Violation of Art. 2 (deaths);Violation of Art. 2 (failure to conduct an effective investigation);No separate issue under Art. 13;No violation of Art. 14+2 (alleged act of racial violence);Violation of Art. 14+2 (failure to investigate possible racist motives);Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The case concerns the killing on DATE of PERSON and PERSON PERSON by a member of the military police who was attempting to arrest them .

All the applicants are NORP nationals of GPE origin .

Ms Anelia PERSON , who was born in DATE , is Mr PERSON 's daughter . PERSON , who was born in DATE , is PERSON mother . Both live in GPE , GPE . PERSON and Mr PERSON , who were born in DATE and DATE respectively and live in GPE , GPE , are PERSON parents .

In DATE PERSON and PERSON , who were both DATE , were conscripts in ORG ( Строителни войски ) , a division of the army dealing with the construction of apartment blocks and other civilian projects .

Early in DATE PERSON and PERSON were arrested for being repeatedly absent without leave . On DATE Mr PERSON was sentenced to DATE imprisonment and PERSON to DATE imprisonment . Both had previous convictions for theft .

On DATE they fled from a construction site outside the prison where they had been brought to work and travelled to the home of Mr PERSON 's grandmother , PERSON , in the village of PERSON . Neither man was armed .

Their absence was reported DATE and their names put on the military police 's wanted list . A warrant for their arrest was received on DATE by ORG .

At TIME on DATE , the officer on duty in ORG received an anonymous telephone message that PERSON and PERSON were hiding in the village of PERSON . On CARDINAL of the previous occasions when he had been absent without leave , it was there that Mr PERSON had been found and arrested .

The commanding officer , Colonel NORP , decided to dispatch CARDINAL military police officers , under the command of Major PERSON , to locate and arrest the CARDINAL men . CARDINAL of the officers knew CARDINAL or both of them . Major PERSON apparently knew PERSON because , according to a secretary who worked at the town hall and was heard later as a witness , his mother was from the village .

Colonel NORP told the officers that “ in accordance with the rules ” they should carry their handguns and automatic rifles and wear bullet - proof vests . He informed them that Mr PERSON and PERSON were “ criminally active ” ( криминално проявени ) DATE an expression used to denote persons with previous convictions or persons suspected of an offence – and that they had escaped from detention . The officers were instructed to use whatever means were dictated by the circumstances to arrest them .

NORP The officers immediately left for PERSON in a jeep . CARDINAL officers wore uniforms while the others were in civilian clothes . Only Major PERSON wore a bullet - proof vest . He was armed with a personal handgun and a CARDINAL PERSON calibre PERSON automatic rifle . The other men carried handguns . CARDINAL PERSON automatic rifles remained in the boot of the vehicle throughout the operation .

NORP The officers were briefed orally by Major PERSON on their way to PERSON . PERSON was to cover the east side of the house , Major PERSON the west side and PERSON was to go into the house . PERSON , the driver , was to remain with the vehicle and keep watch over the north side .

At TIME the officers arrived in PERSON . They asked a secretary at the town hall and one of the villagers , Mr PERSON , to join them and show them Mr PERSON 's grandmother 's house . The vehicle drove into PERSON 's GPE district .

Sergeant N. recognised the house since he had previously arrested PERSON there for being absent without leave .

As soon as the jeep drew up in front of the house , CARDINAL and TIME , PERSON recognised PERSON , who was inside , behind the window . Having noticed the vehicle , the fugitives tried to escape . The officers heard the sound of a window pane being broken . Major PERSON and PERSON and ORG jumped out of the vehicle while it was still moving . Major PERSON and PERSON went through the garden gate , the former going to the west side of the house , and the latter entering the house . PERSON headed towards the east side of the house . PERSON remained with the car , together with the secretary who worked at the town hall and Mr PERSON

Sergeant N. later testified that , having noticed Mr PERSON and PERSON PERSON escaping through the window and running towards a neighbour 's yard , he had shouted : “ Stop , military police ! ” He had pulled out his gun , but had not fired any shots . The CARDINAL men had carried on running . PERSON had run out on to the street in an effort to intercept them by cutting past several houses . While running , he had heard Major PERSON shout : “ Freeze , military police , freeze [ or ] I 'll shoot ! ” It was then that the shooting had started .

Major PERSON stated in his testimony :

“ ... I heard Sergeant N. shouting : ' Freeze , police ' ... I saw the conscripts ; they were running and then stopped in front of the fence LOC and the neighbour 's yards ... I saw that they were trying to jump over the [ chain - link ] fence , so I shouted : ' Freeze , or I 'll shoot ! ' I released the safety catch and loaded the automatic gun . Then I fired a shot in the air , holding the automatic rifle upwards with my right hand , almost perpendicular to the ground ... The conscripts climbed over the [ chain - link ] fence and continued to run , I followed them , then I fired one , CARDINAL or CARDINAL more times in the air and shouted : ' Freeze ! ' , but they continued running . I again fired shots in the air with the automatic and shouted : ' Freeze , or I will shoot with live cartridges . ' I warned them again , but they continued running without turning back . I fired to the right [ of the QUANTITY men ] with the automatic after the warning , aiming at the ground , hoping that this would make them stop running . I again shouted ' Freeze ! ' when they were at the corner of the other house and then I aimed and fired at them as they were scaling the fence . I aimed at their feet . The ground where I stood was at a lower level ... [ B]y jumping over the second fence they would have escaped and I did not have any other means of stopping them . The gradient there was a bit steep , [ I ] was standing on lower ground ... the second fence was on the highest ground , that is why when I fired the first time I aimed to the side [ of the CARDINAL men ] , as I considered that nobody from the neighbouring houses would be hurt , and the second time I aimed at the conscripts , but fired at their feet . Under LAW we can use firearms to arrest members of the military forces who have committed a publicly prosecutable offence and do not surrender after a warning , but in accordance with paragraph CARDINAL of [ that regulation ] we have to protect the lives of the persons against whom [ we use firearms ] – for that reason I fired at [ the victims ' ] feet – with the intention of avoiding fatal injury . The last time that I shot at the conscripts ' feet , I was QUANTITY away from them and they were exactly at the south - east corner of the neighbouring yard . After the shooting they both fell down ... They were both lying on their stomachs , and both gave signs of life , ... moaning ... then Sergeant S. appeared , I called him ... and handed him my automatic rifle ... ”

According to the statements of the CARDINAL subordinate officers , Mr PERSON and PERSON were lying on the ground in front of the fence , with their legs pointing in the direction of the house from which they had come . CARDINAL of them was lying on his back and the other on his stomach .

A neighbour , PERSON , who lived opposite PERSON grandmother , also gave evidence . At CARDINAL or TIME he had seen a military jeep pull up in front of PERSON house . Then he had heard somebody shout : “ Do n't run , I am using live cartridges . ” He had then heard shots . He had looked into the next yard and seen PERSON , whom he knew , and another man leap over the chain - link fence between PERSON and another neighbour 's yards . He had not seen the man who had shouted as he was hidden from view behind PERSON house . Then he had seen Mr PERSON and Mr PERSON fall to the ground and the man who had shot them emerge , holding an automatic rifle . Mr PERSON further stated :

“ The other men in uniform then started remonstrating with [ the man who had shot PERSON and PERSON ] telling him that he should not have fired , that he should not have come with them . Of those who came in the jeep , only the senior officer fired ... I know him by sight , he has relatives in PERSON . ”

Sergeant S. stated that on arriving at the house he had remained with the vehicle and had heard Sergeant N. shouting from the east side of the house : “ Freeze , police ! ” He had also heard Major PERSON shout “ Freeze , police ! ” several times from the west side of the house . Then Major PERSON had started shooting with his automatic weapon , while continuing to shout . PERSON had then entered the yard . He had seen Major PERSON leap over the chain - link fence and heard him shouting . He had gone up to him , had taken his automatic rifle and seen Mr PERSON and Mr PERSON lying on the ground next to the fence . They were still alive . At that moment PERSON had come out of the house . Major PERSON had gone to get the jeep and had reported the incident over the vehicle radio . When they returned , PERSON had appeared from the neighbouring street and helped them put the wounded men in the vehicle .

The head of ORG and other officers were informed of the incident at TIME

Sergeant K. testified that he had entered the house and had been speaking to PERSON grandmother and another woman when he heard Major PERSON shouting at Mr PERSON and PERSON to stop . In the house , he had noticed that a window pane in the room overlooking the yard had been broken . He had been on the verge of leaving the house when he heard shooting coming from behind the house . On his way to the yard he had met PERSON , who had told him that the fugitives had been wounded . Sergeant ORG had then climbed over the chain - link fence and approached the wounded men , who were still alive and moaning . He had found himself holding the automatic rifle , but could not remember how it had come into his possession . He had opened the magazine and seen no cartridges in it . There was CARDINAL cartridge left in the barrel .

Immediately after the shooting , a number of people from the vicinity gathered . PERSON and PERSON took the wounded men to ORG , while Major PERSON and PERSON remained at the scene .

Mr Angelov and PERSON died on the way to Vratsa . They were pronounced dead on arrival at the hospital .

Mr PERSON 's grandmother , PERSON , gave the following account of the events . Her grandson and PERSON had been in her house when they had noticed a jeep approaching . She had gone outside and seen CARDINAL men in uniform . They had all entered the yard . CARDINAL of them had gone round the house and started shooting with an automatic rifle for a very long time . The other CARDINAL men were also armed but had not fired any shots . She had been in the yard , pleading with the man who had been shooting to stop . However , he had walked towards the back of the house . Then she had heard shooting in the backyard . She had followed and then seen her grandson and PERSON lying in the neighbours ' yard with bullet wounds .

