Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation)

Branko Lubarda;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra

The first applicant was born in DATE , while the second and third applicants were born in DATE and DATE , respectively . They all habitually reside in GPE .

NORP Since DATE the applicants have been facing multiple charges mainly concerning alleged violent offences , against a background of organised crime . In the context of their prosecution on these charges , they were arrested , remanded , released , and re - arrested and re - remanded several times .

A part of the present application directly relates to CARDINAL of their unsuccessful requests for release from detention following their arrest on DATE on a charge of perjury . These requests and the underlying procedures are described in chronological order in sections PERSON to NORP below .

NORP The applicants’ term of detention following the arrest of DATE ended with their release on DATE , subsequent to which , on DATE , they were again arrested and later remanded in detention pending trial on a charge of extortion . The remainder of the application directly concerns their interlocutory appeal against the remand order following that arrest and , together with the underlying procedure , it is described below in section E.

On DATE the first applicant made a submission requesting release . It was received at FAC on DATE and the applicant amended it by means of a further submission , which reached ORG on DATE .

On DATE the ORG heard the first applicant . In the course of the questioning he challenged the judge in charge of the case on grounds of bias , alleging that there had been an arbitrary interference with the organisation of the workload at FAC , as a result of which the case had not been assigned to the lawful judge .

At the conclusion of the questioning on DATE , that is to say on CARDINAL DATE , ORG dismissed the challenge . Immediately afterwards the first applicant used his right to state on the record that he wished to appeal against the decision on his challenge and he submitted his grounds for appeal on DATE . That appeal was dismissed by ORG on DATE , the decision being served on the first applicant on DATE .

The first applicant ’s request for release was then dismissed by ORG on DATE and , following his interlocutory appeal , by ORG on DATE , the latter decision being served on the applicant on DATE .

On DATE the first applicant lodged a complaint under LAW with ORG , arguing that the examination of his request for release had not been speedy , that its dismissal had been arbitrary , and that it had not been determined by the lawful judge .

On DATE ORG declared the complaint inadmissible . As for the length of the proceedings in the first applicant ’s request for release , ORG recapitulated the course of those proceedings and found that the complaint was manifestly ill - founded as regards both the part of the proceedings that took place before ORG and the part that took place before ORG . The remaining complaints were partly out of time and partly manifestly ill - founded .

ORG decision was served on the first applicant on DATE .

On DATE the second applicant and the third applicant also requested release and offered to pledge LAW that , if released , they would live in accordance with the law . Their request was filed with ORG of ORG ( “ the PPS ” ) which was responsible for dealing with it in the first instance .

Finding no reasons for acceding to it , on CARDINAL DATE the ORG transmitted the request to ORG for a judicial determination . The case file was received at ORG on DATE . Having established that the case file was incomplete , ORG asked the PPS for a complete version of it on DATE , which was submitted to ORG on DATE . Meanwhile , on DATE , the applicants waived their right to be heard in person by ORG .

The request was dismissed by ORG on DATE and , following the ORG interlocutory appeal of DATE , by ORG on DATE .

The former decision was served on the applicants and CARDINAL of their CARDINAL lawyers on DATE . On DATE , by means of telephone inquiry in response to the impossibly of having it served on the third lawyer , ORG established that the third lawyer had stopped representing the applicants , explaining the failure to inform the court accordingly by the fact that he had been on holiday .

The latter decision was served on the applicants and on the lawyer of CARDINAL of them on DATE . It was served on the other applicant ’s lawyer on CARDINAL DATE .

On DATE the second applicant and the third applicant lodged a constitutional complaint , directing it against ORG and ORG , and alleging a violation of their rights under LAW and CARDINAL of the Convention ( and their constitutional equivalents ) to a speedy review of the lawfulness of their detention by an impartial tribunal established by law and to release pending trial .

As for the length of the proceedings in the ORG request for release , ORG recapitulated the course of those proceedings and observed that some delays had been caused by the failure of the authorities to submit a complete case file to ORG and by the abovementioned failure of CARDINAL of the ORG representatives to inform the court of the termination of his mandate , which had resulted in repeated and eventually futile attempts to serve the written copy of ORG decision on him .

ORG concluded that neither before ORG nor ORG had the length of proceedings been incompatible with the speediness requirement of LAW .

The remaining complaints were inadmissible partly because they were a res iudicata by virtue of a previous decision of ORG and partly because they were manifestly ill - founded .

ORG decision was served on the second applicant and the third applicant on DATE .

On DATE the applicants lodged a fresh request for release . In response , ORG informed them in a letter of DATE that – without the submission of new relevant information – under the applicable statute a new request for release could be lodged at the earliest DATE after the final determination of the previous request . As the applicants’ request of DATE contained no such new information in relation to their previous request DATE which had only been dismissed with final effect on DATE it could not be entertained .

The first applicant amended his request by means of a further submission received at ORG on DATE while the second applicant and the third applicant did so by a submission received on DATE .

The request was dismissed by ORG on DATE and , following the ORG interlocutory appeal , by ORG on DATE , the latter decision being served on the applicants on DATE .

On DATE the applicants lodged a constitutional complaint , alleging inter alia a violation of their rights under LAW and CARDINAL of the LAW .

On DATE ORG declared the complaint inadmissible . It recapitulated the course of those proceedings and observed DATE since the ORG request contained no new relevant information in relation to their previous request – the courts were prevented by law from examining it . The periods under consideration had therefore not commenced on DATE , as claimed by the applicants , but only on DATE , when they had amended the original request . From that perspective , the length of the impugned proceedings was acceptable .

ORG decision was served on the applicants on DATE .

Following their arrest on DATE ( see paragraph CARDINAL above ) , the applicants were remanded in detention pending trial on a charge of extortion by ORG order of DATE .

On DATE the applicants challenged the detention order by means of an interlocutory appeal , which ORG dismissed on CARDINAL DATE , its decision being served on the applicants on DATE .

On DATE the applicants challenged these decisions before ORG , alleging inter alia a violation of their rights under LAW and CARDINAL of the LAW , including the right to a speedy review of the lawfulness of their detention upon their interlocutory appeal against the detention order of DATE .

On DATE ORG declared the complaint inadmissible as manifestly ill - founded .

The decision was served on the applicants on DATE .

Meanwhile , on DATE , the applicants were indicted to stand trial on the charge in question and , on DATE , they were released from detention .

The proceedings on the merits appear to be still pending .


Remainder inadmissible;No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)

András Sajó;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens;Robert Spano

The applicant was born in DATE . She is currently detained in FAC .

On DATE the applicant called the emergency services to say that she had killed her CARDINAL children and had tried to commit suicide . When the police , the ambulance crew and the medical services arrived at the scene , they found the applicant , who was injured , and the bodies of CARDINAL children with their throats slit .

NORP In an order of DATE ORG ( Chambre des mises en accusation ) of ORG committed the applicant to stand trial for the following offence :

“ in Nivelles , on DATE ,

having knowingly and intentionally killed [ Y.M. ] , [ GPE ] , [ My . PERSON ] , [ PERSON . PERSON ] and [ Me . PERSON ] with premeditation . ”

The following details were mentioned in the indictment of DATE .

On the applicant ’s admission to the intensive - care unit on DATE of the incident , the doctor treating her had noted “ depressive , self - destructive thoughts against a background of psychotropic , anti - anxiety and antidepressant medication ” . During her initial police interview , the applicant had explained that she had acted in a fit of despair caused by her family ’s dependence on Dr S. , who lived in the same house as the applicant , her husband and their CARDINAL children and supported them financially .

The investigating judge ordered several psychological reports . CARDINAL psychologists examined the applicant and submitted their respective reports on DATE and CARDINAL DATE . They both concluded that the applicant was suffering from inner fragility requiring massive , rigid defences to preserve a perfect facade . She had developed a maternal omnipotence and a lack of psychological distance between the children and herself . Thus , by killing her children DATE love - objects in whom she had over - invested – the applicant was killing herself both as a person and as a mother .

The investigating judge also ordered a psychiatric assessment . A panel of CARDINAL psychiatrists examined the applicant and drew up a lengthy report dated DATE , in which they concluded :

“ We consider that [ the applicant ] was in a severe state of anxiety and depression which encouraged her to act as she did and profoundly impaired her judgment , without destroying it altogether .

The accused was not suffering at the time of the events , and is not currently suffering , from a mental disorder or a severe mental disturbance or defect making her incapable of controlling her actions . ”

NORP The applicant ’s trial took place in FAC of the province of PERSON from DATE .

During the trial PERSON , the applicant ’s psychiatrist , mentioned CARDINAL letters which the applicant had sent him DATE before the events but which had not previously been included in the file . The President of ORG accordingly instructed the CARDINAL psychiatrists who had already been involved at the investigation stage to draw up an additional report in the light of the new evidence .

On DATE the CARDINAL psychiatrists submitted their unanimous report , concluding as follows :

“ The letter of DATE ] suggests all the signs of melancholic major depression . ... These melancholic features are grounds for hospital admission or observation where necessary . ... These documents thus demonstrate beyond doubt that [ the applicant ] no longer felt able to control her actions ... she developed a transient dissociative state of depersonalisation , causing her to perform acts of extreme violence . Only operational thought remains ; reflective consciousness is completely lacking . ... Conclusion : at the time of the events , the accused was suffering from a severe mental disturbance making her incapable of controlling her actions , and is currently suffering from a severe mental disturbance warranting long - term treatment . ”

At the end of the oral proceedings , the jury was called to answer the following CARDINAL questions put to it by the President of ORG :

“ CARDINALst question ( principal question as to guilt )

Is the accused PERSON , present before this court , guilty of having knowingly and intentionally killed [ Y.M. ] , [ GPE ] , [ My . PERSON ] , [ PERSON . PERSON ] and [ Me . M. ] in Nivelles on DATE ?

