Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court;Fair hearing);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Just satisfaction reserved (Article 41 - Just satisfaction)

Aleš Pejchal;Armen Harutyunyan;Guido Raimondi;Kristina Pardalos;Ledi Bianku;Mirjana Lazarova Trajkovska;Robert Spano

The applicant was born in DATE and lives in GPE .

In DATE the applicant , without permission , constructed a building consisting of a shop / storage and an unfinished construction and measuring in total CARDINAL sq . m. , on a QUANTITY . m. plot of land situated in a suburb of GPE . The applicant alleged that this land was not being used by anyone so he had cleaned it and constructed the building using his own means . It appears that the applicant used this property for the following DATE .

In DATE the applicant instituted special ( non - contentious ) proceedings in LOC of GPE seeking recognition of his ownership right in respect of that building by virtue of acquisitive prescription under LAW ( ORG ) , as well as his right of use in respect of the plot of land .

On DATE ORG decided to recognise the applicant ’s ownership right in respect of the building and to leave the plot of land under his use . ORG found that the building in question had no registered owners and the applicant had openly and in good faith had it in his possession and used it without interruption for DATE , which entitled him to become its owner under LAW .

No appeal was lodged within the prescribed CARDINAL-day time - limit , so this judgment became final .

On DATE a certificate was issued by the local branch of ORG on the basis of this judgment , confirming the applicant ’s ownership in respect of the building . The certificate further stated that , by virtue of LAW ( ORG ) , the applicant enjoyed a right of lease in respect of the plot of land for a period of DATE .

On DATE the applicant , pursuant to LAW , paid the cadastral value of the plot of land which amounted to ORG CARDINAL NORP drams ( ORG ) .

NORP On DATE the applicant ’s right of ownership was registered in respect of the plot of land and a relevant ownership certificate was issued .

The applicant regularly paid property tax on both the building and the plot of land in DATE .

On DATE а topographic examination of the land was carried out by a representative of “ ORG founded by , and acting on behalf of , ORG . The relevant diagram mentioned the applicant as the owner of the land in question .

On DATE , a third person addressed a letter to ORG , stating that she had bought a plot of land at an auction held on DATE . When she later applied to the local branch of ORG to have her ownership right registered , she was informed that the plot of land in question overlapped with the neighbouring plot of land . She requested that the auction be cancelled in its part concerning the overlapping part of the plot , the money paid for that part be returned and a new sale contract be concluded in respect of the remaining part of her plot .

The Government alleged that the neighbouring plot of land was the applicant ’s and that following this letter there was an exchange of correspondence between ORG and the local branch of ORG .

On DATE the local branch of ORG addressed a letter to ORG stating , in reply to an inquiry by the Mayor dated DATE , that the registration of the applicant ’s ownership and lease rights had been performed on DATE on the basis of the judgment of ORG of GPE of DATE . This letter was received by ORG on DATE and attached to it was a copy of the judgment of DATE .

On DATE the Deputy Prosecutor General lodged an appeal against the judgment of DATE seeking to quash it and to dismiss the applicant ’s acquisitive prescription claim , arguing that ORG had erred in its interpretation and application of the relevant provisions of the substantive law . The land had belonged to the ORG and hence had not been ownerless at the material time , so ORG should not have applied the acquisitive prescription rules to the case . As a result , the judgment had damaged the ORG ’s pecuniary interests . The Deputy Prosecutor General further argued that ORG had been obliged to involve , as parties to the proceedings , the local branch of ORG , as well as ORG as the authority vested with management of land . By failing to do so , and adopting a judgment affecting their rights in their absence , ORG had also violated the procedural law . The Deputy Prosecutor General requested ORG to restore the expired time - limit for appeal , arguing that ORG had not been aware of the judgment of DATE and therefore had been deprived of the possibility of lodging an appeal , while ORG had been informed about that judgment by the Mayor ’s letter of CARDINAL DATE .

On DATE the Yerevan ORG also lodged an appeal against the judgment of DATE , raising similar substantive and procedural arguments . As regards the procedural issues , it claimed that ORG had violated the relevant provisions by examining the case through special proceedings and not involving it as a party , despite the fact that ORG was the authority vested with management of public land in GPE and therefore the judgment affected its rights . ORG further claimed that it had become aware of the contested judgment by a letter from the local branch of ORG dated DATE , which had been received by ORG on DATE . It finally added that the letter of ORG of GPE of DATE had been accompanied by a copy of another judgment of ORG , dated DATE , which was unrelated to the present case .

On an unspecified date , the applicant lodged a reply to the appeals . He argued , inter alia , that on DATE he had paid the cadastral value of the plot of land and bought it through direct sale . Furthermore , the fact that ORG had been aware of his becoming the new owner of the plot of land was confirmed by the compulsory payments he had to make for that property . Thus , on the one hand , by virtue of LAW ORG , the GPE Mayor ’s office had alienated the plot of land to him , received a sum of money and since then had continued to levy property tax and , on the other hand , it now claimed to be unaware of that transaction . Moreover , ORG had been notified of his becoming the new owner of the plot of land by virtue of the PERSON on LAW in Respect of Property . Hence , ORG had been aware of the registration of his property rights on the basis of the court judgment of DATE and of the direct sale of the plot of land , and had not – as it claimed DATE become aware of that judgment from a letter of CARDINAL DATE .

On DATE ORG decided , with reference to LAW ORG ) , to admit the appeals , stating :

“ ORG and ORG have missed the timelimit for appeal prescribed by law and they submitted motions seeking to find this to be valid , arguing that ORG found out about the judgment [ of DATE ] from a copy of the judgment attached to the letter of ORG of GPE of DATE , while ORG from the letter of ORG of DATE .

The court finds that the motions of ORG and ORG are substantiated and must be granted . ”

On DATE ORG decided to grant the appeals , to quash the judgment of DATE and to dismiss the applicant ’s acquisitive prescription claim . ORG found , in particular , that ORG had applied Articles CARDINAL and CARDINAL of the ORG , which were not applicable to the case , and failed to apply LAW and CARDINAL of the ORG , thereby reaching incorrect findings . The building in question was an unauthorised construction built on a plot of land belonging to the ORG . Hence , only the ORG could have acquired ownership rights in respect of that building .

The applicant lodged an appeal on points of law .

On DATE ORG decided to return the appeal as inadmissible for lack of merit .

Following these decisions , the authorities instituted proceedings against the applicant seeking annulment of registration of his ownership rights in respect of the building and the plot of land , which was granted by the courts .


No violation of Article 6 - Right to a fair trial (Article 6-2 - Presumption of innocence)

Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Georges Ravarani

The applicant was born in DATE and lives in GPE .

In DATE the applicant and GPE started a company which imported and sold various goods . D.A. , who was the stepson of the applicant ’s sister , sometimes worked as a security guard on the company ’s LOC and as the applicant ’s bodyguard .

NORP In DATE GPE and another individual , ORG , were found murdered in GPE ’s flat in GPE .

In DATE , while the applicant was in a car with ORG , the latter threatened him with a firearm . When the applicant tried to escape , D.A. hit him with the barrel of the gun , fired some shots into the ground , took the applicant ’s ORG watch and fired at several passers - by , injuring them .

On an unspecified date the authorities opened a pre - trial investigation into the murder of GPE and GPE ( see paragraph CARDINAL above ) and the incident between the applicant and D.A. in the car ( see paragraph CARDINAL above ) .

In DATE the NORP authorities issued a search warrant in respect of D.A. It appears that he had left GPE and lived in several different countries . In DATE D.A. was apprehended in GPE and subsequently extradited to the NORP authorities .

NORP In DATE the applicant was officially notified that he was suspected of having organised the murder of GPE and GPE for personal gain while they were in a helpless state , as set out in LAW CARDINAL ( CARDINAL ) , ( CARDINAL ) , ( CARDINAL ) and ( CARDINAL ) of LAW ( see paragraph CARDINAL below ) . It was suspected that the applicant had acted together with D.A. Further details were subsequently added to that notice in DATE .

NORP In DATE D.A. was officially notified that he was suspected of having murdered GPE and GPE for personal gain while they were in a helpless state . D.A. was also notified that he was suspected of having attempted to murder the applicant and several other individuals , as set out in LAW , ( CARDINAL ) , ( CARDINAL) , ( CARDINAL ) , ( CARDINAL ) and ( CARDINAL ) of LAW ( see paragraphs CARDINAL above and CARDINAL below ) .

In DATE the prosecutor decided to separate the pretrial investigation against the applicant and D.A. ( see paragraph CARDINAL below ) . He noted that the investigation concerned CARDINAL criminal offences – the murder of GPE and GPE ( see paragraph CARDINAL above ) and the attempted murder of the applicant and other individuals ( see paragraph CARDINAL above ) . The prosecutor observed that the applicant had been suspected of the former offence and that he had been granted victim status in respect of the latter offence , and the prosecutor considered that CARDINAL person could not have dual status in the same investigation . He also noted that the investigation in respect of D.A. was almost complete and the case would soon be ready for trial , whereas the investigation in respect of the applicant was still ongoing . For those reasons , the prosecutor concluded that it was necessary to separate the investigation against the applicant from that against D.A.

D.A. was charged with the murder of GPE and GPE for personal gain while they were in a helpless state ( hereinafter “ the first charge ” ) and with the attempted murder of the applicant and several other individuals ( hereinafter “ the second charge ” ) . The criminal case was transferred to ORG for examination on the merits . With regard to the first charge , the applicant had the status of witness , and with regard to the second charge , he had the status of victim .

