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

The applicant, Mr Martin Kelly, is an Irish national who was born in 1956 and lives in Dublin. He was represented before the Court by Mr Michael Finucane, a lawyer practising in Dublin.

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

The applicant and a co-accused, WC, were charged with membership of an unlawful organisation styling itself the Irish Republican Army (“IRA”) contrary to section 21 of the Offences Against the State Act, 1939 as amended. It was alleged that DM, in association with four others, planned to open a lap dancing club in Dublin (“the Club”) and engaged a company to provide security. The Club was due to open on 27 May 2002. On that day one of the principals in the security company requested a meeting with DM at lunch time. The meeting was attended by DM, GC (one of the partners in the Club), PB, the applicant and his co-accused. In the course of this meeting, the applicant introduced his co-accused as “the top man”, meaning the top man in the IRA. It was alleged that WC said that certain people in Dublin did not want the club to open but that they would make sure it would open if a donation was given to the Continuity IRA (“CIRA”) and, that if a donation was not made, the dancers and DM’s girlfriend would be hurt and the premises would be petrol bombed. Initially, a payment of €50,000.00 (EUR) was sought, but after some discussion this was reduced to €25,000.00. The €25,000.00 was ultimately paid in instalments.

On 29 July 2002 the applicant and WC were arrested, questioned and charged with the offence of membership of an illegal organisation (the IRA) pursuant to section 21 of the Offences Against the State Act 1939, as amended (“the 1939 Act”). During police questioning (under section 2 of the Offences Against the State (Amendment) Act 1998, “the 1998 Act”) the applicant denied membership of an unlawful organisation.

The applicant and WC (“co-accused”) were tried before the SCC in November 2003 over 9 days. On the 5th day of the trial, the applicant’s co-accused pleaded guilty. The trial proceeded and the SCC had regard only to evidence insofar as it concerned the applicant. In all, the SCC heard 13 witnesses, nine of whom testified on behalf of the prosecution and 4, including the applicant, for the defence.

The SCC delivered its judgment on 19 November 2003. The judgment gave a detailed account of the relevant evidence of every witness followed by an assessment of the credibility of each.

The principal witness for the prosecution was DM. He gave evidence as to a meeting that took place on the 22nd May 2002, the day upon which the club was due to open. He identified the two accused (WC and the applicant) as being present at that meeting. He testified as to the threats made by WC in the event of a required contribution of €50,000.00 not being made to the Continuity IRA. When he had replied that he did not have that amount negotiations took place and the amount was reduced to €25,000.00. The dates upon which the instalments were to be paid were then agreed. He paid the first two instalments to the applicant’s co-accused and on the 31st May 2002 he had met with both men and had handed over a further instalment of €5,000.00 to the applicant. The witness was cross-examined by counsel for the applicant. He confirmed that the applicant and his co-accused made themselves known to him to be Continuity IRA. He did not report the matter to the Garda Síochána (police) straightaway because he was afraid of his life. His first contact with the police came when he received a telephone call from a sergeant whose identity he had to check out in order to ascertain that he really was a member of the police force. He said that he was “in the Witness Protection Programme having received threats to his life and having been told that “they” would stick a hammer into his head in messages left on his phone from [the applicant].”

The SCC found him to be a truthful witness:

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

The Court is satisfied that he was indeed in fear of both the accused and of the Continuity IRA. It is for this reason he accepted entry into the Witness Protection Programme and removed himself from Dublin and pending the trial for approximately one year remained in isolation. The Court is satisfied that he is a truthful witness.”

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

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

GC gave evidence that he was present at the meeting in May 2002 which was held because it had been brought to his attention by DM that there was a potential threat to the staff and business. It was the first occasion he had met the applicant and the co-accused who had been introduced as being another security company who would be able to provide extra security at a cost, initially, of €15,000.00 but subsequently €25,000.00. He took control of the last five payments. He found DM to be dishonest but gave no instances of this. The applicant had never threatened him. He had never been in fear of the applicant. Upon cross-examination he denied having extensive contact with the applicant since the trial started. The SCC held:

“The witness was not convincing in his evidence. ... The Court regards his account of the manner in which the sum sought by [the applicant] and [WC] was negotiated upwards of €15,000 to €25,000 so unlikely as to be incredible.... He offered no plausible explanation as to why any money should be paid to [the applicant] and [WC] for extra security in the circumstance where there was not evidence of any discussion as to the nature of that extra security if any and when it was his wish that they should not attend at the premises his agreement to pay this sum when he did not believe [DM]’s reportage of threats is not credible.

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

A police Chief Superintendent gave evidence in accordance with section 3(2) of the Offences Against the State (Amendment) Act 1972, as amended (“the 1972 Act”) of his belief that the applicant had been a member of the IRA on the relevant date. He had served 32 years in the police (of which 25 years were in “the fight against subversion”) and he was, at that time, in charge of the Special Detective Unit involved in receiving and analysing sensitive information and intelligence relating to subversion. He gave evidence that he believed that the applicant was a member of the IRA on the date of his arrest. He also stated that he believed that the applicant had been a member of the IRA for six months prior to that date and that he had been associated with the IRA for months before being sworn in as a member. He stated that he based his belief on matters other than those that related to the applicant’s arrest. The Chief Superintendent was cross-examined as to the source of his belief but he pleaded privilege on the basis that the disclosure of his sources would endanger life and would endanger the ongoing police operations against the IRA.

The applicant argued that the SCC should refuse the claim of privilege since, in order to have a fair trial, the accused must be told the identities of the informants that went to make up the belief of the Chief Superintendent. In the course of its ruling on this application the SCC reviewed the legal authorities on ‘informer privilege’ and the ‘innocence at stake’ exception thereto. It cited, in particular, the case of The Director of Public Prosecutions and the Special Criminal Court [1999] 1 IR 60 where O’Flaherty J had said:

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

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

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

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

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

A Detective Chief Superintendent was called in relation to a detention matter which, it transpired, was not in issue. Two detective sergeants gave evidence about their interviews with the applicant in July 2002, during which the applicant was questioned about joining the organisation at a house in Dublin and about his associations with WC. The applicant denied being a member of the IRA. One of the Sergeants gave evidence as to the identification parade.

The final prosecution witness applied pursuant to Rule 7(4) of The Offences Against the State Acts 1939-1972 Special Criminal Court Rules 1975 S. I. No. 234 of 1975 to be permitted to give her name and address in writing to the court. She handed in a letter to the court in which she had expressed concern for her own safety. The Court deferred dealing with the application until the conclusion of her evidence. She gave evidence as to how she had assisted DM both financially and through her interior design skills with his project and of how she had been employed in a managerial capacity in the club. She met the applicant and his co-accused some weeks after the club had opened. At the conclusion of her evidence the court ordered that her name and address should not be disclosed in court. In assessing her credibility, the SCC found that she had given her evidence in a forthright manner and was satisfied that she was a truthful witness.

