The applicant, Mr Delroy Denton, is a Jamaican national, who was born in 1960 and is curently detained in HM Prison Full Sutton. He is represented before the Court by Mr D. O’Connell, a lawyer practising in Godalming, Surrey.

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

The applicant is a Jamaican national, who came to the United Kingdom in April 1993 using his brother’s passport and was granted permission to remain for six months. On 12 May 1994, the applicant was arrested in a public house in Brixton, on suspicion of drug dealing and possession of an offensive weapon. Upon arrest he gave the name Clive Lloyd Johnson. After being interviewed by the police, he was arrested and interviewed again by an Immigration Officer called Fotheringham as a suspected ‘overstayer’. Fotheringham knew the applicant’s true identity and in a report dated 13 May 1994, described the applicant as ‘extremely violent’ and indicated that he should be detained. However, over the following few days, Fotheringham, together with PC Barker from “SO11”, (a special operations unit of the Metropolitan police), recruited the applicant as a police informer. With the assistance of Fotheringham the applicant completed an application for political asylum and was released on temporary admission to the United Kingdom on 15 May 1994.

The applicant was not charged with any drugs offences despite the fact that a substance later proved to be cocaine had been found on him when he was arrested in May 1994. In June 1994 he appeared before the Magistrates’ Court in respect of the offence of possession of an offensive weapon and was fined, having pleaded guilty in the name of Clive Lloyd Johnson. Immigration Officer Fotheringham was at court. The same month, the applicant had his first official meeting with his handlers and began to supply information about the activities of Jamaican ‘Yardie’ gangs operating in the United Kingdom.

In December 1994 the applicant was arrested for an offence of rape and was detained in custody. Whilst detained he was visited by Fotheringham and another officer and on 9 January 1995 PC Barker and a DS Bayes attended the Magistrates’ Court in an attempt to persuade the prosecutor not to object to bail. On 1 February 1995 the rape proceedings were discontinued and, although they would later deny it, the applicant believed this was as a result of intervention by his ‘handlers’.

Between September 1994 and February 1995 the applicant gave information to police about the alleged criminal activities of Shirley Graham, known as ‘Miss V’, involving drug dealing and false passports. On 23 March 1995, the applicant gave information to PC Barker about Miss V’s son, Wayne Graham. Graham was arrested the same day in possession of a handgun and ammunition and was subsequently sentenced to three years’ imprisonment.

On or about 19 April 1995, a Wednesday, Marcia Lawes (known as ‘Zena’) was murdered. She had been stabbed some twenty times and the prosecution case was that she had been raped before being killed. Her body was not found until the evening of Friday, 21 April 1995. The door to her flat was unlocked and the telephone had been left off the hook. On 9 May 1995 the applicant was interviewed as a potential witness. His former girlfriend, Samantha Thompson, with whom he was still living, was a friend of Zena and his fingerprint had been found on a glass in the deceased’s flat. The applicant said he knew of her, but had not actually met her before the afternoon of 18 April 1995, when he went to her house with a mutual friend, Mark Williams, to buy cannabis. He did not disclose that he had had a sexual relationship with the deceased.

In June 1995 the applicant’s DNA profile was matched with semen samples taken from the deceased’s vagina and he was arrested for her murder. When interviewed in June he said that he had been having a sexual relationship with the deceased for some time and had returned to her house on Tuesday, 18 April 1995 to have sex with her, but she had been alive when he left and she must have been murdered some time after he last saw her.

The fact that the applicant was an informant became known to the officer in charge of the murder investigation, DCS Cook, who informed the Crown Prosecution Service (CPS) in July 1995. Cook was told by a colleague about a telephone call the applicant made from prison to PC Barker, in which he had asked if something could be ‘sorted out’. (He later confronted PC Barker about the call, who denied any knowledge of it). DCS Cook visited SO11 and looked at the applicant’s Informant file but did not see anything of relevance to the murder investigation and took no further action. Senior officers at SO11 gave instructions that there was to be no further contact with the applicant. In October 1995 the murder proceedings against the applicant were discontinued, counsel having advised that there was insufficient evidence to proceed, and he was released from custody.

As far back as December 1994 the decision had been taken to refuse the applicant’s application for asylum, but the letter of refusal was not served on him and no steps were taken to deport him. At some point after the October 1995 decision to discontinue the murder proceedings, contact was resumed between the applicant and PC Barker.

DCS Cook obtained authority to resume the murder investigation and on 24 November 1995 Dionne White made a witness statement in which she said that she had been with the applicant on an occasion in May 1995 when he appeared worried about police questions and asked her what ‘forensic’ meant. He had a bag in which she saw a pair of bloodstained trousers, which he then took to be dry cleaned. Dionne White was the niece of Wayne Graham and the granddaughter of Miss V. She had not made a statement to the police during the initial investigation. The police also then obtained further evidence from a mobile telephone company tending to show that the applicant was near or at Zena’s flat on Wednesday morning, when the prosecution believed her to have been murdered and when the applicant claimed to have been at home. The applicant was re-arrested on 23 December 1995.

At the start of the trial, on 1 July 1996, the prosecution made an application for public interest immunity (PII) in respect of the fact that the applicant was an informant. The applicant had not told his own legal representatives and the defence team were not aware of his status as an informant. Prosecuting counsel told the trial judge that the applicant was an informant and that he had had involvement with the police and with Fotheringham. Counsel had not been told that the applicant had informed on the relatives of the prosecution witness Dionne White and both prosecuting counsel and the judge were unaware of any possible relevance to the trial of the fact that the applicant was an informant. Prosecuting counsel made it clear to the judge that he did not know whether the applicant had told his own solicitors or counsel that he was an informant. The judge ruled that there should be no order for disclosure.

After the PII hearing, DCS Cook was approached by a journalist who said that he knew the applicant was an informant and asked if the officer knew anything about the discontinuance of the proceedings in October 1995 being as a result of an approach to the CPS by SO11. DCS Cook brought the conversation to the attention of prosecuting counsel. Counsel took the view that the conversation had no relevance to the trial and it was not brought to the attention of the judge. During the trial, the same journalist discussed his knowledge of the applicant’s informant activities with members of the deceased’s family and others in the public gallery, some of whom were friends of prosecution witnesses. One of the group told the journalist that he knew the applicant was an informant and he wanted him to be convicted of the murder. The deceased’s sister discussed the conversations with DCS Cook, who did not confirm or deny that the applicant was an informant.

The prosecution evidence at trial included details of when, where and to whom the applicant had made telephone calls, revealing inconsistencies in his account, the telephone evidence that he was near to the flat on Wednesday morning, evidence from Samantha Thompson and Mark Williams about the applicant’s movements and the account of Dionne White. In addition, the clothing found on the deceased, stained with the applicant’s semen, was not the same as the clothing she had last been seen in by Samantha Thompson in the early hours of Wednesday, tending to suggest that the applicant had had sexual intercourse with her after, rather than as he said, before that time. In cross examination Dionne White’s credibility was to some extent damaged when she claimed that on 19 April 1995 the applicant told her the police were harassing him about a murder, that is, before the body had been discovered.

The applicant disputed the alleged time of death and relied on the evidence of a pathologist to the effect that the murder was more likely to have taken place on Thursday, 20 April 1995. He maintained that he had not seen the deceased after they had consensual sexual intercourse on Tuesday, 18 April 1995. He called alibi evidence for the Thursday evening, including evidence from a Leon Lynn, (against whom it later transpired he had informed).

On 19 July 1996 the applicant was convicted of the murder by a majority of ten to two. On the evening of the applicant’s conviction, a story on the television news referred to the applicant as a police informant. Subsequently, information about the applicant’s activities as an informant appeared in newspaper articles, a television programme and a book. In December 1995 the applicant was served with the letter written in December 1994, confirming that his application for asylum had been refused.

Following a complaint by the deceased’s relatives, a police inquiry was held (the Hoddinott Inquiry). From about June 1997 a large volume of material was collated. Those who made statements in the course of the inquiry included Dionne White and Miss V. It was clear from the statements that they and many others had suspected or known before the murder that the applicant was an informer and that he had given information leading to the arrest and imprisonment of Wayne Graham. It was also suspected that he had informed on a relative of another prosecution witness (who had not in the event been called to give evidence at the trial). It was not clear whether they had said this to the police when they initially gave their statements in the murder investigation. DCS Cook gave evidence to the inquiry and confirmed that he was unaware of any connection between the information given by the applicant and the murder investigation until after the trial.

