Egidijus Kūris;Ganna Yudkivska;Marko Bošnjak;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

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

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

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

In DATE the applicant was appointed a junior inspector in the police . He was responsible for the investigation of economic crimes .

On DATE a criminal investigation was started against the applicant . He was suspected of forging documents and appropriating value added tax . The applicant was arrested on the same day and placed under arrest for DATE by the decision of the GPE DATE ORG of DATE .

On DATE the applicant was suspended from performing his official duties .

On DATE the ORG found the applicant guilty of fraud and abuse of office . The court stated that the applicant and several other people had established a fictitious company , forged documents and acquired property of high value . The court also noted that the applicant had been employed at the police division which investigated economic crimes , however , he had abused his position and had wilfully appropriated value added tax . The applicant was sentenced to DATE and CARDINAL months’ imprisonment .

The applicant appealed , complaining that the court of first instance had made mistakes in applying the provisions of the domestic law , and that there had been no information that he had in fact received CARDINAL of the value added tax appropriated by the perpetrators as alleged .

On DATE ORG dismissed the applicant ’s appeal , finding contradictions in his statements . The applicant had denied his guilt but at the same time he had acknowledged that he had known that other people had been engaged in illegal activities and had still acted as an intermediary .

On DATE the applicant was dismissed from the police after the judgment of ORG became enforceable ( see paragraphs CARDINAL and CARDINAL below ) .

The applicant lodged an appeal on points of law against ORG judgment of DATE ( see paragraph CARDINAL above ) , and on DATE ORG returned the case to ORG for fresh examination . ORG held that the reasoning of ORG had been insufficient in relation to the application of the provisions of LAW and the assessment of evidence .

On DATE ORG found that only one witness could confirm that the applicant had received CARDINAL of the value added tax appropriated by the perpetrators , but that that witness had only presented his evidence as his own view and not as a fact ( ne kaip faktą ) . The witness had also testified that there had been no discussion with the applicant about seizing the value added tax . ORG therefore held that it had not been proved that the applicant had gained any personal benefit . On the other hand , the court stated that the applicant , as a police officer , had undoubtedly understood the illegality of his actions , despite arguing otherwise . He had also acted as an intermediary for CARDINAL other people in an illegal exchange of money and documents . However , ORG held that the applicant ’s alleged crime fell under a different provision of LAW than the one he had originally been accused under , and that the court could not assess the applicant ’s crime under that specific provision without overstepping the limits of the appeal . As for abuse of office , the court held that the applicant ’s participation in the crime had not been proved and that he had communicated with the other people in a personal capacity rather than an official one . The applicant was therefore acquitted of that crime .

NORP In DATE the applicant asked the police to annul their dismissal decision of DATE ( see paragraph CARDINAL above ) and to reinstate him to his former position . The police refused and stated that ORG had not expressed itself in any way regarding his reinstatement to his former position or about his dismissal being illegal .

The applicant started court proceedings before ORG to be reinstated to his former position and have his salary paid from DATE , when he had been suspended ( see paragraph CARDINAL above ) , until the execution of the court ’s judgment , i. e. until his reinstatement to his former position . The applicant also asked for a renewal of the time - limit for submitting his complaint because the timelimit to complain about being dismissed from work was DATE under domestic law ( see paragraph CARDINAL below ) . The applicant had been dismissed on DATE ( see paragraph CARDINAL above ) , however , the grounds to annul that decision had only arisen after the court proceedings had ended on DATE and he had been acquitted ( see paragraph CARDINAL above ) .

On DATE ORG decided that the applicant had become aware of the grounds to contest the dismissal order on DATE at the latest . He had submitted the complaint to ORG on DATE and had therefore not missed the prescribed time - limit . The court also annulled his dismissal from the police ( see paragraph CARDINAL above ) , and ordered that he be reinstated to his former position and paid his average salary for the period from DATE to the date of the judgment on DATE . The total of the average salary for the period was CARDINAL NORP litai ( ORG , MONEY ( ORG ) ) .

NORP The police and the applicant both appealed , the latter asking to be awarded approximately LTL CARDINAL,CARDINAL ( about EUR CARDINAL,CARDINAL ) for the period of his suspension and dismissal , up to ORG decision of DATE . He also asked to be awarded the payment of an average salary from DATE until his reinstatement to his former position , as well as late - payment fees and payment for unused holidays .

On DATE ORG dismissed the applicant ’s appeal . The court noted that the applicant had complained about the dismissal order of DATE but found that although he had submitted his first complaint on DATE , he had also submitted CARDINAL clarifying complaints on DATE and DATE . ORG thus held that the date of submission was DATE , as that was when the applicant had finally formulated his complaints . ORG held that the dismissal order had been an extremely important social issue for the applicant ( pareiškėjui ypatingą socialinę reikšmę turintis klausimas ) , that he should have started court proceedings within DATE of that order , and that therefore he had missed the time - limit to lodge a complaint . The court also observed that ORG had put too much weight ( neteisingai sureikšmino ) on the applicant ’s acquittal . The court also considered that despite the fact that the applicant had missed the time - limit for submitting his complaint , it had to express itself on the merits of the applicant ’s complaint about his dismissal and found that it had never been contested by the parties that at the time of the order to dismiss him there had been factual and legal grounds for such a decision because of ORG judgment of DATE ( see paragraph CARDINAL above ) . Lastly , the court held that monetary claims under LAW ( see paragraph CARDINAL below ) had to be submitted to civil courts rather than administrative courts and it therefore rejected that claim too .

Shortly before the applicant applied to ORG DATE he started civil proceedings for damages for his unlawful conviction before ORG . The applicant asked to be awarded LTL CARDINAL ( approximately EUR CARDINAL,CARDINAL ) in respect of pecuniary damage and LTL MONEY ( approximately EUR CARDINAL ) in respect of non - pecuniary damage . The applicant stated that he had never been reinstated to his former position after his acquittal , had lost his main source of income , and had experienced emotional problems , not only because of his unlawful conviction but also because of the lengthy criminal proceedings against him .

On DATE the ORG satisfied the applicant ’s claim in part . The court held that in order for the ORG ’s civil liability to arise , CARDINAL conditions had to be met : an unlawful act , damage and a causal link between the CARDINAL . The court held that the acquittal decision had not automatically meant that all acts related to the criminal prosecution had been unlawful . The court referred to the material of the criminal case and stated that the criminal proceedings had been started against the applicant because there had been enough evidence to suspect that he had committed a criminal offence . That circumstance was confirmed by the acquittal decision , which had stated that the applicant had undoubtedly understood the illegality of his acts ( see paragraph CARDINAL above ) . However , the court held that while the dismissal order had been lawful at the time it had been issued , the grounds for it had disappeared after the applicant ’s acquittal . The court dismissed his claim in respect of pecuniary damage , observing that although his unlawful conviction had directly influenced his dismissal , the conviction itself had been influenced by the applicant ’s illegal acts . The court further held that the applicant ’s unlawful conviction had caused him mental suffering and emotional distress and decided to award him LTL CARDINAL,CARDINAL ( approximately EUR CARDINAL ) for non - pecuniary damage . The court also noted that the applicant had been arrested on DATE ( see paragraph CARDINAL above ) and acquitted on DATE ( see paragraph CARDINAL above ) and that therefore the criminal proceedings against him had lasted for DATE . They had been unjustifiably long and so the court awarded him a further LTL CARDINAL ( approximately ORG CARDINAL ) for nonpecuniary damage .

The applicant appealed , complaining that he had not been awarded anything in respect of pecuniary damage and asking the court to increase the amount in respect of non - pecuniary damage .

On DATE ORG upheld the applicant ’s appeal in part . It held that the acquittal had not necessarily meant that the acts of the law enforcement institutions ( teisėsaugos institucijų veiksmai ) had been unlawful . The court further observed that the applicant had carried out certain acts that were unlawful under “ civil law ” , which meant that he could not have expected the same protection when deciding on damages as a person who had not carried out such illegal acts . The court considered that the amount of compensation could be reduced in such cases and awarded him LTL CARDINAL ( approximately ORG CARDINAL,CARDINAL ) in respect of pecuniary damage , counting it as unpaid salary from the date of the decision by which he had been convicted until the date of the decision he had been acquitted . The court also held that the criminal proceedings had been lengthy , but that around QUANTITY hearings had been postponed for reasons related to the applicant and some of the other accused . It therefore decided to award the applicant LTL QUANTITY ( approximately ORG CARDINAL,CARDINAL ) in respect of nonpecuniary damage in that part . Lastly , the court found that the applicant ’s conviction had lasted for DATE but that he had not started serving a sentence and so it decided to reduce the amount awarded for nonpecuniary damage to LTL CARDINAL,CARDINAL ( approximately EUR CARDINAL ) .

The applicant was paid his compensation award DATE totalling LTL CARDINAL ( approximately EUR CARDINAL ) DATE on DATE .

At the material time , LAW ( CARDINAL) of the Statute on Interior Ministry Service ( ORG tarnybos statutas ) provided that an officer could be dismissed if he had been convicted of an intentional crime or criminal act by a final court judgment .

