Carlo Ranzoni;Ganna Yudkivska;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Georges Ravarani

NORP The applicant , PERSON , is a NORP national , who was born in DATE and lives in GPE . She is represented before the ORG by Mr PERSON , a lawyer practising in GPE .

ORG ( “ the Government ” ) were represented by their Agents , PERSON and PERSON .

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

On DATE inheritance proceedings in respect of the property of the applicant ’s late mother were instituted before ORG .

The applicant claimed that because of gifts made by her late mother she would be excessively deprived of her statutory share of the inheritance . As a result , the court , in DATE , stayed the inheritance proceedings and advised the applicant to pursue her claim in contentious proceedings .

On DATE the applicant instituted contentious proceedings before ORG .

By DATE the applicant had made CARDINAL requests for a hearing to be scheduled .

On DATE ORG adjourned the proceedings . Both parties appealed .

On DATE ORG quashed the decision to adjourn the proceedings .

DATE and DATE the applicant made CARDINAL requests for ORG to schedule a hearing .

On DATE she lodged a supervisory appeal .

On DATE the president of ORG ordered that the case be given priority .

The applicant made CARDINAL further requests for a hearing .

On DATE the court held a hearing and dismissed the applicant ’s claim . The applicant appealed .

On DATE ORG allowed the appeal and remitted the case back to ORG .

On DATE the applicant lodged a supervisory appeal .

On DATE the applicant was informed in response to her supervisory appeal that a hearing would be held within a period of DATE .

On DATE ORG held a hearing and concluded the proceedings . Its decision was served on the applicant on CARDINAL DATE . She appealed on CARDINAL DATE .

On DATE ORG upheld the applicant ’s appeal in part and modified the first - instance court ’s decision accordingly . The applicant lodged an appeal on points of law .

On CARDINAL DATE ORG issued a judgment rejecting her appeal on points of law .

On DATE ORG , at the request of the applicant , issued an additional decision in respect of the case , which was served on the applicant on DATE .

On DATE the applicant signed an agreement with her lawyer , agreeing to pay his fees for the representation in the compensation proceedings according to ORG ( odvetniška GPE , scheme setting out the official fees for ORG legal services ) , which was based on LAW ( Zakon o odvetništvu , see paragraph CARDINAL below ) . They later agreed that the legal fees and other costs could be settled once all the remedies had been exhausted .

On DATE the applicant lodged a claim for compensation for non - pecuniary damage sustained as a consequence of undue length of the contentious proceedings ( see paragraphs CARDINAL above ) with ORG in accordance with ORG ( “ the CARDINAL Act ” ) . She had been offered MONEY ( ORG ) by way of compensation , which she rejected as too low .

On DATE the applicant instituted proceedings against the ORG seeking ORG CARDINAL for non - pecuniary damage . When lodging the claim the applicant paid court fees in the amount of ORG CARDINAL . The ORG was represented by ORG in PERSON . The latter lodged a reply to the applicant ’s claim on DATE .

On DATE the applicant submitted her pleadings , disputing the arguments of ORG . On DATE the State Attorney ’s ORG submitted its pleadings .

On CARDINAL DATE ORG held a public hearing . After the hearing it upheld the applicant ’s claim in part . It noted that the parties had not significantly contributed to the length of the contentious proceedings , that the case was a rather simple one , and that the issue had certainly not been of minor importance to the applicant . The court referred to the compensation , which it considered to be typically awarded to the applicants by the ORG in cases concerning similar length and involving a similar number of levels of jurisdiction . The court awarded the applicant ORG CARDINAL , with default interest , in compensation for non - pecuniary damage .

On DATE the applicant lodged an appeal , paying court fees amounting to LAW .

On DATE the ORG partially upheld the applicant ’s appeal and increased damages to LAW . ORG found that the first - instance court had relied on case - law which was not analogous enough to the applicant ’s case to be used as a criterion for an appropriate compensation . Noting that the allowed compensation under LAW ranged from ORG CARDINAL to ORG CARDINAL,CARDINAL , it considered that the applicant should have been awarded EUR CARDINAL . As regards the costs , it decided that the applicant was entitled to LAW for legal representation in the first - instance proceedings and nothing with respect to legal fees for the representation at the appeal stage as the law did not provide for it ( see paragraph DATE below ) .

On CARDINAL DATE the applicant lodged a constitutional complaint and an application for constitutional review of the provisions of LAW ( Zakon o odvetniški tarifi ) in parts concerning the fees for legal representation in the proceedings under LAW . She complained about the length of the contentious proceedings and the courts’ handling of her claim for compensation for undue delays . She moreover argued that the extreme restrictions regarding the reimbursable legal fees in the proceedings under LAW , which did not apply to regular civil proceedings , were contrary to the equal protection of rights and the right to judicial protection enshrined in the LAW . The proceedings under LAW were complex enough to require legal representation as several steps , such as using of acceleratory remedies and settlement procedure , had to be conducted before a compensation claim could be lodged and there were strict procedural rules as regards the conduct of the compensation proceedings . She also pointed out that the contested provisions of LAW had essentially affected the plaintiffs , who had suffered damage due to a breach of the reasonable time requirement . For the representation in the LAW proceedings , the plaintiffs often paid legal fees based on an agreement , which meant that most of it might remain unreimbursed .

On DATE ORG rejected both the applicant ’s constitutional complaint and the application for review of constitutionality . It rejected the constitutional complaint as inadmissible referring to section DATE ( a ) of LAW ( see paragraph CARDINAL below ) . As regards the application for review of constitutionality , ORG noted that the challenged law was no longer in force , and that in any event the outcome of the proceedings could not benefit the applicant , as her constitutional complaint had been rejected .

The applicant indicated to the ORG that she was due to pay her lawyer LAW with respect to court fees relating to the compensation proceedings .

After ORG had issued its decision in the contentious proceedings ( see paragraph CARDINAL above ) , ORG continued with the examination of the case in the inheritance proceedings and on DATE issued a decision on the distribution of the inheritance . Further to an appeal , ORG issued a decision on DATE ( served on the applicant on CARDINAL DATE ) .

On DATE the applicant , who had availed herself of the remedies provided for under LAW , reached an out - of - court settlement with ORG after being offered the maximum amount of compensation allowed under LAW , namely LAW , as just satisfaction for the violation of her right to a trial without undue delay in the inheritance proceedings , as well as LAW for the costs of legal representation .

For a detailed presentation of LAW , see GPE v. GPE ( dec . ) , no . CARDINAL , § § DATE , DATE , and PERSON GPE ( dec . ) , no . CARDINAL/CARDINAL , § § DATE , DATE .

As regards the reimbursement of costs and fees in the court proceedings , section CARDINAL of LAW ( Official Gazette no . CARDINAL with relevant amendments ) provides that the losing party to the proceedings should bear the costs of the successful party . However , if the claim was upheld only in part , the court may order that the amount of the costs to be reimbursed by the defendant should correspond to the proportion of the upheld part of the claim . According to section CARDINAL of the same Act only necessary costs were reimbursable .

In the compensation proceedings under LAW the parties have to pay the court fees which apply in ordinary civil proceedings under LAW . The amount of the court fees depends on the monetary value of the claim .

The fees reimbursable to lawyers for representation of their clients were until DATE specified in the Lawyer Fees Schedule , based on LAW ( Official Gazette no . CARDINAL with relevant amendments ) , applicable from DATE . On DATE LAW ( Official Gazette no . CARDINAL ) entered into force . It specified , inter alia , the fees reimbursable to lawyers for representation of their clients in proceedings under LAW . LAW was the act applicable at the time of the applicant ’s compensation proceedings . The fees for representation in the proceedings under LAW was set at ORG CARDINAL for lodging a supervisory appeal , a motion for a deadline or a claim for settlement with the ORG Attorney ’s ORG . In court proceedings the award for representation was set at PERCENT of the compensation awarded by the court , but could not exceed LAW . There was no additional fee for representation in the appeal proceedings .

LAW was repealed on DATE by LAW to LAW ; however , the fees laid down in LAW were still applicable until the adoption of the new Lawyer Fees Schedule . According to the new Lawyer Fees Schedule , based on LAW and applicable from DATE , the fees for lodging an application for a supervisory appeal or a motion for a deadline was raised from ORG CARDINAL to EUR CARDINAL , while the distinction between court proceedings under LAW and ordinary civil proceedings was abolished and consequently the same fees applied to both .

