Alvina Gyulumyan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra

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

The following are the main allegations which led to the applicant ’s prosecution ( drawn from the later ORG judgment ) .

The applicant and a co - accused , WC , were charged with membership of an unlawful organisation styling itself ORG ( “ IRA ” ) contrary to section CARDINAL of the Offences Against the State Act , DATE as amended . It was alleged that ORG , in association with CARDINAL others , planned to open a lap dancing club in GPE ( “ the Club ” ) and engaged a company to provide security . The ORG was due to open on DATE . On DATE one of the principals in the security company requested a meeting with ORG at lunch time . The meeting was attended by ORG , ORG ( CARDINAL of the partners in ORG , ORG , the applicant and his co - accused . In the course of this meeting , the applicant introduced his co - accused as “ the top man ” , meaning the top man in the ORG . It was alleged that ORG said that certain people in GPE did not want the club to open but that they would make sure it would open if a donation was given to ORG ( “ CIRA ” ) and , that if a donation was not made , the dancers and ORG ’s girlfriend would be hurt and the premises would be petrol bombed . Initially , a payment of € MONEY ( ORG ) was sought , but after some discussion this was reduced to € MONEY . The € MONEY was ultimately paid in instalments .

On DATE the applicant and WC were arrested , questioned and charged with the offence of membership of an illegal organisation ( the IRA ) pursuant to section CARDINAL of the Offences Against the State Act CARDINAL , as amended ( “ the CARDINAL LAW ” ) . During police questioning ( under LAW CARDINAL of the Offences Against the State ( LAW DATE , “ the DATE LAW ) the applicant denied membership of an unlawful organisation .

NORP The applicant and WC ( “ co - accused ” ) were tried before the SCC in DATE over DATE . On DATE of the trial , the applicant ’s co - accused pleaded guilty . The trial proceeded and the SCC had regard only to evidence insofar as it concerned the applicant . In all , the SCC heard CARDINAL witnesses , QUANTITY of whom testified on behalf of the prosecution and CARDINAL , including the applicant , for the defence .

The ORG delivered its judgment on DATE . The judgment gave a detailed account of the relevant evidence of every witness followed by an assessment of the credibility of each .

NORP The principal witness for the prosecution was DM . He gave evidence as to a meeting that took place on DATE , DATE upon which the club was due to open . He identified the CARDINAL accused ( WC and the applicant ) as being present at that meeting . He testified as to the threats made by WC in the event of a required contribution of € MONEY not being made to ORG . When he had replied that he did not have that amount negotiations took place and the amount was reduced to € CARDINAL,CARDINAL.CARDINAL . The dates upon which the instalments were to be paid were then agreed . He paid the first CARDINAL instalments to the applicant ’s co - accused and on DATE he had met with both men and had handed over a further instalment of € MONEY to the applicant . The witness was cross - examined by counsel for the applicant . He confirmed that the applicant and his co - accused made themselves known to him to be ORG . He did not report the matter to ORG ( police ) straightaway because he was afraid of his life . His first contact with the police came when he received a telephone call from a sergeant whose identity he had to check out in order to ascertain that he really was a member of the police force . He said that he was “ in the Witness Protection Programme having received threats to his life and having been told that “ they ” would stick a hammer into his head in messages left on his phone from [ the applicant ] . ”

The SCC found him to be a truthful witness :

“ Vigorous efforts were made to discredit this witness by putting to him that he had a record of cocaine abuse , drunkenness , lying , theft and involvement in fraudulent conversion . He gave his evidence in a forthright manner both in examination and cross - examination . Throughout his evidence it was apparent to the ORG from his demeanour that he was in fear .

The ORG is satisfied that he was indeed in fear of both the accused and of ORG . It is for this reason he accepted entry into the Witness Protection Programme and removed himself from GPE and pending the trial for DATE remained in isolation . The ORG is satisfied that he is a truthful witness . ”

The trial court also heard evidence from ORG and ORG . An application was made by the prosecution to treat ORG as a hostile witness , which was initially refused but subsequently granted . As to the evidence of ORG , ORG held :

“ The witness throughout his evidence was hesitant and there was frequently a very long pause between a question posed by [ Counsel for the prosecution ] and the answer . At a later stage in his evidence he was clearly terrified and the impression of the ORG was that he was anxious that he should give no answer that could implicate [ the applicant ] or the IRA in the events described by [ DM ] and in the final stage of his evidence that while implicating the ORG he was anxious that he should not implicate [ the applicant ] . The stress which he was under was apparent . ”

ORG gave evidence that he was present at the meeting in DATE which was held because it had been brought to his attention by ORG that there was a potential threat to the staff and business . It was the first occasion he had met the applicant and the co - accused who had been introduced as being another security company who would be able to provide extra security at a cost , initially , of € CARDINAL,CARDINAL.CARDINAL but subsequently € MONEY . He took control of the last CARDINAL payments . He found DM to be dishonest but gave no instances of this . The applicant had never threatened him . He had never been in fear of the applicant . Upon cross - examination he denied having extensive contact with the applicant since the trial started . The SCC held :

“ The witness was not convincing in his evidence . ... The ORG regards his account of the manner in which the sum sought by [ the applicant ] and [ WC ] was negotiated upwards of € CARDINAL,CARDINAL to € CARDINAL,CARDINAL so unlikely as to be incredible .... He offered no plausible explanation as to why any money should be paid to [ the applicant ] and [ WC ] for extra security in the circumstance where there was not evidence of any discussion as to the nature of that extra security if any and when it was his wish that they should not attend at the LOC his agreement to pay this sum when he did not believe [ DM ] ’s reportage of threats is not credible .

In his evidence he created an impression of being evasive .... The impression left upon the ORG by the witness ’s manner of giving his evidence is that he is an untrustworthy witness . ”

A police Chief Superintendent gave evidence in accordance with section CARDINAL(CARDINAL ) of the Offences Against the State ( Amendment ) Act DATE , as amended ( “ the DATE LAW ) of his belief that the applicant had been a member of the IRA on the relevant date . He had served DATE in the police ( of which DATE were in “ the fight against subversion ” ) and he was , at that time , in charge of the ORG involved in receiving and analysing sensitive information and intelligence relating to subversion . He gave evidence that he believed that the applicant was a member of the IRA on the date of his arrest . He also stated that he believed that the applicant had been a member of the IRA for DATE prior to that date and that he had been associated with the IRA for DATE before being sworn in as a member . He stated that he based his belief on matters other than those that related to the applicant ’s arrest . ORG was cross - examined as to the source of his belief but he pleaded privilege on the basis that the disclosure of his sources would endanger life and would endanger the ongoing police operations against the IRA .

The applicant argued that the SCC should refuse the claim of privilege since , in order to have a fair trial , the accused must be told the identities of the informants that went to make up the belief of ORG . In the course of its ruling on this application the ORG reviewed the legal authorities on ‘ informer PERSON and the ‘ innocence at stake’ exception thereto . It cited , in particular , the case of ORG and ORG [ DATE ] CARDINAL IR CARDINAL where O’Flaherty J had said :

“ In effecting the balance between the interest of the public in determining and detecting crime and the interest of an accused person , CARDINAL important consideration which is relevant to this case is that the ORG will have regard to a risk of serious harm or death to persons whose identity is disclosed . ”

The SCC was satisfied that disclosure of the sources upon which ORG relied for his belief :

“ would have the effect of endangering ongoing PERSON operations against the ORG and would expose these sources , and particularly non - PERSON sources , to a real and substantial risk of serious harm or death .

The evidence given to this ORG . . . is that threats have been made and the effect of those threats upon the witnesses concerned , namely [ DM ] and [ ORG ] , has been apparent to ORG , not just in the oral evidence which they gave , but in their demeanour while giving evidence and which demeanour made it clear that they , themselves , were in serious harm . [ DM ] repeated on a number of occasions that he is in fear of his life and the consequence of threats to date made upon him . In these circumstances , the ORG is satisfied in weighing the respective interests of the public and the accused that it must give preference to that of the public in having crime deterred and detected . ”

In making its ruling the ORG noted that it was for the trial court to attach to the statement of belief , as is the case with all other evidence , such weight as it considers appropriate in all the circumstances . ORG claim of privilege was therefore upheld .

