CASE OF ŠNEERSONE AND KAMPANELLA v. ITALY

Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 8;No violation of Art. 8;Remainder inadmissible;Non-pecuniary damage - award

András Sajó;David Thór Björgvinsson;Françoise Tulkens;Giorgio Malinverni;Guido Raimondi;Paulo Pinto De Albuquerque

The applicants were born in DATE and DATE respectively and live in Rīga .

In DATE PERSON was born to the first applicant in GPE . His father was an NORP national , who was never married to the first applicant but who has never disputed his paternity of PERSON . In DATE PERSON ’s parents separated and the applicants moved to a separate residence in GPE , GPE . The applicants allege that ever since PERSON ’s birth he has in practice been in the exclusive care of his mother , and his father ’s participation in his upbringing has been minimal .

At the request of the first applicant , on DATE ORG ( Tribunale per i minorenni di Roma ) granted custody of PERSON to his mother because the ongoing conflict between the parents made joint custody unfeasible . However , the court held that the father had a right to have his son stay at his home on specified days of DATE and also whenever the first applicant was travelling outside GPE for a length of time exceeding one week or outside GPE for any length of time . The decision came into force on DATE it was adopted .

PERSON ’s father appealed against that decision , requesting that joint custody be granted or that he be granted sole custody and that the first applicant be forbidden to take the child abroad or to change her place of residence without the father ’s prior approval . ORG ( GPE d’appello di GPE . Sezione per i minorenni ) rejected his request in a decision of DATE , noting , inter alia , that the child was developing well and that it was impossible to ensure his development by granting sole custody to the father . Furthermore , it was noted that the father ’s concern that the first applicant might move to GPE and take their son with her was unfounded because a judge in a guardianship hearing ( giudice tutelare , “ the guardianship judge ” ) had previously refused to issue a passport to PERSON and also because his mother had strictly adhered to the ruling of the first - instance court and had left the child in his father ’s care when travelling to GPE .

On DATE the guardianship judge granted an authorisation to issue a passport to PERSON . On DATE PERSON ’s father appealed against that decision . On DATE ORG rejected PERSON ’s father ’s appeal , because there was no evidence that the first applicant was planning to leave GPE with the child .

On DATE ORG Tribunale ) of NORP ruled that PERSON ’s father had to make child support payments . The decision noted , inter alia , that the father had previously avoided financially supporting his son . PERSON ’s father failed to make the ordered payments and on DATE the first applicant lodged a complaint about this with the NORP police .

It appears that because of PERSON ’s father ’s failure to financially support the applicants their only income was money which the first applicant ’s mother was sending from GPE . However , in DATE the first applicant ’s mother informed her that she was no longer able to provide financial support . According to the applicants it was for that reason that they had no other choice but to return to GPE in DATE . The applicants indicate that they subsequently continued to return to GPE for brief periods of time . According to ORG , they have never been back .

On DATE PERSON was granted NORP citizenship , since it was established that his mother ’s permanent residence at the time of his birth had been in GPE . Subsequently , the first applicant registered PERSON ’s permanent residence in an apartment in ORG belonging to her .

On an unspecified date PERSON ’s father requested ORG to grant him interim sole custody of PERSON and to order his return to GPE .

On DATE that court issued a decision in which it upheld the father ’s request . The decision noted that the first applicant ’s actions had been harmful to the child . The court further held that it did not have jurisdiction to order the child ’s return to GPE but indicated that PERSON had to reside with his father . The decision finally provided that a hearing would be held on DATE and that PERSON ’s father had an obligation to inform the first applicant of the court ’s decision before DATE .

The applicants submit that the first applicant was not informed of the hearing that had been scheduled , nor did she receive a summons to it . The applicants further submit that PERSON ’s father had never requested full custody , but instead had asked the court to re - establish his rights of contact with the child and to order his return to GPE . The first applicant alleges that she only learned about the adopted decision in DATE .

On DATE ( by what appears to be a clerical error the document is dated DATE ) ORG Ministry of Justice , in its capacity as ORG under LAW ( “ LAW ) , issued a request for PERSON to be returned to GPE .

After receiving the request , ORG ( NORP un ģimenes lietu ministrija ) , which is ORG within the meaning of LAW , initiated civil proceedings against the first applicant in accordance with LAW . The Rīga City Vidzeme District Court , which had been allocated the case , requested ORG ( PERSON bāriņtiesa ) to evaluate the applicants’ residence and to issue an opinion concerning the possibility of returning PERSON to his father in GPE . After visiting the applicants’ residence , by a decision of DATE the Orphans’ Court established that the child ’s living conditions were beneficial for his growth and development . It further noted that PERSON had adjusted to living in his mother ’s residence and that she was ensuring his full physical and intellectual development . Accordingly , ORG concluded that the child ’s return to GPE would not be compatible with his best interests .

That conclusion was also supported by the findings of a psychologist , whose opinion had been requested by the applicants’ lawyer . In a report dated DATE the psychologist concluded that severance of contact between PERSON and his mother was not to be allowed , in that it could negatively affect the child ’s development and could even create neurotic problems and illnesses .

By a letter of DATE , ORG attested to ORG that if any of the circumstances mentioned in LAW ( b ) of LAW arose GPE would be able to activate a wide - ranging child protection network which could ensure that PERSON and his father received psychological help .

On DATE the FAC issued a decision by which it refused the father ’s request to return PERSON to GPE . That court based its decision on LAW ( ORG ) No . CARDINAL of DATE concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility ( “ the Regulation ” ) . The court held that the removal of PERSON had been wrongful within the meaning of LAW and the Regulation , since it had been carried out without his father ’s permission . It was further noted that it was not expedient to hear PERSON ’s own opinion , since he was DATE at the time and was unable to form an opinion about which of his parents he should live with .

The court considered it necessary to assess whether the circumstances provided for in LAW ( b ) of LAW existed . Its conclusion was that those circumstances existed . It noted the ties between PERSON and his mother and the fact that he had settled well in GPE and considered that his continued residence in GPE was essential for his development . ORG found that the provisions of LAW ) of the ORG had not been fulfilled , because it was financially impossible for the first applicant to follow PERSON to GPE if he were returned there . Furthermore , the guarantees provided for by GPE could not ensure that the child would not suffer psychologically and that his mental health would not be prejudiced . Accordingly the court applied LAW ( b ) of LAW and refused the father ’s request .

On DATE ORG adopted a final decision , by which it rejected the father ’s appeal against the decision of ORG . In substance ORG agreed with the conclusions of the first - instance court , adding that the guarantees offered by ORG concerning the protection available to PERSON after his potential return to GPE were too vague and non - specific . It was also mentioned that PERSON ’s father had made no effort to establish contact with his son ever since the applicants’ departure from GPE .

On DATE the first applicant requested PERSON to grant her sole custody of PERSON . On DATE ORG issued an opinion in which it concluded that granting sole custody of PERSON to his mother was in his best interests . ORG indicated among other considerations the fact that PERSON ’s father had not seen his son since DATE .

On DATE CARDINAL PERSON ’s father lodged a request with ORG , which was based on LAW ) , ( CARDINAL ) and ( CARDINAL) of the Regulation , to issue an immediately executable decision ordering PERSON ’s return to GPE .

On DATE the first applicant submitted her observations to that court , in which she acknowledged that she had left GPE because of an ongoing conflict with PERSON ’s father and because of her difficult financial situation . She noted that PERSON ’s father had never travelled to see his son in GPE ; however , she stated that the applicants were always available to come to GPE to meet PERSON ’s father during school holidays . In conclusion , she requested that the court order child support payments in the amount of QUANTITY ( ORG ) per month .

In the context of separate proceedings , on DATE ORG made a judgment concerning the first applicant ’s request for child support payments and ordered PERSON ’s father to pay the first applicant ORG CARDINAL,CARDINAL plus interest , starting from DATE .

By a decision of DATE ORG upheld the father ’s request . It considered that the only role left to it by LAW ) of the ORG was to verify whether adequate arrangements had been made to secure the protection of the child from any identified risks within the meaning of LAW b ) of LAW after his or her return . After considering the first applicant ’s submissions , the court noted that the father had proposed that PERSON would stay with him , while the first applicant would be authorised to use a house in PERSON for periods of DATE during DATE and subsequently for DATE ( the first applicant would have to cover her own travel expenses and CARDINAL of the rent of the house in PERSON ) , during which time PERSON would be staying with his mother , while the father would retain the right to visit him on a DATE basis . PERSON would be enrolled in a kindergarten which he had attended before his removal from GPE . He would also attend a swimming pool he had used before his departure from GPE . The father furthermore undertook to ensure that the child would receive adequate psychological help and would attend LANGUAGE - language classes for NORP children . The court considered such an arrangement adequate to fulfil the requirements of the ORG and ordered an immediate execution of its decision to return PERSON to GPE and to have him reside with his father . The court also pointed out that it would be preferable if the first applicant accompanied PERSON on his way to GPE but , should that prove to be impossible , his return would be arranged by the NORP embassy in GPE . Due to the urgent nature of the case , the decision was pronounced to be immediately executable .

