ITEMID: 001-58407
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 1999
DOCNAME: CASE OF LUSTIG-PREAN AND BECKETT v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: Violation of Art. 8;No separate issue under Art. 14+8;Just satisfaction reserved
JUDGES: Nicolas Bratza;Simon Brown
TEXT: 11. Mr Lustig-Prean (the first applicant) joined the Royal Navy Reserve as a radio operator and in 1982 commenced a career in the Royal Navy. On 27 April 1983 he became a midshipman in the executive branch of the navy. His evaluation of November 1989 noted that he was an officer with “great potential” and the “sort of person that the Royal Navy needs to attract and retain”. His evaluation of December 1993 concluded that the applicant “is a balanced, enlightened and knowledgeable man who enjoys my complete trust in all matters. He is an outstanding prospect for early promotion to commander.” In 1994 the applicant attained the rank of lieutenant-commander.
12. For about thirty months prior to June 1994 the applicant had been involved in a steady relationship with a civilian partner. In early June 1994 the applicant was informed that the Royal Navy Special Investigations Branch (“the service police”) had been given his name anonymously in connection with an allegation of homosexuality and was investigating the matter. The applicant admitted to his commanding officer that he was homosexual.
13. The applicant was interviewed on 13 June 1994 by personnel from the service police about his sexual orientation for approximately twenty minutes. At the beginning of the interview, the applicant was cautioned that he did not have to answer questions and that any responses could be used in evidence later. He was also informed that he could obtain legal advice. The applicant confirmed his awareness of those rights and agreed to be interviewed without legal advice. He then confirmed that he was homosexual, acknowledging that he had been a practising homosexual since his teenage years.
He was then asked, inter alia, whether he had had homosexual contact with service personnel (at least four questions on this subject), what type of sexual relations he had had with a particular person, when and where this had occurred, about his current relationship and whether his parents knew of his homosexuality. The applicant was asked repeatedly about who had tipped him off that he was the subject of an investigation by the service police and he was told that the question was put because the service police had “a lot of background knowledge about certain things” and there was somebody “providing information to us”. The applicant indicated that he was anxious to assist the service police to make sure that the issue was kept as “private and discreet as possible”. He was then informed that a search was normally completed but the search did not take place since, in anticipation, the applicant had already cleared his cabin of any incriminating evidence.
14. The applicant was again interviewed on 14 June 1994 for approximately ten minutes. It was explained to the applicant that the purpose of the interview was to ask him about an allegation, contained in an anonymous letter sent to the applicant’s commanding officer some time previously, that the applicant had had a relationship with a serviceman. The interviewer then explained that he was “attempting to keep the need to visit Newcastle and to investigate this matter to a minimum”, as the applicant wished. The applicant was then asked whether he had had the relationship as alleged in the letter. The anonymous letter was read. The writer claimed that he had recently had a relationship with the applicant, that the writer was HIV-positive and that he believed that the applicant was involved with a member of the armed forces. The applicant’s comments were requested, in particular, as to who would have written the letter. The interviewer also enquired of the applicant “purely as a matter of interest, although it’s a personal thing” whether the applicant was HIV-positive. In this context, it was indicated a number of times to the applicant that the purpose of the second interview was to avoid further investigations. He was also told that it would “come back” on the applicant’s interviewer if the latter did not properly follow up on the anonymous letter.
15. In a final evaluation dated 14 June 1994 the applicant’s commander noted that the applicant left the ship “with a well-deserved reputation for outstanding professional ability and admirable personal qualities”. He concluded that the applicant’s “loyal, dependable and always dignified service” would be “sorely missed”.
16. On 16 December 1994 the Admiralty Board informed the applicant that it had decided to terminate his commission and to discharge him, administratively, from the navy with effect from 17 January 1995. The ground for his discharge was his sexual orientation. The applicant’s commission was removed and most of the bonus which he had received with that promotion was recouped by the naval authorities (£4,875 out of £6,000). His term of service would otherwise have terminated in 2009, with the possibility of renewal.
17. On 20 February 1989 Mr Beckett (the second applicant) joined the Royal Navy, enlisting for twenty-two years’ service. In 1991 he became a substantive weapons engineering mechanic. The applicant’s report dated 27 November 1992 noted that he displayed potential in a number of areas essential to good leadership, that he had the ability to become an above-average leading hand and that if he applied his new skills wisely he could, with experience, be considered as a potential officer candidate.
18. In May 1993 the applicant had been refused time off to deal with a personal matter (he wished to collect his Aids test results) and consequently he spoke with the chaplain, to whom he admitted his sexual orientation. On 10 May 1993 the applicant was asked by his lieutenant-commander to repeat what he had told the chaplain and he again admitted his homosexuality to that officer. He was then called for interview by the service police. He was cautioned in the same terms as the first applicant and told that he would not be questioned on the above admissions prior to a search of his locker. His consent to the search was requested and given. The interview, which had lasted approximately five minutes, was suspended pending the search. During the search, slides (of himself, his partner and some of his service friends) and personal postcards were seized.
19. The applicant’s interview with the service police then resumed and lasted approximately one hour. The applicant immediately confirmed his homosexuality, later clarifying that he first had “niggling doubts” about his sexual orientation approximately two and a half years previously. He was then questioned about a previous relationship with a woman; he was asked the woman’s name and where she was from, when he had that relationship, why it ended, whether they had a sexual relationship, whether he enjoyed their relationship and whether “she was enough for you”. Details were sought as to how and what he did when he realised he was homosexual and, in this respect, he was asked what sort of feelings he had for a man, whether he had been “touched up” or “abused” as a child and whether he had bought pornographic magazines.
The applicant was then questioned about his first and current homosexual relationship which began in December 1992 and, in this regard, he was asked about his first night with his partner, who was “butch” and who was “bitch” in the relationship and what being “butch” meant in sexual terms. Detailed questions were put as to how they had sex and whether they used condoms, lubrication and other sex aids, whether they ever had sex in a public place and how they intended to develop the relationship. He was also asked about gay bars he frequented, whether he had ever joined contact magazines, whether his parents knew about his homosexuality and whether he agreed that his secret life could be used as a basis to blackmail him and render him a weak link in the service. The personal slides and postcards which had been taken from his locker were examined and the applicant was questioned in detail about their contents.
20. The service police report completed after the applicant’s interview included several internal documents where it was noted that the applicant, in openly declaring his homosexuality and his relationship with a civilian, had effectively disposed “of any immediate potential security concern”. For that reason, it was considered in the report that “no cause was identified for conducting a security interview with Beckett”. That report also accepted that a case for fraudulent entry into the armed forces would be inappropriate given the date when the applicant had discovered his homosexuality. An officer, who advised the Admiralty Board on the applicant’s discharge, noted that the applicant’s reporting officers had commented on his “affability, intelligence, dedication and ambition” and pointed out that, had it not been for the applicant’s homosexuality, “his Royal Navy career would have blossomed”.
21. Prior to his discharge, the applicant completed his duties and remained in communal sleeping accommodation with no reported difficulties. On 28 July 1993 the applicant’s administrative discharge was approved on the basis of his homosexuality. The applicant then complained about the decision to discharge him to the Admiralty Board and on 6 December 1994 the Admiralty Board dismissed the applicant’s complaint.
22. Along with Ms Smith and Mr Grady (see paragraph 3 above), the applicants obtained leave to apply for judicial review of the decisions to discharge them from the armed forces. The applicants argued that the policy of the Ministry of Defence against homosexuals in the armed forces was “irrational”, that it was in breach of the Convention and that it was contrary to the Equal Treatment Directive. The Ministry of Defence maintained that the policy was necessary mainly to maintain morale and unit effectiveness, in view of the loco parentis role of the services as regards minor recruits and in light of the requirement of communal living in the armed forces.
23. On 7 June 1995 the High Court dismissed the application for judicial review, Lord Justice Simon Brown giving the main judgment of the court. He noted that the cases illustrated the hardships resulting from the absolute policy against homosexuals in the armed forces and that all four of the applicants had exemplary service records, some with reports written in glowing terms. Moreover, he found that in none of the cases before him was it suggested that the applicants’ sexual orientation had in any way affected their ability to carry out their work or had any ill-effect on discipline. There was no reason to doubt that, but for their discharge on the sole ground of sexual orientation, they would have continued to perform their service duties entirely efficiently and with the continued support of their colleagues. All were devastated by their discharge.
Simon Brown LJ reviewed the background to the “age old” policy, the relevance of the Parliamentary Select Committee’s report of 1991, the position in other armed forces around the world, the arguments of the Ministry of Defence (noting that the security argument was no longer of substantial concern to the Government) together with the applicants’ arguments against the policy. He considered that the balance of argument clearly lay with the applicants, describing the applicants’ submissions in favour of a conduct-based code as “powerful”. In his view, the tide of history was against the Ministry of Defence. He further observed that it was improbable, whatever the High Court would say, that the policy could survive for much longer and added, “I doubt whether most of those present in court throughout the proceedings now believe otherwise.”
24. However, having considered arguments as to the test to be applied in the context of these judicial review proceedings, Simon Brown LJ concluded that the conventional Wednesbury principles, adapted to a human rights context, should be applied.
