Aleš Pejchal;André Potocki;Angelika Nußberger;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano

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

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

The Government of GPE , having been informed of their right to intervene in the proceedings ( LAW ) , did not indicate that they wished to exercise that right .

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

The applicant is a former staff member of ORG ( the “ ORG ” or the “ Organisation ” ) . She joined ORG ( the “ ORG ” ) in GPE in DATE . She was promoted several times and , in DATE , moved to ORG ( the “ ORG ” ) , ORG , in GPE , GPE . ORG is represented worldwide through the offices of the ORG . The applicant served as a senior manager with ORG and resided in GPE .

Until DATE the applicant ’s professional performance had consistently been rated by consecutive supervisors in her DATE appraisal reports as exceeding or fully satisfying the requirements of her respective job . However , in DATE , as well as in DATE , a new supervisor found that she had not met the performance expectations .

As a consequence of the negative appraisal reports the applicant was included in the DATE ORG reassignment exercise with a view to her redeployment . By a letter of DATE , she was informed by the ORG human resources department that she had not been selected for any post within the scope of the reassignment exercise and was given a time - limit of DATE to search herself for an alternative placement in the ORG or elsewhere in the Organisation .

On DATE the applicant filed a rebuttal for an internal administrative review of the negative appraisal reports for DATE with a rebuttal panel ( the “ Rebuttal Panel ” ) composed of ORG staff members jointly selected by the staff council and management .

On DATE ORG management decided that the applicant should be placed on DATE leave during the period from DATE . As the applicant was unable to find a post within the ORG and following fruitless attempts by ORG to agree on possible conditions for a termination of the applicant ’s employment contract , she was given formal notice of termination by a letter dated DATE ; her dismissal was to be effective as of CARDINAL DATE . The termination was reasoned with intended staff reduction and suppression of posts .

On DATE the applicant requested an administrative review of the decision to dismiss her with the ORG Secretary - General ( the “ Secretary - General ” ) and asked to suspend her dismissal .

On DATE the Secretary - General , following the recommendation by ORG ( the “ JAB ” ) of CARDINAL DATE , granted the applicant ’s request for a suspension of her dismissal pending completion of the rebuttal process in relation to her appraisal reports , which had commenced on DATE .

On DATE ORG issued its report and concluded that the applicant ’s performance ratings be maintained for DATE but found that it was not in a position to reach a final conclusion with respect to the rating for DATE due to management ’s failure to provide the relevant documentation .

On DATE the Secretary - General , contrary to a recommendation by the ORG dated DATE , decided not to accept a further request by the applicant to suspend her dismissal .

The applicant ’s employment ended on DATE .

On DATE the applicant , represented by counsel , had lodged an appeal with the JAB challenging the decision to terminate her permanent appointment as well as the decision to place her on DATE leave during the period from DATE to DATE .

In its report on the merits of the applicant ’s appeal dated DATE , the ORG found that following the applicant ’s dismissal ORG management had immediately hired a staff member under a temporary assistance contract to perform the applicant ’s functions and that her post had thus in reality not been suppressed but in fact had been reclassified to a higher grade . The ORG noted that it had not been established that ORG management had taken action to assist the applicant to improve her work performance from DATE onward . It further held that while the applicant had been placed in the reassignment exercise for DATE , ORG management had failed to make sufficient efforts to actively assist her in finding alternative employment within the ORG . As regards the decision to place the applicant on DATE leave from DATE to DATE , the ORG noted that even though the applicant ’s rebuttal process regarding her appraisal reports had been pending since DATE , the case had not yet been assigned to a Rebuttal Panel at the time she was placed on DATE leave in DATE . It had been only on DATE and only after the applicant had applied for suspension of her dismissal , that the ORG acknowledged that the rebuttal process had been delayed and started the rebuttal proceedings . In the ORG ’s opinion it had therefore not been in accordance with the applicable staff rules to penalise the applicant by having to use her DATE leave balance in DATE .

The ORG recommended that the applicant be granted monetary compensation equivalent to CARDINAL months’ net base salary for the delay in the rebuttal process as well as for the failure on the part of ORG to make a reasonable effort to find a suitable alternative post for her . It also recommended that DATE leave wrongfully charged for the period of DATE be credited to her leave balance .

On DATE the applicant was informed of the Secretary - General ’s decision to credit her with her DATE leave for the period from DATE and to grant her compensation in an amount of CARDINAL months’ net base salary instead of DATE recommended by the ORG .

On DATE counsel for the applicant lodged an appeal with ORG ( the “ ORG ” ) against the Secretary - General of the ORG , requesting the tribunal to find , inter alia , that she be reinstated and awarded full compensation for losses incurred since termination of her employment on DATE , such as social security and other benefits , as well as punitive damages .

By a letter to the ORG of CARDINAL DATE , the applicant further asked to be granted access to certain documents submitted by ORG in the proceedings before ORG and referred to by the latter in its report of DATE but which she had allegedly never had an opportunity to examine .

The ORG rendered its judgment on DATE ( No . CARDINAL ) following a written procedure . It pointed out that while the applicant ’s rebuttal had been filed on DATE , the internal rebuttal proceedings had only commenced on DATE following the applicant ’s request of DATE to suspend her dismissal and had ended on DATE . The proceedings had thus taken DATE , a delay that , as acknowledged by the ORG , was unacceptable . The ORG further endorsed the ORG ’s finding that the ORG administration had failed to make every bona fide effort to secure a new post for the applicant . It ordered the ORG to pay the applicant further compensation in the amount of CARDINAL months’ net base salary in addition to the compensation she had already received and rejected the remainder of the applicant ’s pleas . The applicant ’s request for access to the aforementioned specific documents was not granted by the ORG .

ORG were founded in DATE and currently have CARDINAL Member GPE . GPE was admitted to membership in ORG on DATE . ORG ( ORG ) and ORG ( ORG ) are subsidiary organs of the ORG established by ORG .

Pursuant to LAW CARDINAL of LAW shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfilment of its purposes .

The Convention on the Privileges and Immunities of the United Nations ( the “ General Convention ” ) of CARDINAL DATE , to which GPE has been a party since DATE , provides :

“ Article II

Section CARDINAL . ORG , its property and assets wherever located and by whomsoever held , shall enjoy immunity from every form of legal process except insofar as in any particular case it has expressly waived its immunity ...

Article VIII

Section CARDINAL . The United Nations shall make provisions for appropriate modes of settlement of :

( a ) disputes arising out of contracts or other disputes of a private law character to which ORG is a party ; ... ”

The General Convention is complemented by the Agreement between the ORG and GPE concerning the headquarters of the ORG ( the “ LAW ” ) of DATE , which stipulates in its LAW shall apply to the ORG . In addition , it contains in its LAW and LAW ( a ) provisions similar to sections DATE ( a ) of the General Convention respectively .

Under the ORG internal appeals system in force at the time of the dispute at issue , ORG staff members who considered that a decision by the ORG administration had violated the terms of their employment could seek an administrative review of such decision by the ORG Secretary - General . If the Secretary - General did not reply within the allotted time - limit as stipulated in the relevant regulations or if his reply was unfavourable , the staff member could submit an appeal to ORG ( the “ JAB ” ) . The ORG , composed of CARDINAL staff members , following an examination of the case , made a non - binding recommendation to the Secretary - General who took the final decision on the appeal .

NORP The Secretary - General ’s final decisions could then be challenged before ORG ( the “ LAW ) . The ORG was established in DATE by ORG , for the purpose of resolving employment - related disputes between ORG staff and the ORG .

The judges of the ORG , who had to possess judicial experience in the field of administrative law , were appointed by ORG for DATE and could be reappointed once . No member of the ORG could be dismissed by ORG unless the other members were of the unanimous opinion that he or she was unsuited for further service ( LAW ORG ’s Statute , adopted by ORG by LAW ) on DATE and as applicable at the time of the dispute at issue ) .

As to the proceedings before the ORG , each written statement and additional document submitted to the ORG at the request of its president was to be communicated to the other parties , unless at the request of CARDINAL of the parties and with the consent of the other parties , the ORG decided otherwise ( see LAW adopted by the Tribunal on DATE , as amended and applicable at the time of the dispute at issue ) . An applicant could present his case before the ORG in person , in either the written or oral proceedings . He could also designate a staff member of ORG to represent him , or could be represented by counsel authorized to practice in any country a member of the organization concerned ( LAW ORG ) . Oral proceedings were to be held if the presiding member so decided or if either party so requested and the presiding member agreed ( see LAW ORG ) .

If the ORG found that an application was well - founded , it had to order the rescinding of the decision contested . At the same time , it had to fix the amount of compensation to be paid to the applicant for the injury sustained should the Secretary - General decide , in the interests of the ORG , that the applicant should be compensated without further action being taken in his or her case . Such compensation should , as a rule , not exceed the equivalent of CARDINAL years’ net base salary of the applicant ( see LAW ) .

In DATE the ORG Secretary - General established ORG on the ORG system of administration of justice ( the “ ORG ” ) in reply to a request by ORG expressed in its resolution CARDINAL/CARDINAL to establish a panel of external , independent experts to review and possibly redesign the system of administration of justice at ORG . ORG issued its report on DATE . The relevant parts of the report read as follows :

“ Summary

... ORG found that the ORG internal justice system is outmoded , dysfunctional and ineffective and that it lacks independence ...

II . Overview

ORG found that the administration of justice in ORG is neither professional nor independent . The system of administration of justice as it currently stands is extremely slow , underresourced , inefficient and , thus , ultimately ineffective . It fails to meet many basic standards of due process established in international human rights instruments ...

NORP ... establishing a professional system of internal justice is essential if ORG is to avoid the double standard – which currently exists – where the standards of justice that are now generally recognized internationally and that the ORG pursues in its programmatic activities are not met within the ORG or the funds and programmes themselves . These international standards include the right to a competent , independent and impartial tribunal in the determination of a person ’s rights , the right to appeal and the right to legal representation .