Article CARDINAL § CARDINAL of ORG ( PERSON bylų teisenos įstatymas ) provided at the time that a complaint had to be brought before an administrative court within DATE of the disputed act being carried out or served on an interested party .

Article CARDINAL § CARDINAL of ORG provided that if there was a good reason for not complying with the time - limit to lodge a complaint then an applicant could seek an order from an administrative court to renew the time - limit .

Article CARDINAL § CARDINAL of the Civil Code provided at the time of the events that the acts of a victim could be grounds to reduce or remove civil liability . Such acts were those that were the fault of the victim and which led to that person suffering greater damage . They could be a victim ’s consent to damage or risk . Such consent could only be grounds for exemption from civil liability if it was not contrary to mandatory legal rules , public order , good morals , and the criteria of good faith , reasonableness and justice .

At the material time , Article CARDINAL § CARDINAL of LAW allowed a civil claim to be brought in respect of pecuniary and non - pecuniary damage caused by the unlawful acts of the investigating authorities or the courts . LAW in question made provision for compensation for unlawful conviction , unlawful arrest or detention or for the application of unlawful procedural measures in enforcement proceedings . The relevant part of the provision read as follows :

“ CARDINAL . Damage resulting either from unlawful conviction , unlawful arrest on remand , unlawful detention , the application of unlawful procedural measures in enforcement proceedings , or the unlawful imposition of an administrative penalty ( arrest ) shall give rise to full compensation by the ORG , irrespective of any fault by preliminary investigation officials , prosecution officials or courts ... ”

Article CARDINAL § CARDINAL of the Civil Code provided at the time that if a victim ’s gross negligence had contributed to causing or increasing any damage , depending on the degree of the person ’s fault , the amount of compensation could be reduced or the compensation dismissed unless the law provided otherwise .

Article CARDINAL § CARDINAL of the Code of Criminal Procedure provided that an appellate court judgment became enforceable from the date of issue .

Article CARDINAL § CARDINAL of LAW provided that ORG had the power to examine appeals on points of law against judgments delivered by courts of first instance and appellate courts that had become final .

ORG has held that interpreting LAW ( see paragraph CARDINAL above ) as precluding the reinstatement of an officer to his or her former position or an equivalent position after his or her acquittal would contradict the principles of justice , reasonableness and ex iniuria ius non oritur ( decision of CARDINAL DATE , no . ACARDINAL - DATE ) .


Preliminary objection joined to merits and dismissed (Article 35-3 - Ratione materiae);Violation of Article 14+3 - Prohibition of discrimination (Article 14 - Discrimination) (Article 3 - Prohibition of torture;Effective investigation);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;Egidijus Kūris;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano

The applicant was born in DATE and lives in GPE .

On DATE around TIME the applicant and his girlfriend PERSON GPE were about to leave a club in GPE , when CARDINAL men in DATE , unknown to them , started to insult them . The CARDINAL men made degrading comments about the applicant ’s GPE origin and about the physical appearance of his girlfriend .

Subsequently a fourth person , Mr E.D. , appeared , presenting himself as a police officer . ( In fact , he was a penitentiary officer . ) When Mr PERSON was about to leave , the applicant questioned him about his attitude using offensive and vulgar language , upon which Mr PERSON turned back and got into a fight with the applicant , which ended due to the intervention of CARDINAL persons , the applicant ’s acquaintances .

Following the fight , Mr E.D. called the police . CARDINAL officers arrived . The applicant , Mr E.D. and PERSON were then escorted to the local police station . They were released DATE after . Although both the applicant and Mr E.D. had visible injuries , only Mr E.D. underwent a medical examination . According to the medical findings , he had bruises on his temple and a haematoma around his right eye .

On DATE the applicant was examined by a general practitioner , who found that he had bruises on his chest , back , neck and face .

On DATE the applicant lodged a criminal complaint with ORG against Mr PERSON He submitted that the CARDINAL who had insulted him had shouted at him “ Dirty gypsy , do you need a cigarette ? Here is money ! ” and thrown cigarettes and money at him . He also maintained that Mr E.D. , who presented himself as a police officer upon his arrival at the scene , had asked the others whether “ [ they ] could not handle a dirty little gypsy ” and , turning to him , had called him a gypsy . He also gave a description of the injuries he had suffered .

Furthermore , the applicant explained that DATE after the incident he had identified PERSON LAW on a social network . He had extracted some of his posts and submitted them to ORG .

In these posts , Mr PERSON commented that TIME before he “ had been kicking in the head a gypsy lying on the ground when [ he ] was overcome by CARDINAL of his buddies ” . In reply to favourable posts by other users , Mr E.D. posted an Internet link to a video clip containing a widely known excerpt from a feature film with overtly intolerant and explicitly racist language . He added that the list of the types of people loathed by the character speaking in the clip could be completed with “ some other types of rubbish living among us ” .

On DATE ORG opened a criminal investigation against Mr E.D. for the offence of “ violence against a member of a group ” within the meaning of section CARDINAL ( CARDINAL ) of LAW .

On DATE the CARDINAL police officers who had arrived at the scene were questioned , as well as PERSON The latter corroborated the applicant ’s version of the events . The testimony of the police officers’ did not contain any account of the incident ; they had arrived at the scene only after the fight .

The applicant ’s CARDINAL acquaintances , whose intervention had ended the fight , were not questioned , their identity remaining unknown to the prosecution . The applicant was questioned about their contact details , however the only information he could provide were their nicknames .

NORP In parallel , ORG office initiated an ex officio investigation into the same facts on charges of disorderly conduct ( garázdaság ) . On DATE Mr E.D. was questioned as a suspect , where he stated that the applicant had provoked him . He admitted to having pushed the applicant away in self - defence , but claimed that he had neither hit nor insulted him . He maintained that he had made no statement concerning the applicant ’s GPE origin and that the fight had not taken place because the applicant ’s GPE origin but because he had been attacked by the latter . As regards his comments on a social network , Mr PERSON stated that he had posted them for no particular reason and specified that “ in fact [ he ] had not been kicking the boy ’s head ... had [ he ] done so the [ applicant ] would have suffered more serious injuries ” .

In a decision of DATE ORG discontinued the investigation into the offence of “ violence against a member of a group ” , considering that there was no evidence substantiating that Mr E.D. had attacked the applicant out of racial hatred . Relying on the applicant ’s complaint , PERSON testimony , Mr E.D. ’s statement given as a suspect in the parallel proceedings and the medical evidence , ORG concluded that it could not be established who had provoked the fight and whether there was a causal link between the insults directed against the applicant and the fight .

The applicant filed a complaint against the discontinuation on CARDINAL DATE .

On DATE the applicant ’s lawyer was given the opportunity to study the case - file . On DATE she requested Mr E.D. to be heard as a suspect , or CARDINAL a witness ; she also requested a confrontation ( szembesítés ) between the applicant and Mr E.D. This request was dismissed on the ground that Mr E.D. had already been heard as a suspect in the parallel proceedings on charges of disorderly conduct , and the records of his testimony were attached to the investigation file and used as documentary evidence .

On DATE the applicant also challenged this decision and requested that further investigative measures to be taken .

On DATE ORG upheld the first - instance decision , considering that :

“ Accepting the background of the incident , as recounted by the victim and Ms GPE , although it is likely that the action had racist motives , it can not be proven sufficiently for establishing criminal responsibility – that is , unequivocally and beyond any doubt – that Mr E.D. ill - treated the applicant precisely because of his GPE origin . The racist motive can not be established , in particular , since before the incident Mr E.D. had intended to leave the scene and only turned back because of the victim ’s reproach , and the only information about the start of the fight originates in the contradictory statements of the victim and Mr E.D. Neither the victim nor Ms D.L. could provide further details as to the question whether after having turned back , Mr E.D. made any further racist comments before or during the fight . The ORG post attached to the criminal complaint only reveals that Mr E.D. had insulted an unnamed and unidentifiable person of GPE origin TIME . It can not be established unequivocally and beyond doubt , either from the post or from the subsequent messages , that [ the insult ] took place precisely because of the victim ’s GPE origin .

Based on the above reasons and considering all available information and evidence in their entirety , Mr E.D. ’s racist motive is probable at the maximum , but can not be established beyond doubt . ”

As regards further investigative measures , ORG stated that given the fundamental contradictions between the statements of ORG , the applicant and PERSON , a confrontation between them had no prospects of success . Furthermore , Mr PERSON had given a detailed account of the facts in his testimony given as a suspect in the parallel proceedings , which rendered futile his further questioning .

On CARDINAL DATE Mr PERSON was convicted of disorderly conduct by ORG for having got into a fight with the applicant and was placed on DATE probation .


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

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

The applicant was born in DATE and lives in GPE .

In DATE he purchased a house and the land on which it was built , located in GPE . The applicant ’s parcel of land was adjacent to a parcel of land purchased by CARDINAL parties in DATE .

On DATE the applicant lodged a civil action against the CARDINAL third parties , seeking to obtain the demarcation of the adjacent parcels of land and an order requiring the defendants to return to him an QUANTITY . m parcel of land which was allegedly being illegally occupied by them .

In a judgment of DATE ORG held that the defendants had been illegally occupying a parcel of QUANTITY . m of the applicant ’s land since DATE . It established the boundaries of the properties on the basis of a technical report prepared by an expert and ordered the defendants to return the land in question to the applicant .