On DATE ( in what appears to be a clerical error , the date indicated in the document is DATE ) the first applicant lodged a request with ORG to suspend the execution of its decision . She argued that PERSON had not been heard by the tribunal and that ORG had not taken into consideration the arguments which the NORP courts had used in their decisions when applying LAW .

On DATE the first applicant lodged an appeal against the decision of ORG of DATE . In her appeal she requested that the execution of that decision be suspended ; that the appeal court hear PERSON ; that there be an order that she retain sole custody of PERSON ; and that PERSON ’s father be ordered to pay LAW per month in child support payments .

On DATE ORG adopted a decision in which it rejected the first applicant ’s request to suspend the execution of the decision of DATE . That court considered that it was not appropriate to question the child , taking into account his young age and the level of maturity . Furthermore , it considered that LAW did not oblige it to hear the parties in person . It remarked that all of the decisions taken by the NORP courts had been duly taken into consideration . Finally , the court upheld the father ’s request to issue a return certificate in accordance with ORG DATE and CARDINAL of the Regulation . The certificate was issued on DATE .

On DATE ORG sent a letter to ORG , forwarding ORG decision of DATE and inviting it to advise the NORP side on “ the initiatives that will be taken in order to enforce the return order made by ORG in GPE ” .

On DATE a psychologist issued another report on PERSON ’s psychological state . The report concluded that the child had developed certain psychological problems in connection with his father ’s request to return him to GPE . It further reiterated the conclusion from the earlier report , that PERSON had strong emotional ties with his mother , the severance of which was impermissible .

On DATE the first applicant received information from ORG about the request made by ORG . The first applicant was informed that GPE had an obligation to enforce the DATE decision of ORG .

On DATE the first applicant submitted a request to FAC , requesting it to indicate interim measures and not to allow PERSON ’s return to GPE “ until he himself agrees to return to his father in GPE ” . Further , she requested the court to require ORG and ORG to surrender their competence to ORG , since that court had already , on DATE , been allocated a still pending case concerning the granting of sole custody of PERSON to his mother , and also because the child ’s permanent residence was in GPE .

On DATE ORG adopted a decision in which it decided not to proceed with the first applicant ’s request concerning the question of PERSON ’s custody , since it considered that the first applicant ’s appeal against ORG decision of DATE , which was pending at the time before ORG , concerned the same subject matter , with the same parties involved .

On DATE ORG adopted a decision concerning the first applicant ’s appeal against ORG decision of CARDINAL DATE . The appeal court first of all observed that pursuant to LAW ( CARDINAL) of the Regulation ( see below , paragraph CARDINAL ) it had jurisdiction to decide the question of the child ’s return to GPE . It then went on to observe that the first - instance court had correctly implemented the procedure set out in LAW ( CARDINAL ) of the Regulation ( see below , paragraph CARDINAL ) , as attested by the reasoned opinion of ORG ( see below , paragraphs CARDINAL - CARDINAL ) . The court continued by observing that the decision to grant PERSON ’s father sole custody had been motivated by the first applicant ’s behaviour when she had chosen to take the child to GPE and by the father ’s undertaking to take care of the child in GPE . ORG therefore upheld the decision of ORG and ordered that after the child ’s return to GPE he be enrolled in a primary school .

On DATE the bailiff of ORG charged with the execution of the ORG decision of DATE invited PERSON ’s father to provide assistance in the execution of that decision by reestablishing contact with his son . It appears that PERSON ’s father has not responded to that request in any way .

On DATE GPE brought an action against GPE before ORG in application of LAW . GPE alleged , in particular , that the above - described proceedings in GPE ( the decision adopted on DATE and the issuing of the return certificate in DATE ) did not conform to the Regulation , in that neither of the applicants had been heard by ORG on DATE , and also that ORG had ignored the decisions of DATE of ORG and of CARDINAL DATE of ORG .

On DATE the ORG issued a reasoned opinion . It held that GPE had violated neither the ORG nor the “ general principles of the ORG law ” . In so far as is relevant to the case before ORG , the Commission held as follows .

At the outset it reiterated , where GPE was disputing the legality of the actions of an NORP authority with a judicial function , the scope of the ORG ’s review was very limited . The ORG could only review matters of procedure , not substance , and it had to respect the decisions made by the NORP courts in the exercise of their discretionary powers .

Concerning the argument of GPE that the decision of DATE had been adopted without attempting to obtain PERSON ’s opinion , the Commission stressed that it followed from the ORG , LAW on the Rights of the LAW ( “ the ORG Convention ” ) , LAW and LAW that hearing a child ’s opinion with regard to questions concerning that child was a fundamental principle . However , that principle was not absolute . What had to be taken into account was the level of the child ’s development . That level was not and could not be defined in any international instruments , therefore the national authorities retained wide discretion in such questions . The Commission held that ORG had used that discretion and indicated in the certificate of return that it had not been necessary for the NORP courts to hear PERSON . Therefore , none of the international instruments that had been invoked by GPE had been breached .

GPE further criticised the fact that the decision of DATE had been adopted without duly taking into account the position of the first applicant , and that the decision had been adopted without hearing either of the parties , including the first applicant , who was neither informed of the time of the forthcoming hearing nor invited to take part in it . The ORG noted that the decision of DATE had been adopted in written proceedings , without hearing oral submissions of either of the parties , which was fully in conformity with the applicable NORP procedural legislation . The ORG interpreted LAW ) ( b ) of the Regulation ( see below , paragraph CARDINAL ) in the light of the ORG ’s case - law ( referring in particular to ORG B.V. v. the GPE , DATE , § DATE , Series A no . CARDINAL ) , and considered that the use of written proceedings was permissible as long as the principle of equality of arms was observed . The Commission observed that the first applicant had been given an opportunity to submit written observations on equal grounds with PERSON ’s father and thus neither the ORG nor LAW had been violated .

Lastly , GPE criticised the decision of DATE and the related return certificate for ignoring the NORP authorities’ reasons for refusing to order PERSON ’s return to GPE . The Commission indicated that its role was not to analyse the substance of the NORP authorities’ decisions – it was limited to appraising the compliance with the procedure which led to the adoption of those decisions with the procedural requirements of the LAW . Nothing in the ORG forbade the NORP authorities to come to a conclusion that was opposite to the one reached by the NORP authorities . Quite to the contrary , the ORG considered that the ORG gave the country of the child ’s residence prior to the abduction “ the final say ” in ordering the return , even if his or her new country of residence had declined to order the return . In this regard the ORG noted that ORG , when adopting the decision of CARDINAL DATE ( see above , paragraph CARDINAL ) , had referred to ORG , section CARDINAL ( CARDINAL ) ( CARDINAL ) of which permits refusal to return a child if the child is well settled in GPE and his or her return is not in his or her interests . The Commission questioned the NORP court ’s alleged failure to invoke the “ much more binding ” LAW , which in their opinion demonstrated that the NORP courts had devoted attention to PERSON ’s situation in GPE instead of the potential consequences of his return to GPE . In short , the Commission had “ not discovered any indications ” that life in GPE together with his father would expose PERSON to physical or psychological harm or otherwise place him in an intolerable situation . What is more , the Commission considered that ORG in its decision of DATE had directly addressed ORG concerns that the measures envisaged for PERSON ’s protection upon his return to GPE were too vague – the NORP court had set out specific obligations on the father which would allow for balanced development of the child and for him to have contact with both parents .

In conclusion the Commission conceded that the decision of DATE did not contain a detailed analysis of either the arguments of the first applicant or of those of PERSON ’s father . However , it considered that the Regulation did not require such an analysis . Therefore , the exact procedure to be followed in that respect was left to the national ORG discretion . Taking that into account , it was found that neither GPE nor the ORG could dispute the particular formulation of the NORP court ’s decision .

LAW , which has been ratified by GPE and GPE , provides , in so far as relevant , as follows .

“ The removal or the retention of a child is to be considered wrongful where DATE

a ) it is in breach of rights of custody attributed to a person , an institution or any other body , either jointly or alone , under the law of the ORG in which the child was habitually resident immediately before the removal or retention ; and

b ) at the time of removal or retention those rights were actually exercised , either jointly or alone , or would have been so exercised but for the removal or retention .

The rights of custody mentioned in sub - paragraph a ) above , may arise in particular by operation of law or by reason of a judicial or administrative decision , or by reason of an agreement having legal effect under the law of that ORG . ”

“ The Convention shall apply to any child who was habitually resident in a ORG immediately before any breach of custody or access rights . The Convention shall cease to apply when the child attains DATE . ”

“ A Contracting State shall designate ORG to discharge the duties which are imposed by the LAW upon such authorities . [ .. ] ”

“ ORG shall co - operate with each other and promote co - operation amongst the competent authorities in their respective ORG to secure the prompt return of children and to achieve the other objects of this Convention .

