Violation of Article 2 - Right to life (Article 2 - Positive obligations) (Procedural aspect)

Alvina Gyulumyan;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra

The applicant was born in DATE and lives in GPE .

A private exporting company ( “ company E ” ) had concluded a contract with FAC of ORG ( PERSON CFR PERSON ) and another private company ( company M ) . The contract provided that company E could use an industrial railway track for the CARDINAL wagons put at its disposal by ORG in order to perform all the necessary operations , including customs inspections , for exporting its merchandise abroad .

On DATE , at TIME , GPE went to FAC with all the documents relating to the transportation of company E ’s merchandise , in order to have the station ’s stamp applied to them . When all the documents had been stamped , the manager of company E , together with GPE , went to ORG to ask for a customs inspector to carry out an inspection of the wagons and apply the required seals . The applicant was designated to carry out the customs inspection .

At TIME the applicant went with the manager of company ORG and GPE to FAC . They firstly went to the station ’s cash desk , where the manager of company E paid the taxes relating to the transportation of the merchandise and asked to have the consignment note ( CIM ) stamped . According to the statements of the manager of company E , GPE , and the applicant , an employee of ORG , GPE , went with them in order to show them where the wagons were .

At TIME , while he was on top of a wagon trying to apply the customs seals , the applicant was electrocuted . As a result of the accident , the applicant needed DATE of medical care . He suffered burns to PERCENT of his body .

In most of the official documents regarding the accident , such as the report of the investigation commission of DATE , the decisions of the courts and the prosecutors , and a medical report drafted on DATE , it was stated that the applicant ’s life was at risk . For DATE he was in a deep coma in a hospital in GPE . Because of the severe burns he had serious breathing difficulties and had to undergo multiple skin grafts .

Following a decision by ORG on DATE , the applicant was classed as permanently disabled .

QUANTITY police officers attended at the scene of the accident and drafted a preliminary on - the spot report on DATE .

A special commission composed of experts from ORG , ORG ( PERSON Interjudețeană PERSON ) and ORG of ORG was set up to investigate the accident . The commission started its investigation on DATE , DATE after the accident .

According to the report drafted by the commission , which was completed on DATE , the accident had occurred because of the improper organisation of the procedure for inspecting the merchandise . It stated that there were several concurrent causes which had led to the applicant ’s accident .

The report stated that the receipt of the wagons by company E from ORG had not been effected in accordance with the framework agreement signed on DATE by FAC and company M , or with the document entitled “ Declarație ” signed by company M , company E and ORG . According to a final decision of DATE , delivered in criminal proceedings , this last document was signed after the accident occurred , but the manager of ORG back - dated it ( see paragraph CARDINAL below ) .

NORP The report also stated that health and safety regulations had not been observed and the applicant ’s employer had not ensured that he was properly trained for performing his duties on the railway tracks .

The report concluded that the following were responsible for the accident : ( i ) the manager of company E because he had not organised the customs inspection and had not complied with the above - mentioned agreement ; ( ii ) the applicant because he had not complied with the rules for carrying out the inspection ; ( iii ) the applicant ’s superior for not training him on the applicable safety regulations , and ( iv ) company E , also for not training its employees properly .

ORG raised certain objections in respect of the report . It insisted that the report mention that the applicant had gone up onto the wagon only after PERSON , an employee of ORG , had assured him that there was no danger of an accident ( a reference to the statements of ORG and the manager of company E , who had been present when the accident occurred ) .

It also pointed out that the applicant had undergone training on DATE .

Finally , it contended that an analysis of the documents and the statements of the witnesses present at the incident showed that the accident had occurred because ORG had not observed Order no . CARDINAL of DATE , which set out the health and safety regulations for the rail transport industry .

At the end of the investigation the special commission imposed administrative fines on company E and its manager for nonobservance of the applicable health and safety regulations .

Company E lodged a complaint seeking to have the fine cancelled , arguing that it had been under no legal obligation to train the applicant because he was not employed by them .

By a judgment of DATE LOC Court allowed the complaint and held that ORG should be held liable for the accident . Its reasoning was as follows : “ Demonstrating gross negligence , the representatives of ORG did not order the removal of the CARDINAL freight wagons to the industrial track ” . The industrial track was not electrified . The court continued its reasoning by stating that since ORG had agreed to transport the merchandise by presenting the necessary documents to the customs authority , it had become responsible for the operation . In accordance with decision TCARDINAL concerning the application to NORP territory of the common transit system for rail freight transport , ORG was required , among other obligations , to ensure appropriate conditions for a safe customs inspection . The court concluded that by leaving the CARDINAL freight wagons on high voltage railway tracks without informing all the persons involved in the customs inspection , ORG had failed to fulfil that obligation .

NORP The special commission also imposed a fine on the manager of company E on the ground that he had not taken the necessary steps to ensure the safety of the customs inspection , and that although he had accompanied the applicant to the railway station he had not made a written request for the removal of the freight wagons from the electrified railway track .

NORP The manager lodged a complaint against the fine and , by a final judgment rendered on DATE , ORG allowed the complaint , holding that the manager had not been obliged to request the removal of the wagons from the electrified railway tracks . It also held that he could not have known that the tracks were electrified . Further , it stated that according to the framework agreement signed on DATE , the wagons should have been at track no . DATE , which was located outside the railway station , and that employees of ORG should have moved the wagons from the railway station to track no . CARDINAL . It concluded that the employee of ORG who had also been present at the customs inspection , FAC , had assured the applicant that he could perform his inspection even though the wagons were on an electrified track .

On DATE ORG asked the prosecutor ’s office to start a criminal investigation into whether the manager of company E could be held responsible for the accident . Accordingly , the prosecutor ’s office attached to FAC opened a preliminary investigation .

The applicant gave a statement before the prosecutor on CARDINAL DATE . He informed that he intended to claim compensation from the persons found responsible for the accident .

By a decision of CARDINAL DATE , the prosecutor decided not to initiate a criminal investigation on the ground that the accident had been caused through the applicant ’s own fault . That decision was upheld by the chief prosecutor on DATE .

The applicant lodged a complaint against that decision with the prosecutor ’s office attached to ORG . He contended that the investigation body had not managed to clarify the circumstances under which the accident had occurred and therefore it was necessary to hold a confrontation between all the witnesses who had given contradictory statements , and that a reconstruction of the accident scene would be useful . As to the presence of GPE , the employee of ORG , at the scene of the accident , even the statements of her own colleagues were contradictory . The applicant further maintained that without PERSON , who had accompanied them to track no . DATE , he and the manager of company E would not have been able to find the wagons to be inspected . The applicant also claimed that the warning sign on the wagons to be inspected had not been there at the time of the accident but had been placed there after the accident . In this connection , he pointed out that such a sign could not be seen in the photographs taken by the police officers who had examined the scene immediately after the accident . The sign appeared only in the photographs taken by ORG DATE after the accident .

On DATE the chief prosecutor dismissed the applicant ’s complaint as unfounded . He held that the applicant alone was responsible for the accident because he had mounted the wagon while it was connected to live electricity without paying heed to the warning sign on the wagon and the framework agreement signed by ORG and the beneficiary ( company E ) . He dismissed the applicant ’s allegation that the warning sign had not been attached to the wagon on DATE of the accident , stating that the sign could not be seen from the angle at which the photographs had been taken on DATE . He also dismissed the applicant ’s request to have the witnesses reheard on the ground that their statements were not relevant in so far as they could not make any difference to the final conclusion .

On DATE the applicant lodged a complaint against that decision with ORG , alleging that the staff of ORG were responsible for the accident . By a judgment of DATE the court allowed the complaint and sent the file back to the prosecutor ’s office for an expert report to be drafted and for it to be determined whether ORG , the employee of ORG who the applicant claimed had accompanied him to the freight train , bore any responsibility . The experts were to establish whether the railway tracks had been electrified when the applicant climbed onto the freight train on DATE of accident .

On DATE ORG allowed an appeal on points of law lodged by the prosecutor ’s office and quashed the judgment of DATE on the ground that on the basis of Article CARDINAL ( CARDINAL ) of LAW , the first - instance court could not remit the case to the prosecutor ’s office for further investigation . Consequently , the file was sent back to ORG for fresh examination .

On DATE FAC dismissed the applicant ’s complaint and upheld the prosecutor ’s decision not to initiate a criminal investigation . It held that none of ORG employees had been responsible for the applicant ’s accident . In this connection , it found that according to the statements given by PERCENT ’s colleagues , she had not accompanied the applicant , ORG and the manager of company E to the freight train . It also stated , however , that the customs inspection should have been carried out at track no . CARDINAL and not at track no . CARDINAL . It concluded that the applicant alone was responsible for the accident because he had not paid heed to the warning sign on the wagon and the framework agreement signed by ORG and company E.

The applicant lodged a criminal complaint against the manager of ORG for forgery of a document called “ Declarație ” , submitted to the special commission while it was carrying out its investigation into the accident . The document was in fact an agreement signed by ORG , company E and company M stipulating that customs inspections of merchandise should be carried out only at track no . CARDINAL ( which was not electrified ) . The applicant stated that the manager had drafted it and asked the managers of the CARDINAL other companies to sign it immediately after the applicant ’s accident ( on DATE ) , but had given DATE as the date of signing .