The defendants lodged an appeal with ORG . The court ordered a new expert report . On DATE the court dismissed the appeal as ill - founded endorsing the reasoning of the first - instance court .

The defendants lodged an appeal on points of law on the ground that the courts had misinterpreted the facts and the applicable legal provisions .

In a final decision of CARDINAL DATE ORG allowed the appeal on points of law , quashed the decisions of the first CARDINAL courts and dismissed the applicant ’s action . It held that both the applicant and the defendants had in their possession smaller areas of land than those mentioned in their respective contracts of acquisition , and invited the parties to reach a friendly settlement . It also held that the parties could bring a fresh action only if they could not reach an agreement .


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)

Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković

The applicant was born in DATE and is currently serving a prison sentence in GPE , GPE .

According to the applicant , and not contested by the ORG , at TIME on CARDINAL DATE she was arrested on suspicion of abducting , raping and murdering PERSON According to the arrest record , she was arrested at TIME on DATE .

Following the arrest , the applicant was taken to a police station where she was questioned by an investigator in the presence of a lawyer . Prior to the questioning , she wrote a statement admitting to S. ’s abduction . According to her , police officers threatened to beat her if she refused to make a written statement . She did not explain whether she had been denied access to a lawyer prior to writing the statement .

According to the applicant , on TIME CARDINAL DATE she was taken to the town prosecutor ’s office . She was taken to an office where policemen started beating her and urging her to confess to S. ’s murder . They hit her on the head and threatened to rape her , and then handcuffed her and pushed her to the floor . They put a hat on her head and pulled it down over her eyes . They also threw a coat over her . They punched her in the solar plexus and the stomach , and pulled her by the legs . They attached a wire to her right leg and placed a metal object between her shoulders , then subjected her to electrocution while gagging her mouth to muffle her screams .

On DATE the applicant was questioned by the investigator and confessed to S. ’s abduction . She was later taken to the location where she had last seen S. alive and was questioned again afterwards . The applicant ’s lawyer was present during the questioning .

DATE the applicant was taken to a temporary detention centre , where an officer conducted a medical examination and noted numerous bruises on her belly and scratches below the right clavicle . It appears that the administration of the detention facility informed the investigator from the town prosecutor ’s office accordingly , who ordered that the applicant undergo a forensic medical examination .

At CARDINAL or TIME that evening the applicant underwent a forensic medical examination which , in addition to the injuries noted before , revealed CARDINAL bruised areas on her chest , possibly caused by blunt solid objects DATE before the examination . At the time , the applicant did not offer any explanation as to the cause of the injuries .

On DATE the investigator questioned the applicant again the in the presence of her lawyer . She denied having any intent to kill S. According to her , it was CARDINAL other co - defendants who had decided to do so .

On DATE a local newspaper published an article about S. ’s murder and the opening of the investigation . The names of the alleged perpetrators were not disclosed .

On DATE the town prosecutor ’s office received a complaint from the applicant alleging that she had been ill - treated .

On DATE investigator T. from the town prosecutor ’s office refused to open a criminal investigation into the applicant ’s and her codefendants’ allegations of ill - treatment in police custody . The investigator noted as follows :

“ In the course of the investigation , [ the applicant and CARDINAL other defendants ] alleged that their initial statements had been coerced by police officers and the prosecutor ’s office and were false . In addition , the medical examination conducted revealed that they had sustained injuries . However , in the course of the investigation ... the [ defendants’ ] statements were obtained in accordance with the rules of criminal procedure . The [ defendants’ ] allegations should be considered with criticism . They are charged with serious offences . They have not pleaded guilty and wish to evade criminal liability . Accordingly , no objective information has been found that would confirm the GPE allegations that they sustained injuries while in [ custody ] . ”

It appears that the applicant ’s allegations of ill - treatment in police custody were subject to additional pre - investigative inquiry . On DATE investigator PERSON from the regional prosecutor ’s office refused to open criminal proceedings against the alleged perpetrators . He took into account the fact that the applicant had been convicted as charged ( see paragraph CARDINAL below ) . He further relied on statements made by the police officers involved in the applicant ’s arrest and questioning , who denied having beaten or tortured her . He summarised his findings as follows :

“ The analysis of the collected material shows that the [ applicant ’s ] allegations of illtreatment are not confirmed by objective information and are refuted by the explanations provided by the police officers and investigators from the town prosecutor ’s office . [ The applicant ] complained of ill - treatment after a considerable length of time , and only when she was charged with serious offences , even though nothing had precluded her from communicating her complaint to the investigator who had questioned her in the presence of a lawyer or during the inspection of the crime scene or subsequent questionings , etc . Furthermore , when admitted to the temporary detention facility , [ the applicant ] did not complain of her injuries allegedly inflicted by police officers . In the absence of a forensic medical examination , it is impossible to determine that [ the applicant ] sustained the injuries , the degree of their severity , the time of their infliction , or their cause . Regard being had to the above , it should be concluded that the [ applicant ’s ] allegations of ill - treatment should be considered with criticism and viewed as an attempt by [ the applicant ] to avoid criminal liability for the serious crimes committed . Such a conclusion is substantiated by the [ applicant ’s ] conviction by ORG ... [ Her ] allegations of ill - treatment were subject to verification by the court , which ruled [ that there was ] no case to answer against the police officers and investigators from the prosecutor ’s office , who had not abused their powers or infringed the [ applicant ’s ] rights in contravention of the law . ”

On DATE investigator ORG refused to institute criminal proceedings against the police officers who had allegedly subjected the defendants to ill - treatment following their arrest . The parties did not provide a copy of this decision .

On DATE ORG , within the framework of the trial , issued a separate ruling concerning the applicant ’s and other defendants’ allegations of ill - treatment in police custody , advising the regional prosecutor that an additional inquiry should be conducted . In the ruling , the court considered that the inquiry conducted in response to the defendants’ complaints had been incomplete . In particular , the court stated as follows :

“ In the course of the trial , each of the defendants alleged that they had been subjected to physical and psychological pressure by law - enforcement officers ... who demanded that they confess to [ the crimes ] ...

As it transpires from the material in the case file , during the preliminary investigation in the present case each of the defendants lodged complaints with the [ town ] and [ regional ] ORG offices alleging an abuse of power and the use of force by law - enforcement officers ... Following the inquiry in response to the [ applicant ’s ] complaint , on DATE [ senior investigator PERSON from the investigating committee of the regional prosecutor ’s office ] refused to institute criminal proceedings on [ the grounds that ] no offence had been committed .

The court can not subscribe to [ M. ’s ] finding that it was impossible to establish objectively that [ the applicant ] had bodily injuries because [ allegedly ] she had not undergone a forensic medical examination ... [ T]he material in the case file ... contains information showing that all the defendants had sustained bodily injuries ...

For instance , witness PERSON . , who saw [ the applicant ] immediately prior to [ her ] arrest ... and witness PERSON . , [ CARDINAL of the police officers ] who had taken [ the applicant ] to [ the police station ] on TIME DATE testified that [ she ] did not have any visible injuries and ... did not complain about her health to Sh .

The records on the initial examination and registration of provision of medical aid to detainees admitted to [ the temporary detention centre ] ... contain the following entries ... On DATE [ the applicant ] had bruises on her body ... On DATE [ she ] had bruises on the abdomen and scratches on the right clavicle .

The findings of the forensic medical experts are as follows ... [ The applicant ] had bruises on the abdomen and CARDINAL areas of subcutaneous haemorrhage on the right side of the chest which were caused by the impact of blunt solid objects DATE and could not cause damage to her health . The origin of the injuries was not indicated . [ The applicant ] did not inform the forensic medical expert as to the origin of the bodily injuries .

In DATE , when conducting an inquiry in response to the [ applicant ’s ] complaint , investigator PERSON did not examine the findings of the forensic medical expert ... at all .

Regard being had to the above , the court considers that ... investigator PERSON ... did not conduct a comprehensive and objective inquiry in response to the [ applicant ’s ] allegations of [ ill - treatment ] . The investigator ’s decision ... does not contain an answer as to how and when [ the applicant ] sustained bodily injuries .

In accordance with the [ statutory ] rules of criminal [ procedure ] , no party to the proceedings can be subjected to abuse , torture or other inhuman or degrading treatment . Accordingly , the court draws the prosecutor ’s attention to the fact that a comprehensive and thorough examination is necessary in order to verify the GPE allegations of ill - treatment . ”

On DATE the investigating committee of the regional prosecutor ’s office informed ORG , in response to the decision of CARDINAL DATE ( see paragraph CARDINAL above ) , that investigators PERSON and PERSON had been subjected to a disciplinary warning and reprimand respectively for failing to properly discharge their duties . According to the first deputy head of the investigating committee , the decision of DATE had been reversed and the committee had conducted an additional preinvestigative inquiry into the defendants’ allegations of ill - treatment . The Government did not submit a copy of this decision or state whether its content had been communicated to the applicant .

According to the Government , on DATE the investigating committee refused to open a criminal investigation into the applicant ’s allegations . The Government did not submit a copy of this decision or state whether its content had been communicated to the applicant .