A Detective Chief Superintendent was called in relation to a detention matter which , it transpired , was not in issue . CARDINAL detective sergeants gave evidence about their interviews with the applicant in DATE , during which the applicant was questioned about joining the organisation at a house in GPE and about his associations with WC . The applicant denied being a member of the IRA . CARDINAL of the Sergeants gave evidence as to the identification parade .

The final prosecution witness applied pursuant to Rule DATE ) of The Offences Against the State Acts CARDINAL - CARDINAL LAW DATE PERSON . CARDINAL of DATE to be permitted to give her name and address in writing to the court . She handed in a letter to the court in which she had expressed concern for her own safety . ORG deferred dealing with the application until the conclusion of her evidence . She gave evidence as to how she had assisted ORG both financially and through her interior design skills with his project and of how she had been employed in a managerial capacity in the club . She met the applicant and his co - accused DATE after the club had opened . At the conclusion of her evidence the court ordered that her name and address should not be disclosed in court . In assessing her credibility , the SCC found that she had given her evidence in a forthright manner and was satisfied that she was a truthful witness .

The defence called CARDINAL witnesses . The applicant pleaded not guilty . He testified that he had left school at DATE and that he had been in ORG for DATE . Prior to his retirement , he became involved in the provision of security services as part of his return to civilian life . It was in this context that he had come to know his co - accused and ORG . He accepted that the meeting of DATE took place . When asked why he brought WC to that meeting he replied that he had been in his house at the time and that when told by the applicant that he had to go into town to meet some people , he ( WC ) said that “ he would tag along ” . He said that the meeting concerned the provision of bona fide security services and that there was no question of the involvement of the IRA . He denied that he knew that his co - accused was a member of the ORG , although he knew that he had been a member of another illegal organisation ( ORG ) .

In relation to the applicant , the SCC held :

“ The witness gave his evidence in a straight forward and vigorous manner . There are inconsistencies within the same . He was reticent about his knowledge of and prior relationship with [ a person ] and likewise his relationship with [ WC ] outside the circumstances mentioned in the evidence of prosecution witnesses . His account of the arrangement for payment for the additional security at the [ ORG ] lacks credibility . .... The witness ’s evidence as a whole makes clear that his answers at interview to Detective Sergeant ... quoted in this judgment were untrue and misleading . ORG is satisfied that it should approach his evidence with caution .

The court finds his account of the circumstances in which [ WC ] came to be present at the meeting in NORP ... improbable to the extent that it is unbelievable . It is not credible that [ WC ] was present in his house on one of his regular social calls on DATE when the phone call from [ ORG ] was received and that [ WC ] simply tagged along to the meeting as if he had nothing better to do but that he then took control of the meeting and took part in the separate private meeting to the exclusion of [ the applicant ] and there negotiated the agreement for the payment of € MONEY . Further his account of the arrangement for payment for the additional level of security lacks credibility .... Further he was reticent about his previous relationship with [ WC ] in connection with meetings in GPE and GPE . ... Having regard to these matters where there is a conflict between the evidence of [ the applicant ] and that of [ DM ] or [ ORG ] the evidence of [ DM ] and [ ORG ] is to be preferred .

ORG , a former employer of ORG , was also called by the defence . He gave evidence of a report he had received from his security firm that ORG had been taking alcohol and stealing at work . The court noted that this evidence was hearsay and that no weight whatsoever should be attributed to it . His evidence of having employed and dismissed ORG was accepted . It was noted that the alleged reasons for that dismissal had been denied by ORG in evidence .

The applicant ’s brother and an officer from ORG were also called . The former had introduced the co - accused to the applicant and the latter had been the applicant ’s former commanding officer for DATE . He testified that for most of that period the applicant ’s conduct rating was excellent . He confirmed the discussion between himself and the applicant as to the advisability of retirement in the light of allegations that he was a member of the IRA .

The SCC considered and assessed the evidence adduced at the trial . It accepted in its judgment the evidence of ORG as to his belief that the applicant was a member of the IRA . It took into account when assessing the weight to be attributed to that evidence that privilege had been granted in respect of the information grounding his belief . It found , however , that the statement of ‘ LAW was supported by additional corroborative evidence .

This additional evidence included evidence admissible under section CARDINAL(CARDINAL ) of the CARDINAL Act of the applicant ’s association with his co - accused who had pleaded guilty to membership of an unlawful organisation . In particular , the SCC considered that the evidence demonstrated that it was the applicant who had arranged the meeting on DATE at which he had introduced his co - accused as a “ top man ” in the IRA ( evidence of ORG ) ; that sums of money had been demanded for the ORG from ORG under threats of violence ; that his co - accused pretended to have an accent from GPE , the applicant knew he did not have such an accent and his failure to comment on this during the meeting was evidence that they acted in concert in order to reinforce and confirm the IRA connection of the applicant and his co - accused ; that the applicant was involved in negotiations for the payment of € MONEY in instalments ; that € CARDINAL was paid directly to the applicant ( evidence of DM ) ; and that the applicant had attended a separate meeting in a house in GPE where another person was introduced by the co - accused as “ top man in GPE ” meaning the top man in the IRA ( evidence of ORG ) .

In addition , the SCC found that the applicant ’s answers to police questions in interview , which were material to the investigation of the offence , were untrue and misleading . The false or misleading nature of those responses was “ quite clear ” from the evidence of the applicant himself as well as of other witnesses . Those responses were designed to give the impression of distance between himself , on the one hand , and his co - accused , the meeting on DATE and the ORG , on the other . In so distancing himself during a police interview about membership of an unlawful organisation , he inferred that those activities were connected to the organisation .

NORP Moreover , the trial court found that the applicant ’s evidence concerning how his co - accused had ‘ tagged along’ to the meeting in DATE and had then taken it over was simply not credible . His account of the arrangement for payment of the additional level of security also lacked credibility . His disposition not to tell the truth had to be borne in mind in evaluating his evidence . Having regard to all of the above , where there was a conflict of evidence between the applicant and that of ORG / ORG , the latter was to be preferred .

On the entirety of the evidence adduced , the SCC was satisfied beyond reasonable doubt that the applicant was guilty of the offence with which he was charged . He was found guilty and sentenced to DATE imprisonment .

NORP The applicant appealed to the ORG and argued that his right to a fair trial ( under LAW and LAW ) had been breached by the refusal to disclose the source of ORG belief . He argued that a fair trial requires some investigation as to whether it is reasonable to protect a claim of privilege in any particular case . His appeal was dismissed by judgment of DATE , although the appeal court reduced the sentence to CARDINAL years’ imprisonment .

In dismissing the appeal , the ORG found that in the course of a lengthy judgment the SCC had indicated that it had laid very great emphasis on the demeanour of the witnesses in the witness box and on the manner in which they had given their evidence . The case involved striking conflicts of evidence which could not be explained simply by errors of memory or lapse of time so that , clearly , false and perjured evidence had been given by some witnesses . The ORG was impressed by the care with which the SCC had assessed the credibility of the various witnesses and the clear way in which it had expressed its findings . The ORG had “ no doubt that there was credible evidence upon which such findings could be made ” and it did not therefore interfere with the findings of fact of the SCC .

The ORG noted that ORG had given evidence of his belief that the applicant was a member of the IRA at the relevant date and that under cross - examination he had claimed privilege against disclosure . It also noted that the problem related to information in his possession which quite possibly was not documented at all . Thus , the simple solution of allowing the trial court to see the disputed documentation could not really be adapted to the circumstances of the present case .

There was no doubt that there was a long established principle that , in certain circumstances , the police were entitled to refuse to disclose sources of information . There was undoubtedly a serious public interest in ensuring that persons who might be subject to intimidation and threats , if not actually in danger of their life , should be protected to ensure that information in their possession would be given to the police to assist in the prosecution of wrongdoers . As against this , there was also the constitutional obligation to ensure that an accused had a fair trial . The ORG considered that the balancing of those conflicting rights and interests could only be determined by the trial court . It had to be remembered that that the purpose of section CARDINAL(CARDINAL ) of the DATE Act was simply to make the statement of belief of ORG admissible as evidence and that , while it may be persuasive , it is not conclusive . The trial court must consider that evidence in the light of all their surrounding circumstances and , in particular , in the light of the other evidence in the case .