The defence called four witnesses. The applicant pleaded not guilty. He testified that he had left school at the age of 15 and that he had been in the Irish Army for 26 years. Prior to his retirement, he became involved in the provision of security services as part of his return to civilian life. It was in this context that he had come to know his co-accused and DM. He accepted that the meeting of May 2002 took place. When asked why he brought WC to that meeting he replied that he had been in his house at the time and that when told by the applicant that he had to go into town to meet some people, he (WC) said that “he would tag along”. He said that the meeting concerned the provision of bona fide security services and that there was no question of the involvement of the IRA. He denied that he knew that his co-accused was a member of the IRA, although he knew that he had been a member of another illegal organisation (the Irish National Liberation Army).

In relation to the applicant, the SCC held:

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

The court finds his account of the circumstances in which [WC] came to be present at the meeting in Dorans ... improbable to the extent that it is unbelievable. It is not credible that [WC] was present in his house on one of his regular social calls on the 27th May 2002 when the phone call from [PB] was received and that [WC] simply tagged along to the meeting as if he had nothing better to do but that he then took control of the meeting and took part in the separate private meeting to the exclusion of [the applicant] and there negotiated the agreement for the payment of €25,000.00. Further his account of the arrangement for payment for the additional level of security lacks credibility .... Further he was reticent about his previous relationship with [WC] in connection with meetings in Tallaght and Limerick. ... Having regard to these matters where there is a conflict between the evidence of [the applicant] and that of [DM] or [PB] the evidence of [DM] and [PB] is to be preferred.

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

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

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

This additional evidence included evidence admissible under section 3(1) of the 1972 Act of the applicant’s association with his co-accused who had pleaded guilty to membership of an unlawful organisation. In particular, the SCC considered that the evidence demonstrated that it was the applicant who had arranged the meeting on 27 May 2002 at which he had introduced his co-accused as a “top man” in the IRA (evidence of PB); that sums of money had been demanded for the CIRA from DM under threats of violence; that his co-accused pretended to have an accent from Northern Ireland, the applicant knew he did not have such an accent and his failure to comment on this during the meeting was evidence that they acted in concert in order to reinforce and confirm the IRA connection of the applicant and his co-accused; that the applicant was involved in negotiations for the payment of €25,000 in instalments; that €5,000 was paid directly to the applicant (evidence of DM); and that the applicant had attended a separate meeting in a house in Dublin where another person was introduced by the co-accused as “top man in Limerick” meaning the top man in the IRA (evidence of PB).

In addition, the SCC found that the applicant’s answers to police questions in interview, which were material to the investigation of the offence, were untrue and misleading. The false or misleading nature of those responses was “quite clear” from the evidence of the applicant himself as well as of other witnesses. Those responses were designed to give the impression of distance between himself, on the one hand, and his co-accused, the meeting on 27 May 2002 and the Club, on the other. In so distancing himself during a police interview about membership of an unlawful organisation, he inferred that those activities were connected to the organisation.

Moreover, the trial court found that the applicant’s evidence concerning how his co-accused had ‘tagged along’ to the meeting in May 2002 and had then taken it over was simply not credible. His account of the arrangement for payment of the additional level of security also lacked credibility. His disposition not to tell the truth had to be borne in mind in evaluating his evidence. Having regard to all of the above, where there was a conflict of evidence between the applicant and that of DM/PB, the latter was to be preferred.

On the entirety of the evidence adduced, the SCC was satisfied beyond reasonable doubt that the applicant was guilty of the offence with which he was charged. He was found guilty and sentenced to 4 years’ imprisonment.

The applicant appealed to the CCA and argued that his right to a fair trial (under Article 38 of the Constitution and Article 6 of the Convention) had been breached by the refusal to disclose the source of the Chief Superintendent’s belief. He argued that a fair trial requires some investigation as to whether it is reasonable to protect a claim of privilege in any particular case. His appeal was dismissed by judgment of 29 April 2005, although the appeal court reduced the sentence to 3 years’ imprisonment.

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

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

There was no doubt that there was a long established principle that, in certain circumstances, the police were entitled to refuse to disclose sources of information. There was undoubtedly a serious public interest in ensuring that persons who might be subject to intimidation and threats, if not actually in danger of their life, should be protected to ensure that information in their possession would be given to the police to assist in the prosecution of wrongdoers. As against this, there was also the constitutional obligation to ensure that an accused had a fair trial. The CCA considered that the balancing of those conflicting rights and interests could only be determined by the trial court. It had to be remembered that that the purpose of section 3(2) of the 1972 Act was simply to make the statement of belief of the Chief Superintendent admissible as evidence and that, while it may be persuasive, it is not conclusive. The trial court must consider that evidence in the light of all their surrounding circumstances and, in particular, in the light of the other evidence in the case.

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

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

On 4 April 2006 the Supreme Court unanimously dismissed the appeal. Geoghegan J. gave the judgment of the Court (with which Murray C.J. as well as Denham and Kearns JJ concurred). Fennelly J. delivered a separate judgment.

Geoghegan J. considered it essential to consider the purpose of section 3(2) of the 1972 Act. The legislation was passed in the context of preserving the security of the State and was introduced to allow reliable information about membership of an unlawful organisation from a senior police officer to be admitted into evidence given the difficulty in getting direct evidence from lay witnesses who would not come forward for fear of reprisal. As with all anti-terrorist offences, there would also be equal apprehension about intimidation of witnesses. It was reasonable to infer that the relevant provision was enacted out of bitter experience. A limitation on cross-examination was permitted by the statutory provision. However, informer privilege, even without the statutory provision, may involve more than merely refusing to divulge the name of an informer. The correct interpretation of section 3(2) was that it allowed cross-examination about the basis of the belief evidence but not to the extent that it interfered with or defeated a legitimate plea of privilege.

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

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

Geoghegan J went on to review domestic case law on the relevant provision and agreed that the balancing of the conflicting rights and interests was to be determined by the trial court. The Chief Superintendent’s belief had no special status but was merely a piece of admissible evidence (as stated by the CCA in DPP v. Redmond, judgment 24 February 2004). Although the trial court was entitled to take into account the fact that the Chief Superintendent refused to identify the basis of his belief, it was also entitled to take into account that the appellant had made a false statement to the police and to have regard to the corroborating evidence of other witnesses, particularly that of Mr. DM which it accepted.