In particular , either directly or through any intermediary , they shall take all appropriate measures –

f ) to initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and , in a proper case , to make arrangements for organizing or securing the effective exercise of rights of access ; [ .. ] ”

“ The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children .

If the judicial or administrative authority concerned has not reached a decision within DATE from the date of commencement of the proceedings , the applicant or ORG of the requested ORG , on its own initiative or if asked by ORG of the requesting ORG , shall have the right to request a statement of the reasons for the delay . If a reply is received by ORG of the requested ORG , that ORG shall transmit the reply to ORG of the requesting ORG , or to the applicant , as the case may be . ”

“ Where a child has been wrongfully removed or retained in terms of LAW and , at the date of the commencement of the proceedings before the judicial or administrative authority of ORG where the child is , a period of DATE has elapsed from the date of the wrongful removal or retention , the authority concerned shall order the return of the child forthwith .

The judicial or administrative authority , even where the proceedings have been commenced after the expiration of DATE referred to in the preceding paragraph , shall also order the return of the child , unless it is demonstrated that the child is now settled in its new environment .

Where the judicial or administrative authority in the requested ORG has reason to believe that the child has been taken to another ORG , it may stay the proceedings or dismiss the application for the return of the child . ”

“ Notwithstanding the provisions of DATE , the judicial or administrative authority of the requested ORG is not bound to order the return of the child if the person , institution or other body which opposes its return establishes that –

a ) the person , institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention , or had consented to or subsequently acquiesced in the removal or retention ; or

b ) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation .

The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views .

In considering the circumstances referred to in this LAW , the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by ORG or other competent authority of the child ’s habitual residence . ”

“ The return of the child under the provisions of LAW may be refused if this would not be permitted by the fundamental principles of the requested ORG relating to the protection of human rights and fundamental freedoms . ”

Paragraph CARDINAL of the preamble of the Regulation explains its scope , in so far as it is relevant to this case , as follows :

“ In cases of wrongful removal or retention of a child , the return of the child should be obtained without delay , and to this end LAW DATE would continue to apply as complemented by the provisions of this Regulation , in particular LAW . The courts of the Member ORG to or in which the child has been wrongfully removed or retained should be able to oppose his or her return in specific , duly justified cases . However , such a decision could be replaced by a subsequent decision by the court of the Member ORG of habitual residence of the child prior to the wrongful removal or retention . Should that judgment entail the return of the child , the return should take place without any special procedure being required for recognition and enforcement of that judgment in the Member ORG to or in which the child has been removed or retained . ”

With regard to jurisdiction in cases of child abduction , the ORG , in LAW , provides , in so far as is relevant , as follows :

“ In case of wrongful removal or retention of the child , the courts of the Member ORG where the child was habitually resident immediately before the wrongful removal or retention shall retain their jurisdiction until the child has acquired a habitual residence in another Member ORG and :

( b ) the child has resided in that other Member ORG for a period of DATE after the person , institution or other body having rights of custody has had or should have had knowledge of the whereabouts of the child and the child is settled in his or her new environment and CARDINAL of the following conditions is met :

( i ) within DATE after the holder of rights of custody has had or should have had knowledge of the whereabouts of the child , no request for return has been lodged before the competent authorities of the Member ORG where the child has been removed or is being retained ;

( iv ) a judgment on custody that does not entail the return of the child has been issued by the courts of the Member ORG where the child was habitually resident immediately before the wrongful removal or retention . ”

Article CARDINAL , which is specifically singled out in the preamble , provides as follows :

“ CARDINAL . Where a person , institution or other body having rights of custody applies to the competent authorities in a Member ORG to deliver a judgment on the basis of LAW [ .. ] , in order to obtain the return of a child that has been wrongfully removed or retained in a Member ORG other than the Member ORG where the child was habitually resident immediately before the wrongful removal or retention , paragraphs CARDINAL to CARDINAL shall apply .

When applying Articles CARDINAL and CARDINAL of the DATE LAW , it shall be ensured that the child is given the opportunity to be heard during the proceedings unless this appears inappropriate having regard to his or her age or degree of maturity .

A court to which an application for return of a child is made as mentioned in paragraph CARDINAL shall act expeditiously in proceedings on the application , using the most expeditious procedures available in national law .

Without prejudice to the first subparagraph , the court shall , except where exceptional circumstances make this impossible , issue its judgment DATE after the application is lodged .

A court can not refuse to return a child on the basis of LAW b ) of the [ .. ] LAW if it is established that adequate arrangements have been made to secure the protection of the child after his or her return .

A court can not refuse to return a child unless the person who requested the return of the child has been given an opportunity to be heard .

Unless the courts in the Member ORG where the child was habitually resident immediately before the wrongful removal or retention have already been seized by CARDINAL of the parties , the court or central authority that receives [ a copy of an order on non - return pursuant to LAW and of the documents relevant to that order ] must notify it to the parties and invite them to make submissions to the court , in accordance with national law , within DATE of notification so that the court can examine the question of custody of the child . [ .. ]

Notwithstanding a judgment of non - return pursuant to LAW [ .. ] LAW , any subsequent judgment which requires the return of the child issued by a court having jurisdiction under this Regulation shall be enforceable in accordance with LAW below in order to secure the return of the child . ”

Pursuant to LAW b ) of the Regulation , its Section CARDINAL applies to “ the return of a child entailed by a judgment given pursuant to LAW ( CARDINAL) ”

Article CARDINAL in Section CARDINAL provides the following :

“ CARDINAL . The return of a child referred to in DATE ) ( b ) entailed by an enforceable judgment given in a Member State shall be recognised and enforceable in another Member State without the need for a declaration of enforceability and without any possibility of opposing its recognition if the judgment has been certified in the Member State of origin in accordance with paragraph CARDINAL .

Even if national law does not provide for enforceability by operation of law , notwithstanding any appeal , of a judgment requiring the return of the child mentioned in LAW b ) ( CARDINAL) , the court of origin may declare the judgment enforceable .

The judge of origin who delivered the judgment referred to in LAW ( CARDINAL ) ( b ) shall issue the certificate referred to in paragraph CARDINAL only if :

( a ) the child was given an opportunity to be heard , unless a hearing was considered inappropriate having regard to his or her age or degree of maturity ;

( b ) the parties were given an opportunity to be heard ; and

( c ) the court has taken into account in issuing its judgment the reasons for and evidence underlying the order issued pursuant to LAW . [ .. ] ”

As concerns the enforcement of judgments requiring the return of a child , Article CARDINAL of the ORG provides the following :

“ CARDINAL . The enforcement procedure is governed by the law of the Member State of enforcement .

Any judgment delivered by a court of another Member PERSON and [ .. ] certified in accordance with [ .. ] LAW ) shall be enforced in the Member State of enforcement in the same conditions as if it had been delivered in that Member State .

In particular , a judgment which has been certified according to [ .. ] LAW ) can not be enforced if it is irreconcilable with a subsequent enforceable judgment . ”

Lastly , Articles DATE and CARDINAL of the Regulation provide that the Regulation “ shall take precedence ” over LAW “ in so far as [ it concerns ] matters governed by this LAW and that LAW continues “ to produce effects between the Member GPE which are party thereto ” .


CASE OF EDWARDS AND LEWIS v. THE UNITED KINGDOM

Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings

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

On DATE , following a surveillance and undercover operation , he was arrested in a van in the company of an undercover police officer known only as “ PERSON ” . In the van was a briefcase containing QUANTITY of PERCENT pure heroin . On DATE the applicant was convicted in ORG of possessing a Class A drug with intent to supply and was sentenced to DATE imprisonment .

The first applicant 's defence was that at the time of his arrest he believed he was taking part in a transaction to sell stolen jewellery . He alleged that his participation had been organised by a man named PERSON , whom he had met DATE while both were detained on remand in FAC . According to the applicant , DATE before his arrest PERSON had introduced him to a man called PERSON and a man presented to him only as “ PERSON ” . DATE before the arrest , the applicant was contacted by GPE and asked if he would be interested in going to GPE in connection with a jewellery deal in which GPE was acting as intermediary to PERSON . He would be given a cut of the purchase price . The applicant agreed that ORG would pick him up from his home DATE .

NORP The following morning he was told that the plans had changed as PERSON was now coming to GPE . The first applicant agreed to accompany ORG to a public house where , at TIME , a red ORG car and a white van drew up . The driver of the ORG was introduced to the applicant as “ PERSON ; he was accompanied by a man and a woman , subsequently called “ PERSON and “ PERSON . The driver of the van was introduced as “ PERSON ” . PERSON gave PERSON a briefcase containing GBP CARDINAL . They all then left in convoy for ORG , FAC , where they were to meet PERSON .

