in GPE of DATE ( dated DATE ) stated as follows :

“ The DATE NDHS reported that PERCENT of females in the country had been subjected to ORG . While practiced in all parts of the country , ORG was most prevalent in the southern region among the NORP and NORP . Infibulation , the most severe form of ORG , was infrequently practiced in northern states but common in the south . The age at which women and girls were subjected to the practice varied from DATE of life until after a woman delivered her first child ; however , most women were subjected to ORG before their first birthday .

The law criminalizes the removal of any part of a sexual organ from a woman or girl , except for medical reasons approved by a doctor . According to the provisions of the law , an offender is any female who offers herself for ORG ; any person who coerces , entices , or induces any female to undergo ORG ; or any person who , for other than for medical reasons , performs an operation removing part of a woman or girl ’s sexual organs . The law provides for a fine of MONEY ( MONEY ) , DATE imprisonment , or both for a first offense and doubled penalties for a second conviction .

The federal government publicly opposed ORG but took no legal action to curb the practice . Because of the considerable impediments that anti - FGM groups faced at the federal level , most refocused their energies on combating the practice at the state and local levels . CARDINAL states banned ORG . However , once a state legislature criminalized ORG , NGOs found that they had to convince the local government authorities that state laws were applicable in their districts . ORG , women ’s groups , and many NGOs sponsored public awareness projects to educate communities about the health hazards of ORG ; however , underfunding and logistical obstacles limited their contact with health care workers . ”

The UK Country of Origin Information Report on GPE of DATE cites directly from the above - cited ORG , as regards ORG and women . As regards PERSON and children , the GPE report cites from the report of ORG submitted to the CARDINALth session of ORG on the Rights of the Child in DATE as follows :

“ The age of [ ORG ] varies from DATE or just about the first pregnancy . Any state interference into the practice of ORG is considered as a violation of the rights to privacy . Yet , many girls face several health risks through this , including of HIV infection due to unhygienic methods that accompany the practice .

“ ORG [ ORG by GPE to the [ ORG ] mentions that ‘ the Bill on Female Genital Mutilation has gone through the lower house , and will go through the upper house before the president can sign it into NORP But to date , the law has not been adopted ... however , some states passed laws prohibiting female circumcision and genital mutilation . In the report of the NORP government to the [ ORG ] , the ongoing existence of ORG and other harmful traditional practices is recognised and efforts to combat it are reportedly undertaken . Due to public enlightenment and mobilization efforts by groups of civil society , as well as increased enrolment of girls in schools , reported cases of ORG are diminishing . Nonetheless , the practice remains widespread in GPE and the proportion of the female population having undergone genital mutilation [ is ] high . ”

This joint team interviewed in GPE various representatives of ORG organisations ( including ORG , ORG and ORG ) , of the ORG and of ORG ( “ ICRC ” ) , of certain NGOs as well as of ORG and ORG . Their report ( of DATE ) discussed internal relocation possibilities in GPE for women who wished to escape ORG .

The report described the NGOs assisting women seeking such protection including ORG ( “ ORG ” ) , ORG ( “ WRAPA ” , which had CARDINAL members covering all of GPE ’s CARDINAL states and which was supported by ORG ) and ORG on Violence Against Women ( “ LACVAW ” ) . The views of relevant ORG bodies and of those NGOs on internal relocation were set out :

“ ORG of a ORG organisation emphasized that it is mainly a matter of empowerment and enlightenment for a girl or a woman to relocate and seek protection . The protection structures are in place and functioning in GPE . However , these structures need to be strengthened , as the capacity is still weak .

CARDINAL ORG stated that internal relocation for adult victims of domestic violence , ORG and forced marriage is an option for women in GPE [ and ] added that internal relocation is a common phenomenon in GPE for women who are victims of domestic violence . ...

CARDINAL.CARDINAL ORG explained that internal relocation is possible for any adult woman irrespective of whether the case is about ORG , domestic violence or forced marriage . It is possible for adult women to relocate and look for jobs to sustain themselves , however , ORG and forced marriage cases very often involve underage girls . ...

PERSON explained that ... women who wish to avoid their daughters undergoing ORG may not be aware of their rights and the possibilities to be assisted and protected . WRAPA emphasised that raising awareness is still an important issue in order to make women aware of the options they have . ...

CARDINAL ORG ( ORG ) found that in theory , it is not difficult for a woman to relocate within GPE and in this way find physical safety . As regards crime rates , GPE is a relatively safe country . ...

CARDINAL ORG stated that from a legal point of view , internal relocation is an option for any woman in GPE because there is full freedom of movement in the country . However , ... a woman will need relatives in her new location who are ready to accommodate her . ...

CARDINAL It was emphasized by ORG that a woman can obtain physical protection by relocating to another area in GPE . Women who are economically independent , in particular , would stand a much better chance of sustaining themselves than women who are not . .... ”

As regards shelter facilities , the ORG representatives and many NGOs outlined how women , while fleeing ORG preferring to seek shelter amongst friends / family , could successfully seek protection when necessary in NGO and in ORG run shelters .

As to support by ORG bodies , ORG officials considered the protection of women to be weak but progressing , noting that the federal government was making efforts to protect women fleeing ORG . Not only was ORG and ORG providing shelter to female victims of violence , but the police was developing more gender awareness ( the presence of ORG as well as ORG ) and ORG facilitated the necessary physical protection of women who were victims of , inter alia , ORG . Certain NGOs ( ORG and ORG ) were positive about support by the Government for women seeking to escape from ORG . CARDINAL NGO ( BAOBAB ) was more critical : while Police ORG did cooperate somewhat with NGOs including referring women to ORG , they underlined and criticised the lack of federal law and the enforcement ORG laws .

As to the risk of being tracked down by relatives following relocation , ORG noted that the sheer size of the country and its large population meant that it would be very difficult for family members to locate a woman who has escaped ORG , although , should a husband know where his wife has fled to , there was a high risk that he would try to contact her or force her to return home .

