Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE .

The applicant , a businessman , was the defendant in an action filed against him before ORG if GPE on DATE by ORG ( civil action no . CARDINAL/CARDINAL ) . The plaintiff bank sued the applicant in his capacity as guarantor of a NORP company , ORG

The facts leading to the action had taken place DATE in a number of countries , including GPE , GPE , GPE , GPE and GPE .

Hellas Eurotrade Ltd had been established in DATE and had CARDINAL shareholders : the applicant who held PERCENT of the shares and CARDINAL other individuals that held the remaining shares in equal parts . The company had been set up for the purposes of performing a contract between another company , ORG , and ORG for the provision of QUANTITY of cement to the latter . ORG had opened a letter of credit for this purpose , issued by a NORP bank- ORG . The obligations and the rights deriving from the contract and the letter of credit were transferred and/or assigned to ORG in DATE . The plaintiff bank had undertaken to act as guarantor of the above - mentioned company for the delivery of the cement and the fulfilment of the obligations connected thereto and to provide banking and exchange facilities regarding the above obligation against personal guarantees , including that of the applicant . The action had been based on differences that arose between the plaintiff bank and the applicant from the performance of the obligation for delivery of cement to ORG .

On DATE the plaintiff bank addressed a letter to ORG in GPE , together with CARDINAL bills of exchange , CARDINAL for MONEY ( ORG ) and the other for CARDINAL , with instructions that they be presented to the applicant for acceptance and payment . The applicant filed a civil action ( no . CARDINAL ) before ORG of GPE . On DATE the court declared the CARDINAL bills void ab initio and without any legal effect .

Consequently , on CARDINAL DATE the plaintiff bank filed a civil action before ORG of GPE ( action no . CARDINAL ) against the applicant in his capacity as guarantor of the above - mentioned company . However , this action was discontinued and withdrawn by the plaintiff on CARDINAL DATE .

NORP The plaintiff bank then filed civil action no . CARDINAL/CARDINAL against the applicant claiming an amount of CARDINAL plus compound interest , the performance of accounts as to the sums which the company had received from ORG and a court order for the payment of an amount equivalent to PERCENT of the received sum which in total exceeded ORG CARDINAL plus interest . On account of LAW , PERSON . CARDINAL , the filing of the action would have been outside the limitation periods prescribed by the said law . However ORG ( no . CARDINAL of DATE ) had suspended the laws of limitations in GPE .

The action was filed on DATE by way of writ of summons .

The appearance was filed on CARDINAL DATE and the statement of claim was filed on CARDINAL DATE .

On CARDINAL DATE the applicant filed an application for security of costs which was granted on DATE by consent .

Between the above date and CARDINAL DATE , the applicant filed his defence and the court dealt with CARDINAL applications by the parties . The plaintiff applied twice for extension of time for the purpose of filing its reply ( applications that he later withdrew ) and also filed an application for amendment of pleadings . The applicant filed an application for discovery of documents . In this period the case was adjourned CARDINAL times - twice at the parties’ request and CARDINAL times at the plaintiff ’s request with the applicant ’s consent .

On DATE the plaintiff filed an application to exclude CARDINAL of the applicant ’s advocates . The hearing of this application was adjourned twice , once by the court and once at the plaintiff ’s request with the applicant ’s consent . The hearing was held on DATE and on DATE the application was dismissed . On DATE the plaintiff filed civil appeal no . DATE against this ruling ( see paragraphs CARDINAL below ) .

In the meantime , on CARDINAL DATE the amended writ of summons was filed . The plaintiff filed an application on DATE for an extension for filing the amended statement of claim . This was granted DATE and the statement of claim was filed DATE . On DATE the applicant filed an application for an extension for submitting his defence and on DATE he submitted a second application for the same reasons . On DATE the applicant filed his defence and counterclaim .

On DATE the plaintiff filed an application to strike out the applicant ’s counterclaim . Following the filing of the applicant ’s opposition the application was fixed for hearing for DATE but was then adjourned by the court until DATE . The hearing took place on DATE and on CARDINAL DATE the court granted the application striking the counterclaim out of the action . On DATE the applicant filed civil appeal no . DATE against this ruling ( see paragraphs DATE below ) .

From DATE until DATE the court dealt with CARDINAL applications . Firstly , it dealt with an application filed by the plaintiff to strike out the applicant ’s defence . The applicant had been granted CARDINAL extensions of time for filing his opposition to this application . Secondly , the court dealt with an application filed on CARDINAL DATE by the applicant to stay the proceedings . As a result the hearing of the first application was adjourned twice , once by the court and once at the parties’ suggestion that the application be heard after determination of the applicant ’s application for stay of the proceedings . When the latter application was dismissed on DATE , on CARDINAL DATE the court fixed the plaintiff ’s application for hearing for DATE and on that date with an ex tempore ruling it dismissed the application . On DATE the plaintiff filed civil appeal no . CARDINAL against this decision ( see paragraphs CARDINAL below ) .

On DATE ORG delivered its judgment in appeal no . DATE and the plaintiff withdrew appeal no . DATE .

On DATE the case was fixed for mention for CARDINAL DATE by the court , ex proprio motu . The case was adjourned at the applicant ’s request with the plaintiff ’s agreement until DATE .

In the meantime , on CARDINAL DATE the plaintiff withdrew appeal no . DATE . Further , on DATE the applicant filed another application to stay the proceedings before the district court until the determination of an application which he had filed before ORG ( application no . CARDINAL/CARDINAL ) complaining that as a result of the domestic courts’ decision to not examine his counterclaim he had been deprived of his right to a fair trial . The plaintiff filed an objection to this application on DATE . On DATE the hearing of the application was adjourned by the court because the case - file could not be traced . The application was heard on DATE . On DATE the district court dismissed the application .

In the intervening time , on DATE , the main action was fixed for hearing for DATE . However , on DATE , the parties jointly applied for the adjournment of the hearing . The court directed the parties that if until DATE no application for fixing a hearing was filed , the case file would be brought before the court for directions .

Meanwhile , on DATE the applicant filed an application for discovery of documents . Following CARDINAL adjournment to allow service of the application , the case was fixed for DATE and then for DATE at the parties’ request . In the meantime , on DATE the plaintiff had also filed an application for discovery . This was also fixed for DATE . On DATE , at the parties’ request , the applications were fixed for DATE . On DATE the district court issued the relevant orders , and the parties complied with them on DATE .

Within the same period , on DATE the plaintiff had filed an ex parte application for extension of time for filing the reply . The application was granted DATE and on DATE the plaintiff filed its reply .

On DATE the plaintiff applied for the main action to be fixed for hearing . It was fixed for mention for DATE and then adjourned at the parties’ request to complete the discovery procedure until DATE . On that date the case was adjourned for the same reasons on the joint request of the parties until DATE , with discovery to be completed by DATE .

On DATE , the case was fixed for DATE in view of the fact that discovery had not been completed yet . In the meantime , on DATE , the applicant requested an extension for the purposes of discovery and this was granted on DATE .

On DATE the hearing was adjourned following a written request by the parties . The parties requested that the hearing start after DATE . The hearing was adjourned until DATE and then until DATE at the parties’ request .

DATE before , on CARDINAL DATE the applicant filed an application to have the action dismissed . The application was based , inter alia , on ORG , Articles CARDINAL , CARDINAL , DATE and DATE of LAW and Articles CARDINAL , CARDINAL and CARDINAL of LAW . The applicant complained that there had been an inordinate delay both in the filing of the action by the plaintiff and in the hearing of the case . As a result he claimed that deciding the issue of delay at a later stage would infringe the relevant LAW provisions and deprive him of his right to a fair hearing within a reasonable time . The applicant maintained that the continuation of the proceedings would be vexatious and would constitute an abuse of the process of the court . In this context , he requested the court to consider the delay on the part of the plaintiffs in filing the action and the fact that , according to LAW ( PERSON . CARDINAL ) the action would have been statute - barred DATE before its filing , had the operation of this PERSON not been suspended by ORG ( no . CARDINAL of DATE ) , the constitutionality of which was challenged . Further , he noted that he had suffered damage because of the protracted length of the proceedings . In this connection he alleged , among other things , that important witnesses had died and that he would not be able to initiate compensation proceedings since CARDINAL of the co - guarantors had died and ORG had been dissolved .

On DATE the hearing of the main action was adjourned with the plaintiff ’s consent , so that the above application would be heard first . The court fixed the application for hearing for DATE and DATE . From DATE until DATE , CARDINAL hearing sessions were held and the decision was reserved on DATE . On DATE the district court rejected the application . It noted amongst others that it had not been argued that the action itself and its continuation were frivolous or vexatious and thus , under the applicable rules , the application could not be dismissed on that ground . Furthermore , it concluded that the delays in the proceedings CARDINAL QUANTITY months- were not significant and did have any adverse effects on the applicant so as to justify the dismissal of the action . On the contrary it was more likely that the delays in the presentation of oral and/or written evidence caused prejudice to the plaintiffs who had the burden of proof in the action . Finally , ORG found that , in line with its jurisprudence , ORG was constitutional .

On DATE the applicant lodged civil appeal no . CARDINAL against this decision ( see paragraphs CARDINAL below ) .

On DATE the case was fixed before the court . On that date the applicant requested the stay of the main proceedings before the district court pending the determination his appeal . The district court noted that it was well established in ORG case - law that piecemeal appeals could not constitute a valid reason for delaying or adjourning the main proceedings and rejected the applicant ’s request . The court fixed the main action for hearing for DATE .