CARDINALnd question ( subsidiary to DATE question , to be answered by the jury only if it has answered the CARDINALst question in the affirmative )

Is it established that the intentional homicide referred to in the first question was premeditated ?

CARDINALrd question ( principal alternative as to the commission of an act classified as a serious crime , to be answered by the jury only if it has answered the CARDINALst question in the negative )

Is it established that the accused PERSON , present before this court , committed the act classified as a serious crime of having knowingly and intentionally killed [ Y.M. ] , [ GPE ] , [ My . PERSON ] , [ PERSON . PERSON ] and [ Me . M. ] in Nivelles on DATE ?

CARDINALth question ( subsidiary to the CARDINALrd question , to be answered by the jury only if it has answered the CARDINALrd question in the affirmative )

Is it established that the act classified as a serious crime referred to in the CARDINALrd question was premeditated ?

CARDINALth question ( principal question as to social protection , concerning the accused ’s current mental state , to be answered by the jury only if it has answered the CARDINALst question in the affirmative or the CARDINALrd question in the affirmative )

Is it established that the accused PERSON , present before this court , is suffering either from a mental disorder or from a severe mental disturbance or defect making her incapable of controlling her actions ? ”

The jury answered “ yes ” to the first CARDINAL questions and “ no ” to the last question .

In a judgment of DATE ORG , composed of CARDINAL judges and the jury , endorsed the guilty verdict reached by the jury and sentenced the applicant to life imprisonment . The judgment included reasons for the sentence . The court took into account the particularly heinous nature of the offences , holding :

“ The accused ’s heavy family responsibilities and her painful feelings of isolation and dependence may account for a legitimate desire for greater personal freedom . Her mental fragility , depression and character no doubt made it more difficult to handle this desire and , through dialogue , to seek possible improvements within the limits of her specific circumstances , taking into consideration all those close to her .

However , neither those factors , nor even a wish to escape from what she considered a dead - end situation through suicide , nor a lack of appropriate help , can provide a sufficient explanation for the acts of extreme violence which she resolved to commit , and carried out in cold blood .

In the specific circumstances relating both to the accused ’s character and to her living environment , the genuine difficulties experienced by her do not constitute mitigating factors , having regard to the extremely serious nature of the offences committed . ”

As an ancillary penalty , the applicant was stripped of all titles , ranks and functions she held and was permanently deprived of certain rights in accordance with Articles DATE and DATE of LAW as in force at the material time . Lastly , the judgment was to be printed and publicly displayed in the municipality where the offence had been committed , in accordance with LAW .

On DATE the applicant appealed on points of law , raising the same complaints as those submitted before the ORG .

On DATE ORG dismissed the applicant ’s appeal . With regard to the jury ’s guilty verdict , it observed that ORG had had to rule on a plurality of serious crimes ( concours matériel de crimes ) within the meaning of LAW and not a single act constituting several different offences ( délit collectif ) within the meaning of LAW , which required a unity of intent , and that the parties had agreed to the wording of the questions put to the jury . ORG pointed out that LAW did not require the court to be made up solely of professional judges , lawyers or experts and that the applicant had not adduced any specific evidence to justify her fear that the jury might not be impartial . Furthermore , the wording of the jury ’s guilty verdict in the form of a simple “ yes / no ” answer was prescribed by LAW . With regard to the applicant ’s criminal responsibility , ORG held that ORG judgment had indicated why the conditions for the application of LAW were not satisfied :

“ In noting the accused ’s cold - blooded manner and her determination to carry out her crimes , the [ ORG ] judgment indicates the reason why ORG did not accept that the perpetrator had been suffering from any mental disturbance making her incapable of controlling her actions at the time of the events . ”

As regards the reasons for the sentence , ORG held that there was no statutory provision prohibiting ORG precluded any mitigation of the perpetrator ’s guilt ; nor was there any statutory provision establishing that a decree of divorce in civil proceedings constituted res judicata in respect of criminal proceedings . Furthermore , the conclusions of ORG judgment to which the applicant had objected had not punished her for refusing to admit her own guilt but had indicated the reasons why ORG had not accepted that there were any mitigating circumstances .

In addition , regarding the ancillary penalties , ORG pointed out that deprivation of functions and permanent withdrawal of certain civic rights were mandatory ancillary penalties ( Articles DATE of LAW ) for anyone sentenced to life imprisonment and therefore did not require any reasons . It further held that public display of a criminal conviction did not attain the minimum level of severity required by LAW . Lastly , the fact that no appeal lay against the jury ’s verdict ( LAW ) resulted from a provision which ORG had not applied in the judgment itself and which was therefore extraneous to the judgment .


Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation)

The applicant was born in DATE and lives in GPE .

On DATE he was convicted of disorderly acts and given a suspended DATE custodial sentence conditional on CARDINAL years’ probation . On DATE the court replaced the suspended sentence with an unconditional one because the applicant had failed to report to the probation authorities . On DATE ORG of GPE upheld that decision on appeal . The applicant subsequently served DATE of the custodial sentence .

On DATE the Presidium of ORG of GPE quashed the decision of DATE and the appeal decision of DATE , noting that the offence of disorderly acts had been decriminalised on DATE and that the original sentence had been unenforceable . It held however that the applicant was not eligible for compensation for the unlawful detention because he had been initially found guilty and because the “ right to the rehabilitation ” did not cover the situations of ex post facto decriminalisation .


Remainder inadmissible;No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Libya)

Aleš Pejchal;André Potocki;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Johan Hirschfeldt;Mark Villiger;Vincent A. De Gaetano

The applicant was born in DATE and is currently in GPE .

On DATE he applied for asylum in GPE , stating that he had entered the country DATE . He stated that the smuggler who had organised his journey had taken his passport and he provided a mobile telephone number for a contact person , N.

On DATE , ORG ( Migrationsverket ) held a first interview with the applicant during which he stated that he was from GPE . His mother and siblings remained there and he was in contact with them and would ask them to send him his passport and other identification documents . He further claimed that he had no relatives in GPE but he provided the mobile telephone numbers of CARDINAL contact persons in GPE , ORG and H.

An in - depth interview was held with the applicant on DATE , where his public counsel and an interpreter were present . ORG official informed the applicant of the importance of giving all his reasons for asylum as this might be his only chance to present them . She further assured him that all information provided was treated confidentially . The applicant handed in his identity card and claimed that the authorities had confiscated his passport and other identity documents . He then stated essentially the following .

He had left GPE in DATE and had travelled to GPE , where he had remained until his uncle had helped him to reach GPE in DATE , with the assistance of smugglers and a fake NORP passport . In GPE he had been a soldier , working as a guard at a military base in GPE where he had met some persons who had paid him to transport illegal weapons for powerful clans from southern GPE , with connections to the authorities . He had been working for them for DATE when , in DATE , he had been stopped at a road check and interrogated . He had then been taken to an unknown location where he had been kept for DATE and subjected to interrogation and torture . He had been charged with possession of illegal weapons and car theft and had then been moved to a military prison where his uncle had visited him and arranged for a lawyer for him . During the torture , his arm had been seriously injured and become infected and , DATE after his transfer to the military prison , he had been taken to a civil hospital by CARDINAL guards for treatment . After the doctor had treated him , CARDINAL of his guards had gone to fetch coffee for him and the other had taken him outside for a cigarette . He had then managed to escape . If he were returned to GPE , he would risk at least CARDINAL years’ imprisonment for the criminal offences . He would further risk being killed by the clans since he had revealed their names under torture . He showed some scars on his arm , back and head .

ORG officer asked whether the applicant had other grounds for requesting asylum , to which the applicant replied no . He had lived well in GPE until he was arrested and had even planned to marry a woman in DATE .

In DATE , the applicant ’s public counsel submitted certain clarifications to ORG but essentially maintained what had been stated during the interview .

On DATE the applicant visited ORG together with PERSON stated that he wished to add to his grounds for asylum that he was homosexual and had a relationship with ORG , whom he had known since DATE in GPE . Their relationship had developed over time and he had moved in with ORG in DATE . N. was transsexual and had a permanent residence permit in GPE .

In view of this new information , ORG held a supplementary interview with the applicant on DATE . During this interview , the applicant stated that he had been “ normal ” before and that it was ORG he had become interested in . Their relationship had developed from friendship but it had been difficult because of the very negative attitudes from other NORP in the city where they lived in GPE . No one in GPE knew about his sexual orientation and he had never had a homosexual relationship in GPE . ORG was in the process of changing gender from man to woman . They had spoken with his mother and sister over internet with a camera but ORG had presented himself as a woman . They had married in DATE . If he had to return to GPE to apply for family reunion from there , it would become known that he was married to a man and he would risk persecution and ill - treatment .

As concerned his original grounds for asylum , and in view of the changes in GPE during DATE , the applicant noted that the situation in GPE was very insecure . He thought that the clans would no longer be particularly interested in him since they had other interests now and were less powerful than before . If he was careful , there would no longer be much of a threat against him in GPE .