In the present case , the trial court could certainly take into account the fact that ORG refused to identify the basis of his belief , as well as the fact that the applicant appeared to have made a false statement to the police and the evidence of the other witnesses . Having decided that it accepted the evidence of DM , the SCC was entitled to treat this evidence as corroboration of the belief of ORG . As claims of privilege of this nature were a matter for the trial court , the applicant ’s argument that he did not receive a fair trial was rejected . The ORG left open the question of whether it could interfere in a case where there was no other evidence corroborating the belief of ORG .

An appeal was taken to ORG on a point of law pursuant to a certificate of the ORG . ORG considered whether the limitations placed on the applicant ’s cross - examination of the Superintendent as to the source of his belief rendered his trial unfair .

On DATE ORG unanimously dismissed the appeal . PERSON gave the judgment of ORG ( with which PERSON as well as GPE and PERSON concurred ) . PERSON delivered a separate judgment .

Geoghegan J. considered it essential to consider the purpose of section CARDINAL(CARDINAL ) of the DATE Act . The legislation was passed in the context of preserving the security of the ORG and was introduced to allow reliable information about membership of an unlawful organisation from a senior police officer to be admitted into evidence given the difficulty in getting direct evidence from lay witnesses who would not come forward for fear of reprisal . As with all anti - terrorist offences , there would also be equal apprehension about intimidation of witnesses . It was reasonable to infer that the relevant provision was enacted out of bitter experience . A limitation on cross - examination was permitted by the statutory provision . However , informer privilege , even without the statutory provision , may involve more than merely refusing to divulge the name of an informer . The correct interpretation of section CARDINAL(CARDINAL ) was that it allowed cross - examination about the basis of the belief evidence but not to the extent that it interfered with or defeated a legitimate plea of privilege .

He noted that the trial and appeal courts had fully considered the weight to be given in a trial to the belief evidence . He considered that the SCC had the right methodology and , in any event , that there was substantial evidence implicating the applicant independently of the belief evidence .

He went on to note that it had been the practice of the SCC not to convict on the basis of belief evidence only and commended the court on that practice . He also commended the practice of the ORG not to initiate prosecutions based solely on belief evidence . These self - imposed restrictions of the SCC and the ORG aimed at ensuring a fair trial . However , in the present case , there was plenty of outside evidence and it was well within the discretion of the SCC to convict the applicant for the reasons given by the ORG .

PERSON went on to review domestic case law on the relevant provision and agreed that the balancing of the conflicting rights and interests was to be determined by the trial court . ORG belief had no special status but was merely a piece of admissible evidence ( as stated by the ORG in ORG v. GPE , judgment CARDINAL DATE ) . Although the trial court was entitled to take into account the fact that ORG refused to identify the basis of his belief , it was also entitled to take into account that the appellant had made a false statement to the police and to have regard to the corroborating evidence of other witnesses , particularly that of Mr. PERSON which it accepted .

PERSON noted that the prosecution evidence was not limited to the belief evidence of ORG . The SCC had before it and had accepted the evidence of ORG , whom it had regarded as a truthful witness and in respect of whom it was satisfied that “ throughout his evidence it was apparent to the court from his demeanour that he was in fear ” both of the applicant and of the CIRA . While there was a conflict concerning amounts , there was also evidence that € MONEY was paid to the co - accused and MONEY to the applicant . In addition , the SCC had before it the evidence of ORG whom it also accepted as being in fear . Though treated as a hostile witness , he nevertheless gave evidence that the applicant described his co - accused as a “ top man ” using that expression in relation to the ORG . It was unnecessary to refer to this evidence in any greater detail as it was clear that there was significant evidence before the ORG , which was accepted by that court , of the involvement of the applicant with an unlawful organisation . The SCC had concluded by stating that on “ the entire of the evidence adduced before the Court ” it was satisfied beyond reasonable doubt that the applicant had been guilty of the offence with which he was charged .

The particularity of the present case was whether the fact that an accused person , who was prepared to give evidence denying membership of an unlawful organisation and was denied the right to cross - examine ORG as to the sources of his belief , had had a fair trial .

PERSON recalled the nature of an unlawful organisation as defined by CARDINAL of LAW and considered it obvious both from that definition and from common sense that such organisations are , in their nature , secret and violent . It followed that it would be extremely difficult to produce direct evidence capable of sustaining a prosecution . Intimidation of possible witnesses , and worse , was to be presumed . Where the police have secret intelligence , they would be unable to produce informants as witnesses without compromising them . Hence the need for an unusual type of evidence permitted under section CARDINAL(CARDINAL ) of the CARDINAL LAW . ORG had chosen to designate a person holding the rank of Chief Superintendent as a witness whose belief might be accepted as evidence . Whether or not an accused person was a member of an unlawful organisation was a question of fact and ORG gave evidence , not of fact , but of belief . ORG simply states his belief .

Fennelly J. noted that the prosecution had submitted that it was no longer the practice of the ORG to prosecute on the basis of belief evidence alone . Having reviewed domestic case law on section CARDINAL(CARDINAL ) he noted that the specific circumstances of the present case ( where the accused wishes to mount a full defence ) had not previously been the subject of a ruling by the ORG .

The Chief Superintendent merely stated that he was of the belief that the accused was a member of an unlawful organisation . That type of evidence was , in itself , a novelty . Under the normal rules of evidence , only expert witnesses were permitted to give evidence of their belief and , even then , not on simple questions of fact . ORG could , no doubt , be regarded as an expert in his field . That , however , was not the real problem . The real problem was that , where privilege was claimed , as it inevitably was , the defendant did not know the basis of that belief .

This did not mean , in ORG view , that courts should generally or at all disallow claims of privilege . The evidence of ORG before the SCC was perfectly plausible , indeed compelling . The ORG was right in expressing the views it did and the SCC was entitled to accept such evidence . It was in the nature of an unlawful organisation to threaten , intimidate and endanger the lives of those who co - operate with the police or give evidence against members .

The courts had developed over DATE extensive rules and principles requiring the prosecution to preserve and disclose to the defence in advance of trial any materials in its possession which might give rise to a reasonable possibility of securing evidence relevant to guilt or innocence . It was implicit in this case law that the prosecution had to disclose to the defence any material of possible relevance to guilt or innocence . In several of these cases , the ORG was prohibited from continuing with prosecutions when a real risk of an unfair trial flowed from non - compliance with these principles .

The present applicant , however , made his case very firmly on the ground of denial of a fair trial as a result of infringement of the effective right to cross - examine ORG and , by extension , any of his informants who might be identified if he revealed his sources . ORG reviewed case - law of the NORP , GPE and GPE courts on the right to cross - examination . He also reviewed the case law of this ORG ( notably PERSON v. the GPE , DATE , Series A no . CARDINAL ; PERSON v. the GPE , DATE , Reports of Judgments and Decisions CARDINALII ; PERSON and Others v. the GPE , DATE , Reports CARDINAL ; and PERSON and PERSON v. the GPE [ ORG ] , no . CARDINAL , ORG CARDINALII ) . He concluded that authorities cited from all relevant jurisdictions demonstrated that there was an inescapable obligation on the courts to guarantee the overall fairness of a trial and he believed that , in GPE , the right to cross - examine one ’s accusers was an essential element in a fair trial . While restrictions could be imposed in the interests of overall balance and the efficiency of the criminal justice system , derogations , for overriding reasons of public interests , from normal procedural rights of the defence were not to go beyond what was strictly necessary and should not “ imperil the overall fairness of the trial ” .

NORP The essential question was whether the undisputed restriction on the right of the accused to cross - examine his accusers and to have access to the materials relied upon by the prosecution , had been unduly restricted so as to render his trial unfair . PERSON believed that the privilege made by ORG constituted an undoubted infringement of the normal right of the accused to have access to the material which underlay the belief expressed and , to that extent , had constituted a restriction on the effectiveness of his right to cross - examine his true accusers and it had , for that reason , the potential for unfairness .

