The applicant , Mr PERSON , was born in DATE . He has CARDINAL nationalities : NORP and NORP . He lives in GPE , GPE .

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

In DATE a cheque drawn on the applicant 's closed account was cashed in a NORP bank . Subsequently , the police started to investigate the case and interviewed the applicant .

In DATE the applicant moved to GPE .

In DATE the police summoned the applicant , however , the summons was returned undelivered as the applicant had moved .

On DATE the prosecution service filed with ORG ( Sąd Rejonowy ) a bill of indictment against the applicant . He was charged with drawing and cashing the cheque on DATE .

On DATE a hearing was held . The applicant , despite having been properly summoned , failed to attend it . The court was informed that the applicant did not live at the address provided by him .

On DATE ORG ordered that the applicant be detained on remand for DATE . The decision was reasoned as follows :

“ The pre - trial detention is justified by LAW ( CARDINAL ) of LAW since the accused is avoiding the criminal justice system . ”

On DATE a “ wanted ” notice was issued concerning the applicant .

On DATE the applicant was taken into custody by the NORP police while crossing the NORP - Polish border .

On DATE ORG in GPE and ORG decided that the applicant should be remanded in custody in connection with CARDINAL other criminal proceedings pending against him .

The applicant appealed against the decision of DATE ordering his pretrial detention but his appeal was dismissed on DATE by ORG ( PERSON ) . The court gave the following reasons for its decision :

“ Among the complaints made in the appeal CARDINAL , concerning the wrong legal basis of the impugned decision is right . Admittedly , in the present case [ the decision ] should be based on LAW ( CARDINAL ) of LAW since the accused did not have his permanent place of residence in the country and anyway he did not properly inform the person conducting the investigation of his address but instead gave an address where he was not present and subsequently DATE despite being instructed to do so – did not notify his actual place of residence . Therefore , it was justified to consider that it was probable that the accused was hiding ( Article CARDINAL § CARDINAL ( CARDINAL ) of LAW ) . However , this mistake in the impugned decision did not have any influence on its contents as in fact ORG had based the decision on the risk that the accused would go into hiding .

As for the accused 's claim that the impugned decision did not refer to any evidence supporting the charges against him , it is not true since the reasoning of the impugned decision point to such evidence . It is obvious to everybody that in a situation where the pre - trial detention is based on the risk of flight , detention constitutes the only effective preventive measure . Therefore , the accused 's allegation concerning the failure to explain why a different preventive measure could not be applied is groundless .

As for the accused 's submissions made under LAW ( CARDINAL ) of LAW ( provision of care to his brother , renovation of a hotel and the risk of losses in the hotel ) they are groundless and unconfirmed . Therefore , they can not justify release from pre - trial detention .

Taking the above into account and in view of the fact that the pre - trial detention of PERSON is justified , and since his case does not disclose any grounds for release from pre - trial detention listed in LAW , the impugned decision is upheld . ”

On DATE ORG dismissed an application for release from detention made by the applicant on DATE . The decision dismissing the application referred to the fact that the criminal proceedings against the applicant had reached only “ the stage of jurisdictional proceedings ” . Moreover , the evidence collected in the case showed a significant probability that the applicant had committed the act with which he was charged . The detention was justified by LAW CARDINAL ( CARDINAL ) of LAW as the applicant had moved to GPE and had not notified his actual place of residence . There existed in his case a risk of flight . In addition , only detention on remand would “ secure the proper conduct of the proceedings ” . The applicant 's case did not disclose any of the grounds for release from pre - trial detention listed in LAW § CARDINAL of the Code of Criminal Procedure relating to the hardship suffered by the applicant or his family . Finally , certain effects of the applicant 's pretrial detention “ constituted the normal consequences of such a preventive measure ” .

The applicant 's appeal against this decision was dismissed on DATE .

On DATE the applicant attempted to commit suicide .

On DATE the applicant 's pretrial detention was prolonged until DATE . The decision repeated the grounds for pre - trial detention given in the decision of CARDINAL DATE . The applicant appealed against this decision , but his appeal was dismissed on DATE .

On DATE the applicant made a fresh application for release from detention to ORG but it was dismissed on DATE . The decision dismissing the applicant 's application repeated the grounds of the decision of CARDINAL DATE .

On DATE the applicant 's counsel applied to ORG for the applicant 's release from detention and asked that it be replaced with police supervision and seizure of his passport . On DATE the court dismissed the application . The decision dismissing the application repeated the grounds given in the decision of CARDINAL DATE .

On DATE the applicant 's pretrial detention was further extended until DATE . The reasons given for the extension repeated those in the decision of CARDINAL DATE .

On DATE the applicant was hospitalised in the ORG hospital .

On CARDINAL and DATE the applicant made new applications for release from detention to ORG but they were dismissed on DATE . The reasons given for the dismissal of the applications repeated those in the decision of CARDINAL DATE .

On DATE the ORG gave a judgment . The applicant was convicted as charged and sentenced to DATE imprisonment , suspended for DATE . On DATE ORG decided to release the applicant .

The applicant remained in detention on remand ordered by ORG in connection with another set of criminal proceedings against him . On DATE he was released .

Article CARDINAL § CARDINAL sets out the general grounds for imposition of the preventive measures . That provision reads :

“ CARDINAL . Preventive measures may be imposed in order to ensure the proper conduct of proceedings and , exceptionally , also in order to prevent an accused 's committing another , serious offence ; they may be imposed only if the evidence gathered shows a significant probability that an accused has committed an offence .

Article CARDINAL lists grounds for detention on remand . It provides , in so far as relevant :

“ CARDINAL . Detention on remand may be imposed if :

( CARDINAL ) there is a reasonable risk that an accused will abscond or go into hiding , in particular when his identity can not be established or when he has no permanent abode [ in GPE ] ;

( CARDINAL ) there is a reasonable risk that an accused will attempt to induce [ witnesses or co - defendants ] to give false testimony or to obstruct the proper course of proceedings by any other unlawful means ;

NORP If an accused has been charged with a serious offence or an offence for the commission of which he may be liable to a statutory maximum sentence of DATE imprisonment , or if a court of first instance has sentenced him to DATE imprisonment , the need to continue detention to ensure the proper conduct of proceedings may be based on the likelihood that a severe penalty will be imposed . ”

The Code sets out the margin of discretion as to the continuation of a specific preventive measure . Article CARDINAL reads , in so far as relevant :

“ CARDINAL . Detention on remand shall not be imposed if another preventive measure is sufficient . ”

Article CARDINAL , in its relevant part , reads :

“ CARDINAL . If there are no special reasons to the contrary , detention on remand shall be lifted , in particular if depriving an accused of his liberty would :

( CARDINAL ) seriously jeopardise his life or health ; or

( CARDINAL ) entail excessively harsh consequences for the accused or his family . ”

The DATE Code not only sets out maximum statutory time - limits for detention on remand but also , in LAW , lays down that the relevant court – within those time - limits – must in each detention decision determine the exact time for which detention shall continue .

Article CARDINAL , in a version applicable at the material time , sets out timelimits for detention .

“ § CARDINAL . During investigation the court which decides about detention on remand shall impose it for a period not longer than DATE .

§ CARDINAL . If the special circumstances of a case make it impossible to conclude the investigation within the time - limit provided in LAW , detention on remand may be prolonged , at the request of the prosecutor and when it is necessary , by the trial court , for DATE .

§ CARDINAL . The length of detention on remand until the delivery of a first judgment by the trial court shall not exceed DATE .

§ CARDINAL . Detention on remand may be prolonged for a fixed period exceeding the periods provided in LAW and CARDINAL by the appellate court ( ... ) at the request of the court dealing with a case ( ... ) – if it is necessary because of the suspension of criminal proceedings , the prolonged psychiatric observation of an accused , the prolonged preparation of an expert opinion , the collection of evidence in a particularly complicated case or abroad , a delay in the proceedings caused by an accused as well as other obstacles which could not be overcome ” .


Violation of Art. 6-1 (length);Remainder inadmissible;Non-pecuniary damage - financial award

The applicant was born in DATE and is currently serving a prison sentence at Penitentiary No . CARDINAL in ORG , the GPE region .

On DATE the applicant , along with CARDINAL others , was arrested on suspicion of hooliganism and extortion .

On DATE the applicant was charged with the above crimes and detained on remand .

By DATE the pre - trial investigation was completed and the applicant was given access to the case file . On DATE he finished studying it .

On DATE the investigator drafted the bill of indictment . On DATE , it was approved by the district prosecutor and referred to ORG ( hereafter “ the ORG ” ) for examination on the merits . The prosecution ’s case was that the applicant and CARDINAL other suspects were members of a gang , involved in several counts of extortion and hooliganism ( Articles CARDINAL and CARDINAL of the DATE LAW , respectively ) .

DATE and DATE ORG held QUANTITY hearings . On DATE it ordered an additional forensic assessment of the severity of the bodily harm suffered by PERSON ( CARDINAL of CARDINAL victims ) .

On DATE the trial judge resumed the hearing and , until DATE , conducted CARDINAL more sittings .

On DATE the applicant was acquitted of extortion but sentenced to CARDINAL years’ imprisonment for inflicting bodily harm ( Article CARDINAL of the Code ) . The prosecution appealed , challenging the court ’s reclassification of the imputed offences which led to the excessive mildness of the sentence . On DATE ORG upheld the conviction .

On DATE the ORG of ORG , following the protest ( an extraordinary appeal ) of the Deputy President of ORG ( hereafter “ the ORG ” ) , quashed these decisions and remitted the case for a fresh investigation .

By DATE the additional investigation was finalised and the applicant was given access to the case file . On DATE the investigator filed a bill of indictment against the applicant and his co - accused , charging them with extortion .