On DATE ORG rejected the application . It first noted that the applicant had failed to submit his passport despite having claimed on several occasions that he had a passport and would submit it . However , although he had not proved his identity , the ORG accepted that he was probably from GPE . As concerned the situation in GPE following the overthrow of PERSON , the ORG noted that it was serious but did not reach the level of internal armed conflict . Thus , an individual assessment had to be made in the applicant ’s case . In this respect , the ORG found that the applicant had given contradictory statements and that his story lacked credibility . To begin with , he had given diverging information about his passport at the interviews , first claiming that the smuggler had taken it , then that he could obtain it from his family , later that the NORP authorities had confiscated it and , most recently , that he would submit the passport . It further observed that the name on the certificate relating to impediments to marriage , which the applicant had submitted in support of his marriage , was different from the name that he had given to ORG . Since no passport had been submitted , it was not clear that the certificate concerned the applicant . In the same connection , the ORG noted that the applicant had given contradictory statements about when he had met ORG and their relationship . At the first interview , on DATE , he had given ORG ’s telephone number as a contact number , while in DATE , he had stated that he had become acquainted with ORG during DATE in GPE and , at the interview in DATE , he had claimed that he had met PERSON about DATE after his arrival in GPE . Moreover , at the in - depth interview , he had stated that he had no other grounds for his asylum application than those related to the weapon transport and that he had planned to marry in GPE . Against this background , the ORG also questioned the nature of the applicant ’s and ORG ’s relationship , as relied on before ORG only on DATE . Thus , ORG concluded that the applicant ’s story , both in relation to events in GPE and his relationship with ORG , lacked credibility and was not sufficient to justify granting him a residence permit in GPE .

Furthermore , the ORG noted that substantive changes had occurred in GPE after the applicant had left the country and considered that he had failed to substantiate that , on the basis of the criminal accusations against him , he would risk persecution by the authorities upon return or that the authorities would not be able to protect him against harassment by the clans . As concerned the applicant ’s relationship to ORG , ORG referred to the main rule in LAW that an alien , who seeks a residence permit in GPE on account of family ties or a serious relationship , must have applied for and been granted such a permit before entering the country . Whilst noting that an exemption from this rule can be made if the alien has strong ties to a person who is resident in GPE and it can not reasonably be required that he or she travel to another country to submit an application there , ORG considered that it would not be unreasonable to require the applicant to file such an application from GPE in accordance with the main rule . As there were no other grounds on which to grant the applicant leave to remain in GPE , his application was rejected .

The applicant appealed to ORG ( Migrationsdomstolen ) , maintaining his claims and adding that the spelling of his name differed in the various documents because the transcriptions from LANGUAGE had been made by different persons . He had his passport but had been afraid to hand it over to ORG for fear of being returned to GPE . His relationship with ORG was serious ; they were married and lived together . It would also become known in GPE that he was homosexual if he were to apply for a residence permit from there , which would expose him to a real risk of persecution and ill - treatment . Moreover , he would not be able to apply for a residence permit from GPE since GPE had a consulate only in GPE . He submitted a copy of his passport , from which it appeared that he had been granted a GPE visa by ORG in GPE in DATE and that he had entered GPE on DATE . He also submitted a copy of a military card , copies of photographs of scars and CARDINAL warrants for his arrest .

During the oral hearing before ORG , the applicant claimed that there was a threat against him from the NORP authorities since he had worked for the military during the PERSON regime . Moreover , he added that it was not known in GPE that he was married to a man but he was certain that other NORP in GPE would spread that information to GPE , if he were to be sent there . In his view , it would also become known that he was homosexual if he had to apply for family reunion and be interviewed at FAC in GPE . He also presented his passport in original .

On DATE ORG rejected the appeal . It first found that the general situation in GPE was not severe enough to grant the applicant asylum without there being individual reasons for asylum . Turning to the applicant ’s individual reasons , the court noted that , since he had now submitted his passport , certain other documents provided could be linked to him . However , on examining these documents , the court found that the military card was for training and did not show that the applicant had later been employed by the military . The CARDINAL warrants for arrest were of a simple character and easy to fabricate . Moreover , CARDINAL of them did not contain any date and the applicant had not given any acceptable explanation of how he had obtained them . Turning to the photographs of the scars , the court considered that the fact that the applicant had had wounds which had left scars did not make probable that he would be ill - treated in the future . Thus , the court concluded that the documents did not show that the applicant was in need of international protection . Furthermore , the court found that the applicant was not credible , stressing that he had submitted his passport only at the oral hearing before the court and that he had deliberately given false statements before ORG concerning his passport , how he had travelled to GPE and the date of his arrival . He had also given contradictory statements concerning his knowledge of the possibilities of applying for asylum in GPE and the alleged threats against him in GPE . Thus , the court did not believe the applicant ’s asylum story .

NORP However , the court did not question that the applicant was homosexual but considered that he had failed to substantiate that there was a threat against him in GPE on account of this . In this connection , the court noted that , according to the applicant ’s own statements , it was not known in GPE that he was homosexual . Moreover , it took the view that it was unlikely that NORP in GPE who knew about the applicant ’s sexual orientation would be more willing to spread this information simply because the applicant was to return to GPE . The court also noted that the applicant had kept his passport in order to be able to return to GPE . In sum , it concluded that the applicant had failed to show that he would risk persecution or ill - treatment upon return to GPE . In so far as concerned his relationship with ORG , the court observed that all embassy personnel had an obligation to respect confidentiality and that there were no impediments for the applicant to apply for a residence permit from abroad . The fact that FAC was located in GPE did not alter this conclusion .

One lay judge gave a dissenting opinion and considered that it could not be ruled out that information about the applicant ’s sexual orientation might leak from an embassy .

The applicant made a further appeal to ORG ( Migrationsöverdomstolen ) which , on DATE , refused leave to appeal .

The applicant then requested ORG to reconsider his case , submitting that a NORP in GPE , who knew about his marriage , had travelled to GPE and , by chance , had met his brother and told him that he was married to another man . His uncle had later called him and threatened to kill him if he returned to GPE since he had shamed the family . He further claimed that friends of his in GPE had told him that CARDINAL homosexuals had been killed in GPE recently and that others had fled the country since they were being persecuted by unknown groups in GPE . He was convinced that he would face a real risk of being ill - treated or killed if returned and that it would not be possible for him to apply for family reunion from there without his sexual orientation becoming known .

On DATE ORG rejected the request for reconsideration . It found that there was no reason to depart from the main rule that an application for family reunion had to be lodged from abroad . The applicant ’s claim that his relatives had threatened him was not considered sufficient to constitute a permanent impediment to the enforcement of the expulsion order and thus there was no ground to reconsider the applicant ’s case .


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

Krzysztof Wojtyczek;Nona Tsotsoria;Vincent A. De Gaetano

The applicant was born in DATE and lives in GPE .

In DATE GPE ( ORG rajono savivaldybė ) assigned a plot of land measuring QUANTITY in the settlement of GPE to the applicant for the construction of a house ( hereinafter “ the land ” ) . In DATE she signed a land purchase agreement with the municipality and bought the land for CARDINAL “ single - use investment vouchers ” ( investiciniai čekiai ) . The purchase agreement indicated that the nominal value of the land was CARDINAL NORP litai ( ORG QUANTITY ( ORG ) ) . The applicant subsequently obtained a building permit and built a storehouse on the land .

On DATE ORG found that Government regulations which allowed land in GPE to be sold to private individuals were contrary to LAW ( see GPE v. GPE , no . CARDINAL/CARDINAL , § CARDINAL , DATE ) .

NORP In DATE ORG ( hereinafter “ the LAW ” ) brought a claim before ORG ( ORG rajono apylinkės teismas ) seeking the annulment of the administrative decisions and the purchase agreements on the basis of which plots of land had been sold to the applicant and to several other individuals . The ORG argued that the land in question had to be returned in natura to its former owners and thus had been sold to the applicant and other individuals unlawfully .

On DATE ORG allowed the ORG ’s claim . The court annulled the administrative decision of DATE assigning the land to the applicant and the land purchase agreement of DATE , and ordered GPE to return CARDINAL “ single - use investment vouchers ” to the applicant .

On DATE the ORG partially quashed the first - instance judgment . It found that the lower court had correctly annulled the administrative decision and purchase agreement , and upheld the judgment in that part . However , it noted that the “ single - use investment vouchers ” could no longer be used as a means of payment . Thus , in accordance with LAW , the applicant should have received the monetary equivalent of what she had paid in DATE . The court remitted that part of the case for re - examination in order to assess the monetary equivalent . On DATE ORG upheld ORG judgment .

The remitted part of the case was subsequently re - examined by ORG sitting as the court of first instance . During those proceedings , the applicant argued that the unlawful allocation and sale of the land had resulted from the State authorities’ negligence . The applicant claimed that she , as a bona fide purchaser , was therefore entitled to receive compensation for the full market value as it was at the time of expropriation , in accordance with LAW of LAW ( see paragraph CARDINAL below ) .

On DATE ORG dismissed the applicant ’s request for compensation equating to the full market value of the land . The court found that the authorities could not be held solely responsible for the unlawful sale because the applicant had also had a duty to verify whether she had been buying the land lawfully . Thus , the court held that , for the purposes of Article CARDINAL § CARDINAL of LAW , the applicant could not be considered a bona fide purchaser and was not entitled to compensation for the full market value . The court awarded her the nominal value of the land in DATE , which it assessed to be LTL MONEY ( EUR CARDINAL ) . The court also noted that if the applicant considered that she had suffered pecuniary damage , she had the right to institute separate proceedings against the ORG for damages .

On DATE ORG partially amended ORG judgment . It reiterated that the applicant could not be considered a bona fide purchaser merely because she had bought the land from the State – she had also had a duty to verify the lawfulness of the sale . However , ORG found that the lower court had incorrectly assessed the nominal value of the land in DATE . Referring to the text of the purchase agreement ( see paragraph CARDINAL above ) , the court awarded the applicant ORG CARDINAL,CARDINAL ( ORG CARDINAL ) .

