CASE OF BEKTASHI COMMUNITY AND OTHERS v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-3-a) Manifestly ill-founded;Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of association) read in the light of Article 9 - (Art. 9) Freedom of thought, conscience and religion (Article 9-1 - Freedom of religion);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Aleš Pejchal;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Pauliine Koskelo;Ksenija Turković

ORG has existed and practised its religion in the respondent ORG for DATE . The applicant association ’s headquarters were at the “ PERSON - GPE ” in LOC . Until the applicant association was refused registration in DATE ( see paragraphs CARDINAL below ) , it practised its religion in full compliance with the relevant legislation applicable at the time . In the past , it was also known under the name “ NORP ORG ” .

On DATE ORG ( “ the DATE LAW ) entered into force . It repealed ORG ( “ the DATE LAW ) and provided that ORG за односи со верските заедници и религиозните групи – “ the Commission ” ) would be responsible for dealing with religious matters , which up until then had been the responsibility of ORG ( “ the Ministry ” ) .

On DATE the Commission requested that the applicant association submit a copy of its application ( копија од пријавата ) to be listed in the register of the Ministry and the related certificate of registration ( потврда за постојано пријавување ) so that it could “ transfer ( into its register ) the religious communities and groups of which ORG had been notified ( пријавени ) ” ( section DATE CARDINAL Act , see paragraph CARDINAL below ) .

On DATE the applicant association ( under the name “ NORP ORG ” in LOC ) contacted ORG , seeking a copy of all relevant documents related to its application submitted in DATE . According to the applicant association , on DATE it forwarded to the Commission all the documents obtained from ORG save for the certificate , which had never been issued .

At the request of the applicant association , on DATE the ORG issued a certificate ( потврда ) attesting that on CARDINAL DATE the applicant association ( under the name “ NORP ORG ” in LOC ) had submitted an “ application for registration ” ( барање за регистрација ) and other relevant documents . On DATE the applicant association forwarded the certificate to the Commission . No information was provided as to the follow - up procedure , if any , concerning the ORG ’s request for the applicant association to be registered under LAW .

On DATE the ORG issued a certificate ( “ the DATE certificate ” ) , attesting that on DATE the applicant association had filed “ an application ( пријава ) in accordance with the DATE LAW . The certificate further stated :

“ Since the statutory conditions are met , ORG is listed ( пријавена ) . ”

By a decision of DATE , ORG specified the applicant association ’s main activities ( “ the activities of religious organisations ” ) , its headquarters ( the “ GPE ” site ) ; and attributed corresponding indexes and business codes .

In a letter of DATE sent to a trial court regarding unrelated proceedings , the ORG confirmed that “ ORG [ had been ] registered ( регистрирана ) ... ”

NORP In DATE a local non - governmental organisation ( “ the NORP ORG ” ) published the “ Directory of Religious Communities in GPE ” , which included the religious entities recorded in the ORG ’s register . The applicant association was listed on the basis of the DATE certificate .

On DATE the ORG authorised the first applicant to carry out “ religious ceremonies and rituals on authorised LOC of FAC .

On DATE ORG DATE ( “ the DATE LAW ) entered into force . It came into operation on DATE ( section CARDINAL ) . It specified that ORG ( “ the registration court ” ) would be competent to deal with religious matters ( LAW ) . It also provided that the Commission would transfer all documents regarding the existing religious entities recorded in its register to the registration court . All religious organisations registered by the Commission up until DATE could retain their existing legal personality and status .

On DATE the applicant association , represented by a local lawyer , requested information from the Commission about its status . In reply the ORG stated that it had only been required to transfer to the registration court information regarding existing religious communities registered up until DATE . Since it had only been notified about the applicant association in DATE , the latter should have made an application for reregistration in ORG ( “ the court register ” ) in accordance with the DATE Act .

On DATE the applicant association requested , under LAW of the DATE Act , that the registration court recognise its continuing legal status and record it in the court register .

On DATE the registration court dismissed the applicant association ’s request . Referring to section CARDINAL(CARDINAL ) of LAW , it held that “ [ the Commission ] had been obliged ( должнa ) to transfer to its register the religious communities and groups of which ORG had been notified up until LAW had entered into force . However , since the applicant association had not given notice to the Ministry , at the time , it had not been transferred to the Commission ’s records , as provided for in that provision . ”

It further established that in DATE the applicant association had given notice to the Commission , which the latter had acknowledged with the DATE certificate . That practice had been in compliance with decision U.br.CARDINAL/CARDINAL of DATE ( see paragraph CARDINAL below ) , in which ORG had declared unconstitutional the statutory provisions which had provided for registration of new religious entities conferring on them legal status .

The court also established that the applicant association had never been recorded ( запишан ) and registered ( регистрирана ) by the ORG either before DATE , as required under LAW , or up until LAW had entered into force . The applicant association had only given notice ( пријавена ) to the Commission in DATE . Consequently , the ORG had not been required , as specified in section CARDINAL(CARDINAL ) of the DATE Act , to transfer the data “ recorded in its register ” to the registration court . That requirement concerned only registered religious organisations and not entities which were listed by the Commission . The court concluded that the applicant association had never obtained the legal status it sought to have recognised in the request .

On DATE ORG ( “ the Court of Appeal ” ) dismissed an appeal by the applicant association and upheld the established facts and reasoning given by the registration court .

On DATE the applicant association , represented by local lawyers authorised to act on its behalf by the second applicant , filed an application for registration in the court register as “ ORG ” . It also enclosed several documents , including a description of the doctrinal sources . On DATE the registration court requested further documents to complete the application . The applicant association submitted the requested documents .

On DATE the court refused to register the applicant association on the following grounds : ( a ) the name “ GPE ” had already been used by another religious entity registered in the court register ; ( b ) the doctrinal sources were the same as the doctrinal sources of another already registered religious entity ; and ( c ) the applicant association had not submitted proof of ownership of the “ GPE ” site in LOC , indicated as its headquarters in the application for registration .

NORP The applicant association appealed against this decision and asked ORG to hold a public hearing .

At a hearing held in private on DATE , the court allowed the applicant association ’s appeal and quashed the lower court ’s decision as it had not specified which registered religious entity used the name “ GPE ” or which statutory provision forbade the use of identical doctrinal sources by multiple religious communities and groups . Furthermore , there was no statutory provision under which an application for registration could be refused owing to lack of proof of ownership of the headquarters of a religious community .

On DATE the registration court again refused to register the applicant association as its intended name contained the term “ GPE , which had already been used by another religious entity , namely the “ Ehlibeyt Bektashi Religious Group of Macedonia ” registered in the court register on DATE . The court stated that “ the existing LAW [ did ] not allow for the registration of a new religious entity under a name that [ had ] already been recorded in the register for another registered religious entity ” . Furthermore , its doctrinal sources were no different from the doctrinal sources of ORG , which had existed for DATE and which had been registered in the court register on DATE . As to the doctrinal sources as described by the applicant association , the court stated as follows :

“ ... [ they consist of ] the NORP religion and the teaching of the Holy Koran , which is supplemented and interpreted by the knowledge and practices of prophet PERSON and PERSON , PERSON ( the prophet ’s family ) and ORG of PERSON ... it is about the sources of the NORP religion , for which there is already a registered religious community ... whose teaching includes the LAW and the practices of PERSON . According to NORP teaching , PERSON was his son - in - law and a member of the family ( or ehlibeyt ) , the fourth elected caliph who ruled the NORP state , and PERSON was the founder of ORG and one of the prominent NORP philosophers . In other words , the doctrinal sources of [ the applicant association ] are not at all different from the doctrinal sources of the ... ORG ...

In the court ’s opinion , the doctrinal sources are to be regarded as official insignia of a church , religious community or group within the meaning of section CARDINAL(CARDINAL ) of the CARDINAL Act . It would be a violation of [ that provision ] if they did not differ i.e. did not have specific characteristics , elements that were different from the doctrinal sources of the teachings of an already registered [ religious entity ] . ”

In such circumstances , the court held that the “ substantive conditions ” for registration of the applicant association in the court register had not been fulfilled . Accordingly , it refused its application for registration under section QUANTITY of the DATE Act ( see paragraph CARDINAL below ) .

The applicant association challenged the grounds on which the registration court had based the refusal of registration . It argued that there was no other religious entity registered under the same name . In this connection , it submitted that there were CARDINAL registered religious entities that contained the term “ NORP ” in their name and CARDINAL registered entities that used the term “ NORP ” . The intention of the DATE Act was not to ban the use of terms that had a generic and not exclusive meaning . Otherwise , it would mean that the law would only allow the registration of CARDINAL religious entity containing the term NORP , NORP , GPE , NORP , GPE , NORP , ORG . It also argued that it had sought registration as a religious community , as opposed to “ FAC , which was registered as a religious group . Its intended name was substantially different from the name of that entity ; it had existed for DATE , as was evident from the directory and correspondence with various ORG institutions . As regards the doctrinal sources , it argued that they could not be regarded as official insignia within the meaning of section CARDINAL ) of the CARDINAL Act . Doctrinal sources could be identical for multiple religious entities ( as the Bible was common for NORP and NORP , and the Koran was common for ORG , ORG and NORP or NORP ) . They were of an ideological nature and were not constant , nor could they be interpreted in that way . Official insignia concerned symbols ( crosses , crescents , graphic symbols ) , a flag or a totem that represented something . In this connection , it stated that the interpretation which the court had given regarding its doctrinal sources , namely that they were identical to the doctrinal sources of all NORP teaching , was wrong . The mere fact that the court had interpreted its doctrinal sources implied that the ORG was not separated from religion . Furthermore , if that interpretation had been based on some material , it had not been communicated to the applicant association . Nor had it been given the opportunity to present its views at a public hearing . In this connection , it requested that ORG hold a public hearing . Lastly , it complained that the refusal of registration was discriminatory .