Fennelly J. noted that the prosecution evidence was not limited to the belief evidence of the Chief Superintendent. The SCC had before it and had accepted the evidence of DM, whom it had regarded as a truthful witness and in respect of whom it was satisfied that “throughout his evidence it was apparent to the court from his demeanour that he was in fear” both of the applicant and of the CIRA. While there was a conflict concerning amounts, there was also evidence that €5,000 was paid to the co-accused and another €5,000 to the applicant. In addition, the SCC had before it the evidence of PB whom it also accepted as being in fear. Though treated as a hostile witness, he nevertheless gave evidence that the applicant described his co-accused as a “top man” using that expression in relation to the IRA. It was unnecessary to refer to this evidence in any greater detail as it was clear that there was significant evidence before the SCC, which was accepted by that court, of the involvement of the applicant with an unlawful organisation. The SCC had concluded by stating that on “the entire of the evidence adduced before the Court” it was satisfied beyond reasonable doubt that the applicant had been guilty of the offence with which he was charged.

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

Fennelly J. recalled the nature of an unlawful organisation as defined by section 18 of the 1939 Act and considered it obvious both from that definition and from common sense that such organisations are, in their nature, secret and violent. It followed that it would be extremely difficult to produce direct evidence capable of sustaining a prosecution. Intimidation of possible witnesses, and worse, was to be presumed. Where the police have secret intelligence, they would be unable to produce informants as witnesses without compromising them. Hence the need for an unusual type of evidence permitted under section 3(2) of the 1972 Act. Parliament had chosen to designate a person holding the rank of Chief Superintendent as a witness whose belief might be accepted as evidence. Whether or not an accused person was a member of an unlawful organisation was a question of fact and the Chief Superintendent gave evidence, not of fact, but of belief. The Chief Superintendent simply states his belief.

Fennelly J. noted that the prosecution had submitted that it was no longer the practice of the DPP to prosecute on the basis of belief evidence alone. Having reviewed domestic case law on section 3(2) he noted that the specific circumstances of the present case (where the accused wishes to mount a full defence) had not previously been the subject of a ruling by the CCA.

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

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

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

The present applicant, however, made his case very firmly on the ground of denial of a fair trial as a result of infringement of the effective right to cross-examine the Chief Superintendent and, by extension, any of his informants who might be identified if he revealed his sources. Fennelly J. reviewed case-law of the Irish, US and UK courts on the right to cross-examination. He also reviewed the case law of this Court (notably Kostovski v. the Netherlands, 20 November 1989, Series A no. 166; Doorson v. the Netherlands, 26 March 1996, Reports of Judgments and Decisions 1996II; Van Mechelen and Others v. the Netherlands, 23 April 1997, Reports 1997III; and Rowe and Davis v. the United Kingdom [GC], no. 28901/95, ECHR 2000II). He concluded that authorities cited from all relevant jurisdictions demonstrated that there was an inescapable obligation on the courts to guarantee the overall fairness of a trial and he believed that, in Ireland, the right to cross-examine one’s accusers was an essential element in a fair trial. While restrictions could be imposed in the interests of overall balance and the efficiency of the criminal justice system, derogations, for overriding reasons of public interests, from normal procedural rights of the defence were not to go beyond what was strictly necessary and should not “imperil the overall fairness of the trial”.

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

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

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

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

The applicant was released from prison on 19 January 2006.

Article 38 reads, in so far as relevant, as follows:

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

3(1) Special courts may be established by law for the trial of offences in cases where it may be determined in accordance with such law that the ordinary courts are inadequate to secure the effective administration of justice, and the preservation of public peace and order.

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

The Court refers to the description of the matters leading to the adoption of the 1939 Act in its judgment in Lawless v. Ireland (no. 3), 1 July 1961, §§ 1-7, Series A no. 3.

The 1939 Act allowed for the establishment of the SCC (section 38) to try offences which were not amenable to trial in normal domestic courts. The SCC is a non-jury court and sitting judges (normally three, drawn from the District, Circuit and High Court) hear the evidence and make findings of fact.

Section 36 of the 1939 Act allows for certain offences to be “scheduled” which offences are then to be tried before a SCC. Secondary legislation in 1972 defined those scheduled offences (Offences against the State (Scheduled Offences) Order 1972 S.I. No. 142 of 1972).

Section 21(1) of the 1939 Act provides that “it shall not be lawful for any person to be a member of an unlawful organisation”. The IRA was declared unlawful by a suppression order made under section 19 of the 1939 Act (Unlawful Organisation (Suppression) Order 1939). Accordingly, the SCC tries, inter alia, charges of membership of unlawful organisations.

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

“3(1)(a) Any statement made orally, in writing or otherwise, or any conduct, by an accused person implying or leading to a reasonable inference that he was at a material time a member of an unlawful organisation shall, in proceedings under section 21 of the Act of 1939, be evidence that he was then such a member.

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

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

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

(2) Where [a police officer], not below the rank of Chief Superintendent, in giving evidence in proceedings relating to an offence under the said section 21, states that he believes that the accused was at a material time a member of an unlawful organisation, the statement shall be evidence that he was then such a member.

(3) Subsection (2) of this section shall be in force whenever and for so long only as Part V of the Act of 1939 is in force.”


The applicants, Mr Heyridin Ramadan and Mrs Sevdie Ramadan-Ahjedini, are husband and wife. They originate from what is now the Former Yugoslav Republic of Macedonia (“the FYR of Macedonia”) and are of ethnic Albanian origin. They were born in 1957 and 1966 respectively and live in Huizen. They introduced the application also on behalf of their daughter Djemile Ramadan, born in 1991, and their son Enes Ramadan, born in 1995. They are represented before the Court by Mr P.B.Ph.M. Bogaers, a lawyer practising in Nieuwegein. The respondent Government are represented by Mr R.A.A. Böcker and Mrs J. Schukking of the Ministry for Foreign Affairs.

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

The applicants, accompanied by their daughter Djemile, arrived in the Netherlands on 12 December 1992. They applied for asylum on 21 December 1992. In an interview with an immigration official on 7 July 1993 they stated, inter alia, that their parents and siblings were living in the FYR of Macedonia.

