Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention)

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

NORP The applicant claims to have entered GPE illegally on DATE with her son ( “ S ” ) , who was born on DATE . On DATE was admitted to hospital with serious injuries .

On DATE became the subject of an interim care order and the applicant was later charged with child cruelty under LAW and with Grievous Bodily Harm with intent .

On DATE the applicant claimed asylum on the basis that if returned to GPE she would be killed by the wife of a man who , she alleged , had sexually assaulted her . Her application was rejected by the Secretary of ORG for ORG on DATE .

On DATE the applicant was diagnosed with a psychotic illness and detained in hospital for DATE .

In DATE ORG dismissed the applicant ’s appeal against the refusal of her asylum claim on asylum and human rights grounds , finding , inter alia , that she was not a credible witness .

On DATE the applicant pleaded guilty to CARDINAL count of child cruelty . She was granted bail pending a further hearing set for DATE . She then absconded for a period of over DATE .

In DATE a residence order was made in favour of LOC ’s father and the child was returned to GPE .

On DATE the applicant gave birth to her second child ( “ M ” ) , who had a different father to S.

On DATE the applicant was arrested and charged with possession of false documentation with intent to commit fraud . She was convicted and on DATE she was sentenced to CARDINAL months’ imprisonment .

On DATE the applicant was convicted of child cruelty . Before sentencing the applicant for the offence of child cruelty , ORG asked PERSON , a specialist registrar in forensic psychiatry , to produce a report . The report , which was dated DATE , indicated that the applicant suffered from a recurrent depressive disorder and emotionally unstable personality disorder . However , at the date of the report her depressive and psychotic symptoms were being managed with medication and therapy , with the result that her mental illness was not considered to be of a nature or degree to warrant treatment either in the prison healthcare wing or in hospital . She did not , therefore , fulfil the criteria for treatment under LAW DATE ( “ the DATE LAW ) .

On DATE the applicant was sentenced to CARDINAL months’ imprisonment for the offence of child cruelty . She also pleaded guilty to the offence of failure to surrender to bail and was sentenced to CARDINAL months’ imprisonment , to be served concurrently . The judge recommended deportation in view of the seriousness of the offences .

On DATE ORG decided to deport the applicant . She therefore remained in detention under immigration powers when her criminal sentence ended on DATE .

On DATE the applicant appealed against the decision to deport her . In her notice of appeal she reiterated her claim that she was at risk of being killed in GPE and that she had no family connections there . As M had been taken into the care of the local authority and was the subject of care proceedings , she also asserted a right to remain in GPE until those proceedings had concluded .

On DATE ORG dismissed her appeal but found that it would be proportionate to allow her to remain in GPE for the short period that it would take to complete the care proceedings in respect of M.

The applicant was refused bail on DATE and again on DATE on the grounds that she could not be relied on to comply with bail conditions , she offered no sureties and she represented a danger to herself and to others .

On DATE the applicant obtained a report from Professor K , a medical expert , on her mental health . He agreed with the diagnosis of Dr O and concluded that the applicant was not suitable for compulsory treatment under LAW as she was not in need of in - patient psychiatric care and her mental health needs could be met in the community . She was taking medication and if necessary could be admitted to hospital on a voluntary basis . Professor K did , however , note that the applicant ’s mental health was likely to deteriorate in response to continued detention , although it should improve in response to release in the community .

Bail was again refused by the authorities on DATE in view of the risk of the applicant once again absconding .

On DATE the applicant made representations requesting that the decision to deport be reversed or , alternatively , that the representations be treated as a fresh asylum claim pursuant to the relevant immigration rules . In these representations the applicant claimed that she faced a real risk of treatment contrary to Articles CARDINAL and CARDINAL of the Convention if she were deported to GPE due to her mental health status and the poor standard of treatment facilities in the destination country . Additionally , the applicant claimed that her family life with M would be irrevocably disrupted .

On DATE a judge in ORG made a care and placement order in respect of PERSON In concluding that the threshold criteria were met , he stated that :

“ I am satisfied the evidence supports a finding of likelihood , that is to say a real possibility , of harm to [ M ] , founded on [ S ’s ] grave injuries ; the previous court ’s findings in respect of those ; the mother ’s mental history ; her plea to a seriously abusive offence against [ S ] ; her absenting herself from the care and the criminal processes ; the social and practical vulnerability produced by the parties’ lack of immigration status ; and their criminal offending , with its practical consequences for their availability to [ M ] . I am satisfied the matters I have outlined placed [ M ] , at the relevant time , at significant risk of physical and emotional harm . ”

Following the decision of ORG , on DATE Professor K prepared a further report . He noted that the applicant ’s mental state had deteriorated considerably since he last saw her as she was more depressed and more floridly psychotic . She was also experiencing sideeffects from the medication she was taking . DATE and DATE she had fought with another detainee , sustained injuries while being restrained , ingested washing powder , attempted to tie a ligature around her neck , stolen food from other detainees and smashed things in her room . Professor K considered that the deterioration in her mental health was largely due to her continued immigration detention . He expressed the opinion that the applicant would now benefit from hospital assessment and treatment and recommended her transfer under the provisions of section QUANTITY of the CARDINAL Act .