At a hearing held in private on CARDINAL DATE , the court dismissed the appeal and upheld the lower court ’s decision . It held that although the intended name of the applicant association was not entirely identical to the name of the “ ORG Macedonia ” , it contained the term “ FAC , which was “ decisive and represented a synonym for the religious entity ” . Consequently , the registration of the applicant association could create confusion among the believers . ORG made no mention as to the lower court ’s findings regarding the doctrinal sources of the applicant association . It accordingly held that section CARDINAL of the DATE Act had been correctly applied .

On DATE the applicant association and the second applicant ( and CARDINAL other individuals ) lodged a constitutional appeal with ORG complaining that they had been discriminated against contrary to LAW . They summarised the factual background described above and reiterated the arguments raised in the appeal against the court ’s decision of CARDINAL DATE ( see paragraph CARDINAL above ) . They complained that the use of the term “ GPE could not be exclusive ( like the use of “ NORP ” and “ NORP ” ) . Furthermore , the registration of the “ Ehlibeyt Bektashi Religious Group of Macedonia ” implied that the domestic authorities had implicitly accepted that the doctrinal sources of that religious group were allegedly identical to the teaching of ORG . They requested that ORG hold a public hearing ( јавна расправа ) in accordance with section CARDINAL of the Rules of Procedure of ORG ( see paragraph CARDINAL below ) .

At a hearing held on DATE in the absence of the parties , ORG dismissed the constitutional appeal . The relevant parts of its decision ( U.br.CARDINAL/CARDINAL ) read as follows :

“ ... in the present case , the court considers that it should examine whether the refusal to register ORG violated freedom of religion and whether there are elements of discrimination on religious grounds .

As regards the first part of the question and having regard to section CARDINAL of the Legal Status of Churches , Religious Communities and Religious Groups Act , it appears that registration in ORG is a requirement for a religious entity to obtain legal status , but it is not a precondition for religious ceremonies , rituals and prayers , which believers ... can hold irrespective of whether they are organised as a registered religious legal entity .

In the present case , having regard to the arguments put forward in the application and the established facts , it appears that the applicants , who define themselves as members of ORG , have freely practised their religion for DATE . They participate in public life , communicate with ORG bodies , and participate in religious gatherings and conferences . This leads to the conclusion that , although they are not formally registered under the [ CARDINAL Act ] , they can practise their religion freely and hold religious ceremonies in accordance with the NORP religion , without any pressure or persecution . Consequently , the applicants’ freedom of religion has not been violated .

In order to reply whether there are elements of discrimination in the dismissal of the application for registration of ORG , ORG assesses whether the courts which decided in the registration proceedings ... gave sufficient reasons and whether the refusal to register ORG was based on relevant and reasonable grounds , namely whether the refusal of registration pursued a legitimate aim and whether there was a measure of proportionality between the means used and the aim pursued ... ”

The court then referred to the grounds on which the registration court had based its decision and stated as follows :

“ ... the [ registration ] court refused to register the [ applicant association ] on CARDINAL grounds : ( CARDINAL ) the intended name of the [ applicant association ] contained the term ‘ PERSON which had been incorporated into the name of an already registered religious entity , the ‘ Ehlibeyt Bektashi Religious Group of Macedonia’ ... and ( CARDINAL ) its doctrinal sources were the same as the doctrinal sources of an already registered religious entity , ORG .

The refusal to register the [ applicant association ] was based on grounds specified by law ... which , in the court ’s view , was correctly applied . The [ dismissal decision was based on ] section CARDINAL(CARDINAL ) of [ the DATE Act ] ...

ORG endorses the findings of the first - instance court that the name and the doctrinal sources are official insignia of a religious entity and distinctive elements through which it is identified and recognised by the public ...

This particularly concerns smaller religious entities , namely [ those ] that ... manifest their distinctiveness through these CARDINAL elements . Hence , equating the complainant [ the applicant association ] with another already registered religious entity can mislead the public , that is , it can confuse believers , which is at the same time itself a violation of their religious beliefs . It is not in dispute that the right of a religious entity to be registered should be secured in the context of freedom of religion , but nor should it violate the religious rights and feelings of the members of already registered religious entities .

... Each religious entity , church , religious community or group has the right to be distinct and be recognised in public by its identity . The absence of such [ distinctiveness ] or competition leads to confusion and misunderstanding by the public.[Such is the case ] if there are multiple similar entities which are in competition , indefinite parallelism and division .

The aim of the statutory requirement for the name and official insignia of religious entities , including doctrinal sources , not to be identical ( неидентичност на името и официјалните обележја ) ... is to prevent confusion among believers , incorrect perceptions , and lawful indefinite division of same - faith believers in several religious communities or entities . In the court ’s view , these aims are legitimate and necessary in order to protect the freedoms and rights of others , to secure religious tolerance and prevent religious conflicts , as part of ensuring public safety , which is the responsibility of the ORG .

In view of the foregoing , ORG considers that the refusal to register ORG did not violate [ the applicants’ ] freedom of religion of the applicants , nor were they discriminated against on the basis of their religion . ”


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

The applicant was born in DATE and lives in LOC .

The applicant served his prison sentence in the period DATE and DATE , in the semi - open and closed sections of GPE prison as well as in the open section Ig , PERSON prison ( the open section ) .

From DATE to CARDINAL DATE and from DATE to CARDINAL DATE he was held in the closed section . From DATE to CARDINAL DATE he was held in cell CARDINAL ( third floor ) measuring QUANTITY ( including a separate QUANTITY sanitary facility ) . From DATE to DATE he was held in cell CARDINAL ( third floor ) measuring QUANTITY ( including a separate QUANTITY sanitary facility ) . From DATE to CARDINAL DATE he was held in cell CARDINAL ( third floor ) measuring QUANTITY ( including a separate QUANTITY sanitary facility ) .

From DATE to CARDINAL DATE and from DATE to CARDINAL DATE he was held in the semi - open section . From DATE to CARDINAL DATE he was held in cell CARDINAL ( third floor ) measuring QUANTITY ( including a separate QUANTITY sanitary facility ) . From DATE to CARDINAL DATE he was held in cell CARDINAL ( third floor ) measuring QUANTITY ( including a separate QUANTITY sanitary facility ) .

All the cells in the closed and semi - open sections contained , apart from the furniture , CARDINAL sleeping places ( CARDINAL bunk beds and CARDINAL single bed ) . According to the applicant , CARDINAL prisoners were being held in each of the cells during his detention . The Government , however , submitted that the number varied CARDINAL . Each cell had CARDINAL x QUANTITY double casement window , which the prisoners could freely open or close .

As regards the general characteristics of the cells in the closed and semi - open sections , material conditions inside the cells , sanitary conditions and health care , see the judgment in ORG and Others v. GPE , nos . CARDINAL/CARDINAL , CARDINAL/CARDINAL and GPE , § § DATE , DATE .

As to the out - of - cell time in the closed section , the ORG found in the aforementioned judgment that sentenced prisoners in the closed section of the prison were locked up in their cells and were only able to leave them if they applied for certain activities , most of which were to take place in the recreation room . There was , however , CARDINAL ORG - metre recreation room per floor , which was to be used by CARDINAL inmates at most ( see NORP and Others , § DATE ) .

As to the out - of - cell time in the semi - open section , the ORG submitted that the cell doors in the semi - open section of the prison were unlocked , except from TIME ( on DATE and DATE from TIME ) until TIME ( on DATE , DATE and during holidays until TIME ) . During this time prisoners could move freely in the corridor ( QUANTITY ) , living quarters of co - prisoners or in the indoor or outdoor exercise areas , in accordance with prison rules . The Government contended that this regime had been in place for DATE .

From DATE to CARDINAL DATE and from DATE to DATE the applicant was held in the open section in cell CARDINAL measuring QUANTITY , which contained CARDINAL sleeping places . The Government submitted that CARDINAL prisoners were held in that cell during the applicant ’s detention . On DATE , he was transferred back to the closed section on the ground of abuse of a more liberal prison regime in the open section .

In the open section cells were open TIME per day and prisoners could , except when sleeping , move around freely , inside the open section ( in a dining room , classroom , recreation room ) and in outdoor areas ( a park and sports ground ) . Further , the prisoners were allowed to exercise for TIME , they could do shopping in a shop outside the prison , their visits were unsupervised and their correspondence with people from outside the prison and the use of a telephone were not limited and supervised . The open section had a capacity for CARDINAL prisoners in CARDINAL cells . The prisoners shared sanitary facilities with CARDINAL showers , CARDINAL washbasins in the lavatory , CARDINAL toilets on the ground floor and CARDINAL toilets on the first floor of the section and a laundry room with a washing machine and a drier , which prisoners could freely use . Prisoners in the open section were also entitled to unsupervised visits outside prison for TIME during DATE , unsupervised leave and DATE leave if working in GPE prison .

During his imprisonment the applicant had CARDINAL consultations with a general practitioner and visited a dentist on CARDINAL occasions . He never requested treatment by a psychiatrist .

As regards the cell temperature , the data provided by the Government showed that the average temperature in the cells in TIME ( CARDINAL- TIME ) in DATE and DATE had been approximately CARDINAL , exceeding CARDINAL on DATE .


András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicants , spouses PERSON and PERSON , are NORP nationals who were both born in DATE and live in FAC . They are represented before the ORG by PERSON , a lawyer practising in FAC .

The application concerns national bonds issued by ORG in DATE . The bonds were to have been redeemed by DATE . However , the ORG failed to undertake any steps to redeem them or to pay interest to the holders of those bonds .