On the other hand , Counsel for the ORG had pointed to a number of compelling circumstances to justify the course of action adopted . In the first place , resort to belief evidence applied only in the case of organisations which , by their nature , represented a threat , not only to the institutions of the ORG , but to individuals who are prepared quite properly to cooperate with the ORG in securing the conviction of members of such organisations . This made it possible to justify some restriction on direct access on behalf of the accused to the identity of his accusers . Secondly , the legislature allowed such evidence to be given by police officers of particularly high rank who could be presumed to have been chosen for having high standards of integrity . Thirdly , the procedure applied only while there was in force a declaration that “ the ordinary courts are inadequate to secure the effective administration of justice .... ” The offence was a scheduled CARDINAL : thus the cases would be heard by the SCC , a court composed of judges who had to be presumed to apply only the highest standards of fairness . The section also enjoyed a presumption of constitutionality . Any restriction on the right to cross - examine , which it implied , had therefore be limited to the extent that was strictly necessary to achieve its clear objectives .

As to its application in the present case , it was of crucial importance that there was quite extensive evidence , other than the evidence of ORG , which convinced the SCC that the applicant was a member of the IRA on the relevant date . While the SCC said that it had taken into account the fact that ORG had claimed privilege , PERSON noted that the ORG should have explained the weight , if any , which it attached to the evidence of ORG given the grant of privilege . However , in the particular circumstances of this trial , PERSON did not think there was any overall unfairness . He did not think that the undoubted restriction on the rights of the accused went further than was strictly necessary to protect other potential witnesses or informants and he did not see how else the identity and safety of those other witnesses could have been protected . Thus it was , in the literal sense , necessary to prevent the defence from learning who they were . This , in turn , made it inevitable that the right to cross - examine would have to be restricted .

The matter , he said , might be quite different in a case where the evidence of ORG was the sole plank in the prosecution ’s case . However , ORG was not called upon to decide this issue and , in the particular circumstances of this case , he found that there was no unfairness in the trial of the applicant .

The applicant was released from prison on DATE .

Article CARDINAL reads , in so far as relevant , as follows :

“ CARDINAL . No person shall be tried on any criminal charge save in due course of law . ...

CARDINAL(CARDINAL ) Special courts may be established by law for the trial of offences in cases where it may be determined in accordance with such law that the ordinary courts are inadequate to secure the effective administration of justice , and the preservation of public peace and order .

( CARDINAL ) The constitution , powers , jurisdiction and procedure of such special courts shall be prescribed by law . ... ”

The ORG refers to the description of the matters leading to the adoption of LAW in its judgment in GPE ( no . CARDINAL ) , DATE , § § DATE , Series A no . CARDINAL .

LAW allowed for the establishment of the SCC ( section CARDINAL ) to try offences which were not amenable to trial in normal domestic courts . The SCC is a non - jury court and sitting judges ( normally CARDINAL , drawn from LOC ) hear the evidence and make findings of fact .

Section CARDINAL of the CARDINAL Act allows for certain offences to be “ scheduled ” which offences are then to be tried before a SCC . Secondary legislation in DATE defined those scheduled offences ( Offences against ORG Order DATE S.I. No . CARDINAL of DATE ) .

Section CARDINAL(CARDINAL ) of the CARDINAL LAW provides that “ it shall not be lawful for any person to be a member of an unlawful organisation ” . The ORG was declared unlawful by a suppression order made under LAW ) . Accordingly , the SCC tries , inter alia , charges of membership of unlawful organisations .

This section , as amended , is headed “ Evidence of membership of unlawful organisation ” and reads as follows :

“ CARDINAL(CARDINAL)(a ) Any statement made orally , in writing or otherwise , or any conduct , by an accused person implying or leading to a reasonable inference that he was at a material time a member of an unlawful organisation shall , in proceedings under LAW of LAW , be evidence that he was then such a member .

( b ) In paragraph ( a ) of this subsection ‘ conduct’ includes-

( i ) movements , actions , activities or associations on the part of the accused person , and

( ii ) omission by the accused person to deny published reports that he was a member of an unlawful organisation , but the fact of such denial shall not by itself be conclusive .

( CARDINAL ) Where [ a police officer ] , not below the rank of Chief Superintendent , in giving evidence in proceedings relating to an offence under the said section CARDINAL , states that he believes that the accused was at a material time a member of an unlawful organisation , the statement shall be evidence that he was then such a member .

( CARDINAL ) Subsection ( CARDINAL ) of this section shall be in force whenever and for so long only as Part V of LAW is in force . ”


The applicants , Mr PERSON and PERSON , are husband and wife . They originate from what is now the Former GPE ( “ the FYR of NORP ” ) and are of ethnic NORP origin . They were born in DATE and DATE respectively and live in GPE . They introduced the application also on behalf of their daughter PERSON , born in DATE , and their son PERSON , born in DATE . They are represented before the ORG by PERSON GPE . PERSON , a lawyer practising in Nieuwegein . The respondent Government are represented by Mr R.A.A. PERSON and PERSON of ORG .

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

The applicants , accompanied by their daughter PERSON , arrived in the GPE on DATE . They applied for asylum on DATE . In an interview with an immigration official on DATE they stated , inter alia , that their parents and siblings were living in the FYR of GPE .

On DATE the Deputy Minister of ORG ( ORG ) rejected the asylum application and informed the applicants that they would not be allowed to await the decision on any objection ( bezwaar ) they might lodge . The applicants lodged an objection and also requested ORG ( arrondissementsrechtbank ) of GPE , sitting in GPE , to issue a provisional measure in order for them to be allowed to await the outcome of their objection in the GPE . The President of ORG rejected the ORG request on DATE . From that moment on , the applicants were no longer authorised to stay in the GPE . However , no action was taken to expel them .

On DATE the applicants’ son PERSON was born .

The Deputy Minister dismissed the objection against the refusal of the applicants’ request for asylum . The appeal against that decision was rejected by ORG of The GPE sitting in GPE on DATE . No further appeal lay against this judgment .

In a letter of DATE the ORG lawyer requested the Deputy Minister to seek advice from ORG Medische Advisering ; “ MAB ” ) in order to see whether the medical situation of the applicants and PERSON should not lead to their expulsion being deferred in accordance with LAW DATE ( Vreemdelingenwet DATE ) . The lawyer referred to a letter of DATE from the applicants’ general practitioner according to which – due to the tense and insecure situation in which they had found themselves in DATE the applicants were experiencing difficulties in dealing with PERSON , who was a difficult baby . A return to their country of origin meant that the applicants , for the time being , would not be capable of looking for different ways of dealing with PERSON which , in these critical DATE , would entail consequences for the rest of his life .

The Deputy Minister informed the applicants that she perceived no cause to consult ORG . The applicants lodged an objection against the Deputy Minister ’s refusal , which was declared inadmissible . The applicant ’s subsequent appeal and request for a provisional measure were rejected by the Acting President of ORG of GPE , sitting in GPE , on DATE . The Acting President held that , as long as the applicants were not actually being expelled , the refusal of the Deputy Minister did not affect their interests . No further appeal lay against this decision .

In a letter of CARDINAL DATE to the ORG lawyer , a psychiatrist working at ORG ( Regionale Instelling voor Ambulante Geestelijke Gezondheidszorg – “ RIAGG ” ) , wrote that both applicants were suffering from an adjustment disorder . Although the ORG daughter PERSON was doing reasonably well , a forced return to the country of origin might , especially for her , lead to serious psycho - traumatic consequences .

On DATE the applicants lodged a request for a residence permit on compelling humanitarian grounds or , alternatively , for the purposes of receiving medical treatment in the GPE . When , on DATE , the Deputy Minister had still not taken a decision , the applicants filed an objection against the implied refusal ( fictieve weigering ) of their request .

In DATE the second applicant underwent an operation for a slipped disc . In view of her long case history , the neurologist treating her considered it likely that she would continue to have an increased vulnerability to physical and psychological violence . The neurologist was of the opinion that a forced return of the second applicant to the FYR of GPE , where such a situation pertained , might lead to her becoming physically disabled .

A report dated DATE from ORG concluded that both applicants were suffering from an adjustment disorder . The first applicant had emotional and behavioural problems and the second applicant was suffering from anxiety and depression . The applicants had initially been treated by a PERSON psychiatrist and subsequently by their general practitioner . To the best of ORG knowledge , the applicants were not receiving specialist treatment at the time of the report . The medical conditions from which the applicants were suffering could be treated in their country of origin in more or less the same way as in the GPE . ORG further stated that a failure to provide immediate treatment to either of the applicants would not lead to an acute medical emergency ( a situation where a person is suffering from a disorder which in its pertaining phase , if not treated immediately , would lead to death , invalidity or another form of serious psychological and/or physical harm ) . Neither applicant required intensive psychiatric or in - patient treatment , and they showed no symptoms of psychological decompensation or obsessive - compulsive suicidal tendencies . The longer term consequences of a failure to provide treatment would probably be the applicants’ being afflicted for longer and/or more seriously compared with the situation in which they received counselling . It could not be excluded that in the longer term a medical emergency might arise .