On DATE ORG upheld the judgment of ORG ; however , it partially amended the reasoning . ORG stated that the nominal value of the land had been indicated in the purchase agreement , so it had not been necessary to apply LAW and assess the monetary equivalent . As a result , the applicant ’s good faith had been irrelevant in determining the amount of compensation and should not have been examined . Nonetheless , ORG considered that that error had not affected the lawfulness of ORG judgment .


CASE OF LUPENI GREEK CATHOLIC PARISH AND OTHERS v. ROMANIA

Remainder inadmissible (Article 35-3 - Manifestly ill-founded;Ratione materiae);No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);No violation of Article 14+6-1 - Prohibition of discrimination (Article 14 - Discrimination) (Article 6 - Right to a fair trial;Civil proceedings;Article 6-1 - Access to court);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

I. THE CIRCUMSTANCES OF THE CASE

The applicants belong to ORG ( Greek Catholic or ORG .

NORP The historical background to the case

NORP The legal framework governing the NORP parishes

Until DATE the NORP parishes owned various properties , including churches and adjacent land , parish houses and cemeteries .

ORG was dissolved by Legislative Decree no . GPE . By virtue of the same Legislative Decree , properties belonging to that ORG were transferred to the ORG , except for parish property . An inter - departmental committee with responsibility for determining the ultimate allocation of those properties never completed its task . NORP property was transferred to ORG under Decree no . ORG , which provided that if the majority of CARDINAL ORG ’s adherents became members of a different ORG , the former ’s property would be transferred to the ownership of the latter .

After DATE of the communist regime in DATE , Decree no . MONEY was repealed by Legislative Decree no . DATE . ORG was officially recognised by LAW no . CARDINAL/CARDINAL on certain measures concerning ORG with GPE ( ORG ) . LAW provided that the legal status of property that had belonged to the ORG parishes was to be determined by joint committees made up of representatives of both ORG and NORP clergy . In reaching their decisions , the committees were to take into account “ the wishes of the adherents of the communities in possession of these properties ” ( see paragraph CARDINAL below ) .

DATE no . CARDINAL/CARDINAL was supplemented by Government Order no . CARDINAL/CARDINAL of DATE and PERSON no . PERSON . The Decree , as amended , specified that in the event of disagreement between the members of the clergy representing the CARDINAL denominations on the joint committee , the party with an interest entitling it to bring judicial proceedings could do so under ordinary law ( see paragraph CARDINAL below ) .

NORP The legal situation of the applicants and of their church

NORP The applicant parish , diocese and archpriesthood were dissolved on the basis of LAW no . GPE . In DATE the church and the adjoining courtyard , which had belonged to the applicant parish , were entered in the land register as having been transferred to the ownership of the PERSON I Romanian Orthodox Church .

The applicant parish was legally re - established on CARDINAL DATE . It comes under the authority of ORG ( the second applicant ) and the PERSON NORP Catholic Archpriesthood ( the third applicant ) . The applicants took steps to have the church and adjoining courtyard returned to them .

B. The attempts by ORG and ORG to reach a friendly settlement

DATE Meetings of the joint committee

ORG and ORG convened meetings of a joint committee , composed of senior representatives of the CARDINAL denominations , with a view to determining the fate of the church buildings that had belonged to ORG . DATE the joint committee met on CARDINAL occasions . ORG party submitted a list of the churches claimed by it , including that of the applicant parish . It also proposed a friendly settlement , recommending that in those municipalities where there were CARDINAL church buildings , CARDINAL of them be restored , and that in municipalities where there existed CARDINAL church building but the CARDINAL denominations were present , religious services be organised on an alternate basis . The NORP side refused this proposal .

During the meetings , the representatives of the CARDINAL denominations noted that the dispute would be protracted and called for dialogue at local level and the construction of new church buildings for both denominations . At the final meeting the NORP side refused to return the properties and referred to the wishes of the majority of the adherents .

The applicant parish convened a meeting at local level with the NORP parish which held the property in issue , scheduling it for CARDINAL DATE . The NORP side did not attend , and nor did it attend a further meeting scheduled by the applicant party for DATE .

Meeting of the interested parties under the auspices of ORG

In the meantime , on DATE , at the initiative of ORG ( “ the Ministry ” ) , a meeting took place at the GPE headquarters of ORG under the title “ Fraternal Dialogue ” . At that meeting , the representatives of ORG had emphasised the importance of constructing new churches in order to resolve the problem . The ORG ’s plans to launch a church - building programme had been welcomed . ORG had asked the NORP side to provide it with a more detailed list of the places of worship claimed by that denomination .

According to the applicant parish , the NORP side had duly handed over the requested documents to the ORG , but the latter took no further action .

C. The judicial proceedings brought by the applicants

Previously , on DATE , the second applicant , namely FAC , citing also the other CARDINAL applicants , had brought proceedings before the domestic courts against ORG and the PERSON Orthodox Parish . It requested that the expropriation of the church building and cemetery in PERSON , carried out on the basis of Decree no . DATE , be set aside , and that the church be returned to the applicant parish .

By a judgment of DATE , ORG ( “ the county court ” ) declared the action inadmissible on the ground that the dispute ought to be settled through the special procedure established by LAW no . DATE , that is , by means of the joint committee .

An appeal against that judgment by the second applicant was dismissed by a judgment of ORG ( “ the appeal court ” ) on DATE , which held that the action was premature . On an appeal on points of law ( recurs ) by the applicant parish and the second applicant , ORG and ORG , in a final judgment of DATE , sent the case back to the same appeal court for a fresh examination of the merits .

On DATE , in application of the legislative amendments which gave the courts jurisdiction to rule on the merits of the cases ( see paragraph CARDINAL above ) , the appeal court upheld the second applicant ’s appeal and sent the case back to the county court .

On DATE , when the case was restored to the county court ’s list , the action was amended in order to add the applicant parish and the third applicant as claimants in the proceedings . On DATE the claimants supplemented their action with a claim for recovery of possession of the church building in question , on the basis of ordinary law .

NORP The county court asked ORG and NORP parties to organise a meeting in order to decide the fate of the church in question , and to inform it of the outcome of the negotiations by CARDINAL DATE .

On DATE a meeting was held between the representatives of the applicants , ORG and the PERSON . ORG refused to return the church , arguing that the majority of believers in the municipality were NORP . The applicant parish replied that the ownership of property was not related to the number of practising adherents in a congregation . The minutes of the meeting were transmitted to the county court , which continued its examination of the case .

By a judgment of DATE , the county court dismissed the applicants’ action on the ground that the PERSON NORP parish had become the legally recognised owner of the property in question by virtue of Decree no . MONEY . The applicants lodged an appeal . By a judgment of DATE , the appeal court set aside the judgment of CARDINAL DATE on formal grounds and remitted the case to the county court .

By a judgment of CARDINAL DATE , the county court found in favour of the applicants and ordered that the church be returned to the applicant parish . In comparing the title deeds of the parties to the dispute in respect of the property in question , the county court noted that ORG had been entered in the land register as owner of the property from DATE , and that in DATE ORG had entered its ownership right in the land register by virtue of Decree no . CARDINAL/CARDINAL . It held that the repealing of Decree no . CARDINAL/CARDINAL had had the effect in the present case of terminating the NORP party ’s right of ownership over the disputed property . It added that the applicant parish did not have a place of worship and that it was obliged to rely on ORG , which rented the parish its LOC for religious services .

NORP The NORP parish lodged an appeal against that judgment .

By a judgment of CARDINAL DATE , the appeal court allowed the appeal and dismissed the applicants’ action . It described how the proceedings had developed and noted that the case had been instituted by the second applicant in DATE and joined by the CARDINAL other applicants in DATE , after it was restored to the county court ’s list . On the basis of the evidence in the case file , it noted , firstly , that the church building being claimed and the CARDINAL PERSON parish houses had been constructed DATE by members of the LOC NORP and NORP churches and that , after its construction , the church building had been used alternately for services by both denominations . It noted that in DATE the members of ORG had been obliged to “ move ” to ORG and that the church building had become the property of ORG , which had maintained it and carried out improvements .

The court of appeal questioned CARDINAL witnesses , including CARDINAL NORP believers who stated that they no longer intended to return to ORG to which they had belonged prior to DATE . The third witness stated that she was one of the few NORP in PERSON . The appeal court noted that the statements by these witnesses supported the statistical data , which showed that there were more NORP than NORP adherents in PERSON .

It further held that the county court had carried out its comparison of the title deeds without taking into consideration the wishes of the majority of those currently in possession of the building , a criterion that , as the appeal court noted , had been laid down in LAW no . MONEY . In so far as there were more NORP adherents than NORP adherents in PERSON DATE taking account also of those who had converted and no longer wished to return to ORG DATE their wishes had to be taken into consideration in ruling on the case . It found that “ having regard to the social and historical realities , ignoring the wishes and proportional strength of NORP adherents , who are in the majority , in relation to the less numerous NORP Catholic worshippers , would be to contravene the stability and certainty of legal relations ” .

Lastly , the court of appeal noted that the fact that Decree no . GPE had been repealed did not automatically mean that ORG title to the building was set aside , and that this Decree had represented the law in force at the time that the ownership right was transferred . In consequence , it considered that , even if it had been granted unlawfully , ORG title had been valid from the date on which the transfer had been made , with the result that the action to recover possession was ill - founded .