After repeated decisions not to initiate criminal proceedings delivered on DATE , DATE and DATE , on DATE the prosecutor ’s office attached to LOC Court indicted the manager of ORG for abuse of office , forgery and the use of forged documents , and sent his file to LOC .

By a judgment of DATE , LOC Court found the manager guilty as charged . It held that he had drafted the agreement in order to protect his company from liability for the applicant ’s accident . The subsequent appeal and appeal on points of law were dismissed as unfounded by ORG and ORG on CARDINAL April and DATE respectively .

On DATE the applicant lodged an application for judicial review of the criminal judgment rendered on DATE by FAC . He claimed that there were new elements which could prove the guilt of ORG in respect of the events which had led to his accident . In this connection he relied on the final decision of LOC of DATE , by which the manager of ORG had been found guilty of the forgery of the document entitled “ Declarație ” which had been used as evidence in the criminal proceedings relating to the applicant ’s accident . He also applied for CARDINAL new witnesses to be heard on the question of whether PERSON had been present when the accident occurred .

The applicant argued that that document had played a decisive role in the conclusions of the investigation commission , as well as in the decisions of the prosecutors and judges , as to liability for the accident .

ORG dismissed the application as inadmissible as it concerned a decision in which the court had not examined the merits of the case , and as unfounded because the new evidence referred to by the applicant did not de facto affect the facts established in the decision .

On DATE the applicant brought a civil action before FAC seeking compensation in respect of pecuniary and non - pecuniary damage . He claimed damages from ORG and M.M on account of their negligence in the organisation of the customs inspection . He stressed that because of the accident he had had to undergo expensive surgical interventions and had been classed as permanently disabled .

On DATE ORG dismissed an objection of res judicata raised by the defendants . It held that the criminal decision of DATE had not examined the civil liability of the defendants but only their criminal liability . The court noted that although the evidence concerning ORG presence at the scene of the accident was not conclusive , ORG employee should nevertheless be held liable because she had not fulfilled her professional duties . The court further noted that , according to CARDINAL of ORG colleagues who had occupied the same position as FAC , and to her job description ( “ FAC ” ) , it had been ORG duty to handle the customs documentation for the customs agent and also to supervise the shunting of the relevant wagons in the railway station . The court also found that under the applicable law on the application of the common transit system in GPE , ORG had been obliged to be actively involved in the customs inspection of the wagons . However , the company had observed its obligations superficially through its employees . Thus , by applying the stamp to the CIM , the company employee had convinced the applicant and the manager of company E that everything was ready for inspection .

The court partly allowed the applicant ’s action , held that both the applicant , ORG and FAC were equally responsible for the accident , and ordered the defendant company and FAC to pay CARDINAL the damages claimed .

The defendant company appealed and the appeal was allowed by ORG on DATE . It quashed the judgment of the first - instance court , holding that the de facto situation had already been established by a final decision of a criminal court , and had thus acquired the authority of res judicata before the civil courts .

On DATE ORG dismissed an appeal on points of law lodged by the applicant .

Order no . CARDINAL of DATE sets out the health and safety regulations for the rail transport industry . Article CARDINAL provides that the regulations are compulsory and that they must be communicated to the interested persons by local labour inspectorates . They are not published in ORG .

Article CARDINAL of the Order prohibits the inspection , application of seals or carrying out of any work on the upper parts of a wagon while the train is on electrified tracks .

Article CARDINAL of the LAW provides that all specified preventive steps must be taken when operations presenting a danger of electrocution are performed .

The CIM is a standardised document for the cross - border transport of cargo by rail , based on ORG recommendations for uniform international rules and in use in ORG ( ORG ) . CIM stands for ORG concernant le transport des Marchandises par chemin de fer , the NORP name for the LAW that governs its definitions and application .

The TCARDINAL procedure concerns the movement of non - ORG goods when customs duties or other import taxes are involved .

According to LAW , which sets out a common transit procedure , a railway company which accepts goods for carriage under cover of a CIM consignment note serving as a common transit declaration shall be the principal for that operation .

Criminal proceedings in GPE are regulated by LAW and based on the principles of legality and officialness . Prosecution is mandatory when reasonable suspicion exists that a criminal offence subject to mandatory prosecution has been committed .


CASE OF ALEKSANDR VLADIMIROVICH SMIRNOV v. UKRAINE

Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Criminal proceedings;Article 6-3-c - Defence through legal assistance)

Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Vincent A. De Gaetano

The applicant was born in DATE and lives in GPE .

On DATE the applicant was stopped by the police at a bus station in GPE , GPE , and detained in a holding facility for vagrants ( приймальник-спецрозподільник ) on the grounds that he had no identity documents with him .

According to the applicant , he was detained and held alternately in the aforementioned facility and the ORG , ORG and GPE police detention facilities until DATE , and was questioned off the record about his alleged involvement with a terrorist group plotting to instigate a revolt to reinstate a NORP state . During those question sessions the applicant was beaten and tortured .

According to the documents on file , on DATE the applicant was examined by PERSON , a medical specialist of the GPE holding facility for vagrants , who noted that he had no bodily injuries . Subsequently ( on DATE ) the applicant was taken to PERSON and placed in the police temporary detention facility , where he stayed until DATE . On the date of his arrival the applicant was examined by PERSON , a medical expert , who recorded no bodily injuries and noted that the applicant had made no complaints of ill - treatment .

On DATE and DATE the LOC police questioned the applicant as a witness in connection with unidentified proceedings . During those interviews the applicant explained to the police that he was a member of a NORP - based non - governmental organisation , “ Z. ” , which advocated rights for political prisoners and propagated communist political views . He and CARDINAL other members of PERSON had been commissioned to come to GPE to distribute their newspaper , NORP rabochikh deputatov , and other materials , participate in public activities organised by opposition political forces in GPE , and promote networking with local leftist groups .

On DATE the applicant participated in a confrontation with ORG , a ORG resident , who confirmed having communicated with the applicant ’s associates and having received the NORP rabochikh deputatov newspaper .

On DATE the applicant addressed a handwritten statement to investigator PERSON of GPE ( “ the ORG ” ) in GPE , in which he confessed , in particular , that he had been distributing the NORP rabochikh deputatov newspaper and other printed materials in GPE and that he , with CARDINAL other members of the communist movement , of which he was a member , had blown up a rubbish bin near the ORG headquarters in GPE in DATE .

On DATE the applicant was arrested in PERSON on suspicion of a terrorist offence and was subsequently remanded in custody following a court order . It appears from the arrest report drafted on DATE that the applicant , who had been notified of his right to legal assistance upon his arrest , expressed the wish to consult a lawyer before his first questioning .

At TIME on DATE the applicant signed CARDINAL documents confirming that he understood his rights as a suspect , and also that he wished to consult a lawyer . Subsequently ( at TIME ) , the applicant signed a statement of consent to be questioned by an ORG officer without a lawyer . During that questioning the applicant reiterated his earlier statements and provided further details concerning his acquaintance and encounters with various activists of the communist movement in GPE and GPE .

On DATE V.V. , a lawyer engaged by the applicant ’s mother , was admitted to the proceedings as his defence counsel .

On DATE the applicant was indicted for membership of a terrorist group and participation in a terrorist act . Questioned in GPE ’s presence , the applicant confessed to some of the charges against him . In particular , he confirmed his affiliation with the communist movement and participation in political opposition activities , but denied taking part in the rubbish bin explosion or any terrorist activity . Citing his right to remain silent , the applicant refused to explain why his statements differed from those he had given previously .

On DATE the applicant requested that GPE be replaced by GPE , a new lawyer engaged by his mother . This request was granted on DATE .

In DATE the applicant was transferred to the GPE no . CARDINAL pre - trial detention facility , as the investigation of the case had been transferred to the Odessa ORG .

On various occasions in DATE the applicant , with his consent , was questioned in GPE in the absence of GPE , whose practice was in GPE . When questioned the applicant sometimes refused to answer questions , citing his right to remain silent , and at other times responded to the questions asked , either confirming or modifying his previous submissions .

On DATE the investigation was completed , and the applicant , along with CARDINAL other individuals implicated in affiliation with a criminal association which had engaged in a number of robberies and other crimes committed on behalf of their organisation with a view to reinstating a communist state , was committed to stand trial before LOC ( “ the Regional Court ” ) acting as a first - instance court .

On DATE the applicant and his lawyer PERSON signed an affidavit that they had finished studying the case file . On DATE GPE requested that the case be remitted for a further investigation , alleging that numerous substantive and procedural - law provisions had been breached . He submitted , in particular , that the applicant had been unlawfully detained and tortured DATE , with the aim of extracting self - incriminating statements from him , in breach of his right to mount a defence .

On DATE the investigator in charge of the case refused this request . He noted in particular that , as indicated in the materials in the file , the applicant had been arrested only on DATE , and no investigative activities had been carried out involving him before that date . Nor had he complained of any ill - treatment .

The applicant ’s trial began in DATE .

