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

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

The applicants are lawfully and permanently settled in the United Kingdom. In accordance with the immigration rules in force at the material time, Mr. Abdulaziz, Mr. Cabales and Mr. Balkandali were refused permission to remain with or join them in that country as their husbands. The applicants maintained that, on this account, they had been victims of a practice of discrimination on the grounds of sex, race and also, in the case of Mrs. Balkandali, birth, and that there had been violations of Article 3 (art. 3) of the Convention and of Article 8 (art. 8), taken alone or in conjunction with Article 14 (art. 14+8). They further alleged that, contrary to Article 13 (art. 13), no effective domestic remedy existed for the aforesaid claims.

The evolution of immigration controls in the United Kingdom has to be seen in the light of the history of the British Empire and the corresponding developments in nationality laws. Originally all persons born within or having a specified connection with the United Kingdom or the dominions owed allegiance to the Crown and were British subjects. A common British nationality was, however, difficult to reconcile with the independence of the self-governing countries of the Commonwealth into which the Empire was transformed. As the various territories concerned became independent, they introduced their own citizenship laws but, for the purposes of United Kingdom law, persons having the citizenship of an independent Commonwealth country retained a special status, known as "British subject" or "Commonwealth citizen" (these terms being synonymous). This status was also held by "citizens of the United Kingdom and Colonies". Prior to 1 January 1983, the latter citizenship was, briefly, acquired by birth within the United Kingdom or one of its remaining dependencies, by descent from a father having that citizenship, by naturalisation or by registration (British Nationality Act 1948).

Whereas aliens have been subject to continuing strict immigration controls over a long period, the same is not true of Commonwealth citizens. Until 1962, the latter, irrespective of their local citizenship, all had freedom to enter the United Kingdom for work and permanent residence, without any restriction. A rapid rise in the influx of immigrants, especially in 1960 and 1961, and the consequent danger of the rate of immigration exceeding the country's capacity to absorb them led to a radical change in this situation. The Commonwealth Immigrants Act 1962, and then the Commonwealth Immigrants Act 1968, restricted the right of entry of, and imposed immigration controls on, certain classes of Commonwealth citizens, including citizens of the United Kingdom and Colonies, who did not have close links to Britain.

The existing immigration laws were amended and replaced by the Immigration Act 1971 ("the 1971 Act"), which came into force on 1 January 1973. One of its main purposes was to assimilate immigration controls over incoming Commonwealth citizens having no close links to Britain to the corresponding rules for aliens. The Act created two new categories of persons for immigration purposes, namely those having the right of abode in the United Kingdom ("patrials") and those not having that right ("non-patrials").

"Patrials" were to be free from immigration controls. The status of "patrial" was intended to designate Commonwealth citizens who "belonged" to the United Kingdom and, in summary, was conferred (by section 2 of the 1971 Act) on:

(a) citizens of the United Kingdom and Colonies who had acquired that citizenship by birth, adoption, naturalisation or registration in the British Islands (that is, the United Kingdom, the Channel Islands and the Isle of Man), or were the children or grandchildren of any such persons;

(b) citizens of the United Kingdom and Colonies who had at any time been settled in the British Islands for at least five years;

(c) other Commonwealth citizens who were the children of a person having citizenship of the United Kingdom and Colonies by virtue of birth in the British Islands;

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

Under section 1(2) of the 1971 Act, "non-patrials" (whether Commonwealth citizens or aliens) "may live, work and settle in the United Kingdom by permission and subject to such regulation and control of their entry into, stay in and departure from the United Kingdom as is imposed" by the Act.

Subject to certain exceptions not relevant to the present case, a "non-patrial" shall not enter the United Kingdom unless given leave to do so (section 3(1)). He may be given such leave (or, if he is already in the country, leave to remain) either for a limited or for an indefinite period; in the former case, the leave may be subject to conditions restricting employment or requiring registration with the police or both (ibid.). Where limited leave to enter or remain is granted, it may subsequently be varied, either as regards its duration or the conditions attaching thereto but, if the limit on duration is removed, any conditions attached to the leave cease to apply (section 3(3)). The power to give or refuse leave to enter is exercised by immigration officers but the power to give or vary leave to remain can be exercised only by the Home Secretary (section 4(1)).

Under section 3(2) of the 1971 Act, the Home Secretary is obliged from time to time to lay before Parliament statements of the rules, or of any changes therein, laid down by him as to the practice to be followed in the administration of the Act for regulating entry into and stay in the United Kingdom. These rules contain instructions to immigration officers as to how they shall exercise the statutory discretions given to them by the Act and statements of the manner in which the Home Secretary will exercise his own powers of control after entry. The rules are required to provide for the admission of persons coming for the purpose of taking employment, or for the purposes of study, or as visitors, or as dependants of persons lawfully in or entering the United Kingdom, but uniform provision does not have to be made for these categories and, in particular, account may be taken of citizenship or nationality (sections 1(4) and 3(2)). Thus, different rules can be and are made for nationals of the member States of the European Economic Community under Community law, and Irish citizens are in a special position.

The rules are subject to a negative resolution procedure whereby, if a resolution disapproving the Home Secretary's statement is passed by either House of Parliament within forty days of its being laid, he is required as soon as may be to make such changes as appear to him to be required in the circumstances and to lay the rules as amended before Parliament within forty days of the passing of the resolution (section 3(2)). The statement of rules thus amended is subject to the same procedure as the original statement. Because of the continuous nature of decision-making by immigration officers, the statement originally laid is not abrogated by any negative resolution; it will come into operation when made or on the date therein provided and will remain in force until replaced.

The exact legal status of the rules is of some complexity. This question was considered by the Court of Appeal in R. v. Secretary of State for the Home Department, ex parte Hosenball [1977] 3 All England Law Reports 452, when Lord Denning MR said:

"[The Home Secretary's rules] are not rules of law. They are rules of practice laid down for the guidance of immigration officers and tribunals who are entrusted with the administration of the [1971 Act]. They can be, and often are, prayed in aid by applicants before the courts in immigration cases. To some extent the courts must have regard to them because there are provisions in the Act itself, particularly in section 19, which show that in appeals to an adjudicator, if the immigration rules have not been complied with, then the appeal is to be allowed. In addition the courts always have regard to those rules, not only in matters where there is a right of appeal; but also in cases under prerogative writs where there is a question whether officers have acted fairly. But they are not rules in the nature of delegated legislation so as to amount to strict rules of law."