On DATE the new trial commenced before ORG , sitting with another judge , and on DATE , following QUANTITY hearings , ORG convicted the applicant and his co - defendants of inflicting bodily harm and unlawfully depriving another of liberty ( LAW ) . The court further amnestied and released CARDINAL of the convicts ; however , the applicant and CARDINAL others were left in custody . The prosecution challenged this decision relying on the same grounds as in its previous appeal ( paragraph CARDINAL above ) .

On DATE ORG returned the case file to ORG on account of its failure to provide the defendants with an opportunity to study the court records , as required by LAW .

On DATE ORG , having complied with that requirement , resubmitted the case to ORG . On DATE the latter quashed the decision of CARDINAL DATE and remitted the case to ORG ( hereafter “ the ORG ” ) .

On DATE ORG recommenced the trial and scheduled the first hearing for DATE . However , this sitting did not take place due to the absence of the defendants who had been released in DATE . The judge adjourned the trial pending the establishment of their whereabouts .

On DATE the proceedings concerning the defaulting defendants were disjoined from the applicant ’s case . The court fixed the next hearing for DATE , which subsequently was adjourned until DATE due to the victim ’s failure to appear .

DATE and DATE , ORG held CARDINAL hearings . On DATE , at an in camera hearing , the court sentenced the applicant to CARDINAL years’ imprisonment following his conviction for extortion . The period of detention on remand was included in the sentence . In his appeal the applicant ’s lawyer challenged the court ’s assessment of facts and law ; however , he did not raise the issue of the non - public examination of the case .

On DATE ORG ruled that the first instance court had failed to comply with certain procedural requirements regarding the defendants’ right to be duly notified about the conduct of the appeal proceedings . The court therefore decided to return the case file to ORG for this purpose .

On an unspecified date , the case was referred anew to ORG .

On DATE ORG upheld the decision of DATE in substance but mitigated the prison regime applicable to the applicant .


Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Isabelle Berro-Lefèvre

The applicant , Mr Mykola Mykolayovych Kocherga , is a NORP national who was born in DATE and lives in the town of GPE , GPE region , GPE .

The applicant worked in the mining industry for DATE and developed an occupational lung disease and disability confirmed by the medical commission . Under ORG Act ( “ LAW ” ) he was entitled to receive different types of payments from ORG ( “ the Fund ” ) . According to the applicant , the Fund provided him with the majority of payments and other social benefits due to him . However , the ORG refused to pay him compensation for non - pecuniary damage , which was equally guaranteed by LAW , on the ground that the ORG budget for DATE had suspended the relevant provision of LAW and did not foresee funds for this type of payment .

The applicant challenged the above refusal in the NORP ORG in DATE .

By its decision of DATE , the court found in part for the applicant and awarded him CARDINAL NORP hryvnias , MONEY at the material time .

The ORG appealed against the judgment , claiming that compensation for non - pecuniary damage was not automatic and that the applicant had to prove he had suffered such damage , which he had failed to do . It further contended that the applicant ’s claim was belated and that LAW had suspended the relevant provisions of LAW and did not foresee expenses for this type of payment .

On DATE ORG of Appeal quashed the decision of the first - instance court and found against the applicant on the basis that the applicant had acquired a right to compensation after LAW for DATE had already come into force and suspended the relevant provision .

The applicant appealed on points of law . He maintained that the insurance scheme under which he had claimed compensation was formed of extra - budget funds and could not depend on the ORG budget . He further contested the conclusions of the court of appeal about the relevant provisions of LAW being suspended .

On DATE ORG refused the applicant ’s request for leave to appeal on points of law .


CASE OF LOIZIDOU v. TURKEY (PRELIMINARY OBJECTIONS)

Question of procedure rejected (locus standi of the applicant Government);Preliminary objection rejected (abuse of process);Preliminary objection rejected (ratione loci);Preliminary objection joined to merits (ratione temporis)

Claudio Zanghi;Gaukur Jörundsson;N. Valticos;R. Pekkanen

ORG The applicant , a NORP national , grew up in GPE in northern GPE . In DATE she married and moved with her husband to GPE .

ORG She claims to be the owner of plots of land nos . DATE , CARDINAL , DATE , DATE , DATE , DATE , CARDINAL , CARDINAL , CARDINAL and CARDINAL in GPE in northern GPE and she alleges that prior to the NORP occupation of northern GPE on DATE , work had commenced on plot no . CARDINAL for the construction of flats , CARDINAL of which was intended as a home for her family . She states that she has been prevented in the past , and is still prevented , by NORP forces from returning to PERSON and " peacefully enjoying " her property .

ORG On DATE the applicant participated in a march organised by a women ’s group ( " Women Walk Home " movement ) in the village of Lymbia near the NORP village of PERSON in the occupied area of northern GPE . The aim of the march was to assert the right of NORP refugees to return to their homes .

Leading a group of CARDINAL marchers she advanced up a hill towards ORG in the NORP - occupied part of GPE passing the ORG Nations’ guard post on the way . When they reached the churchyard they were surrounded by NORP soldiers and prevented from moving any further .

ORG She was eventually detained by members of the NORP police force and brought by ambulance to GPE . She was released TIME , having been detained for TIME .

ORG In his report of CARDINAL DATE ( ORG document S/CARDINAL ) on ORG in GPE ( for the period DATE ) the Secretary - General of ORG described the demonstration of DATE as follows ( at paragraph CARDINAL ) :

" In DATE , considerable tension occurred over the well - publicized plans of a NORP women ’s group to organize a large demonstration with the announced intention of crossing the NORP forces cease - fire line . In this connection it is relevant to recall that , following violent demonstrations in the ORG buffer - zone in DATE , ORG had given assurances that it would in future do whatever was necessary to ensure respect for the buffer - zone ... Accordingly , ORG asked the Government to take effective action to prevent any demonstrators from entering the buffer - zone , bearing in mind that such entry would lead to a situation that might be difficult to control . The demonstration took place on DATE . CARDINAL women crossed the buffer - zone at ORG and some managed to cross the NORP forces’ line . A smaller group crossed that line at GPE . At PERSON , a large number of NORP women arrived shortly after the NORP Cypriots and mounted a counter demonstration , remaining however on their side of the line . Unarmed NORP soldiers opposed the demonstrators and , thanks largely to the manner in which they and the NORP police dealt with the situation , the demonstration passed without serious incident . Altogether , CARDINAL demonstrators were arrested by NORP police in the QUANTITY locations ; they were released to ORG DATE . "

ORG On DATE the Government of GPE deposited the following declaration with the Secretary General of ORG pursuant to LAW see paragraph CARDINAL below ) :

" The Government of GPE , acting pursuant to LAW ( article DATE ) of ORG hereby declares to accept the competence of ORG and to receive petitions according to LAW subject to the following :

( i ) the recognition of the right of petition extends only to allegations concerning acts or omissions of public authorities in GPE performed within the boundaries of the territory to which LAW is applicable ;

( ii ) the circumstances and conditions under which GPE , by virtue of LAW ) of the Convention , derogates from her obligations under the LAW in special circumstances must be interpreted , for the purpose of the competence attributed to the ORG under this declaration , in the light of ORG CARDINAL to CARDINAL of LAW ;

( iii ) the competence attributed to the ORG under this declaration shall not comprise matters regarding the legal status of military personnel and in particular , the system of discipline in the armed forces ;

( iv ) for the purpose of the competence attributed to the ORG under this declaration , the notion of a " democratic society " in paragraphs CARDINAL of Articles CARDINAL , CARDINAL , DATE and DATE ( article LAW , article DATE , article DATE , article LAW ) of the Convention must be understood in conformity with the principles laid down in LAW and in particular its Preamble and its LAW ;

( v ) for the purpose of the competence attributed to the ORG under the present declaration , Articles CARDINAL , CARDINAL and CARDINAL of the LAW must be understood as being in conformity with LAW ( article CARDINAL , LAW ) of the LAW .

This declaration extends to allegations made in respect of facts , including judgments which are based on such facts which have occurred subsequent to the date of deposit of the present declaration . This declaration is valid for DATE from the date of deposit with the Secretary General of ORG . "

ORG On DATE the Secretary General of ORG transmitted the above declaration to the other High Contracting Parties to the LAW indicating that he had drawn the NORP authorities’ attention to the fact that the notification made pursuant to LAW para . CARDINAL ( article CARDINAL ) of the LAW in no way prejudged the legal questions which might arise concerning the validity of GPE ’s declaration .

ORG In a letter dated CARDINAL DATE to the Secretary General , ORG of GPE to ORG stated that the wording of Article CARDINAL para . CARDINAL ( article CARDINAL ) of the LAW offered no basis for expressing opinions or adding comments when transmitting copies of the NORP declaration to the High Contracting Parties . He added :

" International treaty practice , in particular that followed by the Secretary - General of ORG as depositary to similar important treaties as the Statute of ORG or the covenants and conventions dealing with human rights and fundamental freedoms , also confirms that the depositary has to refrain from any comments on the substance of any declaration made by ORG . "

ORG On DATE the Deputy Minister for ORG of GPE wrote to the Secretary General stating inter alia that reservations to ORG may not be formulated on the basis of any provision other than LAW article CARDINAL ) . He added :

" Furthermore , LAW ) provides neither directly nor implicitly the possibility of formulating reservations similar to the reservations set out in the NORP declaration . The position can not be otherwise , for if reservations could be made on the basis of LAW ) , such a method of proceeding would undermine LAW ( article CARDINAL ) and would sooner or later destroy the very foundations of the LAW .

It follows that the NORP reservations , as they are outside the scope of LAW ( article CARDINAL ) must be considered as unauthorised reservations and , accordingly , as illegal reservations . Consequently , they are null and void and may not give rise to any effect in law . "

ORG In a letter of CARDINAL DATE ORG wrote to the Secretary General stating inter alia that " the reservations and declarations ... raise various legal questions as to the scope of the [ NORP ] recognition . The Government therefore reserves the right to return to this question in the light of such decisions by the competent bodies of ORG that may occur in connection with concrete petitions from individuals " .