As regards the admissibility of a constitutional complaint , section DATE of LAW provides as follows :

“ ( CARDINAL ) A constitutional complaint is not admissible if the violation of human rights or fundamental freedoms did not have serious consequences for the complainant .

( CARDINAL ) It is deemed that there has been no violation of human rights or fundamental freedoms which had serious consequences for the complainant with regard to individual acts : issued in small - claims disputes in accordance with the act which regulates civil procedure , or in other disputes if the value in dispute for the complainant does not exceed the amount which is determined by the definition of small claims disputes in the act which regulates civil procedure ; if only a decision on the costs of proceedings is challenged by the constitutional complaint ; issued in trespass to property disputes ; issued in minor offence cases .

( CARDINAL ) Irrespective of the preceding paragraph , in especially well - founded cases ORG may exceptionally decide on a constitutional complaint against the individual acts referred to in the preceding paragraph . An instance of an especially well - founded case is a decision that concerns an important constitutional question which exceeds the importance of the specific case . ”


CASE OF S.D.M. AND OTHERS v. THE NETHERLANDS

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

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

The applicants were born in DATE , DATE and DATE respectively . They have been residing in the GPE since DATE .

The first applicant entered the GPE and applied for asylum on DATE , submitting the following account to the immigration authorities . He stated that he was a single NORP national of NORP origin , that he had never joined a political party , and that he had worked from DATE for the NORP security service ORG Dowlati / PERSON Dowlati ( “ ORG / WAD ” ) of the former communist regime in GPE .

In DATE he had reported for compulsory military service . In response to his request to be posted close to home , he had been assigned to the ORG in GPE . After his basic training , which had lasted DATE , he had started to work for Department CARDINAL of the ORG in GPE , which DATE under President ORG ’s national reconciliation policy sought to establish peaceful relations with the mujahideen and their reintegration into NORP national institutions – did not combat the mujahideen opposition but sought to try to negotiate with and persuade mujahideen groups to conclude peace agreements . These agreements entailed remunerated cooperation with the ruling communist ORG of GPE ( “ PDPA ” ) .

In DATE and as a conscript , he had performed guard duties and certain administrative tasks , such as making propaganda posters for the ORG ’s national reconciliation policy , taking TIME of meetings , copying information from reports into books to be held in the central archives , and collecting and recording neighbourhood reports .

After having worked for DATE for the ORG as a conscript , he had agreed to become a professional soldier . He had been appointed to the rank of Second Lieutenant ( “ Doham Bridman ” ) . His activities had consisted mainly of administrative duties relating to the processing of information gathered by more senior officers about mujahideen commanders . He had worked for the ORG until DATE , when he left work after the communist ORG regime was overthrown by the mujahedin . Shortly after they had seized power , the mujahideen proclaimed an amnesty for persons who had worked for the ORG . He had returned to work , had been given other tasks and had worked for the mujahideen until DATE , when the ORG seized power in GPE . Until that moment , GPE had been governed by a commander who , like the applicant , was of NORP origin . DATE after the arrival of the ORG in GPE in DATE and fearing for his life , the first applicant had fled to GPE from where he had travelled by air to the GPE .

On DATE , the Deputy Minister of Justice ( Staatssecretaris van Justitie ) rejected the asylum claim then made by the first applicant , holding that he had failed to establish personal circumstances warranting a decision to grant him asylum . The mere fact that he belonged to the NORP ethnic minority did not suffice in that respect . Although the Deputy Minister acknowledged that it was not unlikely that former ORG staff members might experience problems from the new Government in GPE , she found this not to be the case as regards the first applicant , as he had continued working for the NORP authorities during the rule of the mujahideen from DATE to DATE without experiencing any problems . The Deputy Minister further considered it unlikely that the ORG were or would become aware of the first applicant ’s past professional activities for the former communist regime .

The Deputy Minister of ORG did , however , grant the first applicant a conditional residence permit ( voorwaardelijke vergunning tot verblijf ) , valid for DATE from DATE , on the basis of the unabated bad situation ( “ onverminderd slechte situatie ” ) in GPE .

On DATE , the first applicant submitted an objection ( bezwaar ) to the Deputy Minister against the decision to reject his asylum request . On DATE , the Deputy Minister rejected the objection . Although the first applicant could have appealed to ORG ( rechtbank ) of GPE , he did not do so .

On DATE , the first applicant made a second asylum claim , which pursuant to article CARDINAL of LAW ( PERSON ) had to be based on newly emerged facts and/or altered circumstances ( “ nova ” ) warranting a reconsideration of the initial refusal . The new elements on which the first applicant based his fresh asylum request were his relationship with a woman in DATE in GPE out of which a child might have been born , his past work for the LAW , and various documents , including a copy of a judgment handed down in DATE in which a ORG in GPE - in proceedings held in absentia – had convicted the first applicant and CARDINAL others of conspiracy against the ORG and sentenced them to death . For identification purposes , photographs of the convicts , including the first applicant , were appended to this judgment . The first applicant had only learned about the existence of this judgment on DATE , thus after his flight from GPE , when his mother had sent him the judgment by mail from GPE , where she had gone for medical reasons . The first applicant did not know how or when his mother had obtained the judgment , but he assumed that it had been put up around his neighbourhood at some point in time , as local custom prescribed . The first applicant had also been informed , in a letter from his mother , that his brother had been captured and tortured in order to locate him . The first applicant further submitted on DATE a detailed written account of his activities for the ORG .

Meanwhile , in DATE , the situation in GPE not having sufficiently improved , the first applicant ’s conditional residence permit was ex lege converted into an indefinite residence permit after he had held it for DATE .

In her decision of DATE , after the first applicant had been interviewed again by the immigration authorities during which he stated inter alia that he had held the rank of First Lieutenant in the ORG , the Deputy Minister rejected the first applicant ’s second asylum claim and , considering that there were serious reasons for believing that the first applicant was guilty of acts referred to in LAW DATE LAW ) , applied this asylum exclusion clause .

Referring to an official report , drawn up on DATE by ORG on “ ORG in NORP GPE ( DATE ) , AGSA , ORG , ORG and ORG ( “ PERSON in communistisch GPE ( DATE ) , AGSA , ORG , ORG en WAD ” ) and concerning in particular the question whether , and if so which , former employees of those services should be regarded as implicated in human rights violations ( see ORG v. the GPE ( dec . ) , no . CARDINAL/CARDINAL , § § DATE , DATE ) , the Deputy Minister emphasised the widely known cruel character of the ORG , its lawless methods , the grave crimes it had committed such as torture , murder , arbitrary executions and other human rights violations , and the climate of terror which it had spread throughout the whole of NORP society , including the army .

Having established , on the basis of elaborate argumentation based on various international documents , that those involved in the ORG / WAD were likely to fall within the scope of LAW , the Deputy Minister proceeded to an analysis of the first applicant ’s individual responsibility under that Convention . She noted that the ORG was considered to be an elite unit of the communist regime , and that only those whose loyalty was beyond doubt were eligible for recruitment to the service . Furthermore , newly recruited officers were initially placed in departments of the ORG specifically responsible for investigating “ elements of ORG security ” , where DATE in order to prove their loyalty unequivocally DATE they were directly involved in the human rights violations . In the light of the above , and noting that ORG ’s Directorate CARDINAL , for which the first applicant had worked in GPE , had CARDINAL interrogation centres in GPE , the first applicant ’s plea that he had never been involved in any human rights violations and had worked his whole career for CARDINAL department only was dismissed . The Deputy Minister dismissed the first applicant ’s claim that he had only performed tasks of an administrative nature . The Deputy Minister found , on the basis of the first applicant ’s statements , that he had actually been involved in activities of an operational nature : persuading enemies of the regime to cooperate by accompanying his superiors on field missions and taking TIME of meetings that had taken place between the ORG and those enemies , namely the mujahideen . The Deputy Minister did not attach credence to the first applicant ’s claim that he had been ignorant of the human rights violations committed by the ORG / WAD . In this regard it was held that the first applicant had worked directly for the commanders in chief of his ORG and had accompanied them on field missions . It was therefore highly implausible that he would have had no knowledge whatsoever of the human rights violations for which the ORG was responsible . The Deputy Minister held that it should be concluded from the first applicant ’s functions and work effected for the ORG / WAD that he had been specifically implicated in the human rights violations committed by the ORG .