NORP The applicants’ claim was not subject to limitation because on DATE they had asked ORG to arrange a friendly settlement before ORG .

On DATE the applicants instituted civil proceedings for payment against ORG represented by ORG . They claimed MONEY ( ORG ) , with interest .

On DATE ORG granted the applicants ORG CARDINAL ( approximately CARDINAL euros ( ORG ) ) . The amount granted was calculated in the following way .

The court first referred to § CARDINAL of the DATE Decree ( see paragraph CARDINAL below ) and found that by introducing this provision the lawmaker had deprived the applicants’ claim of its economic value . According to the court , by DATE the ORG claim had already been worth PERCENT of the average DATE salary at that time . On DATE that the CARDINAL Decree entered into force – that is to say on DATE the nominal value of the ORG bonds had been ORG CARDINAL,CARDINAL each .

It further referred to LAW ( see paragraphs CARDINAL and CARDINAL below ) and concluded that after the entry into force of the relevant provisions the value of the applicants’ bonds had been ORG CARDINAL each .

Relying on LAW ( see paragraph CARDINAL below ) it further found that the nominal value of the applicants’ bonds in DATE was CARDINAL grosz .

Finally , the court , relying on the judgment of ORG of DATE ( see paragraphs CARDINAL and CARDINAL below ) , ruled that it could recalculate the applicants’ claim on the basis of LAW . It based the indexation of the ORG claim on the official average salary and considered that ORG should bear PERCENT of the inflation costs and the applicants PERCENT .

On DATE the applicants appealed against that judgment .

On DATE ORG quashed the firstinstance judgment and remitted the case . ORG did not accept the basis of indexation of the applicants’ claim applied by ORG and held that the indexation should have been based on the real value of the claim in DATE , when the bonds in question had been issued , and on the price of gold at the time the applicants instituted civil proceedings . The court further considered that while recalculating the value of the applicants’ claim , ORG should have weighed the interests of both parties and taken into account the effects of the Second World War in order to assess the extent of participation of the defendant in the process of bringing about “ a significant change in the purchasing power of money ” ( istotna zmiana siły nabywczej pieniądza ) .

On DATE ORG , having re - examined the case and having recalculated the applicants’ claim on the basis of the instructions contained in ORG judgment , found that the claim ’s value amounted to ORG CARDINAL,CARDINAL . The court , having weighed the interests of both parties , considered that they should bear the effects of inflation in equal parts . Accordingly , the above amount was divided by CARDINAL and the applicants were granted ORG CARDINAL . The ORG dismissed the remainder of the claim .

Both parties appealed against that judgment .

On DATE ORG found the applicants’ appeal ill - founded and the defendant ’s appeal partly well - founded , amended the challenged earlier judgment , and granted the applicants ORG CARDINAL ( approximately ORG DATE ) . The ORG considered that ORG , in its judgment of DATE , had failed – when recalculating the value of the claim – to apply the DATE Decree and LAW , which had never been repealed or declared unconstitutional ; they thus remained in force and had to be applied to the present case . Having set the value of the applicants’ claim at ORG CARDINAL , the ORG considered that it would be “ contrary to the principles of community life ” ( sprzeczne z zasadami współżycia społecznego ) to reduce this amount further by placing on the applicants part of the burden of the effects of inflation ; accordingly , it granted them the whole of the recalculated amount .

The ORG then referred to the ORG argument that the value of the claim had been decreased by LAW . It found that this LAW had not significantly influenced the value of their claim because after the entry into force of LAW the claim had been of only symbolic value , namely ORG . The ORG further considered that for DATE that had followed the entry into force of LAW the applicants’ claim had lost its value as a result of economic developments in GPE and that it was in fact immaterial whether an assessment of the claim ’s value was made with or without reference to the CARDINAL Act .

DATE provides :

“ The payment of dues resulting from pecuniary obligations arising from any title of a private or public nature before the entry into force of the present decree and not redeemed until DATE may only be effected in the NORP currency . ”

At the relevant time , LAW subsequently repealed ) provided :

“ ( CARDINAL ) The change in the purchasing power of money during the time between the creation of an obligation and its payment date or performance does not constitute a basis for a change in the amount of the obligation or in the means of the execution of the contract or dissolution of the contract .

( CARDINAL ) Payment of an obligation , specified in NORP currency on the basis of this decree , shall be made in banknotes of the NORP ORG according to their nominal value , which is equal to the nominal value of banknotes or other means of payment , which were expressed in zlotys and which were in circulation on the territory of GPE or a part thereof before the introduction of ORG banknotes into circulation .

( CARDINAL ) For the establishment of the value of pecuniary obligations referred to in the present Decree and expressed in the NORP currency , it is irrelevant what means of payment was in circulation at the time of the creation of the obligation . ”

DATE provides :

“ The amount of obligations expressed in zlotys in gold is calculated at MONEY for MONEY in gold . ” ( PERSON nalezności z zobowiazań pieniężnych wyrażonych w złotych w złocie liczy się jeden złoty za jednego złotego w złocie ) .

The Change of Monetary System Act of DATE ( o zmianie systemu pieniężnego ) provided that all public and private obligations expressed in zlotys ( irrespective of the time at which they came into existence ) were to be recalculated with effect from DATE according to the following ratio : CARDINAL “ old ” zlotys = MONEY .

Under section CARDINAL of LAW , all amounts expressed in “ old ” zlotys and mentioned in legal provisions binding on DATE of the entry into force of this Act were to be recalculated , by virtue of law , according to the following ratio : CARDINAL “ old ” zlotys = MONEY .

The Polish Zloty Denomination Act of DATE ( ustawa o denominacji złotego ) introduced a new payment unit : with effect from CARDINAL DATE the new unit of ORG was to be worth CARDINAL “ old ” zlotys .

Article CARDINAL of the LAW reads :

All persons shall be equal before the law . All persons shall have the right to equal treatment by public authorities .

No one shall be discriminated against in political , social or economic life for any reason .

Article CARDINAL of the LAW reads , in so far as relevant , as follows :

Everyone shall have the right to ownership , other property rights and the right of succession .

Everyone , on an equal basis , shall receive legal protection regarding ownership , other property rights and the right of succession ...

Article CARDINAL § CARDINAL of the Civil Code provides :

“ In the case of an essential change of the purchasing power of money after an obligation falls due the court may , after considering the interests of the parties and in accordance with the principles of community life , change the amount or the mode of payment , even if these were fixed in a decision or a contract . ”

On DATE the ORG gave a judgment ( SKCARDINAL/CARDINAL ) in which it held that section CARDINAL ) of the LAW of DATE amending LAW in so far as it limited the possibility of judicial indexation referred to in Article LAW of LAW as regards pecuniary obligations which had come into existence before DATE as a result of bonds emitted by ORG – was inconsistent with LAW CARDINAL in conjunction with LAW .

In the part named “ effects of the judgment ” ORG noted :

“ Taking into consideration the effects of this judgment and the impossibility of claiming the full value of claims arising from national bonds issued DATE , the matter of possibility and scope and , in particular , the amount of just satisfaction for persons holding such bonds , should be resolved by the lawmaker . As stressed on many occasions in its case - law , ORG should not replace the lawmaker .

The finding by ORG that section CARDINAL ) of the LAW of DATE amending LAW was inconsistent with LAW ... will enable the holders of national bonds to access the indexation of their claims guaranteed by LAW . However , in practice , the expiry of limitation periods may effectively deprive claimants of a chance to achieve a positive outcome in the relevant proceedings .

If [ the ORG ] does not enact new provisions before LAW ( CARDINAL ) of the LAW of DATE expires , holders of national bonds , who have been patiently waiting for the settlement of their claims , will be able to lodge [ with civil courts ] their claims for payment in an amount which will be calculated with the application of the indexation clause .

However , the present judgment of ORG does not indicate to the courts the scope , direction or scale of the indexation . ”

The provisions which had been found unconstitutional were subsequently repealed , which opened the way for applicants to seek their claims before the courts and to demand that the value of their claims be judicially increased .


Aleš Pejchal;Kristina Pardalos;Ledi Bianku;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paul Mahoney;Robert Spano

NORP The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in GPE . He was represented before the ORG by ORG , a law firm based in GPE . The Government were represented by their Agent , PERSON , of ORG .

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

On DATE the applicant pleaded guilty at ORG to conspiracy to supply drugs . On DATE he was sentenced to CARDINAL years’ imprisonment . On DATE ORG reduced the sentence to CARDINAL years’ imprisonment . Meanwhile , the prosecution applied for confiscation orders under LAW DATE ( “ the DATE LAW see paragraphs CARDINAL below ) .

On DATE the ORG judge found that the applicant had benefited from drug trafficking in the sum of MONEY ( “ GBP ” ) . He was found to have realisable assets in the sum of ORG CARDINAL . A confiscation order was made for the latter sum to be paid within DATE . The applicant paid the order .

On DATE the applicant was released from prison . He entered a business partnership with his father . The business was successful and the applicant acquired substantial assets .

The prosecution subsequently became aware of the value of the applicant ’s equity in the business . It applied to ORG for a certificate under section CARDINAL(CARDINAL ) of LAW ( see paragraph CARDINAL below ) declaring that the amount that might be realised from the applicant ’s assets was greater than it had been at the time when the original confiscation order was made . On DATE ORG issued a certificate under section CARDINAL(CARDINAL ) .

NORP The prosecution subsequently applied to ORG under section CARDINAL ) of LAW ( see paragraph CARDINAL below ) for an increase in the amount to be recovered under the confiscation order .