On an unspecified date the investigation against the applicant and the CARDINAL other co - accused was completed and the case was transferred to ORG for trial .

On DATE the court found the applicant guilty as charged and sentenced her to DATE imprisonment .

On DATE ORG of GPE quashed the applicant ’s conviction on appeal . The court noted that the trial court had failed to ensure the defendants’ right to an adequate defence and had held hearings in the absence of defence counsel .

During the new trial , the applicant admitted that she had participated in DATE ’s abduction and battery but denied any involvement in organising NORP rape and murder . She further claimed that she had been subjected to illtreatment while in police custody and forced to confess .

NORP In response to the applicant ’s allegations of ill - treatment by police officers , the trial court questioned forensic expert NORP , who had examined the applicant on CARDINAL DATE . NORP confirmed his earlier findings and stated that the applicant might have sustained the injuries TIME prior to the examination . He also considered it impossible , given the nature of the applicant ’s injuries , that she had been subjected to electrocution .

On DATE ORG found the applicant guilty as charged and sentenced her to CARDINAL years’ imprisonment . The court relied , inter alia , on her statements of CARDINAL and CARDINAL DATE . As regards the written statement made prior to her first questioning by the investigator ( see paragraph CARDINAL above ) , the court considered it admissible in so far as she had informed the investigator about S. ’s abduction . The court also considered admissible the record of the applicant ’s questioning by the investigator . In this connection , it noted that prior to the questioning the applicant had been advised of her rights , and had been assisted by a lawyer throughout . The applicant appealed .

On DATE ORG reclassified the charges against the applicant to bring them in line with amendments to LAW and reduced her sentence by DATE . The court also upheld on appeal ORG findings concerning the inadequacy of the inquiry in response to the GPE allegations of ill - treatment .


Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Violation of Article 13+P1-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 1 of Protocol No. 1 - Protection of property)

András Sajó;Iulia Motoc;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicant was born in DATE and lives in GPE .

The applicant is the owner of a property named “ GPE ” at FAC , PERSON , GPE ( a QUANTITY house , with stairs allowing access to the second floor , each floor having CARDINAL main rooms and a smaller room , as well as a terrace ; and with further rooms on the roof ( hereinafter “ the property ” ) ) . Following the death of the applicant ’s uncle on DATE , the applicant and another CARDINAL heirs inherited his uncle ’s estate , including the property . By a deed of partition of DATE the property was assigned to the applicant as sole owner .

In DATE the property was requisitioned and allocated to ORG In DATE the applicant became aware that on an unspecified date PERSON had left the property and given the keys back to the authorities , and that the property had then become occupied by a certain ORG , who had no title to it ( since it had not been allocated to him by the authorities ) .

The applicant complained to ORG , which , instead of condemning the illegal occupation , on DATE issued a new requisition order , assigning the property to C.C. Subsequently , ORG obtained a development permit to carry out alteration work to the property . The work was carried out without the consent of the applicant , as owner .

NORP Throughout DATE while the requisition order was in force , the applicant was meant to receive an annual rent of CARDINAL NORP Liras ( ORG ) ( MONEY ( ORG ) ) from ORG . That amount was increased to LAW ( approximately LAW ) in DATE or thereabouts . However , ORG has not been paying the applicant since DATE , nor does it transpire that the rent has been deposited in court . According to the ORG , the applicant has never requested such payment from the authorities .

The applicant considered that those amounts were far below the rental value of the property .

After having written to ORG several times to no avail , on DATE the applicant instituted constitutional redress proceedings against ORG and the Attorney General . He requested the court to find that the requisition orders had breached his rights under LAW No . CARDINAL to the LAW . Consequently , he sought to annul the order , and requested the release of the property in his favour with free and vacant possession . He also sought an award of compensation for the occupation of the LOC , as well as any other relevant redress . In so far as relevant , paragraph CARDINAL of his application concerning the facts of the case reads as follows :

“ In DATE , after the applicant had inherited the property , he discovered that a certain ORG had left the property ... ” .

It then specified in paragraph CARDINAL that “ on CARDINAL DATE the same authority again requisitioned the same property by means of requisition order no . CARDINAL ” . In paragraph CARDINAL the applicant noted that his rights were being breached as a result of “ the requisition order mentioned above ” . Lastly , his first request to the court was to the effect that the court should “ declare the abovementioned requisition ... as being in breach ... ” and his second request read “ to annul all requisition order issued against the applicants ” ( tannulla l - ordni ta’ rekwizzjoni kollha rilevanti maħrugin kontra tagħhom ) .

According to the Government , when giving evidence in court on DATE , the applicant mentioned the deed of partition of CARDINAL DATE . At the same time he acknowledged that he did not contest the requisition order issued in DATE ( no record of this has been provided ) .

Pending the outcome of the proceedings , the court appointed an expert to make a valuation of the property . According to a report of CARDINAL DATE the expert considered that the DATE rental value of the property on the market in DATE was ORG CARDINAL ( approximately EUR CARDINAL ) , and that in DATE it was MTL CARDINAL,CARDINAL.CARDINAL ( approximately ORG CARDINAL,CARDINAL ) . Its sale market value was estimated at FAC .

By a judgment of DATE ORG ( FAC ) , in its constitutional jurisdiction , found in favour of the applicant . It held that although the measure was lawful and pursued a legitimate aim , the applicant had suffered a breach of his property rights on account of the lack of proportionality of the measure , in so far as it made the applicant bear a disproportionate burden , given the low amount of rent applicable compared to the market rental value of the property . It held , however , that the measure was not abusive in so far as ORG suffered from a physical disability and lived on social benefits . He thus required lodging compatible with his needs to avoid hardship and the property at issue was adequate for such purpose .

The court further held that the Attorney General should not have been summoned as a defendant in the case ( m’huwiex leġittimu kontradittur ) . The applicant was therefore ordered to pay his own costs of the proceedings as well as those of the Attorney General ( in total approximately ORG CARDINAL ) .

The court held that given that the violation had arisen solely from a lack of fair balance , it was not necessary to annul the requisition order and release the property . Referring to domestic case - law , it held :

“ ... while this [ constitutional ] court has a wide latitude in giving any order it may consider relevant in order for it to safeguard ORG DATE LAW and human rights and fundamental freedoms as defined in the LAW , such latitude was not unlimited and was circumscribed by the judicial system of the country , which did not allow this court [ of constitutional jurisdiction ] to amend national laws , nor could it make mandatory an action which according to domestic law was discretionary , nor could it order ORG to pay rent or compensation of a higher value than that provided for by the relevant law . Compensation , if any , which may be paid by this court [ of constitutional jurisdiction ] is that for the violation found . ”

The court awarded the applicant LAW . sic . ) ; for DATE had paid ORG MTL DATE and it was only recently ( sic . ) that the rent had been increased to MTL CARDINAL ; that the applicant had only received payment up until DATE ; that the rental value of the property on the market in DATE was ORG CARDINAL ( approximately EUR CARDINAL ) , and in DATE it was ORG CARDINAL ( approximately ORG CARDINAL ) ; and lastly , that the requisition order had been issued in the public interest to procure accommodation for those in need , and thus the compensation payable could be less than the full market value .

The applicant appealed , complaining that the court had failed to annul the requisition order and return the property to him despite finding in his favour . He had thus remained a victim of the situation as the court had not given him an appropriate remedy for the violation . He also complained that the compensation was far too low and had not been determined in accordance with the applicable market value . He further argued that the Attorney General had been the correct defendant given that the amount of rent depended on the law , which in consequence was also an issue in the case . It does not transpire from the written pleadings that the applicant explicitly raised the issue of compensation in relation to DATE , during which he had already been an owner of the property .

ORG and the Attorney General also appealed . They agreed with the merits of the first - instance decision , but requested the court to reduce the award of compensation which had been awarded arbitrio boni viri and not on proper calculations , and this especially since the applicant had waited DATE before instituting proceedings .

A hearing was held on DATE .

By a judgment of CARDINAL DATE ORG reduced the amount of compensation to LAW . It , too , considered that the applicant should be penalised for the delay ( of DATE since coming into possession of the property ) in instituting proceedings , as had been done in other domestic cases . It noted that , according to ORG case - law , ORG control over levels of rent may often cause significant reductions in the amount of rent chargeable ; in the circumstances of the present case it was therefore not appropriate to make awards in accordance with market values . It considered that the firstinstance court had been free to make an award equitably , and correct to make no award for the time prior to DATE , DATE when the applicant had become the owner of the property ( sic . ) and before which he had had no ties with it . ORG also refused to annul the order , given that it had been issued lawfully and had pursued a legitimate aim . It considered that in such circumstances it was not appropriate ( mhux indikat ) to release the property and to evict the tenant ( as also held in previous cases , namely PERSON vs Director of ORG , Constitutional Court judgment of CARDINAL DATE and PERSON Attorney General , ORG judgment of CARDINAL DATE ) , nor could it impose a higher rent for the future , when such rent was not provided for by law ( as also held in PERSON , cited above ) . It reiterated that its role was limited to awarding compensation for the violation found . The same had also been held by ORG Compensation in cases of a constitutional nature was not equivalent to civil damage , which could be pursued before the courts of ordinary jurisdiction .