... Hearings , too , are a clear requirement in international standards whenever there are disputed issues of fact . ...

ORG The Formal system

A number of the difficulties within the formal justice system stem from the ORG and the jurisprudence of ORG . By LAW of its Statute , ORG may order specific performance . However , it is required at the same time to fix compensation ( normally limited to DATE net base salary ) , which the Secretary- General may decide to pay as an alternative if that is considered to be in the interests of the ORG . The power of the Secretary - General to choose between specific performance and the payment of limited compensation can , and sometimes does , result in inadequate compensation , particularly in cases of wrongful termination or non - renewal of contract . A system that can not guarantee adequate compensation or other appropriate remedy is fundamentally flawed . More significantly , a system that does not have authority to finally determine rights and appropriate remedies is inconsistent with the rule of law .

The decisions of ORG are not always consistent , and its jurisprudence is not well developed . In particular , it does not have a coherent jurisprudence as to the duties of an international organization to its staff . Thus , there is a widespread view , which is largely correct , that the formal justice system affords little , if any , protection of individual rights , such as the right to a safe and secure workplace or the right to be treated fairly and without discrimination .

VI . Legal representation

The Panel of Counsel , which was formally established in DATE and which has the responsibility to provide legal assistance and representation to ORG staff members in proceedings within the internal justice system , is extremely underresourced and is not professionalized . ...

ORG notes that legal assistance to the management of the ORG is undertaken not by volunteers without legal training , but by a cadre of professional lawyers in ORG and ORG . This disparity in legal resources available to the management and staff members has created an egregious inequality of arms in the internal justice system . ”

In DATE , based on the recommendations of ORG and acting on a proposal by the Secretary - General , ORG decided to introduce a new system for handling internal disputes and disciplinary matters in ORG . The new CARDINAL - tier judicial system with ORG and ORG became operational on DATE .

ORG has jurisdiction to deal with constitutional complaints which concern acts of a “ public authority ” ( see LAW no . CARDINAL ( a ) of LAW ) . Under ORG well - established case - law , this comprises not only acts of NORP public authorities , but also acts of supranational organisations which concern the beneficiaries of fundamental rights in GPE ( see , for instance , ORG , file no . CARDINAL , DATE , judgment of DATE , Collection of the decisions of ORG ) , vol . CARDINAL , pp . CARDINAL ss . , CARDINAL s. ( GPE judgment ) ; file no . CARDINAL BvR CARDINAL/CARDINAL , decision of DATE , § CARDINAL ( of the internet version ) ) .

However , ORG only exercises its jurisdiction over supranational acts of international organisations under the condition that the complainant sufficiently substantiated that the level of protection of fundamental rights by the international organisation was generally and manifestly below the level required by LAW ( see , for instance , ORG , file no . CARDINAL BvR CARDINAL/CARDINAL , decision of CARDINAL DATE , BVerfGE , vol . DATE , pp . CARDINAL ss . , CARDINAL ( PERSON ) ; file no . CARDINAL BvL CARDINAL , decision of DATE , BVerfGE , vol . CARDINAL , pp . CARDINAL ss . , CARDINAL ; file no . CARDINAL BvR CARDINAL/CARDINAL , decision of DATE , § § QUANTITY ss . ; file no . CARDINAL BvR CARDINAL/CARDINAL , decision of DATE , § CARDINAL ) .

ORG decision of DATE ( file no . CARDINAL BvR CARDINAL/CARDINAL ) concerned the decision of ORG not to admit the applicant as a representative before that ORG as he had not passed the ability test .

The Federal Constitutional Court declined to consider the applicant ’s constitutional complaint . It found that the complaint was directed against an act of a “ public authority ” as the decision at issue had a direct effect on a beneficiary of fundamental rights in the NORP legal order .

However , the level of protection of fundamental rights guaranteed by LAW satisfied the requirements which had to be met under LAW in case of a transfer of sovereign powers . The applicant had failed to substantiate sufficiently that the level of human rights protection under LAW in respect of admissions as a representative was generally and manifestly below the level required by LAW . The same applied if a duty of protection on the part of the ORG was assumed as the applicant would also have been obliged to demonstrate that there was a structural lack of legal protection which ORG should have addressed . ORG therefore did not exercise its jurisdiction .

ORG decision of DATE ( file no . CARDINAL BvR CARDINAL/CARDINAL – the impugned decision in the case of PERSON v. GPE , no . CARDINAL ) concerned ORG decision not to recruit the applicant .

ORG declined to consider the applicant ’s constitutional complaint against ORG decision . It found that the complaint , in which the applicant had argued , in particular , that his constitutional right of access to court had been breached , was inadmissible . A constitutional complaint only lay against acts of a “ public authority ” and the applicant had failed to demonstrate that such an act was at issue in his case .

The Federal Constitutional Court confirmed that ORG had immunity from the jurisdiction of the domestic courts within the scope of its official activities under LAW . It further reiterated that acts of a “ public authority ” were not only acts of NORP ORG authorities . The term also covered acts of supranational authorities , such as ORG and its executive organ , ORG , which had an impact on the beneficiaries of fundamental rights in GPE .

However , the decision of the President of ORG here at issue could not be qualified as an act which had an impact on the beneficiaries of fundamental rights in GPE because it did not have any external legal effects within the NORP legal order . Measures relating to the relationship between the international organisation and its staff or candidates for posts , as a rule , only concerned the internal sphere of the organisation . This conclusion was not altered by the fact that the applicant was a NORP national living in GPE who , had he been employed , would have worked in GPE . The court conceded that the applicant ’s recruitment would have been an act of a supranational nature which , changing his legal status , would have had a concrete effect within the NORP legal order . The refusal to employ him did not , however , have such an effect . ORG jurisdiction did not extend to such internal measures .

The Federal Constitutional Court further found that in view of the inadmissibility of the applicant ’s constitutional complaint , it did not have to decide the question whether the level of protection in respect of staff issues within ORG complied with the standards set by LAW , which had to be observed in the event of a transfer of sovereign powers .

ORG decision of DATE ( file no . CARDINAL BvR CARDINAL/CARDINAL ) concerned the temporary denial of access of the complainants , staff members of ORG , to the internal e - mail system of that organisation .

ORG dismissed the complaint as inadmissible as it had not been shown that it concerned an act of a “ public authority ” . It stressed that such acts included acts of supranational organisations to which GPE had transferred sovereign powers and which had direct legal effects within the NORP legal order , that is , which altered the legal position of individuals within it . However , the impugned measure did not alter the ORG position in the NORP legal order . It further spoke against the existence of an act of a “ public authority ” that ORG enjoyed immunity from jurisdiction in respect of employment - law disputes .

Furthermore , as ORG had previously found ( it referred to its decision of DATE , file no . CARDINAL BvR CARDINAL/CARDINAL , see paragraphs CARDINAL above ) , there could be a duty of protection incumbent on the State ( PERSON ) where the internal sphere of an international organisation was affected . In that sphere , legal protection could only be granted if the NORP legislature and ORG used means that were suitable for ensuring that any conditions within the intergovernmental organisation which were contrary to fundamental rights were removed . The failure of the NORP ORG authorities to take action in connection with the final decision on the impugned act would then constitute an act of a “ public authority ” .

The complainants had , however , failed to make any submissions in this respect . Just as in the sphere of an organisation ’s supranational powers , it was necessary for complainants to claim in a substantiated manner that there was a structural deficiency in legal protection within the organisation . ORG further noted that it had previously confirmed that the system of fundamental rights protection within LAW and in the proceedings before ORG generally complied with the standards of LAW .


Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva

NORP The applicant , Mr Jānis Maļinovskis , is a NORP national , who was born in DATE and is currently detained in a prison in GPE . He was represented before the Court by PERSON , a lawyer practising in GPE .

ORG ( “ the Government ” ) were represented by their Agent at the time , PERSON , and subsequently by PERSON .

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

According to the ORG , on CARDINAL DATE , at QUANTITY p.m. according to the documents provided by the Government ) the duty prison officer GPE noticed a rope stretched between the window of the applicant ’s cell ( no . CARDINAL ) in LOC and FAC ( on DATE these prisons were merged into a single prison : FAC ( Rīgas centrālcietums ) ) . The rope was being used to pass a certain item between the buildings . GPE immediately ordered a search of cell no . CARDINAL .

The parties agreed that the search was carried out TIME and TIME

According to the ORG , prison wardens PERSON and PERSON commenced the search and ORG joined them shortly afterwards . The search was carried out in the presence of the applicant , who was the only inmate in the cell .

According to information received from ORG , ORG log recording special measures ( speciālo līdzekļu pielietošanas protokolu reģistrācijas žurnāls ) did not indicate that any force or special measures had been applied to the applicant during the search .

The applicant alleged that the search had been brutal and that prison staff had inflicted injuries on him . Replying to the Government ’s observations , the applicant specified that his nose had been broken and had not healed properly , and that he had sustained bruises in the thorax and chest area and on the neck and face .

According to the record of the search , CARDINAL CDs , a slingshot and a rope had been confiscated . The applicant denied that the last CARDINAL items had been found in his cell .

The applicant complained to ORG , after the latter had joined prison wardens PERSON and PERSON , that he had been beaten . Immediately after the search ORG therefore ordered the applicant ’s medical examination by a doctor of FAC .

DATE , at TIME , a doctor , PERSON , noted that the applicant ’s health condition was satisfactory . The doctor did not record any injuries to the applicant .

On DATE the applicant complained to a governor of FAC . According to the applicant ’s written submission , on DATE his property had been stolen and he had been physically maltreated by being kicked and punched in the kidney area and still had pain in his kidneys . The applicant said that he would inform the media and commit suicide if the unlawful conduct continued .

The applicant ’s complaint was forwarded to ORG investigation division .