The applicant lodged grounds of appeal in March 1997, and his application was referred directly to the Full Court of the Court of Appeal, who granted leave to appeal. The court ordered disclosure of statements and documents from the Hoddinott Inquiry and part of the applicant’s Informant file. It was only as a result of the disclosure that the applicant’s representatives became aware of the information the applicant had given about the relatives of Dionne White and others and of the discussion between the journalist and DCS Cook during the trial. They also became aware that a senior officer from SO11 had attempted to see the applicant in the cells during his trial to inform him that his status as an informant had become known, but that this was no fault of SO11. The CPS representative at court had refused the officer permission to visit the applicant. The applicant lodged more detailed grounds of appeal in May 2001 following the disclosure ordered by the court.

In January 2002, the applicant argued before the Court of Appeal that, (a) the Crown should have disclosed to the applicant’s representatives the fact that he was an informer and the nature of the information he had given, (b) the Crown should have made the same disclosure to the trial judge, (c) the judge was wrong to make no order for disclosure on the PII hearing, (d) the restricted information given to the trial judge meant that he was unable properly to fulfil his functions and discretion as to disclosure, (e) the Crown should have disclosed to the applicant and/or his lawyers and the trial judge the fact that some prosecution witnesses knew he was an informant, (f) when it became known, the Crown should have disclosed to the judge, the applicant and/or his lawyers that press and members of the public knew of the applicant’s status, and (g) the reason the applicant had not told his lawyers of his informant status was because his handlers had put pressure on him not to.

The Court of Appeal heard evidence from the applicant, his handlers and DCS Cook. The court noted that the information given by the applicant (in particular that relating to the relatives of Dionne White) was relevant to an issue in the case, but there was no duty on the Crown to disclose it as it was known to the applicant, who chose not to disclose it. The judge had been correct to make no order for disclosure. There were good public policy reasons why information given confidentially to the Crown by the applicant should not be disclosed to his lawyers without his permission. The court did not accept the applicant’s argument that pressure had been put on him by his handlers not to reveal his status to his lawyers. Having heard evidence from the applicant on the point the court found him to be untruthful.

As to the submission that the applicant and/or his lawyers should have been told when it became apparent that the knowledge of his informant status had become public, Lord Justice Mantell said:

“It is a matter of some concern that not even the judge was told of this development. Had it come to the knowledge of the appellant it may very well be that it would have worked a change of heart with regard to telling his counsel about his informant status.... There was no longer any good reason for keeping the information to himself and counsel would have been free to cross-examine Dionne White as to motive. We say ‘free to cross-examine’ advisedly. It would have been a matter requiring careful thought. After all ... cross-examination on the lines suggested could have had a serious down side, namely the loss of the alibi witness, Leon Lynn, against whom the appellant had informed and the introduction of the risk of character being put in issue.”

The Court of Appeal considered that DCS Cook was an accurate and truthful witness and accepted that neither he nor prosecuting counsel had any reason to know the relevance of the applicant’s informant status to the issues in the trial. The court went on to conclude that the possible advantage to which the applicant could have put the information was not without risk, and in any event the Crown’s case did not depend on Dionne White’s evidence. Evidence of the applicant’s guilt was overwhelming. On 15 February 2002 the appeal was dismissed.

The procedure to be applied when determining questions of disclosure was governed at the time by common law. At common law, the prosecution has a duty to disclose any material which has or might have some bearing on the offence charged.

In December 1981 the Attorney-General issued Guidelines, which did not have the force of law, concerning exceptions to the common law duty to disclose to the defence evidence of potential assistance to it ((1982) 74 Cr.App.R. 302 (“the Guidelines”)). According to the Guidelines, the duty to disclose was subject to a discretionary power for prosecuting counsel to withhold relevant evidence if it fell within one of the categories set out in paragraph 6. One of these categories (6(iv)) was “sensitive material” which, because of its sensitivity, it would not be in the public interest to disclose. “Sensitive material” was defined as including:

“... (b) it is by, or discloses the identity of an informant and there are reasons for fearing that the disclosure of his identity would put him or his family in danger;...”

According to paragraph 8,

“...in deciding whether or not statements containing sensitive material should be disclosed, a balance should be struck between the degree of sensitivity and the extent to which the information might assist the defence.”

The decision as to whether or not the balance in a particular case required disclosure of sensitive material was one for the prosecution, although any doubt should be resolved in favour of disclosure.

In R. v. Ward ([1993] vol. 1 Weekly Law Reports p. 619) the Court of Appeal stressed that the court and not the prosecution was to decide whether or not relevant evidence should be retained on grounds of public interest immunity. It explained that:

“... a judge is balancing on the one hand the desirability of preserving the public interest in the absence of disclosure against, on the other hand, the interests of justice. Where the interests of justice arise in a criminal case touching and concerning liberty or conceivably on occasion life, the weight to be attached to the interests of justice is plainly very great indeed.”

The Court of Appeal’s judgment in R. v. Davis, Johnson and Rowe ((1993) vol. 97 Cr.App.R. 110) set out the procedures to be followed if the prosecution wished to withhold unused material from disclosure on grounds of public interest immunity including, where appropriate, making an application to the court ex parte. It referred to the important role performed by the trial judge in monitoring the views of the prosecution as to the proper balance to be struck and remarked that even in cases in which the sensitivity of the information required an ex parte hearing, the defence had “as much protection as can be given without pre-empting the issue”. Finally, it emphasised that it was for the trial judge to continue to monitor the position as the trial progressed. Issues might emerge during the trial which affected the balance and required disclosure “in the interests of securing fairness to the defendant”. For this reason it was important for the same judge who heard any disclosure application also to conduct the trial.

In R. v. Keane ([1994] vol. 1 Weekly Law Reports p. 746), the Lord Chief Justice, giving the judgment of the Court of Appeal, held that the prosecution should put before the judge only those documents which it regarded as material but wished to withhold on grounds of public interest immunity. “Material” evidence was defined as evidence which could be seen,

“...on a sensible appraisal by the prosecution: (1) to be relevant or possibly relevant to an issue in the case; (2) to raise or possibly raise a new issue whose existence is not apparent from the evidence which the prosecution proposes to use; (3) to hold out a real (as opposed to fanciful) prospect of providing a lead on evidence which goes to (1) or (2)”.

Once the judge was seized of the material, he or she had to perform the balancing exercise between the public interest in non-disclosure and the importance of the documents to the issues of interest, or likely to be of interest, to the accused. In that respect, the more full and specific the indications given of the issues the defence were likely to raise, the more accurately the prosecution and judge would be able to assess the value to the defence of the material. If the disputed material might prove the defendant’s innocence or avoid a miscarriage of justice, the balance came down firmly in favour of disclosing it. Where, on the other hand, the material in question would not be of assistance to the accused, but would in fact assist the prosecution, the balance was likely to be in favour of non-disclosure.

In R. v. Winston Brown ([1994] Cr.App.R. 191), the Court of Appeal referred to the duty of the trial judge to keep material under review and to the duty of prosecuting counsel to inform himself fully about the content of any “disputed material”, so that he was in a position to invite the judge to reassess the situation if appropriate. The court recognised that there was a limit to the scope of discovery required of the Crown however, and for example, there was no legal duty on the Crown to disclose material which was only relevant to the credibility of a defence witness. The House of Lords ([1998] A.C. 369), confirming the Court of Appeal decision, observed that:

“...the common law rules are concerned essentially with the disclosure of material which has been gathered by the police and the prosecution in the course of the investigation process for use in the case to be made for the Crown.”


Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 5-5;Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in 1941 and lives in Teteven. He was the executive director of ElpromEMT, a Stateowned company, against which bankruptcy proceedings were opened in 1997.

On 14 May 1997 the Teteven District Prosecutor’s Office opened criminal proceedings against the applicant and against the deputy director of ElpromEMT and a company employee.

On 3 June 1997 the applicant was charged with abuse of office and making false official documents, contrary to Articles 282 § 2 and 311 § 1 of the Criminal Code (“the CC”). It was alleged that, together with the deputy director, he had abused his managerial position during the period April 1996 – March 1997 and had occasioned losses to the company in order to secure a financial benefit for a private limited liability company in which his wife was a member. The alleged loss to ElpromEMT amounted to 23,302,275 old Bulgarian levs (BGL). It was also charged that to facilitate that offence the applicant had made false documents and had incited the deputy director and a company employee to make false documents.

On 6 June 1997 a prosecutor of the Lovech Regional Prosecutor’s Office ordered the suspension of the applicant from his position of executive director, on the grounds that the charges against him were for jobrelated offences and that there were sufficient grounds to believe that he could jeopardise the investigation if he remained in office.