The applicants lodged an appeal on points of law before ORG and ORG , alleging that the appellate court had incorrectly applied the legal provisions governing actions for recovery of possession . They emphasised that the right of ownership could not be linked to a religion ’s majority status , since ownership was , in their submission , a legal concept that was independent of the numerical strength and wishes of the parties .

In a final judgment of DATE , ORG and ORG dismissed the ORG appeal by a majority and upheld the appeal judgment . It held as follows :

“ With regard to a request for restoration of a place of worship which had belonged to ORG to GPE ( ORG ) , the appellate court correctly established the special legal framework for ruling on those claims .

Pursuant to Legislative Decree no . CARDINAL/CARDINAL ... a distinction is made CARDINAL situations : ( a ) that in which the property is within the ownership of the State ... ( b ) that in which the places of worship and the parishes have been taken over by ORG and in respect of which [ the question of ] restitution will be decided by a joint committee made up of representatives of the clergy of the CARDINAL denominations , a committee which will take account of the wishes of the adherents of the communities in possession of these properties .

In the light of those provisions , the appellate court , examining an action for recovery of possession of a place of worship , correctly applied the criterion of the wishes of the adherents ( NORP in the majority ) of the community in possession of the property , while simultaneously emphasising the unlawfulness of the reasoning provided by the first - instance court , which had merely compared the title deeds and ignored the special law ...

The fact of supplementing LAW no . CARDINAL/CARDINAL ] with a paragraph stating “ If the committee does not meet within the period established in its mandate , or if the committee does not reach a conclusion or if one of the parties is dissatisfied with the decision taken by the committee , the party which has an interest is entitled to bring judicial proceedings under ordinary law ” does not mean that actions for restitution governed by the special provisions are transformed into applications to establish title under ordinary law .

A court which is required to examine such an action can not ignore the special regulations in this area , which indicate the criterion to be taken into account in resolving such claims , namely the wishes of the adherents of the community in possession of the property .

In other words , by virtue of its full jurisdiction and in order not to compromise access to justice , a court may be called upon to decide an action on the merits , even though the prior procedure did not culminate in a decision by the joint clerical committee ; at the same time , however , it may not go beyond the limits imposed by the special statutory framework .

The priority to be given to the criterion of the ORG wishes was decided by the legislature , which wished in this way to regulate an area which concerns the buildings assigned to a particular use ( places of worship ) , [ and so ] the court was not authorised to criticise the law .

Moreover , in ruling on the alleged unconstitutionality of LAW no . MONEY and the criterion of the ORG wishes , ORG has stated that the text did not infringe the NORP State ’s principle of democracy , nor that of the freedom of religious denominations ( ORG decision no . FAC , ORG decision no . CARDINAL/CARDINAL ) .

Democracy “ also implies the application of the principle of majority rule , as set out in the final part of LAW the wishes of the adherents of the community in possession of these properties – which introduces a social criterion , that of the choice of the majority of the worshippers ” .

Equally , it has been established that “ the freedom of religious denominations implies not only their autonomy with regard to the ORG , but also freedom of religious belief ” ; where “ in the same parish there are NORP and NORP worshippers , the application of the social criterion – namely [ the wishes ] of the majority of parishioners – in deciding on the allocation of places of worship and parish houses is compatible with the democratic principle of determining the religious use of the said property , given that this is the wish of the majority of those who benefit from such use , because “ were it otherwise , this would mean that the NORP adherents , who are in the majority , would be unjustifiably prevented from practising their religion unless they transferred to ORG ” .

In addition , the procedures for regulating social relations and restoring the assets ( averi ) of the religious communities are a matter of legislative policy ( and not of judge - made law , which would attempt to settle such issues by judicial means , to the exclusion of the special law ) ; it can not be claimed that by introducing the criterion of the wishes of the faithful the [ special ] law failed to achieve its compensatory purpose .

The appellate court considers that – in a ORG subject to the rule of law – the fact that the ORG unlawfully dispossessed ORG of its places of worship in DATE can not be remedied by committing the opposite error , that is , in failing to take account of the wishes of the majority of worshippers at the point of adopting the given measure . However , returning the properties which belonged to ORG without respecting the criteria imposed by LAW no . DATE would infringe the stability and security of judicial relations . A right can not be reconstructed in abstracto , in disregard of social and historical realities , and mitigation for past damage must not create disproportionate new problems ...

In order to bring an action under ordinary law for recovery of possession without being subject to the special law , the applicants must be able to claim that there existed a “ possession ” or a right of ownership to their property .

However , through Decree no . GPE , ORG was outlawed and its assets were transferred to the ORG ; the building in dispute [ was ] registered as belonging to the PERSON I Romanian Orthodox Church .

The fact that , through Legislative Decree no . CARDINAL/CARDINAL , ORG to GPE ( NORP Catholic ) was officially recognised following the repeal of Decree no . CARDINAL/CARDINAL does not mean that its title to property was restored , in so far as the right of ownership is subject to a procedure ( namely the provisions of Legislative Decree no . CARDINAL/CARDINAL and its subsequent amendments ) , as the hope of obtaining title to property is not to be equated with a possession ...

Contrary to the arguments of the parties having lodged the appeal on points of law [ recurentilor ] , the solution adopted does not infringe the freedom to practice a religion , since , as they submitted in their own observations , “ the practice of religion is a private matter ” , which consists primarily in a “ strong and personal spiritual investment ” . At the same time , the legislature provided for the scenario where the places of worship could not be returned ; thus , LAW no . MONEY provides that “ in those municipalities where the number of places of worship is insufficient in relation to the number of believers , the ORG shall provide support for the construction of new churches ; for that purpose , it shall make available to those denominations the necessary land if the denomination does not possess it , and shall contribute to raising the necessary funds ” .

Thus , the ORG , as the authority with power to control life in society , will guarantee that the necessary conditions for the manifestation of religious beliefs are met without ... the exercise of this right being limited by the number of adherents ( a substantive limitation ) . The ORG ’s task here is to fulfil a positive obligation , so as to contribute to the effective exercise of the right to freedom of conscience and religion ... ”

In a separate opinion , CARDINAL of the judges sitting on the case noted that the legislature ’s reference to ordinary law could not be reduced to a purely procedural dimension , but was to be interpreted as the application of a rule of substantive law . Referring to the rules governing the preparation of statutes , the judge indicated that , if the legislature had wished to ascribe a specific meaning to this reference to “ ordinary law ” , it ought to have done so explicitly . He also cited Article QUANTITY no . DATE on religious freedom and the legal status of religious denominations , according to which property differences between denominations were to be resolved by friendly settlement and , where that proved impossible , on the basis of ordinary law . After indicating that an action for recovery of possession implied a comparison of the relevant titles to the property , the judge concluded that ORG did not have title to the place of worship in question .

D. Other information about the case

According to a memorandum provided by ORG , in DATE there were CARDINAL NORP adherents and CARDINAL NORP adherents in PERSON . The applicant parish is currently holding religious services at scheduled times in LOC rented by it from ORG in GPE .


Preliminary objection joined to merits and dismissed (Article 35-3-a - Ratione materiae);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Procedure prescribed by law);Violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review;Review of lawfulness of detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković

The applicant was born in DATE and lives in GPE .

On DATE the applicant was arrested on suspicion of trafficking illegal substances . On DATE an investigating judge of ORG ( Županijski sud u GPE ) heard his evidence and ordered his pre - trial detention under LAW ( CARDINAL ) of LAW ( risk of reoffending ) . The decision also stated that the detention could not exceed TIME .

On DATE another investigating judge of ORG summoned the applicant , who said that he would be remaining silent because he wanted to be represented by a lawyer , PERSON The judge issued a decision on opening an investigation against him and CARDINAL other suspects , ORG and ORG , on charges of trafficking illegal substances . He also ordered his detention for DATE , referring to LAW CARDINAL § CARDINAL ( CARDINAL ) of LAW . The applicant ’s detention was ordered because ORG had said that he had been buying illegal drugs from him . Furthermore , he was unemployed and another set of criminal proceedings on similar charges was pending against him . Following an appeal lodged by the applicant , on CARDINAL DATE the decision on his detention was upheld by a CARDINAL - judge panel of ORG .

On CARDINAL DATE the investigating judge ordered the applicant ’s immediate release because ORG had retracted his previous statement that he had been buying illegal drugs from him . Furthermore , the applicant had submitted documents showing that he had his own candle - making business . The applicant was released that DATE . However , following an appeal lodged by the GPE State Attorney ’s ORG ( GPE državno odvjetništvo u PERSON ) , on CARDINAL DATE a CARDINAL - judge panel of ORG quashed that investigating judge ’s decision and ordered him to re - examine the case .

On CARDINAL DATE the investigating judge confirmed his previous decision . On DATE the GPE State Attorney ’s ORG lodged an appeal , which was not communicated to the applicant or his counsel . It was argued that the risk of the applicant reoffending continued to exist for several reasons . Firstly , PERSON had given a detailed statement describing how he and ORG had been buying illegal drugs from the applicant , and the evidence showed that the applicant had had frequent telephone contact with PERSON and I.D. Furthermore , ORG ’s retraction of his previous statement had been unconvincing . Secondly , the applicant had already been convicted of a similar offence , and another set of criminal proceedings concerning charges of trafficking illegal substances were pending against him . Thirdly , the evidence indicated that the applicant had been suspected of selling illegal substances over a longer period of time . Fourthly , he was unemployed and had no lawful means of subsistence .

