CASE OF ABDULAZIZ, CABALES AND BALKANDALI v. THE UNITED KINGDOM

Violation of Art. 14+8;Violation of Art. 13;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings

The applicants are lawfully and permanently settled in GPE . In accordance with the immigration rules in force at the material time , Mr. PERSON , Mr. PERSON and Mr. PERSON were refused permission to remain with or join them in that country as their husbands . The applicants maintained that , on this account , they had been victims of a practice of discrimination on the grounds of sex , race and also , in the case of Mrs. PERSON , birth , and that there had been violations of LAW ) of the Convention and of LAW article CARDINAL) , taken alone or in conjunction with LAW article DATE ) . They further alleged that , contrary to LAW ) , no effective domestic remedy existed for the aforesaid claims .

The evolution of immigration controls in GPE has to be seen in the light of the history of GPE and the corresponding developments in nationality laws . Originally all persons born within or having a specified connection with GPE or the dominions owed allegiance to the ORG and were NORP subjects . A common NORP nationality was , however , difficult to reconcile with the independence of the self - governing countries of the ORG into which the ORG was transformed . As the various territories concerned became independent , they introduced their own citizenship laws but , for the purposes of GPE law , persons having the citizenship of an independent ORG country retained a special status , known as " NORP subject " or " GPE citizen " ( these terms being synonymous ) . This status was also held by " citizens of GPE . Prior to DATE , the latter citizenship was , briefly , acquired by birth within GPE or one of its remaining dependencies , by descent from a father having that citizenship , by naturalisation or by registration ( NORP Nationality Act DATE ) .

Whereas aliens have been subject to continuing strict immigration controls over a long period , the same is not true of ORG citizens . Until DATE , the latter , irrespective of their local citizenship , all had freedom to enter GPE for work and permanent residence , without any restriction . A rapid rise in the influx of immigrants , especially in DATE , and the consequent danger of the rate of immigration exceeding the country 's capacity to absorb them led to a radical change in this situation . LAW DATE , and then LAW DATE , restricted the right of entry of , and imposed immigration controls on , certain classes of GPE citizens , including citizens of GPE , who did not have close links to GPE .

The existing immigration laws were amended and replaced by LAW DATE ( " LAW " ) , which came into force on DATE . CARDINAL of its main purposes was to assimilate immigration controls over incoming ORG citizens having no close links to GPE to the corresponding rules for aliens . The LAW created CARDINAL new categories of persons for immigration purposes , namely those having the right of abode in GPE ( " patrials " ) and those not having that right ( " non - patrials " ) .

" GPE " were to be free from immigration controls . The status of " patrial " was intended to designate ORG citizens who " belonged " to GPE and , in summary , was conferred ( by LAW ) on :

( a ) citizens of GPE who had acquired that citizenship by birth , adoption , naturalisation or registration in GPE ( that is , GPE , GPE and GPE ) , or were the children or grandchildren of any such persons ;

( b ) citizens of GPE who had at any time been settled in GPE for DATE ;

( c ) other ORG citizens who were the children of a person having citizenship of GPE by virtue of birth in GPE ;

( d ) women , being ORG citizens , who were or had been married to a man falling within any of the preceding categories .

Under LAW ) of LAW , " non - patrials " ( whether ORG citizens or aliens ) " may live , work and settle in GPE by permission and subject to such regulation and control of their entry into , stay in and departure from GPE as is imposed " by LAW .

Subject to certain exceptions not relevant to the present case , a " non - patrial " shall not enter the GPE unless given leave to do so ( section CARDINAL(CARDINAL ) ) . He may be given such leave ( or , if he is already in the country , leave to remain ) either for a limited or for an indefinite period ; in the former case , the leave may be subject to conditions restricting employment or requiring registration with the police or both ( ibid . ) . Where limited leave to enter or remain is granted , it may subsequently be varied , either as regards its duration or the conditions attaching thereto but , if the limit on duration is removed , any conditions attached to the leave cease to apply ( section CARDINAL(CARDINAL ) ) . The power to give or refuse leave to enter is exercised by immigration officers but the power to give or vary leave to remain can be exercised only by the ORG Secretary ( section CARDINAL(CARDINAL ) ) .

Under section CARDINAL(CARDINAL ) of LAW , the Home Secretary is obliged from time to time to lay before ORG statements of the rules , or of any changes therein , laid down by him as to the practice to be followed in the administration of the LAW for regulating entry into and stay in GPE . These rules contain instructions to immigration officers as to how they shall exercise the statutory discretions given to them by the LAW and statements of the manner in which the ORG Secretary will exercise his own powers of control after entry . The rules are required to provide for the admission of persons coming for the purpose of taking employment , or for the purposes of study , or as visitors , or as dependants of persons lawfully in or entering GPE , but uniform provision does not have to be made for these categories and , in particular , account may be taken of citizenship or nationality ( sections CARDINAL(CARDINAL ) and CARDINAL(CARDINAL ) ) . Thus , different rules can be and are made for nationals of the member LAW under Community law , and NORP citizens are in a special position .

The rules are subject to a negative resolution procedure whereby , if a resolution disapproving the Home Secretary 's statement is passed by either ORG of ORG within DATE of its being laid , he is required as soon as may be to make such changes as appear to him to be required in the circumstances and to lay the rules as amended before ORG within DATE of the passing of the resolution ( section CARDINAL(CARDINAL ) ) . The statement of rules thus amended is subject to the same procedure as the original statement . Because of the continuous nature of decision - making by immigration officers , the statement originally laid is not abrogated by any negative resolution ; it will come into operation when made or on the date therein provided and will remain in force until replaced .

The exact legal status of the rules is of some complexity . This question was considered by ORG in NORP v. Secretary of ORG for ORG , ex parte PERSON [ DATE ] CARDINAL All England Law Reports CARDINAL , when Lord ORG said :

" [ The Home Secretary 's rules ] are not rules of law . They are rules of practice laid down for the guidance of immigration officers and tribunals who are entrusted with the administration of the [ DATE Act ] . They can be , and often are , prayed in aid by applicants before the courts in immigration cases . To some extent the courts must have regard to them because there are provisions in the LAW itself , particularly in section DATE , which show that in appeals to an adjudicator , if the immigration rules have not been complied with , then the appeal is to be allowed . In addition the courts always have regard to those rules , not only in matters where there is a right of appeal ; but also in cases under prerogative writs where there is a question whether officers have acted fairly . But they are not rules in the nature of delegated legislation so as to amount to strict rules of law . "

Lord Justice PERSON also doubted whether the rules constituted delegated legislation . He observed : " These rules are very difficult to categorise or classify . They are in a class of their own . They are certainly a practical guide for ... immigration officers .... Indeed they are , as to large parts , ... little more than explanatory notes of the [ CARDINAL LAW ] itself . " However , he noted that if ORG disapproved of the rules , they were not thereby abrogated . Furthermore , at least as far as an adjudicator dealing with appeals was concerned , the rules had the force of law , although it seemed that they could be departed from with the consent of the applicant himself .

Lord Justice PERSON said :

" [ The rules ] are a totally different kind of publication from the rules that usually come into being under the authority delegated to Ministers under Acts of ORG ; ... they are not in my view in any sense of themselves of legislative force . It is true that ... the rules are given legal effect in the field of the appellate process to the adjudicator or the tribunal .... But the legal effect that the rules have in that limited field flows not from the fact that they have been published by the Minister and laid before ORG , but because by section CARDINAL(CARDINAL ) of the [ CARDINAL LAW ] the rules are given an effect which is in a certain field clearly legally enforceable , and that is a quite different matter . "

Notwithstanding that an application for entry clearance ( see paragraph CARDINAL ( b ) below ) or leave to enter or remain may fall to be refused under the relevant immigration rules , the Home Secretary has a discretion , deriving from historic prerogative powers , to authorise in exceptional circumstances the grant of entry clearance or of leave to enter , or to allow a person to remain in GPE . Where the applicant is a husband seeking to join or remain with his wife settled in GPE , factors which the ORG Secretary will consider include the extent of her ties with that country and of the hardship she might suffer by going to live abroad , and any recommendations by the immigration appellate authorities ( see paragraphs DATE below ) .

The rules in force at the time of the events giving rise to the present case were contained in the " Statement of Changes in Immigration Rules " ( ORG CARDINAL ) , laid before ORG on DATE ( " the DATE Rules " ) ; they applied to all decisions taken on or after DATE , except those relating to applications made on or before DATE . A draft of the rules had previously been included in a ORG published in DATE .

The DATE Rules , which in paragraph CARDINAL instructed immigration officers to carry out their duties without regard to the race , colour or religion of the intending entrant , detailed firstly the controls to be exercised on the entry into GPE of " non - patrials " and then those to be exercised after entry . The former depended on whether the individual concerned was coming for temporary purposes ( for example , visitors or students ) , for employment or business or as a person of independent means , or for settlement . As under the rules previously in force , visitors were normally to be prohibited from taking employment and persons wishing to come for employment were subject to strict regulations as to work permits . The work - permit requirements , however , did not apply to nationals of other member GPE of ORG nor to persons covered by the " GPE ancestry rule " ; under the latter rule , which had been in force since the DATE Act came into operation , a GPE citizen having a grandparent born in GPE and wishing to take or seek employment in GPE could obtain indefinite leave to enter even without a work permit . A further exception was to be found in the " working holiday rule " , whereby young GPE citizens could , without a permit , take employment incidental to an extended holiday being spent in GPE ; however , the period of their stay could , under LAW , not exceed DATE . All these exceptions have been maintained in subsequent immigration rules .