Accordingly, where fundamental human rights were being restricted, the Minister of Defence needed to show that there was an important competing interest to justify the restriction. The primary decision was for him and the secondary judgment of the court amounted to asking whether a reasonable Minister, on the material before him, could have reasonably made that primary judgment. He later clarified that it was only if the purported justification “outrageously defies logic or accepted moral standards” that the court could strike down the Minister’s decision. He noted that within the limited scope of that review, the court had to be scrupulous to ensure that no recognised ground of challenge was in truth available to an applicant before rejecting the application. When the most fundamental human rights are threatened, the court would not, for example, be inclined to overlook some minor flaw in the decision-making process, or to adopt a particularly benevolent view of the Minister’s evidence, or to exercise its discretion to withhold relief. However, he emphasised that, even where the most fundamental human rights were being restricted, “the threshold of unreasonableness is not lowered”.
It was clear that the Secretary of State had cited an important competing public interest. But the central question was whether it was reasonable for the Secretary of State to take the view that allowing homosexuals into the forces would imperil that interest. He pointed out that, although he might have considered the Minister wrong,
“…[the courts] owe a duty ... to remain within their constitutional bounds and not trespass beyond them. Only if it were plain beyond sensible argument that no conceivable damage could be done to the armed services as a fighting unit would it be appropriate for this Court now to remove the issue entirely from the hands of both the military and of the government. If the Convention … were part of our law and we were accordingly entitled to ask whether the policy answers a pressing social need and whether the restriction on human rights involved can be shown proportionate to the benefits then clearly the primary judgment … would be for us and not others: the constitutional balance would shift. But that is not the position. In exercising merely a secondary judgment, this Court is bound to act with some reticence. Our approach must reflect, not overlook, where responsibility ultimately lies for the defence of the realm and recognise too that Parliament is exercising a continuing supervision over this area of prerogative power.”
Accordingly, while the Minister’s suggested justification for the ban may have seemed “unconvincing”, the Minister’s stand could not properly be said to be unlawful. It followed that the applications had to be rejected “albeit with hesitation and regret”. A brief analysis of the Convention’s case-law led the judge to comment that he strongly suspected that, as far as the United Kingdom’s obligations were concerned, the days of the policy were numbered.
25. Simon Brown LJ also found that the Equal Treatment Directive was not applicable to discrimination on grounds of sexual orientation and that the domestic courts could not rule on Convention matters. He also observed that the United States, Canada, Australia, New Zealand, Ireland, Israel, Germany, France, Norway, Sweden, Austria and the Netherlands permitted homosexuals to serve in their armed forces and that the evidence indicated that the only countries operating a blanket ban were Turkey and Luxembourg (and, possibly, Portugal and Greece).
26. In August 1995 a consultation paper was circulated by the Ministry of Defence to “management” levels in the armed forces relating to the Ministry of Defence’s policy against homosexuals in those forces. The covering letter circulating this paper pointed out that the “Minister for the Armed Forces has decided that evidence is to be gathered within the Ministry of Defence in support of the current policy on homosexuality”. It was indicated that the case was likely to progress to the European courts and that the applicants in the judicial review proceedings had argued that the Ministry of Defence’s position was “bereft of factual evidence” but that this was not surprising since evidence was difficult to amass given that homosexuals were not permitted to serve. Since “this should not be allowed to weaken the arguments for maintaining the policy”, the addressees of the letter were invited to comment on the consultation paper and “to provide any additional evidence in support of the current policy by September 1995”. The consultation paper attached referred, inter alia, to two incidents which were considered damaging to unit cohesion. The first involved a homosexual who had had a relationship with a sergeant’s mess waiter and the other involved an Australian on secondment whose behaviour was described as “so disruptive” that his attachment was terminated.
27. On 3 November 1995 the Court of Appeal dismissed the applicants’ appeal. The Master of the Rolls, Sir Thomas Bingham, delivered the main judgment (with which the two other judges of the Court of Appeal agreed).
28. As to the court’s approach to the issue of “irrationality”, he considered that the following submission was an accurate distillation of the relevant jurisprudence on the subject:
“the court may not interfere with the exercise of an administrative discretion on substantive grounds save where the court is satisfied that the decision is unreasonable in the sense that it is beyond the range of responses open to a reasonable decision- maker. But in judging whether the decision-maker has exceeded this margin of appreciation the human rights context is important. The more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable in the sense outlined above.”
He went on to quote from, inter alia, the judgment of Lord Bridge in R. v. Secretary of State for the Home Department, ex parte Brind [1991] 1 Appeal Cases 696, where it was pointed out that:
“the primary judgment as to whether the particular competing public interest justifies the particular restriction imposed falls to be made by the Secretary of State to whom Parliament has entrusted the discretion. But we are entitled to exercise a secondary judgment by asking whether a reasonable Secretary of State, on the material before him, could reasonably make that primary judgment.”
Moreover, he considered that the greater the policy content of the decision and the more remote the subject matter of a decision from ordinary judicial experience, the more hesitant the court had to be in holding a decision to be irrational.
29. Prior to applying this test of irrationality, the Master of the Rolls noted that the case concerned innate qualities of a very personal kind, that the decisions of which the applicants complained had had a profound effect on their careers and prospects and that the applicants’ rights as human beings were very much in issue. While the domestic court was not the primary decision-maker and while it was not the role of the courts to regulate the conditions of service in the armed forces, “it has the constitutional role and duty of ensuring that the rights of citizens are not abused by the unlawful exercise of executive power. While the court must properly defer to the expertise of responsible decision-makers, it must not shrink from its fundamental duty to ‘do right to all manner of people’ …”.
30. He then reviewed, by reference to the test of irrationality outlined above, the submissions of the parties in favour of and against the policy, commenting that the applicants’ arguments were “of very considerable cogency” which called to be considered in depth with particular reference to past experience in the United Kingdom, to the developing experience of other countries and to the potential effectiveness of a detailed prescriptive code in place of the present blanket ban. However, he concluded that the policy could not be considered “irrational” at the time the applicants were discharged from the armed forces, finding that the threshold of irrationality was “a high one” and that it had not been crossed in this case.
31. On the Convention, the Master of the Rolls noted as follows:
“It is, inevitably, common ground that the United Kingdom’s obligation, binding in international law, to respect and ensure compliance with [Article 8 of the Convention] is not one that is enforceable by domestic courts. The relevance of the Convention in the present context is as background to the complaint of irrationality. The fact that a decision-maker failed to take account of Convention obligations when exercising an administrative discretion is not of itself a ground for impugning the exercise of that discretion.”
He observed that to dismiss a person from his or her employment on the grounds of a private sexual preference, and to interrogate him or her about private sexual behaviour, would not appear to show respect for that person’s private and family life and that there might be room for argument as to whether the policy answered a “pressing social need” and, in particular, was proportionate to the legitimate aim pursued. However, he held that these were not questions to which answers could be properly or usefully proffered by the Court of Appeal, but rather were questions for the European Court of Human Rights to which court the applicants might have to pursue their claim. He further accepted that the Equal Treatment Directive did not apply to complaints in relation to sexual orientation.
32. Henry LJ of the Court of Appeal agreed with the judgment of the Master of the Rolls and, in particular, with the latter’s approach to the irrationality test and with his view on the inability of the court to resolve Convention issues. He questioned the utility of a debate as to the likely fate of the “longstanding” policy of the Ministry of Defence before the European Court of Human Rights with which the primary adjudicating role on the Convention lay. The Court of Appeal did not entertain “hypothetical questions”. In Henry LJ’s view, the only relevance of the Convention was as “background to the complaint of irrationality”, which point had been already made by the Master of the Rolls. It was important to highlight this point since Parliament had not given the domestic courts primary jurisdiction over human rights issues contained in the Convention and because the evidence and submissions before the Court of Appeal related to that court’s secondary jurisdiction and not to its primary jurisdiction.
33. Thorpe LJ of the Court of Appeal agreed with both preceding judgments and, in particular, with the views expressed on the rationality test to be applied and on its application in the particular case. The applicants’ arguments that their rights under Article 8 had been breached were “persuasive” but the evidence and arguments that would ultimately determine that issue were not before the Court of Appeal. He also found that the applicants’ challenge to the arguments in support of the policy was “completely persuasive” and added that what impressed him most in relation to the merits was the complete absence of illustration and substantiation by specific examples, not only in the Secretary of State’s evidence filed in the High Court, but also in the case presented to the Parliamentary Select Committee in 1991. The policy was, in his view, “ripe for review and for consideration of its replacement by a strict conduct code”. However, the applicants’ attack on the Secretary of State’s rationality fell “a long way short of success”.
34. On 19 March 1996 the Appeals Committee of the House of Lords refused leave to appeal to the House of Lords.
35. In December 1995 Mr Lustig-Prean issued proceedings in the Industrial Tribunal claiming unfair dismissal and sexual discrimination contrary to the Sexual Discrimination Act 1975. Those proceedings were adjourned pending the above-described application for leave to appeal to the House of Lords. Further to the rejection of the application, he requested the withdrawal of his Industrial Tribunal proceedings and those proceedings were dismissed by the Industrial Tribunal on 25 April 1996.
36. In December 1997 Mr Beckett also issued proceedings in the Industrial Tribunal claiming sexual discrimination contrary to the 1975 Act. In the light of subsequent decisions of the ECJ and of the domestic courts, the second applicant subsequently requested the withdrawal of those proceedings which were, on 27 August 1998, dismissed by the Industrial Tribunal.