During the trial , the applicant pleaded not guilty to all the charges . He admitted that he was acquainted with his co - defendants as members of the pro - communist network and fellow distributors of the NORP rabochikh deputatov newspaper and various communist propaganda material in GPE . At the same time he denied being involved in the rubbish - bin explosion imputed to him , and also denied all knowledge of any involvement by his co - defendants in any type of criminal activity . The applicant also submitted that he had been unlawfully detained between CARDINAL and DATE , and had made false self - incriminating statements as a result of ill - treatment by the investigating authorities . The medical staff of the detention facilities in which he had been held had refused to record his bodily injuries . He had not lodged any relevant complaints at the beginning of the investigation , as he had feared reprisals .

After the death of PERSON , one of the applicant ’s co - defendants , during the trial proceedings , the applicant and his co - defendants demanded an investigation of the circumstances of his death , alleging that it had resulted from torture and that they had also been subjected to ill - treatment during the investigation . Following the investigation , the prosecutor ’s office reported to ORG that PERSON had died of cancer and that there had been no ill - treatment case to answer with respect to either the applicant or his co - defendants .

On DATE the applicant lodged a fresh complaint with ORG , alleging that he had been ill - treated by NORP police officers in DATE .

On DATE the prosecutor ’s office refused to institute criminal proceedings in connection with the applicant ’s allegations . It was noted in the text of the relevant decision , in particular , that the officers questioned had acknowledged that the applicant had been detained in their charge from DATE as an arrestee under investigation . However , those officers had stated that they had neither ill - treated him , nor received any complaints from him concerning ill - treatment by third parties . It was also noted in the decision that the ORG explanations had been consistent with the explanations by the medical expert who had examined the applicant on DATE .

On an unspecified date , ORG ’s engagement having been terminated , PERSON was appointed as the applicant ’s new lawyer . On several occasions the applicant complained in court about PERSON ’s performance , offering to replace her with his mother as his lay defence representative and with some other individuals . These requests were refused by the court on the basis of various procedural provisions , the applicant having been instructed to engage a competent licensed lawyer to replace PERSON as a condition for her being dismissed .

On DATE ORG found the applicant guilty of affiliation with a criminal association plotting reinstatement of a NORP state in GPE by violent means , distribution of the NORP rabochikh deputatov newspaper , whose articles were found to propagate the ideas of such a violent revolt , and participation in a terrorist act ( the aforementioned rubbish bin explosion ) . In the text of its judgment , the court referred to an extensive array of evidence , including the applicant ’s statements given on CARDINAL and DATE . The court noted that those statements were consistent with other evidence , and that there was no indication that they had been extracted by ill - treatment or otherwise in defiance of the applicant ’s will or in breach of his procedural rights . They therefore had to be preferred over the applicant ’s submissions at the trial . Finally , the court sentenced the applicant to CARDINAL years’ imprisonment , with effect from DATE .

On DATE the applicant lodged a cassation appeal against his conviction , in which he reiterated the submissions he had made during the trial and complained , in particular , that his right to mount a defence had been breached and that the statements he had made at the investigation stage in the absence of a lawyer should be excluded from the evidential basis .

On DATE the applicant , represented by PERSON . , a new lawyer engaged by his mother , reiterated his position at an oral hearing before ORG .

On DATE ORG rejected the applicant ’s allegations of breaches of his procedural rights , and upheld his conviction for distribution of material promoting violent revolt and participation in a terrorist act . It also confirmed the applicant ’s sentence , having , however , dropped the charges of membership of the criminal association .

On several further occasions DATE the applicant and his mother complained to the GPE prosecutor ’s office and to other authorities that the applicant had been ill - treated by ORG officers and police , as well as by NORP security service officers who had purportedly questioned him in GPE concerning criminal acts committed in GPE . The applicant ’s and his mother ’s attempts to institute formal criminal investigations in connection with these allegations were to no avail .

In DATE the applicant was transferred to the PERSON no . ORG ( “ the LOC ” ) , where he served his sentence until he was transferred to another detention facility in DATE .

On arrival the applicant was assigned to cell no . CARDINAL in the maximum security unit .

According to the applicant , the conditions of his detention therein were incompatible with human dignity . In particular , the cell , which measured QUANTITY , accommodated from CARDINAL inmates , confined to it all day except for an TIME ’s DATE exercise in the outside courtyard . Notwithstanding the general prohibition , many inmates smoked in the cell , which was not equipped with artificial ventilation . As a result , the applicant suffered severely from the effects of passive smoking , while the administration refused his requests for transfer to another cell or for installation of an electric fan his mother had offered to provide . Opening a window to let in some fresh air was problematic , particularly in DATE , as with the poor heating the temperature in the cell went down to QUANTITY . In addition , the windows , which had non - transparent panes of glass , barely let in daylight . With CARDINAL small electric bulbs , artificial light was also very poor . As a result , it was very difficult to read or write in the cell . The food was also inadequate . To support the applicant ’s nutritional needs his mother had to send in regular food parcels , containing such basic products as tea , pasta , cereals and canned meat and vegetables . In support of his allegations , the applicant presented copies of lists of food items sent in by his mother . He also presented copies of his and his mother ’s appeals to the prosecutor ’s office and other authorities , in which they requested that the applicant be moved to a non - smoking cell or at least that the use of an electric fan be permitted . They also requested that other matters , in particular , the catering , lighting and heating arrangements be inspected and improved .

According to the ORG , the conditions of the applicant ’s detention were fair . In particular , the applicant ’s cell , which measured QUANTITY , was equipped to accommodate CARDINAL inmates only , which ensured sufficient personal space per detainee . It had windows allowing access to daylight and fresh air . It was also equipped with electric light of sufficient brightness , and had artificial ventilation in the sanitary facility . The heating functioned adequately and the temperature in the cell was always CARDINAL . Smoking was allowed only in the courtyards , and meals provided to detainees were sufficient and properly balanced to meet their nutritional needs . Following the applicant ’s and his mother ’s complaints , the prosecutor ’s office had inspected the conditions of the applicant ’s detention and found them to be in accordance with applicable domestic regulations .

According to the applicant , he was deprived of any medical care during his detention in LOC . In particular , in DATE he requested a full medical examination , as he was suffering from constant fatigue , periodic pain in the kidney area , oedema , headaches and chest pain . This request received no response . In DATE he was also refused treatment for chronic dental decay , as the medical unit lacked funding to obtain the necessary supplies . It was only in DATE , after his mother had procured the necessary supplies at her own expense , that the applicant received the treatment . In addition , on many occasions the applicant ’s mother sent in parcels containing other basic medicines and supplies , such as antiseptics , activated carbon , adhesive plasters and vitamins , purchased at her own expense .

According to the Government , the medical assistance available to the applicant in LOC was adequate . The applicant underwent a medical check - up upon his arrival and subsequently benefitted from semi - annual ( spring and autumn ) checkups . Specifically , he received check - ups on DATE and DATE , DATE and DATE . During these check - ups the applicant was also X - rayed for tuberculosis screening . In DATE the applicant also had blood and urine samples taken for laboratory testing . The results of all these screenings indicated that the applicant ’s health was in general satisfactory .

The Government also provided records , according to which in DATE the applicant had been examined by a dental specialist , who recommended non - urgent treatment for his chronic dental decay , and notified that the appropriate supplies were not available at the ORG ’s medical unit at that time . In DATE , the necessary supplies having been procured by the applicant ’s mother , he received the treatment .


Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-3-a) Manifestly ill-founded;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

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

The applicant was born in DATE and lives in GPE .

At the relevant time the applicant was a member of the LOC electoral commission .

On DATE a deputy head of ORG ordered audio - visual “ surveillance ” ( “ наблюдение ” ) of the applicant ’s office . The parties did not submit a copy of that decision .

The surveillance was carried out from DATE to CARDINAL DATE by means of a hidden camera .

The applicant was subsequently charged with abuse of power , an offence under LAW . While studying the criminal case file he discovered that it contained video recordings of him talking on the telephone in his office .

At the trial the applicant pleaded not guilty . He claimed , in particular , that the video recordings were inadmissible as evidence as they had been obtained unlawfully without prior judicial authorisation . He also challenged the authenticity of the recordings .

On DATE ORG of PERSON convicted the applicant of abuse of power and sentenced him to CARDINAL years’ imprisonment , suspended for DATE . The court relied on statements by several witnesses , physical evidence , expert reports and the video recordings of the applicant ’s telephone conversations . It found that the video recordings were authentic and that they had been obtained in accordance with the procedure prescribed by law .

NORP The applicant appealed . He reiterated , in particular , his argument that the video recordings were inadmissible as evidence .

On DATE ORG upheld the conviction on appeal . The court held that ORG had correctly declared the video recordings admissible as evidence because they had been obtained in accordance with the procedure prescribed by law .


CASE OF M.R.A. AND OTHERS v. THE NETHERLANDS

No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Afghanistan);No violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Expulsion)

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

The first and second applicants are a married couple who were born in DATE and DATE . The third , fourth and fifth applicants are their children , a daughter and CARDINAL sons who were born in DATE and DATE .

The first CARDINAL applicants entered the GPE on DATE and applied for asylum . In the course of the proceedings on this asylum application , the first and second applicants were both interviewed by the GPE immigration authorities on , inter alia , their reasons for seeking asylum .