According to another neighbour , Mr GPE , all CARDINAL policemen were shooting . CARDINAL of them had fired shots in the air and the third officer – who had been on the west side of the house ( Major PERSON ) DATE had been aiming at someone . Mr PERSON had heard CARDINAL shots , perhaps more . Then he had seen the military policemen go to the neighbouring yard , where PERSON and PERSON had fallen . That yard belonged to PERSON and his daughter . On seeing his grandson – a young boy – standing there , PERSON PERSON had asked Major PERSON for permission to approach and to take him away . Major PERSON had pointed his gun at him in a brutal manner and had insulted him , saying : “ You damn NORP ! ” ( “ мамка ви циганска ” ) .

On DATE all the officers involved made separate reports on the incident to ORG . None of them was tested for alcohol .

A criminal investigation into the deaths was opened DATE , and CARDINAL TIME a military investigator inspected the scene . In his report he described the scene , including the respective positions of PERSON house , the first chain - link fence , and the spent cartridges and bloodstains found there . He indicated that the structure of the first chain - link fence was damaged and the fence had been torn down in CARDINAL place .

A sketch map was appended to the report . It showed the yard of Ms PERSON 's house and the neighbouring yard where PERSON and PERSON PERSON had fallen . The places where spent cartridges had been found were indicated . The sketch map and the report gave only some of the measurements of the yards . The gradient and other characteristics of the terrain and the surrounding area were not described .

Nine spent cartridges were retrieved . CARDINAL cartridge was found in the street , in front of PERSON house ( apparently not far from where the jeep had stopped ) . CARDINAL cartridges were discovered in PERSON yard , behind the house , close to the first chain - link fence separating her yard from the neighbour 's yard . CARDINAL cartridges were found in the yard of the neighbour ( Mr M.M ) , close to the place where the bloodstains were found . The exact distance between those cartridges and the bloodstains was not given . A ninth cartridge was found subsequently and handed in to the military police by PERSON uncle . There is no record of where it was found .

NORP The bloodstains were a metre apart . They were marked on the sketch map as being slightly QUANTITY from the first chain - link fence . The distance between the bloodstains and the second fence that Mr PERSON and PERSON had apparently been trying to scale when they were shot was not indicated . Samples of the bloodstains were taken by the investigator .

On DATE , a pathologist carried out an autopsy .

According to autopsy report no . CARDINAL/CARDINAL , the cause of PERSON death was “ a wound to the chest ” , the direction of the shot having been “ from front to back ” . The wound was described as follows :

“ There is an oval - shaped wound of QUANTITY by QUANTITY in the chest , at a distance of QUANTITY from the feet , with missing tissues , and jagged and compressed edges in the area of the left shoulder . There is an oval - shaped wound of QUANTITY in the back , to the left of the infrascapular line at a distance of QUANTITY from the feet with missing tissues , jagged and torn edges turned outwards . ”

As regards PERSON , the report found that the cause of death had been “ a gunshot wound , which [ had ] damaged a major blood vessel ” and that the direction of the shot had been “ from back to front ” . It was further stated :

“ There is a round wound on the left of the buttocks at a distance of QUANTITY from the feet ... with missing tissue , jagged walls and edges , and a diameter of QUANTITY ... There is an oval wound of QUANTITY with jagged torn edges and walls turned outwards and missing tissues on the border between the lower and middle third [ of the abdomen ] , at a distance of QUANTITY from the feet , slightly to the left of the navel . ”

The report concluded that the injuries had been caused by an automatic rifle fired from a distance .

On DATE , DATE and DATE the CARDINAL military police officers , CARDINAL neighbours ( FAC and PERSON ) , the secretary who worked at the town hall , and PERSON uncle were questioned by the investigator . PERSON mother was also questioned subsequently .

On DATE Major PERSON 's automatic rifle , a cartridge that had been found in it and the CARDINAL spent cartridges found at the scene were examined by a ballistics expert from ORG . According to his report , the automatic rifle was serviceable , all CARDINAL retrieved cartridges had been fired from it and the last cartridge which had not been fired was also serviceable .

A report by a forensic expert dated CARDINAL DATE found an alcohol content of CARDINAL g / l in Mr PERSON 's blood and QUANTITY in Mr PERSON 's blood ( under NORP law it is an administrative offence to drive with a blood alcohol content of CARDINAL g / l ) .

On DATE a forensic examination of the bloodstains found at the scene was carried out by an expert from ORG and they were found to match the victims ' blood groups .

On DATE and on DATE another neighbour ( Mr PERSON ) and PERSON ( CARDINAL of the applicants ) were questioned . On DATE Mr PERSON 's grandmother and a neighbour , PERSON , were questioned .

DATE . On DATE the families of PERSON and PERSON were given access to the investigation file . They requested that CARDINAL more witnesses , PERSON , PERSON and PERSON be heard . Their request was granted . The witnesses were heard by the investigator on DATE and DATE . The applicants did not ask for any other evidence to be obtained .

On DATE the investigator completed the preliminary investigation and drew up a final report . He noted that PERSON and PERSON PERSON had escaped from detention while serving a prison sentence , and had thus committed an offence . Major PERSON had done everything within his power to save their lives : he had instructed them to stop and surrender and had fired warning shots . He had aimed at them only after seeing that they were continuing to run away and might escape . He had not sought to injure any vital organs . The investigator therefore concluded that Major PERSON had acted in accordance with LAW of ORG and made a recommendation to the ORG regional prosecutor 's office that the investigation should be closed as Major PERSON had not committed an offence .

On DATE the ORG military prosecutor accepted the investigator 's recommendation and closed the preliminary investigation into the deaths . He concluded that Major PERSON had proceeded in accordance with LAW of ORG . He had warned the CARDINAL men several times and fired shots in the air . He had shot them only because they had not surrendered , as there had been a danger that they might escape . He had sought to avoid inflicting fatal injuries . No one else had been hurt .

When describing the victims ' personal circumstances , including details of their family , education and previous convictions , the prosecutor stated in the order that both men originated from “ minority families ” , an expression mainly used to designate people from the GPE minority .

By an order of DATE , the prosecutor of the armed forces prosecutor 's office dismissed the applicants ' subsequent appeal on the grounds that PERSON and PERSON had provoked the shooting by trying to escape and that Major PERSON had taken the steps required by law in such situations . Therefore , the use of arms had been lawful under LAW of ORG .

On DATE the prosecutor from the investigation review department of the armed forces prosecutor 's office dismissed a further appeal on grounds similar to those that had been relied on by the other public prosecutors .

In its country reports of DATE , ORG against Racism and Intolerance ( ECRI ) has expressed concern regarding racially motivated police violence , particularly against GPE , in a number of NORP countries including GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE .

NORP The report on the situation of fundamental rights in ORG and its member GPE in DATE , prepared by ORG network of independent experts in fundamental rights at the request of ORG , stated , inter alia , that police abuse against GPE and similar groups , including physical abuse and excessive use of force , had been reported in a number of ORG member GPE , such as GPE , GPE , GPE , GPE , GPE and GPE .

In its second report on GPE , published in DATE , ORG stated , inter alia :

“ Of particular concern is the incidence of police discrimination and mistreatment of members of the Roma / Gypsy community . ... [ T]he ORG documents in its DATE Report for DATE numerous ... cases of police misconduct towards ... GPE ... It cites as the most common violations : use of excessive physical force during detention for the purposes of extorting evidence ; unjustified use of firearms ... and threats to the personal security of individuals who had complained against the police to the competent authorities . ... ORG notes ... that the majority of complaints filed by this non - governmental organisation on behalf of GPE victims of police violence have not been followed up by the authorities . ... [ V]ictims seem unwilling to come forward with complaints , particularly when they are awaiting court sentences ... [ There is apparently also ] some unwillingness on the part of the authorities to admit that problems of police misconduct do exist . ...

ECRI [ reiterates its recommendation ] that an independent body be set up – acting at central and local level – to investigate police , investigative and penitentiary practices for overt and covert racial discrimination and to ensure that any discrimination perpetrated be severely punished . ...

ORG is concerned at the persistence of widespread discrimination against members of the ORG community in GPE . ... It is reported that local authorities are sometimes involved in the illegal administration of justice as regards ORG communities , often with the silent collusion of local police . ”

In its third report on GPE , published in DATE , ORG stated , inter alia :

“ [ Since ORG 's second report , ] there have been no changes in LAW [ to ensure that criminal law provisions fully allow any racist motivation to be taken into account ] . ... PERSON recommends that the NORP authorities insert a provision in LAW expressly stating that racist motivation for any ordinary offence LAW an aggravating circumstance . ...

ORG is concerned about allegations of instances of excessive use of firearms by the police , which have sometimes led to the death of GPE . ... ORG strongly recommends that the NORP authorities take steps to restrict the use of firearms by the law enforcement agencies to cases where their use is really necessary . In particular , it urges the NORP authorities to amend the law to this end and ensure that international standards are conformed to in practice in this field .

ORG is particularly concerned about the findings ... that the proportion of people of GPE origin who state that they have been subjected to physical violence in police stations is CARDINAL times higher than the proportion of people of NORP origin . ... So far , the NORP authorities have not set up an independent body to investigate illtreatment or acts of discrimination committed by members of the police force . ...