37. By virtue of section 1(1) of the Sexual Offences Act 1967, homosexual acts in private between two consenting adults (at the time meaning 21 years or over) ceased to be criminal offences. However, such acts continued to constitute offences under the Army and Air Force Acts 1955 and the Naval Discipline Act 1957 (Section 1(5) of the 1967 Act). Section 1(5) of the 1967 Act was repealed by the Criminal Justice and Public Order Act 1994 (which Act also reduced the age of consent to 18 years). However, section 146(4) of the 1994 Act provided that nothing in that section prevented a homosexual act (with or without other acts or circumstances) from constituting a ground for discharging a member of the armed forces.
38. On 30 April 1996 the ECJ decided that transsexuals were protected from discrimination on grounds of their transsexuality under European Community law (P. v. S. and Cornwall County Council [1996] Industrial Relations Law Reports 347).
39. On 13 March 1997 the High Court referred to the ECJ pursuant to Article 177 of the Treaty of Rome the question of the applicability of the Equal Treatment Directive to differences of treatment based on sexual orientation (R. v. Secretary of State for Defence, ex parte Perkins, 13 March 1997). Mr Perkins had been discharged from the Royal Navy on grounds of his homosexuality.
40. On 17 February 1998 the ECJ found that the Equal Pay Directive 75/117/EEC did not apply to discrimination on grounds of sexual orientation (Grant v. South West Trains Ltd [1998] Industrial Cases Reports 449).
41. Consequently, on 2 March 1998 the ECJ enquired of the High Court in the Perkins’ case whether it wished to maintain the Article 177 reference. After a hearing between the parties, the High Court decided to withdraw the question from the ECJ (R. v. Secretary of State for Defence, ex parte Perkins, 13 July 1998). Leave to appeal was refused.
42. As a consequence of the changes made by the Criminal Justice and Public Order Act 1994, updated Armed Forces’ Policy and Guidelines on Homosexuality (“the Guidelines”) were distributed to the respective service directorates of personnel in December 1994. The Guidelines provided, inter alia, as follows:
“Homosexuality, whether male or female, is considered incompatible with service in the armed forces. This is not only because of the close physical conditions in which personnel often have to live and work, but also because homosexual behaviour can cause offence, polarise relationships, induce ill-discipline and, as a consequence, damage morale and unit effectiveness. If individuals admit to being homosexual whilst serving and their Commanding Officer judges that this admission is well-founded they will be required to leave the services. ...
The armed forces’ policy on homosexuality is made clear to all those considering enlistment. If a potential recruit admits to being homosexual, he/she will not be enlisted. Even if a potential recruit admits to being homosexual but states that he/she does not at present nor in the future intend to engage in homosexual activity, he/she will not be enlisted. ...
In dealing with cases of suspected homosexuality, a Commanding Officer must make a balanced judgment taking into account all the relevant factors. ... In most circumstances, however, the interests of the individual and the armed forces will be best served by formal investigation of the allegations or suspicion. Depending on the circumstances, the Commanding Officer will either conduct an internal inquiry, using his own staff, or he will seek assistance from the Service Police. When conducting an internal inquiry he will normally discuss the matter with his welfare support staff. Homosexuality is not a medical matter, but there may be circumstances in which the Commanding Officer should seek the advice of the Unit Medical Officer on the individual concerned and may then, if the individual agrees, refer him/her to the Unit Medical Officer. ...
A written warning in respect of an individual’s conduct or behaviour may be given in circumstances where there is some evidence of homosexuality but insufficient ... to apply for administrative discharge ... . If the Commanding Officer is satisfied on a high standard of proof of an individual’s homosexuality, administrative action to terminate service ... is to be initiated, ... ."
One of the purposes of the Guidelines was the reduction of the involvement of the service police whose investigatory methods, based on criminal procedures, had been strongly resented and widely publicised in the past (confirmed at paragraph 9 of the Homosexual Policy Assessment Team’s report of February 1996 which is summarised at paragraphs 44-55 below. However, paragraph 100 of this report indicated that investigation into homosexuality is part of “normal service police duties”. )
43. The affidavit of Air Chief Marshal Sir John Frederick Willis KCB, CBE, Vice Chief of the Defence Staff, Ministry of Defence dated 4 September 1996, which was submitted to the High Court in the case of R. v. Secretary of State for Defence, ex parte Perkins (13 July1998), read, in so far as relevant, as follows:
“The policy of the Ministry of Defence is that the special nature of homosexual life precludes the acceptance of homosexuals and homosexuality in the armed forces. The primary concern of the armed forces is the maintenance of an operationally effective and efficient force and the consequent need for strict maintenance of discipline. [The Ministry of Defence] believes that the presence of homosexual personnel has the potential to undermine this.
The conditions of military life, both on operations and within the service environment, are very different from those experienced in civilian life. … The [Ministry of Defence] believes that these conditions, and the need for absolute trust and confidence between personnel of all ranks, must dictate its policy towards homosexuality in the armed forces. It is not a question of a moral judgement, nor is there any suggestion that homosexuals are any less courageous than heterosexual personnel; the policy derives from a practical assessment of the implications of homosexuality for fighting power.”
44. Following the decision in the case of R. v. Ministry of Defence, ex parte Smith and Others 2 Weekly Law Reports 305, the Homosexuality Policy Assessment Team (“HPAT”) was established by the Ministry of Defence in order to undertake an internal assessment of the armed forces’ policy on homosexuality. The HPAT was composed of Ministry of Defence civil servants and representatives of the three services. The HPAT’s assessment was to form the basis of the Ministry’s evidence to the next Parliamentary Select Committee (as confirmed in the affidavit of Air Chief Marshal Sir John Frederick Willis referred to at paragraph 43 above). The HPAT was to consult the Ministry of Defence, the armed forces’ personnel of all ranks, service and civilian staff responsible for carrying out the policy together with members of the legal adviser’s staff. It was also to examine the policies of other nations (Annex D to the HPAT report).
The report of the HPAT was published in February 1996 and ran to approximately 240 pages, together with voluminous annexes. The starting-point of the assessment was an assumption that homosexual men and women were in themselves no less physically capable, brave, dependable and skilled than heterosexuals. It was considered that any problems to be identified would lie in the difficulties which integration of declared homosexuals would pose to the military system which was largely staffed by heterosexuals. The HPAT considered that the best predictors of the “reality and severity” of the problems of the integration of homosexuals would be the service personnel themselves (paragraph 30 of the report).
45. There were eight main areas of investigation (paragraph 28 of the report):
(a) The HPAT consulted with policy-makers in the Ministry of Defence. The latter emphasised the uniqueness of the military environment and the distinctly British approach to service life and the HPAT found little disagreement with this general perspective from the service people it interviewed (paragraph 37);
(b) A signal was sent to all members of the services, including the reserve forces, requesting any written views on the issues. By 16 January 1996 the HPAT had received 639 letters. 587 of these letters were against any change in the policy, 58 of which were multiply signed. Only 11 of those letters were anonymous (paragraphs 46-48);
(c) The HPAT attitude survey consisted of a questionnaire administered to a total of 1,711 service personnel chosen as representative of the services. The questionnaires were administered in examination-type conditions and were to be completed anonymously. The results indicated that there was “overwhelming support across the services” for the policy excluding homosexuals from the armed forces. Service personnel viewed homosexuality as clearly more acceptable in civilian than in service life (paragraphs 49-59 and Annex G);
(d) During the HPAT’s visit to ten military bases in late 1995 in order to administer the above questionnaire, individual one-to-one interviews were conducted with personnel who had completed the attitude questionnaire. 180 interviewees randomly selected from certain ranks and occupational areas were selected from each of the ten units visited. Given the small number of interviewees, the responses were analysed qualitatively rather than quantitatively (Annex G);
(e) A number of single-service focus group discussions were held with randomly selected personnel from representative ranks and functions (Annex G refers to 36 such discussions whereas paragraph 61 of the report refers to 43). The purpose of the group discussions was to examine the breadth and depth of military views and to provide insights that would complement the survey results. The HPAT commented that the nature of the discussions showed little reticence in honestly and fully putting forward views; there was an “overwhelming view that homosexuality was not ‘normal’ or ‘natural’ whereas women and ethnic minorities were ‘normal’”. The vast majority of participants believed that the present ban on homosexuals should remain (paragraphs 61-69 and Annex G);
(f) One sub-team of the HPAT went to Australia, Germany and France and the other visited the United States, Canada and the Netherlands. The HPAT interviewed an eminent Israeli military psychologist since the Israeli military would not accept the HPAT visit (paragraphs 70-77 and Annex H). It is also apparent that the HPAT spoke to representatives of the police, the fire service and the merchant navy (paragraphs 78-82);
(g) Tri-service regional focus discussion groups were also held to examine the breadth and depth of the personnel’s views. The groups were drawn from the three services and from different units. Three such discussion groups were held and overall the results were the same as those from the single-service focus groups (paragraphs 83-84 and Annex G);
(h) Postal single-service attitude surveys were also completed by a randomly selected sample of personnel stratified by rank, age and gender. The surveys were distributed to 3,000 (6%) of the Royal Navy and Royal Marine personnel, to 6,000 (5.4%) of the Army personnel and to 4,491 (6%) of the Royal Air Force personnel. On average over half of the surveys were returned (paragraphs 65-86 and Annex G).