Lord Justice Geoffrey Lane also doubted whether the rules constituted delegated legislation. He observed: "These rules are very difficult to categorise or classify. They are in a class of their own. They are certainly a practical guide for ... immigration officers .... Indeed they are, as to large parts, ... little more than explanatory notes of the [1971 Act] itself." However, he noted that if Parliament disapproved of the rules, they were not thereby abrogated. Furthermore, at least as far as an adjudicator dealing with appeals was concerned, the rules had the force of law, although it seemed that they could be departed from with the consent of the applicant himself.

Lord Justice Cumming-Bruce said:

"[The rules] are a totally different kind of publication from the rules that usually come into being under the authority delegated to Ministers under Acts of Parliament; ... they are not in my view in any sense of themselves of legislative force. It is true that ... the rules are given legal effect in the field of the appellate process to the adjudicator or the tribunal .... But the legal effect that the rules have in that limited field flows not from the fact that they have been published by the Minister and laid before Parliament, but because by section 19(2) of the [1971 Act] the rules are given an effect which is in a certain field clearly legally enforceable, and that is a quite different matter."

Notwithstanding that an application for entry clearance (see paragraph 22 (b) below) or leave to enter or remain may fall to be refused under the relevant immigration rules, the Home Secretary has a discretion, deriving from historic prerogative powers, to authorise in exceptional circumstances the grant of entry clearance or of leave to enter, or to allow a person to remain in the United Kingdom. Where the applicant is a husband seeking to join or remain with his wife settled in the United Kingdom, factors which the Home Secretary will consider include the extent of her ties with that country and of the hardship she might suffer by going to live abroad, and any recommendations by the immigration appellate authorities (see paragraphs 34-37 below).

The rules in force at the time of the events giving rise to the present case were contained in the "Statement of Changes in Immigration Rules" (HC 394), laid before Parliament on 20 February 1980 ("the 1980 Rules"); they applied to all decisions taken on or after 1 March 1980, except those relating to applications made on or before 14 November 1979. A draft of the rules had previously been included in a White Paper published in November 1979.

The 1980 Rules, which in paragraph 2 instructed immigration officers to carry out their duties without regard to the race, colour or religion of the intending entrant, detailed firstly the controls to be exercised on the entry into the United Kingdom of "non-patrials" and then those to be exercised after entry. The former depended on whether the individual concerned was coming for temporary purposes (for example, visitors or students), for employment or business or as a person of independent means, or for settlement. As under the rules previously in force, visitors were normally to be prohibited from taking employment and persons wishing to come for employment were subject to strict regulations as to work permits. The work-permit requirements, however, did not apply to nationals of other member States of the European Economic Community nor to persons covered by the "United Kingdom ancestry rule"; under the latter rule, which had been in force since the 1971 Act came into operation, a Commonwealth citizen having a grandparent born in the British Islands and wishing to take or seek employment in the United Kingdom could obtain indefinite leave to enter even without a work permit. A further exception was to be found in the "working holiday rule", whereby young Commonwealth citizens could, without a permit, take employment incidental to an extended holiday being spent in the United Kingdom; however, the period of their stay could, under the 1980 Rules, not exceed two years. All these exceptions have been maintained in subsequent immigration rules.

A particular feature of the changes introduced by the 1980 Rules was the inclusion of a number of provisions directed towards implementing a policy of protecting the domestic labour market at a time of high unemployment by curtailing "primary immigration", that is immigration by someone who could be expected to seek full-time work in order to support a family. In taking these measures, the Government were concerned also to advance public tranquillity and, by exercising firm and fair immigration control, to assist in securing good community relations.

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

The relevant provisions of the 1980 Rules - and of their successors - are summarised below in terms of the following expressions.

(a) A person is "settled in the United Kingdom" when he or she is ordinarily resident there without having entered or remained in breach of the immigration laws, and is free from any restriction on the period for which he or she may remain (paragraph 1).

(b) An "entry clearance" (paragraphs 10-14) is a document (either a visa, an entry certificate or a Home Office letter of consent, depending on the nationality of the person concerned) which is to be taken by an immigration officer as evidence that the holder, although a "non-patrial", is eligible under the immigration rules for entry to the United Kingdom. It is obtained at British missions abroad or from the Home Office prior to arrival in the United Kingdom.

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

- its primary purpose is to obtain admission to or settlement in the United Kingdom; or

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

- the parties have not met (paragraphs 50, 52 and 117).

(d) There is "potential evasion of the rules" if there is reason to believe that a husband has remained in the United Kingdom in breach of the immigration rules before the marriage, that the marriage has taken place after a decision or recommendation that he be deported or that the marriage has terminated (paragraph 117).

(e) The "financial requirement" is a requirement that varies according to the circumstances of the particular case : basically it means that adequate maintenance and accommodation must be available to the person concerned without the need for recourse to public funds (paragraphs 42, 52 and 55).

Where a "non-patrial" whose spouse or intended spouse was "settled in the United Kingdom" came to that country for settlement, he or she would be admitted for that purpose provided that he or she held a current "entry clearance" and unless the circumstances specified in paragraph 13 of the 1980 Rules obtained (for example, false representations, medical grounds, criminal record, exclusion would be conducive to the public good).

(a) Where the intending entrant was a husband or fiancé, he could, under paragraphs 50 and 52, obtain an "entry clearance":

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

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

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

(b) Where the intending entrant was a wife or fiancée, she could, under paragraphs 42, 43 and 55, obtain an "entry clearance" irrespective of the nationality of her husband or fiancé or of his own or his parents' place of birth. Here, there was no provision as to "non-qualifying" marriages, but the "financial requirement" had generally to be satisfied.

(c) Wives admitted under these rules would be given indefinite leave to enter; husbands would be initially admitted for twelve months and fiancés or fiancées for three months, with the possibility, subject to certain safeguards, of applying subsequently to the Home Office for indefinite leave (paragraphs 44, 51, 53, 55, 114 and 116).

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

(a) Where the "non-patrial" seeking permission was a man, the basic conditions (paragraph 117) were that:

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

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

(b) Where the "non-patrial" seeking permission was a woman, she would normally be granted leave to remain on application (paragraph 115).