On 20 June 1997 the investigator in charge of the case ordered an expert financial report, which was assigned to two former employees of ElpromEMT.

On 4 August 1997 counsel for the applicant requested to be allowed to consult the case file. The request was granted on 10 August.

A graphological report ordered earlier was ready on 18 September 1997.

On 25 September 1997 the applicant was questioned. Counsel for the applicant requested to be allowed to inspect the case file. The investigator allowed them to consult certain documents but refused access to the whole file.

On 16 October 1997 the expert financial report ordered on 20 June 1997 was ready.

On 20 October and 25 November 1997 the investigator ordered expert reports on the prices of certain items relevant to the investigation.

On 10 December 1997 the applicant was questioned and was allowed, together with his counsel, to consult certain documents in the case file, including the expert reports.

On 29 December 1997 counsel for the applicant requested the disqualification of one of the experts who had prepared the expert financial report. They argued, inter alia, that one of the experts had been chief accountant of ElpromEMT and had been dismissed for disciplinary reasons by the applicant, which cast doubt on his objectivity. The request was denied.

It seems that most of the witnesses in the case were questioned on dates between June and December 1997.

On 10 February 1998 the applicant was questioned. His request to be allowed to consult the case file was granted.

On 12 February 1998 counsel for the applicant again requested the disqualification of the experts who had prepared the expert financial report. They repeated their arguments in respect of the first expert and also averred that the other expert had been involved in the bankruptcy proceedings of ElpromEMT.

The same day the applicant was presented with the amended charges. These included aggravated embezzlement facilitated by the making of false official documents (Article 202 in conjunction with Article 311 of the CC), embezzlement (Article 201 of the CC), abuse of office (Article 282 of the CC), deliberately entering into contracts disadvantageous to the company he was managing (Article 220 of the CC) and making false official documents (Article 311 of the CC). It was alleged that between March 1996 and February 1997, together with the deputy director of ElpromEMT, he had embezzled company assets amounting to BGL 4,833,264.54, for the commission of which offence he had made false official documents, that in June 1995 he had misappropriated a trailer owned by ElpromEMT, that between March 1996 and February 1997, together with the deputy director, he had abused his office to secure a financial benefit for a private company, that between August 1996 and January 1997, together with the deputy director, he had deliberately made disadvantageous contracts between ElpromEMT and the same private company for which he had secured a financial benefit, and that in December 1994 he had made two false invoices for sums amounting to 365,000 German marks.

After the being charged the applicant was questioned in the presence of counsel. He refused to give explanations.

On 16 February 1998 the applicant and his counsel were allowed to consult the entire case file. The applicant objected to the expert reports and requested the disqualification of the experts. The investigator denied his requests and proposed to the prosecution that the applicant be indicted.

On 16 June 1998 counsel for the applicant requested that the case be remitted for additional investigation, arguing that this was necessary to rectify certain procedural violations.

On 9 July 1998 the Teteven District Prosecutor’s Office granted the request and referred the case back for investigation. It observed that the relevant circumstances about the relations between ElpromEMT and the private company which had allegedly benefited from it had not been fully elucidated and that the investigator had erred in the legal qualification of the offences. It gave specific instructions as to the facts which had to be established. It further expressed the view that the applicant’s request for the disqualification of one of the experts who had prepared the expert financial report was wellfounded, since he had been dismissed by the applicant for disciplinary reasons and the applicant had good reasons to fear his lack of objectivity. It was therefore necessary to prepare a new expert report. In addition, it asserted that it was necessary to charge the applicant anew, since the original presentation of the charges against him had not been specific enough. Finally, it noted that the applicant’s counsel had also been ElpromEMT’s counsel in the bankruptcy proceedings against the company, which raised certain doubts as to a potential conflict of interests. It was therefore necessary to establish whether the applicant had reason to doubt the loyalty of his counsel, because if that issue was not elucidated, the applicant could use it as an argument that his defence rights had been infringed.

On 4 November 1998 the investigator, complying with the instructions of the prosecution, ordered a new financial report.

On 26 April 1999 the Teteven District Prosecutor’s Office, finding that the investigator in charge of the case had not carried out any of its instructions apart from ordering a new financial report, replaced him with a new one.

On 1 June 1999 the new investigator proposed to discontinue the proceedings, on the ground that the charges against the applicant were not supported by sufficient evidence.

On 7 June 1999 the Teteven District Prosecutor’s Office rejected the proposal and referred the case back for additional investigation. It held that the evidence was not sufficient because the investigation had not been performed thoroughly.

On 9 June 1999 the investigator allowed the applicant to consult the case file.

On 13 June 1999 the financial report ordered on 4 November 1998 was ready.

On 7 January 2000 counsel for the applicant informed the investigator that she would be unavailable until 18 January.

On 19 January 2000 the investigator charged the applicant anew. The charges included, apart from the previous ones, a new charge under Article 219 of the CC (mismanagement resulting in loss for the company). After charging the applicant the investigator questioned him and allowed him and his counsel to consult the case file.

On 31 January 2000 the investigator recommended that the applicant be indicted solely under Article 219 of the CC.

On 14 February 2000 the Teteven District Prosecutor’s Office decided to discontinue the investigation in respect of the charges under Articles 202 (aggravated embezzlement), 282 (abuse of office) and 311 (making false official documents) of the CC. On 23 March 2000 the Lovech Regional Prosecutor’s Office overturned that decision and referred the case back to the investigator. On appeal by the investigator on 6 April 2000 the Veliko Tarnovo Appellate Prosecutor’s Office affirmed the overturning.

On 12 May 2000 the Lovech Regional Prosecutor’s Office decided to drop the charges under Article 219 of the CC. Its decision was overturned by the Veliko Tarnovo Appellate Prosecutor’s Office on 21 July 2000 and the case was referred back to the Lovech Regional Prosecutor’s Office with instructions to carry out certain investigative steps (inter alia, to order an expert report) and elucidate certain facts relating to transactions carried out by ElpromEMT during the period 199697.

On 4 August 2000, when the case was back at the investigation stage, the investigator ordered an additional expert report.

On 8 June 2001 the applicant’s counsel informed the investigator that she would be unavailable until 12 June.

On 12 June 2001 the investigator allowed the applicant and his counsel to consult the case file.

On 19 June 2001 the investigator recommended that the applicant be indicted under Articles 219 (mismanagement resulting in loss), and 311 (making false official documents) of the CC.

On 20 July 2001 the Lovech Regional Prosecutor’s Office decided to drop the charges under Article 219 of the CC and to transfer the case to the Teteven District Prosecutor’s Office for continuation of the proceedings under the remaining charges.

On 5 September 2001 the Teteven District Prosecutor’s Office remitted the case for additional investigation, holding that the investigative steps carried out up until then had not established all relevant circumstances.

On 24 September 2001 the investigator ordered a new expert report, assigning it to new experts.

On 26 February 2003 the applicant and the prosecution entered into a pleabargain agreement. The criminal proceedings against him were apparently discontinued soon after.

On 3 June 1997 the applicant was put under house arrest by an investigator who saw him in person and questioned him.

On 12 June 1997 the applicant lodged with the Teteven District Prosecutor’s Office a request to be released on bail. On 16 June 1997 the Teteven District Prosecutor’s Office denied the applicant’s request. The applicant appealed to the Lovech Regional Prosecutor’s Office. The appeal was dismissed by an order of 8 July 1997. The applicant appealed to the Chief Prosecutor’s Office. On 3 September 1997 the Chief Prosecutor’s Office dismissed the appeal. The applicant lodged an appeal with the Head of the Investigations Division of the Chief Prosecutor’s Office. On 31 October 1997 the Head of the Investigations Division dismissed the appeal.

In the meantime, on 7 August and 2 September 1997, the Teteven District Prosecutor’s Office had denied two requests by the applicant to be allowed to leave his home for one day. Another request by the applicant to be allowed to leave his home for one day was denied on 29 October 1997. On 12 November 1997 the Teteven District Prosecutor’s Office allowed the applicant to leave his home for one day.

On 19 November 1997 the Teteven District Prosecutor’s Office denied a renewed application for release by the applicant.

On 4 December 1997 the applicant submitted a new request for release on bail. On 16 December 1997 the Teteven District Prosecutor’s Office granted bail, setting the amount at BGL 3,000,000. On an unspecified date in December 1997 the applicant paid the amount of the bail and was released from house arrest.

By Article 146 of the Code of Criminal Procedure (“the CCP”), a measure to secure appearance before the competent authority has to be imposed in respect of every person accused of having committed a publicly prosecutable offence. One such measure is house arrest.