At the hotel , ORG decided to stay with the money in the car and asked the applicant to see if PERSON had arrived . The applicant therefore went into the hotel where he met PERSON , who told him that the arrangements had changed again as PERSON was now in GPE . GPE and PERSON asked the applicant to take a taxi to FAC and ask PERSON to return with him to ORG . The applicant followed these instructions and found PERSON , who told him he had to leave immediately for another meeting . PERSON , having spoken to PERSON or GPE by mobile phone , gave the applicant the key to a room in the nearby FAC , and explained that the “ goods ” were in a briefcase in the room .

According to the applicant , PERSON came from LOC in his van and met the applicant outside FAC . PERSON then suggested that the applicant should accompany him up to the room and offered to give him a lift back to ORG afterwards . In the hotel room , PERSON forced the lock on the case while the applicant was in the bathroom and when he came out PERSON was ready to go . They returned to the van where the briefcase was opened and within moments the applicant had been arrested .

Of all the participants in the above transaction , only the applicant was arrested and charged . The applicant suspects that the other participants were undercover police officers or informers acting on police instructions , but their identities and status have never been revealed to him . In this regard he considers it relevant that at the time of the alleged dealings , PERSON was on bail to ORG in respect of a large scale conspiracy to supply cannabis . One of the conspirators was a former ORG Detective . It was known to the applicant that PERSON had acted as a participating police informer in that case and it was further known that the police officers involved in the applicant 's case had also investigated the conspiracy for which FAC was on bail . The applicant believes that sentencing in GPE 's trial was deliberately postponed until DATE , DATE after the conclusion of the applicant 's own trial , as a disincentive for GPE to come forward and give evidence concerning the true nature of the transaction .

Prior to the commencement of the applicant 's trial the prosecution gave notice to the defence that an application to withhold material evidence had been made ex parte in advance of the trial under the procedure approved in NORP v. PERSON , PERSON and PERSON ( see paragraph CARDINAL below ) . Judge PERSON , who considered the material in the absence of the defence , concluded that it would not assist the defence and that there were genuine public interest grounds for withholding it . This ruling was subsequently reconsidered by the trial judge , who had the benefit of a document prepared by the defence , outlining the issues in the case , as well as of the oral submissions of defence counsel . In the course of the present proceedings before ORG , the Government revealed for the first time that the material placed before the trial judge included information indicating that the applicant had been involved in the supply of heroin before the start of the undercover operation . The subject matter of the public interest immunity evidence was not disclosed to the applicant during the domestic proceedings , either at first instance or on appeal . He denies any prior involvement in drug dealing . The trial judge , who directed himself in accordance with the approach set out by ORG in NORP v. PERSON ( see paragraph CARDINAL below ) , decided that the evidence in question would not assist the defence and found genuine public interest grounds in favour of non - disclosure .

Following the ruling on disclosure , the defence made an application to the trial judge under section CARDINAL of ORG “ PACE ” : see paragraph CARDINAL below ) to exclude the evidence of PERSON , on the basis that the applicant had been entrapped into committing the offence . These submissions were rejected . The judge held that in the course of the ex parte application he had heard nothing and seen no material which would have assisted the defence in their argument that evidence should be excluded under section CARDINAL on grounds of entrapment . He continued that , if he had seen or heard any such material , he would have ordered disclosure .

Apart from the applicant , PERSON was the only participant in the offence to give evidence at the trial . He testified that the applicant had made a number of incriminating statements to him when they were alone together in the van and hotel room . Although PERSON claimed to have made a full note of the alleged conversations , these notes were never shown to the applicant and the applicant was not questioned in connection with their content by the investigating police officers . According to the applicant it was , however , difficult for the defence to undermine PERSON 's credibility because his full name and other identifying details were not disclosed .

Following his conviction the applicant appealed to ORG on the ground , inter alia , that the judge had been wrong to refuse to order disclosure . Dismissing the appeal on DATE ORG , having itself examined the undisclosed evidence , observed that “ each CARDINAL of us reached the clearest possible view that nothing in the documents withheld could possibly have assisted the defence at trial ; indeed quite the reverse ” .

Prior to the events in question , the applicant was of good character . He had been employed as accounts director in a firm which had gone into liquidation DATE , and at the time of his arrest in DATE he was unemployed and in considerable debt .

NORP The applicant 's version of events , which he maintained from the time of his first interview with the police , was that he had been introduced to a man named “ PERSON ” by an acquaintance , PERSON , since PERSON appeared interested in purchasing from the applicant some bankrupt stock . At a meeting in DATE PERSON had started talking about counterfeit currency and had pressed the applicant to obtain some as part of the transaction . Although the applicant had never hitherto been involved with counterfeit currency , he did have a contact , “ PERSON , who was able to supply forged bank notes .

PERSON went on to introduce the applicant to CARDINAL men called “ NORP ” and “ Jazz ” . At a third meeting on DATE , PERSON turned up with “ PERSON ” , who was subsequently revealed to be an undercover police officer , and an order for a large amount of currency was placed . It appears from the transcript of covert tape recordings made during this meeting that , while the applicant was not unwilling to become involved , he was actively encouraged to do so by PERSON and PERSON , who pressurised him to a certain degree to supply more notes of a higher denomination than had at first been agreed . On DATE the applicant met PERSON and another undercover officer , “ PERSON , in a public house car park . He showed them some counterfeit notes , and was immediately arrested by uniformed officers . More counterfeit notes were found when his house was searched .

The applicant maintained that he had been entrapped by undercover police officers and/or participating informers into committing the offences . On DATE he applied to ORG judge for an order that the indictment should be stayed on the grounds that , as a result of the covert activities of undercover police officers and/or participating informers , ( a ) it was not possible for him to have a fair trial and ( b ) the moral integrity of the criminal proceedings had been impugned . He also requested the judge to order the prosecution to provide more information and documents , including information relating to the question whether PERSON , “ PERSON ” or “ GPE , “ Jazz ” or “ NORP ” were participating informers or undercover police officers .

Prior to making his ruling on the defence application , the judge heard , ex parte , an application by the prosecution to withhold certain material evidence on grounds of public interest immunity . The judge refused to grant a stay or to order further disclosure , indicating that most of the information sought was subject to public interest immunity . He also ruled that , while it was clear that “ PERSON ” was coaxing the applicant , there was no evidence of pressure being applied .

A second submission was then made on the applicant 's behalf to exclude the evidence of undercover police officers under section CARDINAL of PACE . However , before evidence was called from the officers in question – “ PERSON ” and “ PERSON ” – the defence counsel sought guidance from the judge as to the areas of cross examination which would or would not be allowed , given that certain issues relating to the investigation were covered by public interest immunity . It became apparent that most of the areas of cross examination necessary to develop the submission were not to be allowed . Accordingly , the submission was withdrawn and the applicant entered guilty pleas to the indictment on DATE .

On DATE he was sentenced to a total of DATE imprisonment .

On DATE counsel advised that the applicant had no prospects of success in appealing against conviction , since he would have to demonstrate that the convictions were unsafe before an appeal could succeed . This would be impossible given that , on his own account , he had been motivated by money to enter into the deal to sell counterfeit currency . Counsel also expressed the view that :

“ Had there been anything within the [ public interest immunity ] material which could have assisted the Defendant in developing his case to exclude the evidence under s.CARDINAL PACE I am confident the Judge would have released it . In those circumstances , I advise that there are no grounds of appeal against conviction . ”

The fact that a defendant would not have committed an offence were it not for the activity of an undercover police officer or an informer acting on police instructions does not provide a defence under LANGUAGE law . The judge does , however , have a discretion to order a stay of a prosecution where it appears that entrapment has occurred , as ORG affirmed in PERSON ; Attorney General 's Reference ( No . DATE ) ( [ DATE ] ORG CARDINAL ) , a judgment which followed and approved earlier case - law , including case - law which applied at the times of the applicants ' trials ( for example , the judgment of ORG in NORP v. PERSON [ DATE ] vol . CARDINAL Weekly Law reports p. CARDINAL ) .

In GPE , Lord PERSON of GPE explained , ( § CARDINAL ) :

“ My ORG , every court has an inherent power and duty to prevent abuse of its process . This is a fundamental principle of the rule of law . By recourse to this principle courts ensure that executive agents of the state do not misuse the coercive , law enforcement functions of the courts and thereby oppress citizens of the state . Entrapment ... is an instance where such misuse may occur . It is simply not acceptable that the state through its agents should lure its citizens into committing acts forbidden by the law and then seek to prosecute them for doing so . That would be entrapment . That would be a misuse of state power , and an abuse of the process of the courts . The unattractive consequences , frightening and sinister in extreme cases , which state conduct of this nature could have are obvious . The role of the courts is to stand between the state and its citizens and make sure this does not happen ” .