A particular feature of the changes introduced by the DATE Rules was the inclusion of a number of provisions directed towards implementing a policy of protecting the domestic labour market at a time of high unemployment by curtailing " primary immigration " , that is immigration by someone who could be expected to seek full - time work in order to support a family . In taking these measures , the Government were concerned also to advance public tranquillity and , by exercising firm and fair immigration control , to assist in securing good community relations .

To these ends , among the changes effected was the introduction of stricter conditions for the grant of leave to a " non - patrial " husband or fiancé seeking to join or remain with his wife or fiancée settled in GPE . Previously , any such husband or fiancé would normally have been allowed to settle after a qualifying period , provided that the primary purpose of the marriage was not to obtain settlement in that country . These new measures were not extended to the wives and fiancées of settled men , a fact attributed by the Government to long - standing commitments ( based allegedly on humanitarian , social and ethical reasons ) to the reunification of the families of male immigrants . Nor did the new measures apply to nationals of other member GPE of ORG .

The relevant provisions of the DATE Rules - and of their successors - are summarised below in terms of the following expressions .

( a ) A person is " settled in GPE " when he or she is ordinarily resident there without having entered or remained in breach of the immigration laws , and is free from any restriction on the period for which he or she may remain ( paragraph CARDINAL ) .

( b ) An " entry clearance " ( paragraphs CARDINAL - CARDINAL ) is a document ( either a visa , an entry certificate or a ORG letter of consent , depending on the nationality of the person concerned ) which is to be taken by an immigration officer as evidence that the holder , although a " non - patrial " , is eligible under the immigration rules for entry to GPE . It is obtained at NORP missions abroad or from ORG prior to arrival in GPE .

( c ) A marriage or intended marriage is " non - qualifying " if there is reason to believe that :

- its primary purpose is to obtain admission to or settlement in GPE ; or

- the parties do not intend to live together permanently as man and wife ; or

- the parties have not met ( paragraphs CARDINAL , DATE and CARDINAL ) .

( d ) There is " potential evasion of the rules " if there is reason to believe that a husband has remained in GPE in breach of the immigration rules before the marriage , that the marriage has taken place after a decision or recommendation that he be deported or that the marriage has terminated ( paragraph CARDINAL ) .

( e ) The " financial requirement " is a requirement that varies according to the circumstances of the particular case : basically it means that adequate maintenance and accommodation must be available to the person concerned without the need for recourse to public funds ( paragraphs DATE , DATE and DATE ) .

Where a " non - patrial " whose spouse or intended spouse was " settled in GPE " came to that country for settlement , he or she would be admitted for that purpose provided that he or she held a current " entry clearance " and unless the circumstances specified in paragraph CARDINAL of the DATE Rules obtained ( for example , false representations , medical grounds , criminal record , exclusion would be conducive to the public good ) .

( a ) Where the intending entrant was a husband or fiancé , he could , under paragraphs CARDINAL and DATE , obtain an " entry clearance " :

( i ) unless the marriage or intended marriage was " non - qualifying " ;

( ii ) if his wife or fiancée was a citizen of GPE who or one of whose parents had been born in GPE ; and

( iii ) if , in the cases of fiancés only , the " financial requirement " was satisfied .

( b ) Where the intending entrant was a wife or fiancée , she could , under DATE , DATE and DATE , obtain an " entry clearance " irrespective of the nationality of her husband or fiancé or of his own or his parents ' place of birth . Here , there was no provision as to " non - qualifying " marriages , but the " financial requirement " had generally to be satisfied .

( c ) Wives admitted under these rules would be given indefinite leave to enter ; husbands would be initially admitted for DATE and fiancés or fiancées for DATE , with the possibility , subject to certain safeguards , of applying subsequently to ORG for indefinite leave ( DATE , DATE , DATE , DATE , CARDINAL and CARDINAL ) .

" Non - patrials " already admitted to GPE in a temporary capacity who subsequently married a person " settled in GPE " could also obtain permission to stay .

( a ) Where the " non - patrial " seeking permission was a man , the basic conditions ( paragraph CARDINAL ) were that :

( i ) his wife was a citizen of GPE who or one of whose parents had been born in GPE ; and

( ii ) the marriage was not " non - qualifying " and there was not " potential evasion of the rules " .

( b ) Where the " non - patrial " seeking permission was a woman , she would normally be granted leave to remain on application ( paragraph CARDINAL ) .

( c ) Leave to remain granted under these rules would be , for wives , indefinite and , for husbands , for an initial period of DATE with the possibility , subject again to the conditions referred to in sub - paragraph ( a ) ( ii ) above , of subsequent removal of the time - limit ( paragraphs CARDINAL and CARDINAL ) .

Decisions on applications for leave to remain were taken in the light of all relevant facts ; thus , even where the individual satisfied the formal requirements , permission would normally be refused if the circumstances specified in paragraph CARDINAL of the DATE Rules obtained ( for example , false representations , non - compliance with the time - limit or conditions subject to which he or she had been admitted or given leave to remain , undesirable character , danger to national security ) .

CARDINAL result of QUANTITY was that the right of abode in GPE became divorced from nationality : thus , a number of citizens of GPE did not have that right ( for example , because they had not been born in GPE ; see paragraph CARDINAL ( a ) above ) , whereas it was enjoyed by a number of persons who were not such citizens ( for example , GPE citizens having an ancestral link with GPE ; see paragraph CARDINAL ( c ) above ) . With a view to bringing citizenship and immigration laws into line , the position was substantially amended by LAW DATE , which came into force on DATE . So far as is relevant for the present purposes , that Act :

( a ) replaced citizenship of GPE ( see paragraph CARDINAL in fine above ) with CARDINAL separate citizenships , " NORP " , " British Dependent Territories " and " ORG " ;

( b ) provided , in section CARDINAL(CARDINAL ) , that on DATE " NORP citizenship " was to be acquired by persons who were then citizens of GPE and had the right of abode in GPE under LAW ; this category could include a person who was neither born nor had a parent born in GPE ( see paragraph CARDINAL ( b ) above ) ;

( c ) laid down detailed provisions on the acquisition of NORP citizenship by persons born after DATE ;

( d ) contained , in section CARDINAL and Schedule CARDINAL , detailed provisions on naturalisation as a NORP citizen on the basis of residence in GPE , the grant of a certificate of naturalisation being at the discretion of the Home Secretary ;

( e ) amended LAW by providing in section CARDINAL that the right of abode in GPE - use of the expressions " patrial " and " non - patrial " was abandoned - and the consequential freedom from immigration controls were in future to be enjoyed only by NORP citizens and by such ORG citizens as on DATE had the right of abode under LAW .

On DATE , after debates in ORG and ORG , the ORG Secretary laid before ORG a Statement of Changes in Immigration Rules ( ORG CARDINAL ; " the DATE Rules " ) , intended to harmonise the immigration rules with LAW DATE and expressed to come into force on DATE . However , on DATE ORG passed a resolution disapproving the Statement , some Members finding the changes too lax and others , insufficient . Since by DATE no further changes had been laid before ORG , the DATE Rules came into force on that date , notwithstanding the negative resolution ( see paragraph CARDINAL above ) .

The DATE Rules made no changes to the regime governing wives and fiancées , described in paragraphs CARDINAL above . The regime governing a husband or fiancé was modified in the following main respects .

( a ) The requirement that , for him to be eligible for leave to enter or remain , his wife or fiancée had to be a citizen of GPE born or having a parent born in GPE was , under paragraphs CARDINAL , DATE and CARDINAL , replaced by a requirement that she be a NORP citizen . The place of her own or her parents ' birth ceased to be material since NORP citizens could include persons without the territorial birth link ( for example , a woman born in a former ORG but having the right of abode in GPE by virtue of long residence there ; see paragraphs CARDINAL ( b ) and CARDINAL ( b ) above ) .

( b ) By virtue of CARDINAL , DATE and CARDINAL , the onus of proof was reversed , so that it became for the man seeking leave to enter or remain to show that the marriage was not " non - qualifying " or , in cases to which paragraph CARDINAL applied , that there was not " potential evasion of the rules " .

( c ) Leave to remain for settlement following marriage , granted to a man admitted in a temporary capacity ( cf . paragraph CARDINAL ( c ) above ) , would be for an initial period of DATE , followed by a further period of DATE and then by the possibility , subject again to the conditions referred to in sub - paragraph ( b ) above , of subsequent removal of the time - limit ( paragraph CARDINAL ) .

No provision was made in the DATE Rules for women settled in GPE who were not NORP citizens to be joined by their husbands , although leave could be granted by the ORG Secretary in the exercise of his extra - statutory discretion ( see paragraph CARDINAL above ) . These women could also apply for naturalisation as NORP citizens on the basis of residence , under section CARDINAL of LAW DATE ( see paragraph CARDINAL ( d ) above ) .

On DATE , a further Statement of Changes in Immigration Rules ( ORG CARDINAL ; " the DATE Rules " ) was laid before ORG . A motion disapproving these rules was defeated in ORG and they came into force on DATE .

The DATE Rules again did not modify the regime governing wives and fiancées . That governing husbands was amended , so far as is material to the present case , in that , under paragraph CARDINAL , the position concerning the length of leave to remain granted to a man already in GPE reverted to that obtaining under LAW ( that is , initial leave of DATE , followed by the possibility of indefinite leave ; see paragraph CARDINAL ( c ) above ) . This change was coupled with a transitional provision ( paragraph CARDINAL ) concerning men who , whilst the DATE Rules were in force ( see paragraph CARDINAL ( c ) above ) , had been granted thereunder an extension of stay for a second period of DATE : they were entitled to apply immediately for indefinite leave without awaiting the expiry of that period .