Article 151 of the CCP, as in force at the material time, defined house arrest as follows:

“House arrest shall consist in prohibition for the accused to leave his home without permission by the relevant authorities.”

In its interpretative decision no. 10/1992 (реш. № 10 от 27 юли 1992 г. по конституционно дело № 13 от 1992 г., обн., ДВ брой 63 от 4 август 1992 г.) the Constitutional Court held as follows:

“... [H]ouse arrest is also a form of detention and [constitutes] an interference with the inviolability [of the person].”

At the relevant time and until 1 January 2000 house arrest at the pretrial stage of criminal proceedings could be ordered by an investigator or by a prosecutor. The investigator or prosecutor was not under an obligation to interview the accused in person when ordering house arrest. The role of investigators and prosecutors under Bulgarian law has been summarised in paragraphs 2529 of the Court’s judgment in the case of Nikolova v. Bulgaria ([GC], no. 31195/96, ECHR 1999II).

At the relevant time the CCP did not provide for judicial review of house arrest. Thus, the only possibility for a person put under house arrest was to apply to a prosecutor who could order his release. If the prosecutor refused to release the person under house arrest, he or she could appeal to a higher prosecutor (Articles 181 and 182 of the CCP).

The CCP was amended with effect from 1 January 2000 and at present provides, in the newly introduced paragraph 2 of its Article 151, for full initial and subsequent judicial review of house arrest.

On 21 March 1997 the Assembly of the Criminal Divisions of the Supreme Court of Cassation decided to request the Constitutional Court to rule on the compatibility of Article 152 of the CCP, governing pretrial detention, with, inter alia, Article 5 of the Convention. It reasoned that by virtue of Article 5 § 4 of the Constitution the Convention was incorporated into Bulgarian law and that all statutory provisions should therefore be in compliance with it. It also stated that when deciding cases before them the Bulgarian courts should take into account the caselaw of the European Court of Human Rights (опред. № 1 от 21 март 1997 г. по н.д. № 1/ 1997 г. на ОСНК на ВКС).

Section 2 of the State Responsibility for Damage Act of 1988 („Закон за отговорността на държавата за вреди, причинени на граждани“) provides, as relevant:

“The State shall be liable for damage caused to [private persons] by the organs of ... the investigation, the prosecution, the courts ... for unlawful:

pretrial detention ..., if [the detention order] has been set aside for lack of lawful grounds[.]”

The reported caselaw under section 2(1) of the Act is scant. However, all judgments in which State liability was found to arise under this provision related specifically to pretrial detention under Article 152 of the CCP, not house arrest under Article 151 of the CCP or any other form of deprivation of liberty ordered in the context of criminal proceedings (реш. № 859/ 2001 г. от 10 септември 2001 г. г.д. № 2017/2000 г. на ВКС, реш. № 978/2001 г. от 10 юли 2001 г. по г.д. № 1036/2001 г. на ВКС). The reported case-law also suggests that the terms “unlawful” and “lack of lawful grounds” refer to unlawfulness under domestic law.

By section 2(2) of the Act, in certain circumstances a claim may be brought for damage occasioned by the “unlawful bringing of criminal charges”. Such a claim may be brought only where the accused person has been acquitted by a court or the criminal proceedings have been discontinued by a court or by the prosecution authorities on the ground that the accused person was not the perpetrator, that the facts did not constitute a criminal offence or that the criminal proceedings were instituted after the expiry of the relevant limitation period or despite a relevant amnesty.

Persons seeking redress for damage occasioned by decisions of the investigating and prosecuting authorities or the courts in circumstances falling within the scope of the Act have no claim under general tort law as the Act is a lex specialis and excludes the application of the general regime (section 8(1) of the Act; реш. № 1370/1992 г. от 16 декември 1992 г., по г.д. № 1181/1992 г. на ВС ІV г.о.). The Government have not referred to any successful claim under general tort law in connection with unlawful house arrest.


The first applicant, Mr Shanawar Hussain, and the second applicant, his daughter C., are respectively Pakistani and Norwegian nationals born in 1960 and 1991 and living in Lahore, Pakistan, and Lørenskog, Norway. They are represented before the Court by Mr Knut Rognlien, a lawyer practising in Oslo.

The facts of the case, as described mainly in the judgments of the national courts, may be summarised as follows.

The first applicant arrived in Norway in 1976 and was granted a temporary residence permit for education purposes. In 1981 he was granted a residence permit for an indefinite duration.

According to the first applicant he had met the second applicant’s mother at the end of 1983. They had established a relationship as from the autumn of 1984, had got engaged in 1985 and had planned to marry in July 1987, but this did not materialise as Mr Hussain was detained on remand in May 1987 on suspicion of drug offences.

On 19 February 1988 the Eidsivating High Court (lagmannsrett) convicted the first applicant of the possession and attempted sale of approximately 1 kilo of heroin. It deemed the heroin to have been of a particularly high degree of purity and noted that one user had died. While the first applicant's replies to the charges had said little more than the bare minimum, the High Court did not find it established from where he had received the drugs or what role he had played in the importation and acquisition of the drugs. However, although he had submitted that he had been put under strong pressures and had reluctantly received the heroin in order to store it, the High Court did not find that his role had been as modest as he had claimed. He had failed to explain why, in defiance of what he described as an order, he decided to sell a large part of the drug to one of his co-accused and to keep another part. It was further noted that in connection with a delivery of heroin by the first applicant, one of his co-accused in the trial had come to the agreed place with one other co-accused as a bodyguard. In view of the particularly serious nature of the offence, the High Court sentenced the first applicant to 10 years' imprisonment.

On 4 January 1989 the Oslo Police decided to expel the first applicant. On appeal, the latter decision was upheld by the Aliens Directorate (Utlenningsdirektoratet) on 5 May 1989. He subsequently requested that the expulsion order be altered, but the Aliens Directorate and the Ministry of Justice, in decisions dated respectively 16 December 1993 and 12 January 1994, refused the request.

The first applicant and his wife were married at Ullersmo prison in June 1989, i.e. after the applicant's conviction and sentence to 10 years' imprisonment and the decision to expel him from Norway. Two daughters were born to them, the second applicant, born in 1991, and S., born in August 1995.

While serving his prison sentence the first applicant had extensive contact with his wife and the second applicant. Following his release in January 1994, the first applicant lived with his family for 1 year until 12 January 1995, when he was expelled from Norway to Pakistan. His wife and the second applicant accompanied him to Pakistan, but returned after 1 month. The first applicant was twice granted a visa to enter Norway in order to attend the court proceedings, but was denied a visa in connection with S.'s birth. During the winter of 1995 to 1996, his wife and two children lived with him for 2 months in Pakistan.

A medical certificate of 22 October 1996 issued by a paediatrician states that, since the second applicant was a baby, she had suffered from atopical eczema causing her nuisance particularly during spring, summer and autumn, and requiring that her entire body be treated with moistening cream every day and with oil baths. She was allergic to milk and was taking substitute milk products. She was also allergic to eggs and pollen. She had asthma and had experienced asthma fits serious enough nearly to require hospitalisation.

According to certain statements dated 23 December 1994 and 23 February 1996 by personnel in charge of the second applicant's kindergarten, the first applicant had been present and actively took part in her care; she had said that she missed her father and there was a clear risk that her separation from him would have negative psychological consequences for her.

On 8 November 1994 the City Court (byrett) rejected the first applicant's appeal against the Ministry's above-mentioned decision of 12 January 1994. He then appealed to the High Court, which, on 14 August 1995, upheld the City Court's judgment. He further appealed to the Supreme Court (Høyesterett) which, in a judgment of 26 November 1996, by 3 votes to 2, upheld the High Court's conclusion on the merits but overturned the lower courts' decisions ordering him to pay legal costs.

In its judgment the Supreme Court considered, inter alia, whether the expulsion would be consistent with Norway's obligations under Article 8 of the Convention, as interpreted and applied in a number of cases by the Convention institutions, in particular whether the measure was necessary in a democratic society, which the first applicant disputed. Mr Justice Dolva stated on behalf of the majority:

“The ground for the expulsion is the very serious drug offence of which Mr Hussain has been found guilty. ...

Mr Hussain was convicted under Article 162 (3), cf. (1), of the Penal Code for serious narcotics offences relating to a very large quantity of drugs. The maximum penalty was 15 years' imprisonment, while the minimum was 3 years. It was thus a very serious offence of which he was found guilty and the penalty imposed was 10 years' imprisonment, of which 6 years and 8 months had been served. Mr Hussain was found guilty of the possession and attempted sale in respect of about 1 kilo of heroin of a high degree of purity. It is stated in the High Court’s judgment that each gram of the product could be divided into 30 to 40 doses; so that the substance posed a very great danger of being commercialised. ...