On 6 April 1994 the Deputy Minister of Justice (Staatssecretaris van Justitie) rejected the asylum application and informed the applicants that they would not be allowed to await the decision on any objection (bezwaar) they might lodge. The applicants lodged an objection and also requested the Regional Court (arrondissementsrechtbank) of The Hague, sitting in Haarlem, to issue a provisional measure in order for them to be allowed to await the outcome of their objection in the Netherlands. The President of the Regional Court rejected the applicants’ request on 18 November 1994. From that moment on, the applicants were no longer authorised to stay in the Netherlands. However, no action was taken to expel them.

On 10 April 1995 the applicants’ son Enes was born.

The Deputy Minister dismissed the objection against the refusal of the applicants’ request for asylum. The appeal against that decision was rejected by the Regional Court of The Hague sitting in Haarlem on 29 May 1997. No further appeal lay against this judgment.

In a letter of 3 July 1997 the applicants’ lawyer requested the Deputy Minister to seek advice from the Ministry of Justice’s Medical Advice Bureau (Bureau Medische Advisering; “MAB”) in order to see whether the medical situation of the applicants and Enes should not lead to their expulsion being deferred in accordance with Article 25 of the Aliens Act 1965 (Vreemdelingenwet 1965). The lawyer referred to a letter of 30 June 1997 from the applicants’ general practitioner according to which – due to the tense and insecure situation in which they had found themselves in recent years – the applicants were experiencing difficulties in dealing with Enes, who was a difficult baby. A return to their country of origin meant that the applicants, for the time being, would not be capable of looking for different ways of dealing with Enes which, in these critical years, would entail consequences for the rest of his life.

The Deputy Minister informed the applicants that she perceived no cause to consult the Medical Advice Bureau. The applicants lodged an objection against the Deputy Minister’s refusal, which was declared inadmissible. The applicant’s subsequent appeal and request for a provisional measure were rejected by the Acting President of the Regional Court of The Hague, sitting in Haarlem, on 27 March 1998. The Acting President held that, as long as the applicants were not actually being expelled, the refusal of the Deputy Minister did not affect their interests. No further appeal lay against this decision.

In a letter of 29 May 1998 to the applicants’ lawyer, a psychiatrist working at the Regional Institute for Outpatient Mental Health Care (Regionale Instelling voor Ambulante Geestelijke Gezondheidszorg – “RIAGG”), wrote that both applicants were suffering from an adjustment disorder. Although the applicants’ daughter Djemile was doing reasonably well, a forced return to the country of origin might, especially for her, lead to serious psycho-traumatic consequences.

On 25 February 1999 the applicants lodged a request for a residence permit on compelling humanitarian grounds or, alternatively, for the purposes of receiving medical treatment in the Netherlands. When, on 13 December 1999, the Deputy Minister had still not taken a decision, the applicants filed an objection against the implied refusal (fictieve weigering) of their request.

In early 2000 the second applicant underwent an operation for a slipped disc. In view of her long case history, the neurologist treating her considered it likely that she would continue to have an increased vulnerability to physical and psychological violence. The neurologist was of the opinion that a forced return of the second applicant to the FYR of Macedonia, where such a situation pertained, might lead to her becoming physically disabled.

A report dated 22 April 2000 from the Medical Advice Bureau concluded that both applicants were suffering from an adjustment disorder. The first applicant had emotional and behavioural problems and the second applicant was suffering from anxiety and depression. The applicants had initially been treated by a RIAGG psychiatrist and subsequently by their general practitioner. To the best of the Medical Advice Bureau’s knowledge, the applicants were not receiving specialist treatment at the time of the report. The medical conditions from which the applicants were suffering could be treated in their country of origin in more or less the same way as in the Netherlands. The Medical Advice Bureau further stated that a failure to provide immediate treatment to either of the applicants would not lead to an acute medical emergency (a situation where a person is suffering from a disorder which in its pertaining phase, if not treated immediately, would lead to death, invalidity or another form of serious psychological and/or physical harm). Neither applicant required intensive psychiatric or in-patient treatment, and they showed no symptoms of psychological decompensation or obsessive-compulsive suicidal tendencies. The longer term consequences of a failure to provide treatment would probably be the applicants’ being afflicted for longer and/or more seriously compared with the situation in which they received counselling. It could not be excluded that in the longer term a medical emergency might arise.

In a letter of 12 July 2000, the RIAGG psychiatrist informed the applicants’ lawyer that, to his consternation, he had found that the psychological state of health of both applicants and their children had seriously deteriorated since he had last examined them in 1998. This had been caused by the chronic uncertainty with which the applicants had been confronted since 1992. The first applicant was suffering from a depression with psychotic characteristics, and the second applicant from a depressive disorder. Both required immediate and continuing specialist help, which would be provided by a psychiatric nurse and the psychiatrist in the form of consultations and medication. On 14 July 2000 the applicants’ general practitioner confirmed that the situation of, in particular, the first applicant had deteriorated. He was currently so frantic that the doctor feared the worst if he were to be expelled. The doctor further thought it likely that the first applicant would attempt to evade expulsion, if necessary through suicide. Should the first applicant nevertheless reach the FYR of Macedonia, it was doubtful that adequate help would be available there.

The Deputy Minister transmitted the information from the RIAGG psychiatrist and the general practitioner to the Medical Advice Bureau. By letter of 9 August 2000 the Medical Advice Bureau commented on the new information. While conceding that the applicants’ condition had deteriorated, it concluded that there was no reason to amend the earlier recommendations and it was still felt that the applicants could be treated in their country of origin. As regards the possibility of the first applicant committing suicide, the Medical Advice Bureau noted that this was not related to the discontinuation of treatment but to a negative decision on his request and return to his country of origin.

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

A hearing on the applicants’ objection took place on 23 March 2001. On this occasion the applicants submitted, inter alia, that regard should also be had to the fact that they had been living in the Netherlands for eight years and to the effects which an expulsion would have on their minor children who were going to school in the Netherlands.

In a letter of 27 March 2001 to the applicants’ representative, the psychiatric nurse treating them reported a further deterioration of their psychological situation. The applicants were being treated in accordance with a PTSD-protocol. It was expected that their complaints would deteriorate if they had to return to their country of origin. The second applicant was quoted as saying she would prefer to be dead in that case.

On 1 June 2001 the Deputy Minister upheld the applicants’ objection in so far as it was directed against the failure to decide in a timely fashion on the request for a residence permit, but dismissed the objection for the remainder. Noting that according to the Medical Advice Bureau, treatment for the applicants’ medical and psychological complaints was available in the FYR of Macedonia, the Deputy Minister found that the applicants were ineligible for a residence permit for the purpose of receiving medical treatment in the Netherlands, since it could not be said that the latter country was the most appropriate country (het meest aangewezen land) for the applicants to receive such treatment. The applicants also did not have sufficient financial means to pay for treatment and neither did they hold valid passports. The Deputy Minister further considered that the applicants had failed to establish that compelling reasons of a humanitarian nature existed, on the basis of which they should be granted a residence permit.