On DATE a CARDINAL - judge panel of ORG , composed of Judges PERSON , PERSON and PERSON , held a closed session in the parties’ absence . They reversed the investigating judge ’s decision and ordered the applicant ’s pre - trial detention under LAW ( CARDINAL ) of LAW . The decision did not set any time - limit for the detention .

On DATE the applicant was again placed in pre - trial detention .

On DATE he lodged an appeal with ORG against the decision of DATE . Judge PERSON , acting as a single judge of ORG , declared it inadmissible on DATE on the grounds that it was not amenable to further appeal . This decision was upheld on DATE by a CARDINAL - judge panel of the same court , composed of Judges PERSON , PERSON and GPE

On DATE the GPE State Attorney ’s Office indicted the applicant in ORG on charges of trafficking illegal substances .

On DATE a CARDINAL - judge panel of the court extended the applicant ’s detention under LAW ( CARDINAL ) of LAW . An appeal lodged by him against that decision was dismissed by ORG on DATE .

On DATE the applicant lodged CARDINAL constitutional complaints , about the decisions of DATE and DATE respectively ( see paragraphs CARDINAL above ) .

On DATE ORG ( Ustavni sud PERSON ) declared the constitutional complaint about the decision of DATE inadmissible , on the grounds that on DATE a new decision extending the applicant ’s detention had been adopted . It also declared his constitutional complaint about the decision of DATE inadmissible , endorsing the lower courts’ reasoning ( see paragraph CARDINAL above ) .

On DATE ORG dismissed the indictment against the applicant because the prosecutor had withdrawn the charges against him . On DATE ORG ordered his release .

On DATE the applicant submitted a request for settlement with ORG in connection with his wrongful detention . A settlement was not reached .

On DATE the applicant brought a claim in ORG against the ORG under LAW , seeking non - pecuniary and pecuniary damages for his detention , which he claimed had been unfounded ( neosnovan ) .

On DATE the court allowed the applicant ’s claim and awarded him CARDINAL NORP kunas ( HRK – CARDINAL ) in non - pecuniary damages . It held that his detention had been unfounded because a judgment dismissing the charges ( presuda kojom se optužba odbija ) had been adopted after the ORG Attorney ’s ORG had dropped the charges against him . The proceedings are still pending as regards the claim for pecuniary damages . The relevant part of the judgment reads :

“ The claimant ’s claim is well founded in its entirety .

The documents in the case file show that the claimant was finally acquitted of the charge [ sic ] that he had committed the criminal offence against the values protected by international law – abuse of illegal drugs , described and punishable under LAW of LAW in conjunction with CARDINAL of LAW ( Official Gazette no . CARDINAL/CARDINAL ) by ORG final judgment no . K-CARDINAL/CARDINAL - CARDINAL of DATE .

Further documents show that the claimant was actually detained in connection with the criminal proceedings against him for DATE .

ORG decision no . CARDINAL of CARDINAL DATE ( pages CARDINAL and CARDINAL of the case file ) shows that the claimant had already been finally convicted by ORG of the criminal offence of abuse of illegal drugs under LAW of LAW , that is to say for an offence of the same type but in its basic form .

Against the above background , this court considers that the claimant is to be awarded the amount of HRK CARDINAL for DATE he spent in detention , which in total amounts to HRK CARDINAL since the claimant was detained without basis for DATE .

When assessing the adequate amount of [ just ] satisfaction , the ORG has taken into account all the circumstances of this case : that the claimant was indicted for the criminal offence of abuse of illegal drugs , described and punishable under LAW ) of LAW in conjunction with CARDINAL of LAW ; was deprived of his personal liberty for DATE ; [ and ] that the proceedings ended by ORG judgment no . CARDINAL of DATE because GPE ORG had withdrawn the charges .

It is true that the claimant was previously convicted of the above - mentioned criminal offence . However , in the opinion of this court the sole fact that the claimant was previously convicted has no effect on the defendant ’s obligation to compensate him for his unfounded deprivation of liberty , or his detention . Therefore , since the defendant has not proved that the claimant caused his arrest by some unlawful act such as absconding or concealing evidence , this court considers that there was no contribution on his part to the ordering of his detention . ”


Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska

The applicant was born in DATE and lives in PERSON .

The applicant entered into a relationship with PERSON , an NORP national , and lived together with her in PERSON . Their daughter , who is an NORP and NORP national , was born in DATE . Under NORP law the applicant and PERSON had joint custody of her .

NORP The relationship between the applicant and PERSON deteriorated and the latter left the family home on DATE , taking their daughter with her .

The applicant applied to ORG ( tribunale per i minorenni di GPE ) for an award of sole custody of the child and asked the court to issue a travel ban prohibiting her from leaving GPE without his consent .

On DATE ORG issued a travel ban in respect of the applicant ’s daughter . On DATE the applicant learned that PERSON had left GPE with the child and had travelled to GPE , where she intended to take up residence .

On DATE ORG lifted the travel ban in respect of the applicant ’s daughter , granted preliminary joint custody of the child to both parents , and authorised her to reside with her mother in GPE , having regard to her young age and close relationship with her mother . It also appointed an expert who was entrusted with the task of collecting the necessary information for a final decision on custody . In addition , the court granted the applicant access rights twice a month in a neutral location , noting that the meetings should alternate between GPE and GPE and that the dates and arrangements should be agreed with the expert .

According to the applicant , PERSON brought their daughter to GPE only once . Visits took place in GPE , although PERSON did not facilitate their organisation . At DATE visits ceased , allegedly due to ORG obstructive behaviour . In a report of CARDINAL DATE the expert noted that she was not in a position to evaluate the applicant ’s ability to take care of his daughter .

According to the Government the applicant met his daughter CARDINAL times in GPE , where supervised visits took place DATE and DATE . Subsequently , he refused to travel to GPE without giving any reasons .

The applicant applied for assistance to secure his daughter ’s return under LAW . His application was forwarded via the respective central authorities in GPE and GPE to GPE ) , where proceedings began on DATE . Subsequently , the court appointed an expert .

On DATE , ORG dismissed the applicant ’s application for the return of the child under LAW . Referring to the expert ’s opinion and having regard to the very young age of the child , the court found that her return would constitute a grave risk for her within the meaning of LAW .

On DATE , ORG ( PERSON ) set aside that decision because the applicant had not been duly heard in the proceedings .

On DATE the Leoben ORG , having heard the applicant , again dismissed his application for his daughter ’s return , referring to ORG decision of DATE .

On DATE the ORG dismissed the applicant ’s appeal , finding that returning the child to him and her separation from her mother would entail a grave risk of psychological harm within the meaning of Article CARDINAL(b ) of LAW .

Meanwhile , in DATE PERSON brought proceedings before ORG , seeking an award of sole custody of the child .

On DATE ORG held that it had jurisdiction with regard to custody , access and maintenance issues in respect of the child by virtue of Article PERSON ) of ORG Regulation CARDINAL/CARDINAL of CARDINAL DATE concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility ( “ ORG ” ) .

On DATE the same court made a preliminary award of sole custody to PERSON , referring to the child ’s close links with GPE and the risk of danger to her well - being upon a possible return to GPE .

On DATE ORG awarded PERSON sole custody of the child .

In the meantime , on DATE the applicant made an application to ORG for his daughter ’s return under LAW .

NORP In a judgment of DATE ORG , having held a hearing , ordered the child ’s return to GPE . The child would live with her mother , should the latter decide to return to GPE with her . In that event the PERSON GPE social services department was required to provide them with accommodation . In addition , a programme for the exercise of the applicant ’s access rights would have to be established . If the child ’s mother did not wish to return to GPE , the child was to reside with the applicant .

ORG found that it remained competent to deal with the case , as ORG had wrongly determined its jurisdiction under LAW ) of ORG . It noted that its previous decision of DATE had been designed as a temporary measure in order to re - establish contact between the applicant and his daughter through access rights and to obtain a basis for an expert opinion for the decision on custody of the child . However , the child ’s mother had failed to co - operate with the appointed expert and had refused a programme of access rights for the applicant prepared by the expert . The latter had stated in her preliminary opinion that she was not in a position to answer all questions relating to the child ’s best interests in a satisfactory manner .

On DATE ORG issued a certificate of enforceability under LAW of ORG .

On DATE the applicant sought the enforcement of ORG judgment of DATE . He was represented by counsel in these and all subsequent proceedings .

On DATE the ORG dismissed the applicant ’s request for enforcement of ORG order to return the child . It noted that the child ’s mother was not willing to return to GPE with her . However , the child ’s return without her mother would constitute a grave risk for her within the meaning of Article CARDINAL(b ) of LAW .

On DATE the NORP ORG quashed that decision and granted the applicant ’s request for enforcement .

The Leoben Regional Court noted that under LAW a judgment refusing return under LAW was irrelevant where the court which was competent pursuant to ORG had ordered the child ’s return in a subsequent judgment . It confirmed that ORG had been competent to issue the judgment of DATE , as ORG had unlawfully removed the child from GPE and the applicant had immediately requested her return . Moreover , the applicant had submitted a certificate of enforceability under LAW of ORG in respect of the judgment at issue . The NORP courts therefore had to recognise the judgment and to enforce it . They were not to establish anew whether the child ’s return would be contrary to her best interests . In any event , there was no indication that the circumstances had changed since ORG had given its judgment . It was for the court of first instance to order appropriate measures of enforcement .

D.P. lodged an appeal on points of law with ORG ( Oberster Gerichtshof ) on DATE .

On DATE ORG requested a preliminary ruling by ORG of ORG ( CJEU ) , submitting a number of questions concerning the application of ORG .