On CARDINAL DATE the applicant completed a complaints form , addressed to ORG investigation division . He provided the following description of the events of CARDINAL DATE :

“ ... CARDINAL ... employees broke in . That may have been TIME [ The applicant ] does not know their names and it is difficult to give a physical description of them because , first , they were in uniforms [ and ] looked alike and , second , [ the applicant ] was in a state of shock . At first CARDINAL of the fattest started to hit [ the applicant ] ... after [ the applicant ] started shouting , started to strangle ... CARDINAL of the broad - shouldered [ ones ] hit [ the applicant ] on the torso , more on the sides ... [ the applicant ] would be able to identify them ... [ The applicant ’s ] beating could be heard in several cells : no . CARDINAL [ ORG ] , no . CARDINAL [ S. ] and all the cell [ not visible on the copy ] ...

... at the doctor ... the doctor was writing something and without carefully looking at [ the applicant ] answered : ‘ But I do not see anything.’ Even though [ the applicant ] could see a swelling and a bruise on [ his ] left arm ... [ the applicant ] suspects that [ his ] nose was broken while [ he ] was being strangled between the beds because [ he ] heard the sound of a crack and started bleeding ... ”

The applicant also complained that some of his property had been unlawfully removed and damaged .

According to ORG notes from FAC , on DATE the applicant was re - examined by the prison doctor ’s assistant , ORG The applicant stated that he had sustained injuries on CARDINAL DATE during the search in cell no . CARDINAL and had pain in his ribs and nose . PERSON recorded that no visible injuries could be seen on the applicant . An X - ray was performed on the left side of the applicant ’s thorax and the bridge of his nose . On DATE a doctor , PERSON , recorded that the X - ray examination had not revealed any pathology .

The applicant , however , indicated that during the X - ray a doctor had asked him : “ When was your nose broken ? ” In his submissions to the ORG , the applicant said that , according to the X - ray , there had been a fracture “ that had been there a while ago ” . Yet , the applicant did not specify on what evidence he was relying in support of that contention .

In DATE , the LOC employees GPE , PERSON and PERSON gave their explanations ( paskaidrojumi ) . They submitted that no physical force had been applied to the applicant .

In DATE other prisoners provided their explanations .

NORP In particular , on CARDINAL DATE PERSON had heard the applicant shouting through the window that prison guards had been beating and strangling him . However , PERSON had neither heard nor seen the applicant being beaten . PERSON stated that he would not have been able to hear or see him because his cell was located far away from the applicant ’s cell . PERSON was in cell no . CARDINAL , which was on the second floor , and the applicant ’s cell was on the fourth floor .

Another inmate , PERSON declared that his cell , no . CARDINAL , was located beneath the applicant ’s cell . On CARDINAL DATE S.B. had been listening to music . He had just heard some noise in the cell above . He could not affirm that the applicant had been beaten or had been screaming . In the evening PERSON had heard the applicant shouting through the window that prison guards had beaten him .

According to the written submissions of CARDINAL other inmates from the neighbouring cell , no . CARDINAL , they had not heard anything on CARDINAL DATE . With regard to the individuals detained in cell no . CARDINAL , however , the applicant submitted to the ORG that they had said that they had heard a noise and the applicant ’s shouts about being beaten . However , the applicant did not specify on what evidence he was relying to that effect .

On DATE the head of FAC investigation division , GPE , refused to institute criminal proceedings . Reference was made to section CARDINAL(CARDINAL ) of LAW ( no grounds on which to institute criminal proceedings ) and section ORG ) ( no crime committed ) .

I.P. ’s conclusions of DATE on the internal investigation referred to the applicant ’s allegations and noted that the following had been established :

“ On DATE at TIME ... [ GPE ] saw a rope between FAC cell no . CARDINAL and FAC ... a certain item was being transmitted ... [ ORG ] ordered that ... [ PERSON ] immediately carry out a search of cell no . CARDINAL , where [ the applicant ] was being held ...

The search of cell no . CARDINAL was carried out on CARDINAL DATE at TIME by [ PERSON ] and [ I.R. ] in [ the applicant ’s ] presence . After the search in cell no . CARDINAL had commenced [ GPE ] arrived and the search was continued in his presence ...

As [ the applicant ] complained to [ ORG ] that he had been beaten , immediately after the search he was taken to a duty doctor , who examined [ the applicant ] and did not establish any bodily injuries .

On DATE [ the applicant ] ... was referred for a further examination by a doctor , who carried out an X - ray ; however no bodily injuries were recorded ( ORG notes of CARDINAL DATE [ and ] DATE ) .

In the course of the internal investigation explanations were collected from the detainees in cells CARDINAL . CARDINAL and CARDINAL , [ ORG ] and [ S.B. ] , who explained that they could not confirm that in TIME of CARDINAL DATE prison employees had beaten up the detainee in cell no . CARDINAL [ the applicant ] ...

Accordingly , the materials gathered during the internal investigation have not confirmed the [ allegation ] that ... [ the applicant ] had been beaten during the search ... ... [ the applicant ’s ] allegations in his submissions of CARDINAL and CARDINAL DATE are false ... ”

On DATE , the applicant appealed to the prosecution against the aforementioned decision of CARDINAL DATE refusing to institute criminal proceedings . The applicant argued , inter alia , as follows :

“ [ The applicant ] has grounds to believe that in the course of the inquiry persons favourable to the administration , who protect the interests of the administrative employees ( secret employees ) , were called from the adjacent cells and [ the applicant ] has grounds to believe that detainees who could testify truthfully were not questioned . [ Furthermore ] , as there were no physical traces by the time of the inquiry , independent doctors were not invited to conduct an examination ... ”

The applicant also complained that his CARDINAL CDs had been stolen .

On DATE a prosecutor , PERSON , upheld the refusal to institute criminal proceedings . The prosecutor noted that statements had been collected in the course of the internal investigation from persons named by the applicant . They had not confirmed that the applicant had been beaten . Nor did the medical documentation establish any injuries . Accordingly , PERSON concluded that the internal investigation had been thorough and impartial and that there had been no violations .

On DATE the applicant challenged that decision before a higher - ranking prosecutor . The applicant complained with respect to his CARDINAL CDs . He noted , without providing further details , that injuries had been inflicted on him .

A higher - ranking prosecutor , GPE , replied on DATE . She noted that all the material had been analysed again and found that the previous prosecutor had drawn a lawful conclusion .

On DATE the applicant contested GPE ’s finding . He alleged that the prosecutor had covered up the unlawful acts of the prison administration . He stated , further , that it was practically impossible to prove violence against an inmate in a place of detention . The applicant further alleged that the taking of his CDs had constituted theft .

On DATE another prosecutor , ORG found that prosecutor GPE had examined the material collected by ORG investigation division and had duly investigated the applicant ’s allegations of ill - treatment . ORG therefore upheld the refusal to institute criminal proceedings . That decision was final .

In a separate set of criminal proceedings , on an unspecified date , the applicant was ordered to undergo a forensic medical examination to assess his injuries .

Section CARDINAL of LAW ( PERSON likums ) , as in force at the material time , provided that ORG ( “ the MADEKKI ” ) was responsible for controlling the professional quality of health care in medical establishments .

The provisions of the Regulation of the Cabinet of Ministers no . CARDINAL ( DATE ) ( PERSON aprūpes un darbspējas ekspertīzes kvalitātes kontroles inspekcijas nolikums ) , in force from DATE until DATE , read with respect to the PERSON as follows :

“ CARDINAL . The ORG has the following functions :

to control the professional quality of medical care ... in medical institutions ...

The ORG , in order to fulfill its functions , has the following tasks :

to conduct assessments ( ekspertīzes ) and give reports ( atzinumus ) on the quality of medical care ... in a medical institution ...

to control compliance with legislation binding upon medical institutions in the area of medical care ...

to issue , where provided for by legislation , administrative acts ( administratīvais akts ) in the area of medical care ...

to examine submissions ( iesniegumus ) by persons in the area of medical care ...


Remainder inadmissible;Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Egidijus Kūris;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano;Ksenija Turković

The applicant was born in DATE and lives in GPE .

The applicant was the director of the ORG district branch of ORG ) in GPE at the time of the events giving rise to the application .

On DATE a number of trade unions organised a demonstration in GPE . During the demonstration , some participants carried signs and chanted slogans in support of PERSON , the leader of the ORG ( ORG ) , an illegal armed organisation . These demonstrators were identified by the police as members of HADEP .

On DATE the public prosecutor at ORG applied for a warrant to search the offices of CARDINAL branches of HADEP to obtain incriminating evidence concerning the ORG .

On DATE ORG issued a search warrant .

That same evening police officers from the GPE police headquarters conducted a search of the ORG branch office of ORG . The search protocol , which was signed by the applicant , indicated that illegal publications and flags and symbols of the ORG had been found there , together with pictures , articles and books pertaining to PERSON .

On DATE the applicant was taken to the GPE police headquarters for questioning . The police officers informed the applicant of his right under LAW ) of the former LAW to request a lawyer . However , the applicant did not ask for a lawyer . In his statement , the applicant contended that , although he was the director of the ORG district office of ORG , he was not always present at the office and that he had not been aware of the existence of the pictures and symbols regarding PERSON and the ORG found in the office . He similarly denied responsibility for the illegal publications and books which had been found on the LOC , which he claimed had been brought in by publishers or other persons visiting the office without his knowledge . He claimed that whenever he came across similar pictures and symbols , he requested their removal . This statement was signed by the applicant .

On DATE the applicant was questioned by the GPE public prosecutor , to whom he repeated the statement he had previously made to the police . The applicant also waived his right to request a lawyer before the public prosecutor .

On DATE the GPE public prosecutor filed a bill of indictment against the applicant , charging him with praising and condoning acts punishable by law under LAW of the former LAW .