The Report of ORG DATE ) and of the NORP - Danish ORG , DATE ( paragraphs QUANTITY above ) also confirmed widespread corruption in GPE and the consequent ease with which forged official documents ( including birth and death certificates as well as passports ) could be obtained , which reports were cited by ORG on GPE of DATE ( paragraph CARDINAL above ) .

The latter report confirmed that the process of authenticating such documents was often difficult , time - consuming and in some cases , not possible , not least given the absence of relevant central registries .


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

The applicant was born in GPE in GPE , where he lived with his parents and his younger sister and attended school . On an unspecified date the applicant 's brother died in an accident . His parents have been lawfully resident in GPE for DATE . According to the applicant 's submissions , he visited GPE CARDINAL or CARDINAL times during his holidays .

On DATE the competent authorities granted the applicant a permanent residence permit .

On DATE the GPE public prosecutor discontinued juvenile - delinquency proceedings brought against the applicant for grievous bodily harm .

In DATE the applicant completed his apprenticeship as a car mechanic . In DATE he worked for DATE in GPE .

On DATE the applicant was arrested and subsequently detained on remand .

On DATE ORG ( ORG ) convicted the applicant of CARDINAL counts of attempted aggravated trafficking in human beings ( versuchter schwerer Menschenhandel ) , several counts of battery and aggravated battery ( schwere gefährliche GPE ) , procurement ( PERSON ) , purchasing illegal drugs ( PERSON ) , CARDINAL counts of drunken driving and CARDINAL counts of insulting behaviour and sentenced him to DATE and DATE imprisonment . ORG found that DATE the applicant had forced his former partner to surrender the main part of her earnings acquired through prostitution . To that end , he had used physical violence , on CARDINAL occasion kicking the woman 's face with his shod foot . In DATE the applicant – together with CARDINAL accomplices , including his former partner – had attempted on QUANTITY occasions to force another woman into prostitution . The applicant and his male accomplice had intended to use the earnings to finance their upkeep and their drug consumption .

To that end , the applicant and his accomplices had first locked the woman in . Later on , the applicant had encouraged his former partner to beat the woman and her sister , who had aided her resistance . In the applicant 's presence and with his explicit consent , both women had been punched CARDINAL times in their face .

The applicant was also found guilty of having purchased QUANTITY of cocaine on CARDINAL occasion , together with CARDINAL accomplice , and of having insulted several police officers . In view of the fact that the applicant had been DATE when committing those offences and that there was no indication of retarded development , ORG did not apply juvenile but adult criminal law .

When assessing the applicant 's sentence , ORG treated as mitigating factors the fact that the applicant had no previous convictions and that he had confessed to the offences during the main proceedings . It emphasised , however , that the applicant had acted as the driving force in carrying out the crimes committed jointly against the second victim . ORG further noted that the applicant had acted with “ incredible brutality ” ( unglaubliche PERSON ) towards his second victim , after having already exploited his former partner . The applicant had taken MONEY from the latter without leaving her the necessary resources to cater to her own and her child 's needs , his intention being to use the money for alcohol , drugs and other purposes of his own . ORG put special emphasis on the exceptional brutality with which the applicant had exploited his former partner . Lastly , it considered the degree of disdain he had shown towards the police officers . Only the applicant 's confession had prevented ORG from imposing a prison sentence of DATE , which would have meant relinquishing the examination of the case in favour of ORG .

On DATE ORG ( Regierungspräsidium ) ordered the applicant 's expulsion to GPE . It was announced that he would be deported on his release from prison .

Although the applicant was born in GPE and possessed a valid residence permit , ORG considered that his conviction for several serious offences made it necessary to expel him under section CARDINAL(CARDINAL ) and ( CARDINAL ) and section QUANTITY ) of LAW ( Ausländergesetz – see “ Relevant domestic law ” below ) for serious reasons relating to public safety . Regard being had to the reasons given for the applicant 's criminal conviction , his expulsion was necessary in the interest of general deterrence ( ORG ) .

ORG also considered the applicant 's expulsion justified in this particular case because there was a high risk that he would continue to pose a serious threat to public safety . The seriousness of the offences committed by the applicant demonstrated his high criminal potential and his violent disposition . His criminal offences showed that he was not willing to respect the rights and dignity of his fellow human beings . These factors led to a serious danger of recidivism ( erhebliche GPE ) .

ORG further found that the applicant 's expulsion was proportionate and complied with LAW . The applicant was a single adult and could be reasonably expected to live in GPE . He had not submitted any evidence that his parents depended on his support . His parents would be in a position to maintain contact with him by way of visits and exchanging letters .

On DATE the applicant applied to ORG ( Verwaltungsgericht ) for judicial review of the expulsion order . He stated , inter alia , that his parents – especially his mother , but also , to a lesser degree , his father – were suffering from serious depression caused by the earlier loss of their other son . The applicant 's current situation had aggravated their condition , obliging them to seek medical treatment . His deportation might cause his mother to suffer a complete psychological breakdown . He was , moreover , ready to undergo social training and to come to terms with his former alcohol abuse . With respect to his prospects in GPE , the applicant alleged that he spoke only colloquial NORP and had but limited writing skills in that language .

In a judgment of DATE ORG rejected the applicant 's motion . It concurred with the reasoning set out in the expulsion order to the effect that there were sufficient indications that the applicant would continue to pose a danger to public order and safety . The alleged hardships suffered by the applicant 's parents did not justify a different assessment of the facts .

The applicant subsequently applied for leave to appeal . In a letter of DATE he submitted , inter alia , that he had been born in GPE , where he had gone to school and received vocational training . His whole family lived in GPE . He further submitted that he did not have any connection with GPE and that he had poor knowledge of the NORP language . His expulsion would lead to the destruction of his family .

On DATE the Baden - ORG ( ORG ) refused the applicant leave to appeal . It found , firstly , that the applicant 's submissions were not capable of raising serious doubts as to the correctness of ORG judgment . Furthermore , he had not established that an appeal would be justified on the ground of the legal complexity of the subject matter . It was obvious that the interference with the applicant 's right to respect for his private and family life , as guaranteed by LAW , was justified under paragraph CARDINAL of that Article , regard being had in particular to the serious danger of recidivism .