There was no change in the position concerning women settled in GPE who were not NORP citizens , described in paragraph CARDINAL above .

Under sections CARDINAL(CARDINAL)(a ) , CARDINAL(CARDINAL ) , CARDINAL , DATE , DATE and CARDINAL ) of LAW , a person not having the right of abode in GPE and having only limited leave to enter or remain in that country who overstays the period of leave or fails to observe a condition attached thereto :

( a ) commits a criminal offence punishable with a fine of not MONEY CARDINAL or imprisonment of not DATE or both , to which penalties the court may , with certain exceptions , add a recommendation for deportation ; and

( b ) is , with certain exceptions , liable to deportation , although he can not be compelled to leave unless the Home Secretary decides to make a deportation order against him .

Appellate authorities in immigration matters were established by LAW DATE . They consist of :

( a ) adjudicators , who sit alone and are appointed by the ORG Secretary ;

( b ) ORG which sits in divisions of CARDINAL members ; the members are appointed by the Lord Chancellor and a certain number must be lawyers .

There is no further right of appeal as such to the ordinary courts , but decisions of the appellate authorities are susceptible to judicial review by ORG on the ground of such matters as error of law or unreasonableness . ORG review of immigration decisions may also cover questions of an abuse or excess of power by the ORG Secretary or whether an immigration officer acted impartially and fairly .

Under sections CARDINAL , DATE and CARDINAL of the DATE Act , an appeal may , subject to certain exceptions , be made to an adjudicator against , inter alia :

( a ) refusal of leave to enter GPE or of an entry clearance ;

( b ) variation of , or refusal to vary , a limited leave to remain in GPE ;

( c ) a decision to make a deportation order .

An appellant shall not be required to leave GPE by reason of the expiration of his leave so long as his appeal is pending against a refusal to enlarge or remove the limit on the duration of the leave . However , no appeal lies against refusal of an extension of leave to remain if application therefor was made after expiry of the existing leave .

Except as otherwise provided by LAW , an adjudicator is , under section CARDINAL(CARDINAL ) , to allow an appeal only if he considers :

( a ) that the decision or action in question was not in accordance with the law or any immigration rules applicable to the case ; or

( b ) that , where the decision or action involved the exercise of a discretion by the Home Secretary or an officer , that discretion should have been exercised differently .

If , however , the decision or action is in accordance with the rules , the adjudicator may not review a refusal by the Home Secretary of a request , by the person concerned , that he should depart from the rules ( section CARDINAL(CARDINAL ) ) .

Where an appeal is allowed , the adjudicator must give such directions for giving effect to his decision as he thinks requisite and may also make further recommendations ; the directions are binding on the ORG Secretary except so long as an appeal to ORG can be brought or is pending ( sections ORG ) and CARDINAL ) ) .

Any party to an appeal to an adjudicator may appeal against his decision to ORG , which may affirm that decision or make any other decision which the adjudicator could have made ; it also has similar duties and powers in the matter of directions and recommendations . As the law stood at the relevant time , leave to appeal had generally to be obtained ; it had to be granted , inter alia , if determination of the appeal turned upon an arguable point of law ( section CARDINAL(CARDINAL ) of LAW and Rule CARDINAL of ORG DATE ) .

( a ) The Government estimated total immigration into GPE from GPE ( that is , the ORG except GPE , GPE and GPE ) at CARDINAL in the period from DATE to DATE . It was thought that by DATE CARDINAL people had the right of abode ( see paragraphs CARDINAL - CARDINAL above ) in GPE . DATE , a further CARDINAL people were estimated to have settled in that country from ORG and GPE , CARDINAL from non - Commonwealth countries other than GPE and CARDINAL from GPE ( GPE , GPE and GPE ) ; relatively few countries were said to have accounted for most of this immigration .

The official estimates for DATE show that the population of GPE ( CARDINAL ) included CARDINAL persons of GPE and GPE origin ( of whom CARDINAL were in the LOC area ) and CARDINAL other persons not born in GPE ( including those born in GPE but not those born in GPE ) . It is estimated that the population of GPE and GPE origin could rise to CARDINAL by DATE and CARDINAL ( MONEY of the projected total population ) by DATE .

( b ) According to the ORG , CARDINAL persons entered GPE DATE under the " GPE ancestry rule " ( see paragraph CARDINAL above ) , but many of them emigrated after DATE .

( c ) In DATE , there was an average net DATE emigration from GPE of CARDINAL , but the population density in DATE - CARDINAL persons per square CARDINAL or QUANTITY for GPE alone - was higher than that of any other member ORG of ORG .

( d ) Statistics supplied by the Government showed that in GPE in DATE MONEY of all men of working age and MONEY of all women of working age were " economically active " ( that is , either in employment , or self - employed , or unemployed ) . The corresponding figures for persons coming from the NORP sub - continent were MONEY for men and MONEY for women and , for persons coming from GPE or GPE , MONEY for men and MONEY for women . The statistics also disclosed that a considerably higher proportion of " economically active " women ( particularly married women ) than men were in part - time employment only - MONEY of married women , compared with MONEY of men .

DATE have seen a high level of unemployment in GPE . In DATE , MONEY of " economically active " men and MONEY of " economically active " women were unemployed , as measured by official figures based on persons claiming unemployment benefit . There was a marked increase DATE , when the figures rose from PERCENT MONEY and from CARDINAL to MONEY , respectively .

( e ) The Government also produced to the ORG detailed statistics in support of their claim that the overall effect of the DATE Rules had been to lead to an DATE reduction of CARDINAL ( rather than CARDINAL , as they had estimated before the Commission ) in the number of husbands either accepted for settlement or applying successfully to come for settlement from all parts of the world . They recognised , however , that part - though not a major part - of this figure might represent a decrease attributable to economic conditions . In their submission , this reduction was of a considerable scale when viewed in relation to the figures for the total number of persons accepted for settlement into GPE . The latter figures ( CARDINAL of which were in DATE accounted for by wives and children of men already settled in the country ) were : over CARDINAL in DATE and in DATE ; CARDINAL in DATE ; CARDINAL in DATE ; CARDINAL in DATE ; and CARDINAL in DATE . The number of men accepted for settlement by reason of marriage was CARDINAL in DATE ; CARDINAL in DATE ; CARDINAL in DATE ; CARDINAL in DATE ; CARDINAL in DATE ; CARDINAL in DATE ; CARDINAL in DATE ; CARDINAL in DATE ; and CARDINAL in DATE . The number of women so accepted was CARDINAL in DATE ; CARDINAL in DATE ; CARDINAL in DATE ; CARDINAL in DATE ; CARDINAL in DATE ; CARDINAL in DATE ; and CARDINAL in DATE .

The claimed reduction of CARDINAL per annum was questioned by the applicants on the following grounds : it was based on a comparison with the figures for DATE , a year in which the number of applications from the NORP sub - continent was artificially high ; in order to take account of the delays in processing applications and the DATE waiting - period before indefinite leave to remain would be granted , a more meaningful comparison would be between the DATE and the DATE figures ; no account was taken of the natural decline in applications ; and no account was taken of persons properly excluded ( for example , on the ground that the marriage was not genuine ) .

Mrs. PERSON is permanently and lawfully resident in GPE with the right to remain indefinitely . She was born in GPE in DATE and brought up in that country . Her parents were also born there . According to her , she was a citizen of GPE at birth but , being of NORP origin , was subsequently deprived of that citizenship and is now stateless . She holds a NORP travel document .

This applicant went to GPE on DATE . She was given leave , as a " non - patrial " ( see paragraphs CARDINAL above ) , to enter as a visitor , leave which was subsequently extended on CARDINAL occasions . Since special vouchers had been allocated to members of her family enabling them to settle in GPE , an application was made on her behalf for indefinite leave to remain . On DATE as an act of discretion outside the immigration rules ( see paragraph CARDINAL above ) , she was given such leave , essentially on the ground that she was an unmarried woman with little prospect of marriage who formed part of a close family , including her father and mother , settled in GPE .

Mr. PERSON is a NORP national who was born in PERSON , a former NORP territory in GPE , in DATE . He emigrated to GPE in DATE . On DATE , he was admitted , as a " non - patrial " , to GPE for DATE as a visitor . He met the applicant DATE and they became engaged to be married on DATE . They were married on DATE and , during DATE , Mrs. PERSON applied for leave for her husband to remain permanently in GPE . Shortly afterwards , ORG for ORG also applied for leave for him to remain , for a period of DATE .

After Mr. and Mrs. PERSON had been interviewed at ORG on DATE , her application was refused , on DATE , on the ground that she was not a citizen of GPE who , or one of whose parents , had been born in GPE ( paragraph CARDINAL of the DATE Rules ; see paragraph CARDINAL ( a ) ( i ) above ) .

Mr. PERSON appealed to an adjudicator ( see paragraphs CARDINAL above ) against this decision but the appeal was dismissed on DATE as he did not qualify for leave to remain under LAW . The adjudicator pointed out that , had the application been made before DATE or the decision taken before DATE , Mr. PERSON would have been admitted , under the previous rules ( see paragraphs CARDINAL above ) . Leave to appeal to ORG was refused by the ORG on DATE on the ground that the determination of the appeal did not turn on any arguable point of law and that leave to appeal was not otherwise merited ( see paragraph CARDINAL above ) .