In addition , the court has a discretion , under section CARDINAL of ORG , to exclude evidence obtained by an undercover police officer where , inter alia , the defendant would not have committed the offence without the police incitement ( NORP v. Smurthwaite ; PERSON ( DATE ) vol . CARDINAL ORG p. CARDINAL , judgment of ORG ; and PERSON , cited above ) . Of the CARDINAL remedies , the grant of a stay , rather than the exclusion of evidence , is the more appropriate remedy because a prosecution founded on entrapment is an abuse of the court 's process and should not have been brought in the first place .

In GPE , their Lordships agreed that it was not possible to set out a comprehensive definition of unacceptable police conduct or “ state created crime ” . In each case it was for the judge , having regard to all the circumstances , to decide whether the conduct of the police or other law enforcement agency was so seriously improper as to bring the administration of justice into dispute . Factors to be taken into account included the nature of the offence , the reason for the particular police operation , the possibility of using other methods of detection and the nature and extent of police participation in the crime ; the greater the inducement held out by the police , and the more forceful and persistent the police overtures , the more readily might a court conclude that the police had overstepped the boundary , since their conduct might well have brought about the commission of a crime by a person who would normally avoid crime of that kind . The police should act in good faith to uncover evidence of criminal acts which they reasonably suspected the accused was about to commit or was already engaged in committing , and the police operation should be properly supervised . The defendant 's criminal record was unlikely to be relevant unless it could be linked to other factors grounding reasonable suspicion that he or she had been engaged in the criminal activity in question prior to the involvement of the police ( per Lord PERSON , § § DATE ; Lord PERSON , § § DATE ) .

At common law , the prosecution has a duty to disclose any material which has or might have some bearing on the offence charged . This duty extends to any earlier written or oral statement of a prosecution witness which is inconsistent with evidence given by that witness at the trial and statements of any witnesses potentially favourable to the defence .

In DATE the Attorney - General issued Guidelines , which did not have the force of law , concerning exceptions to the common law duty to disclose to the defence evidence of potential assistance to it ( ( DATE ) CARDINAL ORG , p. CARDINAL ( “ the Guidelines ” ) ) . According to the Guidelines , the duty to disclose was subject to a discretionary power for prosecuting counsel to withhold relevant evidence if it fell within CARDINAL of the categories set out in paragraph CARDINAL . CARDINAL of these categories ( CARDINAL ) ) was “ sensitive ” material which , because of its sensitivity , it would not be in the public interest to disclose . “ Sensitive material ” was defined as follows :

“ ... ( a ) it deals with matters of national security ; or it is by , or discloses the identity of , a member of ORG who would be of no further use to those services once his identity became known ; ( b ) it is by , or discloses the identity of , an informant and there are reasons for fearing that the disclosure of his identity would put him or his family in danger ; ( c ) it is by , or discloses the identity of , a witness who might be in danger of assault or intimidation if his identity became known ; ( d ) it contains details which , if they became known , might facilitate the commission of other offences or alert someone not in custody that he is a suspect ; or it discloses some unusual form of surveillance or method of detecting crime ; ( e ) it is supplied only on condition that the contents will not be disclosed , at least until a subpoena has been served upon the supplier – e.g. a bank official ; ( f ) it relates to other offences by , or serious allegations against , someone who is not an accused , or discloses previous convictions or other matters prejudicial to him ; ( g ) it contains details of private delicacy to the maker and/or might create risk of domestic strife . ”

In NORP v. Ward ( [ DATE . CARDINAL Weekly Law Reports p. CARDINAL ) ORG stressed that the court and not the prosecution was to decide whether or not relevant evidence should be retained on grounds of public interest immunity . It explained that “ ... a judge is balancing on the one hand the desirability of preserving the public interest in the absence of disclosure against , on the other hand , the interests of justice . Where the interests of justice arise in a criminal case touching and concerning liberty or conceivably on occasion life , the weight to be attached to the interests of justice is plainly very great indeed ” .

In NORP v. PERSON , PERSON and PERSON ( [ DATE ] vol . CARDINAL Weekly Law Reports p. CARDINAL ) , ORG held that it was not necessary in every case for the prosecution to give notice to the defence when it wished to claim public interest immunity , and outlined CARDINAL different procedures to be adopted . The first procedure , which had generally to be followed , was for the prosecution to give notice to the defence that they were applying for a ruling by the court and indicate to the defence at least the category of the material which they held . The defence would then have the opportunity to make representations to the court . Secondly , however , where the disclosure of the category of the material in question would in effect reveal that which the prosecution contended should not be revealed , the prosecution should still notify the defence that an application to the court was to be made , but the category of the material need not be disclosed and the application should be ex parte . The third procedure would apply in an exceptional case where to reveal even the fact that an ex parte application was to be made would in effect be to reveal the nature of the evidence in question . In such cases the prosecution should apply to the court ex parte without notice to the defence .

ORG observed that although ex parte applications limited the rights of the defence , in some cases the only alternative would be to require the prosecution to choose between following an inter partes procedure or declining to prosecute , and in rare but serious cases the abandonment of a prosecution in order to protect sensitive evidence would be contrary to the public interest . It referred to the important role performed by the trial judge in monitoring the views of the prosecution as to the proper balance to be struck and remarked that even in cases in which the sensitivity of the information required an ex parte hearing , the defence had “ as much protection as can be given without pre - empting the issue ” . Finally , it emphasised that it was for the trial judge to continue to monitor the position as the trial progressed . Issues might emerge during the trial which affected the balance and required disclosure “ in the interests of securing fairness to the defendant ” . For this reason it was important for the same judge who heard any disclosure application also to conduct the trial .

The leading case on disclosure at the time of the applicant 's trial was the judgment of ORG in NORP v. PERSON ( [ DATE ] vol . CARDINAL Weekly Law Reports p. CARDINAL ) . The Lord Chief Justice , giving the judgment of the court , held that the prosecution should put before the judge only those documents which it regarded as material but wished to withhold on grounds of public interest immunity . “ Material ” evidence was defined as evidence which could be seen , “ on a sensible appraisal by the prosecution : ( CARDINAL ) to be relevant or possibly relevant to an issue in the case ; ( CARDINAL ) to raise or possibly raise a new issue whose existence is not apparent from the evidence which the prosecution proposes to use ; ( CARDINAL ) to hold out a real ( as opposed to fanciful ) prospect of providing a lead on evidence which goes to ( CARDINAL ) or ( CARDINAL ) ” .

Once the judge was seized of the material , he or she had to perform the balancing exercise between the public interest in non - disclosure and the importance of the documents to the issues of interest , or likely to be of interest , to the accused . If the disputed material might prove the defendant 's innocence or avoid a miscarriage of justice , the balance came down firmly in favour of disclosing it . Where , on the other hand , the material in question would not be of assistance to the accused , but would in fact assist the prosecution , the balance was likely to be in favour of non - disclosure .

In the case of NORP v. PERSON ( [ DATE ] vol . CARDINAL Weekly Law Reports p. CARDINAL ) , ORG returned to the balancing exercise , stating inter alia :

“ Since NORP v. Ward ... there has been an increasing tendency for defendants to seek disclosure of informants ' names and roles , alleging that those details are essential to the defence . Defences that the accused has been set up , and allegations of duress , which used at CARDINAL time to be rare , have multiplied . We wish to alert judges to the need to scrutinise applications for disclosure of details about informants with very great care . They will need to be astute to see that assertions of a need to know such details , because they are essential to the running of the defence , are justified . If they are not so justified , then the judge will need to adopt a robust approach in declining to order disclosure . Clearly , there is a distinction between cases in which the circumstances raise no reasonable possibility that information about the informant will bear upon the issues and cases where it will . Again , there will be cases where the informant is an informant and no more ; other cases where he may have participated in the events constituting , surrounding , or following the crime . Even when the informant has participated , the judge will need to consider whether his role so impinges on an issue of interest to the defence , present or potential , as to make disclosure necessary ... ”

The requirements of disclosure have since been set out in a statutory scheme . Under the Criminal Procedure and Investigations Act DATE ( “ the DATE LAW ) , which came into effect in GPE and GPE immediately upon gaining FAC on DATE , the prosecution must make “ primary disclosure ” of all previously undisclosed evidence which , in the prosecutor 's view , might undermine the case for the prosecution . The defendant must then give a defence statement to the prosecution and the court , setting out in general terms the nature of the defence and the matters on which the defence takes issue with the prosecution . The prosecution must then make a “ secondary disclosure ” of all previously undisclosed material “ which might reasonably be expected to assist the accused 's defence as disclosed by the defence statement ” . Disclosure by the prosecution may be subject to challenge by the accused and review by the trial court .