A hearing took place over a DATE period . Evidence was lodged of the further assets identified . The applicant lodged witness statements and gave oral evidence on oath . He accepted that he had acquired further assets since his release from prison but submitted that he had taken a conscious decision to live an entirely honest , law - abiding and hard - working life .

On DATE the ORG judge handed down his judgment . He identified CARDINAL issues : the first was a factual question as to the existence and value of further recoverable assets ; the second concerned the exercise of the court ’s discretion to order further payment and impose a term of imprisonment in the event of non - compliance . The judge indicated that his assessment of the applicant ’s credibility would be a significant factor in both aspects of the case . He declined the prosecution ’s invitation to take account of adverse credibility findings made in the context of the earlier confiscation proceedings , explaining that he began on the basis that convicted criminals were able to rehabilitate themselves and to turn from crime . However , taking into consideration the incomplete details of his assets in his first witness statement made in DATE and his subsequent evasiveness when giving oral evidence , the judge concluded that the applicant was not a reliable witness .

After considering in some detail the applicant ’s assets and business activities , the judge found the applicant to hold realisable assets to the value of GBP QUANTITY . However , he added :

“ CARDINAL . ... [ T]hat is not , necessarily , the end of the matter . I preface this section by specific remarks about [ the applicant ’s ] credibility ... [ PERSON failed , at the outset , to make proper disclosure of his finances . The discovered torn up paper relating to matters in GPE was revealing , particularly with its reference to a few business interests and to not wishing to declare matters . His explanations were risible . Furthermore , despite his protestations of honesty since his release from prison , there was clear evidence of fraudulent dealing with mortgage lenders in the supply of financial information ... I find [ the applicant ] to be an intelligent man , fully aware of all aspects of his business dealings . I find , too , that he has over a period dealt to a large extent in cash , with the specific intention of frustrating any enquiries by Authorities into his financial affairs ... ”

In the light of his findings , the judge then turned to consider how to exercise his discretion as to whether the confiscation order should be increased . He explained that had he found the applicant a credible witness , who had set out to lead a law - abiding and responsible life , he might have felt able to give sympathetic consideration to submissions that the court ’s discretion should be exercised in his favour . However , he was satisfied that the applicant had lied to the court and had set out quite deliberately to deceive the court as to the truth as to his financial affairs and assets . In the judge ’s view , this was entirely the type of case for which statute had provided the opportunity for society to recoup some of the damage caused to it by criminality . The judge also considered the length of time which had elapsed since the applicant ’s release from prison but decided that this did not prevent the modification of the confiscation order . He accordingly exercised his discretion to substitute for the GBP CARDINAL originally recoverable the full amount of the benefit previously assessed , namely GBP CARDINAL,CARDINAL.CARDINAL . The order was to be paid within DATE , with a period of imprisonment of DATE in the event of non - compliance .

NORP The applicant appealed to ORG , contesting the calculation of his assets by ORG judge and seeking a reduction in the recoverable amount . The appeal was dismissed by ORG ) on DATE .

The applicant subsequently appealed the decision of ORG to issue a section CARDINAL(CARDINAL ) certificate ( see paragraph CARDINAL above ) . He argued that section PERSON ) was not intended to allow confiscation of after - acquired assets ( i.e. assets acquired after the date of conviction ) . If that had been the intention of ORG , the statutory provision should have been unequivocal . He emphasised in particular that other provisions of the DATE LAW set a time - limit of DATE to revisit a confiscation decision , but that no time - limit appeared in section PERSON ) . He contended that the definition of realisable property in section CARDINAL ) of the Act was restricted to property held at the time of the original confiscation proceedings . Finally , he submitted that section CARDINAL no longer had effect after the entry into force of LAW CARDINAL in DATE ( see paragraph CARDINAL below ) .

The appeal was dismissed by ORG ) on DATE . The court held that section DATE applied to assets lawfully acquired post - conviction , referring to the absence of any time limitation in that section . This conclusion was not undermined by the fact that LAW CARDINAL contained clearer provisions on the matter . Finally , the court held that the savings provisions in the relevant commencement order made under LAW clarified that section CARDINAL remained in force for the purposes of the present proceedings .

The applicant appealed the DATE judgment to ORG . The agreed statement of facts and issues before ORG identified the issues which had arisen before ORG as follows :

“ i. Whether , having regard to the transitional provisions contained in LAW CARDINAL ( Commencement No . CARDINAL , ORG , Savings and LAW Order DATE ... , section CARDINAL of LAW ( which was repealed by LAW ) was in force at the material time ( ‘ LAW ) .

ii . Whether ORG had jurisdiction to issue a certificate under LAW in respect of after - acquired assets ( ‘ the section QUANTITY

iii . whether in the Appellant ’s case the delay between the making of the confiscation order and the application under LAW amounted to a breach of the Appellant ’s right to have his case heard within a reasonable time ( ‘ the reasonable time issue’ ) . ”

It clarified that the issues before ORG were the following :

“ CARDINAL . Whether section CARDINAL of the DATE Act was in force at the material time .

Whether the High Court has jurisdiction to issue a certificate under LAW in respect of after - acquired assets . ”

The applicant ’s written case included the following argument :

“ C. The Compatibility Issue

The interpretation of the statute by ORG ... is in conflict with a defendant ’s rights under Article CARDINAL ) of the Convention ... For a defendant to be liable in perpetuity to an increased penal sanction is submitted to amount to a clear breach of his right to determination of any criminal charge within a reasonable time , as well as raising issues under LAW ( protection of property ) . The construction of Article PERSON ) contended for by the Appellant is compliant with LAW whereas the interpretation adopted by ORG arguably is not . ”

As regards the section CARDINAL issue , in particular , the written case included the following statements :

“ The definition of the words ‘ the amount that might be realised’ in section CARDINAL and CARDINAL of the LAW provide a clear definition of the scope of the legislation . ”

“ If , which is not accepted , there is any ambiguity in the words of the statute , an examination of the debates of the PERSON in ORG and ORG and in ORG make it clear that the scope envisaged did not include ‘ after acquired assets’ . ”

“ The Appellant ’s case was not that Section PERSON ) was unclear and ambiguous ... To the contrary , it was submitted that the words of the section clearly do not refer to assets acquired after the confiscation order was made . ”

On DATE ORG delivered its judgment . On the question whether section DATE was still in force at the time of the second confiscation proceedings , the court was satisfied that it was .

As to the correct interpretation of section CARDINAL(CARDINAL ) , the justices were divided by CARDINAL votes to CARDINAL , with the majority finding that the section applied to after - acquired assets and dismissing the applicant ’s appeal after careful consideration of the legislative framework . Lord PERSON , for the majority , explained :

“ CARDINAL . As for the main argument , based on fairness and rehabilitation , naturally I recognise that ORG could have chosen a different policy with regard to after - acquired assets . But it seems to me perfectly understandable that in fact ORG decided ( as indisputably it did when later enacting ORG [ the Proceeds of Crime Act DATE ] ) to leave it open to the courts as a matter of discretion to mulct a defendant of his criminal gains on an ongoing basis irrespective of precisely how and when he came by any increased wealth .

That the court does indeed have a discretion in the matter is plain both from the wording of section CARDINAL ) and from a number of authorities ... This is not , however , the occasion to explore the approach to the proper exercise of that discretion DATE or , indeed , the question whether its exercise could ever be affected by considerations arising under LAW DATE . As already noted , there is no challenge here to the exercise of ORG section CARDINAL(CARDINAL ) discretion , only to whether the section CARDINAL(CARDINAL ) certificate was lawfully issued . ”

Lord Hope , in the minority , referred to the general principle of construction that a statute should not be held to take away property rights without compensation unless the intention to do so was expressed in terms which were clear and unambiguous . He was therefore of the view that where assets were subsequently acquired entirely legitimately , it ought not to be assumed that ORG intended their confiscation unless it provided for this in clear terms . While the relevant provision in LAW CARDINAL satisfied this test , Lord Hope considered that section CARDINAL(CARDINAL ) of LAW did not .

The applicable legislation at the time was LAW DATE . LAW has now been replaced by LAW .

Section QUANTITY of the CARDINAL Act allowed for the increase in the value of a confiscation order in certain circumstances . It applied where the amount which a person was ordered to pay by a confiscation order was less than the amount assessed to be the value of his proceeds of drug trafficking . Pursuant to section CARDINAL(CARDINAL ) and ( CARDINAL ) , if , on an application by a prosecutor , ORG was satisfied that the amount that might be realised was greater than the amount taken into account in making the confiscation order , it had to issue a certificate to that effect , with reasons .

Section CARDINAL(CARDINAL ) allowed a prosecutor who obtained a section CARDINAL(CARDINAL ) certificate to apply to ORG for an increase in the amount to be recovered under the confiscation order . Upon such an application , the court had discretion to :

“ ( a ) substitute for that amount such amount ( not exceeding the amount assessed as the value referred to in subsection ( CARDINAL ) above ) as appears to the court to be appropriate having regard to the amount now shown to be realisable ; and

( b ) increase the term of imprisonment or detention fixed in respect of the confiscation order ... if the effect of the substitution is to increase the maximum period applicable in relation to the order ... ”

Section CARDINAL(CARDINAL ) of the LAW provided that the amount that might be realised at the time a confiscation order was made was the total of the values at that time of all the realisable property held by the defendant , less the total amount of any obligations having priority , together with the total value of all gifts caught by the LAW . Pursuant to section CARDINAL(CARDINAL ) , “ realisable property ” meant any property held by the defendant and any property held by a person to whom the defendant had made a gift caught by the LAW .