The Constitutional Court further confirmed that the proper defendant was solely ORG , and not the Attorney General , as the applicant was not contesting the constitutional validity of the law itself , but solely the requisition order issued in respect of his property . ORG upheld the first - instance court ’s order for the payment of costs and ordered the applicant to pay the costs of all the parties related to the appeal .

As a result of this judgment , the applicant had to pay his share of the costs of the proceedings as well as those of the Attorney General at first instance , and those of all the parties on appeal .


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

Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić

The applicant was born in DATE and lives in GPE .

On DATE the applicant was arrested and taken into custody on suspicion of membership of an illegal organisation .

On DATE the applicant ’s statements were taken by the police in the absence of a lawyer . During the interrogation , the applicant gave a detailed account of his acts within the illegal organisation ORG ( ORG ) .

On DATE the applicant was heard by the public prosecutor and the investigating judge at ORG , again in the absence of a lawyer . In his statements before both the public prosecutor and the investigating judge , the applicant denied the accusations and maintained that his statements to the police had been given under duress . On DATE , upon the order of the investigating judge , the applicant was placed in pre - trial detention .

On DATE the public prosecutor at ORG filed an indictment accusing the applicant of membership of an illegal terrorist organisation under LAW , PERSON no . CARDINAL .

ORG were later abolished by PERSON no . CARDINAL of DATE , and the case was transferred to ORG .

On DATE , relying on , inter alia , the applicant ’s statements to the police , ORG convicted the applicant under LAW of the new LAW and sentenced him to DATE and CARDINAL months’ imprisonment .

On DATE ORG quashed the judgment on procedural grounds .

On DATE ORG convicted the applicant again under LAW of the new LAW and sentenced him to DATE and CARDINAL months’ imprisonment .

On DATE ORG upheld the judgment of ORG .


Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life);No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing)

Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra

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

In DATE in GPE the applicant married PERSON , who held joint NORP and NORP nationality . On DATE PERSON gave birth to their son .

In DATE the family moved to GPE , where CARDINAL more children were born : a son on DATE , a daughter on DATE and a son on DATE . All CARDINAL children hold joint NORP and NORP nationality .

In DATE the applicant and PERSON separated .

On DATE the applicant applied for a divorce .

While the divorce proceedings were ongoing , on DATE PERSON took the children and left GPE for GPE .

NORP Since the removal of the children the applicant has travelled to GPE on CARDINAL occasions , trying to bring them back to GPE and maintain contact with them , however , PERSON has prevented him from doing so .

The case file material indicates that the applicant saw the children on several occasions at their school DATE and DATE when he taught LANGUAGE there on a voluntary basis .

He also saw the children in the short period which followed ORG decisions to grant his application for a temporary contact arrangement pending a decision in the proceedings in GPE to determine the children ’s place of residence ( see paragraphs CARDINAL below ) .

On DATE the applicant went to the children ’s school to meet his younger son . The boy did not want to see him , he was pushing the applicant away and yelling . After failed attempts to calm the boy down , the applicant picked him up against his will , held him in both hands and carried him to an office allocated by the school administration for the applicant ’s meetings with the children . The boy started screaming , crying and fighting the applicant off . In the meantime , the applicant ’s daughter had telephoned ORG , who came to the school shortly afterwards and took the children home .

M.G. sought the institution of criminal proceedings against the applicant for having allegedly inflicted bodily harm on the children in the course of the above incident . On several occasions ORG of GPE Central District Office of ORG refused to institute criminal proceedings against the applicant , owing to the absence of the constituent elements of a crime in his actions . The most recent decision was on DATE . The regional prosecutor ’s office found the above decision lawful .

Following the incident of CARDINAL DATE , on DATE the temporary contact arrangement for the applicant and his children was cancelled ( see paragraph DATE below ) .

While exercising his contact rights in accordance with a judgment of CARDINAL DATE ( see paragraph CARDINAL below ) , on DATE the applicant took his second - born son and left GPE for GPE . He never returned the child to the mother and has not seen his other children since .

Since DATE the applicant ’s eldest son has been living in GPE . The applicant ’s daughter and youngest son continue to live with their mother in GPE .

On DATE ORG held that , while the divorce proceedings were ongoing , the CARDINAL children should be placed in the care of social services , the children should reside with their mother , and the applicant should pay her child maintenance . The court further determined a schedule for the applicant ’s contact sessions with the children .

On DATE the ORG varied the arrangements relating to residence and who had care of the children . Relying on an expert report by a psychologist and psychoanalyst , PERSON , and noting PERSON ’s continued lack of income , it ordered that , while the divorce proceedings were ongoing , the applicant should have sole care of the CARDINAL children and the children should reside with him . It further ordered that the CARDINAL younger children were to spend DATE with their mother in the following manner : from DATE after school to DATE TIME , and DATE from DATE after school to DATE TIME . The eldest son , who had been diagnosed with autism spectrum disorder , was to go to a day centre for children with special needs after school , and he was free to choose which parent he wanted to stay with at TIME . The court also ordered that during DATE the children were to spend DATE with their father and the following week with their mother .

On DATE ORG entrusted Dr C. with carrying out a monitoring exercise in relation to compliance with the above court order . This exercise , carried out in the period DATE , showed that compliance with the court order of DATE was rather good . After certain difficulties initially , the CARDINAL younger children adapted quite well to their new schedule and accepted their new rhythm of life , which was more regular and settled . PERSON report further mentioned that the children continued to experience psychological discomfort , partly owing to the difficult family situation ( acute tensions and conflict between the parents ) , partly owing to their age ( QUANTITY children were approaching adolescence ) , and partly owing to ORG actions ( her continuing to “ use ” the children as “ instruments ” in her dispute with the applicant ) . Despite the remaining difficulties in the relationship between the children and their parents , the arrangement of the children ’s life at that stage was assessed by the expert as being the best possible from a psychological and material point of view . The main problems which came to light during the monitoring exercise were : the situation of the applicant ’s eldest son , who was not receiving therapy for his condition ; the behaviour of PERSON , who was unpredictable and eccentric and motivated by a paranoid delusion that she was a victim of plotting and persecution by the court and state institutions in general , and who gave the impression that she was suffering mentally ; and ORG relationship with the children , in particular , her attempts to involve the children in judicial proceedings and seek “ allies ” in them against the father , who she represented as cruel , dangerous and violent , all of which was harming the psychological well - being of the children . In the expert ’s opinion , in order to prevent further psychological trauma being inflicted on the children by the mother ’s behaviour , it was necessary not only to put a distance between her and the children , but also to have recourse to psychotherapy and improve the quality of the children ’s psychological environment at their father ’s home .

On DATE the ORG found that ORG had not respected the previous court orders . In particular , it found that the eldest son had been living with her during DATE . As he had refused to see his father , she had been the only parent who had had effective access to him . However , she had refused to bring him to the monitoring meetings with social services or ensure his attendance at DATE centre for children with special needs , as ordered by the court . Moreover , she had sent the child to GPE in DATE without his father ’s permission and without notifying social services . Given that ORG had not respected the arrangements fixed by the court , it was necessary to modify them . Accordingly , the court confirmed the previous arrangements in respect of the younger children in relation to who had care of them , their place of residence and contact . It further confirmed that the applicant should have sole care of the eldest son , and that the eldest son should reside with him . The eldest son was no longer given the choice as to whether he wished to stay with his father or mother at TIME . The court further confirmed the order for the eldest son ’s attendance at DATE centre for children with special needs , and noted that if ORG continued to not comply with that order , the matter would be reported to ORG for the adoption of measures limiting parental authority . It also held that the children were not allowed to leave GPE without the consent of both parents . Lastly , it fixed the manner in which the children should spend the approaching DATE . In particular , it ordered that from DATE to CARDINAL DATE the CARDINAL children were to stay with ORG

On DATE PERSON and the children left GPE for GPE .

On DATE the ORG pronounced the divorce of the applicant and ORG with reference to section MONEY ) of ORG , which provides that an action for divorce may be maintained by a husband or wife to procure a judgment divorcing the parties and dissolving the marriage on the grounds of cruel and inhuman treatment of the plaintiff by the defendant such that the conduct of the defendant so endangers the physical or mental well - being of the plaintiff as renders it unsafe or improper for the plaintiff to cohabit with the defendant . ORG further ordered that the applicant should pay child maintenance to M.G. As regards who should have care of the children and where they should live , the court noted that ORG had taken the children to GPE in breach of a court order , and for DATE had thereby deprived the father of any possibility of seeing the children . ORG having sole care of the children , as requested by her , was therefore excluded as an option . The court ordered that the applicant and PERSON should have joint care of the children and that the children should reside with their father . After the children ’s return to GPE , ORG contact rights would be fixed by social services so as to prevent the children being wrested once again from the environment in which they lived . Lastly , the court ordered that the applicant should bear all financial expenses in respect of the children , except medical expenses not covered by medical insurance , which should be divided between the parents . The judgment was “ temporarily enforceable ” ( provvisoriamente esecutivo ) pending a decision in appeal proceedings .

M.G. appealed against the judgment of DATE .