(c) Leave to remain granted under these rules would be, for wives, indefinite and, for husbands, for an initial period of twelve months with the possibility, subject again to the conditions referred to in sub-paragraph (a) (ii) above, of subsequent removal of the time-limit (paragraphs 115 and 117).

Decisions on applications for leave to remain were taken in the light of all relevant facts; thus, even where the individual satisfied the formal requirements, permission would normally be refused if the circumstances specified in paragraph 88 of the 1980 Rules obtained (for example, false representations, non-compliance with the time-limit or conditions subject to which he or she had been admitted or given leave to remain, undesirable character, danger to national security).

One result of the 1971 Act was that the right of abode in the United Kingdom became divorced from nationality : thus, a number of citizens of the United Kingdom and Colonies did not have that right (for example, because they had not been born in the British Islands; see paragraph 14 (a) above), whereas it was enjoyed by a number of persons who were not such citizens (for example, Commonwealth citizens having an ancestral link with the United Kingdom; see paragraph 14 (c) above). With a view to bringing citizenship and immigration laws into line, the position was substantially amended by the British Nationality Act 1981, which came into force on 1 January 1983. So far as is relevant for the present purposes, that Act:

(a) replaced citizenship of the United Kingdom and Colonies (see paragraph 11 in fine above) with three separate citizenships, "British", "British Dependent Territories" and "British Overseas";

(b) provided, in section 11(1), that on 1 January 1983 "British citizenship" was to be acquired by persons who were then citizens of the United Kingdom and Colonies and had the right of abode in the United Kingdom under the 1971 Act; this category could include a person who was neither born nor had a parent born in the United Kingdom (see paragraph 14 (b) above);

(c) laid down detailed provisions on the acquisition of British citizenship by persons born after 1 January 1983;

(d) contained, in section 6 and Schedule 1, detailed provisions on naturalisation as a British citizen on the basis of residence in the United Kingdom, the grant of a certificate of naturalisation being at the discretion of the Home Secretary;

(e) amended the 1971 Act by providing in section 39 that the right of abode in the United Kingdom - use of the expressions "patrial" and "non-patrial" was abandoned - and the consequential freedom from immigration controls were in future to be enjoyed only by British citizens and by such Commonwealth citizens as on 31 December 1982 had the right of abode under the 1971 Act.

On 6 December 1982, after debates in the House of Commons and the House of Lords, the Home Secretary laid before Parliament a Statement of Changes in Immigration Rules (HC 66; "the 1982 Rules"), intended to harmonise the immigration rules with the British Nationality Act 1981 and expressed to come into force on 1 January 1983. However, on 15 December 1982 the House of Commons passed a resolution disapproving the Statement, some Members finding the changes too lax and others, insufficient. Since by 1 January 1983 no further changes had been laid before Parliament, the 1982 Rules came into force on that date, notwithstanding the negative resolution (see paragraph 17 above).

The 1982 Rules made no changes to the regime governing wives and fiancées, described in paragraphs 23-25 above. The regime governing a husband or fiancé was modified in the following main respects.

(a) The requirement that, for him to be eligible for leave to enter or remain, his wife or fiancée had to be a citizen of the United Kingdom and Colonies born or having a parent born in the United Kingdom was, under paragraphs 41, 54 and 126, replaced by a requirement that she be a British citizen. The place of her own or her parents' birth ceased to be material since British citizens could include persons without the territorial birth link (for example, a woman born in a former Colony but having the right of abode in the United Kingdom by virtue of long residence there; see paragraphs 14 (b) and 26 (b) above).

(b) By virtue of paragraphs 41, 54 and 126, the onus of proof was reversed, so that it became for the man seeking leave to enter or remain to show that the marriage was not "non-qualifying" or, in cases to which paragraph 126 applied, that there was not "potential evasion of the rules".

(c) Leave to remain for settlement following marriage, granted to a man admitted in a temporary capacity (cf. paragraph 24 (c) above), would be for an initial period of twelve months, followed by a further period of twelve months and then by the possibility, subject again to the conditions referred to in sub-paragraph (b) above, of subsequent removal of the time-limit (paragraph 126).

No provision was made in the 1982 Rules for women settled in the United Kingdom who were not British citizens to be joined by their husbands, although leave could be granted by the Home Secretary in the exercise of his extra-statutory discretion (see paragraph 19 above). These women could also apply for naturalisation as British citizens on the basis of residence, under section 6 of the British Nationality Act 1981 (see paragraph 26 (d) above).

On 9 February 1983, a further Statement of Changes in Immigration Rules (HC 169; "the 1983 Rules") was laid before Parliament. A motion disapproving these rules was defeated in the House of Commons and they came into force on 16 February 1983.

The 1983 Rules again did not modify the regime governing wives and fiancées. That governing husbands was amended, so far as is material to the present case, in that, under paragraph 126, the position concerning the length of leave to remain granted to a man already in the United Kingdom reverted to that obtaining under the 1980 Rules (that is, initial leave of twelve months, followed by the possibility of indefinite leave; see paragraph 24 (c) above). This change was coupled with a transitional provision (paragraph 177) concerning men who, whilst the 1982 Rules were in force (see paragraph 28 (c) above), had been granted thereunder an extension of stay for a second period of twelve months: they were entitled to apply immediately for indefinite leave without awaiting the expiry of that period.

There was no change in the position concerning women settled in the United Kingdom who were not British citizens, described in paragraph 29 above.

Under sections 3(5)(a), 3(6), 5, 6, 7 and 24(1)(b) of the 1971 Act, a person not having the right of abode in the United Kingdom and having only limited leave to enter or remain in that country who overstays the period of leave or fails to observe a condition attached thereto:

(a) commits a criminal offence punishable with a fine of not more than £200 or imprisonment of not more than six months or both, to which penalties the court may, with certain exceptions, add a recommendation for deportation; and

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

Appellate authorities in immigration matters were established by the Immigration Appeals Act 1969. They consist of:

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

(b) the Immigration Appeal Tribunal which sits in divisions of at least three members; the members are appointed by the Lord Chancellor and a certain number must be lawyers.

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

Under sections 13, 14 and 15 of the 1971 Act, an appeal may, subject to certain exceptions, be made to an adjudicator against, inter alia:

(a) refusal of leave to enter the United Kingdom or of an entry clearance;

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

(c) a decision to make a deportation order.