ORG issued its judgment on DATE . It found D.A. guilty of the first charge as set out in Article CARDINAL § CARDINAL ( CARDINAL ) , ( CARDINAL ) and ( CARDINAL ) of LAW ( see paragraph CARDINAL below ) . The court based its conclusion on multiple witness testimonies , the examination of various material objects , and conclusions delivered by forensic experts .

One of the documents examined by the court was a handwritten letter which ORG had addressed to the applicant at some point in DATE . The applicant had received that letter from ORG father and presented it to the police . A forensic examination revealed that the letter had indeed been written by D.A. In the letter , ORG stated that he had killed GPE on the applicant ’s orders so that the applicant would get all the profit from their business . D.A. also alleged that the applicant had bought him weapons to carry out unspecified criminal activities for the applicant ’s benefit , and had bribed judges and prosecutors in order to help D.A. avoid criminal responsibility for some unspecified offences . D.A. further alleged that the applicant had promised to pay him for the murder , but had still not done so , and that that had been the reason for their conflict in the car ( see paragraph CARDINAL above ) . He threatened to forward the letter to various newspapers if the applicant failed to pay him .

When questioned by the court , ORG submitted that the contents of the letter were false . He claimed that the applicant had owed him some money for another debt , so he had made up the story in the letter in order to scare the applicant into paying him back . The applicant , who was questioned as a witness in respect of that charge , also denied all the allegations in the letter and stated that he had no connection to the murder .

However , the court held that the letter constituted ORG ’s confession to the murder . The court considered it unlikely that ORG , who at the time of writing the letter had already been suspected of the murder , would falsely incriminate himself in the letter to the applicant , especially as their relationship at that time had not been friendly . It then stated that several of the allegations in the letter had been proved – for example , the applicant had admitted to having bought weapons for ORG , and there had indeed been several sets of criminal proceedings against ORG which had eventually been discontinued . The court concluded :

“ As the facts laid out in the letter are consistent and objective , there are no grounds to doubt the truthfulness of the contents of the letter ; the statement in the letter that [ D.A. ] – upon the orders of the individual in respect of whom a separate pretrial investigation was opened DATE killed [ GPE ] so that all the profit would go to that individual alone , and that all the money which they had jointly owned would belong to the individual in respect of whom a separate pre - trial investigation was opened , must be considered true . ”

The descriptive part of the judgment also stated that ORG had killed GPE and ORG while acting with unidentified accomplices . However , the court did not take that into account as an aggravating circumstance .

As for the second charge against ORG , the court changed its legal classification . The court considered that it had not been proved that ORG had intended to kill the applicant or any of the passers - by ( see paragraph CARDINAL above ) . However , it found D.A. guilty of stealing the applicant ’s property of high value ( the ORG watch ) while threatening him with a firearm , and of negligently injuring several other individuals in his attempt to escape . D.A. was given a cumulative sentence of CARDINAL years’ imprisonment . The court also allowed the applicant ’s civil claim submitted in respect of the second charge in its entirety , and ordered ORG to pay him CARDINAL NORP litai ( LTL – approximately MONEY ( EUR ) ) in pecuniary damages for the stolen watch .

NORP The prosecutor , D.A. , the applicant and another victim submitted appeals against ORG judgment of DATE . In his appeal , the applicant argued that the court had de facto found him guilty of having instigated the murder of GPE and GPE , despite the fact that he had not been the accused in that case and had not been able to defend himself . The applicant asked ORG to remove from the descriptive part of the judgment all the passages which alleged his involvement in the murder , in particular those which discussed D.A. ’s letter ( see paragraphs CARDINAL above ) .

In its judgment of CARDINAL DATE ORG amended the first - instance judgment in part . It held that ORG had erred in changing the legal classification of the second charge , found D.A. guilty of the second charge as it had been originally presented ( see paragraph CARDINAL above ) , and increased the sentence to DATE imprisonment . In addition , the court removed from the descriptive part of the judgment the phrase that D.A. had killed GPE and ORG while acting with unidentified accomplices ( see paragraph CARDINAL above ) – it held that , without identifying such individuals , inter alia , it could not be determined whether there had been an intention for them to act together .

The court dismissed ORG ’s appeal contesting his guilt in respect of both charges . With regard to the first charge , ORG argued , inter alia , that his letter to the applicant ( see paragraphs CARDINAL above ) should not have been considered evidence of his guilt . In response to D.A. ’s arguments , the court stated :

“ D.A. ’s guilt in respect of the charge against him – the murder of GPE and GPE for personal gain while they were in a helpless state – has been proved by a series of pieces of indirect evidence collected in the case and adequately assessed in the [ firstinstance ] judgment , as well as one of the main pieces of direct evidence D.A. ’s letter to [ the applicant ] , allowing [ the court ] to make well - founded conclusions regarding the nature of the convicted individual ’s actions and the form of his guilt .

It is underlined that the principal statements of the letter , assessed together with the other evidence collected in the case , correspond to the events which took place at that time ... The chamber concludes that the facts indicated in ORG ’s letter are not made up , he refers to actual events which took place in his life , and there is no indication that he intended to threaten [ the applicant ] with that letter to make the latter pay him money . ”

As to the applicant ’s appeal , the court stated :

“ Contrary to what is alleged in [ the applicant ’s ] appeal , the first - instance court , while examining the evidence related to [ D.A. ’s ] guilt in respect of the murder of GPE and GPE , did not assess [ the applicant ’s ] actions relating to the organisation of the murder of those individuals . As can be seen from the case file , on DATE [ the applicant ] was notified that he was suspected of having organised the murder of GPE and GPE ... [ The applicant ] is entitled to exercise his defence rights and defend himself against the accusation in that criminal investigation . Only that investigation can determine [ the applicant ’s ] guilt in respect of the criminal offence of which he is suspected ... [ The applicant ] essentially contests his guilt in respect of the part of the judgment in which he does not have the status of either convicted individual or victim ... and his request goes beyond his procedural rights as a witness ... [ The applicant ’s appeal ] is thereby dismissed . ”

D.A. and the applicant submitted appeals on points of law against ORG judgment of DATE . The applicant raised essentially the same arguments as in his previous appeal ( see paragraph CARDINAL above ) .

On DATE ORG dismissed the appeals . In response to the applicant ’s submissions , ORG stated that the criminal proceedings in question concerned D.A. ’s and not the applicant ’s guilt in respect of the murder of GPE and GPE , and the applicant had not had victim status with regard to that charge , so he was not legally entitled to submit an appeal on points of law ( see paragraph CARDINAL below ) .

On DATE the applicant was served with an indictment and charged with having incited D.A. and another unidentified individual to murder GPE and GPE for personal gain while they were in a helpless state , as set out in LAW CARDINAL § CARDINAL ( CARDINAL ) , ( CARDINAL ) , ( CARDINAL ) and ( CARDINAL ) of LAW ( see paragraphs CARDINAL below ) . The case was transferred to ORG for examination on the merits .

When questioned by the court , the applicant denied his guilt in respect of the murder . He submitted that all the allegations against him in ORG ’s letter had been false , and that ORG had written the letter with the purpose of blackmailing the applicant , which was why the applicant had decided to give it to the police . D.A. was questioned as a witness and gave essentially the same statements as in the previous criminal proceedings , including those relating to his letter ( see paragraph CARDINAL above ) .

On DATE ORG acquitted the applicant . It considered that neither direct nor indirect evidence adequately proved that he was guilty of having instigated the murder of GPE and GPE The court underlined that it had not been proved that the death of GPE , who had been the applicant ’s business partner , had been beneficial to the applicant ; on the contrary , after his death , their company had suffered great losses and had eventually ceased operating . In addition , the court considered that the prosecution had not established any motive for the applicant to kill ORG

With regard to ORG ’s letter , the court stated that , although the letter included facts which were true , some of its other contents appeared to be “ characteristic of blackmail ” , in particular those which alleged that the applicant had bought D.A. weapons specifically to commit criminal offences , or that he had bribed some officials to help D.A. avoid criminal responsibility ( see paragraph CARDINAL above ) . The court also considered that D.A. ’s threat to forward the letter to the media further indicated that it had been written with the purpose of blackmailing the applicant . Lastly , the court underlined that the applicant had not paid D.A. the money which he had demanded , nor had he destroyed the letter , but had submitted it to the police , which confirmed that the applicant had not been connected to the murder of GPE and GPE

The prosecutor appealed against that judgment . He submitted , inter alia , that the contents of ORG ’s letter had been examined in the previous criminal proceedings which had been concluded by a final court judgment ( see paragraphs CARDINAL , DATE and DATE above ) , and the courts in the proceedings against the applicant should have followed that assessment .

On DATE ORG upheld the applicant ’s acquittal . In response to the prosecutor ’s arguments concerning ORG ’s letter , it stated that the courts in the criminal proceedings against ORG had not examined the applicant ’s actions in relation to the murder of GPE and GPE , so the prosecutor ’s arguments had to be dismissed .

From the information which the parties submitted to the ORG , it appears that no appeal against that judgment was lodged before ORG .