On DATE the applicant applied for an adjournment of the hearing pending the determination of his appeal but this was rejected . The hearing thus began on that date with PERSON and CARDINAL hearing sessions were held until DATE . The hearing was then set for DATE but was then adjourned until DATE at the parties’ request for the purposes of discovery . From that date until DATE the hearing was adjourned CARDINAL times by the court itself in view of the fact that the presiding judge had been promoted to ORG . On DATE the hearing was set for DATE to take place de novo .

The hearing was however adjourned once at the plaintiff ’s request with the applicant ’s consent and once by the court due to the enactment of an amendment to ORG Law DATE ( Law no . CARDINAL ) abolishing full courts . On DATE the hearing was set for CARDINAL DATE . Following a DATE adjournment by the court and CARDINAL adjournment at the plaintiff ’s request , with no objection on the applicant ’s part , the hearing was fixed for CARDINAL DATE before PERSON , the new President of ORG .

On DATE the hearing commenced and from that date until DATE hearing sessions were held .

NORP On DATE the plaintiff applied for an adjournment which was accepted by the applicant . The case was fixed for DATE and then for hearing for DATE with continuing hearing sessions to be held .

On DATE the plaintiffs applied for an order of inspection of documents in the applicant ’s possession . The application was fixed for hearing for DATE and then DATE . Following an application by the applicant for an extension to file his opposition it was set for DATE . On DATE the case was assigned to the newly appointed President of ORG , PERSON applicant filed his objection to the application on DATE and the hearing was held on DATE . On the latter date the application was dismissed in view of the parties’ failure to appear before the court .

On DATE the President of ORG fixed the main action for directions for DATE and for hearing on DATE . The plaintiff requested that the case be heard in DATE and the applicants accepted .

In the meantime , on DATE , the plaintiffs filed a new application for the inspection of documents , to which the applicant filed an objection on DATE , following the grant of an extension for its submission . The hearing of the application commenced on DATE and CARDINAL hearing sessions were held on the dates that had been scheduled for the hearing of the main action . The hearing of the application was completed on DATE and the application was granted on CARDINAL DATE .

In the intervening time , on DATE the plaintiffs filed an application to amend their statement of claim for the second time . The case was fixed for directions for DATE and then DATE , the applicant ’s opposition to be filed within this period .

On DATE the plaintiffs filed an application to allow the continuation of the hearing from where it had been left with the previous President of ORG . This application was also fixed for DATE . From that date onwards both applications were considered together . They were fixed for DATE with directions for filing opposition . On that date the applicant applied for an extension of time for the filing of his opposition and the applications were fixed for CARDINAL DATE . On DATE the hearing was adjourned since the file of the case was transferred to ORG for the hearing of civil appeal no . DATE , and the applications were fixed for CARDINAL DATE . On DATE the presiding judge requested that no more delays take place . Following another application by the applicant for an extension of time for the filing of his opposition the applications were fixed for hearing for DATE . On that date the hearing of the first application was fixed for DATE whereas the second application was withdrawn . The hearing of the first application took place on DATE and on DATE it was rejected . On DATE , the plaintiff lodged civil appeal no . CARDINAL against the district court ’s ruling .

Due to the above applications , the hearing of the action which had been fixed for CARDINAL DATE was adjourned until DATE and then re - adjourned until DATE . In the interim , on DATE , ORG delivered its judgment in appeal no . CARDINAL .

On DATE the hearing of the main action was scheduled for CARDINAL , DATE , DATE , DATE , DATE and DATE . On DATE , ORG issued judgment in appeal no . DATE reversing the district court ’s ruling and granting the plaintiff ’s application for amendment . The hearing of the main action was then rescheduled for CARDINAL , CARDINAL , DATE and CARDINAL and DATE .

In the meantime the parties submitted their amended pleadings and on DATE the applicant filed an application for amendment of his statement of defence which was fixed for CARDINAL DATE . On DATE the application was granted with the plaintiff ’s consent . The main action was then re - scheduled for hearing for DATE . On that date the court fixed the hearing for DATE following a joint request by the parties .

DATE . On DATE the hearing of the main action commenced . Between that date and DATE approximately CARDINAL hearing sessions were held for the examination of the plaintiff ’s first witness . Within this period CARDINAL adjournments took place , CARDINAL due to the ill - health of the parties’ representatives and CARDINAL following an application by the applicant for another stay of the proceedings pending the transcription of the records of the previous hearings that had been conducted before the full court and subsequently before the CARDINAL presiding judge .

The cross - examination of the above witness started on DATE and continued until DATE . CARDINAL hearing sessions were held . In this period the hearings were adjourned CARDINAL times : CARDINAL times at the plaintiff ’s request , CARDINAL at the applicant ’s due to the ill - health of his lawyer and CARDINAL by the court .

From DATE until DATE they were CARDINAL sittings for the examination and cross - examination of CARDINAL witnesses , including the applicant . Within this period the applicant filed an application for the amendment of his defence and an application for the withdrawal of his lawyer from the case .

From DATE until CARDINAL DATE the parties’ addressed the court . There were CARDINAL sittings in this respect . The court reserved its judgment on DATE .

On DATE the district court delivered its judgment dismissing the action and awarding costs in favour of the applicant .

On DATE the plaintiff filed appeal ( civil appeal no . DATE ) against the ruling of the district court dismissing its application for the exclusion of CARDINAL of the applicant ’s lawyers .

On DATE ORG forwarded the notice of appeal to ORG of ORG and notified him that the record was being prepared . On DATE the Chief Registrar sent a notice to the plaintiff to submit the prescribed fee for the preparation of the record so that the appeal could be fixed for hearing .

The file of the proceedings was forwarded to ORG on DATE and on DATE the plaintiff wrote to the ORG registry requesting that the appeal be fixed for hearing . On CARDINAL DATE the appeal was fixed for hearing on DATE together with civil appeals nos . DATE and DATE . On DATE ORG directed that the hearing in the appeal would take place after the completion of the hearing in appeal no . DATE .

On DATE , following the judgment in appeal no . DATE , on the plaintiff ’s request the appeal was fixed for directions for DATE and then CARDINAL DATE . On DATE the plaintiff requested an adjournment and then withdrew the appeal on CARDINAL DATE .

On DATE the applicant filed civil appeal no . DATE against the district court ’s decision ordering the exclusion of the counterclaim from the action .

On DATE the applicant applied to the Registrar to fix a hearing date .

On DATE the Registrar advised the parties that the appeal was fixed for hearing for CARDINAL DATE . On DATE a member of the bench exempted himself from hearing the appeal and the PERSON was directed to make arrangements for the case to be assigned to a different bench . The Chief PERSON gave notice to the parties that the appeal was fixed for hearing on DATE .

On DATE the applicant applied with the plaintiff ’s consent for an adjournment of the hearing . The appeal was adjourned sine die and the Registrar was directed to fix it as soon as possible . The hearing was fixed for DATE .

The hearing commenced on the latter date and continued on CARDINAL and DATE . Judgment was reserved on the latter date .

On DATE the appeal was dismissed .

On DATE the plaintiff filed civil appeal no . CARDINAL against the district court ’s decision for dismissal of its application to strike out the defence in the main action .

The notice of appeal was forwarded by ORG to ORG and on DATE the plaintiff was notified to submit the prescribed fee for preparation of the records .

On DATE the appeal was fixed together with appeals nos . DATE and DATE .

On DATE , following the judgment in appeal no . CARDINAL , in view of the outcome of the appeal , the plaintiff sought leave to withdraw the appeal . Leave was granted and no costs were claimed by the applicant .

DATE . On DATE the applicant filed appeal no . CARDINAL against the district court ’s ruling of CARDINAL DATE rejecting his application to have the action dismissed due to the delay in the proceedings .

On DATE the appeal was fixed for preliminary hearing on DATE . On that date it was adjourned by the court for DATE due to the ill - health of CARDINAL of the judges .

Due to the fact that the typed record of the proceedings had only been received on DATE , the preliminary hearing was set for DATE .

On DATE the court gave directions to the parties for the submission of their outline addresses and instructed the Registrar to fix a hearing date .

On DATE the Registrar fixed the hearing for DATE . On the latter date the President of ORG exempted himself from the proceedings .

On DATE the applicant applied in writing to the Chief Registrar of ORG to fix a hearing date before the full bench in view of the important issues raised in the appeal . On DATE the plaintiff addressed a letter to ORG objecting to this . On DATE a hearing was fixed on this issue for DATE . The hearing was conducted on DATE and on DATE ORG rejected the applicant ’s application . The hearing of the appeal was then fixed for DATE .

Judgment was given on DATE and the appeal was partly upheld . In its judgment ORG considered that the fairness of the proceedings ought to be considered with , and as part of , the proceedings relating to the action itself . It concluded that the district court should not have considered the applicant ’s allegations within the context of an interim application but within the framework of the trial taken as a whole . Only in the latter context would it be possible to determine whether or not the trial had been fair . The protection of rights aimed at securing a fair trial and not hampering it . ORG further rejected the contention that ORG which permitted the filing of an action without any time limitation was unconstitutional as decided in its judgment in the case of PERSON v. ORG ( civil appeal no . DATE , judgment of DATE ) . Accordingly , ORG ordered the proceedings to be continued and the hearing of the action to be fixed as soon as possible .

On DATE the plaintiff filed civil appeal no . CARDINAL against the district court ’s decision for dismissal of its application for amendment of its statement of claim . ORG fixed the appeal for hearing for DATE . The hearing was held on DATE and judgment was delivered on DATE upholding the appeal .