Following the judgments of the ORG in PERSON v. GPE ( DATE , Reports of Judgments and Decisions PERSON ) and PERSON v. GPE ( DATE , Reports CARDINAL-IV ) , GPE has introduced legislation making provision for the appointment of a “ special counsel ” in certain cases involving national security . The provisions are contained in ORG Act DATE ( “ the CARDINAL Act ” ) , and LAW DATE ( “ the DATE LAW ) . Under this legislation , where it is necessary on national security grounds for the relevant tribunal to sit in camera , in the absence of the affected individual and his or her legal representatives , the Attorney General may appoint a special counsel to represent the interests of the individual in the proceedings . The legislation provides that the special counsel is not however “ responsible to the person whose interest he is appointed to represent ” , thus ensuring that the special counsel is both entitled and obliged to keep confidential any information which can not be disclosed . The relevant rules giving effect to the DATE and CARDINAL Acts are set out in the ORG 's judgment in GPE v. GPE ( [ ORG ] , no . CARDINAL , § DATE , ECHR DATE ) .

In DATE the ORG commissioned a comprehensive review of the criminal justice system , under the chairmanship of a senior ORG judge , Sir PERSON . The report , published in DATE after extensive consultation and entitled “ The Review of the Criminal Courts in England and GPE ” ( “ the Auld Report ” ) , recommended , inter alia , the introduction of a “ special counsel ” scheme in cases where the prosecution wished to seek , ex parte , non - disclosure on grounds of public interest immunity . The recommendation was explained in the ORG as follows ( footnotes omitted ) :

“ CARDINAL . The scheme [ developed by the common law since R v. Ward and reflected in LAW : see above ] is an improvement on what went before and has been generally welcomed on that account . But there is widespread concern in the legal professions about lack of representation of the defendant 's interest in the [ ex parte ] forms of application , and anecdotal and reported instances of resultant unfairness to the defence . ... A suggestion , argued on behalf of applicants in GPE and widely supported in the ORG , is that the exclusion of the defendant from the procedure should be counterbalanced by the introduction of a ' special independent counsel ' . He would represent the interest of the defendant at first instance and , where necessary , on appeal on a number of issues : first , as to the relevance of the undisclosed material if and to the extent that it has not already been resolved in favour of disclosure but for a public interest immunity claim ; second , on the strength of the claim to public interest immunity ; third , on how helpful the material might be to the defence ; and fourth , generally to safeguard against the risk of judicial error or bias .

In my view , there is much to be said for such a proposal , regardless of the vulnerability or otherwise of the present procedures to LAW . PERSON , in a paper prepared for the ORG , has argued powerfully in favour of it . It would restore some adversarial testing of the issues presently absent in the determination of these often critical and finely balanced applications . It should not be generally necessary for special counsel to be present throughout the trial . Mostly the matter should be capable of resolution by the court before trial and , if any question about it arises during trial , he could be asked to return . If , because of the great number of public interest immunity issues now being taken in the courts , the instruction of special counsel for each would be costly , it simply indicates , as PERSON has commented , the scale of the problem and is not an argument against securing a fair solution .

The role would be similar to that of an amicus curiae brought in to give independent assistance to a court , albeit mostly on appeal . In rape cases , where an unrepresented defendant seeks to cross - examine a complainant , the court must inform him that he may not do so , and should he refuse to instruct counsel , the court will appoint and instruct CARDINAL . After the decisions of ORG in PERSON and PERSON , the ORG introduced such a procedure in immigration cases involving national security . Although such cases are extremely rare , it is sufficient that the principle of a ' third ' or ' special ' counsel being instructed on behalf of a defendant has been conceded in a number of areas .

The introduction of a system of special independent counsel could , as PERSON has also noted , in part fill a lacuna in the law as to public interest immunity hearings in the absence of a defendant appellant in ORG , to which LAW and supporting Rules do not apply . Where there has been a breach of LAW because a trial judge did not conduct a public interest immunity hearing due to the emergence of the material only after conviction , ORG has held that the breach can not be cured by a hearing before ORG in the absence of the appellant . The ORG 's reasons for so holding were that the appeals court is confined to examining the effect of non - disclosure on the trial ex post facto and could possibly be unconsciously influenced by the jury 's verdict into underestimating the significance of the undisclosed material .

However , even the introduction of special counsel to such hearings would not solve the root problem to which I have referred of police failure , whether out of incompetence or dishonesty , to indicate to the prosecutor the existence of critical information . Unless , as I have recommended , the police significantly improve their performance in that basic exercise , there will be no solid foundation for whatever following safeguards are introduced into the system .

I recommend the introduction of a scheme for instruction by the court of special independent counsel to represent the interests of the defendant in those cases at first instance and on appeal where the court now considers prosecution applications in the absence of the defence in respect of the non - disclosure of sensitive material . ”


Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He is represented before the Court by Mr W. ORG , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , Mr J. PERSON of ORG .

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

Following the entry into force of the PERSON of DATE “ on disclosing work for or service in the ORG ’s security services or collaboration with them DATE by persons exercising public functions ” ( ustawa o ujawnieniu pracy lub służby w organach bezpieczeństwa państwa lub współpracy z nimi w latach CARDINAL - CARDINAL osób pełniących funkcje publiczne ) ( the “ DATE LAW ” ) , the applicant , a former Prime Minister who at the material time had been a member of the PERSON , declared that he had not collaborated with the NORP - era secret services .

On DATE the Commissioner of ORG ( PERSON ) , PERSON , applied to ORG ( Sąd Apelacyjny ) for proceedings to be instituted in the applicant ’s case on the grounds that he had lied in his lustration declaration by denying that he had cooperated with the secret services .

On DATE ORG decided to institute lustration proceedings against the applicant . The court was composed of CARDINAL judges : a judge rapporteur PERSON and judges GPE and GPE The decision contained the following reasons :

“ The Commissioner of ORG lodged with ORG an application for lustration proceedings to be instituted in respect of PERSON .

ORG finds that the application should be granted . The materials submitted together with the application point to the assessment ( wskazują na ocenę ) that PERSON lodged an untrue lustration declaration .

In those circumstances it has been decided as above . ”

On DATE ORG , acting as the firstinstance lustration court , found that the applicant had submitted an untrue lustration declaration because he had not revealed that he had intentionally and secretly collaborated with the ORG ’s secret services . The operative part of the judgment was served on the applicant ; however , the reasoning was considered “ top secret ” and , in accordance with LAW , could only be consulted in the secret registry of the court .

The applicant lodged an appeal .

On DATE ORG , acting as the secondinstance lustration court , allowed the applicant ’s appeal and quashed the impugned judgment .

On DATE the magazine ORG published an article on the applicant ’s lustration case and his alleged cooperation with the secret services . According to the applicant , the article relied on documents and information in the case file that had been classified “ top secret ” and was presented in a manner that made him believe that they had been obtained from the Commissioner of ORG .

On DATE the applicant applied to have the Commissioner , Mr B. Nizieński , excluded from dealing with his case on the grounds that there was reasonable doubt as to his impartiality .

On DATE the First President of ORG decided that under domestic law he did not have the right to examine the applicant ’s challenge of the Commissioner as he could not be considered his superior within the meaning of LAW of the Criminal Procedure .

The applicant lodged a constitutional complaint against that decision . On DATE ORG ( PERSON ) refused to hear the complaint , mainly on the ground that it was not competent to decide on issues concerning gaps in the law . It reiterated its role as a “ negative legislator ” , in that it was called on to strike down laws that breached the LAW , but had no legislative powers . An appeal by the applicant against that decision was dismissed on DATE . The applicant ’s lawyer was notified of this decision on DATE . On DATE ORG decided to inform the PERSON that the case disclosed a gap in the law in that it had not provided for a procedure for challenging the Commissioner of ORG , nor an authority to which such a challenge could be directed . The closing of such a gap in the law was , in the court ’s opinion , indispensable to ensure the integrity of the legal system , and respect for the rule of law , defence rights and the right to court . The Commissioner of ORG , PERSON , took part in the proceedings up to the end of the applicant ’s lustration trial on DATE .

On DATE ORG gave a judgment in which it found the applicant guilty of lying in his lustration declaration . The court was composed of CARDINAL judges , including a judge rapporteur , PERSON

The written reasons , numbering CARDINAL pages , were considered “ top secret ” and could be consulted only in the secret registry .

On DATE the applicant ’s lawyer lodged an appeal . He complained , inter alia , that the judge , PERSON , who dealt with the case at the initial stage of the proceedings , should have been disqualified from dealing with the case as there was reasonable doubt as to his impartiality .

On DATE ORG , acting as a secondinstance lustration court , upheld the impugned judgment . The applicant could consult the written reasons for the judgment in the secret registry of the court .

On DATE the applicant ’s lawyer consulted the file and complained to the court that the reasoned judgment did not contain the dissenting opinion . The dissenting opinion , which was CARDINAL pages long , was submitted to the parties on DATE , DATE before the expiry of the time - limit for lodging a cassation appeal .