ORG is pleased to learn that a specialised human rights committee was set up in ORG in DATE ... Numerous schemes have been launched to provide human rights training for police officers ...

ORG is unanimously considered , including by GPE representatives , to be well structured and fairly comprehensive ... There is , however , a unanimous feeling within the GPE community and among non - governmental organisations , that , apart from the few initiatives mentioned in this report , the programme has remained a dead letter ... The view in DATE is that the government lacks the political resolve to carry through such a programme ... ORG is very concerned to learn that , DATE after the adoption of ORG , its implementation is still in its early stages . ... ”

ORG - governmental organisations , such as ORG and ORG have reported in DATE numerous incidents of alleged racial violence against GPE in GPE , including by law enforcement agents .

Section CARDINAL of LAW ) , as in force at the relevant time , provided as follows :

“ ( CARDINAL ) Military police officers may use firearms ... under the following circumstances :

NORP to arrest a person serving in the army who has committed or is about to commit a publicly prosecutable offence and who does not surrender after being warned ...

( CARDINAL ) The use of force shall be preceded by an oral warning and a shot fired in the air ...

( CARDINAL ) When using firearms military police officers shall be under a duty , as far as possible , to protect the life of the person against whom they use force and to assist the wounded ...

( CARDINAL ) Whenever firearms have been used , a report shall be prepared describing the circumstances which occasioned their use ; [ the report ] shall be transmitted to the superiors of the officer concerned . ”

In DATE Regulation CARDINAL was superseded by Decree no . CARDINAL of DATE on the use of force and firearms by military police ( published in ORG no . CARDINAL and amended in DATE ) . According to LAW , firearms may be used , inter alia , for the arrest of any person who has committed an offence of the category of publicly prosecuted offences . The vast majority of offences under LAW fall within that category , including , for example , petty theft . According to ORG , CARDINAL § CARDINAL and CARDINAL of the decree , the nature of the offence committed by the person against whom the force and firearms are used and the character of the offender are factors to be taken into consideration .

Article CARDINAL of the Criminal Code regulates the degree of force that may be used in self - defence . It requires essentially that any action in selfdefence or defence of another be proportionate to the nature and intensity of the attack and reasonable in the circumstances . The provision does not regulate cases where force has been used by a police officer or another person in order to effect an arrest without there being an attack on the arresting officer or any third party . Until DATE there were no other provisions regulating this issue . However , the courts appear to have applied LAW in certain cases concerning the use of force to effect an arrest .

To fill that vacuum , in its ORG no . CARDINAL issued in DATE , ORG proclaimed , without further clarification , that causing harm in order to effect an arrest should not lead to prosecution if no more force was used than was necessary ( DATE ) .

In its Decision no . CARDINAL of DATE , ORG , while noting that the use of force in order to effect an arrest was not regulated by law and thus engendered difficulties for the courts , considered that the principles to be applied were those that had been identified by legal commentators . In particular , inflicting harm would be justified only where there was a reasonable suspicion that the person to be arrested had committed an offence , there were no other means to effect the arrest and the harm caused was proportionate to the seriousness of the offence . ORG also stated :

“ ... [ Causing harm to an offender in order to effect an arrest ] is an act of last resort . If the offender does not attempt to escape or ... does attempt to escape , but to a known hiding place , causing harm will not be justified ...

The harm caused must be proportionate to the seriousness ... of the offence . If the offender has committed an offence representing insignificant danger to the public , his life and health can not be put at risk . Putting his life or health at risk may be justified , however , where a person is in hiding after committing a serious offence ( such as murder , rape or robbery ) .

The means used to effect the arrest ( and the harm caused ) must be reasonable in the circumstances . This is the most important condition for lawfulness ...

Where the harm caused exceeds what was necessary ... , that is to say , where it does not correspond to the seriousness of the offence and the circumstances obtaining during the arrest , ... the person inflicting it will be liable to prosecution ... ”

In DATE ORG decided to fill the legislative vacuum by adding a new LAW to LAW . It provides that causing harm to a person while arresting him or her for an offence shall not be punishable where no other means of effecting the arrest existed and the force used was necessary and lawful . The force used will not be considered “ necessary ” where it is manifestly disproportionate to the nature of the offence committed by the person to be arrested or is in itself excessive and unnecessary . Few judgments interpreting LAW have been reported .

Article CARDINAL provides that proceedings concerning publicly prosecutable offences may only be initiated by a prosecutor or an investigator acting on a complaint or ex officio . Under Article CARDINAL § CARDINAL , as worded until DATE , the victim had a right of appeal to a higher - ranking prosecutor against a decision not to proceed with pending criminal proceedings . The victim had no other means of challenging a refusal to prosecute .

When military courts have jurisdiction to hear a case , as for example when it concerns military police officers , the responsibility for conducting the investigation and prosecution lies with the military investigators and prosecutors , whose decisions are open to appeal before ORG .

DATE . Article CARDINAL entitles victims of crime to join the criminal proceedings , and in that connection to claim damages , to inspect the case file and take copies of relevant documents . They may also adduce evidence , raise objections , make applications and appeal against decisions of the investigating and prosecuting authorities .

The Protection against Discrimination Act was passed in DATE and came into force on DATE . It is a comprehensive piece of legislation designed to create machinery to provide effective protection against unlawful discrimination . It applies mainly in the spheres of labour relations , ORG administration and the provision of services .

Section CARDINAL provides for a shifting burden of proof in discrimination cases . Under that section , where the claimant has proved facts from which an inference that there has been discriminatory treatment might be drawn , it is incumbent on the defendant to prove that there has been no violation of the right to equal treatment . The LAW also provides for the creation of ORG with jurisdiction , inter alia , to hear individual complaints .

The United Nations Basic Principles on ORG were adopted on DATE by ORG on ORG and the Treatment of Offenders .

Paragraph CARDINAL provides :

“ Law enforcement officials shall not use firearms against persons except in self - defence or defence of others against the imminent threat of death or serious injury , to prevent the perpetration of a particularly serious crime involving grave threat to life , to arrest a person presenting such a danger and resisting their authority , or to prevent his or her escape , and only when less extreme means are insufficient to achieve these objectives . In any event , intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life . ”

According to other provisions of the Principles , law enforcement officials shall “ act in proportion to the seriousness of the offence and the legitimate objective to be achieved ” ( paragraph CARDINAL ) . Also , “ Governments shall ensure that arbitrary or abusive use of force and firearms by law enforcement officials is punished as a criminal offence under their law ” ( paragraph CARDINAL ) . National rules and regulations on the use of firearms should “ ensure that firearms are used only in appropriate circumstances and in a manner likely to decrease the risk of unnecessary harm ” .

Paragraph CARDINAL of the Principles states that victims or their family should have access to an independent process , “ including a judicial process ” . Further , paragraph CARDINAL provides :

“ Governments and law enforcement agencies shall ensure that superior officers are held responsible if they know , or should have known , that law enforcement officials under their command are resorting , or have resorted , to the unlawful use of force and firearms , and they did not take all measures in their power to prevent , suppress or report such use . ”

ORG on ORG , Arbitrary and Summary Executions , adopted on DATE by ORG in Resolution CARDINAL/CARDINAL , provide , inter alia , that there shall be a thorough , prompt and impartial investigation of all suspected cases of extra - legal , arbitrary and summary executions and that the investigation should aim at , inter alia , determining “ any pattern or practice which may have brought about ” the death .

Paragraph CARDINAL states :

“ In cases in which the established investigative procedures are inadequate because of a lack of expertise or impartiality , because of the importance of the matter or because of the apparent existence of a pattern of abuse , and in cases where there are complaints from the family of the victim about these inadequacies or other substantial reasons , Governments shall pursue investigations through an independent commission of inquiry or similar procedure . Members of such a commission shall be chosen for their recognised impartiality , competence and independence as individuals . In particular , they shall be independent of any institution , agency or person that may be the subject of the inquiry . The commission shall have the authority to obtain all information necessary to the inquiry and shall conduct the inquiry as provided in these Principles . ”

Paragraph CARDINAL states :

“ A written report shall be made within a reasonable time on the methods and findings of such investigations . The report shall be made public immediately and shall include the scope of the inquiry , procedures , methods used to evaluate evidence as well as conclusions and recommendations based on findings of fact and on applicable law ... ”

DATE . The relevant parts of LAW of all forms of ORG , ratified by GPE in DATE , in force since DATE and published in ORG in DATE , provide :

“ GPE Parties ... undertake to adopt immediate and positive measures designed to eradicate all incitement to , or acts of , [ racial ] discrimination and , to this end ...

( a ) Shall declare an offence punishable by law ... all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin ... ”

In its views of DATE in Communication no . CARDINAL , PERSON the GPE , which concerned racist threats uttered by private individuals against Mr PERSON and the inadequate reaction by the authorities to the victim 's complaint , ORG stated , inter alia , that it was incumbent on the ORG to investigate with due diligence and expedition cases of incitement to racist discrimination and violence .

The relevant part of LAW , in force in GPE since DATE , provides :

“ The Parties undertake to take appropriate measures to protect persons who may be subject to threats or acts of discrimination , hostility or violence as a result of their ethnic , cultural , linguistic or religious identity . ”

In its decision of DATE , ORG ( “ the CAT ” ) , examining Complaint no . CARDINAL/CARDINAL submitted by PERSON and others against GPE , found that a mob action by non - GPE residents of GPE , GPE , who destroyed a GPE settlement on DATE in the presence of police officers , was “ committed with a significant level of racial motivation ” . That fact aggravated the violation of LAW of LAW and Other Cruel , Inhuman or Degrading Treatment or Punishment found in the case . In assessing the evidence , the ORG noted that it had not received a written explanation from ORG concerned and decided to rely on “ the detailed submissions made by the complainants ” .