André Potocki;Angelika Nußberger;Erik Møse;Khanlar Hajiyev;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev

The applicants , Mr ORG ( “ the first applicant ” ) and Mr PERSON ( “ the second applicant ” ) , are CARDINAL NORP nationals , who were born in DATE and DATE respectively and live in GPE . The President of the Section decided that their names should not be disclosed ( Rule CARDINAL § CARDINAL of the Rules of the Court ) . The ORG also decided not to notify the Government of GPE of the present application on the grounds that Article CARDINAL § CARDINAL of the Convention did not apply in the circumstances of the present case ( see I v. GPE , no . CARDINAL/CARDINAL , § § DATE , CARDINAL DATE ) .

The applicants were represented before the ORG by Ms C. PERSON and Mr O. Rode , lawyers practising in GPE and GPE respectively . ORG ( “ the Government ” ) were represented by their Agent , PERSON .

The applicants complained , in particular , that their expulsion to GPE had put them at risk of being subjected to torture or inhuman treatment contrary to LAW , and that they did not have effective remedies in that regard . They also complained under LAW about interference with their family life and absence of procedural safeguards in that regard .

On DATE the above - mentioned complaints were communicated to the Government .

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

The applicants were born in what is now GPE in GPE . The first applicant moved to GPE in DATE and has lived there ever since , on the basis of regularly renewed residence permits . In DATE he was granted a permanent residence permit , which was renewed in DATE and DATE . The second applicant moved to GPE in DATE and has lived there subsequently , on the basis of regularly renewed residence permits .

On DATE the NORP Minister of Interior adopted decisions to include the applicants in the list of aliens prohibited from entering and remaining in GPE and GPE ( hereinafter “ the blacklist ” ) for an indeterminate period of time . These decisions were taken on the basis of a report by LAW , CARDINAL of the NORP intelligence services ( ORG aizsardzības birojs – hereinafter “ the ORG ” ) , submitted on DATE and amended on DATE . The ORG had informed the Minister of ORG that both applicants had been engaging in criminal activity and planning to commit a serious crime , and hence posed a threat to national security and public order and safety . The part relating to national security grounds was identical in both decisions and stated :

“ The ORG indicated that the information obtained attests to [ the applicant ’s ] criminal activity in a leading role within an organised criminal group . Similarly , it is apparent from the information provided by the ORG that [ the applicant ] is planning to commit a serious or especially serious crime which may have irreversible consequences on national security . As a consequence [ the applicant ] in his activity [ is ] a threat to public order and national security . ”

The applicants were not made aware of the ORG ’s report .

The decision concerning the first applicant pointed to the fact that he was married to a NORP national . It was therefore concluded that he would not encounter any obstacles in meeting his spouse outside GPE .

In the decision concerning the second applicant it was noted that he was married to a NORP national . His former wife ( a NORP national ) and their minor child were also residing in GPE . The decision went on to state that an interference with the second applicant ’s right to respect for his private and family life was justified , taking into account , among other things , that during DATE he had resided in GPE “ he had not learned the [ State language ] , which [ had ] clearly obstructed his integration into society ” . It was also pointed out that he had moved to GPE when he was over DATE , which meant that his ties to his native country had not disappeared . With regard to him having an opportunity to meet his young son , the decision stated that he had already agreed in DATE , while still residing in GPE , that the child would reside with his mother in GPE . It was therefore concluded that he “ would not be entirely deprived of opportunities to meet [ his ] son ” in GPE . The interference with his family life with his spouse , a NORP national , was held to be “ commensurate with the interests of the society ” .

Both decisions mentioned that under section CARDINAL(CARDINAL ) of LAW , an appeal could be lodged with ORG . The decisions became effective on DATE they were signed , CARDINAL DATE , and were sent to the ORG declared addresses in GPE . On DATE they were expelled from GPE ( see paragraph CARDINAL below ) .

On DATE the applicants , through their legal representative , applied to ORG of the ORG of ORG to challenge the Minister of ORG ’s decision to put their names on the blacklist . On CARDINAL and CARDINAL DATE the ORG refused to accept the applicants’ complaints for lack of jurisdiction , indicating that such reviews fell within the competence of the Prosecutor General if the decision had been adopted “ on the basis of information obtained as a result of intelligence or counterintelligence ” . The decisions also referred to ORG judgment of DATE ( see paragraph CARDINAL below ) which said that the prosecutor ’s review as such did not infringe the right of access to court . The ORG ’s decision was final .

On DATE the applicants’ legal representative appealed to ORG asking , inter alia , that the decision to put them on the blacklist be revoked and that he be given access to the ORG ’s report of CARDINAL and DATE , which had formed the basis of the Minister of ORG ’s decision . On CARDINAL occasions the appeals were amended to include , inter alia , the allegations that in DATE the applicants had collaborated with the NORP State security services in a hostage liberation operation in GPE . Later the appeal was amended to include the second applicant ’s allegation that subsequently he had refused to cooperate with a ORG officer in relation to certain activities of the leaders of the NORP community in GPE , and therefore the expulsion had been instigated in revenge for that .

In a reply of DATE ORG dismissed the request for access to the requested documents . He noted that the possibility to familiarise oneself with information containing ORG secrets , if necessary with the assistance of specially authorised representatives , as provided in CARDINAL of ORG ( see paragraph CARDINAL below ) , applied only to administrative court proceedings . ORG in his reply also stated :

“ ... By envisaging in section CARDINAL(CARDINAL ) of LAW that an appeal against a decision the Minister of Interior adopted on the basis of information obtained in the course of intelligence or counterintelligence activities carried out by a ORG security institution could be lodged with the Prosecutor General [ but ] not a court , the legislator wished especially to protect information obtained in the course of intelligence or counterintelligence activities ; [ granting ] access to such information to persons not possessing special permission ... could seriously infringe the work of the ORG security institutions ... thus seriously impairing national security . ”

In a final decision of DATE the Prosecutor General reformulated the Minister of ORG ’s decision of CARDINAL DATE ( see paragraph CARDINAL above ) . The part relating to national security grounds was identical in his decisions relating to both applicants and stated :

“ Having familiarised myself with the results of the review carried out by the Prosecutor [ ORG ] and the information provided in the conclusions and supporting documents , [ I ] find that the ORG , as a competent ORG institution , had grounds to consider that [ the applicant ] had a role in an organised criminal group and [ was ] CARDINAL of its leaders , [ had ] committed or [ was ] planning to commit a serious or especially serious crime , and [ that his ] presence in GPE was a threat to public order and national security as confirmed by the information [ obtained by the ORG in the course of counterintelligence activities ] , which I have verified and examined .

Nevertheless , when adopting a decision to include [ someone ] in the list of aliens prohibited from entering GPE , the Minister must assess whether the behaviour of the foreigner and the nature and scope of information held by the competent institution is sufficient to establish any of the ... conditions set out in section CARDINAL(CARDINAL ) of the Immigration law .

Having examined the information held by the ORG , [ I ] consider that [ the information ] is not sufficient to establish the conditions set out in section CARDINAL(CARDINAL)(CARDINAL ) and ( CARDINAL ) , [ namely ] that [ the applicant is ] acting in an anti - governmental or criminal organisation or [ has ] a role in such an organisation , and has carried out or is planning to commit a serious or particularly serious crime .

At the same time , the nature and scope of the ORG information obtained in the course of counterintelligence activities clearly attest to [ the fact ] that [ the applicant ’s ] activity is a threat to NORP national security and public order and safety , as well as a threat to the national security of the States in the GPE [ Area ] . The condition set out in section CARDINAL(CARDINAL)(CARDINAL ) has therefore been established , which serves as a basis for the adopted decision to include [ the applicant ] in the list of aliens prohibited from entering GPE . ”

The Prosecutor General also dismissed the applicants’ fear that they could be exposed to ill - treatment in GPE due to their alleged involvement in the hostage liberation in DATE , as that involvement remained unconfirmed . In particular , the witnesses questioned had provided controversial submissions , which did not correspond to the testimony of other witnesses , including the statements obtained from the hostages liberated during the operation . In examining the allegations about the risk of ill - treatment after expulsion , the information ORG had obtained from ORG and the applicants’ relatives confirmed that on numerous occasions DATE the applicants had entered GPE , including GPE .

In relation to the complaint of unlawful activity by a ORG officer , ORG noted that the meeting between the ORG officer and the second applicant had been recorded in accordance with the law , and that the second applicant ’s allegations were ill - founded .

Subsequently , in the light of the Prosecutor General ’s decision to reformulate the basis on which the ORG names had been put on the blacklist , on DATE their legal representative wrote to the Minister of ORG and director of the ORG asking for a review of the decisions to include them in the list .

On DATE the ORG representative received a response from the director of the ORG , stating that his request of CARDINAL DATE did not refer to any new circumstances which could serve as a basis for amending or revoking their report to the Minister of Interior in DATE ( see paragraph CARDINAL above ) . On DATE the Minister of ORG gave a similar reply to the ORG representative .

In a letter sent to ORG DATE the ORG representative brought to the ORG ’s attention the following :

“ ... [ I]n DATE the applicants were informed that in an unofficial conversation with a certain high - ranking police officer , [ a staff member of the ORG ] had stipulated that he would “ take care ” of any potential complaints the applicants might submit to the ORG , and certain politicians would make sure the complaints were not successful . ... The applicants considered this information irrelevant before the above mentioned official information [ the ORG ’s letter ] was received . ”

They further drew the ORG ’s attention to CARDINAL questions , the first being how the ORG became aware of their application to the ORG , and the second how the application influenced the decisions of the ORG and Minister of Interior .