On DATE Professor K gave an opinion that the applicant was not fit to act as a litigant . He reiterated that she should be transferred to hospital under section CARDINAL LAW . However , a transfer to a mental health hospital required the agreement of CARDINAL clinicians responsible for a patient ’s care . The applicant was not transferred as there was no agreement about whether she fulfilled the relevant criteria .

On DATE the GPE authorities contacted the responsible clinicians to request another mental health assessment of the applicant . However , the clinicians indicated that a further assessment was unnecessary as she had had CARDINAL assessments already . The applicant was seen by the General Practitioner in ORG , who was satisfied that the medication being prescribed was best suited to her mental health situation and confirmed that there was no merit in arranging a further psychiatric assessment .

On DATE , following what ORG described as a “ lengthy delay ” the Secretary of ORG refused to treat the applicant ’s representations as a fresh claim for asylum . Further similar representations led to a further decision on DATE in which the Secretary of ORG maintained that the conditions for a fresh claim were not met .

On DATE the applicant lodged a judicial review claim challenging the lawfulness of her detention and the failure to transfer her to a mental hospital for compulsory treatment . She then added a further challenge to the refusal to treat her representations as a fresh claim for asylum . She was represented in these proceedings by ORG as she lacked capacity to conduct the litigation on her own behalf .

In or around DATE the applicant was admitted to ORG of a hospital after attempting suicide .

Around this time Professor K examined the applicant once more and produced a report dated DATE . He noted that her condition had deteriorated due to her continued detention ; she was more depressed , was describing mood - congruent auditory hallucinations , and continued to make multiple attempts to self - harm . He once again expressed the view that she should be transferred to hospital for compulsory treatment under LAW of LAW .

While the applicant was in hospital she was examined by a nurse . She assessed the applicant ’s risk of harming children as grade CARDINAL on a scale of CARDINAL to CARDINAL . She was also at a risk of suicide , deliberate self - harm and other offending behaviour at grade CARDINAL . This gave the applicant a summary risk to herself of CARDINAL and to others of CARDINAL . Although the nurse noted that the applicant ’s mood had improved since DATE , she still considered that she had ongoing and enduring mental health problems and that her needs could not adequately be met in PERSON ’s ORG .

The applicant was readmitted to ORG on DATE , following a further attempt to self - harm .

On DATE the applicant was assessed by Dr R , a consultant psychiatrist , PERSON , Acting Consultant for ORG , and Dr I of General Adult Psychiatry . They noted that she displayed a tendency to act impulsively and without consideration of the consequences . She also had a tendency to self - harm and exhibited behaviour which could be interpreted as suicidal . Furthermore , they considered her to be in an extremely stressful situation , given her detention and the ongoing care proceedings . In view of these considerations , they concluded that the applicant remained at very high risk due to her impulsivity and unpredictability . Although that risk could only be contained by constant supervision , this need could be met at PERSON ’s ORG Hospital admission would not provide management different to that .

The applicant was accordingly discharged back to PERSON ’s PERSON .

On DATE Professor K considered Dr R ’s report along with other materials . He agreed that the applicant was at high risk of suicide , but considered that this required not only constant supervision but also treatment of the underlying problem , which would be more appropriately managed therapeutically in a hospital setting . He further noted that other doctors had recommended psychological intervention in a secure in - patient setting .

NORP Throughout the applicant ’s detention , DATE detention reviews were carried out . During these reviews any change in circumstances was recorded , the likelihood of removal within a reasonable time was considered , and a proposal was made with regard to whether detention should be maintained .

Permission for the applicant ’s first judicial review challenge was granted on DATE and the hearing took place on CARDINAL and DATE .

On DATE the judicial review application was dismissed by a ORG judge , who found that while the Secretary of ORG had failed to take into account paragraph CARDINAL of her own policy , ORG and Guidance ( see paragraphs DATE below ) , when considering the justification for the applicant ’s detention DATE and DATE ( “ the first period of detention ” ) , that failure had not caused any damage since the decision to detain would have been the same even had the policy been correctly considered and applied . The judge therefore dismissed the claim for false imprisonment .

The judge found that the policy had been taken into account from CARDINAL DATE up to the date of the hearing on DATE ( “ the second period of detention ” ) . He therefore found that continuing detention was lawful during this second period . The judge also rejected submissions that the period of detention had become unreasonable and unlawful under the principles set out in R v. Governor of ORG , ex parte ORG PERSON [ DATE ] CARDINAL WLR CARDINAL ( “ the ORG PERSON principles ” ) ( see paragraph DATE below ) . In this regard , he noted that , taking an analytical approach to each of the periods of detention following DATE , the applicant ’s detention was explicable by steps she had taken , or failed to take ( for example , cooperation in relation to emergency travel documents , and the conflicting advice in the hands of the authorities as to the effect of detention on her mental condition and the possibility of treating it while in detention ) . In relation to the applicant ’s own conduct , the judge noted that :