… In the present case, there is no information to the effect that Mr Hussain has been involved in other criminal offences. This is relevant to the assessment but is overshadowed by the seriousness of the offence of which he has been found guilty.

I now turn to the arguments submitted against expulsion.

Even though it has been conceded that Mr Hussain’s own interests would not on their own suffice to make the expulsion incompatible with the Convention, it must be relevant that he has resided in Norway from the age of 16 and has received an education and worked here. Until his detention on remand he had lived here for 11 years. It may be mentioned that it was only after he was detained that he applied for Norwegian citizenship and that his application was refused. He has maintained links with his family in Pakistan during his visits to the country in 1979, 1982, 1986 and 1987. …

The circumstances, which most strongly militate against expulsion, are those related to his family life with his spouse and two daughters. The marriage was concluded while Mr Hussain was serving his prison sentence and after the police had ordered the expulsion. Nevertheless, there is agreement that family life was established before he was detained on remand. The couple’s eldest child, [the second applicant], who is now 5½ years old, was born while her father was serving his sentence but, according to the information available, she has had contacts with him during visits and home-leave and the family lived together for 1 year from the applicant’s release until his expulsion was effected. As already mentioned, [the second applicant] has considerable health problems related to asthma and allergies. Like the High Court, I find it established that the maintenance of the expulsion order would split the family since, because of [the second applicant], it is not expected that the mother and the daughters will settle in Pakistan. The possibilities of visits will be limited - in Pakistan, because of [the second applicant’s] health - and in Norway, because Mr Hussain's expulsion is made permanent. It is evident that this will constitute a considerable burden to them all, in particular to [the mother] who will be alone in assuming the care of the daughters, one of whom is in particular need of care.

It has been specifically claimed that in Pakistan it will not be possible to bring up the daughters in accordance with the mother’s Christian faith. Reference is made to Article 9 of the Convention, Article 2 of Protocol No. 1 and Article 18 §§ 1 and 2 of the International Covenant on Civil and Political Rights. I will not consider those matters more closely since I take it that it is not expected that the mother and the daughters will move to Pakistan. ...

The appellant party has referred, inter alia, to the report recently given by the Commission in the case of Mehemi v. France and has submitted that to a high degree it supports his views. ...

As regards this decision, I should like to point out that second generation immigrants often raise particular issues, whereas under Norwegian law expulsion may not be effected with respect to persons who are born in Norway and have lived there continuously. Mr Hussain was 16 years old when he came here for educational purposes and has maintained contacts with Pakistan.

The way I interpret the existing case-law is that in cases of such serious narcotics offences as this, it falls within the State’s margin of appreciation to expel foreign nationals, even though it would seriously affect the person expelled and his family. …

In the final assessment I cannot see that in the case under consideration the authorities’ decision to expel constitutes a disproportionate measure against the scourge of drug trafficking. This was clear in 1989 when the expulsion was decided by the police and the Aliens Directorate. The interest in protecting family life has nevertheless been given greater weight in the subsequent refusals to alter the expulsion order, the last refusal being issued by the Ministry of Justice on 12 January 1994. The matter was then considered on the basis of the relevant circumstances obtaining at that time. Nevertheless, having regard to the serious drug offence in respect of which Mr Hussain has been found guilty, I consider that the interest of protecting family life does not suggest that expulsion would be disproportionate and incompatible with the Convention, despite the considerable burden it entails. It is, however, a very difficult balancing of interest with which we are faced here.”

In his dissenting opinion, Mr Justice Lund concluded on behalf of the minority that the expulsion order must be declared unlawful (ugyldig) as being disproportionate. His reasoning may be summarised as follows. Although the seriousness of the offence was a consideration that weighed heavily and the interests of Mr Hussain could not on their own justify declaring the expulsion order unlawful, the consequences for the family ought to be decisive in this case. The situation for the first applicant's wife and the consequences for their marriage were almost identical to those described in paragraphs 78 and 79 of the Beldjoudi v. France judgment of 26 March 1992 (Series A no. 234-A). In the present case the interests of minor children were also at stake. Because of the second applicant's illness it was excluded that the wife would move to Pakistan. There were great difficulties involved in maintaining family life by means of relatively short, occasional visits by the family to Pakistan. While it was very likely that the spouses sooner or later would be forced to divorce, the interest of avoiding divorce weighed more heavily when, as here, they had children. Moreover, there was obviously a greater risk than normal that the contacts between the father and the children would be damaged. A child in as much need of care as the second applicant would have a particular need for maintaining close contact with both parents. The mother, who alone assumed the responsibility for the two daughters, had a strong need for the father’s help in caring for the children.


Mrs Moshammet Nessa, is a Bangaladeshi national, who was born in 1953 and lives in Helsinki, Finland. She is complaining on behalf of her daughter, Mrs Sahera Sultana, and her grand-daughter, Ms Razia Sultana. They were born in 1972 and 1997, respectively, and live in Bangladesh. Mrs Nessa and Sahera and Razia Sultana are hereafter referred to as “the applicants”. They are represented before the Court by Ms Kristiina Bhuiyan.

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

Sahera Sultana arrived in Finland on 18 February 1997, under a temporary residence permit granted for the period from 2 January 1997 until 31 July 1997. The residence permit was issued for the purpose of university studies. She immediately, on 26 March 1997, applied for a permanent residence permit for business activities and studies.

Sahera Sultana’s daughter, Razia, was born on 1 April 1997 in Finland.

The Directorate of Immigration (ulkomaalaisvirasto, utlänningsverket) issued a temporary residence permit for the period from 1 December 1997 until 1 December 1999 for the purpose of studies.

Sahera Sultana was no longer registered with the university for the term of 1999-2000. The applications of Sahera and Razia to be granted a residence permit were refused by the Directorate of Immigration on 29 May 2000. It noted that Sahera, who had been granted a residence permit in Finland for the period of 1996-2000 on the basis of her studies in Finland, had returned to Bangladesh after having attended only a few courses at the University of Technology. Sahera argued that she had been unable to study because of her pregnancy. The Directorate considered that Sahera, who had however not been hindered by her pregnancy from founding a business together with one of her brothers, did not have such family ties in Finland that she would be entitled to stay there. Taking into account that Sahera’s husband lived in Bangladesh and that Sahera could continue her business from there (the business idea was to import goods from Bangladesh to Finland), her request was refused. Accordingly, Razia was not granted a residence permit either. Sahera and Razia travelled to Bangladesh in September 2000.

On 9 August 2000 Sahera’s parents arrived in Finland as visitors with a sixty-day tourist visa. They were later granted a residence permit on a humanitarian basis as two of their sons had already stayed in Finland for over twelve years and had been granted Finnish citizenship. The parents were both also diagnosed with severe chronic illnesses (the father with cancer and the mother with kidney failure) which could not be treated effectively in their country of origin.

Sahera and Razia appealed to the Administrative Court of Helsinki, arguing that most of their family lived in Finland and that Sahera wished to continue her studies which she had not yet finished. Their appeal was refused by the Administrative Court on 25 September 2001. The court noted that Sahera Sultana had originally arrived in Finland because of her studies but that the reason for her visit had changed into business and family ties during her stay. Taking into account that Razia was only four years old, the Administrative Court did not find that the interests of the child rendered the refusal of the residence permit unreasonable.

Sahera and Razia applied for leave to appeal from the Supreme Administrative Court on the basis of new circumstances as Sahera’s mother, Mrs Nessa, had fallen seriously ill in Finland, suffering from kidney failure, requiring dialysis three times a week. On 15 May 2002 the Supreme Administrative Court refused Sahera and Razia leave to appeal.

Sahera Sultana gave birth to her second daughter in Bangladesh in December 2001.

In September 2001 Sahera and her family applied for visas to enter Finland. The requests were refused on 18 September 2001, with reference to section 11 of the Aliens Act (ulkomaalaislaki, utlänningslagen). The visa application indicated that visas were not sought for “travel or other comparable short-term stay in the country” but rather for long-term stay for which a residence permit should be applied for instead. On 12 November 2001 the Embassy advised Sahera and her family to apply for residence permits, if their purpose was not to stay in the country for a short time only.

On 8 June 2002 Sahera submitted to the Embassy applications for a residence permit for herself and her family. The family was interviewed at the Finnish Embassy on 9 July 2002 and the difference between a residence permit application and a visa application was explained to them.