The authorities apprehended the first and second applicants on CARDINAL DATE and CARDINAL DATE respectively . They were both placed in a ORG temporary detention facility . The first applicant met CARDINAL of his lawyers on DATE of his detention , and the other one the following day . The second applicant met his lawyer on DATE of his detention .

On DATE the acting chief of the GPE branch of ORG adopted decisions to expel the applicants from GPE and to deport them to GPE . The reason was that the applicants constituted a threat to national security , public order or safety under section CARDINAL paragraph CARDINAL part CARDINAL of LAW ( see paragraph CARDINAL below ) . The decisions indicated that it was possible to lodge an appeal without suspensive effect to the chief of ORG . On DATE both applicants were made aware of the respective decisions . They both appealed ( see paragraph CARDINAL below ) .

On TIME the applicants were taken to the NORP border and expelled from GPE .

That afternoon one of the legal representatives sent a fax to , inter alia , ORG , asking the applicants not to be expelled to GPE “ because they are possibly agents of ORG and their expulsion to the receiving ORG puts them under threat and they could be subjected to torture ” .

According to the ORG initial submissions to the ORG , “ DATE after their expulsion to the GPE ” they were summoned by NORP police and were questioned about their role in the hostage liberation operation in DATE before being beaten up . The case file contains an identical certificate for each applicant issued by a NORP hospital , confirming that on DATE both applicants had been found to have concussion , a brain injury and multiple bruises and scratches . The applicants alleged that as a result of what had happened they had had to flee GPE and were now hiding in GPE .

NORP The applicants’ representative submitted appeals against the expulsion orders of CARDINAL DATE ( see paragraph CARDINAL above ) , complaining , inter alia , of the authorities’ failure to strike a fair balance between the right to respect for their family life and the alleged threat to national security , as required under LAW . The chief of ORG dismissed the first and second applicant ’s complaints on CARDINAL and CARDINAL DATE respectively .

In their appeal to ORG of DATE the applicants also said that before adopting the impugned decision ORG had not heard them , meaning they had not been able to provide information on the possible threat they would face at the hands of the security services after their expulsion to GPE .

On DATE ORG , in CARDINAL judgments , upheld the impugned decisions in relation to both applicants . ORG established that prior to expulsion the applicants had not approached the NORP authorities with allegations concerning the risk of being subjected to treatment contrary to LAW if expelled to GPE . It also noted that on DATE both applicants were informed that the expulsion would be carried out the following day , on DATE . On DATE of the applicants submitted a request to the chief of ORG asking to be given several impounded goods in custody , but no other requests were made . Both applicants met their lawyers after being detained .

The court referred to its well - established case - law and noted that the decisions to put the applicants’ names on the blacklist on national security grounds had been reviewed and upheld by ORG , so neither ORG nor the administrative court were competent to review the Minister of ORG ’s decision .

By addressing the complaint that in adopting the impugned expulsion decision of CARDINAL DATE the applicants were not heard , the court noted that even if it constituted a minor procedural shortcoming , the lack of hearing of the applicants and witnesses could not have an effect on the outcome of the case . In particular , the court noted that the review of the Minister of ORG ’s decision fell outside the scope of the present administrative proceedings . Any information the applicants might have submitted in relation to the adoption of the above decision could not have any effect on the content of the contested decision of CARDINAL DATE to expel the applicants . Moreover , the applicants were not prevented , with the assistance of their legal representatives , from communicating to ORG any information regarding the alleged interference the impugned decision would have on their family life .

The judgments also stated that there were no obstacles for the applicants to enjoy their family life in GPE . Nor were there any special circumstances to the effect that the family members could not join them outside GPE . The wife of the first applicant was a NORP national and she would not have any restrictions to travel to GPE , whereas the second applicant would not encounter any obstacles in meeting outside GPE his child whose mother was a NORP national .

On DATE ( in relation to the first applicant ) and on DATE ( in relation to the second applicant ) ORG of the ORG of ORG refused to initiate cassation proceedings . The ORG stated , in particular , that the contested expulsion orders were a final stage in the proceedings initiated by the decisions of the Minister of ORG . The ORG further noted that it had been made aware of the decisions of the Minister of ORG and the letters of ORG on which the decision was based , and of the decisions of ORG Review of the above decisions fell outside the scope of the present proceedings , but these decisions attested to the lawful basis and legitimate aim of the applicants’ expulsion .

On the question of the proportionality of the interference with the applicants’ family lives , the ORG upheld the lower court ’s findings and noted that the applicants had not advanced any arguments indicating any restrictions to enjoy their family life outside GPE . In relation to the second applicant , the ORG noted that in DATE , while still residing in GPE , he had agreed that the child would reside with the applicant ’s former wife , a NORP national , in GPE . The ORG also stated that both applicants had entered GPE as adults and throughout their stay in GPE they had not learned NORP , which showed that their ties with the expelling ORG were not strong .

On DATE the acting director of ORG decided to withdraw the first applicant ’s residence permit and refused to grant the second applicant a temporary residence permit because of their inclusion in the blacklist .

NORP The applicants’ legal representative lodged appeals against the above - mentioned decisions on CARDINAL and CARDINAL DATE respectively . CARDINAL levels of administrative courts dismissed the complaints .

On DATE , ORG of the ORG of ORG refused to initiate cassation proceedings in relation to the second applicant . The ORG noted , in particular , that the authorities had concluded that the applicant posed a threat to national security , and that depriving him of residence permit served a legitimate aim . The ORG also did not see any reasons why the applicant could not meet his minor child outside the territory of GPE , especially in the circumstances where already in DATE , while still residing in GPE , the applicant had agreed that the child would reside with his mother in GPE .

The cassation complaint submitted by the first applicant is pending examination before the ORG .

On DATE the Ombudsman of GPE issued an opinion following the ORG complaint concerning their expulsion proceedings . The ORG did not find any violation of ORG CARDINAL or CARDINAL of the Convention . In relation to the review procedure , the opinion stated :

“ A decision to include someone in the list of foreigners prohibited from entering GPE is adopted by the ORG of ORG in the form of oral proceedings by a special panel of judges to whom special access to [ State ] secrets is granted , as well as interpreters , recordkeepers and other court officials to whom such access is also granted . No prima facie legitimate purpose can currently be established for dividing the appellate procedure into the competence of CARDINAL other institutions , ORG ; no further analysis shall follow , however , as the assessment of this issue is not the subject of this case . ”

The final conclusions , as far as relevant , stated :

“ Firstly , a breach of LAW of the [ Convention ] and [ LAW ( a ) ] of LAW No . CARDINAL to LAW ] has been committed in respect of the expelled ORG and ORG Once a ORG holds that not only ORG but also ORG has the right to review a decision to include someone in the list of foreigners prohibited from entering the ORG , observation of the adversarial principle has to be ensured in the latter process , similar to the process guaranteed in ORG [ review cases ] . If an alien seeks to contest the decision , defence counsel must be provided who has access to classified information , [ State ] secrets , and the right to familiarise [ himself ] with the evidence on which the expulsion of foreigners is based , so that a complaint may be filed for the protection of the interests of the expelled foreigner . ”

NORP The relevant Articles of LAW ( PERSON ) provide :

“ Everyone has the right to defend his or her rights and lawful interests in a fair court . Everyone shall be presumed innocent until his or her guilt has been established in accordance with the law . Everyone whose rights are violated without justification has the right to commensurate compensation . Everyone has the right to the assistance of counsel . ”

“ Everyone has the right to inviolability of his or her private life , home and correspondence . ”

“ The rights of persons set out [ in LAW ] ... of the LAW may be subject to restrictions in the circumstances provided for by law in order to protect the rights of other people , the democratic structure of the ORG and public safety , welfare and morals . On the basis of the conditions set forth in this LAW , restrictions may also be imposed on the expression of religious beliefs . ”

Section CARDINAL paragraph CARDINAL part CARDINAL of the Constitutional Court PERSON provides that an application to ORG regarding the initiation of constitutional proceedings must , among other criteria , contain legal reasoning ( juridiskais pamatojums ) . Pursuant to section CARDINAL² , in addition to the above - mentioned requirements , an individual constitutional complaint must include justification as to how the applicant ’s fundamental rights as defined in the LAW have been infringed upon , and show that all available remedies have been used .

Section CARDINAL sets out the grounds on which the panel examining the constitutional complaint may refuse to initiate a case . When examining a constitutional complaint ( application ) the panel may also refuse to initiate a case where the legal reasoning included in the complaint is evidently insufficient to satisfy the claim ( section CARDINAL ) ) .

In a decision of DATE ( application no . CARDINAL/CARDINAL ) on the question of institution of constitutional proceedings , the panel of ORG stated that the legal reasoning of a complaint is an analysis of the content of a legal provision , an explanation as to how the impugned provision interferes with the applicant ’s fundamental rights , an assessment of the lawfulness of the procedure according to which the impugned provision has been adopted , and an assessment of the legal aim and proportionality of the interference .

On DATE ( application no . CARDINAL ) on the question of institution of constitutional proceedings , the panel of ORG stated that in support of an allegation that the impugned provision does not comply with the provisions of the LAW , the applicant must indicate in the legal reasoning ( CARDINAL ) whether the contested provision contains any restriction of rights , ( CARDINAL ) whether this restriction is prescribed by law and has a legitimate aim and ( CARDINAL ) whether the restriction is proportionate to the aim pursued .