ORG The Minister for ORG of GPE , in a letter of DATE to the Secretary General stated inter alia that " GPE reserves to itself the right to express ... its position in regard to ORG declaration " before the competent bodies of ORG . He indicated that " the absence of a formal and official reaction on the merits of the problem should not ... be interpreted as a tacit recognition by GPE of ORG reservations " .

ORG In a letter of CARDINAL DATE to the Secretary ORG of GPE stated inter alia as follows :

" In the view of ORG , the reservations and declarations which accompany the said recognition raise various legal questions as to the scope of the recognition . The Government therefore reserves its right to return to these questions in the light of future decisions by the competent bodies of ORG in connection with concrete petitions from individuals . "

ORG The Permanent Representative of GPE , in his letter of CARDINAL DATE to the Secretary General , stated that the wording of the declaration could give rise to difficult issues of interpretation as to the scope of the recognition of the right to petition . He considered that such issues fell to be resolved by ORG in dealing with concrete petitions . He added :

" It is therefore desirable to avoid any doubt as to the scope and validity of the recognition by individual States of this right which may be raised by generalised stipulations in respect of the context in which petitions would be accepted as admissible , interpretative statements or other conditionalities . "

ORG In a letter dated CARDINAL DATE to the Secretary General , ORG of GPE stated that the points contained in the NORP declaration were not to be considered as " reservations " in the sense of international treaty law . He pointed out , inter alia , that the only competent organ to make a legally binding assessment as to the validity of the conditions attaching to LAW article CARDINAL ) declaration was " ORG , when being seized of an individual application , and eventually ORG , when acting pursuant to LAW .

ORG , in a letter of CARDINAL DATE to the Secretary General , stated that the conditions and qualifications set forth in the declaration raised legal questions as to the system of protection set up under LAW . He added :

" GPE therefore reserves the right to express its position in regard to ORG declaration , at a later stage and before the competent bodies of ORG . Meanwhile the absence of a formal reaction on the merits of the problem should by no means be interpreted as a tacit recognition by GPE of ORG conditions and qualifications . "

GPE subsequently renewed her declaration under LAW article CARDINAL ) of ORG as from DATE . The declaration read as follows :

" The Government of GPE , acting pursuant to LAW ( article DATE ) of ORG hereby declares to accept the competence of ORG to receive petitions according to LAW following :

( i ) the recognition of the right of petition extends only to allegations concerning acts or omissions of public authorities in GPE performed within the boundaries of the national territory of GPE ;

( iv ) for the purpose of the competence attributed to the ORG under this declaration , Articles CARDINAL , CARDINAL , DATE and DATE ( article CARDINAL , article CARDINAL , article CARDINAL , article CARDINAL ) of the Convention shall be interpreted by giving special emphasis to ` those legal and factual features which characterize the life of FAC of DATE , p. CARDINAL ) in GPE , as expressed notably by LAW including its Preamble .

This declaration extends to allegations made in respect of facts , including judgments which are based on such facts which have occurred subsequent to CARDINAL DATE , date of the deposit of the previous declaration by GPE . This declaration is valid for DATE as from DATE . "

ORG A further renewal for a DATE period as from DATE reads as follows :

" The Government of GPE , acting pursuant to LAW ( article DATE ) of ORG , hereby declares to accept the competence of ORG , to receive petitions which raise allegations concerning acts or omissions of public authorities in GPE in as far as they have been performed within the boundaries of the national territory of GPE .

This declaration extends to allegations made in respect of facts , including judgments which are based on such facts which have occurred subsequent to CARDINAL DATE , date of the deposit of the first declaration made by GPE under LAW ) of the LAW . This declaration is valid for DATE from DATE . "

ORG On DATE , the NORP Minister for ORG deposited the following declaration with the Secretary General of ORG pursuant to LAW ) of the Convention ( see paragraph CARDINAL below ) :

" On behalf of ORG and acting in accordance with LAW article DATE ) of LAW , I hereby declare as follows :

The Government of the Republic of Turkey acting in accordance with LAW article DATE ) of LAW , hereby recognises as compulsory ipso facto and without special agreement the jurisdiction of ORG in all matters concerning the interpretation and application of the LAW which relate to the exercise of jurisdiction within the meaning of LAW , performed within the boundaries of the national territory of GPE , and provided further that such matters have previously been examined by the Commission within the power conferred upon it by GPE .

This Declaration is made on condition of reciprocity , including reciprocity of obligations assumed under LAW . It is valid for DATE as from the date of its deposit and extends to matters raised in respect of facts , including judgments which are based on such facts which have occurred subsequent to the date of deposit of the present Declaration . "

This declaration was renewed for DATE as from DATE in substantially the same terms .

ORG The Secretary General of ORG acknowledged deposit of the NORP declaration under LAW ( article DATE ) in a letter dated DATE and pointed out that her acknowledgement was without prejudice to the legal questions that might arise concerning the validity of the NORP declaration .

ORG In a letter of CARDINAL DATE to the Secretary General of ORG , ORG stated inter alia as follows :

" LAW ) of the said Convention is clear and to be strictly interpreted and applied . It provides that declarations of recognition of the ORG ’s jurisdiction may be subject to CARDINAL conditions only : ( a ) on condition of reciprocity , if they are not made unconditionally , and ( b ) for a specified period .

Consequently , the above - mentioned declaration of ORG which , in addition to these CARDINAL conditions , contains further restrictions or reservations , is , where the latter are concerned , incompatible with LAW article DATE ) and with LAW in general , as indeed was already pointed out in ORG letter of DATE in connection with ORG declaration under LAW article CARDINAL ) of the said LAW . It follows that these restrictions or reservations are null and void and may have no legal effect . "

ORG By letter of CARDINAL DATE the Government of GPE deposited the following declaration under LAW article CARDINAL ) of the Convention :

" On behalf of ORG , I declare , in accordance with LAW ) of ORG , that the Government of GPE recognizes , for the period beginning on DATE and ending on DATE , the competence of ORG to receive petitions submitted to the Secretary General of ORG subsequently to DATE , by any person , non - governmental organisation or group of individuals claiming , in relation to any act or decision occurring or any facts or events arising subsequently to DATE , to be the victim of a violation of the rights set forth in that Convention .

On behalf of ORG , I further declare that the competence of the Commission by virtue of LAW ) of the Convention is not to extend to petitions concerning acts or omissions alleged to involve breaches of the LAW or its Protocols , in which GPE is named as the Respondent , if the acts or omissions relate to measures taken by ORG to meet the needs resulting from the situation created by the continuing invasion and military occupation of part of the territory of GPE by GPE . "

ORG In a letter dated CARDINAL DATE , the Secretary General recalled that according to the general rules , the notification made pursuant to LAW para . CARDINAL ( article CARDINAL ) in no way prejudged the legal questions that might arise concerning the validity of the NORP declaration .

ORG The declaration was renewed in the same terms on DATE . By letter of CARDINAL DATE it was renewed for a further period of DATE without the restrictions ratione materiae set out above .

ORG GPE LAW ( article CARDINAL ) declaration of DATE , which has been renewed successively , reads as follows :

" On instructions from Her ORG Principal Secretary of ORG , I have the honour to declare in accordance with the provisions of LAW ) of ORG , signed at GPE on DATE , that the Government of GPE and GPE recognise , in respect of GPE and GPE only and not , pending further notification , in respect of any other territory for the international relations of which the Government of GPE are responsible , for DATE , and ending on DATE , the competence of ORG to receive petitions submitted to the Secretary General of ORG subsequently to DATE , by any person , non - governmental organisation or group of individuals claiming , in relation to any act or decision occurring or any facts or events arising subsequently to DATE , to be the victim of a violation of the rights set forth in that Convention and in the LAW thereto which was opened for signature at GPE on DATE .

This declaration does not extend to petitions in relation to anything done or occurring in any territory in respect of which the competence of ORG to receive petitions has not been recognised by the Government of GPE or to petitions in relation to anything done or occurring in GPE in respect of such a territory or of matters arising there . "


No violation of Art. 3 (substantive aspect);Violation of Art. 3 (substantive aspect);Violation of Art. 5-1;Violation of Art. 5-3;Remainder inadmissible;Non-pecuniary damage - award

Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger

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

DATE TIME on DATE the police , in the presence of the applicant , searched his house and found drugs allegedly belonging to him . After the search the applicant was taken to ORG of LOC and questioned about the matter . He was not allowed to leave the police station . According to the Government , at an unspecified time on DATE the applicant was detained under LAW of LAW ; no document concerning this has been made available to the ORG .

At TIME on DATE an investigator drew up a detention record , pursuant to LAW ( “ the ORG ” ) , regarding the applicant , who was suspected of drug dealing committed on DATE . The applicant was then placed in GPE ( Севастопольський міський ізолятор тимчасового тримання , “ the ORG ” ) .

According to the applicant , at the police station he was subjected to psychological pressure as a result of which he confessed to the possession of drugs and drug dealing .

On DATE he was charged with drug dealing . Subsequently , new charges were brought against him and joined to the case . In particular , he was charged with the illegal possession of drugs in DATE and during his detention in ORG no . CARDINAL ( NORP слідчий ізолятор DATE , “ the GPE ” ) .

By a decision of DATE ORG of Sevastopol ( “ the ORG ” ) held that it was necessary to make further enquiries about the applicant and decided to remand him in custody for DATE . On the same date a lawyer of the applicant ’s own choosing was given permission to take part in the proceedings .