On 10 July 2002 Sahera informed the Embassy that they wished to withdraw the residence permit applications and apply instead for a short-term visa. Subsequently, the fees they had paid (amounting to USD 236) for the residence permit applications were returned by the Embassy.

Sahera and her family filed new visa applications on 10 July 2002. These applications were also refused and the decisions on refusal were mailed to the persons concerned on 23 July 2002. The reasons for the refusals were the same as in respect of the first visa applications. However, having received several petitions, the Embassy reviewed the visa applications and sent Sahera a letter on 16 August 2002, offering her and her younger child a possibility to have a thirty-day tourist visa for Finland for the purpose of travelling to see their sick mother/grandmother. Razia was not offered a visa. Since then Sahera has not been in contact with the Embassy and nor has she replied to the letter or filed a visa application as suggested.

On 22 September 2002 Sahera’s brother sent the Embassy an e-mail message, according to which his family was not able to accept that visas should be issued only to her sister and her younger child, since in their opinion the whole family should travel together.

Since Sahera’s and her family’s earlier applications for visas had been refused by appropriate decisions, and she had herself withdrawn the residence permit applications, they have at present no residence permit or visa applications pending.

According to Section 11 of the Aliens Act (639/1993), a visa means a permit or a decision issued for tourist travel or comparable short-term visit on the basis of which an alien may enter Finland, provided that he fulfils the other entry conditions.

Under Section 13 of the Aliens Act, a visa must be issued by a Finnish diplomatic representation or consulate abroad.

Section 18b (537/1999) of the Aliens Act defines the family members to whom a residence permit may be issued. Such family members include the spouse of the alien residing in Finland as well as his or her children under the age of 18 for whose custody he is responsible. Should the alien residing in Finland be under the age of 18, his custodian is considered a family member to whom a residence permit may be issued on the basis of family ties.

Section 18c (537/1999) of the Aliens Act provides for a possibility to issue a residence permit on the basis of family ties.

According to Section 19, subsection 2 (537/1999) of the Aliens Act, residence permits on the basis of family ties shall be issued by the Directorate of Immigration.

According to Section 58 of the Aliens Act, an appeal may be lodged within 14 days to the Supreme Administrative Court against the Directorate of Immigration’s decision not to grant a residence permit.

According to Section 60 of the Aliens Act, there is no appeal against decisions which are not mentioned in Sections 55, 57 or 58 of the Aliens Act. Accordingly, there is no right of appeal against the decision not to grant a tourist visa.


Remainder inadmissible;No violation of Art. 8

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

The applicants are father and son. The first applicant was born in 1969 and lives in Ribnica. The second applicant was born in 2005 and lives in Ljubljana.

The first applicant was in a relationship with S.Ć. The relationship ended four months before the second applicant was born. The first applicant acknowledged the child by signing a statement on paternity with the Ljubljana Administrative Unit (Upravna enota Ljubljana). The second applicant's mother S.Ć. never gave her consent to the above-mentioned statement.

On 10 February 2006 the first applicant brought an action with the Ljubljana District Court (Okrožno sodišče v Ljubljani) for custody and determination of paternity. He also lodged a request for an interim measure ensuring him contact with his son pending the outcome of the main proceedings. Moreover, he requested the appointment of a special representative to represent the second applicant and to be exempted from paying court fees.

On 17 February 2006 the Ljubljana District Court issued a decision rejecting the request for an interim measure. The court stated that the question of paternity should be resolved before such measure could be applied. The first applicant appealed.

On 5 March 2006 and 5 April 2006 the first applicant lodged two requests for a hearing to be set and for the matter to be resolved promptly.

On 12 April 2006 the Ljubljana Higher Court (Višje sodišče v Ljubljani) issued a decision upholding the appeal and remitting the question of provisional contact arrangements for re-examination.

On 9 May 2006 the first applicant lodged a supervisory appeal (nadzorstvena pritožba) with the Ministry of Justice (Ministrstvo za pravosodje), complaining that the judge's work in the case was slow and ineffective.

On 10 May 2006 the first applicant lodged preliminary submissions and a reply to the counterclaim lodged by S.Ć. on 21 March 2006.

On 17 May 2006 Ljubljana District Court issued the first interim contact order allowing the first applicant to have contact with the second applicant once a week for two hours. The order was immediately enforceable, as appeals do not stay the enforcement of such orders.

S.Ć. lodged an objection.

On 24 May 2006 the Ljubljana Moste Polje Welfare Authority (Center za socialno delo Ljubljana Moste Polje) issued a decision appointing a curator ad litem to represent the second applicant.

On 25 May 2006 the Ljubljana District Court sent a report to the Ministry regarding the progress in the case following the first applicant's supervisory appeal.

On 2 June 2006 the first applicant lodged an appeal against the order on provisional contact arrangements issued on 17 May 2006. He claimed that S.Ć. and her father had prevented him from visiting the second applicant and had threatened him with physical violence. He requested the first-instance court to modify the interim contact order concerning the enforcement by setting a fine in the event of non-compliance to ensure contact with the second applicant.

On 8 June 2006 the first applicant lodged a request for priority treatment, claiming that he had again been prevented from seeing the second applicant. He also lodged a complaint (ustna ovadba) with the police.

On 14 June 2006 Ljubljana District Court set a hearing for 5 July 2006. The first applicant requested that the hearing be set earlier.

On 15 June 2006 Ljubljana District Court issued a decision exempting the first applicant from paying court fees.

On 16 June 2006 the first applicant requested the hearing to be rescheduled, which was refused.

On 5 July 2006 the Ljubljana District Court held a hearing regarding provisional contact arrangements and the objection of S.Ć. to the order of 17 May 2006. The court issued a new contact order of its own motion pending the resolution of the case. The court allowed contact between father and son twice a week under the supervision of a social worker. It also set out a fine of 50,000 Slovenian tolars (SIT) (approx. 200 euros (EUR)) to be imposed in the event of non-compliance. On the same day a partial judgment was issued establishing that the first applicant was indeed the biological father of the second applicant. The parents also resolved the issue of alimony by signing a court settlement.

On 13 July 2006 the first applicant lodged an appeal challenging both interim contact orders (see paragraphs 12 and 20 above) by requesting more frequent contact.

On 6 September 2006 Ljubljana Higher Court quashed both appeals.

On 27 November 2006 the first applicant lodged a request for a new interim contact order, requesting more frequent contact.

On 6 December 2006 Ljubljana District Court rejected the first applicant's request and issued an order of its own motion, allowing contact under new terms. The court allowed contact twice a week without supervision and every other Saturday and fixed an arrangement for Christmas holidays. The court set a fine of SIT 50,000 (approx. EUR 200) in the event of non-compliance. S.Ć. lodged an objection.

On 4 and 5 January 2007 the first applicant lodged two requests with Ljubljana District Court for imposition of a penalty or use of physical force to enforce the order, since S.Ć was not respecting the interim contact order and was obstructing the applicant's visiting rights. The first applicant stated that the visits had been obstructed on nine occasions between 16 December 2006 and 2 January 2007. It transpires from the case-file that the second applicant was frequently ill between December 2006 and February 2007 and was hospitalized on 26 February 2007.

On 7 February 2007 the first applicant lodged a supervisory appeal in accordance with the provisions of the Act on the Protection of the Right to a Trial without Undue Delay (“the 2006 Act”).

On 14 February 2007 Ljubljana District Court held a hearing regarding contact arrangements and rendered a decision, rejecting S.Ć.'s objection to the decision issued on 6 December 2006; the decision therefore remained in force (see paragraph 24 above). Both parties appealed.

On 27 February 2007 Ljubljana District Court issued a decision appointing an expert in psychology in order to determine which party to the proceedings should be granted custody. On the same day, following an unsuccessful contact, the first applicant lodged a complaint with the police against S.Ć. accusing her of abduction of a minor. It transpires from the case-file that the first applicant lodged at least ten such complaints during the proceedings.

On 2 March 2007 Ljubljana District Court issued a decision, rejecting the first applicant's requests from 4 and 5 January 2007 as unsubstantiated. The court found that the contact visits had been obstructed or prevented mainly because of the child's illness, and that the first applicant had not made an attempt to reschedule as set out in the interim order. The first applicant appealed.

On 7 March 2007 the supervisory appeal was rejected as unfounded (see paragraph 26).

The second applicant was again hospitalized between 7 May 2007 and 10 May 2007.