Under section CARDINAL ) of LAW , once a decision to include an alien in a blacklist has been adopted by the Minister of Interior and if the person is on NORP territory , the chief of ORG or someone authorised by him must adopt a decision to expel ( lēmums par piespiedu izraidīšanu ) the person concerned within DATE , to be counted from the date it was established that he or she was on NORP territory .

Section CARDINAL(CARDINAL ) provides that an alien has the right to appeal against an expulsion decision within DATE . Under section ORG ) , an appeal against a decision taken pursuant to section DATE does not have suspensive effect .

Section CARDINAL of the Immigration PERSON lists the circumstances in which ORG may detain an alien . Paragraph CARDINAL part CARDINAL at the material time , provided that an alien could be detained on grounds of information that a person poses threats to national security , public order or safety .

Under section CARDINAL(CARDINAL)(CARDINAL ) the Minister of ORG may decide to include someone who is not a NORP citizen or a “ non - citizen ” in a blacklist if , among other things , “ competent ORG institutions have reason to believe ” ( “ kompetentām valsts iestādēm ir pamats uzskatīt ” ) that he or she ( i ) is a member of an anti - governmental or criminal organisation or has a role in such an organisation , ( ii ) is a threat to national security or public order and safety , or ( iii ) may hinder the pre - trial investigation or work of the law enforcement authorities in investigating the crimes upon arriving in GPE ( section CARDINAL(CARDINAL)(CARDINAL ) ) , or ( iv ) has carried out or is planning to carry out a serious or particularly serious crime ( section MONEY ) ) .

In relation to the review , section CARDINAL at the material time provided as follows :

( CARDINAL ) A alien in respect of whom a decision has been taken in accordance with [ CARDINAL ) ] has the right , within DATE of becoming acquainted with the decision , to appeal to ORG of the ORG of ORG . Submission of an application to the court may not suspend implementation of the decision referred to [ in section CARDINAL(CARDINAL ) ] . The applicant does not have the right to request the court to suspend the operation of such a decision .

( CARDINAL) If the decision referred to in section CARDINAL(CARDINAL ) has been taken on the basis of information acquired by ORG security institutions as a result of intelligence or counterintelligence operations , it may be appealed to ORG , whose decision shall be final . ”

Section CARDINAL(CARDINAL ) came into effect on DATE and it was introduced after ORG had declared unconstitutional a provision providing that decisions adopted by the Minister of Interior were not amenable to review ( see paragraph CARDINAL below ) . Section CARDINAL(CARDINAL ) about ORG Office review came into effect on DATE .

In DATE section DATE ) came into force , which provides that if the applicant ’s representative does not have a special permit for access to ORG secrets , the court must appoint as the applicant ’s representative for that part of the proceedings an advocate practising in GPE who has been issued such a permit . If the applicant does not consent to such representation , the court must examine the information associated with official secrets without involving the applicant or his or her representative .

Section CARDINAL(CARDINAL ) provides that in cases where the period of an entry ban exceeds DATE , the institution which has adopted the decision to include an alien in the blacklist shall review it DATE from the date it was taken .

The relevant parts of ORG judgment of DATE ( case no . DATE - CARDINAL - CARDINAL ) on the compliance of section CARDINAL(CARDINAL ) of LAW read :

“ CARDINAL . In conformity with section CARDINAL of LAW , the opinion of the competent ORG authorities ( in this particular case , the opinion of the ORG security institution ) lies at the basis of the Minister ’s [ of the ORG ] decision . Someone who challenges his or her inclusion in the [ blacklist ] does not agree , as a matter of course , with the facts expressed in the decision , which are often connected with issues of ORG security . When reviewing such claims , the use of confidential material may be unavoidable . Even though in cases connected with national security the possibility of legal examination is limited , this does not mean that the national authorities can be free from effective judicial control in all cases , whenever they choose to assert that national security and terrorism are involved ( see ECHR Judgment in case “ PERSON v. the GPE ” § CARDINAL ) .

If the violation of a person ’s rights is the result of the decision of a competent institution ( State security institution ) , on the basis of which the Minister of ORG has adopted the decision , one can agree with the opinion voiced in the letter by ORG that the person has the possibility of protecting his rights by lodging a complaint to the prosecutor under the procedure set out in LAW . As regards an assessment of the activity of the ORG security institution in this case , the ORG has secured a protection remedy for the individual , which is as effective as possible in circumstances where the issue is connected with ORG security and , possibly , the use of confidential information . ORG in its judgments has already pointed out that “ in GPE the Prosecutor [ ORG ] may be regarded as an effective and available means of protection , because the status and role of the prosecutor in supervising the law secures an independent and impartial review of cases in compliance with LAW ( see the LAW DATE Judgment in case no . DATE ; DATE Judgment in case DATE )

Thus , as regards the assessment of the competent ( State security ) institution , the ORG has secured effective protection under LAW .

... The fact that the Minister of ORG ’s decision might be connected with interests of ORG security does not prevent the ORG from establishing a procedure under which the judicial institutions in certain cases , and under a definite procedure , may acquaint themselves with the material connected with ORG security . The institution concerned may even decide to present the required amount of documents separately if [ they ] do not include ORG secrets . LAW , if read together with LAW , also provides such a solution by , among other things , a special positive duty upon GPE , in accordance with which they have to create institutional infrastructures necessary for the implementation of a fair court , and enact legal norms which guarantee that the procedure is fair and impartial .

The impugned provision thus does not ensure realisation of a person ’s right to a fair court as guaranteed by LAW .

On DATE ORG ( case no . DATE ) noted that international human rights norms and the practice of their application serve as a means of interpretation at constitutional law level to determine the contents and scope of fundamental rights and the principle of the law - governed ORG , as far as it does not lead to a decrease or limitation of the fundamental rights included in the LAW .

On DATE ORG ( case no . DATE ) held that the contested provision of the domestic law did not comply with the LAW and was repealed with effect from CARDINAL DATE . As regards the individual applicant , in order for him to have the possibility to require repeated assessment of the proportionality of the measure adopted against him , the contested legal provision was repealed with effect as of the date of its adoption .


Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation)

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

NORP The list of applicants and the relevant details of the applications are set out in the appended table .

The applicants complained of the excessive length of their pre - trial detention . In applications nos . CARDINAL and CARDINAL/CARDINAL the applicants also raised other complaints under the provisions of the Convention .


No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Afghanistan)

Branko Lubarda;George Nicolaou;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova

The applicant is of NORP origin , was born in DATE and has been in the GPE since DATE .

The applicant entered the GPE on DATE and on CARDINAL DATE applied for asylum , submitting the following account in his interviews with immigration officials held on DATE , CARDINAL DATE and DATE .

After completing his elementary education in DATE , the applicant had attended the military academy in GPE . He had graduated in DATE and had started working in DATE with the rank of second lieutenant at an administrative department of CARDINAL of the directorates of the NORP security service ORG ( “ ORG - e Dowlati / PERSON GPE ) during the former communist regime in GPE . He had become head of this department DATE which was responsible for handling confidential documents DATE , which function he had continued to hold until the fall of the ruling communist ORG of GPE ( “ PDPA ” ) in DATE . In DATE he had been promoted to the rank of lieutenant - colonel .

The applicant ’s directorate had been assigned the task of negotiating and concluding agreements with groups that opposed and fought ORG , namely the mujahideen . These agreements entailed remunerated cooperation with the ruling ORG . The applicant had attended meetings between thus “ employed ” mujahideen commanders and executives of the directorate . During these meetings the performance of such commanders was assessed and decisions were taken on whether or not they should continue to be paid . The applicant had taken TIME at those meetings . He believed that the mujahideen were holding him personally responsible for the discontinuation of their pay where decisions to that effect had been taken . In addition , these mujahideen commanders had never admitted to cooperating with the ORG and were very keen on keeping this a secret , for which reason they were interested in eliminating the applicant .

In DATE , after the fall of GPE , these mujahideen commanders had come looking for the applicant . They were said to have come to his office and asked for him . The applicant had been informed of this by the president of the directorate he had worked for , who had maintained good relations with the mujahideen and hence had remained in post there .

The applicant and his family had fled to GPE , where they had led a quiet life until DATE , when various mujahideen groups had come to the city , including those mujahideen feared by the applicant . He had gone into hiding , during which period his house had been searched by the mujahideen . The applicant and his family had then fled to GPE .

On DATE , a person - specific official report ( individueel ambtsbericht ) not concerning the applicant was drawn up by ORG ( Ministerie PERSON ) . According to this report , torture was systemic in PERSON interrogation centres and within the ORG the loyalty of its staff was carefully controlled . It was considered impossible that persons belonging to the higher management of the ORG had not been involved in the implementation of the above methods . This report was taken into account in the applicant ’s asylum procedure .

The applicant ’s asylum claim was also examined in the light of an official report , drawn up on DATE by ORG , on “ ORG in NORP GPE ( DATE ) , AGSA , ORG , ORG and ORG ( “ PERSON in communistisch GPE ( DATE ) , AGSA , ORG , ORG en WAD ” ) and concerning in particular the question whether and , if so , which former employees of those services should be regarded as implicated in human rights violations ( see ORG v. the GPE ( dec . ) , no . CARDINAL/CARDINAL , § § DATE , DATE ) .