The first applicant gave the following account to the immigration authorities . He had become a member of ORG of GPE ( “ the PDPA ” ) in DATE . During his studies he had volunteered for guard duties at the ORG headquarters in GPE ’s fifth district . He had been charged with guarding homes against possible mujahideen attacks and checking traffic at intersections for illegal weapons .

NORP In order to avoid being sent to the front during his compulsory military service the first applicant had , upon graduating as a construction engineer from ORG , voluntarily reported for duty in DATE to the security battalion of ORG in PERSON Now , a neighbourhood in GPE . After working there for DATE , the first applicant had requested a transfer to GPE ’s PERSON prison , where working conditions were better as they were indoors . The first applicant had been stationed in block CARDINAL , where political prisoners were detained . With CARDINAL other colleagues he had been responsible for guarding the block . He had had no contact with the CARDINAL prisoners for whom he had been responsible . His tasks had comprised cell patrol and occasional transport to hospital of prisoners who had fallen ill . He had never witnessed any illtreatment or torture by the NORP authorities of prisoners in that period . He had only once witnessed the ill - treatment of a prisoner , by a “ bashi ” ( leader ) .

After DATE the first applicant had applied for a transfer , which had been granted by the deputy head of the NORP security service ORG Dowlati / PERSON Dowlati ( “ ORG / WAD ” ) . At DATE the first applicant had started as a construction engineer within the ranks of ORG , which position he had held until DATE , when the mujahideen ended the ORG ’s communist regime in GPE . The first applicant had been employed in the buildings department of ORG of ORG , which had been renamed ORG in DATE . For this department / ORG the first applicant and his team of CARDINAL construction workers had constructed CARDINAL buildings for ORG , including an office building for ORG ’s FAC . He had also been responsible for the construction of CARDINAL ammunition depots .

The first applicant had initially declared to the GPE authorities that the highest military rank he had attained was that of lieutenant - colonel , which he later changed to major . He further stated that he had been decorated CARDINAL times for his achievements .

The first applicant had also been involved in the distribution of party propaganda , delivered to him by ORG of his ORG , with which he also had meetings DATE . In addition , he had organised courses for illiterate labourers .

After the fall of the ORG regime in DATE the applicants had fled to ORG , where the first applicant had continued to work as a construction engineer for the municipality until DATE . On DATE after the ORG had taken control of FAC – the applicants’ home had been raided and searched by CARDINAL armed ORG fighters , who had found , inter alia , the first applicant ’s PDPA identity card , some of his medals , and a bayonet . On the suspicion that the applicants had been keeping weapons in their home , the ORG had arrested the first applicant and his brother .

The first applicant had been incarcerated for DATE and had been questioned several times , during which he had disclosed in detail his past career in the ORG . A nephew or cousin of the first applicant had bribed the ORG commander concerned in order to obtain the applicant ’s release , which had been successful but on condition that the first applicant left GPE immediately . On TIME of his release , he was supposed to be executed . A number of his fellow detainees had indeed been executed , and according to the records , so was he – it was only because of the deal that had been struck with the commander that he had been secretly led away .

The first applicant further told the immigration authorities that he had heard from CARDINAL of his relatives in GPE that another nephew or cousin , who had also been a member of the ORG , had been killed in GPE in DATE by soldiers of ORG who were mujahideen or ORG .

NORP In support of her request for asylum , the second applicant submitted the following account . She had studied educational theory in GPE , after which she had been employed as a teacher at a high school in GPE from DATE . She had joined the women ’s organisation of the PDPA at the same time as taking up her duties as a teacher . She had stopped working when her first child was born . Out of fear of the mujahideen she had refrained from seeking employment during the time the family lived in GPE . She had once been beaten on the street for wearing a burka that was judged too short . This had occurred at the time her husband was incarcerated by the ORG . According to the second applicant , her husband had been ill - treated and subjected to forced labour during his incarceration .

After the first applicant had been interviewed on his asylum application , on DATE and DATE and DATE , the Deputy Minister of Justice ( ORG ) issued on DATE a notice of her intention ( voornemen ) to reject the first applicant ’s asylum application and to hold LAW against him . The applicant ’s asylum claim had been considered in the light of , inter alia , an official report ( ambtsbericht ) , 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 ” ; ORG ) 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 . On the basis of this report , the GPE immigration authorities had adopted the position that LAW could be held against virtually every NORP asylum seeker who , with the rank of third lieutenant or higher , had worked during the communist regime for the ORG or its successor the ORG . In the notice of intent , the Deputy Minister analysed , on the basis of elaborate argumentation based on various international materials , the nature of the acts imputed to the first applicant in the framework of LAW as well as his individual responsibility under LAW .

Having regard to the official country report of CARDINAL DATE as well as documentation from public international sources such as ORG , ORG , the Deputy Minister emphasised the widely known cruel character of the ORG , its lawless methods , the grave crimes it had committed such as torture and other human rights violations , and the “ climate of terror ” which it had spread throughout the whole of NORP society . The Deputy Minister considered that this “ climate of terror ” was also felt within the ORG itself . Staff members needed to prove their loyalty to the organisation on an almost DATE basis , and a failure to do so put them at risk of being removed from the ORG ; often this entailed death for the person concerned .

The Deputy Minister was of the opinion that the first applicant must have known of the criminal nature of the methods employed by the organisation where he had made a career . Furthermore , relying on the official report of CARDINAL DATE , the Deputy Minister excluded the possibility that the first applicant had remained ignorant of the cruel working methods of the ORG / WAD . She also did not attach credence to the first applicant ’s statement that he had not known of any atrocities committed in PERSON Prison , where he had performed guard duty for DATE . On this point , the Deputy Minister referred to a DATE report from ORG as well as to reports drawn up by ORG on this prison , from which it was obvious that PERSON was widely associated with heinous crimes .

The Deputy Minister noted in this respect that the first applicant had initially declared that he had witnessed the ill - treatment of a prisoner by an assistant interrogator . No value was attached to the fact that the first applicant had subsequently corrected this initial statement and had submitted that this had concerned an incident amongst detainees . The Deputy Minister considered that the first applicant had had every reason to change his statements into more favourable ones once he learned of the investigation against him to assess whether LAW applied to him . The Deputy Minister also noted that the first applicant ’s initial statements had been very detailed .

NORP The Deputy Minister further noted that the first applicant had been granted permission , after DATE of working as a guard in PERSON Prison , to be transferred to a department more suited to his professional profile . According to the Deputy Minister , this meant that the first applicant ’s loyalty must have been found proven beyond any doubt , considering that he had been given his position with the ORG after only a relatively short time in PERSON , that the new position opened up opportunities to be promoted to ( senior ) officer , and that it enabled the first applicant to enter and study several if not many of the ORG ’s buildings . The Deputy Minister concluded that there were serious reasons for considering that the first applicant had committed human rights violations , at least during his time in PERSON Prison .

Taking into account , inter alia , an anonymised official report drawn up by ORG on DATE ( DPC / AM CARDINAL ) , the Deputy Minister further found it highly implausible that during his DATE of experience as a construction engineer for the ORG the first applicant would not have become aware of certain uses for which ORG buildings had been designed , or at least of to what use they had de facto been put . As torture was systemic in ORG interrogation centres , it should be considered impossible that persons belonging to the higher management of the ORG had not been involved in this or would have been unaware of it . By reaching the rank of lieutenant - colonel the first applicant had entered the higher echelons of the ORG / WAD . Further taking into account that the first applicant had been decorated for his achievements and that he had continued performing his duties until DATE of the communist regime , the Deputy Minister reached the conclusion that the first applicant ’s competence and loyalty must have been beyond doubt . Furthermore , due to the applicant ’s involvement with ORG , the Deputy Minister concluded that the first applicant must have been aware of human rights violations being committed . With reference to anonymised official reports of DATE ( DPC / AM DATE ) and DATE ( DPC / AM CARDINAL ) drawn up by ORG , the Deputy Minister considered as regards the political affairs departments that , in the relevant part , their main task had been to guarantee continued loyalty to the NORP communist regime by means of the reporting of dubious behaviour of individuals to the ORG . Political affairs departments cooperated closely with the ORG in providing them with information .

These considerations led the Deputy Minister to conclude that the first applicant ’s personal participation in the human rights violations attributed to ORG was an established fact . Considering the reputation of PERSON Prison and the first applicant ’s denial of any human rights violations , the Deputy Minister could not attach any credence to the first applicant ’s statements . She found that the first applicant had failed in making plausible ( aannemelijk maken ) DATE on the basis of objective sources or any other means – his stated ignorance of human rights violations by the ORG / WAD . In terms of the first applicant ’s activities for the ORG , the Deputy Minister considered that the first applicant had , for a long time , been of service , albeit in an accessory capacity , to the ORG , and that it would thus not have been able to perform its tasks without the first applicant ’s efforts . The Deputy Minister also found that the first applicant had supported the activities of ORG ; although this department had not committed any atrocities itself , it had been an important element in the ORG apparatus .

The first applicant submitted written comments ( zienswijze ) on the notice of intent on DATE .