On 9 May 2007 Ljubljana Higher Court issued a decision quashing the decision of 6 December 2006 (see paragraphs 24 and 27 above) and rejected the first applicant's request for a new interim contact order. The court found that despite the progressing relationship between father and son allowing contacts without supervision was premature and such changes should be done more gradually. The order of 5 July 2006 was now again in force.

On 25 May 2007 Ljubljana District Court received the expert's opinion.

On 31 May 2007 the first applicant lodged a new request for an interim contact order.

On 4 June 2007 Ljubljana District Court issued an interim contact order of its own motion allowing more frequent contact visits following the favourable expert opinion. A fine for non-compliance was set. S.Ć. lodged an objection.

On 21 June 2007 Ljubljana District Court issued a decision rejecting the objection lodged by S.Ć. to the interim contact order.

On 16 July 2007 S.Ć. lodged an appeal against the decision of 4 June 2007, claiming that the order was based on an expert opinion on which she had not been given the opportunity to comment.

On 16 July 2007 the court received a report by the Moste-Polje Medical Centre, from which it was evident that both parents had been offered assistance by the department of psychology. S.Ć. had attended two meetings, the first applicant none.

It transpires from the case-file that the second applicant was frequently ill between June 2007 and August 2007 and again hospitalized on 24 July 2007.

On 17 October 2007 Ljubljana Higher Court upheld the appeal and remitted the case for re-examination (see paragraph 37 above).

On 28 November 2007 Ljubljana District Court issued a decision requesting the appointed expert to modify the report.

On 30 November 2007 the first applicant lodged a request for a hearing to be set and a new request for an interim contact order.

On 15 February 2008 Ljubljana District Court received the modified expert opinion.

On 17 March 2008 the first applicant lodged a supervisory appeal under the 2006 Act.

On 2 April 2008 the supervisory appeal was rejected as unsubstantiated.

On 4 April 2008 the first applicant lodged a new request for an interim contact order and a request for a hearing to be set.

On 10 April 2008 the first applicant's representative lodged a motion for a deadline under the 2006 Act.

On 17 April 2008 the motion for a deadline was rejected.

On 21 April 2008 the first applicant personally lodged a motion for a deadline.

On 13 May 2008 the motion for a deadline was upheld and the case was given priority treatment.

On 18 May 2008 the first applicant lodged an urgent request for the issuing of a new interim contact order.

On 22 May 2008 the court issued a new interim contact order of its own motion, allowing more frequent contact visits without supervision and imposing a fine of EUR 300 for non-compliance. S.Ć. lodged an objection.

On 11 June 2008 the case was reassigned to a new judge due to the previous judge's extended sick leave.

On 3 July 2008 a hearing was held and a new interim contact order was issued, setting a fine for non-compliance and further modifying contact arrangements. Both parties waived the right to appeal.

On 21 October 2008 S.Ć. lodged a preliminary submission requesting an additional expert opinion, whereby it could be established whether there had been physical violence against the second applicant by the first applicant. She had also informed the Welfare Authority about her concerns.

On 23 October 2008 the first applicant requested amendments to the new interim contact order.

On 4 November 2008 the first-instance court rejected both requests and found it unnecessary to change the contact arrangements. The court acknowledged that the relations between the parties presented a problem, since there had been frequent accusations of a criminal nature on both sides. Following the report by the Welfare Centre, the court assessed that the circumstances are not of such nature that the contact arrangements should be altered.

On 12 November 2008 a main hearing was held regarding custody. The first-instance court tried unsuccessfully to reach a settlement between the parties. The court also ordered the expert to supplement the opinion and establish whether there is any reason the contacts between father and son should not take place. A new interim contact order was issued setting new contact arrangements and a fine for non-compliance. S.Ć. appealed.

On 4 March 2009 a hearing was held at which the first applicant submitted a request for a new interim contact order. The court issued a new order slightly modifying the provisional contact arrangements until the next main hearing, fixed for 1 July 2009. Based on the supplemented expert opinion the court slightly extended the contacts. A fine in the event of non-compliance was set again.

On 1 July 2009 a hearing was held. Ljubljana District Court issued a judgment whereby the child was placed in the care of S.Ć. and contact arrangements were set. The first applicant stated that the contact visits had been carried out in line with the last interim decision. Both parents stated that the contact visits had gone ahead satisfactorily in the preceding months. Pending final resolution of the case the court issued a new interim order establishing in detail the contact arrangements for the summer and public holidays.

On 14 August 2009 the first applicant lodged an appeal against the first-instance judgment.

On 14 December 2009 Ljubljana Higher Court rejected the appeal and upheld the first-instance judgment.

For the description of the relevant domestic law see Eberhard and M. v. Slovenia (nos. 8673/05 and 9733/05, 24 June 2008, §§ 57-66).


The applicant, Osman Kinsiz, is a Turkish national, who was born in 1949 and lives in Istanbul. He was represented before the Court by Mr Kocak, a lawyer practising in Istanbul.

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

In 1992, the General Directorate of National Roads and Highways (Devlet Karayolları Genel Müdürlüğü), a state body responsible, inter alia, for motorway construction, expropriated a plot of land belonging to the applicant in Istanbul. A committee of experts assessed the value of the plot of land and this amount was paid to the applicant when the expropriation took place.

On 22 October 1996, following the applicant’s request for increased compensation, the Pendik Civil Court of General Jurisdiction awarded him an additional compensation of 451,254,848 Turkish liras (TRL) plus an interest at the statutory rate of 30% per annum. On 31 March 1998 the Court of Cassation upheld the decision of the first-instance court. The due amount which was 837,196,000 Turkish liras (TRL) including the interest, was paid to the applicant on 26 May 1998.

Under Law no. 3095 of 4 December 1984 the rate of interest on overdue State debts was set at 30% per annum. As of 1 January 1998 the statutory rate of interest was increased to 50%. The statutory rate of interest was set at the compound interest rate, namely 60% as of 1 January 2000.

A description of further relevant domestic law may be found in the Aka v. Turkey, judgment of 23 September 1998, Reports of Judgments and Decisions 1998-VI, §§ 17-25; Akkuş v. Turkey, judgment of 9 July 1997, Reports 1997-IV, §§ 13-16.


Violation of Art. 6-1;Not necessary to examine Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award

The applicant was employed by the District National Committee (Okresný národný výbor) in Bardejov. In 1988 he was dismissed for breach of discipline. Subsequently courts at two levels of jurisdiction declared the dismissal unlawful. Their decisions became final on 2 August 1991.

In 1990, while the above proceedings were pending, the national committees ceased to exist ex lege, and their liquidation formally ended on 31 July 1991. The national committees were replaced by district offices (okresné úrady) which were not formally their legal successors.

On 2 September 1991 the Bardejov District Office gave notice to the applicant pursuant to Section 46 (1) (b) of the Labour Code. The dismissal became effective on 31 December 1991. The applicant challenged this decision. He argued, in particular, that the dismissal was unlawful and claimed compensation for damage caused by the termination of his contract of employment.

On 16 July 1993 the Bardejov District Court (Okresný súd) heard the parties and dismissed the applicant’s action.

The applicant appealed. He alleged that the governmental regulations relating to liquidation of the former national committees were unlawful, that he had become an employee of the District Office in Bardejov after his dismissal in 1988 had been declared unlawful on 2 August 1991, and that the District Office had paid his salary until the end of 1991.

On 8 March 1994 the Košice Regional Court (Krajský súd) heard the parties. The case was adjourned and the representative of the defendant was requested to submit the Government’s regulation of 24 November 1990 concerning the practical aspects of liquidation of the national committees. On 14 April 1994 the applicant complained to the Regional Court that it should have decided on the case on 8 March 1994 as it had had all relevant evidence before it. Another hearing before the Regional Court was held on 26 April 1994. The parties were acquainted with documentary evidence submitted by the representatives of the defendant. The applicant requested the exclusion of the Regional Court judges.

On 7 July 1994 the Košice Regional Court (Krajský súd) quashed the first instance judgment and ordered the District Court to take further evidence. The decision stated that the first instance court had not established with sufficient certainty whether or not the applicant had been employed by the District Office in Bardejov between 2 August 1991 and his second dismissal. In particular, the Regional Court considered it necessary to establish whether the applicant had received a salary, or compensation therefor, during the period in question, that is, whether the sums which he had received had been paid from the funds allocated to the District Office or from a special fund of the Ministry of the Interior. The appellate court further instructed the District Court to establish whether or not the Ministry of the Interior had authorised the head of the District Office in Bardejov to settle the applicant’s claims. The decision stated that witnesses should be heard with a view to establishing the above facts. The case was sent back to the Bardejov District Court for a new adjudication.