46. The HPAT report defined “fighting power” (often used interchangeably with combat effectiveness, operational efficiency or operational effectiveness) as the “ability to fight” which is in turn made up of three components. These are the “conceptual” and “physical” components together with the “moral component”, the latter being defined as “the ability to get people to fight including morale, comradeship, motivation, leadership and management”.
47. The focus throughout the assessment was upon the anticipated effects on fighting power and this was found to be the “key problem” in integrating homosexuals into the armed forces. It was considered well established that the presence of known or strongly suspected homosexuals in the armed forces would produce certain behavioural and emotional responses and problems which would affect morale and, in turn, significantly and negatively affect the fighting power of the armed forces.
These anticipated problems included controlling homosexual behaviour and heterosexual animosity, assaults on homosexuals, bullying and harassment of homosexuals, ostracism and avoidance, “cliquishness” and pairing, leadership and decision-making problems including allegations of favouritism, discrimination and ineffectiveness (but excluding the question of homosexual officers taking tactical decisions swayed by sexual preference), sub-cultural friction, privacy/decency issues, increased dislike and suspicions (polarised relationships), and resentment over imposed change especially if controls on heterosexual expression also had to be tightened (see Section F.II of the report).
48. The HPAT also assessed other matters it described as “subsidiary” (Section G and paragraph 177 of the report). It found that, while cost implications of changing the policy were not quantifiable, it was not considered that separate accommodation for homosexuals would be warranted or wise and, accordingly, major expenditures on accommodation were considered unlikely (paragraphs 95-97). Wasted training as regards discharged homosexuals was not considered to be a significant argument against maintaining the policy (paragraphs 98-99). Should the wider social and legal position change in relation to civilian homosexual couples, then entitlements for homosexual partners would have to be accepted (paragraph 101). Large amounts of money or time were unlikely to be devoted to homosexual awareness training, given that it was unlikely to be effective in changing attitudes. It was remarked that, if required, tolerance training would probably be best addressed as “part of an integrated programme for equal opportunities training in the military” (paragraph 102). There were strong indications that recruitment and retention rates would go down if there was a change in policy (paragraphs 103-04).
49. Concerns expressed about the fulfilment of the forces’ loco parentis responsibilities for young recruits were found not to stand up to close examination (paragraph 111).
50. Medical and security concerns were considered separately (Sections H and I, respectively, and paragraph 177 of the report). While it was noted that medical concerns of personnel (in relation to, inter alia, Aids) were disproportionate to the clinical risks involved, it was considered that these concerns would probably need to be met with education packages and compulsory Aids testing. Otherwise, real acceptance and integration of homosexuals would be seriously prejudiced by emotional reactions and resentments and by concerns about the threat of Aids. The security issues (including the possibility of blackmail of those suspected of being homosexual) raised in defence of the policy were found not to stand up to close examination.
51. The HPAT observed that there were a wide variety of official positions and legal arrangements evolving from local legal and political circumstances and ranging from a formal prohibition of all homosexual activity (the United States), to administrative arrangements falling short of real equality (France and Germany), to a deliberate policy to create an armed force friendly to homosexuals (the Netherlands). According to the HPAT, those countries which had no legal ban on homosexuals were more tolerant, had written constitutions and therefore a greater tradition of respect for human rights. The report continued:
“But nowhere did HPAT learn that there were significant numbers of open homosexuals serving in the Forces … . Whatever the degree of official toleration or encouragement, informal pressures or threats within the military social system appeared to prevent the vast majority of homosexuals from choosing to exercise their varying legal rights to open expression of their active sexual identity in a professional setting. … It goes without saying that the continuing reticence of military homosexuals in these armed forces means that there has been little practical experience of protecting them against ostracism, harassment or physical attack.
Since this common pattern of a near absence of openly homosexual personnel occurs irrespective of the formal legal frameworks, it is reasonable to assume that it is the informal functioning of actual military systems which is largely incompatible with homosexual self-expression. This is entirely consistent with the pattern of British service personnel’s attitudes confirmed by the HPAT.”
52. In January 1996 there were over 35,000 British service personnel (25% approximately of the British armed forces) deployed overseas on operations, more than any other NATO country in Europe (paragraph 43).
The HPAT concluded, nevertheless, that the policy had not presented significant problems when working with the armed forces of allied nations. The HPAT remarked that British service personnel had shown a “robust indifference” to arrangements in foreign forces and no concern over what degree of acceptance closely integrated allies give to homosexuals. This is because the average service person considers that those others “are not British, have different standards, and are thus only to be expected to do things differently” and because personnel from different nations are accommodated apart. It was also due to the fact that homosexuals in foreign forces, where they were not formally banned, were not open about their sexual orientation. Consequently, the chances were small of the few open homosexuals happening to be in a situation where their sexual orientation would become a problem with British service personnel (paragraph 105).
53. Important differences were considered by the HPAT to exist between the armed forces and civilian disciplined services in the United Kingdom including the police, the fire brigade and the merchant navy which did not operate the same policy against homosexuals. It considered that:
“None of these occupations involves the same unremittingly demanding and long-term working environment as the Armed Forces, or requires the same emphasis on building rapidly interchangeable, but fiercely committed and self-supporting teams, capable of retaining their cohesion after months of stress, casualties and discomfort …” (paragraph 203)
54. Alternative options were considered by the HPAT including a code of conduct applicable to all, a policy based on the individual qualities of homosexual personnel, lifting the ban and relying on service personnel reticence, the “don’t ask, don’t tell” solution offered by the USA and a “no open homosexuality” code. It concluded that no policy alternative could be identified which avoided risks for fighting power with the same certainty as the present policy and which, in consequence, would not be strongly opposed by the service population (paragraphs 153-75).
55. The HPAT found that:
“the key problem remains and its intractability has indeed been re-confirmed. The evidence for an anticipated loss in fighting power has been set out in section F and forms the centrepiece of this assessment. The various steps in the argument and the overall conclusion have been shown not only by the Service authorities but by the great majority of Service personnel in all ranks”.
Current service attitudes were considered unlikely to change in the near future. While clearly hardship and invasion of privacy were involved, the risk to fighting power demonstrated why the policy was, nevertheless, justified. It considered that it was not possible to draw any meaningful comparison between the integration of homosexuals and of women and ethnic minorities into the armed forces since homosexuality raised problems of a type and intensity that gender and race did not.
The HPAT considered that, in the longer term, evolving social attitudes towards homosexuality might reduce the risks to fighting power inherent in change but that their assessment could “only deal with present attitudes and risks”. It went on:
“… certainly, if service people believed that they could work and live alongside homosexuals without loss of cohesion, far fewer of the anticipated problems would emerge. But the Ministry must deal with the world as it is. Service attitudes, in as far as they differ from those of the general population, emerge from the unique conditions of military life, and represent the current social and psychological realities. They indicate military risk from a policy change…
… after collecting the most exhaustive evidence available, it is also evident that in the UK homosexuality remains in practice incompatible with service life if the armed services, in their present form, are to be maintained at their full potential fighting power. ... Furthermore, the justification for the present policy has been overwhelmingly endorsed by a demonstrated consensus of the profession best able to judge it. It must follow that a major change to the Ministry’s current Tri-service Guidelines on homosexuality should be contemplated only for clearly stated non-defence reasons, and with a full acknowledgement of the impact on Service effectiveness and service people’s feelings.”
56. The Defence Council’s “Code of Practice on Race Relations” issued in December 1993 declared the armed forces to be equal opportunity employers. It stated that no form of racial discrimination, harassment or abuse would be tolerated, that allegations would be investigated and, if proved, disciplinary action would be taken. It provided for a complaints procedure in relation to discrimination or harassment and it warned against the victimisation of service personnel who made use of their right of complaint and redress.
57. In January 1996 the army published an Equal Opportunities Directive dealing with racial and sexual harassment and bullying. The policy document contained, as a preamble, a statement of the Adjutant-General which reads as follows:
“The reality of conflict requires high levels of teamwork in which individual soldiers can rely absolutely on their comrades and their leaders. There can, therefore, be no place in the Army for harassment, bullying and discrimination which will affect morale and break down the trust and cohesion of the group.
It is the duty of every soldier to ensure that the Army is kept free of such behaviour which would affect cohesion and efficiency. Army policy is clear: all soldiers must be treated equally on the basis of their ability to perform their duty.
I look to each one of you to uphold this policy and to ensure that we retain our acknowledged reputation as a highly professional Army.”
The Directive provided definitions of racial and sexual harassment, indicated that the army wanted to prevent all forms of offensive and unfair behaviour in these respects and pointed out that it was the duty of each soldier not to behave in a way that could be offensive to others or to allow others to behave in that way. It also defined bullying and indicated that, although the army fosters an aggressive spirit in soldiers who will have to go to war, controlled aggression, self-sufficiency and strong leadership must not be confused with thoughtless and meaningless use of intimidation and violence which characterise bullying. Bullying undermines morale and creates fear and stress both in the individual and the group being bullied and in the organisation. The army was noted to be a close-knit community where team work, cohesion and trust are paramount. Thus, high standards of personal conduct and respect for others were demanded from all.
The Directive endorsed the use of military law by commanders. Supplementary leaflets promoting the Directive were issued to every individual soldier. In addition, specific equal opportunities posts were created in personnel centres and a substantial training programme in the Race Relations Act 1976 was initiated.
58. Every five years an Armed Forces’ Bill goes through Parliament and a Select Committee conducts a review in connection with that bill.