By a decision of DATE the Deputy Minister of ORG ( ORG ) rejected the applicant ’s asylum claim . The Deputy Minister held , inter alia , that serious reasons had been found for believing that the applicant had committed acts referred to in LAW DATE LAW ( “ the DATE LAW ” ) .

Referring to the official report of CARDINAL DATE ( see paragraph CARDINAL above ) , the Deputy Minister emphasised the widely known cruel character of the LAW , its lawless methods , the grave crimes it had committed such as torture and other human rights violations and the “ climate of terror ” which it had spread throughout the whole of NORP society , including the army . The Deputy Minister underlined the vague definition of “ enemy of the communist regime ” used by the ORG , how it found those enemies through an extensive network of spies , and how all of this led to widespread and often random arrests of suspects . It was also noted that the ORG was considered to be an elite unit of the communist regime , and that only those whose loyalty was beyond doubt were eligible for recruitment to the service . Furthermore , new recruits were initially assigned to ORG sections actively engaged in tracking down “ elements that posed a threat to the ORG ” , where DATE in order to prove their loyalty unequivocally DATE they were directly involved in the human rights violations the ORG was associated with . In this regard the Deputy Minister emphasised that every promoted officer had been involved in arrests , interrogations , torture and even executions .

Having established , on the basis of elaborate argumentation based on various international documents , that those involved in the ORG were likely to fall within the scope of LAW , the Deputy Minister proceeded to an analysis of the applicant ’s individual responsibility under LAW . In the light of the above , the applicant ’s plea that he had never been involved in any human rights violations and had worked his whole career for CARDINAL department only was dismissed . In view of the applicant ’s career and several promotions , the Deputy Minister excluded the possibility of the applicant not having been involved in human rights violations committed by the ORG .

The Deputy Minister underlined that the application of LAW did not require proof that the applicant had personally committed the alleged crimes ; it sufficed that serious reasons existed to consider that the applicant had , or should have had , knowledge of those crimes and that he bore responsibility for them , which responsibility he had voluntarily assumed . In this context the Deputy Minister referred , inter alia , to CARDINAL and CARDINAL of “ The Exclusion Clauses : Guidelines on their LAW ( ORG , DATE ) , stating :

“ persons who are found to have performed , engaged in , participated in orchestrating , planning and/or implementing , or condoned or acquiesced in the carrying out of any specified criminal acts by subordinates , should rightly be excluded . ... voluntary continued membership of a part of a government engaged in criminal activities may constitute grounds for exclusion where the member can not rebut the presumptions of knowledge and personal implication . ”

The Deputy Minister further referred to a letter of CARDINAL DATE sent by the Deputy Minister of ORG to the President of ORG of ORG ( ORG ) stating that LAW was also applicable when the person concerned had not himself committed any acts referred to in this provision but had been an active and conscious member of an organisation known for committing war crimes and crimes against humanity . As the applicant had not in any way distanced himself from or resisted the crimes committed by the ORG , the Deputy Minister concluded that LAW was applicable to the applicant ’s case . Consequently , the applicant ’s asylum request was rejected and LAW held against him .

The Deputy Minister further found no grounds on the basis of which the applicant would be eligible for a residence permit on compelling humanitarian grounds ( klemmende redenen van humanitaire aard ) . As regards the applicant ’s plea under LAW the Deputy Minister held that , even assuming that a real risk existed of the applicant being subjected to treatment contrary to that provision in GPE , Article CARDINAL did not guarantee a right to residence . The Deputy Minister considered in this context that granting residence to the applicant would conflict with the ORG ’s interest in terms of its credibility on the international stage , particularly regarding its responsibility towards other GPE . In the Deputy Minister ’s view , a situation in which the GPE was forced to become a host ORG for individuals who had elsewhere shocked public and international legal order with acts considered to constitute grave crimes under both NORP and international law was to be avoided .

The applicant ’s objection ( bezwaar ) to this decision was rejected , after he had been heard on it on DATE before an official board of enquiry ( ambtelijke commissie ) , on DATE by the Minister of ORG ( Minister PERSON Integratie ) , the successor to the Deputy Minister of ORG . The Minister endorsed the Deputy Minister ’s impugned decision and proceeded , in addition thereto , to an analysis of the applicant ’s individual responsibility under LAW on the basis of the prescribed and so - called “ personal and knowing participation test ” and held LAW against him .

As regards the “ knowing ” element , the Minister – having regard to the official report of ORG of DATE ( see paragraph CARDINAL above ) DATE found that the applicant had known or should have known about the criminal character of the ORG . The Minister did not attach any credence to the applicant ’s submissions that he had not known about the human rights violations committed by the ORG . Basing herself on ORG official report of CARDINAL DATE , the Minister held that the commission of human rights violations by the ORG under the ORG rule was a fact of common knowledge and that , therefore , it was unthinkable that the applicant would have been ignorant of those acts . The Minister emphasised in this regard the high rank the applicant had held , the long period he had worked for the ORG and the fact that he had attended meetings with the executives of the ORG in which he had been employed . The Minister concluded that the applicant had knowingly participated in torture and executions .

As regards the applicant ’s personal participation in human rights violations attributed to the ORG , the Minister found , basing herself to a large extent on the same factual information as the Deputy Minister had done in his previous decision , that the applicant had failed to demonstrate that he had not committed such violations himself or that his conduct , or lack thereof , had prevented these violations from being committed . The Minister held , therefore , that the applicant had personally participated in the commission of acts referred to LAW .

The Minister did not attach credence to the applicant ’s rebuttal , which amounted to his case having to be distinguished from the general situation with regard to the ORG and its officers as described in the official report of CARDINAL DATE . The applicant had claimed that he had obtained a desk job not by proving his loyalty to the ORG in sinister ways – as the official report stated – but rather through bribes . The Minister held that , based on the applicant ’s position and description of his tasks ( including the processing of high - level classified information ) , he had attempted to trivialise his activities and had greatly impaired his credibility in consequence . On this point , the Minister relied , inter alia , on ORG “ Reports of torture and long - term detention without trial ” of DATE , according to which the ORG in which the applicant had been employed was engaged in systematic torture .

NORP The Minister further identified several inconsistencies in the applicant ’s declarations and rebuttals , from which it was concluded that his declarations concerning certain of the tasks he stated he had performed were highly implausible . As regards the applicant ’s various rebuttals , it was found , in the relevant part , that the burden of proof in terms of LAW was less stringent than in a criminal prosecution ( “ serious reasons for considering ” that the applicant might have been guilty of human rights violations sufficed to render this provision applicable ) . Taking into account that the applicant had never sought to leave the ORG or the ORG , for which he had worked for DATE , in which his last held rank was that of lieutenant - colonel , and in which he had been promoted to head of his department , the Minister concluded that there were no indications that the applicant had been forced or had involuntarily worked for the ORG .

As regards the applicant ’s claim that the official report of CARDINAL DATE of ORG was not accurate and was based on unreliable sources and that , therefore , it was too general in scope and could not be applied to his case , the Minister held that this report was founded on several acclaimed sources , such as the United Nations Special Rapporteur , ORG , numerous ORG reports , and a variety of ORG publications .

NORP The Minister went on to analyse , of her own motion , the applicant ’s eligibility for a residence permit for reasons not related to asylum . It was held that no such permit could be issued , since the application of LAW gave rise to “ contraindications ” against the applicant in terms of his eligibility for other types of residence permit . However , while reiterating that LAW did not guarantee a right to residence , the Minister considered that it could not be ruled out that the applicant , in the present circumstances , would run a real risk of treatment contrary to that provision if expelled to GPE , for which reason the applicant was not to be expelled .

The applicant lodged an objection against the refusal by the Minister to grant him a residence permit for reasons not related to asylum . This objection was rejected by the Minister on DATE , confirming her impugned refusal .

The applicant appealed against the Minister ’s decisions of CARDINAL DATE and DATE before ORG ( rechtbank ) of GPE , arguing , inter alia , that the factual underpinning of ORG official report of CARDINAL DATE contained errors , which had led the Minister to draw incorrect conclusions as to the applicant ’s personal and knowing participation in the crimes referred to in LAW .

In its judgment of DATE , ORG of The GPE sitting in GPE held that the official reports issued by ORG , which lay to a great extent at the basis of the Minister ’s decisions , had been drafted in an unbiased manner , were accurate and objective , and provided the required insight in the relevant information , and that therefore , the Minister had been entitled to rely on them . In addition , ORG noted that the evaluation of the credibility of facts adduced by asylum seekers fell to a large extent within the Minister ’s discretion and could , therefore , only be evaluated marginally by the court . ORG agreed with the Minister on all points as to the latter ’s decision to hold LAW against the applicant and , consequently , to refuse him an asylum - based residence permit . As regards the Minister ’s separate decision of DATE , refusing the applicant a residence permit for reasons not related to asylum , ORG adopted a different reasoning , but reached the same conclusion .

In respect of LAW , ORG held , with reference to case - law of ORG ( Afdeling Bestuursrechtspraak ) of ORG ( PERSON ) , that the Minister should , wherever possible , avoid creating a situation in which an asylum seeker is refused a residence permit but can not be expelled to his / her country of origin for reasons based on LAW . For that reason , the decision should demonstrate that the Minister had examined whether LAW would lastingly ( duurzaam ) stand in the way of expulsion to the country of origin and of the possible consequences for the residence situation of the person concerned . This , ORG found , the Minister had failed to do in the present case , for which reason it quashed the Minister ’s decision of CARDINAL DATE and remitted the case back to the Minister for a fresh decision .