ORG Directive CARDINAL/CARDINAL/EC of DATE implementing the principle of equal treatment between persons irrespective of racial or ethnic origin and ORG DATE establishing a general framework for equal treatment in employment and occupation , provide , in LAW respectively :

“ CARDINAL . Member GPE shall take such measures as are necessary , in accordance with their national judicial systems , to ensure that , when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish , before a court or other competent authority , facts from which it may be presumed that there has been direct or indirect discrimination , it shall be for the respondent to prove that there has been no breach of the principle of equal treatment .

Paragraph CARDINAL shall not prevent Member GPE from introducing rules of evidence which are more favourable to plaintiffs .

Paragraph CARDINAL shall not apply to criminal procedures .

Member GPE need not apply paragraph CARDINAL to proceedings in which it is for the court or competent body to investigate the facts of the case . ”

In DATE ORG published a Proposal for a Council Framework Decision on Combating Racism and Xenophobia , Article CARDINAL of which includes , among measures to be implemented by member GPE in that area , action to ensure that in criminal law racial motivation is taken into consideration as an aggravating circumstance .

In DATE ORG on Racism and Xenophobia published a comparative overview of racist violence and responses to it in CARDINAL of the member GPE of ORG . It noted , inter alia , that traditionally the criminal law in most of the jurisdictions surveyed did not specifically refer to “ racist violence ” , the focus not being on the motivation behind acts of violence . However , that tradition was slowly changing as laws began to recognise that crime could be “ racially motivated ” . In particular , racist motivation was increasingly being considered as an aggravating factor for sentencing purposes under the legislation of some member GPE . The relevant legislation in the following countries specifically provided for that possibility : GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE . In particular , LAW of LAW , which was introduced in DATE , provides in its second paragraph for an “ objective ” definition of racism as an aggravating circumstance leading to an increase in sentence :

“ The penalties incurred for a crime or major offence shall be increased where the offence is committed on account of the victim 's actual or supposed membership or non - membership of a particular ethnic group , nation , race or religion .

The aggravating circumstance defined in the first paragraph is constituted where the offence is preceded , accompanied or followed by written or spoken comments , images , objects or acts of any kind which damage the honour or consideration of the victim or of a group of persons to which the victim belongs on account of their actual or supposed membership or non - membership of a particular ethnic group , nation , race or religion . ”


The first applicant is a NORP national , born in DATE and living in GPE . He is a lawyer by profession . He also brings the application on behalf of his daughter , born in wedlock in DATE .

A.

In DATE the applicant and his wife PERSON separated . The ensuing divorce proceedings before the GPE am ORG ( ORG ) , sitting in family matters ( PERSON ) , concerned inter alia the question of custody over the spouses’ children PERSON and PERSON , born in wedlock in DATE , and involved the taking of psychological expert evidence . ORG was granted on DATE . Moreover , upon the spouses’ common proposal , custody of the daughter PERSON was awarded to the applicant , and custody of PERSON was awarded to PERSON

Subsequently , PERSON remarried . The applicant married again in DATE and his son PERSON was born in DATE .

In DATE PERSON applied to ORG to be awarded custody of PERSON . She submitted that PERSON did no longer wish to live with the applicant . The applicant contested these submissions . It appears that he also requested that he be awarded custody of PERSON ; these proceedings were conducted separately .

On DATE ORG , having twice heard PERSON , issued an interim injunction provisionally transferring the right to determine PERSON ’s place of residence ( GPE ) to PERSON has been living with PERSON since . On DATE the applicant withdrew his appeal following a hearing before ORG ( Oberlandesgericht ) which had also questioned the child .

On DATE the ORG amended the decision of DATE and awarded the custody of PERSON to PERSON

ORG , referring to section CARDINAL of LAW ( Bürgerliches Gesetzbuch ) and the case - law of ORG ( ORG ) , observed that decisions on custody should only be changed , if there were valid reasons seriously affecting the child . Having heard the parents and in particular PERSON , the court found that the child did no longer wish to live with the applicant , but with PERSON It considered that PERSON ’s wish had to be respected . She had unequivocally expressed her wish in court on DATE and DATE . As stated in the opinion submitted by the competent youth office , she had made the same statement when heard at the youth office . In the court ’s view , the argument that this wish had been influenced by third persons was not valid . In particular , she had decided to live with her mother although she could expect the difficulties of being involved in court proceedings . Her statements in court had appeared true and genuine , and she had upheld her position over a lengthy period during which she had regularly access to the applicant , including holidays .

On DATE ORG dismissed the applicant ’s appeal .

ORG , having heard the applicant and PERSON , PERSON and an employee of the competent youth office , found that the custody decision had to be changed in the interest of the child . In this respect , it noted that , upon divorce , custody of PERSON had been awarded to the applicant in accordance with the spouses’ common proposal . Following the preliminary injunction issued by ORG in DATE , after having heard PERSON twice , she had been living with PERSON In this period , PERSON had changed from primary to secondary school without problems . The competent youth offices had confirmed that both parents were capable of educating children . PERSON was meanwhile living together with her brother PERSON . Given the bonds between brother and sister , as confirmed at the hearing , it was also in PERSON ’s interest that they grew up together . Moreover , at least in the meantime , a closer relationship had developed between PERSON and PERSON repeated questioning had shown that she felt safer with her mother and had more personal care and definitively wished to live with PERSON There was no indication that PERSON ’s statements had been caused by PERSON and did not reflect PERSON ’s own wish . Although PERSON had not yet completed the age of CARDINAL and had no formal right of veto , the statement of her will had to be respected as act of self - determination . In these circumstances , ORG regarded as decisive that PERSON ’s future well - being and development would suffer , if her firm wish to live with PERSON was broken and she be forced to return to the applicant . Awarding custody to PERSON was , therefore , in the interest of PERSON ’s well - being .

Furthermore , as regards the applicant ’s subsidiary request for joint custody , ORG , referring to the case - law of ORG ( ORG ) , observed in particular that joint custody presupposed both GPE willingness to share the responsibility for the child after divorce . However , PERSON had refused joint custody , arguing that the applicant was not ready for cooperation and would impose his will . ORG considered that a parent refusing joint custody was in a position to exclude the other parent from custody . However , such a refusal was not necessarily abusive and therefore irrelevant . Rather , the child ’s interests were of paramount importance . In the absence of any willingness to cooperate in the child ’s education , joint custody could not be regarded as being in the interest of the child ’s well - being .

On DATE ORG refused to entertain the applicant ’s constitutional appeal .

B. Relevant domestic law and practice

Section CARDINAL § § CARDINAL and CARDINAL of LAW , as in force at the relevant time , provided that , in case of the GPE divorce , the competent court decided on which parent should have custody of a common child , and took the decision which was in the interest of child ’s well - being ; the child ’s bonds , especially to its brothers and sisters , were to be considered . A common proposal by the parents was only to be disregarded if necessary in the interest of the child .

In a decision of CARDINAL DATE , ORG declared unconstitutional paragraph CARDINAL , first sentence , of Section DATE , according to which custody had to be awarded to CARDINAL of the parents in case of divorce . ORG considered that a joint right to custody was possible in case of divorce if there is a common proposal by the parents to this effect , showing their willingness to share the responsibility for their child after their divorce .

According to section CARDINAL of LAW , as in force at the relevant time , the competent courts may change their decisions relating to custody matters at any time , if necessary in the interest of the child ( i m Interesse des Kindes ) .

The relevant legislation has been amended on the basis of the Government PERSON of DATE on the reform of the law on family matters . This reform of DATE , which has entered into force on DATE , harmonises the rules regarding children born in wedlock and children born out of wedlock . Section CARDINAL of LAW , as amended , provides that , in case of a definite separation of parents who jointly exercise custody , each parent can request for a sole exercise of custody . The competent court will grant the request if ( CARDINAL ) the other parent agrees , unless the child having completed the age of DATE disagrees , or if ( CARDINAL ) the termination of joint custody and award to the CARDINAL parent most likely serves best the child ’s well - being . According to section DATE , as amended , the competent courts shall change their decisions if there are valid reasons seriously affecting the child ( triftige , das Wohl des Kindes nachhaltig berührende LOC ) .


The applicant , born in DATE , is an NORP national residing in GPE . In the proceedings before the ORG he is represented by Mr. PERSON , a lawyer practising in GPE .

A.

On DATE officers of ORG ) searched the applicant ’s home on the suspicion that he owned and distributed pornographic material involving minors . They informed the applicant that the investigating judge had issued a search warrant orally . A written copy of the search warrant was not served on the applicant until DATE .

On DATE the applicant lodged a complaint with ORG ( Unabhängiger Verwaltungssenat ) . He submitted that it was not clear in the circumstances whether a search warrant had been issued as claimed by the police officers . Thus , the search of his LOC lacked a legal basis and violated his right to respect for his home .

On DATE ORG rejected the applicant ’s complaint as being inadmissible . It found that the police had acted upon an oral search warrant from the investigating judge and the search of the applicant ’s premises was , thus , attributable to the court . Consequently , the review of its lawfulness did not fall within the competence of ORG .