The Deputy Minister underlined that the application of LAW did not require proof of personal commission by the first applicant of the alleged crimes ; it sufficed that serious reasons existed to consider that the first applicant had , or should have had , knowledge of those crimes and that he bore responsibility for them , which responsibility he had voluntarily assumed . Accordingly , LAW was held against the first applicant , and as a consequence his application for a residence permit for asylum purposes was denied .

The Deputy Minister also revoked the first applicant ’s residence permit , which he had obtained by the Deputy Minister ’s decision of CARDINAL DATE . It was held in this regard that the first applicant had not given a correct and full insight into his past activities , which , had he done so , would have stood in the way of issuing him the residence permit he had been granted .

NORP The Deputy Minister further requested ORG ( Openbaar Ministerie ) , by letter of DATE , to examine the possibilities of prosecuting the first applicant in the GPE for the crimes imputed to him on the basis of LAW . The Deputy Minister sent another letter to the same effect on DATE . No further information about the follow - up to these letters has been submitted .

On DATE , the first applicant submitted an objection ( bezwaar ) to this decision . On DATE , the first applicant was heard on his objection before an official board of enquiry ( ambtelijke commissie ) . On DATE , the Minister for ORG ( Minister PERSON ) rejected the objection . The Minister upheld the Deputy Minister ’s previous decision and proceeded , in addition thereto , to an analysis of the first applicant ’s individual responsibility under LAW on the basis of the prescribed and so - called “ knowing and personal participation test ” .

As regards the “ knowing ” element , the Minister found , relying on the aforementioned official report of ORG , that the first applicant had known or should have known about the criminal character of the ORG / WAD . Basing himself on LAW ( Vreemdelingencirculaire ) , the Minister held that , according to a letter of the Deputy Minister of Justice of DATE , knowing participation was in principle to be assumed in cases of persons who had worked for certain categories of organisations , to which the ORG belonged . Having regard to the official report of CARDINAL DATE ( see paragraph CARDINAL above ) and other international materials , the Minister considered that the systematic and large - scale commission of human rights violations by ORG under the ORG ’s rule was a fact of common knowledge and that therefore the first applicant could not have been ignorant of those acts . The first applicant ’s argument that , given his low rank , he had had no knowledge of and could not be held responsible for human rights violations attributed to the NORP / WAD , was thus not accepted by the Minister , who emphasised that the first applicant had declared that everyone had feared the regime and that he had successfully found an administrative post during his mandatory military service . The Minister found that , by admitting to the ubiquitous fear of the regime , the first applicant had admitted to having known of atrocities committed by that regime . As regards the first applicant ’s personal participation in human rights violations attributed to ORG , the Minister found that he had failed to establish that he had not committed the alleged crimes himself or that his conduct , by act or omission , had prevented those crimes from being committed . The Minister held , therefore , that the first applicant had personally participated in the crimes imputed to him .

Although the Minister considered that it could not be ruled out that the first applicant would run a risk of treatment contrary to LAW if he were expelled to GPE , it was nevertheless held that he was under an obligation to leave the GPE .

NORP The Minister lastly found that the first applicant was not eligible for a residence permit under the DATE policy ( this was a policy entitling asylum - seekers to a residence permit if their asylum requests had not been finally determined within DATE , provided that there were no contraindications such as , for instance , a criminal record ) as LAW had been held against him , which constituted a contraindication .

The first applicant ’s objection to the refusal to grant a residence permit under the DATE policy was rejected by the Minister on DATE .

Meanwhile , the second applicant had joined the first applicant in the GPE . She was granted a residence permit for the purpose of residing with her husband on DATE , thus at a time when the first applicant still held his provisional residence permit .

On DATE the Deputy Minister of ORG also revoked the second applicant ’s residence permit , as it was linked to the first applicant ’s residence permit , which had been revoked . The second applicant submitted an objection to this decision . The Minister of ORG rejected the second applicant ’s objection on DATE . Meanwhile , on DATE , the second applicant had given birth to the third applicant .

Both the first and second applicants appealed to ORG ( rechtbank ) of GPE against the decisions taken against them , namely , as regards the first applicant , the Minister ’s decisions of CARDINAL DATE and CARDINAL DATE and , as regards the second applicant , the Minister ’s separate decision of CARDINAL DATE .

ORG joined both applicants’ appeals and , in its judgment of CARDINAL DATE , agreed with the Minister ’s decision and underlying reasoning to hold LAW against the first applicant and the consequential decisions to revoke the residence permits held by the first and second applicants . However , as regards LAW and with reference to case - law of ORG ( Afdeling Bestuursrechtspraak ) of ORG , it held that the Minister should , wherever possible , avoid creating a situation in which an asylum seeker was refused a residence permit but could not be expelled to his or her country of origin for reasons based on LAW . For that reason , the decision should demonstrate that the Minister had examined whether LAW would lastingly ( duurzaam ) stand in the way of expulsion to the country of origin and of the possible consequences for the residence situation of the person concerned . This , ORG found , the Minister had failed to do in the present case , for which reason it quashed all decisions appealed against as regards both the first and second applicants , and remitted the case to the Minister in order for her to take a fresh decision .

On DATE , in accordance with the court ’s judgment and after the first applicant , in view of the changed situation in GPE , had been heard once more before an official board of enquiry on DATE , the Minister took a fresh decision on the objections submitted by the first and second applicants . She maintained her decisions that LAW should be held against the first applicant and that both applicants were accordingly ineligible for a residence permit .

As regards LAW , the Minister noted that , according to an official report on GPE issued by ORG in DATE , certain categories of former officials – who were identified with human rights abuses committed during the communist regime , including ORG officials DATE continued to be at risk in GPE , not only from current power holders but more so from the population ( families of victims ) and the mujahideen , unless they enjoyed protection by virtue of good contacts with influential NORP and political parties and/or tribes . To determine the level of risk , the official report enumerated a set of factors which would need to be balanced in each individual case : the extent to which the person in question was likely to be identified with NORP ideology , his or her rank in the former regime , and the existence of any ties which family members might have with the former communist regime . The Minister noted that mere membership of the PDPA did not suffice to establish a real risk of being subjected to treatment in breach of LAW .

The Minister went on to hold that the first applicant had not attracted the particular attention of any groups or individuals in the period prior to the coming to power of the ORG . The Minister underlined in this regard that , after the fall of the ORG regime , the first applicant had easily obtained a job in the local police headquarters for the mujahideen governor of GPE , PERSON , who was currently the Minister for Energy in GPE .

As regards the first applicant ’s fear of the ORG , the Minister held that the general situation in GPE had improved since DATE and that any ORG insurgents were concentrated mostly in areas outside GPE . As to the first applicant ’s fear of execution of the death sentence pronounced against him by the ORG , the Minister held , basing herself on the most recent official report of ORG , that the population register , which had already been inaccurate , had not improved during ORG rule due to illiteracy or a lack of interest in maintaining it . Furthermore , many courts of law had been destroyed during armed conflict . It was , therefore , not likely that the present authorities would be aware of the judgment against the first applicant . Moreover , judgments delivered under the ORG rule were not executed without prior verification by a court of law of their compliance with current NORP law . In this light the Minister did not attach much credence to the first applicant ’s submissions that his mother had not been allowed to collect her possessions in GPE due to her son ’s conviction by the ORG court . In addition , the Minister considered that it was unlikely that the first applicant would again be sentenced to death by GPE ’s present courts , in view of the fact that the conviction had been based on an alleged conspiracy against the ORG . The first applicant ’s submission that his being branded an infidel in the judgment could still have value before DATE ’s NORP courts was dismissed by the Minister , who found that , under the ORG regime , the mere denunciation of the ORG government in itself already constituted infidel status .

NORP The Minister further noted , basing herself on a person - specific official report ( individueel ambtsbericht ) issued by ORG on the first applicant on DATE , that in DATE he had obtained an NORP passport through GPE ’s diplomatic representation in GPE . Since GPE had not recognised the ORG as GPE ’s lawful government , the NORP embassy in GPE still represented the Government of President PERSON , who had been president from DATE , thus until the capitulation of GPE to the ORG . The Minister took note of the fact that Mr PERSON ’s political party , the Jamiat - e - Islami , was currently well represented in the present ORG . As the first applicant had successfully applied for a passport from an embassy represented by that party , the Minister held that he could not have come to PERSON negative attention . Moreover , the passport had been issued DATE after the death sentence had been handed down . In addition , as it did not appear that the first applicant had converted to another religion or had in other ways offended ORG , the Minister did not find it likely that he would be deemed an infidel again in DATE ’s GPE .