Subsequently Mr. PERSON remained , and still remains , in GPE , without leave . He is currently employed as a chef in a restaurant ; his wife does not work . A son was born to the couple in DATE . In a letter of CARDINAL DATE to CARDINAL Member , the Minister of State at ORG indicated that the authorities would shortly be advising Mr. PERSON to depart without delay , adding that if he did not , " consideration will have to be given to enforcing his departure " ; however , a letter of CARDINAL DATE to another Member stated that " [ the Minister did ] not propose for the time being to take any action regarding [ Mr. PERSON 's ] removal " . In fact , the authorities have not to date instituted any criminal or deportation proceedings ( see paragraph CARDINAL above ) against him ; their decision , according to the Government , was taken in the light of all the circumstances , including the ORG 's decision on the admissibility of Mrs. PERSON 's application ( see paragraph CARDINAL below ) .

The couple 's situation has not until now been changed by the DATE or the CARDINAL Rules since Mrs. PERSON , although settled in GPE , is not a NORP citizen ( see paragraphs DATE above ) . She has , however , applied , on DATE , for naturalisation as such a citizen , under section CARDINAL of LAW DATE ( see paragraph CARDINAL ( d ) above ) .

At the ORG interview , Mr. PERSON said that his wife could not be expected to live in GPE because she had always been close to her family and because her sick father - who in fact died in DATE - needed her company . Before the ORG and the ORG , she claimed that her health was under strain because of her husband 's settlement problems and that humanitarian considerations prevented her going to GPE , a country where she had no family and whose language she did not speak . The Government maintain that there is no obstacle whatever to her going with her husband to live in GPE .

Mrs. PERSON is permanently and lawfully resident in GPE with the right to remain indefinitely . She was born in the GPE in DATE and was brought up there , and is of NORP origin . She had the nationality of that country until DATE ( see paragraph CARDINAL below ) . Her parents were born and live in the GPE .

This applicant went to GPE in DATE with a work permit for employment as a nursing assistant and was admitted , as a " non - patrial " ( see paragraphs CARDINAL above ) , for DATE . She remained in approved work thereafter and , on DATE , the conditions attached to her stay were removed and she was allowed to remain in GPE indefinitely . She is now employed , and has an established career , as a ORG - enrolled nurse .

Mr. PERSON is a citizen of the GPE , born in that country in DATE . He met the applicant in GPE in DATE when she was on holiday and again in DATE when she was there for DATE . During the latter period , the couple became engaged . On DATE , they went through a ceremony of marriage in the GPE . The applicant returned to GPE shortly afterwards to take up her job again . In DATE , she informed ORG of the marriage and applied for leave for Mr. PERSON to enter GPE , a request which she repeated in DATE . On DATE , he , being a " non - patrial " , applied to ORG in GPE for a visa to join his wife for settlement in GPE .

After Mrs. PERSON had supplied certain further information requested by it , ORG wrote to her on DATE to advise her that the visa application had been refused on the ground that she was not a citizen of GPE who , or one of whose parents , had been born in GPE ( paragraph CARDINAL of the DATE Rules ; see paragraph CARDINAL ( a ) ( ii ) above ) . Notice of the decision was not handed to Mr. PERSON until DATE as he had failed to respond to an invitation of DATE to attend at ORG for that purpose .

On DATE , ORG for ORG wrote to ORG , seeking a review of this decision . However , on DATE , the ORG , having considered the circumstances , informed the ORG of its decision to maintain the refusal . Mr. PERSON had on DATE lodged an appeal with an adjudicator ( see paragraphs CARDINAL above ) against the decision but the appeal was dismissed on DATE on the ground that the visa officer 's decision was in accordance with the law and the immigration rules . The adjudicator , who noted that Mrs. PERSON had not taken legal advice but had thought at the time of the marriage ceremony that a forthcoming change in the law would allow Mr. PERSON to be admitted , expressed the hope that the authorities would look at the case sympathetically . This was not initially recognised by the authorities as a recommendation , but the ORG Secretary subsequently concluded that there were not sufficient grounds for acting outside the immigration rules . There is no record of an application for leave to appeal to ORG . Representations to ORG were also rejected , basically on the ground that the couple could live together in the GPE and that there were not sufficient reasons for the ORG Secretary to exercise his extra - statutory discretion .

DATE and DATE , Mr. PERSON continued to live in the GPE and the couple were separated , apart from a short period in DATE when Mrs. PERSON visited that country . However , following an application made by her in DATE under LAW DATE ( see paragraph CARDINAL ( d ) above ) , Mrs. PERSON obtained naturalisation as a NORP citizen with effect from DATE ; she thereby lost her NORP citizenship . On DATE , Mr. PERSON applied for entry clearance for permanent settlement as the husband of a NORP citizen , under paragraph CARDINAL of the DATE Rules ( see paragraphs DATE above ) . For the reasons and in the circumstances indicated in the following paragraph , this application was refused on DATE but , on DATE , Mr. PERSON applied for and was granted a visa entitling him to enter GPE for DATE for the purposes of marriage . He arrived in that country on DATE and the parties were married there on DATE . On DATE , he was granted leave to remain as a husband for DATE ; on the expiry of that period , he will be eligible to apply for indefinite leave .

In a memorial filed with ORG on DATE , the ORG questioned the validity of the DATE marriage ( see paragraph CARDINAL above ) . Under Articles CARDINAL and CARDINAL of the Philippine Civil Code , a marriage solemnised without a licence was to be considered void , save in the case of a " marriage of exceptional character " , that is CARDINAL between persons who have lived together as husband and wife for DATE ( Article CARDINAL ) . The ORG marriage contract recited that the ceremony the couple went through in DATE had been performed , without a licence , under LAW . The parties had stated in a contemporaneous affidavit that they had previously cohabited for DATE , but according to Mrs. PERSON ' version of the facts this could not be so since she had not met Mr. PERSON until DATE ( see paragraph CARDINAL above ) . According to the Government , the requirements of LAW were therefore not satisfied and the marriage thus had to be considered void .

At the hearings on DATE , the applicant 's counsel expressed the view that , assuming a defect existed , it was purely formal and the status of Mr. and Mrs. PERSON could be regarded as akin to that of the parties to a common - law marriage . Her representative subsequently filed with the ORG details of the advice he had received from NORP lawyers , to the effect that under the law of that country the marriage was to be presumed valid unless and until it was declared void by a court . The Government replied that they had been advised that the marriage was void ab initio and that no judicial decree was necessary to establish its invalidity . This opinion was contradicted in further advice obtained on behalf of Mrs. PERSON .

Mr. and Mrs. PERSON were interviewed by the GPE authorities in DATE and DATE . They adduced no evidence to alter the ORG 's conclusion that the marriage was void . However , Mrs. PERSON stated that if Mr. PERSON were admitted to GPE , the couple would go through a ceremony of marriage in that country . It was in these circumstances that in DATE Mr. PERSON was refused leave to settle as a husband but was regarded as eligible , under the DATE Rules , for leave to enter GPE temporarily as the fiancé of a NORP citizen .

Before the ORG and the ORG , Mrs. PERSON submitted that there would have been real obstacles to her returning to live in the GPE : she was too old , her qualifications were not recognised there and , by working in GPE , she was able to support financially her parents and other members of her family . These claims were contested by the Government , in particular on the ground that it was unrealistic to suppose that her nursing skills could not be put to good use in the GPE .

Mrs. PERSON is permanently and lawfully resident in GPE with the right to remain indefinitely . She was born in GPE in DATE or DATE . Her parents were born and live in that country .

This applicant first went to GPE in DATE and was given leave , as a " non - patrial " ( see paragraphs QUANTITY above ) , to enter as a visitor for DATE . Subsequently , she obtained several further leaves to remain , as a visitor or a student , the last being until DATE . She has a high level of university education . In DATE , she married a Mr. PERSON , a citizen of GPE , and , DATE , was given indefinite leave to remain in GPE , by virtue of her marriage , under the provisions then in force . On DATE , again by virtue of her marriage , she obtained registration as a citizen of GPE under LAW DATE , as a result of which she became a " patrial " ( see paragraphs CARDINAL in fine and CARDINAL ( a ) above ) . At that time , she was already separated from Mr. PERSON and the marriage was dissolved in DATE .

Mr. PERSON is a NORP national born in GPE on DATE . In DATE , he was granted leave , as a " non - patrial " , to enter GPE , apparently as a visitor , for DATE . Subsequently , he obtained leave to remain as a student until DATE . His application of DATE for an extension of this leave was refused on DATE because he had not attended his course of studies and the ORG Secretary was not satisfied that he was a genuine student who intended to leave the country on their conclusion . Since his application for an extension had been made after his leave had expired , he had no right of appeal under LAW ( see paragraph CARDINAL above ) ; he was advised to leave GPE and warned of the risk of criminal or deportation proceedings ( see paragraph CARDINAL above ) if he did not .

Since DATE , the applicant had been living with Mr. PERSON . In DATE they had a son , who has the right of abode in GPE . On DATE , an application was made by ORG for ORG for leave for Mr. PERSON to remain in GPE until he married his fiancée , the applicant . They were interviewed together by ORG officials on DATE and produced evidence of their marriage , which had been celebrated in DATE . The application was therefore treated as one to remain as the husband of a woman settled in GPE .

Leave was refused on DATE on the ground that Mrs. PERSON was not a citizen of GPE who , or one of whose parents , had been born in GPE ( paragraph CARDINAL of the DATE Rules ; see paragraph CARDINAL ( a ) ( i ) above ) . There was no right of appeal against this decision as Mr. PERSON had no current leave to remain at the time when his application was made ( see paragraph CARDINAL above ) . Representations through a Member of ORG to ORG were rejected , basically on the ground that the couple could live together in GPE and that there were not sufficient compelling compassionate circumstances to warrant exceptional treatment outside the immigration rules . In a letter of DATE to the Member , the Minister of State at ORG wrote that " Mr. PERSON should now make arrangements to leave GPE forthwith , otherwise arrangements will be made to enforce his departure " ; however , a letter of DATE to the Member stated that " [ the Minister did ] not propose for the time being to take any action against [ Mr. LANGUAGE ] " . In fact , the authorities did not at any time institute criminal or deportation proceedings ( see paragraph CARDINAL above ) against him ; their decision , according to the Government , was taken in the light of all the circumstances , including the ORG 's decision on the admissibility of Mrs. PERSON 's application ( see paragraph CARDINAL below ) .