After the applicant had once more been heard on DATE before an official board of enquiry , the Minister rejected the asylum request anew in a fresh decision of CARDINAL DATE . In this fresh decision , the Minister limited herself to LAW . She dismissed the applicant ’s fear of returning to GPE as a ( former ) member of the ORG and former officer of ORG , referring to an official report issued by ORG in DATE and holding that the sole fact that an asylum seeker had been a ORG member was not enough in itself to render LAW applicable in the eventuality of expulsion . The Minister further noted that the mere fact that the applicant had a different political conviction from those currently in power in GPE similarly did not suffice to render LAW applicable . The Minister further took into account that the applicant had stated that he was not a known person in GPE . The applicant had no concrete indication that he would be searched for by any group or person . In addition , relatives of the applicant – including his father and brother – were still living in GPE without ever having encountered any problem .

The Minister further addressed the applicant ’s claim that he had reason to fear certain named mujahideen commanders , who would identify him as the ORG officer who had not paid them , or paid them less than agreed upon . The applicant had submitted that he had attended meetings – where he had TIME DATE in the course of which cooperation agreements had been reached between the ORG and a mujahideen commander . In addition , the applicant had alleged that these mujahideen commanders were keen on ensuring that nobody in DATE GPE would find out that they had cooperated with ORG in the past , for which reason they were interested in eliminating the applicant . On this point , the Minister held that the applicant had failed to establish these ORG whereabouts and current influence in NORP society . The Minister noted that according to the applicant ’s own statements , he did not believe that these individuals occupied high positions in DATE ’s GPE . Furthermore , the Minister considered that the mujahideen commanders were aware of the applicant ’s role in those meetings as well as of the identity of the person taking the decisions as regards financial support of the mujahideen , and that it was therefore implausible that they would be after the applicant . Finally , it was underlined that the applicant had been able to stay in GPE until DATE without any problems . For these reasons , the applicant ’s claim that he was being sought by the mujahideen was dismissed as founded on nothing but suspicion and speculation . The claim based on LAW was consequently rejected .

The applicant appealed anew to ORG of The Hague , arguing , inter alia , that the Minister had erred in finding him guilty of participation in torture under the auspices of the ORG . In his view , the Minister had disregarded the fact that the applicant had held an administrative position in ORG which was only concerned with maintaining contacts with the mujahideen and reaching agreements with them . Furthermore , the Minister had been inconsistent in finding , on the one hand , that the applicant had participated in human rights violations , but , on the other hand , that the applicant had not held an important position within the PDPA party . The applicant submitted that it was likely that he was well known enough for his former adversaries , who were now those in power in GPE , to find him and subject him to treatment contrary to LAW .

ORG of The GPE sitting in GPE rejected the applicant ’s appeal on DATE . It noted that , according to a general official report on GPE of DATE by ORG , that some former military officials , members of the police and the ORG / WAD security services possibly risk falling victim to human rights violations – not only by the authorities but also by the population ( GPE relatives ) , unless they maintained relations with influential NORP and political parties or tribes . According to the court , this did not mean that every former ORG officer ran a real risk of treatment contrary to LAW , and the applicant was thus required to establish the existence of such a risk in the particular circumstances of his case . ORG agreed with the Minister that the applicant had failed to do so , as his claims were found to be merely based on unsubstantiated expectations , including his claimed fear of persecution by the mujahideen commanders who had been paid by the ORG . No further appeal lay against this ruling .


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

Egidijus Kūris;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

NORP The list of applicants , their representatives and the relevant details of the applications are set out in the appended table .

The applicants complained of the inadequate conditions of their detention and of the lack of any effective remedy in domestic law .


CASE OF TİBET MENTEŞ AND OTHERS v. TURKEY

Remainder inadmissible (Art. 35) Admissibility criteria;No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing)

Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström

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

The facts of the case may be summarised as follows .

The applicants have been employed in the duty - free shops at ORG since DATE . They are members of ORG , which had signed a collective labour agreement with ORG on Spirits and Tobacco , the ORG employer and formerly a ORG - run enterprise .

During their employment the applicants operated in “ work and rest cycles ” . Accordingly , in DATE they worked continuously for TIME and rested the next TIME . For DATE , DATE , they worked for TIME and rested for the next TIME . Their work schedule did not take account of DATE or DATE as the dutyfree shops remained open TIME a day , DATE a week . As regards rest breaks and periods , section CARDINAL of their collective labour agreement provided that such periods would be counted as working time and that they could not be subject to wage deductions .

On DATE the applicants , with the assistance of their lawyer , instituted individual and separate proceedings against their employer before ORG . They claimed compensation for TIME they had worked beyond the legal working time for DATE of their employment . They referred to LAW in force at the material time and to their collective agreement . Both documents defined overtime as work in excess of the regular DATE working week and provided for remuneration for such work at CARDINAL times the regular hourly rate .

On DATE the applicants instituted new proceedings against their employer before ORG and requested further remuneration for work done on DATE and public holidays and compensation for DATE leave that they had not taken .

Having regard to the common background of the ORG complaints in both sets of proceedings , ORG decided to join each applicant ’s proceedings and to seek an expert report concerning the calculation of their claims for overtime , DATE and public holiday pay and remuneration for unused DATE leave .

On DATE the expert submitted a report in which he noted , inter alia , that clause CARDINAL ( c ) of the collective agreement concluded between the parties provided for an entitlement to overtime pay , calculated on the basis of CARDINAL times the TIME rate . He further referred to an official audit report by ORG , dated DATE , which noted that during DATE , DATE , workers at the company in question had worked overtime of TIME in DATE which had DATE and TIME in DATE . In DATE , DATE , they had worked TIME and TIME of overtime respectively . TIME worked in excess of the legal working time should have been remunerated accordingly . According to the expert report , the applicants’ employer had previously been cautioned , on DATE , by ORG concerning its practices on TIME .

On the basis of his examination of the company ’s timekeeping records , the expert calculated TIME worked as overtime in respect of each applicant , deducting TIME of rest per DATE worked .

The expert determined that the employer did not owe anything to the applicants for DATE and public holiday work as the remuneration for DATE had been in accordance with the applicable regulations . The expert also noted that the applicants could not claim any compensation for unused DATE leave as they were still working at the company and such leave was only payable at the end of a contract .

The applicants raised a number of objections to the expert report . They stated that the timekeeping records used for the calculation did not reflect TIME worked as they were unofficial copies kept by the employer , which were not signed by employees . In that regard , the applicants submitted that they had worked for TIME than established by the expert . They requested that the court take other evidence into account , including the defendant employer ’s shift orders , which detailed who would work when and for how long , as well as reports from ORG . They also submitted that the deduction of TIME of rest per day was not based on fact but was an assumption by the expert . The applicants submitted that in any event the expert ’s hypothetical conclusion on rest periods could not be relied on because the collective agreement had expressly provided for the inclusion of such periods as a part of working time . The applicants raised no objections to the expert ’s conclusion on the dismissal of their claims for pay for work at DATE and on DATE and for unused DATE leave .

In submissions of DATE , the defendant employer raised objections to the expert report and also argued that the timekeeping documents could not be relied on as they were unofficial copies . It also maintained that it had been unable to pay overtime in full owing to a lack of funds from the ORG . It submitted that the applicants had in any event been aware of the working arrangements and had never requested a transfer to another unit of ORG .

ORG asked the expert to supplement his report with findings concerning the parties’ objections .

On DATE , the expert submitted a supplement to his report , in which he corrected his findings concerning the rest periods in the light of the applicants’ objection and calculated the hours they had worked as CARDINAL in the course of a QUANTITY shift . He maintained his findings regarding the timesheets , submitting that his in situ examination of the workplace and comparisons between the official record and the employer ’s copies had not revealed any inconsistencies .

On DATE the ORG found in favour of the applicants in part and awarded them the amounts given in the expert ’s report in respect of the unpaid overtime . It rejected their claims for pay for DATE and public holiday work and for unused DATE leave .

Both parties appealed to ORG .

On DATE ORG quashed the decision and remitted the case . It found that ORG had not taken into account any time that could have been used for rest periods and that therefore the calculation of overtime could not be deemed accurate . It also stated that the overtime calculation should be based on DATE TIME rather than the DATE working time used in the expert report .

In the resumed proceedings , ORG requested that the expert amend the report in light of ORG decision .

On DATE the expert revised the findings as ordered and concluded that the applicants were likely to have had a minimum of TIME for rest during a QUANTITY shift . The expert therefore recalculated their entitlement to overtime on the basis of QUANTITY of actual work and compared it with the legal working week of fortyfive TIME .

On DATE ORG awarded the applicants compensation for overtime as determined in the revised expert report .