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

The Regional Court rejected the appeal on 16 June 2003, finding that the Minister for Immigration and Integration (Minister voor Immigratie en Integratie; the successor of the Deputy Minister of Justice) could reasonably have refused the requested residence permits.

The applicants lodged a further appeal with the Administrative Jurisdiction Division of the Council of State (Afdeling Bestuursrechtspraak van de Raad van State; “the Division”). In these proceedings they argued that there was no question of there being available in the FYR of Macedonia treatment more or less similar to that provided in the Netherlands. In this context the applicants submitted a number of reports from which they concluded that the health-care system in the FYR of Macedonia had fallen below western-European standards in recent years due to the conflict in the Balkans. Treatment of psychological disorders only took place in the form of medication. According to a report drawn up in October 2002 by the Swiss Refugee Council, there were barely adequate therapy possibilities for the treatment of post-traumatic stress disorders. Moreover, the national system of health insurance was only open to officially registered nationals of the FYR of Macedonia. According to the applicants, they were unable to obtain the nationality of the FYR of Macedonia as they did not comply with certain requirements. Nevertheless, even insured persons generally needed to resort to bribery in order to obtain specialist treatment. The applicants concluded that an expulsion to the FYR of Macedonia, where they would arrive penniless and without employment and where they would not have access to any kind of treatment of their psychological problems, constituted degrading or inhuman treatment in breach of Article 3 of the Convention.

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

The Division rejected the further appeal on 30 September 2003, holding that the Regional Court had been correct in finding that the fact that treatment methods in the FYR of Macedonia were different than in the Netherlands did not mean that no treatment was available in the FYR of Macedonia. The reports submitted by the parties for the first time in the proceedings before the Division could not lead to their further appeal being upheld, as the Regional Court had not been able to have regard to the information contained therein. The applicants’ complaint to the effect that the question whether or not they would have access to health care facilities in the FYR of Macedonia had not been addressed by the Minister was also rejected, as the Division held that this issue must be assumed to have played a role in the starting points of the Minister’s policy. Moreover, the applicants were found to have failed to substantiate their complaint that the advice of the Medical Advice Bureau was not objective. Finally, the Division held that it could not examine the applicants’ argument relating to their inability to obtain the nationality of the FYR of Macedonia as this argument had not been raised by them in the proceedings before the Regional Court.

In an e-mail message of 9 October 2003 from the Officer of International Affairs of the (Netherlands-based) Pharos Knowledge Centre for Refugees and Health, the applicants’ representative was informed that in the FYR of Macedonia psychological problems were mainly treated with medication.

In a letter of 11 November 2003 from a RIAGG physician to the applicants’ representative, the first applicant was described as utterly desperate, extremely nervous and tense. He experienced the decision to remove the family to the FYR of Macedonia after such a long time as a death sentence and considered himself a failure as head of the family. In the opinion of the physician, the possibility of the first applicant acting on impulse or suicidally if the family were to be expelled should not be discounted.

The Mental Health Atlas-2005 states, inter alia, the following as regards mental health care in the FYR of Macedonia:

“A mental health policy has been reviewed and it is in the process of being adopted by the Government. The document is constituted of three parts, namely National Policy, Strategy with Action Plan and Legislation on Mental Health. ...

A National Master Mental Health Plan is already prepared by the National Task Force Team (assigned by the Minister of Health) in collaboration with WHO. It is expected to be adopted shortly by the Government.

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

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

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

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

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

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


The applicants is a Finnish national born in 1915. He resides in Lieto.

He is represented before the Court by Mr Kai Kaituri, a lawyer in Paattinen.

In 1991 the applicant signed certain employment contracts on behalf of a group of companies. In decisions of 14 October 1992 the relevant pension insurance company found that as the applicant’s companies had not been registered as legal persons the applicant himself had to be regarded as the employer. As a result the applicant was obliged to pay over FIM 114,000 (approximately the same in FF) in employer’s contributions. According to the attached notice of appeal, an appeal was to be signed by the appellant himself or any other author. If the appeal was not signed by the appellant, it should include a power-of-attorney and indicate the representative’s profession and address.

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

In decisions of 17 October 1994 the Pension Board refused the applicant’s appeals. The decisions were dispatched to the applicant’s address by regular mail on 26 October 1994. The applicant allegedly received the decisions on 5 December 1994 and on 16 December 1994 he appealed to the Insurance Court (vakuutusoikeus, försäkringsdomstolen).

On 21 December 1995 the Insurance Court declined to examine the merits of the applicant’s appeals, considering that they had been lodged out of time. The Insurance Court noted that the appeals to the Pension Board had been signed by the applicant himself and that he had been “assisted” by Mr Kaituri. In his appeal to the Insurance Court the applicant had explained that the letters from the Pension Board had arrived in a post box which he did not empty every day, inter alia due to his disability. Having been invited to explain this point further, the applicant had stated to the Insurance Court that in November 1994 he had not been expecting any mail which would have required action. As for the Pension Board’s forthcoming decisions, he had expected to be notified thereof through his “representative” Mr Kaituri. The Insurance Court found that the applicant had not submitted sufficient evidence, inter alia of his allegation that he had received the Pension Board’s decisions only on 5 December 1994. The Insurance Court concluded therefore that the applicant should be deemed to have received them on 2 November 1994, in accordance with the presumption stated in the relevant notice of appeal. Consequently, the applicant’s further appeals should have been lodged at the latest on 2 December 1994.

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

On 23 May 1996 the Supreme Court (korkein oikeus, högsta domstolen) refused the applicant’s request for cost-free proceedings, noting that under law a grant to this effect was not possible in matters before the Insurance Court. The Supreme Court found no grounds for nullifying the Insurance Court’s decision or reinstating the proceedings.


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

The applicant, who is a United States citizen, lives in Munich in the Federal Republic of Germany.

Wishing to build a holiday residence in Hopfgarten, a village in the Austrian Tyrol, she approached, with the assistance of municipal officials, the owners of a plot of land which had until then been used for agricultural purposes. Sale negotiations began in 1971 and apparently led, in 1973, to an initial contract. One year later, Mrs. Sramek paid to the vendors the greater part of the agreed price. However, the definitive contract was not drawn up until 13 January 1977.