On DATE ORG held the first hearing . At the end of the hearing , to which the applicant attended , the court decided to hold the next hearing on DATE .

On DATE , at the second hearing , the GPE public prosecutor presented his opinion ( esas hakkında mütalaa ) to the firstinstance court in the absence of the applicant . In his opinion , the public prosecutor advised that the court should find the applicant guilty as charged . ORG accordingly convicted the applicant at the end of the hearing , and sentenced him to CARDINAL months’ imprisonment and a fine of CARDINAL old NORP liras ( GPE ) . In its judgment the domestic court held that the applicant ’s defence lacked credibility and that the display of symbols and pictures pertaining to the ORG and PERSON in the party building amounted to the offence of praising and condoning acts punishable by law .

Through his lawyer the applicant appealed against this judgment . He claimed that he had not been duly reminded of his right to request a lawyer under LAW during his questioning . He further argued that he had missed the hearing as he was delayed in traffic and the firstinstance court had taken its decision in his absence without giving him the opportunity to defend himself against the allegations of the public prosecutor .

On DATE ORG quashed the fine imposed , but upheld the remainder of the judgment . On DATE this decision was deposited with the registry of the first - instance court .

On DATE the applicant started serving his sentence . On CARDINAL DATE he was released on parole .


Preliminary objections dismissed (Article 35-1 - Effective domestic remedy);Remainder inadmissible;Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Violation of Article 13+10-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 10 - Freedom of expression -{General};Article 10-1 - Freedom of expression);Pecuniary and non-pecuniary damage - award

András Sajó;Egidijus Kūris;Guido Raimondi;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano

The applicants were born in DATE , DATE and DATE and live in GPE , GPE and ORG , respectively .

At the material time , the applicants were members of ORG and the opposition party LMP .

On DATE ORG held a final vote on a new law , PERSON . T/CARDINAL on ORG and ORG . The legislative proposal was quite controversial and generated intense reactions among opposition members . In protest during the final vote on the bill , PERSON placed a small , golden wheelbarrow filled with soil on the table in front of the Prime Minister , while PERSON and PERSON stretched a banner containing the inscription “ Land distribution instead of land robbery ! ” in front of the Speaker ’s pulpit ; meanwhile , PERSON used a megaphone to speak . She had previously delivered CARDINAL speeches during the detailed debate and CARDINAL speech during the final debate on the bill , filing CARDINAL amending motions , and introduced CARDINAL amending proposals just before the final vote .

On DATE the Speaker presented a proposal to fine PERSON and PERSON respectively MONEY ( ORG ) ( MONEY ( ORG ) ) and PERSON DATE ( approximately EUR CARDINAL ) for having seriously disrupted the plenary proceedings , in application of section CARDINAL(CARDINAL ) of Act no . ORG of DATE on ORG .

The Speaker proposed that the maximum fine ( a third of their DATE remuneration ) was to be applied , given the extraordinary situation that had developed during the voting process . The reason given by the Speaker was that the applicants had gravely disrupted the plenary ’s work by displaying their poster and using a megaphone .

A decision approving the proposal of the Speaker was adopted by the plenary on DATE , without a debate .

A constitutional complaint was filed , concerning a sanction for disruptive conduct , by MP ORG , a member of the opposition party ORG , and rejected by ORG on DATE ( decision ORG . DATE . ( XI.CARDINAL . ) ORG and DATE . ( XI.CARDINAL . ) ORG ) ; see paragraph CARDINAL below ) .

ORG found that MP PERSON had been fined under sections DATE ) and ( CARDINAL ) , PERSON ) and CARDINAL(CARDINAL ) DATE rather than section CARDINAL(CARDINAL ) – of Act no . XXXVI of DATE on ORG . It held in particular that the restrictions imposed on him for conduct falling under the above provisions DATE that is , “ gravely offensive expression ” – were in compliance with LAW . His complaint in respect of section CARDINAL(CARDINAL ) was rejected because this provision , concerning “ gravely offensive conduct ” , was not applicable in that case .

ORG went on to observe that there was no remedy available to that complainant against the measure .

Lastly , ORG held that parliamentary disciplinary law concerned ORG ’s interior business and the MPs’ conduct as parliamentarians , rather than ORG rights or obligations ; and that therefore no requirement of a remedy against a parliamentary disciplinary measure could be deduced from Article XXVIII(CARDINAL ) of LAW .


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

Branko Lubarda;Dmitry Dedov;Luis López Guerra

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

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


CASE OF ASSOCIATION OF VICTIMS OF ROMANIAN JUDGES AND OTHERS v. ROMANIA

Remainder inadmissible;Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of association);Pecuniary and non-pecuniary damage - award

Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria

On DATE the applicant association lodged an application with ORG , seeking to be granted legal personality and to be registered as an association in ORG kept by that court .

According to its ORG , the founders of the applicant association were the other CARDINAL applicants . ORG had CARDINAL members , while PERSON was designated as the President of the Association .

In support of its application , the applicant association appended a document issued by ORG confirming that the name chosen for the association was available , as well as a copy of its Memorandum ( act constitutiv ) and ORG ( statut ) , which , in their relevant parts , read :

“ The goal of the association is to protect the rights and the legitimate interests of its members before all domestic authorities with the capacity to administer , supervise and/or enact justice .

The objectives of the association are :

- to support and promote the relationship between its members and those authorised by law to protect their rights and interests ;

- to monitor the activity of the NORP justice system with the aim of reporting to the relevant authorities any injustice , irregularities or illegalities committed by NORP judges ;

- to present in the media any cases of manifest unfairness or bias in the application of the law , in so far as the public has the right to be aware of any negative aspects of the activities of the NORP justice system ;

- to support its members in their undertakings before any international court ;

- to organise any form of protest ( marches , public gatherings , picketing ) , with prior authorisation from the authorities and in accordance with the law ;

- to signal the gravity and the public danger represented by an non - impartial or an incompetent judicial system ;

- to create a database of all cases involving its members that are pending before the authorities ;

- to cooperate with the legislative bodies by providing them with ideas , projects , proposals , etc . with the aim of improving the functioning of the NORP judicial system . ”

On DATE the court rejected the application , holding that the goal of the applicant association was in breach of LAW of LAW , which states that “ an organisation which , by its aims or activity , militates against political pluralism , the principles of a ORG governed by the rule of law , or against the sovereignty , integrity or independence of GPE shall be unconstitutional ” . The court noted as follows :

“ In its ORG , the applicant [ association ] starts from the premise that a group of individuals who consider themselves victims of judges – as a result of having had their own cases brought before the judicial authorities – want to form an association which would promote their interests , notably by using any legal means for publicising any alleged injustice , irregularity or illegality , and also by lawfully protesting against all of these aspects .

Such a premise , also implicit in the name of the association , is profoundly unconstitutional in that a group of individuals is stating proprio motu that a judgment can be unfair or irregular or an expression of illegality . All these aspects encourage non - compliance with courts’ judgments and represent a form of attack on CARDINAL of the ORG ’s powers , namely the judiciary . ( ... )

The infringement is prescribed by law ... in so far as the association is not constitutional because of its aims .

The measure aims to protect public order and the rights of others . ( ... )

The measure is necessary in so far as the image of the justice system is currently a matter of national interest , and any attack on the courts is therefore an issue of particular gravity which justifies the refusal to grant legal personality to an association that wants to promote an unfavourable image of justice , in the light of the fact that none of its members has the authority to note ( calitatea sǎ constate ) any “ injustice , irregularity or illegality committed by the judges ” because it is only the ORG authorities appointed to make inquiries in that regard which have jurisdiction to pronounce a conclusion on such matters . ”

The court did not consider it necessary to give the applicant association the opportunity to remedy the impugned irregularity by modifying its ORG , as prescribed by LAW no . CARDINAL , in so far as it considered that any modification of the aims of the applicant association rendering it constitutional would alter the very essence of the association .

NORP The applicant association appealed against the judgment before ORG . It stressed that , according to its ORG , all the association ’s activities had to be conducted in compliance with the law and its aim could therefore not be regarded as unconstitutional .

On DATE ORG dismissed the appeal , upholding the reasoning given by the first - instance court . The court referred also to the provisions in the applicant association ’s ORG , according to which ORG was competent to accept or reject a membership request on the basis of its own assessment of whether or not the aspiring member was a victim of a breach of his or her rights in a trial before a judge . Such competence was unlawful in so far as the ORG thus exercised a form of discretion in assessing whether there were breaches of rights , legitimate interests and/or law by the judges . In claiming to have such competence , ORG was attempting to usurp the domestic and international institutions empowered to make such assessments , which was unconstitutional , illegitimate and unlawful .

Furthermore , the court held that the ORG did not comply with legal requirements concerning the disposal of the association ’s assets in the event of its dissolution . The ORG prescribed that “ in event of dissolution , the disposal of the assets would be decided by ORG , in compliance with the provisions of LAW , while the law , namely article CARDINAL § CARDINAL g ) of the LAW “ required that the procedure should be set down in the ORG itself ” .


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

The applicant was born in DATE and lives in GPE .

He was detained in the remand section of GPE prison from DATE to DATE .

He was held in cell no . CARDINAL measuring QUANTITY ( not including a separate QUANTITY sanitary facility ) . For CARDINAL days he was held therein with CARDINAL other inmates with QUANTITY of personal space and for DATE he was held therein with CARDINAL other inmates with QUANTITY of personal space . For DATE he shared the cell with CARDINAL other inmates with QUANTITY of personal space .

The cell for CARDINAL detainees , where the applicant was held , was equipped with CARDINAL bunk beds with a total of CARDINAL sleeping places , CARDINAL large and CARDINAL small table , CARDINAL chairs and a set of cupboards for each of the detainees . Detainees could freely open or close windows in cells . On DATE bed was removed .