DATE . In its judgment of DATE the district court firstly dealt with the applicant ’s claims before it concerning the violation of his right under LAW and LAW trial within reasonable time . In this context the court examined the responsibility of the parties and the courts in the delay of the proceedings as well as other factors that the applicant alleged contributed to the delay .

In sum , the court found that the parties had caused serious delays to the commencement and the smooth running of the proceedings . The parties’ non - timely observance of the rules or directions of the court , the submission of applications for adjournments and the bombardment of all kinds of interlocutory proceedings and appeals were the principal cause for the delay and perpetuation of the proceedings . The court noted that the defendant ( applicant ) had not complied with set deadlines and had repeatedly sought the stay of the proceedings . The plaintiff bank had contributed to the overall prolongation of the proceedings by delaying the lodging of the action . The court observed that the courts had dealt with the parties’ handling of the case and applications with satisfactory responsiveness and tolerance and without excessive delay . It was not possible to work out the exact blame of each litigant but it was clear that neither party showed a spirit of pressing on with the case .

The court observed that part of the responsibility for the late commencement and/or continuation of the trial was also due to the judicial mechanisms . In this context it pointed out the changes that had taken place in the bench and the delays at the interim appeal stage , in particular the delay that occurred before ORG in the trial of the interim appeal concerning the striking out of the applicant ’s counterclaim . In any event , the court considered that this delay had not affected or should not have affected the furtherance of the main action by the parties , since , pending the appeal , no stay of proceedings had been ordered . On the contrary the applicant had applied to the district court for a stay pending the determination of the above appeal , which was rejected .

The court found that the overall length delay in determining the parties’ rights and obligations did not in any way negatively affect the presentation of their case . It concluded that the trial had been fair and that the litigants had been provided with every possible opportunity .

On DATE the ORG was informed that the plaintiff filed an appeal against the first instance judgment on DATE ( civil appeal no . CARDINAL/CARDINAL ) . These proceedings are still pending .

Articles DATE ( CARDINAL ) and CARDINAL of LAW in so far as relevant provide as follows :

CARDINAL ( CARDINAL ) “ In the determination of his civil rights and obligations ... , every person is entitled to a ... hearing within a reasonable time by [ a ] ... court ... ” .

CARDINAL “ The legislative , executive and judicial authorities of the Republic shall be bound to secure , within the limits of their respective competency the efficient application of the provisions of this Part ” .

In the case of PERSON v. PERSON ( DATE , civil action no . ORG ) ORG upheld the first instance decision of ORG establishing that a violation of any rights protected by LAW provided the victim with an actionable right . The respondent had brought an action against the appellant for damages sustained as a result of the violation of his right to private life and secrecy of correspondence and communications by the appellant . ORG found that the violation of the above rights safeguarded by LAW ( CARDINAL ) and CARDINAL of the LAW gave rise to a right for legal protection through the course of justice and to remedies provided by the law . The respondent was awarded damages as compensation for the consequences of the violation of his rights .

On DATE ORG adopted “ The Rule of Judicial Practice ” which provides as follows :

“ During the ORG ’s meeting of DATE and before the ORG proceeds with its judicial work , the President announced the issuing of the following Judicial Rule of practice .

The President of the Supreme Court Mr PERSON stated as follows :

With the unanimous agreement of all the Judges of ORG , the following Rule of Practice is issued :

It is acknowledged that the duty for the hearing of cases within a reasonable time is the individual duty of the trial judge and a collective duty of the judicial function . The establishment of rules for conducting a trial within reasonable time and the supervision of the procedures towards preventing delays is the responsibility of ORG . Its performance must be regulated in a way which secures , not only in advance but also during the course of the trial of cases , that the safeguards set by LAW and the principles governing the proper administration of ORG , as set out in circulars of ORG , are complied with . For achieving this purpose , the present Rule of Practice is adopted :

Whenever it comes within the knowledge of ORG ( either through the Registries or following representations made by any person having an interest in the trial of the case without delay ) that the trial of the case is being delayed , or it appears from the arrangements made – in respect of its trial– that it is possible that the trial be delayed , or where it appears that the hearing is not conducted uninterruptedly as determined by the circulars of ORG , ORG may issue directions for preventing delays in the hearing of the case and for the uninterrupted trial of the case as it deems fit . The responsibility of observing the conduct of cases undergoing trial , for the purpose of briefing ORG of delays noted or envisaged in the trial of civil and criminal cases , shall be vested with the Registrar , who will serve at ORG . The gathering of information on this matter shall be regulated by ORG in due course ” .


The applicants , PERSON and PERSON , are NORP nationals , who were born in DATE and DATE respectively and live in Västervik . They were represented before the Court by PERSON , a lawyer practising in ORG . The respondent Government were represented by PERSON , ORG .

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

The applicants have a daughter , PERSON In DATE she gave birth to a son , PERSON , of whom she has sole custody . However , for most of his life , PERSON has been living with the applicants . In DATE PERSON gave birth to a second son who was placed in public care in DATE .

In DATE PERSON picked up PERSON at the school he attended in Västervik and brought him to PERSON , where she had taken up residence . The applicants reported this event to ORG ( socialnämnden ) in PERSON and requested it to take action in order to have PERSON returned to them . The ORG started an investigation of the matter . In DATE and DATE several psychologists and social welfare officers submitted opinions which did not question the applicants’ ability to assume the care and custody of PERSON but rather tended towards finding that PERSON would be better off living with the applicants .

On DATE the ORG decided to take no action . The social welfare officers in charge of the matter considered that PERSON should live with his mother , his legal custodian . According to an opinion issued by ORG ( barn- och ungdomspsykiatriska kliniken ) in GPE on DATE , it was of utmost importance that PERSON was given a permanent home and that this should be with his mother .

In DATE the applicants took PERSON from PERSON in GPE and went into hiding . In an application to ORG ( länsrätten ) in GPE , PERSON requested that PERSON be returned to her .

On DATE the chairman of ORG in PERSON decided to take PERSON into compulsory public care immediately due to the applicants’ illegal abduction of him . This decision was not enforced , however , as the applicants were still in hiding .

On DATE ORG held an oral hearing in the case . PERSON attended , assisted by public counsel . Also officers of ORG were heard . The applicants were not present or represented . PERSON stated , inter alia , that the applicants had removed PERSON from his home without her permission and had refused to return him . She also claimed that the applicants had physically assaulted him and exerted pressure on him . The social welfare officers stated that PERSON suffered from the conflict between his mother and his grandparents and that it was not possible to discuss with the applicants the possibility of returning PERSON to his mother . They also considered that PERSON needed psychiatric treatment in accordance with a plan which had been drawn up by ORG and to which PERSON had consented . Further , due to PERSON ’s state of health and the risk that he be removed to GPE , it was allegedly urgent that he be returned to his mother .

On DATE the ORG decided that PERSON be taken care of immediately in accordance with LAW , section CARDINAL of LAW ( PERSON ) and ordered the police authorities in PERSON to enforce the decision . It left it to ORG to decide on the proper measures with regard to the care . In its reasoning , the ORG found that the matter was urgent due to PERSON ’s health and as there was a risk that PERSON could be removed out of the country . On DATE the ORG quashed the ORG ’s decision of DATE to take PERSON into compulsory public care .

The applicants appealed to ORG ( kammarrätten ) in GPE , stating that it would be detrimental to PERSON to be separated from his grandparents . The Court held an oral hearing , where the applicants , though absent themselves , were represented by court - appointed counsel .

By a decision of CARDINAL DATE the appellate court rejected the ORG appeal . It generally agreed with the reasoning of ORG and added that it had not been possible to enforce that court ’s decision since the applicants were still in hiding with PERSON The applicants lodged an appeal , but it was dismissed by the appellate court on DATE for having been lodged out of time . On DATE ORG ( Regeringsrätten ) rejected an application for restoration of the expired time .

On DATE the applicants and PERSON were apprehended in GPE and PERSON was returned to his mother in GPE . ORG decided to prohibit all access between the applicants and PERSON

On DATE ORG refused the ORG request to be informed of PERSON ’s telephone number , referring to the confidentiality applicable to such information under LAW ( LAW ; CARDINAL ) . The applicants did not appeal against the decision .

On DATE the applicants requested access to PERSON and also wished to be informed of the results of possible psychiatric examinations of him .

By a letter of CARDINAL DATE a social welfare officer informed the applicants that PERSON opposed access and that ORG did not consider it to be in the best interests of PERSON to allow meetings with the applicants at that time , as such contact would have disturbed the developing relationship between PERSON and his mother . This opinion was supported by a psychologist at ORG in GPE , who had been consulted in the matter . The applicants were also told that information on psychiatric examinations was confidential and , thus , could only be disclosed to the custodian .

On DATE ORG decided not to initiate court proceedings with a view to establishing access between the applicants and PERSON and to reject the request for information . The applicants did not appeal against the ORG ’s decision .

On DATE ORG decided , at the request of PERSON , to strike out the case relating to PERSON ’s request in DATE for the return of PERSON to her , noting that PERSON had already been returned to her . The ORG observed that the ORG counsel had not commented on the strike - out request , although he had been notified thereof .

The first applicant appealed against the strike - out decision and also requested that he and his wife be awarded custody of PERSON On DATE ORG dismissed his action , finding that he lacked standing to appeal against the decision in question and that the ORG did not have jurisdiction to decide on transfer of custody . On DATE ORG refused the first applicant leave to appeal . On DATE the same court rejected his application for a reopening of the proceedings .