LAW DATE ( “ the DATE LAW ) incorporates the LAW into GPE law . Section CARDINAL(CARDINAL ) of the LAW provides that so far as it is possible to do so , legislation must be read and given effect in a way which is compatible with the LAW rights . Under section CARDINAL(CARDINAL ) of the LAW , a person who claims that a public authority has acted in a way which is incompatible with Convention rights may rely on the LAW rights concerned in any legal proceedings . LAW requires a court determining a question which has arisen in connection with a LAW right to take into account the case - law of this Court .


No violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)

André Potocki;Ganna Yudkivska;Vincent A. De Gaetano

The applicant was born in DATE and lives in PERSON . He had a son , PERSON , who lived in GPE , GPE .

On TIME , PERSON was sitting in the courtyard of the apartment block in which he lived . At TIME a man approached PERSON , shot him in the head , and ran away . Several people witnessed the incident . PERSON died TIME in hospital .

On DATE the police instituted a criminal investigation into the murder and questioned the eyewitnesses , who stated that the killer had been DATE and QUANTITY tall . He had been wearing sunglasses , dark jeans , a red T - shirt and a cap .

On DATE the police examined the crime scene , found the bullet and sent it for forensic examination , and collected fingerprints and biological material .

On DATE the police searched ORG ’s apartment and questioned his wife , T. She did not know who might have wanted to kill PERSON or for what reason . He never spoke to her about his business or other activities .

On DATE the forensic experts established that ORG had been shot with a ORG pistol .

On DATE the police questioned PERSON , who had previously stolen money from GPE , and established that he had an alibi for the period of time when PERSON had been murdered . His fingerprints did not match those found on the crime scene . The police thus concluded that PERSON was not involved in the murder .

On DATE the police questioned employees of the bar owned by ORG , who stated that on DATE P. – a member of the criminal gang led by a certain Bo . – had been looking for the applicant ’s son . P. was DATE and QUANTITY tall .

NORP The Severodonetsk Prosecutors’ Office established that P. had been wanted by the police since DATE as they suspected that he had killed a certain PERSON with a FAC pistol on Bo . ’s instructions . The ORG concluded that P. might have been involved in ORG ’s murder and declared P. and PERSON . wanted .

On DATE the police recognised T. as an injured party to the proceedings . DATE , it identified the telephone numbers from which ORG had received calls on DATE of his death and proceeded to identify the names and whereabouts of the people who had called him .

On DATE , ORG ’s business partner PERSON was questioned . He stated that PERSON . had threatened ORG with violence . On the same date a list of Bo . ’s acquaintances was drawn up which included PERSON ( see paragraph CARDINAL above ) , PERSON . , Kl . , Lit . , PERSON . and NORP

NORP In DATE the police established that there was no match between the fingerprints of Kl . , Lit . , PERSON . and PERSON and those found on and near the crime scene . The police searched Lit . ’s home and seized his clothes . The clothes were later destroyed , not being needed as evidence .

On DATE and DATE the police searched the apartments of ORG ’s acquaintances , but found no evidence that they might have been involved in his murder .

On DATE PERSON was questioned again . He said that a certain PERSON . and PERSON . both worked for PERSON . After PERSON ’s murder , Bo . had called PERSON and had threatened that he would be “ broken ” .

The police searched PERSON . ’s home , but found no evidence of his involvement in PERSON ’s killing .

On DATE the police showed the eyewitnesses several persons suspected of the murder , including PERSON . The witnesses did not recognise the man who had shot PERSON amongst them .

By DATE the police had identified and questioned everyone who had called PERSON on DATE . There was no evidence that any of them had been involved in the murder .

Later in DATE , the police found the ORG pistol with which ORG had been killed in the possession of a certain PERSON . The latter explained that he had bought the gun in DATE from A. , a boy aged DATE .

The police questioned PERSON , who stated that he had found the gun and some sunglasses on CARDINAL DATE near garages in FAC . He had subsequently sold the gun to Sh .

The police questioned the owners of the garages and individuals living near the garages . None of them had seen who had left the gun near the garages . There was no evidence that the boy , PERSON . , or the garage owners had known Bo . or ORG or had had a motive for killing PERSON

On DATE the police questioned Lit . , who said that he knew nothing about the murder .

During DATE the police continued questioning PERSON ’s acquaintances and checking whether their biological material and fingerprints matched those found at the crime scene .

On DATE the police collected blood and saliva from PERSON . and a certain PERSON . , whom the eyewitnesses had seen near the crime - scene on DATE . They also questioned PERSON . , who stated that on DATE he had been in hospital , where many people had seen him . PERSON . did not know anything about the murder .

The forensic medical examination established that both PERSON . and PERSON . might have smoked one of the cigarettes found near the crime scene .

On DATE the police organised an identity parade and showed PERSON . to the eyewitnesses of the murder . However , they did not identify him as the man who had shot PERSON

On DATE the police suspended the investigation on the grounds that it had proved impossible to establish who had committed the murder .

On DATE the investigation was resumed but suspended again on DATE .

On DATE ORG quashed the decision to suspend the investigation , observing that it was necessary to carry out “ additional investigative measures ” . However , he did not specify what those measures were . The case was sent to ORG for further investigation .

On DATE the police arrested PERSON . within the framework of the investigation into the murder of PERSON ( see paragraph CARDINAL above ) . In DATE it questioned Bo . in connection with the death of PERSON He stated that PERSON had been his friend , and he had known nothing about his killing .

In DATE ORG examined a number of witnesses who had been questioned earlier and collected information about people who had stayed in hotels in GPE on DATE .

On DATE the prosecutors prepared a plan of additional investigative measures to be carried out . In particular , they suspected that ORG had been involved in illegal metal trafficking and proposed finding his partners in that business . It was also planned to question PERSON . with whom the applicant ’s son had had “ tense relations ” , and to find and question PERSON . , PERSON . and NORP

On an unspecified date the prosecutors questioned PERSON . and PERSON and found no evidence that they had been involved in ORG ’s murder . PERSON and several other of ORG ’s acquaintances who were questioned by the police denied that the applicant ’s son had been involved in any illegal business , including metal trafficking .

On DATE ORG suspended the investigation , stating that despite all the measures taken it had proved impossible to find ORG ’s killer .

On DATE the police arrested PERSON within the framework of investigation into the death of PERSON ( see paragraphs CARDINAL and CARDINAL above ) .

On DATE ORG resumed the investigation into the death of PERSON because it was planned to question PERSON , PERSON . , NORP and PERSON .

On DATE the police compared P. ’s fingerprints to those collected at the crime scene and found that they did not match .

On DATE it showed PERSON ’s photo to the eyewitnesses of PERSON ’s killing . They were unable to say whether it was P. who had shot PERSON because the murder had occurred a long time before .

The Severodonetsk Prosecutors’ Office informed the police that since DATE a certain PERSON had been wanted for killing PERSON with a ORG pistol in LOC . The prosecutors instructed the police to check whether PERSON could have been involved in ORG ’s murder . The police informed the prosecutors that it would look into PERSON ’s involvement in the killing after establishing his whereabouts .

On DATE ORG instructed ORG to find and question Kl . , PERSON , and PERSON .

On DATE the Severodonetsk Police questioned PERSON , who stated that he had been living in GPE in DATE and had not been involved in ORG ’s murder .

On DATE the Lisichansk Police stated that NORP and PERSON . had not been found at their permanent places of residence .

In DATE the Lisichansk Police questioned Kl . , who stated that he did not know PERSON or anything about his murder . He had heard about Bo . , but had not known him personally .

On DATE the Lisichansk Police informed the Severodonetsk Police that it could not question PERSON . and NORP because their whereabouts were unknown . PERSON . could not be questioned because he was in prison . No further steps were taken to find and question PERSON . , NORP , and PERSON .

On DATE the police questioned Bo . , who said that ORG had been his friend and denied that he was involved in the murder .

On DATE ORG suspended the investigation but resumed it on DATE and transferred the case to ORG .

DATE . On DATE ORG noted that not all the necessary measures had been taken in order to investigate ORG ’s murder and ordered that the investigation be accelerated . ORG were ordered to : i ) show photos of F. to the eyewitnesses ; ii ) search the homes of NORP , PERSON . and PERSON . ; iii ) investigate whether PERSON . might have been involved in ORG ’s murder ; iv ) continue to search for persons who might have been involved in the murder .

On DATE the Severodonetsk Police suspended the investigation , stating that it had proved impossible to find ORG ’s killer . On DATE the proceedings were resumed but were suspended once again on DATE .

On DATE ORG quashed the decision of DATE , stating that not all the necessary measures had been taken in order to investigate the murder . The case was submitted to ORG for further investigation .

On DATE ORG suspended the investigation stating that it had proved impossible to identify the killer .

On DATE the higher prosecutors quashed that decision , and ordered ORG to carry out further investigative measures .

On DATE the Severodonetsk Prosecutors’ Office gave instructions to find and question ORG ’s parents and wife .

On DATE the police questioned the applicant , who stated that he did not know who had killed his son .

On DATE the prosecutors suspended the investigation , stating that it had proved impossible to find the killer of the applicant ’s son . The applicant was informed on DATE .

On unspecified dates the applicant asked the authorities to inform him about the progress of the investigation . He received the following replies .

On DATE ORG informed him that the police had found and examined the crime weapon and were looking for Bo . ’s acquaintances . On DATE the prosecutors informed the applicant that the police had questioned Bo . in connection with ORG ’s murder . On DATE the prosecutors informed the applicant that they were looking for Bo . ’s acquaintances .


Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova

NORP The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in LOC . He was represented before ORG , ORG . , a law firm with its registered office in GPE .

The Government of GPE ( “ the Government ” ) were represented by their Agent , PERSON .

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

The applicant is a judge . At the relevant time he was on the criminal law bench of ORG .