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

Except as otherwise provided by the 1971 Act, an adjudicator is, under section 19(1), to allow an appeal only if he considers:

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

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

If, however, the decision or action is in accordance with the rules, the adjudicator may not review a refusal by the Home Secretary of a request, by the person concerned, that he should depart from the rules (section 19(2)).

Where an appeal is allowed, the adjudicator must give such directions for giving effect to his decision as he thinks requisite and may also make further recommendations; the directions are binding on the Home Secretary except so long as an appeal to the Immigration Appeal Tribunal can be brought or is pending (sections 19(3) and 20(2)).

Any party to an appeal to an adjudicator may appeal against his decision to the Immigration Appeal Tribunal, which may affirm that decision or make any other decision which the adjudicator could have made; it also has similar duties and powers in the matter of directions and recommendations. As the law stood at the relevant time, leave to appeal had generally to be obtained; it had to be granted, inter alia, if determination of the appeal turned upon an arguable point of law (section 20(1) of the 1971 Act and Rule 14 of the Immigration Appeals (Procedure) Rules 1972).

(a) The Government estimated total immigration into the United Kingdom from the New Commonwealth (that is, the Commonwealth except Australia, Canada and New Zealand) at 500,000 in the period from 1955 to mid-1962. It was thought that by the latter date some 600 million people had the right of abode (see paragraphs 13-14 above) in the United Kingdom. Between mid-1962 and the end of 1981, a further 900,000 people were estimated to have settled in that country from the New Commonwealth and Pakistan, some 420,000 from non-Commonwealth countries other than Pakistan and some 94,000 from the Old Commonwealth (Australia, Canada and New Zealand); relatively few countries were said to have accounted for most of this immigration.

The official estimates for 1981 show that the population of the United Kingdom (53.7 million) included 2.2 million persons of New Commonwealth and Pakistan origin (of whom about 1 million were in the Greater London area) and 1.2 million other persons not born in the United Kingdom (including those born in the Old Commonwealth but not those born in the Republic of Ireland). It is estimated that the population of New Commonwealth and Pakistan origin could rise to 2.5 million by 1986 and 3 million (5 per cent of the projected total population) by 1991.

(b) According to the Government, some 3,500 persons entered the United Kingdom annually under the "United Kingdom ancestry rule" (see paragraph 20 above), but many of them emigrated after a few years.

(c) In 1980-1983, there was an average net annual emigration from the United Kingdom of about 44,000, but the population density in 1981 - 229 persons per square kilometer or 355 persons per square kilometer for England alone - was higher than that of any other member State of the European Communities.

(d) Statistics supplied by the Government showed that in Great Britain in 1981 90 per cent of all men of working age and 63 per cent of all women of working age were "economically active" (that is, either in employment, or self-employed, or unemployed). The corresponding figures for persons coming from the Indian sub-continent were 86 per cent for men and 41 per cent for women and, for persons coming from the West Indies or Guyana, 90 per cent for men and 70 per cent for women. The statistics also disclosed that a considerably higher proportion of "economically active" women (particularly married women) than men were in part-time employment only - 47 per cent of married women, compared with 2.3 per cent of men.

Recent years have seen a high level of unemployment in the United Kingdom. In 1983, 15.3 per cent of "economically active" men and 8.4 per cent of "economically active" women were unemployed, as measured by official figures based on persons claiming unemployment benefit. There was a marked increase between 1980 and 1981, when the figures rose from 7.9 to 12.5 per cent and from 4.3 to 6.4 per cent, respectively.

(e) The Government also produced to the Court detailed statistics in support of their claim that the overall effect of the 1980 Rules had been to lead to an annual reduction of up to 5,700 (rather than 2,000, as they had estimated before the Commission) in the number of husbands either accepted for settlement or applying successfully to come for settlement from all parts of the world. They recognised, however, that part - though not a major part - of this figure might represent a decrease attributable to economic conditions. In their submission, this reduction was of a considerable scale when viewed in relation to the figures for the total number of persons accepted for settlement into the United Kingdom. The latter figures (about one-half of which were in each year accounted for by wives and children of men already settled in the country) were: over 80,000 in 1975 and in 1976; around 70,000 in each year from 1977 to 1980; 59,100 in 1981; 53,900 in 1982; and 53,500 in 1983. The number of men accepted for settlement by reason of marriage was 11,190 in 1975; 11,060 in 1976; 5,610 in 1977; 9,330 in 1978; 9,900 in 1979; 9,160 in 1980; 6,690 in 1981; 6,070 in 1982; and 5,210 in 1983. The number of women so accepted was 19,890 in 1977; 18,950 in 1978; 19,780 in 1979; 15,430 in 1980; 16,760 in 1981; 15,490 in 1982; and 16,800 in 1983.

The claimed reduction of 5,700 per annum was questioned by the applicants on the following grounds: it was based on a comparison with the figures for 1979, a year in which the number of applications from the Indian sub-continent was artificially high; in order to take account of the delays in processing applications and the twelve-month waiting-period before indefinite leave to remain would be granted, a more meaningful comparison would be between the 1981 and the 1983 figures; no account was taken of the natural decline in applications; and no account was taken of persons properly excluded (for example, on the ground that the marriage was not genuine).

Mrs. Nargis Abdulaziz is permanently and lawfully resident in the United Kingdom with the right to remain indefinitely. She was born in Malawi in 1948 and brought up in that country. Her parents were also born there. According to her, she was a citizen of Malawi at birth but, being of Indian origin, was subsequently deprived of that citizenship and is now stateless. She holds a Malawian travel document.

This applicant went to the United Kingdom on 23 December 1977. She was given leave, as a "non-patrial" (see paragraphs 13-15 above), to enter as a visitor, leave which was subsequently extended on three occasions. Since special vouchers had been allocated to members of her family enabling them to settle in the United Kingdom, an application was made on her behalf for indefinite leave to remain. On 16 May 1979 as an act of discretion outside the immigration rules (see paragraph 19 above), she was given such leave, essentially on the ground that she was an unmarried woman with little prospect of marriage who formed part of a close family, including her father and mother, settled in the United Kingdom.

Mr. Ibramobai Abdulaziz is a Portuguese national who was born in Daman, a former Portuguese territory in India, in 1951. He emigrated to Portugal in 1978. On 4 October 1979, he was admitted, as a "non-patrial", to the United Kingdom for six months as a visitor. He met the applicant six days later and they became engaged to be married on 27 November. They were married on 8 December 1979 and, during the following week, Mrs. Abdulaziz applied for leave for her husband to remain permanently in the United Kingdom. Shortly afterwards, the Joint Council for the Welfare of Immigrants also applied for leave for him to remain, for a period of twelve months.