“ It is clear from the ORG PERSON principles that obstacles to the Claimant ’s removal caused by the Claimant ’s conduct do not count in the formula . The initial conduct of the Claimant was her commission of the offence on her son . Relevant to the decision to deport and to detain pending deportation were her conviction for absconding and her conviction for fraud . The Claimant ’s utilisation of the rights available under the legislation to challenge the Defendant ’s decisions allowed her to remain in the GPE . In a sense she is rightfully in GPE while these processes unwind . On the other hand , they are of her choosing since she could repatriate herself voluntarily to GPE . Put neutrally as the authorities do , without tendentious issues such as fault , it is her conduct which has caused her to be here . She appealed asylum and deportation decisions , engaged at some stages in the family proceedings and issued a purported fresh claim and judicial review . ”

With regard to the Secretary of ORG ’s refusal to accept the applicant ’s representations as a fresh claim , the judge found that the further representations were not “ significantly different ” from material that had already been considered . Further , and in any event , the judge found that there was no LAW issue within the meaning of ORG v. the GPE [ ORG ] , no . CARDINAL , ORG DATE and that any interference with the applicant ’s rights under LAW was justified under sub - paragraph CARDINAL .

The applicant appealed to ORG against the dismissal of her judicial review claim on CARDINAL DATE . Permission was granted in light of the recent judgment of DATE by ORG in R ( PERSON and PERSON ) v. Secretary of ORG for ORG [ DATE ] ORG CARDINAL ( “ GPE and Mighty ” ) ( see paragraphs CARDINAL below ) , in which the application by the Secretary of ORG of a “ secret policy ” in respect of immigration detention was held to be unlawful in violation of public law principles .

On DATE the applicant applied for assisted return to GPE under LAW ( a scheme under which financial incentives are provided for a voluntary return by an individual to his or her country of nationality ) but the application was refused .

The applicant was served with a deportation order on DATE . Although she submitted further representations for a fresh asylum and human rights claim the immigration authorities refused to revoke the deportation order . The immigration authorities also declined to give her a further statutory appeal right in relation to that decision and removal directions were set for DATE . The applicant challenged this decision by way of judicial review and obtained an injunction preventing removal until this judicial review claim had been determined .

On DATE , shortly before ORG hearing , the applicant was released on bail by ORG .

At the court hearing , the Secretary of ORG conceded that following the decision of ORG in GPE and ORG the applicant ’s detention DATE and DATE had been unlawful on account of a failure to consider the guidance on detention of mentally ill persons in the published policy on immigration detention ( see paragraphs DATE below ) . As a result , on DATE ORG allowed the applicant ’s appeal against ORG judgment . However , as the Secretary of ORG had continued to detain the applicant after the relevant policy had been taken into account ( from DATE ) , the court was satisfied that she would have been detained during the earlier period even if the policy had been considered . Moreover , having assessed all the evidence in the case – in particular , the risk of the applicant reoffending , self - harming , or absconding –Despite the concerns over her mental health , the balance of expert advice was that her needs could be managed appropriately in detention . It therefore concluded that not only would the applicant have been detained during this period , but that she could have been detained lawfully .

With regard to the ORG PERSON principles , the court did not consider that the period of detention had become unreasonable by the date of the hearing before the judge , either on account of its length or because it should have been apparent that it would not be possible to effect deportation within a reasonable period . On the contrary , the court considered that deportation within a reasonable period had remained a sufficient prospect at every stage . In this regard , it noted that there was no external barrier to removal and no case - specific problem such as the absence of travel documentation . The only intermittent delaying factor was the applicant ’s legal challenges but that did not oblige a finding that the prospects of removal were fanciful . Although it accepted that the Secretary of ORG could have responded sooner to the “ fresh claim ” representations , the “ lengthy delay ” only had a minor effect overall and did not constitute a failure to act with due diligence .

Finally , in relation to the Secretary of ORG ’s refusal to treat the new representations as a fresh claim , the court found that he had been entitled to reach the conclusion he did .

Consequently , the court awarded the applicant nominal damages of ORG in relation to the period which had been conceded to be unlawful . Permission to appeal was refused by ORG on DATE .

The applicant succeeded in quashing the decision not to give her a further statutory appeal right in relation to the decision to refuse to revoke the deportation order in light of the second set of representations for a further fresh claim ( see paragraph CARDINAL above ) . This case is now being reconsidered by the authorities in light of all the current circumstances .

In the meantime , the applicant has brought further judicial review claims ( not related to the present application ) . She has also been litigating in ORG and is bringing a personal injury claim against the immigration authorities .

By DATE contact between the applicant and M had been limited to TIME every two months with a view to further reduction and the prospect of a goodbye meeting once the applicant was deported or M adopted . However , the local authority subsequently agreed not to proceed with adoption and instead opted for long - term fostering for PERSON The applicant had her first contact with M in DATE and the local authority have agreed to further contact DATE .


Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-1) Six-month period;No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Possessions)

Angelika Nußberger;Branko Lubarda;Egidijus Kūris;Erik Møse;Ganna Yudkivska;Guido Raimondi;Helen Keller;Iulia Motoc;Julia Laffranque;Linos-Alexandre Sicilianos;Mārtiņš Mits;Nebojša Vučinić;Paul Lemmens;Robert Spano;Síofra O’Leary;Stéphanie Mourou-Vikström;Vincent A. De Gaetano;Georges Ravarani;Ksenija Turković;Pere Pastor Vilanova

The applicants live in GPE ( application no . CARDINAL/CARDINAL ) and PERSON ( application no . CARDINAL ) . Their names and dates of birth are set out in the Appendix .