On DATE the applicant was deported from prison to GPE . The remaining third of his prison sentence was suspended in view of his deportation .

On DATE the applicant lodged a constitutional complaint . On DATE ORG , sitting as a panel of CARDINAL judges , refused to accept the applicant 's complaint for adjudication . That decision was served on the applicant on DATE .

On DATE the applicant married a NORP national of NORP origin , who lives in GPE . On DATE a child was born to the couple .

On DATE the applicant requested to have a time - limit placed on his exclusion order . On DATE ORG limited the period of validity of the applicant 's exclusion order until DATE , i. e. DATE from the date of his deportation . The limitation was subject to the condition that the applicant was to submit evidence that he had not committed any further criminal offences and that he was still married to his NORP wife , that he was to submit a hair analysis proving that he did not consume drugs and that he was to reimburse the expenses incurred in connection with his deportation .

On DATE ORG rejected the applicant 's application for judicial review aimed at further shortening the time - limit set to his exclusion order .

By DATE , the applicant was still residing in GPE .

The rights of entry and residence for foreigners were governed until DATE by LAW ) and from DATE by LAW ( Aufenthaltsgesetz ) .

By CARDINAL ) , point CARDINAL , of LAW , a foreigner is to be expelled where he or she has been sentenced to DATE imprisonment for having wilfully committed CARDINAL or more criminal offences .

If a foreigner was born in GPE and is in possession of a permanent residence permit , he or she may only be expelled if serious reasons relating to public safety and order justify the expulsion ( section TIME ) ) . Generally , this will be the case where section CARDINAL(CARDINAL ) applies ( GPE ) .

Pursuant to section CARDINAL(CARDINAL ) , an alien who has been expelled is not permitted to re - enter NORP territory . This effect can , as a rule ( in der PERSON ) , be limited in time upon application . A similar provision is contained in section CARDINAL of LAW .

According to section DATE ( CARDINAL ) no.CARDINAL of LAW and section CARDINAL ( CARDINAL ) no . CARDINAL of LAW , an alien 's residence permit expires on issue of an expulsion order against him .

Section CARDINAL of LAW , as in force from DATE until DATE , provided as follows :

“ ( CARDINAL ) An alien who applies for naturalisation between the age of DATE and CARDINAL shall be naturalised provided that he or she

loses or relinquishes his or her former nationality ,

has been legally residing in GPE for DATE ,

has attended a school for DATE , including DATE of attendance at a school providing general education , and

has not been convicted of a criminal offence .

( CARDINAL ) There shall be no entitlement to naturalisation if the alien does not possess a residence permit . ORG may be denied if there is a ground for expulsion . ”

Section CARDINAL of the Residency Act provides that a residence permit is to be granted for reasons of family reunion . By CARDINAL , a residence permit is to be granted to a NORP national 's spouse or minor child , or to the parent of a minor NORP national in order to exercise parental authority .


Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen

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

On DATE the Act on ORG from Criminal Prosecution and Proceedings in Respect of Criminal Offences Committed during Armed Conflicts and the War against GPE was enacted .

On DATE an investigation was opened in ORG ( ORG ) , at the request of ORG ( PERSON tužiteljstvo u PERSON ) , in respect of the applicant and a large number of other persons on charges of armed rebellion which allegedly had taken place in ORG .

The applicant submits that he was not aware of these proceedings .

On DATE the General Amnesty Act was enacted which ordered a general amnesty in respect of all criminal offences committed in connection with the war in GPE in the period DATE and DATE , save in respect of those acts which amounted to the gravest breaches of humanitarian law or to war crimes , including genocide .

At the request of ORG of DATE , on DATE an investigating judge of ORG ( istražni sudac ORG ) terminated the investigation , pursuant to ORG .

In the meantime , on DATE , the ORG police lodged a criminal complaint with the GPE State Attorney ’s ORG ( GPE državno odvjetništvo GPE ) against CARDINAL persons , including the applicant , in which it was alleged that the applicant had participated in an act of genocide . On DATE the GPE State Attorney ’s ORG asked ORG ( Županijski sud u GPE ) to open an investigation .

On DATE ORG opened such an investigation in respect of the applicant and CARDINAL other persons on charges of genocide ( LAW ) , on account of a reasonable suspicion that DATE and DATE they had participated in the occupation of the village of PERSON and in the persecution of the ethnic NORP who at the time lived there .

On DATE ORG issued an arrest warrant in respect of the suspects , including the applicant .

On DATE the GPE State Attorney ’s Office charged the applicant and a number of other individuals with genocide in ORG .

On DATE the same court ordered them to be tried in absentia .

In DATE an amendment of LAW was introduced providing that no compensation was to be granted in connection with the detention of persons against whom criminal proceedings were terminated pursuant to LAW of DATE .

The applicant was arrested on DATE and placed in pre - trial detention based on the suspicion that he had committed the war crime of genocide . He was released on DATE .

On DATE the GPE State Attorney ’s Office re - classified the offence with which the applicant was charged from genocide to the CARDINAL of armed rebellion .

On DATE ORG terminated the proceedings against the applicant , pursuant to LAW , in view of the re - classification of the offence .

On DATE the GPE State Attorney ’s ORG lodged an appeal with ORG against the above decision arguing that they had re - classified the indictment in respect of CARDINAL of the accused , but not in respect of the applicant and that therefore there had been no ground for terminating the proceedings against the latter .

On DATE ORG quashed the first - instance decision terminating the criminal proceedings against the applicant and remitted the case to ORG .

On DATE ORG again terminated the proceedings against the applicant , pursuant to LAW , in view of the re - classification of the offence . No appeal was lodged against this decision and it became final .

On DATE the applicant brought a civil action against the ORG before ORG , seeking damages for his detention DATE and DATE . He argued that the criminal proceedings in connection with which he had been detained had been instituted on charges of genocide and that ORG had re - classified the offence to CARDINAL of armed rebellion only to prevent the applicant and other persons in the same situation from obtaining damages for their detention . He referred in this respect to the fact that under LAW persons against whom criminal proceedings were terminated on the basis of that LAW had no right to compensation for their detention while all other persons who were detained in connection with criminal proceedings not ending in conviction had the right to compensation for their detention .