After Mr. and Mrs. Abdulaziz had been interviewed at the Home Office on 6 June 1980, her application was refused, on 1 July, on the ground that she was not a citizen of the United Kingdom and Colonies who, or one of whose parents, had been born in the United Kingdom (paragraph 117 of the 1980 Rules; see paragraph 24 (a) (i) above).

Mr. Abdulaziz appealed to an adjudicator (see paragraphs 34-36 above) against this decision but the appeal was dismissed on 6 October 1981 as he did not qualify for leave to remain under the 1980 Rules. The adjudicator pointed out that, had the application been made before 14 November 1979 or the decision taken before 1 March 1980, Mr. Abdulaziz would have been admitted, under the previous rules (see paragraphs 20 and 21 above). Leave to appeal to the Immigration Appeal Tribunal was refused by the Tribunal on 9 December 1981 on the ground that the determination of the appeal did not turn on any arguable point of law and that leave to appeal was not otherwise merited (see paragraph 37 above).

Subsequently Mr. Abdulaziz remained, and still remains, in the United Kingdom, without leave. He is currently employed as a chef in a restaurant; his wife does not work. A son was born to the couple in October 1982. In a letter of 24 February 1982 to one Member, the Minister of State at the Home Office indicated that the authorities would shortly be advising Mr. Abdulaziz to depart without delay, adding that if he did not, "consideration will have to be given to enforcing his departure"; however, a letter of 29 November 1982 to another Member stated that "[the Minister did] not propose for the time being to take any action regarding [Mr. Abdulaziz's] removal". In fact, the authorities have not to date instituted any criminal or deportation proceedings (see paragraph 33 above) against him; their decision, according to the Government, was taken in the light of all the circumstances, including the Commission's decision on the admissibility of Mrs. Abdulaziz's application (see paragraph 55 below).

The couple's situation has not until now been changed by the 1982 or the 1983 Rules since Mrs. Abdulaziz, although settled in the United Kingdom, is not a British citizen (see paragraphs 27-32 above). She has, however, applied, on 16 August 1984, for naturalisation as such a citizen, under section 6 of the British Nationality Act 1981 (see paragraph 26 (d) above).

At the Home Office interview, Mr. Abdulaziz said that his wife could not be expected to live in Portugal because she had always been close to her family and because her sick father - who in fact died in September 1980 - needed her company. Before the Commission and the Court, she claimed that her health was under strain because of her husband's settlement problems and that humanitarian considerations prevented her going to Portugal, a country where she had no family and whose language she did not speak. The Government maintain that there is no obstacle whatever to her going with her husband to live in Portugal.

Mrs. Arcely Cabales is permanently and lawfully resident in the United Kingdom with the right to remain indefinitely. She was born in the Philippines in 1939 and was brought up there, and is of Asian origin. She had the nationality of that country until 1984 (see paragraph 47 below). Her parents were born and live in the Philippines.

This applicant went to the United Kingdom in 1967 with a work permit for employment as a nursing assistant and was admitted, as a "non-patrial" (see paragraphs 13-15 above), for twelve months. She remained in approved work thereafter and, on 10 June 1971, the conditions attached to her stay were removed and she was allowed to remain in the United Kingdom indefinitely. She is now employed, and has an established career, as a State-enrolled nurse.

Mr. Ludovico Cabales is a citizen of the Philippines, born in that country in 1937. He met the applicant in Manila in 1977 when she was on holiday and again in 1979 when she was there for one or two months. During the latter period, the couple became engaged. On 23 April 1980, they went through a ceremony of marriage in the Philippines. The applicant returned to the United Kingdom shortly afterwards to take up her job again. In May 1980, she informed the Home Office of the marriage and applied for leave for Mr. Cabales to enter the United Kingdom, a request which she repeated in August. On 27 November, he, being a "non-patrial", applied to the British Embassy in Manila for a visa to join his wife for settlement in the United Kingdom.

After Mrs. Cabales had supplied certain further information requested by it, the Home Office wrote to her on 23 February 1981 to advise her that the visa application had been refused on the ground that she was not a citizen of the United Kingdom and Colonies who, or one of whose parents, had been born in the United Kingdom (paragraph 50 of the 1980 Rules; see paragraph 23 (a) (ii) above). Notice of the decision was not handed to Mr. Cabales until 12 November 1981 as he had failed to respond to an invitation of March 1981 to attend at the Manila Embassy for that purpose.

On 20 August 1981, the Joint Council for the Welfare of Immigrants wrote to the Home Office Immigration and Nationality Department, seeking a review of this decision. However, on 13 January 1982, the Department, having considered the circumstances, informed the Council of its decision to maintain the refusal. Mr. Cabales had on 8 December 1981 lodged an appeal with an adjudicator (see paragraphs 34-36 above) against the decision but the appeal was dismissed on 25 July 1983 on the ground that the visa officer's decision was in accordance with the law and the immigration rules. The adjudicator, who noted that Mrs. Cabales had not taken legal advice but had thought at the time of the marriage ceremony that a forthcoming change in the law would allow Mr. Cabales to be admitted, expressed the hope that the authorities would look at the case sympathetically. This was not initially recognised by the authorities as a recommendation, but the Home Secretary subsequently concluded that there were not sufficient grounds for acting outside the immigration rules. There is no record of an application for leave to appeal to the Immigration Appeal Tribunal. Representations to the Home Office were also rejected, basically on the ground that the couple could live together in the Philippines and that there were not sufficient reasons for the Home Secretary to exercise his extra-statutory discretion.

Between April 1980 and December 1984, Mr. Cabales continued to live in the Philippines and the couple were separated, apart from a short period in 1983 when Mrs. Cabales visited that country. However, following an application made by her in November 1982 under section 6 of the British Nationality Act 1981 (see paragraph 26 (d) above), Mrs. Cabales obtained naturalisation as a British citizen with effect from 18 April 1984; she thereby lost her Philippine citizenship. On 10 July 1984, Mr. Cabales applied for entry clearance for permanent settlement as the husband of a British citizen, under paragraph 54 of the 1983 Rules (see paragraphs 30-31 above). For the reasons and in the circumstances indicated in the following paragraph, this application was refused on 1 October 1984 but, on the following day, Mr. Cabales applied for and was granted a visa entitling him to enter the United Kingdom for three months for the purposes of marriage. He arrived in that country on 19 December 1984 and the parties were married there on 26 January 1985. On 4 February, he was granted leave to remain as a husband for the next twelve months; on the expiry of that period, he will be eligible to apply for indefinite leave.