The legislation of the former GPE , in particular LAW of the DATE LAW ( see paragraph CARDINAL below ) , prohibited the acquisition of ownership of socially owned property by adverse possession ( dosjelost ) .

When incorporating the DATE LAW into the NORP legal system on DATE , ORG repealed the above - mentioned provision ( see paragraph CARDINAL below ) .

Subsequently , the new LAW of DATE , which entered into force on DATE , provided in section CARDINAL ) that the period prior to CARDINAL DATE was to be included in calculating the time - limit necessary for acquiring ownership by adverse possession of socially owned immovable property ( see paragraph DATE below ) .

Following several petitions for an abstract constitutional review ( prijedlog za ocjenu ustavnosti ) submitted by former owners of properties that had been appropriated under the socialist regime , on DATE ORG ( Ustavni sud PERSON ) accepted the initiative and decided to institute proceedings to review the constitutionality of section CARDINAL ) of the DATE LAW .

In a decision of CARDINAL DATE ORG invalidated with ex nunc effect section CARDINAL ) of the DATE LAW . It held that the impugned provision had retroactive effect resulting in adverse consequences for the rights of third parties ( primarily those who , under the restitution legislation , were entitled to the restitution of property appropriated during the NORP regime ) and was therefore unconstitutional ( for the relevant part of ORG decision see GPE v. GPE , no . CARDINAL , § CARDINAL , DATE ) . ORG decision came into effect on DATE when it was published in ORG .

On DATE the applicants brought a civil action in ORG ( PERSON ) against ORG ( Grad Split DATE hereinafter “ the respondent authority ” ) seeking a declaration of their ownership of CARDINAL plots of land and registration in their names in the land register . They submitted that the property at issue , even though it had been recorded in the land register in the name of GPE as the legal predecessor of GPE , had been in their possession and the possession of their predecessors for DATE . Given that the statutory period for acquiring ownership by adverse possession had elapsed , the applicants claimed to have acquired ownership of the land . Their statement of claim ( tužba ) read as follows :

“ Plots of land nos . CARDINAL ( ... ) , CARDINAL ( ... ) , CARDINAL/CARDINAL ( ... ) and DATE ... are registered in the name of GPE .

EVIDENCE : Extract from the land register .

However , the plaintiffs and their legal predecessors have been holding the above - mentioned immovable property in their possession for DATE , and thereby acquired the ownership of that immovable property .

EVIDENCE : Extract from the cadastre , testimony of the witness ORG , parties’ testimonies and other evidence , if needed .

( a ) [ ... ]

( b ) Plot no . CARDINAL/CARDINAL belongs to the plaintiffs PERSON and PERSON in CARDINAL equal parts ;

( c ) Plot no . CARDINAL/CARDINAL belongs to the plaintiff PERSON in its entirety .

EVIDENCE : See above

For these reasons it is proposed that the court , after having conducted the proceedings , adopt the following

Judgment

It is [ hereby ] established that the plaintiffs are the owners and co - owners , respectively , of the [ following ] immovable property ... and therefore :

( a ) [ ... ]

( b ) Plot no . CARDINAL/CARDINAL PERSON and PERSON in CARDINAL equal parts ;

( c ) Plot no . CARDINAL/CARDINAL PERSON in its entirety

NORP The plaintiffs are , on the basis of this judgment , entitled to seek and obtain registration in their name of the right of ownership and co - ownership , respectively , of the immovable property listed in point CARDINAL of this judgment in the land register , as well as concurrent deletion of that right as registered to date in the name of the respondent authority ’s legal predecessor , GPE .

The respondent authority shall , if it opposes the action , reimburse the plaintiffs for the costs of these proceedings . ”

By a judgment of DATE ORG ruled in favour of the applicants . It held that they had proved that they and their predecessors had had continuous and exclusive possession of the land in question since DATE and in good faith . Furthermore , it held that the statutory period for acquiring ownership by adverse possession at the relevant time had been DATE . Consequently , in the applicants’ case that period had elapsed in DATE . The relevant part of that judgment reads :

“ In the statement of claim it is submitted ... that the plaintiffs and their predecessors had been in possession of the immovable property [ in question ] for DATE and that they had thereby acquired ownership of that property by adverse possession .

The plaintiffs base their claim on ... adverse possession . [ E]ven if they do not expressly state it , the facts alleged in their statement of claim suggest that they maintain that the requirements for acquiring ownership by adverse possession had been met before DATE . This means that it was necessary to establish whether the requirements prescribed by the ... laws and other regulations in force at the time were met .

In the opinion of this court , because of changed economic and social circumstances , the time - limits for acquiring title to property by adverse possession prescribed by ... laws and other regulations in force on DATE do not correspond to the principle of protection of legitimate interests of individuals , long - term possessors in good faith , or to the principle of legal certainty . [ The court ] therefore considers that DATE is required and sufficient to acquire ownership of immovable property by adverse possession . ”

In its appeal the respondent authority emphasised that the applicants could not have become the owners of the property in question because prior to CARDINAL DATE it had been prohibited to acquire ownership of socially owned property by adverse possession , and that the lifting of that prohibition had not had retroactive effect ( see paragraphs TIME above ) . In their reply the applicants responded that it was undisputed that they had been in exclusive possession of the property since DATE and thus for DATE even before DATE .