In a letter of DATE , the PERSON psychiatrist informed the ORG lawyer that , to his consternation , he had found that the psychological state of health of both applicants and their children had seriously deteriorated since he had last examined them in DATE . This had been caused by the chronic uncertainty with which the applicants had been confronted since DATE . The first applicant was suffering from a depression with psychotic characteristics , and the second applicant from a depressive disorder . Both required immediate and continuing specialist help , which would be provided by a psychiatric nurse and the psychiatrist in the form of consultations and medication . On DATE the applicants’ general practitioner confirmed that the situation of , in particular , the first applicant had deteriorated . He was currently so frantic that the doctor feared the worst if he were to be expelled . The doctor further thought it likely that the first applicant would attempt to evade expulsion , if necessary through suicide . Should the first applicant nevertheless reach the FYR of GPE , it was doubtful that adequate help would be available there .

The Deputy Minister transmitted the information from the PERSON psychiatrist and the general practitioner to ORG . By letter of CARDINAL DATE ORG commented on the new information . While conceding that the applicants’ condition had deteriorated , it concluded that there was no reason to amend the earlier recommendations and it was still felt that the applicants could be treated in their country of origin . As regards the possibility of the first applicant committing suicide , ORG noted that this was not related to the discontinuation of treatment but to a negative decision on his request and return to his country of origin .

ORG further provided information on the system of health care in the FYR of GPE , which was stated as being well - developed , although a person ’s ethnic origin did play a role when it came to the question of availability of health care . Anti - depressants could be obtained from private pharmacies ( at a fairly high price ) and from state hospitals , albeit that stocks were running low in the latter establishments and anti - depressants were therefore only used to treat serious cases . Treatment for various psychological disorders was said to be available , with psychotherapy commonly used as a treatment modality .

A hearing on the applicants’ objection took place on DATE . On this occasion the applicants submitted , inter alia , that regard should also be had to the fact that they had been living in the GPE for DATE and to the effects which an expulsion would have on their minor children who were going to school in the GPE .

In a letter of DATE to the ORG representative , the psychiatric nurse treating them reported a further deterioration of their psychological situation . The applicants were being treated in accordance with a PTSD - protocol . It was expected that their complaints would deteriorate if they had to return to their country of origin . The second applicant was quoted as saying she would prefer to be dead in that case .

On DATE the Deputy Minister upheld the applicants’ objection in so far as it was directed against the failure to decide in a timely fashion on the request for a residence permit , but dismissed the objection for the remainder . Noting that according to ORG , treatment for the applicants’ medical and psychological complaints was available in the FYR of GPE , the Deputy Minister found that the applicants were ineligible for a residence permit for the purpose of receiving medical treatment in the GPE , since it could not be said that the latter country was the most appropriate country ( het meest aangewezen land ) for the applicants to receive such treatment . The applicants also did not have sufficient financial means to pay for treatment and neither did they hold valid passports . The Deputy Minister further considered that the applicants had failed to establish that compelling reasons of a humanitarian nature existed , on the basis of which they should be granted a residence permit .

The applicants appealed this decision to ORG of The Hague , sitting in GPE , submitting , inter alia , that ORG had not itself examined the applicants but had based its conclusions on information obtained from others . Furthermore , the applicants maintained that treatment would not be available to them in the FYR of GPE , not in the last place because they were ethnic NORP .

ORG rejected the appeal on DATE , finding that the Minister for ORG ( Minister PERSON ; the successor of the Deputy Minister of Justice ) could reasonably have refused the requested residence permits .

The applicants lodged a further appeal with ORG of ORG ( Afdeling Bestuursrechtspraak van de Raad van State ; “ the ORG ” ) . In these proceedings they argued that there was no question of there being available in the ORG of GPE treatment more or less similar to that provided in the GPE . In this context the applicants submitted a number of reports from which they concluded that the health - care system in the FYR of GPE had fallen below western - NORP standards in DATE due to the conflict in the LOC . Treatment of psychological disorders only took place in the form of medication . According to a report drawn up in DATE by ORG , there were barely adequate therapy possibilities for the treatment of post - traumatic stress disorders . Moreover , the national system of health insurance was only open to officially registered nationals of the FYR of GPE . According to the applicants , they were unable to obtain the nationality of the FYR of GPE as they did not comply with certain requirements . Nevertheless , even insured persons generally needed to resort to bribery in order to obtain specialist treatment . The applicants concluded that an expulsion to the FYR of GPE , where they would arrive penniless and without employment and where they would not have access to any kind of treatment of their psychological problems , constituted degrading or inhuman treatment in breach of LAW .

Finally , the applicants argued that the physicians working at ORG were not independent specialists , as was illustrated by the fact that this Bureau had completely misjudged the situation in the FYR of GPE .

The ORG rejected the further appeal on DATE , holding that ORG had been correct in finding that the fact that treatment methods in the FYR of GPE were different than in the GPE did not mean that no treatment was available in the FYR of GPE . The reports submitted by the parties for the first time in the proceedings before the ORG could not lead to their further appeal being upheld , as ORG had not been able to have regard to the information contained therein . The ORG complaint to the effect that the question whether or not they would have access to health care facilities in the FYR of GPE had not been addressed by the Minister was also rejected , as the ORG held that this issue must be assumed to have played a role in the starting points of the Minister ’s policy . Moreover , the applicants were found to have failed to substantiate their complaint that the advice of ORG was not objective . Finally , the ORG held that it could not examine the applicants’ argument relating to their inability to obtain the nationality of the FYR of GPE as this argument had not been raised by them in the proceedings before ORG .

In an e - mail message of DATE from the Officer of ORG of the ( GPE - based ) ORG , the ORG representative was informed that in the FYR of GPE psychological problems were mainly treated with medication .

In a letter of DATE from a ORG physician to the ORG representative , the first applicant was described as utterly desperate , extremely nervous and tense . He experienced the decision to remove the family to the FYR of GPE after such a long time as a death sentence and considered himself a failure as head of the family . In the opinion of the physician , the possibility of the first applicant acting on impulse or suicidally if the family were to be expelled should not be discounted .

The Mental Health Atlas-CARDINAL states , inter alia , the following as regards mental health care in the FYR of GPE :

“ A mental health policy has been reviewed and it is in the process of being adopted by the Government . The document is constituted of CARDINAL parts , namely ORG . ...

A National Master Mental Health Plan is already prepared by ORG ( assigned by ORG ) in collaboration with ORG . It is expected to be adopted shortly by the Government .

There is a list of essential drugs covered by ORG as part of the health insurance scheme . Currently , this list is under revision to reflect prevailing needs . ...

There are budget allocations for mental health services ... The country has disability benefits for persons with mental disorders . ... Mental health patients according to the newly developed law are treated in the same way regarding employment as persons with somatic disabilities . There are examples from practice in the cities of GPE and GPE where there are companies that facilitate the employment possibilities of mentally ill persons , an issue that previously was available only for persons with somatic disabilities . ...

The country had traditional hospital - based mental health services . New policy developments recognise the need for reform in this sector especially towards decentralisation and community - based services . ... A ORG for promotion and implementation of community - based services on mental health has been created . ...

... traditional hospital - based mental health services ... are not efficient and largely depend on a centralised organisation ; they have not been able to meet ... extensive needs . The services are unsatisfactory from the medical , psychological , human , outcome , efficiency or economic points of view . ...

The country has specific programmes for mental health for children . The host families , local health and social services , the local communities and society in general are all involved in tackling the refugee and internally displaced persons problem . ...

[ A number of ] therapeutic drugs are generally available at the primary health care level of the country . ”


The applicants is a NORP national born in DATE . He resides in GPE .

He is represented before the ORG by PERSON , a lawyer in PERSON .