On DATE ORG awarded the applicant compensation finding that the applicant had been placed in detention in connection with charges of genocide and that therefore LAW was not applicable when it came to the question of compensation for detention .

On appeal this judgment was reversed by ORG on DATE . The relevant part of the decision reads :

“ The first - instance court disregarded the fact that the issue of whether detention was justified is to be assessed in respect of the final outcome of the proceedings , and not in respect of the legal basis for ordering detention , irrespective of the criminal offence with which the plaintiff had been charged at the time he was detained .

Since the criminal proceedings against the plaintiff in respect of the criminal offence of armed rebellion committed DATE and DATE were terminated on the basis of ORG , this court holds that the plaintiff is not entitled to compensation for any type of damages on account of unjustified detention ( Article CARDINAL ( a ) of LAW ) . ”

On DATE the applicant lodged a constitutional complaint against ORG judgment of DATE .

He argued that the GPE State Attorney ’s ORG had re - classified the offence in DATE to CARDINAL of armed rebellion only to prevent him from obtaining compensation in connection with his detention in DATE . He submitted that he had been detained at a time when he was accused of genocide and that therefore LAW was not applicable as regards his right to compensation in connection with his detention .

He further complained that he had been tried twice in respect of the same offence because the criminal proceedings against him had firstly been terminated in DATE and then again in DATE .

On DATE ORG dismissed the applicant ’s constitutional complaint as regards his complains concerning his right to compensation as ill - founded . As regards the complaint about being tried twice , ORG held that it could not examine such a complaint since it had no connection with the civil proceedings instituted by the applicant .

The relevant part of LAW ( Opći krivični zakon PERSON , ORG nos . CARDINAL/CARDINAL and DATE integral version – in force until DATE ) read :

“ Whoever , with the intention of destroying a national , ethnic , racial or religious group in whole or in part , orders the killing or infliction of grave bodily injuries or serious harm to the physical or mental health of the members of such a group , the compulsory displacement of a population or the placing of such a group in conditions which would lead to its extinction in whole or in part , or who orders measures which would prevent births within such a group or the compulsory displacement of children to another group , as well as whoever , with the same intention , commits any of the foregoing acts shall be sentenced to CARDINAL twenty years’ imprisonment . ”

“ ( CARDINAL ) Whoever participates in an armed rebellion which is aimed at harming the constitutionally established ORG and social order or the security of GPE shall be sentenced to CARDINAL GPE imprisonment .

( CARDINAL ) An organiser or leader of the armed rebellion shall be sentenced to DATE imprisonment . ”

The relevant part of LAW enacted on DATE and amended on DATE ( ORG nos . CARDINAL and CARDINAL ) reads :

“ Special laws and decisions adopted as acts of mercy by which perpetrators of criminal offences were pardoned or granted amnesty in respect of criminal offences committed DATE and DATE do not serve as a basis for the application of Articles CARDINAL to CARDINAL of this Act . ”

Articles CARDINAL to CARDINAL of that Act set forth the conditions and procedures in respect of the right to compensation in connection with detention and sentences ordered in the context of criminal proceedings that ended in acquittal or unjustified conviction .

The relevant part of the Act on ORG from Criminal Prosecution and Proceedings in Respect of Criminal Offences Committed during ORG of DATE ( ORG no . CARDINAL , Zakon o oprostu od krivičnog progona i postupka za krivična djela počinjena u oružanim sukobima i u ratu protiv PERSON ) reads :

“ Criminal prosecution of perpetrators of criminal offences [ committed ] during the armed conflicts , the war against GPE or in connection with these conflicts or war , committed DATE when this LAW comes into force , shall be discontinued . In respect of these offences criminal prosecution and criminal proceedings shall not be instituted . Where criminal proceedings have been instituted , a court shall terminate them of its own motion . Where a person concerned by amnesty under paragraph CARDINAL of this section has been detained , he or she shall be released . ”

“ ORG under LAW shall not be granted to perpetrators of the criminal offences in respect of which GPE is obliged to prosecute under the international law . ”

“ A state attorney may lodge an appeal within TIME from the service of a decision under LAW paragraphs CARDINAL and CARDINAL of this LAW , where she or he considers that the decision contravenes section QUANTITY . ”

The relevant part of the amendments to LAW of DATE reads :

“ In LAW paragraph CARDINAL of the Act on ORG from Criminal Prosecution and Proceedings in Respect of Criminal Offences Committed during ORG no . CARDINAL ) the words ‘ DATE when this Act comes into force’ are to be replaced by the words ‘ CARDINAL DATE . ”

The relevant part of LAW of DATE ( ORG no . CARDINAL/CARDINAL , PERSON o općem oprostu ) reads :

“ This Act gives general amnesty from criminal prosecution and proceedings to the perpetrators of the criminal offences committed during the aggression , armed rebellion or armed conflicts and in connection with the aggression , armed rebellion or armed conflicts in GPE .

ORG shall not apply to the execution of final judgments in respect of perpetrators of the criminal offences under paragraph CARDINAL of this section .

ORG from criminal prosecution and proceedings shall apply to offences committed DATE and DATE . ”

“ Criminal prosecution or criminal proceedings shall not be instituted against the perpetrators of the criminal offences under LAW .

Where criminal prosecution has already commenced it shall be discontinued and where criminal proceedings have been instituted a court shall issue a decision terminating the proceedings of its own motion .