In a judgment of CARDINAL DATE ORG PERSON ) reversed the first - instance judgment and dismissed the applicants’ action . It held that ORG had established the facts correctly ( continuous and exclusive possession of the land in good faith since DATE ) but had erred in its application of the substantive law . It established , firstly , that the land in question had been in social ownership on CARDINAL DATE and that under the relevant legislation it had not been possible to acquire ownership of socially owned property by adverse possession before that date unless the statutory requirements for doing so had been met by DATE ( see paragraphs CARDINAL , DATE , DATE and CARDINAL below ) . However , those requirements had not been met in the applicants’ case . That was so because under LAW ( which was applicable in GPE from DATE until DATE , see paragraphs CARDINAL - CARDINAL and CARDINAL below ) immovable property owned by municipal authorities could be acquired by adverse possession only after DATE . However , having regard to the factual findings of the first - instance court , according to which the applicants and their predecessors had possessed the land at issue since DATE ( see paragraph CARDINAL above ) , that time - limit had not expired before DATE . The relevant part of that judgment reads :

“ In calculating the time - limit for acquiring by adverse possession immovable property socially owned on DATE , the period ... before DATE is not to be taken into account because before that date section CARDINAL of LAW expressly prohibited acquiring ownership of socially owned property by adverse possession . Even though [ that ] provision was repealed by CARDINAL of the LAW on the Incorporation of the Basic Ownership Relations Act , it is because of that prior express statutory prohibition that the time elapsed before that date can not be taken into account in calculating the time - limit necessary for acquiring ownership by adverse possession of immovable property socially owned on DATE , unless [ that ] time - limit had elapsed before DATE under the regulations in force at the time . ”

The applicants then , on DATE , lodged a constitutional complaint against the second - instance judgment alleging infringements of their constitutional rights to equality before the law , equality before the courts and fair procedure . In their constitutional complaint they stated , inter alia :

“ ... according to the findings in the contested judgment the plaintiffs ... have been in continuous exclusive possession from DATE until DATE in good faith . ... The case therefore concerns [ such ] possession in DATE before the bringing of the civil action .

... In the instant case the court did not apply the cited provisions even though the GPE predecessors had possessed [ the property in question ] since at least the beginning of DATE and their possession had been continuous until the bringing of the civil action and lasts until DATE .

If the view that the property in question was socially owned on DATE is to be accepted , even though in the land register it was not registered as such in accordance with the [ relevant regulations concerning registration of the property in the ORG and social ownership ] , then it was , in accordance with the cited statutory provisions , necessary to take into account the entire period of possession until the bringing of the civil action , except [ the period ] DATE and DATE . ”

NORP In a decision of CARDINAL DATE ORG dismissed the applicants’ constitutional complaint and on DATE it served its decision on their representative . The relevant part of that decision reads :

“ Only those facts on the existence of which depends the assessment of a violation of a constitutional right are relevant for ORG .

In the civil proceedings ... it was established that ... the complainants ... had been in continuous exclusive possession of the disputed property since DATE and in good faith .

In the reasoning of its judgment the second - instance court notes that the case concerns immovable property which was socially owned on CARDINAL DATE and that , in calculating the time - limit necessary for acquiring ownership by adverse possession of [ such ] property , the time which elapsed before that date can not be taken into account .

In the examination of the constitutional complaint ... one has to take note of the fact that section CARDINAL(CARDINAL ) of the DATE LAW was invalidated by ORG decision of [ CARDINAL DATE ] ... [ I]n that decision ORG held that possessing socially owned property in DATE can not be taken into account in calculating the time - limit for acquiring ownership by adverse possession . Given that the time - limit for acquiring ownership of property socially owned on DATE , did not run in the period DATE and DATE ( which view ORG expressed in the decision DATE of CARDINAL DATE ) , the court finds that the legal views expressed in the contested judgment of ORG are based on a constitutionally acceptable interpretation and application of the relevant substantive law . ”

On DATE , CARDINAL DATE and DATE respectively , the applicants bought CARDINAL plots of land from various individuals . However , the plots were recorded in the land register in the name of GPE as the legal predecessor of GPE .

On DATE the applicants brought a civil action in ORG against GPE , seeking a declaration of their ownership of the CARDINAL plots of land and registration in their names in the land register . They submitted that the property at issue , even though it had been recorded in the land register in the name of GPE as the legal predecessor of GPE , had been in the possession of their legal predecessors for DATE . Given that the statutory period for acquiring ownership by adverse possession had elapsed in respect of their legal predecessors , the applicants claimed that by buying the land from them they had validly acquired ownership . Their statement of claim read as follows :

“ The plaintiffs together , each in CARDINAL , bought from GPE and GPE ... the plots of land no . CARDINAL/CARDINAL ( ... ) ... from GPE ... the plot of land no . CARDINAL/CARDINAL ( ... ) , ... and from GPE ... the plot of land no . CARDINAL/CARDINAL ( ... ) ...

EVIDENCE : [ The CARDINAL sale and purchase agreements between the plaintiffs and the above mentioned individuals ]

The plaintiffs immediately , upon the conclusion of the above sale and purchase agreements entered into possession of all the immovable property listed above . They remained in possession of it until DATE . After the [ relevant tax authority ordered them to pay tax ] they paid it .