On DATE ORG in LOC ( “ the FAC ” ) issued a certificate indicating that the applicant had been registered there since DATE and was suffering from “ chronic infiltrative tuberculosis ( “ TB ” ) of the left lung ( degeneration phase : CARDINAL ) ” , that he had undergone in - patient medical treatment from DATE and “ from DATE to DATE , when [ he had been ] discharged [ from FAC ] for a violation of therapeutic regimen ” , and that it was appropriate for him to be held in cells for persons suffering from an active form of GPE .

On DATE ORG remanded the applicant to the ORG pending his transfer to the GPE , without any indication of how long he would stay there . It noted that the applicant had been convicted of drugrelated offences on several occasions , that he was suspected of having committed a serious crime , and that he had continued to engage in similar criminal activities after having served a prison sentence in DATE . The court also took into account information obtained from the ORG about the applicant ’s health condition .

According to the applicant , on CARDINAL DATE he appealed against the remand order , stating in particular that he was not fit enough to remain in detention owing to the GPE . On DATE he lodged a complaint with ORG of Sevastopol alleging that from DATE his detention had been unlawful . There is no information as to the outcome of the appeal and complaint or indication that the complaint was received by the authorities .

On completion of the investigations the applicant ’s case was referred for trial to ORG , which , according to the applicant , held its first hearing in the case on DATE . According to the Government , this hearing was held on DATE .

On CARDINAL DATE the applicant was transferred to the GPE , but was periodically held at the ORG .

According to the applicant , on DATE he lodged a complaint with ORG and ORG , again alleging that his detention from DATE had been unlawful . No document concerning this has been made available to the ORG .

In a judgment of DATE the court found the applicant guilty of the illegal possession of drugs and drug dealing , sentenced him to DATE and CARDINAL months’ imprisonment and ordered the confiscation of all his property .

On DATE ORG ( “ the Court of Appeal ” ) quashed the judgment , finding that the first - instance court had not questioned the applicant on each of the charges against him , and it remitted the case to the latter court for fresh consideration . ORG also ordered the applicant to remain in detention , without providing reasons or a time - limit for the continued detention .

In DATE the applicant ’s representative unsuccessfully tried to institute administrative court proceedings against the trial court , mainly for its failure to try the applicant in due time .

On DATE ORG ordered ORG of the LOC to investigate the applicant ’s complaints of psychological and physical pressure applied to him by unspecified police officers . On DATE a prosecutor , having interviewed the police officers involved in the applicant ’s arrest and having studied his detention documents , found the complaints unsubstantiated .

In a judgment of DATE ORG convicted the applicant on CARDINAL counts of drug dealing and running a centre for the production and use of illicit drugs , while striking off CARDINAL count for want of proof of a crime . The applicant was sentenced to CARDINAL years’ imprisonment and the confiscation of all his property was ordered .

According to the parties’ last submissions , on DATE ORG upheld the first instance judgment . The applicant received a copy of the decision on DATE . There is no indication whether he appealed in cassation .

According to the ORG , during the criminal proceedings the courts and police heard CARDINAL witnesses and QUANTITY other suspects . CARDINAL forensic examinations were carried out .

Out of the CARDINAL court hearings scheduled in the course of the proceedings , CARDINAL were held , while CARDINAL were adjourned for unknown reasons , CARDINAL were adjourned due to both witness ’s failure to appear and the applicant ’s convoy ’s failure to bring him to the court , CARDINAL were adjourned owing to the applicant ’s convoy ’s failure to bring him to the court , CARDINAL were adjourned owing to the presiding judge ’s sickness , and CARDINAL each was adjourned owing to prosecutor ’s vacation or his procedural request , the applicant ’s studying the case file , both the presiding judge ’s sickness and the applicant ’s convoy ’s failure to bring him to the court .

During the proceedings , the trial court ordered the police to escort witnesses for the hearings on DATE , DATE and CARDINAL DATE . On the last - mentioned date the court adopted a separate resolution ( окрема постанова ) , finding that the ORG had failed to escort the applicant to the hearings on a number of occasions . The court also requested the city police and prosecutors to ensure the applicant ’s escort to hearings . The applicant failed to lodge CARDINAL of his appeals properly ; it is unspecified how that delayed the proceedings .

On DATE the applicant informed the ORG that he had an active form of ORG and was placed in a special cell . There is no indication whether the ORG had a medical practitioner on its staff .

On DATE the ORG confirmed the applicant ’s diagnosis and specified that he required a prolonged course of chemotherapy .

On CARDINAL DATE the applicant was admitted to the TB ward of the GPE and was prescribed “ H , R , Z , E ” ( anti - TB drugs , see paragraph CARDINAL below ) and some “ vitamins and hepatoprotectors ” .

On DATE the applicant fell down and injured his left knee while being transported to the ORG . He complained about it to the ORG administration . A doctor confirmed the injury and recommended , without specifying the degree of urgency , that the applicant consult a phthisiatrician .

When brought back from the ORG to the GPE on DATE , the applicant was examined by the GPE doctor , but raised no complaints about his health . According to a medical certificate of the GPE doctor of DATE , " during the examination the applicant did not raise any complaints as he wished to get to his cell sooner " .

On DATE he complained to the GPE doctor of severe left knee pain . On DATE the doctor performed an X - ray examination and concluded that the knee cap was broken and displaced . According to the applicant , the ORG provided him with no medical treatment in respect of that injury .

On DATE he was examined by a doctor at the traumatology centre of ORG no . CARDINAL ( “ the hospital ” ) and his knee was immobilised by a plaster cast .

On DATE the applicant complained to the ORG administration about the injury to his left knee and subsequently was seen by an ambulance doctor .

According to the applicant , on CARDINAL DATE the ORG ignored an ambulance referral for a medical examination of his knee and instead sent him to the GPE . There is no indication he was advised such medical examination at the time .

On DATE an X - ray of the applicant ’s left knee revealed a closed fracture of the left knee cap , with some positive developments .

On DATE the phthisiatrician of the TB Centre concluded that the applicant had “ infiltrative TB of the upper part of the left lung ( Category CARDINAL ) ” ; it was recommended that he continue medical treatment for DATE with “ H , R , Z , E ” .

On DATE the traumatologist , having examined an X - ray of the applicant ’s knee , found a healed fracture of the left knee cap and a contracture of the knee . According to him , the applicant did not need a surgical operation . The applicant was prescribed “ a course of exercise therapy , PERSON , and massage ” . On DATE the applicant was again seen by the traumatologist , who noted that he had already been prescribed adequate treatment in respect of the injury .

On DATE the phthisiatrician found that the applicant had “ infiltrative [ TB ] of the lungs ( Category CARDINAL ) ” and recommended to continue taking “ H , R , Z , E , and ORG . The doctor indicated the appropriate dosage , frequency and duration for the drugs and also recommended some “ vitamins and hepatoprotectors ” .

On DATE a doctor examined the applicant ’s left knee and found no grounds for outpatient treatment or hospitalisation .

On DATE a traumatologist examined the applicant and diagnosed him with a consolidated fracture of the left knee cap and a moderately expressed contracture of the left knee joint . He was prescribed medication and exercise therapy .

On DATE and CARDINAL DATE the phthisiatrician at FAC examined the applicant , finding “ post - TB residual changes and fibrosis in the upper part of the lungs ( Category CARDINAL.CARDINAL ) ” . He recommended that the applicant undergo repeated courses of anti - relapse therapy , whose particulars were not given . According to the applicant , the doctor ’s conclusions of DATE were not reliable for unspecified reasons .

On DATE the applicant was discharged from the TB ward , which was unlawful , according to him , because he was still sick .

On DATE the applicant began a course of antirelapse therapy . He agreed to take the medication , yet questioned the effectiveness of the therapy .

On DATE a panel of doctors from ORG , having studied the applicant ’s medical records , including the CARDINAL drawn up by the traumatologist on DATE , found that the left - knee fracture had healed , that there were no lasting residual effects of the injury , and concluded that the knee treatment provided by the PERSON hospital had been timely and thorough .

While detained at the ORG , the applicant asked for medical assistance on DATE , CARDINAL and DATE and CARDINAL DATE , DATE , DATE and CARDINAL DATE , and DATE . On each occasion the ORG administration called the ambulance , whose doctor came to see the applicant . His chest was X - rayed on DATE and DATE , DATE , DATE and DATE , and CARDINAL and DATE , DATE and DATE . The applicant underwent sputum tests on DATE , DATE and CARDINAL May , DATE , DATE and CARDINAL and DATE , DATE and DATE , DATE , DATE , DATE , DATE , CARDINAL and DATE and CARDINAL DATE , and DATE and DATE , all of which were negative . On DATE he underwent urine and blood analyses . According to the ORG , during his detention in the GPE the applicant received a high calorie diet and he was provided with some additional food . The applicant submitted that his food was poor and that there was no evidence he received medication and special food .

During his detention the applicant and his representatives lodged a number of complaints with the police , prosecutors , and courts alleging , inter alia , that the applicant was not receiving proper medical treatment . On CARDINAL DATE ORG Office refused to institute criminal proceedings against the ORG duty officer in that regard . The applicant did not appeal . According to the Government , after DATE the applicant did not complaint about his state of health . According to the applicant , he complained but his complaints were not dealt with .

After a number of inquiries , on DATE ORG Office of PERSON refused to institute criminal proceedings against the head and the physician of the ORG medical unit , the GPE governor , and the head traumatologist of the PERSON hospital . Apparently , the applicant did not appeal against that decision .

In DATE the applicant ’s mother instituted court proceedings against the prosecutors for their negligence in respect of her son ’s GPE infection . It appears that the proceedings are pending before an appellate court .