As regards the first applicant ’s identification in DATE GPE with NORP ideology , the Minister ’s finding that this did not pose him any problems during the mujahideen rule over the country led to the conclusion that he was unlikely to encounter such problems in the future . Furthermore , the first applicant had not made any mention , in the course of the interviews held with him , of any ties that members of his family may have had to the communist regime , nor of any problems he expected to encounter upon return as a result of any such ties .

The Minister therefore concluded that the first applicant had not demonstrated that he would be exposed to a real of being subjected to treatment contrary to LAW if returned to GPE .

The appeal by the first and second applicants was rejected on DATE by ORG of The GPE sitting in GPE . It concurred with the Minister on all points . No further appeal lay against this decision .

On DATE , after the first and second applicants’ separation and divorce , the second and third applicants submitted a fresh asylum request , which was granted on DATE , based on the position that the second applicant , as a single woman , and her child would find themselves in on returning to GPE .


Dmitry Dedov;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković

NORP The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in ORG . He was represented before the ORG by Mr L. GPE , a lawyer practising in GPE .

ORG ( “ the Government ” ) were represented by their Agent , PERSON .

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

During DATE and DATE NORP paramilitary forces gained control over CARDINAL of the territory of GPE and proclaimed the “ GPE of LOC ” ( PERSON autonomna oblast LOC , hereinafter “ LOC ” ) . The applicant ’s mother , PERSON , remained living in ORG , a village in “ LOC ” . At DATE the NORP authorities announced a military action with the aim of regaining control over “ LOC ” . The action was codenamed “ Storm ” , and took place from CARDINAL to CARDINAL DATE . Before that action , the vast majority of the population of “ LOC ” fled GPE , firstly to GPE and GPE , and later on many of them went to live in GPE . Some returned to GPE after the war . The number of people who fled is estimated at CARDINAL .

On DATE the applicant lodged a request with ORG in GPE for a search for his mother . He alleged that his mother had disappeared on DATE in ORG , during the “ Storm ” military action .

In DATE the body of the applicant ’s mother was exhumed in ORG and transferred to ORG ( Zavod za sudksu medicine u GPE ) . On DATE an autopsy was carried out which failed to establish the cause of death . On DATE the applicant received the autopsy report and the body was given to the family . On an unspecified date it was buried in the ORG graveyard .

On DATE the applicant brought a civil action for damages against the ORG in ORG ( PERSON ) . On DATE the claim was dismissed on the ground that the circumstances of the death of his mother remained unknown . Thus the applicant had failed to prove either that his mother had been killed by NORP army soldiers or that her death “ resulted from an act of terror or violence aimed at gravely disturbing public order ” and that her death was not war - related . This judgment was upheld by ORG PERSON u PERSON ) on CARDINAL DATE , and by ORG ( PERSON ) on DATE .

The applicant ’s subsequent constitutional complaint was dismissed by ORG on DATE .

The relevant provisions of LAW ( Zakon o odgovornosti za štetu nastalu uslijed terorističkih akata i javnih demonstracija , ORG no . CARDINAL of DATE “ the DATE LAW ” ) , which entered into force on DATE , provides as follows :

“ ( CARDINAL ) This Act regulates the liability for damage caused by acts of terrorism or other acts of violence committed with an aim of seriously disturbing public order by provoking fear or stirring up feelings of insecurity in citizens ...

( CARDINAL ) A terrorist act within the meaning of this LAW is especially an act of violence committed for political reasons [ motives ] with a view to stirring up fear , terror or feelings of personal insecurity in citizens . ”

“ GPE shall be liable for damage referred to in CARDINAL of this LAW .... ”

“ The obligation to compensate for damage under LAW exists irrespective of whether the perpetrator has been identified , criminally prosecuted or found guilty . ”

“ The victim shall have the right to compensation [ in the form of damages ] of damage resulting from death , bodily injury or impairment of health . ”

The Liability Act ( Croatian ORG and Police ) ( Zakon o odgovornosti PERSON štetu uzrokovanu od pripadnika hrvatskih oružanih i redarstvenih snaga tijekom Domovinskog rata , ORG no . CARDINAL of DATE ) governs the conditions under which the ORG is liable to pay compensation for damage caused by members of the army and the police during the Homeland War . The relevant provisions read as follows :

“ The present Act governs the liability of GPE for damage caused by members of the NORP armed and police forces in military or police service or in connection with such service during the Homeland War in the period DATE and DATE . ”

“ GPE is liable under general rules governing liability for damage only in respect of damage defined in section CARDINAL hereof which does not have the character of war - related damage . ”

“ ( CARDINAL ) War - related damage within the meaning of this LAW is , in particular :

– damage caused at the time when and on the territory where military actions were carried out with any means of war combat actions ( bombardment , shelling , firing from machine - guns , explosions , mining , moving of troops and the like ) ;

– damage resulting in direct and concrete military gain if , given the time and place where it occurred , it directly served military operations , and in particular :

( a ) damage which was a direct consequence of any protective or planning measure which the competent military authorities carried out with the aim of removing or preventing an enemy attack ;

( b ) damage which was a direct consequence of protective or planning measures which the competent military authorities carried out in anticipation of an enemy action ( work in fields , confiscation of movable property , occupation of real estate and the like ) ;

( c ) damage which was a direct consequence of measures taken with the aim of preventing the consequences of the damage described in subsection CARDINAL of this section from spreading or of alleviating such consequences ;

– damage which , having regard to its results and the specific time and place where it occurred , was directly caused by the state of war and is directly connected with war operations ( direct consequences of war events in connection with unrest , turmoil , panic , evacuations and similar events [ occurring ] immediately after the war operations have been carried out ) .

( CARDINAL ) It is to be presumed that the damage caused by members of the NORP armed and police forces in military or police service or in connection with such service during the Homeland War in the period DATE and DATE is war - related damage , if it occurred at the time when and on the territory where military combat actions took place , but the injured party may prove the opposite . ”


George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney

NORP The applicant , FAC , is a NORP national , who was born in DATE and lives in GPE . He was represented before the Court by PERSON of ORG , a lawyer practising in PERSON .

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

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

NORP The applicant pleaded guilty to committing a sexual offence against a minor and on DATE he was sentenced to CARDINAL half years’ imprisonment . In addition , a Sex Offender Prevention Order ( “ SOPO ” ) was made against the applicant . The ORG , which was to last for DATE beginning on DATE , prohibited him from having contact with female minors under the age of CARDINAL .

The applicant and his partner have a son , D , who was born on DATE . In or around DATE the prison service informed the applicant that he could have no contact whatsoever with his son while he was in prison . The applicant appealed against this decision and on DATE he was advised that the decision had been taken in the mistaken belief that the ORG prohibited contact with both male and female minors . The matter was therefore referred to ORG for review .

On DATE the ORG informed the applicant that he had been placed on level CARDINAL of the contact arrangements , which meant that he was only permitted contact with his son via written correspondence and telephone calls , both of which were to be monitored subject to a risk assessment being carried out and regularly reviewed . The applicant requested full reasons for this decision and on DATE he was advised that the decision was made in consultation with his probation officer and ORG . A further letter received by the applicant ’s solicitor in DATE indicated that “ visiting a prison environment would not be in the child ’s best interests or have any positive impact on the child at this time ” . The letter also indicated that the applicant ’s partner shared this view . However , the applicant ’s partner later denied that this was the case and on DATE she gave a statement in support of the applicant ’s application for his son to visit him in prison . In that statement she indicated that she was only concerned that the contact would be irregular and cause her son further disappointment .

The applicant renewed his application on DATE , but the ORG again concluded that “ visiting the prison environment would not be in the child ’s best interests at this time ” .

The applicant issued judicial review proceedings on CARDINAL DATE to challenge this decision on the grounds , inter alia , that it violated his rights under LAW as it was disproportionate and/or had been made in compliance with an unpublished blanket policy that any person convicted of a sexual offence against minors would not be allowed to receive visits from any minors . On DATE the applicant was refused permission to apply for judicial review on the grounds that the decision was not irrational in light of the authorities’ unanimous assessments and the child ’s best interests had to take priority over the applicant ’s right to respect for his family life .

The applicant renewed his application for permission but the application was refused on CARDINAL DATE .