EVIDENCE : Tax payment receipt

Witness testimonies of GPE , GPE , and GPE ...

All the above - mentioned immovable property is registered in the land register in the name of the GPE even though the vendors in the enclosed [ sale purchase ] agreements and their legal predecessors have been in possession of that immovable property for DATE , which means that they acquired ownership of that immovable property by adverse possession .

EVIDENCE : Extract from the land register ;

Witness testimonies of GPE , GPE , and GPE , ... ; and

other evidence , if needed .

Given that the vendors were non - registered owners of the above - mentioned immovable property , they have by the sale purchase agreements transferred their right of ownership to the plaintiffs as buyers . [ In this way ] the plaintiffs , through their legal predecessors , acquired ownership of the plots nos . CARDINAL/CARDINAL ( ... ) , CARDINAL/CARDINAL ( ... ) and CARDINAL/CARDINAL ( ... ) ...

EVIDENCE : See above .

For these reasons it is proposed that the court adopt the following

Judgment

It is [ hereby ] established that the plaintiffs ORG and ORG are the co - owners , each in CARDINAL , of the plots nos . CARDINAL/CARDINAL , QUANTITY and CARDINAL/CARDINAL ...

NORP The respondent authority shall within DATE , on pain of enforcement , provide the plaintiffs with the document containing clausula intabulandi necessary to record the right of ownership in the land register and delete that right as registered to date in the name of the respondent authority ’s legal predecessor , GPE . Otherwise , this judgment shall replace [ such document ] .

The respondent authority shall , within DATE , on pain of enforcement , reimburse the plaintiffs for the costs of these proceedings . ”

In the response to the applicants’ action the respondent authority submitted that the property in question had been in social ownership and that , having regard to ORG decision invalidating section CARDINAL ) of the DATE LAW ( see paragraph CARDINAL above ) , the fact of possessing socially owned property before DATE could not be taken into account in calculating the time - limit for adverse possession . The applicants replied that ORG decision to which the respondent authority had referred was of no relevance for the resolution of the dispute .

In a judgment of DATE ORG ruled in favour of the applicants . However , following an appeal lodged by the respondent authority , that judgment was quashed on DATE by ORG ( Županijski sud u GPE ) on procedural grounds .

In the resumed proceedings , by a judgment of DATE , ORG again ruled in favour of the applicants . It established , firstly , that the land in question had been in social ownership on CARDINAL DATE and that under the relevant legislation it had not been possible to acquire ownership of socially owned property by adverse possession before that date unless the statutory requirements for doing so had been met by DATE ( see paragraphs CARDINAL , CARDINAL and CARDINAL below ) . It found , however , that the applicants had proved that their predecessors had had continuous and exclusive possession of the CARDINAL plots of land in good faith for DATE before DATE , and had continued to do so until they had sold them to the applicants ( see paragraph CARDINAL above ) . The applicants’ predecessors had therefore , under LAW ( applicable in GPE from DATE until DATE , see paragraphs CARDINAL - CARDINAL and CARDINAL below ) , acquired ownership of the land by adverse possession even before that date . The relevant part of that judgment reads as follows :

“ In the response to the action the respondent denied the claim because the property in question had been [ in ] social ownership and because , pursuant to ORG decision invalidating section CARDINAL ) of the [ DATE LAW ] , possessing socially owned property in DATE can not be taken into account in calculating the time - limit for acquiring title to property by adverse possession .

Given that the action was brought in DATE , that in the land register the right of ownership is registered in the name of GPE , that section CARDINAL(CARDINAL ) of the [ DATE LAW ] was invalidated by ORG decision of CARDINAL DATE which means that the fact of possessing socially owned property in the period before DATE can not be taken into account in calculating the time necessary for adverse possession – ... the plaintiffs and their predecessors could not have acquired ownership before DATE unless they manage to prove that they had acquired [ it ] by adverse possession before DATE . The plaintiffs’ action evidently relies precisely on that . Therefore , since [ for the court ] it is beyond dispute that the plot in question had been socially owned on CARDINAL DATE ... in order to determine whether it had been acquired by adverse possession it had to be established whether the GPE legal predecessors had been in possession of certain quality of the disputed property before DATE and thus for the period prescribed for adverse possession by the rules applicable at the time . ”

In their appeal the respondent authority emphasised that the applicants could not have become the owners of the property in question because prior to CARDINAL DATE it had been prohibited to acquire ownership of socially owned property by adverse possession unless the ownership had been acquired in that manner before DATE . The respondent authority claimed that the lifting of that prohibition had not had retroactive effect ( see paragraphs CARDINAL above ) . In their reply the applicants retorted that it was undisputed that they had been in exclusive and continuous possession of the property in good faith for DATE and that they had in any event acquired ownership thereof by adverse possession , having possessed it for DATE before DATE .