Article CARDINAL provides :

“ Persons in respect of whom taking into custody is imposed as a preventive measure are kept in places of detention pending trial , i.e. , pre - trial detention centres [ SIZOs ] . In some cases , these persons may be kept in places for detained persons [ ORG ] ... for not DATE . If transportation of remanded persons to the pre - trial detention centre ... is impossible within this time - limit because of the long distance or lack of appropriate roads , they may be kept in places for detained persons for DATE . ”

According to the order , there are CARDINAL main and CARDINAL sub - categories for the recording of those who have GPE or may be affected by it . For instance , patients with chronic TB of various localisation , with or without discharge of bacteria , fall into DATE . Patients with residual changes of various localisation after the ORG is cured fall into LAW .

Under section CARDINAL , GPE treatment is to be administered in specialised anti - TB institutions and to consist of CARDINAL phases : main chemotherapy and rehabilitation . The main chemotherapy course , an extended , uninterrupted course of treatment , consists of intensive and supportive treatment stages with “ first - line ” anti - tuberculosis antibiotics ( isoniazid , rifampicin , streptomycin , pyrazinamide and ethambutol or “ H , R , S , Z , E ” ) .

Under section CARDINAL , to obtain maximal results , medical or surgical treatment of pulmonary GPE is to be implemented in conjunction with individualized hygiene plan and regime ( complete bed rest , part - time bed rest or a training regime ) . Treatment is to be followed by rehabilitation , including curative exercise , massage and physiotherapy .

According to section CARDINAL . , the diet of a patient with GPE infection must take into account his living and working conditions , general state of the organism , its reactivity , nature of any injury , and complications from other organs . The diet should be balanced , yet rich in proteins , minerals , and vitamins , in particular the C , E and B groups . The intake of carbohydrates should be within the norms , or lower if the patient is overweight .

According to section CARDINAL , pulmonary GPE patients of all categories are to be regularly monitored . For instance , Category CARDINAL patients are to be monitored using the following tests : sputum DATE for DATE , then DATE ; sensitivity to the anti - TB drugs and PERSON DATE at the beginning and once DATE . The patients with Category CARDINAL TB should undergo X - ray at least every DATE during DATE of monitoring .

Regular mandatory examinations to determine the effectiveness of the ORG treatment and timely registration of side effects and their treatment as set out in Table QUANTITY of the LAW should be carried out .

According to the Table CARDINAL , if such anti - TB drugs as isoniazid , rifampin , pyrazinamide , and ethambutol ( “ H , R , Z , E ” ) are administered , examinations and interviews of the patient , plus biochemical and common blood analysis , should be undertaken . The patient should also be examined by a neuropathist and ophthalmologist .

The pertinent parts of the Rules read as follows :

“ ... Scope and application

CARDINAL ORG apply to persons who have been remanded in custody by a judicial authority or who have been deprived of their liberty following conviction .

Health care

Prison authorities shall safeguard the health of all prisoners in their care . ...

Organisation of prison health care

CARDINAL ORG services in prison shall seek to detect and treat physical ... illnesses or defects from which prisoners may suffer .

CARDINAL NORP All necessary medical , surgical and psychiatric services including those available in the community shall be provided to the prisoner for that purpose .

Medical and health care personnel

CARDINAL Every prison shall have the services of CARDINAL qualified general medical practitioner .

CARDINAL Arrangements shall be made to ensure at all times that a qualified medical practitioner is available without delay in cases of urgency .

CARDINAL.CARDINAL Where prisons do not have a full - time medical practitioner , a part - time medical practitioner shall visit regularly . ...

Duties of the medical practitioner

CARDINAL NORP The medical practitioner or a qualified nurse reporting to such a medical practitioner shall see every prisoner as soon as possible after admission , and shall examine them unless this is obviously unnecessary . ...

CARDINAL When examining a prisoner the medical practitioner or a qualified nurse reporting to such a medical practitioner shall pay particular attention to : ...

b. diagnosing physical ... illness and taking all measures necessary for its treatment and for the continuation of existing medical treatment ; ...

PERSON isolating prisoners suspected of infectious or contagious conditions for the period of infection and providing them with proper treatment ;

CARDINAL NORP The medical practitioner shall have the care of the physical ... health of the prisoners and shall see , under the conditions and with a frequency consistent with health care standards in the community , all sick prisoners , all who report illness or injury and any prisoner to whom attention is specially directed . ...

Health care provision

CARDINAL Sick prisoners who require specialist treatment shall be transferred to specialised institutions or to civil hospitals , when such treatment is not available in prison .

CARDINAL Where a prison service has its own hospital facilities , they shall be adequately staffed and equipped to provide the prisoners referred to them with appropriate care and treatment . ”

The pertinent parts of the Report read as follows :

“ ... Only the prisons setting has seen some progress in terms of decreased TB prevalence , TB notification rates , and TB mortality ( although combined [ ORG ] ’s figures for mortality show an increase of PERCENT since DATE ) . These achievements are a result of progress made over DATE to improve nourishment of inmates , increase drug supply and laboratory reagents , and provide better overall conditions in prisons ( as a result of reductions made in the number of inmates ) . Also , severely ill patients have been released from the prison setting ... However , [ Multiple Drug Resistant TB ] in prisons is extremely high , at PERCENT ... It is evident that since ... DATE , the reported cases of ... GPE ... have seen a steady increase until DATE with subsequent gradual decline as a result of steps taken by Government , including to double / quadruple the GPE budget in CARDINAL vis à vis CARDINAL/CARDINAL/CARDINAL budgets . However , it should be noted that TB incidence in GPE remains CARDINAL of the highest in the LAW region and is CARDINAL times higher than the ORG average ... The project did expand the laboratory network in the civil and the prison settings and with additional support from international and local donors and partners , as well as through Government own efforts , this network will be further improved . ”

NORP The domestic law pertinent to the issue of the lawfulness of the applicant ’s detention is summarised in the judgments in the cases of GPE v. GPE ( no . CARDINAL/CARDINAL , § § DATE , ORG CARDINALII ( extracts ) ) ; PERSON v. GPE ( no . CARDINAL , § DATE , DATE ) ; and PERSON v. GPE ( no . CARDINAL/CARDINAL , § CARDINAL , DATE ) .

Other domestic and international material concerning conditions of detention and treatment of GPE infection in detention facilities can be found in the judgments in the cases of ORG v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE , and PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , CARDINAL DATE ) .


CASE OF TINNELLY & SONS LTD AND OTHERS AND McELDUFF AND OTHERS v. THE UNITED KINGDOM

Violation of Art. 6-1;Not necessary to examine Art. 14+6-1;Not necessary to examine Art. 8;Not necessary to examine Art. 13+8;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

Tinnelly & Sons Ltd ( hereinafter “ ORG ” ) , the first applicant , is a contracting firm based in GPE with experience in the demolition and dismantling of industrial plants as well as asbestos stripping . Mr PERSON , the second applicant , is the firm ’s managing director and his brother , Mr PERSON , the third applicant , is its company secretary . The second and third applicants are NORP .

Mr PERSON , Mr PERSON , PERSON and PERSON , the remaining applicants ( hereinafter “ LOC ) , are all self - employed joiners based in GPE . They are all NORP .

The applications lodged with the Commission stem from a similar factual background and administrative practice and raise the same issues under the Convention . The facts pertaining to the complaint lodged by PERSON are set out in LAW ; the facts pertaining to the CARDINAL complaints are set out in LAW .

Sometime in DATE ORG ( hereinafter “ ORG ” ) considered inviting tenders for the demolition of the ORG “ A ” Power Station and the purchase of the resulting scrap . The PERSON firm expressed interest in working on the contract and following contacts with ORG submitted a tender on DATE . PERSON , which was on a ORG list of approved contractors , submitted the lowest tender . Having regard to their competitive bid as well as to the firm ’s track record in demolition work an executive committee of ORG , meeting on DATE , recommended that the firm ’s bid be accepted . It would appear that ORG officials were satisfied both with the financial backing which ORG had secured as a condition of being awarded the contract and its capacity to undertake and complete the work . Having regard to the frequency of its contacts with ORG around this time , PERSON proceeded on the understanding that it had been awarded the contract .

NORP However , on DATE a revised recommendation was drawn up recommending that the contract be given to another firm which had submitted the second lowest offer in response to the invitation to tender , namely the GPE - based firm of ORG ( hereinafter “ NORP ” ) . The contract was subsequently awarded to PERSON with a starting date of CARDINAL DATE . PERSON received a letter on DATE confirming that it had not been awarded the contract . The firm was not informed of the reasons for this decision .

Subsequently , on CARDINAL DATE , PERSON submitted a detailed quotation to PERSON for the removal of asbestos from the GPE site . PERSON contacted the firm with a view to discussing the terms of a subcontract . A meeting was arranged at ORG ’s GPE office for CARDINAL DATE . However , the firm was informed on DATE of the planned meeting that PERSON had decided to cancel it . PERSON learnt subsequently from the managing director of PERSON that PERSON ’s employees were not considered acceptable by ORG on security grounds and for that reason the subcontract was withheld from it . In its particulars of complaint submitted to ORG ( see paragraph CARDINAL below ) , PERSON maintained that , according to PERSON , PERSON had been the favourites to obtain the ORG contract but were not awarded it since the trade unions at ORG would not allow employees of PERSON access to the site and “ there was no way they were going to have IRA sympathisers working with them ” .

Tinnelly considered that it had been refused the contracts with ORG and PERSON because of the perceived religious beliefs and/or political opinions of its management and workforce and for that reason had been the victim of unlawful discrimination . It relied on the information gleaned from PERSON ( see paragraph CARDINAL above ) . PERSON lodged complaints on CARDINAL DATE and CARDINAL DATE with ORG for GPE ( “ the ORG ” ) , the statutory body charged under LAW ( GPE ) Act DATE ( “ the LAW ” ) , with the duty to promote equality of opportunity in the province and to eliminate religious and political discrimination in the employment sector and related areas ( see paragraphs CARDINAL–CARDINAL below ) . Since DATE the ORG has been known as ORG ( see paragraph CARDINAL below ) .