On DATE , the Deputy Minister rejected the first applicant ’s asylum application , confirming the reasoning as set out in her notice of intention of DATE and rebutting the first applicant ’s written comments . Disagreeing with the first applicant , she considered that the official report of CARDINAL DATE ( see paragraph CARDINAL above ) which to a great extent lay at the basis of her decision , could not be seen as an isolated document , but rather as the product of thorough research based on objective sources . The Deputy Minister attached more credence to the report than the first applicant ’s unfounded rebuttals .

The Deputy Minister further dismissed the first applicant ’s argument that he had been too remotely connected to the human rights violations attributed to specific departments of the ORG / WAD during his time as an engineer in that organisation . Relying on ORG ’s “ The Exclusion Clauses : Guidelines on their LAW of DATE ( see paragraph CARDINAL below ) and the official report of CARDINAL DATE , it was held in this respect that merely supporting an organisation like the ORG may in itself suffice to render applicable LAW .

The first applicant ’s appeal to ORG ( rechtbank ) of GPE sitting in GPE was rejected on DATE . ORG analysed the first applicant ’s accountability for the impugned human rights violations on the basis of the prescribed and so - called “ personal and knowing participation ” test .

As regards the “ knowing ” element , ORG held that the Deputy Minister had not erred in imputing knowledge of the human rights violations committed by ORG to the first applicant in the way she had . In this context ORG found that the official reports issued by ORG , which lay to a great extent at the basis of the Minister ’s decision , had been drafted in an unbiased manner , were accurate and objective , and provided the required insight in the relevant information , and therefore that the Minister had been entitled to rely on them . It further found that the first applicant had failed to furnish adequate evidence in support of his allegation that the official report of CARDINAL DATE was inaccurate and that it could not be assumed that he had knowledge of the human rights violations committed in PERSON Prison .

As regards the first applicant ’s personal participation in human rights violations attributed to the ORG , ORG reiterated that according to codified policy DATE LAW ( Vreemdelingencirculaire DATE ) – this notion included , besides personal commission of the impugned human rights violations by the person concerned , the facilitation of the said crimes . Facilitation was defined as a substantial positive effect by means of the person ’s conduct on how these crimes had been committed , or a lack of such conduct in preventing these crimes from being committed . ORG found that the first applicant had facilitated the human rights violations committed by the ORG / WAD by having voluntarily chosen to work as a guard in ORG and his subsequent request DATE also made voluntarily – to start working for the NORP / WAD . In these circumstances ORG concluded that the first applicant had facilitated DATE and thus personally participated in – the human rights violations attributed to the ORG , despite his having been stationed in PERSON Prison as a conscript rather than as a professional soldier .

Considering that LAW did not guarantee a right of residence , ORG also dismissed the first applicant ’s argument that the Deputy Minister had erred by not examining his asylum account under that provision .

The first applicant lodged a further appeal with ORG ( Afdeling Bestuursrechtspraak ) of ORG ( PERSON ) , which quashed ORG judgment on DATE . As regards ORG finding in relation to LAW held that the Deputy Minister should , wherever possible , avoid creating a situation in which an asylum seeker is refused a residence permit but can not be expelled to his / her country of origin for reasons based on LAW . For that reason , the decision should demonstrate that the Deputy 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 , the ORG found , the Deputy Minister had failed to do in the present case , for which reason it quashed ORG judgment and remitted the case to the Deputy Minister ’s successor , the Minister for ORG ( Minister PERSON Integratie ) for a fresh decision .

The first applicant was once more interviewed by the immigration authorities on DATE , after which , on DATE , the Minister issued the first applicant with a notice of her intention to reject his asylum application . The Minister reached the same conclusions , based in the relevant part on the same grounds , as the Deputy Minister had reached in her notice of intent of DATE and subsequent decision of DATE in relation to the first applicant ’s knowing and personal participation in human rights violations attributed to his former employer – the NORP / WAD – and consequent application of LAW against him . The Minister to a large extent used as a basis for her notice a book by a Professor Dr. PERSON entitled “ The Pulicharki Prison . A NORP Inferno in GPE ” . Prof . PERSON had been detained in PERSON Prison for a considerable time during the period DATE .

As to LAW , the Minister considered , in so far as relevant , that the first applicant had not furnished the required substantial grounds in support of a stated real risk of treatment contrary to LAW in case of his expulsion to GPE . The first applicant ’s fear of the mujahideen , the ORG and/or other armed groups not belonging to the Government persecuting the intellectual classes in GPE , based on the first applicant ’s background as a former ORG member and former employee of ORG , was dismissed by the Minister as based on mere suspicions . The Minister noted in this regard that the first applicant had declared , during the interview held with him on DATE , that he did not know of anyone specifically looking for him . It was further held that the killing of the first applicant ’s nephew or cousin by NORP State agents because of his past support of the communist regime did not constitute an individual fact or circumstance relevant to the first applicant ’s claim under LAW and that , furthermore , the source of the said information – a relative of the first applicant residing in GPE – was unreliable .

NORP The Minister made reference to an official report drawn up by ORG in DATE , according to which former NORP communists and those associated with the communist regime , including former ORG personnel , possibly ran a risk of human rights violations in GPE . She stressed , however , that this did not mean that every person meeting these criteria would run a risk of treatment contrary to LAW upon his / her return to GPE . The Minister underlined in this regard the fact that until DATE the first applicant had not experienced any problems caused by his membership of the PDPA , his past activities for the ORG , or his political convictions after the fall of the communist regime in DATE . The first applicant ’s argument that he would run a greater risk of kidnappings and robberies due to his fellow countrymen ’s perception of him as a rich person upon his return to GPE was dismissed as unfounded .

The first applicant submitted written comments on the notice of intent on DATE . By a decision of DATE , the Minister once more rejected his asylum application . The Minister fully endorsed the reasons for the rejection as set out in the notice of intent and , in addition thereto dismissing the first applicant ’s written comments held , in the relevant part , the following .

The first applicant had , inter alia , argued that block CARDINAL of ORG , where he had worked , had not fallen under the responsibility of the ORG / WAD and had been located in a separate building , hence away from the human rights violations allegedly committed in blocks CARDINAL and CARDINAL . The first applicant had relied on an ORG report in this regard . The Minister held that no support for such a distinction between blocks CARDINAL and CARDINAL on the one hand and block CARDINAL on the other in terms of the commission of human rights violations could be found in the literature and reports written about PERSON Prison . The first applicant also , unsuccessfully , advanced a number of inconsistencies in the book by Prof . PERSON .

With reference to ORG official report of CARDINAL DATE , the Minister dismissed the first applicant ’s claim that he had not been involved in human rights violations committed by the ORG , having regard to his position as a construction engineer in the said organisation . It was found that all officers of the ORG had been involved in its more sinister departments and hence were responsible for the interrogation , torture and execution of suspects . The Minister further considered that , pursuant to the case - law of ORG , she was entitled to rely on the official report as accurate and complete , and that this was not altered by the fact that other reports did not confirm certain findings reached in the official report .

As regards LAW , the first applicant had argued that when the Minister had held that the applicants had not experienced any problems in GPE DATE , she had failed to acknowledge that the applicants had been living in GPE , which had been a safe haven for former communists during that particular period of time . According to the first applicant , the Minister had also failed to acknowledge that he had experienced problems in DATE . He had further submitted that his brother had held a high position during the communist regime . The Minister , however , considered that none of these arguments constituted concrete and individual circumstances justifying the acceptance of the existence of a real risk of treatment contrary to LAW upon the first applicant ’s return to GPE .

The first applicant ’s appeal was rejected by ORG of The GPE sitting in ‘ s - Hertogenbosch by judgment of DATE . Limiting itself to an analysis of the matter under LAW , ORG held that the first applicant had not sufficiently established that as a result of his membership of the ORG and past activities for ORG he would run a real and serious risk of treatment contrary to the said provision upon his return to GPE . The court underlined that the first applicant had declared , in an interview held with the immigration authorities on DATE , that nobody in GPE was specifically looking for him . Although the first applicant claimed that he had been detained by the ORG in the past , it had not been established that the ORG would still be looking for him or that he had remained an object of the ORG ’s negative attention . ORG emphasised in this regard that the first applicant ’s detention had taken place during a different political situation .

While ORG accepted that , as set out in an official report of ORG of DATE , individuals associated with the former NORP communist regime , including the ORG , ran a possible risk of being subjected to treatment contrary to LAW upon their return to that country , it held that this did not mean that everyone associated with the former regime ran a real and serious risk of that nature . ORG noted that the first applicant ’s former position in ORG could not be regarded as one of the high posts mentioned in this official report . The killing of the first applicant ’s nephew or cousin and that the second applicant would have had a western lifestyle did not alter ORG finding either .

NORP The applicant ’s further appeal was rejected on DATE by ORG on summary reasoning . It found that the further appeal did not provide grounds for quashing the impugned ruling and that having regard to section CARDINAL § CARDINAL of LAW ( Vreemdelingenwet DATE ) , no further reasoning was called for , as the arguments submitted did not raise any questions requiring determination in the interest of legal unity , legal development or legal protection in the general sense . No further appeal lay against this ruling .