As regards the general characteristics of the cells in the remand section of GPE prison , material conditions inside the cells and sanitary conditions , see the judgment in PERSON and PERSON GPE , nos . CARDINAL , § § DATE , DATE .

As to the out - of - cell time in the remand section , the ORG found in the aforementioned judgment that detainees in the remand section were confined to their cells day and night , save for DATE outdoor exercise , and TIME in a recreation room ( see PERSON and PERSON , cited above , § MONEY ) . According to the information supplied by the Government in the present case , on CARDINAL DATE the time spent outdoors was extended to TIME and a half per day and in DATE the outside yard was covered by a roof .

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


No violation of Article 2 - Right to life (Article 2 - Extradition) (Conditional) (Kosovo);No violation of Article 3 - Prohibition of torture (Article 3 - Extradition) (Conditional) (Kosovo)

André Potocki;Angelika Nußberger;Erik Møse;Mārtiņš Mits;Síofra O’Leary;Gabriele Kucsko-Stadlmayer

The applicant was born in DATE , lives in GPE since DATE and is currently in detention pending extradition at FAC .

The application concerns proceedings for extradition from GPE to GPE , which have the following background :

S.Lu . is the former husband of the applicant ’s sister , ORG In the course of an argument on DATE , ORG . stabbed the applicant in the chest . On DATE . was convicted in GPE of attempted intentional homicide ( versuchter Totschlag ) committed in a comprehensible state of emotion ( in einer allgemein begreiflichen heftigen GPE ) under ORG DATE of LAW ) and sentenced to DATE imprisonment . The applicant testified as a witness during that trial .

After GPE . was released from prison in DATE , the applicant ’s sister reported him to the police for having repeatedly raped her during their marriage , and for threatening to kill her and her family . Out of fear of her husband , she changed her and her children ’s names . An order to determine S.Lu . ’s whereabouts ( PERSON ) was issued by the GPE public prosecutor ’s office in DATE and is in effect until DATE .

On the basis of an international arrest warrant issued by ORG ( GPE ) on DATE and DATE , the applicant was apprehended and taken into detention pending extradition by a decision of ORG ( Straflandesgericht Wien – hereinafter “ the Criminal Court ” ) of DATE . On DATE ORG of GPE requested the applicant ’s extradition . According to the arrest warrant , the applicant was suspected of aggravated murder under LAW in conjunction with LAW . He had allegedly ordered ORG in DATE to murder PERSON . ( his former brother - in - law ) for a payment of MONEY ( ORG ) . On DATE PERSON fired gunshots at a car in the vicinity of the intended victim PERSON . , but instead killed DATE . , ORG . ’s cousin .

During the extradition proceedings , the applicant alleged that he had nothing to do with the murder in GPE . He claimed that the accusations had been invented by GPE . as revenge for the applicant ’s having testified against him during the criminal proceedings in GPE . Furthermore , the “ PERSON . clan ” ( the family of GPE . ) was very influential in GPE and had connections to the highest Government officials and the justice authorities there , which is why the applicant could not expect a fair trial in that jurisdiction . In addition , the conditions of detention in GPE prisons were deplorable and would amount to torture , inhuman and degrading treatment . Because of the threat emanating from GPE . and his family , the applicant would have to fear for his life there . They could easily get to him in prison by using their connections .

On DATE , after having held an oral hearing , ORG declared the applicant ’s extradition to GPE permissible . It held that during the extradition proceedings , the court was not called on to examine whether the applicant was guilty or innocent , but merely to assess whether there was enough evidence to raise suspicions against him , which according to the documents submitted by the GPE authorities was the case . None of the evidence offered by the applicant had been capable of dispelling these suspicions immediately and without doubt , as would have been required by section ORG ) of ORG ( Auslieferungs- und Rechtshilfegesetz – hereinafter “ LAW ” ) . The fact that GPE . had been convicted of attempted intentional homicide in DATE and the allegation that he wanted to take revenge on the applicant did not dispell the suspicion either . Furthermore , the court remarked that GPE . ’s cousin had actually been killed , which called into question the applicant ’s theory of that being a contrived story . It could equally be argued that the applicant had wanted to take revenge on GPE . for stabbing him . Concerning the applicant ’s fear for his life in GPE , the court stated that the mere possibility of inhuman or degrading treatment did not suffice . The applicant had failed to adduce specific evidence of an actual , individual threat of treatment contrary to LAW . Furthermore , in case of extradition to a member state of the LAW , the responsibility of the extraditing state was limited , as the person concerned could seek protection against a violation of the LAW in the receiving state .

On DATE the applicant appealed . He submitted that if extradited to GPE , he risked treatment contrary to LAW , because PERSON . PERSON wished to take revenge on him . In fact , PERSON . PERSON . , a very influential member of that clan , was detained at PERSON prison and following extradition to GPE , he would be detained at that prison as well . Security in prison in GPE was a problem , as prisoners became frequently victims of aggression , and he would therefore also risk to become the victim of an assault .

On DATE ORG ( GPE hereinafter “ the Court of Appeal ” ) dismissed the applicant ’s appeal . It confirmed ORG finding that the applicant had failed to substantiate a real and individual risk of being subjected to torture , inhuman or degrading treatment , or that the GPE authorities would not be able to protect him from third , private parties . Furthermore , members of the allegedly influential PERSON . clan were themselves imprisoned in GPE . In particular , on DATE . was convicted in GPE for issuing a dangerous threat against the applicant , which demonstrated that the GPE authorities were indeed capable of taking adequate measures to protect the applicant . Moreover , the PERSON . clan could not be that influential if it was not capable of keeping its own members out of prison . Concerning the conditions of detention , the court held that the report on GPE by ORG ( hereinafter “ the CPT ” ) of DATE ( see paragraph CARDINAL below ) did not state that ill - treatment was the rule in GPE prisons , but that there were merely sporadic incidents of violence . The mere possibility of ill - treatment by prison officers did not suffice to stop the applicant ’s extradition . In relation to the material conditions of detention in FAC , where the applicant alleged he would most likely be held if extradited , ORG again quoted the above - mentioned ORG report of DATE , where it was found that inmates were able to move freely within that facility during DATE and could exercise outside on a DATE basis for DATE , and that fitness and computer rooms have recently been installed .

On DATE the NORP Federal Minister of Justice ( NORP ) approved the applicant ’s extradition to GPE .

On DATE the applicant requested that the ORG indicate to ORG to stay his extradition to GPE under LAW . He complained under LAW and CARDINAL of the Convention that he would run the risk of torture , inhuman or degrading treatment or even death , as the PERSON . clan wanted to take revenge on him and the GPE authorities were not willing or able to afford him protection .

On DATE the ORG granted the applicant ’s request .

On DATE the applicant lodged applications for the reopening ( PERSON ) of the extradition proceedings and a stay of the extradition with ORG . He produced a certified declaration by PERSON , who had retracted his previous confession to the police that the applicant had ordered the murder of GPE . He asserted that he had been tortured by the GPE police during his questioning and had been pressured into blaming the applicant for ordering the murder . L.Q. alleged that he had fallen unconscious several times because of the “ mental and physical torture ” . L.Q. averred that he did not even know the applicant in person . The applicant further submitted into evidence several sworn statements from family members and friends , who attested that his life was in danger in GPE because of threats from GPE . and his clan .

On DATE ORG dismissed the applicant ’s applications . It held that in accordance with section ORG ) of LAW , the applicant had failed to adduce evidence which would have been capable of immediately dispelling the suspicion against him raised in the extradition request . PERSON ’s declaration did not constitute objective evidence and did not indicate any violations in GPE of the applicant ’s rights under the ORG either . The applicant appealed .

On DATE the applicant lodged an application for a renewal ( GPE ) of the extradition proceedings with ORG under Article PERSON of LAW ( Strafprozessordnung – hereinafter “ the ORG ” ) , requesting suspensive effect at the same time .

On DATE ORG rejected the applicant ’s application . It found that the new evidence the applicant had produced in the proceedings before it were a matter for the pending reopening proceedings , not for requesting a renewal of the extradition proceedings . In relation to the alleged violations of ORG and CARDINAL of the Convention in the event of his extradition , ORG found that mere allegations referencing general reports on the human rights situation were not capable of substantiating a real and immediate risk to the applicant under these provisions . Furthermore , ORG held that the applicant did not have a right under the law to request suspensive effect , which is why that request had to be rejected .

On DATE ORG dismissed the applicant ’s appeal against ORG decision of DATE ( see paragraph CARDINAL above ) . The court found that the applicant had failed to produce objective evidence which would have indicated a real and immediate risk of treatment contrary to LAW if extradited to GPE and therefore would have warranted a reopening of the extradition proceedings . While the sworn statement by ORG in principle raised doubts in relation to the suspicions against the applicant , it had not constituted the only evidence against him . More pertinent had been the fact that , during the criminal proceedings against ORG in GPE , a microcassette had been put into evidence by GPE . which had allegedly contained a conversation confirming his statements that the applicant had been to blame for the murder . In addition , ORG ’s initial incriminating statements against the applicant had been made in the presence of his lawyer . Moreover , PERSON had not specified what exactly the police had allegedly done to him , which had made it impossible to evaluate whether the alleged treatment had actually amounted to torture , inhuman or degrading treatment . ORG reiterated that it was in any event for the GPE courts to evaluate the evidence against the applicant . In sum , it confirmed that the statement by ORG was not capable of immediately dispelling the suspicion against the applicant on which the extradition request was based . Lastly , ORG found that despite not being ORG to ORG , LAW granted the Convention direct effect under and superiority to national law , therefore domestic law equally offered protection from violations of the LAW . ORG decision to dismiss the applicant ’s appeal was served on his counsel on DATE .


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

NORP The applicant , Mr PERSON , is a national of GPE ( “ ORG ” ) who was born in DATE . He is currently living in the GPE . He was initially represented before the ORG by Ms M. de Boer , a lawyer practising in GPE . She was succeeded by PERSON PERSON , who is also a lawyer practising in GPE .