On DATE , as the husband of a NORP citizen , Mr. PERSON was given DATE leave to remain in GPE in accordance with paragraph CARDINAL of LAW ( see paragraph CARDINAL ( a ) above ) ; this was possible because , on DATE , Mrs. PERSON had automatically acquired NORP citizenship by virtue of LAW DATE ( see paragraph CARDINAL ( b ) above ) . Mr. PERSON subsequently applied for indefinite leave to remain and this was granted on DATE under paragraph CARDINAL of the CARDINAL Rules ( see paragraph CARDINAL above ) . In DATE , he was working in the catering business and planned shortly to open a restaurant ; his wife was working DATE a week in a creche .

Before the ORG and the ORG , Mrs. PERSON submitted that there would have been real obstacles to her going with her husband to live in GPE : she cited her strong ties to GPE and alleged that as an educated woman and the mother of an illegitimate child she would have been treated as a social outcast in GPE . The Government maintain that there were no real obstacles .


Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicants , Todor PERSON and PERSON , are NORP nationals who were born in DATE and DATE respectively and live in GPE . They are represented before the ORG by Mr PERSON and PERSON , lawyers practising in GPE .

The applicants are spouses . In DATE they bought from the ORG municipality a ORG - owned apartment , which had been managed by the company C.

On DATE the applicants bought from the municipality an attic room in the same building for CARDINAL old NORP levs ( “ BGL ” ) .

Apparently , following the legal reforms of DATE ( see below , Relevant background facts , domestic law and practice ) , the company C. considered that it had become the owner of the attic room and on an unspecified date it granted the tenancy of the room to PERSON and PERSON

In DATE the applicants brought a rei vindicatio action against PERSON and PERSON claiming the possession of the room .

In a judgment of DATE ORG dismissed the claim . On DATE ORG upheld the lower court ’s judgment . It found , inter alia , that the sale contract of DATE was null and void ab initio as it had not been signed by the mayor , as required by law , but by another official of the municipality . The applicants , thus , had not shown that they were the owners of the attic room .

In the meanwhile , on DATE the company ORG sold the attic room to PERSON and PERSON

On DATE the applicants brought an action against C. seeking back the price they had paid for the attic room in DATE , updated in accordance with the inflation indexes .

On DATE ORG dismissed the claim finding that the DATE sale contract had been found to be null and void in proceedings , which had not involved the company C. ; it was not therefore bound by this founding of nullity .

Upon appeal by the applicants , on DATE ORG reversed the judgment and held that the applicants were in principle entitled to recovery of the sum . It awarded them the amount they had paid for the attic in DATE , the equivalent of ORG CARDINAL . However , as a result of inflation and the depreciation of the NORP currency after DATE , the sum amounted to approximately LAW .

In a final judgment of DATE ORG dismissed the applicants’ claim . It found that the action had been time - barred as the DATE time limit for seeking the recovery of what had been paid under a void contract started running from DATE of payment , which in this case had been in DATE .

By section CARDINAL ( CARDINAL ) of LAW , everyone who has paid a sum of money on a non - existent ground is entitled to seek its recovery . In a binding interpretative decision of DATE ORG ( now ORG ) held that the time - limit to bring such an action started running from the moment of payment ( ORG No . CARDINAL of the Plenary of ORG of CARDINAL DATE , case No . CARDINAL/CARDINAL ) .

In accordance with the NORP courts’ established practice revalorisation of claims to reflect inflation and currency depreciation is not possible .

Until DATE , all commercial assets were the property of the ORG and were only allocated to ORG enterprises for “ use and management ” . After the beginning of democratisation and economic change and the ensuing transformation of these enterprises into ORG - owned limited liability or joint stock companies , the transformed companies acquired ownership of real estate or other assets they had used and managed ( see , for more detail , the ORG ’s description of this transformation in the case of ORG and Others v. GPE ( no . CARDINAL/CARDINAL , ORG DATE ) ) .


Reminder inadmissible;Violation of Art. 6-1 and 6-3-c;Violations of Art. 6-1;No violation of Art. 6-1

Christos Rozakis;Dean Spielmann;George Erotocritou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

The applicant was born on CARDINAL DATE and is currently serving concurrent sentences of imprisonment at FAC .

In the context of a police investigation concerning a murder and robbery which took place on DATE , the police contacted the applicant ’s father and invited him and the applicant to visit the GPE police station . At the time the applicant was just over DATE . The applicant went to the police station accompanied by his father . The GPE District Police Director ( hereinafter “ the Police Director ” ) informed the applicant ’s father , in the presence of the applicant , about the crime that had been committed , the seriousness of the case , and the fact that there was evidence involving the applicant and that an arrest warrant had been issued against him .

According to the applicant , he immediately stated that he was innocent . Another police officer told him that his friend had already confessed to murdering the victim together with the applicant . The police officer added that the applicant ’s friend was crying and hitting his head against a wall while he ( the applicant ) was merely lying to them . Then , another police officer came into the Police Director ’s room holding an arrest warrant and informed the applicant that he was under arrest for murder . The applicant replied that he had nothing to add to his statement that he was innocent . The police officer then told the applicant to follow him into a different office . There there were CARDINAL or CARDINAL officers who started asking him questions and inducing him to confess , promising that if he did so they would assist him . They questioned him for TIME but he kept saying that he could not remember anything as he had been very drunk TIME . At some stage during the interrogation a police officer put his gun on the desk and told the applicant that he should hurry up as they had other things to do . The police officers told him that if he wanted to go he should confess . Subsequently a police officer suggested that they take a written statement from the applicant and that the police officers would remind him of anything he could not remember . The applicant then agreed to make a written statement . He denied having made any prior oral admission .

According to the ORG , relying on the testimonies of the police officers participating in the interrogation , the applicant was shown the arrest warrant and informed of the reasons for his arrest , and had his attention drawn to the law . The applicant replied that he had nothing to say other than that he was innocent . He was then taken to a different room for questioning . Before the applicant was questioned the arresting officer explained again the reasons for his arrest , repeated that there was evidence involving the applicant in the circumstances under investigation and cautioned him that anything he said could be used against him in subsequent proceedings . There were CARDINAL police officers present in the room . The applicant replied that he had not intended to kill anyone and started to give an explanation of the events . According to the arresting officer , the applicant was interrupted and his attention was drawn to the law . During the questioning the applicant confessed his guilt .

The parties agreed that when the applicant was taken away for questioning , his father remained in the Police Director ’s office . He was shocked and after TIME told the Police Director that they should not use violence against his son . The Police Director replied that the police did not use such practices and added that the case was serious , that there was evidence linking the applicant with the crime and that it was important to seek the advice of a lawyer . He asked the applicant ’s father whether he wanted to be present while his son was questioned . The father declined the offer . TIME , a police officer entered the room and informed the Police Director and the applicant ’s father that the applicant had confessed . The Police Director invited the applicant ’s father to join his son in the interview room so that he could hear what his son had admitted . The applicant ’s father preferred to wait outside .

The applicant was charged with manslaughter and robbery under LAW ( PERSON . CARDINAL ) . On DATE the applicant noted in an additional written statement : “ I did not hit him ( the victim ) with the stone but only kicked him a couple of times . ”

NORP The applicant and his co - accused were brought for trial before ORG .

During the trial the applicant maintained that his confession to the police had not been voluntary but the product of deception , psychological pressure , promises , threats and other tactics aimed at creating fear . He also argued that at the time he had made his statement to the police he had been drunk and , therefore , he had not been in a position to remember accurately the facts described in that statement . Furthermore , the applicant argued that he had not had legal advice immediately after his arrest and before being questioned and induced to sign the written statement .

On DATE the court heard the evidence of the Police Director concerning the applicant ’s arrest and questioning . The Director confirmed that he had invited the applicant and his father to his office , where he had told the father , without addressing the applicant , that an arrest warrant had been issued against the applicant in connection with a murder and that there was evidence linking the applicant to the crime . The applicant had then been cautioned , arrested and taken into a separate room for questioning . Shortly after the applicant left the room the Director had explained to the applicant ’s father the seriousness of the case and suggested that they find a lawyer .

On DATE ORG , having considered all the evidence put before it , found that the applicant ’s confession had been voluntary and that he had not been subjected to any undue or improper pressure by the police to secure it . The evidence of the prosecution gave a clear picture of the events that had taken place and the court dismissed the applicant ’s allegations that , at the time of his confession , he had suffered loss of memory due to drunkenness . The confession was , therefore , admissible as evidence .

As regards the applicant ’s claims concerning the lack of legal representation before his questioning , the court noted that the defence had not relied on any provision or authority recognising a right to have legal advice as a condition for receipt of an accused ’s statement . Nor had the applicant or his father requested a lawyer and been refused CARDINAL by the police . Moreover , the Director of Police had advised the applicant ’s father that he and his son should seek legal representation . Overall , there had been no inappropriate action on the part of the police in this respect .

Subsequently , on DATE , during the main trial , the following exchange took place between the applicant ’s lawyer , Mr GPE , and the bench ( translation of verbatim record of the proceedings ) :

“ Mr PERSON : I will ask the prosecution to give me all the statements of suspects who made a statement about this case so that I can continue my cross - examination of this witness . The prosecution is obliged to supply me with all the statements taken from other suspects and it is not permissible in our view for the prosecution to hide behind this .