On DATE ORG quashed the judgment of DATE and dismissed the applicant ’s petition for divorce under section CARDINAL ( CARDINAL ) of ORG as not meeting the required conditions . The court further noted that it could not take measures in relation to the personal relationship between the applicant and PERSON or other issues concerning the children .

On DATE ORG convicted PERSON in absentia of abducting the children . She was given a DATE prison sentence with suspension of her parental authority .

On DATE ORG dismissed an action by the applicant to strip M.G. of her parental authority in respect of the children .

The applicant applied to GPE ( “ the ORG ” ) for recognition and enforcement of ORG decision of DATE . He relied on both LAW DATE on ORG and the CARDINAL LAW between GPE and GPE ( “ LAW ” ) .

On DATE ORG rejected the applicant ’s application . It found that the decision of DATE was an interim decision pending a final decision in divorce proceedings . It could be modified by the judge who had made it at any time , as indeed it had been modified on DATE , and could not be appealed against . That decision was therefore not a decision rendered in civil matters within the meaning of LAW of LAW , and accordingly was not enforceable in GPE . The court further held that enforcement of the decision of DATE should be refused by reference to LAW . It found that the decision of DATE was manifestly incompatible with NORP public order because it ordered that the father should have sole care of the children . NORP law did not provide for CARDINAL parent to have sole care unless the other parent had been formally stripped of his or her parental authority . Given that ORG had not been stripped of her parental authority , the decision to award sole care to the applicant was incompatible with NORP law .

The decision of DATE mentioned that an appeal against it could be lodged with ORG within DATE . However , the applicant never availed himself of that remedy .

On DATE the applicant applied to ORG for enforcement of ORG judgment of DATE . He relied on LAW .

On DATE ORG rejected the applicant ’s application . Referring to LAW , ORG found that the judgment of DATE was incompatible with the basic principles of NORP law and public order . The judgment read as follows :

“ Established case - law shows that public order in GPE is the basis of ORG and social organisation of GPE , [ and ] the violation of public order is the incompatibility with existing legal norms , social order and fundamental principles of law . Foreign court judgments violating the fundamental rights of a defendant , preventing him or her from defending his or her rights , as well as foreign court judgments whose enforcement may be in conflict with the national law of the State where they have to be enforced , are considered incompatible with public order . Reference to public order is possible when the application of a foreign law may lead to a result incompatible with NORP legal thinking .

In the present case , the enforcement of a foreign court decision may be in conflict with NORP national law .

In accordance with LAW , if parents and children do not have a joint place of residence their rights and obligations shall be determined in accordance with the law of the State where the children have citizenship . At a plaintiff ’s request , child maintenance obligations and other relationships between parents and children may be determined in accordance with the law of the State where the children permanently reside .

By the time the ORG delivered its decision of CARDINAL DATE the children had been permanently residing in GPE for DATE ( since CARDINAL DATE ) , they are NORP nationals and have no NORP nationality . These circumstances are not disputed by the parties .

[ The proceedings concerning residence arrangements , child maintenance and parental authority in respect of the children are ongoing before the ORG of GPE . ]

Under these circumstances , examination of the dispute by the ORG court is incompatible with NORP law .

Besides , the relationship between parents and children is an ongoing process , objectively it can and does change over time . As was noted above , by the time the ORG court delivered its judgment the children had been living in GPE for a long time . During this time their relationship with their parents and their perception of the possibility of living with their father could have changed , which should have been taken into consideration by the [ NORP ] court . However , the judgment [ of DATE ] indicates that the [ NORP court ] did not take these circumstances into consideration , thereby violating the children ’s fundamental rights under LAW of LAW on the Rights of the Child ...

The court also takes into account that the enforcement of the PERSON court judgment might be incompatible with NORP law .

In particular , enforcement of the foreign court decision in the present case would involve the return of the children to GPE , [ a country ] of which they are not nationals , with them being handed over to [ the applicant ] , who also does not hold NORP nationality ...

At the same time , under LAW of GPE a national of GPE may not be expelled from the territory of GPE .

The applicant ’s argument to the effect that he did not intend to bring the children back to GPE immediately and that he first wished to restore his relationship with them can not serve as grounds for granting [ his ] application [ for recognition and enforcement of the judgment of DATE ] . The court proceeds on the understanding that enforcement of the PERSON court judgment would be impossible without the children ’s return to GPE ... ”

On DATE the applicant lodged a private complaint . Referring to Article CARDINAL of the LAW , he submitted that international treaties took precedence over national law . Under LAW of LAW the NORP courts had jurisdiction over the case , because at the time when the proceedings had been instituted he , PERSON and the children had all been permanently residing in GPE . The fact that PERSON had then abducted the children and taken them to GPE had no bearing on the jurisdiction of the NORP courts to proceed with the case . Further , referring to decisions by ORG ( see paragraphs CARDINAL below ) , the applicant argued that ORG had not indicated what basic principles of the economic , social and legal organisation of NORP society had been infringed by the judgment of CARDINAL DATE . Moreover , the NORP courts had no competence in relation to verifying whether that judgment was lawful and justified . The applicant also submitted that ORG had taken into account the children ’s wishes , and proof of this had been produced before ORG . The applicant further argued that the prohibition on deporting NORP nationals was irrelevant to the present case , because the children were not to be deported or extradited from GPE . They were to be handed over to their legal guardian and would enjoy freedom of movement , including the freedom to leave GPE . Lastly , the applicant complained under LAW that the refusal to enforce the judgment of DATE violated his right to respect for his family life .

On DATE ORG of ORG held an appeal hearing . The parties had not been notified about the date of the appeal hearing and were therefore absent . On DATE the court upheld the decision of DATE , finding that it was lawful , well reasoned and justified . It found , in particular , that the judgment of CARDINAL DATE by ORG was incompatible with NORP public order because it was in conflict with NORP family law provisions and unacceptable in relation to NORP legal thinking .

The applicant lodged a cassation appeal with the ORG of ORG , repeating the argument set out in his appeal submissions .

On DATE a judge of ORG refused to refer the case for consideration by the ORG of that court , finding no significant violations of substantive or procedural law which could influence the outcome of the proceedings . The first - instance and appeal courts had correctly applied domestic law .

On DATE a judge of ORG of GPE refused to refer the case for consideration by ORG of that ORG .

NORP On DATE the Deputy President of ORG of GPE informed the applicant that there were no grounds to disagree with the decision of DATE , refusing to refer the case for consideration by ORG of ORG .

On DATE PERSON lodged an application with ORG of GPE . Claiming domestic violence and a lack of care and financial support , and referring to the children ’s wish to live with her , she asked for an order stripping the applicant of his parental authority in respect of the children and determining that the children should reside with her . She also asked for child maintenance .

The applicant lodged a counterclaim , asking for an order that the children should reside with him . He submitted that ORG had unlawfully abducted the children despite the decisions by ORG that they should reside with him . Their residence with PERSON was detrimental to their psychological health . In particular , by falsely accusing him of domestic violence , PERSON had caused the children to fear their father . Moreover , she had prevented him and his relatives from seeing the children or supporting them financially . She had not taken proper care of the eldest son , who suffered from a mental disorder and needed specialist care .

On DATE the ORG of GPE declared ORG ’s claims inadmissible . It noted that proceedings concerning the children ’s residence arrangements and child maintenance were ongoing before ORG . Given that the proceedings in GPE had been initiated before the present proceedings , it was the NORP courts which had jurisdiction over the case , in accordance with LAW . Accordingly , the NORP courts had no competence to examine the case between the same parties , which was based on the same facts and had the same purpose . As regards the claim to strip the applicant of his parental authority , that claim was not part of the proceedings before the NORP courts . However , given that the applicant was a national of GPE and permanently living in GPE , the NORP courts had no competence to examine the claims against him . PERSON should therefore submit her claims to the court with territorial jurisdiction over the applicant ’s place of residence .

On DATE ORG quashed the decision of CARDINAL DATE and remitted the case for fresh consideration before ORG . It found that the present proceedings were not identical to the proceedings ongoing in GPE . In particular , the claim to strip the applicant of his parental authority had only been made in the present proceedings . PERSON was entitled to lodge her claim with a court with territorial jurisdiction over her place of residence . Given that she lived in LOC of GPE , ORG had competence to examine the case .

On DATE , having questioned the applicant ’s CARDINAL older children DATE , who had all expressed their wish to live with their mother and refused to have any contact with their father , ORG decided that , pending the resolution of the proceedings , the children should reside with their mother .

On DATE the applicant asked the court to determine a temporary contact arrangement for him and the children .

Following the applicant ’s application , on CARDINAL DATE the ORG decided that , pending the resolution of the proceedings , the applicant should be able to have contact with the children at the schools they attended , in the presence of and with the active involvement of a psychologist , for TIME a week with each child : on DATE after classes from TIME with the elder son ; on DATE after classes from TIME to CARDINAL p.m. with the second son ; on DATE after classes from TIME with the daughter ; and on DATE after classes from TIME with the younger son .