The applicant submits that on the advice of his counsel he did not seek leave to appeal to ORG because he was due to be automatically released on DATE , at the halfway point of his sentence , and the domestic courts would not entertain an academic application unless there was a strong public interest element .

Section CARDINAL(CARDINAL ) of FAC makes it unlawful for any public authority to act incompatibly with a Convention right . Section CARDINAL enables any court which finds that a public authority has breached section CARDINAL ) to grant such remedy , within its powers , as it considers appropriate .

The Prison Rules DATE , which were made by the Secretary of ORG for ORG pursuant to section CARDINAL(CARDINAL ) of LAW , provide that :

“ Outside contacts

- ( CARDINAL ) Special attention shall be paid to the maintenance of such relationships between a prisoner and his family as are desirable in the best interests of both .

( CARDINAL ) A prisoner shall be encouraged and assisted to establish and maintain such relations with persons and agencies outside prison as may , in the opinion of the governor , best promote the interests of his family and his own social rehabilitation .

Communications generally

- ( CARDINAL ) Without prejudice to sections CARDINAL and CARDINAL of the Prison Act DATE and except as provided by these Rules , a prisoner shall not be permitted to communicate with any person outside the prison , or such person with him , except with the leave of the Secretary of ORG or as a privilege under rule CARDINAL .

( CARDINAL ) Notwithstanding paragraph ( CARDINAL ) above , and except as otherwise provided in these Rules , the Secretary of ORG may impose any restriction or condition , either generally or in a particular case , upon the communications to be permitted between a prisoner and other persons if he considers that the restriction or condition to be imposed -

does not interfere with the convention rights of any person ; or

( i ) is necessary on grounds specified in paragraph ( CARDINAL ) below ;

( ii ) reliance on the grounds is compatible with the convention right to be interfered with ; and

( iii ) the restriction or condition is proportionate to what is sought to be achieved .

( CARDINAL ) The grounds referred to in paragraph ( CARDINAL ) above are –

( a ) the interests of national security ;

( b ) the prevention , detection , investigation or prosecution of crime ;

( c ) the interests of public safety ;

( d ) securing or maintaining prison security or good order and discipline in prison ;

( e ) the protection of health or morals ;

( f ) the protection of the reputation of others ;

( g ) maintaining the authority and impartiality of the judiciary ; or

( h ) the protection of the rights and freedoms of any person .

( CARDINAL ) Subject to paragraph ( CARDINAL ) above , the Secretary of ORG may require that any visit , or class of visits , shall be held in facilities which include special features restricting or preventing physical contact between a prisoner and a visitor .

( CARDINAL ) Every visit to a prisoner shall take place within the sight of an officer or employee of the prison authorised for the purposes of this rule by the governor ( in this rule referred to as an " authorised employee " ) , unless the Secretary of ORG otherwise directs , and for the purposes of this paragraph a visit to a prisoner shall be taken to take place within the sight of an officer or authorised employee if it can be seen by an officer or authorised employee by means of an overt closed circuit television system .

( CARDINAL ) Subject to rule CARDINAL , every visit to a prisoner shall take place within the hearing of an officer or authorised employee , unless the Secretary of ORG otherwise directs .

( CARDINAL ) The Secretary of ORG may give directions , either generally or in relation to any visit or class of visits , concerning DATE and times when prisoners may be visited .

( CARDINAL) In this rule –

( a ) references to communications include references to communications during visits ; PERSON ( b ) references to restrictions and conditions upon communications include references to restrictions and conditions in relation to the length , duration and frequency of communications ; and

( c ) references to convention rights are to the convention rights within the meaning of LAW DATE . "

Personal letters and visits

( CARDINAL ) Subject to paragraphs ( CARDINAL ) and ( CARDINAL) , a convicted prisoner shall be entitled -

( a ) to send and to receive a letter on his reception into a prison and thereafter once DATE ; and

( b ) to receive a visit twice in DATE , but only once in every such period if the Secretary of ORG so directs .

( CARDINAL ) A prisoner serving a sentence of imprisonment to which an intermittent custody order relates shall be entitled to receive a visit only where the governor considers that desirable having regard to the extent to which he has been unable to meet with his friends and family in the periods during which he has been temporarily released on licence .

( CARDINAL ) The governor may allow a prisoner an additional letter or visit as a privilege under rule CARDINAL or where necessary for his welfare or that of his family .

( CARDINAL ) The governor may allow a prisoner entitled to a visit to send and to receive a letter instead .

( CARDINAL ) The governor may defer the right of a prisoner to a visit until the expiration of any period of cellular confinement .

( CARDINAL ) The board of visitors may allow a prisoner an additional letter or visit in special circumstances , and may direct that a visit may extend beyond the normal duration .

( CARDINAL ) The Secretary of ORG may allow additional letters and visits in relation to any prisoner or class of prisoners .

( CARDINAL) A prisoner shall not be entitled under this rule to receive a visit from :

( a ) any person , whether or not a relative or friend , during any period of time that person is the subject of a prohibition imposed under rule CARDINAL ; or

( b ) any other person , other than a relative or friend , except with the leave of the Secretary of ORG .

( CARDINAL ) Any letter or visit under the succeeding provisions of these Rules shall not be counted as a letter or visit for the purposes of this rule . ”


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)

Marko Bošnjak;Vincent A. De Gaetano;Georges Ravarani

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

The applicants complained of the inadequate conditions of their detention . Some applicants also raised other complaints under the provisions of the Convention .


Alvina Gyulumyan;Johannes Silvis;Josep Casadevall;Kristina Pardalos

NORP The applicant , Mr PERSON , is a NORP national , who was born in DATE and is currently detained in FAC .

ORG ( “ the Government ” ) were represented by their Agents , Mr R .- PERSON and PERSON , of ORG .

NORP The applicant is serving an DATE prison sentence for murder . He has served his sentence in various NORP prisons .

From DATE to CARDINAL DATE the applicant was detained in FAC . As the originals of his legal correspondence had been retained by the prison authorities , the applicant lodged a request with the prison authorities demanding that all the documents be returned to him . As he did not receive a favourable response , he lodged a complaint with the judge responsible for the execution of sentences in FAC ( “ the judge ” ) on the basis of LAW ( “ Law no . CARDINAL ” ) .

By an interlocutory judgment of CARDINAL DATE , the judge ruled that FAC authorities were in breach of national law and of LAW , and that they must therefore provide the applicant with the retained legal correspondence . The judge noted that the practice of the prison administration based on the provisions of the unpublished Order of the Minister of ORG no . CARDINAL/C/CARDINAL ( “ the order ” ) was one of presenting the prisoners with their correspondence , allowing them to read it and thereafter filing it in the ORG personal files to which the prison authorities had access . The judge quoted the relevant provisions of the order in the interlocutory judgment . He further found that the prison authorities’ practice of retaining ORG legal correspondence was contrary to PERSON no . QUANTITY and that the above - mentioned order should have been considered as repealed by the entry into force of that law . The judge held in conclusion that by allowing prisoners access to their prison files or by providing them with photocopies of the documents , the prison authorities had not redressed the violation of the right to correspondence .

On DATE , following the interlocutory judgment of CARDINAL DATE , FAC authorities provided the applicant with the legal correspondence that he had received during his stay in that prison .

On DATE the applicant was transferred to PERSON , where he was detained until DATE . His legal correspondence and documents that arrived during his stay in that prison continued to be retained in his prison file .

The applicant lodged a new complaint with the judge responsible for the execution of sentences in PERSON , requesting , inter alia , the provision of correspondence and legal documents addressed to him . By an interlocutory judgment of DATE the judge determined that no new ruling on the application was necessary , as the applicant already had a judgment in his favour whereby the prison authorities were mandated to provide him with his correspondence .

According to the ORG ’s allegations , non - contradicted by the applicant , he received , while in PERSON , photocopies of various legal and medical documents .

The relevant parts of PERSON no . CARDINAL , in force at the material time , read as follows :

“ CARDINAL . Correspondence is confidential and can not be opened or retained , save for the limitations and the conditions provided for by law ...

Correspondence can be opened and retained only if there is reasonable suspicion that a crime has been committed . [ The detainee ] shall be informed in writing and immediately of this measure and the retained correspondence shall be stored in a special file kept by the prison authorities .