The ORG served particulars of the allegations of unlawful discrimination on ORG on CARDINAL DATE . ORG replied on DATE stating that the contract at ORG had been awarded to PERSON on account of that company ’s proven experience in the safe dismantling of power stations and of handling asbestos and for that same reason ORG did not want the asbestos - stripping part of the contract sub - contracted to another firm . ORG ’s letter also referred to ORG ’s failure to take steps to execute the guarantee submitted at the time of tendering for the ORG contract , which explained the frequent contacts between the CARDINAL sides at the material time ( see paragraph CARDINAL above ) .

The ORG , acting under the powers given to it under section CARDINAL of the CARDINAL Act ( see paragraphs CARDINAL and CARDINAL below ) , agreed to investigate ORG ’s complaint that there were suspicions that ORG ’s decision had been brought about by sectarian pressure exerted by the trade unions at ORG . ORG took the view that the ORG had no jurisdiction to investigate the complaint on the ground that the protection afforded by section CARDINAL did not extend to corporate bodies such as ORG . ORG sought an order of prohibition to prevent the ORG from investigating the complaint as well as a declaration that no valid complaint had been made and that the ORG had no jurisdiction to investigate it . This argument was dismissed by Mr Justice PERSON in ORG of GPE on DATE . ORG did not appeal against that decision and the ORG proceeded with the investigation .

On DATE a senior official of ORG made a formal request to the Secretary of ORG for GPE via a civil servant in ORG ( hereinafter “ the ORG ” ) for the issue of a certificate under section CARDINAL of LAW to the effect that the decision not to grant PERSON the contract in question was “ an act done for the purpose of safeguarding national security or of protecting public safety or public order ” ( see paragraph CARDINAL below ) . The Secretary of ORG issued the certificate on CARDINAL DATE . By virtue of section ORG ) of the CARDINAL Act , the certificate was conclusive evidence that the act was done for the stated purpose ( see paragraph CARDINAL below ) .

The ORG commenced judicial review proceedings in ORG of GPE before Mr Justice PERSON seeking an order of certiorari to quash the Secretary of ORG ’s decision to issue the section CARDINAL certificate and a declaration that that decision was null and void . Lawyers for the ORG contended that the certificate was procured and issued in bad faith , was irrational , unfair and unreasonable and made for an improper collateral purpose , namely to prevent the ORG from investigating a complaint of unlawful discrimination . ORG was made a notice party to the proceedings .

In the course of the judicial review proceedings , the ORG sought an order for discovery of a number of documents in the possession , custody or power of the Secretary of ORG . Mr Justice PERSON made the order on DATE and the Secretary of ORG complied by producing a list of documents . However , some documents were sealed or covered up on the ground that their production , except as sealed or covered up , would be injurious to the public interest . These documents were covered by a public - interest immunity certificate issued by the Secretary of ORG on CARDINAL DATE . He stated in that certificate , inter alia :

“ CARDINAL . To enable me to be satisfied that ... genuine reasons did exist in [ signing the section CARDINAL certificate ] , I considered it necessary for me to know the information upon which ORG claimed to have acted . I also considered that I should independently obtain information to enable me to confirm , so far as possible , that national security and/or public order was , in fact , endangered in that case .

ORG is responsible for the provision ... of an uninterrupted supply of electricity in GPE . To fulfil this responsibility it must have available to it all relevant information which may reduce or avoid the risk of disruption to the supply ... for any unlawful reason including acts of terrorism , and in case of the [ relevant ] contract , I believe that it did obtain such information . The disclosure of certain information which was obtained by ORG would reveal to those who are engaged in unlawful activities including acts of terrorism , the nature of that information , the extent of the information known about them and possibly the source from which it originated . This could endanger life and would make it more difficult to obtain such information in the future ... [ D]isclosure of the process by which this information is obtained could impair the effectiveness of that process .

I am of the view that if the independent information which I obtained in the present case were to be disclosed it could enable terrorist organisations to know the nature and extent of the information known about them and would aid them in their unlawful acts ...

I have read CARDINAL documents which are produced to me . Each of the said documents contains in part information of the kind described in paragraph QUANTITY CARDINAL ... I am of the opinion that for the safeguarding of national security and the protection of public safety and public order , it would be contrary to the public interest that any of the said documents should be disclosed in these proceedings except as sealed and covered up to prevent disclosure of the aforesaid information . ”

The ORG did not dispute the Secretary of ORG ’s objection to the production of these documents on public interest grounds .

On DATE , the FEA – again in the context of the challenge to the section CARDINAL certificate – applied for an order for discovery of documents by ORG , a notice party to the judicial review proceedings ( see paragraph CARDINAL above ) . An order to produce a list of documents was made on DATE . Those documents were disclosed by ORG with the exception of CARDINAL documents relating to the decision not to award the contract to ORG . ORG objected to the production of the latter documents on the ground that it would be injurious to the public interest .

The ORG challenged this objection and on DATE the Secretary of ORG issued a further public - interest immunity certificate . It repeated the substance of paragraph CARDINAL of the earlier certificate of CARDINAL DATE ( see paragraph CARDINAL above ) and continued :

“ CARDINAL . I have read what I am informed are copies of CARDINAL documents held by ORG ... These documents reveal the methods used by ORG to gain information which is required to protect the electricity system , the sources of the information and the information obtained .

I have also read what I am informed are copies of a memorandum dated DATE ... TIME of a [ meeting ] dated DATE and a letter of CARDINAL DATE ...

For the reasons I have given in the foregoing paragraphs , I am of the opinion that for the safeguarding of national security , the protection of public safety and public order , none of the documents referred to in paragraph CARDINAL or their contents should be admitted in evidence in these proceedings because they fall within the class of communication which I have described and because of the information they contain . I am also of the opinion that for these reasons the document referred to in paragraph CARDINAL should not be admitted in evidence except as sealed and covered up . ”

On DATE Mr Justice PERSON considered an interlocutory application by the ORG challenging the Secretary of ORG ’s public - interest immunity certificate of CARDINAL DATE . He prefaced his judgment with comments to the effect that , because he had seen certain documents which had not been seen by all sides , he was of the opinion that it might be better if a different judge determined the substantive judicial review application .

Mr Justice PERSON noted that the documents already disclosed to the court indicating the grounds on which ORG based their decision not to award the ORG contract to the PERSON firm gave rise to a prima facie case of bad faith on the part of ORG and the advisers to the Secretary of ORG . Mr Justice PERSON expressed the provisional view that the original reasons put forward by ORG for the refusal of the contract did not refer to security grounds , and the same reasons were repeated for a considerable time ( see paragraph CARDINAL above ) . He noted that there were inconsistencies in the alleged ground for refusing the contract : at CARDINAL point the firm had been described as having experience of handling asbestos and having carried out subcontract demolition work on power stations , and later ( after security information had been received ) as having “ no experience ” in demolishing power stations . He recalled that PERSON had alleged that PERSON , the successful tenderer , had said that the applicants were the favourites to obtain the contract but were not given it “ as the unions at GPE would not allow it ” and that the unions had said that “ there was no way they were going to have IRA sympathisers working with them ” .

As to the documents whose discovery was sought , Mr Justice PERSON stated :

“ If this ORG is of the opinion that a document was not disclosed because it bore on national security and could not be edited so as to eliminate the national security element I would not go on to balance the interests of national security against the interests of justice since this balance is for the Government to exercise …

If the ORG is of the opinion that a document has no ‘ national NORP implications , but has other ‘ public interest’ implications and is very likely to assist and give substantial support to the ORG on the issues involved in this case , it will go on to consider the other ‘ public interest’ objections to production and will go on to balance the competing interests of protection of the public interest in public safety or public order on the one hand and of the public interest in the administration of justice on the other hand DATE namely , that it is and is seen to be fair and open that a party is not deprived of documents which are likely or very likely to assist or substantially support his case … ”

He continued :

“ I reject any contention that a ORG Judge in GPE is incompetent to decide whether a document might involve national security or whether a class of documents might involve national security . I do accept , however , that if disclosure of a document might imperil national security , it is not for the ORG to balance national security against other considerations of public interest , but that it is for the relevant Minister of the ORG to do so … ”

Mr Justice PERSON ordered that the CARDINAL documents for which a “ class claim ” had been made should be produced for inspection by the court , and that the CARDINAL documents which had been partly sealed or covered up should also be produced for inspection .

On DATE , having read the documents covered by the certificate of CARDINAL DATE ( which were not disclosed to the ORG or the applicants ) , Mr Justice PERSON held that none of the withheld documents assisted the application for judicial review . He accepted the claim for public interest immunity in respect of documents CARDINAL to CARDINAL , which related to confidential record checks carried out by ORG ( “ the ORG ” ) on PERSON and on persons employed by it . He considered that documents CARDINAL to CARDINAL , internal ORG documents , could be partly disclosed and that document DATE could be disclosed as a whole . He concluded :

“ I am satisfied that the claim for immunity from production for all these documents was made in good faith . But in my opinion no person could reasonably say that for the safeguarding of national security or for the protection of public safety or public order documents CARDINAL should not be produced or , if admissible , should not be admissible in evidence – so long as my directions are carried out about covering over portions of some of them . ”

Mr Justice PERSON granted the Secretary of ORG leave to appeal on CARDINAL DATE . In so doing , he held :

“ It is implicit in my ruling that I have rejected the ‘ ORG claim set out in the certificate of the Secretary of ORG , as I take the view that it is too wide and too vague . It could involve , for example , protection of documents internal to ORG which emanated from a private detective agency or organisation within ORG acting as a private police force , independently of and outside the control of the ORG . A court might hold that no reasonable person could claim that national security was endangered by the production of documents emanating from such an agency or organisation . Such an agency or organisation might be a positive danger to national security . Such a ‘ ORG claim could involve , for example , protection of documents emanating from employees of ORG about contractors and their employees based on gossip or hearsay or malice or sectarianism . Such documents might have existed in the present case , if the affidavit of PERSON is true .