In a judgment of CARDINAL DATE ORG ( PERSON ) reversed the first - instance judgment and dismissed the applicants’ action . It found that the applicants’ predecessors had only been in possession of the land in question ( continuously and in good faith ) since DATE . The DATE time - limit for acquiring ownership by adverse possession set out in LAW had not therefore expired by DATE ( see paragraph CARDINAL below ) . In the subsequent period DATE and DATE the relevant legislation had prohibited the acquisition of ownership of socially owned property by adverse possession ( see paragraph CARDINAL above and paragraphs CARDINAL - CARDINAL below ) . This had discontinued the running of the statutory time - limits . The time which had elapsed before DATE had therefore not continued to run after CARDINAL DATE – it had actually started to run again . The relevant part of that judgment reads :

“ In calculating the time - limit for acquiring by adverse possession immovable property socially owned on DATE , the period ... before DATE is not to be taken into account because before that date section CARDINAL of LAW expressly prohibited acquiring ownership of socially owned property by adverse possession . Even though [ that ] provision was repealed by LAW , it is because of that prior express statutory prohibition that the time which elapsed before that date can not be taken into account in calculating the time - limit necessary for acquiring ownership by adverse possession of immovable property socially owned on DATE , unless [ that ] time - limit had elapsed before DATE under the regulations in force at the time . ”

The applicants then , on DATE , lodged a constitutional complaint against the second - instance judgment , alleging violations of their constitutional rights to equality before the law , equality before the courts and fair procedure . In their constitutional complaint they , inter alia , stated :

“ Therefore , from the legal and factual situation where , as in the instant case , the plaintiffs have , themselves and through their predecessors , indisputably been in possession in good faith of the property in question for DATE , and viewing such situation in the light of NORP law in force , ... it follows that it is necessary to ... quash the contested judgment and remit the case ...

... by not taking into account the entire period of possession of the property at issue before the bringing of the civil action the court misapplied the substantive law and thereby violated constitutional rights relied on by the plaintiffs . ”

In a decision of DATE , ORG dismissed their constitutional complaint and on DATE it served its decision on their representative . The relevant part of that decision reads :

In the reasoning of its judgment the second - instance court notes that the case concerns immovable property which was socially owned on CARDINAL DATE and that in calculating the time - limit necessary for acquiring ownership by adverse possession of [ such ] property the time which elapsed before that date can not be taken into account .

In the examination of the constitutional complaint ... ORG notes that section CARDINAL ) of the DATE LAW was invalidated by ORG decision of [ CARDINAL DATE ] ... [ I]n that decision ORG held that possessing socially owned property in DATE could not be taken into account in calculating the time - limit for acquiring ownership by adverse possession . Given that the time - limit for acquiring ownership of property socially owned on DATE did not run in the period DATE and DATE ( which view ORG expressed in decision DATE of CARDINAL DATE ) , the court finds that the legal views expressed in the contested judgment of ORG are based on a constitutionally acceptable interpretation and application of the relevant substantive law . ”

In the proceedings before the ORG the applicants complained that the ORG judgments in their cases were in breach of their rights guaranteed by LAW No . CARDINAL to the Convention and Article CARDINAL of the Convention .

The relevant part of the application forms in both cases reads as follows :


Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Kazakhstan);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5+5-5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention) (Article 5 - Right to liberty and security;Article 5-5 - Compensation);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment)

Jon Fridrik Kjølbro;Ledi Bianku;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström

The applicant was born in DATE and is detained in GPE , GPE .

According to the applicant ’s submissions , he left GPE in DATE and lived in GPE and GPE as a student until DATE . He did not wish to return to his country as a number of people had been detained on charges of religious extremism in GPE and some of his friends had left the country after coming under pressure from the GPE government because of their political and religious identity .

NORP In DATE the applicant arrived in GPE . The Government submitted that subsequent to his arrival in GPE , CARDINAL entry bans were issued against him on the grounds that he was suspected of having provided logistical support to foreign nationals who were engaged in international terrorism .

On an unspecified date the applicant was taken into police custody and thereafter transferred to the ORG Foreigners’ Removal Centre with a view to his removal to GPE . As the applicant applied for asylum while in detention , on DATE he was released pending the determination of his asylum application . On DATE he was notified that he should go and reside in GPE .

On DATE the applicant lodged his asylum application again – this time with ORG . On DATE a police officer from ORG held a preliminary interview with the applicant . The applicant stated that he had learned that he was being sought for by the GPE authorities on terrorism charges and asked to be granted leave to stay in GPE . He submitted that his removal to GPE would expose him to a risk of death . According to a report dated DATE concerning the applicant ’s interview of CARDINAL DATE , the interpreter who was appointed by the police authorities noted that the applicant spoke NORP .

On DATE the applicant was notified that his asylum application had been rejected . According to the report of CARDINAL DATE , the police officer who had interviewed the applicant found that the latter had failed to submit any concrete evidence concerning his nationality , identity and the problems he had experienced in GPE . The officer , however , found it established that the applicant feared to be returned to his country and that it was known to the NORP authorities that he would be prosecuted if returned to GPE .

On DATE the applicant objected to the rejection of his asylum application . He once again submitted that he would be exposed to a real risk of death if he were to be removed to GPE .

According to the ORG ’s submissions , on DATE his objection was dismissed .

On DATE the applicant lodged an application to be allowed to leave GPE with ORG and informed the police that he had been offered a visa to enter and live in GPE .

On DATE the police authorised the applicant to leave the country .