According to the applicants , PERSON has repeatedly been told by social welfare officers that no access , correspondence or telephone contacts between PERSON and the applicants would be allowed until PERSON reached the age of majority ( i.e. until DATE ) .

NORP law does not afford grandparents any rights over their grandchildren . The rights over a child are normally vested in its parents or custodians who , according to chapter CARDINAL , section CARDINAL ( CARDINAL ) of LAW , shall see to it that the child ’s need of access to a person who is particularly close to the child is satisfied to the utmost possible extent . As concerns the possibility of instituting court proceedings , section CARDINAL ( CARDINAL ) provides that such proceedings may be brought by ORG , if access requested by somebody else than the natural parents is denied by the child ’s custodians . The court shall determine the question of access in keeping with the child ’s best interests . Also , under section CARDINAL ( CARDINAL ) , the court shall have regard to the risk of the child being abused , being illegally removed or detained , or otherwise suffering harm when contacts take place with the person requesting access .

According to the preparatory documents to the above legislation ( see Government Bill CARDINAL/CARDINAL:CARDINAL , pp . CARDINAL and DATE ) , it has not been deemed appropriate that any person who claims to have a particularly close relationship to a child should be entitled to bring an action for access before the courts . Therefore , contrary to what is the case with the child ’s parents , ORG has the exclusive right to bring such an action . The ORG makes use of this right only in rare cases . In practice , when the social authorities are informed , for instance by the person concerned , that the child ’s custodian fails to ensure that the child can meet with a person to which it has a close relation , the ORG shall investigate whether such a contact can be considered as being in the best interests of the child and , if that is the case , take action with a view to establishing access , ultimately by requesting a court decision .

Similar rules apply to the question of custody . Thus , under LAW , LAW CARDINAL of LAW , the custody of a child may be transferred to a person who has constantly cared for the child , if this is deemed to be in the child ’s best interests . The transfer of custody is decided by ORG upon application by ORG .

There does not appear to be any NORP case - law on the question whether the person requesting access or custody has standing to appeal against a decision by ORG not to institute court proceedings in the matter .

When the child is in the home of another person , chapter DATE , section CARDINAL of the Parental Code gives the custodian an opportunity to apply to ORG for a decision that steps be taken to transfer the child to him or her . If there is a risk of the child being removed out of the country or if the matter is urgent for some other reason , the court may , LAW , section CARDINAL , order that the child be taken care of immediately in the manner it considers appropriate .


Josep Casadevall;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä;Stanislav Pavlovschi

The applicant was born in DATE and lives in GPE .

The applicant was charged with armed robbery and , on an unspecified date , remanded in custody .

On DATE the Rawa ORG sentenced the applicant to DATE and QUANTITY months’ imprisonment .

The applicant lodged an appeal .

On DATE ORG upheld the first - instance judgment and dismissed the appeal as manifestly ill - founded .

The applicant did not lodge a cassation appeal .

On DATE the ORG received a letter from the applicant . The envelope bore the stamp “ Censored on DATE ” ( ORG dnia DATE ) , an illegible signature and the stamp of the Rawa Mazowiecka District Court ( PERSON ) . The envelope was sealed with adhesive tape . The letter of DATE which was in the envelope likewise bore the stamp : “ Censored on DATE ” and an illegible signature .

The relevant domestic law concerning the censorship of ORG correspondence is set out in the ORG ’s judgment in the case of GPE v. GPE , no . CARDINAL , § § DATE , CARDINAL DATE .


Violation of Art. 6-1;Pecuniary damage - financial award

The applicant is a NORP citizen , born in DATE . He works as an electrician and resides in GPE .

On DATE , he was travelling in a car with Mr. PERSON , who was the owner and driver of the car , and with the latter ’s brother , Mr. PERSON . At GPE , the car entered into collision with a vehicle belonging to ORG and driven by Mr. PERSON . Mr. PERSON was injured and lost the use of his left eye ; on DATE , he was certified as having a permanent partial disability .

After being notified of the accident by the local police , the public prosecutor ’s department at ORG instituted criminal proceedings against the drivers of both vehicles for causing unintentional bodily harm .

On DATE , the applicant learnt that the file on the case had been closed as a result of an amnesty granted under LAW .

On DATE , Mr. PERSON and Mr. PERSON ( " the plaintiffs " ) commenced a civil action in ORG against Mr. PERSON , ORG and the " Tranquilidade " Insurance Company ( " the defendants " ) . The applicant claimed damages of CARDINAL ORG .

Under LAW of LAW , civil liability actions in road traffic matters must be conducted in accordance with summary procedure . Under LAW ( Articles CARDINAL ) , this procedure is characterised , inter alia , by the reduction of certain time - limits .

On DATE , the judge of the second chamber ( CARDINAL juizo ) of ORG granted the plaintiffs legal aid and ordered service of the writ on the defendants . In this connection , the judge issued a request for service ( oficio precatorio ) in GPE , the GPE place of residence .

In principle , when such a request is received at a court the registry has DATE in which to submit it to the judge . The latter must then order the writ to be dispatched for service within DATE , following which the relevant registry official is bound to execute the request for service within a similar DATE interval unless he has a justifiable excuse ( Articles CARDINAL and CARDINAL of the Code of Civil Procedure ) .

On DATE , DATE , DATE , CARDINAL May and DATE , the judge of the first chamber of ORG , replacing the judge of the second chamber ( whose post was vacant ) , insisted that the request for service of the writ be given effect . However , this was not done until DATE .

The " Tranquilidade " Insurance Company filed its defence ( contestaçao ) on DATE contesting the plaintiffs’ claims . It applied to have a third party , Mr. PERSON ( see paragraph CARDINAL above ) , joined in the proceedings ( intervençao principal ) .

On DATE , Mr. PERSON and ORG filed their defence . They indicated that at the appropriate moment they would be seeking to have a medical examination of the plaintiffs .

The registry of ORG transmitted the file to the judge on DATE .

On DATE , the judge directed that the defence pleadings be communicated to the plaintiffs and that they are allowed DATE to reply to the interlocutory application by the " ORG .

In their reply filed on CARDINAL DATE , the plaintiffs took issue with the other side ’s submissions and claimed that the interlocutory application was a delaying tactic as Mr. PERSON , who was the brother of Mr. PERSON , had suffered no prejudice and had expressly waived his right to claim damages . In addition , they complained that they had not been notified until DATE of defence pleadings dating back to DATE and DATE , and informed ORG that Mr. PERSON had lodged a petition with ORG in connection with the length of the proceedings . The registry of ORG did not transmit this reply to the judge until DATE .

In the meantime on DATE , the judge had declared the interlocutory application admissible on the ground that no objection had been raised against it , and he directed that a summons be served on Mr. PERSON , who resided in GPE . A request for service in that jurisdiction was issued on DATE and service was effected on DATE .

On DATE , the above - mentioned judge , having received late notice of the objection to the application , decided nonetheless to maintain his decision of CARDINAL DATE . In a preliminary decision ( despacho saneador ) taken on DATE , he declared the main action admissible and drew up a list of uncontested facts ( especificaçao ) and a list of facts that had to be clarified at the hearing ( questionario ) .

The parties did not enter an appeal ( agravo ) against this decision . On DATE , DATE and CARDINAL DATE , they filed in the registry the list of witnesses they proposed to call .

Mr. PERSON and Mr. PERSON asked that CARDINAL of their witnesses , PERSON do GPE PERSON , be heard at PERSON , the seat of ORG within whose jurisdiction she was said by them to reside . The judge consented on DATE and a request for evidence on commission ( carta precatoria ) was issued on DATE .

On DATE , ORG set the hearing down for DATE . However , the ORG discovered soon afterwards that Mrs. PERSON did not reside within its jurisdiction ; on DATE , it forwarded the request to ORG , the competent court in this respect .

On DATE , the judge of ORG issed a direction to the effect that he would hear the witness on DATE . On DATE , the lawyer representing the first CARDINAL defendants sent the judge a telegram saying that he could not be present because of illness .

Mrs. PERSON failed to appear on DATE . DATE , the judge fined her and directed that she be heard on DATE . However , the lawyer once more notified the judge by telegram that he was still unwell , and the witness did not attend .

The judge thereupon adjourned the hearing of the witness until DATE ; Mrs. PERSON was finally examined on that date .

The evidence taken on commission was sent to ORG . The judge dealing with the case received it on DATE . DATE , he submitted the file to the CARDINAL other judges of the full ORG who certified it on DATE . On DATE , he directed that the hearings be held on DATE .

The hearings could not be held on DATE because of the absence of the lawyer representing the first CARDINAL defendants and of CARDINAL other persons , namely PERSON do PERSON , in respect of whom the summons as requested by PERSON indicated an address where she was not known , and a witness called by the plaintiffs , the police officer PERSON . The latter witness had drawn up the report on the accident ( see paragraphs CARDINAL and DATE above ) but had subsequently been transferred to GPE .

The judge therefore adjourned the hearings until DATE and then until DATE . He also issued a request for the evidence of the latter witness to be taken on commission in GPE , as he had been asked to do by counsel for Mr. PERSON and Mr. PERSON .

ORG summoned Mr. PERSON to appear on DATE , but on DATE neither he nor the lawyers representing the plaintiffs and the first CARDINAL defendants attended and the hearing was deferred until DATE . However on DATE , the judge was informed that the witness had again changed his residence and was serving in GPE ; the request for evidence on commission was therefore forwarded to ORG of that town .