On DATE the Deputy Minister of ORG issued a notice of intention to declare the first applicant an undesirable alien entailing the imposition of an exclusion order ( ongewenstverklaring ) in accordance with article CARDINAL § CARDINAL ( e ) of LAW , following the decision to hold LAW against him in the asylum procedure . This intention was not followed by an actual decision to impose an exclusion order .

The second applicant was interviewed by the immigration authorities on DATE and DATE . On DATE the Deputy Minister issued a notice of her intention to reject the second , third and fourth applicant ’s asylum application . The latter CARDINAL applicants , being minors , were included in the second applicant ’s application for asylum throughout the proceedings . In so far as relevant , it was held that the second applicant ’s motives for asylum were to a large extent dependent on the first applicant ’s motives . The first applicant ’s application having been rejected , the Deputy Minister considered that the second applicant ’s asylum claims were to be assessed on their own merits .

Referring to a Ministry of Foreign Affairs official report of DATE , the Deputy Minister held that there was no general rule for assessing the risk which family members of individuals sought by the ORG might run in GPE . As a rule of thumb , it could be assumed that such family members would only risk being detained by the ORG as a means of forcing the person concerned to report to the authorities if that person was present in GPE , or was at least suspected to be . Even if it was to be assumed that the first applicant was being sought by the ORG , he had not been in GPE since DATE and , by his own admission , was even believed by the ORG to have been executed . It was unlikely , therefore , that the second applicant would attract the ORG ’s attention on account of her husband ’s activities .

As regards the second applicant ’s claim that she had been threatened by the ORG during the search of the family house in GPE , the Deputy Minister considered that any threats uttered had rather been directed at the CARDINAL men – the first applicant and his brother DATE than at the women present . While it was regrettable that the second applicant had been subjected to ill - treatment after her burka had been judged to be of insufficient length , the Deputy Minister noted that this had been a single occurrence and that there were no indications that the ORG continued to have an interest in her .

As regards LAW the Deputy Minister considered that the second applicant had not advanced the required substantial grounds for believing that she would run a foreseeable , real and personal risk of treatment contrary to said provision . The single incident about the burka was insufficient for the second applicant to be able to rely on LAW successfully . In this respect the Deputy Minister also had regard to the fact that the second applicant had lived under ORG rule for a relatively long period of time , but other than the aforementioned incident she had not reported any further occurrences relevant in terms of LAW .

The Deputy Minister , furthermore , considered that the second applicant was to be excluded from the so - called “ policy of protection for certain categories ” ( categoriaal beschermingsbeleid ) , in force for NORP nationals at that time . The Deputy Minister considered in this regard that the rejection of the asylum application of the second applicant ’s husband on the basis of LAW gave rise to a contraindication against the issuing of residence permits to his relatives , since the admittance of the second applicant and the applicants’ children would in all likelihood bring about a protracted de facto stay in the GPE of the second applicant ’s husband .

The second applicant submitted written comments on the Deputy Minister ’s notice of intent on DATE . She was once more interviewed by the immigration authorities on DATE .

On DATE the Minister for ORG , the successor to the Deputy Minister , issued a fresh notice of his intention to reject the second applicant ’s asylum application , due to a relevant change of circumstances in GPE .

While endorsing the Deputy Minister ’s finding as to the existence of a contraindication against the second applicant , the Minister went on to consider that , pursuant to a ORG official report of DATE , the general situation in GPE no longer required the keeping in place of a categorial protection policy . Moreover , after the fall of the ORG regime , the second applicant no longer had a reason to fear persecution at their hands , and DATE as also appeared from the official report of CARDINAL DATE the position of women in NORP society had greatly improved . In this latter context , the Minister considered that gender in itself was not a conclusive factor in an assessment of the risk of persecution in GPE . It was for the second applicant to make a plausible case for believing that she had a well - founded fear of persecution on the basis of her personal circumstances , seen against the background of the general situation in GPE . It was found that she had failed to do so . In this context , the Minister held that the second applicant had always lived in major cities in GPE , where the situation for women had improved , as opposed to the situation in the countryside . The Minister saw no reason to assume that the second applicant , if expelled to GPE , would not again settle in a major city .

NORP The Minister further considered that the second applicant ’s membership of the women ’s organisation of the ORG , her husband ’s membership of the ORG , or his past activities for ORG were not reason enough in themselves to grant the second applicant asylum , since according to the aforementioned official report there were no indications that people had to fear persecution in GPE for the sole reason that they had previously had ties to the communist regime .

After receiving the second applicant ’s comments on this notice of intent , the Minister rejected the asylum application on DATE , adding that as the second applicant had not demonstrated that she was or had ever been the object of negative attention from the side of either the mujahideen or the ORG , she had failed to establish that she would run a real risk of being subjected to treatment contrary to LAW in GPE .

The second applicant ’s appeal was rejected on DATE by ORG of the GPE sitting in ‘ s - Hertogenbosch . It agreed with the Minister that the second applicant had failed to establish a real risk of being subjected to treatment contrary to LAW if she was returned to GPE . Her further appeal to ORG was rejected on DATE on summary reasoning . No further appeal lay against this ruling .

On DATE the fifth applicant was born in the GPE to the first and second applicant .

On DATE , the first applicant submitted a fresh application for asylum and was interviewed on this new request on DATE . Following a notice of intention notified on DATE , this application was rejected by the Deputy Minister of ORG , again holding LAW against the first applicant . This decision became final after ORG of The Hague had rejected the first applicant ’s appeal on DATE , entailing that the first applicant was under an obligation to leave the GPE .

On DATE , the Deputy Minister for Security and ORG , noting that the first applicant had not left the GPE and cancelling the intention of CARDINAL DATE ( see paragraph CARDINAL above ) , issued a notice of intention to impose an entry ban ( inreisverbod ) for DATE on the first applicant . No information has been submitted whether this intention has been followed by an actual decision to impose an entry ban .

On DATE , also the second applicant had made a fresh asylum application , also on behalf of her minor children , namely the fourth and fifth applicants . Following a successful appeal to ORG of The GPE against the initial refusal of this request and on the basis of a new policy having entered into force on CARDINAL DATE ( ORG ; see paragraph CARDINAL below ) , the Minister for ORG ( Minister PERSON ) granted on DATE the second , fourth and fifth applicant temporary residence permit for asylum purposes ( verblijfsvergunning asiel voor bepaalde tijd ) , valid from CARDINAL DATE until DATE . In the letter of CARDINAL DATE notifying this decision , the Minister stated in respect of the adult son ( the third applicant ) that , in so far as he wished to apply for asylum in reliance on the new policy ( ORG ) that there existed a contraindication , namely his criminal record in the GPE , which would be taken into account in the examination of a possible future application .

Also on DATE , the third applicant , who had come of age , had made an asylum application on his own behalf which was rejected on DATE by the Minister , who found that , given that he had been convicted twice in the GPE of acts of public violence , the third applicant presented a danger to public order . The Minister rejected the third applicant ’s argument that , being a westernised young man and given the deteriorated general security situation in GPE , he would be exposed to a risk of being subjected to treatment contrary to LAW if removed to GPE . In so far as the third applicant relied on LAW , the Minister considered that it was open for the third applicant to apply for a residence permit on that basis . The third applicant ’s appeal against this decision was rejected on DATE by ORG of The GPE sitting in ‘ s - Hertogenbosch . No information has been submitted as to whether he has sought to challenge the judgment of DATE by lodging a further appeal with ORG .

On DATE , the third applicant made another asylum application , which was rejected by the Minister on DATE . The third applicant ’s appeal and accompanying request for a provisional measure were rejected on DATE by the provisional - measures judge ( voorzieningenrechter ) of ORG of The GPE sitting in GPE . To the extent that it was accepted that the fresh application was based on relevant newly emerged facts and circumstances ( “ nova ” ) warranting reconsideration of the initial rejection as required by CARDINAL of LAW ( PERSON ) , the provisional - measures judge did not find that the third applicant qualified for asylum on the basis of the alleged deterioration in the general security situation in GPE or that , for this reason , he would be exposed to a real risk of treatment prohibited by LAW if he were removed to GPE . The provisional - measures judge also accepted the Minister ’s decision , given the third applicant ’s criminal record , not to grant him a temporary residence permit for asylum purposes on the basis of the Minister ’s decision of DATE to grant such a permit to the second , fourth and fifth applicant under the new policy which had entered into force on DATE . In so far as the applicant relied on LAW the judge considered that given the strict separation in the system under LAW CARDINAL between an asylum - based application for a residence permit and a regular application ( reguliere aanvraag ) for a residence permit , it was considered that , if the applicant wished to reside in the GPE on the basis of his family life within the meaning of LAW , he should make a regular application for a residence permit based on his rights under LAW . The provisionalmeasures judge lastly noted that , in the event that the GPE authorities proceeded with the third applicant ’s removal from the GPE , he could avail himself of legal remedies to challenge this . There is no indication in the case file that the third applicant availed himself of the opportunity to lodge a further appeal against this judgment with ORG .