59. The report of the Select Committee dated 24 April 1991 noted, under the heading “Homosexuality”:
“That the present policy causes very real distress and the loss to the services of some men and women of undoubted competence and good character is beyond dispute. Society outside the armed forces is now much more tolerant of differences in sexual orientation than it was, and this may also possibly be true of the armed forces. Nevertheless, there is considerable force to the [Ministry of Defence’s] argument that the presence of people known to be homosexual can cause tension in a group of people required to live and work sometimes under great stress and physically at very close quarters, and thus damage its cohesion and fighting effectiveness. It may be that this will change particularly with the integration of women into hitherto all-male units. We are not yet persuaded that the time has come to require the armed forces to accept homosexuals or homosexual activity.”
60. The 1996 Select Committee report (produced after that committee’s review of the Armed Forces Act 1996) referred to evidence taken from members of the Ministry of Defence and from homosexual support groups and to the HPAT Report. Once again, the committee did not recommend any change in the Government’s policy. It noted that, since its last report, a total of 30 officers and 331 persons of other rank had been discharged or dismissed on grounds of homosexuality. The committee was satisfied that no reliable lessons could as yet be drawn from the experience of other countries. It acknowledged the strength of the human rights arguments put forward, but noted that there had to be a balance struck between individual rights and the needs of the whole. It was persuaded by the HPAT summary of the strength of opposition throughout the armed services to any relaxation of the policy. It accepted that the presence of openly homosexual servicemen and women would have a significant adverse impact on morale and, ultimately, on operational effectiveness. The matter was then debated in the House of Commons and members, by 188 votes to 120, rejected any change to the existing policy.
61. Prior to September 1995, applicants to the armed forces were informed about the armed forces’ policy as regards homosexuals in the armed forces by means of a leaflet entitled “Your Rights and Responsibilities”. To avoid any misunderstanding and so that each recruit to each of the armed services received identical information, on 1 September 1995 the armed forces introduced a Service Statement to be read and signed before enlistment. Paragraph 8 of that statement is headed “Homosexuality” and states that homosexuality is not considered compatible with service life and “can lead to administrative discharge”.
VIOLATED_ARTICLES: 8


ITEMID: 001-67344
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF DEL LATTE v. THE NETHERLANDS
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-2;Pecuniary damage - claim dismissed;Costs and expenses partial award - Convention proceedings
TEXT: 10. The applicants, Mr Vincenzo Del Latte and Mr Angelo Del Latte, were born in 1966 and 1967 respectively and live in Volendam, the Netherlands.
11. On 22 June 1996 the applicants went together to the home of one Y., with whom they had quarrelled in a bar earlier. Finding Y. at home, one of them – apparently Vincenzo Del Latte – fired three shots from a gun in his general direction.
12. The applicants were arrested on the same day and charged with the attempted murder, or in the alternative, the attempted manslaughter of Y. The applicant Angelo Del Latte was in addition charged, in the further alternative, with aiding and abetting the attempted murder or manslaughter by Vincenzo Del Latte.
13. The applicants were taken into police custody (inverzekeringstelling) and thereafter kept in detention on remand (voorlopige hechtenis).
14. A first trial hearing took place before the Haarlem Regional Court (arrondissementsrechtbank) on 30 September 1996. On 14 October 1996 the Regional Court gave an interlocutory judgment remitting the case to the investigating judge (rechter-commissaris) for additional investigations.
A second trial hearing was held on 7 January 1997.
15. On 9 January 1997 the Regional Court gave judgment acquitting the applicants of all charges. This entailed the applicants' immediate release from detention on remand.
The prosecution appealed.
16. Following a hearing on 21 November 1997, the Amsterdam Court of Appeal (gerechtshof) gave judgment on 5 December 1997 upholding the Regional Court's acquittal.
Since in the Netherlands no appeal on points of law is possible against an acquittal (Article 430 § 1 of the Code of Criminal Procedure (Wetboek van Strafvordering) – hereinafter “CCP”), this brought the criminal proceedings to an end.
17. Both applicants applied to the Court of Appeal in January 1998, each seeking monetary compensation in an amount of 31,200 Netherlands guilders (NLG) for the time spent in pre-trial detention (Article 89 CCP – see below).
18. A hearing was held on 24 April 1998.
19. On 5 June 1998 the Court of Appeal gave decisions dismissing the applicants' claims. Its reasoning, identical in both decisions, was the following (emphasis added):
“The Court of Appeal finds that the file contains sufficient evidence to prove that the applicant together with his brother went to the home of the victim [Y.] in Edam-Volendam and that shots were fired by one of them through [Y.]'s living-room window with a firearm. At that moment [Y.] was in that living-room. However, it has not been established conclusively (onomstotelijk) that the shooting was intended to kill [Y.].
However, in view of the other circumstances as they appear from the file, the actions of the applicant and his brother amounted to threats, within the meaning of Article 285 of the Criminal Code (Wetboek van Strafrecht – hereinafter “CC”).
The behaviour of the applicant together with his brother in any case justified that he be taken into police custody and subsequently held in detention on remand.
The Haarlem Regional Court, and also the Court of Appeal, have had to consider the case on the basis of the indictment prepared by the public prosecutor (officier van justitie). This indictment was limited to attempted murder/manslaughter. It did not contain any charge of threatening to commit a crime directed against life.
The Regional Court and the Court of Appeal found insufficient evidence to support the charges contained in the indictment, and the applicant had to be acquitted as a consequence.
In the light of the above, the Court of Appeal's acquittal can be qualified as a 'technical' acquittal, since adding a further alternative charge, as indicated above, would have led to a conviction.
In the circumstances the Court of Appeal finds no reasons in equity to award the applicant any compensation for the police custody and detention on remand.”
“1. Threatening [to commit]... any crime directed against life ... shall be punishable by a term of imprisonment not exceeding two years or a fourth-category fine. ...”
“He who Deliberately deprives another of his life shall be guilty of manslaughter and shall be punished by a term of imprisonment not exceeding fifteen years or a fifth-category fine.”
“He who Deliberately and with malice aforethought (met voorbedachten rade) deprives another of his life shall be guilty of murder and shall be punished by imprisonment for life or for a term not exceeding twenty years or a fifth-category fine.”
“1. If a case ends without the imposition of a punishment or measure, or when such punishment or measure is imposed but on the basis of a fact for which detention on remand is not allowed, the court may, at the request of the former accused, grant him compensation at the expense of the State for the damage which he has suffered as a result of police custody, clinical observation or detention on remand. Such damage may include non-pecuniary damage. ...”
Article 90
“1. Compensation shall be awarded in each case if and to the extent that the court, taking all circumstances into account, is of the opinion that there are reasons in equity to do so. ...”
“1. The indictment shall comprise a description of the fact with which the accused is charged, stating the approximate time and location where it has allegedly been perpetrated; it shall also mention the statutory provisions under which the fact has been penalised.
2. The indictment shall further set out the circumstances under which the fact has allegedly been perpetrated. ...”
“... the Regional Court shall Deliberate on the basis of the indictment (op den grondslag der telastelegging) and in the light of its investigation at the hearing as to whether it has been proven that the fact has been perpetrated by the accused, and, if so, what punishable act this gives rise to according to the law; if the fact is found to be proven and punishable, then the Regional Court shall Deliberate as to whether the accused can be punished and as to the imposition of a punishment or [non-punitive] measure as provided for by law.”
“1. If the Regional Court finds it not proven that the accused has perpetrated the fact charged in the indictment (het hem telastegelegde feit heeft begaan), it shall acquit him. ...”
20. Articles 261, 350 and 352 considered together are consistently construed in domestic case-law as meaning that the trial courts must base their findings exclusively on the allegations presented in the indictment. Consequently, they cannot convict someone of any given criminal offence if they do not find that each and all of the elements constitutive of that offence, as defined by statute, have been covered in the indictment, even if the case file contains conclusive evidence that the accused is in fact guilty of the offence (see, among other authorities, the judgments of the Hoge Raad (Supreme Court) of 27 June 1995, Nederlandse Jurisprudentie –Netherlands Law Reports – 1996, nos. 126 and 127).
21. Criminal appeal proceedings in the Netherlands being by way of a complete rehearing, the above provisions also apply on appeal (Article 415).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-2


ITEMID: 001-23149
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: I.M. v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, I.M., has both Netherlands and Cape Verdean nationality. She was born in 1964 and is living in Rotterdam, the Netherlands. She is represented before the Court by Ms Y.M. Schrevelius, a lawyer practising in Rotterdam.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 10 November 1986 the applicant moved from the Cape Verde Islands to the Netherlands where she married a Netherlands national, Mr N.A.S. On the basis of that marriage she obtained a residence permit.
The applicant’s daughter, S., who had been born into the relationship between the applicant and one Mr A.M.N. in the Cape Verde Islands on 4 March 1985, stayed behind in the care of her maternal grandparents.
On 26 April 1989 a son, E., was born to the applicant and one Mr M.A.
It had been the applicant’s intention to send for her daughter in 1989, which seemed to her an appropriate moment as she expected to have found a job and to have completed a professional training course by that time. However, her marriage breaking down in September 1989 thwarted these plans. As she was no longer residing with her husband, she applied for an independent residence permit which was granted in October 1989.