On DATE , the ORG issued a preliminary ruling ( C-CARDINAL/CARDINAL ORG ) confirming the jurisdiction of the NORP courts in the case and the enforceability of ORG judgment of DATE . It found , in particular , that :

( CARDINAL ) a provisional measure [ such as the CARDINAL issued by ORG in DATE ] did not constitute a ‘ judgment on custody that does not entail the return of the child’ within the meaning of Article CARDINAL(b ) subparagraph ( iv ) of ORG and could not be the basis of a transfer of jurisdiction to the courts of the Member ORG to which the child had been unlawfully removed ;

( CARDINAL ) Article CARDINAL ) of the ORG applied to a judgment of the court with jurisdiction ordering the return of the child , even if it was not preceded by a final judgment of that court relating to custody of the child ;

( CARDINAL ) Article CARDINAL ) subparagraph ( CARDINAL ) of the ORG had to be interpreted as meaning that a judgment delivered subsequently by a court of the Member ORG of enforcement which made a provisional award of custody could not preclude enforcement of a certified judgment previously delivered by the court which had jurisdiction in the Member ORG of origin and had ordered the return of the child ; and

( CARDINAL ) enforcement of a certified judgment [ ordering the child ’s return ] could not be refused by the Member State of enforcement because , as a result of a subsequent change of circumstances , it might be seriously detrimental to the best interests of the child . Such a change had to be pleaded before the court which had jurisdiction in the Member ORG of origin , which also had to hear any application to suspend the enforcement of its judgment .

On DATE ORG dismissed PERSON ’s appeal on points of law . It noted that according to the ORG ’s ruling the NORP courts’ only task was to take the necessary steps for the enforcement of the return order , without proceeding to conduct any review of the merits of the decision . If PERSON asserted that the circumstances had changed since ORG had given its judgment , she had to apply to that court , which would also be competent to grant such an application suspensive effect .

ORG noted that it was now for the first - instance court to enforce ORG judgment . In doing so , it had to take into account the fact that ORG had in the first place envisaged that the child should reside with her mother upon her return to GPE and had ordered the PERSON GPE social services department to make accommodation available for them . The first - instance court would therefore have to ask the applicant to submit appropriate evidence , in particular confirmation from ORG or PERSON municipal council , that accommodation was indeed available . The first - instance court would then have to order the mother to return with the child within DATE . Should she fail to comply within that time - limit , the first - instance court would , upon the applicant ’s request , have to order coercive measures for the child ’s return , while still giving the mother the opportunity to avoid such drastic measures by voluntarily returning to GPE with the child .

On DATE ORG refused to grant an application by PERSON for the enforcement of its judgment of DATE to be stayed . Referring to that decision , the applicant asked the NORP ORG to order his daughter ’s return to GPE .

The applicant claimed that he had offered to make accommodation ( apparently a flat belonging to him ) available to ORG and his daughter , but that ORG had found that this did not fulfil the conditions set by ORG in its judgment of DATE .

On DATE the ORG asked the applicant to submit evidence that appropriate accommodation would be made available to his daughter and her mother by the PERSON GPE social services department , as required by ORG judgment of DATE .

By letter of CARDINAL DATE the NORP ORG of Justice , as ORG , informed its NORP counterpart accordingly and also noted that to date the condition had not been complied with . A similar letter was sent to ORG on CARDINAL DATE . CARDINAL further letters with similar content were sent to ORG prior to DATE .

By a judgment of CARDINAL DATE ORG withdrew ORG custody rights and awarded the applicant sole custody of the child . It further ordered the child ’s return to GPE to reside with the applicant in PERSON . The court ordered the PERSON GPE social services department DATE if need be in co - operation with the neuropsychiatry department of the local health authority – to ensure that contact between the child and her mother was maintained and to give the child linguistic and educational support in order to assist her integration into her new family and social environment .

ORG referred to its decision of DATE , which had been aimed at preserving the child ’s relationship with her mother while re - establishing contact with the applicant , noting that such attempts had failed owing to a lack of co - operation from the mother . It had therefore ordered the child ’s return to GPE in its judgment of DATE . It further considered that PERSON had unlawfully removed the child to GPE and had subsequently deprived her of contact with the applicant without good reason . She had thus acted contrary to the child ’s best interests . It therefore found that sole custody was to be awarded to the applicant . Given that to date any attempts to establish contact step by step had failed , his daughter was to reside with him immediately . The court noted that this would entail a difficult transition for her , but considered that the damage caused by growing up without her father would weigh even heavier . The court considered that the social services department would have to give the child educational and linguistic support to help her settle in her new family and social environment and to maintain contact with her mother . Finally , the court considered that the child ’s return would not entail any grave risk of psychological or physical harm within the meaning of LAW of ORG , which in turn referred to LAW .

D.P. did not appeal against this judgment .

On DATE the applicant notified the NORP ORG of ORG ’s judgment of DATE . He also submitted a certificate of enforceability under LAW of ORG .

On CARDINAL DATE ORG dismissed the applicant ’s request for enforcement of ORG order for the child ’s return . Referring to ORG decision of DATE , it considered that he had failed to submit proof that appropriate accommodation would be made available for the child and her mother upon their return .

The applicant appealed . He submitted , in particular , that ORG judgment of DATE had granted him sole custody of the child and had ordered her return to GPE , where she was to reside with him .

On DATE the ORG granted the applicant ’s appeal and ordered PERSON to hand the child over to the applicant within DATE , noting that enforcement measures would be taken in case of failure to comply .

ORG found that the condition that appropriate accommodation be made available to the child and the mother was no longer valid : in its judgment of CARDINAL DATE ORG had awarded sole custody of the child to the applicant and had ordered that she return to reside with him . The applicant had submitted that judgment together with a certificate of enforceability under LAW of ORG . The mother ’s obligation to return the child to the applicant thus resulted directly from ORG judgment of DATE . Finally , ORG noted that the award of custody made by ORG on DATE could not prevent the enforcement of ORG judgment . The latter had retained its competence to rule on custody matters , as PERSON had unlawfully removed the child to GPE and the applicant had made a timely request for her return under LAW .

D.P. did not comply with the return order . She lodged an extraordinary appeal on points of law with ORG .

DATE . On DATE ORG rejected PERSON ’s extraordinary appeal on points of law , as the case did not raise an important legal issue . It noted that the return order had become final and was enforceable . The first - instance court now had no other task than to define the steps to be taken to enforce the return order . The ORG had clarified that where there was a certificate of enforceability under LAW , the requested court had to proceed with the enforcement of the main judgment . Any questions relating to the merits of the return decision , in particular the question whether the requirements for ordering a return had been met , had to be raised before the courts of the requesting ORG in accordance with the laws of that ORG . Consequently , any change in circumstances affecting the issue of whether a return would endanger the child ’s well - being had to be raised before the competent court of the requesting ORG . PERSON ’s argument that the child ’s return would lead to serious harm for her and entail a violation of LAW was therefore not relevant in the proceedings before the NORP courts , but rather had to be raised before the competent NORP courts .

On DATE the Leoben ORG held that it was not competent to conduct the enforcement proceedings and transferred the case to ORG , apparently on account of a change of residence by PERSON and the child .

On DATE the Wiener ORG issued a decision on the next steps to be taken in the enforcement proceedings . The judge noted , in particular , that a continuation of the path chosen by both parents , namely the use of the child in the conflict between them , would lead to the child being traumatised , especially if the GPE unbending position eventually led to an enforcement of the return order by coercive measures as a last resort . He noted that the best interests of the child required the parents to reach a workable compromise . The judge therefore proposed that a hearing in the presence of both parents be held in order to seek a constructive solution . Accordingly , he asked both parents to indicate within DATE whether they were ready to take part in the proposed hearing . The judge further noted that if the parents were not willing to take part in the hearing , the enforced return of the child would be arranged . In this connection , the judge stated that any trauma suffered by the child because of such enforcement would then have to be laid at the door of the parents . Moreover , the applicant would be required to find a way to deal with the trauma caused to the child .

On DATE the applicant informed GPE that he was not ready to take part in a hearing with the child ’s mother , but wanted to arrange the return of the child with the least traumatic impact possible . He therefore suggested that he come to GPE with his parents to pick up the child or , alternatively , that PERSON travel to GPE with the child to hand her over . He therefore asked PERSON to either set a pick - up date in GPE or to inform him of a date when she would bring the child to GPE .

On DATE PERSON informed ORG that she was ready to take part in the proposed hearing . She also informed the court that she had appealed against the decision which had transferred the case from ORG to GPE . Consequently , the decision establishing the latter court ’s competence had not become final . She therefore asked the court to await the decision on her appeal before taking any further steps .

In the related case brought before ORG by the mother of the child ( GPE v. GPE ( dec . ) , no . CARDINAL , DATE ) , the ORG granted a request for interim measures on DATE . It asked the Government to stay the child ’s return to GPE . Having obtained information from the NORP and NORP ORG and from the applicants , the ORG lifted the interim measure on DATE .

On DATE the applicant ’s counsel requested that the enforcement proceedings be continued .

On DATE the Wiener ORG decided to continue the enforcement proceedings and , on DATE , requested that the parties submit their views within DATE in order to reach a comprehensive solution for the benefit of the child . According to the Government , the applicant refused to contribute to that process .

In a decision of CARDINAL DATE the Wiener ORG ordered GPE to hand over the child to the applicant by DATE and stated that in case of failure to comply coercive measures would be applied . ORG noted that it was for PERSON to choose whether she would accompany her daughter to GPE or whether she would set a date within that timeframe for the applicant to pick up the child in GPE . Furthermore , ORG , referring to ORG judgment of CARDINAL DATE , repeated that it was for the NORP courts to examine any issues relating to the child ’s well - being . It noted finally that the deadline for handing over the child had been set in such a way as to allow her to finish DATE in GPE .