Under section 3 of the Tyrolean Real Property Transactions Act (Grundverkehrsgesetz) 1970, as amended by, inter alia, an Act of 28 November 1973 which came into force on 1 January 1974 ("the 1970/1973 Act"), the contract could not take effect unless it were approved by the local Real Property Transactions Authority (Grundverkehrsbehörde); in fact, it contained a clause which so provided.

The 1970/1973 Act applies to agricultural and forestry land and also to any land over which rights are acquired by, in particular, a natural person who does not possess Austrian nationality (section 1(1) and (2)).

The local Real Property Transactions Authority for Hopfgarten at the office of the Kitzbühel District Administration (Bezirkshauptmannschaft), to which the contract had been submitted, approved it on 7 March 1977; the decision (Bescheid) was dated 31 March.

On 6 April, the Real Property Transactions Officer (Landesgrundverkehrsreferent, "the Transactions Officer", see paragraph 23 below) at the Government Office of the Tyrol (Amt der Landesregierung) in Innsbruck exercised his right of appeal (Berufung) to the Regional Real Property Transactions Authority (Landesgrundverkehrsbehörde; section 13(3) of the 1970/1973 Act and see paragraphs 22-23 below). In his view, the contract fell foul of section 4(2) of the 1970/1973 Act.

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

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

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

(b) ... ."

In the submission of the Transactions Officer, there were, in fact, already 110 foreign landowners in Hopfgarten and it could be seen from a series of decisions of the Regional Authority that this municipality was one of those where the danger of foreign domination was imminent. The contract in question was therefore contrary to social and economic interests within the meaning of the above-mentioned Act.

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

The Government Office of the Tyrol was organised in a number of "groups" and each group comprised several "divisions". In the present case, the Transactions Officer was the director of group III; his secretariat was provided by one of the seven divisions in that group, namely division III b. 2.

On 3 June 1977, the Regional Real Property Transactions Authority at the Government Office of the Tyrol held a hearing. The Regional Authority sat in camera but the parties, namely the Transactions Officer and Mrs. Sramek, were present. The latter appeared in person, without the assistance of a lawyer.

In accordance with section 13(4), no. 1, of the 1970/1973 Act (see paragraph 24 below), the Regional Authority was composed as follows: the elected mayor of a municipality in the Tyrol, who was a farmer experienced in real estate matters, as chairman; a judge of the Innsbruck Court of Appeal; a civil servant from division III b. 3 - one of the seven divisions in group III - of the Government Office, as rapporteur; the head of group III d; the director of the Regional Forestry Service, being the head of group III f; a farmer; and a lawyer.

The secretariat was provided by division III b. 3, to which the rapporteur belonged.

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

The applicant stated that she had signed the initial contract (Erstvertrag), which could not then be found, on 13 March 1973. As early as 23 January 1971, she had reached an agreement to purchase (Vertragsabsprachen) and had received assurances that all would go well. Since that time, she had come to Austria several times each year to settle the matter. Her husband was living with the family in Munich, where he worked, but would be retiring shortly. She declared that she herself was prepared to apply for Austrian nationality. Their permit to reside in the Federal Republic was temporary and she did not wish to return to the United States. She added that she had already made a first payment of 111,591 schillings. In conclusion, she requested that the contract be approved.

On the same day, that is 3 June 1977, the Regional Authority upheld the appeal: referring to the above-mentioned section 4(2)(a) of the 1970/1973 Act, it refused to approve the transfer of title. Its decision (Bescheid) was dated 16 June.

The Authority noted firstly that according to a statement from the municipality of Hopfgarten, which had not been challenged at the hearing, there were 110 foreign landowners in Hopfgarten, owning 5.6 hectares of land. There were 4,800 inhabitants and 1,100 families in the locality, though not all of them were landowners. The proportion of non-Austrian owners already exceeded 10 per cent and the extent of their holdings revealed a tendency towards foreign domination.

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

However, Mrs. Sramek was intending to use the land in question - at least for some time - for the construction of a holiday residence. Such an objective could easily be satisfied by the local hotel trade which, furthermore, was losing potential customers as a result of the construction of villas by foreigners. The acquisition contemplated was therefore prejudicial to economic and social interests and thus fell foul of, in particular, section 4(2)(a) of the 1970/1973 Act.

Lastly, the Regional Authority rejected the applicant’s argument that she had already concluded a contract in 1973, that is at a time when American citizens were treated on an equal footing with Austrians by virtue of a bilateral treaty dating from 1928. The Authority emphasised firstly that it had to base itself on the factual and legal situation obtaining at the time when the decision had to be taken. In its view, the 1928 treaty had not established any equality between citizens of the two States in the area concerned. In the case in question, the transfer of ownership contemplated fell under Article 1 para. 2, as interpreted by the Ministry of Foreign Affairs in a 1973 memorandum which stated that the general regulations with regard to foreigners were applicable. Even if this interpretation had not been known at the time when the initial contract had allegedly been concluded (13 March 1973, see paragraph 14 above) - though this was not the case, since the above-mentioned memorandum dated from early 1973 -, Mrs. Sramek could not claim that she had acted in good faith: she was obliged under section 15 of the 1970/1973 Act to seek approval of the contract within two months and she alone bore the responsibility for not having done so.

On 22 August 1977, the applicant appealed to the Constitutional Court (Verfassungsgerichtshof) against the decision of the Regional Authority. She claimed that her right to inviolability of property and her right to a decision by the legally competent court (gesetzlicher Richter) had been infringed and relied on Article 5 of the Basic Law (Staatsgrundgesetz), Article 83 para. 2 of the Federal Constitution (Bundes-Verfassungsgesetz) and Article 6 (art. 6) of the Convention.

As concerns the first complaint, Mrs. Sramek alleged that the Regional Authority had applied section 4(2)(a) of the 1970/1973 Act in a misconceived (denkunmöglich) manner by adopting an illogical approach; amongst other things, it had concluded that there was a danger of foreign domination in Hopfgarten without being in possession of detailed documentation, without defining the risk in question and without enquiring into the actual position in Hopfgarten regarding real property ownership.

She further contended that the Regional Authority was not an "independent tribunal" within the meaning of Article 6 (art. 6) of the Convention.

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

Mrs. Sramek supplemented her grounds of appeal on 9 March 1978. She asserted that her lawyer had not been able to consult the minutes of the Regional Authority’s deliberations. She had, in fact, learnt that the Authority had not given its ruling on 3 June 1977, immediately after the closure of the hearing. She inferred from this that the decision complained of had not been taken by the legally competent court.

She requested the Constitutional Court to provide her lawyer with an opportunity of reading the above-mentioned minutes.