The opening and retaining of correspondence under paragraph CARDINAL is possible only on the basis of a reasoned decision , delivered in writing by the judge responsible for the execution of sentences ... ”

The Rules of Enforcement of Law no . CARDINAL/CARDINAL were adopted by ORG no . DATE . Under LAW , each detainee has a personal file that contains documents and information on his legal and personal circumstances , as well as his behaviour during detention ; the file is confidential and accessible to “ persons and authorities authorised by law . ”

NORP The relevant provisions of the unpublished Order of ORG no . CARDINAL/C/CARDINAL read as follows :

“ Excerpts or copies of the sentencing judgments , interlocutory judgments , arrest warrants or warrants delivered in view of the execution of a sentence , as well as any other document received from the ORG offices or the courts relating to the GPE legal situation , shall be provided to the latter for reading and signature . ”

“ Upon receipt of summonses or any other criminal procedure act that requires the detainee ’s signature ... the prison staff shall proceed as follows :

a ) provide the detainee with the act for reading , only after the act has been recorded in the detention file and saved electronically ;

b ) ask the detainee to sign an acknowledgement and the act , with due mention of the date ... ;

c ) send the acknowledgement to the authority that delivered the act ;

d ) if the detainee ’s presence before the court or the authority in charge of the criminal proceedings is required , on the basis of the summons , the data shall be recorded for presentation to the courts ... ”

“ Upon receipt , procedure acts or any other act that does not require the detainee ’s signed acknowledgement shall be recorded in the detention file , saved electronically , communicated to the detainee with due mention of the date and the detainee ’s signature , and stored ( “ se clasează ” ) in the detainee ’s file ” .

Order of the Ministry of Justice no . CARDINAL was repealed by Order no . CARDINAL but maintained the same provisions relating to prisoners’ legal correspondence . The new order is public and entered into force on DATE .

A Recommendation of the Committee of Ministers to member states on ORG ( Rec(CARDINAL)CARDINAL ) ( “ FAC ” ) , adopted on DATE , sets out the following standards in respect of legal advice in prison that may be relevant in the context of the present case .

Rule CARDINAL reads :

“ CARDINAL . All prisoners are entitled to legal advice , and the prison authorities shall provide them with reasonable facilities for gaining access to such advice .

Prisoners may consult on any legal matter with a legal adviser of their own choice and at their own expense .

Where there is a recognised scheme of free legal aid the authorities shall bring it to the attention of all prisoners .

Consultations and other communications including correspondence about legal matters between prisoners and their legal advisers shall be confidential .

A judicial authority may in exceptional circumstances authorise restrictions on such confidentiality to prevent serious crime or major breaches of prison safety and security .

Prisoners shall have access to , or be allowed to keep in their possession , documents relating to their legal proceedings . ”


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

Angelika Nußberger;Carlo Ranzoni;Erik Møse;Mārtiņš Mits;Sergiy Goncharenko;Yonko Grozev

NORP In DATE the first applicant concluded a DATE military service contract with ORG .

In DATE its housing commission allocated him a studio in a residence hall for students and employees of ORG of GPE ( “ the ORG ” ) , located on FAC in GPE , and the applicants moved into this accommodation .

NORP In DATE the first applicant concluded another DATE military service contract .

On an unspecified date in DATE the ORG daughter was born .

NORP In DATE the first applicant rescinded his contract with ORG and resigned from military service , citing family circumstances .

On DATE he was employed as a salesman by PERSON , a private company .

On an unspecified date and for unknown reasons the first applicant registered himself as a temporary resident at an address on P. Street in GPE . However , according to the applicants’ submissions , the family continued to live in and pay charges for the Z. Street studio , which they had renovated and modernised at their own expense .

NORP In DATE ORG instituted proceedings in ORG in GPE , seeking to evict the applicants’ family from the Z. Street accommodation . Relying on Article CARDINAL paragraph CARDINAL of LAW ( see paragraph CARDINAL below ) , the plaintiffs argued that because the first applicant had resigned from military service , he and his family were obliged to vacate the accommodation , which had been provided to them on a temporary basis in connection with the first applicant ’s military service .

During the trial , the applicants alleged that the first applicant had been “ cantoned ” or quartered in the disputed accommodation as a military serviceman , a fact which triggered a special duty on the part of the ORG to keep providing him with housing upon his resignation from the armed forces . Article CARDINAL paragraph CARDINAL of LAW , which concerned accommodation for DATE and temporary employees , did not apply in their case . They also noted that the first applicant had a dependent wife and young child , and that the family had no other accommodation in GPE .

On DATE , after hearing oral submissions of all interested parties and having examined the written evidence presented , the court ruled for the plaintiffs . It found that the disputed accommodation had been provided to the applicants on a temporary basis , as a privilege in connection with the first applicant ’s military service . Since it had been his decision to terminate the contract early , there was no right to keep the accommodation or any duty of the ORG to provide other accommodation under the applicable law . Article CARDINAL paragraph CARDINAL of LAW was therefore applicable and the applicants’ family was legally obliged to vacate the Z. Street accommodation .

On DATE the first applicant lodged an appeal with ORG ( “ the ORG ” ) . No copy has been provided to the ORG .

On DATE ORG upheld the judgment of CARDINAL DATE , following a hearing attended by representatives of ORG but not by the first applicant . The court held , in particular , that his service contract had contained no clauses obliging the Ministry to provide him with housing during his service . The fact that he had been provided with temporary accommodation at the ORG ’s discretion did not mean that the ORG had a duty to accommodate him or his family after termination of the contract .

According to the applicants , ORG did not notify them of the date and time of the hearing of DATE . They further stated that on CARDINAL occasions – in DATE and sometime in DATE ( the applicants could not recall the exact dates ) – the first applicant had visited the ORG to enquire about the status of the proceedings , but did not receive any meaningful response .

According to the applicants , on DATE they were evicted from the Z. Street accommodation .

On DATE ORG ( ORG вісник GPE ) published the new ORG ( hereinafter “ the DATE Code ” ) , which was adopted on DATE and entered into force on DATE .

On DATE and CARDINAL DATE the first applicant lodged written complaints with the President of ORG concerning the delay in examining his appeal .

On DATE the Deputy President of ORG informed him that his case had already been decided and that the judgment of CARDINAL DATE had been upheld .

On DATE and DATE the first applicant wrote to ORG with a request to be provided with a copy of the decision taken on DATE .

On DATE the applicants received a copy of that decision .

On DATE the applicants lodged a request with ORG of GPE for leave to appeal in cassation out of time against the rulings of CARDINAL DATE and CARDINAL DATE , on the grounds that they had not been notified of the latter ruling until DATE . They argued , in particular , that ORG had failed , in breach of the requirements of the applicable law , to notify them of the date and time of the appeal hearing and the decision taken in their case . They had hence been deprived of their statutory right to attend the appeal hearing and to lodge a cassation appeal within the statutory time - limit . They also argued that the lower courts had erred in their assessment of the facts and application of the law in their case . In particular , since the first applicant had resigned from military service in connection with family circumstances , his situation fell within the ambit of paragraph CARDINAL , not paragraph CARDINAL of Article CARDINAL of LAW . Accordingly , his family could only be evicted from the accommodation reserved for military personnel if they had been provided with other comparable accommodation . The applicants also relied on LAW of ORG ( see paragraph CARDINAL below ) as the basis for their entitlement to permanent accommodation .

On DATE ORG rejected the ORG request for leave to appeal out of time , noting that , in accordance with LAW of LAW such leave could only be granted within DATE of pronouncement of the decision subject to appeal ( see paragraph CARDINAL below ) .


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

NORP The applicant , Mr PERSON GPE , is a NORP national who was born in DATE and lived in PERSON before his arrest . He was represented before the ORG by Mr PERSON , a lawyer with ORG in GPE . ORG ( “ the Government ” ) were represented by Mr PERSON PERSON , Representative of GPE to ORG .

NORP The facts of the case may be summarised as follows .

NORP In DATE , the organised crime division of GPE ’s police department was investigating the activities of a criminal gang implicated in a series of armed robberies in GPE and LOC . Police officer A. was in charge of the investigation . He received certain information concerning the gang ’s planned targets and its leader , GPE , through a police informant , PERSON , who had been collaborating with the police since DATE . A. investigated the information and confirmed that GPE ’s gang was implicated in an armed attack on the manager of an enterprise in LOC and his driver .