Court : First we want you to lower the tone of your voice . You do not let slip an opportunity to attack the prosecution who we believe is trying to present its case in a fair way , at least as the facts so far show . If you asked at some stage for the statements to be given to you and the prosecution refused , that is another matter .

Mr PERSON : I believed that I would get this from the case file , now I am deprived of this right . I want the complete case file . I can not continue my cross - examination of this witness if I do not have the complete case file .

PERSON ( prosecutor ) : The position of the prosecution on the basis of LAW ( is that ) to make any complaint the Defence must apply in writing to the prosecution to ask for any statement in the file and if the Prosecution refuses , then the defence is entitled to complain .

Here , the defence did not apply in writing ; certain particulars , photographs , plans were asked for verbally and whatever was asked for was given and the prosecution never refused to give anything to the defence . This process did not happen and it is my position that this attitude of the defence is not justified .

Court : We have considered the request of the learned counsel of accused no . CARDINAL for the ORG to interrupt the proceedings so that he can get statements of persons who gave statements during the investigation of the case from his opponents . As stated earlier today , the defence had a right , on the basis of LAW , Cap.CARDINAL , to request to be supplied with the said copies from DATE when the accused pleaded not guilty , but failed to do so .

We do not consider it expedient to break after so much delay and to create a fresh delay for this purpose . In any case , the ORG in the present case is occupied with whether the prosecution will succeed in proving the guilt of the accused , who we note are presumed innocent until the prosecution , with their evidence , prove their guilt beyond all reasonable doubt .

Whether the examination was unsatisfactory or not is a matter which will be decided at the end of the case . The request is therefore refused .

Mr PERSON : I would ask for a break of TIME in view of your ruling to gather my thoughts and see how I shall proceed because I believed that there would be disclosure of all the documents , for this reason I want TIME to think about what I shall do in view of your ruling , that is to say how I shall proceed with the cross - examination . The cross - examination will take another sitting of the court . So TIME I am asking for are not unjustifiable .

Court : We will approve a break of TIME but we will remind ( the defence ) that it is the second time that an interruption of the proceedings has been requested for inspecting the case file . We had a break in a previous session and gave a sufficient interval for them to see the file . ”

Following the break , the proceedings were resumed . At CARDINAL point a confrontation occurred between the applicant ’s lawyer , PERSON , and the court . PERSON was at the time cross - examining a police officer who had taken the applicant ’s written statement and was asking him about the manner in which an indication by another police - officer to insert the time of taking the statement was made . The court interrupted PERSON and noted that they found his questions unnecessary . PERSON then sought leave to withdraw from the case which was refused . The verbatim record of the proceedings reports the following exchange ( translation ) :

“ Court : We consider that your cross - examination goes beyond the detailed cross - examination that can take place at the present stage of the main trial in issues ...

Mr PERSON : I will stop my cross - examination ...

Court : Mr Kyprianou ...

Mr PERSON : Since the ORG considers that I am not doing my job properly in defending this man , I ask for your leave to withdraw from this case .

Court : Whether an advocate is to be granted leave to withdraw or not , is a matter within the discretionary power of the court and , in the light of what we have heard , no such leave is granted . We rely on the case of GPE and Others v. the Republic and do not grant leave .

Mr PERSON : Since you are preventing me from continuing my cross - examination on significant points of the case , then my role here does not serve any purpose . ”

Court : We consider your persistence ...

Mr PERSON : And I am sorry that when I was cross - examining , the members of the court were talking to each other , passing ‘ ravasakia’ among themselves , which is not compatible with allowing me to continue the cross - examination with the required vigour , if it is under the secret scrutiny of the court .

Court : We consider that what has just been said by PERSON , and in particular the manner in which he addresses the court , constitutes a contempt of court and PERSON GPE has CARDINAL choices : either to maintain what he said and to give reasons why no sentence should be imposed on him , or to decide whether he should retract . We give him this opportunity exceptionally . Section CARDINAL ( CARDINAL ) ( a ) of ORG PERSON applies to its full extent .

Mr PERSON : You can try me .

Court : Would you like to say anything ?

Mr PERSON : I saw with my own eyes the small pieces of paper going from CARDINAL judge to another when I was cross - examining , in a way not very flattering to the defence . How can I find the stamina to defend a man who is accused of murder ?

Court ( Mr PERSON ) : It so happens that the piece of paper to which Mr PERSON refers is still in the hands of brother Judge PERSON and PERSON may inspect it .

Court ( PERSON ) : The exchange of written views between the members of the bench as to the manner in which PERSON is conducting the case does not give him any rights , and I consider PERSON behaviour utterly unacceptable .

Court ( Mr PERSON ) : We shall have a break in order to consider the matter . The defendant ( in the main trial ) should in the meantime remain in custody .

Court : We considered the matter during the adjournment and continue to believe that what Mr PERSON said , the content , the manner and the tone of his voice , constitute a contempt of court as provided for in DATE ( CARDINAL ) ( a ) of ORG ... that is , showing disrespect to the court by way of words and conduct . We already asked PERSON before the break if he had anything to add before we pass sentence on him . If he has something to add , let us hear him . Otherwise , the court should proceed .

Mr PERSON : Mr President , certainly during the break , I wondered what the offence was which I had committed . The events took place in a very tense atmosphere . I am defending a very serious case ; I felt that I was interrupted in my cross - examination and said what I said . I have been a lawyer for DATE , my record is unblemished and it is the first time that I face such an accusation . That is all I have to say .

Court : We shall adjourn for TIME and shall then proceed with sentencing . ”

After a short break ORG , by a majority , sentenced PERSON GPE to CARDINAL days’ imprisonment . The court referred to the above exchange between Mr PERSON and its members and held as follows :

“ ... It is not easy , through words , to convey the atmosphere which Mr PERSON created since , quite apart from the unacceptable content of his statements , the tone of his voice as well as his demeanour and gestures to the court not only gave an unacceptable impression of any civilised place , and a courtroom in particular , but were apparently aimed at creating a climate of intimidation and terror within the court . We are not exaggerating at all in saying that PERSON was shouting and gesticulating at the court .

It was pointed out to him that his statements and his behaviour amounted to contempt of court and he was given the opportunity to speak . And while there was a reasonable expectation that Mr Kyprianou would calm down and that he would apologise , PERSON , in the same tone and with the same intensity already referred to , shouted , ‘ You can try me’ .

Later , after a long break , PERSON was given a second chance to address the court , in the hope that he would apologise and mitigate the damage caused by his behaviour . Unfortunately , at this stage Mr PERSON still showed no signs of regret or , at least , of apprehension for the unacceptable situation he had created . On the contrary , he stated that during the break he wondered what his crime had been , merely attributing his behaviour to the ‘ very tense atmosphere’ . However , he was solely responsible for the creation of that atmosphere and , therefore , he can not use it as an excuse .

Mr PERSON did not hesitate to suggest that the exchange of views between the members of the bench amounted to an exchange of ‘ ravasakia’ , that is , ‘ love letters’ ( See : ‘ Dictionary of Modern NORP ravasaki ( NORP ravas ) , love letter , written love ORG ) . And he accused the ORG , which was trying to regulate the course of the proceedings , as it had the right and the duty to do , of restricting him and of doing justice in secret .

We can not conceive of another occasion of such a manifest and unacceptable contempt of court by any person , let alone an advocate .

The judges as persons , whom PERSON has deeply insulted , are the least of our concern . What really concerns us is the authority and integrity of justice . If the court ’s reaction is not immediate and drastic , we feel that justice will have suffered a disastrous blow . An inadequate reaction on the part of the lawful and civilised order , as expressed by the courts , would mean accepting that the authority of the courts be demeaned .

It is with great sadness that we conclude that the only adequate response , in the circumstances , is the imposition of a sentence of a deterrent nature , which can only be imprisonment .

We are well aware of the repercussions of this decision since the person concerned is an advocate of long standing , but it is PERSON himself who , through his conduct , brought matters to this end .

In the light of the above we impose a sentence of imprisonment of DATE ” .

Mr GPE served his prison sentence immediately . He was in fact released before completing the full term in accordance with section QUANTITY of the Prison Law ( Law no . CARDINAL(I)/CARDINAL ) .

NORP The applicant continued to be represented by PERSON for the rest of his trial .

On DATE the defence requested the judges to withdraw from the case in view of the events that had occurred so that the case could be tried by another bench . Mr PERSON requested that the court be addressed by another lawyer in this respect , given the fact that he had been directly concerned by the court ’s decision on contempt . The defence was concerned that the court would not be impartial . This request was granted .

On DATE , by an interim decision , ORG dismissed the request for its withdrawal . Having examined the relevant case - law on the issue it found that no ground had been established for its withdrawal . In this connection it noted that :

– as opposed to plain rumours or the manner in which the matter had been presented in the media DATE would justifiably form the impression that there was a real likelihood of prejudice by the court against the defendant simply because of its conclusion that his lawyer ’s behaviour , at some stage of the proceedings , had been in contempt of court ” .

Given that its decision on contempt had been a decision reached within the context of its exercise of its judicial functions and , as such , there was no issue of personal feelings of the judges or any prejudice on the part of the court , there was no reason why the court should abandon the examination of the case before the completion of the trial .

The proceedings therefore continued before the same bench .