The Constitutional Court dismissed the appeal on 3 March 1979 (Erkenntnisse und Beschlüsse des Verfassungsgerichtshofes, 1979, vol. 44, no. 8501).

It took the view that the Regional Authority was indeed a "tribunal" within the meaning of Article 6 (art. 6) of the Convention. It gave decisions which the executive could neither annul nor vary. As regards its members - who included a judge -, they had a degree of independence equal to that of judges. They were not bound by any instructions in the exercise of their functions and they could not be removed during their three-year term of office, except for reasons which would have precluded their appointment or if they were permanently prevented from carrying out their duties. The Constitutional Court accordingly held that Article 6 (art. 6) had not been violated.

The applicant’s other ground of appeal was also rejected. Recalling that it had already held in another case, in 1974, that it was not misconceived to conclude that there was a danger of foreign domination in Hopfgarten, the Constitutional Court stated that it saw no reason to change its opinion in the instant case. As regards the facts noted by the Regional Authority, they had not been the subject of any dispute during the administrative proceedings.

The Constitutional Court sat in camera and gave judgment without holding a hearing.

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

The Government stated that during the last ten years or so the Regional Authority had not approved any acquisition of real property in Hopfgarten by a foreigner. They supplied a list of thirteen refusals in the period between July 1973 and February 1983; according to the applicant, the list was insufficiently detailed to be conclusive.

Under Article 15 of the Federal Constitution, as interpreted by the Constitutional Court, the regulation of real property transactions is a matter coming within the jurisdiction of the Länder. Most of the Länder have enacted legislation whereby all contracts relating to agricultural or forestry land and also, in some cases, real property transactions with foreigners have to be approved by special authorities.

In the Tyrol (see paragraph 9 above), section 15(1) of the 1970/1973 Act obliges the purchaser to seek such approval within two months of the conclusion of the contract. No entry can be made in the land register until the transaction has been approved by the competent authority (section 1(4)). If approval is withheld, the acquisition is null and void (section 16(1)).

When the contract relates to agricultural or forestry land and irrespective of the purchaser’s nationality, the first-instance authority is the Höfekommission ("Farm Commission") (section 13(1)(a)). The Farm Commission is established at the seat of the District Administration and has three members: the head of the District Administration, or a legally qualified (rechtskundig) official of that Administration appointed by him, as chairman; a person designated by the chamber of agriculture of the district; and another person, designated by the municipality in question, who is engaged in agriculture or forestry (section 9 of the Tyrolean Farms Act of 12 June 1900; Gesetz betreffend die besonderen Rechtsverhältnisse geschlossener Höfe).

The decisions of the Farm Commission are taken by majority vote (section 13(2) of the 1970/1973 Act); they are subject to appeal to the Regional Authority (see paragraph 24 below) by, amongst others, the parties to the contract or the Transactions Officer (section 13(3)).

The Transactions Officer, who is appointed for three years by the Government of the Tyrol, must be a person who is experienced in real property transaction matters (section 14).

His secretariat is provided by a division of the Office of the said Government.

If the case is referred to it, the Regional Real Property Transactions Authority established at the Office of the Land Government takes a decision as the second and final instance (section 13(4)). Its membership varies according to the subject-matter of the contract to be examined. In the case of agricultural or forestry land - whether the buyer be Austrian or foreign - its voting members are (section 13(4), no. 1):

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

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

(c) a legally qualified civil servant from the Office of the Regional Government, with training in real property transaction matters, who shall act as rapporteur;

(d) a senior civil servant from the Agricultural Services Department (technischer Agrardienst) of the Office of the Regional Government;

(e) a senior civil servant from the Forestry Services Department (forsttechnischer Dienst);

(f) an agricultural expert;

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

The above-cited provision, which was introduced by the Act of 28 November 1973 (see paragraph 9 above), replaced a text which the Constitutional Court had held to be incompatible with Article 6 (art. 6) of the Convention, as interpreted by the European Court in its Ringeisen judgment of 16 July 1971 (Series A no. 13). The Constitutional Court had ruled that the Regional Authority, as it was constituted under the original Act of 1970, could not be considered an "independent and impartial" tribunal because its members included, as chairman, one of the members of the Government of the Tyrol (section 13(1), no. 1(a), former version). Furthermore, so the Constitutional Court held, the Act did not fix the duration of the members’ term of office, conferred on the said Government the power of appointing the members (save for a judge, who was appointed by the Federal Minister of Justice) and did not lay down the circumstances in which members might be removed from office (judgment of 29 June 1973, Erkenntnisse und Beschlüsse des Verfassungsgerichtshofes, 1973, vol. 38, no. 7099).

Following this judgment, the Tyrolean legislature amended, by the same Act of 28 November 1973, the provisions in section 13 concerning, inter alia, exercise of the office of member of the Regional Authority. Sub-sections 5 to 13 of that section read as follows:

"(5) The member of the Regional Real Property Transactions Authority appointed from the judiciary (sub-section 4, no. 1 (b)), shall be appointed by the Federal Minister of Justice and the remaining members, by the Regional Government. For each member a substitute member shall be similarly appointed.

(6) Only Austrian citizens who have reached the age of 25 years and are in full possession of their legal rights shall be eligible for appointment as members or substitute members. Persons who by reason of a criminal conviction are disqualified from jury service or from acting as lay assessors shall be ineligible.

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

(8) The quorum of the Regional Real Property Transactions Authority shall be constituted if the chairman, the member appointed from the judiciary, the rapporteur and at least two other members are present. Decisions shall be taken by majority vote. If the votes are equally divided, the chairman shall have a casting vote. Abstention shall count as a negative vote.

(9) In the performance of their duties the members of the Regional Real Property Transactions Authority shall not be subject to any instructions; the executive may neither annul nor vary their decisions.

(10) The details of the Real Property Transactions Authorities’ procedure (such as the convening of sittings, summoning of substitute members, conduct of voting, keeping of minutes and signing of decisions) shall be laid down by the Regional Government in rules of procedure (Geschäftsordnung) for the said Authorities.

(11) Unless they are civil servants, members of the Real Property Transactions Authorities shall receive for their work remuneration and a travel allowance, the amount of which shall be laid down in regulations made by the Regional Government.

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

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

(b) the regular performance of his duties becomes per80

manently impossible.

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

Sub-section (9), cited above, corresponds to Article 20 para. 2 of the Constitution, which reads:

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

Article 20 para. 3 of the Federal Constitution obliges the members of the Regional Authority not to disclose facts which have come to their knowledge in the exercise of their functions, if the interests of a "territorial" authority or of the parties so require (Amtsverschwiegenheit).