In DATE the applicant signed certain employment contracts on behalf of a group of companies . In decisions of CARDINAL DATE the relevant pension insurance company found that as the applicant ’s companies had not been registered as legal persons the applicant himself had to be regarded as the employer . As a result the applicant was obliged to pay MONEY ( approximately the same in ORG ) in employer ’s contributions . According to the attached notice of appeal , an appeal was to be signed by the appellant himself or any other author . If the appeal was not signed by the appellant , it should include a power - of - attorney and indicate the representative ’s profession and address .

The applicant contested the decisions of the pension insurance company in appeals to ORG ( eläkelautakunta , pensionsnämnden ) . The appeals were signed by the applicant himself but indicated Mr ORG as their author . The addresses of both were stated .

In decisions of CARDINAL DATE ORG refused the applicant ’s appeals . The decisions were dispatched to the applicant ’s address by regular mail on DATE . The applicant allegedly received the decisions on DATE and on DATE he appealed to ORG ( vakuutusoikeus , försäkringsdomstolen ) .

On DATE ORG declined to examine the merits of the applicant ’s appeals , considering that they had been lodged out of time . ORG noted that the appeals to ORG had been signed by the applicant himself and that he had been “ assisted ” by Mr ORG . In his appeal to ORG the applicant had explained that the letters from ORG had arrived in a post box which he did not empty DATE , inter alia due to his disability . Having been invited to explain this point further , the applicant had stated to ORG that in DATE he had not been expecting any mail which would have required action . As for ORG forthcoming decisions , he had expected to be notified thereof through his “ representative ” Mr ORG . ORG found that the applicant had not submitted sufficient evidence , inter alia of his allegation that he had received ORG decisions only on DATE . ORG concluded therefore that the applicant should be deemed to have received them on DATE , in accordance with the presumption stated in the relevant notice of appeal . Consequently , the applicant ’s further appeals should have been lodged at the latest on DATE .

The applicant applied to ORG for restoration of the time - limit for appealing against ORG decisions . He further sought to have ORG decision nullified ( poistaa , undanröja ) and applied for cost - free proceedings with PERSON as his representative . Mr ORG was indicated as the drafter of the application to have the time - limit restored .

On DATE ORG ( korkein oikeus , högsta domstolen ) refused the applicant ’s request for cost - free proceedings , noting that under law a grant to this effect was not possible in matters before ORG . ORG found no grounds for nullifying ORG decision or reinstating the proceedings .


Violation of Art. 6-1;Pecuniary damage - claim dismissed;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings

ORG The applicant , who is a GPE citizen , lives in GPE in GPE .

Wishing to build a holiday residence in GPE , a village in the NORP Tyrol , she approached , with the assistance of municipal officials , the owners of a plot of land which had until then been used for agricultural purposes . Sale negotiations began in DATE and apparently led , in DATE , to an initial contract . DATE , Mrs. PERSON paid to the vendors the greater part of the agreed price . However , the definitive contract was not drawn up until DATE .

ORG Under section CARDINAL of ORG ( Grundverkehrsgesetz ) DATE , as amended by , inter alia , an LAW DATE which came into force on DATE ( " the CARDINAL/CARDINAL LAW " ) , the contract could not take effect unless it were approved by the local ORG ( Grundverkehrsbehörde ) ; in fact , it contained a clause which so provided .

The LAW applies to agricultural and forestry land and also to any land over which rights are acquired by , in particular , a natural person who does not possess NORP nationality ( section CARDINAL(CARDINAL ) and ( CARDINAL ) ) .

ORG The local ORG for Hopfgarten at the office of ORG ) , to which the contract had been submitted , approved it on DATE ; the decision ( Bescheid ) was dated DATE .

ORG On DATE , ORG ( ORG , " the Transactions Officer " , see paragraph CARDINAL below ) at ORG of the Tyrol ( Amt der Landesregierung ) in GPE exercised his right of appeal ( GPE ) to ORG ( GPE ; LAW ) of the CARDINAL/CARDINAL LAW and see paragraphs CARDINAL below ) . In his view , the contract fell foul of section CARDINAL ) of the CARDINAL/CARDINAL Act .

Under that sub - section , where the purchaser of real property is a foreigner a contract of the kind in question can be approved only

" if the acquisition of rights ( PERSON ) is not contrary to political ( staatspolitisch ) , economic , social ( sozialpolitisch ) or cultural interests ; such a conflict ( Widerspruch ) is deemed to exist , in particular , where ,

( a ) having regard to the extent of existing foreign ownership or to the number of foreign owners , there is a risk of foreign domination ( ORG ) in the municipality or locality concerned ,

( b ) ... . "

In the submission of the Transactions Officer , there were , in fact , already CARDINAL foreign landowners in GPE and it could be seen from a series of decisions of ORG that this municipality was one of those where the danger of foreign domination was imminent . The contract in question was therefore contrary to social and economic interests within the meaning of the above - mentioned LAW .

The applicant received a copy of the appeal but did not file any observations in reply .

The Government Office of the ORG was organised in a number of " groups " and each group comprised several " divisions " . In the present case , the Transactions Officer was the director of group III ; his secretariat was provided by CARDINAL of the CARDINAL divisions in that group , namely division III b. CARDINAL .

ORG On DATE , ORG at ORG of the Tyrol held a hearing . ORG sat in camera but the parties , namely ORG and Mrs. PERSON , were present . The latter appeared in person , without the assistance of a lawyer .

In accordance with section CARDINAL(CARDINAL ) , no . CARDINAL , of the CARDINAL/CARDINAL LAW ( see paragraph CARDINAL below ) , ORG was composed as follows : the elected mayor of a municipality in the GPE , who was a farmer experienced in real estate matters , as chairman ; a judge of ORG ; a civil servant from division III b. DATE of the CARDINAL divisions in group III - of ORG , as rapporteur ; the head of group III d ; the director of ORG , being the head of group III f ; a farmer ; and a lawyer .

The secretariat was provided by division III b. CARDINAL , to which the rapporteur belonged .

ORG According to TIME of the hearing , the rapporteur presented the facts and read out the expert opinions and observations received during the course of the investigation ; the latter concerned , inter alia , the percentage of the parcels of land in GPE which was in foreign hands . The Transactions Officer then requested the ORG to uphold his appeal on the ground that as there was already a risk of foreign domination in GPE , the acquisition of the land in question would be contrary to social and political interests .

The applicant stated that she had signed the initial contract ( Erstvertrag ) , which could not then be found , on DATE . As early as DATE , she had reached an agreement to purchase ORG and had received assurances that all would go well . Since that time , she had come to GPE several times each year to settle the matter . Her husband was living with the family in GPE , where he worked , but would be retiring shortly . She declared that she herself was prepared to apply for NORP nationality . Their permit to reside in GPE was temporary and she did not wish to return to GPE . She added that she had already made a first payment of MONEY . In conclusion , she requested that the contract be approved .

ORG On DATE , that is DATE , ORG upheld the appeal : referring to the above - mentioned section CARDINAL(CARDINAL)(a ) of the CARDINAL/CARDINAL LAW , it refused to approve the transfer of title . Its decision ( PERSON ) was dated DATE .

The ORG noted firstly that according to a statement from the municipality of GPE , which had not been challenged at the hearing , there were CARDINAL foreign landowners in GPE , owning QUANTITY of land . There were CARDINAL inhabitants and CARDINAL families in the locality , though not all of them were landowners . The proportion of non - NORP owners already exceeded CARDINAL per cent and the extent of their holdings revealed a tendency towards foreign domination .

The ORG then recalled that for DATE past it had been refusing to approve the transfer of land in GPE to foreigners since it had concluded that there was a risk of foreign domination in the area . It had to take account , inter alia , of the effects of its decision on third parties . According to the ORG , experience showed that the approval of a contract between a landowner and a foreigner led to an influx of other foreigners who also wished to buy land in the locality . This caused prices to rise substantially , making it very difficult , if not impossible , for the indigenous population to find housing for themselves . For these reasons and in view of the scarcity of building plots in the GPE , very strict legal ( gesetzlich ) control had to be exercised : sales and purchases could normally be approved only if they contributed to the establishment or maintenance of an effective ( leistungsfähig ) agricultural population or if they served to satisfy domestic land needs ( inländischer PERSON ) for any kind of public or social purposes .