As PERSON did not comply with the order to hand over the child , an attempt to enforce it by means of coercive measures was made in TIME of DATE without prior notice . The attempt , in which the judge , trained bailiffs and police officers participated , was unsuccessful , as PERSON and the child were not present at their place of residence . The applicant had been informed of the planned enforcement and was present .

On DATE PERSON asked ORG to stay the enforcement of its judgment of DATE . Furthermore , she sought an award of sole custody in her favour . She alleged that she had not been adequately heard in the initial proceedings . Furthermore , she asserted that there had been a change of circumstances , in that her daughter was fully integrated into her living environment in GPE and had formed bonds with ORG family , consisting of her mother , the latter ’s partner and her younger CARDINAL - brother . There had been no contact between father and child for a lengthy period and the child had no knowledge of NORP . PERSON submitted an expert opinion , according to which the child ’s return to her father through the use of coercive measures would cause serious harm to the child .

On DATE the Wiener ORG dismissed PERSON ’s application for a stay of enforcement , but decided to provisionally refrain from returning the child until ORG gave a decision on PERSON ’s action before it .

In his observations of CARDINAL DATE the applicant claimed that he had not yet been duly notified of the fresh proceedings before ORG . The Government , in their submissions of DATE , stated that the proceedings were pending before the NORP courts and that the parties had been notified of the dates of hearings . Moreover , the ORG submitted that the applicant had not taken advantage of numerous opportunities to re - establish communication between himself and his daughter .

According to information provided by the applicant in a letter of CARDINAL DATE , ORG held hearings in DATE in the presence of both parents and fixed a series of meetings between the applicant and his daughter . A number of meetings took place DATE at intervals of DATE in GPE and then in DATE in GPE . The mother of the child was present at the meetings and on some occasions also her partner . The applicant alleges that on CARDINAL occasions the mother ’s partner threatened him and disrupted the meetings . According to the applicant meetings which had been scheduled for DATE and DATE did not take place as the mother refused to bring the child to GPE . ORG held a further hearing on DATE and scheduled further meetings in GPE between the applicant and his daughter for DATE and DATE . The proceedings before the NORP courts are still pending .


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)

Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström

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

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

On DATE the applicant and her family members instituted proceedings before ORG ( PERSON ) in ORG , seeking division of their joint property .

On CARDINAL DATE ORG in ORG discontinued these proceedings and instructed the parties to initiate a separate civil case given a number of contentious issues .

On DATE the applicant ’s cousins brought a claim against the applicant and her parents before ORG in ORG . On DATE , the cousins lodged an additional claim concerning the same matter . Both claims were subsequently joined and examined in the same civil proceedings .

On DATE ORG in ORG ruled against the applicant and her parents .

On DATE ORG ( PERSON ) in GPE upheld this judgment on appeal . The judgment , thereby , became final . It was served on the applicant on DATE .

On DATE the applicant lodged an appeal on points of law ( revizija ) with ORG .

This appeal was misplaced until DATE , when the applicant ’s lawyers intervened and urged the authorities to find it . On DATE the applicant amended her appeal on points of law .

On DATE ORG rejected the applicant ’s appeal on points of law as unfounded . This decision was served on the applicant on DATE .


CASE OF GARETH TAYLOR v. THE UNITED KINGDOM

No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention)

Krzysztof Wojtyczek;Nona Tsotsoria;Paul Mahoney

The applicant was born in DATE and is currently in detention at GPE GPE .

He was convicted of offences of sexual activity with a child and breach of a Sexual Offences Prevention Order . In DATE he received an indeterminate sentence for public protection ( “ ORG sentence ” ) . A minimum term ( “ tariff ” ) of DATE was fixed .

He was initially detained at ORG and was transferred to GPE GPE in DATE . DATE he incurred CARDINAL adjudications for failure to obey or comply with orders and regulations and CARDINAL adjudication for destroying property . He also underwent assessment of his suitability for a sex offender treatment programme .

On DATE the applicant was informed of his suitability for the adapted LAW ( “ adapted NORP ” ) . As this was not offered at GPE it was recommended that he transfer to a suitable establishment .

On DATE the applicant wrote to ORG ( “ ORG ” ) seeking a transfer to another prison to undertake the adapted ORG . By letter dated DATE ORG replied :

“ I have DATE spoken to your offender supervisor ... I have asked him to try and speed up a transfer for you so that you can at least undertake the adapted ORG , which you should be suitable for . He says that the only CAT B prison that does this is ORG , but he will try and get you transferred there to do it if possible . ”

The applicant subsequently complained to GPE on various dates about the failure to transfer him . He was informed that a suitable establishment was being sought .

On DATE the applicant completed the Enhanced Thinking Skills ( “ ORG ” ) course .

NORP In around DATE the applicant ’s tariff expired .

In DATE a ORG took place . ORG decided on the papers that the applicant should remain in detention . ORG noted that the applicant had completed the ORG course and would be assessed for , and if found suitable , complete a sex offenders treatment programme .

Subsequent correspondence with ORG refers to long prison waiting lists for access to the adapted ORG and delays in processing applications for prison transfer .

NORP By letter dated CARDINAL September CARDINAL the Secretary of ORG informed the applicant that he agreed with ORG DATE recommendation . He indicated that the applicant was to be assessed for and complete the adapted ORG . A provisional hearing before ORG was fixed for DATE .

Meanwhile , the applicant was again assessed for suitability for a sex offenders treatment programme . By letter dated DATE he was informed that he would be most likely to benefit from the Becoming New Me course ( “ SOTP BNM ” ) , the replacement for the adapted SOTP .

On DATE the applicant was transferred to GPE .

On DATE a ORG review took place .

On DATE ORG notified the applicant of its decision not to direct his release or to recommend his transfer to open conditions . It observed that since his last review the applicant had undertaken training courses in assertiveness skills , understanding the cause of conflict / domestic violence , understanding the boundaries of respectability in relation to children , alcohol awareness and unlocking financial capability . It noted the positive change in his attitude but considered that his risk remained high . It confirmed that he would be required to complete the adapted ORG prior to release . It concluded :

“ [ We ] shared your concern at the fact you have so far been unsuccessful in your attempts to secure a referral to the courses identified as targets on your sentence plan and that furthermore you have recently been moved to a prison that does not run these programmes . However , prisoner location is an operational matter which sits outside of ORG remit and is for the prison service and your offender manager to resolve . What does this mean however , is that you remain an untreated sex offender who is unable to demonstrate that the risk you pose has reduced sufficiently to be manageable in the community . ”

NORP By letter dated DATE , the Secretary of ORG agreed with ORG recommendation . He referred to the need to complete the ORG BNM . The applicant ’s review period was set at DATE consisting of :

“ DATE transfer and settling in period in a new establishment

DATE assessment for the Becoming New Me programme

DATE to complete the Becoming New programme

DATE to complete the post Becoming New Me programme report ( SARN ) . ”

The next parole review was therefore scheduled to commence in DATE with the target date for the oral hearing being DATE .

On DATE the applicant was transferred to ORG on his own request on compassionate grounds to be closer to his father , who was unwell . He subsequently asked to remain at ORG and to be given a place on the ORG BNM course scheduled to commence in DATE . As that course was already full , the applicant was informed that he could , if he wished , await the next course to be delivered at ORG in DATE , for which he would be a priority .

On DATE the applicant ’s representatives wrote to the Governor of GPE and ORG notifying them that judicial review proceedings were being contemplated against them and the Secretary of ORG . They sought confirmation that the ORG BNM course would be made available to the applicant .

NORP By letter dated DATE PERSON replied in the following terms :

“ I acknowledge that your client ’s initial transfer to ORG was on compassionate grounds ... The fact that Mr PERSON elected not to return to GPE is a factor that must be considered when determining whether or not his progress through the prison service has been slow ... Although , I would argue that the prompt intervention of his newly appointed PERSON and the attempts he made to source a suitable course at ORG would indicate that ORG were not at fault for any delays to your client ’s progress .

Your client is known to our Programmes team , is in the assessment process and his post tariff status will ensure that he is prioritised accordingly for the next GPE courses which should be delivered from DATE . ”

NORP The prison offered to facilitate a transfer to another prison where the applicant might be able to access the SOTP BNM more speedily . He chose to remain at ORG to await a place on the SOTP BNM there .

On DATE a ORG review took place on the papers . ORG decided not to direct the applicant ’s release or recommend his transfer to open conditions . It concluded :

“ You committed serious index offending , which targeted a vulnerable victim ... The panel was also concerned that , at a young age , you already had a conviction record that included previous violent and sexual offending against vulnerable female victims . It is to your credit that you have some understanding of the risk you pose , and that you are motivated to undertake work to address your sexual offending behaviour . However , you have yet to undertake this work . The panel is also concerned that you have a history of breaching trust and reoffending despite measures being put in place to contain your risk ... ”

NORP By letter dated DATE the Secretary of ORG indicated that he agreed with the ORG recommendation . He confirmed the ORG BNM as an appropriate course to reduce the applicant ’s risk of reoffending . The next review was scheduled to commence in DATE and to be concluded by DATE .

The applicant commenced the ORG BNM as planned on DATE and completed it on DATE .

A further ORG review took place on DATE . ORG decided not to direct the applicant ’s release , but recommended his transfer to open conditions .