On DATE the applicant ’s lawyer lodged a cassation appeal with ORG ( Sąd Najwyższy ) . He argued that the applicant had not been aware of an obligation to disclose his activities for PERSON , “ AWO ” , a separate agency , which according to information in his possession could not be considered as belonging to the secret services within the meaning of LAW .

On DATE , after a hearing , ORG quashed both previous judgments of ORG of DATE and DATE and discontinued the lustration proceedings against the applicant ( umorzył postępowanie ) .

It established that the lustration declaration submitted by the applicant had been “ subjectively untrue but objectively true ” ( obiektywnie nieprawdziwe lecz prawdziwe subiektywnie oświadczenie lustracyjne ) . When submitting his declaration the applicant had been misled by the CARDINAL most competent persons in the field , the Minister of Defence and the Head of ORG ( ORG ) , who had infbłąd usprawiedliwiony ) and the applicant was not found to have been a “ lustration liar ” .

Section CARDINAL of the DATE LAW , amended with effect from DATE , provides :

“ A final judgment finding that the declaration submitted by the subject was untrue shall be published immediately in LAW ( ORG ) if

CARDINAL ) no cassation appeal has been lodged within the prescribed time - limit ; or

CARDINAL ) NORP the cassation appeal has been left unexamined ; or

CARDINAL ) NORP the cassation appeal has been dismissed . ”

Section CARDINAL lists the consequences of such a judgment for a person subject to lustration who has submitted an untrue declaration . It reads , in so far as relevant :

“ CARDINAL . A final judgment finding that the subject has submitted an untrue declaration shall result in the loss of the moral qualifications necessary for exercising public functions , described according to the relevant laws as : unblemished character , immaculate reputation , irreproachable reputation , good civic reputation , or respectful of fundamental values . After DATE the judgment shall be considered to be of no legal effect .

A final judgment finding that the subject has submitted an untrue declaration shall entail dismissal from the functions exercised by that person if the moral qualifications mentioned above are necessary for exercising it .

A final judgment finding that the subject has submitted an untrue declaration shall deprive that person of the right to stand for election as President for a period of DATE . ”

The detailed rendition of the provisions of the domestic law is set out in the ORG ’s judgment in the case ORG v. GPE , no . CARDINAL/CARDINAL , ORG DATE ...


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

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens

The applicant was born in DATE and lives in the town of GPE , GPE .

In TIME of DATE police officers arrested the applicant 's husband on suspicion of indecent behaviour in a public place and took him to a nearby police station situated in a dormitory building . The applicant accompanied him . According to the applicant , in response to her pleas for her husband 's release , a police officer , PERSON . , grabbed her hair and hit her head against a wall CARDINAL times . Then he handcuffed her to a radiator in a corridor of the dormitory . She was released TIME .

The Government disputed the applicant 's version of events , arguing that the applicant , who was drunk , had followed the police officers and her husband to the station , demanding to be informed of the reasons for her husband 's arrest and for him to be released . According to the ORG , the applicant attempted to resist her husband 's arrest , grabbing the officers ' uniforms and using obscene language . On arrival at the station the applicant attempted to block the entrance door and kicked officer PERSON . on the leg . After the police officers had locked the entrance door , the applicant broke a pane of glass in the door , unlocked it and entered the station . She accompanied her actions with threats of violence against the officers and said she would get them dismissed from the police force . Faced with violence and resistance on the applicant 's part , police officer PERSON . used physical force and handcuffed her .

In TIME DATE the applicant went to PERSON no . CARDINAL Hospital complaining of headache , nausea , dizziness and vomiting . She was diagnosed with concussion and prescribed outpatient treatment . The attending doctor also noted that the applicant had bruises on the forehead , chest , shoulders and occipital region of the head .

Criminal proceedings were instituted against officer PERSON . on a charge of abuse of position . The prosecutor 's office accused him of having caused the applicant injuries in the form of concussion , tissue damage and bruising on the left side of the face and of exceeding the limits of his official powers by handcuffing the applicant to a radiator .

On DATE the applicant was subjected to a forensic medical examination . Following the exam the expert issued a report which , in so far as relevant , read as follows :

“ [ there are ] a swelling of the soft tissues on the left side of the [ applicant 's ] forehead accompanied by a bluish and yellow bruise measuring QUANTITY in width and QUANTITY in length ... , [ and ] CARDINAL bruises measuring QUANTITY in width and QUANTITY in length and QUANTITY in width and QUANTITY in length on the back surface in the lower third part of her right shoulder . There are similar bruises on the palmar surface of the right forearm ( a bruise QUANTITY wide ) and on the rear of the right forearm ( CARDINAL bruises : QUANTITY wide and QUANTITY long and QUANTITY wide and QUANTITY long ) ; [ there is a bruise ] , measuring QUANTITY in width and QUANTITY in length , on ... the left shoulder , [ there are ] numerous similar bruises on the back of [ the applicant 's ] left wrist and left forearm ... measuring CARDINAL . ”

The expert concluded that the applicant had concussion and an injury and bruise on the face which had been caused recently by hard blunt objects and had caused minor damage to health . He listed numerous bruises on the applicant 's arms and shoulders , assessing that they too were the result of blows from a firm blunt object and had been incurred at the same time as the head injury . Finally , the expert addressed the possibility that the applicant had sustained a chest injury ; this was the preliminary diagnosis she received at the hospital . The expert observed no injuries on the chest , and found that there was no evidence in support of that preliminary diagnosis .

Following a second forensic medical examination of the applicant , on DATE , the expert 's findings were similar as to the location of the injuries and their nature and also established that the injuries could have been caused in the circumstances described by the applicant .

NORP In DATE the case was sent for trial to ORG of GPE . However , on DATE ORG returned the case to the prosecution with an order for certain procedural defects , which violated the defendant 's rights , to be corrected . The trial court further stressed that a comprehensive expert medical examination of the applicant was needed “ to settle certain inconsistencies in the first CARDINAL expert reports ” .

On DATE a comprehensive expert medical examination authorised by ORG confirmed that the applicant had had a craniocerebral injury comprising a bruise and an injury to the soft tissue of the left side of the forehead , an injury to the soft tissue of the occipital region and concussion , numerous bruises on the arms and an injury to the soft tissue on the left side of the chest resulting from the application , a number of times , of a hard blunt object with a small surface area . Noting that the injuries could have been caused in the circumstances described by the applicant , the experts went further and stated that the different location , in particular the fact that the bruises had been on the applicant 's forehead and the occipital region , and the quantity of the injuries , ruled out self - infliction .

On DATE ORG acquitted PERSON . of all charges , finding that his actions had not been criminal . The ORG based its judgment on statements by the defendant , the applicant and her husband , CARDINAL police officers , PERSON , PERSON , Mr T. and PERSON , DATE witnesses , PERSON , PERSON , PERSON , PERSON , and Ms I .. , and an opinion given by a forensic medical expert , PERSON statements were as follows :

- the defendant confirmed that on DATE he and his partner , PERSON , had arrested the applicant 's husband . The applicant , who was drunk , approached and demanded that her husband be released . She used offensive language , grabbed the police officers by their clothes and did not respond to their warnings . After the officers had entered the police station , the applicant tried to prevent them from closing the entrance door and kicked the defendant on the leg . When the defendant succeeded in closing the door , the applicant broke a pane of glass in the door , unlocked it and entered the building . The defendant noted that he had had no choice but to handcuff the applicant to a radiator near the entrance door . However , she continued acting violently . She broke another pane of glass in the entrance door and used offensive language . The defendant insisted that he had not beaten the applicant up . He could not explain the cause of the applicant 's injuries , noting that she had had no injuries before her husband 's arrest and that she could have hurt herself .

- the applicant confessed that , being under the influence of alcohol , she had tried to prevent her husband 's arrest and had grabbed the police officers by their uniforms and had used offensive language . She further stated that after she had broken a pane of glass in the entrance door and gone into the station , the defendant had grabbed her by the hair and hit her head CARDINAL times against a wall . He had then handcuffed her to a radiator .

- the applicant 's husband confirmed that his wife had accompanied him to the police station . At the station he had heard the sound of breaking glass , then his wife shouting , and then more breaking glass . He did not see how his wife had sustained the injuries .

- the witnesses , PERSON and PERSON , testified that they had seen the applicant and her husband during TIME of DATE , prior to the arrival of the police , and that they had not observed the alleged beatings by the police .

- the police officers , PERSON and PERSON , stated that they had arrived at the police station at TIME on DATE . They saw the applicant handcuffed to a radiator in a corridor . She was acting aggressively and was drunk . There was broken glass around her on the floor . She did not have any visible injuries . The police officers noted that PERSON . explained to them that he had handcuffed the applicant to calm her down . After the applicant was released she again threatened the police officers , using offensive language .

- the witnesses , PERSON and PERSON , informed ORG that on DATE , at TIME , they had gone along a corridor in the dormitory building . They noticed that the applicant was handcuffed to a radiator . She was drunk and aggressive and was using offensive language . The applicant did not make any requests or complaints .