However , Mrs. PERSON was intending to use the land in question - at least for some time - for the construction of a holiday residence . Such an objective could easily be satisfied by the local hotel trade which , furthermore , was losing potential customers as a result of the construction of villas by foreigners . The acquisition contemplated was therefore prejudicial to economic and social interests and thus fell foul of , in particular , section CARDINAL(CARDINAL)(a ) of the CARDINAL/CARDINAL LAW .

Lastly , ORG rejected the applicant ’s argument that she had already concluded a contract in DATE , that is at a time when NORP citizens were treated on an equal footing with NORP by virtue of a bilateral treaty dating from DATE . The ORG emphasised firstly that it had to base itself on the factual and legal situation obtaining at the time when the decision had to be taken . In its view , the DATE treaty had not established any equality between citizens of GPE in the area concerned . In the case in question , the transfer of ownership contemplated fell under LAW para . CARDINAL , as interpreted by ORG in a DATE memorandum which stated that the general regulations with regard to foreigners were applicable . Even if this interpretation had not been known at the time when the initial contract had allegedly been concluded ( CARDINAL DATE , see paragraph CARDINAL above ) - though this was not the case , since the above - mentioned memorandum dated from DATE - , Mrs. PERSON could not claim that she had acted in good faith : she was obliged under LAW to seek approval of the contract within DATE and she alone bore the responsibility for not having done so .

ORG On DATE , the applicant appealed to ORG ) against the decision of ORG . She claimed that her right to inviolability of property and her right to a decision by the legally competent court ( gesetzlicher Richter ) had been infringed and relied on LAW , Article CARDINAL para . CARDINAL of LAW ( Bundes - Verfassungsgesetz ) and LAW .

As concerns the first complaint , Mrs. PERSON alleged that ORG had applied section CARDINAL(CARDINAL)(a ) of the CARDINAL/CARDINAL LAW in a misconceived ( denkunmöglich ) manner by adopting an illogical approach ; amongst other things , it had concluded that there was a danger of foreign domination in GPE without being in possession of detailed documentation , without defining the risk in question and without enquiring into the actual position in GPE regarding real property ownership .

She further contended that ORG was not an " independent tribunal " within the meaning of Article CARDINAL ( article CARDINAL ) of the Convention .

On these grounds , she requested ORG to annul the decision under appeal or , in the alternative , to refer the case to ORG ( Verwaltungsgerichtshof ) .

Mrs. PERSON supplemented her grounds of appeal on DATE . She asserted that her lawyer had not been able to consult TIME deliberations . She had , in fact , learnt that the ORG had not given its ruling on DATE , immediately after the closure of the hearing . She inferred from this that the decision complained of had not been taken by the legally competent court .

She requested ORG to provide her lawyer with an opportunity of reading the above - mentioned TIME .

ORG dismissed the appeal on DATE ( ORG und ORG , DATE , vol . CARDINAL , no . CARDINAL ) .

It took the view that ORG was indeed a " tribunal " within the meaning of Article CARDINAL ( article CARDINAL ) of the Convention . It gave decisions which the executive could neither annul nor vary . As regards its members - who included a judge - , they had a degree of independence equal to that of judges . They were not bound by any instructions in the exercise of their functions and they could not be removed during their DATE term of office , except for reasons which would have precluded their appointment or if they were permanently prevented from carrying out their duties . ORG accordingly held that LAW ) had not been violated .

The applicant ’s other ground of appeal was also rejected . Recalling that it had already held in another case , in DATE , that it was not misconceived to conclude that there was a danger of foreign domination in GPE , ORG stated that it saw no reason to change its opinion in the instant case . As regards the facts noted by ORG , they had not been the subject of any dispute during the administrative proceedings .

ORG sat in camera and gave judgment without holding a hearing .

ORG Even before the above - mentioned judgment had been delivered , the plot in question was sold to an NORP who , according to the Government , turned it back into grazing - land . ORG had taken the view that it could examine the new contract , provided that its decision was held in abeyance pending the outcome of ORG proceedings .

ORG The Government stated that during DATE or so ORG had not approved any acquisition of real property in GPE by a foreigner . They supplied a list of CARDINAL refusals in the period DATE and DATE ; according to the applicant , the list was insufficiently detailed to be conclusive .

ORG Under LAW , as interpreted by ORG , the regulation of real property transactions is a matter coming within the jurisdiction of the Länder . Most of the ORG have enacted legislation whereby all contracts relating to agricultural or forestry land and also , in some cases , real property transactions with foreigners have to be approved by special authorities .

ORG In the LOC ( see paragraph CARDINAL above ) , section CARDINAL ) of the CARDINAL/CARDINAL LAW obliges the purchaser to seek such approval within DATE of the conclusion of the contract . No entry can be made in the land register until the transaction has been approved by the competent authority ( section CARDINAL(CARDINAL ) ) . If approval is withheld , the acquisition is null and void ( section DATE ) ) .

ORG When the contract relates to agricultural or forestry land and irrespective of the purchaser ’s nationality , the first - instance authority is the Höfekommission ( " Farm Commission " ) ( section CARDINAL(CARDINAL)(a ) ) . ORG is established at the seat of ORG and has CARDINAL members : the head of ORG , or a legally qualified ( rechtskundig ) official of that ORG appointed by him , as chairman ; a person designated by the chamber of agriculture of the district ; and another person , designated by the municipality in question , who is engaged in agriculture or forestry ( section CARDINAL of LOC of DATE ; PERSON betreffend die besonderen Rechtsverhältnisse geschlossener PERSON ) .

The decisions of ORG are taken by majority vote ( section CARDINAL ) of the CARDINAL/CARDINAL Act ) ; they are subject to appeal to ORG ( see paragraph CARDINAL below ) by , amongst others , the parties to the contract or ORG ( section CARDINAL(CARDINAL ) ) .

ORG The Transactions Officer , who is appointed for DATE by ORG of the Tyrol , must be a person who is experienced in real property transaction matters ( section CARDINAL ) .

His secretariat is provided by a division of ORG .

ORG If the case is referred to it , ORG established at ORG takes a decision as the second and final instance ( section CARDINAL(CARDINAL ) ) . Its membership varies according to the subject - matter of the contract to be examined . In the case of agricultural or forestry land - whether the buyer be NORP or foreign - its voting members are ( section NORP ) , no . CARDINAL ) :

" ( a ) a person experienced in real property transaction matters , who shall act as chairman ;

( b ) a member of the judiciary ( ORG ) ;

( c ) a legally qualified civil servant from ORG , with training in real property transaction matters , who shall act as rapporteur ;

( d ) a senior civil servant from ORG ( technischer LOC ) of ORG ;

( e ) a senior civil servant from ORG ( forsttechnischer ORG ) ;

( f ) an agricultural expert ;

( g ) a lawyer ( PERSON or Notar ) . "

ORG The above - cited provision , which was introduced by LAW of DATE ( see paragraph CARDINAL above ) , replaced a text which ORG had held to be incompatible with LAW , as interpreted by ORG in its PERSON judgment of DATE ( Series A no . CARDINAL ) . ORG had ruled that ORG , as it was constituted under LAW of DATE , could not be considered an " independent and impartial " tribunal because its members included , as chairman , CARDINAL of the members of ORG of the LOC ( section CARDINAL ) , no . CARDINAL ) , former version ) . Furthermore , so ORG held , the LAW did not fix the duration of the PERSON term of office , conferred on the said Government the power of appointing the members ( save for a judge , who was appointed by the Federal Minister of ORG ) and did not lay down the circumstances in which members might be removed from office ( judgment of DATE , ORG , DATE , vol . CARDINAL , no . CARDINAL ) .

ORG Following this judgment , the NORP legislature amended , by LAW of DATE , the provisions in LAW concerning , inter alia , exercise of the office of member of ORG . ORG - sections CARDINAL of that section read as follows :

" ( CARDINAL ) The member of ORG appointed from the judiciary ( sub - section CARDINAL , no . CARDINAL ( b ) ) , shall be appointed by the Federal Minister of ORG and the remaining members , by ORG . For each member a substitute member shall be similarly appointed .

( CARDINAL ) Only NORP citizens who have reached DATE and are in full possession of their legal rights shall be eligible for appointment as members or substitute members . Persons who by reason of a criminal conviction are disqualified from jury service or from acting as lay assessors shall be ineligible .