On DATE ORG found the applicant guilty of manslaughter and robbery . The court dismissed the applicant ’s allegations that his confession had been fabricated by the police and taken under suspicious circumstances . It found that there had been clear , independent and persuasive evidence demonstrating the genuine nature of his confession to the police . Furthermore , it noted that apart from the free and voluntary confession , the conclusion about the applicant ’s guilt was supported by other strong and independent evidence and facts . In particular , the court relied on the applicant ’s further statement of CARDINAL DATE ( see paragraph CARDINAL above ) , placing the applicant at the time and place of the crime and confirming that he used force against the victim , a statement of a friend of the applicant to whom the applicant had stated that he had been involved in a serious fight with the victim , and various testimonies confirming that the applicant had been seen in a pub drinking and talking to the victim , leaving the pub right after the victim and heading in the same direction as the victim . Moreover , further testimonies confirmed that the applicant was seen in TIME of the following TIME drinking in another pub dressed in clothes covered in mud . The medical evidence concerning the victim ’s death had confirmed that the cause of death had been multiple and violent blows , a finding which was consistent with the applicant ’s CARDINAL statements as well as that of his co - accused . The confession of his co - accused could not be treated as evidence against the applicant .

On DATE ORG sentenced the applicant to CARDINAL concurrent sentences of imprisonment for DATE for manslaughter and robbery respectively .

On DATE the applicant lodged an appeal with ORG against his conviction and sentence .

In challenging his conviction he repeated his arguments concerning the involuntary nature of his confession , the circumstances in which it had been taken and the violation of his right to the assistance of a lawyer . In particular , it was emphasised that the Director of Police had not advised the applicant himself that he should consult a lawyer and had not warned the applicant that he was under no obligation to state anything about the case . Moreover , the applicant maintained that his conviction had been the direct consequence of the hostility which had been openly expressed by ORG towards his lawyer , who had also been tried , convicted by the same court for contempt and imprisoned . As a result , the applicant ’s confidence in the impartiality of the court and his lawyer had been shaken .

NORP The prosecution also lodged an appeal challenging the sentence imposed as “ manifestly insufficient ” in the circumstances .

On DATE ORG dismissed both appeals .

As to what had occurred at the pre - trial stages of the proceedings ORG noted that the applicant had gone to the police station accompanied by his father and both had been informed about the crime , the suspicion that the applicant had been involved in it and that they could be assisted by a lawyer if they so wished . The applicant had stated that he was innocent ; he had then been arrested and taken for questioning in a different room . When his son had been taken for questioning the applicant ’s father had been warned about the seriousness of the case , that they could consult a lawyer and that he could be present during the questioning . However , he had preferred to wait outside . TIME the applicant ’s father and the Police Director had been informed that the applicant had confessed his guilt . The court observed that the fact that the applicant had confessed did not necessarily lead to the conclusion that something improper had occurred .

As to the applicant ’s confession , the court noted that it had constituted the subject of a separate hearing within the trial and that ORG had concluded that it had been the product of the free will of the applicant and found it admissible as evidence . The court observed that ORG , following settled principles of NORP jurisprudence , had re - examined the content of the statement in the light of the entirety of the evidence in the main trial . Its judgment was elaborate and the evidential material was discussed with meticulousness together with the arguments of the parties . A simple reading of the minutes confirmed the correctness of ORG judgment . As for the applicant ’s credibility , ORG noted that :

“ as a general comment , ... the appellant appeared , as it is shown by the evidence , to have had a selective memory . He remembered all the details which did not incriminate him while he had complete lack of memory in respect of all the elements which linked him to the crime . This attitude is evident from his evidence both in the main trial and in the trial within a trial concerning the voluntariness of the contested statement . And in both proceedings he tried to negate the statements he had made in his earlier written confession . ”

Moreover , there was sufficient , powerful and independent evidence putting the applicant at the time and place of the crime . Such evidence taken together with the applicant ’s admission contained in a second statement , the admissibility of which was not contested as having been submitted on an involuntary basis , rendered the applicant ’s guilt proven beyond any reasonable doubt .

ORG also dismissed the applicant ’s argument concerning ORG alleged lack of impartiality in view of his lawyer ’s conviction for contempt of court . In particular it stated the following :

“ Following his conviction by ORG ( for contempt of court ) Mr PERSON requested to withdraw from the proceedings and to stop acting as counsel for the appellant .... The appellant ’s argument that , in view of what had happened before ORG , this ceased to be an impartial court and the trial was rendered unfair , is incorrect . A simple reading of the voluminous transcript of the proceedings demonstrates the smooth conduct of the trial , in which all the evidence was presented before the court , which had to evaluate it and decide the extent to which the prosecution had managed to prove the charges against the appellant beyond all reasonable doubt . We have indicated above that the evidence against the appellant was conclusive . His advocate had put to ORG everything that could be submitted in his defence in a trial ; a task which was , admittedly , rather difficult . ORG decision not to allow the advocate to withdraw in the middle of the trial or to withdraw itself from the case , which would have led to a retrial , did not render the trial unfair , while the court itself had , in our opinion , preserved its impartiality throughout the proceedings . ”

Finally , as regards the sentence imposed by ORG , ORG found that there had been evident leniency in sentencing , making the length of the prison sentence imposed almost manifestly insufficient . Nevertheless , it decided not to interfere with ORG decision in this respect .

Concerning the Mr Kyprianou ’s request to stop acting as counsel for the applicant ( see paragraphs CARDINAL above ) , the Government clarified that it was made before the contempt proceedings . This was supported by the applicant and the relevant transcript of the proceedings .

DATE ( CARDINAL ) of LAW provides as follows :

“ Every person arrested shall be informed at the time of his arrest in a language which he understands of the reasons for his arrest and shall be allowed to have the services of a lawyer of his own choosing . ”

Article CARDINAL ( CARDINAL ) and ( CARDINAL ) of the LAW provides , in so far as relevant , as follows :

( CARDINAL ) “ Every person charged with an offence shall be presumed innocent until proved guilty according to law .

( CARDINAL ) Every person charged with an offence has the following minimum rights :

( a ) to be informed promptly and in a language which he understands and in detail of the nature and grounds of the charge preferred against him ;

( b ) to have adequate time and facilities for the preparation of his defence ; ... ”

DATE ( CARDINAL ) and ( CARDINAL ) provides , in so far as relevant , as follows :

( CARDINAL ) “ In the determination of his civil rights and obligations or of any criminal charge against him , every person is entitled to a fair and public hearing within a reasonable time by an independent , impartial and competent court established by law .

( CARDINAL ) Every person has the right :

( a ) to be informed of the reasons why he is required to appear before the court ;

( b ) to present his case before the court and to have sufficient time necessary for its preparation .... ” .

The ORG provides in LAW , which broadly corresponds to LAW , that :

“ In the case of juvenile persons , the procedure shall be such as will take account of their age , and the desirability of promoting their rehabilitation . ”

Section CARDINAL of LAW , PERSON . CARDINAL provides as follows :

“ Without prejudice to the generality of section CARDINAL of this PERSON and without prejudice to the operation of LAW the rules for the time being approved by Her ORG of ORG in GPE relating to the taking of statements by police officers ( known as ‘ The Judges’ Rules’ ) shall apply to the taking of statements in the Colony as they apply to the taking of statements in GPE ” .

Section CARDINAL of LAW , PERSON . CARDINAL provides , in so far as relevant , as follows :

“ ... Any [ arrested ] person while in custody shall be given reasonable facilities for obtaining legal advice , for taking steps to obtain bail and otherwise for making arrangements for his defence or release . ”

Rule II of the Judges’ Rules provides as follows :

“ As soon as a police officer has evidence which would afford reasonable grounds for suspecting that a person has committed an offence , he shall caution that person or cause him to be cautioned before putting to him any questions , or further questions , relating to that offence .

The caution shall be in the following terms :

‘ You are not obliged to say anything unless you wish to do so but what you say may be put into writing and given in evidence.’ ”

The ORG standards on police detention were set out in its CARDINALnd ORG [ ORG ( CARDINAL ) CARDINAL ] as follows :

The ORG attaches particular importance to CARDINAL rights for persons detained by the police : the right of the person concerned to have the fact of his detention notified to a third party of his choice ( family member , friend , consulate ) , the right of access to a lawyer , and the right to request a medical examination by a doctor of his choice ( in addition to any medical examination carried out by a doctor called by the police authorities ) . They are , in the ORG ’s opinion , CARDINAL fundamental safeguards against the ill - treatment of detained persons which should apply as from the very outset of deprivation of liberty , regardless of how it may be described under the legal system concerned ( apprehension , arrest , etc ) .

Persons taken into police custody should be expressly informed without delay of all their rights , including those referred to in paragraph CARDINAL . Further , any possibilities offered to the authorities to delay the exercise of CARDINAL or other of the latter rights in order to protect the interests of justice should be clearly defined and their application strictly limited in time . As regards more particularly the rights of access to a lawyer and to request a medical examination by a doctor other than one called by the police , systems whereby , exceptionally , lawyers and doctors can be chosen from pre - established lists drawn up in agreement with the relevant professional organisations should remove any need to delay the exercise of these rights .

Access to a lawyer for persons in police custody should include the right to contact and to be visited by the lawyer ( in both cases under conditions guaranteeing the confidentiality of their discussions ) as well as , in principle , the right for the person concerned to have the lawyer present during interrogation .