In a memorial filed with the Court on 27 July 1984, the Government questioned the validity of the 1980 marriage (see paragraph 45 above). Under Articles 53 and 80 of the Philippine Civil Code, a marriage solemnised without a licence was to be considered void, save in the case of a "marriage of exceptional character", that is one between persons who have lived together as husband and wife for at least five years (Article 76). The Cabales marriage contract recited that the ceremony the couple went through in 1980 had been performed, without a licence, under Article 76. The parties had stated in a contemporaneous affidavit that they had previously cohabited for at least five years, but according to Mrs. Cabales' version of the facts this could not be so since she had not met Mr. Cabales until 1977 (see paragraph 45 above). According to the Government, the requirements of Article 76 were therefore not satisfied and the marriage thus had to be considered void.

At the hearings on 25 September 1984, the applicant's counsel expressed the view that, assuming a defect existed, it was purely formal and the status of Mr. and Mrs. Cabales could be regarded as akin to that of the parties to a common-law marriage. Her representative subsequently filed with the Court details of the advice he had received from Philippine lawyers, to the effect that under the law of that country the marriage was to be presumed valid unless and until it was declared void by a court. The Government replied that they had been advised that the marriage was void ab initio and that no judicial decree was necessary to establish its invalidity. This opinion was contradicted in further advice obtained on behalf of Mrs. Cabales.

Mr. and Mrs. Cabales were interviewed by the United Kingdom authorities in August and September 1984. They adduced no evidence to alter the Government's conclusion that the marriage was void. However, Mrs. Cabales stated that if Mr. Cabales were admitted to the United Kingdom, the couple would go through a ceremony of marriage in that country. It was in these circumstances that in October 1984 Mr. Cabales was refused leave to settle as a husband but was regarded as eligible, under the 1983 Rules, for leave to enter the United Kingdom temporarily as the fiancé of a British citizen.

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

Mrs. Sohair Balkandali is permanently and lawfully resident in the United Kingdom with the right to remain indefinitely. She was born in Egypt in 1946 or 1948. Her parents were born and live in that country.

This applicant first went to the United Kingdom in November 1973 and was given leave, as a "non-patrial" (see paragraphs 13-15 above), to enter as a visitor for one month. Subsequently, she obtained several further leaves to remain, as a visitor or a student, the last being until August 1976. She has a high level of university education. In 1978, she married a Mr. Corbett, a citizen of the United Kingdom and Colonies, and, five days later, was given indefinite leave to remain in the United Kingdom, by virtue of her marriage, under the provisions then in force. On 26 October 1979, again by virtue of her marriage, she obtained registration as a citizen of the United Kingdom and Colonies under the British Nationality Act 1948, as a result of which she became a "patrial" (see paragraphs 11 in fine and 14 (a) above). At that time, she was already separated from Mr. Corbett and the marriage was dissolved in October 1980.

Mr. Bekir Balkandali is a Turkish national born in Turkey on 9 April 1946. In January 1979, he was granted leave, as a "non-patrial", to enter the United Kingdom, apparently as a visitor, for one month. Subsequently, he obtained leave to remain as a student until 31 March 1980. His application of 2 April for an extension of this leave was refused on 23 September 1980 because he had not attended his course of studies and the Home Secretary was not satisfied that he was a genuine student who intended to leave the country on their conclusion. Since his application for an extension had been made after his leave had expired, he had no right of appeal under the 1971 Act (see paragraph 35 above); he was advised to leave the United Kingdom and warned of the risk of criminal or deportation proceedings (see paragraph 33 above) if he did not.

Since the autumn of 1979, the applicant had been living with Mr. Balkandali. In April 1980 they had a son, who has the right of abode in the United Kingdom. On 14 October 1980, an application was made by the Joint Council for the Welfare of Immigrants for leave for Mr. Balkandali to remain in the United Kingdom until he married his fiancée, the applicant. They were interviewed together by Home Office officials on 30 March 1981 and produced evidence of their marriage, which had been celebrated in January 1981. The application was therefore treated as one to remain as the husband of a woman settled in the United Kingdom.

Leave was refused on 14 May 1981 on the ground that Mrs. Balkandali was not a citizen of the United Kingdom and Colonies who, or one of whose parents, had been born in the United Kingdom (paragraph 117 of the 1980 Rules; see paragraph 24 (a) (i) above). There was no right of appeal against this decision as Mr. Balkandali had no current leave to remain at the time when his application was made (see paragraph 35 above). Representations through a Member of Parliament to the Home Office were rejected, basically on the ground that the couple could live together in Turkey and that there were not sufficient compelling compassionate circumstances to warrant exceptional treatment outside the immigration rules. In a letter of 18 December 1981 to the Member, the Minister of State at the Home Office wrote that "Mr. Balkandali should now make arrangements to leave the United Kingdom forthwith, otherwise arrangements will be made to enforce his departure"; however, a letter of 3 December 1982 to the Member stated that "[the Minister did] not propose for the time being to take any action against [Mr. Balkandali]". In fact, the authorities did not at any time institute criminal or deportation proceedings (see paragraph 33 above) against him; their decision, according to the Government, was taken in the light of all the circumstances, including the Commission's decision on the admissibility of Mrs. Balkandali's application (see paragraph 55 below).

On 20 January 1983, as the husband of a British citizen, Mr. Balkandali was given twelve months' leave to remain in the United Kingdom in accordance with paragraph 126 of the 1982 Rules (see paragraph 28 (a) above); this was possible because, on 1 January 1983, Mrs. Balkandali had automatically acquired British citizenship by virtue of the British Nationality Act 1981 (see paragraph 26 (b) above). Mr. Balkandali subsequently applied for indefinite leave to remain and this was granted on 18 January 1984 under paragraph 177 of the 1983 Rules (see paragraph 31 above). In September 1984, he was working in the catering business and planned shortly to open a restaurant; his wife was working two days a week in a creche.