On DATE the applicant lodged a complaint with ORG ( Ratskammer ) of ORG ( PERSON für PERSON ) , claiming that the search of his LOC violated his right to respect for his home . He submitted in particular that no written copy of the search warrant had been served on him within the statutory TIME time - limit .

On DATE ORG of ORG dismissed the applicant ’s complaint as being unfounded . It noted that the court had conducted criminal proceedings against a number of persons on suspicion of sexual abuse of minors . In the course of these proceedings a letter was seized which proved that a certain PERSON dealt with pornographic material involving minors . Subsequently , since the applicant was identified as the person using the cover name PERSON , the investigating judge issued a search warrant for the applicant ’s LOC . At the time , a written copy of the search warrant was not issued and , thus , was not served on the applicant . ORG further noted that the search was carried out in the presence of the applicant who was first informed of the suspicion and was requested to hand over any pornographic material in his possession . As he refused to do so , the search was carried out and extensive pornographic material as well as business correspondence was seized .

Having regard to its above findings , ORG concluded that there was a reasonable suspicion , as required by S. CARDINAL of LAW ( Strafprozessordnung ) , that objects which were of importance for specific criminal proceedings were to be found on the applicant ’s LOC . Moreover , the search had , in accordance with CARDINAL of the said Code , been ordered by a judicial search warrant . The failure to serve a written copy of the search warrant on the applicant , though contrary to the law , did not affect the lawfulness of the search itself .

On DATE this decision was served on the applicant ’s counsel .

PERSON Relevant domestic law

DATE Protection of the Home Act ( Gesetz zum Schutz des Hausrechts DATE )

PERSON of the CARDINAL LAW provides that a search of LOC may , as a rule , only be carried out on the basis of a reasoned search warrant issued by a judge . The search warrant has to be served on the person concerned either immediately or within TIME .

Code of Criminal Procedure ( Strafprozessordnung )

S. CARDINAL § CARDINAL of LAW provides that a search of LOC may only be carried out if there is a reasonable suspicion that a person suspected of having committed a criminal offence is hiding in the LOC concerned , or that there are objects the possession or examination of which is relevant for a particular criminal investigation .

According to S. CARDINAL § CARDINAL a search may , as a rule , only be carried out after the person concerned has been questioned , and if the objects sought are not voluntarily handed over .

S. CARDINAL § CARDINAL states that a search may , as a rule , only be carried out on the basis of a reasoned search warrant issued by a judge . The search warrant has to be served on the person concerned either immediately or within TIME .


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

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

The applicant was the first president of GPE since it gained independence in DATE . He was elected by popular vote on DATE and remained in office until DATE . Thereafter , the applicant left GPE and settled in GPE .

At present , a criminal case is pending against the applicant before the NORP authorities . The government of GPE had asked the relevant NORP authorities to extradite the applicant to GPE , but this request was rejected . The applicant remains active in NORP politics and is a co - chairman of ORG of GPE .

Before the presidential elections of DATE , a number of the applicant ’s political supporters in GPE formed a “ voters initiative group ” that decided to nominate the applicant as a presidential candidate for the upcoming elections . To this effect , on DATE they filed an application with ORG ( the “ Commission ” ) . On DATE the Commission rejected this application for failure to comply with the election laws and refused to register the applicant as a presidential candidate . No further explanations were given in the ORG ’s formal decision .

Thereafter , the ORG initiative group filed a suit in ORG , requesting to quash the ORG ’s decision as unlawful . On DATE ORG rejected this request . Upon an appeal in cassation , on DATE ORG upheld ORG decision .


Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Free legal assistance);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

ORG A number of serious incidents between rival groups in GPE in the DATE culminated in a fire - raising attack on industrial premises , followed by a petrol - bomb attack on an apartment resulting in the death of CARDINAL members of the same family .

Mr PERSON , who is a NORP citizen born in DATE and resident in GPE , was interviewed by the police during their investigations ; on CARDINAL and CARDINAL DATE , in signed statements , he gave details of how the crimes had been committed and named the persons responsible , that is PERSON and CARDINAL others . This evidence was considered by the ORG to be important and was a major basis for the decision to prosecute those persons . Steps were taken to secure the applicant ’s safety until the trial .

ORG The trial of PERSON and the CARDINAL others on charges relating , inter alia , to the fire - raising and the murders took place before ORG of GPE in DATE . PERSON appeared as a principal witness for the ORG . However , once in the witness - box , he denied all knowledge of any matters relevant to the crimes . He also denied that he had given the above - mentioned statements , claiming instead that they had been made up by the police , who had pressurised him into signing them .

ORG Shortly afterwards , the applicant was arrested and prosecuted on indictment in ORG of Justiciary for perjury . He was held in custody pending and during his trial . In summary , the charges against him were that , while giving evidence at the PERSON trial , he had untruthfully :

( a ) stated that marks on a plan which he had drawn had been placed there by him on the instructions of the police rather than on his own initiative ;

( b ) denied making a detailed statement to the police on DATE about the fire - raising ;

( c ) denied making a detailed statement to the police on DATE about the murders ;

( d ) claimed to have been pressurised and assaulted by the police and forced to sign statements previously prepared by them ;

( e ) pretended that he had told his solicitor that he had been assaulted by police officers and forced to sign a statement against his will .

ORG The applicant received legal aid for the preparation of his defence by his solicitor and for representation at his trial by both senior and junior counsel .

The ORG was represented by ORG for GPE ( see paragraph CARDINAL below ) , since the gravity of the charges was considered to warrant the presence of a senior prosecutor and since the most senior Advocate Depute , who had appeared for the prosecution at the PERSON trial , was to be a witness at the applicant ’s trial .

After a DATE trial before ORG of GPE in DATE , PERSON was found guilty of the first , second and fourth charges against him and not guilty of the fifth ; the third was found not proven . He was sentenced to DATE imprisonment .

The trial judge certified , for the purposes of determining the fees payable under the legal - aid scheme , that the case had been CARDINAL of exceptional length , complexity and difficulty .

ORG The applicant ’s solicitor subsequently lodged an intimation of intention to appeal against conviction ( see paragraph CARDINAL below ) . The legal aid granted for the perjury trial covered this work , as well as the solicitor ’s advising on the prospects of an appeal , obtaining counsel ’s opinion on the same point , having counsel frame a note of appeal setting out the grounds of appeal ( ibid . ) , lodging the note of appeal and making an application for legal aid to pay for representation at the hearing of the appeal itself .

ORG Such an application was submitted on behalf of PERSON , who had insufficient means to pay for legal assistance , to ORG of the Law Society of GPE ( see paragraph CARDINAL below ) on DATE . It was accompanied by a memorandum , a copy note of appeal ( with a supplementary statement of the grounds ) and the judge ’s summing - up to the jury at the applicant ’s trial ; later a copy of the indictment and a note of previous convictions were also lodged .

The ORG considered the material before it to be insufficient and asked the applicant ’s solicitor to furnish counsel ’s opinion on the prospects of the appeal . This he did on DATE .

The solicitor had , in fact , already obtained such an opinion , on DATE , from the senior and junior counsel who had represented PERSON at his trial ; the senior counsel , in particular , had considerable experience in presenting appeals before ORG of Justiciary . The authors of the opinion concluded that they could not advise that the appeal should proceed : in their view , neither of the CARDINAL possible stateable grounds of appeal was of sufficient substance as to have reasonable prospects of success and , in any event , there was no real prospect of satisfying the court that there had been a miscarriage of justice ( see paragraph CARDINAL below ) .

The solicitor also provided the ORG with a copy of his letter of CARDINAL DATE to his GPE agents , indicating that he disagreed with counsel ’s opinion . Although he had obtained on DATE , for the purposes of the applicant ’s trial , a psychiatric report which stated that the applicant was of modest intelligence but with a poor command of LANGUAGE and poor comprehension of written material , he did not communicate this to the Committee . Neither did he refer , in any material he placed before it , to any intellectual or linguistic limitations of his client .

ORG By decision of CARDINAL DATE , which was stated to be final , the ORG refused the application , since it was not satisfied that PERSON had substantial grounds for his appeal ( see paragraph CARDINAL below ) .

ORG The applicant nevertheless continued to receive advice and assistance from his solicitor and decided to proceed with the appeal . The grounds were the same as those considered by counsel in the opinion of DATE ( see paragraph CARDINAL above ) . The applicant maintained that there had been a miscarriage of justice ( see paragraph CARDINAL below ) , in that ( in summary ) :

( a ) during the cross - examination of a police officer , the trial judge had intervened with the comment - alleged to be tantamount to a premature direction in law to the jury and incorrect - that the line being followed by the defence was incompetent and irrelevant ;

( b ) the judge had erred in admitting in evidence a statement made by the applicant on DATE , notwithstanding a defence objection that it was inadmissible as being in the nature of a precognition , that is a statement made by a potential witness at an advanced stage of an investigation outlining the evidence he is likely to give at a forthcoming trial ;

( c ) the judge had erred in repelling a further objection to the admissibility of the same statement , namely that it was evidence of crimes not charged against the applicant and would lead to prejudice ;

( d ) the judge had erred in directing the jury that it would not be unfair for a police officer - if he genuinely believed that his superiors intended to use the applicant only as a witness - to have told the applicant , prior to obtaining the aforesaid statement and certain sketch plans , that he would not be charged with any offence ;

( e ) the judge had erred in rejecting a defence submission that the evidence given by the applicant at the PERSON trial had not been " material " and accordingly could not form the basis of a charge of perjury .