On DATE , the third applicant made a regular application for a residence permit on the basis of his family life with his parents and siblings in the GPE . This application was rejected by the Minister on DATE . The Minister noted at the outset that the applicant did not hold the required provisional residence visa ( machtiging tot voorlopig verblijf ) . Such a visa entitles the holder to enter the GPE in order to apply for a residence permit for a stay exceeding DATE . The Minister further noted that the third applicant did not fall within CARDINAL of the defined categories of persons who are exempted from the obligation to hold a provisional residence visa . As to the third applicant ’s reliance on LAW , the Minister noted that his mother and CARDINAL younger siblings held a temporary residence permit for asylum purposes and that his father held no residence permit . Although the Minister accepted that there was family life between the third applicant and each of his parents and his siblings , and that there were objective obstacles to the exercise of family life between the third applicant and his mother and siblings outside the GPE , the Minister did not find that there was a positive obligation under LAW grant the third applicant a residence permit on that basis . In reaching this finding , the Minister considered that a balance had to be struck between , on the one hand , the applicant ’s personal interests and , on the other , public interest considerations . The presence of an objective obstacle was a weighty but not necessarily a decisive factor in this balancing exercise , which also includes other factors such as the way in which family life was conducted in the country of origin , whether the minimum income requirements under the applicable immigration rules were met , public order considerations , and the situation in the country of origin . Noting that his father had been refused asylum because LAW had been held against him , and that no obstacle based on LAW for his removal to GPE had been found in the asylum proceedings , that the third applicant had been denied asylum on account of his criminal convictions in the GPE , that the third applicant was an adult , and that his submissions did not disclose that there would be “ more than normal emotional ties ” between his and his mother and siblings , that his mother and siblings lived separately from his father , and that the third applicant himself lived a wandering existence , staying occasionally with his mother and often with friends , and that also his ties with his father did not go beyond the normal ties between a parent and an adult son , the Minister concluded , in particular having regard to the third applicant ’s criminal record in the GPE , that public interest considerations outweighed the third applicant ’s personal interests . This decision also constituted a return decision ( terugkeerbesluit ) . The third applicant was informed that he was now under the obligation to leave the GPE within TIME , failing which he would be eligible for removal , and that the submission of an objection ( bezwaar ) to the decision would not have any suspensive effect .

The third applicant submitted an objection to this decision to the Minister and requested ORG of The GPE to issue a provisional measure allowing him to await the outcome of the objection proceedings in the GPE .

On DATE , the provisional - measures judge of ORG of The GPE sitting in GPE granted the third applicant ’s request for a provisional measure , finding that it did not appear that , in his assessment , the Minister had taken into account - given the “ guiding principles ” formulated in the judgments of ORG August CARDINAL in the case of GPE and DATE in the case of GPE - the duration of the third applicant ’s stay in the GPE , the nature and seriousness of the criminal offences of which the third applicant had been convicted , the time that had elapsed since these offences were committed and the third applicant ’s behaviour in that period , the social ties established by the third applicant in the GPE , and the possibility of return to GPE . Considering that the Minister had attached decisive weight to the third applicant ’s criminal record without looking into the nature and seriousness of the offences concerned and without indicating what weight had been given to the other relevant circumstances on the basis of the ‘ guiding principles ” , the provisional - measures judge concluded that it could not be said that the objection would not have a reasonable chance of success . Consequently , the provisional - measures judge granted the provisional measure and suspended the Minister ’s decision of DATE pending the outcome of the objection proceedings .

No further information about these proceedings has been submitted .


Carlo Ranzoni;Ganna Yudkivska;Iulia Motoc;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Georges Ravarani

NORP The applicant , Ms Concetta Schembri , is a NORP national who was born in DATE and lives in GPE . She was represented before the Court by Dr PERSON , a lawyer practising in PERSON . ORG were represented by their Agent , Dr PERSON , Attorney General .

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

In DATE , a NORP citizen of NORP origin , arrived irregularly in GPE by boat and was detained under the applicable immigration laws . While in detention , GPE , the applicant ’s brother , who worked with the detention services .

Following his release from detention in DATE , PERSON maintained contact with C. and started carrying out some maintenance work in the latter ’s house . S. eventually started living in that house in DATE and met the applicant , with whom he started a relationship . It appears that for some time the applicant also lived there while renovation work was being carried out in her own place . DATE wanted to marry the applicant , but she did not agree . According to the Government , the applicant and PERSON had only gone out together once and PERSON spoke little LANGUAGE ; however , during the domestic proceedings ( see paragraphs CARDINAL , DATE and DATE below ) , the applicant stated that she had originally got to know S. online and that after they had met they had sometimes gone out together – when asked whether their outings had been romantic she replied that they had been normal outings .

After some time , in DATE , once his asylum application ( at first instance ) had been rejected , PERSON entered GPE unlawfully and went to GPE . According to the applicant ’s testimony PERSON contacted the applicant around DATE by phone and the CARDINAL remained in contact via telephone calls around twice a week . An appeal against the asylum decision was never examined since PERSON could not be traced .

In DATE the applicant went to GPE on holiday and met PERSON again ; she then prolonged her stay . In DATE her brother and the latter ’s daughter joined them and on that occasion the applicant and PERSON decided to get married . According to the applicant she lived with PERSON for some time and then returned to GPE for DATE to GPE in DATE . The Government submitted that there was no evidence of their cohabitation .

On DATE the applicant married PERSON , who was DATE her junior , under the regime of separation of estates . The rest of the applicant ’s family ( save for C. ) was not informed . They married in GPE , GPE and their marriage was registered in ORG in DATE , given that CARDINAL of the spouses was a NORP national .

According to a declaration by CARDINAL NORP lawyers ( who had assisted the applicant ) dated DATE , to their knowledge the applicant and PERSON lived together before and after their marriage until they went abroad .

NORP In DATE the applicant and PERSON went to the NORP embassy in GPE in order to apply for a visa for S. He was interviewed in that connection . According to the applicant , following the interview S. was informed verbally that he would not be granted a visa to enter GPE . No written decision was issued nor was he informed about any possibility of appeal . The applicant alleged that it had been suggested to PERSON that he go back to GPE wherefrom he could apply for an entry visa . The embassy denied this ( during the domestic proceedings ) , their position being that his visa had been refused because during the interview it transpired that PERSON had been lying , in particular concerning the status of his stay in GPE and the means by which he had entered GPE , and his means of subsistence . In her testimony the Consul stated that she had consulted ORG in GPE ( “ the ORG ” ) and submitted a report to this effect , and subsequently , on an unspecified date , a letter had been sent to PERSON rejecting his application .

In DATE the applicant went back to GPE to ask for a review of the decision taken by the embassy and to try to obtain a visa for her husband through ORG in GPE . She was informed that she had to write a letter to ORG outlining her request . She followed this instruction on DATE and then returned to GPE on DATE . She continued communicating with ORG , but no decision was communicated to her .

In DATE returned to GPE to try and obtain an entry visa from there . However , the NORP embassy in GPE could not provide assistance .

NORP In the meantime the applicant had returned to GPE and continued pursuing the application for an entry visa from there . She was sent from CARDINAL office to another to no avail . On an unspecified date , at a meeting with GPE and PERSON ( CARDINAL employees of ORG ) , the applicant , who referred to having met S. online , was told that if the visa were to be issued she would have to give personal guarantees with regard to the financial support of her husband . She accepted that responsibility . No attempts were made to contact PERSON and no decision ensued .

It appeared that an internal board had started to investigate the applicant ’s complaint . It also transpired that the authorities suspected that the applicant ’s marriage to PERSON had been one of convenience , which was why a visa would not be issued . Moreover , it appeared that PERSON ’s intention was to stay in GPE . ORG submitted their conclusions to the department of Citizenship but no decision had been formally issued by the time the proceedings hereinafter mentioned were instituted . In any event , according to the applicant , the law did not appear to provide for a possibility to appeal against any such decision ( unless it had been taken by ORG , which did not appear to be so in the present case ) .

On DATE the applicant instituted constitutional redress proceedings complaining that the refusal to issue her husband a visa had been unlawful and had constituted a violation of LAW .

The court heard evidence from a number of witnesses including the applicant ( who reiterated the facts as mentioned above ) , but not PERSON , who did not testify .

J.M. , the director of ORG , stated that PERSON was an exempt person but that his status had not yet been confirmed . He explained that exempt status was an inherent right of a spouse of a NORP citizen , unless the spouses did not live together or if there had been an order by the Minister responsible . He explained that he had been in contact with ORG and the embassy in GPE and that his role was to ensure that the legislation was not abused , particularly in the light of marriages of convenience , which were not rare and which could be detected through an ORG which gave pointers on identifying such situations . He further testified that even with exempt - person status an individual could not automatically enter the country and a visa was still required . PERSON noted that the exempt - person status of PERSON had never been confirmed . At the same time he also stated that there was no application to be lodged , since an individual should not have to apply for something which belonged to him or her by right . He explained that there was an enquiry form requiring details of the exempt person and when this was filled in , a letter confirming the status would be sent out . However , PERSON stated that this was simply a formality because the exempt - person status was acquired as soon as the marriage was contracted . S. had never filled in this form , as he had never entered GPE following his marriage . Nevertheless , PERSON testified that an informal request had been made by the applicant , who had been accompanied by a lawyer .