The marriage was officially dissolved in 1990. The applicant acquired Netherlands nationality on 14 October 1991. She experienced difficulties obtaining proper accommodation, but this problem was solved in 1992. In the same year the applicant’s father fell seriously ill in the Cape Verde Islands due to which, the applicant submitted, the grandparents were no longer capable of taking care of S.
In October 1992 the applicant addressed a letter to the Netherlands Ministry of Justice, stating that she wished for her daughter to grow up within her family, consisting of herself and her son E., in the Netherlands and that she would be able to take care of her daughter’s upbringing. She appended a declaration made by S.’s father in which he consented to his daughter going to the Netherlands to live with the applicant. The case-file does not contain a reply to this letter.
On 20 April 1993 the applicant filed an official request for a provisional residence visa (machtiging tot voorlopig verblijf) for her daughter with the Visa Division of the Ministry of Foreign Affairs. This request was rejected on 9 June 1993 on the grounds that a stay of longer than three months was intended and that the application did not meet the relevant conditions laid down in Netherlands regulations. The applicant’s objection (bezwaar) against this refusal was rejected on 9 November 1993. Her subsequent appeal to the Administrative Jurisdiction Division of the Council of State (Afdeling Bestuursrechtspraak van de Raad van State) was rejected on 21 June 1996 by the latter as unsubstantiated since the close family ties (gezinsband) between the applicant and her daughter were considered to have ceased to exist.
On 2 November 1994 the applicant filed a new request for a provisional residence visa for S. This was rejected on 16 December 1994. The applicant did not apply any legal remedies against this decision
On 12 June 1995 the applicant applied for a third time for a provisional residence visa, which was rejected on 6 November 1995. Again, the applicant did not have recourse to any legal remedies against this decision.
On 4 July 1995 S. entered the Netherlands on a short stay visa (visum voor kort verblijf), granted for the purpose of visiting relatives.
On 4 September 1995 the applicant filed a request for a residence permit (vergunning tot verblijf) for S. On 11 September 1996 the Deputy Minister of Justice (Staatssecretaris van Justitie) rejected this request, by concluding that the applicant relied on the same facts as those submitted in respect of her earlier requests for a provisional residence visa and that the reasons to reject those requests remained pertinent. The decision underlined that the applicant’s daughter had entered the country on a short stay visa whereas the aim and the intended duration of her stay were not in compliance with the purposes of such a visa. The Deputy Minister held that this breached a rule of general interest.
Referring to the need for a restrictive immigration policy, the decision further stated that, unless international law obliged the Netherlands to grant admission, aliens could be allowed residence only if this served “essential interests of the Netherlands” (wezenlijk Nederlands belang) or in case of compelling reasons of a humanitarian nature (klemmende redenen van humanitaire aard). Neither of these conditions was met in the case of S.
On 21 October 1996 the applicant filed an objection (bezwaar) through counsel with the Deputy Minister of Justice, underlining that her child could not have a normal existence in the Cape Verde Islands and that there were solid reasons why the applicant had been unable to bring her child to the Netherlands before 1992.
On 21 January 1997 the Deputy Minister rejected the applicant’s objection concluding that there were no grounds to justify a reversal of the initial decision since no new facts or other circumstances had been adduced and the grounds for rejection had been correct.
On behalf of S. the applicant lodged an appeal against the decision of the Deputy Minister with the Aliens Chamber of the Hague Regional Court sitting in Haarlem (arrondissementsrechtbank te ‘s-Gravenhage nevenzittingsplaats Haarlem, Enkelvoudige Kamer voor Vreemdelingenzaken). She requested an interim measure (voorlopige voorziening) to the effect that her daughter would not be expelled while the appeal was pending and invoked Article 8 of the Convention in support of her claim.
eerste toelating) to the Netherlands, rather than a refusal to prolong an existing right of residence. The Regional Court rejected the request for a provisional measure.
The Regional Court’s decision was final and not subject to appeal.
As a rule, anyone wishing to apply for a residence permit in the Netherlands must first apply from his or her country of origin to the Netherlands Minister of Foreign Affairs for a provisional residence visa. Only once such a visa has been issued abroad may a residence permit for the Netherlands be granted. An application for a provisional residence visa is evaluated on the basis of the same criteria as a residence permit.
In general, the Minister of Justice (Minister van Justitie) decides on requests lodged by aliens for residence in the Netherlands (Article 11 of the 1994 Aliens Act (Vreemdelingenwet 1994)). The Minister of Justice can refuse entry and residence on general interest grounds (gronden aan het algemeen belang ontleend).
In view of the situation in the Netherlands as regards population size and employment, Government immigration policy – defined at the time in the 1994 Aliens Circular (Vreemdelingencirculaire 1994) – is aimed at restricting the number of aliens admitted to the Netherlands. In general, an application for a residence permit in the Netherlands is granted only if the individual’s presence serves an essential national interest or if there are compelling humanitarian grounds to do so (Chapter A4/5.3 of the 1994 Aliens Circular).
The policy for admission for family reunion purposes was laid down in Chapter B1 of the 1994 Aliens Circular. It provided that the following persons, where relevant, may qualify for family reunion if certain conditions (relating to matters such as public policy and means of subsistence) are met:
– a person’s spouse,
– a minor child born into the marriage who actually belongs to the family unit (gezin), and
– a minor child born outside the marriage who actually belongs to the family unit (e.g. a child of one of the spouses from a previous marriage or a foster child).
The phrase “actually belonging to the family unit” (“feitelijk behoren tot het gezin”) used in Netherlands law overlaps only partly with the term “family life” in Article 8 of the Convention. The former is understood to mean, for instance, that the close family ties (gezinsband) between the child and its parents whom it wishes to join in the Netherlands already existed in another country and have been maintained. For the rest, the question of whether the close family ties should be deemed to have been severed is answered on the basis of the facts and circumstances of each specific case. Factors taken into consideration include the length of time during which parent and child have been separated and the reasons for the separation, the way in which the relationship between parent and child has been developed during the separation, the parent’s involvement in the child’s care and upbringing, custody arrangements, the amount and frequency of the parent’s financial contributions to the child’s care and upbringing, the parent’s intention to send for the child from the Netherlands as soon as possible and his/her efforts to do so, and the length of time that the child has lived in a family other than with the parent. Living together in the Netherlands without a permanent residence permit is not seen as restoring severed family ties.


ITEMID: 001-77714
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: RACISZ v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Adam Racisz, was a Polish national who was born in 1950 and lived in Warszawa. He died on 17 September 2004. His application is pursued by his daughter –Ms Monika Racisz.
The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 4 May 1993 the applicant lodged an action with the Warsaw District Court for division of matrimonial property.
The court held 22 hearings.
Numerous hearings were adjourned during the proceedings. The reasons for the adjournments were: necessity of taking evidence from the case file of the applicant’s divorce proceedings, the request of the applicant’s former wife (“the other party”) to adjourn a hearing, the other party’s absence as she had not been summoned properly, the applicant’s absence, the other party’s request to appoint her a legal-aid lawyer, the other party’s request to appoint her a new legal-aid lawyer, ordering an expert opinion, the other party’s lawyer’s illness, the judge’s illness, the fact that the other party’s attorney had not been properly summoned and the other party’s illness.
On 7 July 2003 the parties concluded a friendly settlement.
On 14 July 2003 the court discontinued the proceedings as a friendly settlement had been concluded.
On 17 September 2004 the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”) entered into force. It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings. A party to pending proceedings may ask for the acceleration of those proceedings and/or just satisfaction for their unreasonable length under section 2 read in conjunction with section 5(1) of the 2004 Act.
On 18 January 2005 the Supreme Court (Sąd Najwyższy) adopted a resolution (no. III SPP 113/04) in which it ruled that while the 2004 Law produced legal effects as from the date of its date of entry into force (17 September 2004), its provisions applied retroactively to all proceedings in which delays had occurred before that date but only when they had not yet been remedied.
Article 922 §1 of the Civil Code deals with transmission of rights and obligations of a deceased person:
“Pecuniary rights and obligations of the deceased are transmitted at the time of his/her death to another person or persons in conformity with the regulations of this chapter.”


ITEMID: 001-58954
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF JORI v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
JUDGES: Christos Rozakis
TEXT: 8. On 30 June 1981 the Bratislava I National Committee approved an agreement on exchange of two flats used by the applicant and her parents respectively for a single flat in which they intended to live together. The decision stated that the right to use the flat was subjected to an agreement on its transfer to be concluded between the owner and the new user pursuant to Section 155 of the Civil Code.
9. On 7 July 1981 a record was drawn about the agreement on the transfer of the flat. It was signed by the applicant’s father and the applicant’s parents were mentioned in it as the users of the flat. Another document concerning the fees for the use of the flat established by the owner on 10 September 1984 mentioned the applicant’s father as the user of the flat and both the applicant and her mother as persons living in it together with the official user.
10. On 15 July 1992 the Bratislava - Staré mesto municipality restored the block of flats in which the applicant and her parents lived to its original owners pursuant to the Extra-Judicial Rehabilitations Act. Subsequently the house was purchased by other individuals.
11. On 28 October 1994 the applicant, her parents and thirteen other persons living in the house lodged an action with the Bratislava I District Court (Obvodný súd - “the District Court”) pursuant to Section 80 (c) of the Code of Civil Procedure. The plaintiffs challenged the lawfulness of the restitution and the subsequent sale of the house. They claimed to have a particular legal interest in lodging the action since the unlawful restitution of the house had prevented them “from having the ownership of the flats transferred to them for the remainder of their value in accordance with the law”. They further complained that the new owners were attempting to make them move out of the house in that, for example, they had deliberately broken the central heater.