ORG set the hearings down for DATE . On DATE , Mr. PERSON ’s superiors gave notice that the demands of public service ( razoes inadiaveis de servico publico ) prevented his attendance . Counsel on both sides also failed to appear .

Examination of the witness took place finally on DATE and the evidence on commission was remitted to ORG .

On DATE , because of the impending court vacation , the competent judge decided to bring the hearings forward to CARDINAL DATE . The hearings were duly held on DATE .

Judgment was given on DATE . ORG found for the plaintiffs ; it held that they were entitled to damages from the defendants within the limits of the statement of claim but subject to the proviso that the liability of the " Tranquilidade " Insurance Company could not exceed CARDINAL ORG . ORG awarded Mr. PERSON , compensation for repairs to the car and for pecuniary and non - pecuniary prejudice . In the case of Mr. GPE , on the other hand , it considered that the amount of the award could not yet be assessed , and it reserved the decision on quantum for the procedure for " execution " of the judgment ( liquidacao en execucao de sentenca ) in accordance with LAW para . CARDINAL of the Code of Civil Procedure . The judgment was notified in writing to the applicant on DATE .

ORG subsequently liquidated the costs and expenses , having varied its decision with regard to this point in DATE . The applicant was given notification thereof on DATE and then on CARDINAL DATE .

None of the parties appealed .

On DATE , Mr. PERSON sought " execution " of the judgment in ORG . Prior to that , he had received from ORG part of the sum claimed .

According to the evidence adduced before the ORG , ORG has not yet fixed the quantum of compensation to be awarded to the applicant .

The socio - political situation

The Government stressed that at the relevant time the NORP legal system had to operate under exceptional circumstances on account of the restoration of democracy in DATE , the need to consolidate the newly set up institutions and the repatriation of CARDINAL people from the former GPE . The domestic courts had to be reorganised in a period of serious economic recession . DATE , the volume of litigation almost doubled .

On DATE , there were CARDINAL judges in office , that is CARDINAL times fewer judges per inhabitant than the NORP average ; by DATE , the number had risen to CARDINAL . In DATE , court administration posts totalled CARDINAL , including MONEY vacant ; currently , on the other hand , CARDINAL of the CARDINAL existing posts are filled .

After the LAW was published in DATE , several measures relating to the administration of justice were taken . Notably , access to legal aid was improved , Acts governing the judiciary , ORG and the office of ORG were passed , a judicial re - organisation of the territory was carried out and ORG ( ORG ) was set up to train judges and judicial officers .

Situation at FAC

Against this general background , the population of ORG increased by DATE , partly because of the privileged position of the town on an important main road and partly because of the influx of people repatriated from the former GPE .

According to the statistics supplied by the ORG , the number of cases , both civil and criminal , before the chambers of ORG increased sharply : CARDINAL in DATE , CARDINAL in DATE , CARDINAL in DATE , CARDINAL in DATE and CARDINAL in DATE . As far as civil actions were concerned , the following figures were cited :

DATE - first chamber : CARDINAL second chamber : CARDINAL

The established posts of judge in the second and first chambers of ORG remained vacant for DATE ( from DATE to CARDINAL DATE ) and DATE ( DATE ) , respectively . On each occasion , the judge sitting in the other chamber was obliged to deputise during the period of vacancy ; in particular , the judge of the first chamber acted in this way in the applicant ’s case ( see paragraph CARDINAL above ) .

According to uncontested information furnished by Mr. PERSON ’s representative , the lawyers in ORG met on DATE and drew the attention of ORG and the Minister of Justice to the " chaotic " situation of ORG and asked for urgent measures to be taken , in particular the appointment of another permanent judge , CARDINAL seconded assistant judges , an investigating judge , a registrar and CARDINAL court officials whose posts were then vacant .

On DATE , they raised the matter again with the Minister of ORG . On DATE , they sent a telegram to ORG once more urging the appointment of judges and emphasising that it was " humanly impossible " for the CARDINAL judges in office to cope with the backlog of cases . On DATE , they made further representations to the Minister and ORG .

On DATE , the judge of the second chamber himself requested the relevant department of ORG to recruit a number of court officials as a matter of urgency .

Steps taken by the Government

The Government pointed out that from DATE to CARDINAL DATE ; the CARDINAL judges sitting on ORG were aided by a seconded assistant judge . Furthermore , as from DATE , ORG decided that CARDINAL judges from GPE should work on a part - time basis in in FAC .

The number of court officials varied as follows :

DATE : CARDINAL out of CARDINAL posts filled ; DATE : CARDINAL out of CARDINAL posts filled ; DATE : CARDINAL out of CARDINAL posts filled ; DATE : CARDINAL out of CARDINAL posts filled ; DATE : CARDINAL out of CARDINAL posts filled ; DATE : CARDINAL posts , all filled .

According to the ORG , ORG recommended especial speediness in the conduct of the applicant ’s case .


CASE OF JOHN MURRAY v. THE UNITED KINGDOM

No violation of Art. 6-1;No violation of Art. 6-2;Violation of Art. 6-1+6-3-c;Not necessary to examine Art. 14+6;Pecuniary damage - finding of violation sufficient;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings

ORG The applicant was arrested by police officers at TIME on CARDINAL DATE under LAW DATE . Pursuant to LAW Order DATE ( " the Order " ) ( see paragraph CARDINAL below ) , he was cautioned by the police in the following terms :

" You do not have to say anything unless you wish to do so but I must warn you that if you fail to mention any fact which you rely on in your defence in court , your failure to take this opportunity to mention it may be treated in court as supporting any relevant evidence against you . If you do wish to say anything , what you say may be given in evidence . "

In response to the police caution the applicant stated that he had nothing to say .

ORG On arrival at ORG at TIME , he refused to give his personal details to the officer in charge of the custody record . At TIME he was informed of his right to have a friend or relative notified of his detention and indicated that he did not require anyone to be so notified . At TIME he indicated that he wished to consult with a solicitor . At TIME his access to a solicitor was delayed on the authority of a detective superintendent pursuant to section CARDINAL ( CARDINAL ) of GPE ( Emergency Provisions ) Act DATE ( " LAW " ) . The delay was authorised for DATE TIME from the time of detention ( i.e. from CARDINAL p.m. on DATE ) on the basis that the detective superintendent had reasonable grounds to believe that the exercise of the right of access would , inter alia , interfere with the gathering of information about the commission of acts of terrorism or make it more difficult to prevent an act of terrorism ( see paragraph CARDINAL below ) .

ORG At TIME on DATE a police constable cautioned the applicant pursuant to LAW , inter alia , requesting him to account for his presence at the house where he was arrested . He was warned that if he failed or refused to do so , a court , judge or jury might draw such inference from his failure or refusal as appears proper . He was also served with a written copy of LAW ( see paragraph CARDINAL below ) .

In reply to this caution the applicant stated : " Nothing to say . "

ORG At TIME he was reminded of his right to have a friend or relative notified of his detention and stated that he did not want anyone notified . He was also informed that his right of access to a solicitor had been delayed . He then requested consultation with a different firm of solicitors . A police inspector reviewed the reasons for the delay and concluded that the reasons remained valid .

ORG The applicant was interviewed by police detectives at ORG on CARDINAL occasions during DATE . In total he was interviewed for TIME and TIME . At the commencement of these interviews he was either cautioned pursuant to LAW or reminded of the terms of the caution .

ORG During the first CARDINAL interviews on CARDINAL and CARDINAL DATE the applicant made no reply to any questions put to him . He was able to see his solicitor for the first time at TIME on DATE . At TIME he was interviewed again and reminded of the Article CARDINAL caution . He replied : " I have been advised by my solicitor not to answer any of your questions . " A final interview , during which the applicant said nothing , took place between TIME and TIME on DATE .

His solicitor was not permitted to be present at any of these interviews .

ORG In DATE the applicant was tried by a single judge , the Lord Chief Justice of GPE , sitting without a jury , for the offences of conspiracy to murder , the unlawful imprisonment , with CARDINAL other people , of a certain PERSON and of belonging to a proscribed organisation , ORG ) .

ORG According to the Crown , PERSON had been a member of the ORG who had been providing information about their activities to ORG . On discovering that PERSON was an informer , the IRA tricked him into visiting a house in GPE on DATE . He was falsely imprisoned in CARDINAL of the rear bedrooms of the house and interrogated by the IRA until the arrival of the police and the army at the house on DATE . It was also alleged by the ORG that there was a conspiracy to murder PERSON as punishment for being a police informer .

ORG In the course of the trial , evidence was given that when the police entered the house on DATE , the applicant was seen by a police constable coming down a flight of stairs wearing a raincoat over his clothes and was arrested in the hall of the house . PERSON testified that he was forced under threat of being killed to make a taped confession to his captors that he was an informer . He further said that on TIME CARDINAL January he had heard scurrying and had been told to take off his blindfold , that he had done so and had opened the spare bedroom door . He had then seen the applicant standing at the stairs . The applicant had told him that the police were at the door and to go downstairs and watch television . While he was talking to him the applicant was pulling tape out of a cassette . On a search of the house by the police items of clothing of PERSON were subsequently found in the spare bedroom , whilst a tangled tape was discovered in the upstairs bathroom . The salvaged portions of the tape revealed a confession by PERSON that he had agreed to work for the police and had been paid for so doing . At no time , either on his arrest or during the trial proceedings , did the applicant give any explanation for his presence in the house .