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


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

The applicants, Todor Ivanov Todorov and Petranka Ruseva Todorova, are Bulgarian nationals who were born in 1944 and 1948 respectively and live in Varna. They are represented before the Court by Mr M. Ekimdjiev and Mrs K. Boncheva, lawyers practising in Plovdiv.

The applicants are spouses. In 1986 they bought from the Varna municipality a State-owned apartment, which had been managed by the company C.

On 7 January 1991 the applicants bought from the municipality an attic room in the same building for 4,034 old Bulgarian levs (“BGL”).

Apparently, following the legal reforms of the 1990s (see below, Relevant background facts, domestic law and practice), the company C. considered that it had become the owner of the attic room and on an unspecified date it granted the tenancy of the room to Mr and Mrs P.

In 1997 the applicants brought a rei vindicatio action against Mr and Mrs P. claiming the possession of the room.

In a judgment of 25 June 1998 the Varna District Court dismissed the claim. On 9 August 1999 the Varna Regional Court upheld the lower court’s judgment. It found, inter alia, that the sale contract of 7 January 1991 was null and void ab initio as it had not been signed by the mayor, as required by law, but by another official of the municipality. The applicants, thus, had not shown that they were the owners of the attic room.

In the meanwhile, on 30 April 1999 the company C. sold the attic room to Mr and Mrs P.

On 27 February 2001 the applicants brought an action against C. seeking back the price they had paid for the attic room in 1991, updated in accordance with the inflation indexes.

On 4 April 2002 the Varna Regional Court dismissed the claim finding that the 7 January 1991 sale contract had been found to be null and void in proceedings, which had not involved the company C.; it was not therefore bound by this founding of nullity.

Upon appeal by the applicants, on 16 January 2003 the Varna Court of Appeal reversed the judgment and held that the applicants were in principle entitled to recovery of the sum. It awarded them the amount they had paid for the attic in 1991, the equivalent of BGL 4,034. However, as a result of inflation and the depreciation of the Bulgarian currency after 1991, the sum amounted to approximately EUR 2.

In a final judgment of 18 March 2004 the Supreme Court of Cassation dismissed the applicants’ claim. It found that the action had been time-barred as the five-year time limit for seeking the recovery of what had been paid under a void contract started running from the day of payment, which in this case had been in 1991.

By section 55 (1) of the Obligations and Contracts Act, everyone who has paid a sum of money on a non-existent ground is entitled to seek its recovery. In a binding interpretative decision of 1979 the Supreme Court of Bulgaria (now Supreme Court of Cassation) held that the time-limit to bring such an action started running from the moment of payment (Interpretive Decision No. 1 of the Plenary of the Supreme Court of 28 May 1979, case No. 1/79).

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

Until the beginning of the 1990s, all commercial assets were the property of the State and were only allocated to State enterprises for “use and management”. After the beginning of democratisation and economic change and the ensuing transformation of these enterprises into State-owned limited liability or joint stock companies, the transformed companies acquired ownership of real estate or other assets they had used and managed (see, for more detail, the Court’s description of this transformation in the case of Credit Bank and Others v. Bulgaria (no. 40064/98, ECHR 30 April 2002)).


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

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

The applicant was born on 14 August 1982 and is currently serving concurrent sentences of imprisonment at the Nicosia Central Prison.

In the context of a police investigation concerning a murder and robbery which took place on 19 April 2000, the police contacted the applicant’s father and invited him and the applicant to visit the Limassol police station. At the time the applicant was just over 17 years old. The applicant went to the police station accompanied by his father. The Limassol District Police Director (hereinafter “the Police Director”) informed the applicant’s father, in the presence of the applicant, about the crime that had been committed, the seriousness of the case, and the fact that there was evidence involving the applicant and that an arrest warrant had been issued against him.

According to the applicant, he immediately stated that he was innocent. Another police officer told him that his friend had already confessed to murdering the victim together with the applicant. The police officer added that the applicant’s friend was crying and hitting his head against a wall while he (the applicant) was merely lying to them. Then, another police officer came into the Police Director’s room holding an arrest warrant and informed the applicant that he was under arrest for murder. The applicant replied that he had nothing to add to his statement that he was innocent. The police officer then told the applicant to follow him into a different office. There there were 5 or 6 officers who started asking him questions and inducing him to confess, promising that if he did so they would assist him. They questioned him for approximately 30-40 minutes but he kept saying that he could not remember anything as he had been very drunk the night before. At some stage during the interrogation a police officer put his gun on the desk and told the applicant that he should hurry up as they had other things to do. The police officers told him that if he wanted to go he should confess. Subsequently a police officer suggested that they take a written statement from the applicant and that the police officers would remind him of anything he could not remember. The applicant then agreed to make a written statement. He denied having made any prior oral admission.

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

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

The applicant was charged with manslaughter and robbery under the Criminal Code (Cap. 154). On 9 May 2000 the applicant noted in an additional written statement: “I did not hit him (the victim) with the stone but only kicked him a couple of times.”

The applicant and his co-accused were brought for trial before the Limassol Assize Court.

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

On 11 and 12 January 2001 the court heard the evidence of the Police Director concerning the applicant’s arrest and questioning. The Director confirmed that he had invited the applicant and his father to his office, where he had told the father, without addressing the applicant, that an arrest warrant had been issued against the applicant in connection with a murder and that there was evidence linking the applicant to the crime. The applicant had then been cautioned, arrested and taken into a separate room for questioning. Shortly after the applicant left the room the Director had explained to the applicant’s father the seriousness of the case and suggested that they find a lawyer.

On 7 February 2001 the Assize Court, having considered all the evidence put before it, found that the applicant’s confession had been voluntary and that he had not been subjected to any undue or improper pressure by the police to secure it. The evidence of the prosecution gave a clear picture of the events that had taken place and the court dismissed the applicant’s allegations that, at the time of his confession, he had suffered loss of memory due to drunkenness. The confession was, therefore, admissible as evidence.

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

Subsequently, on 14 February 2001, during the main trial, the following exchange took place between the applicant’s lawyer, Mr Kyprianou, and the bench (translation of verbatim record of the proceedings):

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

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

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

Ms Kyriakidou (prosecutor): The position of the prosecution on the basis of Article 7 of the Law on Criminal Procedure (is that) to make any complaint the Defence must apply in writing to the prosecution to ask for any statement in the file and if the Prosecution refuses, then the defence is entitled to complain.