Where a person granted amnesty under paragraph CARDINAL of this section has been detained , he or she shall be released . ”

“ ORG under LAW shall not be granted to perpetrators of the gravest breaches of humanitarian law , which have the character of war crimes , namely , the criminal offence of genocide under LAW ( ORG no . CARDINAL/CARDINAL , consolidated text , ORG . CARDINAL , DATE , CARDINAL and ORG ) ; war crimes against the civilian population under LAW ; war crimes against the wounded and sick under LAW ; war crimes against prisoners of war under LAW ; organising groups [ with the purpose of committing genocide ] and abetting genocide and war crimes under LAW ; unlawful killing and wounding of the enemy under LAW ; unlawful taking of possessions from the dead or wounded on the battleground under LAW ; use of unlawful means of combat under LAW ; offences against negotiators under LAW ; cruel treatment of the wounded , sick and prisoners of war under LAW ; unjustified delay in repatriation of the prisoners of war under LAW ; destruction of cultural and historical heritage under LAW ; inciting war of aggression under LAW ; abuse of the international symbols under LAW ; racial and other discrimination under LAW ; establishing slavery and transferring slaves under LAW ; international terrorism under LAW ; putting at risk persons under international protection under LAW ; taking hostages under LAW and the criminal offence of terrorism under the provisions of international law .

ORG shall not be granted to perpetrators of other criminal offences under LAW of GPE ( Official Gazette no . CARDINAL/CARDINAL , consolidated text , nos CARDINAL/CARDINAL , DATE , CARDINAL and ORG ) and LAW ( ORG no . CARDINAL/CARDINAL , consolidated text , nos . CARDINAL/CARDINAL , ORG and ORG ) which were not committed during the aggression , armed rebellion or armed conflicts and are not connected with the aggression , armed rebellion or armed conflicts in GPE .

A state attorney may lodge an appeal against a court decision under LAW where a court has granted amnesty in favour of perpetrators of criminal offences in respect of which this LAW gives amnesty within the legal classification of the criminal offence by a state attorney . ”


The applicant is a NORP citizen born in DATE . He is currently living in GPE , a village near GPE , GPE .

The applicant is represented in the proceedings before the ORG by ORG , a firm of solicitors based in GPE .

A.

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

The applicant has served as a retained fireman in ORG in the village of GPE for DATE . On DATE he was made ORG and Station Commander with managerial responsibility for the ORG fire station . All the fire - fighters at the ORG station work on a retained basis and all live in GPE , a community of CARDINAL inhabitants . The applicant was at the relevant time employed full - time as a bus driver in GPE . Fire service records indicate that the applicant spent , on average , TIME at work , including time spent attending fires and other incidents . According to the applicant , he spent considerably more time at the fire station than TIME recorded since as a Sub - Officer he had to attend to a host of other matters relating to the running of the station .

In a letter dated DATE addressed to ORG a male colleague made a complaint against the applicant accusing him of harassment . The applicant ’s colleague was interviewed on DATE . Certain of the allegations made against the applicant were subsequently confirmed by a leading fireman at the station who was also interviewed . A full disciplinary investigation was conducted into the allegation made against the applicant . On DATE the applicant was suspended from duty pending the outcome of the disciplinary proceedings .

Subsequently in a letter dated DATE a former female colleague of the applicant complained that the applicant and another member of the fire station had made unsavoury and personal comments of a very explicit sexual nature about her . That complaint also became part of the investigation .

The applicant denied all the accusations made against him .

During his period of suspension the applicant was prohibited from entering any fire service premises without obtaining prior permission and was requested that he should not , at any time , contact or speak to any of his service colleagues . He remained suspended on these terms until DATE , when the terms of the suspension were varied .

The applicant states that the terms imposed on his suspension placed considerable restrictions on his social and everyday life and prevented him from communicating with his friends and almost went as far as to prevent him from communicating with his family .

By way of illustration of the effects of the restriction , the applicant refers to an incident which occurred on DATE while he was present at a local club which counted among its members many of the fire - fighters from ORG . The applicant states that officers from the fire service entered the LOC , noted with whom he was associating and reported back to the fire service . A similar incident occurred shortly afterwards when he was present at the club with his son and wife together with CARDINAL of his fire service friends and their wives .

The applicant refers to a further incident on DATE when he attended the retirement party of a fire officer whom he had known for DATE and whose wife was known to his family for DATE . Other fire officers and their families were present . By letter dated DATE the fire service cautioned the applicant that any further reports to the effect that he had breached the conditions of his suspension would lead to charges being brought against him under ORG DATE .

In DATE the applicant was informed by ORG that he had to request permission to attend his son 's wedding because firemen whom his son had known from childhood , and one of whom was his Best Man , were also invited to the wedding . On this occasion a senior officer granted a relaxation of the conditions of the applicant 's suspension and permitted him to associate with friends and colleagues from ORG on DATE of the wedding .

After hearing witnesses and the applicant on CARDINAL and DATE , the disciplinary tribunal found each of the charges proven and the disciplinary action taken against him justified . He was sentenced to a reduction in rank to fire - fighter . He appealed to ORG which modified the disciplinary sanction to reduction in rank to leading fire - fighter . On DATE the applicant submitted notice of his appeal to the Secretary of ORG . The appeal had not yet been decided at the time of the ORG ’s consideration of the applicant ’s complaints .

In a letter dated DATE ORG notified the applicant that the terms of his suspension had been varied and that he was henceforth permitted to have contacts with his fellow officers but was not to discuss the circumstances of the disciplinary proceedings until the appeal to the Home Secretary had been determined . The applicant continues not to be permitted to enter fire service LOC .

B. Relevant domestic law and practice

ORG DATE ( ORG no . CARDINAL/CARDINAL ) made pursuant to section CARDINAL of FAC DATE provide for the maintenance of discipline in fire brigades and set out a code of discipline and the procedures to be followed for the investigation and the taking of disciplinary action against members of the fire service .

The terms under which a fire officer can be suspended are contained in section LAW of ORG for ORG Scheme of ORG ( “ ORG ” ) . These conditions formed part of the contract between the applicant and ORG . Under the relevant provisions of section LAW the County Fire Officer ( “ the Chief Officer ” ) may suspend a fire officer who has committed a disciplinary or criminal offence . The period of suspension continues until it is either terminated by the Chief Officer or until disciplinary proceedings have been concluded .

The NJC Terms of ORG do not deal with the imposition of terms in connection with the suspension of a fire officer .