ORG At the close of the prosecution case the trial judge , acting in accordance with LAW , called upon each of the CARDINAL accused to give evidence in their own defence . The trial judge informed them inter alia :

" I am also required by law to tell you that if you refuse to come into the witness box to be sworn or if , after having been sworn , you refuse , without good reason , to answer any question , then the court in deciding whether you are guilty or not guilty may take into account against you to the extent that it considers proper your refusal to give evidence or to answer any questions . "

ORG Acting on the advice of his solicitor and counsel , the applicant chose not to give any evidence . No witnesses were called on his behalf . Counsel , with support from the evidence of a co - accused , FAC , submitted , inter alia , that the applicant ’s presence in the house just before the police arrived was recent and innocent .

ORG On DATE the applicant was found guilty of the offence of aiding and abetting the unlawful imprisonment of PERSON and sentenced to DATE imprisonment . He was acquitted on the remaining charges .

ORG The trial judge rejected PERSON ’s evidence ( see paragraph CARDINAL above ) as untruthful . He considered that

" the surrounding facts , including the finding of the tangled tape in the bathroom with the broken cassette case , and the fact that , on entering the house some appreciable time after they arrived outside it and some appreciable time after they first knocked on the door , the police found PERSON coming down the stairs at the time when all the other occupants of the house were in the living room , strongly confirm L ’s evidence that after the police knocked on the door PERSON was upstairs pulling the tape out of the cassette " .

ORG In rejecting a submission by the applicant that LAW and CARDINAL of the Order did not operate to permit the court to draw an adverse inference against him , where , at the end of the ORG case , there was a reasonably plausible explanation for the accused ’s conduct consistent with his innocence , the trial judge stated as follows :

" There can be debate as to the extent to which , before the making of FAC ( GPE ) Order DATE , a tribunal of fact in this jurisdiction was entitled to draw an adverse inference against an accused because he failed to give evidence on his own behalf , or to account for his presence at a particular place or to mention particular facts when questioned by the police . But I consider that the purpose of LAW and CARDINAL of the DATE Order was to make it clear that , whatever was the effect of the previous legal rules , a judge trying a criminal case without a jury , or a jury in a criminal case , was entitled to apply common sense in drawing inferences against the accused in the circumstances specified in DATE , and in LAW and CARDINAL ...

... I think it is clear that the purpose of LAW is to permit the tribunal of fact to draw such inferences against the accused from his failure to give evidence in his own defence as common sense requires .

The inference which it is proper to draw against an accused will vary from case to case depending on the failure of the accused to give evidence on his own behalf does not in itself indicate guilt . Nor does the failure to mention particular facts when questioned or the failure to account for presence in a particular place in itself indicate guilt . But I consider that the intendment of ... LAW is to enable the tribunal of fact to exercise ordinary common sense in drawing inferences against an accused ...

Therefore when I come to consider the case against the accused ... I propose to draw such inferences against [ him ] under LAW CARDINAL as ordinary common sense dictates . "

ORG

" I accept the submissions of counsel for the accused that as demonstrated by his replies in cross - examination , PERSON is a man who is fully prepared to lie on oath to advance his own interests and is a man of no moral worth whatever . I , therefore , accept the further submissions of counsel for the accused that , unless his evidence were confirmed by other evidence , a court should not act on his evidence , particularly against accused persons in a criminal trial ...

I now turn to consider the fifth count charging the false imprisonment of PERSON against the accused [ the applicant ] . For the reasons which I have already stated , I am satisfied that , as PERSON described in his evidence , [ the applicant ] was at the top of the stairs pulling the tape out of the cassette after the police arrived outside the house .

I am also satisfied , for the reasons which I have already stated , that [ the applicant ] was in the house for longer than the short period described by his co - accused , [ ORG ] . I am further satisfied that it is an irresistible inference that while he was in the house [ the applicant ] was in contact with the men holding L. captive and that he knew that PERSON was being held a captive . I also draw very strong inferences against [ the applicant ] under LAW by reason of his failure to give an account of his presence in the house when cautioned by the police on TIME DATE under LAW , and I also draw very strong inferences against [ the applicant ] under LAW by reason of his refusal to give evidence in his own defence when called upon by the ORG to do so .

Therefore I find [ the applicant ] guilty of aiding and abetting the false imprisonment of L. because , knowing he was being held captive in the house , he was present in the house concurring in L. being falsely imprisoned . As PERSON stated in NORP v. PERSON ... [ the applicant ] was ‘ near enough to give [ his ] aid and to give [ his ] countenance and assistance’ . "

ORG The applicant appealed against conviction and sentence to ORG in GPE . In a judgment of DATE , the court dismissed the applicant ’s appeal holding , inter alia :

" ... to suggest , with respect , that [ the applicant ] went into the house just as the police were arriving outside , immediately went upstairs , attempted to destroy a tape and then walked downstairs , and that this was the sum of his time and activity in the house defies common sense

We are satisfied that it can reasonably be inferred that [ the applicant ] knew before he came to the house that [ L. ] was being held captive there . With this knowledge he assisted in the false imprisonment by directing the captive from the bedroom where he had been held and by giving him the directions and admonition [ L. ] said . Accordingly [ the applicant ] aided and abetted the crime . We do not accept that [ L. ] would have been free to leave the house , if the police and army had been taken in by the pretence of the television watching and had departed without making any arrests . We have no doubt that [ L. ] remained under restraint in the living room when the police were there and if they had left , he would have remained a prisoner to await the fate that his captors would determine .

We consider that there was a formidable case against [ the applicant ] . He was the only one of the accused whom [ L. ] observed and identified as playing a positive part in the activities touching his captivity . [ L. ] ’s evidence therefore called for an answer . No answer was forthcoming of any kind to the police or throughout the length of his trial . It was inevitable that the judge would draw ‘ very strong inferences’ against him .

The ORG case deeply implicated [ the applicant ] in the false imprisonment of [ L. ] . "

ORG The DATE Order includes the following provisions :

" ( CARDINAL ) ORG A person shall not be committed for trial , have a case to answer or be convicted of an offence solely on an inference drawn from such a failure or refusal as is mentioned in LAW ) , CARDINAL ( CARDINAL ) , CARDINAL ( CARDINAL ) or CARDINAL ( CARDINAL ) .

( CARDINAL ) Nothing in this Order prejudices any power of a court , in any proceedings , to exclude evidence ( whether by preventing questions from being put or otherwise ) at its discretion . "

" Circumstances in which inferences may be drawn from accused ’s failure to mention particular facts when questioned , charged , etc .

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

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

( b ) on being charged with the offence or officially informed that he might be prosecuted for it , failed to mention any such fact , being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned , charged or informed , as the case may be , paragraph ( CARDINAL ) applies .

( CARDINAL ) ORG Where this paragraph applies

( a ) the court , in determining whether to commit the accused for trial or whether there is a case to answer ,

( b )

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

( i ) ORG draw such inferences from the failure as appear proper ;

( ii ) ORG on the basis of such inferences treat the failure as , or as capable of amounting to , corroboration of any evidence given against the accused in relation to which the failure is material .

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

" Accused to be called upon to give evidence at trial

( CARDINAL ) ORG At the trial of any person ( other than a child ) for an offence paragraphs ( CARDINAL ) to ( CARDINAL ) apply unless

( a ) the accused ’s guilt is not in issue , or

( b ) it appears to the court that the physical or mental condition of the accused makes it undesirable for him to be called upon to give evidence ; but paragraph ( CARDINAL ) does not apply if , before any evidence is called for the defence , the accused or counsel or a solicitor representing him informs the court that the accused will give evidence .

( CARDINAL ) ORG Before any evidence is called for the defence , the court

( a ) shall tell the accused that he will be called upon by the court to give evidence in his own defence , and

( b ) shall tell him in ordinary language what the effect of this LAW will be if

( i ) ORG when so called upon , he refuses to be sworn ;

( ii ) ORG having been sworn , without good cause he refuses to answer any question ; and thereupon the court shall call upon the accused to give evidence .

( CARDINAL ) ORG If the accused

( a ) after being called upon by the court to give evidence in pursuance of this LAW , or after he or counsel or a solicitor representing him has informed the court that he will give evidence , refuses to be sworn ,

or

( b ) having been sworn , without good cause refuses to answer any question , paragraph ( CARDINAL ) applies .

( CARDINAL ) ORG The court or jury , in determining whether the accused is guilty of the offence charged , may

( a ) draw such inferences from the refusal as appear proper ;

( b ) on the basis of such inferences , treat the refusal as , or as capable of amounting to , corroboration of any evidence given against the accused in relation to which the refusal is material .

( CARDINAL ) This Article does not render the accused compellable to give evidence on his own behalf , and he shall accordingly not be guilty of contempt of court by reason of a refusal to be sworn .

" Inferences from failure or refusal to account for presence at a particular place

( CARDINAL ) ORG Where

( a ) a person arrested by a constable was found by him at a place or about the time the offence for which he was arrested is alleged to have been committed , and

( b ) the constable reasonably believes that the presence of the person at that place and at that time may be attributable to his participation in the commission of the offence , and

( c ) the constable informs the person that he so believes , and requests him to account for that presence , and

( d ) the person fails or refuses to do so , then if , in any proceedings against the person for the offence , evidence of those matters is given , paragraph ( CARDINAL ) applies .

( CARDINAL ) ORG Where this paragraph applies

( a ) the court , in determining whether to commit the accused for trial or whether there is a case to answer , and

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

( i ) ORG draw such inferences from the failure or refusal as appear proper ;

( ii ) ORG on the basis of such inferences , treat the failure or refusal as , or as capable of amounting to , corroboration of any evidence given against the accused in relation to which the failure or refusal is material .