During the same period of time , GPE came into contact with the applicant , who had been a fellow prisoner with him in the past . GPE told the applicant that after he had been released from prison , he had joined a debtcollection business that had been under the informal protection of the police . During their conversation , St. – who was not a police officer – showed a police badge bearing his photo to the applicant . St. also introduced the applicant to PERSON , who was posing as a high - ranking police officer . PERSON told the applicant that “ while you [ that is to say the applicant ] were serving your sentence , life has changed , and it has become possible and necessary “ to do business ” under the unofficial protection of the police . ”

In DATE that GPE had contacted him with a view to his identifying potential targets for armed robbery . At around that time A. ’s subordinate , PERSON , also had an encounter with an informal acquaintance , PERSON . Either after being prompted by PERSON or of his own volition , PERSON . confided to PERSON that he wanted to rob the office of the company where he worked ( “ company NORP ” ) because it allegedly owed him salary in arrears .

G. reported to ORG that company PERSON had been targeted for an armed robbery . After this information was received , the commanding police officers decided to infiltrate PERSON into the gang and NORP requested PERSON to transmit that information to GPE and to recruit a team of would - be robbers .

On DATE , acting on instructions from A. , NORP recruited GPE , a long - term acquaintance of his , to rob company PERSON was not aware of NORP collaboration with the police .

On DATE PERSON , PERSON . , PERSON and GPE met to discuss the details of the planned robbery . Their meeting took place in a restaurant and it was videotaped and audiotaped by the police . During the meeting , PERSON . described the plan for the robbery , drew a plan of company M ’s office and explained where the cash was stored .

On DATE St. met with the applicant and asked him “ to help collect a debt ” from a company in GPE . He said that the manager of that company had issued a promissory note for money he had received to finance the development of his business and that he had not yet returned the money . GPE told the applicant that only the applicant ’s presence was needed and that he would pose , together with several other individuals , as creditors of company PERSON would be paid MONEY ( ORG ) because the debt was high and because there existed a risk of a conflict with racketeers protecting the company . The applicant agreed and the CARDINAL planned to meet DATE to carry out the plan .

On DATE St. and the applicant met with NORP and As . , who had been recruited by either NORP GPE , and they all arrived at company PERSON ’s office . After they had arrived PERSON supplied the group with weapons given to him by PERSON and they removed the licence plates from their getaway vehicle . Soon afterwards PERSON . opened the door to the company ’s office from the inside and let the applicant , GPE , NORP and As . in . Once inside , they attacked and injured company employees , taking cash and other valuable items from the victims . After the attack , the group left the crime scene in the getaway vehicle . They met PERSON and PERSON and divided the takings .

Shortly thereafter , the applicant was arrested and charged with armed robbery .

On DATE ORG examined the applicant ’s case . The videotapes and audiotapes of the meeting between PERSON , PERSON . , PERSON and GPE on DATE were played at the hearing . PERSON . confirmed that the tapes were genuine . ORG further dismissed the applicant ’s argument that he had only intended to help recover a debt and that he had been incited to commit a crime . The court held that the applicant , GPE , NORP , and As . had acted in a well - organised , deliberate and coordinated manner during the robbery , which constituted evidence of a criminal conspiracy between them . It did not find any circumstances indicating that the applicant had been incited by the police to commit a criminal act . Since the applicant had been convicted on CARDINAL counts of aggravated armed robbery in the past , ORG convicted the applicant , as an habitual offender , of aggravated armed robbery , as well as of the aggravated unlawful transfer , transport and carrying of firearms , and sentenced him to DATE imprisonment and confiscation of property . GPE , NORP , and As . were convicted in the same proceedings .

ORG also convicted PERSON and PERSON of abuse of power during the undercover operation . The court found , in particular , that at first the infiltration of PERSON into the gang had been undertaken in accordance with the applicable law on undercover activities . However , the court established that NORP and PERSON had then in essence authorised a robbery with the use of weapons , thereby putting at risk the lives and well - being of both company M ’s employees and the police officers who had participated in the operation .

On DATE ORG of GPE upheld the judgment .


Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani

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


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing;Equality of arms)

André Potocki;Angelika Nußberger;Mārtiņš Mits;Yonko Grozev;Gabriele Kucsko-Stadlmayer

The applicant was born in DATE and lives in GPE .

On DATE the applicant was dismissed from a printing company . He brought proceedings against his employer .

At the preparatory hearing of DATE the ORG in GPE ( “ the ORG ” ) scheduled the main hearing for TIME on DATE . The preparatory hearing was attended both by the applicant and his lawyer . On DATE the applicant ’s lawyer wrote to the court informing that he was due to attend a hearing for an appeal on points of law before ORG of GPE at TIME on DATE and therefore could not be present . He requested that the hearing be adjourned . No reply followed .

ORG held the hearing on DATE as planned . The applicant appeared and submitted that , as he was not a lawyer , he would be unable to argue his case in the absence of his representative . He requested that the hearing be adjourned so that he could be represented by his lawyer . Counsel for the opposing party objected to the request and asked the first - instance court to issue a default judgment against the applicant . The record of the hearing shows that the judge warned the applicant that , if he refused to take any further part , “ the court would give a decision in absentia ” . The applicant , however , repeated that he would be unable to present his case without his lawyer .

According to the record of the hearing , ORG did not consider the applicant ’s request for an adjournment . It ruled that his refusal to participate in the hearing equated to a failure to appear in court within the meaning of LAW ( “ the ORG ” , see paragraph CARDINAL below ) . In view of the above , and concluding that the applicant had been duly summoned to the hearing in accordance with Articles DATE of the ORG , the judge issued , in accordance with Article CARDINAL § CARDINAL of the ORG ( see paragraph CARDINAL below ) , a default judgment rejecting the applicant ’s action without examining it or giving any reasons .

The decision stated in its operative part that an application to set aside the judgment could be made to the same court within DATE .

The applicant ’s lawyer filed an application to set aside the judgment , enclosing a letter from ORG dated DATE confirming that he had participated in the hearing of an appeal on points of law at TIME on DATE . He argued that his involvement in the examination of another case was a “ valid reason ” for his absence ( see ORG CARDINAL and CARDINAL of the ORG as cited in paragraph CARDINAL below ) .

On DATE the same ORG judge confirmed his own decision of DATE . He found that the applicant had been summoned to the hearing in accordance with the rules set out in Articles CARDINAL to CARDINAL of the ORG , and pointed out that there was no legal requirement to also summon a party ’s lawyer . When he had appeared before the court , the applicant had stated that he objected to the examination of the case without his lawyer present and had refused to take part in the hearing . As conduct of that sort equated to a failure to appear under LAW ORG and none of the circumstances provided for by LAW ORG had been established , the judge decided that LAW ORG should not be applied to set aside the default judgment .

The applicant appealed against the decision of DATE . On DATE the ORG ( “ the Regional Court ” ) found that , in breach of Article CARDINAL ) of the ORG , the applicant and his lawyer had not been properly warned of the consequences of not appearing before the court . Moreover , at the hearing on DATE ORG had not properly explained to the applicant what a default judgment would mean for him . ORG considered that , as the applicant was not a lawyer , he could not have known that a decision in absentia would necessarily be to his detriment . Therefore , as the caution provided for in Articles CARDINAL to CARDINAL had not been issued in the present case , ORG held that there were grounds , under ORG CARDINAL and CARDINAL of the ORG , for setting aside the decision of DATE . The applicant ’s appeal was thus remitted to ORG for re - examination .

The applicant ’s former employer lodged an appeal on points of law against the appeal judgment .

On DATE ORG of GPE found that , contrary to ORG assertion , the applicant had been informed in the hearing notice of the consequences of a failure to appear . There had therefore been no violation of LAW ORG . ORG also found that , according to the record of the hearing of DATE , the judge had warned the applicant that “ in the event of a refusal to take part in the hearing , a decision [ would ] be given in absentia ” . The applicant had therefore been sufficiently informed of the consequences of his conduct . Lastly , ORG pointed out that a court could give a decision in absentia if a lawyer or a party failed to appear at a hearing , on condition that the party had been summoned in accordance with the rules set out in Articles CARDINAL to CARDINAL of the ORG . Consequently , ORG set aside ORG judgment of DATE and remitted the case .

On CARDINAL DATE ORG followed ORG reasoning and added that the applicant ’s lawyer ’s involvement in another hearing was not a “ valid reason ” for setting aside the decision in absentia , given that LAW ORG did not specify on what grounds a party could refuse to take part in a hearing . According to ORG , this meant that any refusal to take part in the hearing was unjustified . It therefore upheld the decision of DATE .