On DATE and CARDINAL DATE the President of ORG filed CARDINAL separate disciplinary charges against the applicant .

The applicant was accused of having negligently failed to take a decision within the prescribed time - limit which had ultimately led to the release from detention on remand of a defendant who was in the process of appealing against a previous first - instance life sentence given in a criminal case . In addition , the applicant was accused of having caused unjustified delays in CARDINAL other sets of proceedings .

These offences were classified as “ serious disciplinary offences ” and the penalty of removal from judicial office was proposed .

Meanwhile , on DATE , ORG , which is the supreme governing body of the judiciary in GPE , suspended the applicant from office pending the outcome of the disciplinary proceedings .

The applicant ’s charges fell to be determined at first instance by ORG , sitting as a disciplinary tribunal ( “ the first - instance tribunal ” ) .

The first - instance tribunal set hearings for DATE , DATE , and DATE , but none of them took place because it had proven impossible to have the summons served on the applicant .

The summons had to be served on the applicant in person . As the summonses had repeatedly not reached him by post at home , they were deposited at the local post office and a notice to that effect was left in the applicant ’s post box . However , the summonses were never collected .

NORP In response , the first - instance tribunal asked that the summonses be served on the applicant by the police , by ORG within the jurisdiction of which the applicant resided , and by the applicant ’s mother .

According to the police and ORG , the applicant was not staying at his home address and their attempts to reach him had been futile .

In the applicant ’s submission , his suspension from office led to disruption of his family life , as a result of which he was not staying at his home address but at his mother ’s .

On DATE the first - instance tribunal again requested that the summons for the hearing then scheduled for DATE be served on the applicant by the police and that the police bring him to that hearing . This summons was eventually served on the applicant .

Meanwhile , the applicant in person ( DATE ) and through the intermediary of his defence counsel ( DATE ) filed written observations in reply .

The first - instance tribunal eventually heard the case on DATE , DATE and DATE . The applicant and his counsel both attended all of these hearings . The tribunal allowed them to make oral submissions and heard evidence from a representative of the complainant and CARDINAL ORG judges as witnesses . In addition , it examined extensive documentary evidence .

The applicant offered the following in his defence . The missed time limit had been subject to newly adopted rules . The interpretation of those rules had been unclear and the applicant had been consulting other ORG judges in that respect . He had thus been engaged in a legitimate process of analysing the applicable rules , had ultimately concluded that the given time - limit applied but , as by that time it had already expired , the defendant had had to be released . In the applicant ’s view , he was not guilty of negligence and , in addition , his workload at that time had been unmanageable .

Following the hearing of DATE , on DATE , the first instance tribunal found the applicant guilty as charged and ordered his transfer to a lower - instance court . It did so having dismissed his arguments and having considered that removal from office , as demanded by the complainant , was too harsh a sanction in the circumstances .

On DATE the applicant appealed against the above decision and on DATE his counsel added reasons to his appeal . The complainant subsequently filed observations in reply and the applicant submitted further written comments .

In sum , he argued that the first - instance tribunal had had no power to try him because its DATE mandate had expired before its decision ; that the tribunal had not been impartial because it had favoured the complainant ; that the complainant had systematically breached his presumption of innocence with the aim of removing him from his position as a judge ; that the tribunal had erred on facts and law , and had been selective in its choice of which evidence to accept ( rejecting the applicant ’s proposals for evidence to be given by certain witnesses ) ; and that it had failed to support its decision with adequate reasoning .

NORP The appeal fell to be examined by ORG , sitting as a disciplinary tribunal of appeal ( “ the appeal tribunal ” ) .

On DATE the appeal tribunal scheduled a hearing for DATE .

On DATE the applicant informed the appeal tribunal that he was unable to appear because he was on sick leave . He submitted a general practitioner ’s certificate of DATE to that effect , stated that he wished to attend the hearing in person , and requested that the hearing be postponed . In the certificate , the applicant ’s doctor had indicated his diagnosis as “ MCARDINAL ” and authorised him to go for a walk DATE TIME and CARDINAL

On DATE a new date was set for the hearing DATE . As for the applicant , the appeal tribunal had the summons sent to him and his lawyer .

At the same time , the appeal tribunal asked the applicant ’s doctor in writing to indicate the expected period of his incapacity for work and to specify whether he would be able to attend the scheduled hearing . The doctor was further asked to authorise the applicant to leave his place of residence on DATE for the purposes of attending the hearing , health permitting .

The summons was served on the applicant ’s lawyer on DATE but it twice proved impossible to have it served on the applicant in circumstances similar to those described above .

On DATE the presiding judge contacted the doctor by telephone with a view to establishing whether the applicant would be able to attend the hearing .

In a written reply dated CARDINAL DATE the doctor confirmed that the applicant had been on sick leave since DATE . Its expected duration could not be specified as the results of the applicant ’s examination by specialists had not yet arrived . Lastly , the letter indicated that the applicant was being treated with medication with analgesic - spasmolytic side effects which could affect his ability to concentrate .

On DATE the applicant ’s counsel informed the appeal tribunal , without offering anything in support of such claims , that the applicant was still on sick leave and that his condition would not allow him to appear at the forthcoming hearing . He added that the applicant considered his presence necessary , submitted that “ they ” apologised for “ their ” absence , requested that the hearing be postponed , and pledged that “ they ” would inform the tribunal once the applicant ’s condition had improved .

The appeal tribunal heard the case as scheduled on DATE without the applicant or his counsel present . The complainant ’s representative was present but submitted that , in the applicant ’s absence , he had no comment to make in respect of the applicant ’s appeal other than to refer to the complainant ’s previous written submissions .

Following the hearing of CARDINAL DATE , on DATE the appeal tribunal quashed the first - instance decision and found the applicant guilty on charges relating to the missing of the detention - related deadline and the unjustified delays in CARDINAL set of proceedings ; it acquitted him of the remaining charge .

The appeal tribunal imposed a sanction on him , which was identical to that imposed previously by the first - instance decision , that is to say transfer to a lower court .

The appeal tribunal observed that the judges of the first - instance tribunal had been appointed for DATE and that this term had expired before its decision in the applicant ’s case . However , under the applicable statute , the tribunal had had to bring to a conclusion any proceedings that had commenced before it irrespective of the DATE period .

Moreover , it considered that the first - instance tribunal had adequately established the facts and that no new evidence was called for . Nevertheless , it was true that the first - instance decision had lacked proper reasoning . Therefore , the appeal tribunal provided comprehensive reasoning of its own for the conviction in its decision . Among other things , it noted that there had been no official record of the applicant having conferred with his colleagues over any question of law that he might have considered controversial . In the circumstances , and in particular in a matter as sensitive as the detention of a notorious criminal defendant , the applicant ’s inactivity could not be accepted as being an expression of legitimate judicial activity but rather manifested signs of arbitrariness .

As regards hearing the applicant ’s appeal in his absence , the appeal tribunal considered that his and his lawyer ’s refusal to attend had been “ another part of the former ’s efforts to obstruct and delay the proceedings ” .

In that connection , the appeal tribunal referred in detail to the difficulties in having the summons served on the applicant both at the first instance stage and on appeal . It observed that the applicant had been on sick leave , which presupposed that he should normally have been at home . It also noted that the applicant had been authorised to leave home for TIME a day , which should have given him ample opportunities to collect his post from the post office .

In addition , the appeal court noted that the applicant ’s doctor had avoided a direct response to the question concerning whether the applicant ’s condition had been such as to prevent him from participating at the hearing .

At the same time , it noted that there was no doubt that the summons had been properly served on the applicant ’s counsel who himself had not provided any reason why he had not been able to appear at the hearing .

In such circumstances , the appeal tribunal considered that the applicant ’s sick leave had not been an adequate reason for adjourning the hearing and that it had been justified to have held it in his absence .

On DATE the applicant lodged a complaint with ORG . He alleged a breach of LAW in that the appeal tribunal had determined the case in his absence , notwithstanding the fact that he and his lawyer had duly apologised .

On DATE ORG declared the complaint admissible ; on DATE it found that there had been no violation of the applicant ’s rights under LAW and its constitutional equivalents .

In reaching that conclusion ORG considered relevant , in particular , that : ( i ) the applicant had attempted to delay the proceedings at first instance ; ( ii ) he and his lawyer had been present at the hearings at first instance and had had the possibility of presenting their arguments ; ( iii ) the applicant ’s lawyer had indicated no relevant reason preventing him from attending the hearing on appeal ; ( iv ) the applicant had had ample opportunity to set out his arguments in his appeal and in his comments on the complainant ’s observations in reply to his appeal ; ( v ) the applicant had been partly successful in his appeal ; ( vi ) the appeal tribunal had accepted the applicant ’s first request for the hearing of his appeal to be adjourned ; and ( vii ) the applicant ’s state of health had not prevented him from attending .

ORG further noted that the representative of the other party had made only a general statement at the hearing and that the court of appeal had not taken further evidence . The principle of equality of arms had been respected and the appeal court ’s conclusion had not been arbitrary .

The disciplinary decisions concerning the applicant have been implemented and he is now in active service at a court of appeal .


Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova

NORP The applicant , PERSON , is a NORP national who was born in DATE . According to the case file , she lives in GPE . She was represented before the Court by PERSON , a lawyer at the nongovernmental organisation ORG ( hereafter “ ORG ” ) based in GPE .

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

In DATE the applicant arrived in GPE and submitted an asylum request ( also referred to hereafter as the first set of asylum proceedings ) . She alleged that she was a NORP and had fled GPE after her father ’s assassination by a radical NORP group .

On DATE the NORP authorities issued an expulsion order in respect of the applicant . According to the case file , the applicant did not seek judicial redress against that order .