( CARDINAL ) Paragraphs ( CARDINAL ) and ( CARDINAL ) do not apply unless the accused was told in ordinary language by the constable when making the request mentioned in paragraph ( CARDINAL ) ( c ) what the effect of this LAW would be if he failed or refused to do so .

( CARDINAL ) ORG This Article does not preclude the drawing of any inference from the failure or refusal of a person to account for his presence at a place which could properly be drawn apart from this LAW .

ORG In the case of NORP v. PERSON ( sub nom . PERSON v. ORG ) , ORG considered the effect of LAW ( [ DATE ] CARDINAL Criminal Appeal Reports CARDINAL ) . In the leading judgment of ORG , Lord PERSON stated that :

" - at common law there was a divergence of view as to whether , and if so , when and in what manner a judge might comment on the failure of the accused to give evidence ;

- the Order intended to change the law and practice and to lay down new rules as to the comments which could be made and the inferences which could be drawn when the accused failed to give evidence at his trial ;

- under the Order the accused could not be compelled to give evidence but had to risk the consequences if he did not do so ; and

- the inferences which might be drawn from the accused ’s failure to give evidence in his own defence included in a proper case the drawing of an inference that the accused was guilty of the offences with which he was charged . "

ORG He added :

" ... This does not mean that the court can conclude simply because the accused does not give evidence that he is guilty . In the first place the prosecutor must establish a prima facie case - a case for him to answer . In the second place in determining whether the accused is guilty the judge or jury can draw only ‘ such inference from the refusal as appear proper’ . As Lord PERSON said in PERSON v. Public Prosecutor at p. CARDINAL :

‘ What inferences are proper to be drawn from an accused ’s refusal to give evidence depend upon the circumstances of the particular case , and is a question to be decided by applying ordinary common sense.’

There must thus be some basis derived from the circumstances which justify the inference .

If there is no prima facie case shown by the prosecution there is no case to answer . Equally if parts of the prosecution had so little evidential value that they called for no answer , a failure to deal with those specific matters can not justify an inference of guilt .

On the other hand if aspects of the evidence taken alone or in combination with other facts clearly call for an explanation which the accused ought to be in a position to give , if an explanation exists , then a failure to give any explanation may as a matter of common sense allow the drawing of an inference that there is no explanation and that the accused is guilty ... "

Lord PERSON in NORP v. PERSON ( cited above ) stated that the expression " a prima facie case "

" was intended to denote a case which is strong enough to go to a jury - i.e. a case consisting of direct evidence which , if believed and combined with legitimate inferences based upon it , could lead a properly directed jury to be satisfied beyond reasonable doubt ... that each of the essential elements of the offence is proved " .

ORG Even if a prima facie case is established , the trial judge has a discretion whether or not to draw inferences on the facts of the particular case . In the present case , ORG indicated that if a judge accepted that an accused did not understand the warning given in the caution required by Article CARDINAL or if he had doubts about it " we are confident that he would not activate Article CARDINAL against him " .

ORG In NORP v. Director of ORG , ex parte PERSON [ DATE ] CARDINAL Weekly Law Reports CARDINAL , Lord PERSON stated that it was necessary to analyse which aspect of the right to silence is involved in any particular situation , because

" ... In truth it does not denote any single right , but rather refers to a disparate group of immunities , which differ in nature , origin , incidence and importance , and also as to the extent to which they have already been encroached upon by statute . "

Amongst the group of immunities which were covered by the expression " right to silence " Lord PERSON identified the following :

" ( CARDINAL ) ORG A general immunity , possessed by all persons and bodies , from being compelled on pain of punishment to answer questions posed by other persons or bodies .

( CARDINAL ) ORG A general immunity , possessed by all persons and bodies , from being compelled on pain of punishment to answer questions the answers to which may incriminate them .

( CARDINAL ) ORG A specific immunity , possessed by all persons under suspicion of criminal responsibility whilst being interviewed by police officers or others in similar positions of authority , from being compelled on pain of punishment to answer questions of any kind .

( CARDINAL ) ORG A specific immunity , possessed by accused persons undergoing trial , from being compelled to give evidence , and from being compelled to answer questions put to them in the dock .

( CARDINAL ) ORG A specific immunity , possessed by persons who have been charged with a criminal offence , from having questions material to the offence addressed to them by police officers or persons in a similar position of authority .

( CARDINAL ) ORG A specific immunity ... , possessed by accused persons undergoing trial , from having adverse comment made on any failure ( a ) to answer questions before the trial , or ( b ) to give evidence at the trial . "

ORG LAW of GPE ( Emergency Provisions ) Act DATE provides as relevant :

" CARDINAL . Right of access to legal advice

( CARDINAL ) ORG A person who is detained under the terrorism provisions and is being held in police custody shall be entitled , if he so requests , to consult a solicitor privately .

( CARDINAL ) ORG A person shall be informed of the right conferred on him by subsection ( CARDINAL ) as soon as practicable after he has become a person to whom the subsection applies .

( CARDINAL ) ORG A request made by a person under subsection ( CARDINAL ) , and the time at which it is made , shall be recorded in writing unless it is made by him while at a court and being charged with an offence .

( CARDINAL ) ORG If a person makes such a request , he must be permitted to consult a solicitor as soon as practicable except to the extent that any delay is permitted by this section .

( CARDINAL) ORG An officer may only authorise a delay in complying with a request under subsection ( CARDINAL ) where he has reasonable grounds for believing that the exercise of the right conferred by that subsection at the time when the detained person desires to exercise it -

( d ) will lead to interference with the gathering of information about the commission , preparation or instigation of acts of terrorism ; or

( e ) by alerting any person , will make it more difficult -

i. ORG to prevent an act of terrorism , or

ii . ORG to secure the apprehension , prosecution or conviction of any person in connection with the commission , preparation or instigation of an act of terrorism ... "

ORG The delay must be authorised by a police officer of at least the rank of superintendent ( section CARDINAL , subsection ( CARDINAL ) ( a ) ) and the detained person must be told the reason for the delay ( subsection ( CARDINAL ) ( a ) ) . The maximum delay is TIME .

ORG The courts in GPE have taken the view that the provisions of the DATE Order should not be read subject to section CARDINAL of LAW above . In the case of NORP v. PERSON ( judgment of ORG of DATE ) , the trial judge rejected a submission to the effect that an adverse inference under LAW should not be drawn where the accused had asked for access to his solicitor but been interviewed by the police before his solicitor arrived to advise him . He noted that the DATE Order had come into force after section CARDINAL of LAW and considered that ORG had not intended that an inference dictated by common sense which was permitted by LAW should not be drawn because of the right to access to legal advice given by LAW .

In its judgment of DATE , ORG in GPE upheld the trial ORG ’s failure to respond to questions by the police before the receipt of legal advice from his solicitor . The court commented that a breach of LAW might in certain circumstances allow the trial judge in his discretion to refuse to draw an adverse inference under LAW .


Violation of Article 3 - Prohibition of torture

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

The applicant was born in DATE . He is currently serving a prison sentence .

On DATE the applicant , a tax police officer , was arrested . He was later remanded in custody on suspicion of banditry , robbery and abuse of power . His detention was subsequently extended on several occasions .

NORP The proceedings against the applicant and co - accused were surrounded by an extensive media campaign . In particular , on DATE the GPE DATE newspaper published an article which contained a detailed description by a journalist of the charges against the applicant and co - accused . According to the applicant ’s submissions , similar statements were repeated in other GPE newspapers ( « Московский Комсомолец » ) in DATE . The applicant asserted that the prosecutor had included these articles in the case file as evidence against him .

NORP In DATE the pre - trial investigation was completed and the case was referred to ORG .

On DATE ORG convicted the applicant as charged and sentenced him to thirteen years’ imprisonment . The court relied on statements of many witnesses , including co - defendants and victims , and forensic expert reports .

On DATE ORG , acting on appeal , quashed the judgment due to procedural defects and remitted the case for a fresh examination .

On DATE ORG convicted the applicant as charged and sentenced him to DATE and CARDINAL months’ imprisonment . During the trial the defendants , relying on their right to silence , refused to testify . The court based its findings on numerous witnesses’ depositions and submissions by the defendants during the pre - trial investigation .

According to the applicant , on DATE another GPE newspaper ( « Российский Курьер » ) published an article discussing the applicant ’s criminal case .

On DATE ORG of GPE , acting on appeal , upheld the judgment with minor changes .

From DATE to CARDINAL DATE the applicant was detained in facilities nos . GPE and IZ-CARDINAL/CARDINAL in GPE .

According to certificates issued on DATE by the acting facility director , and produced by the Government , the applicant was kept in CARDINAL cells . From DATE to CARDINAL DATE he was detained in cells CARDINAL . CARDINAL , CARDINAL , CARDINAL and CARDINAL . According to the ORG , the information on the number of inmates during the above period was not available as the documents had been destroyed .