The CARDINAL documents of which I have ordered production could have been caught by this wide and vague formula ... ”

At the substantive hearing on DATE , the judicial review application was dismissed . Mr Justice PERSON found , inter alia , as follows :

“ The issue of course before me is not whether the Secretary of ORG was right or wrong in signing the certificate , but whether he had jurisdiction to do so , which is basically accepted by the parties , and whether the events leading up to his decision are such that his decision to certify can or can not stand .

I must also remember that the process of judicial review is ill - suited to the resolution of disputed issues of fact , and particularly so when the primary issue is not the determination of what occurred , but the motives of those engaged in the relevant acts ...

Even taking ORG ’s case at its highest , [ CARDINAL particular letter ] was misleading because it made no mention of the true reason , according to them , i.e. the withdrawal of the contract from ORG on security considerations ...

It is a sad fact of life that in spite of the patient endeavours of the ORG there still remain those in GPE who hold deep hostility to the objectives and activities of the Agency .

I have no doubt whatever that such attitudes existed within ORG in DATE , and possibly still do , and I am afraid that the assurances by [ ORG officials ] did nothing to persuade me to the contrary , when viewed against their overt activities in this case .

Paradoxically this view gives credence to part of the evidence of [ the ORG official ] on the important issue of the true reason for the withdrawal of the contract from ORG .

It is virtually inconceivable that a man who had risen to the eminence of Chairman of an important public body like ORG would conceal under a veil of untruths the making of what he saw as a perfectly justified and reasonable decision based on his concern for the safety and continued operation of a vital public utility , and in effect to lay a false trail to mislead those investigating the matter .

CARDINAL factors persuade me that it is a possibility that he might act thus :

( CARDINAL ) The attitude of quite unjustified mistrust and hostility towards the ORG which I have referred to , and which might greatly exaggerate his fears of an investigation ; and

( CARDINAL ) NORP The problems arising from pursuing the uncharted course of obtaining a section CARDINAL certificate ...

Therefore while ORG for DATE failed to acknowledge the true reason for its decision , according to it , and gave untrue reasons which would in normal circumstances lead to the inevitable conclusion that the true reason was illegal or so shameful as to merit concealment , the factors I have referred to leave me in a state of mind where I can accept the proposition that the security factor may have been the factor uppermost in [ the ORG official ’s ] mind when he made his decision .

It must also be said that information did come to ORG from ORG at DATE and DATE . I do not know its exact nature , and of the apparently CARDINAL applications for clearance , I have only seen CARDINAL replies , of which a number ( I think CARDINAL ) appear not to give security clearance . And exactly when they arrived is difficult to say , but I think they may well have arrived in DATE which was around the time of the apparent change of heart .

I do not know the exact nature of that security information , although I have a general picture , but I do know enough about it to realise that it may have been significant ...

... It is impossible not to harbour suspicions since many of the actions taken by ORG give rise to suspicions and will do so in the mind of any reasonable person . Among other suspicious factors is indeed the fact that PERSON was assured that PERSON was still an acceptable contractor during the course of the hearing before him of the privilege claim . That was even more particularly so when coupled with the removal , after his judgment , of their names as prospective tenderers . Moreover , the second application for authorisation to [ recommend ] McW. on the basis of superior experience appears to have been an undoubted attempt to lay a false trail among the documents and records of ORG .

In spite however of all those matters I have referred to , I am nonetheless not satisfied that the application for the section CARDINAL certificate by ORG was an abuse of the process as it is understood by the parties , nor that it was an act of fraud in the legal sense on the part of ORG .

I am not satisfied that the security information received by [ the ORG official ] was not the deciding factor in the decision to withdraw the contract from ORG . While ORG ’s actions and attitudes can be roundly criticised ... , and are such that they leave considerable doubt in the matter , nevertheless they of themselves do not vitiate the making of the section CARDINAL certificate and do not in the event satisfy me that the application was in legal terms a fraudulent one .

I believe that it is possible that [ the ORG official ] was unsure of his position when he received the ORG ’s response to the application for routine clearance of ORG ’s workers , and that rather than face up to the possible problems arising from a withdrawal of the contract on security grounds he decided to follow the course he did , i.e. to choose PERSON on the spurious grounds of their greater experience in the demolition of power stations .

He no doubt expected that ORG would never discover that they were the lowest tenderers and when they did so and involved the ORG , it would seem that a decision was made to continue and elaborate upon the original false premise for choosing McW.

CARDINAL of the great problems which is quite beyond my power to resolve is that PERSON insists that it previously had always received security clearance for workers in highly sensitive installations ...

I have not been permitted to inspect the ORG response to the individual requests for clearance . I do not understand why persons who may have got clearance earlier , may have been refused in this case ... However , having regard to the evidence given and to the unchallenged affidavit of the Secretary of ORG about the effect of the ORG response , and indeed to those parts of the documents which I have been permitted to see , I must accept that , in response to some individuals at least , the response was unfavourable , and this may have been to such a degree as to justify the view that a serious security risk was involved if the contract was granted to PERSON ...

... [ The ] heart of the matter was whether security information had in fact become available to ORG at the relevant time which would have justified its decision to withdraw the contract .... Had it transpired that no such information existed , then the application for the section CARDINAL certificate would have been exposed as bogus ...

As I have already indicated , I have not seen that information in detail , but I am bound to accept the judgment of the Secretary of ORG that the information was such as to justify the decision . And I may add that those parts of the documents that I have seen confirm that view . When it was confirmed that such security information was made available , it was in my view reasonable for the ORG to accept that the ORG application was made in good faith ...

[ The civil servant in ORG ( see paragraph CARDINAL above ) ] ... could not have been expected to undertake an investigation similar to that which the ORG might have undertaken ... There was no machinery by which he could bring in other parties . There was no machinery by which he could interrogate ORG , or compel it to produce documents to him , except by the use of what one might describe as moral persuasion . Once he accepted that the application was made in good faith for genuine reasons , then he was bound to support it whatever view he might have taken of the follies and inconsistencies which were apparent .

It is clear from this hearing that he was not going to get any acknowledgement from ORG or any of its officials that anything untoward had occurred , and he had no remit , as I indicated , to consult with any other person who might have alleged to the contrary , and if he had , he had no machinery of procedures to resolve the consequent dispute .

I find it difficult to imagine how he could have adopted an inquisitorial role and cross - examined [ an ORG official ] about the contradictions and inconsistencies in ORG ’s case . All that he could do was to record what seemed to him to be relevant and to try to gather the facts by interview with [ the ORG official ] ...

It seemed to me that the ORG acted with the utmost propriety in pursuing its own investigations into the central issue of security , and that the application to the Secretary of ORG was only processed further when the ORG were satisfied that there was a genuine security consideration involved in the case ...

The Secretary of ORG [ in his affidavit to the court ] goes on to say ` having seen [ the ORG report on which [ the civil servant ’s ] submission had been based ] I was quite satisfied that there would have been a genuine risk to national security , public safety or public order , if the contract had been awarded to PERSON and that notwithstanding that a different reason had been given by ORG for not awarding the contract to the FAC , he felt satisfied that he could accept the assurance by ORG that the security issue had been the fundamental one from the outset ...

It would be impossible for any court to hold that this was not a tenable view reached after due consideration of the submissions presented to him , and having regard to the fact that the consideration of what constitutes a risk to national security , public safety or public order , are matters very much within the exclusive competence of the Secretary of ORG to determine ...

Much of the criticism of the [ Department ] arose from the fact that it did not appear to act in the role of court or tribunal , and to sift the evidence and follow up inconsistencies . As I have indicated , the procedure used was necessarily quite unsuitable for determining the real motives which lay behind the decision taken .

However , once it is accepted that it was appropriate for ORG to seek a section CARDINAL certificate to justify its withdrawal of the contract from ORG , and that the procedures followed were lawful , and did not fall short of any legal requirement , and add to that the finding that the procedures were followed in good faith and with proper attention and consideration , then clearly it is not open to the court to interfere by way of judicial review .

It is not the function of judicial review to re - try issues . ”

The judge expressed sympathy for the position of the ORG and the civil servants at the ORG , and again criticised the ORG for misleading the other parties to the dispute over DATE . He concluded :

“ However , I am satisfied that there was sufficient evidence , honestly and competently presented to the Secretary of ORG in accordance with reasonable procedures , and carefully considered by the Secretary of ORG to justify the decision taken by him , which decision is therefore unimpeachable in this court . ”

Senior Counsel advised the ORG that an appeal against the decision of CARDINAL DATE would not succeed . The section ORG ) certificate being valid , the applicant ’s complaint to the ORG did not receive further investigation and hence no settlement attempts were effected or county court proceedings taken under LAW ( GPE ) Act DATE .

In or about DATE the applicants were informed by a building contractor that he had obtained a contract with ORG ( hereinafter “ the ORG ” ) to build premises at the site of ORG in ORG GPE . The contractor invited the applicants to tender for the joinery subcontract . Their tender was accepted and they were advised by the contractor that they could start the work , subject to security clearance from the ORG .

The applicants supplied their names , addresses and dates of birth to the contractor , who forwarded them to ORG . DATE they were informed that they had not been granted security clearance and that they could not therefore be awarded the subcontract . The recommendation that security clearance be refused emanated from ORG of ORG and Personnel ( “ the DFP ” ) , a government department in GPE , which based its recommendation on information supplied by the ORG ( including officers of its Special Branch ) .