- the witness , PERSON , who worked as a concierge in the dormitory , stated that she spoke to the applicant during the evening of QUANTITY DATE and that the applicant had confirmed that she had broken windows to draw attention to her situation .

- the police officer , PERSON , corroborated the statements made by the defendant .

- the police officer , PERSON , testified that the applicant had complained to him that the defendant had beaten her up . He saw a bruise on her arm , above the wrist , and an injury on her forehead . The applicant was sent for a medical examination .

- the expert , PERSON , informed ORG that on the instruction of a LOC assistant prosecutor he had performed a forensic medical examination of the applicant and had issued a report . He recorded that the applicant had concussion , tissue damage and a bruise on the face , a bruise on the right side of the forehead and bruises on the arms . The expert noted that his report was corroborated by the results of the compound forensic medical examination of the applicant .

Having examined the evidence , ORG held that there was no evidence that the defendant had beaten the applicant up . As regards the fact that the defendant had handcuffed the applicant , ORG held as follows :

“ The actions of the defendant , PERSON . , were lawful and valid and were caused by unlawful actions of the victim , [ the applicant ] , who had committed an offence . A special measure DATE handcuffs were lawfully applied to prevent an ongoing offence by [ the applicant ] , who acted unpredictably , created a dangerous situation for police officers and other individuals who passed through the corridor of the building . [ The applicant ] could have caused various injuries to individuals by breaking the panes of glass [ in the door ] . The victim did not need medical assistance , nor did she ask for it . The victim did not have visible injuries which required medical assistance . When he had handcuffed and arrested the spouses [ the applicant and her husband ] , the defendant , PERSON . , reported to ... his chief , thus fully complying with legal obligations . ”

The applicant and the prosecution appealed .

On DATE ORG upheld ORG findings . The judgment of ORG , as far as relevant , read as follows :

“ As regards injuries caused to the victim .

PERSON . emphatically stated that he had not beaten [ the applicant ] up . There are no eyewitnesses . The statements by the victim as to the cause of her injuries do not correspond to the findings of the forensic medical examinations .

Thus , as it follows from an expert report ... , [ the applicant ] had injuries in the form of concussion , an injury and bruising to the face , on the left side of the forehead . An expert , PERSON , who had performed the initial medical examination , was questioned at a hearing and stated that if it was confirmed that [ the applicant ] had hit her head it was possible that she had received those injuries , however , it was impossible to say precisely .

According to the conclusions of the comprehensive forensic medical examination , [ the applicant ] had injuries in the form of a craniocerebral trauma ( a bruise and injury to the soft tissues of the left side of the forehead , an injury to the soft tissues of the occipital region of the head , and concussion ) , numerous bruises on the arms , and an injury to the soft tissues of the left side of the chest .

Having regard to the general picture of the bodily injuries , the experts concluded that it would not have been possible for the victim to inflict them on herself .

However , in the present case the scope of the accusations only included injuries recorded on the forehead of the victim . [ The applicant 's ] injuries on the occipital region of her head and an injury on the chest were not included in the accusations against PERSON . Taking this fact into account , the prosecution and the court can not overstep the bounds of the indictment and can not examine at the court hearing any additional questions which could lead to further charges .

The court also finds that those injuries can not be taken into consideration when deciding on the question whether the applicant could have caused those injuries to herself . The prosecution thus did not rebut PERSON 's argument that [ the applicant ] could have herself caused the injury to the left side of the head which led to the concussion . ”

On DATE the applicant lodged an action against the GPE Town police department and ORG , claiming compensation for non - pecuniary damage caused by the unlawful actions of PERSON .

On DATE ORG , GPE , relying on the judgment of CARDINAL DATE of the same court , dismissed the applicant 's action . ORG held that PERSON 's guilt in having caused the injuries had not been proven . Referring to LAW , ORG noted “ the character ” of the applicant 's injuries and the fact that neither the applicant nor PERSON . had explained “ the mechanism of the appearance of injuries ” and it held that “ the injuries could have been caused accidentally when lawful sanctions were being applied to the plaintiff ” . ORG considered that the actions resulting in those injuries could not amount to “ torture ” .

On DATE ORG upheld the judgment of DATE , relying on the findings of ORG made during the trial against PERSON .

The Code of Criminal Procedure of GPE ( in force since DATE , “ the CCrP ” ) establishes that a criminal investigation can be initiated by an investigator or a prosecutor on a complaint by an individual or on the investigative authorities ' own initiative , where there are reasons to believe that a crime has been committed ( Articles CARDINAL and CARDINAL ) . A prosecutor is responsible for overall supervision of the investigation ( Article CARDINAL ) . He / she can order specific investigative actions , transfer the case from CARDINAL investigator to another or order an additional investigation . If there are no grounds to initiate a criminal investigation , the prosecutor or investigator issues a reasoned decision to that effect , which has to be notified to the interested party . The decision is amenable to appeal to a higher - ranking prosecutor or to a court of general jurisdiction within a procedure established by LAW Article CARDINAL ) . Article CARDINAL of the ORG provides for judicial review of decisions by investigators and prosecutors that might infringe the constitutional rights of participants in proceedings or prevent access to a court .

Police officers are only entitled to use physical force , special means and firearms in the cases and within the procedure established by LAW ; staff members of police facilities designated for temporary detention of suspects and accused persons may only use such force and special means in cases and within the procedure established by LAW ( section CARDINAL ) .

Section CARDINAL of LAW provides that a police officer resorting to physical force , special means or a firearm , should warn an individual that force / special means / firearms are to be used against him . In cases when a delay in the use of force , special means or firearms may endanger the life and health of civilians or police officers or cause other serious damage , such a warning is not necessary . Police officers should ensure that damage caused by the use of force / special means / firearms is minimal and corresponds to the character and extent of the danger posed by unlawful conduct and the perpetrator , and the resistance offered by the perpetrator . Police officers should also ensure that individuals who have been injured as a result of the use of force / special means / firearms receive medical assistance .

Under LAW of LAW police officers may use physical force , including combat methods , to prevent criminal and administrative offences , to arrest individuals who have committed such offences , to overcome resistance to lawful orders , or if non - violent methods do not ensure compliance with responsibilities entrusted to the police .

Sections DATE and CARDINAL of LAW lay down an exhaustive list of cases when special means , including handcuffs , and firearms may be used . In particular , handcuffs may only be used to overcome resistance offered to a police officer , to arrest an individual caught when he is committing a criminal offence against life , health or property and if he is attempting to escape , and to bring arrestees to police stations , to transport and protect them if their behaviour allows the conclusion that they are liable to escape , cause damage to themselves or other individuals or offer resistance to police officers .


The applicant is a NORP national , born in DATE and living in GPE , GPE .

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

On DATE ORG made a decision that the applicant was due to pay residual taxes since he had not announced certain income in the amount of FIM CARDINAL,CARDINAL in his tax returns . The applicant was also obliged to pay a PERCENT tax increase on the amount . The decision was based on a tax audit in a company called AT . This company had paid ORG CARDINAL to the limited company ORG , which was owned by the limited partnership company ORG . The applicant was the only active partner of ORG , which owned PERCENT of the shares of F.

On DATE the applicant appealed to ORG ( lääninoikeus , länsrätten ) of PERSON , complaining that the decision was wrong and that he had not been informed of the legal provisions on which the decision was based . The appeal was referred to the local tax rectification board ( verotuksen oikaisulautakunta , prövningsnämnden i beskattningsärenden ) which , on DATE , rejected the appeal .

On DATE the applicant again appealed to ORG . On DATE the court lowered the tax increase from PERCENT and upheld the remainder of the decision . The court stated that the payment of the amount of FIM CARDINAL,CARDINAL was considered to be the applicant ’s personal income since he had received payment for his actions related to a sales contract concerning an airplane . The payment was considered to be the applicant ’s personal income , even though he had waived his right to the amount in favour of company F. Further the court noted that , as the applicant had not announced that amount in his tax returns , the tax office had a right to order the payment of a residual tax and impose a tax increase . Finally , the court rejected , for lack of a legal basis , the applicant ’s request that the taxes already paid by companies AT and F on the same ground be counted for his benefit .

On DATE ORG ( korkein hallinto - oikeus , högsta förvaltningsdomstolen ) refused the applicant ’s request for leave to appeal .

On DATE ORG collected from the applicant ORG CARDINAL,CARDINAL as residual taxes , FIM CARDINAL,CARDINAL as a payment of back taxes , additional taxes amounting to ORG CARDINAL,CARDINAL , default interest of ORG CARDINAL,CARDINAL and FIM CARDINAL as execution fee , altogether ORG CARDINAL ( € MONEY ) . After the decision of ORG the applicant was refunded ORG CARDINAL,CARDINAL .