ORG The hearing of the appeal opened before ORG of Justiciary , sitting in GPE as an appellate court of CARDINAL judges , on DATE . The ORG was again represented by ORG for GPE , accompanied by junior counsel and a member of the staff of ORG ( see paragraph CARDINAL below ) .

Since the refusal of legal aid precluded the instruction of counsel and since solicitors do not have rights of audience in the High Court of Justiciary , PERSON presented his appeal himself . He read out a statement , prepared by his solicitor , which elaborated on the written grounds of appeal . ORG replied , addressing the court for TIME .

ORG The principal point discussed at the hearing was whether the court could determine ground ( b ) of the appeal ( see paragraph CARDINAL above ) without considering a transcript of the relevant parts of the evidence given at the applicant ’s trial . Notwithstanding the Solicitor General ’s arguments to the contrary , the court decided that it could not . It therefore ordered that a transcript be prepared and adjourned the hearing to CARDINAL March CARDINAL . The applicant ’s solicitor subsequently assisted in the preparation of the transcript .

Following this adjournment , PERSON did not renew , or request reconsideration of , his legal - aid application , nor did he advise ORG of the court ’s order .

ORG At the resumed hearing the applicant had again been provided by his solicitor with a written speech , which dealt with all the grounds of appeal . Although the court pointed out that it wished to hear submissions on ground ( b ) only , it allowed the applicant , who was unable to comprehend the legal niceties , to read out the speech in full .

ORG of Justiciary unanimously refused the appeal on all grounds . In his written judgment the Lord ORG , who presided , gave full consideration to each of the grounds , but was satisfied that none of them had substance and that there had been no miscarriage of justice ( see paragraph CARDINAL below ) . He described the appellant ’s submissions as " well prepared and clearly expressed " .

Mr PERSON was released from prison on DATE after serving CARDINAL of his sentence , the remainder having been remitted .

ORG On DATE before the first hearing in the applicant ’s appeal - the Lord Advocate referred , under section CARDINAL of the Criminal Procedure ( GPE ) Act DATE ( see paragraphs CARDINAL below ) , for the opinion of ORG of Justiciary CARDINAL questions of law that arose from the judge ’s directions to the jury , at the perjury trial , concerning the charge which had been found not proven ( see paragraph CARDINAL above ) . The questions were :

( a ) whether , in a trial for perjury where the accused was not an accused in the previous trial , it is of any relevance that a statement made by him and falsely denied under oath was allegedly obtained by means described as unfair ; and

( b ) whether , in a trial for perjury , the " materiality " of the false evidence to the issue in the earlier trial is ( i ) a prerequisite to conviction and in any event ( ii ) a matter of fact to be left to the jury .

ORG On DATE the High Court heard submissions on the reference . PERSON exercised his statutory right to be represented at the hearing , the fees of senior counsel instructed for this purpose being paid by the Lord Advocate ( see paragraph CARDINAL below ) . In its opinion of DATE the court held that the trial judge ’s directions - which had been favourable to the applicant - had not been an accurate statement of the law . This opinion did not affect the applicant ’s acquittal ( see paragraph CARDINAL below ) .

ORG Every person convicted of a criminal charge in GPE has an automatic right of appeal - there being no requirement of prior leave - against conviction or sentence or both . In cases , such as the applicant ’s , tried on indictment , the right is conferred by section CARDINAL of the Criminal Procedure ( GPE ) Act DATE , as amended by ORG ( GPE ) Act DATE ( " LAW " ) .

ORG In an appeal against conviction , the appellant may bring under review any alleged miscarriage of justice in the earlier proceedings . " Miscarriage of justice " is not defined by statute , but covers such matters as misdirections by the trial judge to the jury or wrong decisions on the admissibility of evidence , as well as breaches of natural justice .

An appellate court which holds that there has been a miscarriage of justice retains a discretion not to allow the appeal if it determines that the miscarriage is not such as to warrant the quashing of the conviction ( section CARDINAL of LAW ) .

ORG Anyone wishing to appeal against conviction must lodge an intimation of his intention to do so within DATE of the final determination of the proceedings against him ( section CARDINAL of LAW ) . He then has DATE in which he may file a note of appeal containing a full statement of the grounds ; he may not , in general , found any aspect of his appeal on a ground not set out therein ( section CARDINAL of the DATE Act ) .

ORG At the hearing submissions will first be made by or on behalf of the appellant ; whilst unusual , this may be done in writing ( section CARDINAL of LAW ) . Counsel for the ORG will then address the court .

Counsel for the ORG has a duty to act with complete fairness and to assist the court by providing impartial information and , if need be , argument so that the appellant ’s case can be evaluated in the best possible light . This is especially important where the appellant is not represented by counsel . Such cases are common , firstly because the unrestricted right of appeal ( see paragraph CARDINAL above ) results in the filing of many appeals which are without merit and , hence , do not qualify for legal aid ( see paragraph CARDINAL below ) . Secondly , and irrespective of the availability of legal aid , counsel must , according to ORG , refuse to act further in a criminal appeal if he has formed the opinion that there are no grounds which he is prepared to state to the court .

Whether the appellant is represented or not , the court will undertake a thorough examination of the appeal and will be scrupulous in examining the points which might be favourable to him .

ORG At the hearing of appeals in ORG of Justiciary the ORG will always be represented , either by the Lord Advocate or ORG ( who are ORG of the Crown ) or by one of ORG . In an appeal against conviction following a long trial , the ORG will usually be represented by the counsel who appeared for it below , on account of his familiarity with the case .

As Ministers of the ORG , ORG are liable to be called away from court at short notice to carry out other duties . They will therefore normally be accompanied by another counsel , but he will play no active part unless LAW has to leave . Counsel for the ORG will also invariably be accompanied by the member of the ORG staff who prepared the DATE ’s papers for the court ; his function is entirely clerical and administrative and he will not participate in the discussion of the appeal .

ORG Legal aid granted for a trial on indictment covers certain work done in contemplation of an appeal , as listed in paragraph CARDINAL above . If it is thereafter intended to proceed with the appeal , legal aid may be sought for that purpose . Its availability was , at the relevant time , governed by ORG ( GPE ) Act DATE , as amended ( " LAW " ) . Applications therefor were then determined by ORG of the Law Society of GPE , whose members were independent advocates and solicitors with substantial current experience of court practice .

The whole system for the administration of legal aid was reformed by ORG ( GPE ) Act DATE , which repealed and replaced LAW with effect from DATE . In particular , the former functions of ORG were transferred to another body .

ORG Section CARDINAL(CARDINAL ) of LAW provided :

" In criminal proceedings , a person shall not be given legal aid in connection with -

( a ) ...

It would have been extremely unusual for ORG to decide that it was not reasonable to grant legal aid to a person appearing to have substantial grounds for appealing . It normally determined applications on the basis of the documents before it , which would have included the note of appeal setting out the grounds and the judge ’s summing - up to the jury , and in the light of the views of the counsel or solicitor who acted for the appellant at the trial .

According to LAW ( GPE ) ( Criminal Proceedings ) Scheme DATE , the ORG ’s decision on the merits of an application for legal aid for a criminal appeal was final .

ORG Under section CARDINAL of LAW , where a person tried on indictment is acquitted on a charge , the Lord Advocate may refer a point of law which has arisen in relation to that charge to ORG for an opinion . The person concerned may elect to appear personally or to be represented by counsel at the hearing . If he does not desire to be so represented , the court will appoint counsel to act as amicus curiae , in order to ensure that the issues are fully argued . In either case , counsel ’s fees will be paid by the Lord Advocate .

ORG This procedure was introduced into NORP law because previously the prosecution had , in all cases tried on indictment , no right of appeal . There was accordingly a risk that an erroneous decision by the trial judge might be treated as authoritative in later cases .

The sole purpose of a reference by the Lord Advocate is to clarify the law for the future , section CARDINALA expressly providing that the opinion of ORG " shall not affect the acquittal " of the person concerned . Fresh proceedings on the charge in question can not be instituted against him , even if the opinion is favourable to the prosecution .


Violation of Art. 6-1;No violation of P4-2;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

The applicants were born in DATE and DATE respectively and live in the village of GPE , GPE .

The applicants , a married couple , used to live in ORG of GPE where they worked as veterinarians . The first applicant held the position of Head Veterinarian of LOC .

On DATE criminal proceedings for fraud were instituted against the first applicant and an obligation not to leave the place of his residence without permission was imposed on him as a preventive measure . On DATE by an order of the investigator the first applicant was suspended from his employment .

In DATE criminal proceedings for fraud were instituted against the second applicant and an obligation not to leave the place of her residence without permission was imposed on her as a preventive measure .

The criminal proceedings against both applicants were joined on CARDINAL DATE . The applicants were accused of submitting false reports on business trips in order to obtain cash from the veterinary practice where the first applicant worked unlawfully .

On DATE the applicants asked for the obligation not to leave their place of residence without permission to be cancelled . It appears that the application was not considered .

NORP Over the course of DATE the criminal case was several times remitted by the courts for additional investigation : in DATE and on CARDINAL DATE , CARDINAL DATE , DATE and DATE .

In DATE the applicants ' minor son was invited to attend an interview for a place at ORG . The applicants submitted that he did not attend the interview since neither of them was allowed to accompany him in the journey to GPE . On an unspecified date the acting prosecutor of the LOC provided the second applicant with the following letter :

“ [ The letter ] is given to PERSON Andreyevna Fedorova ... in order to confirm that on DATE she was summoned to ORG of LOC , as a result of which she could not leave for GPE together with her son and be present at ... the interview on DATE .