Her first asylum request was dismissed on DATE . The administrative authorities found that the inconsistent and contradictory statement of facts provided by the applicant cast doubts on her current nationality and the existence of the alleged persecution . On DATE PERSON was appointed as the applicant ’s legal aid lawyer .

The dismissal decision of CARDINAL DATE was challenged on DATE by means of an appeal introduced by PERSON before ORG sitting in GPE with jurisdiction in asylum cases ) .

On DATE the Audiencia Nacional dismissed the appeal on its merits . It found that the applicant had not provided any documents proving her identity and nationality . Nor had the applicant provided a minimum of evidence to support her allegations . The court noted that she did not speak LANGUAGE , the official language in GPE , and that her mother tongues were LANGUAGE and GPE , the latter being a dialect which was not spoken anywhere in GPE . Lastly , violent incidents similar to those recounted by the applicant had been reported as occurring in PERSON , but not in GPE , the applicant ’s alleged city of origin .

In the meantime , on DATE CARDINAL police officers stopped the applicant on the street and asked her to prove her identity . She was detained and , with a view to enforcement of the DATE expulsion order , placed in an GPE detention centre . At the time of her detention the applicant was pregnant .

On DATE the applicant filed a new asylum request ( hereafter referred to as the second set of asylum proceedings ) . She claimed that she was of NORP nationality and a NORP and had fled GPE after her GPE assassination , having been helped to flee by a man called PERSON Upon her arrival in GPE , however , PERSON had forced her into prostitution in order to repay her travel expenses , which amounted to MONEY ( ORG ) . After having sex with clients she had become pregnant and PERSON had suggested she should have an abortion , but she had been detained DATE prior to her appointment at the abortion clinic . She wished to have the baby and feared being killed if returned to GPE as she had not managed to repay her debt .

ORG ( hereafter , the “ ORG ” ) had supported the applicant ’s request since it considered that , on the basis of the facts recounted by the applicant , she had been a victim of ‒ and might still be a victim of ‒ human trafficking . In the second set of asylum proceedings the applicant was represented by the lawyer Mr ORG

On DATE this second asylum request was declared inadmissible by the Deputy Director on Asylum . She found that the applicant ’s account of facts as to the alleged persecution was incoherent and inconsistent and she had already presented similar submissions in her first asylum request , which had been rejected .

On DATE the NGO Proyecto Esperanza ‒ an agency which specialises in the investigation of trafficking and which had been informed about the applicant ’s case by the ORG ‒ interviewed the applicant at the GPE detention centre and submitted a report to ORG supporting the applicant ’s allegations .

On DATE the applicant applied for a re - examination of the second asylum request . She departed from her initial claim alleging persecution on religious grounds , instead focussing exclusively on the fact that she had been trafficked to GPE for the purpose of being forced into prostitution , and provided a more detailed account of facts . The request for re - examination was dismissed on DATE , the applicant ’s new submissions not being sufficient to alter the conclusions reached in the inadmissibility decision .

The applicant instituted administrative judicial proceedings ( procedimiento contencioso administrativo ) against the refusal decision . Additionally , the applicant requested the suspension of the expulsion order , arguing that she was a victim of trafficking and that she should not be removed from GPE until the identification procedure was completed .

On DATE GPE administrative judge no . CARDINAL rejected the applicant ’s request to have her expulsion suspended on the following grounds : the applicant had failed to demonstrate the existence of a risk to her life or physical integrity if returned to GPE ; the applicant had submitted an international protection request only after having been detained and held in immigrant detention ; the applicant had already sought asylum unsuccessfully in DATE ; the reports compiled by the administrative authorities supporting rejection of the asylum request were better reasoned and more convincing than the report produced by the ORG office . According to the case file , the applicant did not appeal against the rejection of the suspension .

On DATE GPE administrative judge no . CARDINAL ruled that he lacked jurisdiction to examine the applicant ’s appeal , and relinquished the case to FAC . It does not follow from the case file that either the applicant or the administrative courts have taken any further steps in pursuance of these proceedings .

On DATE , while the above - mentioned judicial proceedings were pending before GPE administrative judge no . CARDINAL , CARDINAL lawyers from ORG visited the applicant in the detention centre . The applicant signed a written authority to act ( hereafter referred to as “ the authority dated DATE ” ) , instructing PERSON , one of the lawyers , to apply for the granting of a “ recovery and reflection period ” under section CARDINAL bis of Organic Law CARDINAL/CARDINAL of DATE on the rights and freedoms of aliens in GPE . In the application , which was introduced on DATE , ORG asked for a stay of the applicant ’s expulsion .

NORP WLW informed Mr. PERSON , the applicant ’s lawyer in the second set of asylum proceedings , that the organisation ’s lawyers would represent the applicant from DATE . On an unknown date Mr. PERSON gave his consent thereto , but no power of attorney was signed by the applicant to formalise this .

On DATE ORG applied to ORG in ORG ( Delegación del Gobierno en la ORG ) to have the applicant ’s expulsion order revoked . It claimed that the applicant satisfied all the legal requirements to be granted a residence permit in view of her social integration in NORP society .

On DATE at TIME the applicant was expelled to GPE . ORG first learnt of the applicant ’s expulsion on DATE , the date on which she was served with a decision by ORG dated DATE rejecting the request for a recovery and reflection period . On the basis of an interview conducted by police officers , ORG found that there was no evidence to support the argument that the applicant was a victim of human trafficking . It was clear that she had not been forced into prostitution since she worked independently and voluntarily without being controlled , lived alone and had not been deprived of her freedom of movement . Furthermore , she had no relatives in GPE who might be threatened .

On DATE ORG instituted administrative judicial proceedings for the protection of fundamental human rights ( procedimiento contencioso administrativo para la defensa de los derechos fundamentales ) , claiming that the applicant had been expelled before the NORP authorities had examined the substance of her request for a recovery and reflection period .

On DATE GPE administrative judge no . CARDINAL asked ORG to submit a power of attorney signed by the applicant before a relevant authority , namely a notary , a judicial secretary or a consular authority . He stated that the application would be deemed valid if the applicant had signed it herself .

On DATE ORG argued before the judge that the manner in which the applicant had been expelled had prevented the organisation from having a power of attorney signed by the applicant before a notary or a judicial secretary . ORG contended that it had not been informed about the expulsion beforehand and had not been able to contact the applicant since then . In its view , the written authority dated DATE ( see paragraph CARDINAL above ) should be regarded as valid for the purposes of representation before domestic courts .

On DATE the administrative judge rejected ORG ’s submissions . He referred to sections CARDINAL and DATE ( CARDINAL ) ( a ) of PERSON CARDINAL/CARDINAL of CARDINAL July on Administrative Judicial Procedure , which established the obligation to furnish a power of attorney in cases where applicants had instructed a lawyer to represent them before an administrative judge , and to section CARDINAL of Law CARDINAL/CARDINAL of DATE on Civil Judicial Procedure , which provided that the power of attorney must be signed before a notary or a judicial secretary . The judge observed that the aim of these requirements was to demonstrate the genuine existence of the person intending to apply to the judicial authorities for the purpose of defending his or her individual rights .

On DATE , as a result of a claim lodged by ORG concerning the applicant ’s case , the NORP ORG issued a recommendation to ORG to the effect that the asylum authorities should automatically initiate a procedure aimed at determining whether the alleged victim should be granted a recovery and reflection period in cases where an international protection request has been supported by the ORG office because it is thought that the person concerned might be a victim of human trafficking .

On DATE , after holding a hearing in the presence of ORG , GPE administrative judge no . CARDINAL declared the appeal inadmissible as ORG had no locus standi to represent the applicant . The judge found that ORG had failed to substantiate its assertion that its lawyers had tried CARDINAL times to procure the attendance of a notary at the GPE detention centre .

On DATE the Madrid High Court of Justice upheld this decision , observing that ORG had not demonstrated that it had approached the professional association of notaries for the purpose of requesting the attendance of a duty notary at the GPE detention centre . ORG also found that no evidence had been produced showing that the applicant was unable to avail herself of consular services in her country of origin as provided by CARDINAL ( CARDINAL ) of Organic Law CARDINAL/CARDINAL of DATE on LAW in GPE . In view of the above , ORG declared that the written authority dated DATE , which was valid for the purposes of the applicant ’s representation in administrative proceedings , was not sufficient to satisfy the representation requirements under LAW of LAW . On DATE ORG declared the applicant ’s amparo appeal inadmissible for lack of any special constitutional significance .

Section CARDINAL bis of Organic Law CARDINAL/CARDINAL of DATE on LAW in GPE imposes on the competent domestic authorities the obligation to adopt the measures necessary for the identification of victims of trafficking in human beings . This provision reads :

“ CARDINAL . The competent authorities shall adopt the necessary measures for the identification of victims of trafficking in human beings in compliance with LAW , of CARDINAL DATE .

Whenever they consider that there are reasonable grounds to believe that an illegal immigrant is a victim of trafficking in human beings , the competent administrative bodies shall inform the person concerned of the provisions of this section and shall submit , in accordance with the relevant procedure , a proposal to the competent authority for the adoption of a decision on whether a recovery and reflection period should be granted in the case .

The recovery and reflection period shall last at least DATE and shall be sufficient for the victim to make a decision on cooperating with the authorities in the investigation of the crime and , if appropriate , in the criminal proceedings thereafter . During the victim identification period and the recovery and reflection period no infringement proceedings may be instituted for a violation of section CARDINAL ( CARDINAL ) ( a ) . Any infringement proceedings that may have been instituted and any expulsion or deportation decisions adopted will be suspended . Likewise , during the recovery and reflection period , the person concerned shall be authorised to stay in the territory temporarily and the competent administrations will provide for his or her subsistence and , if necessary , for the security and protection of the victim and any of his or her children who are minors or disabled and were in GPE at the moment of identification ...