In DATE the fire service published a Fair Treatment Policy setting out procedures to enable employees to raise matters of concern with their superior officers in the service . The ORG implements an outline grievance procedure set out in section X of the ORG terms of service . Under the Policy any grievance is to be pursued in the first instance with the employee ’s line manager . If dissatisfied , the employee may then take the matter up with the Manager , then ORG and finally with the appropriate committee of ORG .


The applicant is a citizen of GPE , born in DATE and living in GPE in GPE .

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

The applicant brought proceedings against the local authority , the Southend on ORG ( “ the ORG ” ) , in which he challenged a civil action brought by the ORG in connection with his barge . The action was compromised on DATE . Thereafter , in DATE , the ORG took possession of the barge and its contents , and sold them .

On DATE , the applicant issued a writ in which he claimed that the ORG was not entitled to sell the barge and contents , and had not properly accounted for the proceeds of sale . The writ was served on the ORG on DATE and a statement of claim was served on DATE . ORG responded with a Defence and Counterclaim , and PERSON and Better Particulars of LAW on DATE . The applicant served a Reply and Defence to Counterclaim and a Request for Further and Better Particulars of the Defence on DATE . On DATE he also supplied responses to the ORG ’s request for Particulars . Pleadings were deemed ( by the Rules of ORG ) to be closed in DATE . The applicant ’s summons for directions was issued on CARDINAL DATE and a hearing took place on DATE .

On the DATE the applicant issued a summons for specific discovery . On DATE the ORG issued a summons applying to strike out the applicant ’s claim for want of prosecution . The summonses were due to be heard together on DATE , but were adjourned due to lack of time .

In DATE the applicant took steps to have his summons restored for hearing . On DATE the applicant ’s summons was adjourned for DATE ; it was adjourned for a second time at the request of the parties from DATE to DATE .

On DATE a District Judge acceded to the ORG ’s submissions that the applicant had been guilty of inordinate and inexcusable delay , causing prejudice to the ORG , and he accordingly dismissed the applicant ’s claim .

The applicant appealed to ORG . The appeal was heard on DATE and the judge ’s order was sealed on DATE . The applicant ’s appeal was allowed and leave to appeal against the order was refused .

The ORG then applied to ORG for leave to appeal against the order . The ORG ’s application was rejected on the papers by Lord Justice PERSON on DATE , the decision being set out in an order dated DATE . The ORG therefore applied for , and secured , an oral hearing before ORG on DATE , at which hearing leave to appeal was granted .

The parties lodged bundles of documents for the appeal on DATE . The bundles were approved by ORG on DATE . There was subsequently a clarification of the law on dismissal for want of prosecution in a leading decision by ORG [ DATE ] CARDINAL AC CARDINAL ) . This led to the ORG amending its notice of appeal , and the appeal bundles were finalised by DATE .

On DATE the ORG ’s appeal was listed to be heard on CARDINAL - CARDINAL DATE . On the DATE ORG , relying upon the decision of ORG in Roebuck v Mungovin , allowed the ORG ’s appeal and dismissed the action for want of prosecution . The Master of the Rolls , Sir PERSON , who gave the leading judgment , referred to the “ regrettable lapse of time ” prior to the hearing of the appeal by ORG .

By a letter dated DATE , the applicant sought the leave of ORG to appeal to ORG . This was refused on DATE . The applicant then presented a petition for leave to appeal to ORG on DATE . The applicant failed to lodge the relevant documents with this appeal . The judicial office of ORG requested the documents of the applicant on DATE and again on DATE . On DATE ORG rejected the applicant ’s petition for leave .


Mirjana Lazarova Trajkovska;Rait Maruste;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE .

DATE and DATE she was a director of a local branch of ORG ( “ the branch ” ) . On DATE the branch was liquidated . However , according to the applicant , the local tax authorities continued referring to her as “ the director of the branch ” in their fiscal documents , obliged her to provide and sign certain documents on behalf of the branch and to provide comments on the fiscal documents related to its activities .

On DATE the applicant lodged an administrative law complaint with the ORG challenging the lawfulness of the actions of the tax authorities . In the course of the proceedings , she also asked the court to declare that the statements made by the respondent ’s officials at the court hearings concerning her involvement in the activities of the branch after its liquidation were untruthful .

On DATE the court suspended the proceedings pending the outcome of a commercial dispute concerning the lawfulness of the liquidation of the branch . On DATE ORG discontinued the proceedings concerning the latter matter .

On DATE and DATE the applicant requested ORG to resume the proceedings in her case .

On DATE the court resumed the proceedings .

On DATE the court discontinued the proceedings on the ground that the dispute had already been determined by the courts . On DATE the Kyiv Regional Court of Appeal quashed that decision and remitted the case for fresh consideration . On DATE ORG upheld the decision of DATE .

On DATE ORG partly allowed the applicant ’s complaint and found that the tax authorities had unlawfully required her to act as the director of the branch in the course of an audit of its activities in DATE . As regards the statements made by the respondent ’s officials at the court hearings , the court found that those statements had not been “ dissemination of information ” within the meaning of the civil legislation .

On DATE and DATE respectively , ORG and ORG upheld the judgment of ORG .

In the course of the proceedings the applicant amended her complaint on CARDINAL occasions . According to the Government , she lodged a request for the adjournment of the proceedings for an unspecified period . The applicant stated that she had not sought adjournment of the proceedings .

In DATE PERSON , a tax officer , instituted criminal proceedings against the applicant for tax evasion . On DATE the ORG discontinued those proceedings for lack of corpus delicti in the applicant ’s actions .

In DATE the applicant lodged with the prosecutors a criminal complaint against M. about his allegedly unlawful actions in the course of the criminal proceedings . There has been no final decision given on the applicant ’s complaint so far .


The applicant , who was born in DATE , is a NORP citizen , resident in PERSON . He is currently detained at FAC . Before the ORG , he is represented by his brother , PERSON .