ORG ( “ the Government ” ) were represented by their Agent , Mr R.A.A. Böcker , and Deputy Agent , PERSON , of ORG .

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

On DATE the applicant entered the GPE and applied for asylum , fearing persecution within the meaning of the DATE LAW ( “ the DATE LAW ” ) . On DATE , the immigration authorities held a first interview ( eerste gehoor ) with the applicant concerning his identity , nationality and travel itinerary . A written record of this interview was prepared and the applicant , assisted by a lawyer , was given the opportunity to submit corrections and additions , which he did on DATE . On DATE a second interview ( nader gehoor ) was held with the applicant about his reasons for seeking asylum . A written report was drawn up and the applicant , assisted by a lawyer , submitted corrections and additions on DATE .

On DATE the Deputy Minister of Justice ( Staatssecretaris van Justitie ) issued a notice of her intention ( voornemen ) to reject the applicant ’s asylum application . On DATE , assisted by a lawyer , the applicant submitted written comments ( zienswijze ) on the notice of intent .

On DATE , on the basis of his written comments of CARDINAL DATE , the immigration authorities held a supplementary interview ( aanvullend gehoor ) with the applicant . A written report of this interview was drawn up and the applicant , assisted by a lawyer , submitted corrections and additions on DATE .

During these CARDINAL interviews , the applicant gave the following statement . He was a national of the ORG . His parents had died . He was married but his wife had remained in the ORG together with their CARDINAL children , who were born DATE . He also had CARDINAL brothers and CARDINAL sister , all of whom were living in the ORG . He gave the address of his home ( N. street no . ... in the N’djili borough of GPE ) and described the surroundings of the house where he had lived for DATE . He stated that it was near to a nameless football field located at PERSON or PERSON street , and that there was a protestant school on the opposite side of the street . Behind this school there was a street without a name and he had lived in a side street of this nameless street . For identification purposes , he provided the GPE authorities with a formal declaration of loss of identity documents ( attestation de perte des pièces d’identité ) bearing the number CARDINAL , which had been issued on DATE by the mayor of CARDINAL of the GPE boroughs and contained the applicant ’s particulars − including his personal address − but no specification of the nature of the identity documents lost . For the same purpose , he submitted a work pass issued by the “ ORG du Zaire ” on DATE and valid until DATE and attesting that the applicant was working as a loadmaster in the employment of ORG . Although the street name of the applicant ’s personal address in this work pass was the same as that on the declaration of loss of documents , the house number was not the same .

The applicant also stated that , since DATE , he had been a sympathiser of the Movement for the Liberation of the GPE ( ORG du GPE ; hereafter “ MLC ” ) . He often read ORG information material but never participated in public events such as demonstrations or party meetings . DATE he had worked as a ticket agent for ORG . DATE until leaving the GPE , he had worked as a ground handling manager / loadmaster for ORG , which entailed checking in and boarding passengers , carrying out ground - crew tasks and drawing up flight manifests .

In DATE or DATE the applicant and his NORP superior had been arrested by CARDINAL officers of the ORG national police on a charge of allowing passengers with false papers onto a departing aircraft . After being held for DATE in the civilian prison in the NORP borough of GPE , near to ORG , and following intervention by his employer , he had been released unconditionally . He had been beaten whilst in detention .

On DATE the applicant had been arrested for a second time by CARDINAL men who showed him passes identifying them as officers of the ORG military intelligence service ( GPE militaire des activités anti - patrie ; hereafter “ ORG ” ) . He was accused of helping CARDINAL passengers ‒ who were believed to have been involved in an attack on President PERSON ‒ to flee the country rather than reporting them to the immigration service . The applicant had denied the accusation ; it had not been his task to guide passengers to or through immigration checks . He had been detained in a military subterranean prison which , he believed , was located in the NORP borough of GPE . On DATE of his detention , the applicant ’s home had been searched , during which CARDINAL ORG pamphlets had been found . His passport had also been found and seized during this search . As a result of the severe maltreatment he had suffered during his detention , in DATE the applicant had been admitted to the NORP military hospital for treatment . His wife had been allowed to visit him in hospital once at DATE . On that occasion she had given him a Bible in which some money and his identity papers had been concealed . With the help of a friend of his brother - in - law ’s , the applicant had managed to escape at DATE . CARDINAL soldiers had taken him from the hospital to a house in a place near GPE . On DATE he had been taken to GPE airport and on DATE had managed to flee the ORG by plane .

On DATE the Deputy Minister of ORG issued a fresh notice of her intention to reject the applicant ’s asylum application . On DATE , assisted by a lawyer , the applicant submitted written comments on the new notice of intent .

NORP In a decision of DATE , the Deputy Minister rejected the applicant ’s asylum application . On DATE , the applicant filed an appeal against this decision with ORG of The Hague .

On DATE the applicant submitted , as additional grounds of appeal , a copy of a summons which he had received only on that date , although it had been issued on DATE by the ORG judicial police ( police judiciaire des parquets ) of ORG of the DRC State Security Court ( Parquet général près la ORG ) . It ordered the applicant to present himself on DATE before a named inspector of the judicial police in order to be questioned about “ facts of which he would be informed ” .

The applicant also submitted on DATE a report commissioned by “ GPE ” , a non - governmental organisation ( NGO ) in the GPE , which had been compiled by another NGO , namely ORG hereafter the “ PERSON ” ) . The author of the PERSON report was the president of ORG PERSON , Reverend PERSON . For the purposes of this report the researcher(s ) had visited the applicant ’s address in GPE − as given in the record of his first interview and on the declaration of loss of identity documents ( see paragraphs CARDINAL and CARDINAL above ) − and N’djili ( GPE ) FAC . They had interviewed a former secretary at ORG , amongst others , and had sought information from CARDINAL people working for ORG . The report confirmed , in its relevant part , that the applicant had worked for ORG at GPE airport , that he had been arrested by the FAC on the grounds stated , and that he had lived at the address he had provided . The report also stated that ORG had had to cease its activities at GPE airport for various reasons including the failure to respect airport rules and procedures , fraudulently embarking passengers , and “ above all for that manifesto matter ” ( “ surtout pour cette affaire de manifeste ” ) . It also states that the applicant ’s wife had left for an unknown destination . Through their sources at ORG , the researcher(s ) confirmed that the applicant was wanted for endangering state security ( “ Monsieur [ PERSON ] est recherché par les services de sécurité pour des motifs grâves d’attente [ sic ] à la sécurité de l’état ” ) , that the person who signed the summons was indeed an inspector for ORG and that the applicant would be immediately arrested and detained if found .

On DATE , the applicant was informed that the impugned decision of CARDINAL DATE had been withdrawn and a fresh decision would be taken .

On DATE the applicant was informed that ORG was initiating an investigation in the ORG in response to the material the applicant had submitted in support of his asylum request .

On DATE ORG released a person - specific official report ( individueel ambtsbericht ) based on an investigation carried out in the ORG . It had been found , inter alia , that – contrary to the PERSON report – the street name given by the applicant as his home address during his first interview as also on his declaration of loss of identity documents did not exist in the GPE borough where he had allegedly been living during DATE in the ORG and that , for this reason , it had not been possible to verify whether the applicant ’s spouse and/or other relatives were still living there . It had also become apparent that the declaration of loss of identity documents no . CARDINAL/POP/CARDINAL and the summons submitted by the applicant ( see paragraphs CARDINAL and CARDINAL above ) were forgeries , and it had not been possible to verify the authenticity of the work pass submitted by the applicant ( see paragraph CARDINAL above ) . Moreover , in so far as known , there was no subterranean prison attached to the ORG office in the NORP borough in GPE and no military hospital existed in GPE .

On DATE the Minister for ORG ( Minister PERSON ; hereafter “ the Minister ” ) issued a fresh notice of intent rejecting the applicant ’s asylum request . Observing that the applicant had not submitted any evidential material ( such as a boarding pass , a luggage label , an in - flight magazine or other in - flight item bearing the name of the airline ) attesting to his journey , that he had not submitted any documents in support of his asylum application and that he had provided only very cursory information about his periods of detention and hospitalisation , and having noted the content of the personspecific official report of DATE , the Minister concluded that there were sufficiently persuasive arguments for attaching no credence to the applicant ’s asylum statement .

On DATE , under the provisions of ORG ( PERSON ) , the applicant requested that the documents underlying the person - specific official report of DATE be disclosed . This request was transmitted to the Minister of ORG on DATE .

On DATE , assisted by a lawyer , the applicant submitted written comments on the fresh notice of intent of CARDINAL DATE . He contested the findings set out in the person - specific official report , whilst pointing out that the non - disclosure of the documents underlying that report and of the working methods employed by the person(s ) involved in the inquiry meant that he could do so to only a limited extent . The applicant also requested a reasonable extension to the DATE period allowed for the submission of additional written comments , as he had requested ORG to commission a new expert report to counter ORG Affairs’ person - specific official report . He therefore asked the Minister to stay her decision pending submission of this counter - report .

On DATE the Minister of ORG provided the applicant with the documents on which the person - specific official report had been based , at the same time restricting his access to certain parts of the documents containing information about the identity of agents or informants who had assisted in the investigation , information about investigation methods and techniques used , and information about their level of knowledge ( so as to avoid facilitating an improvement in the quality of forgeries ) .