The ORG standards on juveniles deprived of their liberty were set out in the ORG ’s ORG [ ORG ( CARDINAL ) CARDINAL ] as follows :

“ In this context , the ORG has stressed that it is during the period immediately following deprivation of liberty that the risk of torture and ill - treatment is at its greatest . It follows that it is essential that all persons deprived of their liberty ( including juveniles ) enjoy , as from the moment when they are first obliged to remain with the police , the right to notify a relative or another third party of the fact of their detention , the right of access to a lawyer and the right of access to a doctor . ”

In PERSON v. The Republic ( CARDINAL ) CARDINAL C.L.R. CARDINAL ORG held that the court should verify the truthfulness of a confession by independent evidence . In this case the following extracts from R v PERSON . App . GPE were cited with approval :

“ A man may be convicted on his own confession alone ; there is no law against it ... the first question [ to be asked ] when ... examining the confession of a man , is , is there anything outside it to show it was true ? Is it corroborated ? Are the statements made in it of fact so far as we can test them true ? ... Is it [ the confession ] consistent with other facts which have been ascertained and which have been , as in this case , proved before us ? ... ”

In the case of PERSON v. The Republic ( DATE ) CARDINAL CLR CARDINAL , the following was stated :

“ A confession of DATE so long as it is accepted as voluntary DATE can on its own constitute sufficient ground for an accused ’s conviction . No matter how voluntary a confession is , it is prudent , in accordance with the case - law ... to have , where possible , corroborating evidence in support of the accuracy of its content . That would exclude the possibility of error and discourage the interrogating authorities to seek a confession as an easy alternative to having a crime properly investigated . The content of a confession must be judged not only on the basis of the authenticity of the allegations it contains , but also in conjunction with any other testimony that tends to support or disprove the accuracy of its content . ”


András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky

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

On DATE the applicant 's son , ORG , who was DATE at the time , was found dead in the grounds of a kindergarten . His body showed traces of violence . DATE , the authorities opened a pre - trial investigation on suspicion that a murder had been committed ( LAW ) .

On DATE the authorities issued the death certificate , which stated that the cause of death had been the loss of body temperature .

On DATE the investigator requested the ORG ( hereinafter the “ MRU ORG ” ) to establish LOC 's cause of death .

On DATE the MRU ORG 's expert , NORP GPE , in a report ( no . MCARDINAL/CARDINAL ( CARDINAL ) , “ the first expert report ” ) , found that FAC 's blood alcohol level content ( BAC ) and urine alcohol level content had been CARDINAL and CARDINAL respectively , which showed that , before his death , ORG had been highly intoxicated and could have died from alcohol poisoning . Given that there were no cracks in LOC skull and his inner organs had not been damaged , there was no ground to conclude that his death was the result of violence . The expert report also stated that , after sustaining the injuries , the applicant 's son could have lived for TIME and that the injuries which FAC had sustained would have amounted to a light health impairment for a living person .

The applicant and her lawyer contacted another expert , A. PERSON , asking if he would conduct a new expert examination . On DATE that expert produced his report ( no . A - KJ-CARDINAL - CARDINAL , “ the second expert report ” ) , stating that the cause of ORG 's death could have been ( galėjo būti ) a severe head injury , since FAC had sustained CARDINAL blows to the head . The expert ruled out alcohol poisoning or loss of body temperature as possible causes of death .

On DATE the prosecutors transferred the case to ORG , charging PERSON and PERSON with having lightly impaired the health of the applicant 's son , as well as offences of theft and robbery .

On DATE ORG , on a request of the prosecutor and the applicant 's counsel , commissioned the MRU FMI to conduct a new expert examination .

On DATE the MRU ORG 's experts , ORG and R. Sitienė , concluded their examination and presented their results in a report ( no . ORG ) , “ the third expert report ” ) , stating that ORG had died from alcohol poisoning and that there was no causal link between his death and the injuries he had sustained . Furthermore , there was no evidence that FAC had died from a loss of body temperature .

In view of inconsistencies in the expert reports as to the cause of ORG 's death , at a hearing held on DATE the applicant asked ORG to commission the experts who had already given their reports , as well as an expert on toxicology and a neurosurgeon , to conduct CARDINAL more expert examination .

The court dismissed the applicant 's request without giving any reasons .

On DATE the ORG convicted PERSON and PERSON of slightly impairing the health of the applicant 's son ( Article CARDINAL § CARDINAL of LAW ) , theft ( LAW ) and robbery ( LAW ) . In so finding , the court noted that , at TIME on DATE , PERSON and PERSON , being intoxicated and with the aim of stealing from the applicant 's son , had attacked him , hitting him CARDINAL times in the area of his head , face and hands . When LOC fell , PERSON and PERSON took his jacket , wallet and CARDINAL mobile telephones , and ran away .

PERSON and PERSON were sentenced to DATE imprisonment .

The court also granted the applicant 's claim for pecuniary damages in the amount of CARDINAL NORP litai ( ORG , MONEY ( ORG ) ) .

The applicant appealed , claiming that the lower court had wrongly convicted PERSON and PERSON of robbery , when they should have been convicted of manslaughter . The applicant argued , inter alia , that the trial court had restricted her right to submit evidence and make requests . Given that there were different hypotheses as to the reasons for her son 's death , she requested a supplementary expert report . However , the trial court dismissed her motion . Moreover , the trial court did not grant her request to have the experts examined at the hearing . Lastly , the applicant submitted that the first - instance court had inaccurately examined the evidence and had therefore reached wrong legal conclusions .

In the meantime , the applicant 's counsel approached PERSON with a request that , for a second time , he determine the cause of ORG 's death . A. PERSON consented and , on DATE , produced a new report ( no . A - KI-CARDINAL - CARDINAL , “ the fourth expert report ” ) . The applicant 's counsel presented that report to the appellate court . The report stipulated that ORG had died from multiple head injuries . The report ruled out alcohol poisoning as a possible cause of death , finding that the third expert report had been inconclusive and unfounded .

On DATE ORG examined the case on appeal and upheld the lower court 's judgment . The appellate court upheld the trial court 's decision not to order a new expert examination and not to summon the expert , PERSON , to the hearing , since , under domestic law , an expert is to be summoned only if the court decides that his testimony is necessary to explain or to supplement a written report . ORG also noted that the applicant 's right to take part in the criminal proceedings had not been breached , given that she had had a lawyer who had attended the hearing and had been able to put questions to the accused , the witnesses and those experts who had been present before the trial court . Moreover , upon a request by the applicant , the expert , PERSON , had prepared his second expert report . The applicant thus actively participated in the proceedings and the principle of adversarial proceedings had not been breached .

On DATE ORG examined the applicant 's cassation appeal . Observing that the appellate court had joined the second expert report by PERSON to the case and yet had refused to analyse it without giving any grounds for such a refusal , ORG concluded that the appellate court had breached the applicant 's right to put forward evidence and take part in the investigation .

ORG also noted that the applicant and her lawyer had asked the appellate court to summon the experts PERSON , PERSON and PERSON for questioning in open court , since they had had different views about the cause of ORG 's death . Nonetheless , the appellate court dismissed that request , again without explanation . ORG concluded that the appellate court had committed an essential breach of criminal procedure , restricting the applicant 's rights , and had failed to deal with the case thoroughly and impartially and to adopt a fair decision . The case was remitted to the court of appeal for fresh examination .

On DATE ORG varied the trial court 's judgment . The court noted that the experts had agreed on CARDINAL essential point , namely , that the loss of body temperature had not caused ORG 's death . However , they had come to different conclusions as regards the actual cause of death . For NORP GPE , it was alcohol poisoning . For PERSON , the likely cause of death was a head injury . In view of diverging conclusions , it was necessary to elucidate which evidence was more reliable .

The appellate court observed that , under domestic law , it was free to assess the evidence , relying on its inner belief . Expert or specialist reports had evidentiary value because they had been drafted by a person having specialist knowledge . Whilst conceding that the judges did not have such specialised competence , the appellate court nevertheless noted that the presence of contradictory evidence was not an absolute ground for a new expert examination to be conducted .

This time , ORG analysed the evidence which had not been examined at first instance . In particular , the appellate court studied the second expert report by A. PERSON . Experts NORP GPE , PERSON , PERSON and an expert in toxicology , P. GPE , were summoned and questioned .

The appellate court noted that the experts PERSON , PERSON and P. GPE , when questioned at the hearing , testified that GPE 's BAC had been CARDINAL , which was a lethal dose in medical theory . For the court , A. PERSON , when questioned , was not able to constructively contradict ( konstruktyviai paprieštarauti ) those expert conclusions and agreed that , had there been no sign of head injuries , the single cause of death could have been certified as alcohol poisoning .

Given the above , the appellate court concluded that PERSON previous evaluation , dismissing alcohol poisoning as the cause of death , had to be rejected ( visiškai paneigtas ) as clearly unfounded and based on an unobjective , unilateral and tendentious evaluation of the evidence . In the opinion of the court , having examined all the material in the case file and having had recourse to all possibilities of obtaining supplementary evidence , no objective and reliable data had been established to contradict the other experts ' conclusion that ORG had died of alcohol poisoning . At the same time , there was no reliable evidence to confirm , without a doubt , a supposition that FAC had died from head injuries . Consequently , when resolving the matter of the accountability of PERSON and PERSON , the applicant 's argument that the true cause of ORG 's death had not been established and that therefore yet another expert report was necessary , was unfounded .

The appellate court partly amended the judgment of CARDINAL DATE , reducing the applicant 's award for pecuniary damages to LTL CARDINAL ( approximately EUR CARDINAL ) .

On DATE ORG upheld the lower court 's reasoning and dismissed the applicant 's cassation appeal . It observed that the appellate court had granted the request of the applicant 's representative for the third expert report , had admitted in evidence the fourth expert report and examined it , had summoned and questioned the experts and had given reasons for the decision not to grant the applicant 's request for yet another expert opinion . ORG concluded that the applicant 's allegation that the lower courts had committed a breach of criminal procedure , because they had not collected enough evidence to establish the cause of her son 's death , was unfounded .

LAW provides that criminal proceedings are adversarial ( laikantis rungimosi principo

On DATE the Constitutional Court