12. The District Court started proceeding with the case on 16 February 1995. On 14 March 1995 the action was sent to the defendants for observations.
13. The first hearing was held on 12 June 1995. Another hearing was scheduled for 11 September 1995. It was adjourned as the case had been transmitted to another judge.
14. On 12 January 1996 the applicant and several other plaintiffs complained about delays in the proceedings. On 29 February 1996 the vice-president of the District Court explained that the judge who had taken over the case in September 1995 had needed time to study the file and that a hearing was scheduled for 10 April 1996.
15. On 10 April 1996 the District Court adjourned the case with a view to obtaining further information.
16. On 18 June 1996 the District Court granted, in a different set of proceedings, an action of 10 March 1995 by which the new owners of the house had requested that the tenancy of the applicant’s parents be terminated. The applicant’s parents were ordered to move out of the flat within fifteen days after they were provided with alternative accommodation.
17. On 30 June 1996 the applicant lodged a petition with the Constitutional Court (Ústavný súd). She complained about the length of the proceedings concerning the lawfulness of the restitution of the house.
18. On 2 July 1997 the Constitutional Court found a violation of the applicant’s right to have her case examined within a reasonable time as guaranteed by Article 48 (2) of the Constitution and Article 6 § 1 of the Convention. The Constitutional Court established, inter alia, that the District Court had remained inactive between 12 September 1995 and 22 February 1996 and also between 10 April 1996 and 24 March 1997.
19. On 20 November 1997 the vice-president of the District Court informed the applicant that following the finding of the Constitutional Court the judges who had dealt with the case had been disciplined, and that the case had been transmitted, as from 1 November 1997, to another judge.
20. On 28 November 1997 the District Court dismissed the applicant’s request for interim measures to be ordered. On 17 September 1998 the Bratislava Regional Court (Krajský súd) modified this decision in that it ordered the owners of the house not to alienate it pending the outcome of the proceedings on the merits. The Regional Court found that the plaintiffs had a legal interest in bringing the proceedings within the meaning of Section 80 (c) of the Code of Civil Procedure since they would be entitled to purchase the flats if the ownership of the house had not been transferred to the original owners.
21. On 28 January 1998 the applicant complained to the president of the Bratislava Regional Court that the District Court had not held a single hearing after the delivery of the Constitutional Court’s decision of 2 July 1997.
22. On 3 July 1998 the applicant extended the action of 28 October 1994 claiming that the ownership of the house be restored to the Bratislava - Staré mesto municipality.
23. On 8 February 1999 the applicant complained to the president of the Bratislava Regional Court that there had been no progress in the case since 1997 and that the interim measure ordered by the Regional Court on 17 September 1998 had not yet been notified to the land registry.
24. On 24 June 1999 the applicant extended her action and claimed that the tenancy of the flat be restored to her and her mother. She also claimed compensation for damage which she had suffered in this context.
25. On 28 June 1999 the District Court dismissed the action. It found that proceedings under Section 80 (c) of the Code of Civil Procedure aimed at preventive protection of existing rights. As the alleged interference with the plaintiffs’ rights had been prior to the filing of their action of 28 October 1994, the District Court held that they had no pressing legal interest for having the lawfulness of the restitution determined.
26. The District Court noted that the applicant had extended the action in that she claimed also reparation for the alleged violation of her rights. In this respect it found that the applicant had lived in the flat together with her parents as a member of the household. She had not been, however, formally registered as a tenant. The District Court concluded that the applicant lacked standing in the case from the very beginning.
27. Finally, the District Court recalled that the tenants’ right to purchase flats under Act No. 182/1993 was subjected to conditions set out in Sections 29a and 31, and that the restitution had been prior to the entry into force of Act No. 182/1993 on 1 September 1993. It held that the restitution had in no way affected the tenants’ rights.
28. On 8 December 1999 the applicant appealed. She argued that she had both standing in the case and a pressing legal interest in having the issue determined. She also submitted that the District Court had misinterpreted Act No. 182/1993.
29. The appellate proceedings are pending.
30. Under Section 155, the right to use a flat was subjected to an agreement on its transfer concluded between the owner and an individual. A record of the conclusion of the agreement was to be drawn and signed by the owner’s representative and by the individual acquiring the right to use the flat.
31. Section 188 (1) permitted the exchange of flats between users. The exchange was subjected to a written agreement and to its approval by the authority charged with the administration of the flats. Paragraph 2 of Section 188 provided that the right to use an exchanged flat could be acquired by means set out in Section 155.
32. Section 871 (1) provides that the right to use a flat, either by an individual or jointly by several persons, existing by 1 January 1992 is automatically transformed into tenancy or, as the case may be, joint tenancy.
33. Act No. 182/1993 on the ownership of flats and other premises (Zákon o vlastníctve bytov a nebytových priestorov) entered into force on 1 September 1993. It provides, inter alia, for the transfer of ownership of flats to individuals by means of a contract. Section 31 reserved the right of municipalities to keep a certain number of flats in their ownership with a view to providing accommodation to persons in need. This provision was deleted as from 1 June 1998.
34. Section 29a, enacted by an amendment which entered into force on 1 August 1995, imposes on municipalities the obligation to transfer the ownership of flats to tenants so wishing within two years in houses in which such a transfer was requested by at least 50% of tenants. This obligation did not apply, until 1 June 1998, in respect of flats falling under Section 31.
35. Section 80 (c) of the Code of Civil Procedure gives everyone the right to bring civil proceedings with a view to having the existence of a legal relation or of a right determined provided that it is justified by a pressing legal interest.
36. Pursuant to the Supreme Court’s case-law, the right to use an exchanged flat was acquired, at the relevant time, upon the conclusion of an agreement on its transfer within the meaning of Section 155 of the Civil Code. Such a right could also be acquired as a result of an action indicating unequivocal intention of the parties to enter into an agreement, e.g. in that the persons concerned moved into the flat with the owner’s consent (opinion published in 1978 in the Collected Decisions as No. 14).
37. According to academic opinion, an agreement on the transfer of a flat the exchange of which had been approved by the competent authority could be concluded in writing, orally or tacitly. The agreement is considered to be valid even in the absence of a record concerning its conclusion mentioned in Section 155 of the Civil Code (Občanský zákoník, Komentář, Díl I., Praha, Panorama, 1987, pp. 600-680; Československé občianske právo, 1. zväzok, Bratislava, Obzor, 1986, p. 382).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-60878
LANGUAGEISOCODE: ENG
RESPONDENT: MLT
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF KADEM v. MALTA
IMPORTANCE: 3
CONCLUSION: Preliminary objection dismissed (non-exhaustion);Violation of Art. 5-4;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 8. The applicant was born in 1952 and lives in Rotterdam, the Netherlands.
9. On 25 October 1998 the applicant was arrested on the strength of a provisional arrest warrant issued by a duty magistrate in connection with a request for his extradition made by the Kingdom of Morocco. The request was relayed to Malta through Interpol. The charge related to the applicant's involvement in international drug trafficking in cannabis. The information laid before the magistrate by the Attorney General referred, inter alia, to the 1988 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (“the Vienna Convention”), to Legal Notice 120 concerning designated countries and Government Notice 332 published in the Government Gazette of 24 May 1996 which reproduced the text of the Convention to which Malta acceded on 28 February 1996. Attached to the request was a Red Notice issued by Interpol bearing the applicant's description and fingerprints as well as a certificate issued by the Prime Minister under subsection (4) of section 4 of the 1996 Order on Extradition (Designated Foreign Countries).
10. On 26 October 1998, pursuant to section 15(1) of the Extradition Act, the applicant was brought before the Magistrates' Court acting as a court of criminal inquiry in connection with extradition proceedings. A defence counsel was appointed for him. The presiding magistrate was different from the one who issued the provisional arrest warrant. The applicant did not challenge the lawfulness of his arrest and the proceedings were adjourned until 3 November 1998.
11. On 28 October 1998 the applicant filed a judicial act with the First Hall of the Civil Court alleging that the provisional arrest warrant was unlawful because, inter alia, there were no bilateral extradition arrangements between Malta and Morocco and the Vienna Convention had not been incorporated into domestic law.
12. On 30 October 1998 the Prime Minister as the minister responsible for justice matters replied to the act. The Prime Minister rejected the applicant's claim as frivolous and vexatious. He stressed that both Malta and Morocco were parties to the Vienna Convention even though the Convention had not been incorporated into domestic law. On the latter point, he noted that Maltese law was already sufficiently equipped and adequate to implement Malta's obligation under the Vienna Convention.
13. At its next sitting on 3 November 1998, the applicant's lawyer pleaded that the Magistrates' Court did not have jurisdiction to hear the case for extradition, that the provisional arrest warrant was therefore unlawful and that the applicant should be released. The prosecution disputed the applicant's reasoning. The case was adjourned to 13 November 1998.
14. At the further hearing on 13 November 1998 the applicant again pleaded that the Maltese courts lacked jurisdiction to examine the extradition request as there was no extradition treaty in force between Malta and Morocco and that the Vienna Convention, although signed by Malta, had not been duly ratified in accordance with Maltese law.