[ The letter ] is to be presented to the examination panel of ORG at ORG . ”

The applicants ' son , having passed general entry exams , was later admitted to the University .

On DATE ORG of GPE acquitted the applicants and cancelled the obligation not to leave their place of residence without permission . On appeal , on DATE the ORG quashed the judgment and remitted the case for a fresh examination by a different composition of judges .

On DATE ORG of GPE terminated the criminal proceedings against the applicants for lack of indication that a crime had been committed . The ruling was quashed on appeal on DATE by ORG , which remitted the case for a fresh examination to ORG of GPE .

ORG convicted the first applicant of misappropriation of property held in trust and sentenced him to DATE imprisonment on DATE . He was not required to serve the sentence on account of the statutory time - bar . The second applicant was fully acquitted . The court also lifted the obligation not to leave the place of residence without permission in respect of both applicants , although it had already been cancelled by ORG of GPE on DATE .

On appeal , on DATE ORG reversed the judgment in the part relating to the conviction of the first applicant and remitted the case for a fresh examination . The court decided not to apply any measures of restraint in respect of the applicant .

The case was subsequently transmitted to ORG of GPE . On DATE the ORG of GPE convicted the first applicant of misappropriation of property held in trust and sentenced him conditionally to DATE imprisonment . The court , however , released the applicant from the punishment because of the expiry of the statutory time - limit .

On DATE ORG reversed the judgment on appeal . It held that the first instance court should not have first convicted the applicant of the offence and then released him from the punishment , but should have terminated the criminal proceedings . Accordingly , the appeal court discontinued the criminal proceedings against the applicant on account of expiry of the statutory time - limit .

“ When there are sufficient grounds for believing that an accused person may evade an inquiry , preliminary investigation or trial or will obstruct the establishment of the truth in a criminal case or will engage in criminal activity , or in order to secure the execution of a sentence , the inquirer , investigator , prosecutor or court may apply one of the following measures of restraint in respect of the accused : a written undertaking not to leave a specified place , a personal guarantee or a guarantee by a public organisation , or taking into custody . [ ... ] ”

“ In exceptional instances , a preventive measure may be applied to a suspect who has not been charged . In such a case , charges must be brought against the suspect within DATE after a preventive measure is applied . If no charges are brought within the period specified , the preventive measure shall be cancelled . ”

“ When the need for application of a preventive measure is being considered and the type of measure chosen ... the circumstances to be taken into account shall include ... the gravity of the charges brought and the personality of the suspect or the accused , occupation , age , health , family status and other circumstances . ”

“ A preventive measure shall be applied under an order made by an inquirer , an investigator , or a prosecutor , or a reasoned decision given by a court , which shall specify the offence of which the person is suspected or accused and the grounds for application of the preventive measure . The person concerned shall be informed of the order or decision and at the same time the person shall be provided with explanations concerning the procedure for appealing against the preventive measure applied .

A copy of the order or the decision on the application of the preventive measure shall be immediately handed to the person concerned . ”

“ A written undertaking not to leave a specified place consists in obtaining from the suspect or the accused an obligation not to leave the place of residence or of temporary stay without the permission of a person conducting an inquiry , an investigator , a prosecutor , or a court . In the event of breach by the suspect or the accused of the written undertaking given by him , a stricter preventive measure may be applied about which he should be informed when the obligation is withdrawn . ”

“ A written undertaking not to leave a specified place consists in obtaining from the suspect or the accused an obligation :

( CARDINAL ) not to leave the place of residence or of temporary stay without the permission of a person conducting an inquiry , an investigator , a prosecutor or a court ;

( CARDINAL ) to appear before a person conducting an inquiry , an investigator , a prosecutor or a court at appointed terms ;

( CARDINAL ) not to impede the criminal proceedings in any other way . ”


Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Volodymyr Butkevych;Zdravka Kalaydjieva

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

The applicant is an electrical engineering technician and a member of ORG of GPE ( ORG , hereafter , “ the NORP ” ) . In DATE he was a local chairperson of that party . The ORG was considered right - wing extremist and populist and was under scrutiny by ORG and those of various GPE ( Länder ) . The ORG has not been declared unconstitutional by ORG in accordance with LAW of LAW .

On DATE the applicant commenced his compulsory military service , which was to end on DATE . To serve one ’s compulsory military service is an obligation imposed by LAW without conferring a right to the conscript to be enlisted . A conscript receives approximately ORG CARDINAL net allowance a month . On DATE the applicant ’s superior notified ORG of his membership of and functions in the ORG . On DATE he was appointed as a Private First Class . The applicant performed his duties within the army conscientiously and without any disciplinary reprimand . He did not carry out any political activities within the army .

On DATE the applicant ’s military service was terminated with effect from CARDINAL DATE . His presence in the army was found to endanger its integrity and order within the meaning of section CARDINAL § CARDINAL No . CARDINAL of the Compulsory Military Service Act ( PERSON ) on account of his membership of and functions in the ORG , a party considered to be right - wing extremist and populist . Moreover , the toleration of an ORG functionary within the army would harm its reputation .

On DATE the objection he filed was rejected on the ground that his membership of and functions in the ORG were in breach of a soldier ’s special duty of loyalty to LAW . His membership of and functions in the ORG , a party that pursued unconstitutional aims , manifested his lack of readiness to defend the free democratic order within the meaning of LAW , which posed a danger to military order .

On DATE ORG rejected a claim lodged by the applicant , finding that the order of CARDINAL DATE gave sufficient reasons to consider that his continuing military service would pose a serious danger to military order . LAW § CARDINAL No . CARDINAL of the Compulsory Military Service Act gave the authorities no discretion where conduct posing a serious danger to military order was established . Military order within the meaning of that provision embraced the readiness to defence which was guaranteed , inter alia , by the army ’s bond to the constitutional order of which it was a guarantor . Relying on the DATE annual reports on the protection of LAW and the NORP State Ministry of the ORG the court established that at the relevant time the ORG aimed at DATE if need be violent – subversion of the democratic order . It referred to several statements by the party leader who pursued the political aim to “ install the ORG in absolute power ” . Moreover it referred to the speech given by a convicted neo - Nazi at the party congress , who appealed for a “ revolution which could not be achieved without blood and victims ” . The court found that the above statements by party functionaries had to be attributed to the applicant in his function as a local chairperson at the relevant time . Therefore , his further presence in the NORP army posed in itself a danger to military order even though his behaviour within the army did not give rise to any complaints . The court clarified that his dismissal did not result in the loss of his rank .

On DATE ORG rejected an appeal lodged by the applicant . It endorsed the reasons given by the lower instances and observed that the applicant ’s holding of functions in the ORG during his military service was in breach of a soldier ’s special duty of loyalty to LAW , which was manifested in section CARDINAL of LAW and was a requisite for the functioning of the army . The ORG ’s anti - constitutional attitude , which was expressed by the party leader , had to be attributed to the applicant , who held functions in the party and failed to dissociate himself from those statements . The court referred to ORG settled case - law that it was not contrary to LAW that the NORP army drew consequences from the applicant ’s membership of a party which had not been declared unconstitutional , as that provision merely protected the political activity of the party members .

On DATE the ORG refused to admit a constitutional complaint by the applicant . It found the arguments given by the lower instances sufficient to justify the termination of his military service , which was therefore in line with the German Constitution and particularly with the prohibition of discrimination .

“ CARDINAL . Parties which , through their aims or the conduct of their members , seek to damage or to overthrow the free democratic constitutional system or to endanger the existence of GPE shall be held to be anti - constitutional . The ORG shall determine the question of anti - constitutionality . ”

§ CARDINAL [ ... ] Furthermore [ military service ] shall be terminated , if [ ... ]

based on his previous conduct [ the conscript ’s ] continued presence in the army would pose a serious danger to military order or to the security of the troops , [ ... ]

“ A soldier must recognise the free democratic order within the meaning of LAW and must act at all times in such a way as to uphold it . ”


The applicant , the late Sigvard PERSON , was a NORP national , born in DATE and was living in GPE . Following his death on DATE , his widow , PERSON , declared that she wished to pursue the application on his behalf . He is represented before the Court by PERSON , a lawyer practising in GPE . The Government are represented by PERSON of ORG , as Agent .

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

The applicant was son of the late NORP King PERSON . By descent he was born a prince . On DATE the applicant , without the consent of the King , entered into marriage with a woman who was not of royal descent . For this reason , on DATE , the applicant ’s father , the then Crown Prince Regent PERSON , decided on the ORG ’s behalf :

“ By entering into marriage without the King ’s consent and with the daughter of a foreign private person , His Majesty , The Duke of Uppland , in accordance with LAW and LAW , has forfeited his own , his children ’s and his ORG right of succession to the throne . Moreover , he has forfeited the titles and the privileges , which until now he has enjoyed in his capacity as a hereditary prince ” .

The members of the Government cabinet expressed their agreement with the above decision and agreed with the ORG ’s decision that “ PERSON for the future may use the family name PERSON ” . It has ever since been the understanding of the NORP Kings that the applicant thereby lost his right to the title of prince and he has been treated accordingly in ORG Officials and ORG respectively .

Since DATE the applicant , in several petitions to the present King of GPE , King PERSON , requested that his hereditary prince title be reaffirmed by the King . The applicant supplied some information about exchanges from DATE between his lawyer at the time and the PERSON of the Realm ( riksmarskalken ) . This included an extract from a letter of DATE from the PERSON stating that “ the King had not found grounds for revising the interpretations and application of his predecessor ’s decision in the matter . Thus , ORG considers that it had finalised its examination of the case ” .