On DATE four persons from the same family , PERSON , GPE , PERSON and PERSON were found dead near their house in PERSON . The ensuing police investigation led to the arrest of ORG ( GPE ) on DATE . Whilst he was in police detention GPE confessed that he had killed PERSON , GPE , PERSON and GPE .. He stated that CARDINAL other persons , including the applicant , had also been involved in the killing . On DATE the applicant was detained on the ground of these allegations . In his statement , allegedly taken under duress in the police station , the applicant confessed that he had been involved in the murders .

On DATE the applicant was brought before the public prosecutor and the ORG in Criminal Matters . In his defence submissions he retracted from his statement taken in the police station and denied all the charges against him . On DATE he was placed in detention on remand together with the other CARDINAL co - accused .

On DATE ORG instituted criminal proceedings in ORG against the applicant and the other CARDINAL co - accused , GPE , ORG . B.

ORG heard oral evidence from the witnesses called both by the prosecution and defence , examined the autopsy reports and conducted a survey of the scene of the crime . The ORG court further carried out an investigation into the applicant ’s allegations of ill - treatment in police detention . It examined the medical reports and heard oral evidence from the police officers , who were allegedly responsible .

On DATE ORG convicted the applicant of homicide and sentenced him to lifetime imprisonment . It held that the CARDINAL co - accused had acted with premeditation in order to steal PERSON ’s jewellery and killed PERSON , GPE , PERSON and PERSON to destroy the evidence and the traces . The court also found that GPE had killed GPE , GPE had killed ORG . B. had killed ORG and the applicant had killed PERSON

ORG further examined the credibility of a letter by GPE , dated DATE . In this letter , he stated that he had lied in his earlier statements . He admitted that he had killed the CARDINAL persons alone and that the other accused persons were innocent . ORG found that GPE ’s

The applicant appealed and on DATE ORG quashed the judgment of DATE without examining the merits of the case for violation of procedural rules . It stated that the record of the trial , dated DATE , was signed by a recording clerk of the court other than the one mentioned in the record .

ORG , to which the case was referred , re - examined the case and on DATE convicted the applicant of homicide and sentenced him to lifetime imprisonment .

The applicant appealed against this judgment . On DATE ORG , upholding the cogency of ORG assessment of evidence and reasoning dismissed the appeal by CARDINAL votes against CARDINAL .

On DATE ORG attached to ORG challenged the decision of DATE on the ground that there was not enough evidence to convict the applicant of homicide .

On DATE ORG of ORG , upholding the cogency of ORG assessment of evidence and its reasoning in rejecting the applicant ’s defence , dismissed ORG request to acquit the applicant by CARDINAL votes against CARDINAL . In the dissenting opinions it was stated that the applicant was probably involved in the killing , but that there was not the decisive element of proof which would definitively establish the liability of the applicant and that it could not be entirely excluded that GPE ’s account of facts was true .


Violation of Art. 6-1;No violation of Art. 10;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

On DATE ORG of the Primary and ORG of the second district of GPE ( “ the union ” ) elected a new leadership . The applicant was elected General Secretary .

On DATE the union lodged a complaint against ORG and ORG , former managers , and FAC , former Secretary of the union , who were all teachers , alleging theft , misappropriation and fraudulent conversion . The union complained that the individuals in question had refused to return the union 's property and accounting documents when the new leadership took up its duties and had used them to form a new trade - union organisation .

In a letter of CARDINAL DATE the applicant requested , on behalf of the union , information from the GPE public prosecutor 's office about the progress of the investigation , but received no reply . In a further letter , of DATE , he renewed his enquiry of the same public prosecutor 's office and also complained about the slowness of the criminal investigation . He received no reply to his letter .

On DATE the public prosecutor gave a decision discontinuing the proceedings in respect of the union 's complaint lodged against ORG , ORG and FAC That decision was sent on DATE only to those CARDINAL individuals .

NORP In DATE the applicant , in his capacity as representative of the union , took out a summons against ORG in ORG of the second district of GPE , seeking an order , under ORG and CARDINAL of the Civil Code governing civil liability , to return to the union CARDINAL NORP lei ( ROL ) in union subscription fees .

On an unknown date the applicant had a conversation with a journalist during which he expressed his dissatisfaction with the slow pace of the criminal investigation . On DATE the following article was published in the Tineretul Liber ( “ Free Youth ” ) newspaper :

“ The Primary and ORG of the second district of GPE ... is the most militant union because it battles against everyone to ensure respect for the law and teachers ' rights . Those are the assertions of PERSON , a teacher at ORG , who tells us : ' I have lodged a complaint against ORG [ ORG ] for failure to comply with the collective bargaining agreement ; the hearing has been listed for DATE . We will be lodging a complaint against the police and the public prosecutor 's office , who are engaging in anti - union activities by slowing down the criminal investigation in respect of certain delapidatori [ persons found guilty of fraudulent conversion ] – ORG , GPE , GPE , teachers in the second district ; we have at our disposal against them written evidence and confessions by CARDINAL of them to being in possession of a sum of money belonging to the union , which they have not returned . The anti - union activities are premeditated ... ' ”

On DATE ORG , ORG and FAC instituted criminal libel proceedings against the applicant in ORG ( judecatoria ) of the third district of GPE .

The trial took place on DATE . The single - judge court delivered its judgment on DATE .

After hearing evidence from CARDINAL witnesses for the plaintiff and CARDINAL for the defence , from the applicant and from the CARDINAL teachers , the judge acquitted the applicant . He noted that on the date on which the article in question had appeared , the CARDINAL teachers had been the subject of a criminal investigation in connection with a charge of fraudulent conversion and that they had not been informed of the decision discontinuing the proceedings until after the article had appeared , that is , on DATE . Furthermore , the judge noted , it was not disputed that the teachers had not returned certain sums of money belonging to the union . Accordingly , he considered that the applicant had not had any intention of libelling the teachers , but merely of informing the public that his union was going to lodge a complaint against the police and the public prosecutor 's office , accused of slowing down the criminal investigation concerning the CARDINAL teachers .

A.P. , ORG and FAC appealed to ORG , which upheld their appeal . The court quashed the decision of DATE and decided to re - try the case on the merits .