( CARDINAL ) Members and substitute members shall hold office for DATE . Members or substitute members who are appointed within the general DATE term of office shall cease to hold office at the end of that term . Re - appointment is possible . Members and substitute members shall continue to perform their duties after expiry of their term of office until they have been replaced .

( CARDINAL) The quorum of ORG shall be constituted if the chairman , the member appointed from the judiciary , the rapporteur and CARDINAL other members are present . Decisions shall be taken by majority vote . If the votes are equally divided , the chairman shall have a casting vote . Abstention shall count as a negative vote .

( CARDINAL ) In the performance of their duties the members of ORG shall not be subject to any instructions ; the executive may neither annul nor vary their decisions .

( CARDINAL ) The details of ORG ( such as the convening of sittings , summoning of substitute members , conduct of voting , keeping of TIME and signing of decisions ) shall be laid down by ORG in rules of procedure ( Geschäftsordnung ) for the said Authorities .

( CARDINAL ) Unless they are civil servants , members of ORG shall receive for their work remuneration and a travel allowance , the amount of which shall be laid down in regulations made by ORG .

( CARDINAL ) A member or substitute member shall be removed from office , before the end of his term of office , if :

( a ) circumstances intervene which would have made him ineligible for appointment ;

( b ) the regular performance of his duties becomes perCARDINAL

manently impossible .

( CARDINAL ) If an official of a " territorial " authority ( ORG ) is suspended from duty under the regulations governing his employment , he shall cease to exercise his functions as a member or substitute member of ORG for the duration of the suspension . "

Sub - section ( CARDINAL ) , cited above , corresponds to LAW para . CARDINAL of the LAW , which reads :

" If a Federal or a LAW makes provision for the last - instance decision to be given by a collegiate body CARDINAL of whose members is a judge and whose decisions can not be annulled or varied by the executive , the other members of that body shall also not be subject to any instructions . "

Article CARDINAL para . CARDINAL of LAW obliges the members of ORG not to disclose facts which have come to their knowledge in the exercise of their functions , if the interests of a " territorial " authority or of the parties so require ( PERSON ) .

ORG Procedure before ORG is governed by LAW DATE ( ORG ) .

The parties are entitled to consult the case - file ( section CARDINAL ) and must be given an opportunity of presenting their arguments ( section CARDINAL ) . The competent authority may decide to hold a hearing ( section CARDINAL ) ) , which will not take place in public ; the parties have the right to be heard ( rechtliches PERSON ) and , inter alia , to adduce their arguments and evidence and comment on facts presented and submissions made by other persons appearing , witnesses or experts ( section PERSON ) ) .

In certain circumstances which may give reason to doubt his impartiality , the civil servant concerned must arrange to be replaced ( section CARDINAL ) .

ORG By an order ( Verordnung ) of CARDINAL DATE , ORG of the ORG issued rules of procedure for ORG .

Under LAW para . CARDINAL , the Authorities shall deliberate and vote in the absence of the parties , if appropriate after oral hearings . The deliberations shall be recorded in TIME to which the right to consult the case - file ( PERSON ) , guaranteed by LAW , does not extend ( LAW para . CARDINAL ) . The Authorities’ resolutions ( Beschlüsse ) must be recorded , but may be altered as long as they remain unpublished ( nicht nach aussen in Erscheinung getreten ) ( Article CARDINAL para . CARDINAL ) . Their decisions ( PERSON ) , which are to be reached on the basis of those resolutions ( LAW para . CARDINAL ) , shall be given in writing but may in case of urgency be given orally by the chairman ( DATE . CARDINAL ) .

Before ORG , the rapporteur shall , after setting out and commenting on the results of the investigation ( ORG ) , present conclusions ( Antrag ) ; those who wish to propose alternative conclusions ( Gegen- oder Abänderungsanträge ) shall give reasons for them ( Article CARDINAL para . CARDINAL ) . The chairman shall decide the order in which voting on the conclusions is to take place ( Article CARDINAL para . CARDINAL ) .

ORG Decisions of ORG may be challenged before ORG but not before ORG ( ORG ; ORG CARDINAL para . CARDINAL and CARDINAL of LAW ) .


CASE OF KARPACHEVA AND KARPACHEV v. RUSSIA

Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

The applicants , mother and son , were born in DATE and DATE respectively . The first applicant lives in PERSON , a closed town in LOC where the Mayak nuclear fuel reprocessing plant is located and where the second applicant permanently resided before his conviction in DATE . They are joint owners of a flat in PERSON . The second applicant is currently serving a prison sentence in a correctional colony in LOC .

On DATE the second applicant was found guilty at ORG of certain criminal offences and sentenced to DATE imprisonment .

On DATE the ORG , GPE , relieved him from further serving his sentence . The second applicant returned to PERSON .

The first applicant requested the local administration to authorise the second applicant 's entry to , and permanent residence in , PERSON . It appears the authorities permitted the second applicant 's temporary stay in GPE from DATE to QUANTITY DATE .

On an unspecified date ORG городского округа , “ the LAW ” ) and ORG of ORG ( ORG федеральной службы безопасности по PERSON области , “ the Regional Security Service ” ) dismissed the request , referring to the second applicant 's conviction . The second applicant challenged the refusal in court .

On DATE ORG , GPE , granted the second applicant 's claim . According to the court 's findings , the dismissal by the competent authorities of the second applicant 's request for the entry to , and permanent residence in , PERSON did not have a basis in law . ORG ordered ( CARDINAL ) ORG to issue the second applicant with an entry and residence permit and ( CARDINAL ) ORG to approve it .

The parties did not appeal against the judgment of DATE and on DATE it came into force . ORG issued CARDINAL writs of execution .

On DATE the Head of ORG approved the second applicant 's application to be permanently registered in PERSON . Despite this , on DATE the bailiff opened enforcement proceedings in respect of ORG .

On DATE the administration of the Mayak nuclear fuel reprocessing plant informed the first applicant as follows :

“ Pursuant to Decree of the Government of the Russian Federation no . CARDINAL as of DATE on special regulations in a closed administrative and territorial entity where enterprises affiliated with ORG are located , on DATE the federal security service authorised the temporary residence of [ the second applicant ] in ... PERSON .

As regards your application for permanent residence [ for the second applicant ] in [ Ozersk ] , on DATE the [ Mayak administration ] forwarded the [ relevant ] documents ... to the [ ORG ] . The time - limit for their response shall not exceed DATE . Should the federal security service approve permanent residence [ for the second applicant ] , the [ Mayak administration ] will prepare the necessary documents for his registration at his place of residence and issuance of a permanent pass . ”

On DATE the bailiff opened enforcement proceedings in respect of ORG .

According to the Government , on DATE the bailiff closed the enforcement proceedings in respect of ORG , noting that the latter had complied with the judgment of DATE . According to the applicants , the bailiff 's decision was not communicated to them .

On DATE the management of the ORG nuclear fuel reprocessing plant informed the second applicant that ORG had refused to approve him for permanent residence in PERSON .

According to the Government , on DATE the bailiff closed the enforcement proceedings in respect of ORG , noting that the judgment of DATE had been enforced in full . The Government did not , however , submit any documents in support of this allegation . According to the applicants , they were not informed of the alleged closing of the enforcement proceedings .

On DATE the second applicant was arrested on suspicion of drug dealing . On DATE the ORG found him guilty as charged and sentenced him to DATE imprisonment . The second applicant 's conviction was upheld in substance by the Presidium of ORG by way of supervisory review .

The PERSON of GPE of DATE ( Article CARDINAL ) , as amended , provides as follows :

“ A closed administrative and territorial entity is a municipality where industrial enterprises specialising in development , production , storage and disposal of mass destruction weapons , processing of radioactive and other materials , military and other facilities ... are located . [ Such entities ] are subject to special regulations on secured operation and protection of state secrets , including special residence conditions . ”

Decree of the Government of GPE no . CARDINAL as of DATE on special regulations in a closed administrative and territorial entity where enterprises affiliated with ORG are located stipulates that entry to , and permanent residence in , a closed administrative and territorial entity is subject to restrictions ( § CARDINAL ) . The head of the administration may , subject to the approval of the federal security service , authorise entry to the closed entity ( § CARDINAL ) . Title to real property located in a closed administrative and territorial entity may give rise to a right to enter and reside there , subject to authorisation of access to state secrets ( § CARDINAL ) .