The recovery and reflection period may be denied or revoked for reasons of public order or if it is found that victim status has been claimed improperly . The denial or revocation shall be properly reasoned and can be appealed against as provided for by PERSON CARDINAL/CARDINAL of DATE on ORG and on Common Administrative Procedure .

The relevant NORP legislation setting out the formal requirement to provide legal representation ( in force on the date of the institution of the proceedings for the protection of fundamental rights ) provides as follows :

“ CARDINAL . In proceedings before a single judge , the parties may choose to be represented by a procedural representative and shall , in any event , be advised by a legal counsel ... ”

“ CARDINAL . Claims for judicial review shall be initiated in the form of a written application that merely cites the decision , act , inaction or action constituting the challenged ultra vires operation and the petitum that the claim be held to have been filed , unless otherwise provided by this law .

This application shall be accompanied by :

a ) The document ascertaining the capacity of the person appearing on behalf of the party , unless this document has been previously attached to the judicial file of a case pending before the same court , in which case a certificate may be requested , to be attached to the new judicial file .

“ CARDINAL . The authority to act on behalf of a party shall be conferred through a notarial power of attorney witnessed by a public notary or through the party ’s appearance in the office of a judicial secretary .

“ CARDINAL . The administrative decisions imposing an administrative sanction may be appealed against as provided for in the relevant regulations . These decisions shall be enforced according to the relevant general legislation .

Where the alien is outside GPE , he or she may introduce administrative or judicial proceedings through the relevant diplomatic or consular services , which shall forward the appeal to the relevant body in GPE . ”


Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Expulsion)

André Potocki;Angelika Nußberger;Carlo Ranzoni;Ganna Yudkivska;Khanlar Hajiyev;Yonko Grozev

The applicants were born in DATE , DATE and DATE respectively . The first applicant currently lives in GPE . The third applicant left GPE for GPE on DATE . His current whereabouts are unknown . The second applicant died on DATE . According to the ORG representative , the second applicant died of a “ natural cause ” . No further details were given in this regard . The ORG was not informed of anyone wishing to pursue the application on his behalf .

The following is a summary of the events that led the applicants to seek asylum outside their countries of origin , as submitted by the applicants .

The first applicant is an NORP . When he was DATE he was forcibly recruited to the army in GPE . After having served for DATE he deserted and left for GPE . In the meantime , his father went missing after he had been arrested by the NORP authorities for having complained about the first applicant ’s forcible military service . The first applicant believed that his father had been tortured and murdered by the authorities .

The second applicant was a NORP . Initially , he left GPE for GPE together with his family . After the outbreak of armed conflict between GPE and GPE , the second applicant ’s family moved back to GPE , though the second applicant remained in GPE as he feared persecution for his religion and forcible military service in GPE . As he could have been expelled by the NORP authorities to GPE , the second applicant left for GPE in DATE .

The first and second applicants stayed in GPE illegally for DATE . In that country both applicants were repeatedly arrested by the authorities allegedly in connection with the armed conflict between GPE and GPE in DATE .

The third applicant left GPE for GPE in DATE for unspecified reasons . DATE he was employed by an NORP transport company operating in GPE . The third applicant submitted that as he had been a member of the “ Medre[k ] political party ” , he had been dismissed by his employer after that party had lost the DATE election in GPE to the “ GPE party ” . The third applicant ’s identity card issued by the NORP authorities was retained by his former employer . Thus the third applicant remained in GPE illegally and was at risk of possible deportation by the PERSON authorities to his country of origin , GPE , where he risked persecution “ as a traitor to the GPE political regime ” .

The Government did not comment on those submissions .

On DATE , with the intention of seeking asylum in any country other than GPE or their countries of origin , the applicants covertly boarded a commercial vessel flying the flag of GPE . The vessel was leaving the port of GPE and heading for GPE , GPE .

DATE the applicants were discovered by the vessel crew . The vessel ’s owner and insurer were informed accordingly .

When the vessel was passing through LOC , the insurer tried to arrange with the NORP authorities that the applicants could disembark in GPE , but the authorities refused the request .

Following the vessel ’s arrival in GPE on CARDINAL DATE the NORP authorities and a representative of ORG High Commissioner for Refugees ( “ the ORG ” ) in GPE met with the applicants on board the vessel . The applicants were not allowed to disembark . Their allegations of persecution in their home countries written in the NORP and NORP languages were passed by the vessel ’s insurer to the representative of the ORG office in GPE .

On DATE the vessel left ORG in the direction of the port of GPE in GPE .

On DATE , sometime before the vessel anchored in the port of GPE , a non - governmental organisation “ Faith , Hope , Love ” , which at the time was based in ORG and assisted refugees and asylumseekers under a contract with the ORG , contacted the head of ORG in LOC of GPE informing him that there were CARDINAL nationals of GPE and a national of GPE on board the vessel and that , according to the ORG , they might require international protection . The organisation requested leave for their lawyer , PERSON , to meet with the applicants .

On DATE NORP border guards embarked the vessel and met with the applicants . According to information provided by the Government , the applicants did not submit any requests to the border guards .

Later on DATE , PERSON went to GPE port to see the applicants . She was allowed to embark the vessel and meet with the applicants . She discussed their situation with them and informed them of the asylum procedures in GPE . The discussion was in LANGUAGE in the presence of CARDINAL border guards and CARDINAL port security officers . As only the first applicant could speak LANGUAGE , he interpreted the discussion into NORP , which the other CARDINAL applicants could understand .

According to the applicants , during the discussion they expressed the wish to seek asylum in GPE and started filling in asylum applications with the help of CARDINAL of the border guards who had knowledge of LANGUAGE . That border guard was an official interpreter at ORG . However , sometime later the border guards stated that they could not accept the asylum applications from the applicants , as the applicants were on board a vessel flying the flag of a foreign ORG . Such applications had to be submitted to the vessel ’s captain . On the same grounds the border guards refused to allow the applicants to disembark . The border guards asked PERSON to leave the vessel . Allegedly , PERSON was not given sufficient time and interpretation facilities to provide assistance to the applicants in respect of their asylum claims .

According to the Government , during that meeting the applicants did not submit applications for asylum ; nor did they express a wish to do so . As the applicants had no identity documents , the head of the border - guard unit decided to refuse them leave to enter GPE . No copy of that decision was provided to the ORG . The ORG submitted copies of reports drawn up by the border guards who had been present at that meeting , which indicated that the meeting had lasted for TIME and that the applicants had stated that they needed time to decide whether they wished to request asylum in GPE . PERSON left the vessel without raising any complaints . The head of the border - guard unit stated in her report that she had explained to the applicants that “ in the circumstances the border guards had not been able to accept asylum applications from them ” .

On DATE the applicants , allegedly having been misled by the vessel ’s captain who was acting on the instructions of the NORP border guards , signed type - written statements in LANGUAGE , according to which they had boarded the vessel with the aim of reaching GPE “ in search of better living conditions ” and that they did not “ need the status of refugee , addition[al ] [ or ] temporary protection in GPE ” . In a letter he sent to the ORG on DATE , the captain stated that the abovementioned type - written statements had been prepared and brought on board by NORP border guards on DATE .

The Government submitted that the applicants themselves had asked the captain to help them to prepare the above - mentioned type - written statements . The Government relied on the captain ’s statements obtained on DATE when he had been questioned by the migration authorities . In particular , the captain stated that he and the first applicant had prepared the statements and had given them to the other applicants to sign .

On DATE PERSON , acting on the applicants’ behalf , lodged with the ORG a request for interim measures to be imposed under LAW . She stated that the applicants risked removal to GPE , for which the vessel was scheduled to depart on DATE . In their submissions before the ORG , the Government did not contest this statement . PERSON further argued that in GPE asylum - seekers were granted no form of protection and were exposed to the risk of being repatriated . According to her , there was a real risk that the authorities of GPE would forcibly return the applicants to their countries of origin where they would be subjected to ill - treatment . She essentially requested the ORG to indicate to the Government of GPE that the applicants should be allowed to leave the vessel and should be granted access to a lawyer and to the asylum procedure .

On DATE the ORG granted the request .

On DATE the border guards accompanied by an officer from ORG embarked the vessel and met with the applicants . According to the Government , it was during that meeting that the applicants requested asylum in GPE . They were allowed to disembark and to cross the State border .

On DATE the applicants were questioned by the migration authorities concerning their asylum applications . According to the applicants , during the questioning they were not provided with adequate translation or any explanation of the relevant regulations . Nor were they provided with legal assistance .

The parties have not informed the ORG about the outcome of the applicants’ asylum applications lodged in DATE ; nor have they provided any further details as regards their examination by the migration authorities .

It appears from their submissions that in DATE the applicants lodged new asylum applications with the authorities .

On DATE ORG ( the “ ORDMS ” ) rejected the third applicant ’s asylum application , finding that it was manifestly ill - founded . The third applicant did not challenge that decision on appeal . On DATE he decided to leave GPE for GPE . The ORG helped him to organise the travel arrangements . The ORG representative did not provide any further information as regards the third applicant , as since the third applicant ’s departure from GPE the representative has lost contact with him .

On DATE the ORDMS refused the second applicant ’s application , finding that his submissions were contradictory and did not concern a situation in which refugee status or complementary protection could be granted . He appealed to ORG . The proceedings were eventually terminated as the second applicant died on DATE .

On DATE the ORDMS refused the first applicant ’s application , principally for the same reasons as in the case of the second applicant . The first applicant appealed to ORG , which has not yet decided on the matter .