The trial took place on DATE . The ORG can not establish from the documents in its possession whether the applicant 's lawyer was able to make oral submissions . However , his lawyer submitted in the written pleadings in defence that his client had expressed himself on behalf of the union ; that the aim pursued was that of reconstituting the union 's assets ; and that the new trade - union organisation formed by the CARDINAL teachers had been declared illegal by the courts . He referred to the evidence given by the witnesses before ORG testifying to negligence on the part of the CARDINAL teachers in the administration of the union 's property and to their refusal to return certain sums of money and documents . He added that the article had distorted the applicant 's statements to the journalists , but that the applicant did not want to sue the press .

Although the applicant was present at the trial , the court did not hear submissions from him . No evidence was adduced . The record of the hearing did not mention the public prosecutor 's submission allegedly requesting the applicant 's acquittal , but merely indicated that the parties ' lawyers had been able to address the court .

NORP The decision was reserved until DATE , and then until DATE , on which date it was delivered in the absence of the applicant and his lawyer . The court held that the applicant had intended to injure the honour and reputation of the CARDINAL teachers , contrary to Article CARDINAL of LAW , since his remarks had been published in the newspaper after the decision of DATE discontinuing the proceedings . The court also noted that , after that date , the applicant had gone to the schools at which ORG , ORG and FAC taught and accused them of running off with the union 's money .

NORP The applicant was convicted of criminal libel , fined ORG and ordered to pay ORG to each of the CARDINAL teachers for non - pecuniary damage .

The applicant appealed on DATE . On DATE ORG declared his appeal inadmissible on the ground that no appeal lay against the decision in question and that it was final .

On an unknown date the applicant paid the CARDINAL teachers the sums which he had been ordered to pay them . On DATE he paid the ROL CARDINAL,CARDINAL fine .

On an unknown date the applicant requested PERSON at ORG to lodge an application to have the judgment of DATE set aside .

On CARDINAL DATE the applicant was informed that ORG had refused to lodge an application to have the judgment set aside .

In a judgment of DATE , ORG , after examining the case ex officio and in camera , delivered a judgment rectifying the clerical errors in the record of the hearing of DATE and the judgment of DATE .

The court amended the record of the hearing of CARDINAL DATE to record the presence of the public prosecutor , PERSON , who had requested in his written pleadings that the teachers ' appeals be upheld and that the applicant be sentenced to a fine for criminal libel and ordered to pay compensation for non - pecuniary damage . Furthermore , according to the court , the applicant had addressed it last on DATE .

The court also decided to rectify the judgment of DATE so as to record the adjournment of delivery date from DATE and the presence at delivery of the public prosecutor , PERSON

The parties were not summoned to attend and were not present at delivery of the judgment on DATE .

In a judgment of CARDINAL DATE , ORG upheld the action for damages brought by the union against ORG in DATE and ordered ORG to return ROL CARDINAL,CARDINAL plus interest . The court noted that ORG had been the ORG of the union from DATE and that , in that capacity , she had received ROL CARDINAL,CARDINAL in subscriptions from the members of the union during that period . The court also noted that , after leaving her post , ORG had refused to return to the union the documents relating to the deposit of the said sum at the bank , so that the union had never been able to retrieve it .

On DATE the Government provided the ORG , at its request , with a copy of ORG hearings register for CARDINAL and DATE . The register mentions only the adjournment of delivery from DATE and the finding of guilt in respect of the applicant .

In a letter of DATE the Government informed the ORG that they could not provide it with a copy of the notes taken by the registrar ( caietul grefierului ) during the hearing of DATE because , pursuant to ORG Circular no . CARDINAL/C/CARDINAL ( ORG ministrului ) , registers containing the registrar 's notes are sealed and archived for DATE .

On DATE the Procurator - General at ORG lodged an application to have the judgment of DATE set aside . He requested that the applicant be acquitted on the ground that the constituent elements of the offence of libel had not been made out .

At the hearing on DATE the Government submitted to the ORG a decision of CARDINAL DATE of ORG granting the application lodged by PERSON to have the decision of DATE set aside and acquitting the applicant on the ground that intent to defame , a constituent element of the offence of libel , had not been established .

The Government also submitted to ORG a copy of a letter of DATE in which ORG Instance requested the tax office of the third district of GPE to refund the applicant the ROL CARDINAL fine paid by him following his conviction of DATE .

The relevant provisions of LAW are as follows .

“ Anyone who makes any statement or allegation in public concerning a particular person which , if true , would render that person liable to a criminal , administrative or disciplinary penalty or expose them to public opprobrium , shall be liable to imprisonment for DATE or to a fine . ”

“ Evidence of the truth of such a statement or allegation is admissible where the statement or allegation was made in order to protect a legitimate interest . Where the truth of the statement or allegation is proved , no offence of insult or defamation will have been committed . ”

The relevant provisions of LAW read :

“ A court hearing a recurs lodged directly against a decision from which no apel lies [ In respect of certain crimes there is CARDINAL level of appellate jurisdiction ( recurs ) , rather than CARDINAL levels ( PERSON followed by recurs ) , before a final judgment is delivered ] shall examine every aspect of the case , irrespective of the grounds of appeal and requests of the parties ... ”

“ An appeal shall lie in the following circumstances :

( CARDINAL ) where the judgment does not deal either with CARDINAL of the charges made against the accused in the committal order , or with certain evidence taken , or with certain applications that are of essential importance to a party in that they may safeguard that party 's rights or have an effect on the outcome of the trial ;

“ In giving judgment on an appeal , the court may either ... :

NORP uphold the appeal , quash the lower court 's decision and ... ( d ) hold a retrial of the case ... ”

“ Where the court which has given judgment on an appeal holds a retrial of the case in accordance with LAW ( CARDINAL ) ( d ) , it shall also rule on matters relating to the taking of evidence and fix a date for trial ... ”

“ After the first judgment has been quashed , the second trial shall be held in accordance with the provisions of Chapters I ( Trial – General Provisions ) and II ( Trial at first instance ) of Title II , which shall apply mutatis mutandis . ”