The defendant employer appealed , arguing that the presumption established in the case - law of ORG that a person could not work TIME in the course of a QUANTITY shift should be applied to the facts of the dispute . ORG then quashed the first - instance judgment on DATE and remitted the case on the following grounds :

“ It can be seen from the case file that during DATE [ the applicants ] worked for TIME and subsequently rested for TIME ; and in DATE they worked for TIME and subsequently rested for TIME . However , as determined by the well - established case - law of FAC of ORG , in workplaces where there are CARDINAL-hour shifts , after the deduction of time spent on certain activities such as resting , eating and fulfilling other needs , a person can only work for TIME a day ... This approach must also be followed in the present case . ”

In the resumed proceedings , ORG decided to follow the decision of ORG and another expert report was drawn up for that purpose . The report , dated DATE , calculated the applicants’ DATE working time TIME , in line with ORG presumption of fact . The calculation in the new report led to no overtime being found for DATE in which the applicants had worked DATE as the working time was less than the legal limit of TIME . For DATE in which the applicants had worked DATE , the report calculated the total working time as TIME , leading to an assessment in the report of TIME of overtime . On DATE ORG rendered a final judgment in the applicants’ case , based on the expert report of DATE . As a result of that interpretation , some of the ORG claims were dismissed entirely , while the others were awarded PERCENT less than the previous expert report had calculated .

On DATE the applicants appealed against the decision and maintained that the fact that they had worked continuously for TIME had already been confirmed by the legal records of ORG , both parties’ witness statements and other evidence in the file , including the expert reports overturned by ORG . Although they had proven that fact , the judgment had been based on the presumption that working for TIME a day was physically impossible .

On DATE ORG upheld ORG decision without responding to the applicants’ objections .


Remainder inadmissible;No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court)

András Sajó;Egidijus Kūris;Guido Raimondi;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić

The applicant was born in DATE and lives in GPE , GPE .

In DATE the applicant , who was represented by a NORP lawyer throughout the proceedings , initiated civil proceedings against a public prosecutor assigned to ORG , ORG itself , and ORG , alleging a violation of his personality rights . Given the subject matter of the dispute , the applicant was exempt from having to advance the court fees , by virtue of section CARDINAL of Act no . ORG of DATE on Stamp Duties , as in force at the relevant time .

NORP In particular , the applicant complained that a letter sent in the course of criminal proceedings conducted against him by the public prosecutor to ORG , the trial court in his case , had contained false information about him and thus infringed his right to honour , dignity and reputation .

The applicant subsequently modified his claim , seeking non - pecuniary damages in respect of a violation of his personality rights in the amount of MONEY ( ORG ) ( MONEY ( ORG ) ) . It appears that the amount claimed was an expression of the applicant ’s personal estimation of the value of his reputation , rather than a sum deduced from relevant domestic jurisprudence ; however , in the ensuing procedure the applicant maintained this claim .

ORG delivered a judgment on DATE . It discontinued the proceedings against ORG , since it had no procedural standing . As to the remainder of the claims , it held that the applicant ’s right to reputation had been violated by the public prosecutor ’s statements and ordered the public prosecutor to present her apologies to the applicant . However , it dismissed the applicant ’s claim for compensation , stating that it was excessive and in any event he could not prove that he had suffered any actual damage . The court further applied section CARDINAL of Act no . ORG of DATE on Stamp Duties and ordered the applicant to pay ORG CARDINAL ( approximately EUR CARDINAL ) in court fees . Under this rule , at the material time , the amount of stamp duty in civil cases was PERCENT of the claim but should attain a minimum of ORG CARDINAL ( approximately EUR CARDINAL ) and should not exceed a maximum of ORG CARDINAL ( approximately EUR CARDINAL ) . In a subsequent supplementary decision on court costs , the court explained that the law required the payment of court fees proportionately to the dismissed part of the claim , and observed that the applicant ’s claim was far beyond the amounts normally awarded in similar cases .

Both the applicant and the respondents appealed to ORG , which dismissed the appeal on DATE . As regards the costs , the court upheld the position taken by ORG , that is , that the applicant should pay court fees calculated as a percentage of the dismissed part of his claims . It further ordered the applicant to pay ORG CARDINAL ( approximately EUR CARDINAL,CARDINAL ) in appellate fees .

NORP The respondents sought the review of the final decision before ORG , arguing that the statements of a prosecutor expressed in the course of criminal proceedings could not violate the accused ’s personality rights , even if they were detrimental to him . By a decision of DATE ORG quashed the final decision and dismissed the applicant ’s action in its entirety . It found that the opinion of the public prosecutor had been expressed in the context of the criminal proceedings conducted against the applicant and thus constituted a legitimate exercise of her powers as a prosecutor . ORG further ordered the applicant to pay the court fees related to the first- and second - instance and the review proceedings in the amount of altogether ORG CARDINAL ( approximately EUR CARDINAL ) , instead of the aggregate amount of ORG CARDINAL ( approximately EUR CARDINAL ) in principle applicable under sections DATE , CARDINAL and QUANTITY on Stamp Duties ( see paragraph CARDINAL below ) .


Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Vincent A. De Gaetano;Georges Ravarani

The applicant was born in DATE and lives in the village of GPE in GPE Region .

On DATE , DATE , CARDINAL DATE , CARDINAL DATE , DATE and DATE the national authorities allocated plots of land to GPE , GPE , ORG , ORG , PERSON and PERSON and PERSON ( thus compensating them for their or their GPE property nationalised by the NORP regime ( see paragraph CARDINAL below ) ) , who later transferred their property rights to GPE in accordance with requests they had lodged on DATE , DATE , CARDINAL DATE , CARDINAL DATE and CARDINAL DATE respectively . The land allocated to these third parties was located in the same area as where the applicant ’s father ’s land was situated before nationalisation following the NORP occupation of GPE in DATE .

On DATE the applicant asked the NORP authorities to restore his property rights to CARDINAL hectares of his father ’s land by giving him a new plot of land .

On DATE the national authorities established that part of the land was unoccupied and could have been returned to the heirs .

On DATE ORG held that the restoration of property rights of GPE had been unlawful . As a result , a plot of land of QUANTITY was returned to the State .

On DATE the applicant changed his initial request ( see paragraph CARDINAL above ) and asked for his property rights to be restored in natura . The authorities asked the applicant to provide them with some documents necessary to proceed with the restoration of his property rights . In DATE ORG ( hereinafter “ the ORG ” ) asked ORG ( hereinafter “ the ORG ” ) to determine whether or not the land in question was ORG redeemable . In DATE the ORG found that the land was ORG redeemable and that the question of restitution had to be dealt with by the other means provided for by law . Accordingly , the applicant was asked to express his intentions regarding the form in which he wanted his ownership rights to the property to be restored .

As the plot of land previously owned by the applicant ’s father was ORG redeemable , in DATE the applicant asked to be provided with a new plot of land of equal value in GPE .

NORP In DATE the ORG asked the ORG to demarcate a plot of land , previously owned by the applicant ’s father , for the applicant . However , the ORG confirmed that the land was ORG redeemable because part of it was already being owned by third parties and was a State forest .

In DATE the ORG informed the applicant that his father ’s land was ORG redeemable and that the question of restitution had to be dealt with by the other means provided for by law . The applicant was also informed that he was included in the list of persons waiting to have their property rights restored , and was CARDINAL,CARDINALth in line .

On DATE the authorities adopted a decision restoring the applicant ’s property rights to QUANTITY of his father ’s land and informed him that his property rights to the remaining QUANTITY would be restored at DATE .

The applicant lodged a claim with ORG and asked it to ( i ) annul the decisions of the authorities to restore property rights to his father ’s land to third parties on the grounds that they were unlawful , ( ii ) award him CARDINAL NORP litai ( ORG , MONEY ( ORG ) ) in compensation in respect of pecuniary damage and ( iii ) oblige the authorities to restore his property rights to a specific plot of land . The latter request was later withdrawn . The applicant claimed that the decisions to restore property rights to his father ’s land to third parties were unlawful because he had submitted his request when the land had not yet been State redeemable . His property rights therefore had to be restored .

The ORG explained that the applicant had submitted the request to have his property rights restored in DATE , while the third parties had done so in DATE ( see paragraphs CARDINAL and CARDINAL above ) . The ORG also stated that the applicant had not provided any evidence that the requirements of the domestic law had been breached in restoring property rights to third parties .

On DATE ORG held that the legislation in force at the time did not allow for the return of the land in natura to the applicant because he did not have any buildings on that land as property ( see paragraph CARDINAL below ) . In DATE the provision in question was declared unconstitutional ( see paragraph CARDINAL below ) . The court also held that the applicant had not lost the opportunity to have his property rights restored . It was also possible that he would be given a more valuable plot of land , therefore it was decided that he had not suffered pecuniary damage .

The applicant appealed . On DATE ORG upheld the decision of ORG . It held that the applicant had not asked for the land to be returned in natura until after the property rights to it had already been restored to third parties ( see paragraphs CARDINAL and CARDINAL above ) . The court also held that DATE was the date when the specific location and borders of the land which the applicant asked to have returned in natura had been established . Furthermore , it did not consider that the domestic authorities had acted unlawfully , which was a precondition for compensation in respect of pecuniary damage .

In DATE ORG informed the applicant that in order to accelerate the process of restoring property rights to citizens , the domestic law had been amended and it had become possible for him to receive monetary compensation for the land . He was also informed that if he wished to use that opportunity , he had until DATE to provide the authorities with a written request ( see paragraph CARDINAL below ) . The applicant replied in DATE that he had not changed his mind and still wanted to receive the land in natura or , if that was not possible , a plot of land of equal value in GPE .

NORP In DATE ORG asked the ORG whether it was possible to demarcate any vacant land that was not ORG redeemable and could have been returned to the heirs of the applicant ’s father .

NORP In DATE the applicant was informed that he could change his mind about the form of restitution and receive a plot of forest of equal value . He was asked by letter to make a decision by DATE , but it appears that he did not respond .