The most recent petition to the King , dated DATE , was rejected on DATE . PERSON referred to earlier exchanges in the course of which it had been stated that the King was not prepared to carry out a revision or amendment to his predecessor ’s decision in the matter . In so far as the King and ORG were concerned , no changes would be made in respect of applicable titles .

Under NORP law , these refusals can not form the subject of an appeal .

According to the applicant , he suffered various inconveniences as a result of the removal of his prince title and the subsequent refusals to restore his title .

At the material time ( DATE ) , LAW read as follows .

" No prince of ORG , be he crown prince , hereditary prince or prince , may marry without the ORG knowledge and consent . In the event that this should occur , he has forfeited his hereditary right to the realm for his own part , that of his children and descendants . "

A similar provision was contained in LAW , which provided that the same applied if a prince , with or without the knowledge and consent of the King , married a commoner ( “ a private man ’s daughter ” ) of NORP or foreign origin .

Following a reform in DATE , section CARDINAL was amended to require the King to hear the Government cabinet before consenting to the marriage of a prince . At the same time , the reference to a commoner of foreign origin was abolished , while that to a commoner of NORP origin was retained . According to the respondent Government , the reason was that , after the First World War , the number of ruling sovereigns and royal houses and other families of equal status had been reduced .

According to information supplied by the ORG , the main features of the domestic law pertaining to the acquisition and loss of a name remained unchanged throughout the relevant period . In DATE the legal provisions concerning names were brought together in CARDINAL statute , the DATE LAW ( namnlagen ) , later replaced by LAW . Under these rules , surnames were acquired at birth and could be lost only in limited circumstances , for example if it were established in paternity proceedings that a certain man was not the father of a person carrying his surname or where the person concerned was not entitled to acquire the surname in the first place or had acquired a surname that caused inconvenience to another person on account of a risk of confusion . The right to carry a first name that had been registered or approved could not be revoked .

Although there was no definition of the concept of name under NORP law , it was considered that designations other than names fell outside that concept , as they were not deemed to constitute means of personal identification . This was the case of terms that indicated a profession - for example teacher , lawyer or military , or occupational position - such as professor , judge or commander , and likewise indications of rank or title , such as assistant professor , district court judge or captain . Such designations were not afforded the legal protection applicable to names . There was no domestic legal provision regulating the use of the titles of prince and princess nor any legal protection of those titles .


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

The applicant ’s grand - daughter , H , was born in DATE .

In DATE , H ’s mother ( the applicant ’s daughter , P ) , who lived in GPE , north - east GPE , contacted the local authorities because she was suffering from mental health problems and could not , at that time , care for H. In DATE , H was placed with foster parents in GPE on a temporary basis . In DATE , at a meeting of the local authority permanency panel attended by P , the decision was taken that , since P was still unable to care for H , a permanent placement should be found for her . In DATE , H ’s name was added to ORG under the category “ emotional abuse ” . In DATE , H moved to the south of GPE to live with her maternal aunt and uncle , who had applied to have H placed permanently with them . P initially opposed this plan but eventually , to avoid a care order , she agreed and , on DATE , a residence order was made in favour of P ’s sister . However , this arrangement broke down and in DATE H went to live with the applicant and his wife on a temporary basis . In DATE , H was placed with short - term foster parents in GPE . This was either her fifth or her seventh change of home in DATE . She had contact with the applicant and his wife DATE , and staying contact with P in GPE .

In DATE H visited P , who was getting married . DATE after the wedding , H and P had a disagreement about H ’s sleeping arrangements . H wanted to stay with P , but P had arranged for H to stay with a friend . In the course of this argument , P telephoned the police and social services and asked that an emergency placement be found for PERSON The following day H returned to her foster parents . P declined to have contact with H until DATE , when they had supervised contact , repeated in DATE .

The local authority commenced care proceedings and on DATE an interim care order was made . In her statement dated CARDINAL DATE , P did not oppose the local authority ’s plan to find a long - term permanent placement for H in the south of GPE , although she did oppose adoption . The applicant and his wife did not support the idea of a long - term placement , and initially decided to apply for H to live with them . When they were refused legal aid to apply for a residence order , they decided to apply instead for a contact order . In DATE the local authority advanced a care plan in which it was proposed , for the first time , that H be placed with PERSON and PERSON , with a view to adoption . PERSON and PERSON indicated that they would be willing to allow post - adoption contact between H and her biological family .

The case came before His Honour Judge PERSON on DATE . At the hearing , counsel informed the judge that the parties had agreed to the making of the care order and an order for specified contact in favour of the applicant and his wife . No agreement was reached in respect of contact between H and her mother , since it was not certain whether it would be possible for P to have contact with H in the area where H would be living or at the applicant and his wife ’s home .

However , since DATE or DATE the applicant and his wife have had no contact with H , or news as to her well - being , with the exception of what was said in court on DATE ( see below ) . The local authority applied to vary the order of DATE , since H was extremely reluctant to have contact with her mother or grandparents . There was a further hearing before Judge PERSON in DATE . He ordered that there should be no contact until further order of the court and referred the matter to ORG .

On DATE , ORG considered a number of applications by the parties . P , who was represented by counsel , applied for the discharge of the order of DATE and for a residence order in her favour or , in the alternative , a defined contact order . The applicant and his wife , acting in person , applied in support of P ’s application or , in the alternative , if the court were unwilling to commit H to her mother ’s care , for a residence order in their favour and , if H were not to live with them , for a defined contact order . The prospective adopters , PERSON and PERSON , applied to adopt H and opposed the attachment of any condition to the adoption order .

In giving judgment , the judge , who had spoken privately to H , stated :

“ The principle of the paramountcy of H ’s welfare must be applied ... . H is DATE and her wishes , which I accept have been accurately and genuinely stated by her , do deserve to be given great weight , even if they are not , of course , conclusive . She has suffered significant harm in the past and in my judgment there is a risk , indeed the virtual certainty , of a traumatically adverse effect upon her if she is moved from her present home , where she has settled so well . ...

... I am satisfied that [ H ] wants very much indeed to be adopted so as to complete the process of integration into PERSON and PERSON family . For her , an explanation that she is to remain in their care in their capacity as long - term foster parents is to stop short of cementing the bond between her and them and of providing the total security which understandably , in the light of the past history , she craves .

She has a strong conviction that her natural family does not approve of her present placement , and she is right : the [ applicant and his wife ] are vehemently opposed to it ... .

In this case an order for direct contact is not viable at all . The child is resolute in her opposition to contact and the making of an order ... . [ H ] perceives any sort of nexus between herself and her natural family at this point of time to be threatening to the stability of her placement and she even fears that in some way the provision of a report might enable the natural family to discover her location or in some other way ( as she puts it ) hassle her . ... ”

He therefore granted PERSON and PERSON application for an unconditional adoption order .

On DATE , after hearing the applicant and his wife in person , ORG refused P and the applicant leave to appeal against the adoption order , and on DATE ORG refused leave to appeal to ORG .

Relevant domestic law

The Children Act DATE states , in section CARDINAL ( as relevant ) :

“ ( CARDINAL ) When a court determines any question with respect to –

( a ) the upbringing of a child ; ...

the child ’s welfare shall be the court ’s paramount consideration . ...

( CARDINAL ) In the circumstances mentioned in subsection ( CARDINAL ) , a court shall have regard in particular to –

( a ) the ascertainable wishes and feelings of the child concerned ( considered in the light of his age and understanding ) ;

( b ) his physical , emotional and educational needs ;

( c ) the likely effect on him of any change in his circumstances ;

( d ) his age , sex , background and any characteristics of his which the court considers relevant ;

( e ) any harm which he has suffered or is at risk of suffering ;

( f ) how capable each of his parents , and any other person in relation to whom the court considers the question to be relevant , is of meeting his needs ;

( g ) the range of powers available under LAW in the proceedings in question .

( CARDINAL ) The circumstances are that - ...

( a ) the court is considering whether to make , vary or discharge [ a care and supervision order ] . ”

LAW provides , in section CARDINAL ( as relevant ) :

“ ( CARDINAL ) an adoption order shall not be made unless - ...

( b ) in the case of each parent or guardian of the child the court is satisfied that – ...

( ii ) his agreement to the making of the adoption order should be dispensed with on a ground specified in subsection ( CARDINAL )

( CARDINAL ) The grounds mentioned in subsection ( CARDINAL)(b)(ii ) are that the parent or guardian - ...

( b ) is withholding his consent unreasonably ... . ”


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

The applicant was born in DATE and lives in GPE .

On DATE the applicant brought an action in ORG seeking the annulment of a contract and the ownership of a real - estate . DATE and CARDINAL DATE the court held CARDINAL hearings and obtained the opinion of an expert .

On DATE the proceedings were interrupted on account of the death of CARDINAL of the respondents . The successors were not identified until DATE . The court informed the parties of this fact on DATE , and the proceedings resumed on DATE .

CARDINAL further hearings took place DATE and DATE .

On DATE ORG dismissed the applicant 's action .

On DATE the applicant appealed . Following repeated warnings from the appellate court , his appeal was only lodged in due and proper form on DATE .

On DATE ORG , sitting as a second - instance court , dismissed the applicant 's appeal .

On DATE ORG rejected as inadmissible the applicant 's petition for review , without an examination of the merits .