M.S. , another employee of ORG , stated that PERSON ’s visa application had been refused but that there was a right of appeal – he later stated that it was not an appeal but a review or reconsideration . He declared that ORG had reviewed the case and decided that the application should be refused because there had been a suspicion that it had been a marriage of convenience . PERSON explained that the file had been sent to ORG and that the case had not yet been concluded , and no decision letter had been sent out .

By a judgment of CARDINAL DATE ORG ( FAC ) in its constitutional jurisdiction dismissed the applicant ’s claim .

The court rejected the ORG ’s objection as to non - exhaustion of ordinary remedies . It considered that the reconsideration procedure as undertaken by ORG in the present case could not be considered an effective remedy – it had taken too long , despite ORG having had all the relevant information from the NORP embassy in GPE . Indeed ORG had had no reason to prolong issuing a decision , to the extent that it was never rendered . Furthermore , the procedure eventually came to a halt with the institution of the constitutional redress proceedings . Moreover , such a remedy was not independent of ORG since it was decided upon by the same unit . It followed that , having regard to the totality of the procedure and its ineffectiveness , the court had to exercise its constitutional competence to assess the merits of the complaint .

It also held that the applicant had had a juridical interest in lodging the complaint in her name , since her complaint was that as a result of the impugned actions or omissions , her own family life was being violated .

In connection with the merits , the court referred to the testimonies of the applicant , PERSON and PERSON and that the latter officials considered that PERSON needed a visa in order to enter GPE . This would have enabled him to apply for a residence permit and to travel in the LOC area .

The court noted that the couple had never cohabited in GPE , and that the applicant had never had the intention to marry PERSON when he had been in GPE . Referring to general principles of the ORG ’s case - law , it considered that the couple had never envisaged having a family life together , and why the applicant had changed her mind and decided to marry PERSON in GPE was a mystery . The court was not convinced that the applicant ’s decision to marry had been genuine – not once in her testimony had she declared her love for her husband , nor had she in the slightest touched on the level of intimacy she had with her husband , who was DATE her junior ; neither had she given an explanation about her change of mind , nor why she had not wanted to follow her husband to GPE . She had also admitted that she had not been living with her husband as he had been in GPE , thus implicitly admitting that she had been de facto separated . Thus , S. could not have expected to obtain exempt status , nor could it be said that there had been family life in the present case , and the authorities had simply applied the law . Furthermore , S. had shown a total disregard for the proceedings , having chosen not to submit any written testimony corroborating the applicant ’s statements or challenging those of the authorities . The court considered that it was not for it to decide whether there had been a marriage of convenience ; it sufficed to find that the authorities refusal to issue PERSON with a visa had not breached LAW .

The applicant appealed . By a judgment of CARDINAL DATE ORG rejected the applicant ’s appeal .

It considered that when they had been in GPE the applicant and PERSON had not formed a family , and their encounters had been rather ambiguous , tenuous and lacking any commitment towards each other . The same appeared to be the case of their life in GPE . While it was true that they had married there , the only commitment undertaken appeared to have been for S. to acquire a visa . ORG pointed out that according to the ORG ’s case - law it was only genuine marriages undertaken according to law which were protected by LAW . While ORG was ready to accept that the marriage had been contracted according to law , it had to address the ORG ’s argument as to whether the marriage had been a genuine one .

ORG noted that the applicant had been aware of the precarious situation PERSON had been in ( since he had been a third country national , thus requiring a visa to enter GPE ) despite her claim that he had not required a visa . Nevertheless , PERSON had never instituted an ordinary remedy to challenge the refusal . It could not be ignored that the applicant had refused to marry PERSON when they had been in GPE , and had only changed her mind in GPE after DATE and despite the age difference between them . Their cohabitation in GPE had been temporary and they could not have aspired to making it permanent owing to a variety of reasons , specifically S. ’s irregular status in GPE , the applicant ’s refusal to follow him to GPE ( which she had not proved would have been problematic ) , and the visa refusals by the NORP authorities . Furthermore , the court was struck by the lack of commitment towards , and interest in the proceedings by PERSON , who had not even bothered to submit written testimony , or at least to attempt to send a letter or make use of letters of request or other means which were available to persons not on the territory of the ORG .

All the above led ORG to conclude that there had been no family life , within the meaning of LAW , in the present case and that therefore there had been no breach of the applicant ’s rights .

Part IV of LAW deals with “ LAW ” and requires all , except those with a right of entry and residence according to the provisions of the LAW , to obtain permission to enter GPE from ORG .

Part II of the LAW concerning “ FAC ” provides that Part LAW does not apply to exempt persons . The relevant provision , namely LAW ) reads as follows :

“ The provisions of Part IV of this Act shall not apply to any person -

( a ) who is a citizen of GPE ; or

( g ) who is the spouse of any person referred to in any of the foregoing paragraphs and is still married to and living with that person ; ... ”

The Act as applicable at the time of the present case provided , in its LAW ) , for a review of a decision only in limited circumstances . It read as follows :

“ Any person aggrieved by any decision of the competent authority under any regulations made under Part III , or in virtue of article CARDINAL , article DATE or article CARDINAL may enter an appeal against such decision and the ORG shall have jurisdiction to hear and determine such appeals . ”

For the purposes of comprehending the above , Part III of the Act concerns special provisions connected to ORG , Article CARDINAL concerns residence permits , LAW concerns removal orders and LAW concerns carriers . It follows that visas , which are dealt with in LAW ) of the LAW are in theory excluded from any available review according to this provision .

Nevertheless , Regulation CARDINAL of ORG CARDINAL.CARDINAL provided , amongst its miscellaneous provisions , that “ Any person aggrieved by any decision of ORG may appeal to the [ ORG as provided for in article CARDINALA(CARDINAL ) of the LAW . ”

In DATE , the situation regarding visa appeals was clarified by means of LAW of DATE which reads as follows :

“ ORG has the competence to hear appeals related to the refusal , annulment or revocation of the visa with reference to the provisions of paragraph CARDINAL of Article CARDINAL and paragraph CARDINAL of Article CARDINAL of the Regulation ( ORG ) No . CARDINAL/CARDINAL of ORG and of the [ ORG ] Council of DATE establishing a Community Code on Visas ( Visa Code ) . ”

The time limit of such an appeal was DATE , eventually extended DATE by LAW of CARDINAL .

Article CARDINAL of LAW reads as follows :

“ ( CARDINAL ) Any person who contracts a marriage with the sole purpose of obtaining -

( a ) NORP citizenship ; or

( b ) freedom of movement in GPE ; or

( c ) a work or residence permit in GPE ; or

( d ) the right to enter GPE ; or

( e ) the right to obtain medical care in GPE , shall be guilty of an offence and shall on conviction be liable to imprisonment for a term not exceeding DATE .

( CARDINAL ) Any right or benefit obtained by a person convicted of an offence under subarticle ( CARDINAL ) on the basis of the marriage referred to in that subarticle ( CARDINAL ) may be rescinded or annulled by the public authority from which it was obtained .

( CARDINAL ) Any person who contracts a marriage with another person knowing that the sole purpose of such other person in contacting the marriage is CARDINAL or more of the purposes referred to in subarticle ( CARDINAL ) shall be guilty of an offence and shall on conviction be liable for the same punishment laid down in subarticle ( CARDINAL ) . ”

Articles CARDINAL to CARDINAL of the ( ORG ) Council Resolution of DATE read as follows :

“ CARDINAL . For the purposes of this resolution , a ‘ marriage of convenience ` means a marriage concluded between a national of a Member ORG or a third - country national legally resident in a Member ORG and a third - country national , with the sole aim of circumventing the rules on entry and residence of third - country nationals and obtaining for the third - country national a residence permit or authority to reside in a Member ORG .

Factors which may provide grounds for believing that a marriage is CARDINAL of convenience are in particular :

- the fact that matrimonial cohabitation is not maintained ,

- the lack of an appropriate contribution to the responsibilities arising from the marriage ,

- the spouses have never met before their marriage ,

- the spouses are inconsistent about their respective personal details ( name , address , nationality and job ) , about the circumstances of their first meeting , or about other important personal information concerning them ,

- the spouses do not speak a language understood by both ,

- a sum of money has been handed over in order for the marriage to be contracted ( with the exception of money given in the form of a dowry in the case of nationals of countries where the provision of a dowry is common practice ) ,

- the past history of CARDINAL or both of the spouses contains evidence of previous marriages of convenience or residence anomalies .

In this context , such information may result from :

- statements by those concerned or by third parties ,

- information from written documentation , or

- information obtained from inquiries carried out .

Where there are factors which support suspicions for believing that a marriage is CARDINAL of convenience , Member GPE shall issue a residence permit or an authority to reside to the third - country national on the basis of the marriage only after the authorities competent under national law have checked that the marriage is not one of convenience , and that the other conditions relating to entry and residence have been fulfilled . Such checking may involve a separate interview with each of the CARDINAL spouses .

Should the authorities competent under national law find the marriage to be CARDINAL of convenience , the residence permit or authority to reside granted on the basis of the third - country national ’s marriage shall as a general rule be withdrawn , revoked or not renewed .

The third - country national shall have an opportunity to contest or to have reviewed , as provided for by national law , either before a court or before a competent administrative authority , a decision to refuse , withdraw , revoke or not renew a residence permit or authority to reside . ”