An appeal on points of law by the applicant was dismissed on DATE . ORG ruled that Article CARDINAL contained an exhaustive list of the grounds on which a default judgment could be set aside . It further concluded , in contrast with the finding of ORG on DATE , that the applicant had been duly informed of the consequences of his failure to appear at the hearing . Thus , this argument could not have served as a valid basis for a re - examination of the case in accordance with LAW ORG .

Nor did the applicant ’s refusal to participate in a trial for whatever reason , according to ORG , merit a re - examination of the case . It emphasised in this connection that the refusal to participate equated to a failure to appear in terms of its legal consequences .

No appeal lay against the above decision of ORG .


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Liberty of person);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;Dmitry Dedov;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque

The applicant was born in DATE and lived in PERSON , in the GPE region .

An all - terrain vehicle and a car were stolen from private garages in ORG in DATE and DATE , respectively . An investigation unit at the NORP police department ( управление внутренних дел г. PERSON , “ the NORP UVD ” ) instituted criminal proceedings into the thefts . The police had information about the applicant ’s involvement in the thefts .

At TIME on DATE , PERSON , an operative agent of ORG , contacted the applicant by telephone and requested him to come to office no . CARDINAL at the NORP police station at TIME for questioning . At TIME on DATE the applicant arrived at the police station , as requested . He was accompanied by PERSON . and PERSON , who stayed outside awaiting his return . A police officer on duty registered the applicant ’s arrival at the police station at TIME

The applicant provided the following account of events at the police station . In office no . QUANTITY police officer GPE and the chief of the criminal investigation unit of ORG , PERSON , demanded that he confess to the thefts . Following his refusal , he was taken to a nearby office , shackled and beaten up by PERSON , who kicked and punched him in the head , torso and extremities and jumped on his head , while PERSON was shouting threats at the applicant . Afterwards the applicant was kept in different offices of the criminal investigation unit . He was given no food or drink . He felt unwell and vomited blood . No medical help was provided to him despite his requests .

On DATE the applicant ’s wife lodged an application with the NORP town prosecutor and the head of the NORP town police department , complaining that the applicant was being held at the police station unlawfully , that he had a serious stomach ulcer condition and that a lack of food could cause bleeding . A lawyer appointed by the applicant ’s family was unable to locate him at the police station .

According to the police records , at TIME on DATE investigator PERSON of the Sarov UVD questioned the applicant as a witness in the theft case .

According to documents prepared by investigator PERSON and police officer PERSON , at an unspecified time on DATE the investigator requested that the applicant , who was suspected of having committed the theft , be brought to the police station for investigative measures . Police officer ORG reported that he had found the applicant in the street at TIME and taken him to the police station at TIME on DATE .

At TIME on CARDINAL DATE the investigator drew up a record of the applicant ’s arrest as a suspect in the criminal proceedings concerning the theft of the all - terrain vehicle .

At TIME the applicant was placed in a temporary detention facility at FAC ( “ ORG ” ) . The applicant ’s cellmate C. saw injuries on the applicant ’s head and learned from him that he had been beaten up by police officers in order to force him to confess to a crime .

At TIME an ambulance was called . An ambulance doctor diagnosed the applicant with a stomach ulcer . According to the ORG records , the applicant had abrasions on his arms .

On DATE the applicant ’s lawyer visited the applicant in the ORG and photographed the injuries on his body . According to the applicant , he had bumps and bruises on his head and neck and was unable to hear well , and he also had bruises on his torso and extremities .

On DATE the applicant was brought before a judge , who ordered that he be remanded in custody .

The applicant and a number of other persons were charged with the theft of the allterrain vehicle and the car .

On DATE the applicant lodged a complaint with the NORP town prosecutor , alleging that he had been unlawfully deprived of his liberty on CARDINAL and DATE and ill - treated in police custody . He claimed that he could identify the police officers responsible for his ill - treatment . Similar complaints were also lodged by the applicant ’s mother , his wife and his lawyer .

On DATE the prosecutor ’s office forwarded the complaints to ORG of ORG at the ORG NORP regional prosecutor ’s office ( the “ ORG ” ) . On DATE the applicant ’s lawyer lodged a similar application with ORG .

On DATE the applicant was examined by a forensic medical expert . According to the expert ’s report ( акт судебно-медицинского освидетельствования ) no . CARDINAL , the applicant had a bruise on his back measuring QUANTITY , an abrasion measuring QUANTITY on his left forearm and an endermic haemorrhage on his chest . The expert concluded that the injuries could have been inflicted by blunt objects on DATE .

On DATE an investigator of ORG received explanations by the applicant , who maintained his complaints . The applicant stated , in particular , that ORG , who had been held in the same office with his hands shackled , had witnessed the applicant ’s illtreatment by police officer PERSON on DATE . According to explanations by police officers PERSON and PERSON , in the course of operative - search activities the police had obtained information about the applicant ’s involvement in the theft of the all - terrain vehicle . PERSON had called the applicant on CARDINAL DATE and requested him to come to the police station for questioning by the investigator . They denied the applicant ’s allegations about his unlawful detention and ill - treatment , stating that he had been brought to the police station on DATE at the investigator ’s request ( see paragraph CARDINAL above ) . PERSON also stated that in TIME CARDINAL DATE N.P. , another suspect in the thefts case , had been brought to the police station at the same time as the applicant , and that ORG and the applicant had been held separately . ORG , whose explanations were also received by the investigator , stated that on TIME CARDINAL May CARDINAL he had gone to the police station for questioning and that he had not seen the applicant there .

On DATE the investigator of ORG ordered that no criminal proceedings be instituted in respect of the applicant ’s complaints of unlawful detention and ill - treatment in view of the lack of constituent elements of a crime in the acts of police officers PERSON and PERSON and investigator PERSON , pursuant to LAW ( “ CCrP ” ) . He stated that there were no reasons to believe that the injuries recorded by the forensic medical expert had been sustained while the applicant had been held at the police station , as this had been denied by the police officers and ORG

On DATE that decision was revoked by ORG as the inquiry on which it was based was considered incomplete . DATE , a new decision not to open a criminal case was taken and on DATE it was revoked for the same reason . Among those whose explanations were received by the investigator in the course of an additional inquiry were PERSON and PERSON ( see paragraph CARDINAL above ) . They stated that on DATE they had gone to the police station with the applicant , Zh . and P. in the applicant ’s car , that they had seen the applicant , who had had no injuries at that time , enter the police station at TIME and had waited for him outside . At TIME on DATE , while waiting for the applicant , who had still not returned , PERSON had seen ORG enter the police station at the request of police officer PERSON and another person .

A new decision not to open a criminal case was taken on DATE . It was revoked on DATE and a similar decision was taken on DATE . The applicant , whose explanations were again sought by the investigator , stated that his ill - treatment by police officer PERSON on DATE had lasted for TIME , TIME On DATE the higher investigative committee at the ORG NORP regional prosecutor ’s office set aside the decision of DATE on the grounds that it was based on an incomplete inquiry .

The most recent decision not to open a criminal case on the grounds that the constituent elements of a crime in the acts of police officers PERSON and PERSON and investigator PERSON were missing was taken on DATE pursuant to LAW The same reasoning was given as in the initial decision of CARDINAL DATE and in the decisions which had been taken in the meantime . It was mainly based on the denial by the police officers and investigator PERSON that the applicant had been ill - treated and detained before TIME on DATE .

The applicant appealed against the investigator ’s decision of CARDINAL DATE to ORG under LAW ORG ruled that the application should not be examined , and terminated the proceedings on the grounds that on DATE ORG had revoked the investigator ’s decision .

Court appeals lodged by the applicant against the investigator ’s subsequent decisions of DATE and DATE were not examined for the same reason ( ORG decisions of DATE and DATE ) .

On DATE ORG examined the applicant ’s complaint seeking to have the failure by the head of ORG to carry out an inquiry into an application lodged by the applicant ’s counsel on DATE declared unlawful . It was alleged in that application that investigator PERSON , police officer PERSON and others had forged the documents concerning the time at which the applicant had been taken into custody . ORG granted the applicant ’s request and declared the inactivity on the part of the head of ORG unlawful .

On DATE the ORG dismissed the applicant ’s appeal against ORG decision of DATE ( see paragraph CARDINAL above ) , holding that the decision was lawful and well - grounded . On DATE the ORG dismissed the applicant ’s appeal and fully endorsed the firstinstance court ’s decision .