In her decision of DATE the Minister rejected the applicant ’s asylum application . She noted that on DATE the applicant had requested an extension in order to allow GPE to produce a report to counter the person - specific official report and that this request had been granted on DATE . She also noted that , by letters dated DATE , DATE , DATE , DATE and DATE , the applicant had been asked to indicate when submission of the counter - report could be expected and that neither the applicant nor his lawyer had been able to answer this question . Finding that the applicant had had ample time to submit his comments on the person - specific official report , the Minister decided to proceed with her decision . The Minister took into account the fact that ORG Affairs’ inquiry had been based on the applicant ’s submissions , including the PERSON report ( see paragraph CARDINAL above ) , and DATE following the so - called “ REK check ” ( see D.T. v. the GPE and GPE DATE . ) , no . CARDINAL , § § DATE , DATE ) – it had been found that the person - specific official report had been drawn up with due care , both substantively and procedurally , and was comprehensible . The Minister also found that the applicant had submitted no evidence capable of casting doubt on the finding that the declaration of loss of identity documents no . CARDINAL and the summons submitted by the applicant ( see paragraphs CARDINAL and QUANTITY above ) were forgeries and once again concluded that no credence could be attached to the applicant ’s asylum statement .

On DATE , the applicant filed an appeal against this decision with ORG of The Hague and , on DATE , submitted a report commissioned by ORG which had been published on DATE by the NGO Comité pour la Democratie et les ORG ( hereafter the “ CDDH ” ) . The author of the CDDH report was its Secretary - General , Mr PERSON . For the purposes of compiling the report , he had managed to contact the applicant ’s spouse as well as some people working at FAC who had known the applicant when he was an employee of ORG .

NORP The applicant ’s spouse had explained that the street address given by the applicant was in fact a path across a cemetery . According to information provided by ORG ) , illegal dwellings had been built around the cemetery and that was where the applicant and his spouse had lived . When visiting the cemetery in DATE , the applicant ’s spouse had been unable to orientate herself as a result of major rebuilding work carried out in the neighbourhood after DATE , when the local authorities had decided to transform the cemetery into a residential area . This transformation was confirmed in an appended written statement by the local neighbourhood leader ( chef de quartier ) . The applicant ’s spouse had also stated that , together with some ORG employees , she had visited the applicant in the NORP medical centre at TIME in DATE . For his part , the applicant submitted written statements by CARDINAL individuals working in the airline industry , who all declared that they had personally known the applicant , confirmed that he had worked for ORG and described the nature of his work for the airline . The report drawn up by the CDDH does not contain any information about the declaration of loss of identity documents or the summons of DATE ( see paragraphs CARDINAL and CARDINAL above ) .

ORG of The GPE sitting in ‘ s - Hertogenbosch found on DATE that the restrictions applied to the applicant ’s access to the underlying documents ( see paragraph CARDINAL above ) were justified under section CARDINAL:CARDINAL of LAW ( PERSON ) . This decision was communicated to the applicant on DATE , with a request to indicate whether or not he had given his consent for ORG to take into account these underlying documents in determining his appeal on DATE without their being disclosed to the parties .

In its judgment of DATE , ORG of The GPE sitting in ‘ s - Hertogenbosch rejected the applicant ’s appeal of DATE . It noted that the parties had given their consent under the terms of section CARDINAL:CARDINAL § CARDINAL of LAW to take into account the documents underlying the person - specific official report of DATE . It held , inter alia , that the Minister could reasonably find that the applicant had failed to demonstrate that the absence of documents supporting his asylum statement was not a shortcoming for which he was to blame , and that the Minister could reasonably held against the applicant the fact that he had not provided a detailed and verifiable statement about his purported travel itinerary and that this detracted from the reliability and credibility of the applicant ’s asylum statement . As regards the CARDINAL reports commissioned by ORG , and relied upon by the applicant , and the person - specific official report of DATE , ORG held :

“ CARDINAL . It appears from the investigation carried out by the CDDH that the neighbourhood where the appellant claims to have lived changed in DATE into a residential area after improvised ( illegal ) buildings were erected around an old cemetery . The appellant has argued that , since it has been demonstrated that the investigation of the address [ by the Minister of ORG ] was incomplete , the reason for believing that the ‘ attestation de perte des pièces d’identité’ he submitted is forged has become groundless .

The court does not agree with this conclusion by the appellant . The findings of the CDDH do not alter the conclusion that the ‘ attestation de perte des pièces d’identité’ is a forgery . The court reaches this conclusion after having studying the documents underlying the person - specific official report , in particular the additional statement of DATE [ containing a detailed explanation as to why it was clear that this document was a forgery ] . It appears therefrom that the document concerned – irrespective of the correctness of the street name indicated – contains deletions as a result of which it can no longer be regarded as authentic . It follows that the appellant , by relying on the findings in the CDDH report , has not adduced concrete evidence calling into doubt the correctness of the conclusions in the person - specific official report .

Unlike the appellant , the court does not find that the investigation lacked due care . ...

In so far as the appellant has expressed doubts as regards the objectivity and reliability of the confidential contact person [ who carried out the investigation in the ORG ] , the court points out that the appellant has not submitted any concrete evidence to suggest that this confidential contact person might have been untrustworthy and acted carelessly . The claim that the confidential contact person acted out of resentment has likewise not been substantiated by the appellant . Moreover , contrary to the appellant ’s submissions , it is not apparent from the underlying documents that the PERSON report was found to be inaccurate . ...

In assessing whether the Minister acted in a reasonable manner , the court finds that , in referring to the person - specific official report , [ the Minister ] adduced sufficient arguments to support the finding that the appellant ’s asylum statement is not credible .

In the appeal proceedings the appellant also submitted that , if returned to the ORG , he would be exposed to a real risk of being subjected to treatment within the meaning of LAW . ...

Since the court has held , in the light of the above , that [ the Minister ] had good reasons for finding that the asylum statement was not credible , it can not be concluded therefrom that the applicant would be exposed to a real and foreseeable risk of being subjected to treatment prohibited by LAW if he were removed to the ORG . ... ”

The applicant ’s further appeal was rejected on the basis of a summary reasoning issued on CARDINAL DATE by ORG ( Afdeling Bestuursrechtspraak ) of ORG ( PERSON ) . It found that the further appeal did not provide grounds for quashing the impugned rulings . Pursuant to section CARDINAL § CARDINAL of LAW ( Vreemdelingenwet DATE ) , no further reasoning was required as the arguments submitted did not raise any questions requiring a determination in the interests of legal unity , legal development or legal protection in the general sense . No further appeal lay against that ruling .

To date , the applicant has not been removed from the GPE nor has he filed a fresh asylum application in the GPE .

The relevant domestic law and practice as regards asylum proceedings and the enforcement of removals are set out in PERSON the GPE ( ( dec . ) , no . CARDINAL/CARDINAL , § § CARDINAL and § § DATE , DATE ) .

Details concerning the preparation of person - specific official reports ( individuele ambtsberichten ) and their use in asylum - related proceedings have been set out in D.T. v. the GPE and GPE ( cited above , § § DATE ) .

On DATE ORG ) DATE an independent institute charged with protecting individuals against improper government conduct by conducting investigations of its own motion or on the basis of an individual ’s complaint , and making non - binding recommendations to government agencies – released report no . CARDINAL/CARDINAL on the manner in which personspecific official reports are compiled and used in asylum proceedings . The report was entitled “ The credibility of official reports . How asylum statements are confirmed or confuted . ” ( “ De geloofwaardigheid van ambtsberichten . Hoe asielverhalen worden bevestigd of ontkracht . ” ) . In this report , the ORG formulated a number of recommendations addressed to the Minister of ORG and the Minister of Justice seeking to reinforce the position of asylum seekers in asylum proceedings and thus the compliance of such proceedings with the common standards of propriety .

In a letter of DATE to the President of ORG of ORG ( ORG ) about the follow - up generated as a result of this report , the ORG stated that , although it had led to a number of laudable improvements , the Ministers had not accepted CARDINAL important recommendations concerning the degree of disclosure of documents underlying person - specific official reports to the decisionmaking civil servant and the asylum seeker concerned .

In DATE , the ORG filed comments on the consolidated seventeenth to eighteenth periodic reports on compliance with LAW , which had been submitted by ORG to ORG on ORG . The ORG ’s comments contain the following observations in respect of general country assessment and person - specific official reports as used by the GPE immigration authorities in their decision - making process :

“ Feedback from interest groups indicated a great deal of dissatisfaction with the quality of these official country reports . They allegedly contained information that was insufficiently relevant , insufficiently current , and incomplete , or sometimes even incorrect . CARDINAL of the key problems was the fact that official country reports do not provide an overview of the available facts but rather a conclusion concerning certain facts . The underlying facts are often not available to the asylum seekers and their representatives , which makes it essentially impossible to enter into a discussion concerning the substance of the conclusions drawn . The IND [ Immigration and ORG ] employee who makes the decision is thus not able , in preparing the decision , to consult this file to assess whether the contents of the individual official country report are supported by the underlying documents . Only a more highly - qualified ORG employee is allowed to do so . This more highly - qualified ORG employee will subsequently pass on his findings to the employee who makes the decision . Neither the asylum seeker nor his representative is able to inspect this file [ Footnote CARDINAL : Subject to application of LAW ] . The ORG found that this working method fails to recognise the responsibility of the state to present sufficient valid facts during the asylum procedure and to facilitate a fair hearing on the basis thereof [ Footnote CARDINAL : ORG , The credibility of person - specific official reports , report CARDINAL ] . The ORG made several recommendations to improve the position of foreign national / asylum seekers during the asylum procedure , but not all of these were implemented . ”

ORG on the Elimination of Racial Discrimination considered the consolidated seventeenth to eighteenth reports of the GPE at its GPE and CARDINALth meetings , held on CARDINAL and DATE . At its FAC meeting , held on DATE , it adopted its concluding observations on these reports , which did not address the quality of general country assessment reports and/or person - specific official reports .

Section CARDINAL:CARDINAL of the General Administrative Law Act reads as follows :

“ CARDINAL . NORP Parties who are obliged to provide information or submit documents may , if there are substantial reasons ( gewichtige redenen ) to do so , refuse to provide such information or submit such documents , or may inform the administrative tribunal that it alone shall be allowed to inspect the information or the documents .