Further , the ORG submitted that from DATE to CARDINAL DATE there had been QUANTITY detainees on average together with the applicant in cell no . CARDINAL , which was designed for CARDINAL persons . From CARDINAL January to CARDINAL DATE there were CARDINAL detainees on average in cell no . CARDINAL , which was designed for CARDINAL persons . From DATE to DATE there were CARDINAL detainees on average in cell no . DATE , which was designed for QUANTITY persons . From DATE to CARDINAL DATE there were CARDINAL detainees on average in cell no . CARDINAL , which was designed for CARDINAL persons . There were CARDINAL detainees on average in the same cell from DATE to CARDINAL DATE . From CARDINAL to CARDINAL DATE there were CARDINAL detainees on average in cell no . DATE , which was designed for QUANTITY persons . From DATE to DATE there were CARDINAL detainees on average in cell no . CARDINAL , which was designed for CARDINAL persons . Finally , from DATE to CARDINAL DATE there were CARDINAL detainees in cell no . CARDINAL , which was designed for CARDINAL persons .

The Government supported their assertions with copies of extracts from registration logs showing the number of detainees on DATE , CARDINAL and DATE , CARDINAL and DATE , DATE and DATE , CARDINAL and DATE , DATE and DATE , DATE and DATE , and CARDINAL and DATE . The registration logs did not include the detainees’ names . The Government did not provide the ORG with information on the cell measurements .

The applicant contested this information in part . He stated that from DATE he had shared cell no . CARDINAL , which measured QUANTITY . m , with CARDINAL detainees . There were CARDINAL detainees in the same cell as the applicant from DATE and from DATE to DATE , and they had to sleep in shifts . Further , according to the applicant , cell no . CARDINAL measuring QUANTITY m , in which he was kept from DATE to CARDINAL DATE and from DATE to DATE , housed CARDINAL detainees . From DATE to CARDINAL DATE the applicant was kept in cell no . CARDINAL , measuring QUANTITY . m , with CARDINAL other detainees .

From DATE to DATE and from DATE to CARDINAL DATE the applicant was kept in detention facility no . IZ-CARDINAL/CARDINAL in GPE , in cells nos . CARDINAL and CARDINAL respectively . According to the Government , in cell no . CARDINAL he was kept at different periods with CARDINAL to QUANTITY other detainees ; and in cell no . CARDINAL with CARDINAL to QUANTITY detainees .

The applicant stated that both cells measured QUANTITY m and there were QUANTITY persons there with him .

The Government , relying on the information provided by ORG , submitted , with respect to both facilities , that the cells had been ventilated naturally through the windows . Each cell also had a ventilation shaft . The cells had natural light and the metal shutters ( “ eyelashes ” ) were removed on DATE following a relevant directive of ORG . Furthermore there were QUANTITY artificial lights , as well as security lights . The partition around the toilet offered sufficient privacy .

The applicant disagreed with the ORG ’s description and submitted that the sanitary conditions had been unsatisfactory . The windows of the cells let almost no daylight in as they were covered with “ eyelashes ” , and due to insufficient daylight the applicant ’s eyesight deteriorated significantly during the period of detention . Toilet facilities were not separated from the living area , the cells had no ventilation and the air was always stuffy . Smoking was not restricted in the cells , which exposed the applicant , who is a non - smoker , to heavy tobacco smoke and made him feel sick . The cells were infected with bed - bugs and lice but the administration did not provide any insecticides .

The applicant produced written statements by PERSON , who had been detained in cell no . CARDINAL in detention facility ORG in DATE , and PERSON who had been detained together with the applicant from DATE to CARDINAL DATE in cell no . CARDINAL and from DATE to CARDINAL DATE in cell no . CARDINAL in detention facility ORG . They confirmed the applicant ’s account of the conditions of detention there , including information on cell measurements , number of detainees and sanitary conditions .

Section CARDINAL of ORG Federal Law no . CARDINAL-FZ of DATE ) provides that detainees should be kept in conditions which satisfy sanitary and hygienic requirements . They should be provided with an individual sleeping place and given bedding , tableware and toiletries . Each inmate should have CARDINAL four square metres of personal space in his or her cell . According to section DATE , administration of detention facilities shall meet the sanitary and hygienic requirements which secure the GPE health .

Relevant international documents and reports concerning the conditions in NORP penitentiary establishments can be found in the judgment of DATE in the case of NORP v. GPE , ( no . CARDINAL , § § DATE ) , judgment of CARDINAL DATE in the case of GPE v. GPE , ( no . CARDINAL/CARDINAL , § CARDINAL ) and judgment of CARDINAL DATE in the case of PERSON v. GPE ( no . CARDINAL , § § CARDINAL - CARDINAL ) .


The applicant is a NORP national of NORP origin , born in DATE and living in GPE , the GPE . She is represented before the ORG by Mr PERSON , a lawyer practising in GPE .

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

The applicant came to the GPE from GPE in DATE . She moved in with her brother , who had just divorced from his wife , and with his CARDINAL minor daughters , who were born in DATE , DATE , DATE , and DATE respectively .

The applicant took up the mother ’s role in the children ’s life . Various childcare organisations confirmed on a number of occasions that she had a good influence on the children and that she contributed positively to their development . The applicant ’s brother remarried in DATE but his wife was apparently not prepared to take responsibility for the children . After her brother ’s marriage , the applicant continued to live in his house in a separate room and continued to take care of his children .

In DATE ORG ( Arrondissementsrechtbank ) appointed the applicant ’s brother as guardian of the children , particularly in view of the fact that the applicant was taking care of the children as well . As from DATE the applicant was granted a subsistence allowance in the GPE .

On DATE the applicant filed a request with the head of police ( korpschef ) of the GPE - Rijnmond region for a residence permit ( vergunning tot verblijf ) for the purpose “ to take up activities as an employed person ” in the GPE ( as provided for in LAW ) . This request was rejected on DATE by the ORG Secretary of ORG ( ORG ) on the ground that the applicant did not qualify for a residence permit under the ORG rules since she was not in fact employed . Insofar as the applicant relied on LAW , the ORG Secretary held that , even assuming that there was family life between the applicant and her brother and his family , the decision not to grant her a residence permit in the GPE did not constitute an interference with this family file in that she was not deprived of any residence title .

On DATE the applicant filed a request for revision ( herziening ) with the ORG Secretary . As this request did not have any suspensive effect as to her expulsion , the applicant requested the President of ORG to issue an injunction on her expulsion pending the proceedings on her revision request .

On DATE the President of ORG rejected the request for an injunction . On DATE the applicant was expelled to GPE . She returned shortly after to the GPE . On DATE the applicant was expelled to GPE for a second time .

On DATE the ORG Secretary rejected the applicant ’s revision request . As regards the applicant ’s complaint under LAW , the ORG Secretary held that , insofar as the refusal to grant the applicant a residence permit would interfere with her right to respect for her family life with her brother and his children , this interference was justified under LAW in that the applicant ’s interests were outweighed by those of the GPE authorities .

On DATE the applicant returned to the GPE , this time having found employment with a company in GPE . On that basis she was granted on DATE a residence permit , valid until DATE , pursuant to ORG Directive CARDINAL/CARDINAL/EEC as implemented in GPE and LAW ( Vreemdelingencirculaire ) .

In DATE the applicant was dismissed from her job for having failed to report to work after a period of leave , thus obliging her employer to hire a person to replace her . The applicant had taken leave to travel to GPE in order to visit her husband , who is suffering from a serious mental disorder since DATE and who had undergone lengthy treatment in a mental institution . The applicant unsuccessfully sought to justify her extended absence from work by arguing that she was urgently required to attend to her husband .

After her dismissal , the applicant was granted unemployment benefits with a punitive reduction as she bore a certain responsibility for her dismissal . At about the same time the applicant also started receiving a pension from GPE in an amount of CARDINAL PERSON weekly . The applicant unsuccessfully tried to find employment in the GPE .

On DATE the ORG Secretary withdrew the applicant ’s residence permit . On DATE , the applicant filed an objection ( bezwaar ) with the ORG Secretary claiming entitlement to continued residency in the GPE under ORG regulations . The applicant further argued , inter alia , that the decision was contrary to LAW in that it deprived her of the enjoyment of her family life with her brother ’s family and particularly his children .

On DATE , the applicant moved out of her brother ’s house and took up residence in her own apartment . She remained in close contact with her brother ’s children and his oldest daughter , who was CARDINAL at the time , stayed with her .

On DATE , after the applicant had been heard on DATE before ORG for Aliens’ Affairs ( PERSON voor vreemdelingenzaken ) , the ORG Secretary rejected the applicant ’s objection . The ORG Secretary held that , as the applicant had lost her job on the basis of which she had been granted her residence permit , this permit could be withdrawn . Insofar as she relied on LAW in relation to her brother and his family , the ORG Secretary noted that she had moved to own accommodation , whereas , in the absence of any substantiation , it was not established that CARDINAL of the daughters of her brother was in fact living with her . In these circumstances , the ORG Secretary did not find that the decision at issue was contrary to the applicant ’s rights under LAW .

On DATE , the applicant filed an appeal with ORG sitting in GPE . On DATE , after a hearing held on DATE , ORG rejected the applicant ’s appeal . It agreed with the ORG Secretary ’s finding that the applicant could not claim any right to a residence permit under the rules of the ORG . As to the applicant ’s arguments under LAW , ORG noted that the applicant was living on her own and that the applicant had failed to substantiate her claim that one of her brother ’s children , who had come of age , was living with her . In these circumstances , ORG considered that the applicant ’s family life concerned family life between adult relatives . Referring to a decision taken by ORG on DATE ( Application no . CARDINAL ) , ORG found that there was no evidence of further elements of dependency involving more than normal emotional ties on the basis of which the applicant could invoke the protection afforded by LAW .

On DATE , the applicant filed a new request for a residence permit . No further information as to the proceedings on this request has been submitted .