Procedure before the Real Property Transactions Authorities is governed by the General Administrative Procedure Act 1950 (Allgemeines Verwaltungsverfahrensgesetz).

The parties are entitled to consult the case-file (section 17) and must be given an opportunity of presenting their arguments (section 37). The competent authority may decide to hold a hearing (section 39(2)), which will not take place in public; the parties have the right to be heard (rechtliches Gehör) and, inter alia, to adduce their arguments and evidence and comment on facts presented and submissions made by other persons appearing, witnesses or experts (section 43(3)).

In certain circumstances which may give reason to doubt his impartiality, the civil servant concerned must arrange to be replaced (section 7).

By an order (Verordnung) of 13 September 1966, the Government of the Tyrol issued rules of procedure for the Real Property Transactions Authorities.

Under Article 3 para. 1, the Authorities shall deliberate and vote in the absence of the parties, if appropriate after oral hearings. The deliberations shall be recorded in minutes to which the right to consult the case-file (Akteneinsicht), guaranteed by Article 17 of the General Administrative Procedure Act, does not extend (Article 3 para. 3). The Authorities’ resolutions (Beschlüsse) must be recorded, but may be altered as long as they remain unpublished (nicht nach aussen in Erscheinung getreten) (Article 3 para. 4). Their decisions (Bescheide), which are to be reached on the basis of those resolutions (Article 4 para. 1), shall be given in writing but may in case of urgency be given orally by the chairman (Article 4 para. 2).

Before the Regional Real Property Transactions Authority, the rapporteur shall, after setting out and commenting on the results of the investigation (Ermittlungsverfahren), present conclusions (Antrag); those who wish to propose alternative conclusions (Gegen- oder Abänderungsanträge) shall give reasons for them (Article 9 para. 2). The chairman shall decide the order in which voting on the conclusions is to take place (Article 9 para. 3).

Decisions of a Regional Authority may be challenged before the Constitutional Court but not before the Administrative Court (Verwaltungsgerichtshof; Articles 133 para. 4 and 144 of the Federal Constitution).


CASE OF KARPACHEVA AND KARPACHEV v. RUSSIA

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

The applicants, mother and son, were born in 1958 and 1981 respectively. The first applicant lives in Ozersk, a closed town in Chelyabinsk Region where the Mayak nuclear fuel reprocessing plant is located and where the second applicant permanently resided before his conviction in 2002. They are joint owners of a flat in Ozersk. The second applicant is currently serving a prison sentence in a correctional colony in Chelyabinsk Region.

On 5 August 2002 the second applicant was found guilty at Ozersk Town Court of certain criminal offences and sentenced to four years' imprisonment.

On 15 July 2004 the Kasli Town Court, Chelyabinsk Region, relieved him from further serving his sentence. The second applicant returned to Ozersk.

The first applicant requested the local administration to authorise the second applicant's entry to, and permanent residence in, Ozersk. It appears the authorities permitted the second applicant's temporary stay in Ozersk from 25 November 2004 to 16 January 2005.

On an unspecified date the Ozersk Town Administration (Администрация Озерского городского округа, “the Town Administration”) and the Chelyabinsk Regional Division of the Federal Security Service (Управление федеральной службы безопасности по Челябинской области, “the Regional Security Service”) dismissed the request, referring to the second applicant's conviction. The second applicant challenged the refusal in court.

On 21 June 2005 the Ozersk Town Court, Chelyabinsk Region, granted the second applicant's claim. According to the court's findings, the dismissal by the competent authorities of the second applicant's request for the entry to, and permanent residence in, Ozersk did not have a basis in law. The Town Court ordered (1) the Town Administration to issue the second applicant with an entry and residence permit and (2) the Regional Security Service to approve it.

The parties did not appeal against the judgment of 21 June 2005 and on 2 July 2005 it came into force. The Town Court issued two writs of execution.

On 29 July 2005 the Head of the Town's Administration approved the second applicant's application to be permanently registered in Ozersk. Despite this, on 6 August 2005 the bailiff opened enforcement proceedings in respect of the Town Administration.

On 18 August 2005 the administration of the Mayak nuclear fuel reprocessing plant informed the first applicant as follows:

“Pursuant to Decree of the Government of the Russian Federation no. 693 as of 11 July 1996 on special regulations in a closed administrative and territorial entity where enterprises affiliated with the Ministry of Nuclear Power are located, on 12 October 2004 the federal security service authorised the temporary residence of [the second applicant] in ... Ozersk.

As regards your application for permanent residence [for the second applicant] in [Ozersk], on 3 August 2005 the [Mayak administration] forwarded the [relevant] documents ... to the [Regional Security Service]. The time-limit for their response shall not exceed sixty days. Should the federal security service approve permanent residence [for the second applicant], the [Mayak administration] will prepare the necessary documents for his registration at his place of residence and issuance of a permanent pass.”

On 26 August 2005 the bailiff opened enforcement proceedings in respect of the Regional Security Service.

According to the Government, on 30 August 2005 the bailiff closed the enforcement proceedings in respect of the Town Administration, noting that the latter had complied with the judgment of 21 June 2005. According to the applicants, the bailiff's decision was not communicated to them.

On 5 September 2005 the management of the Mayak nuclear fuel reprocessing plant informed the second applicant that the Regional Security Service had refused to approve him for permanent residence in Ozersk.

According to the Government, on 10 October 2005 the bailiff closed the enforcement proceedings in respect of the Regional Security Service, noting that the judgment of 21 June 2005 had been enforced in full. The Government did not, however, submit any documents in support of this allegation. According to the applicants, they were not informed of the alleged closing of the enforcement proceedings.

On 13 December 2005 the second applicant was arrested on suspicion of drug dealing. On 16 March 2006 the Ozersk Town Court found him guilty as charged and sentenced him to four years' imprisonment. The second applicant's conviction was upheld in substance by the Presidium of the Chelyabinsk Regional Court by way of supervisory review.

The Law of the Russian Federation On Closed Administrative and Territorial Entities of 14 July 1992 (Article 1), as amended, provides as follows:

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

Decree of the Government of the Russian Federation no. 693 as of 11 July 1996 on special regulations in a closed administrative and territorial entity where enterprises affiliated with the Ministry of Nuclear Power are located stipulates that entry to, and permanent residence in, a closed administrative and territorial entity is subject to restrictions (§ 2). The head of the administration may, subject to the approval of the federal security service, authorise entry to the closed entity (§ 19). Title to real property located in a closed administrative and territorial entity may give rise to a right to enter and reside there, subject to authorisation of access to state secrets (§ 23).