The applicant and the representative of the defendant failed to appear before the District Court on 8 September 1994. The applicant did not appear at subsequent hearings scheduled for 26 September 1994 and 4 October 1994. He excused his absence on the last mentioned date. In his letter of 3 October 1994 the applicant explained that he could not attend the hearing for personal reasons and that he had not been allowed to become properly acquainted with the case file. The applicant further requested that witnesses and representatives of the defendant should not be heard in his absence.

Another hearing was scheduled for 4 November 1994. The District Court proceeded with the case in the applicant’s absence as, according to the Government, the summons had been served on the applicant’s daughter and the applicant had not excused himself. The applicant contends that he was not summoned. On 4 November 1994 the District Court heard two officials of the District Office in Bardejov who confirmed that the applicant had not been employed by that authority and that he had not received any pay from the budget of the District Office. The compensation for pay the applicant received between 2 August 1991 and 31 December 1991, that is, until his dismissal became effective, were paid from a special fund of the Ministry of the Interior. The witnesses further explained that the notice which the District Office had sent to the applicant related to his contract of employment with the District National Committee which, in the meantime, had ceased to exist. The District Court had sent it in accordance with the relevant instructions issued by the Ministry of the Interior.

On 14 November 1994 the District Court adjourned the case as the applicant had excused himself in advance that he was ill.

The next hearing was scheduled for 10 January 1995. The applicant received the summons on 27 December 1994. According to the applicant, he submitted, at 7.30 a.m. on 10 January 1995, a letter to the District Court’s registry informing the court that he would not attend the hearing scheduled for 8.30 a.m. on the same day. In the letter the applicant explained that, several days earlier, he had not been allowed to consult the case file and that, therefore, he did not consider it necessary to excuse himself for his absence. The Government maintain that the letter was delivered to the court’s registry at 10 a.m. This is contested by the applicant who alleges that the time of receipt of the letter was added to it later and that his copy of the letter, stamped by the court’s registry, bears no indication of the hour when it was submitted.

On 10 January 1995 the Bardejov District Court proceeded with the case in the applicant’s absence. It delivered a judgment by which it dismissed the action. In the judgment the District Court found that the District Office was not a legal successor to the applicant’s former employer and that the applicant had no right to be employed by the District Office. The court held that, by sending a notice to the applicant, the District Office had acted in accordance with the relevant regulations of the Ministry of the Interior and of the Ministry of Finance. Under these regulations, the district offices were charged with settling issues concerning labour relations which remained unresolved after the working groups established with a view to liquidating the national committees had ceased to exist by 31 July 1991. The court concluded that the District Office had acted in accordance with Section 251 of the Labour Code.

The applicant appealed. He alleged that the District Office had had no power to send him a notice, and that it should have offered him a job after his dismissal by the previous employer had been declared unlawful. He alleged, with reference to the relevant pay slips, that he had been paid from the same account as the other employees of the District Office after his first dismissal had been declared unlawful on 2 August 1991. The applicant considered irrelevant that the Ministry of the Interior had put at the District Office’s disposal a sum of money for the purpose of settling any outstanding issues relating to the existence of the former national committees as, in his view, that sum of money had been used for different purposes. In his appeal the applicant stated that he had been a supervisor and that he had an excellent knowledge of the relevant issues. The veracity of his allegations could be proved by an expert.

The applicant also complained to the appellate court that the District Court had not considered his arguments, that it had not established the relevant facts and that it had decided in his absence. Finally, the applicant stated that the appellate court should proceed with the case in his presence, that he had the intention to make further oral submissions to the court and that he wished to put questions to witnesses and to the representatives of the defendant with a view to having the relevant facts clarified.

Hearings before the Košice Regional Court scheduled for 20 September 1995 and 26 January 1996 were adjourned as the parties did not appear. The applicant excused his absence on both occasions. Prior to the latter hearing the applicant informed the court that he had encountered various difficulties including health problems and requested that the case be decided in his presence.

The next hearing was scheduled for 6 March 1996. The Regional Court invited the applicant to submit a medical certificate should he not be able to attend, failing which the case would be decided in his absence. On 2 March 1996 the applicant sent a registered letter in an envelope addressed to the “State Regional Court” in Košice. In the letter the applicant informed the Regional Court that he was ill and enclosed a medical certificate. The applicant further asked the court not to proceed with the case in his absence. The letter indicated the case number, the name of the presiding judge and also the date of the hearing.

The letter was stamped by the registry of the Regional Court. The stamp indicates that the letter was delivered on 5 March 1996. The letter bears a hand-written remark by the president of the Regional Court dated 4 March 1996 and indicating that it should be transmitted to the presiding judge. The letter bears another hand-written remark by the presiding judge indicating that the chamber by which the case fell to be examined had received it on 6 March 1996 at 10.30 a.m.

The Government submit that the letter was considered to be a complaint and that the envelope was submitted, unopened, to the secretariat of the president of the Regional Court on 5 March 1996. The president of the Regional Court mistakenly dated his above instruction 4 March 1996. According to the Government, the applicant’s letter reached the presiding judge five minutes after the delivery of the judgment on the case.

On 6 March 1996 the Košice Regional Court examined the case in the applicant’s absence and upheld the first instance judgment. It stated that the applicant’s letter posted on 2 March 1996 had reached the judges on 6 March 1996 at 10.30 a.m., that is after the hearing was over. The judgment further stated that the letter had been addressed to the president of the Regional Court and not directly to the presiding judge.

In its judgment the Regional Court pointed out that it had taken further evidence, in that it had requested the Ministry of the Interior to submit a report concerning the delegation of its powers to District Offices. It concluded, with reference to all the evidence before it, that the applicant’s appeal was ill-founded.

In particular, the Regional Court found that the applicant’s dismissal by the District National Committee in Bardejov had been declared unlawful by a decision which became final on 2 August 1991. By that time the national committees had ceased to exist ex lege, and their liquidation had formally ended. In accordance with the relevant instructions issued by the Ministry of the Interior and the Ministry of Finance, the newly established district offices were ordered to settle any labour issues relating to the former national committees which could not be resolved by 31 July 1991. The Regional Court therefore upheld the view of the first instance court according to which the District Office in Bardejov had acted in accordance with Section 251 of the Labour Code. The Regional Court had also regard to the supplementary evidence which the District Court had taken on 4 November 1994 and which indicated that the money which had been paid to the applicant had been derived from the budget of the Ministry of the Interior. The Regional Court concluded that the applicant had not become an employee of the District Office. Accordingly, the notice in question was in conformity with Section 46 (1) (b) of the Labour Code.

On 23 April 1996 the applicant lodged an appeal on points of law. He complained, inter alia, that he had not been able to act before the appellate court and invoked Article 237 (f) of the Code of Civil Procedure.

On 26 November 1997 the Supreme Court (Najvyšší súd) rejected the appeal on points of law as being inadmissible without hearing the parties. In its decision the Supreme Court found that there had been no shortcomings within the meaning of Article 237 (f) of the Code of Civil Procedure in the proceedings challenged by the applicant. The Supreme Court did not address the merits of the case.

Section 46 (1) (b) provides that a person may be dismissed from a job when the organisation employing him or her ceases to exist or when a part of that organisation is to be incorporated into another organisation and the latter has no possibility of offering the person concerned a job in accordance with his or her contract of employment.

Pursuant to Section 251, in cases when an organisation is being liquidated, the liquidator or the State has to satisfy the claims of the employees of such an organisation.

Article 101 (1) provides that the parties are obliged to assist the court in achieving the purpose of the proceedings, by inter alia, complying with the court’s instructions. Paragraph 2 of Article 101 entitles the court to proceed with a case even when the parties remain inactive. When a party to the proceedings fails to appear at a hearing despite the fact that he or she has been duly summoned and when such a party has not requested that the hearing be adjourned for a serious reason, the court may proceed with the case in the absence of that party. It shall thereby have regard to the contents of the file and the evidence which has been already taken.

Pursuant to Article 237 (f), an appeal on points of law is available when a party has been prevented, by the appellate court’s conduct, from acting before the court.

In accordance with the Supreme Court’s case-law (Collection of the Judicial Decisions and Opinions of the Supreme Court, No. R 31/1995), a party’s illness which has been duly certified by a doctor represents a serious reason within the meaning of Article 101 (2) of the Code of Civil Procedure. When a party to the proceedings has asked in time that the proceedings be adjourned in such a case, the court’s proceeding with the case in that party’s absence is considered as preventing him or her from acting before the court within the meaning of Article 237 (f) of the Code of Civil Procedure.