Following an application by the applicant , on DATE the ORG modified the interim contact arrangement between him and the children . In particular , in addition to the previously established contact TIME , the applicant was allowed to : take his second son for a walk on DATE from TIME ; pick up his daughter from extracurricular activities on DATE at TIME , have lunch with her afterwards and return her to the mother by TIME ; and take his younger son to theatres , museums and for other extracurricular activities for children DATE , for a maximum of TIME starting from TIME The applicant was also allowed to accompany the CARDINAL older children to and from school if the children agreed .

However , on DATE ORG cancelled the above interim contact arrangement on the grounds that it was not in the best interests of the children . In taking that decision , the district court relied on a letter from ORG of DATE to the effect that , in circumstances where there was bitter parental conflict , meetings between children and the parent from whom they were living apart were psychologically highly traumatic for the children . The court also took into consideration the fact that the school principal firmly objected to having the meetings between the applicant and the children take place on the school LOC . Reference was made to the incident of DATE ( see paragraphs CARDINAL above ) .

On DATE the ORG rejected both ORG and the applicant ’s claims in full . It found no evidence of domestic violence in respect of ORG or the children . It further found it established that , despite the applicant ’s wish to take care of the children and support them financially , he was being prevented from doing so by ORG There were therefore no reasons to strip him of his parental authority in respect of the children . As regards residence arrangements , the court noted that ORG had already examined similar claims and had ordered by its judgment of DATE that the children were to live with the applicant . That judgment was final and enforceable and the procedure for its enforcement in GPE was established by LAW and Article CARDINAL of LAW . All the arguments raised by the parties in the present proceedings had already been examined by ORG . The parties had not produced any new evidence which could warrant changing the residence arrangements determined by ORG . Moreover , the court had been hampered in its examination of the issue by ORG refusal to have the children examined by court - appointed experts . In the absence of a psychological expert report it was impossible to ascertain effectively the children ’s attachment to each of the parents , the GPE moral character and other relevant qualities , and the relationships between the children and each of the parents . Lastly , the court rejected ORG claim for child maintenance . The parties appealed .

On DATE ORG considered it necessary , among other things , to question the CARDINAL older children who had reached DATE about their attitude towards each of the parents and the prospect of their living with them , and to obtain the opinion of the youngest child with the involvement of a psychologist . The hearing of DATE was adjourned until DATE .

On DATE an inspection of the children ’s living conditions with their mother was carried out , and there was also a discussion with the applicant ’s youngest child .

On DATE ORG ordered that an expert examination should be carried out so as to determine which parent the children would be most comfortable living with from an emotional perspective , with regard to the individual psychological features of the children and the parents , the relationships between them and the existing circumstances . The examination was also to determine whether it would be possible for the children to live apart from each other with CARDINAL of the parents , taking into account their psychological attachment to each other . The proceedings were adjourned pending the results of the expert examination .

On DATE ORG ordered that the forensic psychological examination should be carried out by GPE The Regional Family Centre ” .

On DATE the report of the forensic psychological examination was drawn up . It was based on an examination of the applicant and an analysis of the case file material , since ORG had refused to take part in the examination and had not let the children be examined either . The PERSON conclusion was that the applicant was polite , communicative , sincere , easy - going , in control of his emotions , sentimental , sensitive to emotional nuances , and that he wanted friendly harmonious relationships . He had broad interests . Rudeness , hostility and a dominating attitude were not part of his character . He could easily adapt to different environments . The experts did not have sufficient material to fully assess the individual psychological features of PERSON and the children . However , on the basis of an analysis of ORG behaviour and the reports by the NORP specialists , and taking into account the ongoing conflict and the children ’s being in a psychotraumatic situation for a very long time , the experts recommended that ORG underwent a comprehensive psychological and psychiatric expert examination . The experts further noted that , owing to the mother ’s behaviour , the children had a negative image of their father , which created a substantial risk for their normal mental development . In such a situation , determining the children ’s place of residence in accordance with their wishes could contradict their true interests .

On DATE the proceedings were resumed . ORG considered it necessary that the applicant ’s CARDINAL older sons , aged DATE and DATE , join the proceedings as third parties .

On DATE ORG quashed the decision of DATE . It took note of the fact that on DATE the judgment of ORG of DATE had been quashed on appeal . ORG granted ORG claims in part by ordering that the children were to live with her and that the applicant was to pay her child maintenance , and granted the applicant ’s claims in part by determining his contact rights in respect of the children . In particular , the applicant was allowed to spend time with the children on the second and DATE of DATE from TIME on a DATE to TIME on a DATE , for TIME on the dates of the children ’s birthdays , during CARDINAL of the public and school holidays , and for DATE during DATE . During DATE and school holidays the applicant was allowed to travel with the children both in GPE and abroad . The remaining claims by the applicant and PERSON were dismissed . In taking that decision ORG took into consideration that : the children had been living with their mother for DATE , and they had been cared for and raised by her during this time ; while living in GPE they had acquired a circle of friends and teachers ; the material in the case file proved ORG conscientious attitude towards her parental obligations ; and the children , questioned by both the court and the childcare authority , had expressed their wish to live with their mother .

DATE a number of internet news sites published ORG account of her relationship with the applicant , their divorce and their dispute over the children . In particular , the news sites reproduced ORG accusations against the applicant , describing his alleged acts of violence against her and the children .

The applicant sued the news sites and ORG .

On DATE the Petrogradskiy District Court of GPE allowed the applicant ’s claims against CARDINAL of the news sites . On DATE the ORG of GPE allowed his claims against ORG On CARDINAL DATE ORG of GPE allowed his claims against another news site . All the district courts found that ORG and the news sites had not proved the truth of their allegations against the applicant . They noted that the NORP authorities had conducted an inquiry into ORG allegations against the applicant and had found no evidence of domestic violence . The GPE police had also conducted an inquiry which had not revealed any evidence of violent acts by the applicant against ORG or the children . No such evidence had been produced in the present proceedings either .


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

André Potocki;Ganna Yudkivska;Síofra O’Leary

The applicant was born in DATE and lives in GPE .

At the material time the applicant worked as an investigation officer in the environmental protection prosecutor ’s office ( природоохоронна прокуратура ) .

On DATE S. complained to ORG of GPE ( “ the ARC ” ) ( прокуратура GPE республіки ORG ) that the applicant and PERSON , a prosecutor ’s assistant , had extorted MONEY ( ORG ) from him for the purpose of carrying on a fishing business . Later PERSON and NORP lodged similar complaints .

On DATE at TIME the applicant was arrested at his workplace after receiving CARDINAL ORG from LOC , and CARDINAL ORG and CARDINAL NORP hryvnias ( ORG ) from NORP The applicant ’s office was searched and CARDINAL ORG were found in CARDINAL of the books on his table . The applicant ’s meetings with NORP and PERSON had been taped . On DATE criminal proceedings were instituted against the applicant and U. for bribe - taking .

On DATE ORG of PERSON ( “ the ORG ” ) authorised the applicant ’s pre - trial detention . The court held that the applicant was accused of committing a serious crime and might escape , or hinder the investigation , or continue his criminal activity . The applicant appealed .

On DATE the applicant complained to ORG that his arrest on DATE had been unlawful since there had been no grounds to arrest him . The court forwarded this complaint to ORG , noting that the court was not competent to consider such complaints while the case was under investigation . ORG transferred the applicant ’s complaint to ORG of the ARC .

On DATE ORG of the ARC informed the applicant that his arrest was justified and lawful .

On DATE ORG extended the applicant ’s detention until DATE on the same grounds as before . The applicant appealed .

On DATE ORG of the ARC upheld the decision of DATE . It held that there was sufficient evidence that the applicant had committed a serious crime . If at large , the applicant might continue his criminal activity , or hinder the investigation , or abscond .

On DATE ORG ( “ the ORG ” ) accepted the applicant ’s case for trial .

On DATE , in the committal hearings , ORG maintained the applicant ’s detention without giving any reason or setting any time - limit .

On DATE ORG rejected the applicant ’s request to change the preventive measure to an undertaking not to abscond , noting that the applicant was accused of having committed a serious crime , and might abscond or hinder the investigation . The applicant appealed .

On DATE ORG found the applicant and U. guilty of several counts of bribe - taking and sentenced them to CARDINAL and CARDINAL years’ imprisonment , respectively , with confiscation of CARDINAL of their property .

On DATE ORG of the ARC terminated proceedings in respect of CARDINAL count of bribery concerning the applicant and upheld the remainder of the judgment .

On DATE ORG of GPE rejected the applicant ’s appeal on points of law .

From DATE to CARDINAL DATE and from DATE to CARDINAL DATE the applicant was detained in ORG no . CARDINAL ( ORG тимчасового тримання № CARDINAL м. FAC ) ( “ the GPE ” ) and in ORG ( ізолятор тимчасового тримання PERSON ) ( “ the ORG ” ) respectively .

In the PERSON the applicant shared cell no . CARDINAL , which measured QUANTITY , with CARDINAL other detainees . There were no chairs in the cell and it was in a poor state of repair . There were cockroaches and other insects . The toilet space was very narrow – around QUANTITY in width DATE which caused the applicant , who is QUANTITY tall and weighs QUANTITY , considerable difficulties . The detainees were able to take a shower only once every seven to ten days .