The applicants have no criminal convictions of any kind , except for minor motoring offences . They state that they are not and never have been involved in any criminal or terrorist activity and know of no good reason why they should have been refused security clearance . They believe that they were discriminated against by the ORG on the grounds of religious belief or political opinion . In broad terms they would be perceived as having nationalist views , although they are not members of any political party and are not engaged in any form of political activity . They wrote to the ORG through their solicitors requesting an explanation as to why they had been refused clearance to be employed on this contract , but the ORG , following re - examination by the DFP Security Branch of the information originally supplied by the police , refused to provide an explanation .

The applicants sought the assistance of ORG for GPE and in DATE they made a ORG complaint to ORG ( “ the NORP ” ) alleging that the contractor and the ORG had discriminated against them contrary to LAW . The applicants had in the past been stopped and mistaken by members of the security forces for different persons of the same name , and they suspected that this was a case of mistaken identity .

The contractor resisted the complaint on the grounds that he had been willing to offer employment to the applicants but that the ORG had not been prepared to give them security clearance . By notice of appearance of CARDINAL DATE , the ORG resisted the complaint on the grounds that it had not done anything which would constitute an act of unlawful discrimination under the LAW and , in the alternative , that “ any act of the respondent in relation to the applicant was an act done for the purpose of safeguarding national security , and thus any such act is not an act to which the [ CARDINAL LAW ] or ORG ( GPE ) Act DATE apply ” .

In relation to the first ground relied upon by the ORG , the ORG applied for an interlocutory hearing on the questions whether it should be dismissed from the proceedings , whether the applicants sought employment from it within the meaning of the LAW and whether in the circumstances it could have discriminated against the applicants contrary to section CARDINAL of the LAW ( see paragraph CARDINAL below ) . On TIME of the interlocutory hearing , CARDINAL DATE , the ORG withdrew its application . On CARDINAL DATE the ORG ordered the ORG to provide discovery of all relevant documents relating to the matter . It also ordered the ORG to provide further particulars of its case , inter alia , requiring the ORG to specify the national security grounds relied upon in relation to the applicants .

On DATE , the Secretary of ORG for GPE issued a certificate pursuant to section ORG ) of the CARDINAL Act to the effect that the decision to refuse the applicants’ admission to the site of the contract was done for the purpose of safeguarding national security . Counsel advised the applicants that the effect of issuing the certificate was to bar the ORG from determining the complaint in the ORG favour . In view of the fact that an award of costs could have been made against the applicants if they had unreasonably proceeded to a hearing in the face of the certificate , they withdrew their application , which was accordingly dismissed by the ORG on DATE .

ORG has referred to the difficulties experienced by the NORP community in GPE since the partition of the island of GPE in its GPE v. the GPE judgment of DATE ( Series A no . CARDINAL ) and in particular at page CARDINAL , § DATE , with further reference to ORG .

The Fair Employment ( GPE ) Act DATE ( “ the LAW ” ) is , according to its preamble , “ An Act to establish an agency with the duties of promoting equality of opportunity in employments and occupations in GPE between people of different religious beliefs and of working for the elimination of discrimination which is unlawful by virtue of the LAW ... ” .

The Act applies only to the employment field and related areas . Section CARDINAL(CARDINAL ) of the DATE Act makes it unlawful for an employer to discriminate against a person , in relation to employment in GPE , where that person is seeking employment , inter alia , by refusing or deliberately omitting to offer that person the employment for which he applies . Under section CARDINAL of the CARDINAL Act , it is unlawful for a person who has power to confer on another a qualification , which is needed for his engagement in employment or occupation , to discriminate against him by refusing or deliberately omitting to confer that qualification . The agency referred to in the preamble to LAW was ORG ( “ the ORG ” ) .

The ORG , known since DATE as ORG , is a statutory body established under LAW . It has the duty to promote equality of opportunity in GPE and the elimination of religious and political discrimination . Until DATE , if the ORG , following an investigation , reached the conclusion that there had been unlawful discrimination , it had power to attempt a settlement of the matters in dispute or if necessary to commence proceedings in ORG against the relevant party in order to recover damages or secure injunctive relief on behalf of the victim .

Following amendments made by ORG ( GPE ) Act DATE ( “ the DATE LAW ) , applicable to the complaints brought by the McElduffs ( see paragraphs DATE and CARDINAL above ) , the remedy available to a person who has been a victim of discrimination contrary to LAW is to make a complaint to ORG , which is empowered to make various orders and recommendations , including an order for financial compensation “ of any amount corresponding to any damages [ which ] could have been ordered ... if the complaint had been a claim in tort ” , up to a maximum of MONEY ( GBP ) . The amended legislation enables an intending complainant to request a party who has allegedly discriminated to respond to a questionnaire on the reasons for that party ’s conduct . The questionnaire and any reply are admissible in proceedings before the ORG , which may draw adverse inferences from a party ’s failure to reply .

Section CARDINAL of the DATE Act provides as follows :

“ ( CARDINAL ) This Act shall not apply to an act done for the purpose of safeguarding national security or of protecting public safety or public order .

( CARDINAL ) A certificate signed by or on behalf of the Secretary of ORG and certifying that an act specified in the certificate was done for a purpose mentioned in subsection ( CARDINAL ) shall be conclusive evidence that it was done for that purpose . ”

Discrimination on the grounds of sex is prohibited in GPE by LAW DATE , which contains provisions analogous to section CARDINAL of the CARDINAL Act , supplemented by ORG ( Northern Ireland ) Order DATE , section CARDINAL(CARDINAL ) .

In PERSON v. Chief Constable of ORG , Case CARDINAL/CARDINAL [ DATE ] ECR CARDINAL , a reference for a preliminary ruling by ORG for GPE to ORG of ORG in a sex discrimination case , ORG had regard to LAW and held the certification provisions to infringe Community law in so far as they permitted a certificate issued by the Secretary of ORG to be treated as conclusive evidence and hence prevent an industrial tribunal from considering the merits of the complainant ’s case .

Domestic law was in consequence amended by LAW DATE ( SI DATE no . CARDINAL ) so as to disapply the certification provisions in relation to complaints of sex discrimination in employment - related matters . In the course of the

parliamentary debate which preceded enactment of the amending legislation , the Minister of ORG for GPE distinguished the factors considered relevant to the issue of section DATE certificates from those taken into account in the issue of similar certificates under sex discrimination legislation :

“ [ In sex discrimination cases ] a person ’s gender can not be taken into account when a Minister certifies that something is necessary on the grounds of national security ... However , ... it would not be appropriate or necessary to follow a similar approach in relation to religion and political opinion ...

First , unlike gender , issues of religion and political opinion can have a particularly intimate bearing on matters of national security in GPE . Accordingly , there are issues that it might be appropriate and necessary to take into account when certain matters of national security arise . This is both unfortunate and regrettable , but it is the hard reality in GPE ...

Secondly , [ ORG law ] does not cover the issues of religion and political opinion . The Government took steps to amend the sex discrimination legislation when it became clear that it was in conflict with our NORP obligations . There is no such conflict in the case of section DATE , so it is a perfectly permissible and appropriate provision . ”

Since the entry into force of LAW DATE , ORG is now able to determine whether a particular act was taken on grounds of national security or not , subject to appropriate safeguards of the interests of national security , public safety and public order . Following the preliminary ruling of ORG of ORG in the above - mentioned PERSON case , ORG hearing the plaintiff ’s complaint took evidence from CARDINAL witness in camera for reasons of national security .

Since DATE , racial discrimination has been made unlawful in GPE by virtue of the enactment of ORG ( GPE ) Order DATE ( SI CARDINAL no . CARDINAL ) . The order mirrors broadly the race relations legislation which was adopted in DATE for other parts of GPE . However section CARDINAL of the order contains a certification provision equivalent to section CARDINAL of LAW DATE . No such certification provision has been included in LAW DATE although section CARDINAL ) of that LAW states that nothing in the LAW makes unlawful any act done for the purpose of safeguarding national security .

ORG ( “ the SACHR ” ) , an independent statutory body established by section CARDINAL of LAW DATE to advise the Secretary of ORG for GPE on the adequacy and effectiveness of the law in preventing discrimination on the grounds of religious belief and political opinion in GPE , presented to ORG on DATE a wide - ranging review of fair employment and other social and economic policies relevant to employment equality in GPE .

ex parte hearing conducted by the president or vice - president of ORG or another

chairman competent to hear fair employment cases . If it is at all possible , the person affected should be entitled to challenge the documentation and information relied on by the respondent authority .

The applicants drew attention in their memorial to ORG PERSON , which had recently been introduced by the Government in the wake of the ORG ’s PERSON v. the GPE judgment of DATE ( Reports of Judgments and Decisions PERSON , p. DATE ) . The PERSON would set up a tribunal , ORG , which , following the NORP model , would adjudicate on appeals against decisions of the immigration authorities as to , inter alia , exclusion , removal or deportation of individuals from GPE for the public good and/or for national security , etc . This bill would extend to GPE and allow for a full appeal on the merits against a decision of the Secretary of ORG or an immigration

ORG officer made on the grounds of , inter alia , national security . Provision was made for the appointment of a special advocate to assist the commission in any proceedings from which the appellant and his lawyer are excluded on national security grounds . According to the bill the Secretary of ORG would be required to provide the appellant with the schedule of any evidence which he wished to adduce in the appellant ’s absence . The commission would be enabled to conduct proceedings in the absence of the appellant and his representative in order to ensure that information was not disclosed contrary to the public interest . A special advocate would be appointed to assist the commission in such proceedings . The commission would be required to give a summary of the evidence taken in the absence of the appellant to the extent that this would be possible without disclosing information contrary to the public interest .

The bill , as amended in the course of its passage through ORG , has been subsequently enacted as LAW .