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

Court: We have considered the request of the learned counsel of accused no. 2 for the Court to interrupt the proceedings so that he can get statements of persons who gave statements during the investigation of the case from his opponents. As stated earlier today, the defence had a right, on the basis of Article 7 of the Law on Criminal Procedure, Cap.155, to request to be supplied with the said copies from the day when the accused pleaded not guilty, but failed to do so.

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

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

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

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

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

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

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

Court: Mr Kyprianou...

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

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

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

Court: We consider your persistence...

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

Court: We consider that what has just been said by Mr Kyprianou, and in particular the manner in which he addresses the court, constitutes a contempt of court and Mr Kyprianou has two choices: either to maintain what he said and to give reasons why no sentence should be imposed on him, or to decide whether he should retract. We give him this opportunity exceptionally. Section 44 (1) (a) of the Courts of Justice Law applies to its full extent.

Mr Kyprianou: You can try me.

Court: Would you like to say anything?

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

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

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

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

Court: We considered the matter during the adjournment and continue to believe that what Mr Kyprianou said, the content, the manner and the tone of his voice, constitute a contempt of court as provided for in section 44 (1) (a) of the Courts of Justice Law 14/60 ... that is, showing disrespect to the court by way of words and conduct. We already asked Mr Kyprianou before the break if he had anything to add before we pass sentence on him. If he has something to add, let us hear him. Otherwise, the court should proceed.

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

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

After a short break the Assize Court, by a majority, sentenced Mr Kyprianou to five days’ imprisonment. The court referred to the above exchange between Mr Kyprianou and its members and held as follows:

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

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

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

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

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

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

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

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

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

Mr Kyprianou served his prison sentence immediately. He was in fact released before completing the full term in accordance with section 9 of the Prison Law (Law no. 62(I)/1996).

The applicant continued to be represented by Mr Kyprianou for the rest of his trial.

On 21 February 2001 the defence requested the judges to withdraw from the case in view of the events that had occurred so that the case could be tried by another bench. Mr Kyprianou requested that the court be addressed by another lawyer in this respect, given the fact that he had been directly concerned by the court’s decision on contempt. The defence was concerned that the court would not be impartial. This request was granted.

On 2 March 2001, by an interim decision, the Assize Court dismissed the request for its withdrawal. Having examined the relevant case-law on the issue it found that no ground had been established for its withdrawal. In this connection it noted that:

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

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

The proceedings therefore continued before the same bench.

On 10 May 2001 the Assize Court found the applicant guilty of manslaughter and robbery. The court dismissed the applicant’s allegations that his confession had been fabricated by the police and taken under suspicious circumstances. It found that there had been clear, independent and persuasive evidence demonstrating the genuine nature of his confession to the police. Furthermore, it noted that apart from the free and voluntary confession, the conclusion about the applicant’s guilt was supported by other strong and independent evidence and facts. In particular, the court relied on the applicant’s further statement of 9 May 2000 (see paragraph 11 above), placing the applicant at the time and place of the crime and confirming that he used force against the victim, a statement of a friend of the applicant to whom the applicant had stated that he had been involved in a serious fight with the victim, and various testimonies confirming that the applicant had been seen in a pub drinking and talking to the victim, leaving the pub right after the victim and heading in the same direction as the victim. Moreover, further testimonies confirmed that the applicant was seen in the early hours of the following morning drinking in another pub dressed in clothes covered in mud. The medical evidence concerning the victim’s death had confirmed that the cause of death had been multiple and violent blows, a finding which was consistent with the applicant’s two statements as well as that of his co-accused. The confession of his co-accused could not be treated as evidence against the applicant.

On 24 May 2001 the Assize Court sentenced the applicant to two concurrent sentences of imprisonment for fourteen and six years for manslaughter and robbery respectively.

On 29 May 2001 the applicant lodged an appeal with the Supreme Court against his conviction and sentence.

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

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

On 3 July 2003 the Supreme Court dismissed both appeals.

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

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

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

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

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

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

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

Concerning the Mr Kyprianou’s request to stop acting as counsel for the applicant (see paragraphs 18 and 35 above), the Government clarified that it was made before the contempt proceedings. This was supported by the applicant and the relevant transcript of the proceedings.

Article 11 (4) of the Constitution of the Republic of Cyprus provides as follows:

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

Article 12 (4) and (5) of the Constitution provides, in so far as relevant, as follows:

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

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

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

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

Article 30 (2) and (3) provides, in so far as relevant, as follows:

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

(3) Every person has the right:

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

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

The ICCPR provides in Article 14(4), which broadly corresponds to Article 6 of the European Convention, that:

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

Section 8 of the Criminal Procedure Law, Cap. 155 provides as follows:

“Without prejudice to the generality of section 3 of this Law and without prejudice to the operation of section 5 of this Law the rules for the time being approved by Her Majesty’s Judges of the Queen’s Bench Division in England relating to the taking of statements by police officers (known as ‘The Judges’ Rules’) shall apply to the taking of statements in the Colony as they apply to the taking of statements in England”.

Section 13 of the Criminal Procedure Law, Cap. 155 provides, in so far as relevant, as follows:

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

Rule II of the Judges’ Rules provides as follows:

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

The caution shall be in the following terms:

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

The CPT standards on police detention were set out in its 2nd General Report [CPT/Inf (92) 3] as follows:

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

Persons taken into police custody should be expressly informed without delay of all their rights, including those referred to in paragraph 36. Further, any possibilities offered to the authorities to delay the exercise of one or other of the latter rights in order to protect the interests of justice should be clearly defined and their application strictly limited in time. As regards more particularly the rights of access to a lawyer and to request a medical examination by a doctor other than one called by the police, systems whereby, exceptionally, lawyers and doctors can be chosen from pre-established lists drawn up in agreement with the relevant professional organisations should remove any need to delay the exercise of these rights.

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

The CPT standards on juveniles deprived of their liberty were set out in the CPT’s 9th General Report [CPT/Inf (99) 12] as follows:

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

In Vouniotis v. The Republic (1975) 2 C.L.R. 34 the Supreme Court held that the court should verify the truthfulness of a confession by independent evidence. In this case the following extracts from R v Sykes 8 Cr. App. Rev. were cited with approval:

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

In the case of Kafkaris v. The Republic (1990) 2 CLR 203, the following was stated:

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