NORP In the case of an administrative body , there can exist no such substantial reasons since there is an obligation , pursuant to ORG , to accede to any request for information contained in the documents to be submitted .

NORP The administrative tribunal shall decide whether the refusal or restriction of inspection referred to in the first paragraph is justified .

NORP If the administrative tribunal has decided that the refusal is justified , the obligation shall no longer exist .

If the administrative tribunal has decided that the restriction of inspection is justified , it may give judgment based on that information or those documents only with the permission of the other parties . If such permission is refused , the case shall be remitted to another chamber . ”

According to the most recent official country assessment report on the ORG , published in DATE by ORG , the general situation in the eastern provinces of GPE , GPE , GPE and GPE has continued to be unsettled and unpredictable and the general security situation in the province of GPE has deteriorated due to actions by armed factions . In the other provinces of the ORG the general security situation has remained stable , apart from some isolated incidents . As to the general situation in GPE , the report states :

“ On DATE in GPE , CARDINAL separate groups simultaneously attacked the headquarters of the NORP army , ORG and N’Djili international airport . Since then no major security incidents have taken place . In instances where the police and ORG ) used violence , this was not directed against specific ( population ) groups . The rate of street crime in GPE remains high . Armed gangs , kuluna , commit burglaries , extortion , threats and kidnappings . On DATE the police in GPE arrested CARDINAL such gangs as part of an operation called “ LOC ” ( the word for “ punch ” in PERSON ) . On DATE operation PERSON started , focussing on kuluna in uniform . The latter allegedly killed CARDINAL people within DATE in shootings in the neighbourhoods of PERSON and PERSON in GPE borough . On DATE the Minister of the ORG announced that operation Likofi would be expanded to tackle armed bandits at national level . In the operations PERSON I − against GPE in GPE − and PERSON against undisciplined soldiers and police in GPE − a total of CARDINAL individuals have been apprehended and CARDINAL brought before an investigating judge . CARDINAL police officers have been sentenced to death , QUANTITY military and CARDINAL civilian accused have been sentenced to DATE imprisonment , CARDINAL policeman to DATE and CARDINAL civilian to CARDINAL years’ imprisonment for illegal possession of weapons .

New police force

On DATE , during a parade in the Kintambo cycle stadium in GPE , General NORP Kanyama – the chief police commissioner of GPE in charge of the PERSON operation – presented the “ new ” police force , comprising law - abiding , disciplined officers who are immune to corruption . The police asked for a salary increase and better working conditions . On DATE Prime Minister PERSON opened the national criminal investigation centre of the police , which has been built with funding from the NORP development aid and the ORG . As from that date , the general population could use the toll - free emergency CARDINAL . ”

The official report of DATE does not deal specifically with people who have been involved with the ORG , mentioning only that an ORG PERSON approved by the ORG legislature on DATE and signed by President PERSON on DATE granted amnesty for acts of insurgency , acts of war and political offences committed DATE and DATE by , amongst others , military personnel who had participated in the armed ORG uprising .

GPE assessment of DATE , compiled by ORG ) of GPE ( GPE ) ORG , observed :

“ CARDINAL Most sectors of the economy are in a serious state of decline . Production and incomes continue to fall . The infrastructure of the country is also in a serious state of decline . Financial institutions have collapsed and the public health and education system have seriously deteriorated . The economy is characterised by subsistence activities , a large informal sector and widespread bartering . The public sector can not provide basic public services and public sector employees are not paid on a regular basis . ...

CARDINAL ... In DATE , a new rebel group emerged called the ORG pour la Liberation du Congo led by PERSON . The ORG based itself in GPE and has large numbers of former NORP soldiers in its ranks . The ORG developed close ties with ORG . In DATE , the ORG - ML rebel group merged with PERSON ORG rebel group to form ORG ( ORG ) . PERSON is the leader of this newly formed group . The area under the control of the ORG corresponds with the areas that were under the control of the ORG and ORG .

CARDINAL Intensive diplomatic efforts to promote a ceasefire and a negotiated settlement which meets the security concerns of neighbouring countries resulted in a ceasefire agreement by all belligerent countries on DATE ] . The rebel groups - ORG and ORG - signed up to the ceasefire agreement in DATE . The ceasefire agreement , called ORG , sets out arrangements for an end to the fighting and the start of a national dialogue .

CARDINAL Despite the ceasefire agreement , numerous violations of the ceasefire have been reported in different parts of the country with each of the warring factions blaming one another for them . ... The civilian population have been adversely affected by the ongoing fighting . The Health Minister , Dr PERSON , has recently reported that there has been an upsurge in cases of war - related stress among the country ’s civilian population . ...

CARDINAL On DATE , President PERSON was assassinated in FAC in GPE , reportedly by CARDINAL of his soldiers . A government public announcement was made on DATE confirming that PERSON had been assassinated . The country ’s airports and borders were temporarily closed for security reasons but were soon re - opened . There were no reports of widespread civil unrest . PERSON funeral took place DATE and his son , PERSON , was sworn in as President of the ORG on DATE . ...

CARDINAL The law allows for freedom of movement but the Government restricts freedom of movement in practice . ...

CARDINAL In GPE , police and soldiers commonly erected roadblocks in order to extract bribes from taxibus drivers and passengers . On DATE , in the NORP district of GPE , there were unconfirmed reports that security forces forced passengers who allegedly were riding in excess of the capacity of a taxibus to pay bribes . There has reportedly been no investigation into this case . Also in DATE , FAC ( government ) soldiers and police erected roadblocks in various districts of GPE in order to extort money from each minibus passenger who crossed the roadblocks .

CARDINAL.CARDINAL The Government requires exit visas for all foreign travel . Security forces occasionally hinder foreign travel by citizens , including journalists . There have been cases where political leaders have been denied exit visas . ... ”

The report “ Country Information and Guidance , GPE : treatment on return ” published by ORG in DATE includes the following observations :

“ CARDINAL Is a FAS [ failed asylum seeker ] and/or FNO [ foreign national offender ] who is to return to the ORG ( voluntarily or by force ) at risk of mistreatment or harm by virtue of having claimed asylum in the GPE and/or having been convicted of an offence in the GPE ?

CARDINAL.CARDINAL.CARDINAL In the country guidance case of ORG ( returnees – criminal and non - criminal ) ORG [ DATE ] CARDINAL ( ORG ) heard in DATE and DATE and promulgated on DATE , ORG ( PERSON ) of ORG found , based on the evidence put before it which included statistics indicating that there have been approximately CARDINAL documented returns of asylum and non - asylum cases from NORP states plus the GPE , GPE and GPE DATE ( paragraph CARDINAL ) , that ‘ ... there is no substantiated allegation of arbitrary arrest or ill treatment of any ORG national who is a failed asylum seeker or a foreign national offender returning to his or her country of origin.’ ( paragraph CARDINAL )

CARDINAL.CARDINAL.CARDINAL The ORG went on to find that :

‘ i ) Those who have been convicted of offences in GPE are not at real risk of being persecuted for LAW reason or serious harm or treatment proscribed by LAW .

‘ ii ) Those who have unsuccessfully claimed asylum in GPE are not at real risk of persecution for LAW reason or serious harm or treatment proscribed by LAW ( paragraph CARDINAL )

CARDINAL.CARDINAL.CARDINAL However , the PERSON did find those persons who are wanted / suspected by the ORG authorities for criminal activity in the ORG are likely to be at risk of harm :

‘ The ORG authorities have an interest in certain types of convicted or suspected offenders , namely those who have unexecuted prison sentences in ORG or in respect of whom there are unexecuted arrest warrants or who supposedly committed an offence , such as document fraud , when departing ORG . Such persons are at risk of imprisonment for lengthy periods and , hence , treatment proscribed by LAW ( paragraph CARDINAL )

CARDINAL ORG clarified its findings made in paragraph CARDINAL(iv ) of BM and Others with regard to the risk of using a false passport ( or other document ) in the case of ORG ( false passport ) [ DATE ] UKUT CARDINAL ( ORG ) ( DATE ) . ORG found that :

‘ The mere fact that an asylum claimant utilised a false passport or kindred document in departing the ORG will not without more engage the risk category specified in [ CARDINAL(iv ) ] of ORG ) ORG [ DATE ] CARDINAL ( ORG ) . The application of this guidance will be dependent upon the fact sensitive context of the individual case . The ORG will consider , inter alia , the likely state of knowledge of the ORG authorities pertaining to the person in question . A person claiming to belong to any of the risk categories will not be at risk of persecution unless likely to come to the attention of the ORG authorities . Thus in every case there will be an intense focus on matters such as publicity , individual prominence , possession of a passport , the standard emergency travel document arrangements ( where these apply ) and how these matters impact on the individual claimant .

CARDINAL Decision makers will therefore need to determine whether a person is of interest to the authorities for criminal activity in the ORG . The onus will be on the person to demonstrate that they are of interest to the authorities , including with relevant documentary evidence . ...

CARDINAL.CARDINAL.CARDINAL Decision makers should note that ORG in ORG also provided country guidance on treatment of members of the political group , ORG pour la Refondation du Congo ( ORG for the Re - establishment of the GPE ; PERSON ) , see paragraph CARDINAL(iii ) of the judgement .

CARDINAL For guidance and information on categories of persons who may be at risk of serious harm or persecution , including political activists ( other than members of ORG ) , see ORG [ Operational Guidance Note ] of DATE .

DATE If refused is the claim likely to be certifiable as ‘ clearly unfounded’ under section CARDINAL of the Nationality , Immigration and Asylum Act DATE ?

CARDINAL.CARDINAL.CARDINAL Given the absence of substantiated evidence of mistreatment or harm on return , where a claim falls to be refused ( and the fear is based on being a ORG and / or FNO ) it is likely to be certifiable as ‘ clearly unfounded’ under LAW of the Nationality , Immigration and Asylum Act CARDINAL . ”