15. On 20 November 1998 the Magistrates' Court rejected the plea of lack of jurisdiction and declared that it had jurisdiction to hear the case. The Magistrates' Court took into account, in particular, the applicant's argument according to which the Vienna Convention had not been ratified as required by the Ratification of Treaties Act. It observed, however, that the said Act only provided for the ratification of certain treaties, indicated in section 3(1). The applicant argued that the Vienna Convention fell under section 3(1)(c), which imposed the ratification of any treaty affecting or concerning the relationship of Malta with any multinational organisation, agency, association or similar body. The Magistrates' Court could not accept such an interpretation, on the ground that the Vienna Convention was binding for the States which signed it, but not for the United Nations. Therefore, it could not give rise to a relationship between Malta and the United Nations. The Magistrates' Court moreover observed that the Extradition Act authorised arrest with a view to extradition of any person accused of an offence in a “designated foreign country”. As Morocco had been designated foreign country by Legal Notice 120 of 1996, the applicant's deprivation of liberty could not be regarded as unlawful.
16. On 27 November 1998 the applicant appealed to the Court of Criminal Appeal. In a judgment of 12 December 1998, the Court of Criminal Appeal found that there was no right of appeal at that stage of the proceedings under Maltese law and that an appeal was only possible when a person was subject to an order committing him to custody to await his removal. Furthermore, the applicant had filed his appeal out of time.
17. On 23 December 1998, while the extradition proceedings were still pending, the applicant filed an application with the First Hall of the Civil Court in its constitutional jurisdiction. He alleged that his case gave rise to violations of Article 5 §§ 1(f) and 4 of the European Convention on Human Rights. The applicant based his claim on the words “lawful arrest or detention” of a person in connection with extradition proceedings. His main argument was that Malta had not duly ratified any international treaty giving the State “legal authority” to arrest him with a view to his extradition to Morocco. As to his plea concerning Article 5 § 4, the applicant stated that there was no possibility to have the legality of the detention for extradition examined before the case was decided and an appeal lodged.
18. The First Hall of the Civil Court listed the case for hearing on 8 January 1999. However, the case had to be adjourned to 29 January 1999 to enable the applicant's lawyer to produce witness evidence.
19. In the meantime, the Magistrates' Court, under whose order the applicant was kept in detention, continued to hear the case, in anticipation of obtaining the relevant evidence to support the extradition request from the Kingdom of Morocco. The court had a one-month time-limit in which to conclude the hearings and render its decision. This period could be extended by further periods of up to a maximum of three months by the President of the Republic.
20. On 15 January 1999 the applicant was discharged on the grounds that there was no evidence to justify his extradition to Morocco. The Attorney General did not appeal against the decision. The applicant was ordered by the police, acting as the Immigration Authority, to return to the Netherlands within hours.
21. The applicant's application to the First Hall of the Civil Court was still pending when the applicant's case was being heard by the Magistrates' Court. However, on 16 January 1999 the applicant had to leave Malta, having been refused permission to stay in Malta pending the examination of his application to the First Hall of the Civil Court. On 27 January 1999 the applicant's lawyer, who had been instructed by the applicant to file the constitutional case, requested that the Commissioner of Police, as Principal Immigration Officer, be ordered to allow the applicant to return to Malta for the hearing of the case which was pending before the First Hall of the Civil Court.
22. On 29 January 1999 the First Hall of the Civil Court ordered that a lawyer be appointed for the applicant. According to the applicant, under domestic law any voluntary assumption of this mandate by the lawyer who filed the application to the First Hall would imply that the person assuming it would be personally responsible to the Government of Malta for all costs and expenses incurred in the proceedings. The applicant had no relatives in Malta. Furthermore, the lawyer acting on his behalf could not assume the position of a “party” in the proceedings had he applied to act as his lawyer in addition to being his legal representative since this would have raised serious issues of professional ethics. The acceptance of a voluntary mandate would make the lawyer personally involved in the proceedings as if it were his own case.
23. In the event, the applicant never gave a power of attorney to a legal representative in Malta to enable his claim to be dealt with by the First Hall of the Civil Court. Furthermore, the applicant was never granted permission to enter Malta and the domestic court never ordered that permission be granted.
24. On 29 January 1999 the First Hall of the Civil Court adjourned the case pending the applicant's confirmation that he intended to issue a power of attorney to a legal representative for the purposes of the proceedings.
25. On 3 March 1999, in the absence of the parties at the resumed hearing, the First Hall adjourned the case sine die. The applicant still could not enter the country to continue the proceedings in the Maltese courts regarding the lawfulness of his detention.
26. On 1 September 1999 the applicant's action was declared deserted and his case was struck off the list.
27. In so far as relevant, Article 15 of the Extradition Act reads as follows:
“(1) A person arrested in pursuance of a warrant under section 14 of this Act shall (unless previously discharged under subsection (3) of that section) be brought as soon as practicable and in any case not later than forty-eight hours from his arrest before the Court of Magistrates (Malta) as a court of criminal inquiry (in this Act referred to as the court of committal) which shall have for the purposes of the proceedings under this section the same powers, as nearly as may be, including power to remand in custody or on bail, as the said court has when sitting as aforesaid. (...).
(3) Where an authority to proceed has been issued in respect of the person arrested and the court of committal is satisfied, after hearing any evidence tendered in support of the request for the return of that person or on behalf of that person, that the offence to which the authority relates is an extraditable offence and it is further satisfied
(a) where the person is accused of the offence, that the evidence would be sufficient to warrant his trial for that offence if it had been committed within the jurisdiction of the Courts of Criminal Justice of Malta;
(b) where the person is alleged to be unlawfully at large after conviction of the offence, that he has been so convicted and appears to be so at large,
the court shall, unless his committal is prohibited by any other provision of this Act, commit him to custody to await his return thereunder; but if the court is not so satisfied or if the committal of that person is so prohibited, the court shall discharge him from custody.
Provided that notwithstanding any order discharging him from custody such person shall remain in custody until the expiration of three working days from any such order and, where an appeal has been entered by the Attorney General, until the appeal is disposed of or abandoned, or the Attorney General consents to the release of such person”.
28. The Magistrates' Court of Malta, acting as a court of criminal inquiry, gave on 27 February 2001 the following decision in the case of The Police v. Pierre Gravina:
“Dr. J. Brincat [the lawyer of the accused] points out that the arrest is illegal since it does not conform with the necessary conditions laid out in Art. 5(1) of the European Convention in view of the fact that even the Criminal Code lays down the circumstances in which a person can be brought under arrest before the Court, but in the circumstances no one is entitled to once again formally arrest the person charged so as to initiate proceedings.
Having heard both parties as to whether the arrest is justified or not.
Having heard submissions by the parties regarding the case, in the circumstances the arrest is not justified and thus orders the release of the person charged”.
29. Article 137 of the Criminal Code provides for the remedy of habeas corpus. This provision reads as follows:
“Any magistrate who, in a matter within his powers, fails or refuses to attend to a lawful complaint touching an unlawful detention, and any officer of the Executive Police, who, on a similar complaint made to him, fails to prove that he reported the same to his superior authorities within twenty-four hours shall, on conviction, be liable to imprisonment for a term from one to six months.”
30. On 13 April 1983 the police arrested Anthony Price for a breach of the Immigration Act. During his detention he became suspect of a serious offence concerning the public security of Malta. On 17 June 1983 the applicant applied to the Magistrates' Court requesting that he should be either charged or released. On 20 June 1983 the Magistrates' Court considered that it had the power under section 135 (currently section 137) of the Criminal Code to attend to a lawful complaint touching on unlawful detention. It also found that the police had not brought Price before the Magistrates' Court within 48 hours as required by section 365 (currently section 353) of the Criminal Code. As a result, the court ordered Price's release.
31. On 13 June 1990 the First Hall of the Civil Court ordered Christopher Cremona to be detained for twenty-four hours for contempt of court. The detainee appealed under section 1003 of the Code of Organisation and Civil Procedure. The Attorney General, with reference to Cremona having invoked section 137 of the Criminal Code, requested the Magistrates' Court to order the Acting Registrar of the Court and the Commissioner of Police to bring Cremona before the Court and order either of them to set him free at once. According to the Attorney General, Cremona's appeal had suspensive effect on the execution of the judgment and, as a result, his continued detention was illegal. The Magistrates' Court acceded to the Attorney General's request.
32. In a judgment given on 7 January 1998 in the case of Carmelo Sant v. Attorney General, the Maltese Constitutional Court decided as follows:
“The applicant criticises the decision of the first Honourable Court on the use which could have been made of Article 137 of the Criminal Code.
The applicant reasoned as follows: “With all due respect this is an offence in itself, it is a punishment and not a remedy”.
During oral submissions applicant's counsel made reference to a similar comment made by the European Commission on Human Rights with regard to a case still pending before the European Commission [application no 25642/94]. ...
If one delves more deeply into the practice of a country, one will note that history is different. More than forty-three years ago, former Chief Justice J.J. Cremona was writing ... about the existence of Habeas Corpus in Malta and he traced its roots precisely on this. It is true that this remedy is not often used ... but from the fact that the remedy is not often made use of one cannot infer that the remedy does not exist. In fact recently this remedy was resorted to in the cases of El Digwi (arrest alleged to be illegal) as well as in the Cremona case (contempt of court or the air conditioner case).”
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-4