According to a document dated DATE sent by the Deputy Director of ORG to a number of police authorities , during a meeting held on DATE the ambassador of GPE in GPE requested the NORP Interior Minister to extradite GPE nationals who had been involved in terrorist acts and in respect of whom GPE had issued wanted notices ( “ Red Notices ” ) via ORG . A formal extradition request in respect of such persons was submitted by the GPE embassy in GPE to ORG on DATE . According to the document prepared by the embassy , the applicant and CARDINAL other persons were members of the “ NORP Jihad Union ” , a terrorist organisation which carried out terrorist attacks in the western region of GPE . They had been detained by the NORP authorities upon receipt of a Red Notice via ORG by GPE . The embassy pointed out that subsequent to their asylum claims , CARDINAL of those persons , including the applicant , had been released from detention in GPE . The GPE authorities considered that these QUANTITY persons had been in the process of preparing a new terrorist attack in their country and that following their release QUANTITY of them had organised a terrorist attack in the GPE of GPE , in co - operation with another terrorist organisation , PERSON ( “ Soldiers of the Caliphate ” ) . The embassy accordingly requested the NORP authorities not to grant asylum to them and to extradite them to GPE .

On DATE , while he was waiting at GPE FAC to board a flight to GPE , the applicant was taken into police custody on the basis of the extradition request submitted to the NORP authorities by the GPE embassy .

On DATE the ORG department attached to the ORG informed ORG and a number of security departments that a Red Notice had been issued by GPE via ORG in respect of the applicant on the basis of terrorism - related offences .

On DATE ORG ordered the applicant ’s detention within the context of the extradition proceedings for DATE . The applicant was then placed in detention in FAC , in GPE .

On DATE the applicant lodged a petition with ORG and challenged his detention . In his petition , he stated , inter alia , that a person who would be subjected to torture or other forms of ill - treatment in his country of origin should not be extradited to that country .

On DATE ORG dismissed the applicant ’s petition challenging his detention .

On DATE the ORG rejected the extradition request submitted by the GPE authorities . During the hearing held on DATE the assize court did not find it necessary to appoint an interpreter for the applicant as he spoke NORP . According to the reasoning contained in the court ’s decision , in his defence submissions the applicant had contended that he had been wrongly accused of being a member of NORP or ORG and had asked the court not to extradite him to GPE . ORG held that the applicant could not be extradited to GPE because the charge against him in GPE fell within the scope of CARDINAL of the offence categories , precluding extradition , listed in LAW ( b ) of LAW , as in force at the material time ( see paragraph CARDINAL below ) . The court also ordered the applicant ’s release from detention . The decision of CARDINAL DATE became final as no appeal was lodged against it .

On DATE the applicant was released from prison but was immediately transferred to the NORP Foreigners’ Removal Centre in GPE . According to a document dated DATE , the applicant was informed that he was being held pending the outcome of the deportation procedure conducted in this respect .

On DATE the Deputy Director of ORG ordered ORG to deport the applicant .

On DATE , while in detention , the applicant appointed his representatives to undertake the necessary legal and procedural actions on his behalf before the domestic authorities and the ORG by way of a issuing a power of attorney before a notary public .

According to the applicant ’s submissions , on DATE , when Mr Yılmaz , CARDINAL of his representatives , went to the ORG Foreigners’ Removal Centre to meet him , he was orally informed by officers at the centre that the applicant had been deported to GPE on DATE .

Upon a request by the applicant ’s lawyer , on CARDINAL DATE ORG sent a letter to the applicant ’s lawyer informing him that the applicant had been deported to GPE on DATE .

In a letter dated DATE , PERSON submitted that the applicant had been remanded in custody and placed in Atyrau Prison upon his return to GPE . The lawyer stated that he did not have information as to whether the applicant had been subjected to ill - treatment in GPE given that the applicant ’s family members had refrained from answering his questions regarding that matter during their telephone conversations with him .

DATE and CARDINAL DATE the applicant was detained at the GPE Foreigners’ Removal Centre . The applicant claimed that the centre had been overcrowded at the time of his detention . He had not been allowed exercise outdoors or any other type of social activity throughout his detention . The applicant further alleged that there had been hygiene problems at the centre and that the quantity of the food provided had also been poor .

The Government submitted that the ORG Foreigners’ Removal Centre , where the applicant had been held , had a capacity of CARDINAL persons and that a total of CARDINAL persons had been held during the period DATE and DATE . Detainees were accommodated on CARDINAL floors : the first CARDINAL floors were reserved for male detainees , and the third floor for females . There were CARDINAL dormitory rooms on the first floor , respectively measuring CARDINAL , DATE , DATE and QUANTITY m. On the second floor there were CARDINAL dormitories measuring CARDINAL , DATE , DATE , DATE and CARDINAL sq . m. There was a total of CARDINAL bunk beds in the CARDINAL rooms reserved for male detainees and all rooms received natural light . There were also CARDINAL showers and CARDINAL toilets per floor , as well as a cafeteria measuring CARDINAL sq . m , where breakfast , lunch and dinner were served DATE on each floor . The detainees had the right to outdoor exercise if the physical conditions and the number of staff available allowed . A doctor was present on the LOC DATE and the detainees also had access to medical care in cases of emergency . As for the hygiene in the facility , there were CARDINAL cleaning staff working full time .