In ORG the applicant was detained in cell no . CARDINAL , which measured QUANTITY , together with CARDINAL or more detainees . The cell had no windows and no furniture . The toilet space was very narrow – QUANTITY in width . The applicant had not been able to take a shower , and detainees had had to sleep in turns . CARDINAL minutes’ outside exercise was possible once every DATE in a small yard which measured QUANTITY . The applicant submitted undated photos of a cell , in which it is apparent that the toilet ( a hole in the floor plugged by a plastic bottle ) is separated from the living space by a wall approximately QUANTITY high . Beside the toilet there is a sleeping place ( allegedly a mattress on a wooden bench or on the floor ) .

According to the ORG , cell no . CARDINAL in GPE had been designed for occupancy by CARDINAL inmates and had had QUANTITY of living space , thus allowing QUANTITY per inmate , which had been in compliance with the domestic standards . In accordance with the relevant regulations , the cell had been disinfected on a DATE basis and the detainees had had DATE access to bathing facilities . The statutory regulations did not include chair provision for this cell .

As regards ORG , the applicant ’s cell had QUANTITY of living space and had been designed to accommodate CARDINAL inmates . The cell had been lit by electric light , equipped with a ventilating system ensuring circulation of air and furnished with wooden sleeping platform , separated toilet and wash - stand . The detainees had been provided with pillows and mattresses . The detention facility had had a shower room with hot and cold water and a small backyard for DATE walks .

On DATE the applicant lodged a complaint with ORG about the conditions of his detention in the ORG ( overcrowding , no windows in the cell , no possibility of taking a shower , lack of out - of - cell activities ) . He requested that the court find the inaction of ORG authorities in this respect unlawful and to oblige it to remedy the situation .

On DATE the court forwarded the complaint to ORG as the appropriate decision - making body .

On DATE ORG informed the applicant that some violations of the law by ORG authorities had been established and that the relevant instructions had been given to remedy the situation , with no further details provided .

On DATE the applicant again lodged his complaint with ORG , having stated that neither his complaint to ORG authorities nor to the prosecutor ’s office had remedied his situation . He requested that the inaction of ORG authorities be declared unlawful . This complaint was again forwarded by the court to ORG .

On DATE and DATE ORG sent the applicant a reply similar to that in the letter of DATE . According to the applicant , he did not receive these letters .

On DATE the applicant complained to ORG of the ARC ( “ ORG ” ) about the failure of ORG to consider his complaint on the merits . He requested that ORG oblige the latter to consider his complaint against ORG on the merits and to bring disciplinary measure to bear on the respective judge of ORG .

On DATE ORG assigned the applicant ’s complaint to ORG of the ARC ( “ the Leninskiy District Court ” ) .

On DATE the applicant complained to ORG of the ARC about the alleged failure of ORG to consider his complaints about conditions of detention .

On DATE ORG refused to open administrative proceedings concerning the applicant ’s complaint as the procedural decisions of a judge in such a case were not subject to appeal under the rules of administrative procedure . Any decision to the contrary would , in the court ’s opinion , constitute an unlawful interference with the administration of justice . The court dismissed as unsubstantiated the applicant ’s allegations that the failure of ORG to entertain his complaint amounted to a denial of access to a court . It noted in this respect ‒ in accordance with LAW and LAW ( ORG прокуратуру ORG ) ‒ that it was for the prosecutor ’s offices to supervise observance of the law in detention centres . The applicant was free to complain to the court about the prosecutor ’s inaction , if appropriate , but he had failed to do so .

The applicant appealed .

On DATE the applicant received a letter from ORG of the ARC in which it referred to the responses given earlier to the applicant by ORG .

On DATE ORG of the ARC upheld the decision of DATE . It noted in particular that the applicant had submitted to ORG a complaint regarding the poor conditions of detention but not an administrative claim against ORG for the protection of his rights , as was required by LAW . This being so , his complaint had been forwarded to the competent authorities as required by the relevant domestic legislation .

On DATE ORG of GPE rejected the applicant ’s appeal on the points of law .

On DATE the applicant lodged an administrative claim with the Menskiy ORG of GPE ( “ the LOC ” ) against ORG authorities claiming , inter alia , damages for the harm inflicted by the inhuman and degrading conditions of his detention .

On DATE the Menskiy ORG admitted the applicant ’s claim for consideration .

On DATE the Menskiy ORG rejected the claim as having been lodged outside the DATE time - limit set by the law , since the applicant had been transferred from ORG on DATE .

ORG and ORG upheld the above decisions on DATE and CARDINAL DATE respectively .


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment)

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

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


Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Paul Lemmens

The first applicant , PERSON , was born in DATE and the second applicant , PERSON GPE , was born in DATE . The second applicant has a daughter , the third applicant , who was born in DATE . The son of the first and the second applicants , the fourth applicant , was born in DATE ; both parents are his guardians . All the applicants are NORP nationals and are currently in GPE . They are represented by PERSON , a lawyer practising in GPE .


CASE OF M.P.E.V. AND OTHERS v. SWITZERLAND

Violation of Article 8 - Right to respect for private and family life (Article 8 - Expulsion) (Conditional) (Ecuador)

András Sajó;Egidijus Kūris;Guido Raimondi;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens

The first and second applicants were born in DATE , and the third and fourth applicants in DATE and DATE respectively . They live in GPE .

The first and second applicants married on DATE in GPE and brought up the third and fourth applicants together . The third applicant is the second applicant ’s daughter and the first applicant ’s stepdaughter ; the fourth applicant is the first and second ORG daughter .

DATE the applicants sought asylum in GPE on QUANTITY occasions . Each time their applications were rejected they returned to GPE .

On DATE the applicants , having re - entered NORP territory , filed a fresh request for asylum . The first and second applicants claimed that they had been tortured and had received death threats from the NORP police after the first applicant had attended CARDINAL political demonstrations in GPE .

On DATE ORG ( “ the Refugee Office ” ) rejected the applicants’ request .

On DATE the first applicant was convicted of selling stolen goods and was given a DATE suspended prison sentence and fined MONEY ( CHF ) . On DATE he was convicted of driving without a valid licence and sentenced to QUANTITY of community service . On DATE he was convicted of attempting to steal perfumes in a shopping centre and was sentenced to TIME of community service . On DATE he was convicted of buying stolen goods and given a ninemonth suspended sentence and fined CARDINAL . The suspension of his previous sentence having been revoked , he served this sentence as from DATE .

On DATE ORG quashed the decision of DATE and ordered ORG to review the ORG request . It considered that the information contained in medical records regarding the first applicant ’s state of mental health drawn up in GPE in DATE might be a reason to grant refugee status to the applicants . According to medical certificates , the first applicant suffered from posttraumatic stress disorder ( PTSD ) , depression and schizoaffective disorder . He had been hospitalised on several occasions after attempting to commit suicide .

NORP In DATE the first and the second applicants separated . Their young daughter , the fourth applicant , stayed with the second applicant , who obtained full parental authority , while the first applicant was granted extended access , including the right to see her every DATE , DATE and for CARDINAL of the school holidays .

On DATE ORG granted the third applicant a residence permit on humanitarian grounds . She then withdrew her asylum request and applied for NORP citizenship , which was granted on DATE .

On DATE ORG , following a fresh examination of the facts , rejected the remaining applicants’ request for asylum . On DATE they lodged an administrative appeal , arguing , inter alia , that they continued to have a close family relationship even after the first CARDINAL applicants had separated .

On DATE ORG partially reversed ORG decision . The court specified , at the outset , that the decisions given by ORG could be contested before ORG , whose decision was final .

The court also observed that the first and second applicants had separated and ceased living together , and that the fourth applicant usually lived with her mother . Accordingly , the family unit had ceased to exist and the principles established under LAW no longer applied . As a consequence , each applicant ’s residence rights had to be examined separately . The court considered that this approach was even more justified in view of the first applicant ’s behaviour and his criminal record .

The court further observed that the fourth applicant was then DATE and had from the age of CARDINAL grown up in GPE , where she had attended school and was completely integrated . It appeared that she did not have any practical knowledge of her country of origin , having never returned after her arrival in GPE , and that she hardly spoke LANGUAGE , GPE ’s main language . Under these circumstances , the court considered that sending her back would amount to an uprooting of excessive rigidity ( un déracinement d’une rigueur excessive ) and granted her and her mother temporary residence ( admission provisoire ) in GPE for DATE , renewable on a DATE basis thereafter .

Regarding the first applicant , ORG considered his expulsion to be lawful . The court observed , at the outset , that he had not established that he would be at any risk on his return to GPE . The court further considered that his state of health gave reason for concern , since he suffered from PTSD and had made several suicide attempts . However , the court observed that GPE had a health system which , even if it could not be compared to the NORP system , was nevertheless reliable . The court considered that the applicant would have access to specialist care in the main urban centres of the country .

The court further noted that the first applicant ’s attending doctors considered that his return to GPE was in itself likely to jeopardise his health , irrespective of the medical treatment he received . Furthermore , he would be confronted with serious social problems . However , ORG considered that , under the pertinent legislation , the applicant ’s criminal record excluded him from being granted temporary residence . The court noted in this context that the applicant had , over a longer period of time , acquired a total of CARDINAL stolen goods ( primarily gold jewellery ) deriving from various burglaries .